PETER ROBINSON

International Criminal Defence Counsel

E-mail: [email protected]

PETER ROBINSON’S
SUMMARY OF DECISIONS OF THE
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

ICTY STATUTE, RULES OF PROCEDURE AND EVIDENCE,

DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL, AND
CODE OF CONDUCT FOR DEFENCE COUNSEL
ANNOTATED

© 2019—ALL RIGHTS RESERVED

 PREFACE

When I first started working as a criminal defence counsel at the Tribunals in

2000, it was difficult to find their prior decisions. Since knowledge and use of the
Tribunals’ own jurisprudence was essential to defending my clients, I began locating and
reading all the prior decisions and making summaries of them. I continued that practice
even when the Tribunals’ jurisprudence became more reliably and widely available,
mostly as a discipline for myself to keep up with the decisions and as a way to quickly
locate decisions that I had read.

The summaries in this document are not verbatim quotations from the decisions
and are intended only to assist in locating the relevant precedent. They are guides to, but
not substitutes for, reading the decisions themselves.

I hope others will find these summaries useful.

Peter Robinson

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STATUTE OF THE TRIBUNAL ............................................................................... 33
ARTICLE 1—COMPETENCE OF THE INTERNATIONAL TRIBUNAL ........... 33
ABUSE OF PROCESS ..................................................................................................... 33
CONFLICT OF INTEREST ............................................................................................... 34
ILLEGAL ARREST......................................................................................................... 34
IMMUNITY .................................................................................................................. 34
JURISDICTION ............................................................................................................. 35
NULLEM CRIMEN SINE LEGE .......................................................................................... 37
SELECTIVE PROSECUTION ............................................................................................ 37
STAY OF PROCEEDINGS................................................................................................ 38

ARTICLE 2—GRAVE BREACHES OF THE GENEVA CONVENTION ............. 38

ARMED CONFLICT ....................................................................................................... 39
existence ................................................................................................................ 39
international character .......................................................................................... 39
territory included ................................................................................................... 41
CONFINEMENT ............................................................................................................ 41
civilians ................................................................................................................. 41
conditions .............................................................................................................. 42
justifications .......................................................................................................... 42
mens rea ................................................................................................................ 43
participation .......................................................................................................... 43
CRUEL AND INHUMAN TREATMENT .............................................................................. 44
DEPORTATION AND FORCIBLE TRANSFER ..................................................................... 44
DESTRUCTION NOT BASED ON MILITARY NECESSITY ..................................................... 45
KILLING...................................................................................................................... 46
MENS REA................................................................................................................... 47
OCCUPIED TERRITORY ................................................................................................. 47
aiding and abetting ................................................................................................ 47
area ....................................................................................................................... 47
authority ................................................................................................................ 48
state of occupation ................................................................................................. 48
PLUNDER AND APPROPRIATION OF PROPERTY ............................................................... 49
PROTECTED PERSONS .................................................................................................. 50
allegiance .............................................................................................................. 50
civilians ................................................................................................................. 51
co-belliegerents ..................................................................................................... 51
nationals ................................................................................................................ 51
non-civilians .......................................................................................................... 52
persons subject to conscription .............................................................................. 52
reservists ............................................................................................................... 52
ARTICLE 3—VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR .............. 52
ARMED CONFLICT ....................................................................................................... 53

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 existence ................................................................................................................ 53
intensity ................................................................................................................. 54
international character .......................................................................................... 54
organisation .......................................................................................................... 55
ATTACKS ON CIVILIANS OR ON CIVILIAN OBJECTS......................................................... 55
civilians ................................................................................................................. 56
civilian objects....................................................................................................... 56
distinction .............................................................................................................. 57
elements................................................................................................................. 59
factors ................................................................................................................... 60
hospitals ................................................................................................................ 60
mens rea ................................................................................................................ 60
military objects ...................................................................................................... 61
precautions ............................................................................................................ 61
proportionality ...................................................................................................... 61
scale ...................................................................................................................... 62
shelling .................................................................................................................. 62
targeting civilians .................................................................................................. 63
CRUEL TREATMENT ..................................................................................................... 63
contribution ........................................................................................................... 64
defences ................................................................................................................. 64
elements................................................................................................................. 64
mens rea ................................................................................................................ 64
suffering ................................................................................................................ 65
victims ................................................................................................................... 66
DESTRUCTION NOT BASED ON MILITARY NECESSITY ..................................................... 66
collateral damage .................................................................................................. 66
elements................................................................................................................. 67
mens rea ................................................................................................................ 67
military objects ...................................................................................................... 67
partial destruction ................................................................................................. 68
scope of protection................................................................................................. 69
DEVASTATION NOT JUSTIFIED BY MILITARY NECESSITY ................................................ 69
DESTRUCTION OF CULTURAL PROPERTY ....................................................................... 69
DESTRUCTION OF RELIGIOUS INSTITUTIONS .................................................................. 70
FORCED LABOUR......................................................................................................... 71
HOSTAGE TAKING ....................................................................................................... 71
MENS REA.................................................................................................................... 73
MURDER ..................................................................................................................... 73
NEXUS........................................................................................................................ 73
OUTRAGES UPON PERSONAL DIGNITY ........................................................................... 74
PLUNDER .................................................................................................................... 75
PROTECTED PERSONS .................................................................................................. 77
REPRISALS .................................................................................................................. 78
SCOPE ........................................................................................................................ 79
TERROR ...................................................................................................................... 80

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 customary law ....................................................................................................... 80
elements................................................................................................................. 81
actus reus .............................................................................................................. 81
mens rea ................................................................................................................ 82
TIMING ....................................................................................................................... 84
TORTURE .................................................................................................................... 85
elements................................................................................................................. 85
actus reus .............................................................................................................. 85
mens rea ................................................................................................................ 86
public official......................................................................................................... 87
ARTICLE 4—GENOCIDE ........................................................................................ 87
ACTUS REUS ............................................................................................................... 88
DESTRUCTION ............................................................................................................. 88
killing .................................................................................................................... 88
serious physical harm ............................................................................................ 89
serious mental harm .............................................................................................. 90
unbearable conditions of life.................................................................................. 91
preventing births .................................................................................................... 95
COMPLICITY ............................................................................................................... 95
CONSPIRACY............................................................................................................... 96
agreement .............................................................................................................. 96
inference ................................................................................................................ 97
mens rea ................................................................................................................ 97
continuing offence ................................................................................................. 97
inchoate offence..................................................................................................... 97
withdrawal ............................................................................................................ 98
MENS REA.................................................................................................................... 98
as such................................................................................................................... 98
factors ................................................................................................................... 98
inferences .............................................................................................................. 99
insufficient evidence............................................................................................... 99
related crimes ...................................................................................................... 101
saving victims ...................................................................................................... 101
specific intent....................................................................................................... 101
IN WHOLE OR IN PART ............................................................................................... 102
PLAN OR POLICY ....................................................................................................... 103
PROTECTED GROUP ................................................................................................... 104

ARTICLE 5—CRIMES AGAINST HUMANITY ................................................... 104

ARMED CONFLICT ..................................................................................................... 105
ATTACK.................................................................................................................... 106
elements............................................................................................................... 106
existence .............................................................................................................. 106
nexus ................................................................................................................... 106
widespread or systematic ..................................................................................... 108
CHAPEAU ELEMENTS—MENS REA ............................................................................... 110

5
 context ................................................................................................................. 110
details .................................................................................................................. 110
discriminatory intent ............................................................................................ 110
elements............................................................................................................... 110
multiple motivations ............................................................................................ 111
recklessness ......................................................................................................... 111
whose intent matters ............................................................................................ 112
CIVILIAN POPULATION .............................................................................................. 112
definition ............................................................................................................. 112
directed against civilian population ..................................................................... 113
hors d’combat ...................................................................................................... 115
DEPORTATION........................................................................................................... 116
defence of necessity ............................................................................................. 116
elements............................................................................................................... 117
forcible ................................................................................................................ 117
international border ............................................................................................ 118
lawfully present ................................................................................................... 119
mens rea .............................................................................................................. 120
ENSLAVEMENT ......................................................................................................... 121
EXTERMINATION ....................................................................................................... 121
aggregation of victims ......................................................................................... 121
aiding and abetting .............................................................................................. 122
elements............................................................................................................... 122
mens rea .............................................................................................................. 123
number of victims ................................................................................................ 124
FORCED LABOUR....................................................................................................... 124
FORCIBLE TRANSFER ................................................................................................. 125
deportation distinguished..................................................................................... 125
elements............................................................................................................... 126
forcible ................................................................................................................ 126
gravity ................................................................................................................. 127
mens rea .............................................................................................................. 127
necessity .............................................................................................................. 128
nullum crimen sine lege ....................................................................................... 129
persons excluded ................................................................................................. 129
transfer ................................................................................................................ 130
IMPRISONMENT......................................................................................................... 130
continued detention.............................................................................................. 130
defences ............................................................................................................... 130
elements............................................................................................................... 131
factors ................................................................................................................. 131
home detention .................................................................................................... 131
MURDER ................................................................................................................... 132
body..................................................................................................................... 132
causation ............................................................................................................. 132
elements............................................................................................................... 133

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 mens rea .............................................................................................................. 134
OTHER INHUMANE ACTS ............................................................................................ 134
PERSECUTION ........................................................................................................... 136
in general ............................................................................................................ 136
act of discrimination ............................................................................................ 137
attacks against civilians ....................................................................................... 138
cruel and inhumane treatment.............................................................................. 138
disappearances .................................................................................................... 139
destruction of cultural property ........................................................................... 139
destruction of personal property .......................................................................... 140
forced labor ......................................................................................................... 141
forcible transfer ................................................................................................... 142
harassment, humiliation and psychological abuse ................................................ 142
human shields ...................................................................................................... 143
imprisonment ....................................................................................................... 143
mens rea .............................................................................................................. 143
other acts ............................................................................................................. 145
plunder ................................................................................................................ 147
sexual violence .................................................................................................... 148
terrorizing the civilian population........................................................................ 149
RAPE ........................................................................................................................ 150
SELF-DEFENCE .......................................................................................................... 150
TORTURE .................................................................................................................. 151

ARTICLE 6—PERSONAL JURISDICTION.......................................................... 152

ARTICLE 7—INDIVIDUAL CRIMINAL RESPONSIBILITY ............................. 152
AIDING AND ABETTING .............................................................................................. 153
actus reus ............................................................................................................ 153
after-the-fact........................................................................................................ 154
definition ............................................................................................................. 154
mens rea--definition............................................................................................. 154
mens rea—knowledge of perpetrator’s intent ....................................................... 154
mens rea—specific cases...................................................................................... 155
mens rea--specific intent crimes ........................................................................... 156
relationship with perpetrator ............................................................................... 156
omission .............................................................................................................. 157
plan ..................................................................................................................... 160
presence .............................................................................................................. 160
principal .............................................................................................................. 161
specific direction ................................................................................................. 161
substantial effect .................................................................................................. 161
timing .................................................................................................................. 163
COMMITTING ............................................................................................................ 163
FORMS OF LIABILITY IN GENERAL .............................................................................. 164
INDIRECT CO-PERPETRATION ..................................................................................... 164
INSTIGATING ............................................................................................................ 165

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 actus reus ............................................................................................................ 165
distinguished from aiding and abetting ................................................................ 166
mens rea .............................................................................................................. 166
omission .............................................................................................................. 166
specific cases ....................................................................................................... 167
JOINT CRIMINAL ENTERPRISE ..................................................................................... 168
common elements................................................................................................. 168
acquiescence........................................................................................................ 169
common plan or purpose ..................................................................................... 171
plurality of persons .............................................................................................. 173
customary international law ................................................................................ 174
distinction from aiding and abetting .................................................................... 174
forms ................................................................................................................... 176
forms—JCE I ....................................................................................................... 176
forms--JCE II....................................................................................................... 178
JCE III--actus reus .............................................................................................. 179
JCEIII--“commission”......................................................................................... 179
JCEIII--definition ................................................................................................ 179
JCEIII--mens rea ................................................................................................. 183
JCEIII--relation to JCE I ..................................................................................... 184
JCEIII--specific intent crimes .............................................................................. 184
significant contribution ........................................................................................ 185
mens rea .............................................................................................................. 185
inferences ............................................................................................................ 186
non-JCE perpetrators .......................................................................................... 187
omission .............................................................................................................. 189
scope ................................................................................................................... 191
significant contribution ........................................................................................ 191
timing .................................................................................................................. 195
MENS REA.................................................................................................................. 195
OMISSION ................................................................................................................. 195
ORDERING ................................................................................................................ 196
actus reus ............................................................................................................ 196
causation ............................................................................................................. 196
express or implied................................................................................................ 197
mens rea .............................................................................................................. 197
omission .............................................................................................................. 198
superior relationship not required ....................................................................... 198
PLANNING ................................................................................................................ 199
SUPERIOR RESPONSIBILITY ........................................................................................ 200
causation ............................................................................................................. 200
civilians ............................................................................................................... 200
criminal negligence ............................................................................................. 200
defences ............................................................................................................... 201
elements............................................................................................................... 201
jurisdiction .......................................................................................................... 201

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 mens rea .............................................................................................................. 202
actual knowledge ................................................................................................. 202
reason to know..................................................................................................... 203
failure to prevent or punish .................................................................................. 208
reasonable and necessary measures..................................................................... 208
existence of other investigations........................................................................... 212
when reporting futile............................................................................................ 213
prevention............................................................................................................ 214
punishment .......................................................................................................... 216
subsequent commanders ...................................................................................... 218
acts of subordinates ............................................................................................. 218
effective control ................................................................................................... 220
effective control factors ....................................................................................... 224
effective control v influence ................................................................................. 226
effective control found ......................................................................................... 226
effective control not found.................................................................................... 227
ARTICLE 8—TERRITORIAL AND TEMPORAL JURISDICTION ................... 228
ARTICLE 9—CONCURRENT JURISDICTION ................................................... 228
ARTICLE 10—NON BIS IN IDEM ......................................................................... 228
ARTICLE 11—ORGANISATION OF THE INTERNATIONAL TRIBUNAL .... 229
ARTICLE 12—COMPOSITION OF THE CHAMBERS ....................................... 229
ARTICLE 13—QUALIFICATION OF JUDGES ................................................... 230
ARTICLE 13 BIS—ELECTION OF PERMANENT JUDGES .............................. 230
ARTICLE 13 TER—ELECTION AND APPOINTMENT OF AD LITEM JUDGES
.................................................................................................................................... 231
ARTICLE 13 QUATER—STATUS OF AD LITEM JUDGES ................................ 232
ARTICLE 14—OFFICERS AND MEMBERS OF THE CHAMBERS ................. 233
ARTICLE 15—RULES OF PROCEDURE AND EVIDENCE............................... 234
ARTICLE 16—THE PROSECUTOR ...................................................................... 234
ARTICLE 17—THE REGISTRY ............................................................................ 235
ARTICLE 18—INVESTIGATION AND PREPARATION OF INDICTMENT ... 235
ARTICLE 19—REVIEW OF THE INDICTMENT ................................................ 235
ARTICLE 20—COMMENCEMENT AND CONDUCT OF TRIAL ..................... 236
ATTENTIVENESS OF JUDGES ....................................................................................... 236
DELAY...................................................................................................................... 236
MENTAL CAPACITY ................................................................................................... 237
PHYSICAL CAPACITY ................................................................................................. 238
WITNESS INTIMIDATION ............................................................................................ 240

ARTICLE 21—RIGHTS OF THE ACCUSED ........................................................ 240

9
ARTICLE 21(1)--EQUALITY OF ARMS ......................................................................... 241
ARTICLE 21(3)—PRESUMPTION OF INNOCENCE......................................................... 243
ARTICLE 21(4)(A)—SPECIFICITY OF THE INDICTMENT ............................................... 244
prosecution must know its case ............................................................................ 244
degree of specificity required ............................................................................... 245
incorporation by reference................................................................................... 245
indictment schedules ............................................................................................ 245
identification of perpetrators ............................................................................... 246
identification of victims ........................................................................................ 246
meetings and speeches ......................................................................................... 246
dates .................................................................................................................... 247
state of mind ........................................................................................................ 248
defective indictment in general ............................................................................ 248
curing defect ........................................................................................................ 249
expansion of charges ........................................................................................... 251
armed conflict...................................................................................................... 252
persecution .......................................................................................................... 252
unlawful attacks against civilians ........................................................................ 253
cruel treatment .................................................................................................... 253
forced labour ....................................................................................................... 253
deportation and forcible transfer ......................................................................... 253
murder ................................................................................................................. 254
plunder ................................................................................................................ 255
other inhumane acts............................................................................................. 255
forms of liability .................................................................................................. 255
instigating............................................................................................................ 256
ordering............................................................................................................... 256
committing ........................................................................................................... 256
joint criminal enterprise ...................................................................................... 256
superior responsibility ......................................................................................... 258
sentencing............................................................................................................ 260
burden of proof .................................................................................................... 260
remedies for defective indictment ......................................................................... 260
ARTICLE 21(4)(B)--ADEQUATE TIME AND FACILITIES ................................................. 261
adjournment of trial ............................................................................................. 261
assistance of the Registrar ................................................................................... 263
assistance of States and UN organs ..................................................................... 263
courtroom facilities.............................................................................................. 263
funding ................................................................................................................ 263
time to prepare for trial ....................................................................................... 263
time to present defence case................................................................................. 265
translations .......................................................................................................... 266
trial schedule ....................................................................................................... 266
ARTICLE 21(4)(D)—PRESENCE OF THE ACCUSED ....................................................... 266
ARTICLE 21(4)(D)--SELF REPRESENTATION ................................................................ 268
amicus curiae ...................................................................................................... 268

10
 assistance to self-represented accused ................................................................. 268
limitations and termination on self-representation ............................................... 271
right to self-representation................................................................................... 273
self-representation on appeal ............................................................................... 274
special treatment ................................................................................................. 274
standby counsel ................................................................................................... 275
ARTICLE 21(4)(E)--COMPULSORY PROCESS................................................................ 276
ARTICLE 21(4)(E)—CROSS EXAMINATION ................................................................. 277
ARTICLE 21(4)(G)—SELF INCRIMINATION ................................................................. 277
ARTICLE 22—PROTECTION OF VICTIMS AND WITNESSES ....................... 278
ARTICLE 23—JUDGEMENT ................................................................................. 278
ARTICLE 24—PENALTIES .................................................................................... 282
ARTICLE 25—APPELLATE PROCEEDINGS ..................................................... 282
ACQUITTAL .............................................................................................................. 283
APPEAL OF RIGHT...................................................................................................... 283
BINDING NATURE OF DECISIONS................................................................................. 283
CLARIFICATION......................................................................................................... 286
COLLATERAL ESTOPPEL AND RES JUDICATA ................................................................ 286
DEATH OF APPELLANT ............................................................................................... 286
EXPEDITED APPEALS ................................................................................................. 286
FACTUAL FINDINGS ................................................................................................... 287
INCONSISTENT FINDINGS ........................................................................................... 287
INTERLOCUTORY DECISIONS...................................................................................... 287
ISSUES OF GENERAL IMPORTANCE.............................................................................. 288
RECONSIDERATION ................................................................................................... 288
REMEDY ................................................................................................................... 288
REMIT TO TRIAL CHAMBER ....................................................................................... 289
REVISION OF JUDGEMENT .......................................................................................... 290
SCOPE OF REVIEW ..................................................................................................... 291
STANDARD OF REVIEW .............................................................................................. 291
STANDING ................................................................................................................ 293
STAY PENDING APPEAL.............................................................................................. 294
WAIVER .................................................................................................................... 294
WITHDRAWAL OF APPEAL.......................................................................................... 295

ARTICLE 26—REVIEW PROCEEDINGS ............................................................ 295

ARTICLE 27—ENFORCEMENT OF SENTENCES ............................................. 295
ARTICLE 28—PARDON OR COMMUTATION OF SENTENCES .................... 296
ARTICLE 29—CO-OPERATION AND JUDICIAL ASSISTANCE ..................... 296
ARTICLE 30—STATUS, PRIVILIGES, AND IMMUNITIES .............................. 297
ARTICLE 31—SEAT OF THE INTERNATIONAL TRIBUNAL ......................... 298
ARTICLE 32—EXPENSES OF THE INTERNATIONAL TRIBUNAL ............... 298

11
ARTICLE 33—WORKING LANGUAGES ............................................................ 299
ARTICLE 34—ANNUAL REPORT ........................................................................ 299
RULES OF PROCEDURE AND EVIDENCE ......................................................... 300
RULE 1—ENTRY INTO FORCE ............................................................................ 300
RULE 2—DEFINITIONS ......................................................................................... 300
RULE 3—LANGUAGES .......................................................................................... 301
EXHIBITS .................................................................................................................. 301
FOR THE ACCUSED .................................................................................................... 302

RULE 4—MEETINGS AWAY FROM THE SEAT OF THE TRIBUNAL ........... 303
DENIED..................................................................................................................... 304
EVIDENCE................................................................................................................. 304
PRESENCE OF ACCUSED ............................................................................................. 304

RULE 5—NON-COMPLIANCE WITH RULES .................................................... 305

RULE 6—AMENDMENT OF THE RULES ........................................................... 305
RULE 7—AUTHENTIC TEXTS ............................................................................. 305
RULE 7 BIS—NON-COMPLIANCE WITH OBLIGATIONS .............................. 305
RULE 8—REQUEST FOR INFORMATION ......................................................... 306
RULE 9—PROSECUTOR’S REQUEST FOR DEFERRAL .................................. 306
RULE 10—FORMAL REQUEST FOR DEFERRAL ............................................. 306
RULE 11—NON-COMPLIANCE WITH A REQUEST FOR DEFERRAL .......... 307
RULE 11 BIS—REFERRAL OF THE INDICTMENT TO ANOTHER COURT 307
CHOICE OF STATE ...................................................................................................... 308
CONDITIONS OF DETENTION ....................................................................................... 309
DEATH PENALTY ....................................................................................................... 309
DEFENCE INVESTIGATION .......................................................................................... 309
DISCRETION .............................................................................................................. 310
EX POST FACTO ......................................................................................................... 310
FACTORS .................................................................................................................. 310
FAIR TRIAL ............................................................................................................... 310
GRAVITY OF OFFENCE ............................................................................................... 311
INDICTMENT ............................................................................................................. 311
JURISDICTION OF TRIAL CHAMBER ............................................................................ 311
LEVEL OF RESPONSIBILITY OF THE ACCUSED .............................................................. 312
MONITORING COMPLIANCE........................................................................................ 313
POST-CONVICTION PROCEEDINGS .............................................................................. 313
RE-TRANSFER ........................................................................................................... 313
REVOCATION OF REFERRAL ....................................................................................... 314
SEVERANCE .............................................................................................................. 314
STANDARD OF REVIEW ON APPEAL............................................................................. 314

12
 STANDING TO REQUEST TRANSFER ............................................................................. 314
WILLING AND ABLE ................................................................................................... 314

RULE 12—DETERMINATIONS OF COURTS OF ANY STATE ........................ 315

RULE 13—NON BIS IN IDEM ................................................................................ 315
RULE 14—SOLEMN DECLARATION .................................................................. 315
RULE 15—DISQUALIFICATION OF JUDGES .................................................... 315
ADMINISTRATIVE DUTIES .......................................................................................... 316
APPEARANCE OF BIAS................................................................................................ 316
BURDEN OF PROOF .................................................................................................... 318
CONTEMPT ............................................................................................................... 318
DECISIONS AS SOURCE OF BIAS .................................................................................. 319
EXTRAJUDICIAL ACTIVITIES AS SOURCE OF BIAS ......................................................... 319
FAIR TRIAL ............................................................................................................... 320
MULTIPLE CASES....................................................................................................... 320
NULLIFICATION OF DECISIONS ................................................................................... 320
PANEL OF THREE JUDGES ........................................................................................... 321
PRESIDING JUDGE...................................................................................................... 322
PRESUMPTION OF IMPARTIALITY ................................................................................ 322
PRIOR INVOLVEMENT WITH SAME OR RELATED MATTER ............................................. 323
REPLACEMENT JUDGE ............................................................................................... 324
REVIEW .................................................................................................................... 324
STAFF ....................................................................................................................... 324
STAY OF PROCEDINGS ............................................................................................... 325
WAIVER .................................................................................................................... 326

RULE 15 BIS—ABSENCE OF A JUDGE ............................................................... 326

RULE 15 TER—RESERVE JUDGES ...................................................................... 327
RULE 16—RESIGNATION ..................................................................................... 327
RULE 17—PRECEDENCE ...................................................................................... 327
RULE 18—ELECTION OF THE PRESIDENT ...................................................... 328
RULE 19—FUNCTIONS OF THE PRESIDENT ................................................... 328
RULE 20—VICE-PRESIDENT ............................................................................... 329
RULE 21—FUNCTIONS OF VICE-PRESIDENT.................................................. 329
RULE 22—REPLACEMENTS ................................................................................ 329
RULE 23—THE BUREAU ....................................................................................... 329
RULE 23 BIS—THE COORDINATION COUNCIL .............................................. 330
RULE 24—PLENARY MEETINGS ........................................................................ 330
RULE 25—DATES OF PLENARY SESSIONS ...................................................... 330
RULE 26—QUORUM AND VOTE ......................................................................... 330

13
RULE 27—ROTATION ........................................................................................... 331
RULE 28—REVIEWING AND DUTY JUDGES .................................................... 331
RULE 29—DELIBERATIONS ................................................................................ 332
RULE 30—APPOINTMENT OF THE REGISTRAR ............................................ 332
RULE 31—DEPUTY REGISTRAR AND STAFF .................................................. 333
RULE 32—SOLEMN DECLARATION .................................................................. 333
RULE 33—FUNCTIONS OF THE REGISTRAR................................................... 333
RULE 33 BIS—FUNCTIONS OF THE DEPUTY REGISTRAR........................... 334
RULE 33 TER—FUNCTION OF THE HEAD OF CHAMBERS .......................... 334
RULE 34—VICTIMS AND WITNESSES SECTION ............................................. 334
RULE 35—MINUTES .............................................................................................. 335
RULE 36—RECORD BOOK ................................................................................... 335
RULE 37—FUNCTIONS OF THE PROSECUTOR ............................................... 335
RULE 38—DEPUTY PROSECUTOR ..................................................................... 335
RULE 39—CONDUCT OF INVESTIGATIONS .................................................... 335
RULE 40—PROVISIONAL MEASURES ............................................................... 336
RULE 40 BIS—TRANSFER AND PROVISIONAL DETENTION OF SUSPECTS
.................................................................................................................................... 336
RULE 41—RETENTION OF INFORMATION ..................................................... 337
RULE 42—RIGHTS OF SUSPECTS ....................................................................... 337
RULE 43—RIGHTS OF SUSPECTS DURING INVESTIGATION ...................... 337
RULE 43—RECORDING OF QUESTIONING ...................................................... 339
RULE 44—APPOINTMENT, QUALIFICATIONS AND DUTIES OF COUNSEL
.................................................................................................................................... 339
RULE 45—ASSIGNMENT OF COUNSEL ............................................................. 341
APPEAL .................................................................................................................... 341
CHOICE OF COUNSEL ................................................................................................. 342
CO-COUNSEL ............................................................................................................ 342
COOPERATION .......................................................................................................... 342
EFFECTIVE ASSISTANCE............................................................................................. 343
INDIGENCE ............................................................................................................... 343
LEGAL ASSOCIATES ................................................................................................... 343

RULE 45 BIS—DETAINED PERSONS .................................................................. 344

RULE 45 TER—ASSIGNMENT OF COUNSEL IN THE INTERESTS OF
JUSTICE ................................................................................................................... 344

14
RULE 46—MISCONDUCT OF COUNSEL ............................................................ 344
DEFENCE COUNSEL ................................................................................................... 345
PROSECUTION ........................................................................................................... 345

RULE 47—SUBMISSION OF INDICTMENT BY PROSECUTOR...................... 345

RULE 48—JOINDER OF ACCUSED ..................................................................... 346
COMPLETION STRATEGY ............................................................................................ 346
DISCRETION .............................................................................................................. 347
FACTORS .................................................................................................................. 347
SAME TRANSACTION ................................................................................................. 348
STANDING ................................................................................................................ 349
TIME TO PREPARE ..................................................................................................... 349

RULE 49—JOINDER OF CRIMES ........................................................................ 349

FACTORS .................................................................................................................. 349
SAME TRANSACTION ................................................................................................. 350
STANDING ................................................................................................................ 350

RULE 50—AMENDMENT OF INDICTMENT ...................................................... 350

DURING TRIAL .......................................................................................................... 351
NEW CHARGES .......................................................................................................... 351
PREJUDICE ................................................................................................................ 353
PRIMA FACIE CASE ..................................................................................................... 354
SCOPE OF AMENDMENTS ........................................................................................... 355
SUPPORTING MATERIAL............................................................................................. 355

RULE 51—WITHDRAWAL OF INDICTMENT ................................................... 355

RULE 52—PUBLIC CHARACTER OF INDICTMENT ....................................... 355
RULE 53—NON-DISCLOSURE.............................................................................. 356
RULE 53 BIS—SERVICE OF INDICTMENT ....................................................... 356
RULE 54—GENERAL RULE .................................................................................. 356
CHAMBER WITNESSES ............................................................................................... 357
DISCRETION .............................................................................................................. 357
DISMISSAL ................................................................................................................ 357
HUMANITARIAN WORKERS ........................................................................................ 357
INVESTIGATION ........................................................................................................ 358
MEDICAL INTERVENTION ........................................................................................... 358
PARLIAMENT MEMBERS ............................................................................................ 358
PEACE NEGOTIATORS ................................................................................................ 358
RECONSIDERATION ................................................................................................... 359
REVIEW OF ADMINISTRATIVE DECISIONS .................................................................... 360
SAFE CONDUCT ......................................................................................................... 360
SELF REPRESENTED ACCUSED .................................................................................... 361
STATE OFFICIALS ...................................................................................................... 361

15
 STAY OF PROCEEDINGS.............................................................................................. 362
STAY PENDING DECISION ........................................................................................... 363
SUBPOENAS .............................................................................................................. 364
subpoena to accused persons ............................................................................... 364
subpoena for defence interview ............................................................................ 364
subpoena denied .................................................................................................. 365
subpoena factors.................................................................................................. 366
subpoena granted ................................................................................................ 367
necessity .............................................................................................................. 369
not issued lightly .................................................................................................. 369
subpoena for pretrial motion ............................................................................... 370
subpoena for prosecution interview ..................................................................... 370
relevance ............................................................................................................. 370
waiver.................................................................................................................. 370
WAR CORRESPONDENTS ............................................................................................ 370
WITNESSES OF THE OPPOSING PARTY ......................................................................... 371

RULE 54 BIS—ORDERS DIRECTED TO STATES .............................................. 372

APPEAL .................................................................................................................... 374
COMPLIANCE ............................................................................................................ 375
EXISTENCE ............................................................................................................... 375
EFFORTS TO OBTAIN VOLUNTARY COMPLIANCE ......................................................... 375
INTERPOL ................................................................................................................. 376
NATIONAL SECURITY INTERESTS ................................................................................ 377
NECESSITY ............................................................................................................... 377
ORIGINATOR PRINCIPLE ............................................................................................. 378
PROTECTIVE MEASURES ............................................................................................ 379
RELEVANCE .............................................................................................................. 380
REQUIREMENTS ........................................................................................................ 381
SPECIFICITY .............................................................................................................. 381
STANDARD OF REVIEW .............................................................................................. 382
STANDING ................................................................................................................ 382
UNDULY ONEROUS .................................................................................................... 383

RULE 56—COOPERATION OF STATES ............................................................. 384

RULE 57—PROCEDURE AFTER ARREST ......................................................... 384
RULE 58—NATIONAL EXTRADITION PROCEEDINGS .................................. 385
RULE 59—FAILURE TO EXECUTE A WARRANT OR TRANSFER ORDER . 385
RULE 59 BIS—TRANSMISSION OF ARREST WARRANTS ............................. 385
RULE 60—ADVERTISEMENT OF INDICTMENT .............................................. 385
RULE 62—INITIAL APPEARANCE OF ACCUSED ............................................ 386
RULE 62 BIS—GUILTY PLEAS ............................................................................. 387
RULE 62 TER—PLEA AGREEMENT PROCEDURE .......................................... 387

16
RULE 63—QUESTIONING OF ACCUSED ........................................................... 388
RULE 64—DETENTION ON REMAND ................................................................ 388
RULES OF DETENTION................................................................................................ 388
COMMUNICATION ..................................................................................................... 388
CONTACTS WITH MEDIA ............................................................................................ 389
MEDICAL ISSUES ....................................................................................................... 391
PRIVILEGED COMMUNICATIONS ................................................................................. 391
VISITS ...................................................................................................................... 391

RULE 65—PROVISIONAL RELEASE .................................................................. 392

ADVANCED STAGE OF THE TRIAL ............................................................................... 393
APPEAL OF PROVISIONAL RELEASE DECISION.............................................................. 394
AWAITING APPEAL .................................................................................................... 395
AWAITING JUDGEMENT ............................................................................................. 396
AWAITING TRANSFER OR SERVING SENTENCE ............................................................. 398
BURDEN OF PROOF .................................................................................................... 399
CONDITIONS OF RELEASE .......................................................................................... 399
CONFIDENTIAL STATUS ............................................................................................. 400
CONTEMPT ............................................................................................................... 400
COOPERATION WITH PROSECUTION ............................................................................ 400
CUSTODIAL VISITS .................................................................................................... 401
DANGER TO OTHERS .................................................................................................. 402
FACTORS .................................................................................................................. 403
HOST COUNTRY ........................................................................................................ 403
LENGTH OF DETENTION ............................................................................................. 404
LENGTH OF EXPECTED SENTENCE .............................................................................. 404
MEDICAL REASONS ................................................................................................... 405
ORAL HEARING ......................................................................................................... 406
REASONED OPINION .................................................................................................. 406
RELEASE AFTER TRIAL HAS BEGUN ............................................................................ 407
RISK OF FLIGHT—RELEASE DENIED ........................................................................... 407
RISK OF FLIGHT—RELEASE GRANTED ........................................................................ 409
STATE GUARANTEES ................................................................................................. 410
STATEMENTS OF ACCUSED ........................................................................................ 411
STAY OF DECISION TO RELEASE PENDING APPEAL ....................................................... 411
SUBSEQUENT MOTIONS ............................................................................................. 412
TEMPORARY RELEASE IN GENERAL ............................................................................ 412
TEMPORARY RELEASE—TRIAL RECESSES ................................................................... 414
VIOLATIONS ............................................................................................................. 417

RULE 65 BIS—STATUS CONFERENCES ............................................................ 418

RULE 65 TER—PRE-TRIAL JUDGE ..................................................................... 419
AGREED FACTS ......................................................................................................... 421
DEFENCE PRE-TRIAL BRIEF ........................................................................................ 422
EXHIBITS .................................................................................................................. 422

17
 PROSECUTION PRE-TRIAL BRIEF ................................................................................. 423
REFERRAL TO CHAMBER ........................................................................................... 424
WITNESS SUMMARIES ................................................................................................ 424

RULE 66—DISCLOSURE BY THE PROSECUTOR ............................................ 425

DOCUMENTS MATERIAL TO THE DEFENCE .................................................................. 425
ELECTRONIC DISCLOSURE SUITE ................................................................................ 427
EXPERT WITNESSES ................................................................................................... 427
POST-INDICTMENT INVESTIGATION ............................................................................ 428
PURPOSE .................................................................................................................. 428
REMEDY ................................................................................................................... 428
RESERVE WITNESSES ................................................................................................. 429
RULE 92 BIS WITNESSES ............................................................................................ 429
SUPPORTING MATERIAL............................................................................................. 429
TIME LIMITS ............................................................................................................. 430
WITNESS STATEMENTS .............................................................................................. 430

RULE 67--ADDITIONAL DISCLOSURE ............................................................... 432

CONTINUING DUTY OF DISCLOSURE ........................................................................... 433
NOTICE OF ALIBI ....................................................................................................... 433
MENTAL DEFENCES ................................................................................................... 434
RECIPROCAL DISCLOSURE ......................................................................................... 434
REPRISALS ................................................................................................................ 435

RULE 68—DISCLOSURE OF EXCULPATORY MATERIAL ............................ 435

CERTIFICATE ............................................................................................................ 436
CONTINUING OBLIGATION ......................................................................................... 436
CUMULATIVE DOCUMENTS ........................................................................................ 436
DEFERENCE TO PROSECUTOR ..................................................................................... 437
ELECTRONIC DISCLOSURE SUITE ................................................................................ 437
EVIDENTIARY HEARING ............................................................................................. 437
EXCULPATORY NATURE ............................................................................................ 438
standard .............................................................................................................. 438
suggests innocence .............................................................................................. 438
contradicts prosecution evidence ......................................................................... 440
benefits to prosecution witnesses ......................................................................... 441
FORM OF DISCLOSURE ............................................................................................... 442
IMPORTANCE ............................................................................................................ 442
MITIGATION OF SENTENCE......................................................................................... 443
POSSESSION .............................................................................................................. 443
PREJUDICE ................................................................................................................ 443
PRIVILEGED MATERIAL ............................................................................................. 444
PUBLIC MATERIAL..................................................................................................... 444
RELIEF FROM DISCLOSURE......................................................................................... 444
REMEDY ................................................................................................................... 444
REQUEST .................................................................................................................. 447
RULE 70 MATERIAL .................................................................................................. 447

18
 SCOPE ...................................................................................................................... 448
SPECIFICITY .............................................................................................................. 448
STIPULATION ............................................................................................................ 448
TIMING ..................................................................................................................... 449

RULE 68 BIS—FAILURE TO COMPLY WITH DISCLOSURE OBLIGATIONS

.................................................................................................................................... 450
RULE 69—PROTECTION OF VICTIMS AND WITNESSES .............................. 451
CURRENT ADDRESS ................................................................................................... 452
DELAYED DISCLOSURE .............................................................................................. 452
REQUIREMENTS ........................................................................................................ 453
SCOPE ...................................................................................................................... 453
TIMING ..................................................................................................................... 454

RULE 70—MATTERS NOT SUBJECT TO DISCLOSURE ................................. 454

CONDITIONS NOT ACCEPTED ...................................................................................... 455
CONFIDENTIAL TREATMENT ...................................................................................... 455
DEFENCE USE OF RULE 70 ......................................................................................... 455
MATERIAL SUBJECT TO RULE 70 ................................................................................ 455
OBLIGATION OF STATES ............................................................................................ 457
OPPORTUNITY TO BE HEARD ...................................................................................... 457
PRESENCE OF PROVIDER REPRESENTATIVE IN COURT .................................................. 457
PUBLIC MATERIAL..................................................................................................... 457
REMEDY FOR NON-DISCLOSURE ................................................................................. 457
RESTRICTIONS ON CROSS EXAMINATION .................................................................... 458
WORK PRODUCT........................................................................................................ 459

RULE 71—DEPOSITIONS ...................................................................................... 459

RULE 72—PRELIMINARY MOTIONS ................................................................. 460
ARMED CONFLICT ..................................................................................................... 461
APPEALS OF RIGHT—JURISIDICTION ISSUES................................................................ 461
DEFERRING DECISION ................................................................................................ 464
TIMELINESS .............................................................................................................. 464

RULE 73—OTHER MOTIONS ............................................................................... 464

CERTIFICATION TO APPEAL ........................................................................................ 465
in general ............................................................................................................ 465
denied .................................................................................................................. 466
granted ................................................................................................................ 473
DECISIONS ................................................................................................................ 476
EVIDENTIARY HEARING ............................................................................................. 476
SANCTIONS ............................................................................................................... 476
TIMING ..................................................................................................................... 477

RULE 73 BIS—PRE TRIAL CONFERENCE ........................................................ 477

LIMITING INCIDENTS ................................................................................................. 478

19
 NUMBER OF PROSECUTION WITNESSES ....................................................................... 480
TIME LIMITS ............................................................................................................. 480
VARYING WITNESS LIST ............................................................................................. 480

RULE 73 TER—PRE-DEFENCE CONFERENCE ................................................. 482

EXHIBITS .................................................................................................................. 483
TIME LIMITS ............................................................................................................. 483

RULE 74—AMICUS CURIAE ................................................................................. 486

ASSOCIATION OF DEFENCE COUNSEL.......................................................................... 486
DENIED..................................................................................................................... 486
GRANTED ................................................................................................................. 487

RULE 74 BIS—MEDICAL EXAMINATION OF THE ACCUSED ...................... 488

RULE 75—PROTECTION OF VICTIMS AND WITNESSES .............................. 488
ACCESS TO MATERIAL FROM OTHER CASES ................................................................ 490
BURDEN OF PROOF .................................................................................................... 493
DEATH...................................................................................................................... 493
DISCLOSURE MATERIAL............................................................................................. 493
DISCLOSURE TO OTHER COURTS................................................................................. 494
EXHIBITS .................................................................................................................. 495
HIERARCHY .............................................................................................................. 496
PROTECTIVE MEASURES DENIED ................................................................................ 496
RELATIVES ............................................................................................................... 497
REQUIREMENTS ........................................................................................................ 498
RESCISSION .............................................................................................................. 498
RIGHTS OF ACCUSED ................................................................................................. 499
RULE 70 CONDITIONS ............................................................................................... 500
SCOPE ...................................................................................................................... 500
STANDING ................................................................................................................ 500
SUBPOENAS .............................................................................................................. 500
TRANSFER CASES ...................................................................................................... 501
VARYING PROTECTIVE MEASURES ............................................................................. 501
VICTIMS ................................................................................................................... 502
VIOLATION ............................................................................................................... 502

RULE 75 BIS—REQUESTS FOR ASSISTANCE IN OBTAINING TESTIMONY

.................................................................................................................................... 502
RULE 75 TER—TRANSFER OF PERSON FOR TESTIMONY ........................... 503
RULE 76—SOLEMN DECLARATION BY INTERPRETERS ............................. 504
RULE 77—CONTEMPT OF THE TRIBUNAL ..................................................... 504
ADEQUATE TIME AND FACILITIES ............................................................................... 506
AMICUS CURIAE ........................................................................................................ 506
APPEAL .................................................................................................................... 506
DISCLOSURE ............................................................................................................. 507

20
 INCITEMENT ............................................................................................................. 508
INDICTMENT ............................................................................................................. 508
INITIATING ............................................................................................................... 508
INTERFERING WITH A WITNESS .................................................................................. 509
JOURNALISTS ............................................................................................................ 510
JURISDICTION ........................................................................................................... 511
MEDICAL CARE ......................................................................................................... 511
MENS REA.................................................................................................................. 511
MOTIONS .................................................................................................................. 512
PARTIES ................................................................................................................... 513
REFUSAL TO TESTIFY ................................................................................................. 513
SCOPE ...................................................................................................................... 514
SENTENCE ................................................................................................................ 517
SUBPOENAS .............................................................................................................. 517

RULE 77 BIS—PAYMENT OF FINES ................................................................... 517

RULE 78—OPEN SESSIONS .................................................................................. 518
RULE 79—CLOSED SESSIONS ............................................................................. 519
CLOSED SESSIONS ..................................................................................................... 519
CONFIDENTIAL EXHIBITS ........................................................................................... 519
CONFIDENTIAL FILINGS ............................................................................................. 519
EX PARTE FILINGS ..................................................................................................... 520
REFERENCE TO CLOSED SESSION TESTIMONY IN JUDGEMENTS ..................................... 521
UNSEALING RECORDS................................................................................................ 521

RULE 80—CONTROL OF PROCEEDINGS ......................................................... 522

RULE 81—RECORDS OF PROCEEDINGS AND EVIDENCE ........................... 522
RULE 81 BIS—PROCEEDINGS BY VIDEO CONFERENCE LINK .................. 522
CROSS EXAMINATION ................................................................................................ 522
DENIED..................................................................................................................... 523
GRANTED ................................................................................................................. 523
PREJUDICE ................................................................................................................ 524
STANDARD ............................................................................................................... 525
WEIGHT .................................................................................................................... 525

RULE 82—JOINT AND SEPARATE TRIALS....................................................... 525

RULE 83—INSTRUMENTS OF RESTRAINT ...................................................... 526
RULE 84—OPENING STATEMENTS ................................................................... 526
RULE 84 BIS—STATEMENT OF THE ACCUSED .............................................. 526
RULE 85—PRESENTATION OF EVIDENCE ...................................................... 527
DEFENCE EXHIBITS.................................................................................................... 528
PROSECUTION EXHIBITS ............................................................................................ 528
QUESTIONING BY THE CHAMBER ............................................................................... 528

21
 REBUTTAL ................................................................................................................ 529
RECALLING A WITNESS .............................................................................................. 531
REJOINDER ............................................................................................................... 533
REOPENING THE CASE ............................................................................................... 533
standard .............................................................................................................. 533
diligence .............................................................................................................. 535
denied .................................................................................................................. 536
granted ................................................................................................................ 537
rejoinder to reopening ......................................................................................... 538
SENTENCING ............................................................................................................. 539

RULE 86—CLOSING ARGUMENTS ..................................................................... 540

RULE 87—DELIBERATIONS ................................................................................ 540
BURDEN OF PROOF .................................................................................................... 540
SENTENCING PROCEDURE .......................................................................................... 543

RULE 89—GENERAL PROVISIONS .................................................................... 543

ADVANCE RULINGS ................................................................................................... 544
ANONYMOUS SOURCES.............................................................................................. 544
ASSESSMENT OF EVIDENCE ........................................................................................ 544
AUTHENTICATION ..................................................................................................... 544
BAR TABLE ............................................................................................................... 545
documents authored by witnesses ......................................................................... 545
denied .................................................................................................................. 546
granted ................................................................................................................ 546
in general ............................................................................................................ 546
news reports ........................................................................................................ 548
statements ............................................................................................................ 548
transcripts ........................................................................................................... 548
UN documents ..................................................................................................... 548
voluminous documents ......................................................................................... 549
weight .................................................................................................................. 549
BOOKS...................................................................................................................... 550
CHAIN OF CUSTODY .................................................................................................. 550
CIRCUMSTANTIAL EVIDENCE ..................................................................................... 550
COMPUTER FILES ...................................................................................................... 550
CREDIBILITY OF WITNESSES....................................................................................... 550
accomplices ......................................................................................................... 550
ambiguity............................................................................................................. 551
benefits ................................................................................................................ 551
bias...................................................................................................................... 551
corroboration ...................................................................................................... 552
cultural factors .................................................................................................... 553
criminal activity ................................................................................................... 554
factors ................................................................................................................. 554
mixed ................................................................................................................... 554

22
 other Chambers ................................................................................................... 554
prior statements ................................................................................................... 555
reasons ................................................................................................................ 556
CROSS EXAMINATION ................................................................................................ 556
CUMULATIVE ............................................................................................................ 556
DIARIES .................................................................................................................... 556
DISCRETION .............................................................................................................. 556
DOCUMENTARY EVIDENCE ........................................................................................ 557
EQUALITY OF ARMS .................................................................................................. 557
EXCLUSION OF EVIDENCE .......................................................................................... 557
EXPERT WITNESSES ................................................................................................... 558
FURTHER INVESTIGATION .......................................................................................... 559
HEARSAY ................................................................................................................. 559
IDENTIFICATION EVIDENCE........................................................................................ 560
ILLEGALLY-OBTAINED EVIDENCE .............................................................................. 562
INTERCEPTED CONVERSATIONS ................................................................................. 563
INVESTIGATOR TESTIMONY ....................................................................................... 564
NOT INCLUDED IN THE INDICTMENT ........................................................................... 564
OUTSIDE OF THE TIME PERIOD CHARGED .................................................................... 565
POLYGRAPH EVIDENCE.............................................................................................. 565
PRINCIPLE OF ORALITY .............................................................................................. 565
PRIOR STATEMENTS .................................................................................................. 566
RELEVANCE .............................................................................................................. 566
RELIABILITY ............................................................................................................. 567
STATEMENTS OF THE ACCUSED .................................................................................. 568
STATEMENTS BY THE COACCUSED ............................................................................. 569
STATEMENTS BY NGOS ............................................................................................ 570
STATEMENTS BY THIRD PARTIES ................................................................................ 570
SUMMARIES .............................................................................................................. 571
TU QUOQUE .............................................................................................................. 571
WAIVER .................................................................................................................... 572

RULE 90—TESTIMONY OF WITNESSES ........................................................... 572

ACCUSED AS WITNESS ............................................................................................... 573
COMPELLED TESTIMONY ........................................................................................... 574
CROSS EXAMINATION ................................................................................................ 575
credibility ............................................................................................................ 575
limitations............................................................................................................ 575
relevant to one’s own case ................................................................................... 576
by the accused ..................................................................................................... 578
DIRECT EXAMINATION .............................................................................................. 578
PUTTING ONE’S CASE TO A WITNESS........................................................................... 578
REFRESHING MEMORY............................................................................................... 580
SELF-INCRIMINATION ................................................................................................ 581
WITNESS PROOFING................................................................................................... 581
WITNESS SEQUESTRATION ......................................................................................... 582

23
RULE 90 BIS—TRANSFER OF A DETAINED WITNESS ................................... 582
RULE 91—FALSE TESTIMONY UNDER SOLEMN DECLARATION ............. 583
RULE 92—CONFESSIONS ..................................................................................... 584
RULE 92 BIS—ADMISSION OF WRITTEN STATEMENTS .............................. 584
ACTS OR CONDUCT OF THE ACCUSED ......................................................................... 585
character ............................................................................................................. 585
in general ............................................................................................................ 585
liability for acts of others ..................................................................................... 586
state of mind ........................................................................................................ 587
specific examples ................................................................................................. 587
ADJUDICATED FACTS ................................................................................................ 588
CERTIFICATION ......................................................................................................... 588
CORROBORATION ...................................................................................................... 589
CROSS-EXAMINATION ............................................................................................... 590
CRITICAL AND LIVE ISSUE.......................................................................................... 592
CUMULATIVE EVIDENCE ............................................................................................ 594
DISCRETION .............................................................................................................. 594
EXHIBITS .................................................................................................................. 595
EXPERTS ................................................................................................................... 596
INTERVIEWS OF WITNESSES ....................................................................................... 597
OTHER LEGAL PROCEEDINGS ..................................................................................... 597
OTHER PARTY’S DOCUMENTS .................................................................................... 598
OVERBROAD ............................................................................................................. 598
PROCEDURE .............................................................................................................. 598
PROXIMITY OF ACTS TO ACCUSED .............................................................................. 598
REDACTIONS............................................................................................................. 599
RELATIONSHIP WITH RULE 89 ................................................................................... 599
RELATIONSHIP WITH RULE 92 QUARTER .................................................................... 600
REQUIREMENTS ........................................................................................................ 600
RETROACTIVITY ....................................................................................................... 601
TIMING ..................................................................................................................... 601
TRANSCRIPTS............................................................................................................ 601
VIVA VOCE TESTIMONY .............................................................................................. 602
WEIGHT .................................................................................................................... 602

RULE 92 TER—OTHER ADMISSION OF WRITTEN STATEMENTS .............. 602

RULE 92 QUARTER—UNAVAILABLE PERSONS .............................................. 603
ACTS AND CONDUCT OF THE ACCUSED ....................................................................... 603
ADMISSION IN ANOTHER TRIAL .................................................................................. 604
ASSOCIATED EXHIBITS .............................................................................................. 604
CORROBORATION ...................................................................................................... 604
EXPERT WITNESSES ................................................................................................... 606
FAIRNESS ................................................................................................................. 606
REDACTIONS............................................................................................................. 608

24
 RELATIONSHIP TO RULE 92 BIS .................................................................................. 608
RELIABILITY ............................................................................................................. 608
REQUIREMENTS ........................................................................................................ 612
SUPPLEMENTAL MATERIAL ........................................................................................ 613
UNAVAILABILITY ...................................................................................................... 613
can’t be found ...................................................................................................... 613
health reasons ..................................................................................................... 613
refuses to testify ................................................................................................... 615
WITNESS LIST ........................................................................................................... 615

RULE 92 QUINQUIES—PERSONS SUBJECT TO INTERFERENCE ................ 615

RULE 93—EVIDENCE OF CONSISTENT PATTERN OF CONDUCT .............. 616
RULE 94—JUDICIAL NOTICE .............................................................................. 617
ACTS AND CONDUCT OF THE ACCUSED ....................................................................... 617
ALIBI ........................................................................................................................ 618
APPEAL .................................................................................................................... 618
BURDEN OF PERSUASION ........................................................................................... 619
COMMON KNOWLEDGE.............................................................................................. 621
CONCRETE FACTS...................................................................................................... 623
CONTEXT.................................................................................................................. 623
CORROBORATION ...................................................................................................... 623
CREDIBILITY ASSESSMENT......................................................................................... 624
DISCRETION .............................................................................................................. 624
DISPUTED FACTS ....................................................................................................... 626
DOCUMENTS ............................................................................................................. 627
FINDINGS.................................................................................................................. 630
LEGAL CONCLUSIONS ................................................................................................ 630
LIMITATIONS ............................................................................................................ 631
PURPOSE .................................................................................................................. 632
REBUTTAL ................................................................................................................ 632
REFORMULATION ...................................................................................................... 633
RELEVANCE .............................................................................................................. 634
REQUIREMENTS ........................................................................................................ 634
TIMING ..................................................................................................................... 638

RULE 94 BIS—TESTIMONY OF EXPERT WITNESSES .................................... 638

ACCEPTED AS EXPERT ............................................................................................... 638
ACTS AND CONDUCT OF THE ACCUSED ....................................................................... 639
CREDIBILITY ............................................................................................................. 640
DEFINITION ............................................................................................................... 641
EXHIBITS .................................................................................................................. 641
FACT WITNESS .......................................................................................................... 642
FIRST-HAND KNOWLEDGE ......................................................................................... 642
LEGAL ISSUES ........................................................................................................... 642
NOTICE ..................................................................................................................... 643
OUTSIDE OF EXPERTISE ............................................................................................. 643

25
 PEER REVIEW ............................................................................................................ 644
REJECTED AS EXPERT ................................................................................................ 644
RELEVANCE .............................................................................................................. 645
REPORTS .................................................................................................................. 646
REQUIREMENTS ........................................................................................................ 646
RESPONSIBILITY OF THE ACCUSED ............................................................................. 646
RULE 92 TER ............................................................................................................. 647
TIMING ..................................................................................................................... 647
TRANSLATION........................................................................................................... 647
TRANSPARENCY OF SOURCES..................................................................................... 647
TRIAL CHAMBER EXPERTS ........................................................................................ 648
WAIVER .................................................................................................................... 649

RULE 95—EXCLUSION OF CERTAIN EVIDENCE ........................................... 649

RULE 96—EVIDENCE IN CASES OF SEXUAL ASSAULT ................................ 650
RULE 97—LAWYER-CLIENT PRIVILEGE ........................................................ 650
RULE 98—PRODUCTION OF ADDITIONAL EVIDENCE ................................. 651
RULE 98 BIS—JUDGEMENT OF ACQUITTAL .................................................. 652
APPEAL .................................................................................................................... 653
CREDIBILITY ............................................................................................................. 653
ORAL HEARING ......................................................................................................... 653
PARAGRAPHS ............................................................................................................ 654
STANDARD ............................................................................................................... 654

RULE 98 TER—JUDGEMENT ............................................................................... 655

RULE 99—STATUS OF THE ACQUITTED PERSON ......................................... 655
RULE 100—SENTENCING PROCEDURE ON A GUILTY PLEA ...................... 655
RULE 101—PENALTIES ......................................................................................... 656
AGGRAVATING CIRCUMSTANCES ............................................................................... 656
in general ............................................................................................................ 656
alcohol and drug use ........................................................................................... 656
burden of proof .................................................................................................... 656
co-operation ........................................................................................................ 657
counsel ................................................................................................................ 657
double counting ................................................................................................... 657
indictment ............................................................................................................ 659
mens rea .............................................................................................................. 659
nexus to offence ................................................................................................... 660
offence circumstances .......................................................................................... 660
offender circumstances ........................................................................................ 660
victims ................................................................................................................. 661
weight .................................................................................................................. 662
CONCURRENT SENTENCES ......................................................................................... 662
CREDIT FOR TIME SERVED ......................................................................................... 662

26
 CUMULATIVE CONVICTIONS ...................................................................................... 662
chapeau element .................................................................................................. 662
conspiracy ........................................................................................................... 663
discretion ............................................................................................................. 663
modes of liability ................................................................................................. 663
materially distinct element ................................................................................... 664
persecution .......................................................................................................... 665
prohibited ............................................................................................................ 666
victims ................................................................................................................. 666
FORMER YUGOSLAVIA SENTENCING PRACTICES ......................................................... 667
GRAVITY OF THE OFFENCE......................................................................................... 668
LEX MITIOR .............................................................................................................. 670
LIFE SENTENCE ......................................................................................................... 670
MINIMUM TERMS ...................................................................................................... 671
MITIGATING CIRCUMSTANCES ................................................................................... 671
in general ............................................................................................................ 671
alcohol or drug abuse .......................................................................................... 671
assistance to victims ............................................................................................ 672
burden of proof .................................................................................................... 672
contempt .............................................................................................................. 672
cooperation ......................................................................................................... 673
good behavior ...................................................................................................... 675
good character .................................................................................................... 675
guilty plea............................................................................................................ 676
health .................................................................................................................. 677
innocence ............................................................................................................ 677
lack of training .................................................................................................... 677
mental condition .................................................................................................. 677
nexus to offence ................................................................................................... 678
nondiscrimination ................................................................................................ 678
offender circumstances ........................................................................................ 678
remorse ............................................................................................................... 679
role in the offence ................................................................................................ 679
tensions in the area .............................................................................................. 680
violation of rights ................................................................................................ 680
waiver of appearance .......................................................................................... 680
MODE OF LIABILITY .................................................................................................. 680
SENTENCING OF OTHER ACCUSED .............................................................................. 681
SENTENCING PURPOSES ............................................................................................. 683
STANDARD OF REVIEW .............................................................................................. 684
SUSPENSION OF SENTENCE ........................................................................................ 685

RULE 102—STATUS OF THE CONVICTED PERSON ....................................... 685

RULE 104—SUPERVISION OF IMPRISONMENT .............................................. 686
RULE 105—RESTITUTION OF PROPERTY ....................................................... 686
RULE 106—COMPENSATION TO VICTIMS ...................................................... 687

27
RULE 107—GENERAL PROVISION ..................................................................... 687
RULE 108—NOTICE OF APPEAL ......................................................................... 687
SCOPE ...................................................................................................................... 687
VARIATION OF GROUNDS OF APPEAL .......................................................................... 687

RULE 108 BIS—STATE REQUEST FOR REVIEW ............................................. 689

RULE 109—RECORD ON APPEAL ....................................................................... 690
RULE 110—COPIES OF RECORD ........................................................................ 690
RULE 111—APPELLANT’S BRIEF ....................................................................... 690
DISCLOSURE ............................................................................................................. 690

RULE 112—RESPONDENT’S BRIEF .................................................................... 690

RULE 113—BRIEF IN REPLY ............................................................................... 691
SUPPLEMENTAL AUTHORITIES ................................................................................... 691

RULE 114—DATE OF HEARING .......................................................................... 691

RULE 115—ADDITIONAL EVIDENCE ................................................................ 691
CREDIBILITY ............................................................................................................. 692
DELAY IN FILING MOTION .......................................................................................... 692
EVIDENCE NOT AVAILABLE AT TRIAL ......................................................................... 693
IMPACT ON THE TRIAL ............................................................................................... 696
OBLIGATION TO RAISE BEFORE TRIAL CHAMBER ........................................................ 698
PROCEDURE .............................................................................................................. 699
PROVISIONAL RELEASE APPEALS ............................................................................... 699
REBUTTAL MATERIAL ............................................................................................... 699
REFERRAL PURSUANT TO RULE 11BIS ........................................................................ 700
REPLIES .................................................................................................................... 700
SENTENCING ............................................................................................................. 700
SUBPOENAS .............................................................................................................. 700
TESTIMONY IN SUBSEQUENT TRIALS .......................................................................... 701

RULE 116 BIS—EXPEDITED APPEALS PROCEDURE ..................................... 701

RULE 117—JUDGEMENT ON APPEAL ............................................................... 701
RETRIAL ................................................................................................................... 702

RULE 118—STATUS OF ACCUSED FOLLOWING APPEAL ............................ 703

RULE 119—REQUEST FOR REVIEW .................................................................. 703
ASSIGNMENT OF COUNSEL ......................................................................................... 703
DECEASED PERSONS .................................................................................................. 704
DISCLOSURE ISSUES .................................................................................................. 704
FINAL JUDGEMENT .................................................................................................... 704
MISCARRIAGE OF JUSTICE.......................................................................................... 704
NEW FACT ................................................................................................................ 705

28
RULE 120—PRELIMINARY EXAMINATION ..................................................... 706
RULE 121—APPEALS ............................................................................................. 706
RULE 122—RETURN OF CASE TO TRIAL CHAMBER .................................... 706
RULE 123—NOTIFICATION BY STATES ........................................................... 706
RULE 125—PARDON OR COMMUTATION ....................................................... 707
EARLY RELEASE........................................................................................................ 707
SENTENCING REMISSIONS .......................................................................................... 709

RULE 126—GENERAL PROVISIONS................................................................... 710

RULE 126 BIS—TIME FOR FILING RESPONSES TO MOTIONS .................... 710
RULE 127—VARIATION OF TIME LIMITS ........................................................ 711
DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL ............................... 712
ARTICLE 1—PURPOSE AND ENTRY INTO FORCE......................................... 712
ARTICLE 2—DEFINITIONS .................................................................................. 712
ARTICLE 3—AUTHENTIC TEXTS....................................................................... 713
ARTICLE 4—AMENDMENT OF THE DIRECTIVE ........................................... 713
ARTICLE 5—RIGHT TO COUNSEL..................................................................... 713
ARTICLE 6—RIGHT TO ASSIGNED COUNSEL ................................................ 714
ARTICLE 7—REQUEST FOR ASSIGNMENT OF COUNSEL ........................... 715
ARTICLE 8—BURDEN OF PROOF ...................................................................... 715
ARTICLE 9—AUTHORITY TO GATHER INFORMATION .............................. 717
ARTICLE 10—MEANS OF SUSPECTS AND ACCUSED .................................... 717
ACCOUNTING ............................................................................................................ 717
ASSIGNMENT OF INTEREST ........................................................................................ 717
DEBTS ...................................................................................................................... 717
DELAY...................................................................................................................... 718
DISPOSABLE PROPERTY ............................................................................................. 718
EXCHANGE RATE ...................................................................................................... 718
FAMILY HOME .......................................................................................................... 719
PENSION ................................................................................................................... 719
SPOUSE’S PROPERTY ................................................................................................. 719
TRANSFER OF PROPERTY ........................................................................................... 720
WITHDRAWAL OF COUNSEL ....................................................................................... 720

ARTICLE 11—DECISION BY THE REGISTRAR ............................................... 721

ARTICLE 12—NOTIFICATION OF DECISION .................................................. 722
ARTICLE 13—REMEDY AGAINST THE REGISTRAR’S DECISION .............. 722
ARTICLE 14—QUALIFICATIONS AND STANDING OF COUNSEL ............... 724

29
 CONFLICT OF INTEREST ............................................................................................. 726

ARTICLE 15—PROFESSIONAL CERTIFICATION ........................................... 727

ARTICLE 16—BASIC PRINCIPLES...................................................................... 728
CO-COUNSEL ............................................................................................................ 729
SIMULTANEOUS REPRESENTATION ............................................................................. 730

ARTICLE 17—COUNSEL-CLIENT PRIVILEGE ................................................ 730

ARTICLE 18—COUNSEL AWAY FROM THE SEAT OF THE TRIBUNAL .... 730
ARTICLE 19—ABILITY TO REMUNERATE COUNSEL .................................. 731
ARTICLE 20—WITHDRAWAL AND SUSPENSION OF ASSIGNMENT.......... 732
ARTICLE 21—DUTIES OF COUNSEL UPON WITHDRAWAL ........................ 732
ARTICLE 22—PAYMENT PRO RATA TEMPORIS .............................................. 733
ARTICLE 23—RESPONSIBILITY FOR REMUNERATION AND EXPENSES 733
COMPLEXITY ............................................................................................................ 734
PRE-TRIAL ................................................................................................................ 734
PROCEDURAL FAIRNESS ............................................................................................ 735
STANDARD OF REVIEW .............................................................................................. 735
TRIAL ....................................................................................................................... 735
UNFORESEEN CIRCUMSTANCES .................................................................................. 736

ARTICLE 24—REMUNERATION OF ASSIGNED COUNSEL........................... 736

AWAITING JUDGEMENT ............................................................................................. 737
APPEAL .................................................................................................................... 738

ARTICLE 25—REMUNERATION OF DUTY COUNSEL ................................... 739

ARTICLE 26—TRAVEL EXPENSES ..................................................................... 739
ARTICLE 27—DAILY SUBSISTENCE ALLOWANCE ....................................... 740
ARTICLE 28—TRANSLATION AND INTERPRETATION COSTS .................. 741
ARTICLE 29—ADOPTION AND AMENDMENT OF POLICIES ....................... 741
ARTICLE 30—RESPONSIBILITY FOR PAYMENTS ......................................... 741
ARTICLE 31—SETTLEMENT OF DISPUTES OVER PAYMENT .................... 741
ARTICLE 32—ADVISORY PANEL ....................................................................... 743
ARTICLE 33—ROLE AND FUNCTION OF THE ADVISORY PANEL ............. 743
CODE OF PROFESSIONAL CONDUCT FOR DEFENCE COUNSEL ............... 745
ARTICLE 1—DEFINITIONS .................................................................................. 745
ARTICLE 2—ENTRY INTO FORCE ..................................................................... 745
ARTICLE 3—BASIC PRINCIPLES ....................................................................... 746
ARTICLE 4—CONFLICTS ..................................................................................... 746

30
ARTICLE 5—AUTHENTIC TEXTS....................................................................... 746
ARTICLE 6—AMENDMENTS ............................................................................... 747
ARTICLE 7—PURPOSE ......................................................................................... 747
ARTICLE 8—SCOPE OF REPRESENTATION .................................................... 747
ARTICLE 9—TERMINATION OF REPRESENTATION .................................... 747
ARTICLE 10—COMPETENCE, INTEGRITY, AND INDEPENDENCE ............ 748
ARTICLE 11—DILIGENCE.................................................................................... 749
ARTICLE 12—COMMUNICATION ...................................................................... 749
ARTICLE 13—CONFIDENTIALITY ..................................................................... 749
ARTICLE 14—CONFLICT OF INTEREST........................................................... 749
ARTICLE 15—SEXUAL RELATIONS WITH CLIENTS..................................... 751
ARTICLE 16—CLIENT UNDER A DISABILITY ................................................. 752
ARTICLE 17—CONSULTATIONS WITH CLIENTS AT LIBERTY .................. 752
ARTICLE 18—FEE SPLITTING ............................................................................ 752
ARTICLE 19—FEES AND COMPENSATION ...................................................... 752
ARTICLE 20—RULES OF THE TRIBUNAL ........................................................ 753
ARTICLE 21—DISCRIMINATORY CONDUCT .................................................. 753
ARTICLE 22—COMMUNICATION WITH CHAMBERS ................................... 753
ARTICLE 23—CANDOUR TOWARD THE TRIBUNAL ..................................... 753
ARTICLE 24—INTEGRITY OF EVIDENCE ........................................................ 754
ARTICLE 25—MERITORIOUS PROCEEDINGS AND CLAIMS....................... 754
ARTICLE 26—COUNSEL AS WITNESS............................................................... 754
ARTICLE 27—PERSONS PARTICIPATING IN THE PROCEEDINGS ............ 754
ARTICLE 28—VICTIMS AND WITNESSES ........................................................ 755
ARTICLE 29—UNREPRESENTED PERSONS ..................................................... 755
ARTICLE 30—PROSPECTIVE CLIENTS ............................................................ 755
ARTICLE 31—REFERRAL FEES .......................................................................... 756
ARTICLE 32—RESPONSIBILITIES OF SUPERVISING COUNSEL ................ 756
ARTICLE 33—RESPONSIBILITIES OF SUBORDINATE COUNSEL .............. 756
ARTICLE 34—RESPONSIBILITY FOR OTHER TEAM MEMBERS................ 756
ARTICLE 35—MISCONDUCT ............................................................................... 756
ARTICLE 36—REPORTING MISCONDUCT....................................................... 757
ARTICLE 37—PURPOSE........................................................................................ 757

31
ARTICLE 38—INHERENT POWERS OF THE TRIBUNAL ............................... 758
ARTICLE 39—FILINGS, DECISIONS, AND ORDERS ....................................... 758
ARTICLE 40—DISCIPLINARY PANEL ............................................................... 758
ARTICLE 41—SUBMISSION OF COMPLAINTS ................................................ 758
ARTICLE 42—SUMMARY DISMISSAL OF COMPLAINTS.............................. 759
ARTICLE 43—WITHDRAWAL OF COMPLAINTS ............................................ 759
ARTICLE 44—INVESTIGATION OF ALLEGED MISCONDUCT .................... 759
ARTICLE 45—INTERIM SUSPENSION FROM PRACTICE ............................. 760
ARTICLE 46—CHARGES AGAINST COUNSEL ................................................ 760
ARTICLE 47—FINDINGS AND SANCTIONS ...................................................... 761
ARTICLE 48—APPEAL TO THE DISCIPLINARY BOARD............................... 762
ARTICLE 49—COSTS ............................................................................................. 763
ARTICLE 50—NON BIS IN IDEM.......................................................................... 763

32
Statute of the Tribunal

Article 1—competence of the International Tribunal

The International Tribunal shall have the power to prosecute persons responsible
for serious violations of international humanitarian law committed in the territory
of the former Yugoslavia since 1991 in accordance with the provisions of the present
Statute.

abuse of process

The Tribunal has an inherent power to stay proceedings which are an abuse of
process.1

The abuse of process doctrine may be relied upon where, in the circumstances of
a particular case, proceeding with the trial of the accused would contravene the court’s
sense of justice, due to pre-trial impropriety or misconduct.2

In order to use the abuse of process doctrine, it needs to be clear that the rights of
the accused have been egregiously violated.3

Search of home of accused’s relatives did not warrant dismissal for abuse of
process where prosecution did not participate in search and where purpose of search was
to look for fugitives, not to gather evidence against accused. 4

Even if search was designed to intimtidate accused’s witnesses, the remedy would
be exclusion of the evidence taken during the search, not dismissal of the indictment. 5

Promise by third party unconnected to the Tribunal that the accused would not be
prosecuted if he resigned from public office was not sufficient to justify a stay of
proceedings for abuse of process.6

1
Prosecutor v Bobetko, No. IT-02-62-AR54 bis, Decision on Challenge by Croatia to Decision and Orders
of Confirming Judge (29 November 2002) at para. 15
2
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Reasons for Decision on the Defence
Motion for Stay of Proceedings for Abuse of Process (3 February 2009) at para. 4
3
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Reasons for Decision on the Defence
Motion for Stay of Proceedings for Abuse of Process (3 February 2009) at para. 4
4
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Motion to Dismiss for Abuse of Process, (12 May
2009) at para. 13
5
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Motion to Dismiss for Abuse of Process, (12 May
2009) at para. 15
6
Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal from Trial Chamber’s
Decision on Alleged Holbrooke Agreement (12 October 2009) at para. 53; Prosecutor v Karadzic, No. IT-
95-5/18-PT, Decision on Accused’s Holbrooke Agreement Motion (8 July 2009) at para. 84

33
 It could only be in exceptional circumstances that actions of a third party that is
completely unconnected to the Tribunal or the proceedings could ever lead to those
proceedings being stayed. 7

There is no dual standard for the abuse of doctrine, depending on whether the
entity carrying out the abuse was connected to the Tribunal or not.8

conflict of interest

Fact that some members of Security Council which voted to establish Tribunal
were NATO members who were combatants against Serbia did not justify any relief for
alleged conflict of interest.9

illegal arrest

The Tribunal would not elect to decline to exercise jurisdiction over the accused
who claimed to have been arrested in Serbia and transported to Bosnia for transfer to the
ICTY. Given the serious crimes involved, the violation of state sovereignty and human
rights was not sufficient to justify setting aside the jurisdiction of the Tribunal. 10

immunity

According to customary international law, there are some acts for which
immunity from prosecution cannot be invoked before international tribunals. 11

It is well established that any immunity agreement in respect of an accused

indicted for genocide, crimes against humanity, and war crimes before an international
tribunal would be invalid under international law. 12

Neither the mandate of the judges nor that of the prosecutor is affected by an
alleged undertaking by United States Ambassador Richard Holbrooke.13

7
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Holbrooke Agreement Motion (8 July
2009) at para. 85
8
Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal from Trial Chamber’s
Decision on Alleged Holbrooke Agreement (12 October 2009) at para. 47
9
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Nebojsa Pavkovic’s Motion for Dismissal of
the Indictment Against Him on Grounds that the United Nations Security Council Illegally Established the
International Criminal Tribunal for the former Yugoslavia (21 February 2008) at paras. 26-28
10
Prosecutor v Tolimir, No. IT-05-88/2-PT, Decision on Preliminary Motions on the Indictment Pursuant
to Rule 72 of the Rules of Procedure and Evidence (14 December 2007) at paras. 19, 25
11
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Second Motion for Inspection and
Disclosure: Immunity Issue (17 December 2008) at para. 17
12
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Second Motion for Inspection and
Disclosure: Immunity Issue (17 December 2008) at para. 25
13
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Second Motion for Inspection and
Disclosure: Immunity Issue (17 December 2008) at para. 25

34
 Even assuming that the doctrine of apparent authority applies in international
criminal law, the accused did not establish that Richard Holbrooke was acting with the
apparent authority of the UN Security Council. 14

Whether or not an immunity agreement made by a third person is binding upon

the Tribunal depends ultimately on the question of whether it was made on behalf of the
prosecution or the United Nations Security Council. 15

The Security Council could, through amendments to the Statute, limit the
Tribunal’s jurisdiction over a person, if it deemed it appropriate. 16

Under no circumstances can an agreement not to prosecute an individual limit the

jurisdiction of the Tribunal in the absence of a UN Security Council resolution. 17

Neither the doctrine of actual authority or apparent authority can operate to

deprive the Tribunal of its jurisdiction to prosecute an individual. Only a UN Security
Council resolution can do that.18

The fact that the FYROM granted amnesty to others involved in the FYROM-
NLA conflict is irrelevant to the present case, as the Tribunal is not bound by any act of
the FYROM granting amnesty to those involved in the FYROM-NLA conflict under
Article 24 of the Statute or Rule 101 of the Rules. 19

jurisdiction

The United Nations Security Council had the power, pursuant to Chapter VII of
the United Nations Charter to create the International Tribunal. 20 The Appeals Chamber
has jurisdiction to decide the legality of the powers conferred upon it. 21

14
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Holbrooke Agreement Motion (8 July
2009) at para. 79
15
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Holbrooke Agreement Motion (8 July
2009) at para. 50
16
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Holbrooke Agreement Motion (8 July
2009) at para. 57
17
Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal from Trial Chamber’s
Decision on Alleged Holbrooke Agreement (12 October 2009) at para. 37
18
Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal from Trial Chamber’s
Decision on Alleged Holbrooke Agreement (12 October 2009) at para. 38
19
Prosecutor v. Boškoski & Tarculovski,, No. IT-04-82-A, Judgement (19 May 2010) at para 220.
20
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at para. 36; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the
Accused’s Motion Challenging the Legal Validity and Legitimacy of the Tribunal (7 December 2009) at
paras. 11,13
21
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at paras. 22, 25

35
 ICTY Chamber lacks competence to determine if continuing exercise of Chapter
VII powers with respect to Tribunal is valid, as Tribunal cannot review acts of other
United Nations’ organs for validity, including the Security Council. 22

ICTY Chamber lacks jurisdiction to determine the legality of the Security

Council’s establishment of the Residual Mechanism as it is competent only to pronounce
on issues of the ICTY’s own competency. 23

The jurisdiction of the Tribunal extends to all former territories of the former
Yugoslavia, including Macedonia. 24

Even if the FYROM conducted an “anti-terrorist” operation in Ljuboten on its

own territory, it cannot, based on sovereignty, claim that the Tribunal does not have
jurisdiction over any serious violations of international humanitarian law committed
during this operation, provided it was in the context of an armed conflict. 25

The jurisdiction of the Tribunal includes Kosovo, irrespective of whether the

Federal Republic of Yugoslavia was a member of the United Nations at the time of the
creation of the Tribunal. 26

The Tribunal only has jurisdiction over crimes which were recognized as such
under customary international law at the time it was allegedly committed. The Tribunal’s
power to convict an accused of any crime listed in the statute depends on its existence
qua custom at the time the crime was allegedly committed.27

The jurisdiction of the Tribunal with respect to punishment of grave breaches of

the Geneva Conventions is not dependent on proof that the State in whose territory the
breach was committed was a party to the Conventions at the time of commission. It is
now considered that, as a matter of international law, there is automatic State succession
to multilateral humanitarian treaties in the broad sense. The provisions contained in such
treaties are therefore binding on a State from creation. This position reflects both the
object and purpose of such treaties, and their recognised status as customary law. 28

22
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Disqualification of Judges
Kwon, Morrison, Baird and Lattanzi (31 July 2014) at para. 11, fn.24
23
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Dismiss the Indictment (28
August 2013) at para. 12
24
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-AR72.1, Decision on Interlocutory Appeal on
Jurisdiction (22 July 2005) at para. 10
25
Prosecutor v. Boškoski & Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 33.
26
Prosecutor v Milutinovic et al, No. IT-99-37-AR72.2, Reasons for Decision Dismissing Interlocutory
Appeal Concerning Jurisdiction over the Territory of Kosovo (8 June 2004); Prosecutor v Dordevic, No.
IT-05-87/1-PT, Decision on Vlastimr Dordevic’s Preliminary Motion on Jurisdiction (6 December 2007) at
para. 11
27
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003) at para. 9; Prosecutor v Milutinovic et
al, No. IT-05-87-PT, Decision on Ojdanic’s Motion Challenging Jurisdiction: Indirect Co-Perpetration (22
March 2006) at para. 15
28
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 111 – 113.

36
 The adoption of an international treaty, by itself, does not necessarily prove that
states consider the content of that treaty to express customary international law. 29

While the ICC statute may be in many areas regarded as indicative of customary
rules, in some areas it creates new law or modifies existing law. 30

An ICTY case of contempt for which the accused had not been apprehended prior
to the close of the ICTY could be transferred to the Mechanism pursuant to the
Transitional Arrangements.31

nullem crimen sine lege

The principle of nullem crimen sine lege holds that a criminal conviction can only
be based upon a norm which existed at the time the acts or omission with which the
accused is charged were committed.32 The crime or form of liability must have also been
sufficiently foreseeable and accessible at the relevant time. 33

The nullem crimen sine lege principle does not require that an accused knew the
specific legal definition of each element of the crime he committed. Therefore, it is
irrelevant which test for international armed conflict existed at the time of the offense. 34

selective prosecution

The fact that the Security Council created an ad hoc Tribunal to deal with one
armed conflict, but not all armed conflicts which may have been occurring at the same
time does not invalidate the lawfulness of the Tribunal or substantiate a selective
prosecution allegation.35

The Prosecutor, in exercising her discretion under the Statute in the investigation
and indictment of the accused before the Tribunal is subject to the principle of equality
before the law and to the requirement of non-discrimination.36

29
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1648
30
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1648
31
Prosecutor v Jojic & Radeta, No. IT-03-67-R77.5, Order for Transfer to the International Residual
Meechanism for Criminal Tribunals (29 November 2017) at pp. 3-4
32
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003) at para. 37
33
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003) at para. 38
34
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 311
35
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Nebojsa Pavkovic’s Motion for Dismissal of
the Indictment Against Him on Grounds that the United Nations Security Council Illegally Established the
International Criminal Tribunal for the former Yugoslavia (21 February 2008) at para. 23
36
Prosecutor v Seselj, No. IT-03-67-T, Decision on Motion by the Accused to Dismiss all Charges Against
him (Submission 387) an d its Addendum (Submission 391)(18 September 2008) at para. 18

37
 The accused must demonstrate that the prosecutor abused her discretionary power
specifically as regards (1) the fact that the decision to prosecute him was based on
impermissible motives; and (2) that the prosecution did not prosecute similarly situated
persons.37

It is preposterous to suggest that unless all potential indictees who are similarly
situated are brought to justice, there should be no justice done in relation to a person who
has been indicted and brought to trial. 38

stay of proceedings

There may be situations where a fair trial is not possible because witnesses central
to the case do not appear due to the obstructionist efforts of a State. In such
circumstances, the relevant Party, after exhausting all measures available in the Statute of
the Tribunal, has the option of submitting a motion for a stay of proceedings. 39

The obligation is on the complaining party to bring the difficulties to the attention
of the Trial Chamber, so that the latter can determine whether any assistance could be
provided under the Rules or Statute to relieve the situation. The party cannot remain
silent on the matter only to return on appeal to seek a trial de novo.40

It is undoubtedly the case that a Chamber has the power to stay the proceedings in
a case where the circumstances are such that a fair trial for the accused is impossible. 41

There must be a serious violation of human rights justifying such an extreme

measure as an indefinite stay of proceedings. 42

Article 2—grave breaches of the Geneva Convention

The International Tribunal shall have the power to prosecute persons committing or
ordering to be committed grave breaches of the Geneva Conventions of 12 August
1949, namely the following acts against persons or property protected under the
provisions of the relevant Geneva Convention:
(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;

37
Prosecutor v Seselj, No. IT-03-67-T, Decision on Motion by the Accused to Dismiss all Charges Against
him (Submission 387) an d its Addendum (Submission 391)(18 September 2008) at para. 21
38
Prosecutor v Delalic et al, No. IT-96-21-A, Judgement (20 February 2001) at para. 610; Prosecutor v
Milutinovic et al, No. IT-05-87-T, Decision on Nebojsa Pavkovic’s Motion for Dismissal of the Indictment
Against Him on Grounds that the United Nations Security Council Illegally Established the International
Criminal Tribunal for the former Yugoslavia (21 February 2008) at para. 25
39
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 55.
40
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 55.
41
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Stay of Proceedings (8 April 2010) at
para. 4
42
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Stay of Proceedings (8 April 2010) at
para.4

38
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile
power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular
trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages.

armed conflict

existence

An armed conflict exists whenever there is a resort to armed force between states
or protracted armed violence between governmental authorities and organized armed
groups or between such groups within a state.43 The requirement of protacted fighting is
significant in excluding mere cases of civil unrest or single acts of terrorism. 44

The fact that none of the warring parties recognizes the state of war does not
affect the status of the conflict. The Geneva Conventions have been drawn up first and
foremost to protect individuals, not to serve State interests.45

international character

Article 2 only applies to armed conflicts of an international character. 46

In determining the circumstances under which armed forces may be regarded as

acting under the control of a foreign state, thereby rendering the armed conflict
international, the foreign state’s overall control of those forces must include more than
mere provision of financial assistance or military equipment or training. The state must
have a role in organising, coordinating, or planning the military actions of the military
group in addition to financing, training and equipping, and providing operational support
to that group.47

In order for acts of a military group to be attributed to a State, the “Overall

Control” test requires proof that the State wields overall control over the group, not only

43
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 336
44
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 341
45
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 373
46
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at para. 84
47
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 131; Prosecutor v Kordic &
Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at paras. 306-07; Prosecutor v. Delalic, No. IT-
96-21-A, Judgement (20 February 2001) at para 14.

39
by equipping and financing the group, but also by co-ordinating or helping in the general
planning of its military activity. 48

“Overall control”, as required by international law, may be deemed to exist when

a State (or in the context of an armed conflict, the Party to the conflict) has a role in
organising, coordinating or planning the military actions of the military group, in
addition to financing, training and equipping or providing operational support to that
group. Acts performed by the group or members thereof may be regarded as acts of de
facto State organs regardless of any specific instruction by the controlling State
concerning the commission of each of those acts.49

Factors considered relevant to determining whether a foreign State has effective

overall control over an armed force or militia involved in a prima facie internal armed
conflict include: (1) extensive financial, logistical and other assistance and support,
including the payment of salaries by the foreign State;50 (2) identical rank structures and
hierarchies;51 (3) direction and supervision of the activities and operations by the armed
force of the foreign State;52 and (4) shared military objectives.53

Where the controlling State in question is an adjacent State with territorial

ambitions on the State where the conflict is taking place, and the controlling State is
attempting to achieve its territorial enlargement through the armed forces which it
controls, it may be easier to establish that those armed forces are the de facto organs of
the controlling state.54

The “overall control” test could thus be fulfilled even if the armed forces acting
on behalf of the “controlling State” had autonomous choices of means and tactics
although participating in a common strategy along with the “controlling State”.55

The “Overall Control” test calls for an assessment of all the elements of control
taken as a whole, and a determination to be made on that basis as to whether there was
the required degree of control. 56

To determine whether the conflict is international in character, the conflict must

be examined in its entirety. For instance, it is not necessary to prove that troops from
another State were present in each of the places were the crimes were committed. 57

48
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 282
49
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 137; Prosecutor v. Delalic, No.
IT-96-21-A, Judgement (20 February 2001) at para 15.
50
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 151.
51
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 151.
52
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 151.
53
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at paras 151, 153.
54
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 149; Prosecutor v. Delalic, No.
IT-96-21-A, Judgement (20 February 2001) at para 47.
55
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 47.
56
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 282
57
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 85

40
 Possible underlying motives of the participants in the conflict or the lawfulness of
their participation have no relevance. From the moment Croatia intervened directly in the
conflict against the ABiH on the side of the HVO, or exercised overall control over the
HVO, the conflict became international. 58

The Croatian Army's presence on Bosnian territory, in conjunction with its direct
intervention in the conflict, rendered the conflict international 59

It was reasonable for the Trial Chamber to conclude that the Croatian
government’s overall control over the Bosnian Croat forces in Bosnia was established by
considering that high-ranking officers were sent by Croatia to join the ranks of the
Bosnian Croat Army; that the two armies jointly directed military operations; that the
Bosnian Croat army dispatched reports concerning its activities to Croatian authorities;
that Croatia provided logistical support to the Bosnian Croat army; and Croatia exercised
political influence over the Bosnian Croat Army and civilian authorities.60

territory included

Once an armed conflict has become international, the Geneva Conventions apply
throughout the respective territories of the warring parties. 61

confinement

civilians

A member of the military police is not a civilian.62

A solider on leave is not a civilian. 63

Testimony stating that detainees were civilians in the mind of the witness, without
any further details as to why the witness believes that they were civilians, does not
support a finding beyond a reasonable doubt that the detainees were in fact civilians. 64

Testimony that detainees were “young” or “elderly” is insufficient for a

reasonable trier of fact to find that the detainees were civilians. 65

58
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 525
59
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para.. 275
60
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para.. 285
61
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 321;
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 232
62
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 596
63
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 630
64
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 603
65
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 617

41
 conditions

The detention or confinement of civilians is unlawful (1) when civilians are

detained without reasonable grounds to believe that the security of the detaining power
makes it absolutely necessary; or (2) where the procedural safeguards required by Article
43 of Geneva Convention IV are not complied with in respect of detained civilians, even
where their initial detention may have been justified.66

The conditions of confinement must be assessed in light of the circumstances at

the time, taking into account the state of communications that might affect the supply of
food, water and medication as well as the livelihood of the civilian population,
particularly if there are shortages. The Accused bears the burden of proving that the
conditions of confinement resulted from specific circumstances. 67

The internment or placement in assigned residence of a protected person is

permitted if the security of the detaining power makes it absolutely necessary, or in the
case of an occupation, for imperative reasons of security. 68

The parties to a conflict possess broad discretion to determine which activities are
harmful to the external or internal security of a State, and may resort to internment or
placement in assigned residence if they have serious and legitimate reasons to think that
the person concerned, by his activities, knowledge, or qualifications, represents a real
threat to its present or future security. 69

justifications

The defence of necessity, if such a defence exists under international law, cannot
be used to justify participation in the mistreatment of detainees punishable under either
Article 2(c) or Article 3(1)(a). The legal standards regulating the treatment of detainees
are absolute, not relative. They delineate a minimum standard of treatment, from which
no derogation can be permitted.70

Subversive activity carried on inside the territory of a party to the conflict or acts
that directly assist an enemy power may constitute threats to national security. 71

The detaining power has a reasonable time to determine whether a particular

person is a civilian and further to determine whether there are reasonable grounds to

66
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 322; Prosecutor v Kordic
& Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.73
67
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 118
68
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 134
69
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 134
70
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 525.
71
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 134

42
believe that the security of the detaining power is threatened. 72 However, detaining all
citizens, inlcuding women and children, is unreasonable. 73

The mere fact that a person is a national of, or aligned with, an enemy party
cannot be considered as threatening the security of the opposing party where he is living,
and is not, therefore, a valid reason for interning him. There must be an individual
assessment that each civilian taken into detention poses a particular risk to the security of
the State.74

The fact that a man is of military age should not necessarily be considered as
justifying the application of measures of confinement. 75

mens rea

The requisite mens rea for unlawful confinement of a civilian would include
knowledge both of the requirement of review of the detainees’ detention, and that it had
not been conducted.76

participation

In order to establish that an individual has committed the offence of unlawful

confinement, something more must be proved than mere knowing “participation” in a
general system or operation pursuant to which civilians are confined. Primary criminal
responsibility is more properly allocated to those who are responsible for the detention in
a more direct or complete sense, such as those who actually place or maintain an accused
in detention without reasonable grounds to believe that he constitutes a security risk. 77

The following situations were not held to indicate a level of participation

sufficient to found primary criminal responsibility for unlawful confinement: (1) mere
knowledge that at least some of the detainees were being unlawfully detained and
participation in the detention as a guard;78 and (2) mere signing orders for the
classification and release of civilians on behalf of another individual, in the absence of
any independent authority.79

In order to establish that an accused aided and abetted the unlawful confinement
of a citizen, in the terms of Article 7(1) of the Statute, it is necessary to establish a degree
of participation that would be sufficient to constitute a substantial effect on the

72
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 609
73
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.620;
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 134
74
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 327 and 329; Prosecutor
v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 135
75
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 134
76
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 381.
77
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 342.
78
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 342.
79
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 357 – 358.

43
continuing detention. The circumstance alone of holding a position as a guard somewhere
within a camp in which civilians are unlawfully detained will not suffice to render that
guard responsible for the crime of unlawful confinement of civilians. 80

cruel and inhuman treatment

Cruel treatment under Article 2, inhuman treatment under Article 2, and

inhumane acts under Article 5 share the same elements.81

Inhuman treatment is an intentional act or omission committed against a protected

person, causing serious mental harm, physical suffering, injury, or constitutes a serious
attack on human dignity. 82

Under Article 2(b) of the Statute, the following have been characterised as
inhuman treatment: repeated beatings and outrages inflicted on protected persons, certain
conditions of confinement, the use of detainees as human shields, sexual assault, and
being compelled to perform forced labour along the front lines under dangerous
conditions. 83

Any sexual violence inflicted on the physical and moral integrity of a person by
means of threat, intimidation or force, in such as a way as to degrade or humiliate the
victim, may constitute inhuman treatment under Article 2(b) of the Statute. Rape is
thereby prohibited, as well as all forms of sexual violence not including penetration. 84

The severity of an act must be assessed in light of the circumstances of the case,
specifically taking into account “the nature of the act or omission, the context in which it
occurs, its duration and/or repetition, the physical, mental and moral effects of the act on
the victim and the personal circumstances of the victim, including age, sex, and health. 85

In respect of the mental element for inhuman treatment, at the moment of the act
or omission, the direct perpetrator must have “had the intention to inflict serious physical
or mental suffering or to commit a serious attack on the human dignity of the victim, or
where he knew that his act or omission was likely to cause serious physical or mental
suffering or a serious attack upon human dignity and was reckless as to whether such
suffering or attack would result from his act or omission. 86

deportation and forcible transfer

The constituent elements for deportation and forcible transfer are identical
whether it involves a war crime or a crime against humanity, with one exception: to be
80
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 364.
81
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 350
82
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 39
83
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 115
84
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 116
85
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 119
86
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 120

44
characterised as a grave breach of the Geneva Conventions, the offences of forcible
transfer and deportation must be committed against a person protected under the Geneva
Conventions.87

destruction not based on military necessity

Two types of property are protected under article 2(d): (i) real or personal
property in occupied territory, belonging individually or collectively to private persons,
or to the State, or to other public authorities, or to social or cooperative organization
(except where such destruction is rendered absolutely necessary by military operations); 88
(ii) property that carries general protection under the Geneva Conventions of 1949
regardless of its location. 89

The destruction and appropriation must be extensive. However, a single incident,

such as the destruction of a civilian hospital, may exceptionally suffice to constitute a
crime. 90

The prohibition of destruction of property situated in occupied territory does not

apply in cases “where such destruction is rendered absolutely necessary by military
operations”. 91

Where a bridge was a military target at the time of the attack, and, thus, its
destruction offered a definite military advantage, it cannot be considered, in and of itself,
as wanton destruction not justified by military necessity. Thus the Trial Chamber erred
in finding that the destruction of the Old Bridge of Mostar constituted the crime of
wanton destruction not justified by military necessity as a violation of the laws or
customs of war.92

Knowing whether a definite military advantage may be achieved must be decided

from the perspective of the person contemplating the attack, taking into account the
information available to the latter at the moment of the attack.93

The deliberate nature of the offence of the destruction of property is established

when the perpetrator acts knowingly with the intent to destroy the property in question or
when the property has been destroyed in reckless disregard of the likelihood of its

87
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 132
88
Prosecutor v Brdjanin, No. IT-99-36-T Judgement (1 September 2004) at para 586
89
Prosecutor v. Naletili & Martinovic, No. IT-98-34-T, Judgement (31 March 2003) at para 575;
Proseutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 586
90
Prosecutor v. Naletili & Martinovic , No. IT-98-34-T, Judgement, (31 March 2003) at para 575;
Prtosecutor v Brdjanin, No. IT-99-36-T, Judgement, (1 September 2004) at para 587; Prosecutor v Prlic et
al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 126
91
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para 157; Prosecutor v. Naletili &
Martinovic, No. IT-98-34-T, Judgement, (31 March 2003) at paras 575, 577; Proseutor v Brdjanin, No. IT-
99-36-T, Judgement, (1 September 2004) at para 588.
92
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 411
93
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 123

45
destruction. 94

killing

The elements of the underlying crime of wilful killing under Article 2 of the
Statute are, mutatis mutandis, identical to those required for murder under Article 3 and
Article 5 of the Statute.95

The elements of wilful killing are (1) the death of the victim; (2) as a result of the
action of the accused; (3) who intended to cause death or serious bodily injury likely to
lead to death, and (4) which he committed against a protected person. 96

The mens rea for wilful killing does not require premeditation; a dolus
eventualis97 will suffice. 98 Thus the threshold mental element is set at recklessness;
accordingly, negligence falls below the threshold. 99

The mens rea may also be inferred either directly or circumstantially from the
evidence in the case. 100

The actus reus consists in the act or omission of the accused resulting in the death
of the victim. 101 The prosecution need only prove beyond reasonable doubt that the
accused’s conduct contributed substantially to the death of the victim. 102

Proof of the victim’s death can be established by inference from circumstantial

evidence provided that the only inference reasonably available is that the victim is dead

94
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 124
95
Prosecutor v Brdjanin, No. 99-36-T Judgement (1 September 2004); Prosecutor v Delalic et al No. IT-
96-21-A, Judgement on Appeal (20 February 2001) at paras 422-423; which make this finding with respect
to wilful killing under Article 2 of the Statute and murder under Article 3 of the Statute. See Prosecutor v
Krstic, No. IT-98-33-T Judgement (2 August 2001) at para. 485; Prosecutor v. Krnojelac, No. IT-97-25-T,
Judgement, 15 March 2002 para. 323; Prosecutor v. Vasiljevi , No. IT 98-32-T, Judgement, (29 November
2002) at para. 205; Prosecutor v. Staki , No. IT-97-24-T, Judgement, (29 October 2003) at para. 631,
which make this finding with respect to murder under Article 3 and 5 of the Statute. Prosecutor v. Kordi
& Cerkez, No. IT-95-14/2-T, Judgement, (26 February 2001) at para. 236; Prosecutor v. Naletili &
Martinovi , No. IT-98-34-T, Judgement, (31 March 2003) at para. 248, which make this finding with
respect to wilful killing under Article 2 and murder under both Article 3 and 5 of the Statute.
96
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 36
97
Prosecutor v. Staki , No. IT-97-24-T, Judgement, (29 October 2003) at paras 587, 747
98
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 386.
99
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 386.
100
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 387; Prosecutor v
Delalic et al, No. IT-96-21-T, Judgement (16 November 1998) at para. 437; Prosecutor v. Krnojelac, No.
IT-97-25-T, Judgement, (15 March 2002) at para. 326
101
Prosecutor v Delalic et al, No. IT-96-21-T, Judgement (16 November 1998) at para. 424; Prosecutor v.
Kordi & Cerkez, No. IT-95-14/2-T, Judgement, (26 February 2001) at para. 229; Prosecutor v. Kupreski
et al, No. IT-95-16-T, Judgement, (14 January 2000) at para. 560
102
Prosecutor v Delalic et al, No. IT-96-21-T, Judgement (16 November 1998) at para. 424.

46
as a result of the acts or omissions of the accused. 103 Proof of death, i.e. the production of
a corpse, is not strictly required. 104

mens rea

Under Article 2, the prosecution must prove that the accused knew of the factual
circumstances that made the armed conflict an international one. 105 The existence of an
international armed conflict is an element of the offence and it would violate the
presumption of innocence to convict him of a crime without proving that he knew the
facts that were necessary to make his conduct a crime. 106

occupied territory

aiding and abetting

Trial Chamber rejects Prosecution’s argument whereby a commander in an

occupied territory may, solely due to his failure to discharge his duty to protect the
civilian population and civilian property in this territory, be held responsible for aiding
and abetting by omission the crimes that were committed against this population or this
property. The Prosecution must also prove that the commanding officer had the capacity
to act, that he knew that his omission would contribute to the crime being carried out by
the direct perpetrator, that he was aware of the core elements of the crime ultimately
committed, and that his failure to act had significant bearing on the commission of the
crime.107

area

It was necessary to determine whether a state of occupation existed in places from

which civilians were expelled in order to determine whether their expulsion from the
occupied zone crossed a de facto border and thus constituted deportation.108

It was necessary to determine whether a state of occupation existed in places

where property was destroyed and appropriated because such property was only covered
by Article 2(d) if it was in an occupied area. 109

Territory is considered occupied when it is actually placed under the authority of

103
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 385; Prosecutor v.
Krnojelac, No. IT-97-25-T, Judgement, (15 March 2002) at para 326.
104
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement, (1 September 2004) at para 384-385; Prosecutor v
Tadic, No. 94-1-T, Judgement (7 May 1997) at para 240
105
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para.121; Prosecutor v
Boskoski & Tarlukovski, No. IT-04-82-PT, Decision on Assigned Pro Bono Counsel Motion Challenging
Jurisdiction (8 September 2006) at para. 18
106
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 114
107
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 573
108
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 301
109
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 303

47
the hostile army. The occupation extends only to the territory where such authority has
been established and can be exercised. 110

Where it was not proven that these places were occupied when the crimes were
committed, the convictions under Article 2 were vacated as to those places. 111

authority

The occupying power need only be in a position to exercise its authority.112

Factors to be considered when determining whether the authority of the

occupying power has been proven in fact include: (1) the occupying power must be in a
position to substitute its own authority for that of the occupied power, rendered incapable
of functioning publicly from that time forward; (2) the enemy‟ s forces have surrendered,
been defeated or have withdrawn. In this respect, battle zones may not be considered as
occupied territory. Despite this, the status of occupied territory remains unchallenged by
sporadic local resistance, however successful; (3) the occupying power has a sufficient
force present, or the capacity to send troops within a reasonable time to make the
authority of the occupying power felt; (4) a temporary administration has been
established over the territory; and (5) the occupying power has issued and enforced
directions to the civilian population. 113

In order to make a finding as to whether a state of occupation exists in any given

place, a trier of fact must look at the situation in its entirety. 114

The test for occupation is actual authority over the territory and population and
not the motivation behind such an occupation. Therefore, occupation by an army of the
same ethnic group as the civilians being occupied is possible. 115

The occupying authorities’ authority may be exercised by proxy through de facto

organised and hierarchically structured groups.116

state of occupation

In order to prove the responsibility of an accused for his functions as a

commanding officer in a zone of occupation, the Prosecution must first prove that such
an occupation exists.117

Nothing in case-law or customary law excludes the possibility that fighting with

110
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 317
111
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 343
112
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 322
113
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 320
114
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 321
115
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 341
116
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 322
117
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 91

48
the character of an international armed conflict might take place in the occupied territory
without that territory losing its status as an occupied territory, provided that the
occupying power maintains its control over the territory at issue. 118

Occupation is not limited to one State invading another State and establishing
military control over part or all of its territory. A non-invading State which remains after
consent is withdrawn can constitute an occupation. 119

The mere fact of being in the territory of a party to the conflict or in occupied
territory implies that one is in the hands of the Occupying Power.120

If the occupying power continues to maintain control of the territory in spite of

resistance and sporadic fighting, the territory is still considered occupied. 121

Battle zones may not be considered as occupied territory, but the status of
occupied territory remains unchallenged by sporadic local resistance, however
successful. 122

A state of occupation and that of an international armed conflict are not

necessarily mutually exclusive.123

Occupation can be established, once combat ceases, if the occupying power has
the required control. 124

A finding of active hostilities in certain municipalities does not necessarily

preclude the Trial Chamber from finding that a state of occupation existed on the ground
in those municipalities. The issue is one of authority, i.e. whether the occupying power is
able to maintain its authority over the territory in spite of some ongoing active combat. 125

plunder and appropriation of property

The prohibition on the unlawful and wanton seizure of property is broad in scope
and is directed toward private as well as government property.126

This section covers both organised and systematic confiscations and acts of
appropriation committed by soldiers acting in self-interest.127

118
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 94
119
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 318, 339
120
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 101
121
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 319
122
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 320
123
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 335
124
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 339
125
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 335
126
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 129
127
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 129

49
 This prohibition applies equally, moreover, to the territory of the Parties to the
conflict and to occupied territories.128

To constitute a violation of the prohibition in Article 2(d) of the Statute, to the

extent that the appropriation of property is a grave breach of the Geneva Conventions
under Article 147 of the Fourth Geneva Convention, such appropriation must also be
committed extensively and carried out unlawfully and wantonly. 129

The Fourth Geneva Convention authorises the occupying powers, in certain cases,
to requisition private property, such as food and medical supplies or articles, in occupied
territory to meet the needs of their occupying forces and administration. The requisition
of excess food and supplies for the benefit of occupied regions is authorised provided that
it is proportionate to the resources of the country. 130

The deliberate nature of the offence of appropriation of property in Article 2(d) of

the Statute is established when the perpetrator acts knowingly with the intent to
appropriate the property in question unlawfully. 131

protected persons

To constitute grave breaches of the Geneva Conventions, the crimes enumerated

under Article 2 must be committed against persons or property protected under the
provisions of the relevant Geneva Convention. 132

allegiance

The detaining authority's view of the victims' allegiance is a relevant factor in

determining whether the victim is a protected person under Article 2. 133

Protected persons may include victims who share a common citizenship with the
perpetrator, so long as they owe no allegiance to the party to the conflict in whose hands
they find themselves.134

Members of the armed forces of a party to the conflict may not be considered
prisoners of war under the Third Geneva Convention when they are placed into detention
by their own armed forces.135

However, they may be considered as persons falling into the hands of the enemy
for purposes of the Fourth Geneva Convention, and therefore are protected persons for

128
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 129
129
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 130
130
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 130
131
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 131
132
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 346
133
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 355
134
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 330
135
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 604

50
purposes of ICTY Article 2.136

Grave breaches can be committed by soldiers against members of their own

military force.137

The Bosnian Croat Army’s Muslim members who were detained by the Bosnian
Croat Army were protected persons under Geneva Convention IV. 138

Since the criterion of nationality might exclude certain victims of crimes from the
category of protected persons, it is not applied strictly. The Tribunal will rather look to
“more realistic bonds demonstrating effective allegiance to a party to a conflict, such as
ethnicity” in appropriate cases.139

civilians

Protected persons include all civilians who do not enjoy the diplomatic protection
of the Party in whose hands they find themselves. This would include: (1) all civilians not
having the nationality of the belligerent Party; and (2) all civilians who whilst having that
nationality, are refugees and thus no longer enjoy the diplomatic protection of that
Party.140

Both civilians who were in the territory prior to the outbreak of the conflict or the
occupation and those who arrived later are “protected persons.” 141

co-belliegerents

Nationals of a co-belligerent State do not enjoy the protection conferred by the

Fourth Geneva Convention, “while the State of which they are nationals has normal
diplomatic representation in the State whose hands they are in. 142

nationals

While protected persons may be detained when it is absolutely necessary, such

deprivation of liberty is permissible only where there are reasonable grounds to believe
that the security of the State is at risk, based on an assessment that each civilian taken

136
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 611
137
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 358
138
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 360
139
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) paras 164-168; Prosecutor v. Blaskic,
No. IT-95-14-A, Judgement (29 July 2004) at paras 172-176; Prosecutor v Mucic et al, No. IT-96-21-A,
Judgement on Appeal (20 February 2001) paras 83, 98; Prosecutor v. Mladen Naletilic and Vinko
Martinovi , No. IT-98-34-T, Judgement, (31 March 2003) at para. 207; Prosecutor v Brdjanin, No. IT-99-
36-T, Judgment (1 September 2004) at para 125.
140
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 164; Prosecutor v. Delalic, No.
IT-96-21-A, Judgement (20 February 2001) at para 56.
141
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 101
142
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 102

51
into detention poses a particular risk to the security of the State. An individual may not be
detained solely because he or she is a national of, or aligned with, an enemy party.143

non-civilians

While Geneva Convention IV primarily concerns the protection of civilians, it

also encompasses all persons who fall into the hands of a party to the conflict, or
occupying power of which they are not nationals, and who are not protected under the
other Geneva Conventions. 144

persons subject to conscription

The Trial Chamber reasonably concluded that military-aged Muslim men - as a

general category – did not belong to the ABiH simply because of general mobilization
orders providing that all citizens of who are fit to work shall be subject to compulsory
military service. 145

Even though the status of combatant cannot be presumed on the ground that men
are of military age at the time of their detention, it is the Prosecution that carries the
burden of proving civilian status when seeking to have the regime of crimes against
humanity or that of the Fourth Geneva Convention applied to the crimes committed
against these persons. Where the evidence, after it has been assessed for each crime
alleged, does not prove beyond all reasonable doubt that the persons involved are
civilians, the Chamber is bound to find in dubio pro reo that such persons are
combatants.146

reservists

A reservist becomes a member of the armed forces within the meaning of

international humanitarian law once he has been mobilised and has taken up active duty,
that is, once he has been incorporated into an organised structure and placed under a
command accountable for the conduct of its subordinates. It is only then that a member of
the reserves acquires the status of combatant and becomes a prisoner of war if he falls
into the hands of the opposing party during an international armed conflict. Such a person
thus retains the status of combatant from the instant he is mobilised and enters into active
duty until such time as he is permanently demobilised. Outside this temporal framework,
a member of the reserves is a civilian and cannot in any event be considered a prisoner of
war if put in detention by the opposing party during a conflict.147

Article 3—violations of the laws or customs of war

143
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 375
144
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 353
145
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 366
146
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 621
147
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 619

52
The International Tribunal shall have the power to prosecute persons violating the
laws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause
unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by
military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages,
dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion,
charity and education, the arts and sciences, historic monuments and works of art
and science;
(e) plunder of public or private property.

armed conflict

existence

In establishing the existence of an armed conflict of an internal character, the

Trial Chamber must assess (1) the intensity of the conflict and (2) the organization of the
parties. 148

An armed conflict is defined to exist “whenever there is a resort to armed force

between States or protracted armed violence between governmental authorities and
organised groups or between such groups within a State.”149 It is immaterial whether this
conflict is internal or international. 150

Banditry, unorganized and short-lived insurrections, terrorist activities, or civil

unrest are not subject to international humanitarian law.151

In applying the test of whether an armed conflict existed, what matters is whether
the acts are perpetrated in isolation or as part of a protracted campaign that entails the
engagement of both parties in hostilities. It is immaterial whether the acts of violence
may be characterized as terrorist in nature.152

148
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 84
149
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at para. 70; Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at
para. 254
150
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at paras. 134, 137; Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June
2006) at para. 252; Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at
para.536; Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para.24-25;
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 845;
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 56; Prosecutor v Galic,
No. IT-98-29-A, Judgement (30 November 2006) at para. 120; Prosecutor v Hadzihasanovic & Kubura,
No. IT-01-47-T, Judgement (15 March 2006) at para. 13; Prosecutor v. Delalic, No. IT-96-21-A,
Judgement (20 February 2001) at paras 140 and 150
151
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 254
152
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 185

53
 A state of internal armed conflict existed in Macedonia between the government
and NRA in August 2001.153

A state of armed conflict existed in Kosovo in 1998-99 between the FRY and
KLA and the FRY and NATO.154

intensity

The criterion of protracted armed violence refers more to the intensity of the
conflict rather than its duration. 155

Factors to be considered in evaluating the intensity of the conflict include (1) the
seriousness of the attacks and whether there has been an increase in armed clashes; (2)
the spread of clashes over territory and over a period of time; (3) any increase in the
number of government forces; (4) mobilization and the distribution of weapons among
both parties to the conflict; and (5) whether the United Nations Security Council has
passed resolutions concerning the matter.156

While isolated acts of terrorism may not reach the threshold of armed conflict,
when there is protracted violence of this type, especially where they require the
engagement of armed forces in hostilities, such acts are relevant when assessing the level
of intensity of the armed conflict.157

Since no peaceful settlement was achieved during the indictment period, there is
no reason to evaluate the oscillating intensity of the internal conflict. 158

international character

The prohibitions in Article 3 apply to international and non-international

conflicts.159

Armed conflict in Croatia was international in nature.160 No general, definitive,

and effective termination of hostilities such as to have ended the armed conflict had
taken place as of the time of the crimes in August 1995.161

153
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 292
154
Prosecutor v Djordjevic, No. IT-05-87/1-T, Judgement (23 February 2011) at paras. 1579-80
155
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 49
156
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 90; Prosecutor v
Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 49
157
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 190
158
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 100
159
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-AR73.3, Decision on Joint Defence
Interlocutory Appeal on Trial Chamber Decision on Rule 98 bis Motions for Acquittal (11 March 2005) at
para. 30
160
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1693
161
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at paras. 1695-97

54
 An internal armed conflict may exist alongside an international armed conflict. 162

The accused must be aware of the factual circumstances that qualify the conflict
as international but the mens rea requirement does not necessitate that the accused
correctly applies a particular legal label to known facts. All that is required is that the
accused be aware of the factual circumstances that lead to the judicial characterisation of
the conflict as international. 163

organisation

An armed conflict can exist only between parties which are sufficiently organized
to confront each other with military means. 164

Lack of organization of the armed group cannot be inferred by the fact that
international humanitarian laws were frequently violated by its members. In assessing
this factor, it is relevant to determine whether the attacks were primarily the result of a
military strategy by those leading the group or whether they were perpetrated by
members of the group acting on their own accord.165

The degree of organization of the parties need not rise to the level of that required
for establishing the responsibility of superiors for the acts of their subordinates. Some
degree of organization will suffice to satisfy this requirement for existence of an armed
conflict.166

Factors to be considered in evaluating the degree of organization include (1) the

existence of headquarters; (2) the existence of designated zones of operation; and (3) the
ability to procure, transport, and distribute arms. 167

Factors to be considered in evaluating the degree of organization include (1) the

existence of a command structure and disciplinary rules and mechanisms within the
group; (2) the existence of a headquarters; (3) the ability of the group to obtain access to
weapons, other military equipment, recruits, and military training; (4) the ability to plan,
coordinate, and carry out military operations; (5) its ability to define a unified military
strategy and use military tactics; and (6) its ability to speak with one voice and negotiate
and conclude agreements.168

attacks on civilians or on civilian objects

162
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 521
163
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2392
164
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 60
165
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 205
166
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 89; Prosecutor v
Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 254
167
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 90
168
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 60

55
 civilians

The burden of proof as to whether a person, or object, is a civilian rests on the

prosecution. 169

Members of armed forces and members of militias or volunteer corps forming

part of such armed forces are not civilians. Members of organized resistance groups,
which are commanded by a person responsible for his subordinates, have a fixed,
distinctive sign recognizable at a distance, carry arms openly, and conduct their
operations in accordance with the laws and customs of war are not civilians. 170

Civilians are protected from attack, unless and for the time that they take part
directly in hostilities.171

To take direct part in hostilities means to engage in acts of war which, by their
nature or purpose, are likely to cause actual harm to the personnel or matériel of the
enemy armed forces. A civilian who takes part in armed combat loses his or her
immunity and becomes a legitimate target.172

Members of the armed forces resting in their homes in the area of the conflict
remain combatants whether or not they are in combat or armed at the time. 173

Soldiers who were killed from shelling while playing a football match were not
hors d’combat and therefore their killing was not a crime against humanity or war
crime.174

civilian objects

The presence of members of the armed forces in private homes removes those
homes from classification as civilian objects. 175

The presence of combatants within the civilian population does not necessarily
deprive the population of its civilian character.176 However, in order to determine
whether the presence of soldiers within a civilian population deprives the population of
its civilian character, the number of soldiers, as well as whether they are on leave, must
be examined. 177

169
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 48, 53
170
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.50
171
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.50
172
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 947
173
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.51
174
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3063
175
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 455, 510,
516
176
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.50;
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 136
177
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 137

56
 Civilian objects are defined by opposition to military objectives, which are limited
to those objects which by their nature, location, purpose, or use make an effective
contribution to military action and whose total or partial destruction, capture, or
neutralization, in the circumstances ruling at the time, offers a definite military
advantage.178

distinction

The three fundamental principles of international humanitarian law are

distinction, precaution, and protection. Under Article 48 of Additional Protocol I, the
principle of distinction obliges the warring parties to distinguish at all times between the
civilian population and combatants, and between civilian objects and military objectives.
Article 57(2)(a)(ii) of Additional Protocol I requires that those planning an attack take all
reasonable precautions in the choice of the means and methods of attack in order to avoid
or minimise the incidental loss of civilian life, injury to civilians, and damage to civilian
property. Finally, the principle of protection, as referred to in Article 51(1) of Additional
Protocol I and Article 13(1) of Additional Protocol II, ensures that the civilian population
and individual civilians enjoy general protections against dangers arising from military
operations. 179

The principle of distinction obliges warring parties to distinguish at all times

between the civilian population and combatants, and between civilian objects and
military objectives and ensure that operations will only be directed against military
objectives.180

In accordance with the fundamental principles of distinction and protection of the

civilian population, only military objectives may be lawfully attacked.181

"Military objectives" are "those objects which by their nature, location, purpose or
use make an effective contribution to military action and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage.”182

Whether a "military advantage" could have been achieved from an attack requires
an assessment of whether it was reasonable to believe, in the circumstances of the
person(s) contemplating the attack, including the information available to the latter, that
the object was being used to make an effective contribution to military action.183

The relevant question is whether the attacker(s) could have reasonably believed

178
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3257
179
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at fn. 1484
180
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 53
181
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 488
182
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 488
183
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 489

57
that the target was a legitimate military objective, and a useful standard by which to
assess the reasonableness of such belief is that of a "reasonable commander" in the
position of the attackers.184

A direct attack can be inferred from the indiscriminate character of the weapon
used.185

An object should not be attacked when it would be unreasonable to believe, in the

circumstances of the person contemplating the attack, that the object is being used to
make an effective contribution to military action.186

The legal test used to determine whether an attack was appropriately directed at a
military objective does not render the evidence of military observers and victims
irrelevant. The Trial Chamber was entitled to rely on such evidence in determining
whether the attackers reasonably could have believed that the targets were legitimate
military objectives. 187

An object shall not be attacked when it is not reasonable to believe in the

circumstances of the person contemplating the attack, including the information available
to the latter, that the object is being used to make an effective contribution to military
action. 188

According to the principle of distinction, warring parties must at all times

distinguish between the civilian population and combatants, between civilian and military
objectives, and accordingly direct attacks only against military objectives. These
principles establish an absolute prohibition on the targeting of civilians in customary
international law, but do not exclude the possibility of legitimate civilian casualties
incidental to the conduct of military operations. However, those casualties must not be
disproportionate to the concrete and direct military advantage anticipated before the
attack (the principle of proportionality). 189

Once the military character of a target has been ascertained, commanders must
consider whether striking this target is expected to cause incidental loss of life, injury to
civilians, damage to civilian objectives or a combination thereof, which would be
excessive in relation to the concrete and direct military advantage anticipated. 190

184
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 489
185
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 132; Prosecutor v Martic,
No. IT-95-11-A, Judgement (8 October 2008) at para. 260
186
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 587
187
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 496
188
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 356
189
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 190
190
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 191

58
 General evidence as to the presence of mobile mortars in Sarajevo was
insufficient to show that Trial Chamber’s conclusion that attacks were indiscriminate was
erroneous.191

elements

The crime of attacks on civilians or civilian objects, as a crime falling within the
scope of Article 3 of the Statute, is, as to actus reus, an attack directed against a civilian
population or individual civilians, or civilian objects, causing death and/or serious injury
within the civilian population, or damage to the civilian objects. As regards mens rea,
such an attack must have been conducted with the intent of making the civilian
population or individual civilians, or civilian objects, the object of the attack.192

Attacks which are not directed against military objectives (particularly attacks
directed against the civilian population) and attacks which cause disproportionate civilian
casualties or civilian property damage may constitute the actus reus for the offence of
unlawful attack under Article 3 of the ICTY Statute. The mens rea for the offence is
intention or recklessness, not simple negligence. In determining whether or not the mens
rea requirement has been met, it should be borne in mind that commanders deciding on
an attack have duties: (1) to do everything practicable to verify that the objectives to be
attacked are military objectives; (2) to take all practicable precautions in the choice of
methods and means of warfare with a view to avoiding or, in any event to minimizing
incidental civilian casualties or civilian property damage; and (3) to refrain from
launching attacks which may be expected to cause disproportionate civilian casualties or
civilian property damage.193

The offence of attack on civilians includes the common elements from Article 3
of the Statute as well as the following elements: (1) Acts of violence directed against the
civilian population or civilian persons not directly participating in hostilities, causing
death or serious injury to body or health; and (2) the perpetrator of these acts of violence
wilfully subjected the civilian population or the civilian persons not directly participating
in hostilities to these acts.194

An attack is defined as “acts of violence against the adversary, whether in offence

or defence.” The issue of who first made use of force is irrelevant. 195

To establish that the crimes of terror and unlawful attacks against civilians had
been committed, the Trial Chamber was required to find beyond reasonable doubt that the

191
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 500
192
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 283; Prosecutor v
Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 450
193
Report by the Committee Established to Review the NATO Bombing Campaign Against the Federal
Republic of Yugoslavia at para. 28.
194
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 193
195
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.47

59
victims of individual crimes were civilians and that they were not participating directly in
the hostilities.196

An attack on civilians or civilian objects requires proof that the attack resulted in
serious injury to body or health. 197

factors

To constitute a violation of the prohibition of attacks against civilians, the attack

must be directed at individual civilians or the civilian population. Whether an attack is so
directed can be inferred from many factors, including the means and method used in the
course of the attack, the status and number of the victims, the nature of the crimes
committed, the extent to which the attacking force may be said to have complied or
attempted to comply with the precautionary requirements of the laws of war and the
indiscriminate nature of the weapon used.198

hospitals

A hospital becomes a legitimate target when used for hostile or harmful acts
unrelated to its humanitarian function, but the opposing party must give warning before it
attacks.199

mens rea

Statement of accused that “if there is an order to strike at Knin, we will destroy it
in its entirety in a few hours” could be interpreted as a statement of Army’s capabilities,
rather than its aims, and therefore did not provide evidence of an intention to engage in
indiscriminate shelling.200

No reasonable trier of fact could have concluded that the forces possessed the
requisite mens rea for murder and wilful killing by shelling a house, given the ongoing
combat activity in the vicinity of the house and, in particular, the position of the
defenders of the village relative to the house.201

In order to establish the mens rea for the offence, it must be shown that the
perpetrator was aware or should have been aware of the civilian status of the persons
attacked. In cases of doubt, the Prosecution must show that, in the given circumstances, a
reasonable person could not have believed that the individual he or she attacked was a
combatant.202

196
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 57
197
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.67
198
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 948
199
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 346
200
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 81
201
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 441
202
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 952

60
 For the mens rea of an attack on civilians, the perpetrator must undertake the attack
“wilfully”, which it defines as wrongful intent, or recklessness, and explicitly not “mere
negligence”.203

military objects

A general assertion that the attacks were legitimate because they allegedly
targeted “military zones” throughout the city is bound to fail. 204

It is accepted that attacks aimed at military objectives may cause collateral

damage. Collateral damage is not unlawful per se.205

Military activity does not permanently turn a protected facility into a legitimate
military target. It remains a legitimate military target only as long as it is reasonably
necessary for the opposing side to respond to the military activity. 206

An attack must be aimed at the military objects in or around the facility, so only
weaponry reasonably necessary for that purpose can be used. 207

precautions

The parties to a conflict are under an obligation to remove civilians, to the

maximum extent feasible, from the vicinity of military objectives and to avoid locating
military objectives within or near densely-populated areas.208

proportionality

When assessing whether the destruction of an object was justified by military

necessity, the principle of proportionality must also be taken into account. Damage to
property must not be disproportionate to the concrete and direct military advantage
anticipated before the attack. In determining whether an attack on military objectives
was proportionate, it is necessary to adopt the perspective of a person in the
circumstances of the actual perpetrator contemplating the attack and making reasonable
use of the information available to him. 209

Although the principles of distinction and the protection of a civilian population

do not exclude the possibility of legitimate civilian casualties incidental to the conduct of

203
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 140; Prosecutor v
Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 456
204
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 54
205
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.52
206
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 346
207
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 346
208
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 949
209
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 357

61
military operations, those expected casualties must not be disproportionate to the concrete
and direct military advantage anticipated before the attack.210

The Trial Chamber failed to provide a reasoned opinion when it found that the
damage was excessive in relation to the concrete and direct military advantage
anticipated without determining this military advantage.211

Trial Chamber’s finding that attacks on legitimate military target were

disproportionate was not based upon a concrete assessment of comparative military
advantage and did not make any findings on resulting damage or casualties. Therefore, it
could not support a conviction for unlawful attacks.212

Unnecessary or wanton application of force is prohibited. A belligerent may

apply only that amount and kind of force necessary to defeat the enemy. 213

scale

No specific amount of civilian destruction need be shown so long as the evidence

proves beyond a reasonable doubt that civilian objects were deliberately attacked. The
scale of the destruction may be relevant to determine whether an attack was aimed at
civilian objects.214

shelling

Trial Chamber was not unreasonable in finding that the angle of descent of mortar
shell could be reliably estimated despite the interference with the crater at the scene of
the incident.215

Trial Chamber’s finding that any shell landing more than 200 meters from a
military object was indiscriminate was error when not based upon any evidence in the
case and not accounting for factors such as wind, temperature, and distance. 216

Trial Chamber erred in finding that no shells were aimed at mobile military
objects moving around the town, as such “targets of opportunity” were legitimate military
targets.217

Although there was evidence that many shells fell further than 200 meters from
military objects and that they were spread across the whole town of Knin, this was not
conclusive evidence of indiscriminate attacks.218

210
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 561
211
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 561
212
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 82
213
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 686
214
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 453
215
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 518
216
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 61
217
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 63

62
 The possibility of shelling mobile targets, combined with the lack of any
dependable range of error estimation, raises reasonable doubt about whether even
artillery impact sites particularly distant from fixed artillery targets considered
legitimate by the Trial Chamber demonstrate that unlawful shelling took place. 219

The Trial Chamber’s finding that firing "shells", without further specification,
was inherently indiscriminate was unreasonable. 220

Text of order which provided detailed instructions for shelling military objects in
four towns and “put the towns under artillery fire” was sufficiently ambiguous to not
support the inference that the towns were to be shelled indiscriminately. 221

Observations of witnesses with no artillery experience and whose vantage points

made it difficult to determine where the shells were directed at or actually landed were
not sufficient to base a finding that the shelling was indiscriminate.222

targeting civilians

There is an absolute prohibition against the targeting of civilians in customary

international law encompassing indiscriminate attacks. 223

There is an absolute prohibition on the targeting of civilians in customary

international law. The prohibition against attacking civilians and civilian objects may not
be derogated from because of military necessity. 224

The prohibition against attacking civilians and civilian objects is not a crime when
justified by military necessity. 225

If the civilian population as such, or individual civilians, were unlawfully targeted

in each particular incident, it was by definition impossible that the target could have been
a legitimate military objective. 226

cruel treatment

218
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 65
219
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 66
220
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 434
221
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 77
222
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 79
223
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 53; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 49
224
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 130;
225
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 54;
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 486
226
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 56

63
 contribution

The involvement of VRS members in the guarding of the prisoners in the schools
as well as their participation in loading the prisoners onto trucks to be taken for execution
substantially contributed to the infliction and perpetuation of the appalling conditions of
detention that amounted to cruel and inhumane treatment. 227

defences

While the burden is on the prosecution to prove that the conditions of detention
were sufficiently bad to constitute cruel treatment, it is up to the defence to lead evidence
that the conditions of the prisoners were similar to those of the local population with
respect to food and water shortages. Where minimum standards of treatment cannot be
maintained, the detaining authority may possibly incur criminal responsibility if it
continues to detain the prisoners.228

elements

The crime of cruel treatment as a violation of the laws or customs of war pursuant
to Article 3 of the Statute, is an intentional act or omission causing serious mental or
physical suffering or injury, or constituting a serious attack on human dignity. Indirect
intent, i.e. knowledge that cruel treatment was a probable consequence of the
perpetrator’s act or omission, may fulfil the intent requirement for this crime. 229

The elements of cruel treatment are: (1) an act, or omission notwithstanding a

duty to act, of the accused; or of a person for whose acts or omissions the accused has
criminal responsibility, causing serious mental or physical suffering, serious injury, or
constituting a serious attack on human dignity; and (2) an intent to inflict serious mental
or physical suffering, serious injury, or a serious attack on human dignity. 230

mens rea

The mens rea of cruel treatment may be satisfied by knowledge that it is more
likely than not that such result could occur and acceptance of that risk. 231

The mental element for this offence requires the perpetrator of the crime to have
acted with direct or indirect intent to engage in cruel treatment. A perpetrator has acted
with indirect intent to commit cruel treatment when he knew that cruel treatment was a

227
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1908
228
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at paras. 36-37
229
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 261; Prosecutor v Limaj et
al, No. IT-03-66-T, Judgement (30 November 2005) at para. 231; Prosecutor v Martic, No. IT-95-11-T,
Judgement (12 June 2007) at para. 79
230
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 351
231
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 353; Prosecutor v Haradinaj et
al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 423

64
probable consequence of his act or omission and accepted that fact.232

Those present at the schools were aware of the fact that all the prisoners were
Bosnian Muslims and of the cruel and inhumane treatment to which they were subjected.
The infliction of such treatment was thus carried out with the intention to discriminate
against the Bosnian Muslims on political, racial, or religious grounds, or with an
awareness of the discriminatory context in which the crime was to be committed. 233

suffering

The degree of physical or mental suffering required to prove cruel treatment is

lower than the one required for torture, though it must be at the same level as wilfully
causing great suffering or serious injury to body or health. 234

The fact of imprisonment, in and of itself, does not amount to an act inflicting
severe pain or suffering or constituting a serious attack on human dignity, within the
meaning of torture or cruel treatment under Article 3 of this Statute. 235

The failure to provide adequate medicine or medical treatment would constitute

the offence of “cruel treatment” if, in the specific circumstances, it causes serious mental
or physical or injury, or constitutes a serious attack on human dignity and if it is carried
out with the requisite mens rea.236

Acts of medical deprivation of medical care of those who had previously been
injured, in and of themselves, were not of the nature to cause severe or serious pain or
suffering to amount to torture or cruel treatment. 237

Beating or detaining persons in difficult conditions may constitute cruel treatment

if they cause great suffering or physical or mental harm, or are a serious attack on human
dignity. 238

The physical conditions of detention may be enough to constitute the offence of

cruel treatment when they cause detainees great physical and/or mental suffering,
constituting a serious attack on their human dignity, and are imposed deliberately. 239

Unlawful seizure, unlawful detention for prolonged periods, and interrogation, in

and of themselves, do not amount to a serious attack on human dignity and therefore do
not constitute cruel treatment.240

232
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 147
233
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1909
234
Prosecutor v Kvocka et al, No. IT-98-30/1-T, Judgement (2 November 2001) at para. 161
235
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 524
236
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 517
237
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 529
238
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 35
239
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 148
240
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 232

65
 The assessment of the seriousness of an act or omission is, by its very nature,
relative. All the factual circumstances must be taken into account, including the nature of
the act or omission, the context in which it occurs, its duration and/or repetition, the
physical, mental and moral effects of the act on the victim and the personal circumstances
of the victim, including age, sex and health. The suffering inflicted by the act upon the
victim does not need to be lasting so long as it is real and serious. 241

Beatings are not per se cruel treatment or inhumane acts but can be with further
showings.242

Taking a man out of his home and detaining him in a well, while putting his wife
in the hands of armed soldiers known for violence constituted serious mental suffering
sufficient to constitute cruel treatment.243

victims

Cruel treatment under Article 3 applies to members of the civilian population,

regardless of whether they were in the hands of their perpetrators at the time. 244

destruction not based on military necessity

collateral damage

Military necessity includes those lawful measures which are indipensible for
securing the ends of the war.245

Collateral damage to civilian property may be justified by military necessity. The

protection of civilians and civilian property provided by modern international law may
cease entirely, or be reduced or suspended, when the target of a military attack is
comprised of military objectives and belligerents cannot avoid causing damage to
civilians. 246

Only the targeting of objects which qualify as military objectives may be justified
by military necessity. Damage to civilian property or civilian casualties may be
considered to be legitimate only if they are incidental to the conduct of military
operations which are directed against military objectives.247

241
Prosecutor v Krnojelac, No. IT-97-25-T, Judgment (15 March 2002) at para 131
242
Prosecutor v Krnojelac, No. IT-97-25-T, Judgment (15 March 2002) at para 176
243
Prosecutor v Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para. 95
244
Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Several Motions Challenging Jurisdiction
(19 March 2007) at para. 82
245
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 686
246
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 45
247
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 353

66
 elements

The crime of wanton destruction not justified by military necessity, under Article
3(b) of the Statute was part of international customary law. 248

The elements of this offence are: (1) the destruction of property occurred on a
large scale; (2) the destruction was not justified by military necessity; and (3) the
perpetrator acted with intent to destroy the property in question. 249

The crime of wanton destruction of cities, towns, or villages not justified by

military necessity has the following elements: (1) the destruction of property occurs on a
large scale; (2) the destruction is not justified by military necessity; and (3) the
perpetrator acted with the intent to destroy the property in question or in reckless
disregard of the likelihood of its destruction.250

The crime of wanton destruction of cities, towns or villages requires proof of the
same elements as devastation not justified by military necessity. 251

mens rea

The mens rea for offences under article 3(b) is satisfied where the destruction or
devastation is either perpetrated intentionally, with the knowledge and will of the
proscribed result, or in reckless disregard of the likelihood of the destruction or
devastation.252

The mens rea of wanton destruction requires proof of direct intent to destroy the
property in question or the indirect intent of knowing that destruction was the probable
consequence of one’s acts.253

military objects

As a rule, destruction carried out before fighting begins or after fighting has
ceased cannot be justified by military necessity. 254

Where prosecution failed to prove that attacks were not justfied by military
necessity, the accused should be acquitted.255

248
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.76
249
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 581; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 39
250
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 351
251
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3256
252
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 593; Prosecutor v
Blaskic, No. IT-95-14-T, Judgement (3 March 2000) at para 183; Prosecutor v. Kordi & Cerkez, No. IT-
95-14/2-T, Judgement, (26 February 2001) at para 346.
253
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 358
254
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3257

67
 The use of a firehouse as a headquarters and the use of private houses in combat
operations allowed for the conclusion that there was a justified military objective in the
attacks.256

The fact that arms were found in a house did not justify destruction of the
257
house.

The destruction of civil settlements is presumed to be unlawful, but may be

justified on a case-by-case basis, such as when the settlement might be used to resume the
attack.258

partial destruction

Although it is required that a considerable number of objects were damaged or

destroyed, it is not required that a city, town, or village be destroyed in its entirety. 259

Partial destruction of property may be considered to be sufficient, as long as acts

of partial destruction are committed on a large scale. 260

Destruction of almost everything from one apartment, absent any evidence

establishing what these items are, does not constitute destruction on a large scale. 261

The destruction must be both serious in relation to the individual object and cover
a substantial range in a particular city, town, or village. The sporadic or isolated
destruction of a few houses of a settlement is insufficient., but total destruction of a city,
town, or village is not required.262

Commission of destruction on a large scale is both an element of the offence of

wanton destruction of towns and villages and a jurisdictional prerequisite to the
application of Article 3. 263

Destruction on a large scale occurs when either a large quantity of property has
been destroyed or when the value of a single destroyed property is sufficiently great. 264

255
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at paras. 429,503;
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 586
256
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.445
257
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 575
258
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 588
259
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 352
260
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 352
261
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3407
262
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 583, 85
263
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 47;
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1766
264
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 43;
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3257

68
 Partial destruction of property falls within the ambit of this section of the
Statute.265

scope of protection

The protection extends to property in the territory of the conflict, including

property in enemy territory or territory not held by either party. 266

The protection extends to both moveable and unmovable property. 267

devastation not justified by military necessity

The elements of the crime of “devastation not justified by military necessity”, at

least in the present context, may be stated as: (a) destruction or damage of property on a
large scale; (b) the destruction or damage was not justified by military necessity; and (c)
the perpetrator acted with the intent to destroy or damage the property or in the
knowledge that such destruction or damage was a probable consequence of his acts.268

Military necessity is defined as “those objects which by their nature, location,

purpose or use make an effective contribution to military action and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage”. Whether a military advantage can be achieved must be
decided from the perspective of the person contemplating the attack, including the
information available to the latter, that the object is being used to make an effective
contribution to military action. 269

The Prosecution must establish that the destruction was not justified by military
necessity, 270

This crime is applicable to armed conflicts of either international or non-

international character.271

destruction of cultural property

The prohibition on destruction of cultural property contained in Article 3(b) of the

Statute covers also non-international armed conflicts.272

265
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 44
266
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 582
267
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 42
268
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 297; Prosecutor v Martic,
No. IT-95-11-T, Judgement (12 June 2007) at para. 90
269
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 295
270
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 170
271
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-AR73.3, Decision on Joint Defence
Interlocutory Appeal on Trial Chamber Decision on Rule 98 bis Motions for Acquittal (11 March 2005) at
para. 30

69
 An act will fulfill the elements of the crime of destruction or wilful damage of
cultural property, within the meaning of Article 3(d) of the Statute and in so far as that
provision relates to cultural property, if: (i) it has caused damage or destruction to
property which constitutes the cultural or spiritual heritage of peoples; (ii) the damaged
or destroyed property was not used for military purposes at the time when the acts of
hostility directed against these objects took place; and (iii) the act was carried out with
the intent to damage or destroy the property in question. 273

The protection accorded to cultural property is lost where such property is used
for military purposes. It is the use of cultural property and not its location that determines
whether and when the cultural property would lose its protection. The special protection
awarded to cultural property itself may not be lost simply because of military activities or
military installations in the immediate vicinity of the cultural property. In such a case,
however, the practical result may be that it cannot be established that the acts which
caused destruction of or damage to cultural property were “directed against” that cultural
property, rather than the military installation or use in its immediate vicinity. 274

In order to prove the destruction or willful damage done to institutions dedicated

to religion and other cultural buildings as persecution, as a crime against humanity, the
prosecution must prove the general requirements of crimes against humanity, the specific
requirements of persecution, and the following elements of the underlying offence: (1)
the destruction or damage of the religious or cultural property occurs on a large scale;
(2) the destruction or damage of the religious or cultural property is not justified by
military necessity; and, (3) the perpetrator acted with the intent to destroy or damage the
religious or cultural property or in reckless disregard of the likelihood of its destruction or
damage. 275

Educational institutions are not automatically cultural property. 276

It is not necessary to establish that the building represent the cultural heritage of a
people. 277

destruction of religious institutions

The elements of the offence of destruction or willful damage to institutions

dedicated to religion are (1) a religious institution is destroyed or damaged; (2) the

272
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 228; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-AR73.3, Decision on Joint Defence Interlocutory Appeal on
Trial Chamber Decision on Rule 98 bis Motions for Acquittal (11 March 2005) at para. 47
273
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 312
274
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 310
275
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 88
276
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.92
277
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para.
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 60

70
damaged or destroyed property was not used for military purposes; and (3) the act was
carried out with the intent to damage or destroy the property in question. 278

The crime of destruction or wilful damage done to institutions dedicated to

religion or education comprises the following elements: (1) an intentional act or
omission; (2) causing destruction or damage to a cultural or religious object of property;
(3) the property did not constitute a military objective within the meaning of Article 52 of
Additional Protocol I and (4) the act or omission is perpetrated with intent to destroy the
cultural or religious property. 279

Reckless disregard of the substantial likelihood of destruction or damage to

religious institutions will also satisfy the mens rea of the offence in art 3(d).280

Article 3(d) of the Statute criminalises only those prohibited acts which result in
the destruction or damage of the object protected.281

The destruction or damage to a religious institution must be sufficiently serious to

constitute desecration.282 The seriousness should be measured more by the spiritual value
of the property than the material extent of the damage or destruction. 283

For Article 3(d) of the Statute to apply, the perpetrator of the crime must act with
intent to destroy the protected property. 284

forced labour

See Article 5—crimes against humanity

hostage taking

Hostage taking applies not only to civilians, but to all persons not taking an active
part in the hostilities.285

The actus reus of hostage taking is the detention of persons and the use of a threat
concerning the detained persons, including a threat to kill, injure or continue to detain, in
order to obtain a concession or gain an advantage. 286

278
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 58;
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 96
279
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 178
280
Prosecutor v Brdjanin No, IT-99-36-T, Judgement (1 September 2004) at para 598.
281
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 175
282
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 63
283
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 63
284
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 176
285
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Six Preliminary Motions Challenging
Jurisdiction (28 April 2009) at para. 60
286
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 468

71
 Unlawful detention is an element of hostage taking.287

Unlawful detention is an element of hostage taking, but the lawfulness of the

confinement or deprivation of liberty does not depend on the circumstances in which any
individual comes into the hands of the enemy but rather depends upon the whole
circumstances relating to the manner in which and the reasons they are held. Thus, the
unlawfulness of the detention relates to the idea that civilians or those taking no active
part in hostilities are taken or held hostage not to ensure their safety or to protect them,
but rather to gain an advantage or obtain a concession. The existence of threats or use of
violence against the individuals taken hostage are other factors to take into account to
assess the lawfulness of their detention.288

Unlawful detention is not an element of the crime of hostage taking. 289

The lawfulness of the detention does not depend on on the circumstances in which
any individual comes into the hands of the enemy, but rather depends on the whole
circumstances relating to the manner in which, and reasons why, they are held. 290

Since Common Article 3 provides a minimum protection for all conflicts,

international or internal, its prohibition on hostage taking cannot be read to be limited to
civilians, as it is in Article 2. Hostage taking applies to all persons not taking a direct part
in the hostilities. 291

Even if the UN personnel were combatants immediately before their detention,

they were rendered "hors de combat" by virtue of their detention and thus were entitled to
the minimum protections guaranteed by Common Article 3. 292

Because the essential feature of the offence of hostage-taking is the use of a threat
to detainees to obtain a concession or gain an advantage, which may happen at any time
during the detention, the requisite intent may be formed at the time of the detention or it
may be formed at some later time, after the person has been detained. 293

Hostage taking prohibition applies to all persons who are detained regardless of
whether they were combatants or civilians. 294

287
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Six Preliminary Motions Challenging
Jurisdiction (28 April 2009) at para. 65
288
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3216
289
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 659
290
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Six Preliminary Motions Challenging
Jurisdiction (28 April 2009) at para. 65
291
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Appeal of Trial Chamber’s Decision on
Preliminary Motion to Dismiss Count 11 of the Indictment (9 July 2009) at para. 22
292
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Motion for Judgement of Acquittal (28 June
2012) at p. 28735
293
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 468
294
Prosecutor v Karadzic, No. IT-95-5/18-AR73.9, Decision on Appeal of Denial of Motion for Judgement
of Acquittal for Hostage Taking (11 December 2012) at para. 21

72
 mens rea

The mens rea required for hostage-taking is the intention to compel a third party
to act or refrain from acting as a condition for the release of the detained persons. 295

The prosecution accepted that they were required to prove that the accused knew
or had reason to know of the factual circumstances of the conflict, and did prove that
knowledge. 296

It must be proven that the perpetrator was aware or should have been aware that
the victim was a person not taking an active part in the hostilities. The prosecution must
show that no reasonable person could have believed the victim was a combatant. 297

Once he knew that they were detained – irrespective of their involvement in

hostilities prior to their capture or surrender – a reasonable trier of fact could have
concluded that the accused knew that they were not taking an active part in the
hostilities. 298

The erroneous belief that detained combatants are not entitled to Common Article
3 protections is not a defence should the elements of hostage-taking be met.299

murder

See Article 5--murder

nexus

The crime need not be committed in the same place as the armed conflict so long
as the crimes were closely related to hostilities occurring in parts of the territories
controlled by the parties to the conflict. Such a relation exists as long as the crime is
“shaped by or dependent upon the environment – the armed conflict – in which it is
committed. 300

For the applicability of Article 3 of the Statute two preliminary requirements must
be satisfied. First, there must have been an armed conflict at the time the offences were
allegedly committed. Secondly, there must be a close nexus between the armed conflict
and the alleged offence, meaning that the acts of the accused must be “closely related” to

295
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 468
296
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 295
297
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 36; Prosecutor v
Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 78; Prosecutor v Prlic et al, No. IT-04-
74-T, Judgement (29 May 2013) at vol. 1 para. 143
298
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 800
299
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 468
300
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 536;
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para.26

73
the hostilities. The existence of an armed conflict must, at a minimum, have played a
substantial part in the perpetrator’s ability to commit it, his decision to commit it, the
manner in which it was committed or the purpose for which it was committed.301

When determining the nexus between the armed conflict and the offence, factors
to be considered include: (1) whether the perpetrator is a combatant; (2) whether the
victim is a non-combatant; (3) whether the victim is a member of the opposing party; (4)
whether the act may be said to serve the ultimate goal of a military campaign, and (5)
whether the crime is committed in the context of or as part of the perpetrator’s official
duties. 302

For Article 3 to apply, the crime charged must be committed in a time of armed
conflict and an accused’s acts must be closely related to that conflict. The nexus need not
be a causal link, but the existence of an armed conflict must, at a minimum, have played a
substantial part in the perpetrator’s ability to commit the crime, his decision to commit it,
the manner in which it was committed or the purpose for which it was committed. If it
can be established that the perpetrator acted in furtherance of or under the guise of the
armed conflict, it would be sufficient to conclude that his acts were closely related to the
armed conflict. To find a nexus, it is sufficient that the alleged crimes be closely related
to the hostilities occurring in other parts of the territories controlled by the parties to the
conflict. Article 3 crimes need not be committed in the area of armed conflict, but must at
least be “substantially related” to this area, which at least includes the entire territory
under control of the warring parties. It is essential, however, that a Trial Chamber
establish the existence of a geographical and temporal linkage between the crimes
ascribed to the accused and the armed conflict. 303

The offence need not be carried out in the context of military action. It is
sufficient if the offence is closely linked to the hostilities.304

outrages upon personal dignity

The determination of what constitutes a war crime is dependent on the

development of the laws and customs of war at the time when an act charged in an
indictment was committed. The laws of war are not static, but by continual adaptation
follow the needs of a changing world. There is no question that acts such as rape, torture

301
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 215; Prosecutor v
Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 29; Prosecutor v Oric, No. IT-03-68-T,
Judgement (30 June 2006) at para. 253, 256; Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and
Sentence (27 September 2006) at para. 846; Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement
(12 June 2002) at para. 55
302
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 91; Prosecutor v
Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 59
303
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 342; Prosecutor v Kunarac et
al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 58; Prosecutor v Hadzihasanovic & Kubura,
No. IT-01-47-T, Judgement (15 March 2006) at para. 16; Prosecutor v. Mrkši et al.,No. IT-95-13/1-T,
Judgement (27 September 2007) at para 423
304
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 62

74
and outrages upon personal dignity are prohibited and regarded as criminal under the
laws of war and that they were already regarded as such at the time relevant to these
Indictments.305

The crime of outrages upon personal dignity requires; (1) that the accused
intentionally committed or participated in an act or an omission which would be
generally considered to cause serious humiliation, degradation or otherwise be a serious
attack on human dignity; (2) that he knew that the act or omission could have that
effect.306

Outrages upon personal dignity are constituted by “any act or omission which
would be generally considered to cause serious humiliation, degradation or otherwise be
a serious attack on human dignity.” 307

Murder in and of itself cannot be characterised as an outrage upon personal

dignity. Murder causes death, which is different from concepts of serious humiliation,
degradation or attacks on human dignity. The focus of violations of dignity is primarily
on acts, omissions, or words that do not necessarily involve long-term physical harm, but
which nevertheless are serious offences deserving of punishment. 308

In regard to the mens rea, the crime of outrages upon personal dignity requires
only the knowledge of the “possible” consequences of the charged act or omission. 309

plunder

Plunder is all forms of unlawful appropriation of property in armed conflict for

which individual criminal responsibility attaches under international criminal law,
including those acts traditionally described as “pillage”. 310

There is some doubt as to whether acts of plunder, in and of themselves, rise to

the level of gravity required for crimes against humanity. 311

Plunder is a crime which protects important values and whether the breach of
these values involves grave consequences for the victims must be determined on a case-
by-case basis. 312

Plunder is committed when private or public property is appropriated intentionally

and unlawfully. 313

305
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 67.
306
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 161
307
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 163
308
Prosecutor v Kvocka et al, No. IT-98-30/1-T, Judgement (2 November 2001) at para. 172
309
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 165
310
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.79
311
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 148
312
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 46

75
 Plunder of private or public property is prohibited in both international and
internal armed conflicts and is not limited to occupied territories. 314

Plunder requires grave consequences to the victim, which may be measured by

the monetary value of the property. However, plunder can be committed where
appropriations take place vis a vis a large number of people, even though the
consequence to each individual is not grave. 315

The mens rea for plunder is established when the perpetrator acts with the
knowledge and intent to acquire property unlawfully, or when the consequences of his
action are foreseeable.316

In certain circumstances, appropriation of property may not be regarded as

unlawful where it can be justified under international humanitarian law. Under
international humanitarian law, there is a general exception to the prohibition of
appropriation of property when the appropriation is justified by military necessity. In the
context of an international armed conflict, treaty law and international customary law
justify battlefield seizures of military equipment of the adverse party as war booty. 317

The principle of “war booty” is an exception to the appropriation of property. In

an internal conflict, one must look to the law in the national jurisdiction to determine the
application of this exception.318

In the context of an actual or looming famine, a state of necessity may be an

exception to the appropriation of property. Food and livestock may be appropriated if it
is shown that (1) there was a real and imminent threat of severe and irreparable threat to
life existence; (2) the acts of plunder may have been the only means to avoid the harm;
(3) the acts of plunder were not disproportionate; and (4) the situation was not voluntarily
brought about by the perpetrator himself. 319

313
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.84;
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 49
314
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-AR73.3, Decision on Joint Defence
Interlocutory Appeal on Trial Chamber Decision on Rule 98 bis Motions for Acquittal (11 March 2005) at
para. 37; Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.78;
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 101
315
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.82-83;
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 55;
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 103
316
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 50
317
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1779
318
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at paras. 51-52;
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 102
319
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 53

76
 The “grave consequences” requirement was satisfied by the overall effect of the
various incidents of plunder on the civilian population and the multitude of offenses
committed.320

protected persons

Under Article 3, it must be established that the victim was a person taking no
active part in the hostilities. 321 It is the specific situation the moment the crime was
committed which controls. 322 Factors to be considered include (1) whether the victim
was carrying weapons; (2) clothing; (3) age; and (4) gender. 323

The principle contained in Article 50(1) of Additional Protocol I that in cases of

doubt a person shall be considered a civilian is limited to the expected conduct of a
member of the military. In contrast, when the criminal responsibility of an accused is at
issue, the prosecution bears the burden of proof concerning the civilian status of
victims. 324

There is an unconditional and absolute prohibition on the targeting of civilians in

customary international law. Any attack directed at the civilian population is
prohibited, regardless of the military motive. 325

The victim must not have been participating in acts of war which by their nature
and purpose are intended to cause actual harm to the personnel or equipment of the
enemy’s armed forces in order to be considered a person not directly taking part in
hostilities. 326

Since members of the armed forces of a party to a conflict are legitimate military
objectives, they may be targeted even when not actively participating in hostilities. 327

However, if the victim was a combatant, or even with respect to a victim not
directly taking part in hostilities, the killing of such person would not be a war crime if
the person was killed as the incidental result of an attack which was proportionate to the
anticipated and concrete military advantage. 328

320
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1787
321
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 176; Prosecutor v
Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 3; Prosecutor v Oric, No. IT-03-68-T,
Judgement (30 June 2006) at para. 258; Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at
para.47
322
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 47; Prosecutor v Halilovic,
No. IT-01-48-T, Judgement (16 November 2005) at para. 34
323
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 34
324
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 522
325
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 906
326
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 178; Prosecutor v Perisic, No.
IT-04-81-T, Judgement (6 September 2011) at para. 93
327
Prosecutor v Djordjevic, No. IT-05-87/1-T, Judgement (23 February 2011) at para. 2054
328
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 179

77
 Driver for President of Municipal Crisis staff, who was also military reservist,
was not a person directly taking part in hostilities at the time of the offence.329

In determining that the victim was not taking an active part in the hostilities, the
Trial Chamber correctly relied on evidentiary findings that the victim was in civilian
clothes at the time of his death; that he was not a militia member; and that his father’s
house (the house he was killed in) was not used as a militia checkpoint.330

In determining that the victim was not taking an active part in the hostilities, the
Trial Chamber correctly relied on evidentiary findings that the victim was detained and
severely mistreated before he was shot dead; that he was unarmed and among a very
large group of well-armed police; and even though the detaining forces may have thought
he was attempting to escape, the hopelessness of his position was obvious and his
conduct did not present a real threat of escape. 331

Common Article 3 protects all persons taking no active part in hostilities,

including those placed hors de combat through detention. Thus, even if some of these
victims had been participating actively in hostilities prior to their detention, as soon as
they were detained by the BSF, they would have ceased to be taking an active part in
hostilities and thus would have come under the protection of Common Article 3. 332

Even if the evidence demonstrated that the Srebrenica enclave was never fully
demilitarised, that there had been combat activity shortly before the executions began,
and that ABiH members were hiding amongst the civilians in the enclave, a reasonable
trier of fact could still have reached, as the only reasonable inference, the Trial
Chamber’s conclusion that all the persons killed were detained in the hands of the BSF at
the moment of their deaths and hence were victims of murder under Article 3. 333

In determining that the victim was not taking an active part in the hostilities, the
Trial Chamber correctly relied on evidentiary findings that the victim was in the custody
of police members; wore civilians clothes; and the only weapon found in his house was a
light shotgun for hunting birds which had not been used or moved.334

Since the Bosnian Muslim men from the column or who had been separated from
their families at Potocari had been killed after their surrender or capture and during the
period of their detention, they were not taking an active part in hostilities at the time the
crimes were committed.335

reprisals

329
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 185
330
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 81.
331
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 96.
332
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 794
333
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 796
334
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 102.
335
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 794

78
 Reprisals may only be used as a last resort and when all other means have been
proven to be ineffective. 336

Reprisals must be effected only after a warning has been given and not heeded.337

The decision to take reprisals must be made at the highest political or military
338
level.

Reprisals must be proportionate to the initial violation. 339

Reprisals must cease as soon as they have put an end to the violations which
provoked them. 340

Reprisals must be excercised, to the extent possible, in keeping with the

protection of the civilian population and the general prohibition against targeting
civilians. 341

Existence of peace negotiations at time of shelling of Zagreb demonstrates that

not all possibilities had been exhausted as required for a justified reprisal. 342

scope

Article 3 covers violations which are based on treaties as well as violations which
are based upon customary international law. When a treaty provision is violated, it
makes no difference whether the violation was prohibited by customary international
law. 343

Article 3 of the Statute is not limited to the protection of property. 344

Article 3 is a residual clause which gives the Tribunal jurisdiction over any
serious violation of international humanitarian law not covered by Articles 2, 4, or 5 of
the statute. In order to fall within this residual jurisdiction, the offence must meet the
following criteria: (1) it must constitute and infringement of a rule of international
humanitarian law; (2) the rule infringed on must be customary in nature or covered by a
treaty binding on the parties at the time that conforms with international law; (3) the
violation must be serious—breach of a rule having important values and having grave
consequences for the victims; and (4) the violation of the rule must entail individual

336
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 466
337
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 466
338
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 466
339
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 467
340
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 467
341
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 467
342
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 468
343
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.41
344
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 118

79
criminal responsibility under customary or conventional law. These conditions must be
fulfilled whether the crime is expressly listed in Article 3 of the Statute or not.345

Acts such as rape, torture and outrages upon personal dignity are prohibited and
regarded as criminal under the laws of war. 346

A violation of the rule prohibiting attacks on civilian objects meets all of the
criteria for prosecution under Article 3. 347

Crimes committed anywhere in the territory under the control of a party to the
conflict, until a peaceful settlement of the conflict is achieved, fall within the jurisdiction
of the Tribunal. 348

The fact that a State is acting in lawful self-defence (just ad bellum) is irrelevant
for a determination as to whether a representative of this State has committed a serious
violation of international humanitarian law during the exercise of the State’s right to self-
defence which constituted part of an armed conflict (jus in bello).349

The legitimate character of an operation does not exclude an accused’s criminal

responsibility for planning, instigating and ordering crimes committed in the course of
this operation. 350

terror

customary law

The prohibition of terror against the civilian population as enshrined in Article

51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II, is a part of
customary international law, 351 and customary international law imposed individual
criminal liability for violations. 352

345
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 218; Prosecutor v
Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 30; Prosecutor v Oric, No. IT-03-68-T,
Judgement (30 June 2006) at para. 257; Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence
(27 September 2006) at para. 842; Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June
2002) at para. 66
346
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 67
347
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 226
348
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at para. 70; Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30
November 2005) at para. 84; Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 255;
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 57; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 15
349
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 51.
350
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 172.
351
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 90
352
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 98

80
 elements

The elements of “terror” are: (1) Acts or threats of violence directed against the
civilian population or individual civilians not taking direct part in hostilities causing
death or serious injury to body or health within the civilian population; (2) The offender
willfully made the civilian population or individual civilians not taking direct part in
hostilities the object of those acts of violence; (3) The above offence was committed with
the primary purpose of spreading terror among the civilian population. 353

actus reus

The definition of the actus reus of the crime of terror suggested by the
Prosecution, notably “acts capable of spreading terror”, does not necessarily imply grave
consequences for the civilian population and thus does not per se render the violation of
the said prohibition serious enough for it to become a war crime within the Tribunal’s
jurisdiction.354

Psychological impact on the population of Sarajevo also satisfies the required

gravity threshold. 355

The actual infliction of terror is not an element of the crime of terror against the
civilian population. The Trial Chamber did not err in so defining the elements of the
offence, despite the allegation in the indictment of the infliction of terror. 356

The actual terrorisation of the civilian population is not an element of the crime of
unlawful infliction of terror. However, evidence of actual terrorisation may contributeto
establishing other elements of the crime of terror.357

Acts of terror do not include legitimate attacks against combatants.358

Acts of sniping and shelling undoubtedly fall within the scope of “acts of
violence” contemplated under the definition of the crime of acts or threats of violence the
primary purpose of which is to spread terror among the civilian population. 359

The actus reus of the crime of unlawful infliction of terror consists of acts or
threats of violence directed against the civilian population or individual civilians not
taking direct part in hostilities causing death or serious injury to body or health within the
civilian population. 360

353
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 875
354
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 34
355
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 35
356
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 73
357
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 563-64
358
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 464
359
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 106
360
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at fn. 5882

81
 Causing death or serious injury to body or health represents only one of the
possible modes of commission of the crime of terror, and thus is not an element of the
offence per se. What is required is that the victims suffered grave consequences resulting
from the acts or threats of violence; such grave consequences include, but are not limited
to death or serious injury to body or health. 361

The crime of terror is not limited to direct attacks against civilians, but may also
include indiscriminate or disproportionate attacks to threats thereof. Similarly, acts and
threats of violence do not include legitimate attacks against combatants but only unlawful
attacks against civilians. While the nature of the acts or threats of violence may vary, the
important element is that the acts or threats of violence are committed with the specific
intent to spread terror among the civilian population. 362

According to customary international law applicable both in international and

non-international armed conflicts, the parties to the conflict must allow and facilitate
rapid and unimpeded passage of humanitarian relief for civilians in need, which is
impartial in character and conducted without any adverse distinction, subject to their right
of control. The applicable international humanitarian law did not oblige the VRS to allow
passage of consignments of humanitarian aid for the benefit of the ABiH, or of military
equipment under the guise of humanitarian aid. Such consignments were deprived of
their impartial character.363

mens rea

The crime of terror is a “specific intent crime”. The mens rea of the crime of terror
consists of a general intent and a specific intent. The general intent is that the offender
must have wilfully made the civilian population or an individual civilian the object of
acts or threats of violence. The specific intent is “spreading terror among the civilian
population.” 364

The mens rea of the crime of acts or threats of violence the primary purpose of
which is to spread terror among the civilian population is composed of the specific intent
to spread terror among the civilian population. The purpose of the unlawful acts or threats
to commit such unlawful acts need not be the only purpose of the acts or threats of
violence. The fact that other purposes may have coexisted simultaneously with the
purpose of spreading terror among the civilian population would not disprove this charge,
provided that the intent to spread terror among the civilian population was principal
among the aims. Such intent can be inferred from the circumstances of the acts or threats,
that is from their nature, manner, timing and duration.365

361
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 33
362
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 877; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1774
363
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 615
364
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12December 2007) at para. 878
365
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 104

82
 While the actual infliction of death or serious harm to body or health is a required
element of the crime of terror …the actual infliction of ‘terror’ on the civilian
population is not an element of the crime. The fact that the civilian population suffered
and experienced terror during an armed conflict may, however, serve as corroboration of
the intent to terrorize.366

The mens rea of the war crime of unlawful infliction of terror on civilians as a
violation of the laws or customs of war includes the specific intent to spread terror among
the civilian population.367

The mens rea of the crime of terror consists of the intent to make the civilian
population or individual civilians not taking direct part in hostilities the object of the acts
of violence or threats thereof, and of the specific intent to spread terror among the civilian
population. While spreading terror must be the primary purpose of the acts or threats of
violence, it need not be the only one.both the actual infliction of terror and the
indiscriminate nature of the attack were reasonable factors for the Trial Chamber to
consider in determining the specific intent of the accused. 368

Other purposes of the unlawful acts or threats may have coexisted simultaneously
with the purpose of spreading terror among the civilian population, provided that the
intent to spread terror among the civilian population was principal among the aims. 369

The specific intent for this offence is the intent to spread terror among the civilian
population.370

Such intent can be inferred from the nature, manner, timing and duration of the
acts or threats.371

The specific intent of the crime of terror can be inferred from the circumstances of
the acts or threats of violence, that is, from their nature, manner, timing and duration.
Attacks during cease-fires and truces or long-term and persistent attacks against civilians,
as well as indiscriminate attacks, may be taken as indicia of the intent to spread terror.
The specific intent may also be inferred from the site of the attack 372.

The crime of terror requires the same legal elements as the crime of unlawful
attacks against civilians. However, it is different from the crime of unlawful attacks
against civilians in that it requires the additional mental element of the “primary purpose
of spreading terror.” The crime of terror, therefore, constitutes an “aggravated”, more
serious form of, unlawful attack on civilians. 373

366
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 880
367
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 424
368
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 37
369
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 424
370
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 460
371
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 424, 1774
372
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 881
373
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 882

83
 It must be established that the terror goes beyond the fear that is only the
accompanying effect of the activities of armed forces in armed conflict. The prohibition
of spreading terror among a civilian population must therefore always be distinguished
from the effects that acts of legitimate warfare can have on a civilian population.
Therefore, the circumstances of a particular armed conflict must be taken into account in
determining whether the crime of terror has been committed, or whether the perpetrators
intended to “spread terror among a civilian population.” 374

The crime of terror shares the same elements with the crime of unlawful attacks
against civilians, except for the additional requirement that to constitute terror it must be
established that the acts were committed with the primary purpose of spreading terror
among the civilian population. It follows, therefore, that the acts which the Trial Chamber
found to have constituted terror must a fortiori also constitute unlawful attacks against
civilians and civilian population. 375

Considering the Trial Chamber's findings that the Bosnian Croat Army had a
military interest in the destruction of the Old Bridge and that it was a military target, no
reasonable trier of fact could have found, beyond reasonable doubt, that the Bosnian
Croat Army had the specific intent to commit terror.376

Trial Chamber’s finding that the Bosnian Croat Army had the specific intention to
spread terror among the civilian population of and committed acts of violence, the main
aim of which was to inflict terror on the population was insufficient where no similar
findings were made in the individual criminal responsibility section to clarify whether the
accused shared this specific intent.377

Despite not explicitly finding that the accused had the specific intent to spread
terror, the Trial Chamber considered that he had extensive knowledge of, and accepted
nearly all, the underlying acts that the Trial Chamber earlier considered demonstrated the
Bosnian Croat Army’s specific intent to spread terror. Therefore, a reasonable trier of fact
could be satisfied beyond reasonable doubt - and as the only reasonable inference
available - that the accused intended that the acts of violence be committed with the
primary purpose of spreading terror among the civilian population. 378

timing

International humanitarian law applies from the initiation of such armed conflicts
and extends beyond the cessation of hostilities until a general conclusion of peace is
reached, or in the case of internal conflicts, a peaceful settlement is achieved. 379
374
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12December 2007) at para. 878
375
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 953
376
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 425
377
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1778
378
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1788
379
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 255; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 14

84
 torture

elements

The elements of torture are: (1) an act or omission inflicting severe pain or
suffering whether physical or mental; (2) the act or omission must be intentional; and (3)
the act or omission must have been carried out with a specific purpose such as to obtain
information or a confession, to punish, intimidate, or coerce the victim or a third person,
or to discriminate, on any ground, against the victim or a third person. 380

The Trial Chamber correctly identified the following elements of the crime of
torture in a situation of armed conflict:(i) the infliction, by act or omission, of severe pain
or suffering, whether physical or mental; (ii) this act or omission must be intentional;
(iii) it must aim at obtaining information or a confession, or at punishing,
intimidating, humiliating or coercing the victim or a third person, or at
discriminating, on any ground, against the victim or a third person; (iv) it must be
linked to an armed conflict; and (v) at least one of the persons involved in the
torture process must be a public official or must at any rate act in a non-private
capacity, e.g., as a de facto organ of a State or any other authority-wielding
entity.381

actus reus

An act or omission may constitute the actus reus of torture if it has caused severe
pain or suffering. It is not required that the injury be permanent, or even physical. 382

In order to constitute torture, the accused’s act or omission must give rise to
"severe pain or suffering, whether physical or mental." 383

The intimidating and humiliating aspects of a scene (The rubbing of a knife

against a woman's thighs and stomach, coupled with a threat to insert the knife into her
vagina) and their devastating impact on the physical and mental state of a witness can be
serious enough to amount to torture.384

Factors determining the seriousness of the act include: (1) the nature and context
of the infliction of pain; (2) the premeditation and institutionalization of the ill-treatment;
(3) the physical condition of the victim; (3) the manner and the method used; (4) the
position of inferiority of the victim; (5) the physical and mental effect of the treatment on

380
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 235
381
Prosecutor v Furundzija, No.IT-95-17/1-T, Judgement (21 July 2000) at para. 111
382
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 236; Prosecutor v
Haridanaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para.417
383
Prosecutor v Furundzija, No.IT-95-17/1-T, Judgement (21 July 2000) at para. 111
384
Prosecutor v Furundzija, No.IT-95-17/1-T, Judgement (21 July 2000) at para. 113-114

85
the victim; (6) the victim’s age, sex, and state of health; and (7) the specific social,
cultural, and religious background of the victims. 385

mens rea

The mens rea of torture requires that the perpetrator intended to act in a way,
which, in the normal course of events, would cause severe pain and suffering, whether
mental or physical. 386

The act must have been carried out with the specific purpose of obtaining
information or a confession, or to punish, intimidate, or coerce the victim or a third
person, or to discriminate, on any ground, against the victim or a third person.387

Torture is distinguished from other offences in that it aims, through the infliction
of severe mental or physical pain, to attain a certain result or purpose. This includes,
albeit not exhaustively, the purpose to obtain information or a confession, to punish,
intimidate or coerce the victim or a third person, or to discriminate, on any ground,
against the victim or a third person. In the absence of these purposes or goals, even very
severe infliction of pain would not be classified as torture.388

There is no requirement that the severe pain or suffering be inflicted exclusively

for one or more of the purposes mentioned, but only that such a purpose or purposes be
part of the motivation for the conduct.389

Factors relevant to determining whether the perpetrator had the mens rea requisite
for the offence of torture include (1)the nature and duration of the beatings; (2) the
implements used by the perpetrators to inflict suffering; (3) the number of persons
attacking individual victims, the verbal threats and abuse occurring simultaneously with
the beatings; and (4) the threatening atmosphere in which the victims were detained as
they were beaten.390

The evidence did not allow the Trial Chamber to distinguish between beatings
that were inflicted with a specific purpose – which is required to establish the crime of
torture - and beatings that may have been inflicted for reasons of pure cruelty, but not
with a specific purpose. Consequently, the Trial Chamber found in dubio pro reo that the

385
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 237-38; Prosecutor
v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 514; Prosecutor v Haridanaj et
al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 417
386
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 238; Prosecutor v.
Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 515
387
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 239; Prosecutor v.
Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 679
388
Prosecutor v Haridanaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 418
389
Prosecutor v Haridanaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 418
390
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 531

86
specific purpose necessary for torture had not been established beyond reasonable
doubt391.

Whether the perpetrator had a different motivation is irrelevant provided that he

acted with the requisite intent. Further, the act or omission must have been carried out
with a specific purpose. This includes, albeit not exhaustively, the purpose to obtain
information or a confession, to punish, intimidate or coerce the victim or a third person,
or to discriminate, on any ground, against the victim or a third person. The prohibited
purpose need not be the sole or the main purpose of the act or omission in question. 392

public official

It is not required that the crime of torture be committed by a public official or, in
the case of a plurality of perpetrators, that at least one of the persons involved in the
torture process be a public official. 393

Article 4—genocide

1. The International Tribunal shall have the power to prosecute persons committing
genocide as defined in paragraph 2 of this article or of committing any of the other
acts enumerated in paragraph 3 of this article.
2. Genocide means any of the following acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) imposing measures intended to prevent births within the group;
(e) forcibly transferring children of the group to another group.
3. The following acts shall be punishable:
(a) genocide;
(b) conspiracy to commit genocide;
(c) direct and public incitement to commit genocide;
(d) attempt to commit genocide;
(e) complicity in genocide.

391
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 21
392
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 515
393
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 284; Prosecutor v
Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 240; Prosecutor v. Mrkši et al.,No.
IT-95-13/1-T, Judgement (27 September 2007) at para 515

87
 actus reus

destruction

The Genocide Convention, and customary international law in general, prohibit

only the physical or biological destruction of a human group. An enterprise attacking
only the cultural or sociological characteristics of a human group in order to annihilate
these elements which give to that group its own identity distinct from the rest of the
community would not fall under the definition of genocide.” 394

The term "destroy" in the genocide definition can encompass the forcible transfer
of a population.395 The physical or biological destruction of the group is the likely
outcome of a forcible transfer of the population when this transfer is conducted in such a
way that the group can no longer reconstitute itself – particularly when it involves the
separation of its members. 396

While forcible transfer does not in and of itself constitute a genocidal act, it is a
relevant consideration as part of the overall factual assessment and could be an additional
means by which to ensure the physical destruction of the protected group. 397

In the absence of findings of any long-term consequences of the forcible transfer

operation on the Zepa population and the Bosnian Muslim population of Eastern BiH in
general and of a link between the circumstances of the transfer operation in Zepa and the
physical destruction of the protected group as a whole, no reasonable trial chamber could
have found that the Bosnian Muslims forcibly transferred from Zepa suffered serious
mental harm within the meaning of Article 4(2)(b) of the Statute. 398

Failure to provide adequate accommodation, shelter, food, water, medical care, or

hygienic sanitation facilities will not ordinarily constitute the actus reus of genocide if
the deprivation is not so severe as to contribute to the destruction of the group. 399

When more than one group is targeted, the elements of the crime of genocide
must be considered in relation to each group separately. 400

killing

The actus reus and mens rea required for ‘killing’ in subparagraph 4(2)(a) of the
Statute are identical to those controlling ‘wilful killing’ under article 2 and murder under
articles 3 and 5.401
394
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 25
395
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 665
396
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 666
397
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 209
398
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 217
399
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 863
400
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 541

88
 The required elements are satisfied where (i) the victim is dead; (ii) the death was
caused by an act or omission of the accused, or of a person or persons for whose acts or
omissions the accused bears criminal responsibility; and (iii) the act was done, or the
omission was made, by the accused, or a person or persons for whose acts or omissions
he bears criminal responsibility, with an intention:to kill; or to inflict grievous bodily
harm or serious injury, in the reasonable knowledge that such act or omission was likely
to cause death.402
serious physical harm

The actus reus of serious bodily harm was satisfied by evidence of severe non-
fatal physical violence, including rape, which left the victims with serious injuries. 403

The trauma and wounds suffered by those individuals who managed to survive the
mass executions constitutes serious bodily and mental harm. 404

Causing serious bodily harm’ is understood to mean, inter alia, acts of torture,
inhumane or degrading treatment, sexual violence including rape, interrogations
combined with beatings, threats of death, and harm that damages health or causes
disfigurement or serious injury to members of the targeted national, ethnic, racial or
religious group.405

Serious bodily or mental harm must be of such a serious nature as to contribute or

tend to contribute to the destruction of all or part of the group; although it need not be
permanent or irreversible, it must go beyond temporary unhappiness, embarrassment or
humiliation and inflict grave and long-term disadvantage to a person's ability to lead a
normal and constructive life. 406

There is no additional requirement that the serious bodily or mental harm to

members of the group be of such serious nature as to threaten the destruction of the group
in whole or in part. The degree of threat to the group’s destruction may, however, be
considered as a measure of the seriousness of the bodily or mental harm. 407

Acts of beating and interrogating detainees over four days, escorting them at
gunpoint, and providing them limited food, while infliction of serious bodily harm, was
not of such a serious nature as to contribute, or tend to contribute, to the destruction of
the protected groups to constitute the actus reus of genocide. 408

401
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at paras 381, 689.
402
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at paras 381, 689
403
Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Judgement (11 July 2013) at para. 37
404
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 647
405
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 690.
406
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 201; Prosecutor v Karadzic,
No. IT-95-5/18-T, Judgement (24 March 2016) at para. 543
407
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 544
408
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3450

89
 The harm need not be permanent or irremediable, but needs to be serious. 409

The harm must be inflicted intentionally. 410

While forcible transfer does not of itself constitute an act of genocide, depending
on the circumstances of a given case, it may cause such serious bodily or mental harm as
to constitute an act of genocide under Article 4(2)(b). 411

Article 4(2)(b) refers to an intentional act or omission which causes serious bodily
or mental harm to members of the protected group and requires proof of a result. 412

serious mental harm

Threats of death and knowledge of impending death have been accepted as

amounting to serious mental harm under Article 4 of the Statute.413

Serious mental harm must be lasting, but need not be permanent and
irremediable. 414

The suffering of men separated at Potocari or detained after their surrender or

capture from the column of men leaving Srebrenica, knowing they were likely to be
killed, constituted serious bodily and mental harm as an actus reus of genocide. It was of
such a nature as to contribute or tend to contribute to the destruction of the group in that
their suffering prevented these members from leading a normal and constructive life. 415

The suffering endured by the Bosnian Muslim men prior to being killed
constituted serious mental harm as a separate genocidal act from killing. 416

Mental harm suffered by the survivors of the killings qualified as an act of

genocide. 417

The mental harm suffered by the men who survived arose not only from their
being subjected to the killing operation itself, but also from having subsequently
experienced the horrific circumstances of their escapes.418

409
Prosecutor v. Staki , No. IT-97-24-T, Judgement, (29 October 2003) at para 516; Prosecutor v Brdjanin
No. IT-99-36-T, Judgement (1 September 2004) para 690;
410
Prosecutor v Krstic No. IT-98-33-T, Judgement, (2 August 2001) at para 513 .
411
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 545
412
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 543
413
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 206
414
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 203
415
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at paras. 754-55
416
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 206
417
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 207
418
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at fn. 595

90
 The suffering of women separated from their husbands or sons at Potocari also
constituted serious mental harm as an actus reus of genocide.419

The Appeals Chamber is also not persuaded that the United States of America's
"understanding" of serious mental harm as "the permanent impairment of the mental
faculties of members of the group through drugs, torture, or similar techniques",
expressed in its instrument of accession to the Genocide Convention,is correct under
customary intemational law. 420

Nothing in the Tribunal's jurisprudence or in the Genocide Convention provides

that a forcible transfer operation may only support a finding of genocide if the displaced
population is transferred to concentration camps or places of execution. A forcible
transfer operation may still ensure the physical destruction of the protected group by
causing serious mental harm or leading to conditions of life calculated to bring about the
group's physical destruction, even if the group members are not transferred to places of
execution. 421

The painful separation process from their male family members, the fear and
uncertainty as to their fate and that of their detained male relatives, the appalling
conditions of the journey, the continuation of their profound trauma, as well as the
financial and emotional difficulties they faced in their drastically changed lives following
the forced transfer were proper considerations which supported the conclusion that the
women, children, and elderly who were forcibly transferred from Srebrenica suffered
serious mental harm. 422

The Trial Chamber was entitled to take into account the inability and fears of the
group to return to their former homes, and the post transfer quality of their life in making
an assessment that those who had been forcibly transferred suffered serious mental
harm. 423

Serious mental harm need not result from acts causing permanent or irremediable
mental impairment. It suffices that the harmful conduct caused grave and long-term
disadvantage to the ability of the members of the protected group to lead a normal and
constructive life so as to threaten the physical destruction of the group in whole or in
part.424

unbearable conditions of life

419
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 756
420
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 204
421
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 209
422
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 210
423
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 211
424
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 212

91
 The acts punishable under Article 4(2)(c) are construed as “the methods of
destruction by which the perpetrator does not immediately kill the members of the group,
but which, ultimately, seek their physical destruction”. 425

The destruction of the social structure of the community and the inability of those
who were forcibly transferred to reconstruct their lives did not constitute the conditions
of life deliberately imposed in order to bring about the physical destruction of the group
as required by Article 4, when considered apart from the killings. 426

The actus reus of creating conditions of life designed to bring about the physical
destruction of the group was satisfied by conditions of detention including severe
overcrowding, deprivation of nourishment, and lack of access to medical care. 427

The acts envisaged by this sub-paragraph include, but are not limited to, methods
of destruction apart from direct killings such as subjecting the group to a subsistence diet,
systematic expulsion from homes and denial of the right to medical services. 428

The underlying acts covered by Article 4(2)(c) are methods of destruction that do
not immediately kill the members of the group, but ultimately seek their physical
destruction. Examples of such acts punishable under Article 4(2)(c) include, inter alia,
subjecting the group to a subsistence diet; failing to provide adequate medical care;
systematically expelling members of the group from their homes; and generally creating
circumstances that would lead to a slow death such as the lack of proper food, water,
shelter, clothing, sanitation, or subjecting members of the group to excessive work or
physical exertion.429

Unlike Articles 4(2)(a) and (b), Article 4(2)(c) does not require proof of a result
such as the ultimate physical destruction of the group in whole or in part. However,
Article 4(2)(c) applies only to acts calculated to cause a group's physical or biological
destruction deliberately and, as such, these acts must be clearly distinguished from those
acts designed to bring about the mere dissolution of the group. Such acts, which have
been referred to as "cultural genocide", were excluded from the Genocide Convention.
For example, the forcible transfer of a group or part of a group does not, by itself,
constitute a genocidal act, although it can be an additional means by which to ensure the
physical destruction of a group.430

Contrary to the acts prohibited by Articles 4(2)(a) and 4(2)(b), Article 4(2)(c)
does not require proof of that a result was attained; as such, it does not require proof that
the conditions actually led to death or serious bodily or mental harm of members of the

425
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 546
426
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 854
427
Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Judgement (11 July 2013) at para. 49
428
Prosecutor v. Staki , No. IT-97-24-T, Judgement, (29 October 2003) at para 517; Prosecutor v
Brdjanin, No. IT-99-36-T, Judgement(1 September 2004) at para 691.
429
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 225-26
430
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 225-26

92
protected group. When such “a result is achieved, the proper charge will be paragraphs
(a) or (b)” of Article 4.431

Conviction under sub-paragraph 4(2)(c) does not require proof of the physical
destruction in whole or in part of the targeted group.432

Killings may not be considered, under Article 4(2)( c) of the Statute, as acts
resulting in the deliberate infliction of conditions of life calculated to bring about the
protected group's physical destruction. 433

When the same prohibited acts are charged under both Article 4(2)(b) and Article
4(2)(c), a chamber will consider whether these alleged acts amount to conditions
calculated to bring about physical destruction only when it does not find them to amount
to ‘causing serious bodily or mental harm’. 434

Examples of acts under Article 4(2)(c) include, but are not limited to, subjecting
the group to a subsistence diet; failing to provide adequate medical care; systematically
expelling members of the group from their homes; and generally creating circumstances
that would lead to a slow death such as the lack of proper food, water, shelter, clothing,
sanitation, or subjecting members of the group to excessive work or physical exertion. 435

The different categories of genocidal acts proscribed in Article 4(2) of the Statute
correspond to and aim to capture different methods of physical destruction of a protected
group: subparagraphs (a) and (b) of Article 4(2) of the Statute proscribe acts causing a
specific result, which must be established by the evidence, i.e., killings and serious bodily
or mental harm respectively; on the other hand, subparagraph (c) of the same Article
purports to capture those methods of destruction that do not immediately kill the
members of the group, but which, ultimately, seek their physical destruction. 436

Trial Chamber erred in combining consideration of killings with other methods of

physical destruction when considering whether the actus reus of genocide under Article
4(2)(c) was satisfied. 437

The destruction of historical, cultural and religious heritage cannot be considered

to constitute the deliberate infliction of conditions of life calculated to bring about the
physical destruction of the group. The Trial Chamber committed a legal error in
considering the destruction of mosques in Srebrenica and Zepa under Article 4(2)(c). 438

The forcible transfer operations in Srebrenica and Zepa, viewed separately from

431
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 546
432
Prosecutor v. Staki , No. IT-97-24-T, Judgement, (29 October 2003) at para 517
433
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 227
434
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3453
435
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 547
436
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 228
437
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 229
438
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 230

93
the killings of Srebrenica's male population, were not conducted under circumstances
calculated to result in the total or partial physical destruction of the protected group. 439

There is no doubt that the Bosnian Muslims who were forced to abandon their
houses and belongings in Srebrenica and Zepa and then endured a painful process of
separation from their ancestral land and transferred to other parts of BiH were
traumatised as a result of the transfer and have since faced harsh realities in their new
lives, both financially and psychologically. The record, however, is devoid of any
evidence that the forcible transfers, if they are analysed - as they must - separately
from the killing operation and the destruction of mosques in Srebrenica and Zepa, were
"carried out with a view to the destruction of the group, as distinct from its removal from
the region" at issue (i.e., the enclaves of Srebrenica and Zepa). 440

The Trial Chamber's statement that the forcible transfer and killing operations met
the threshold of Article 4(2)(c) of the Statute because they resulted in conditions of life
aimed at destroying this Bosnian Muslim community and preventing the reconstitution of
the group in this area" reflects an erroneous understanding of the term "physical
destruction" as used in Article 4(2)(c).441

The actus reus of Article 4(2)(c) covers methods of physical destruction, other
than killing, whereby the perpetrator ultimately seeks the death of the members of the
group. There is no evidence on the record that the forcible transfer operations were
carried out in such a way so as to lead to the ultimate death of the displaced Bosnian
Muslims. 442

The destruction of the social structure of the community and the inability of those
who were forcibly transferred to reconstruct their lives are not the kinds of conditions
intended to be prohibited by Article 4(2)(c).443

Article 4(2)(c) applies only to acts that are deliberately calculated to cause a
group’s physical destruction and, as such, these acts must be clearly distinguished from
those acts designed to bring about the dissolution of the group.444

The forcible transfer operations did not deliberately subject the protected group to
conditions of life calculated to destroy it physically. 445

In the absence of direct evidence of whether the conditions of life imposed on the
group were deliberately calculated to bring about its physical destruction, a chamber can
be guided by the objective probability of these conditions leading to the physical
destruction of the group in part. The actual nature of the conditions of life, the length of
439
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 233
440
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 233
441
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at fn. 670
442
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 233
443
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 233
444
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 547
445
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 234

94
time that members of the group were subjected to them, and the characteristics of the
group such as its vulnerability are illustrative factors to be considered in evaluating the
criterion of probability. 446

The persecutory and severe mistreatment demonstrated by the evidence and

reflected in the Trial Chamber's findings did not compel it to find, as the only reasonable
inference, the existence of the deliberate infliction of conditions of life calculated to bring
about the physical destruction of the Bosnian Muslim and Bosnian Croat groups as
such.447

preventing births

The consequence of the forcible transfer operation cannot be said to have

prevented births among the group such as to constitute the actus reus of genocide. 448

complicity

Complicity in genocide requires that genocide was committed.449

Complicity requires a showing of genocidal intent.450

As to the distinction between genocide under article 4(3)(a) and 4(3)(e), generally
the former is concerned with principal offenders, including but not limited to the physical
perpetrators and to those liable pursuant to the theory of JCE, whereas the latter concerns
accomplices to genocide – i.e. those who associate themselves in the crime of genocide
committed by another.451

The relationship between article 4(3) and article 7(1) is such that certain heads of
criminal responsibility in article 4(3) overlap with those in article 7(1): by incorporating
article 4(3) in the Statute, the drafters ensured that the Tribunal had jurisdiction over all
forms of participation in genocide prohibited under customary international law, though
this had the effect of duplicating heads of responsibility otherwise provided for in article
7(1).452

Lack of accused’s awareness of mass murders meant that no reasonable trier of

fact could find that he knew of the genocidal intent of the perpetrators, despite knowledge
of forcible transfers and opportunistic killings in Srebrenica. 453

446
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 548
447
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 709
448
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 767
449
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 638
450
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 142; Prosecutor v Krajisnik,
No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 865
451
Prosecutor v Brdjanin No. IT-99-36-T Judgement (1 September 2004) at para 727.
452
Prosecutor v Brdjanin No. IT-99-36-T Judgement (1 September 2004) at para 726; Prosecutor v Krstic,
No. IT-98-33-A, Judgement on Appeal (19 April 2004) at para 138.
453
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 123

95
 Complicity by command responsibility would be more appropriately pleaded
under genocide, rather than complicity. However, the accused was informed, since the
beginning of the case of the Prosecution’s intention to plead superior responsibility
context of the crime of genocide. The Trial Chamber therefore deems it acceptable to
consider the charge.454

Complicity in genocide under article 4(3)(e) can consist of aiding and abetting
genocide, thought there may be other acts which are not strictly aiding and abetting but
which could amount to complicity: the terms ‘complicity’ and ‘accomplice’ may
encompass conduct broader that aiding and abetting.455

Complicity in genocide, where it consists of aiding and abetting genocide, does

not require proof that the accomplice had the specific intent to destroy, in whole or in
part, a protected group.456 (Note that the Brdjanin Trial Chamber, following the Krstic
Appeals Chamber upon which it relied, took no position on the mens rea requirement for
the offence of complicity where the offence strikes broader than aiding and abetting). 457

Where the offence consists in aiding and abetting the principal perpetrator, the
prosecution must prove ‘that an accused knew that his own acts assisted in the
commission of genocide by the principal offender and was aware of the principal
offender’s state of mind; it need not show that an accused shared the specific intent of the
principal offender’. 458

conspiracy

agreement

Conspiracy to commit genocide is defined as an agreement between two or more

persons to commit the crime of genocide. 459

The actus reus of the criminal act of conspiracy to commit genocide is the act of
entering into an agreement to commit genocide. 460

Genocide and conspiracy to commit genocide are distinct crimes. While the mens
rea for the two crimes is identical - i.e., "the intent to destroy in whole or in part a
national, ethnical, racial or religious group as such, the actus reus is different. The crime

454
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 685
455
Prosecutor v Brdjanin No. IT-99-36-T Judgement (1 September 2004) at para 729; Prosecutor v Krstic,
No. IT-98-33-A, Judgement (19 April 2004) at para 139, Prosecutor v. Tadic, No. IT-94-1-A, Judgement
(15 July 1999) at para 220
456
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para 142; Prosecutor v Brdjanin No.
IT-99-36-T Judgement (1 September 2004) at para 730.
457
See Prosecutor v Brdjanin No. IT-99-36-T Judgement (1 September 2004) at fn 1777.
458
Prosecutor v Brdjanin No. IT-99-36-T Judgement (1 September 2004) at para 730
459
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1184
460
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1184

96
of genocide requires the commission of one of the enumerated acts in Article 4(2) of the
Statute, while the crime of conspiracy to commit genocide requires the act of entering
into an agreement to commit genocide.461

The evidence must establish beyond a reasonable doubt a concerted agreement to

act and not merely similar conduct or the mere showing of a negotiation in progress. 462

inference

While the actus reus of conspiracy to commit genocide can be proved by evidence
of meetings to plan genocide, it can also be inferred from other evidence. In particular, a
concerted agreement to commit genocide may be inferred from the conduct of the
conspirators.463

Conspiracy to commit genocide can be inferred from coordinated actions by

individuals who have a common purpose and are acting within a unified framework. 464

An agreement may be inferred from the conduct of the conspirators, if it is the

only reasonable conclusion to be drawn from the evidence. 465

mens rea

To be found guilty, one must possess the same specific intent required for the
commission of genocide, namely, the intent to destroy, in whole or in part, a national,
ethnic, racial or religious group, as such. 466

continuing offence

Conspiracy is a continuing crime and an individual can join a conspiracy after the
initial agreement is concluded . 467

An individual can join a conspiracy at any time before the crime is completed. 468

inchoate offence

Conspiracy is an inchoate crime and it is not required that a genocide actually was
committed.469

461
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 582
462
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 786
463
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 553; Prosecutor v
Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 587
464
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1184
465
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 786
466
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1184;
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 787
467
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para 876
468
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 785

97
 withdrawal

Withdrawal from a conspiracy does not exonerate a conspirator unless he

produces affirmative and contemporaneous evidence of his withdrawal. 470

mens rea

as such

The words “as such” underscore that something more than discriminatory intent is
required for genocide, that the intent “must be to destroy the group as a separate and
distinct entity” and that the ultimate victim of the crime of genocide is the group. 471

factors

Absent direct evidence of genocidal intent, the scale of the atrocities committed is
one of several factors relevant to determining genocidal intent.472

The intent to destroy a group as such is circumscribed by the area of the

perpetrators' activity and control and the extent of the perpetrators’ reach. 473

Evidence demonstrating ethnic bias, however reprehensible, does not necessarily

prove genocidal intent.474

The use of derogatory language such as the term “balija” is in no way

determinative of a specific intent to commit genocide, though it is relevant to it.475

The Trial Chamber acted within the bounds of the law and its discretion when
contrasting the number of Bosnian Muslims and Bosnian Croats displaced versus those
who were victims of conduct falling within Article 4(2) in assessing whether genocidal
intent had been established. 476

Indications of genocidal intent are “rarely overt”, and thus intent must often be
inferred on the basis of the totality of the evidence, taking into account such factors as the

469
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 582
470
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 785
471
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1177
472
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 727
473
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 727
474
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 52; Prosecutor v Karadzic,
No. MICT-13-55-A, Judgement (20 March 2019) at para. 745
475
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at paras. 1177,
2086
476
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 728

98
scale of atrocities as well as the systematic targeting of victims on account of their
membership in a particular group.477

inferences

Where proof of state of mind is based on inference, it must be the only reasonable
inference available on the evidence. This test is even more stringently applied when
inferring genocidal intent.478

Proof of the mental state with respect to the commission of the underlying act can
serve as evidence from which the fact-finder may draw the further inference that the
accused possessed the specific intent to destroy. 479

Proof of specific intent, may, in the absence of direct explicit evidence, be

inferred from a number of facts and circumstances, such as (1) the general context, (2)
the perpetration of other culpable acts systematically directed against the same group, (3)
the scale of atrocities committed, (4) the systematic targeting of victims on account of
their membership of a particular group, or (5) the repetition of destructive and
discriminatory acts,480 or evidence of a plan or policy.481

Intent to destroy by the physical perpetrators was inferred from the intensity of
the prohibited acts, their widespread and discriminatory nature, and the fact that many
were perpetrated by the same individuals or units. 482

The inference that a particular atrocity was motivated by genocidal intent may be
drawn, moreover, even where the individuals to whom the intent is attributable are not
precisely identified.483

The implication of multiple levels of military command in a genocidal operation

can evidence the systematic nature of the culpable acts and an organised plan of
destruction, which may be relied upon to infer genocidal intent.484

insufficient evidence

The fact that more members of a targeted group could have been killed, but were
not, may indicate a lack of the dolus specialis required to prove such intent. 485

477
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 5825
478
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 576
479
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 20
480
Prosecutor v. Jelisic, No. IT-95-10-A. Judgement (5 July 2001) at para. 47.
481
Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Judgement (11 July 2013) at para. 80; Prosecutor v
Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 246
482
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at paras.3514, 3515, 3519, 3524
483
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 34
484
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 252
485
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 727

99
 There was insufficient evidence indicating why the Bosnian Muslims in each of
the municipalities or the municipalities themselves had a special significance or were
emblematic in relation to the protected group as a whole. As a result it was not the only
reasonable inference that the physical perpetrators possessed the intent to destroy a
substantial part of the Bosnian Muslims in those municipalities. 486

In light of the fact that the forcible transfer operation of Zepa's Bosnian Muslims
had been completed before the three Zepa 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 Zepa 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.487

Despite inflammatory speeches and the commission of serious crimes, it could not
be said that the only reasonable inference that can be drawn from the evidence is that the
crime of genocide formed part of the JCE’s objectives. 488

A reasonable inference is that the accused’s blind dedication to the Security

Service led him to doggedly pursue the efficient execution of his assigned tasks in
this operation, despite its murderous nature and the genocidal aim of his superiors. In
these circumstances the stringent test for specific intent is not met and the Trial Chamber
therefore finds that the accused did not participate in the JCE to Murder with genocidal
intent.489

Where accused removed his men from area of murder operation and wished to
open a corridor for Muslim men to pass, this indicated that he did not have genocidal
intent.490

The Trial Chamber did not err in considering the opening of a corridor to be a
unique departure from the genocidal plan promulgated by the VRS commanders rather
than a factor showing absence of genocidal intent on behalf of the BSF more generally. 491

Where accused was aware of murderous intent of VRS soldiers in Srebrenica,

there was no evidence that he was aware of their specific intent to destroy the Muslims of
Eastern Bosnia as such. Therefore, he could not be found guilty of aiding and abetting
genocide. 492

486
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3535
487
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 269
488
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 4237
489
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1414
490
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1588
491
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 459; Prosecutor v
Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 251
492
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2088

100
 Trial Chamber unable to determine that vast violations of international
humanitarian law in Bosnia were committed by perpetrators possessing the intent to
destroy a substantial part of the Bosnian Muslim group.493

related crimes

The evidence could reasonably be seen as consistent with the conclusion that the
accused merely intended to displace, but not to destroy, the Bosnian Muslim group. To be
sure, he was willing to employ means to this end that ensured that some members of the
group would be killed and others brutalised, and this was surely criminal – but not
necessarily genocidal, absent evidence proving beyond a reasonable doubt that he sought
the destruction of the group as such. 494

The fact that the forcible transfer operation does not constitute, in and of itself, a
genocidal act does not preclude a Trial Chamber from relying on it as evidence of the
intentions of those individuals involved. 495

A trial chamber may rely on the act of forcible transfer as evidence of genocidal
intent, regardless of the destination of the transfer. 496

saving victims

Evidence of limited and selective assistance to a few individuals does not

preclude a trier of fact from reasonably finding the requisite intent to commit genocide. 497

specific intent

As a specific intent offense, the crime of genocide requires proof of intent to

commit the underlying act and proof of intent to destroy the targeted group, in whole or
in part.498

The specific intent requires that the perpetrator seeks to achieve the destruction, in
whole or in part, of a national, ethnical, racial or religious group, as such. However, the
existence of a plan or policy is not a legal requirement of the crime. It is not sufficient
that the perpetrator simply knew that the underlying crime would inevitably or likely
result in the destruction of the group. The destruction, in whole or in part, must be the
aim of the underlying crimes.499

There is a difference between motive and intent. An accused may have had a goal
of destroying a protected group, but it must be proven that he intended to achieve his
493
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 869
494
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 56
495
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 254
496
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 254
497
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 629
498
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 20
499
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 656

101
goal through particular actions, including killing and imposing of inhumane conditions of
life, which amounted to genocide.500 The existence of a personal motive does not
preclude the perpetrator from also having the specific intent to commit genocide. 501

A finding that the accused participated in the killing operation with the specific
intent to discriminate is not on its own sufficient to establish the specific intent for
genocide. 502

in whole or in part

The intent requirement of genocide is satisfied where evidence shows that the
alleged perpetrator intended to destroy at least a substantial part of the protected group. 503

The intent to destroy a group, even if only in part, means seeking to destroy a
distinct part of the group as opposed to an accumulation of isolated individuals within
it.504

The intent requirement in article 4 is satisfied where evidence shows that the
alleged perpetrator intended to destroy at least a substantial part of the selected group.
The determination of whether the targeted group is substantial enough to meet this
requirement may involve a number of considerations, including: the numeric size of the
targeted part of the group (both absolute and relative); the prominence within the group
of the targeted part of the group, and the area of the perpetrators’ activity and control as
well as the possible extent of their reach. 505

Although the substantiality requirement is textually indicated in the provision

describing the specific intent required for genocide, i.e. the requirement that there must
exist an “intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such”, it is the objective, contextual characteristics of the targeted part of the
group, including, inter alia, its numeric size relative to the total size of the group, that
form the basis for determining whether the targeted part of the group is substantial. 506

Despite the fact that the Bosnian Muslims of Srebrenica constituted only 2 % of
the Bosnian Muslim population, in light of the significant strategic importance of
Srebrenica due to its close geographical proximity to Serbia and its status as a refuge to
Bosnian Muslims, the Bosnian Muslims in Srebrenica constituted a substantial part of the

500
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 45
501
Prosecutor v. Jelisic, No. IT-95-10-A. Judgement (5 July 2001) at para. 49.
502
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1177
503
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 12
504
Prosecutor v Krstic, No. IT-98-33-T Judgement (2 August 2001) at at para 590, Prosecutor v. Staki ,
No. IT-97-24-T, Judgement, (29 October 2003) at at para 524; Prosecutor v Brdjanin No. IT-99-36-T
Judgement (1 September 2004) at para 700.
505
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at paras 12-14; Prosecutor v Brdjanin
No. IT-99-36-T Judgement (1 September 2004) at paras 701-2.
506
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 422

102
Bosnian Muslim population of Bosnia-Herzegovina.507

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.508

If 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. 509

The selective targeting of leading figures of a community may amount to

genocide and may be indicative of genocidal intent.510

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 aims at ensuring that the protective scope of the
crime of genocide encompasses the entire group, not just its leaders. 511

No conviction for genocide has ever been entered by the Tribunal, or other
international criminal tribunals, on the basis of the selective targeting of a protected
group's leadership. 512

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. 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. 513

A finding that Zepa's Bosnian Muslims lost three of their leaders 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. 514

plan or policy

A plan or policy is not a legal ingredient of the crime of genocide. 515

507
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3554
508
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 261
509
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 261
510
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 263
511
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 263
512
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at fn. 781
513
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 264
514
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 267
515
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 431; Prosecutor v
Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 830

103
 The existence of a plan or policy is not a legal ingredient of the crime of
genocide. However, in the context of proving specific intent, the existence of a plan or
policy may become an important factor. The evidence may be consistent with the
existence of a plan or policy, or may even show such existence, and the existence of a
plan or policy may facilitate proof of the crime. 516

protected group

The protected group cannot be defined negatively, such as “all non-Serbs”, but the
elements of genocide must be separately considered in relation to each targeted group,
such as Bosnian Muslims and Bosnian Croats.517

There is nothing in the definition of genocide prohibiting, a conviction where the

perpetrator killed detained military personnel belonging to a protected group because of
their membership in that group.518

A national, ethnical, racial or religious group is identified by using as a criterion

the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of
its perceived national, ethnical, racial or religious characteristics. 519

The correct determination of the relevant protected group has to be made on a

case-by-case basis, consulting both objective and subjective criteria. This is so because
subjective criteria alone may not be sufficient to determine the group targeted for
destruction and protected by the Genocide Convention, for the reason that the acts
identified in subparagraphs (a) to (e) of Article 2(4) must in fact be directed against
“members of the group”. 520

Because evidence of intent to destroy may be inferred from an accused’s actions

or utterances vis-à-vis the targeted group, it is impossible to establish with certainty
whether the accused possessed the necessary intent to destroy if the target group itself has
not been defined. 521

Article 5—crimes against humanity

The International Tribunal shall have the power to prosecute persons responsible
for the following crimes when committed in armed conflict, whether international or
internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
516
Prosecutor v. Jelisic, No. IT-95-10-A. Judgement (5 July 2001) at para. 48; Prosecutor v Krstic, No. IT-
98-33-A, Judgement (19 April 2004) at para. 225
517
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 28
518
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 226
519
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 667
520
Prosecutor v Brdjanin No. IT-99-36-T Judgement (1 September 2004) at para 684
521
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 18

104
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.

armed conflict

The crimes must be committed in armed conflict, whether international or internal

in character.522

It is not necessary that a state of armed conflict exist in the State of the former
Yugoslavia in which the crime was committed. The prosecution can succeed in
prosecuting a crime against humanity committed in Vojvodina by proving that the crime
occurred while an armed conflict in Croatia and/or Bosnia was in progress. 523

A crime is part of the armed conflict even if no actual combat is taking place
there, so long as there is combat on the territory of the States involved in the conflict. 524

The “armed conflict” requirement is a purely jurisdictional prerequisite which is

satisfied by proof that there was an armed conflict and that objectively the acts of the
accused are linked geographically as well as temporally with the armed conflict. 525

No nexus must be shown under Article 5 between the armed conflict and the acts
of the accused.526

An armed conflict and/or an occupation took place between October 1992 and
April 1994 in the municipalities relevant to the Indictment. The widespread and
systematic attack itself commenced in May 1992, that is, several months prior to the
outbreak of the armed conflict, and continued until April 1994. However, inasmuch as
acts committed between May and September 1992 did not occur during an armed
conflict, the prerequisite for the exercise of the Tribunal‟ s jurisdiction to adjudicate

522
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at para 142; Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement
(17 January 2005) at para.542; Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27
September 2006) at para. 704; Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Several Motions
Challenging Jurisdiction (19 March 2007) at para. 45; Prosecutor v. Milosevic, No. IT-98-29/1-T,
Judgment (12 December 2007) at para. 915
523
Prosecutor v Seselj, No. IT-03-67-AR72.1, Decision on the Interlocutory Appeal Concerning
Jurisdiction (31 August 2004); Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at
para.
524
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 704
525
Prosecutor v Kunarac et al, No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 83; Prosecutor v.
Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 915; Prosecutor v Seselj, No. MICT-
16-99-A, Judgement (11 April 2018) at para. 75
526
Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Several Motions Challenging Jurisdiction
(19 March 2007) at para. 31

105
crimes against humanity committed during that time has not been satisfied.527

attack

elements

In order to amount to a crime against humanity, the acts of an accused must be

part of a widespread or systematic attack directed against any civilian population. This
phrase encompasses the following elements: (i) there must be an attack; (ii) the attack
must be widespread or systematic; (iii) the attack must be directed against any civilian
population; (iv) the acts of the perpetrator must be part of the attack; and (v) the
perpetrator must know that his acts constitute part of a pattern of widespread or
systematic crimes directed against a civilian population and know that his acts fit into
such a pattern.528

existence

The “attack” is a course of conduct involving the commission of acts of violence.

It is not limited to the use of armed force; it encompasses any mistreatment of the civilian
population and can precede, outlast or run parallel to the armed conflict. 529

The acts of the perpetrator must be part of the attack on the civilian population. 530

When assessing whether an attack against a particular civilian population occurred,

it is not relevant whether the other side also committed atrocities against its opponent’s
civilian population. Evidence of this nature is not relevant unless it tends to prove or
disprove any of the allegations made in the Indictment, particularly to refute the
allegation that there was a widespread or systematic attack against a civilian population.
Such an allegation cannot be disproved by a submission that the other side is responsible
for starting the hostilities. 531

nexus

527
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 paras. 652-53
528
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.541; Prosecutor
v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 181; Prosecutor v Kunarac et al,
No. IT-96-23&23/1, Judgement (12 June 2002) at para. 85
529
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.543; Prosecutor
v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 666; Prosecutor v Limaj et
al, No. IT-03-66-T, Judgement (30 November 2005) at para. 182; Prosecutor v Krajisnik, No. IT-00-39-T,
Judgement and Sentence (27 September 2006) at para. 706; Prosecutor v Kunarac et al, No. IT-96-
23&23/1, Judgement (12 June 2002) at para. 86; Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11
April 2018) at para. 69
530
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 478
531
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 917

106
 Once the requirement of a widespread or systematic attack against a civilian
population is fulfilled, there must be a nexus between the acts of the accused and the
attack itself. 532

Such a nexus consists of two elements: (i) the commission of an act which, by its
nature or consequences, is objectively part of the attack; coupled with (ii) knowledge on
the part of the accused that there is an attack on the civilian population and that his act is
part thereof. Thus, to convict an accused of crimes against humanity, it must be proven
that his acts were related to a widespread or systematic attack against a civilian
population and that he knew that his acts were so related. Such an assessment will be
made on a case-by-case basis. 533

The act or acts must not be isolated or random; they may not be so far removed
from the attack that, having considered the context and circumstances in which it
occurred, the act or acts cannot reasonably be said to have been part of the attack. The
nexus between the crime and the attack must demonstrate that objectively, it was part of
the attack; and that the accused knew that there is an attack on the civilian population and
that his act is part thereof.534

The required nexus between the acts of the perpetrator and the attack consists of
two elements: (i) the commission of an act which, by its nature and consequences, is
objectively part of the attack; together with (ii) knowledge on the part of the perpetrator
that there is an attack on the civilian population and that his act is part thereof. 535

The nexus between the acts of extermination and the widespread and systematic
attack on a civilian population is fulfilled by an act which, by its nature or consequences,
is objectively part of the attack, coupled with knowledge on the part of the accused that
there is an attack on the civilian population and that his act is part thereof. 536

The acts of the accused do not necessarily have to be contemporaneous with the
attack on the civilian population to meet the nexus requirement.537

Where the perpetrators of the crimes knowingly directed their actions against
members of the Croatian forces (e.g., non-civilians), the Appeals Chamber found no
nexus between these acts and the widespread and systematic attacks committed against
the civilian population two days earlier within the same geographical area, by the same
perpetrators and under like sentiments of animosity towards the perceived enemy. 538

532
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 41
533
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 41
534
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.547; Prosecutor
v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 190; Prosecutor v Kunarac et al,
No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 100
535
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 918-919
536
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 570
537
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 41
538
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 42, 43

107
 While the acts of the perpetrator must be “part of” the attack against the civilian
population, they need not be committed in the midst of that attack. A crime “which is
committed before or after the main attack against the civilian population or away from it
could still, if sufficiently connected, be part of that attack.539

The crime must not, however, be an isolated act. A crime would be regarded as an
’isolated act’ when it is so far removed from that attack that, having considered the
context and circumstances in which it was committed, it cannot reasonably be said to
have been part of the attack.” 540

If the other elements are established, the fact that the accused acted against the
victim for personal reasons does not exonerate him.541

widespread or systematic

“Widespread” refers to the cumulative effect of a series of inhumane acts or the

singular effect of an inhumane act of extraordinary magnitude. 542 “Widespread” refers to
the large-scale nature of the attack and the number of targeted persons. 543

“Systematic” refers to organised acts of violence and is often expressed through

patterns of crimes. 544 “Systematic” refers to the organized nature of the acts of violence
and the improbability of their random occurrence. 545

Only the attack, not the individual acts of the accused, need be widespread or
systematic.546 A single or limited number of acts may constitute a crime against
humanity, unless those acts are said to be isolated or random. 547

A Trial Chamber must first identify the population which is the object of the
attack and, in light of the means, methods, resources and result of the attack upon the
population, ascertain whether the attack was indeed widespread or systematic. 548

An attack against a civilian population may be classified as systematic even where

some members of that civilian population are not targeted.549

539
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 918-919
540
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 918-919
541
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 260.
542
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.544
543
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 94;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 183; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 57
544
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.544
545
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 94;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 183; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 57
546
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 94;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 189
547
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 94
548
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 95

108
 Factors to be considered to determine if an attack is “widespread or systematic”
are: the consequences of the attack upon the targeted population, the number of victims,
the nature of the acts, the possible participation of officials or authorities or any
identifiable patterns of crimes. Neither the attack nor the acts of the accused need to be
supported by a policy or plan.550

Proof of a policy or plan is relevant to whether there was a widespread or

systematic attack, but is not a requirement.551

Trial Chamber could not include crimes for which the KLA was not identified as
the perpetrators, or crimes committed for reasons pertaining to the victims personally,
rather than against them as members of the civilian population when determining whether
an attack was widespread or systematic. 552

Trial Chamber could not draw any conclusion on whether there was an attack on
the civilian population from the mere fact that many Serbian civilians left their home
during this period.553

Animosity among factions in Kosovo may have caused individuals belonging to

one faction to commit crimes against the other faction out of personal anger rather than in
a structured or organized manner.554

Crimes against Serbs and other minorities in Kosovo were not on such a scale or
frequency to conclude that there was an attack on the civilian population. Therefore,
accused could not be convicted of crime against humanity. 555

Crimes against Albanians in Kosovo were widespread and systematic. 556

The acts constituted a widespread attack inasmuch as they were committed

extensively – the acts were committed on the territory of eight BiH municipalities over a
period of two years, from May 1992 until April 1994 – and resulted in thousands of
victims. Moreover, these acts of violence were similar in every one of the municipalities
concerned and were carried on in an organised fashion by the military and political forces
of the HVO. For this reason, the attack was also systematic in nature 557
549
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 247
550
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.546; Prosecutor
v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 184; Prosecutor v Krstic, No. IT-
98-33-A, Judgement (19 April 2004) at para. 225; Prosecutor v Kunarac et al, No. IT-96-23&23/1,
Judgement (12 June 2002) at para. 95
551
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 706;
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para 117
552
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 114
553
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 120
554
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 121
555
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 122
556
Prosecutor v Djordjevic, No. IT-05-87/1-T, Judgement (23 February 2011) at para. 1598
557
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 646

109
 chapeau elements—mens rea

context

The relationship between the accused and the crimes/underlying offence must be
sufficiently direct or proximate such that the individual intended that the offence be
committed, inherent in four forms of responsibility provided in the Statute: commission,
planning, ordering, and instigating. Thus, the forms of responsibility without intent (ie
aid and abetting) are not CAH. Thus in order to convict for CAH, someone must have
knowledge of the context in which the crime/underlying offence occurred.558

As the civilian status of the victims is only a jurisdictional requirement and not an
element of the crime, the Chamber believes that it is sufficient for the perpetrator to have
been aware of the factual circumstances that established the status of the victim.559

details

Knowledge of certain events, not necessarily every individual attack, is sufficient

to warrant the conclusion that the perpetrator had notice of the wider context and nature
of the crimes. 560

discriminatory intent

Crimes against humanity do not require proof of a discriminatory intent. Such an

intent must be proved only for those crimes for which it is an express requirement, that is
the various types of persecution falling under Article 5(h) of the Statute. 561

elements

The mens rea for crimes against humanity requires proof of the accused’s: (i)
intent to commit the underlying offence or offences with which he is charged; (ii)
knowledge that there is an attack against the civilian population; and (iii) knowledge that
his acts comprise part of that attack.562 The mens rea requirement, however, does not
entail knowledge of the details of the attack. Furthermore, the accused need not share the
purpose or the goal behind the attack.563

558
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 158.
559
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 460
560
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 929
561
Prosecutor v Aleskosvski, No IT-95-14/1-T, Judgement (24 March 2000) at para. 23
562
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.548; Prosecutor
v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 100; Prosecutor v Kunarac
et al, No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 101
563
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.548; Prosecutor
v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 706; Prosecutor v.
Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 929

110
 The perpetrator must know that there is a widespread or systematic attack on the
civilian population and know that his acts comprise part of that attack. 564

multiple motivations

The perpetrator may act for purely personal reasons, so long as he knows that
there is a widespread or systematic attack against the civilian population and that his act
is part of that attack.565

Evidence that he committed the acts for purely personal reasons could be
indicative of a rebuttable assumption that he was not aware that his acts were part of that
attack.566

Comment of the accused that “100 should be killed for every 1” could not be
determined to mean a reprisal quota against civilians or killings in combat situations.
The principle of in dubio pro reo must be applied to favor the interpretation favoring the
accused. 567

recklessness

The mens rea for attacks on civilians incorporates the concept of recklessness, but
not mere negligence. 568

The accused must have known of the attack against the civilian population and
that his acts comprised part of the attack, or at least must have taken the risk that his acts
were part thereof.569

It is error to define the mens rea of crimes against humanity in terms of an

accused “knowingly taking the risk that his acts was part of the overall attack. The
accused must know that there is an attack on the civilian population and that his acts form
part of that attack.570

The widespread character and nature of the crimes inevitably created an

awareness in the principal perpetrators that an attack as described above existed and that

564
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 389; Prosecutor v
Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 479
565
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 706;
Prosecutor v Kunarac et al, No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 103; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 75
566
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 103
567
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 691
568
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Preliminary Motions (29 August 2005) at para. 22
569
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 271
570
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Prosecution’s Motion for Leave to File an Amended
Indictment (14 September 2007) at para. 33

111
their acts were part of it.571

whose intent matters

In a JCE case, it is sufficient that either the principal perpetrators or those on the
ground on whose behest they were acting, i.e. who were commanding them during the
operations, were aware that their acts comprised part of a larger attack against the civilian
population in the region. 572

If the physical perpetrator of an underlying offence is not the accused, his mental
state is not necessarily determinative and thus, if the non-accused physical perpetrator is
not aware of the context of his crimes, but his superior or an intermediary perpetrator is,
these crimes could still constitute crimes against humanity. 573

However, in situations where neither the physical nor the intermediary perpetrator
knows of the context of his offences and the person with knowledge of this context is too
far removed from the commission of the offence for such knowledge to be relevant --
like an aider and abettor, or the mental state of the person is legally irrelevant to the
establishment of the crime, such as a superior who could only be liable under Article 7(3)
-- the Chamber considers that in such circumstances an offence should not qualify as a
crime against humanity. 574

civilian population

definition

A population is considered to be a civilian population under Article 5 of the

Statute if it is predominantly civilian in nature.575

The civilian population comprises all persons who are civilians and the presence
within the civilian population of individuals who do not come within the definition of
civilians does not deprive the population of its civilian character. 576

A “civilian population” can include members of resistance groups or former

combatants who have laid down their arms if it is predominantly civilian in nature. 577

571
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3047
572
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 275
573
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 156.
574
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 157.
575
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 474; Prosecutor v Seselj,
No. MICT-16-99-A, Judgement (11 April 2018) at para. 69
576
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgement (12 December 2007) at para. 922; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 69
577
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.544; Prosecutor
v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 186; Prosecutor v Galic, No. IT-98-
29-A, Judgement (30 November 2006) at para. 144

112
 In order to determine whether the presence of soldiers within a civilian population
deprives the population of its civilian character, the number of soldiers, as well as
whether they are on leave, must be examined. 578

The prohibition against attacking civilians is absolute . One side in a conflict

cannot claim that its obligations are diminished or non-existent just because the other side
does not respect all of its obligations. 579

It is not relevant that the other side also committed atrocities against its
opponent’s civilian population.580

Whereas jurisprudence accepts that the attack requirement for crimes against
humanity allows for the presence of non-civilians in the population that is the target of
the widespread or systematic attack, there is nothing to suggest that a crime, listed under
Article 5 of the Statute, would qualify as a crime against humanity if the victims were
non-civilians. 581

For the purposes of Article 5 of the Statute, the victims of the underlying crime
must be civilians. If the victims are non-civilians, the more appropriate charge is war
crimes. This is a proper and specific requirement for the application of Article 5, which
takes into account the historical origins and development of crimes against humanity as a
category distinct from war crimes.582

directed against civilian population

The attack need not be directed at the civilian population in the whole area under
consideration. 583

Whereas the civilian status of the victims, the number of civilians, and the
proportion of civilians within a civilian population are factors relevant to the
determination of whether the chapeau requirement of Article 5 of the Statute that an
attack be directed against a “civilian population” is fulfilled, there is no requirement nor
is it an element of crimes against humanity that the victims of the underlying crimes be
“civilians”.584

The phrase “directed against” is an expression which “specifies that in the context
of a crime against humanity the civilian population is the primary object of the attack”. In
determining this, consideration will be taken of; (1) the means and method used in the
course of the attack; (2) the status of the victims; (3) their number; (4) the discriminatory
nature of the attack; (5) the nature of the crimes committed in its course; (6) the
578
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 115
579
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 69
580
Prosecutor v Kunarac et al, No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 87
581
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 462.
582
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 462.
583
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 706
584
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at paras. 31, 32

113
resistance to the assailants at the time and (7) the extent to which the attacking force may
be said to have complied or attempted to comply with the precautionary requirements of
the laws of war.585

The civilian status of the victims and the proportion of civilians within a population
are factors relevant to satisfy the chapeau requirement that an attack was directed against
a “civilian population”, yet it is not an element of the crimes against humanity that
individual victims of the underlying crimes be “civilians”. 586

There is no requirement nor is it an element of a crime against humanity that the

victims of the underlying crime be civilians or predominantly civilians, provided the acts
form part of a widespread or systematic attack directed against a civilian population.587

To satisfy the jurisdictional requirement of Article 5 of the Statute, crimes against

humanity must be committed as part of a widespread attack against a civilian population.
This does not imply, however, an additional requirement that civilians be the sole target
of the crimes.588

The targeting of a select group of civilians, such as political opponents, cannot

satisfy the requirements of Article 5. It is sufficient, however, to show that enough
individuals were targeted in the course of the attack, or that they were targeted in such a
way as to demonstrate that attack was in fact directed against the civilian population as
opposed to a limited and randomly selected group of individuals. 589

It was not established that the attacks of the KLA were directed against a civilian
population, although attacks against civilians did occur. 590

The numerous incidents of murder, torture, and cruel treatment of civilians,

including in detention camps, the overall atmosphere of violence, fear, and intimidation
created by Serbian forces as well as the methods used in the course and aftermath of
attacks on towns and villages inhabited by non-Serbians clearly show the existence of a
widespread and systematic attack directed against the non-Serbian civilian population in
large areas of Croatia and Bosnia and Herzegovina.591

No reasonable trier of fact could have concluded that there was no widespread or

585
Prosecutor v Kunarac et al, No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 91 Prosecutor v.
Milosevic, No. IT-98-29/1-T, Judgement (12 December 2007) at para. 921; Prosecutor v Seselj, No. MICT-
16-99-A, Judgement (11 April 2018) at para. 69
586
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 58
587
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 142; Prosecutor v Popovic
et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 774
588
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 28
589
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 187; Prosecutor v
Kunarac et al, No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 90; Prosecutor v. Milosevic, No.
IT-98-29/1-T, Judgment (12 December 2007) at para. 924
590
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 228
591
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 70

114
systematic attack against the non-Serbian civilian population in Croatia and in Bosnia and
Herzegovina. 592

The fact that the SRK forces may have been weaker than the ABiH is not relevant
to the conclusion as to whether the SRK attacks were directed against the civilian
population.593

The fact that people not belonging to the targeted group were affected by attacks
of the Serbian forces against the Kosovo Albanian population does not deprive such
conduct of its discriminatory character.594

Military objectives are limited to those objects which by their nature, location,
purpose, or use make an effective contribution to military action and whose total or
partial destruction, capture, or neutralization, in the circumstances, ruling at the time,
offers a definite military advantage. 595

hors d’combat

In wartime conditions it is inevitable that individuals belonging to the category of

combatants become intermingled with the civilian population, for example, soldiers on
leave visiting their families. However, provided that these are not regular units with fairly
large numbers, this does not in any way change the civilian character of a population. 596

During the assaults launched on the towns and villages of the municipalities
relevant to the Indictment, the HVO set fire to houses belonging to Muslims, took their
belongings and destroyed many institutions dedicated to religion. In addition, the arrests
by the HVO of both Muslim men of military age – regardless of whether they were
members of the armed forces – and women, children and elderly people. For this reason,
the population targeted by the attack was civilian. 597

The specific situation of the victim at the time the crimes are committed may not
be determinative of his civilian or non-civilian status. If he is indeed a member of an
armed organization, the fact that he is not armed or in combat at the time of the
commission of crimes, does not accord him civilian status. 598

The reference to civilians in Article 5 of the Statute is not intended to reflect

Common Article 3 of the Geneva Conventions, thus including persons not taking an
active or a direct part or who have ceased to take part in hostilities, such as persons
placed hors de combat. There is insufficient evidence in the proposition that the notion of

592
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 71
593
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 74
594
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 203
595
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 337
596
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 923
597
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 648
598
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 113-14; Prosecutor v Martic,
No. IT-95-11-T, Judgement (12 June 2007) at para. 55

115
crimes against humanity has expanded under international law, so as to include crimes
against combatants.599

The term “civilian” in Article 5 of the Statute must be interpreted within the
meaning of Article 50 of Additional Protocol I, thereby excluding combatants or persons
hors de combat. Under Article 3 of the Statute, however, the status of the victim at the
time of the offense may be relevant to its designation as civilian or not. 600

Persons hors de combat may be victims of crimes of humanity under Article 5

even if they are not considered “civilians” for purposes of the chapeau requirement.601

A distinction must be made between persons hors de combat and civilians. While
both may be victims of the underlying crimes, for purposes of the element of an attack on
the civilian population, persons hors de combat should not be included.602

deportation

defence of necessity

International law recognises certain grounds permitting forced removals, and that
if an act of forced removal is carried out on such a basis, that act cannot constitute the
actus reus of the crime of deportation.603

Displacement may be allowed under international law if carried out for the
security of the people involved or imperative military reasons. In such cases, the
displacement must be carried out in such a manner so as to ensure that displaced persons
are able to return to their homes as soon as the situation permits. 604

Evacuation is an exceptional measure which is permitted when, for example, the

area is in danger because of military operations or is liable to be subjected to intense
bombing, or when the presence of persons in the area hampers military operations. 605

Discussions concerning the population leaving towns after an attack could be

interpreted as relating to a lawful consensus on helping civilians temporarily depart from
an area of conflict for reasons including legitimate military advantage and casualty
reduction.606

599
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 460.
600
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 35
601
Prosecutor v Martic, No. IT-95-11-A, Judgement (8 October 2008) at para. 313
602
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at fn. 416
603
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 284
604
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 725;
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 901
605
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 901
606
Prosecutor v Gotovina et al, No, IT-06-90-A, Judgement (16 November 2012) at para. 93

116
 Displacement for humanitarian reasons, such as epidemics or natural disasters, is
justifiable, unless the accused’s own activity caused the humanitarian crisis. 607

The fact that the people expelled were nationals of an enemy state was not a valid
defence to deportation or forcible transfer where the means of expulsion were by
unlawful attack on civilians and civilian objects. 608

elements

The actus reus of deportation is the forced displacement of persons by expulsion

or other forms of coercion from the area in which they are lawfully present, across a de
jure state border or, in certain circumstances, a de facto border, without grounds
permitted under international law. The mens rea of the offence does not require that the
perpetrator intend to displace the individual across the border on a permanent basis. 609

forcible

The definition of deportation requires that the displacement of persons be forced,

carried out by expulsion or other forms of coercion such that the displacement is
involuntary in nature, and the relevant persons had no genuine choice in their
displacement. Factors other than force itself may render an act involuntary, such as taking
advantage of coercive circumstances. It is the absence of genuine choice that makes
displacement unlawful. Therefore, while persons may consent to (or even request) their
removal, that consent must be real in the sense that it is given voluntarily and as a result
of the individual’s free will, assessed in the light of the surrounding circumstances. 610

It is the consent of each individual and not of a collective group or official

authorities deciding on behalf of a group, that determines the voluntariness or otherwise
of a transfer.611

The term “forced”, when used in reference to the crime of deportation, is not to be
limited to physical force but includes the threat of force or coercion, such as that caused
by fear of violence, duress, detention, psychological oppression or abuse of power against
such person or persons or another person, or by taking advantage of a coercive
environment.612

607
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 903;
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 287; Prosecutor v Martic, No.
IT-95-11-T, Judgement (12 June 2007) at para. 109
608
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1748
609
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 278; Prosecutor v Dordevic,
No. IT-05-87/1-A, Judgement (27 January 2014) at para. 154; Prosecutor v Seselj, No. MICT-16-99-A,
Judgement (11 April 2018) at fn. 538
610
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 279; Prosecutor v Martic,
No. IT-95-11-T, Judgement (12 June 2007) at para. 108
611
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 921
612
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 281

117
 Fear of violence, duress, detention, psychological oppression and other such
circumstances may create an environment where there is no choice but to leave, thus
amounting to forcible displacement of people. 613

The military component of the column which left Srebrenica were not the victims
of a forced displacement because they had a genuine choice to remain and fight, or to
surrender. However, the civilian component of the column had no genuine choice and
therefore were the victims of forced displacement.614

Men who were transferred to sites where they were executed were not the victim
of forcible transfer, since the intent was to execute them, rather than to transfer them. 615

The participation of an NGO in facilitating displacements does not in and of itself

render an otherwise unlawful transfer lawful. 616

Trial Chamber was unable to conclude that shelling of towns was not aimed at
military targets, that the shelling was intended to force the population to flee, and that
persons fled because of the shelling, as opposed to other reasons. Therefore, as to some
areas, it could not enter a conviction for forcible transfer or deportation due to shelling. 617

Persons who witnessed crimes by Croatian soldiers and left their homes were
victims of forcible displacement, since the crimes created an environment where the
persons had no choice but to leave. Persons who left before the crimes but became aware
of them were also victims of forcible displacement as they were unable to return. 618

Certain persons could not be said to be forcibly displaced where the evidence left
open the reasonable conclusion that they may have left because of the fear of violence
commonly associated with armed conflict, or general distrust of the forces. 619

Displacement of people pursuant to an agreement among political or military

leaders, or under the auspices of international organizations, does not make it
voluntary.620

international border

Deportation as a crime against humanity under Article 5(d) of the Statute requires
that individuals be transferred across a state border or, in certain circumstances, a de facto

613
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 724
614
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at paras. 927,929
615
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 933
616
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 286
617
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para.1755
618
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1756
619
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1762
620
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 724

118
border.621 The question whether a particular de facto border is sufficient for the purposes
of the crime of deportation should be examined on a case by case basis in light of
customary international law. 622

In the case of deportation, not only must the victims end up across a border but it
must be the act of the accused which determines that destination. It must be as a result of
the force—the act of the accused—that the persons are displaced across a border. For the
crime of deportation it is not sufficient to prove force on the part of the accused and the
ultimate location of the victims across a border. The prosecution must also establish the
link between the two elements. To do otherwise is to leave a constituent element of the
crime related not to the acts of the accused but to chance or, in many cases, to a choice
made by a victim. 623

Customary international law does not support a finding that “constantly changing
frontlines ” may amount to de facto borders sufficient for the purposes of the crime of
deportation.624

Displacement of persons from Kosovo to Montenegro did not constitute

deportation since a de facto border does not exist between entities of a sovereign state
regardless of the autonomy enjoyed by those entities. 625

Displacement of civilian populations across constantly changing frontlines does

not constitute the crime of deportation under customary international law, but may still
amount to forcible transfer. The civilian population of Srebrenica and Zepa did not cross
a de facto border when crossing from the territory of Republika Srpska to areas under
Bosnian Muslim control. 626

Where some residents chose to cross the border to Serbia, it is the intention of the
perpetrator which determines whether the crime was deportation or forced transfer.
Absent an intent to expel someone across a border, the crime would be classified as
forcible transfer.627

Deportation and forcible transfer may be committed without regard to whether the
party is occupying the territory from which the deportations or transfers take place. 628

lawfully present

621
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 289; Prosecutor v Krajisnik,
No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 723
622
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 300
623
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 893
624
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 302
625
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 535
626
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 173
627
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at paras. 959-61
628
Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Several Motions Challenging Jurisdiction
(19 March 2007) at para. 56

119
 The words “lawfully present” should be given their common meaning and should
not be equated to the legal concept of lawful residence. Whether an individual has lived
in a location for a sufficient period of time to meet the requirements for residency or
whether he or she has been accorded such status under immigration laws is irrelevant.629

Soldiers were lawfully present in Zepa even if the enclave was required to be
demilitarized and could be the victim of forced transfer or deportation. 630

mens rea

It is unclear whether the goals and rhetoric of President Tudman's speeches

concerning the driving out of the Serbs from the Krajina could be attributed to the JCE's
membership, or considered illustrative of its common purpose.631

Evidence of policy and legal attempts to prevent the return of Serb civilians who
had left the Krajina is also insufficient to justify the Trial Chamber's view that a JCE to
permanently remove Serb civilians by force or threat of force existed. The fact that
Croatia adopted discriminatory measures after the departures of Serb civilians from the
Krajina does not demonstrate that these departures were forced. 632

In the factual context of this case, departures of civilians concurrent with lawful
artillery attacks cannot be qualified as deportation. 633

Deportation does not require an intent that the deportees should not return. 634 The
correct legal standard is an intent to transfer persons on a non-provisional basis. 635

The mens rea of deportation is to forcibly displace the persons. The intent to
permanently displace the persons need not be proven. 636

. The mens rea required for deportation is the intent to forcibly displace the
population across a de jure or de facto border.637

The Prosecution must prove that the accused had the intent to displace,
permanently or otherwise, the victims across the relevant national border.638

629
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 900
630
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 957
631
Prosecutor v Gotovina et al, No, IT-06-90-A, Judgement (16 November 2012) at para. 94
632
Prosecutor v Gotovina et al, No, IT-06-90-A, Judgement (16 November 2012) at para. 95
633
Prosecutor v Gotovina et al, No, IT-06-90-A, Judgement (16 November 2012) at para. 114
634
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 307
635
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 319
636
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 726;
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 905
637
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 493
638
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 164; Prosecutor
v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para.904

120
 enslavement

Whether a particular phenomenon is a form of enslavement will depend on the

operation of the factors or indicia of enslavement identified by the Trial Chamber. These
factors include; (1) control of someone’s movement; (2) control of physical environment;
(3) psychological control; (4) measures taken to prevent or deter escape; (5) force; (6)
threat of force or coercion; (7) duration; (8) assertion of exclusivity; (9) subjection to
cruel treatment and abuse, (10) control of sexuality and (11) forced labour.639

Enslavement flows from claimed rights of ownership. Lack of consent does not
have to be proved by the Prosecutor as an element of the crime of enslavement. However
it may be of evidential relevance in establishing the element of the crime relating to the
exercise by the accused of any or all of the powers attaching to the right of ownership.
Circumstances which render it impossible to express consent may be sufficient to
presume the absence of consent.640

The duration of the enslavement is not an element of the crime. The question
turns on the quality of the relationship between the accused and the victim. The duration
of the relationship is one of the indicia used to determine whether the quality of the
relationship allows for the exercise of any or all of the powers attaching to the right of
ownership. 641

The required mens rea consists of the intentional exercise of a power attaching to
the right of ownership. It is not specifically required to prove that the accused intended to
detain the victims under constant control for a prolonged period of time in order to use
them for sexual acts.642

extermination

aggregation of victims

Certain Scheduled Incidents did not satisfy the requirement of mass scale given
the significantly low numbers of people killed in each incident, the absence of any other
circumstances indicating that the killings were on a mass scale and the fact that the
incidents were not sufficiently connected to other incidents with regard to time,
geographical proximity or through affiliation of the perpetrators so as to aggregate them
for the purposes of assessing the mass scale requirement. 643

639
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para 119
640
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 120
641
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 121
642
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 122
643
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at paras. 3085, 3096, 3106

121
 It is not necessary that a large number of killings occurred during a single incident
in a concentrated place over a short period. Extermination may also be found on an
accumulation of separate and unrelated incidents, meaning on an aggregated basis. 644

In assessing whether the extermination element of mass scale was established the
Trial Chamber considered the number of deaths in each incident and the circumstances
surrounding the deaths, including the selection of the victims, the time and place of the
killings, and the manner in which the killings were carried out.645

Separate killing incidents may be aggregated for the purpose of meeting the “large
scale requirement” if the killings are considered to be part of one and the same
operation.646

Killings of more than 50 men in and around school over two day period, by a
broad mix of perpetrators killing in a sporadic fashion, were not grouped together either
in numerical terms or were patterned killings targeting the wider group held at the school.
Therefore, the killings were isolated incidents which, although related in a broad fashion,
do not meet the mass scale requirement.647

Collective consideration of distinct events committed in different locations, in

different circumstances, by different perpetrators, over an extended period of time cannot
satisfy the requirement of killing on a large scale. 648

aiding and abetting

Contribution to murder of 10 persons during Srebrenica events did not rise to the
level of making a substantial contribution to extermination and therefore the requirements
for aiding and abetting extermination were not met.649

elements

The elements of extermination are: a) act or omission that results in the death of
persons on a massive scale, and b) the intent to kill persons on a massive scale, or to
inflict serious bodily injury or create conditions of life that lead to the death in the
reasonable knowledge that such act or omission is likely to cause the death of a large
number of persons. 650

644
Prosecutor v Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 107
645
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3069
646
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1022
647
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3109
648
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1022
649
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2078
650
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.572

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 The elements of extermination consume the elements of murder plus the fact that
the killings take place on a large scale and the perpetrator intended this result by his
acts.651

Relevant factors for extermination include but are not limited to: (i) the time and
place of the killings; (ii) the selection of the victims and the manner in which they were
targeted; (iii) the type of victims; (iv) whether the killings were aimed at the collective
group rather than victims in their individual capacity; and (v) the population density of
the victims’ area of origin. 652

The actus reus of extermination is “the act of killing on a large scale.” The actus
reus also includes “subjecting a widespread number of people or systematically
subjecting a number of people to conditions of living that would inevitably lead to
death”. The mens rea required for extermination is that the accused intended, by his acts
or omissions, either killing on a large scale, or the subjection of a widespread number of
people, or the systematic subjection of a number of people, to conditions of living that
would lead to their deaths.653

mens rea

Although extermination did occur in 8 municipalities Trial Chamber was not

satisfied that the possibility that these killings at a mass scale could be committed in
execution of the common plan was sufficiently substantial so as to be foreseeable to
Minister of Interior Mico Stanisic. The evidence concerning CSB Chief Stojan Zupljanin
was different. Zupljanin had knowledge of the murders committed by some of his
subordinate forces against the non-Serb civilian population and nevertheless continued to
task these forces for operations involving the non-Serb population. The evidence
presented by the Prosecution in relation to Mico Stanisic was not sufficient for the
Chamber to come to the same conclusion with regard to the crime of extermination. 654

Proof of intent to commit mass murder against “civilians” is not required for the
mens rea of extermination. The mens rea for extermination is the intent to kill on a
massive scale as part of a widespread or systematic attack directed against a civilian
population.655

The mens rea for extermination to “(i) kill on a large scale” can be met by
establishing the mens rea for murder as a crime against humanity – i.e. the intent to: (i)
kill the victim; or (ii) wilfully cause serious bodily harm which the perpetrator should
reasonably have known might lead to death--plus the additional intention to do so on a

651
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 716;
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 62
652
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1022
653
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 259; Prosecutor v Martic,
No. IT-95-11-T, Judgement (12 June 2007) at para. 62
654
Prosecutor v Stanisic & Zupljanin, No. 08-91-T, Judgement (27 March 2013) at para. 775
655
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 142

123
large scale. 656

number of victims

There is no minimum number of victims to constitute extermination. The element

of massive scale must be assessed on a case -by-case basis. 657 A vast scheme of
collective murder or vast murderous enterprise need not be proven. 658

While there may be a higher threshold for a finding of extermination in a densely-

populated area, it would not be inappropriate to find extermination in a less densely-
populated area on the basis of a lower threshold, that is, fewer victims. 659

Killings in Serb Krajina were not of sufficient number to constitute

extermination.660

Almost the entire Muslim population of Koritnik perished in the Pionirska Street
Incident.1587 In these circumstances, the killing of 59 persons amounted to
extermination as a crime against humanity. 661

The assessment of “large scale” is made on a case-by-case basis, taking into

account the circumstances in which the killings occurred. Relevant factors include, inter
alia: the time and place of the killings; the selection of the victims and the manner in
which they were targeted; and whether the killings were aimed at the collective group
rather than victims in their individual capacity. 662

No reasonable trial chamber could have found that the killings of the three Zepa
leaders were part of the same attack against the civilian population or of "a single
deliberate, organised, large-scale operation to murder Bosnian Muslim males" thereby
fulfilling the requirement of "large scale" and constituting extermination. Those three
killings were "isolated acts". Therefore, the extermination conviction must be reversed
insofar as it relates to the three Zepa leaders. 663

forced labour

Forced labour constitutes manifest violations of international humanitarian

customary law, causing their perpetrators to incur individual criminal responsibility under

656
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1036
657
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 573;
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 260
658
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 576;
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 259
659
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Judgement (20 July 2009) at para. 938
660
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at paras. 404-05
661
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 543
662
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 538
663
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 150

124
Article 3 of the ICTY Statute.664

It is not required to establish the existence of a state of occupation inasmuch as

unlawful labour by civilians is prohibited the moment they fall into the hands of an
occupying power, regardless of the phase of hostilities. 665

Article 95 of the Fourth Geneva Convention contemplates a certain type of labour

which the detaining authority has the right to impose on internees against their will.
These are, broadly speaking, tasks whose completion contributes to the well-being of the
interned population. Article 95 specifically mentions the employment of internees with
medical skills on behalf of their fellow internees, internees for administrative and
maintenance work at the detention facility, etc.666

The Detaining Power may compel prisoners of war – excepting officers – to work,
under certain conditions described in Section III of the Third Geneva Convention. 667

The following criteria is used to determine whether the labour was forced: (a) the
substantially uncompensated aspect of the labour performed; (b) the vulnerable position
in which the detainees found themselves; (c) the allegations that detainees who were
unable or unwilling to work were either forced to do so or put in solitary confinement; (d)
the long term consequences of the labour; (e) the fact and the conditions of detention; and
(f) the physical consequences of the work on the health of the internees.668

The perpetrator of the crime must have acted with the intent that the victim
perform prohibited labour. This mens rea can be inferred from the circumstances in
which the labour is carried out.669

The use of civilian detainees or prisoners of war for work on the defensive
structures of the detaining power is clearly included among the categories of military
labour prohibited under applicable law.670

forcible transfer

deportation distinguished

Forcible transfer is the forcible displacement of persons which may take place
within national boundaries. 671

664
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 152
665
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 153
666
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 156
667
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 157
668
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 162
669
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 162
670
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 164
671
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 317; Prosecutor v Seselj, No.
MICT-16-99-A, Judgement (11 April 2018) at fn. 538

125
 Forcible transfer is the forced displacement of individuals from the area in which
they are lawfully present without grounds permitted under international law. The
distinction between forcible transfer and deportation is that the first one consists of forced
displacements of individuals within state borders, while the second one consists of forced
displacement beyond internationally recognised state borders 672

Forcible displacement, as an act of persecution, does not require the victim to be

transported across a State border.673

elements

The crime of forcible transfer forms part of the category of Other Inhumane Acts
under Article 5(i) of the Statute.674

Forcible transfer must satisfy three specific conditions in order to constitute an

inhumane act within the meaning of Article 5(i) of the Statute: (1) the victim must have
suffered serious bodily or mental harm; (2) the suffering must be the result of an act or
omission, by the accused or a person in relation to whom he bears criminal responsibility,
of a severity equal to those acts enumerated in Article 5 of the Statute; and (3) the
accused or a person for whom he bears criminal responsibility must, at the time of the
commission of the offence, have been motivated by the intent to inflict serious bodily or
mental harm upon the victim or knew that his act or omission might result in the
infliction of serious bodily or mental harm to the victim. 675

The jurisprudence of the Tribunal does not require that persons be displaced as a
result of criminal acts.676

forcible

It is the absence of genuine choice that makes displacement unlawful. 677

These transfers must be involuntary or with the absence of a “genuine choice” for
the victim. This can be inferred from threatening and intimidating acts that are calculated
to deprive the civilian population of exercising its free will, such as the shelling of
civilian objects, the burning of civilian property, and the commission of or the threat to
commit other crimes “calculated to terrify the population and make them flee the area
with no hope of return.”678

672
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 595
673
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para.154; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at fn. 541
674
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 629
675
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 59
676
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 918
677
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 495
678
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 165.

126
 Factors other than force itself may render displacement involuntary and include
the threat of force or coercion, such as that caused by fear of violence, duress, detention,
psychological oppression or abuse of power or by taking advantage of a coercive
environment. Creating severe living conditions for a certain population - which in tum
makes it impossible for that population to remain in their homes - can amount to forced
displacement.679

The requirement of “forcible” describes a situation where individuals do not have

a free or ‘genuine’ choice to remain in the territory where they were present. The element
of ‘forcible’ has been interpreted to include threats or the use of force, fear of violence,
and illegal detention. It is essential therefore that the displacement takes place under
coercion. Even in cases where those displaced may have wished – and in fact may have
even requested – to be removed, this does not necessarily mean that they had or exercised
a genuine choice.680

If the displacement is the result of a humanitarian crisis caused by the accused's

activities, such displacement is forced. 681

It is the absence of genuine choice that makes displacement unlawful. 682

However, circumstances which render it impossible to express consent may be sufficient
to presume the absence of consent. 683

The requirement that the displacement be forced is not limited to physical force
but can be met through the threat of force or coercion, such as that caused by fear of
violence, duress, detention, psychological oppression or abuse of power, or taking
advantage of a coercive environment. 684

An agreement among military commanders, political leaders, or other

representatives of the parties in a conflict cannot make a displacement lawful either; it is
the consent of the individual that determines whether a displacement is voluntary. 685
gravity

Acts of forcible transfer may be sufficiently serious as to amount to other

inhumane acts.686

mens rea

679
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 495
680
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 596
681
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 163; Prosecutor v Prlic et
al, No. IT-04-74-A, Judgement (29 November 2017) at para. 525
682
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 229
683
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 233
684
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 918
685
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 490
686
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 317; Prosecutor v Seselj, No.
MICT-16-99-A, Judgement (11 April 2018) at fn. 538

127
 The mens rea does not require the intent to transfer permanently. 687

As for the mens rea, the perpetrator must intent to remove the victims, which
implies the intention that they should not return. By definition, therefore, lawful
evacuations, under any of the three recognised exceptions, cannot form part of this crime.
The fact that no step is taken by the perpetrator to secure the return of those displaced,
when the circumstances that necessitated the evacuation have ceased, is among the
factors that may prove an intent to permanently displace the victims rather than the intent
to secure the population through a lawful – and therefore temporary – evacuation. The
Trial Chamber finds that the fact that victims subsequently return to the area by their own
volition does not have an impact on the criminal responsibility. 688

necessity

The Prosecution must prove that (a) the displacement of persons by expulsion or
other coercive acts, (b) from an area in which they are lawfully present, (c) without
grounds permitted under international law 689, which are recognized as the security of a
civilian population or imperative military reasons and are noted by a possible return to
their homes after the hostilities have ceased. 690

Additional Protocol I prohibits attacks on civilians and indiscriminate attacks in

all circumstances. Thus, even if Srebrenica and Zepa had lost their status as demilitarised
zones because of the ABiH's presence and operations within those enclaves, the VRS
could not target civilians in the enclaves, either deliberately or as part of an
indiscriminate attack against military and civilian objectives alike. And even if the VRS
operations against Srebrenica and Zepa had been directed exclusively at legitimate enemy
military targets in the enclaves, the VRS, once the enclaves were under its control, could
not force, directly or indirectly, the local civilian population out of these areas or commit
any other prohibited criminal acts against the civilians. 691

It is unlawful to use evacuation measures based on imperative military reasons as

a pretext to remove the civilian population and seize control over a desired territory. 692

Evacuation to ensure the security of the population is authorised when the area in
which the population is located is in danger as a result of military operations or intense
bombing. In such situations, in the interest of the protection of the civilian population a
military commander may, and is in fact duty bound to, evacuate the population. This
situation is similar to that when evacuations for imperative military reasons may be
carried out, i.e. when the presence of the population hampers military operations. There is
an important distinction, however, in that evacuations in this latter situation may only be
687
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 317; Prosecutor v Seselj, No.
MICT-16-99-A, Judgement (11 April 2018) at fn. 538
688
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 601
689
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 164.
690
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 166.
691
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 346
692
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 492

128
carried out when necessitated by overriding, i.e. imperative, military reasons. In
considering whether these exceptions justify proven acts of forcible population
displacements, the trier of fact will consider whether there was in actual fact a military or
other significant threat to the physical security of the population, and whether the military
operation in question was ‘imperative’. It is unlawful to use evacuation measures as a
pretext to remove the population and effectuate control over a desired territory.693

The law also provides for an exception to the general prohibition against forcible
displacements that would permit evacuations for humanitarian reasons. The Commentary
to Article 17 of Protocol II indicates that for other reasons – such as the outbreak or risk
of outbreak of epidemics, natural disasters, or the existence of a generally untenable and
life-threatening living situation – forcible displacement of the civilian population may be
lawfully carried out by parties to the conflict. Such displacement must, however, comply
with the requirements of evacuation, including among others, that they be of a temporary
character.694

While an evacuation is not prohibited if the security of the population or

imperative military reasons so demand, where the transfer had already taken place at a
time when there was no fighting in the area, the Trial Chamber could conclude on this
basis alone that the transfer was unlawful. 695

Transfer of the wounded and sick may be carried out against a person’s will and
does not constitute the crime of forcible transfer unless done for other than medical
reasons. The prosecution failed to prove that the transfer was not for reasons of medical
necessity. 696

nullum crimen sine lege

The notion of forcible transfer does not violate the principle of nullum crimen sine
lege. 697

persons excluded

Forcible displacement of enemy soldiers is not prohibited under international

humanitarian law. 698

Transfer of detainees from one camp to another does not constitute forcible
transfer.699

693
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 597-98
694
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 600
695
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 524
696
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1810
697
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 317; Prosecutor v Seselj, No.
MICT-16-99-A, Judgement (11 April 2018) at fn. 538
698
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 774
699
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 723

129
 The terms “lawfully present” should be given their common meaning and should
not be equated to the legal concept of lawful residence. 700

transfer

There is a “removal from an area” within the meaning of Article 5 of the Statute
when the location to which the victims are sent is so remote that they are no longer able
to effectively enjoy these rights.701

The actus reus of forcible displacement does not require that the population be
removed to a location sufficiently remote from its original location. 702

It is no defence to forcible transfer that the transfer was to a nearby community

where those transferred had family. The prohibition against forcible displacements aims
at safeguarding the right and aspiration of individuals to live in their communities and
homes without outside interference. The forced character of displacement and the forced
uprooting of the inhabitants of a territory entail the criminal responsibility of the
perpetrator, not the destination to which these inhabitants are sent.703

imprisonment

continued detention

If there was a legal basis for the detention but it ceased to exist, the continued
detention is arbitrary. 704

defences

When a national law is relied upon to justify imprisonment, the national law must
not violate international law. 705

The mere fact that civilians had some freedom of movement does not necessarily
mean that they were not deprived of their liberty and thus imprisoned or unlawfully
confined.706

700
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 491
701
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 49
702
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 492
703
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 491
704
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 753;
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1816; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 79; Prosecutor v Mladic, No.
IT-09-92-T, Judgement (22 November 2017) at para. 3239
705
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 753;
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1816; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 79; Prosecutor v Mladic, No.
IT-09-92-T, Judgement (22 November 2017) at para. 3239
706
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 473

130
 The internment or placement in assigned residence may be ordered only if the
security of the detaining party makes it absolutely necessary. 707

elements

Imprisonment is constituted by the deprivation of a person’s liberty without due

process of law. It must be carried out arbitrarily—that is, there is no legal basis for it.
The perpetrator must act with the intent to deprive the victim of his liberty arbitrarily. 708

Imprisonment as a crime against humanity, should be understood as arbitrary

imprisonment, that is to say, the deprivation of liberty of the individual without due
process of law, as part of a widespread or systematic attack directed against a civilian
population.709

The crime of imprisonment consists of the following elements: (1) an individual is

deprived of his or her liberty; (2) the deprivation of liberty is carried out arbitrarily, that
is, there is no legal basis for it; and (3) the perpetrator acted with the intent to deprive the
individual arbitrarily of his or her liberty. 710

factors

Determining whether a person has been deprived of his or her liberty will depend
on the circumstances of each particular case and must take into account a range of
factors, including the type, duration, effects, and the manner of implementation of the
measures allegedly amounting to deprivation of liberty.711

home detention

Detention amounting to imprisonment and unlawful confinement of civilians can

occur even in situations where the civilians are held in houses without guards and where
they have some freedom of movement.712

An initially lawful internment or placement in assigned residence clearly becomes

unlawful if the detaining party does not respect the basic procedural rights of the detained
persons and does not establish an appropriate court or administrative board as prescribed
in Article 43 of Geneva Convention IV.713

707
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 513
708
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 752;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 116; Prosecutor
v Martic, No. IT-95-11-T, Judgement (12 June 2007) at paras. 87-88
709
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 471
710
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1815; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 78
711
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 473
712
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 479
713
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 479

131
 murder

body

Proof beyond reasonable doubt that a person was murdered does not necessarily
require proof that the dead body of that person has been recovered. All that is required to
be established from that evidence is that the only reasonable inference from the evidence
is that the victim is dead as a result of the accused’s actions or omission. 714

A body need not be recovered in order to establish that a person has been killed.
A victim's death can be inferred circumstantially from all of the evidence presented to the
trial chamber. 715

Relevant factors to be considered when assessing whether a victim died include

but are not limited to proof of incidents of mistreatment directed against the victim;
patterns of mistreatment and disappearances of other victims; the coincident or near-
coincident time of death of other victims; the fact that the victims were present in an area
where an armed attack was carried out; the time, location, and circumstances in which the
victim was last seen; the behaviour of soldiers in the vicinity, as well as towards other
civilians, at the relevant time; and the lack of contact by the victim with others whom
he/she would have been expected to contact, such as his/her family. 716

causation

With regard to the requisite causal nexus, the requirement that death must have
occurred “as a result of” the perpetrator’s act or omission does not require this to be the
sole cause for the victim’s death; it is sufficient that the “perpetrator’s conduct
contributed substantially to the death of the person”. 717

The evidence was insufficient to establish that the acts or omission that caused the
death of the victim occurred during the time that the accused was employed in the camp.
Acquittal ordered on that charge.718

When considering suicide, the crucial issues are causation and intent. The relevant
act or omission by the Accused or by those for whose acts or omissions the Accused
bears criminal responsibility must have caused the suicide of the victim and the Accused,

714
Prosecutor v Krnojelac, No. IT-97-25-T, Judgment (15 March 2002) at para 326; Prosecutor v
Halilovic, No. IT-01-48-T, Judgment (16 November 2005 at para 37; Prosecutor v Lukic & Lukic, No. IT-
98-32/1-T, Decision on Milan Lukic’s Notice of Verification of Alleged Victim Survivors and Application
for Stay of Proceedings…(12 March 2009) at para. 29; Prosecutor v Lukic & Lukic, No. IT-98-32/1-A,
Judgement (4 December 2012) at para. 149
715
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 126
716
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at fn. 1476
717
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 448
718
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 271; Prosecutor v
Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 347

132
or those for whom he bears criminal responsibility, must have intended by that act or
omission to cause the suicide of the victim, or have known that the suicide of the victim
was a likely and foreseeable result of the act or omission. The Accused cannot be held
criminally liable unless the acts or omissions for which he bears criminal responsibility
induced the victim to take action which resulted in his death, and that his suicide was
either intended, or was an action of a type which a reasonable person could have foreseen
as a consequence of the conduct of the Accused, or of those for whom he bears criminal
responsibility. 719

elements

The elements of the offence of murder as a crime against humanity and as a

violation of the laws or customs of war are the same. Murder is the death of the victim
which results from an act or omission by the accused, committed with the intent either to
kill or to cause serious bodily harm with the reasonable knowledge that it would likely
lead to death.720

The elements of murder under Articles 2,3,and 5 are the same. 721

For the crime of murder under Article 3 of the Statute to be established, the
Prosecutor bears the onus of proving: 1) the death of a victim taking no active part in the
hostilities; 2) that the death was the result of an act or omission of the accused or of one
or more persons for whom the accused is criminally responsible; 3) the intent of the
accused or of the person or persons for whom he is criminally responsible a) to kill the
victim; or b) to wilfully cause serious bodily harm which the perpetrator should
reasonably have known might lead to death. 722

The basic requirements for the crime of murder are: (1) the victim named in the
indictment is dead, (2) the victim’s death was caused by an act or omission of the
accused, or of a person or persons for whose acts or omissions the accused bears criminal
responsibility and (3) that act was done, or that omission was made, by the accused, or a
person or persons for whose acts or omissions he bears criminal responsibility, with an
intention (a) to kill, or (b) to inflict grievous bodily harm, or (c) to inflict serious injury,
in the reasonable knowledge that such act or omission was likely to cause death. 723

719
Prosecutor v Krnojelac, No. IT-97-25-T, Judgment (15 March 2002) at para 329
720
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 556;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 37; Prosecutor
v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 715; Prosecutor v
Martic, No. IT-95-11-T, Judgement (12 June 2007) at paras. 57-58
721
Prosecutor v Oric, No. IT-03-68-T, Judgment (30 June 2006) at para 345; Prosecutor v. Krnojelac, No.
IT-97-25-T, Judgment (15 March 2002) at para 323
722
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 261; Prosecutor v
Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 35; Prosecutor v Limaj et al, No. IT-
03-66-T, Judgement (30 November 2005) at para. 241
723
Prosecutor v Krnojelac, No. IT-97-25-T, Judgment (15 March 2002) at para 324; Prosecutor v
Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 556; Prosecutor v Kordic &
Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 37; Prosecutor v Krajisnik, No. IT-00-
39-T, Judgement and Sentence (27 September 2006) at para. 715; Prosecutor v Kvocka et al, No. IT-98-

133
 mens rea

To satisfy the mens rea for murder it is further required that there was an act or
omission, with the intention to kill or to inflict grievous bodily harm, in the reasonable
knowledge that it might lead to death. 724

Premeditation is not required as an element of murder under Article 3 or Article

725
5.

To prove murder, it must be established that death resulted from an act or

omission of the accused, committed with the intent either to kill or, in the absence of such
a specific intent, in the knowledge that death is a probable consequence of the act or
omission. In respect of this formulation it should be stressed that knowledge by the
accused that his act or omission might possibly cause death is not sufficient to establish
the necessary mens rea. The necessary mental state exists when the accused knows that it
is probable that his act or omission will cause death. 726

The mens rea of murder includes both direct intent (dolus directus), which is a
state of mind in which the perpetrator desired the death of the individual to be the result
of his act or omission, and indirect intent (dolus eventualis), which is knowledge on the
part of the perpetrator that the death of a victim was a probable consequence of his act or
omission.727

The mens rea for murder as a war crime may be established by willful behavior in
the form of either a direct intent to kill or recklessness that death may ensue as a
consequence of the accused’s deliberate conduct. Ordinary negligence does not suffice
as the mens rea for murder.728 Nor does gross negligence.729

Where a civilian population is subject to an attack such as an artillery attack,

which results in civilian deaths, such deaths may appropriately be characterised as
murder, when the perpetrators had knowledge of the probability that the attack would
cause death.730

other inhumane acts

30/1-A, Judgement (28 February 2005) at para. 261; Prosecutor v Halilovic, No. IT-01-48-T, Judgement
(16 November 2005) at para. 35; Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November
2005) at para. 241; Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 346
724
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 931
725
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 551
726
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 236
727
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 446
728
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Preliminary Motions (29 August 2005) at para. 21;
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 348
729
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 348
730
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 240

134
 Other inhumane acts can be committed by omission. 731

The elements of “other inhumane acts” are: a) an act or omission of similar

seriousness to the other acts enumerated in Article 5; b) the act or omission caused
serious mental or physical suffering or injury or constituted a serious attack on human
dignity; and c) the act or omission was performed intentionally by the accused, or by a
person or person for whose acts and omissions the accused bears criminal
responsibility. 732

The following acts, among others, fall into the category of “inhumane acts”:
mutilations and other forms of severe bodily harm, beatings and other acts of violence,
serious bodily and mental injury, forcible transfer, inhumane and degrading treatment,
forced prostitution and forced disappearance. 733

Not every denial of a human right is serious enough to constitute a crime against
humanity. Acts or omissions need to be of equal gravity to the crimes listed in Article 5
whether considered in isolation or in conjunction with other acts.734

The context in which these underlying acts take place is particularly important for
the purpose of assessing their gravity. 735

To ascertain the degree of severity of an act, all the factual circumstances must be
considered, including the nature of the act or omission, the context in which it occurs, its
duration and/or repetition, the physical, mental and moral effects of the act on the victim
as well as the personal circumstances of the victim, including age, sex, and health. 736

Detention under harsh conditions is likely to constitute an inhumane act within the
meaning of Article 5(i) of the Statute if it causes great suffering or physical or mental
anguish or constitutes a serious attack on human dignity. 737

The principle of legality requires that a trier of fact exercise great caution in
finding that an alleged act, not regulated elsewhere in Article 5 of the Statute, forms part
of this crime: norms of criminal law must always provide individuals with sufficient
notice of what is criminal behaviour and what is not.738

731
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 155
732
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 626;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 117; Prosecutor
v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 83; Prosecutor v. Milosevic, No. IT-98-29/1-
T, Judgment (12 December 2007) at para. 934
733
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 79
734
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 761
735
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 763
736
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 78
737
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 80
738
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 625

135
 It is required that the perpetrator, at the time of the act or omission, had the
intention to inflict serious physical or mental suffering or to commit a serious attack on
the human dignity of the victim(s), or that the perpetrator knew that his act or omission
was likely to cause such suffering to, or amount to a serious attack on, the human dignity
of the victim(s) and, with that knowledge, acted or failed to act.739

The mens rea for the crime of inhumane acts is satisfied if, at the time of the act
or omission, the perpetrator had direct or indirect intent to inflict, by act or omission,
serious physical or mental suffering or to commit a serious attack on the victim’s human
dignity. Indirect intent requires that the perpetrator knew that his or her act or omission
was likely to cause serious physical or mental suffering or a serious attack upon human
dignity and was reckless thereto.740

No reasonable trier of fact could have found that Sredoje Lukić’s slapping of
detainee caused serious bodily or mental harm so as to amount to cruel treatment as a
violation of the laws or customs of war, and other inhumane acts as a crime against
humanity or that Sredoje Lukic had the intent to inflict serious mental or physical
suffering or serious bodily or mental harm. 741

persecution

in general

Persecution is “the gross or blatant denial, on discriminatory grounds, of a

fundamental right, laid down in international customary or treaty law, reaching the same
level of gravity as other acts prohibited in Article 5.”742

Persecution as a crime against humanity requires evidence that the principal

perpetrator had the specific intent to discriminate on the ground of race, religion, or
politics. 743

The elements of persecution consists of an act or omission which: (i)

discriminates in fact and which denies or infringes upon a fundamental right laid down in
international customary or treaty law; and (ii) is carried out deliberately with the intention
to discriminate on one of the listed grounds, specifically race, religion or politics. 744

739
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 628;
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 935
740
Prosecutor v Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 112
741
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 634
742
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 2
743
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 422
744
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 579;
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 320; Prosecutor v
Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 101, 671; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 159

136
 A single act may be sufficient, as long as this act or omission discriminates in fact
and is carried out deliberately with the intention to discriminate on one of the listed
grounds.745 The existence of a discriminatory policy is not a necessary requirement for
persecutions.746

The acts underlying persecutions as a crime against humanity, whether considered

in isolation or in conjunction with other acts, must be of equal gravity to the crimes listed
in Article 5 of the Statute.747

The Prosecution must also prove that the denial or infringement upon a
fundamental right is serious enough (gravity requirement) as to be of equal gravity of
those listed in Art 5 or be one of those listed in Art 5.748 This act or omission may also be
singular but its gravity must be considered in context by looking at its cumulative effect
and not at the act or omission in isolation. 749

Persecution may be committed by persons at any level, it is not limited to persons

at the high level of a hierarchy. 750

The context in which the underlying act of persecution takes place is particularly
important for the purpose of assessing its gravity. 751

act of discrimination

Denial of freedom of movement, denial of employment, invasion of privacy

through arbitrary searches of homes, unlawful arrests, denial of the right to judicial
process, and denial of equal access to public services, when carried out on discriminatory
grounds, and when the general elements of crimes against humanity are fulfilled,
constitute the crime of persecution when considered in conjunction with other relevant
acts, especially in conjunction with those acts that qualify as an underlying act of
persecution. These restrictive and discriminatory measures may also constitute the crime
of persecution when considered in isolation. 752

An act is discriminatory when a victim is targeted because of his or her

membership in a group defined by the perpetrator on a political, racial or religious basis.

745
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 582;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 102
746
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 582
747
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 102,671;
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 160; Prosecutor v Krnojelac,
No. IT-97-25, Judgement (17 September 2003) at para. 221; Prosecutor v Simic, No. IT-95-9-A, Judgement
(28 November 2006) at para.177; Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at
para. 296
748
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 178.
749
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 179.
750
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 580
751
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 159
752
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3266

137
The act or omission must have discriminatory consequences—discriminatory intent is not
enough. 753

Where a person is targeted for abuse because she or he is suspected of belonging

to a particular ethnic group, the discrimination element is met even if the suspicion
proves inaccurate and the person is in fact not a member of that ethnic group. 754

Discrimination in fact exists when the Prosecution proves that the victim was
targeted because of his membership within one of the protected groups (racial, religious,
political or ethnic).755 This discrimination in fact is assessed on a subjective basis. 756

The existence of a discriminatory policy is not a requirement for proving

persecution, although persecutory acts may form a part of a discriminatory policy or
practice. 757

attacks against civilians

Attacks launched deliberately against civilians or civilian objects may constitute

persecution without the requirement of a particular result caused by the attack. 758

cruel and inhumane treatment

Persecution by cruel and inhumane treatment is an intentional act or omission,

which causes serious mental harm, physical suffering or injury, or which constitutes a
serious attack on human dignity. The harm inflicted does not need to be permanent and
irremediable, but must have more than a short-term or temporary effect on the victim. 759

Cruel treatment is an act or omission which causes serious mental or physical

suffering or injury, or which constitutes a serious attack on human dignity. The act or
omission must be committed with the intent to cause serious mental or physical suffering
or injury or a serious attack on human dignity, or with the knowledge that serious mental
or physical suffering or injury or the serious attack on human dignity was a probable
consequence of the act or omission. 760

The crime of cruel and inhumane treatment requires that the perpetrator had the
intention to inflict serious physical or mental suffering, or to inflict serious injury, or to

753
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 583
754
Prosecutor v Kvocka et al, No. IT-98-30/1-T, Judgement (2 November 2001) at para. 195
755
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 177.
756
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 177.
757
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 500
758
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 105
759
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 586;
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 746
760
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 504

138
commit a serious attack on human dignity, or that he or she knew that his act was likely
to cause this result and was reckless. 761

Providing inhumane living conditions for detainees is a form of cruel and

inhumane treatment.762

The establishment and perpetuation of inhumane living conditions has been

considered a sub-category of cruel and/or inhumane treatment, which may constitute
persecution if the acts reach the same level of gravity as the other crimes listed under
Article 5 of the Statute and if the general requirements for persecution are also met. 763

Beatings constitute cruel or inhumane treatment if (i) the beatings caused serious
mental or physical suffering or injury or constituted a serious attack on human dignity,
and (ii) the beatings were performed deliberately. 764

The mental element for cruel and inhumane treatment is satisfied by a finding that
the act or omission was committed with intent, or alternatively with knowledge that the
act or omission was likely to cause serious mental or physical suffering or a serious
attack on human dignity and the perpetrator was reckless as to whether such
consequences would result from his act or omission.765

disappearances

The crime of disappearances includes the following elements: (a) an individual is

deprived of his or her liberty; and (b) the deprivation of liberty is followed by the refusal
to disclose information regarding the fate or whereabouts of the person concerned, or to
acknowledge the deprivation of liberty, and thereby denying the individual recourse to
the applicable legal remedies and procedural guarantees. 766

Enforced disappearances, carried out on discriminatory grounds, and for which

the general elements of crimes against humanity are fulfilled, constitutes the crime of
persecution. 767

destruction of cultural property

Destruction of cultural property—the destruction or damage of an institution

dedicated to religion, charity, education, or arts and sciences, historic monuments, and
works of art or science—may constitute persecution.768

761
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 746
762
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 756
763
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 514
764
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 509
765
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3233
766
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1837
767
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1839
768
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 782

139
 Destruction of religious property amounts to “an attack on the very religious
identity of a people” and, as such, manifests “a nearly pure expression” of the notion of
crimes against humanity and is thus prohibited as an act of persecution and CAH. 769

The Prosecution must prove (a) the religious or cultural property must be
destroyed or damaged extensively; (b) the religious or cultural property must not be used
for a military purpose at the time of the act; and (c) the destruction or damage must be the
result of an act directed against this property. 770

The equal gravity requirement of the destruction/damage must be proved such

that the impact of the deprivation of destroyed/damaged property is serious, such as
where the property is indispensable, a vital asset to the owners, or the means of existence
of a given population. 771

The Prosecution must prove that the property was not used for military purposes
at the time of the destruction/damage and thus it is not justified by military necessity. 772

Causation of the act of destruction/damages against the property must be proved

by showing the act was specifically directed at the property and thus destruction caused
by near by fighting or military necessity will not constitute a CAH. 773

The prosecution must demonstrate that the destruction was not justified by
military necessity. This cannot be presumed.774

Trial Chamber erred in failing to consider whether destruction of church was

justified by military necessity. 775

Recklessness is sufficient to satisfy the mens rea for destruction of religious or

culturally significant property.776

destruction of personal property

The destruction of property, depending on the nature and extent of the destruction,
may constitute a crime of persecution of equal gravity to other crimes listed in Article
5.777

769
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 205.
770
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 206.
771
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 207.
772
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 208.
773
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 209.
774
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 337
775
Prosecutor v Martic, No. IT-95-11-A, Judgement (8 October 2008) at para. 98
776
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 559
777
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 422

140
 Destruction of personal property can also be a crime against humanity, depending
on the nature and extent of the destruction. 778 The crime requires that the destruction is
not justified by military necessity. 779

Destruction of private property as an underlying act of persecution is to be

understood as any intentional destruction of private property that has a serious impact on
the victim and that was not justified by military necessity. 780

Burning someone’s car may not constitute a crime against humanity unless the car
is an indispensable and vital asset to the owner.781

Destruction of personal belongings of men separated in Potocari did not have a

severe enough impact on the victims to constitute an act of persecution punishable under
Article 5.782

An act of destruction of property which in itself does not have a severe impact on
the victim, may still, when carried out on discriminatory grounds, and when the general
elements of crimes against humanity are fulfilled, constitute the crime of persecution,
when considered in conjunction with other acts.783

forced labor

The following criteria may be examined in determining whether an individual was

not in a position to make a real choice to undertake labour: (i) the substantially
uncompensated aspect of the labour performed; (ii) the vulnerable position in which the
detainees found themselves; (iii) the allegations that detainees who were unable or
unwilling to work were either forced to do so or put in solitary confinement; (iv) claims
of longer term consequences of the labour on the detainees, including on their health; and
(v) the fact and the conditions of the detention. 784

In relation to forced labour, the perpetrator must have intended the victim to
perform prohibited work involuntarily. In the absence of direct evidence, intent can be
inferred from the circumstances in which the labour was performed. In relation to the use
of human shields, the perpetrator must intend to shield a military objective from attack or
shield, favour, or impede military operations. 785

778
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 593-94;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 108; Prosecutor
v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 770
779
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 593-94
780
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1827; Prosecutor v
Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3259
781
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 774
782
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1001
783
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3262
784
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 524
785
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 526

141
 Not all forms of forced labor is prohibited under international law, provided the
labor is performed under certain protective conditions. However, digging trenches and
graves and other forced labor at the front lines were not among those permitted
activities. 786

Acts at the front lines, by its nature, cannot ever be performed in suitable working
conditions. Therefore, such acts cannot fall within any lawful exceptions to the
prohibition of forced labour.787

Forced labour as an underlying act of persecutions as a crime against humanity

requires a perpetrator to have intended for a victim to perform prohibited work. 788

The detainees’ personal conviction that they were forced to work must be proven
with objective and not just subjective evidence. 789

forcible transfer

Forcible transfer, taken separately or cumulatively, and when committed on

discriminatory grounds may constitute persecution.790

Speech inciting to violence against a population on the basis of ethnicity, or any

other discriminatory ground, violates the right to security of the members of the targeted
group and therefore constitutes actual discrimination.791

By instigating the forcible expulsion of Croatians from Hrtkovci, the accused

incited violence against them, in violation of their right to security. His speech
denigrated the Croatians on the basis of their ethnicity, in violation of their right to
respect for dignity as human beings. The accused’s speech rises to a level of gravity
amounting to the actus reus of persecution as a crime against humanity. 792

harassment, humiliation and psychological abuse

Subjecting victims to constant humiliation and degradation may amount to

psychological abuse as an underlying act of persecution. 793

Harassment, humiliation and psychological abuse as established in this case were

of sufficient gravity to constitute crimes of persecution under Article 5(h) of the
Statute.794

786
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 759
787
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3243
788
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3242
789
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 195
790
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 602;
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 221
791
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 159
792
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 163
793
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 510

142
 human shields

The use of human shields—the placement or detention of persons in areas where

they may be exposed to combat operations for the purpose of rendering certain areas or
activities immune from military operations or armed attack constitutes an act of
persecution. 795

In relation to the use of human shields, the perpetrator must intend to shield a
military objective from attack or shield, favour, or impede military operations.796

imprisonment

The crime of imprisonment consists of the following elements: (i) an individual is

deprived of his or her liberty; (ii) the deprivation of liberty is carried our arbitrarily, i.e.,
there is no legal basis for it; and (iii) the accused or perpetrator acted with the intent to
deprive the individual arbitrarily of his or her liberty. 797

Denial of freedom of movement, denial of employment, arbitrary searches of

homes, denial of right to judicial process, and denial of equal access to public services
constitute acts of persecution.798

If there is a legal basis for the deprivation of liberty, it must apply throughout the
period of imprisonment, for the deprivation of liberty will become arbitrary as soon as the
legal basis ceases to exist.799

mens rea

In addition to the chapeau requirements of knowledge of a widespread or

systematic attack against a civilian population, the mens rea for persecutions consists of
the intent to commit the underlying act and the intent to discriminate on political, racial
or religious grounds. The discriminatory intent requirement amounts to a dolus
specialis.800

For persecution, discriminatory intent alone does not suffice. The act or omission
must have “discriminatory consequences” in fact, and not merely be committed with
discriminatory intent.801

794
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 325
795
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 763-64
796
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 526
797
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 519
798
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 741
799
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 520
800
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 328
801
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 73

143
 Persecution as a crime against humanity requires evidence of a specific intent to
discriminate on political, racial or religious grounds. It falls to the Prosecution to prove
that the relevant acts were committed with the requisite discriminatory intent.802

While the requisite discriminatory intent may not be inferred directly from the
general discriminatory nature of an attack characterised as a crime against humanity, the
discriminatory intent may be inferred from such a context as long as, in view of the facts
of the case, circumstances surrounding the commission of the alleged acts substantiate
the existence of such intent.803

Discriminatory intent may be inferred from a context as long as, in view of the
facts of the case, circumstances surrounding the commission of the alleged acts
substantiate the existence of such intent. Circumstances which may be taken into
consideration include (1) the operation of the prison (in particular, the systematic nature
of the crimes committed against a racial or religious group) and (2) the general attitude of
the offence’s alleged perpetrator as seen through his behaviour. 804

An intent to persecute—that is, to remove targeted persons from society or

humanity—is not required.805

So long as there is the intent to discriminate against a person on one of the listed
grounds, specifically, race, religion, or politics, any additional motive of pursuing a
military goal is irrelevant.806

Shelling of Zagreb with intent to retaliate for attacks was not shown to have been
carried out with a discriminatory motive and therefore the crime of persecution was not
proven.807

Considering the Trial Chamber's findings that the Bosnian Croat army had a
military interest in the destruction of the Old Bridge and that it was a military target, no
reasonable trier of fact could have found, beyond reasonable doubt, that the Bosnian
Croat Army had the specific intent to discriminate. 808

The aider and abettor in persecution, an offence with a specific intent, must be
aware not only of the crime whose perpetration he is facilitating but also of the
discriminatory intent of the perpetrators of that crime. He need not share the intent but he
must be aware of the discriminatory context in which the crime is to be committed and
know that his support or encouragement has a substantial effect on its perpetration. 809

802
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 184
803
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 422
804
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 184
805
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 111
806
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 733
807
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 473
808
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 422
809
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 52

144
 Discriminatory intent may be inferred from the context of the attack—i.e. all
guards being of one racial group and all prisoners of another. 810

Discriminatory intent may be inferred from an accused’s knowing participation in

a system or enterprise that discriminated on political, racial or religious grounds. 811

The circumstances to be taken into consideration include the systematic nature of

the crimes committed against a targeted group and the general attitude of the accused as
demonstrated by his behavior.812

The mens rea can be satisfied by proof that either the physical perpetrator or the
accused (ie through order, instigation etc) had the above discriminatory intent.813
The use of derogatory language in relation to a particular group – even where
such usage is commonplace – is one aspect of an accused’s behaviour that may be taken
into account, together with other evidence, to determine the existence of discriminatory
intent.814
Accused lacked discriminatory intent where only derogatory terms were used
against Muslims by him and where he saved a number of Muslim lives by opening a
corridor for them to pass.815

other acts

Persecution not only includes acts or omissions enumerated in other sub-clauses

of Article 5, but also acts or omissions of equal gravity. 816

Persecution as a crime against humanity does not require that the underlying acts
are crimes under international law. A trial chamber does not need to establish the
elements of the underlying acts, including the mens rea, even when the underlying act
also constitutes a crime under international law. With respect to the mens rea, all that is
required is establishing that the underlying act was deliberately carried out with
discriminatory intent.817

The crime of persecution requires an act or omission that discriminates in fact and
which denies or infringes upon a fundamental right laid down in international customary
or treaty law.818

While forms of persecution under Article 5(h) need not necessarily themselves be
considered as crimes in international law, those acts must be of equal gravity to the

810
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at paras. 130-31
811
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 711
812
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at paras. 711,727
813
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 181.
814
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 713
815
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2095
816
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 580
817
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 738
818
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 761

145
underlying offenses listed in Article 5 of the Statute in order to amount to persecution,
whether considered in isolation or in conjunction with other acts.819

Not every violation of a fundamental human right will be serious enough to

constitute a crime against humanity. 820

The destruction of the personal belongings and IDs of the men targeted for killing
did not rise to the level of gravity to constitute an act of persecution. 821

The assessment of whether certain acts meet the sufficient gravity requirement for
underlying forms of persecution involves two steps: (1) an assessment in the abstract of
whether those acts may be considered to meet the equal gravity test as a matter of law;
and (2) an assessment of whether in light of the evidence presented at trial, those acts did
meet the equal gravity test as a matter of fact. 822

The underlying act of persecution need not itself be an international crime. 823

Wilful killing, murder, and inflicting serious bodily and mental harm may
consitute persecutions.824 The use of civilians as hostages and human shields, forced
labor to dig trenches under combat conditions and subjecting them to physical and
psychological abuse all rise to the level of gravity of other violations enumerated in
article 5.825

Acts of serious bodily and mental harm are of sufficient gravity as compared to
the other crimes enumerated in Article 5 of the Statute and therefore may constitute
persecution. 826

The imposition of restrictive and discriminatory measures in the form of

deprivation of housing, property, and humanitarian assistance, carried out on
discriminatory grounds, and for which the general elements of crimes against humanity
are fulfilled, may only meet the gravity threshold and constitute a crime of persecution
when taken in conjunction with other acts.827

The invasion of privacy through arbitrary searches of homes and the denial of
equal access to public services constitute the crime of persecution when the general

819
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Six Preliminary Motions Challenging
Jurisdiction (28 April 2009) at para. 38
820
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1803
821
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 875
822
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Six Preliminary Motions Challenging
Jurisdiction (28 April 2009) at para. 42
823
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 735;
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 296
824
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 106
825
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 107
826
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 587
827
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1807

146
requirements of a crime against humanity and the specific requirements of persecution
are satisfied and when these acts are considered in conjunction with other acts
constituting persecution828

To assess the seriousness of an act, consideration must be given to all the factual
circumstances, including the nature of the act or omission, the context in which it
occurred, the personal circumstances of the victim including age, sex and health, as well
as the physical, mental and moral effects of the act upon the victim 829

Psychological impact on a population may satisfy the required gravity threshold

of the crime. 830

plunder

Plunder and looting of public and private property as an underlying act of

persecution is to be understood as any intentional and unlawful appropriation of public or
private property that has a serious impact on the owner or user of the property. 831

The prohibition against plunder is general in scope and extends both to acts of
looting committed by individual soldiers for their private gain and to the organised
seizure of property undertaken within the framework of a systematic economic
exploitation of occupied territory. 832

Plunder—an intentional appropriation of public or private property, not justified

by military necessity, that has a severe impact on the owner or user of the property,
constitutes an act of persecution. 833

An act of plunder which in itself does not have a serious impact on the victim,
may still, when carried out on discriminatory grounds, and when the general elements of
crimes against humanity are fulfilled, constitute the crime of persecution, when
considered in conjunction with other acts.834

Under international humanitarian law there is a general exception to the

prohibition of appropriation of property when the appropriation is justified by military
necessity. 835

828
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 92
829
Prosecutor v Vasiljevic, No. IT-98-32-A, Judgement (25 Feb 2004) at para. 165
830
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 564
831
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1821; Prosecutor v
Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3252
832
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 528
833
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 768-69
834
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3254
835
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3250

147
 In the context of an international armed conflict, treaty law and international
customary law justify battlefield seizures of military equipment of the adverse party as
war booty. 836

The mens rea requirement for plunder or appropriation of property is satisfied

when the perpetrator acts knowingly with the intent to appropriate public or private
property unlawfully. 837

sexual violence

To be charged as persecution, it need not be shown that sexual assault constituted

a crime under international law at the time the relevant acts were committed. 838

The Chambers of the ICTR have found that sexual violence is not limited to acts
of penetration or physical contact and includes forced nudity, which may be considered
an inhumane act.839 The ICTY has also found that sexual mutilation and severe bodily
harm violate the right to physical integrity and dignity of a human being. 840

Sexual assault is not limited to acts of penetration and has been found to include
“all serious abuses of a sexual nature inflicted upon the integrity of a person by means of
coercion, threat of force or intimidation in a way that is humiliating and degrading to the
victim’s dignity.”841

The elements that the Prosecution must prove in order to find sexual assault are
(1) the physical perpetrator commits an act of a sexual nature on another, including
requiring that person to perform such an act; (2) that act infringes the victims’ physical
integrity or amounts to an outrage to the victim’s personal dignity; (3) the victim does not
consent to the act; (4) the physical perpetrator intentionally commits the act; and (5) the
physical perpetrator is aware that the act occurred without the consent of the victim. 842

Sexual violence is found when (i) the perpetrator commits an act of a sexual
nature on another or requires the victim to perform such an act, (ii) that act infringes on
the victim’s physical integrity or amounts to an outrage to the victim’s personal dignity,
and (iii) the victim does not consent to the act. The perpetrator must intentionally commit
the act, and be aware that the victim did not consent to the act.843

Serious abuses of a sexual nature inflicted upon the integrity of a person by means
of coercion, threat of force, or intimidation in a way that is humiliating and degrading to
the victim’s dignity may constitute other acts of sexual violence. These acts are not

836
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3250
837
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3251
838
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 187.
839
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 190.
840
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 191.
841
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 195.
842
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 201
843
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 513

148
limited to the physical invasion of the human body and may include acts which do not
involve penetration or even physical contact.844

In situations of detention in an armed conflict, lack of consent and coercion can

be inferred and thus the force required for a sexual assault is only that which is necessary
to perform the act of a sexual nature, and actual coercion is not a required element. 845

Insufficient evidence of sexual assault where the evidence indicated that women
had been taken away by Serb forces and returned crying and looking dissheveled. 846

Where only two incidents of sexual assault were proven, and the only evidence of
discriminatory intent was the fact that the victims were from the targeted ethnic group,
this was insufficient to establish the mens rea of persecution. 847

Trial Chamber erred in finding that rapes were not shown to be committed with
discriminatory intent when they were committed in the course of an operation to remove
a large number of Kosovo Albanians from the town. 848

terrorizing the civilian population

Terroriation of the civilian population is of sufficient gravity as to constitute an

act of persecution. 849

The incidents of shelling and sniping of the civilian population in Srebrenica in

the months prior to the fall of the enclave were of sufficient gravity to satisfy acts of
persecution under Article 5.850

The elements of persecution by terrorizing the civilian population are: 1. Acts or

threats of violence; 2. the offender wilfully made the civilian population or individual
civilians not taking part in hostilities the object of those acts or threats of violence; and 3.
the acts or threats of violence were carried out with the primary purpose of spreading
terror among the civilian population. 851

Terrorising of the civilian population does not require an actual infliction of

terror. The Prosecution only needs to prove that acts or threats of violence were carried
out to create an atmosphere of extreme fear or uncertainty of being subjected to violence
among the civilian population. 852

844
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 512
845
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 200.
846
Prosecutor v Djordjevic, No. IT-05-87/1-T, Judgement (23 February 2011) at paras. 1792,1794
847
Prosecutor v Djordjevic, No. IT-05-87/1-T, Judgement (23 February 2011) at para. 1796
848
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 580
849
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 981
850
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 765
851
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 589
852
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 590

149
 The offender must have intended to terrorise the civilian population. The
infliction of terror need not be the only objective of the acts or threats of violence, but it
must be the principal aim. 853

The Trial Chamber was not required to establish that spreading terror was the
primary purpose of the underlying acts of terrorising civilians, although the primary
purpose of the underlying acts may have been relevant to the gravity of the acts in
question. 854

To establish the actus reus of persecution in the present case, the Trial Chamber
was required to establish that the underlying acts of terrorising civilians: discriminated in
fact, denied or infringed upon a fundamental right laid down in international customary
or treaty law, and were of equal gravity to the crimes listed in Article 5 whether
considered in isolation or in conjunction with other acts.855

rape

The actus reus of the crime of rape in international law is constituted by: the
sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of
the perpetrator or any other object used by the perpetrator; or (b) the mouth of the victim
by the penis of the perpetrator; where such sexual penetration occurs without the consent
of the victim. Consent for this purpose must be consent given voluntarily, as a result of
the victim’s free will, assessed in the context of the surrounding circumstances. The mens
rea is the intention to effect this sexual penetration, and the knowledge that it occurs
without the consent of the victim. 856

Force or threat of force provides clear evidence of non-consent, but force is not an
element per se of rape. There are “factors [other than force] which would render an act of
sexual penetration non-consensual or non-voluntary on the part of the victim.” 857
Circumstances that prevail in most cases charged as either war crimes or crimes against
humanity will be almost universally coercive. That is to say, true consent will not be
possible.858

self-defence

The question of the legitimacy of the decision to resort to force is irrelevant to the
determination of individual criminal responsibility for violations of international
humanitarian law. Whether an attack was ordered as pre-emptive, offensive or defensive,
is irrelevant, if the way the military operation was carried out was criminal. 859

853
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 591
854
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 763
855
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 762
856
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 127
857
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 129
858
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 130
859
Prosecutor v Djordjevic, No. IT-05-87/1-T, Judgement (23 February 2011) at para. 2053

150
 torture

Torture has the following constitutive elements; (1) the infliction, by act or
omission, of severe pain or suffering, whether physical or mental; (2) the act or omission
must be intentional; (3) the act or omission must aim at obtaining information or a
confession, or at punishing, intimidating or coercing the victim or a third person, or at
discriminating , on any ground, against the victim or a third person. 860

Sexual violence necessarily gives rise to severe pain or suffering, whether

physical or mental, and in this way it is justifiably characterised as an act of torture. 861

Severe pain or suffering, as required by the definition of the crime of torture, can
thus be said to be established once rape has been proved, since the act of rape necessarily
implies such pain or suffering.862

The crimes of torture and rape each contain a materially distinct element not
contained by the other. That is, that an element of the crime of rape is penetration,
whereas an element for the crime of torture is a prohibited purpose, neither element being
found in the other crime. For rape to be categorised as torture, both the elements of rape
and the elements of torture must be present. 863
Rape involves the infliction of suffering at a requisite level of severity to place it
in the category of torture. The Court must not only look at the physical consequences, but
also at the psychological and social consequences of the rape.864
Even if the perpetrator’s motivation is entirely sexual, it does not follow that the
perpetrator does not have the intent to commit an act of torture or that his conduct does
not cause severe pain or suffering , whether physical or mental, since such pain or
suffering is a likely and logical consequence of his conduct. In view of the definition, it is
important to establish whether a perpetrator intended to act in a way which, in the normal
course of events, would cause severe pain or suffering, whether physical or mental, to his
victims. 865

Torture is constituted by an act or omission giving rise to severe pain or suffering,

whether physical or mental. Whether acts or omission amount to torture must be
considered on a case-by-case basis. 866

Acts inflicting physical pain may amount to torture even when they do not cause
the amount of pain of the type accompanying serious injury. Whether an act causes
severe pain or suffering is determined on a case-by-case basis. 867

860
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 142; Prosecutor v
Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 74
861
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 150
862
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 151
863
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 179-182
864
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 182-183
865
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 153
866
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 299

151
 Falsely telling prisoners that they will be executed, in a brutal context that makes
the statement believable can amount to willfully causing great suffering.868

Severe physical abuse in the course of interrogation can amount to willfully

causing great suffering. 869

While the duration of the acts is relevant, there is no requirement that the acts go
on for any fixed period.870

Trial Chamber erred in inferring from accused’s witnessing of beating of prisoner

en route to the prison that he was aware of subsequent mistreatment at the prison. 871

The perpetrator of the crime of torture need not have been a public official, nor
need the crime have been committed in the presence of a public official. 872

The purpose of torture need not be the “predominant or sole purpose” behind
inflicting the severe pain or suffering. 873

Article 6—personal jurisdiction

The International Tribunal shall have jurisdiction over natural persons pursuant to
the provisions of the present Statute.

The Tribunal’s jurisdiction ratione personae is not limited to nationals of certain

states, irrespective of membership of that state in the United Nations. 874

Article 7—individual criminal responsibility

1. A person who planned, instigated, ordered, committed or otherwise aided and

abetted in the planning, preparation or execution of a crime referred to in articles 2
to 5 of the present Statute, shall be individually responsible for the crime.
2. The official position of any accused person, whether as Head of State or
Government or as a responsible Government official, shall not relieve such person
of criminal responsibility nor mitigate punishment.

867
Prosecutor v Brdjanin, No. IT-98-36-A, Judgement (3 April 2007) at para. 251
868
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 300
869
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 300
870
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 300
871
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 306
872
Prosecutor v. Kunarac et al, No. IT-96-23-A & IT-96-23/1-A, Judgement (12 June 2002) at para. 148;
Prosecutor v. Simi et al, No. IT-95-9-T, Judgement, (17 October 2003) at para. 82; Proscutor v Brdjanin,
No. IT-99-36-T, Judgement (1 September 2004) at para 488.
873
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 508
874
Prosecutor v Seselj, No. IT-03-67-PT, Decision on the Accused’s Requests for a Ruling of the
International Court of Justice Concerning the Tribunal’s Jurisdiction Over Nationals of the Federal
Republic of Yugoslavia (21 April 2005)

152
3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute
was committed by a subordinate does not relieve his superior of criminal
responsibility if he knew or had reason to know that the subordinate was about to
commit such acts or had done so and the superior failed to take the necessary and
reasonable measures to prevent such acts or to punish the perpetrators thereof.
4. The fact that an accused person acted pursuant to an order of a Government or of
a superior shall not relieve him of criminal responsibility, but may be considered in
mitigation of punishment if the International Tribunal determines that justice so
requires.

aiding and abetting

actus reus

The actus reus for ‘aiding and abetting’ is that the accused carried out an act
which consisted of practical assistance, encouragement or moral support to the principal.
The criminal act of the principal for which the aider and abettor is responsible must be
established. The assistance need not have caused the act of the principal, but it must have
had a “substantial effect” on the commission of the crime. The assistance may be
provided by either an act or by an omission, and it may occur before, during or after the
act of the principal. 875

The actus reus for aiding and abetting consists of practical assistance,
encouragement, or moral support which has a substantial effect on the perpetration of the
crime.876

The participation of the aider and abettor need not be a crime in itself. Rather, the
relevant question is whether his actions assisted in and substantially contributed to the
commission of the crime.877

The actus reus of aiding and abetting may be satisfied by a commander permitting
the use of resources under his or her control, including personnel, to facilitate the
perpetration of a crime.878

The criminal responsibility of an aider and abettor does not require the
contribution to the crime of persecution to go to the discriminatory nature of this crime.
The assistance given need not itself be discriminatory. 879

875
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 726;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 517
876
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1732; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at fn. 594
877
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1765; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 172
878
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 127; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1784
879
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1812

153
 after-the-fact

It is required for ex post facto aiding and abetting that at the time of the planning,
preparation or execution of the crime, a prior agreement exists between the principal and
the person who subsequently aids and abets in the commission of the crime. 880

definition

Aiding and abetting requires a three-step test: (1) the participant commits a crime
punishable under the statute; (2) the accused aids and abets the participant in the
commission of the crime; and (3) the accused acts with the awareness that his acts will
assist the participant in the commission of the crime. 881

mens rea--definition

The mens rea for aiding and abetting means that (1) aiding and abetting must be
intentional; (2) he must both intend to further his own contribution and to further the
intentional completion of the crime by the perpetrator; (3) he is aware of the commission
of the crime and accepts it as more likely than not ; and (4) he is aware of the type and
essential elements of the crime to be committed.882

The requisite mental element is knowledge that the acts or omissions performed
by the aider and abettor assist the commission of a specific crime by the principal. 883

Although the accused’s lending of practical assistance, encouragement, or moral

support must itself be intentional, intent to commit the crime or underlying offence is not
required. 884

Knowledge need not have been overtly expressed and may be inferred from the
circumstances. 885

mens rea—knowledge of perpetrator’s intent

The aider and abettor must also be aware of the “essential elements” of the crime
committed by the principal offender, including the state of mind of the principal
offender.886

880
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 731
881
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 269
882
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 288
883
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 127; Prosecutor v
Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 248; Prosecutor v. Milutinovic et
al, No. IT-05-87-T, Judgement (26 February 2009) at para 94
884
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 94
885
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 94
886
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 727;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 518; Prosecutor v
Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 51

154
 Although the accused must be aware, at a minimum, of the essential elements of
the substantive crime or underlying offence for which he is charged with responsibility as
an aider and abettor, he need not know the intangible thoughts and feelings of the person
or persons who in fact physically perpetrate the crime or underlying offence. 887

Aiding and abetting liability does not require knowledge of every specific detail
of the crimes. It is sufficient that the accused was aware of the “essential elements” of the
crimes committed by the principal perpetrators. The degree of knowledge pertaining to
the details of the crime required to satisfy the mens rea of aiding and abetting will depend
on the circumstances of the case, including the scale of the crimes and the type of
assistance provided. 888

It is not necessary that the aider and abettor know the precise crime that was
intended or actually committed, as long as he was aware that one or a number of crimes
would probably be committed, and one of these crimes was in fact committed. 889

mens rea—specific cases

Knowledge that isolated incidents of murder might occur was not sufficient to
establish that the accused knew of the probability that the Serb forces would commit the
murders in the villages charged in the indictment.890

It could not be established that accused knew that the perpetrators would commit
a crime on the scale of extermination at Srebrenica. Therefore, the accused could not be
convicted of aiding and abetting extermination. 891

Fact that accused could have known that crimes might be committed by
paramilitaries and other persons if they had access to the prisoners was insufficient to
establish aiding and abetting of the offences committed by the perpetrators. 892

No reasonable Trial Chamber could conclude that knowledge of use of excessive

force by Serb troops in Kosovo in 1998 meant that the accused knew of the probability
that if ordered to operate in Kosovo in 1999, the Serb troops would act with the intent to
commit deportation and forcible transfer. 893

887
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 94
888
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1800; Prosecutor v
Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1622
889
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 350; Prosecutor v
Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para. 58; Prosecutor v Popovic et al, No. IT-
05-88-A, Judgement (30 January 2015) at paras. 1733,1751,1795
890
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1792
891
Prosecutor v Perisic, No. IT-03-81-T, Judgement (6 September 2011) at para. 1647
892
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para. 658
893
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1709

155
 The evidence referred to by the Prosecution, at best, shows that the accused put
vulnerable women in contact with KLA soldiers who had a reputation for violence. There
was no evidence as to what happened to the women between the time that they were last
seen alive and the time that they were killed, in particular which KLA soldiers killed
them or under what circumstances they were killed. None of the evidence shows that the
accused was aware that a crime would be committed against the women at the relevant
time.894

The probability, indeed, the considerable likelihood, that the prisoners of war
would be gravely injured and murdered, was one which would have been obvious to the
accused and anyone with his knowledge of the perpetrators. By enabling the unrestrained
access to the prisoners the Accused was assisting in the commission of the offences of
violence and murder that he was aware would indeed probably follow. These matters
establish the mens rea necessary to constitute aiding and abetting the commission of the
murders for the purposes of Article 7(1).895

mens rea--specific intent crimes

In cases of specific intent, crimes such as persecution or genocide, the aider and
abettor must know of the principal perpetrator’s specific intent. 896

The requirement that the aider and abettor need merely know of the physical
perpetrator or intermediary perpetrator’s intent—and need not share it—applies equally
to specific-intent crimes or underlying offences such as persecution as a crime against
humanity. 897

relationship with perpetrator

In the context of a crime committed by several co-perpetrators in a joint criminal

enterprise, the aider and abettor is always an accessory to these co-perpetrators, although
the co-perpetrators may not even know of the aider and abettor’s contribution. 898

For an accused to be liable for aiding and abetting, the underlying crime must
ultimately be committed by the principal perpetrator. It is however not necessary that the
latter be identified or tried, even in cases of crimes requiring specific intent. 899

For persecution, the aider and abettor need not share the perpetrator’s
discriminatory intent.900

894
Prosecutor v Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para. 60
895
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 621
896
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 140; Prosecutor v Blagojevic
& Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 127; Prosecutor v Popovic et al, No. IT-05-88-
A, Judgement (30 January 2015) at para. 1830
897
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 94
898
Prosecutor v Vasiljevic, No. IT-98-32-A, Judgement (25 Feb 2004) at para. 102; Prosecutor v Mrksic &
Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at paras. 81, 146, 200
899
Prosecutor v Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 127

156
 It is well established that the mens rea of aiding and abetting requires that an aider
and abettor know that his acts would assist in the commission of the crime by the
principal perpetrator and must be aware of the “essential elements” of the crime. It does
not require that he shares the intention of the principal perpetrator of such crime, 901

Trial Chamber correctly concluded that it had not been established that soldiers
who were expelling the population had the intent to kill Kosovo Albanians. Therefore, it
properly found that the accused was not aware of the mental state of the perpetrators and
could not be convicted of aiding and abetting murder.902

omission

distinguished from superior responsibility

As superior responsibility under Article 7(3) is the archetypal form of omission

liability for superiors, a form of omission liability arising out of Article 7(1) does not take
precedence over superior responsibility under Article 7(3). There is a preference for
those manifestations of Article 7(1) forms of responsibility that involve the active
advancement of a crime—for example, aiding and abetting through positive action—and
a conviction pursuant to Article 7(3) is not precluded where the only available Article
7(1) forms of responsibility are realised by means of an omission. 903

duty to act

Omission may result in individual criminal responsibility under Article 7(1)

where the accused had a legal duty to act. This requires that the accused had the ability
to act, namely, that he had the means available to fulfil his legal duty, but nonetheless
failed to do so.904

Aiding and abetting can be achieved by omission, provided that the accused had a
duty to prevent the crime from being brought about.905

In addition, it must be demonstrated that there were means available to the

accused to fulfill this duty. 906
900
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 November 2006) at para. 101
901
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 727;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 518; Prosecutor v
Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 51; Prosecutor v Lukic & Lukic, No. IT-
98-32/1-A, Judgement (4 December 2012) at para. 428; Prosecutor v Popovic et al, No. IT-05-88-A,
Judgement (30 January 2015) at paras. 1732-33, 1794
902
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1774
903
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 79
904
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 49, 82, 154;
see also para 134; Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Six Preliminary Motions
Challenging Jurisdiction (28 April 2009) at para. 72
905
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 283; Prosecutor v Milutinovic et
al, No. IT-05-87-T, Judgement (26 February 2009) at para. 90

157
 By the failure to discharge his legal duty to protect the prisoners of war from
mistreatment, the Accused aided and abetter the crimes of torture and cruel treatment; not
the crime of murder.907

The accused’s duty to protect prisoners of war includes the obligation not to allow
the transfer of their custody without first assuring himself that they would not be
harmed.908

The duty to protect also arises when other units or individuals, not just a
commander’s subordinates, are involved in crimes. 909

elements

In order to incur criminal liability for an omission under Article 7(1), the accused
must have had a legal duty mandated by a rule of criminal law; he must have had the
ability to act; he failed to act intending the criminally sanctioned consequences or with
awareness and consent that the consequences would occur; and the failure to act resulted
in the commission of the crime.910

Along with the “approving spectator” doctrine, aiding and abetting also
encompasses culpable omissions, where (a) there is a legal duty to act, (b) the accused
has the ability to act, (c) he fails to act either intending the criminal consequences or with
awareness and consent that the consequences will ensue, and (d) the failure to act results
in the commission of the crime.911

“[T]o enter a conviction for aiding and abetting murder by omission, at a

minimum, all the basic elements of aiding and abetting must be fulfilled.” 912

The actus reus of aiding and abetting may be perpetrated through an omission. 913

The actus reus of aiding and abetting by omission is established when it is shown
that the accused failed to perform a legal duty which failure “assisted, encouraged or lent
moral support to the perpetration of the crime,” and had a “substantial effect” on the
commission of the crime.914

906
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1740
907
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 674
908
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1754
909
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1546
910
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 1117
911
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 90; Prosecutor v
Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1677
912
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 49
913
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 134
914
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 49;
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1740

158
 The required mens rea for aiding and abetting by omission is that: (1) the aider
and abettor must know that his omission assists in the commission of the crime of the
principal perpetrator; and (2) he must be aware of the essential elements of the crime
which was ultimately committed by the principal. While it is not necessary that the aider
and abettor know the precise crime that was intended and was in fact committed, if he is
aware that one of a number of crimes will probably be committed, and one of those
crimes is committed, he has intended to facilitate the commission of that crime, and is
guilty as an aider and abetter.915

It was not required that the accused’s failure to act was purposeful. 916

The requirements for aiding and abetting by omission are the same as for aiding
and abetting by a positive act. Thus, it must be determined whether, on the particular
facts of a case, it is established that the failure to discharge a legal duty assisted,
encouraged, or lent moral support to the perpetration of the crime, and had a substantial
effect on it. In addition, it must be demonstrated that the accused had the ability to act, or
in other words, that there were means available to the accused to fulfil this duty.917

In view of the fact that the accused made an effort, albeit ineffective, to stop the
firing, the Accused’s failure to take more effective measures to stop the unlawful shelling
of the Old Town does not make him guilty of aiding and abetting. 918

The Accused knew that both violence and cruel treatment was occurring to the
prisoners of war, despite the existing security arrangements he had ordered, and was well
aware of the animosity to the prisoners of the perpetrators and of their propensity to
extreme violence against prisoners. Yet the accused took no action to prevent the
continuance of the offences of cruel treatment that had been occurring. He had readily
available to him more than adequate officers to ensure that the incidents of mistreatment
that had occurred were not repeated. His omission, or failure to act constituted aiding and
abetting the acts of cruel treatment.919

The accused’s failure to discharge his legal duty to protect the Bosnian Muslim
prisoners assisted the perpetration of murder and the other crimes committed at Kravica
Warehouse against the Bosnian Muslim prisoners detained there, and had a substantial
effect on the realisation of the said crimes. He thus aided and abetted murder by
omission.920

substantial effect

915
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 159, see also
para. 49
916
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1758
917
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1791
918
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 355
919
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 627
920
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1563

159
 Commander’s failure to file additional criminal reports, initiate additional
investigations, or taken other measures to punish perpetrators was not shown to have
made the commission of crimes more likely and therefore his omissions did not have a
substantial effect on the crimes.921

Whether an act or omission had a substantial effect on the commission of a crime

is a fact-based inquiry. This aspect of aiding and abetting by omission has been
interpreted to mean that had the accused acted the commission of the crime would have
been substantially less likely. 922

plan

In the case of aiding and abetting, no proof is required of the existence of a

common concerted plan, let alone the existence of a pre-existence of such a plan. Indeed,
the principal need not even know of the accomplice’s contribution. 923

presence

Mere presence at the scene of the crime does not constitute aiding and abetting,
unless the person has a duty to prevent it.924

The Trial Chamber found that the presence and continued interrogation of a
witness by a person, can encouraged a third party and substantially contributed to the
criminal acts committed by him. The knowing presence constitutes aiding and
abetting. 925

Close proximity alone of fighting positions to the prison camp did not support the
inference that the accused was present and personally participated in the operation of the
prison camp.926

Commander’s presence and inspections of troops on the ground did not constitute
aiding and abetting where it was not shown that they specifically legitimized or
encouraged the crimes.927

The location at which the actus reus takes place may be removed from the
location of the principal crime. 928

921
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at paras. 1679, 1682
922
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1741
923
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 263; Prosecutor v
Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 91
924
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 283
925
Prosecutor v Furundzija, No.IT-95-17/1-T, Judgement (21 July 2000) at para. 126
926
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para.313
927
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1689
928
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at paras. 81, 146, 200;
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1783

160
 principal

Liability for aiding and abetting under the Statute cannot be inchoate: the accused
cannot be held responsible under Article 7(1) for aiding and abetting if a crime or
underlying offence is never actually carried out with his assistance, encouragement, or
moral support.929

A defendant may be convicted of having aided and abetted a crime even if the
principal perpetrators have not been tried or identified. 930

Notwithstanding the requirement that the crime or underlying offence be

ultimately committed, however, the physical perpetrator or intermediary perpetrator need
not have been tried or even identified, even where the crime or underlying offence
requires specific intent, and the perpetrator or perpetrators need not have been aware of
the accused’s contribution.931

Trial Chamber declined to make a finding on allegation that accused created a

climate of impunity where it was not shown that the crimes were committed by his
subordinates.932

specific direction

“Specific direction” is not an element of aiding and abetting liability. 933

Principle of lex mitior does not apply because it has been established that specific
direction has never been a part of the elements of aiding and abetting under customary
international law, which the Tribunal has to apply. 934

substantial effect

Aiding and abetting may be constituted by any contribution to the planning,

preparation, or execution of a finally-completed crime provided that the contribution falls
short of co-perpetration, instigation, or ordering, but nevertheless makes the performance
of the crime easier.935

929
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 92
930
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 355
931
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 92
932
Prosecutor v Perisic, No. IT-03-81-T, Judgement (6 September 2011) at para. 1586
933
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1649; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1758; Prosecutor v Stanisic &
Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 106
934
Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 128
935
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 282

161
 An act of aiding and abetting must have had a substantial effect on the
commission of persecutory acts.936

Aiding and abetting must be substantial and have a significant effect on the
commission of the crime, but is not limited to direct contributions. 937

Encouragement and moral support could only have a substantial effect on the
commission of the crime if the perpetrators were aware of it.938

Appeals Chamber was not convinced that the only inference available from the
accused’s position and tacit approval of beatings was that he lent substantial assistance to
the commission of cruel and inhumane treatment of detainees and reversed his conviction
on that count.939

There was insufficient evidence to prove beyond a reasonable doubt that the
accused’s conduct constituted either encouragement or moral support for the camp
personnel which had a substantial effect on the commission of torture. 940

Merely signing orders for the classification and release of civilians on behalf of
another individual will not, in the absence of any independent authority, be sufficient.941

The provision of engineering machinery and personnel for burial operations can
have a substantial effect on the commission of mass executions.

By providing them with logistical support, the accused permitted soldiers under
his active control to facilitate the perpetration of the killings and his doing so had a
substantial effect upon their commission. 942

The accused’s armed presence fulfilled the substantial assistance requirement for
the actus reus of aiding and abetting the crimes of other inhumane acts and cruel
treatment.943

Although the practical assistance, encouragement, or moral support provided by

the accused must have a substantial effect upon the commission of the crime or

936
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para 277; Prosecutor v
Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 37; Prosecutor v. Delalic, No. IT-96-21-
A, Judgement (20 February 2001) at para 352
937
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 284-85
938
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 277
939
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 November 2006) at para. 130
940
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 276
941
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 357 – 358.
942
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1784
943
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 438

162
underlying offence, the prosecution need not prove that the crime or underlying offence
would not have been perpetrated but for the accused’s contribution. 944

The element of substantial assistance for aiding and abetting does not require that
the accused provided the specific weapon used by the perpetrator. The element may be
established by the numerous other forms of practical assistance which substantially
facilitated the perpetrators’ crimes. 945

The fact that the substantial assistance was part of the accused’s “routine duties”is
no defence where the conduct substantially contributes to the commission of crimes. 946

Even a limited involvement may nevertheless have a substantial effect on the

realisation of a crime. 947

timing

The aider and abettor must have acted before the crime was fully completed, but
may act after the principal act of the crime had been committed. 948

Aiding an abetting may occur at the planning, preparation or execution stages of

the crime/underlying offense and practical assistance, encouragement, or moral support
may occur before, during or after the crime/underlying offense occurs. 949

The accused may aid and abet at one or more of three possible stages of the crime
or underlying offence—“planning, preparation or execution”—and the lending of
practical assistance, encouragement, or moral support may occur before, during, or after
the crime or underlying offence occurs.950

The actus reus of the aider and abettor need not serve as condition precedent for
the crime and may occur before, during, or after the principal crime has been
perpetrated.951

committing

Committing a crime covers physically perpetrating a crime or engendering a

culpable omission in violation of criminal law. The actus reus is that the accused
participated, physically or otherwise directly, in the material elements of a crime through

944
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 92; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at paras. 1740,1783
945
Prosecutor v Perisic, No. IT-03-81-T, Judgement (6 September 2011) at para. 1624
946
Prosecutor v Perisic, No. IT-03-81-T, Judgement (6 September 2011) at para. 1624
947
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1765
948
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 282
949
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 91.
950
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 91
951
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 127; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1783

163
positive acts or omissions, whether individually or jointly with others. The mens rea is
the intent to commit the crime, or with the awareness of the substantial likelihood that the
crime would occur as a consequence of one’s conduct.952

It is not necessary that the perpetrator commit the crime with his own hands. A
person who plays a central role in the commission of the crime of murder and embraces
and approves as his own the decision to commit murder is not adequately described as an
aidor and abetter but qualifies as a direct perpetrator who committed the crime. 953

A person may be jointly liable for committing murder if he participated in the

material elements of the crime, even it was not shown he fired the fatal bullet. 954

Joint criminal enterprise comes within the term “committed” and is encompassed
within Article 7(1) of the Statute despite not being explicitly referred to. 955

forms of liability in general

In order to come within the Tribunal’s jurisdiction ratione personae, any form of
liability must satisfy the preconditions of: (1) it must be provided for in the statute,
explicitly or implicitly; (2) it must have existed under customary international law at the
relevant time; (3) the law providing for that form of liability must have been sufficiently
accessible at the relevant time to anyone who acted in such a way; and (4) such person
must have been able to foresee that he could be held criminally liable for his actions if
apprehended. 956

The Trial Chamber -having found that an element necessary for a finding of the
commission pursuant to JCE III liability had not been proven - erred by failing to make
findings on whether the accused were responsible for failing to punish crimes under
Article 7(3) of the Statute, as an alternative mode of liability. 957

indirect co-perpetration

The form of liability called “indirect co-perpetration” did not exist in customary
international law and therefore could not be charged as a form of liability at the
Tribunal. 958

952
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 509; Prosecutor v
Haradinaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 615
953
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Judgement (20 July 2009) at para. 899
954
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 162
955
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003) at para. 19-20; Prosecutor v Dordevic,
No. IT-05-87/1-A, Judgement (27 January 2014) at para. 28
956
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003) at para. 21
957
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3149
958
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 62; Prosecutor v Milutinovic
et al, No. IT-05-88-PT, Decision on Ojdanic Motion Challenging Jurisdiction: Indirect Co-Perpetration

164
 Co-perpetratorship is not a valid form of liability at the ICTY.959

Allegations of indirect coperpetration in indictment would stand in light of

Appeals Chamber decision in Brdjanin that a member of a joint criminal enterprise may
be responsible for non-members who perpetrate crimes.960

instigating

actus reus

The actus reus of instigating means to prompt another person to commit an

offence. While it is not necessary to prove that the crime would not have been
perpetrated without the involvement of the accused, it is sufficient to demonstrate that the
instigation was a factor substantially contributing to the conduct of another person
committing the crime. 961

While the accused’s prompting must have been a factor “substantially

contributing to the conduct of another person committing the crime”, the Prosecution
need not prove that the crime or underlying offence would not have been perpetrated but
for the accused’s prompting. 962

To be convicted of instigating, the offence must be actually committed.963

Instigating must be more than facilitating the perpetrator’s commission of the

offence. It requires influencing the perpetrator by some kind of inciting, soliciting, or
otherwise inducing him to commit the crime. 964

Liability for instigating may ensue through implicit, written, or other non-verbal
prompting by the accused. 965

Instigation need not be public or direct, and may be committed through

intermediaries so long as the instigator possesses the requisite intent. 966

(22 March 2006) at para. 40; Prosecutor v Cermak & Markac, No. IT-01-45-PT, Decision on Prosecution’s
Consolidated Motion to Amend the Indictment and Joinder (14 July 2006) at para. 26
959
Prosecutor v Prlic et al, No. IT-04-74-AR72.3, Decision on Petkovic’s Appeal on Jurisdiction (23 April
2008) at para. 21
960
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Indriz Balaj’s Preliminary Motion
Concerning Paragraph 29 of the Indictment (31 May 2007) at para. 6
961
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 27;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 514; Prosecutor v Oric,
No. IT-03-68-T, Judgement (30 June 2006) at para. 274; Prosecutor v Seselj, No. MICT-16-99-A,
Judgement (11 April 2018) at paras. 124, 153
962
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 84; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 131
963
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 623
964
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 271
965
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para.83

165
 The accused need only prompt another to “act in a particular way”—and not
necessarily to commit a crime or underlying offence per se—if he has the intent that a
crime or underlying offence be committed in response to such prompting, or if he is
aware of the substantial likelihood that a crime or underlying offence will be
committed.967

Proof of threats, enticement, or promises to physical perpetrators may have some

relevance in assessing whether a particular conduct amounts to instigation. However, it is
not a legal requirement.968

distinguished from aiding and abetting

It is not necessary to prove that the idea or plan to commit the crime was
generated by the instigator. However, if the perpetrator has already decided to commit
the crime, acts of facilitation at that stage qualify as aiding and abetting and not
instigation. 969

The distinction between aiding and abetting and instigation is that for aiding and
abetting the perpetrator has already decided to carry out the crime, whereas for
instigation, the accused acts before that decision is made. 970

mens rea

A person who instigates another person to commit an act or omission with the
awareness of the substantial likelihood that a crime will be committed in the execution of
that instigation has the requisite mens rea for instigating.971

The instigator must be aware of the type and elements of the crime to be
committed.972

An instigator must be aware of his influencing effect on the principal perpetrator

to commit the crime and must at least accept that the crime be committed. The
occurrence of a crime is accepted when the instigator is aware that the commission of the
crime will more likely than not occur as a result of his conduct. 973

omission

966
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 273
967
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 84, fn. 88
968
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 124
969
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 271
970
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 281
971
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 32;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 514
972
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 279
973
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 279

166
 The accused’s prompting may occur not only through positive acts, but also
through omissions. 974

Instigation may be committed by omission, provided that the instigator is under a

duty to prevent the crime from being brought about.975

Instigation may not be committed by omission. 976

relationship with instigatee

Instigation does not require some kind of superiority by the instigator over the
perpetrator.977

Instigation does not require that the accused have “effective control” over the
perpetrator or perpetrators.978

specific cases

The Trial Chamber properly found the accused responsible for instigation on the
basis of the totality of the evidence, including the evidence suggesting (i) that he was
responsible for the preparation of the operation with the predominant objective to
indiscriminately attack Albanian villagers and their property; (ii) that he personally led
this operation; (iii) that he was present in Ljuboten while the crimes were committed; and
(iv) that he authorized the police members not conduct an inspection in respect of the
deaths of three men. (Satisfied Actus Reus of instigation). 979

A reasonable trier of fact could find such a link to be tenuous in circumstances

where there was a significant lapse of time between the statement and the offences,
allowing for the reasonable possibility that the accused' s statement did not substantially
contribute to the commission of the specific crimes and that other factors may have
influenced the conduct of the perpetrators.980

In light of the accused's influence over the crowd and the striking parallels
between his inflammatory words and the acts subsequently perpetrated by, inter alia,
members of the audience, no reasonable trier of fact could have found that, through his

974
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para.83
975
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 273; Prosecutor v Karadzic, No.
IT-95-5/18-PT Decision on Six Preliminary Motions Challenging Jurisdiction (28 April 2009) at para. 76
976
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at paras. 229-30; Prosecutor v
Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 572
977
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 272; Prosecutor v Popovic et al,
No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1008
978
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para.83
979
Prosecutor v Boskoski & Tarculovski v. Boškoski, No. IT-04-82-A, Judgement (19 May 2010) at para
157.
980
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 132

167
speech, he did not substantially contribute to the conduct of the perpetrators.981

In view of the content of his speech, the accused intended to prompt the
commission of the crimes or, at the very least, was aware of the substantial likelihood
that the crimes of deportation, persecution (forcible displacement), and other inhumane
acts (forcible transfer) as crimes against humanity would be committed in execution of
his instigation.982

joint criminal enterprise

common elements

When all the elements of JCE are met in a particular case, the accused has done
far more than merely associate with criminal persons. He has the intent to commit a
crime, he has joined with others to achieve this goal, and he has made a significant
contribution to the crime’s commission. Thus, he is appropriately held liable also for
those actions of other JCE members, or individuals used by them, that further the
common criminal purpose (first category of JCE) or criminal system (second category of
JCE), or that are a natural and foreseeable consequence of the carrying out of this crime
(third category of JCE).983

To find individual criminal responsibility pursuant to a joint criminal enterprise in

any of the three categories, the elements which must be established are: (i) a plurality of
persons; (ii) the existence of a common plan, design or purpose which amounts to or
involves the commission of a crime provided for in the Statute; and (iii) the participation
of the accused in the common plan involving the perpetration of one of the crimes
provided for in the Statute.984

The actus reus of joint criminal enterprise is common to each of the three
categories and comprises the following three elements; (1) a plurality of persons- they
need not be organised in a military, political or administrative structure; (2) the existence
of a common plan, design or purpose which amounts to or involves the commission of a
crime provided for in the Statute- there is no necessity for this plan, design or purpose to
have been previously arranged or formulated. The common plan or purpose may
materialise extemporaneously and be inferred from the fact that a plurality of persons acts
in unison to put into effect a joint criminal enterprise; (3) the participation of the accused
in the common plan involving the perpetration of one of the crimes provided for in the
Statute- this participation need not involve commission of a specific crime under one of

981
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 154
982
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 154
983
Prosecutor v Martic, No. IT-95-11-A, Judgement (8 October 2008) at para. 172
984
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 227; Prosecutor v Blagojevic &
Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 698; Prosecutor v Stakic, No. IT-97-24-A,
Judgement (22 March 2006) at para. 64; Prosecutor v Brdjanin, No. IT-99-36-A, Judgement (3 April 2007)
at para. 430; Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 77

168
those provisions (murder, extermination, torture, rape, etc.), but may take the form of
assistance in, or contribution to, the execution of the common plan or purpose. 985

There is no legal requirement that a minimum number of killings occur in order to

support a finding that murder is part of a joint criminal enterprise. 986

Liability under this form of responsibility may not be inchoate: the accused
cannot be held responsible, even if he was aware that the crime or underlying offence was
reasonably foreseeable, if that crime or underlying offence was not ultimately
committed.987

To be held responsible for a crime committed pursuant to a joint criminal

enterprise, the accused need merely to have participated in the common plan, design, or
purpose at the core of the JCE and he need not have performed any part of the actus reus
of the perpetrated crime.988

A co-perpetrator in a joint criminal enterprise need not physically commit any

part of the actus reus of the crime involved. Nor is the participant in a joint criminal
enterprise required to be physically present when and where the crime is being
committed.989

The existence of an agreement or understanding for the common plan, design or

purpose need not be express, but may be inferred from all the circumstances. The
participation of two or more persons in the commission of a particular crime may itself
establish an unspoken understanding or arrangement amounting to an agreement formed
between them then and there to commit that particular criminal act. Furthermore, the
common plan or purpose may materialise extemporaneously and be inferred from the fact
that a plurality of persons acts in unison to put into effect a joint criminal enterprise. 990

acquiescence

In regard to the first category even if the accused did not have control over a
specific stage of the operation, his acceptance of the final result of the enterprise is
sufficient to bear individual criminal responsibility.991

If the objective of the joint criminal enterprise changes, such that the objective is
fundamentally different in nature and scope from the common plan or design to which the
participants originally agreed, then a new and distinct joint criminal enterprise has been

985
Prosecutor v Krnojelac, No. IT-97-25-A, Judgement (17 September 2003) at para. 117
986
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 188
987
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 112
988
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 64; Prosecutor v Milutinovic
et al, No. IT-05-88-PT, Decision on Ojdanic Motion Challenging Jurisdiction: Indirect Co-Perpetration
(22 March 2006) at para. 22
989
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 112
990
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 699
991
Prosecutor v Krnojelac, No. IT-97-25-A, Judgement (17 September 2003) at para. 246

169
established. For this joint criminal enterprise, like the original joint criminal enterprise,
the three elements must be established for criminal responsibility to attach. It may be that
members of second joint criminal enterprise are the same as those in the original
enterprise. 992

The joint criminal enterprise originally had as its objective the forcible transfer
and displacement of Bosnian Muslims, but expanded to include additional crimes which
came to the attention of its members as the implementation of these objectives was seen
to include a greater range of crimes. Thus those additional crimes became part of the
JCE’s objective as well. 993

As is the case with a common criminal plan in its inception, it is not necessary for
the JCE members to explicitly agree to the expansion of criminal means; instead, as with
the original criminal plan, that agreement may materialise extemporaneously and be
inferred from circumstantial evidence.994

It is not required that all JCE members, including both accused and non-accused
lCE members, have been informed of the expanded crimes in order to show that they had
agreed to expand the JCE.995

There is no reason why an accused cannot be alleged to have participated in more

than one JCE to commit a number of crimes. 996

Although knowledge of crimes in combination with failure to intervene to prevent

them may be a basis for inferring intent, it does not compel such a conclusion.997

While an accused's knowledge of particular crimes combined with continued

participation in the execution of the common plan from which those crimes result may be
a basis, to infer that he or she shared the requisite intent for the crimes in question, this
does not necessarily compel such a conclusion. 998

Inaction or action might have encouraged or facilitated crimes does not

necessarily equate to, or compel a finding of, intent for those crimes. 999

There is no error in finding responsibility for an expanded JCE on the theory that
when JCE members became aware of the expanded crimes, and did not take any
measures to prevent their recurrence but contributed to them and persisted in
implementing the common objective, they thereby came to intend those expanded crimes.

992
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 700
993
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 1118
994
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 802
995
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 803
996
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Two Motions Alleging Defects in the Form of
the Indictment (12 May 2009) at para. 20
997
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 688
998
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 672
999
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 689

170
One incident involving two murders during an attack on one village during the first six
months was not sufficient to infer that murder and willful killing were part of the CCP
from the beginning. JCE-based convictions for murder during that period reversed. 1000

common plan or purpose

Under joint criminal enterprise liability, a trial chamber is required to determine

whether a common plan, design, or purpose existed which amounts to or involves the
commission of a crime provided for in the Statute.1001

Participation does not have to be in and of itself criminal, as long as the accused
performs acts that in some way contribute to the furtherance of the common purpose of
the JCE and provided that he shares the intent to implement the common purpose by
criminal means. Whether the orders were lawful or militarily justified is irrelevant. 1002

A trial chamber is required to make a finding that this criminal purpose is not
merely the same, but also common to all of the persons acting together within a joint
criminal enterprise. 1003

Joint criminal enterprise liability requires an agreement between the participants

in the joint criminal enterprise. Therefore, pleading a “joint criminal enterprise with
common purpose” failed to charge a crime within the statute of the Tribunal. 1004

It is not necessary to establish that joint criminal enterprise members acted in

unison in order to reach a conclusion on the existence of the common purpose.1005

There is no requirement that the accused have an agreement with the principal
perpetrator in order to be liable under JCE. 1006 However, the perpetrator’s crime must
have formed part of the criminal purpose of the JCE.1007

It is not required that members of the JCE agreed upon a particular form through
which the forcible displacement of non-Serbs was to be effectuated or that the accused
intended specific acts of coercion causing the displacement of individuals, so long as it is
established that the accused intended to forcibly displace the victims. 1008

1000
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 813
1001
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 67
1002
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1988
1003
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 96
1004
Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Motions Challenging the Indictment
Pursuant to Rule 72 of the Rules (31 May 2006) at para. 20, 22
1005
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 138
1006
Prosecutor v Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 415
1007
Prosecutor v Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 418
1008
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 917; Prosecutor
v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 684

171
 Joint criminal enterprise requires the existence of a common purpose which
amounts to or involves the commission of a crime. The common purpose need not be
previously arranged or formulated; it may materialize extemporaneously. 1009

A person can still be liable for criminal acts carried out by others without being
present – all that is necessary is that the person forms an agreement with others that a
crime will be carried out.1010

inferences

The common plan may be inferred from events on the ground. 1011

A Chamber may infer that a common plan or purpose existed by examining the
totality of the circumstances surrounding the commission of a crime or underlying
offence. For example, the way in which the crime or underlying offence is committed
may support an inference that it must have been pursuant to a common plan. In these
cases, the Prosecution is not required to adduce documentary or other explicit evidence of
the plan’s existence. 1012

Evidence of beatings and killings at Vukovar Hospital did not establish that they
were executed as part of a common plan involving the accused. Therefore, the accused
was acquitted of responsibility for the actions of the perpetrators.1013

Close co-operation between a principal perpetrator and a JCE member is but one
of various factors from which a trial chamber may infer that a crime formed part of the
common purpose and is thus imputable to JCE members. 1014

A common criminal purpose can be inferred from the fact that a plurality of
persons acts in unison to put into effect a joint criminal enterprise. 1015

The existence of a certain level of coordination on the ground among various

factions and the commission of crimes by some of these factions may not necessarily
suffice, in the context of a given case, to show beyond a reasonable doubt that such
cooperation was in pursuance of a common criminal purpose.1016

1009
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 117; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 790; Prosecutor v Seselj, No. MICT-
16-99-A, Judgement (11 April 2018) at para. 86
1010
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 82; Prosecutor v
Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 448
1011
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 611
1012
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 102
1013
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para. 608
1014
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2620
1015
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 105
1016
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 117

172
 Where the act of one accused contributes to the purpose of the other, and both
acted simultaneously, in the same place and within full view of each other, over a
prolonged period of time, the argument that there was no common purpose is plainly
unsustainable. 1017

Trial Chamber could not conclude from KLA propaganda threatening

collaborators with death that there existed a plan to mistreat civilians. 1018

plurality of persons

A trial chamber is not required to identify by name each of the persons involved
in a joint criminal enterprise or to make a separate finding on the individual actions and
intent of each alleged member. 1019

The Trial Chamber was not required to analyse separately the intentions of each
member of the JCE. Rather, it was required to identify the plurality of persons belonging
to the JCE and establish that they shared a common criminal purpose.1020

Using the concept of joint criminal enterprise to define an individual’s

responsibility for crimes physically committed by others requires a strict definition of
common purpose. That principle applies irrespective of the category of joint enterprise
alleged. The principal perpetrators of the crimes constituting the common purpose or
constituting a foreseeable consequence of it should also be identified as precisely as
possible.1021

Authority or control over principal perpetrators is not a necessary element to

establish JCE liability. However, it is one of the various factors that a chamber may take
into account in determining whether crimes of principal perpetrators were linked with the
accused. 1022

object

The Trial Chamber did not conflate the political goal to create a separate Serb
entity with the common criminal purpose of the JCE. The Trial Chamber’s findings on
the political aim of the Bosnian Serb leadership for Serbs to live in one state and the
subsequent intensification of the process of territorial demarcation are merely factors that
the Trial Chamber took into account, together with other factors, in reaching its
conclusion on the common criminal purpose of the JCE to forcibly transfer non-Serbs. 1023

1017
Prosecutor v Furundzija, No.IT-95-17/1-T, Judgement (21 July 2000) at para. 119
1018
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 635
1019
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 105
1020
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 191; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1751
1021
Prosecutor v Krnojelac, No. IT-97-25-A, Judgement (17 September 2003) at para. 116
1022
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1528
1023
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 68

173
 Persons with a common objective are not necessarily members of a JCE. It is the
interaction or cooperation among persons—their joint action—which makes these
persons a group. Joint action among members of the joint criminal enterprise must be
proven.1024

A common objective alone is not always sufficient to determine a group, because

different and independent groups may happen to share identical objectives. It is thus the
interaction or cooperation among persons – their joint action – in addition to their
common objective that forges a group out of a mere plurality. In other words, the
persons in a criminal enterprise must be shown to act together, or in concert with each
other, in the implementation of a common objective, if they are to share responsibility
for crimes committed through the JCE.1025

Whether an attack was ordered as pre-emptive, defensive or offensive is from a

legal point of view irrelevant. The issue is whether the way the military action was
carried out was criminal or not.1026

“Ethnic cleansing” was an adequate description of the common criminal plan

where the Trial Chamber found it to include various crimes through which the ethnic
cleansing was achieved, including but not limited to forcible transfer and deportation. 1027

customary international law

The notion of common design as a form of accomplice liability is firmly

established in customary international law and in addition is upheld, albeit implicitly, in
the Statute of the International Tribunal, which recognises common design as a mode of
liability separate and distinct from aiding and abetting.1028

Joint criminal enterprise existed as part of customary international law and could
therefore be the basis of a conviction at the Tribunal. 1029

distinction from aiding and abetting

Aiding and abetting a JCE is not a valid form of liability at the ICTY.1030

1024
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 884;
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Judgement (20 May 2013) at para. 1259
1025
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3561
1026
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 895
1027
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 790
1028
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 220.
1029
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003); Prosecutor v Prlic et al, No. IT-04-
74-A, Judgement (29 November 2017) at para. 591
1030
Prosecutor v Prlic et al, No. IT-04-74-AR72.3, Decision on Petkovic’s Appeal on Jurisdiction (23
April 2008) at para. 21

174
 A person who participated in its commission may be regarded as a co-perpetrator
of a joint criminal enterprise whose purpose was to commit the crime, provided that the
individual concerned shared the common intent of the principal offenders. Alternatively,
the individual concerned may be considered an aider and abettor if he merely had
knowledge of the perpetrators’ intent and lent them support which had a significant effect
on the perpetration of the crime. 1031

Co-perpetration in the context of a joint criminal enterprise differs from aiding

and abetting. Where the aider and abetter only knows that his assistance is helping a
single person to commit a single crime, he is only liable for aiding and abetting that
crime. This is so even if the principal perpetrator is part of a joint criminal enterprise
involving the commission of further crimes. Where, however, the accused knows that his
assistance is supporting the crimes of a group of persons involved in a joint criminal
enterprise and shares that intent, then he may be found criminally responsible for all the
crimes committed as part of that common purpose as a co-perpetrator.1032

The aider and abettor is always an accessory to a crime perpetrated by another

person, the principal, while this is not necessarily true for a participant in a joint criminal
enterprise. 1033

In the case of aiding and abetting no proof is required of the existence of a

common concerted plan, let alone of the pre-existence of such a plan. No plan or
agreement is required: indeed, the principal may not even know about the accomplice’s
contribution. 1034

The aider and abettor carries out acts specifically directed to assist, encourage or
lend moral support to the perpetration of a certain specific crime (murder, extermination,
rape, torture, wanton destruction of civilian property, etc.), and this support has a
substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a
participant in a joint criminal enterprise to perform acts that in some way are directed to
the furtherance of the common design. 1035

In the case of aiding and abetting, the requisite mental element is knowledge that
the acts performed by the aider and abettor assist the commission of the specific crime of
the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as
a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.1036

1031
Prosecutor v Krnojelac, No. IT-97-25-A, Judgement (17 September 2003) at para. 122
1032
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 510; Prosecutor v
Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 90
1033
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 229.
1034
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 229.
1035
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 229; Prosecutor v Vasiljevic,
No. IT-98-32-A, Judgement (25 Feb 2004) at para. 102; Prosecutor v Krnojelac, No. IT-97-25, Judgement
(17 September 2003) at para. 33
1036
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 229; Prosecutor v Vasiljevic,
No. IT-98-32-A, Judgement (25 Feb 2004) at para. 102

175
 Joint criminal enterprise is simply a means of committing a crime; it is not a
crime in itself. Therefore, it would be inaccurate to refer to aiding and abetting a joint
criminal enterprise. The aider and abettor assists the principal perpetrator or perpetrators
in committing the crime.1037

In order to convict for aiding and abetting the crime of persecution, the accused
must have had knowledge that the principal perpetrators of the joint criminal enterprise
intended to commit the underlying crimes, and by their acts they intended to discriminate
against the Muslim population, and that, with that knowledge, made a substantial
contribution to the commission of the discriminatory acts by the principal
perpetrators.1038

A difference between liability for aiding and abetting and for JCE is that the JCE
member must intend to achieve the criminal objective, whereas the aider and abetter need
only act with knowledge of the intent of the principal. 1039

The threshold for finding a "significant contribution" to a JCE is lower than the
"substantial contribution" required to enter a conviction for aiding and abetting. Thus the
Trial Chamber's finding of a significant contribution is not equivalent to the substantial
contribution required to enter a conviction for aiding and abetting. 1040

forms

Three broad forms of joint criminal enterprise have been recognised by the
International Tribunal’s jurisprudence. In the first form of joint criminal enterprise, all of
the co-perpetrators possess the same intent to effect the common purpose. The second
form of joint criminal enterprise, the “systemic” form, a variant of the first form, is
characterized by the existence of an organized criminal system, in particular in the case
of concentration or detention camps. This form of joint criminal enterprise requires
personal knowledge of the organized system and intent to further the criminal purpose of
that system. 1041

forms—JCE I

The first category of JCE is represented by cases where all co-defendants, acting
pursuant to a common design, possess the same criminal intention; for instance, the
formulation of a plan among the co-perpetrators to kill, where, in effecting this common
design (and even if each co-perpetrator carries out a different role within it), they
nevertheless all possess the intent to kill. 1042

1037
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 91; Prosecutor v
Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 886
1038
Prosecutor v Vasiljevic, No. IT-98-32-A, Judgement (25 Feb 2004) at para. 142
1039
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 885
1040
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 149
1041
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 82; Prosecutor v
Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 65
1042
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 196.

176
 The objective and subjective prerequisites for imputing criminal responsibility to
a participant who did not, or cannot be proven to have, effected the killing are as follows:
(i) the accused must voluntarily participate in one aspect of the common design (for
instance, by inflicting non-fatal violence upon the victim, or by providing material
assistance to or facilitating the activities of his co-perpetrators); and (ii) the accused, even
if not personally effecting the killing, must nevertheless intend this result. 1043

Participants in a basic or systemic form of joint criminal enterprise must be shown

to share the required intent of the principal perpetrators. Thus, for crimes of persecution,
the Prosecution must demonstrate that the accused shared the common discriminatory
intent of the joint criminal enterprise. If the accused does not share the discriminatory
intent, then he may still be liable as an aider and abettor if he knowingly makes a
substantial contribution to the crime. 1044

The prosecution need not prove, as an element of the first category, that every
single person alleged to have been a member of the joint criminal enterprise shared the
intent to commit the crime or underlying offence that is the object of the joint criminal
enterprise. 1045

As regards a first-category joint criminal enterprise, where the criminal object

consists of a crime requiring specific intent, the Prosecution must prove not only that the
accused shared with others the general intent to commit the underlying offence—for
example, the intent to kill for “murder” as an underlying offence of persecution as a
crime against humanity or “killing members of the group” as an underlying offence of
genocide—but also that he shared with the other joint criminal enterprise members the
specific intent required of the crime or underlying offence. Therefore, in the case of
persecution, the accused must have shared the intent to discriminate against a protected
group.1046

Where a conviction under the first category of JCE is concerned, the accused must
share both the intent to commit the crimes that form part of the common purpose of the
JCE and the intent to participate in a common plan aimed at their commission. 1047

The requisite mens rea for JCE I liability is the intent to commit a specific crime,
an intent that must be shared by all the co-participants.1048

JCE I requires intent in the sense of dolus directus. Recklessness or dolus

eventualis does not suffice.1049

1043
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 196.
1044
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 110
1045
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 108
1046
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 109
1047
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1369
1048
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1395
1049
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at fn. 13437

177
 forms--JCE II

An accused may be responsible for crimes committed beyond the common

purpose of the systemic joint criminal enterprise, if they were a natural and foreseeable
consequence thereof . However, participation in a systemic joint criminal enterprise does
not necessarily entail criminal responsibility for all crimes which, though not within the
common purpose of the enterprise, were a natural or foreseeable consequence of the
enterprise. A participant may be responsible for such crimes only if the Prosecution
proves that the accused had sufficient knowledge such that the additional crimes were a
natural and foreseeable consequence to him. 1050

The second category is characterised by the existence of an organised system set

in place to achieve a common criminal purpose. For there to be the requisite intent, the
accused must have had personal knowledge of the system in question (whether proven by
express testimony or a matter of reasonable inference from the accused’s position of
authority) and the intent to further the concerted system. 1051

Requiring proof of an agreement in relation to each of the crimes committed with

a common purpose, when it assessed the intent to participate in a systemic form of joint
criminal enterprise goes beyond the criterion set by the Appeals Chamber in the Tadic
case. 1052 Intent is not dependant on the existence of an agreement in determining guilt as
a co-perpetrator under the second form of joint criminal enterprise. 1053

The mens rea of a systemic joint criminal enterprise requires proof of the
participant’s personal knowledge of the system of ill-treatment, as well as the intent to
further this system of ill-treatment.1054

The mens rea requirement for the first category of joint criminal enterprise is the
intent to perpetrate a certain crime, this being the shared intent on the part of all co-
perpetrators.1055

The first form of the JCE requires intent in the sense of dolus directus, and that
recklessness or dolus eventualis does not suffice. 1056

In order to demonstrate that the subjective element of the first category of joint
criminal enterprise was met, the Trial Chamber was required to establish that he shared
with the other JCE members the intent to commit the JCE I crimes and the intent to

1050
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 86
1051
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 89
1052
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 97
1053
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 113
1054
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 109
1055
Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 77;
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1755; Prosecutor v
Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 584
1056
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Judgement (20 May 2013) at para. 1258, fn,2193

178
participate in a common plan aimed at their commission. 1057

JCE III--actus reus

The forseeable act must be a crime. Therefore, there can be no JCE III liability
for reburials, which is not a crime under the statute.1058

Provided the ‘reasonably foreseeable and natural consequences’ standard

has been established, “criminal liability under JCE III can attach to an accused for any
crime that falls outside of an agreed upon joint criminal enterprise. 1059

JCEIII--“commission”

There is no cogent reason for departing from the jurisprudence of the ICTY that
JCE, including JCE III, is a form of “commission” that has existed in customary
international law since at least 1992.1060

JCEIII--definition

Under the third category of joint criminal enterprise, an accused can be held
responsible for a crime outside the common purpose if, under the circumstances of the
case: (i) it was foreseeable to the accused that such a crime might be perpetrated by one
or more of the persons used by him (or by any other member of the joint criminal
enterprise) in order to carry out the actus reus of the crimes forming part of the common
plan. purpose; and (ii) the accused willingly took the risk that such a crime might occur
by joining or continuing to participate in the enterprise. 1061

The third category concerns cases involving a common design to pursue one
course of conduct where one of the perpetrators commits an act which, while outside the
common design, was nevertheless a natural and foreseeable consequence of the effecting
of that common purpose.1062

The artificial distinction that the subjective element of the third category of JCE
contains distinct objective and subjective elements is not valid. 1063

JCEIII--foreseeability

Probability not required.1064

1057
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at paras. 375, 386
1058
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1032;
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 1155
1059
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1440
1060
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at paras. 1672,1674;
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 281
1061
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 595
1062
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 204.
1063
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2893

179
 “Might be” committed.1065

The crime was a “possible” consequence.1066

The crime must be shown to have been foreseeable to the accused in

particular.1067

This question must be assessed in relation to the knowledge of a particular

accused, as what is natural and foreseeable to one person might not be natural and
foreseeable to another, depending on the information available to them. 1068

The foreseeability requirement applies to the crime with all its legal elements. 1069

While an accused’s ability to foresee must be established in relation to each

incident alleged, this can be done by way of inference from circumstantial evidence,
including contextual factors.1070

An accused may be responsible for crimes committed beyond the common

purpose of the joint criminal enterprise, if they were a natural and foreseeable
consequence thereof. However, it is to be emphasized that this question must be assessed
in relation to the knowledge of a particular accused. What is natural and foreseeable to
one person might not be natural and foreseeable to another, depending on the information
available to them. Thus, participation in a joint criminal enterprise does not necessarily
entail criminal responsibility for all crimes which, though not within the common
purpose of the enterprise, were a natural or foreseeable consequence of the enterprise. A
participant may be responsible for such crimes only if the Prosecution proves that the
accused had sufficient knowledge such that the additional crimes were a natural and
foreseeable consequence to him. 1071

1064
Prosecutor v Karadzic, No. IT-95-5/18-AR72.1, Decision on Prosecution ‘s Motion Appealing Trial
Chamber’s Decision on JCE III Forseeability (25 June 2009) at para. 18; Prosecutor v Popovic et al, No.
IT-05-88-A, Judgement (30 January 2015) at para. 1432
1065
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1557; Prosecutor v
Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 907; Prosecutor v Prlic et al, No. IT-
04-74-A, Judgement (29 November 2017) at para. 2853; Prosecutor v Tolimir, No. IT-05-88/2-A,
Judgement (8 April 2015) at para. 533; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30
June 2016) at para. 688; Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para.
433
1066
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 87; Prosecutor v Milutinovic
et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 96; Prosecutor v Stanisic & Zupljanin, No.
IT-08-91-A, Judgement (30 June 2016) at para. 1055; Prosecutor v Mladic, No. IT-09-92-T, Judgement (22
November 2017) at para. 3560; Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017)
at para. 2836
1067
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 65; Prosecutor v Stanisic &
Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 647
1068
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2836
1069
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 614
1070
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3072
1071
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 621

180
 It is not necessary for the purposes of the third category of joint criminal
enterprise that an accused be aware of the past occurrence of a crime for the same crime
to be foreseeable to him. 1072

The awareness of similar prior misconduct or past crimes by the direct

perpetrators is not a requirement, but, is one factor which can be taken into account when
determining the foreseeability of a crime to an accused. 1073

Knowledge of factors such as the nature of the conflict, the means by which a
joint criminal enterprise is to be achieved, and how the joint criminal enterprise is
implemented on the ground may make the possibility that such a crime might occur
sufficiently substantial as to be foreseeable to members of the joint criminal
enterprise. 1074

The fact that the nature of crimes may have been unprecedented since World War
II does not undermine the Trial Chamber’s findings on the foreseeability of the
crimes. 1075

Where thousands of Kosovo Albanians were being forcibly displaced and

mistreated on a massive scale by Serbian forces who could act with near impunity, and
where women were frequently separated from men, the possibility of sexual assaults was
sufficiently substantial to be foreseeable to the accused such that he attracted liability
under JCEIII for the sexual assaults. 1076

Trial Chamber erred in finding that murders were forseeable consequence of

operation to remove Albanians from Kosovo. While the accused was undoubtedly aware
that these events created an atmosphere of violence and insecurity, he was not aware of
acts of violence to civilians of such a gravity as to make murders, in particular, forseeable
to him. 1077

It was not necessarily forseeable to the accused that opportunistic killings would
result from the forcible transfer of members of the population. 1078

The use of dolus eventualis within the context of the third category of joint
criminal enterprise does not violate the principles of nullum crimen sine lege and in dubio
pro reo.1079

1072
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 627; Prosecutor
v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2836
1073
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2865
1074
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 627; Prosecutor
v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2836, 2865
1075
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 650
1076
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 926
1077
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1081
1078
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1830
1079
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 103

181
 Under JCE III, the possibility that a crime could be admitted must be sufficiently
substantial as to be forseeable to the accused. 1080

The subjective element of the third category joint criminal enterprise is, however,
not satisfied by implausibly remote scenarios; it requires that the possibility “hat a crime
could be committed is sufficiently substantial as to be foreseeable to the accused. 1081

The foreseeability standard does not include an express time frame. Accordingly,
a trial chamber is not required to make a finding with respect to precisely when the
crimes first became foreseeable to an accused as long as it is clear that prior to their
commission, these crimes were foreseeable to the accused and he willingly took the risk
that they might occur by joining or continuing to participate in the joint criminal
enterprise. 1082

For JCE III, the accused need not be actually aware that the crimes outside the
common purpose were being committed, it was sufficient that their occurrence was
forseeable to him and that those crimes did in fact occur.1083

In considering the foreseeability of an act being committed with the required

special intent for the crime of persecution, the general attitude of the alleged perpetrator
as demonstrated by his behaviour is a relevant factor to detennining the mens rea of the
accused. The use of derogatory language in relation to a particular group is one aspect of
an accused's behaviour that may be taken into account, together with other evidence, to
detennine the existence of discriminatory intent. The fact that the accused may have also
used the term "Muslims" is insufficient to demonstrate that his other use of derogatory
terms to refer to Muslims was not indicative of discriminatory intent against the
Bosnian Muslim population. 1084

It was not unreasonable for the Trial Chamber to have considered the climate of
extreme violence, and the accused’s knowledge thereof, as a factor in determining
whether he could have foreseen the occurrence of sexual abuse. 1085

On review of the judgement in R v. Jogee, the Appeals Chamber does not find any
cogent reason for departing from the Appeals, Chamber's well-established jurisprudence
because UK law was not a basis for the JCE III doctrine and Jogee involved accessory
liability while at the international tribunals, JCE is treated as a form of commission. 1086

1080
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1081; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 2836, 3022
1081
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1055
1082
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1056
1083
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1540
1084
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 522
1085
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2871
1086
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 434

182
 JCEIII--mens rea

The mens rea requirement for the third category of joint criminal enterprise is the
intention to participate in and further the intended activity or the criminal purpose of the
group and to contribute to the JCE or in any event to the commission of a crime by the
group. In addition, responsibility for a crime other than the one agreed upon in the
common plan arises only if, under the circumstances of the case, it was foreseeable that
such a crime might be perpetrated by one or other members and the accused knowingly
took that risk.1087

The third, “extended” form of joint criminal enterprise entails responsibility for
crimes committed beyond the common purpose, but which are nevertheless a natural and
foreseeable consequence of the common purpose. The requisite mens rea for the
extended form is twofold. First, the accused must have the intention to participate in and
contribute to the common criminal purpose. Second, in order to be held responsible for
crimes which were not part of the common criminal purpose, but which were
nevertheless a natural and foreseeable consequence of it, the accused must also know that
such a crime might be perpetrated by a member of the group, and willingly take the risk
that the crime might occur by joining or continuing to participate in the enterprise. 1088

It is appropriate to apply the notion of "common purpose" only where the

following requirements concerning mens rea are fulfilled: (i) the intention to take part in
a joint criminal enterprise and to further - individually and jointly - the criminal purposes
of that enterprise; 1089 (ii) the foreseeability of the possible commission by other members
of the group of offences that do not constitute the object of the common criminal
purpose;1090 and (iii) voluntary assumption by the accused of that risk. 1091

The mens rea standard for JCE III is the possibility that a crime committed
outside the agreed common plan is reasonably foreseeable to the accused and that the
accused willingly took the risk that such a crime might occur by continuing to participate
in the agreed common plan. 1092

For an accused to incur criminal responsibility for acts that are natural and
foreseeable consequences of a joint criminal enterprise, it is not necessary to establish
that he was aware in fact that those other acts would have occurred. It is sufficient to
show that he was aware that those acts outside the agreed enterprise were a natural and

1087
Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 77
1088
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 83; Prosecutor v
Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 65
1089
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 220.
1090
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 220.
1091
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 228.
1092
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 514; Prosecutor v Prlic et
al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2836

183
foreseeable consequence of the agreed joint criminal enterprise, and that the accused
participated in that enterprise aware of the probability that other crimes may result. 1093

For an accused to incur JCE III liability, it is not necessary to establish that he
was aware that the crimes in question occurred; it is sufficient that their occurrence was
foreseeable to him.1094

The applicable law for JCE III liability does not require that the accused create
conditions for those crimes that take place outside of the common criminal purpose. 1095

JCEIII--relation to JCE I

Reversal of the Trial Chamber's finding that a JCE existed means that other
crimes could not be a natural and foreseeable consequence of that JCE's common
purpose. Accordingly, the convictions for deviatory crimes entered via the third form of
that JCE must also fall. 1096

The jurisprudence of the Tribunal does not require the category of the JCE I crime
and the JCE III crime to match. 1097

JCEIII--specific intent crimes

It need not be shown that the accused had the intent to commit the extended
crime, only that it was forseeable. This also includes crimes which require a specific
intent.1098

On review of the STL Decision of 16 February 2011 and the Taylor Trial
Judgement, the Appeals Chamber finds that the accused has not demonstrated any error
in the Appeals Chamber’s well-established jurisprudence that JCE III applies to specific
intent crimes.1099

While the Convention for the Suppression of Terrorist Bombings, the ICC Statute,
and some post-World War II cases do not expressly provide for convictions for specific
intent crimes on the basis of the third category of joint criminal enterprise or even the
third category of joint criminal enterprise itself, this does not undermine the Appeals

1093
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 150; Prosecutor v Prlic et al,
No. IT-04-74-A, Judgement (29 November 2017) at para. 1803
1094
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2914
1095
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2975
1096
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 97
1097
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1713
1098
Prosecutor v Brdjanin, No. IT-99-36-A, Decision on Interlocutory Appeal (19 March 2004);
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 84; Prosecutor v Popovic
et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1733; Prosecutor v Karadzic, No.
IT-95-5/18-PT Decision on Six Preliminary Motions Challenging Jurisdiction (28 April 2009) at para. 32;
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at paras. 1441,1708
1099
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 598

184
Chamber’s analysis of customary international law and conclusion in the Tadic case,
which has been consistently confirmed in the Tribunal’s subsequent jurisprudence. 1100

significant contribution

While the contribution of the accused to the JCE does not have to be a sine qua
non, without which the crimes could or would not have been committed”, its significance
will be relevant in demonstrating that the accused shared the intent to pursue the common
purpose.1101

The significance and the scope of an individual's material contribution to a JCE

may be relevant in determining whether that individual had the requisite mens rea. 1102

The accused’s contribution to the JCE only needs to be "directed to the furthering
of the common plan", which implies that the acts could also have served other
purposes.1103

mens rea

The fact that the accused did not refuse to participate in a joint enterprise because
such refusal would prejudice his career, or that he feared that he would be imprisoned or
punished, is not an excuse or a defence to liability for participating in war crimes or
crimes against humanity. Nevertheless, these are circumstances which may be taken into
consideration when determining the mens rea. 1104

The mens rea required for the first and third categories of joint criminal enterprise
differs. The first category of joint criminal enterprise requires proof that all participants
shared the same criminal intent. It is necessary to establish that the accused voluntarily
participated in the enterprise and intended the criminal result. Under the third category of
joint criminal enterprise, a member of that enterprise may be held liable for a crime or
crimes which he did not physically perpetrate if, having the intent to participate in and
further a common criminal design or enterprise, the commission of other criminal acts
was a natural and foreseeable consequence of the execution of that enterprise, and, with
the awareness that such crimes were a possible consequence of the execution of that
enterprise, he participated in that enterprise. 1105

The mens rea differs according to the category of common design under
consideration: (1) The first category of cases requires the intent to perpetrate a specific
crime (this intent being shared by all the co-perpetrators).(2) For the second category
which is a variant of the first, the accused must have personal knowledge of the system of
1100
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 599
1101
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1653
1102
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2402
1103
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 494
1104
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 216
1105
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 703;
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 30

185
ill-treatment (whether proven by express testimony or inferred from the accused’s
position of authority), as well as the intent to further this concerted system of ill-
treatment. (3) The third category requires the intent to participate in and further the
criminal activity or the criminal purpose of a group and to contribute to the joint criminal
enterprise or, in any event, to the commission of a crime by the group. In addition,
responsibility for a crime other than the one agreed upon in the common plan arises only
if, in the circumstances of the case, (i) it was foreseeable that such a crime might be
perpetrated by one or other members of the group and (ii) the accused willingly took that
risk.1106

It is not required that a participant in the JCE knew about each specific crime
committed pursuant to the JCE.1107

A participant in a joint criminal enterprise would not need to know of each crime
committed in order to be criminally liable. Merely knowing that crimes are being
committed within a system and knowingly participating in that system in a way that
facilitates the commission of a crime or which allows the criminal enterprise to function
effectively or efficiently is enough. 1108

Knowledge and acceptance of the risk that crimes would be committed is

insufficient for the first form of JCE liability. 1109 The accused must share the intent to
commit the crimes. 1110

The fact that the participation of an accused amounted to no more than his or her
routine duties will not exculpate the accused - what matters is whether the act in question
furthered the common criminal purpose and whether it was carried out with the requisite
intent.1111

inferences

The Appeals Chamber recalls that when the Prosecution relies upon proof of the
state of mind of an accused by inference, that inference must be the only reasonable
inference available on the evidence. It is settled that the benefit of the doubt must always
go to the accused.1112

1106
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 32
1107
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 907
1108
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 276; Prosecutor v
Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 474
1109
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Judgement (20 May 2013) at para. 2332;
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1802
1110
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Judgement (20 May 2013) at para. 2336
1111
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1395
1112
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 237

186
 An accused's shared intent and contribution to a JCE can be inferred from his
control and command authority over the perpetrators and his failure to intervene in order
to stop or punish the crimes committed pursuant to the common criminal purpose.1113

In light of the accused’s knowledge of crimes, a failure to intervene in the

participation of subordinates in the commission of the crimes might suggest that the
accused shared the intent to further the common purpose of the JCE, but does not
necessarily compel such a conclusion, in particular if the senior civilian and military
authorities play a primary role in the criminal operation. 1114

The requisite intent for the first category of joint criminal enterprise can be
inferred from factors such as a person’s knowledge of the common criminal purpose or
the crime(s) it involves, combined with his or her continuing participation in the crimes
or in the implementation of the common criminal purpose.1115

The requisite mens rea for a conviction under JCE I can be inferred from a
person’s knowledge of the common plan, combined with his continuous participation, if
this is the only reasonable inference available on the evidence. 1116

Failure to investigate crimes was not indicative of accused’s intent to further the
common objective of the JCE where he had no authority to arrange for such an
investigation. 1117

Ultimately, responsibility for a document lies in a formal sense with the signatory.
However, in the absence of additional information, the accused who claimed he had
signed the document without reading it, raised a reasonable doubt as to whether the
document was in fact written by him and thus specifically reflected his own personal
views. Accordingly, for the purposes of evaluating criminal responsibility the report is an
insufficient basis on which to conclude that the accused possessed the necessary criminal
intent to carry out the common purpose.1118

Concealment of crimes necessarily occurs after the crimes have been committed
and may constitute evidence of a shared purpose to commit crimes. 1119

non-JCE perpetrators

JCE members may be held responsible for crimes carried out by principal
perpetrators who were non-JCE members, provided that it has been shown that the crimes

1113
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1529
1114
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1369
1115
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 393; Prosecutor
v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2590
1116
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1652; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1773
1117
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1047
1118
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2003
1119
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 479

187
can be imputed to at least one JCE member and that the latter—when using the principal
perpetrators—acted in accordance with the common objective. 1120

Where the principal perpetrator is not found to be a JCE member, factors

indicative of this link between the principal perpetrator and a JCE member include
evidence that the JCE member explicitly or implicitly requested the non-JCE member to
commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of
the non-JCE member to commit the crime. 1121

A JCE may exist if none, or only some of the perpetrators are members because
for example, they are not aware of the JCE and its objectives, but are procured by
members of the JCE to commit crimes which further that objective. 1122

Crimes committed by persons who share the objective of the JCE but are not
linked with the operations of the group are not attributable to the members of the JCE.
On the other hand, members of the JCE may procure others who are not members of the
JCE to commit crimes and crimes by those persons are attributable to members of the
JCE.1123

There is no requirement that a trial chamber demonstrate how each physical

perpetrator was used to commit the crimes in order, but it must identify how one or more
members of the joint criminal enterprise used the forces to which these physical
perpetrators belonged in furtherance of the common plan.1124

In general, in the case of a third category joint criminal enterprise, the crimes
must be committed by members of the joint criminal enterprise.1125

For JCE III, for a crime committed by someone who was not a member of the
JCE, the prosecution must prove (i) that for the accused in question it was foreseeable
that a new crime was likely to be committed by the direct perpetrator from outside the
JCE who was used by a member of the JCE to achieve the physical element of the crimes
included in the common plan and (ii) that the Accused knew that the new crime was the
probable outcome of the furtherance of the common goal but nevertheless decided to take

1120
Prosecutor v Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 413; Prosecutor v Seselj,
No. MICT-16-99-A, Judgement (11 April 2018) at para. 109; Prosecutor v. Limaj et al., No. IT-03-66-A,
Judgement (27 September 2007) at para. 120; Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23
January 2014) at para. 1256; Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at
para. 165; Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1998;
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1050; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 119
1121
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1050; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 1547, 1998; Prosecutor v Seselj, No.
MICT-16-99-A, Judgement (11 April 2018) at para. 109
1122
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 883
1123
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 1082
1124
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 165
1125
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 119

188
part in the JCE.1126

Since a member of the JCE can use a non-member to commit the crime of
genocide, and since it is not required that the non-member share the mens rea for
genocide, it is the genocidal intent of the JCE members, and not the physical perpetrators,
that is determinative for JCE I.1127

Without any further elaboration on the link between these forces and the JNA, no
reasonable trier of fact could have held that the only reasonable conclusion in the
circumstances was that these crimes could be imputed to a member of the JCE. The link
between the principal perpetrators of these crimes and members of the JCE is therefore
too tenuous to support the accused’s conviction.1128

The origin of the armed men and their affiliation remains uncertain. Without any
further elaboration on the affiliation of these armed men, no reasonable trier of fact could
have held that the only reasonable conclusion in the circumstances was that these crimes
could be imputed to a member of the JCE.1129

The link between the physical perpetrator and a joint criminal enterprise member
may be indirect, such as within the hierarchical structure of the forces involved in the
perpetration of crimes. 1130

The Trial Chamber was not required to identify any subordinates of the accused in
its evaluation of his liability under JCE. 1131

Possession of de facto powers is not necessarily dependent on having formally

identified subordinates within a hierarchical structure.1132

omission

Participation by omission may also extend to all forms of joint criminal

enterprise, so long as the accused’s failure to act amounted to a significant contribution to
the common criminal plan. 1133

A significant contribution to a JCE may consist of an act or, where there is a legal
duty to act, an omission. For omission, the relevant enquiry is whether an accused was
obligated by law to act, and if so, whether such an omission significantly contributed to
the JCE.1134

1126
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 220
1127
Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Judgement (11 July 2013) at para. 79
1128
Prosecutor v Martic, No. IT-95-11-A, Judgement (8 October 2008) at para. 192
1129
Prosecutor v Martic, No. IT-95-11-A, Judgement (8 October 2008) at para. 200
1130
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 169
1131
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2618
1132
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2619
1133
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 103
1134
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 566

189
 Participation in a JCE may be by omission. 1135

The question of whether a failure to act could be taken into account to establish
that the accused significantly contributed to a joint criminal enterprise is a question of
fact to be determined on a case-by-case basis. 1136

The relevant failures to act or acts carried out in furtherance of a joint criminal
enterprise need not involve carrying out any part of the actus reus of a crime forming part
of the common purpose, or indeed any crime at all. One’s contribution to a joint criminal
enterprise need not be in and of itself criminal, as long as the accused performs acts (or
fails to perform acts) that in some way contribute significantly to the furtherance of the
common purpose.1137

When establishing an accused’s participation in a joint criminal enterprise through

his failure to act, the existence of a legal duty to act deriving from a rule of criminal law
is not required.1138

A failure to intervene to prevent recurrence of crimes or to halt abuses may be

taken into account in assessing an accused’s contribution to a joint criminal enterprise
and his intent where the accused had some power and influence or authority over the
perpetrators sufficient to prevent or halt the abuses but failed to exercise such power.1139

Failure of the accused to use his command authority to undertake measures which
could have prevented or punished the commission of crimes can be a factor in determine
the accused’s mens rea to participate in the JCE1140

The demonstration of a duty to act that would meet the legal conditions set out in
the Tribunal’s case law for commission by omission is not required when relying on an
accused’s failure to act in the context of assessing his participation in a joint criminal
enterprise. 1141

A failure to intervene to prevent recurrence of crimes or to halt abuses may be

taken into account in assessing an accused’s contribution to a joint criminal enterprise
and his intent, where the accused had some power and influence or authority over the

1135
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2606; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-PT, Decision on Miko Stanisic’s and Stoljan Zupljanin’s Motions on
Form of the Indictment (19 March 2009) at para. 39
1136
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 110
1137
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 110
1138
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 110; Prosecutor
v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1394
1139
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 111
1140
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2081
1141
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 732

190
perpetrators sufficient to prevent or halt the abuses but failed to exercise such power. 1142

The actus reus for “commission by omission” is a higher standard than for aiding
and abetting by omission, namely, the accused must exert “concrete influence” on the
perpetration of the crime. The actus reus for aiding and abetting requires merely that the
omission have a “substantial effect” upon the perpetration of the crime. 1143

scope

Joint criminal enterprise is a form of liability and not a separate crime. 1144

Joint criminal enterprise and the common purpose doctrine are the same. 1145

Joint criminal enterprise liability applies to internal, as well as international,

armed conflicts.1146

Joint criminal enterprise is not limited to enterprises of small sizes or scope. It is

in fact well suited to cases where numerous persons are concerned with a large number of
crimes. 1147

Joint criminal enterprise is not limited to small scale enterprises. 1148

significant contribution

criminal nature of contribution

The significant contribution to a JCE need not be criminal per se.1149

Participation in a JCE need not involve the commission of a specific crime, and
does not have to be necessary or substantial, but may take the form of at least a
significant contribution to the execution of the common purpose. The contribution must
further the execution of the common purpose.1150

1142
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 734; Prosecutor
v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 1394, 1487
1143
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 156
1144
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision to Dismiss the Preliminary Objections Against the
Tribunal’s Jurisdiction (26 September 2005) at para. 16
1145
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003) at para. 36
1146
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision to Dismiss the Preliminary Objections Against the
Tribunal’s Jurisdiction (26 September 2005) at para. 20
1147
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 876
1148
Prosecutor v Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 424
1149
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 985; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1615
1150
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1378; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1535

191
 An accused's acts must in some way be directed to the furthering of the common
criminal plan of the JCE, which is an essential consideration in determining whether the
contribution to the JCE was significant.1151

The actual physical perpetration of a crime or underlying offence by an accused,

while not required for joint criminal enterprise liability, tends to support a finding that his
participation was significant if the crime or underlying offence advanced the goal of the
enterprise. 1152

Nothing prevented the Trial Chamber from considering the accused's involvement
in the commission of crimes as a contribution to the execution of the JCE.1153

The accused does not have to contribute to a specific crime in order to be held
responsible for it.1154

factors

Factors to consider when evaluating whether the accused’s level of participation

in the joint criminal enterprise was sufficiently significant include the size of the
enterprise, the functions performed by the accused and his efficiency in performing them,
and any efforts made by the accused to impede the efficient functioning of the joint
criminal enterprise. 1155

findings

In order to find an accused criminally responsible pursuant to joint criminal

enterprise liability, a trial chamber must be satisfied that the accused participated in
furthering the common purpose at the core of the JCE and must characterise the
accused’s contribution in this common plan. 1156

Having found that the accused significantly contributed to the JCE, it was
unnecessary for the Trial Chamber to expressly find that his contribution furthered the
common criminal purpose as this is, at the very least, implicit.1157

leaders

An accused’s leadership status and approving silence militate in favour of a

finding that his participation was significant.1158

1151
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1880
1152
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 105
1153
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1881
1154
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1535
1155
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 105
1156
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 136
1157
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1880
1158
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 105

192
 The receipt of information and regular reports on the activities of a body, as part
of the information flow, can be a relevant indicator in determining the accused’s authority
over that body. Acting on the contents of a report is not a necessary requirement in
determining command authority. 1159

opportunistic visitors

In the case of “opportunistic visitors” to a detention camp, a substantial

contribution to the overall effect of the camp is necessary to establish responsibility under
the joint criminal enterprise doctrine. 1160

routine duties

The fact that the participation of an accused amounted to no more than his routine
duties will not exculpate the accused. 1161

Conduct pursuant to an "administrative" or "logistical" function can be a factor

in determining whether an accused’s contribution to the JCE was significant. Operational
command is not required to satisfy the significant contribution requirement. 1162

sine que non

The Trial Chamber concurs with the Trial Chamber in the Brdjanin case that
while the participation of the accused need not be a conditio sine qua non for the
commission of the offence, the accused’s involvement in the criminal act must form a
link in the chain of causation.1163

The Prosecutor need not demonstrate that the accused’s participation is a sine qua
non, without which the crimes could or would not have been committed. Thus, the
argument cannot be made that an accused did not participate in the joint criminal
enterprise because he was easily replaceable. 1164

Although low- or mid-level actors may incur joint criminal enterprise liability, in
most situations the accused will not be someone readily replaceable. 1165

specific cases

1159
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1478
1160
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 599
1161
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1615; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 154; Prosecutor v Prlic et al, No.
IT-04-74-A, Judgement (29 November 2017) at para. 1395
1162
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1410
1163
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 702
1164
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 98
1165
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 105

193
 Informing a subordinate of the plan to remove the population and ordering a
soldier to stop distributing bread did not amount to a substantial contribution to the joint
criminal enterprise to forcibly remove the population of Srebrenica. 1166

Contribution to the concealment of crimes, such as by facilitating the failure to

prosecute the perpetrators of crimes directed at furthering the common criminal plan
may constitute a contribution to the JCE. 1167

By disseminating false information and issuing a serious threat to UNPROFOR,

the accused made a significant contribution to the JCE. 1168

Considering the Trial Chamber’s failure to enter a finding as to which authority

exercised control over Luka detention camp, the Trial Chamber’s finding that the accused
failed to take decisive action to close Luka camp or to withdraw the RS MUP forces from
it and its reliance on this finding in the assessment of the accused’s contribution to the
JCE was unreasonable and therefore an error.1169

Evidence that the accused received concurrent information about the arrests,
murders and destructions or that he subsequently launched a fake investigation did not,
by itself, show that he contributed to the commission of such crimes. In the absence of
any evidence showing that his conduct had an effect on the commission of these crimes,
it was unreasonable for the Trial Chamber to find that he contributed to them. 1170

substantial contribution

Contribution of the accused to the JCE need not be substantial or necessary to the
achievement of the JCE’s objective.1171

In general, there is no specific legal requirement that the accused make a

substantial contribution to the joint criminal enterprise. However, there may be specific
cases which require, as an exception to the general rule, a substantial contribution of the
accused to determine whether he participated in the joint criminal enterprise. 1172

The threshold for finding a "significant contribution" to a JCE is lower than the
"substantial contribution" required to enter a conviction for aiding and abetting. 1173

The contribution of the accused to the common plan must be significant, although
it need not be necessary or substantial. 1174

1166
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1173
1167
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2052
1168
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1820
1169
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 344
1170
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2278
1171
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2768; Prosecutor v
Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 883
1172
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 97
1173
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2768

194
 timing

An accused may be found to have participated in a joint criminal enterprise even

after its establishment.1175

An accused cannot be held responsible for crimes committed during a time when
he was not a member of the JCE.1176

Trial Chamber did not err in relying on events which occurred before the JCE in
order to infer the circumstances surrounding the formation of the JCE as well as its
common criminal plan.1177

Certain conduct of a JCE member which started prior to, and continued during,
the period when a common purpose of a JCE was found to have existed could constitute
an act in furtherance of the common purpose by virtue of the continuation of this
conduct.1178

mens rea

The knowledge of any kind of risk, however low, does not suffice for the
imposition of criminal responsibility for serious violations of international humanitarian
law…an awareness of a higher likelihood of risk and a volitional element must be
incorporated in the legal standard. 1179

The accused’s belief that UN personnel taken hostage were persons taking an
active part in the hostilities was not a defence, but a mistake of law. 1180

Motive must be distinguished from intent. Motive is not an element of any

crime.1181

omission

An omission may give rise to individual criminal responsibility. The commission

of a positive act is not an absolute requirement of criminal responsibility 1182
1174
Prosecutor v Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 430; Prosecutor v
Haradinaj et al, No. IT-01-74-T, Judgement (2 April 2008) at para. 138; Prosecutor v Stanisic &
Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 136
1175
Prosecutor v Gotovina et al, No. IT-03-73-AR73.1, Decision on .Interlocutory Appeals Against the
Trial Chamber’s Decision to Amend the Indictment and for Joinder (25 October 2006) at fn. 59
1176
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1985
1177
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 711
1178
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1891
1179
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 41
1180
Prosecutor v Karadzic, No. IT-95-5/18-AR73.9, Decision on Appeal of Denial of Motion for
Judgement of Acquittal for Hostage Taking (11 December 2012) at para. 22
1181
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2817
1182
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 149

195
 Generally, responsibility under 7(1) is classified as direct responsibility and
responsibility under 7(3) is classified as indirect responsibility. However, some 7(1)
forms ie omission are also indirect responsibility and thus the Chamber did not intend
omission liability under 7(1) to take precedence over superior liability under 7(3). The
Trial Chamber therefore interprets Blaški as merely establishing a preference for those
manifestations of Article 7(1) forms of responsibility that involve the active advancement
of a crime—for example, aiding and abetting through positive action—and not precluding
a conviction pursuant to Article 7(3) where the only available Article 7(1) forms of
responsibility are realised by means of an omission.1183

ordering

actus reus

The actus reus of ordering means that a person in a position of authority instructs
another person to commit an offence. 1184

There can be no liability for ordering unless the underlying crime is actually
committed.1185

causation

For “ordering”, an order need not have been transmitted directly to the physical
perpetrator.1186

The accused need not give the order directly to the physical perpetrator, and an
intermediary lower down than the accused on the chain of command who passes the order
on to the physical perpetrator may also be held responsible as an orderer for the
perpetrated crime or underlying offence, as long as he has the requisite state of mind.1187

While the accused’s issuance of the order must have been a factor substantially
contributing to the physical perpetration of a crime or underlying offence, the Prosecution
need not prove that the crime or underlying offence would not have been perpetrated but
for the accused’s order.1188

1183
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 79.
1184
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 28;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 515
1185
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1013;
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 98
1186
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 573
1187
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 87; Prosecutor
v Haradinaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 624
1188
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para.88; Prosecutor v
Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 332; Prosecutor v Karadzic, No. IT-95-
5/18-T, Judgement (24 March 2016) at para. 573

196
 express or implied

An order does not necessarily need to be explicit in relation to the consequences it

will have.1189

The order need not take any particular form; it need not be in writing. 1190

It was not established beyond reasonable doubt that the accused instructed his
troops to perform a campaign of sniping and shelling of the civilian population in
Sarajevo as such. 1191

Unlike the use of “uncontrollable” modified air bombs, snipers are generally
precise in hitting the target. In light of evidence that not all the sniping of civilians was
intentional, the inference that the accused ordered all sniping incidents is not the only
reasonable one on the ground that he generally controlled the sniping activity and
training. Convictions for ordering and planning the crimes related to the sniping incidents
reversed. 1192

The actus reus of ordering requires proof of a positive action by the person in a
position of authority, i.e. instructing another person to commit an offence. The existence
of such prior positive act emanating from the accused with respect to shellings which
occurred during his absence was not established. 1193

mens rea

The accused need only instruct another to carry out an act or engage in an
omission—and not necessarily a crime or underlying offence per se—if he has the intent
that a crime or underlying offence be committed in the execution of the order, or if he is
aware of the substantial likelihood that a crime or underlying offence will be
committed.1194

With regard to the requisite mens rea, it must be established that the accused in
issuing the order intended to bring about the commission of the crime, or was aware of
the substantial likelihood that it would be committed in the execution of the order.1195

1189
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 267
1190
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 87
1191
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 267
1192
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 277
1193
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 292
1194
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 87, fn. 94
1195
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 333 Prosecutor v Kordic
& Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 30; Prosecutor v Limaj et al, No. IT-
03-66-T, Judgement (30 November 2005) at para. 515; Prosecutor v Galic, No. IT-98-29-A, Judgement (30
November 2006) at para. 152

197
 A person who orders an act or omission with the awareness of the substantial
likelihood that a crime will be committed in the execution of that order, has the requisite
mens rea for establishing liability under Article 7(1) pursuant to ordering.1196

Leading military operations does not equate with involvement in crimes. The fact
that the accused participated in and was associated with the giving of orders does not
mean that he had the requisite mens rea for the crimes.1197

The evidence fell short of establishing that there was a “substantial likelihood”
that the forces of the accused would once again ignore orders and resort to deliberate and
indiscriminate shelling known to the accused when he ordered the attack on Srdj.
Therefore, he is not responsible for “ordering”. 1198

omission

The actus reus of ordering cannot be established in the absence of a prior positive
act because the very notion of “instructing”, pivotal to the understanding of the question
of “ordering”, requires “a positive action by the person in a position of authority”. 1199

Ordering cannot be accomplished by omission. 1200

superior relationship not required

This form of liability requires that at the time of the offence, an accused possessed
the authority to issue binding orders to the alleged perpetrator. A formal superior-
subordinate relationship between the person giving the order and the one executing it is
not a requirement in itself, nor need the order be given in writing, or in any one particular
form, or directly to the individual executing it. 1201

While the Prosecution need not prove that there existed a formal superior-
subordinate relationship between the accused and the physical perpetrator or intermediary
perpetrator, it must provide proof of some position of authority on the part of the accused
that would compel another to commit a crime in following the accused’s order. Such
authority may be informal and of a temporary nature, and as a consequence the order

1196
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 42
1197
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 957
1198
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 347
1199
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 267; Prosecutor v
Haradinaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 624
1200
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 176; Prosecutor v
Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 87
1201
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 331; Prosecutor v Kordic
& Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 28; Prosecutor v Limaj et al, No. IT-
03-66-T, Judgement (30 November 2005) at para. 515; Prosecutor v Haradinaj et al, No. IT-04-84bis-T,
Judgement (29 November 2012) at para. 624

198
issued by the accused need not be legally binding upon the physical perpetrator or
intermediary perpetrator.1202

The accused need merely instruct another person to commit an offence. Liability
for ordering may ensue where the accused issues, passes down, or otherwise transmits the
order, and that he need not use his position of authority to “convince” the physical
perpetrator or intermediary perpetrator to commit the crime or underlying offence. 1203

Ordering requires that a person in a position of authority, whether de jure or de

facto, instructs another person to commit a crime. This authority may be proved expressly
or may be reasonably implied from the evidence. 1204

planning

The actus reus of planning requires that one or more persons design the criminal
conduct constituting one or more crimes that are later perpetrated. It is sufficient to
demonstrate that the planning was a factor substantially contributing to the criminal
conduct.1205

With respect to the actus reus of planning, it is unclear whether the accused was
found to have participated in the design of the military strategy concerning the ongoing
campaign as such or whether he planned each and every incident for which he is held
responsible. In light of these uncertainties, the accused’s responsibility for planning of the
campaign of sniping and shelling of civilians in Sarajevo as such was not established
beyond reasonable doubt.1206

For “planning”, the Prosecution need not establish that the crime would not have
been committed but for the accused’s plan. 1207

While the Prosecution need not prove that the crime or underlying offence with
which the accused is charged would not have been perpetrated but for the accused’s plan,
the plan must have been a factor “substantially contributing to criminal conduct
constituting one or more statutory crimes that are later perpetrated.1208

1202
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 87
1203
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 87
1204
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12December 2007) at para. 957
1205
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 26;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 513; Prosecutor v.
Milosevic, No. IT-98-29/1-T, Judgment (12December 2007) at para. 956
1206
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 270
1207
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 571
1208
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 82

199
 A person who plans an act or omission with the awareness of the substantial
likelihood that a crime will be committed in the execution of that plan has the requisite
mens rea for planning. 1209

Where an accused is found guilty of having committed a crime, he or she cannot

at the same time be convicted of having planned the same crime. 1210 Involvement in
planning may, however, be considered an aggravating factor.1211

superior responsibility

causation

Causation has not traditionally been postulated as a conditio sine qua non for the
imposition of criminal liability on superiors for their failure to prevent or punish offences
committed by their subordinates. Hence, it is not necessary that the commander’s failure
to act caused the commission.1212

Considering that superior responsibility does not require a causal link between the
commander’s failure to prevent subordinate’s crimes and the occurance of the crimes,
there is no duty for an accused to bring evidence demonstrating that there was no causal
link.1213

civilians

Command responsibility applies to civilian superiors as well as military

commanders. 1214

criminal negligence

Criminal negligence is not a basis of liability in the context of criminal

responsibility. 1215

1209
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 31;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 513
1210
Prosecutor v. Kordi & Cerkez, No. IT-95-14/2-T, Judgement, (26 February 2001) at para. 386;
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 222
1211
Prosecutor v. Staki , No. IT-97-24-T, Judgement, (29 October 2003) at para. 443 Prosecutor v.
Milosevic, No. IT-98-29/1-T, Judgment (12December 2007) at para. 956 ; Prosecutor v Prlic et al, No. IT-
04-74-T, Judgement (29 May 2013) at vol. 1 para. 222
1212
Prosecutor v Delalic et al, No. IT-96-21-T, Judgement (16 November 1998) at para 398; Prosecutor v.
Kordi & Cerkez, No. IT-95-14/2-T, Judgement, (26 February 2001) at at para 447; Prosecutor v Brdjanin,
No. IT-99-36-T Judgement (1 September 2004) at para 280.
1213
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 40
1214
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 195 – 196; Prosecutor v
Prlic et al, No. IT-04-74-PT, Decision to Dismiss the Preliminary Objections Against the Tribunal’s
Jurisdiction (26 September 2005) at para. 19; Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June
2006) at para. 308; Prosecutor v Aleskosvski, No IT-95-14/1-T, Judgement (24 March 2000) at para. 70
1215
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 71

200
 defences

The burden is on the accused to establish the defence of “self-defence” and the
prosecution is not required to prove its absence. 1216

The defence of necessity can not be raised when the accused is convicted of the
mistreatment detainees suffered directly or indirectly at his hands or the hands of others
over whom he had superior responsibility. 1217

Acting out of “blind dedication” is no defence, as motive must be distinguished

from intent and the subordinate position of an accused is legally irrelevant to determining
individual criminal responsibility. 1218

elements

To hold a commander responsible for the crimes of his subordinates, it must be

established beyond reasonable doubt that: (1) there existed a superior-subordinate
relationship between the superior and the perpetrator of the crime; (2) the superior knew
or had reason to know that the criminal act was about to be or had been committed; and
(3) the superior failed to take the necessary and reasonable measures to prevent the
criminal act or to punish the perpetrator thereof. 1219

It is not necessary to prove under Article 7(3) that the superior ordered the
commission of the crime.1220

Command responsibility applies to every commander at every level in the armed

forces. This includes responsibility for those temporarily assigned to the commander. 1221

National law provides the framework for the authority attributed to a superior, but
the duty to act which stems from that authority must be evaluated under standards of
international law. 1222

jurisdiction

Superior responsibility existed in customary international law for internal

conflicts and therefore could be applied in the statute of the Tribunal. 1223

1216
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 838
1217
Prosecutor v Aleskosvski, No IT-95-14/1-T, Judgement (24 March 2000) at para. 53
1218
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1027
1219
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 790;
Prosecutor v Kordic & Cerkez, No. IT-95-14/2-A, Judgement (17 December 2004) at para. 827; Prosecutor
v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 56; Prosecutor v Limaj et al, No. IT-
03-66-T, Judgement (30 November 2005) at para. 520; Prosecutor v Oric, No. IT-03-68-T, Judgement (30
June 2006) at para. 294
1220
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 331
1221
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 61
1222
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 138

201
 There is no rule in customary or positive international law which requires a State
to prosecute acts which can be characterized as war crimes solely on the basis of
international criminal law, setting aside any characterizations of their national criminal
law. 1224

mens rea

The mens rea requirement is satisfied when it is established that: (i) the
commander had actual knowledge, established through either direct or circumstantial
evidence, that his subordinates were committing or about to commit crimes within the
jurisdiction of the Tribunal; or (ii) he had in his possession such information which would
put him on notice of the risk of such offences, in that it indicated or alerted him to the
need for additional investigation in order to determine whether such crimes had been or
were about to be committed by his subordinates. 1225

If a commander uses soldiers, while knowing or having reason to know that there
is a serious risk that they will not obey his orders to comply with international
humanitarian law, he may not claim that he lacked effective control over those soldiers.
A commander may not exonerate himself if he accepted the possibility before the crimes
were committed that subsequently he might not be able to control his troops. 1226

The superior’s position alone is insufficient to prove actual or constructive

knowledge of the crimes committed by his subordinates.1227

The more physically removed the superior is from the commission of the crimes,
the more supplemental indicia will be required in order to establish actual knowledge. 1228

Knowledge that crimes were committed is not sufficient. It must be established

that the superior knew of the crimes committed by his subordinates. 1229

actual knowledge

A superior’s actual knowledge that his subordinates were committing or were

about to commit a crime cannot be presumed, but it may be established by circumstantial
evidence. Factors that may be considered in this respect include the number, type and
scope of illegal acts, time during which the illegal acts occurred, number and types of

1223
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-AR72, Decision on Interlocutory Appeal
Challenging Jurisdiction in Relation to Command Responsibility (16 July 2003) at para. 31
1224
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 260
1225
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 792;
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 65; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 92
1226
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 89
1227
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 319
1228
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 248
1229
Prosecutor v Oric, No. IT-03-68-A, Judgement (3 July 2008) at para. 59

202
troops and logistics involved, geographical location, whether the occurrence of the acts is
widespread, tactical tempo of operations, modus operandi of similar illegal acts, officers
and staff involved, and location of the commander at the time. 1230

The threshold required to prove knowledge of a superior may be higher for those
exercising more informal authority than those operating within a well-defined and
structured chain of command. 1231

Factors to be considered in determining whether a superior had actual knowledge

include (1) the number, type, and scope of unlawful acts; (2) the time during which they
occurred; (3) the number and type of troops involved; (4) the logistics involved, if any;
(5) the geographical location of the acts; (6) their widespread occurrence; (7) the tactical
tempo of the operations; (8) the modus operandi of similar unlawful acts; (9) the officers
and staff involved and (10) the location of the commander at the time the acts were
committed.1232

Actual knowledge may be established through direct or circumstantial evidence

but cannot be presumed. 1233

The fact that a military commander “will most probably” be part of an organised
structure with reporting and monitoring systems has been cited as a factor that could
facilitate the showing of actual knowledge. Knowledge may be presumed if a superior
had the means to obtain the relevant information of a crime and deliberately refrained
from doing so.1234

While high positions or authority in an organization may indicate that persons are
being informed of and approve of what is occurring, this is not necessarily the case. 1235

reason to know

civilians

A stricter test should not be applied to non-military superiors than to military

superiors in this regard.1236

1230
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 368; Prosecutor v
Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 66; Prosecutor v Oric, No. IT-03-68-T,
Judgement (30 June 2006) at para. 319
1231
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 320
1232
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 94;
Prosecutor v Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 150
1233
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 94
1234
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 226; Prosecutor v
Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 792
1235
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 444
1236
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 120

203
 negligence

The mental element “had reason to know” as articulated in the Statute, does not
automatically imply a duty to obtain information.1237

A superior cannot be held responsible for negligently failing to acquire

knowledge of the acts of subordinates. A superior may be held responsible for
deliberately failing to find out, but not for negligently failing to find out.1238

It is not required that he actually acquainted himself with such information: it

suffices that such information was available to him.1239

It is only necessary for the prosecution to prove that the information was provided
or made available to the superior. It is not required that the superior actually acquainted
himself with the information. A commander will not ordinarily be permitted to deny
knowledge of reports received at his headquarters, they being sent there for his special
benefit.1240

A report sent to headquarters while the commander was away on mission was
nevertheless presumed to be “available” to him. 1241

If an accused deliberately refrains from obtaining further information, despite

having the means to do so, he may be considered to have had “reason to know”.1242

What is required is factual information which should have provided a reason for
the superior to avail himself of further knowledge. This specific, subjective element
makes the “reason to know” standard one of more than mere negligence or an objective
test for which strict liability could be found. 1243

notice

An accused has “reason to know” if he has information available to him putting

him on notice of the need for additional investigation, in order to ascertain whether his
subordinates were about to engage, were engaging, or had engaged in conduct
constituting a crime or underlying offence under the Statute of the Tribunal. 1244

1237
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 406
1238
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 96
1239
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 120
1240
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para. 479
1241
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para. 481
1242
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 120
1243
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 324
1244
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 120

204
 It must be established that the superior had information sufficiently alarming so as
to justify further inquiry. 1245

Knowledge of a strong risk that the subordinates would commit a crime is not
required. What is required is sufficiently alarming information putting a superior on
notice of the risk that crimes might subsequently be carried out by his subordinates and
justifying further inquiry. 1246

presumptions

An accused’s position of authority cannot lead to an automatic presumption,

beyond a reasonable doubt, that he or she knew or had reason to know of the crimes for
which a conviction is sought.1247

reliability

Information of mere rumors circulating in the streets does not suffice to constitute
the mens rea of command responsibility. However, in this case, the accused had
information from more reliable sources, including an investigating judge. 1248

specific cases

Accused had sufficiently alarming information to put him on notice of the risk
that crimes had been or were about to be committed by his subordinates so as to justify
further inquiry or the taking of measures. 1249

Given his awareness of the large numbers of Bosnian Muslim prisoners being
detained in the schools and guarded by members of the Zvornik Brigade as well as the
crucial fact that the detention of the prisoners was a precursor to their planned murder,
the accused had sufficiently alarming information to justify further inquiry into the
conditions in which the prisoners were being kept and the involvement of his
subordinates in perpetuating such conditions. At this point in time, the accused had
reason to know of the risk that his subordinates might participate in the cruel and
inhumane treatment of the prisoners through their role in guarding them. 1250

Mere knowledge that enemy soldiers are detained does not presume knowledge of
the mistreatment of those detainees. 1251

1245
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 28;
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1910
1246
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 304
1247
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 F