261. The Appeals Chamber first observes that the Trial Chamber correctly stated that the prominence of the targeted portion of the protected group is a relevant factor in determining whether the perpetrator intended to destroy at least a substantial part of the protected group.[1] Indeed, as the Trial Chamber held, “genocidal intent may […] consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have on the survival of the group as such”.[2] This holding is consistent with other trial judgements of the Tribunal,[3] as well as the Appeals Chamber’s own jurisprudence. The Appeals Chamber recalls, in this respect, that “[i]f a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4” of the Statute.[4]

262. The Commission of Experts Report, on which the Trial Chamber relied as support for its legal analysis vis-à-vis the killings of the three Žepa leaders,[5] states, in relevant part:

[i]f essentially the total leadership of a group is targeted, it could also amount to genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others – the totality per se may be a strong indication of genocide regardless of the actual numbers killed. A corroborating argument will be the fate of the rest of the group. The character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group. If a group has its leadership exterminated, and at the same time or in the wake of that, has a relatively large number of the members of the group killed or subjected to other heinous acts, for example deported on a large scale or forced to flee, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the Convention in a spirit consistent with its purpose.[6]

263. The Appeals Chamber finds no legal error in the Trial Chamber’s statement that the selective targeting of leading figures of a community may amount to genocide and may be indicative of genocidal intent.[7] The Appeals Chamber is not persuaded that the commission of genocide through the targeted killings of only the leaders of a group suggests that the leaders of the group are subject to special, stronger protection than the other members of the group, as Tolimir suggests. Recognising that genocide may be committed through the killings of only certain prominent members of the group “selected for the impact that their disappearance would have on the survival of the group as such”[8] aims at ensuring that the protective scope of the crime of genocide encompasses the entire group, not just its leaders. […]

264. […] For a finding of genocide it suffices that the leaders were “selected for the impact that their disappearance would have on the survival of the group as such”.[9] Genocide may be committed even if not all leaders of a group are killed – even though targeting “the totality [of the leadership] per se may be a strong indication of genocide regardless of the actual numbers killed”.[10]

265. […] The Appeals Chamber recalls that according to the Commission of Experts Report and as the Trial Chamber itself recognised, “[t]he character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group […] at the same time or in the wake of that” attack.[11] As the Trial Chamber found, the selective targeting of a protected group’s leadership may amount to genocide only if the leaders are selected because of “the impact that their disappearance would have on the survival of the group as such”.[12] The impact of the leaders’ disappearance may of course be assessed only after the leaders are attacked. Only by considering what happened to the rest of the protected group at the same time or in the wake of the attack on its leadership could “the impact that [the leaders’] disappearance would have on the survival of the group as such” be assessed.[13]

[…]

267. The Appeals Chamber has already established that the Trial Chamber did not err in finding that the only reasonable inference from the evidence was that the three Žepa leaders suffered a violent death at the hands of their Bosnian Serb captors.[14] However, the Trial Chamber failed to explain how their detention and killings – committed weeks after the entire Žepa population had been forcibly transferred from the enclave – had any impact “on the survival of the group as such”.[15] The Trial Chamber accepted in its conclusion that there was such an impact, but it did not consider or analyse whether or how the killings of the three Žepa leaders after the Bosnian Muslim civilian population of Žepa had been transferred to safe areas of BiH specifically affected the ability of those removed civilians to survive and reconstitute themselves as a group.[16] A finding that Žepa’s Bosnian Muslims lost three of their leaders[17] does not suffice to infer that those civilians were affected by the loss of their leaders in a way that would threaten or tend to contribute to their physical destruction as a group.

[…]

269. In this context, particularly in light of the fact that the forcible transfer operation of Žepa’s Bosnian Muslims had been completed before the three Žepa leaders were detained and killed and in the absence of any findings as to whether or how the loss of these three prominent figures affected the ability of the Bosnian Muslims from Žepa to survive in the post-transfer period, the inference of genocidal intent was not the only reasonable inference that could be drawn from the record. In the view of the Appeals Chamber, the evidence does not allow for the conclusion that the murders of the three Žepa leaders had a significant impact on the physical survival of the group as such so as to amount to genocide. There is, in sum, no sufficient evidentiary support for the finding that Hajrić, Palić, and Imamović were killed “with the specific genocidal intent of destroying part of the Bosnian Muslim population as such”.[18] […]