Victims of genocidal acts vs. victims of genocide
|Appeal Judgement - 08.04.2015||
218. This conclusion, of course, does not amount to a conclusion that the Bosnian Muslims of Žepa were not the victims of genocide. The Appeals Chamber emphasises that the only question addressed here is whether the Trial Chamber erred in finding that the forcible transfer operation in Žepa – which the Trial Chamber distinguished from the transfer operation in Srebrenica and analysed separately vis-à-vis the actus reus of Article 4(2)(b) of the Statute – inflicted on the transferred Muslim population serious mental harm, as that term is used in Article 4(2)(b) of the Statute and the Genocide Convention. This question does not involve the definition of the protected group. In this sense, the Appeals Chamber recalls its earlier conclusion that the Trial Chamber did not err in holding that the Bosnian Muslims of Žepa are, along with the Muslims of Srebrenica and Eastern BiH in general, members of the protected group. By virtue of being “within the targeted part of the protected group”, the Bosnian Muslims of Žepa were among the ultimate victims of the genocidal enterprise against the Muslims of Eastern BiH.
236. As clarified above, and consistent with the Appeals Chamber’s recent case law, all members of the protected group as defined by the Trial Chamber – i.e., “the Bosnian Muslim population of Eastern Bosnia and in particular, of the enclaves of Srebrenica, Žepa and Goražde” – were the victims of the genocidal acts of Article 4(2)(a) and 4(2)(b) of the Statute (killings and acts causing serious mental harm), by virtue of being “within the targeted part of the protected group”. In this and the previous subsections, the Appeals Chamber only finds that the displaced Bosnian Muslims of Žepa were not the direct victims of the specific genocidal act defined in Article 4(2)(b) and Article 4(2)(c) of the Statute – acts causing serious mental harm and acts deliberately inflicting conditions of life calculated to bring about the protected group’s physical destruction in whole or in part. The Appeals Chamber’s conclusions do not diminish the status of Žepa’s Muslim populations as victims of the genocide committed against the entire protected group by means of (i) the killings of Srebrenica’s male population (which qualifies as a genocidal act under both Article 4(2)(a) and 4(2)(b) of the Statute) and (ii) the forcible transfer operation of Srebrenica’s women, children, and elderly (which qualifies as a genocidal act under Article 4(2)(b) of the Statute).
 See supra, paras 185-188. It is this group that is the victim of the crime of genocide – and each underlying act meeting the threshold of Article 4 of the Statute and committed with genocidal intent – and not the individual members of the group. See Trial Judgement, para. 747, citing Akayesu Trial Judgement, para. 521.
 See also Popović et al. Appeal Judgement, para. 458. The Appeals Chamber refers, in this respect, to its relevant findings in the Popović et al. case, which involved facts and charges almost identical to the present case. The Popović et al. Appeal Judgement affirmed that “the Muslims of Eastern Bosnia including the inhabitants of Žepa were found to be victims of the genocidal enterprise” (Popović et al. Appeal Judgement, para. 458), even though the Popović et al. Trial Chamber had confined its analysis of genocidal acts falling under Article 4(2)(b) of the Statute “to an analysis of the serious bodily and mental harm caused by the killing operation” of the Bosnian Muslim men and boys from Srebrenica. Popović et al. Trial Judgement, para. 843. See also Popović et al. Trial Judgement, paras 844-847. In the Popović et al. case, the Appeals Chamber did not address the Trial Chamber’s holding that the Bosnian Muslim of Žepa were victims of genocide, even though serious bodily or mental harm had only been caused by the killing operation of the Bosnian Muslim men and boys from Srebrenica, not the forcible transfer operations in either Srebrenica or Žepa and this issue was not challenged on appeal. In the view of the Appeals Chamber, the same distinction between victims of genocide (which include all members of the protected group) and direct targets of each act that constitutes the actus reus of genocide applies to the present case.
 Trial Judgement, para. 775, citing Indictment, para. 10.
 Popović et al. Appeal Judgement, para. 458. See also supra, para. 218.
 See supra, paras 208-212.
|ICTR Statute Article 2 ICTY Statute Article 4|