A. Preliminary Issues
510. Two particular arguments which have either been put forward by the Defence in their submissions or which are implicit in the testimony of witnesses called by the Defence need to be rebutted in the strongest possible terms.
511. The first is the suggestion that the attacks committed against the Muslim population of the Lasva Valley were somehow justifiable because, in the Defence’s allegation , similar attacks were allegedly being perpetrated by the Muslims against the Croat population.762 The Trial Chamber wishes to stress, in this regard, the irrelevance of reciprocity, particularly in relation to obligations found within international humanitarian law which have an absolute and non-derogable character. It thus follows that the tu quoque defence has no place in contemporary international humanitarian law. The defining characteristic of modern international humanitarian law is instead the obligation to uphold key tenets of this body of law regardless of the conduct of enemy combatants .
512. A second strand of argument resorted to by the Defence has been to challenge the civilian character of the Muslim population of Ahmici by alleging that the village of Ahmici was not an undefended village.763 The Defence contends that the non-combatant status of the Muslim population of Ahmici should be determined in fact and not by formalities764 and that it cannot encompass persons who had previously taken part in any fashion in hostilities, had previously taken up arms or who spontaneously took up arms to resist an attacker.765 According to these submissions, the civilian deaths in Ahmici resulted from skirmishes between warring factions and hence, were militarily-justified actions.766
513. Whether or not this is correct – and this is a matter that will be addressed later – it is nevertheless beyond dispute that at a minimum, large numbers of civilian casualties would have been interspersed among the combatants. The point which needs to be emphasised is the sacrosanct character of the duty to protect civilians, which entails, amongst other things, the absolute character of the prohibition of reprisals against civilian populations. Even if it can be proved that the Muslim population of Ahmici was not entirely civilian but comprised some armed elements, still no justification would exist for widespread and indiscriminate attacks against civilians . Indeed, even in a situation of full-scale armed conflict, certain fundamental norms still serve to unambiguously outlaw such conduct, such as rules pertaining to proportionality.
514. The Trial Chamber will also address an issue of general relevance and of a methodological nature, namely, the importance it should attach to case law in its findings on international humanitarian law and international criminal law.
2. The Tu Quoque Principle is Fallacious and Inapplicable: The Absolute Character of Obligations Imposed by Fundamental Rules of International Humanitarian Law
515. Defence counsel have indirectly or implicitly relied upon the tu quoque principle, i.e. the argument whereby the fact that the adversary has also committed similar crimes offers a valid defence to the individuals accused.767 This is an argument resting on the allegedly reciprocal nature of obligations created by the humanitarian law of armed conflict. This argument may amount to saying that breaches of international humanitarian law, being committed by the enemy, justify similar breaches by a belligerent. Or it may amount to saying that such breaches , having been perpetrated by the adversary, legitimise similar breaches by a belligerent in response to, or in retaliation for, such violations by the enemy. Clearly, this second approach to a large extent coincides with the doctrine of reprisals, and is accordingly assessed below. Here the Trial Chamber will confine itself to briefly discussing the first meaning of the principle at issue.
516. It should first of all be pointed out that although tu quoque was raised as a defence in war crimes trials following the Second World War, it was universally rejected. The US Military Tribunal in the High Command trial, for instance , categorically stated that under general principles of law, an accused does not exculpate himself from a crime by showing that another has committed a similar crime , either before or after the commission of the crime by the accused.768 Indeed, there is in fact no support either in State practice or in the opinions of publicists for the validity of such a defence.
517. Secondly, the tu quoque argument is flawed in principle. It envisages humanitarian law as based upon a narrow bilateral exchange of rights and obligations . Instead, the bulk of this body of law lays down absolute obligations, namely obligations that are unconditional or in other words not based on reciprocity. This concept is already encapsulated in Common Article 1 of the 1949 Geneva Conventions, which provides that “The High Contracting Parties undertake to respect (...( the present Convention in all circumstances” (emphasis added). Furthermore, attention must be drawn to a common provision (respectively Articles 51, 52, 131 and 148) which provides that “No High Contracting party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article (i.e. grave breaches(”. Admittedly, this provision only refers to State responsibility for grave breaches committed by State agents or de facto State agents, or at any rate for grave breaches generating State responsibility (e.g. for an omission by the State to prevent or punish such breaches). Nevertheless, the general notion underpinning those provisions is that liability for grave breaches is absolute and may in no case be set aside by resort to any legal means such as derogating treaties or agreements. A fortiori such liability and, more generally individual criminal responsibility for serious violations of international humanitarian law may not be thwarted by recourse to arguments such as reciprocity.
518. The absolute nature of most obligations imposed by rules of international humanitarian law reflects the progressive trend towards the so-called ‘humanisation’ of international legal obligations, which refers to the general erosion of the role of reciprocity in the application of humanitarian law over the last century. After the First World War, the application of the laws of war moved away from a reliance on reciprocity between belligerents, with the consequence that, in general, rules came to be increasingly applied by each belligerent despite their possible disregard by the enemy.769 The underpinning of this shift was that it became clear to States that norms of international humanitarian law were not intended to protect State interests; they were primarily designed to benefit individuals qua human beings. Unlike other international norms, such as those of commercial treaties which can legitimately be based on the protection of reciprocal interests of States, compliance with humanitarian rules could not be made dependent on a reciprocal or corresponding performance of these obligations by other States. This trend marks the translation into legal norms of the “categorical imperative” formulated by Kant in the field of morals: one ought to fulfil an obligation regardless of whether others comply with it or disregard it.
519. As a consequence of their absolute character, these norms of international humanitarian law do not pose synallagmatic obligations, i.e. obligations of a State vis-ŕ-vis another State. Rather -- as was stated by the International Court of Justice in the Barcelona Traction case (which specifically referred to obligations concerning fundamental human rights) -- they lay down obligations towards the international community as a whole, with the consequence that each and every member of the international community has a “legal interest” in their observance and consequently a legal entitlement to demand respect for such obligations.770
520. Furthermore, most norms of international humanitarian law, in particular those prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms of international law or jus cogens, i.e. of a non-derogable and overriding character.771 One illustration of the consequences which follow from this classification is that if the norms in question are contained in treaties, contrary to the general rule set out in Article 60 of the Vienna Convention on the Law of Treaties, a material breach of that treaty obligation by one of the parties would not entitle the other to invoke that breach in order to terminate or suspend the operation of the treaty. Article 60(5) provides that such reciprocity or in other words the principle inadimplenti non est adimplendum does not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular the provisions prohibiting any form of reprisals against persons protected by such treaties.
3. The Prohibition of Attacks on Civilian Populations
521. The protection of civilians in time of armed conflict, whether international or internal, is the bedrock of modern humanitarian law. In 1938, the Assembly of the League of Nations, echoing an important statement made, with reference to Spain , in the House of Commons by the British Prime Minister Neville Chamberlain,772 adopted a Resolution concerning the protection of civilian populations against bombing from the air, in which it stated that “the intentional bombing of (the( civilian population is illegal”.773 Indeed , it is now a universally recognised principle, recently restated by the International Court of Justice, that deliberate attacks on civilians or civilian objects are absolutely prohibited by international humanitarian law.774
522. The protection of civilians and civilian objects provided by modern international law may cease entirely or be reduced or suspended in three exceptional circumstances : (i) when civilians abuse their rights; (ii) when, although the object of a military attack is comprised of military objectives, belligerents cannot avoid causing so -called collateral damage to civilians; and (iii) at least according to some authorities , when civilians may legitimately be the object of reprisals.
523. In the case of clear abuse of their rights by civilians, international rules operate to lift that protection which would otherwise be owed to them. Thus, for instance, under Article 19 of the Fourth Geneva Convention, the special protection against attacks granted to civilian hospitals shall cease, subject to certain conditions , if the hospital “(is used( to commit, outside (its( humanitarian duties, acts harmful to the enemy”, for example if an artillery post is set up on top of the hospital. Similarly, if a group of civilians takes up arms in an occupied territory and engages in fighting against the enemy belligerent, they may be legitimately attacked by the enemy belligerent whether or not they meet the requirements laid down in Article 4(A)(2) of the Third Geneva Convention of 1949.
524. In the case of attacks on military objectives causing damage to civilians, international law contains a general principle prescribing that reasonable care must be taken in attacking military objectives so that civilians are not needlessly injured through carelessness. This principle, already referred to by the United Kingdom in 1938 with regard to the Spanish Civil War,775 has always been applied in conjunction with the principle of proportionality, whereby any incidental (and unintentional) damage to civilians must not be out of proportion to the direct military advantage gained by the military attack. In addition, attacks , even when they are directed against legitimate military targets, are unlawful if conducted using indiscriminate means or methods of warfare, or in such a way as to cause indiscriminate damage to civilians. These principles have to some extent been spelled out in Articles 57 and 58 of the First Additional Protocol of 1977. Such provisions, it would seem, are now part of customary international law, not only because they specify and flesh out general pre-existing norms, but also because they do not appear to be contested by any State, including those which have not ratified the Protocol. Admittedly, even these two provisions leave a wide margin of discretion to belligerents by using language that might be regarded as leaving the last word to the attacking party. Nevertheless this is an area where the “elementary considerations of humanity” rightly emphasised by the International Court of Justice in the Corfu Channel,776 Nicaragua777 and Legality of the Threat or Use of Nuclear Weapons778 cases should be fully used when interpreting and applying loose international rules , on the basis that they are illustrative of a general principle of international law.
525. More specifically, recourse might be had to the celebrated Martens Clause which ,779 in the authoritative view of the International Court of Justice, has by now become part of customary international law.780 True, this Clause may not be taken to mean that the “principles of humanity” and the “dictates of public conscience ” have been elevated to the rank of independent sources of international law, for this conclusion is belied by international practice. However, this Clause enjoins , as a minimum, reference to those principles and dictates any time a rule of international humanitarian law is not sufficiently rigorous or precise: in those instances the scope and purport of the rule must be defined with reference to those principles and dictates. In the case under discussion, this would entail that the prescriptions of Articles 57 and 58 (and of the corresponding customary rules) must be interpreted so as to construe as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians.
526. As an example of the way in which the Martens clause may be utilised, regard might be had to considerations such as the cumulative effect of attacks on military objectives causing incidental damage to civilians. In other words, it may happen that single attacks on military objectives causing incidental damage to civilians , although they may raise doubts as to their lawfulness, nevertheless do not appear on their face to fall foul per se of the loose prescriptions of Articles 57 and 58 (or of the corresponding customary rules). However, in case of repeated attacks, all or most of them falling within the grey area between indisputable legality and unlawfulness, it might be warranted to conclude that the cumulative effect of such acts entails that they may not be in keeping with international law. Indeed , this pattern of military conduct may turn out to jeopardise excessively the lives and assets of civilians, contrary to the demands of humanity.
527. As for reprisals against civilians, under customary international law they are prohibited as long as civilians find themselves in the hands of the adversary . With regard to civilians in combat zones, reprisals against them are prohibited by Article 51(6) of the First Additional Protocol of 1977, whereas reprisals against civilian objects are outlawed by Article 52(1) of the same instrument. The question nevertheless arises as to whether these provisions, assuming that they were not declaratory of customary international law, have subsequently been transformed into general rules of international law. In other words, are those States which have not ratified the First Protocol (which include such countries as the U.S., France , India, Indonesia, Israel, Japan, Pakistan and Turkey), nevertheless bound by general rules having the same purport as those two provisions? Admittedly, there does not seem to have emerged recently a body of State practice consistently supporting the proposition that one of the elements of custom, namely usus or diuturnitas has taken shape. This is however an area where opinio iuris sive necessitatis may play a much greater role than usus, as a result of the aforementioned Martens Clause. In the light of the way States and courts have implemented it, this Clause clearly shows that principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent . The other element, in the form of opinio necessitatis, crystallising as a result of the imperatives of humanity or public conscience, may turn out to be the decisive element heralding the emergence of a general rule or principle of humanitarian law.
528. The question of reprisals against civilians is a case in point. It cannot be denied that reprisals against civilians are inherently a barbarous means of seeking compliance with international law. The most blatant reason for the universal revulsion that usually accompanies reprisals is that they may not only be arbitrary but are also not directed specifically at the individual authors of the initial violation . Reprisals typically are taken in situations where the individuals personally responsible for the breach are either unknown or out of reach. These retaliatory measures are aimed instead at other more vulnerable individuals or groups. They are individuals or groups who may not even have any degree of solidarity with the presumed authors of the initial violation; they may share with them only the links of nationality and allegiance to the same rulers.
529. In addition, the reprisal killing of innocent persons, more or less chosen at random, without any requirement of guilt or any form of trial, can safely be characterized as a blatant infringement of the most fundamental principles of human rights. It is difficult to deny that a slow but profound transformation of humanitarian law under the pervasive influence of human rights has occurred. As a result belligerent reprisals against civilians and fundamental rights of human beings are absolutely inconsistent legal concepts. This trend towards the humanisation of armed conflict is amongst other things confirmed by the works of the United Nations International Law Commission on State Responsibility. Article 50(d) of the Draft Articles on State Responsibility, adopted on first reading in 1996, prohibits as countermeasures any “conduct derogating from basic human rights”.781
530. It should be added that while reprisals could have had a modicum of justification in the past, when they constituted practically the only effective means of compelling the enemy to abandon unlawful acts of warfare and to comply in future with international law, at present they can no longer be justified in this manner. A means of inducing compliance with international law is at present more widely available and, more importantly, is beginning to prove fairly efficacious: the prosecution and punishment of war crimes and crimes against humanity by national or international courts. This means serves the purpose of bringing to justice those who are responsible for any such crime, as well as, albeit to a limited extent, the purpose of deterring at least the most blatant violations of international humanitarian law.
531. Due to the pressure exerted by the requirements of humanity and the dictates of public conscience, a customary rule of international law has emerged on the matter under discussion. With regard to the formation of a customary rule, two points must be made to demonstrate that opinio iuris or opinio necessitatis can be said to exist.
532. First, even before the adoption of the First Additional Protocol of 1977, a number of States had declared or laid down in their military manuals that reprisals in modern warfare are only allowed to the extent that they consist of the use, against enemy armed forces, of otherwise prohibited weapons – thus a contrario admitting that reprisals against civilians are not allowed. In this respect one can mention the United States military manual for the Army (The Law of Land Warfare), of 1956,782 as well as the Dutch “Soldiers Handbook” (Handboek voor de Soldaat) of 1974.783 True, other military manuals of the same period took a different position, admitting reprisals against civilians not in the hands of the enemy belligerent.784 In addition, senior officials of the United States Government seem to have taken a less clear stand in 1978, by expressing doubts about the workability of the prohibition of reprisals against civilians.785 The fact remains, however, that elements of a widespread opinio necessitatis are discernible in international dealings. This is confirmed, first of all, by the adoption, by a vast majority, of a Resolution of the U.N. General Assembly in 1970 which stated that “civilian populations, or individual members thereof, should not be the object of reprisals”.786 A further confirmation may be found in the fact that a high number of States have ratified the First Protocol, thereby showing that they take the view that reprisals against civilians must always be prohibited.787 It is also notable that this view was substantially upheld by the ICRC in its Memorandum of 7 May 1983 to the States parties to the 1949 Geneva Conventions on the Iran-Iraq war788 and by Trial Chamber I of the ICTY in Martic.789
533. Secondly, the States that have participated in the numerous international or internal armed conficts which have taken place in the last fifty years have normally refrained from claiming that they had a right to visit reprisals upon enemy civilians in the combat area. It would seem that such claim has been only advanced by Iraq in the Iran-Iraq war of 1980-1988790 as well as – but only in abstracto and hypothetically, by a few States, such as France in 1974791 and the United Kingdom in 1998.792 The aforementioned elements seem to support the contention that the demands of humanity and the dictates of public conscience, as manifested in opinio necessitatis, have by now brought about the formation of a customary rule also binding upon those few States that at some stage did not intend to exclude the abstract legal possibility of resorting to the reprisals under discussion.
534. The existence of this rule was authoritatively confirmed, albeit indirectly , by the International Law Commission. In commenting on sub-paragraph d of Article 14 (now Article 50) of the Draft Articles on State Responsibility, which excludes from the regime of lawful countermeasures any conduct derogating from basic human rights, the Commission noted that Article 3 common to the four 1949 Geneva Conventions “prohibits any reprisals in non-international armed conflicts with respect to the expressly prohibited acts as well as any other reprisal incompatible with the absolute requirement of humane treatment”.793 It follows that, in the opinion of the Commission, reprisals against civilians in the combat zone are also prohibited. This view, according to the Trial Chamber, is correct. However, it must be supplemented by two propositions. First, Common Article 3 has by now become customary international law.794 Secondly, as the International Court of Justice rightly held in Nicaragua, it encapsulates fundamental legal standards of overarching value applicable both in international and internal armed conflicts.795 Indeed, it would be absurd to hold that while reprisals against civilians entailing a threat to life and physical safety are prohibited in civil wars, they are allowed in international armed conflicts as long as the civilians are in the combat zone .
535. It should also be pointed out that at any rate, even when considered lawful , reprisals are restricted by; (a) the principle whereby they must be a last resort in attempts to impose compliance by the adversary with legal standards (which entails , amongst other things, that they may be exercised only after a prior warning has been given which has failed to bring about the discontinuance of the adversary’s crimes); (b) the obligation to take special precautions before implementing them (they may be taken only after a decision to this effect has been made at the highest political or military level; in other words they may not be decided by local commanders ); (c) the principle of proportionality (which entails not only that the reprisals must not be excessive compared to the precedent unlawful act of warfare, but also that they must stop as soon as that unlawful act has been discontinued) and; (d ) ‘elementary considerations of humanity’ (as mentioned above).
536. Finally, it must be noted, with specific regard to the case at issue, that whatever the content of the customary rules on reprisals, the treaty provisions prohibiting them were in any event applicable in the case in dispute. In 1993, both Croatia and Bosnia and Herzegovina had ratified Additional Protocol I and II , in addition to the four Geneva Conventions of 1949.796 Hence, whether or not the armed conflict of which the attack on Ahmici formed part is regarded as internal, indisputably the parties to the conflict were bound by the relevant treaty provisions prohibiting reprisals.
4. The Importance the International Tribunal can Attach to Case Law in its Findings of Law
537. This issue, albeit of general relevance and of a methodological nature, acquires special significance in the present judgement, as it is largely based on international and national judicial decisions. The Tribunal’s need to draw upon judicial decisions is only to be expected, due to the fact that both substantive and procedural criminal law is still at a rudimentary stage in international law. In particular, there exist relatively few treaty provisions on the matter. By contrast, especially after World War II, a copious amount of case law has developed on international crimes . Again, this is a fully understandable development: it was difficult for international law-makers to reconcile very diverse and often conflicting national traditions in the area of criminal law and procedure by adopting general rules capable of duly taking into account those traditions. By contrast, general principles may gradually crystallise through their incorporation and elaboration in a series of judicial decisions delivered by either international or national courts dealing with specific cases. This being so, it is only logical that international courts should rely heavily on such jurisprudence. What judicial value should be assigned to this corpus?
538. The value to be assigned to judicial precedents to a very large extent depends on and is closely bound up with the legal nature of the Tribunal, i.e. on whether or not the Tribunal is an international court proper. The Trial Chamber shall therefore first of all consider, if only briefly, this matter – a matter that so far the Tribunal has not had the opportunity to delve into.
539. Indisputably, the ICTY is an international court, (i) because this was the intent of the Security Council, as expressed in the resolution establishing the Tribunal, (ii) because of the structure and functioning of this Tribunal, as well as the status, privileges and immunities it enjoys under Article 30 of the Statute , and (iii) because it is called upon to apply international law to establish whether serious violations of international humanitarian law have been committed in the territory of the former Yugoslavia. Thus, the normative corpus to be applied by the Tribunal principaliter, i.e. to decide upon the principal issues submitted to it, is international law. True, the Tribunal may be well advised to draw upon national law to fill possible lacunae in the Statute or in customary international law. For instance, it may have to peruse and rely on national legislation or national judicial decisions with a view to determining the emergence of a general principle of criminal law common to all major systems of the world.797 Furthermore, the Tribunal may have to apply national law incidenter tantum, i.e. in the exercise of its incidental jurisdiction. For instance, in determining whether Article 2 of the Statute (on grave breaches) is applicable, the Tribunal may have to establish whether one of the acts enumerated there has been perpetrated against a person regarded as “protected” under the Fourth Geneva Convention of 1949 . To this end it may have to satisfy itself that the person possessed the nationality of a State other than the enemy belligerent or Occupying Power. Clearly, this enquiry may only be carried out on the basis of the relevant national law of the person concerned. The fact remains, however, that the principal body of law the Tribunal is called upon to apply in order to adjudicate the cases brought before it is international law.
540. Being international in nature and applying international law principaliter , the Tribunal cannot but rely upon the well-established sources of international law and, within this framework, upon judicial decisions. What value should be given to such decisions? The Trial Chamber holds the view that they should only be used as a “subsidiary means for the determination of rules of law” (to use the expression in Article 38(1)(d) of the Statute of the International Court of Justice, which must be regarded as declaratory of customary international law). Hence, generally speaking, and subject to the binding force of decisions of the Tribunal’s Appeals Chamber upon the Trial Chambers, the International Tribunal cannot uphold the doctrine of binding precedent (stare decisis) adhered to in common law countries. Indeed, this doctrine among other things presupposes to a certain degree a hierarchical judicial system. Such a hierarchical system is lacking in the international community . Clearly, judicial precedent is not a distinct source of law in international criminal adjudication. The Tribunal is not bound by precedents established by other international criminal courts such as the Nuremberg or Tokyo Tribunals, let alone by cases brought before national courts adjudicating international crimes. Similarly , the Tribunal cannot rely on a set of cases, let alone on a single precedent, as sufficient to establish a principle of law: the authority of precedents (auctoritas rerum similiter judicatarum) can only consist in evincing the possible existence of an international rule. More specifically, precedents may constitute evidence of a customary rule in that they are indicative of the existence of opinio iuris sive necessitatis and international practice on a certain matter, or else they may be indicative of the emergence of a general principle of international law. Alternatively, precedents may bear persuasive authority concerning the existence of a rule or principle, i.e. they may persuade the Tribunal that the decision taken on a prior occasion propounded the correct interpretation of existing law. Plainly , in this case prior judicial decisions may persuade the court that they took the correct approach, but they do not compel this conclusion by the sheer force of their precedential weight. Thus, it can be said that the Justinian maxim whereby courts must adjudicate on the strength of the law, not of cases (non exemplis, sed legibus iudicandum est) also applies to the Tribunal as to other international criminal courts.
541. As noted above, judicial decisions may prove to be of invaluable importance for the determination of existing law. Here again attention should however be drawn to the need to distinguish between various categories of decisions and consequently to the weight they may be given for the purpose of finding an international rule or principle. It cannot be gainsaid that great value ought to be attached to decisions of such international criminal courts as the international tribunals of Nuremberg or Tokyo, or to national courts operating by virtue, and on the strength, of Control Council Law no. 10, a legislative act jointly passed in 1945 by the four Occupying Powers and thus reflecting international agreement among the Great Powers on the law applicable to international crimes and the jurisdiction of the courts called upon to rule on those crimes. These courts operated under international instruments laying down provisions that were either declaratory of existing law or which had been gradually transformed into customary international law. In many instances no less value may be given to decisions on international crimes delivered by national courts operating pursuant to the 1948 Genocide Convention, or the 1949 Geneva Conventions or the 1977 Protocols or similar international treaties. In these instances the international framework on the basis of which the national court operates and the fact that in essence the court applies international substantive law, may lend great weight to rulings of such courts. Conversely, depending upon the circumstances of each case, generally speaking decisions of national courts on war crimes or crimes against humanity delivered on the basis of national legislation would carry relatively less weight.
542. In sum, international criminal courts such as the International Tribunal must always carefully appraise decisions of other courts before relying on their persuasive authority as to existing law. Moreover, they should apply a stricter level of scrutiny to national decisions than to international judgements, as the latter are at least based on the same corpus of law as that applied by international courts, whereas the former tend to apply national law, or primarily that law, or else interpret international rules through the prism of national legislation.
B. Crimes Against Humanity
1. Objective and Subjective Elements of the Crimes Under Article 5
543. Article 5 of the Statute of the International Tribunal deals with crimes against humanity. The essence of these crimes is a systematic policy of a certain scale and gravity directed against a civilian population. In the Nikolic Rule 61 decision, the Trial Chamber set forth in broad terms three distinct components of crimes against humanity under the ICTY Statute:798
First, the crimes must be directed at a civilian population, specifically identified as a group by the perpetrators of those acts. Secondly, the crimes must, to a certain extent, be organised and systematic. Although they need not be related to a policy established at State level, in the conventional sense of the term, they cannot be the work of isolated individuals alone. Lastly, the crimes, considered as a whole , must be of a certain scale and gravity.
544. The following elements can be identified as comprising the core elements of crimes against humanity: first, the existence of an armed conflict; second, that the acts were part of a widespread or systematic occurrence of crimes directed against a civilian population (the requirement that the occurrence of crimes be widespread or systematic being a disjunctive one799) and finally, that the perpetrator had knowledge of the wider context in which his act occurs.800
2. The Requirement of an Armed Conflict
545. By requiring that crimes against humanity be committed in either internal or international armed conflict, the Security Council, in establishing the International Tribunal, may have defined the crime in Article 5 more narrowly than is necessary under customary international law.801 It is nevertheless sufficient for the purposes of Article 5 that the act occurred in the course or duration of any armed conflict. The type and nature of such conflict – whether international or internal – is therefore immaterial.802 An armed conflict can be said to exist 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.803
546. The nature of the nexus required under Article 5 of the Statute is merely that the act be linked geographically as well as temporally with the armed conflict.804
3. ‘Directed Against a Civilian Population’
547. It would seem that a wide definition of “civilian” and “population” is intended . This is warranted first of all by the object and purpose of the general principles and rules of humanitarian law, in particular by the rules prohibiting crimes against humanity. The latter are intended to safeguard basic human values by banning atrocities directed against human dignity. One fails to see why only civilians and not also combatants should be protected by these rules (in particular by the rule prohibiting persecution), given that these rules may be held to possess a broader humanitarian scope and purpose than those prohibiting war crimes. However, faced with the explicit limitation laid down in Article 5, the Trial Chamber holds that a broad interpretation should nevertheless be placed on the word “civilians”, the more so because the limitation in Article 5 constitutes a departure from customary international law.
548. The above proposition is borne out by the case law. Of particular relevance to the present case is the finding in Barbie805 (admittedly based on general international law) that “inhumane acts and persecution commited in a systematic manner, in the name of a State practising a policy of ideological supremacy, not only against persons by reason of their membership of a racial or religious community but also against the opponents of that policy, whatever the form of their “opposition” could be considered a crime against humanity.806 In the Vukovar Rule 61 Decision of 3 April 1996, a Trial Chamber held that crimes against humanity may be committed even where the victims at one time bore arms.807
549. Thus the presence of those actively involved in the conflict should not prevent the characterization of a population as civilian and those actively involved in a resistance movement can qualify as victims of crimes against humanity.
4. Can Crimes Against Humanity Comprise Isolated Acts?
550. In general terms, the very nature of the criminal acts over which the International Tribunal has jurisdiction under Article 5, in view of the fact that they must be ‘directed against any civilian population,’ ensures that what is to be alleged will not be one particular act but, instead, a course of conduct.808 Nevertheless, in certain circumstances, a single act has comprised a crime against humanity when it occurred within the necessary context.809 For example, the act of denouncing a Jewish neighbour to the Nazi authorities - if committed against a background of widespread persecution – has been regarded as amounting to a crime against humanity.810 An isolated act, however – i.e. an atrocity which did not occur within such a context – cannot.
5. The Policy Element
551. With regard to the “form of governmental, organisational or group policy” which is to direct the acts in question, the Trial Chamber has noted that although the concept of crimes against humanity necessarily implies a policy element, there is some doubt as to whether it is strictly a requirement, as such, for crimes against humanity. In any case, it appears that such a policy need not be explicitly formulated, nor need it be the policy of a State. 811
552. The need for crimes against humanity to have been at least tolerated by a State , Government or entity is also stressed in national and international case-law. The crimes at issue may also be State-sponsored or at any rate may be part of a governmental policy or of an entity holding de facto authority over a territory .812
553. National case-law tends, in particular, to emphasise that crimes against humanity are usually the manifestation of a criminal governmental policy. As observed by the Canadian Supreme Court in the case of Finta:813
The central concern in the case of crimes against humanity is with such things as state-sponsored or sanctioned persecution, not the private individual who has a particular hatred against a particular group or the public generally.
554. The aforementioned judgements and others on the same matter implicitly illustrate the nature and implications of the link between an offence and a large-scale or systematic practice of abuses necessary in order for the offence to be characterised as a crime against humanity. In particular, they enable us to answer the question of whether the offence must be perpetrated by organs or agents of a State or a governmental authority or on behalf of such bodies, or whether it may be committed by individuals not acting in an official capacity, and in the latter case, whether the offence must be approved of or at least condoned or countenanced by a governmental body for it to amount to a crime against humanity.
555. While crimes against humanity are normally perpetrated by State organs, i.e . individuals acting in an official capacity such as military commanders, servicemen , etc., there may be cases where the authors of such crimes are individuals having neither official status nor acting on behalf of a governmental authority. The available case-law seems to indicate that in these cases some sort of explicit or implicit approval or endorsement by State or governmental authorities is required, or else that it is necessary for the offence to be clearly encouraged by a general governmental policy or to clearly fit within such a policy. In addition to many decisions concerning crimes against humanity perpetrated by individuals acting an a private capacity,814 the Weller case may prove to be of some relevance to this issue. This case gave rise to six different judgements by German courts after World War II815 and involved the ill-treatment of Jewish civilians by two persons under the command of Weller, a member of the SS, who was at the time not in uniform and was acting on his own initiative. After the injured parties reported to the Jewish community , which in turn complained to the local Gestapo, the head of the Gestapo informed the wronged Jews that Weller's actions were an isolated event which would in no way be approved. Thereafter Weller was summoned by the Gestapo and strongly taken to task by the district leader of the Nazi party. On appeal to the Supreme Court for the British zone, it was held that the offence did indeed constitute a crime against humanity, on the grounds that it was sufficient for the attack on human dignity to be connected to the national-socialist system of power and hegemony.816
6. Knowledge of the Context Within Which the Perpetrator’s Actions are Taken :the Mens Rea Requirement
556. The determination of the elements comprising the mens rea of crimes against humanity has proved particularly difficult and controversial. Nevertheless , the requisite mens rea for crimes against humanity appears to be comprised by (1) the intent to commit the underlying offence, combined with (2) knowledge of the broader context in which that offence occurs.817
557. With regard to the latter requirement (knowledge), the ICTR in Prosecutor v. Kayishema noted as follows:818
[t]he perpetrator must knowingly commit crimes against humanity in the sense that he must understand the overall context of his act. ((Part of what transforms an individual’s act(s) into a crime against humanity is the inclusion of the act within a greater dimension of criminal conduct; therefore an accused should be aware of this greater dimension in order to be culpable thereof. Accordingly, actual or constructive knowledge of the broader context of the attack, meaning that the accused must know that his act(s) is part of a widespread or systematic attack on a civilian population and pursuant to some sort of policy or plan, is necessary to satisfy the requisite mens rea element of the accused.
558. Two aspects of the subjective requirement of crimes against humanity are now free from dispute. Subsequent to the Appeals Chamber’s decision in Prosecutor v. Tadic, crimes against humanity need be committed with a discriminatory intent only with regard to the category of “persecutions” under Article 5(h); ie. the sole category in which discrimination comprises an integral element of the prohibited conduct. Otherwise, a discriminatory animus is not an essential ingredient of the mens rea of crimes against humanity.819 Nor are the motives (as distinct from the intent) of the accused, as such, of special pertinence.820
7. The Constituent Offences
559. The instant case involves counts of murder under Article 5(a) (counts 2, 4, 6, 8, 12 and 16), persecutions under Article 5(h) (count 1) and inhumane acts under Article 5(i) (counts 10, 14 and 18). Murder and inhumane acts will here be considered ; persecution forms part of a separate analysis.
(a) Article 5(a): Murder
560. The constituent elements of murder under Article 5(a) of the Statute are well known.821 They comprise the death of the victim as a result of the acts or omissions of the accused, where the conduct of the accused was a substantial cause of the death of the victim.822 It can be said that the accused is guilty of murder if he or she engaging in conduct which is unlawful, intended to kill another person or to cause this person grievous bodily harm, and has caused the death of that person.
561. The requisite mens rea of murder under Article 5(a) is the intent to kill or the intent to inflict serious injury in reckless disregard of human life .823 In Kayishema it was noted that the standard of mens rea required is intentional and premeditated killing. The result is premeditated when the actor formulated his intent to kill after a cool moment of reflection. The result is intended when it is the actor’s purpose, or the actor is aware that it will occur in the ordinary course of events .824
(b) Article 5(i): Other Inhumane Acts
562. The expression ”other inhumane acts” was drawn from Article 6(c) of the London Agreement and Article II(1)(c) of Control Council Law No. 10.
563. There is a concern that this category lacks precision and is too general to provide a safe yardstick for the work of the Tribunal and hence, that it is contrary to the principle of the “specificity” of criminal law. It is thus imperative to establish what is included within this category. The phrase ”other inhumane acts ” was deliberately designed as a residual category, as it was felt to be undesirable for this category to be exhaustively enumerated. An exhaustive categorization would merely create opportunities for evasion of the letter of the prohibition. The importance of maintaining such a category was elucidated by the ICRC when commenting on what would constitute a violation of the obligation to provide “humane treatment” contained in common Article 3 of the Geneva Conventions:825
[I]t is always dangerous to try to go into too much detail – especially in this domain. However great the care taken in drawing up a list of all the various forms of infliction, it would never be possible to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes. The form of wording adopted is flexible and, at the same time, precise.
564. In interpreting the expression at issue, resort to the ejusdem generis rule of interpretation does not prove to be of great assistance. Under this rule , that expression would cover actions similar to those specifically provided for. Admittedly such a rule of interpretation has been relied upon by various courts with regard to Article 6(c) of the London Agreement. Thus, for instance, in the Tarnek case, the District Court of Tel-Aviv held in a decision of 14 December 1951 that the definition of “other inhumane acts” laid down in the Israeli Law on Nazi and Nazi Collaborators (Punishment) of 1950, which reproduced the definition of Article 6(c), was to apply only to such other inhumane acts as resembled in their nature and their gravity those specified in the definition.826 This interpretative rule lacks precision, and is too general to provide a safe yardstick for the work of the Tribunal.
565. The Statute of the International Criminal Court (ICC) (Article 7(k)) provides greater detail than the ICTY Statute as to the meaning of other inhumane acts: “other inhumane acts of a similar character intentionally causing great suffering , or serious injury to the body or to mental or physical health”.827 However, this provision also fails to provide an indication, even indirectly, of the legal standards which would allow us to identify the prohibited inhumane acts .828
566. Less broad parameters for the interpretation of “other inhumane acts” can instead be identified in international standards on human rights such as those laid down in the Universal Declaration on Human Rights of 1948 and the two United Nations Covenants on Human Rights of 1966. Drawing upon the various provisions of these texts, it is possible to identify a set of basic rights appertaining to human beings , the infringement of which may amount, depending on the accompanying circumstances , to a crime against humanity. Thus, for example, serious forms of cruel or degrading treatment of persons belonging to a particular ethnic, religious, political or racial group, or serious widespread or systematic manifestations of cruel or humiliating or degrading treatment with a discriminatory or persecutory intent no doubt amount to crimes against humanity: inhuman or degrading treatment is prohibited by the United Nations Covenant on Civil and Political Rights (Article 7), the European Convention on Human Rights, of 1950 (Article 3), the Inter-American Convention on Human Rights of 9 June 1994 (Article 5) and the 1984 Convention against Torture (Article 1).829 Similarly, the expression at issue undoubtedly embraces the forcible transfer of groups of civilians (which is to some extent covered by Article 49 of the IVth Convention of 1949 and Article 17(1) of the Additional Protocol II of 1977), enforced prostitution (indisputably a serious attack on human dignity pursuant to most international instruments on human rights), as well as the enforced disappearance of persons (prohibited by General Assembly Resolution 47/133 of 18 December 1992 and the Inter-American Convention of 9 June 1994). Plainly, all these, and other similar acts, must be carried out in a systematic manner and on a large scale. In other words, they must be as serious as the other classes of crimes provided for in the other provisions of Article 5 . Once the legal parameters for determining the content of the category of “inhumane acts” are identified, resort to the ejusdem generis rule for the purpose of comparing and assessing the gravity of the prohibited act may be warranted.
C. Persecution as a Crime Against Humanity
567. Persecution under Article 5(h) has never been comprehensively defined in international treaties. Furthermore, neither national nor international case law provides an authoritative single definition of what constitutes ‘persecution’. Accordingly, considerable emphasis will be given in this judgement to elucidating this important category of offences.
568. It is clear that persecution may take diverse forms, and does not necessarily require a physical element.830 Additionally , under customary international law (from which Article 5 of the Statute derogates ), in the case of persecution, the victims of crimes against humanity need not necessarily be civilians; they may also include military personnel. An explicit finding to this effect was made by the French courts in the Barbie and Touvier cases.831 Under Article 5 of the Statute, a key constituent of persecution appears to be the carrying out of any prohibited conduct, directed against a civilian population, and motivated by a discriminatory animus (political, racial or religious grounds).832 Beyond these brief observations, however, much uncertainty exists.
569. The non-legal or “common understanding” of the term persecution also varies widely. For example, in its comment on the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind of 1991, the United States remarked that the dictionary definition of the verb “to persecute” is “to annoy with persistent or urgent approaches, to pester”.833 Such a definition of persecution for the purposes of a criminal trial is clearly inapplicable before this Tribunal, due to the fact that crimes against humanity, far from being trivial crimes, are offences of extreme gravity.
570. Turning to the text of Article 5, the general elements of crimes against humanity, such as the requirements of a widespread or systematic nature of the attack directed against a civilian population, are applicable to Article 5(h) and have already been set out above. The text of Article 5, however, provides no further definition of persecution or how it relates to the other sub-headings of Article 5, except to state that persecution must be on political, racial, or religious grounds .834 From the text of Article 5 as interpreted by the Appeals Chamber in Tadic, it is clear that this discriminatory purpose applies to persecution alone.835
571. With regard to a logical construction of Article 5, it could be assumed that the crime of persecution covers acts other than those listed in the other subheadings : each subheading appears to cover a separate crime. However, on closer examination , it appears that some of the crimes listed do by necessity overlap: for example , extermination necessarily involves murder, torture may involve rape, and enslavement may include imprisonment. Hence, the wording of Article 5, logically interpreted , does not rule out a construction of persecution so as to include crimes covered under the other subheadings. However, Article 5 does not provide any guidance on this point. The Report of the Secretary-General is also silent on persecution and does not further elucidate the matter.
572. From the submissions of the parties, it appears that there is agreement between the parties that (a) persecution consists of the occurrence of a persecutory act or omission, and (b) a discriminatory basis is required for that act or omission on one of the listed grounds. Two questions remain in dispute: (a) must the crime of persecution be linked to another crime in the Statute, or can it stand alone? (b) what is the actus reus of persecution and how can it be defined? Each of these issues will be addressed in turn.
1. The Alleged Need for a Link Between Persecution and Other International Crimes.
573. The Defence alleges that the Tadic definition of persecution contravenes a long-standing requirement that persecution be "in execution of or in connection with any crime within the jurisdiction of the Tribunal".836 This wording is found in the Charter of the International Military Tribunal (IMT ) which defines crimes against humanity as follows:
[...] murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political , racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated (emphasis added).
574. This wording is repeated in the Charter of the IMT for the Far East, and was upheld in the 1950 UN Declaration of Principles of the Nuremberg Charter and Judgement (Principle VI(c)). Although Control Council Law No. 10 eliminated this requirement , the ICC Statute upholds it in Article 7(1)(h). The Defence therefore asserts that there is a consensus that persecution is a “relatively narrow concept”, and argues that “persecution should thus be construed as including only acts enumerated elsewhere in the Statute, or, at most, those connected with a crime specifically within the jurisdiction of the ICTY”. The Prosecution Brief is silent on whether or not such a link is required.
575. It is evident that the phrase “in execution of or in connection with any crime within the jurisdiction of the Tribunal” contained in Article 6(c) refers not just to persecution but to the entire category of crimes against humanity. It should be noted that when this category of crimes was first laid down in Article 6(c), all crimes against humanity were subject to the jurisdictional requirement of a link to an armed conflict. Thus crimes against humanity could only be punished if committed in execution of or in connection with a war crime or a crime against the peace. Crimes against humanity constituted a new category of crimes and the framers of Article 6(c) limited its application to cases where there already existed jurisdiction under more “well-established” crimes such as war crimes.
576. Moreover, in its application of Article 6(c), the IMT exercised jurisdiction over individual defendants who had allegedly committed only crimes against humanity , even when there was only a tenuous link to war crimes or crimes against the peace. This is demonstrated by the Judgement rendered by the IMT in the case of defendant von Schirach. Von Schirach, as Gauleiter of Vienna, was charged with and convicted of crimes against humanity for the deportation of Jews from Austria. The IMT concluded that Von Schirach was probably not involved in the “development of Hitler’s plan for territorial expansion by means of aggressive war”, nor had he been charged with war crimes. However, the link to another crime under the Charter (that of aggression) was found in the fact that “Austria was occupied pursuant to a common plan of aggression. Its occupation was, therefore, a “crime within the jurisdiction of the Tribunal”.837 Another example is found in the case of Streicher, publisher of Der Stürmer , an anti-Semitic weekly newspaper. Streicher was convicted for “incitement of the German people to active persecution”. There was no evidence that he had ever committed war crimes or “that he was ever within Hitler’s inner circle of advisers ; nor during his career was he closely connected with the formulation of the policies which led to war”.838 Nevertheless he was convicted of persecution as a crime against humanity (in connection with war crimes).839
577. What is most important, and indeed dispositive of the matter, is that an examination of customary international law indicates that as customary rules on crimes against humanity gradually crystallised after 1945, the link between crimes against humanity and war crimes disappeared. This is evidenced by; (a) the relevant provision of Control Council Law No. 10,840 which omitted this qualification; (b) national legislation (such as the Canadian841 and the French842 laws); (c) case -law843; (d) such international treaties as the Convention on Genocide of 1948, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968, and the Convention on Apartheid of 1973; and (e) the prior jurisprudence of the International Tribunal.844 This evolution thus evidences the gradual abandonment of the nexus between crimes against humanity and war crimes.845
578. The Defence relies on Article 7(1)(h) and 2(g) of the ICC Statute to argue that persecution must be charged in connection with another crime under that Statute . Article 7(1)(h) states:
Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law , in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
579. Article 7(2)(g) provides:
“Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity ;
580. Article 7(2) thus provides a broad definition of persecution and, at the same time, restricts it to acts perpetrated “in connection” with any of the acts enumerated in the same provision as constituting crimes against humanity (murder, extermination , enslavement, etc.) or with crimes found in other provisions such as war crimes , genocide, or aggression. To the extent that it is required that persecution be connected with war crimes or the crime of aggression, this requirement is especially striking in the light of the fact that the ICC Statute reflects customary international law in abolishing the nexus between crimes against humanity and armed conflict. Furthermore this restriction might easily be circumvented by charging persecution in connection with “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” under Article 7(1)(k). In short, the Trial Chamber finds that although the Statute of the ICC may be indicative of the opinio juris of many States, Article 7(1 )(h) is not consonant with customary international law. In addition, it draws attention to an important provision of the ICC Statute dealing with this matter. The application of the provisions contained in Part II of the Statute (on jurisdiction, admissibility and applicable law), including Article 7 on crimes against humanity, is restricted by Article 10 of the same Statute which provides that “Nothing in the Statute shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute ” (emphasis added). This provision clearly conveys the idea that the framers of the Statute did not intend to affect, amongst other things, lex lata as regards such matters as the definition of war crimes, crimes against humanity and genocide .
581. Accordingly, the Trial Chamber rejects the notion that persecution must be linked to crimes found elsewhere in the Statute of the International Tribunal. It notes that in any case no such requirement is imposed on it by the Statute of the International Tribunal.
2. The Actus Reus of Persecution
(a) Arguments of the Parties
582. The Prosecution argues that “persecutory act” should be defined broadly and that it should include both acts not covered by the Statute and acts enumerated elsewhere in the Statute, particularly other subheadings of Article 5, when they are committed with discriminatory intent.846 According to the Prosecution:
(a) [T]he crime of persecution has prominence [under customary international law], providing a basis for additional criminal liability in relation to all inhumane acts. [Were it not the case that crimes against humanity could comprise other crimes enumerated in the Statute], this would allow an accused to escape additional culpability for persecution merely by showing that the relevant act falls under another provision of the Statute or elsewhere in the indictment. Persecution is one of the most serious crimes against humanity and an interpretation of the Statute which does not recognise it as such is not tenable.
583. The Prosecution submits that persecution also includes acts not covered elsewhere in the Statute. Thus the persecution charge in the Indictment pertains to “an ethnic cleansing campaign” composed of the killing of Muslim civilians, destruction of their homes and property, and their organised detention and expulsion from Ahmici -Šantici and its environs.
584. According to the Defence a broad interpretation of persecution would be a violation of the principle of legality (nullum crimen sine lege).847 Persecution should be narrowly construed, so as to give guidance as to what acts constitute persecution and to prevent possible abuses of discretion by the Prosecution . The Defence submits that on a statutory construction of Article 5, murder is not included in persecution.848
585. The Defence does not agree with the conclusion of the Trial Chamber in Tadi c that persecutory acts could include, “inter alia, those of a physical , economic, or judicial nature, that violate an individual’s right to the equal enjoyment of his basic rights”.849 The Defence submits that persecution should not include acts which are legal under national laws, nor should it include acts not mentioned in the Statute “which, although not in and of themselves inhumane, are considered inhumane because of the discriminatory grounds on which they are taken”.850 Such a definition, in the submission of the Defence, would be too broad and strains the principle of legality. They contend that the Tadic definition, which basically follows that of the International Law Commission (ILC) Draft Code, should be rejected in favour of the definition found in the ICC Statute, which “embodies the existing consensus within the international community”, and which has taken a much narrower approach to the definition of persecutory acts in its Article 7( 2)(g).851
586. The Trial Chamber will now discuss previous instances in which a definition of persecution has been suggested: firstly, in the corpus of refugee law and secondly, in the deliberations of the International Law Commission. The purpose of this discussion is to determine whether the definition propounded there may be held to reflect customary international law.
587. It has been argued that further elaboration of what is meant by the notion of persecution is provided by international refugee law. In its comments on the Draft Code presented in 1991, the government of the Netherlands stated: “It would be desirable to interpret the term ‘persecution’ in the same way as the term embodied in the Convention on refugees is interpreted”.852 The concept of persecution is central to the determination of who may claim refugee status under the Convention Relating to the Status of Refugees of 1951, as supplemented by the 1967 Protocol.853
588. However, the corpus of refugee law does not, as such, offer a definition of persecution.854 Nor does human rights law provide such a definition. The European Commission and the Court have on several occasions held that exposing a person to a risk of persecution in his or her country of origin may constitute a violation of Article 3 of the European Convention on Human Rights.855 However, their decisions give no further guidance as to the definition of persecution.856 In an attempt to define who may be eligible for refugee status, some national courts have delivered decisions on what acts may constitute persecution.857 Other cases show that national courts in applying refugee law have given persecution a broad definition, and have held that it includes denial of access to employment or education858 or more generally have drawn the conclusion that “there is an open ended category of forms of conduct capable of amounting to persecution, to be evaluated in the light of the Convention from case to case”.859
589. The Trial Chamber finds, however, that these cases cannot provide a basis for individual criminal responsibility. It would be contrary to the principle of legality to convict someone of persecution based on a definition found in international refugee law or human rights law. In these bodies of law the central determination to be made is whether the person claiming refugee status or likely to be expelled or deported has a “well-founded fear of being persecuted for reasons of race, religion, nationality , membership of a particular social group or political opinion”. The emphasis is more on the state of mind of the person claiming to have been persecuted (or to be vulnerable to persecution) than on the factual finding of whether persecution has occurred or may occur. In addition, the intent of the persecutor is not relevant .860 The result is that the net of “persecution” is cast much wider than is legally justified for the purposes of imposing individual criminal responsibility. The definition stemming from international refugee law or human rights law cannot therefore be followed here.
590. Little guidance in the interpretation of “persecution” is provided by the ILC Draft Code of Crimes Against the Peace and Security of Mankind. The International Law Commission, which originally based its definition of crimes against humanity on the Nuremberg Charter, has included persecution since its earliest draft.861. The ILC proposed a definition of persecution in its commentary on the Draft Code dated 1996 which stated as follows:862
The inhumane act of persecution may take many forms with its common characteristic being the denial of the human rights and fundamental freedoms to which every individual is entitled without distinction as recognised in the Charter of the United Nations (Articles 1 and 55) and the ICCPR (Art. 2). The present provision would apply to acts of persecution which lacked the specific intent required for the crime of genocide .
591. As neither refugee law nor the ILC draft is dispositive of the issue, in resolving matters in dispute on the scope of persecution, the Trial Chamber must of necessity turn to customary international law. Indeed, any time the Statute does not regulate a specific matter, and the Report of the Secretary-General does not prove to be of any assistance in the interpretation of the Statute, it falls to the International Tribunal to draw upon (i) rules of customary international law or (ii) general principles of international criminal law; or, lacking such principles, (iii) general principles of criminal law common to the major legal systems of the world; or, lacking such principles, (iv) general principles of law consonant with the basic requirements of international justice. It must be assumed that the draftspersons intended the Statute to be based on international law, with the consequence that any possible lacunae must be filled by having recourse to that body of law.
592. In its discussion, the Trial Chamber will focus upon two distinct issues: (a) can the acts covered by the other subheadings of Article 5 fall within the notion of persecution? and (b) can persecution cover acts not envisaged in one of the other subheadings of Article 5?
(c) Can the Acts Covered by the Other Subheadings of Article 5 Fall Within the Notion of Persecution?
593. As noted above, the Prosecution argues that whereas the meaning of “persecutory act” should be given a broad definition, including a wide variety of acts not enumerated in the Statute, it should also include those enumerated in the Statute and particularly other subheadings of Article 5 when they are committed with discriminatory intent .863 By contrast, the Defence argues that it would be a violation of the principle of legality (nullum crimen sine lege) for this Tribunal to apply Article 5(h) to any conduct of the accused.864 On this view, persecution should be narrowly construed, so as to give guidance as to what acts constitute persecution and to prevent possible abuses of discretion by the Prosecution.865
594. With regard to the question of whether persecution can include acts laid out in the other subheadings of Article 5, and particularly the crimes of murder and deportation, the Trial Chamber notes that there are numerous examples of convictions for the crime of persecution arising from the Second World War. The IMT in its findings on persecution included several of the crimes that now would fall under other subheadings of Article 5. These acts included mass murder of the Jews by the Einsatzgruppen and the SD, and the extermination, beatings, torture and killings which were widespread in the concentration camps. Similarly, the judgements delivered pursuant to Control Council Law No. 10 included crimes such as murder, extermination, enslavement, deportation, imprisonment and torture in their findings on the persecution of Jews and other groups during the Nazi era. Thus the Military Tribunals sitting at Nuremberg found that persecution could include those crimes that now would be covered by the other subheadings of Article 5 of the Statute.
595. The International Military Tribunal in its Judgement referred to persecution , stating that: “the persecution of the Jews at the hands of the Nazi Government has been proved in the greatest detail before the Tribunal. It is a record of consistent and systematic inhumanity on the greatest scale”.866 The IMT commenced with a description of the early policy of the Nazi government towards the Jewish people: discriminatory laws were passed which limited offices and professions permitted to Jews; restrictions were placed on their family life and rights of citizenship; Jews were completely excluded from German life; pogroms were organized which included the burning and demolishing of synagogues; Jewish businesses were looted; prominent Jewish businessmen were arrested; a collective fine of 1 billion marks was imposed on Jews; Jewish assets were seized; the movement of Jews was restricted; ghettos were created; and Jews were compelled to wear a yellow star.867 According to the IMT, “(t(hese atrocities were all part and parcel of the policy inaugurated in 1941 [. . .] But the methods employed never conformed to a single pattern”.868
596. At Nuremberg, organisations869 as well as individual defendants870 were convicted of persecution for acts such as deportation, slave labour, and extermination of the Jewish people pursuant to the “Final Solution”. Moreover, several individual defendants were convicted of persecution in the form of discriminatory economic acts.871 An example is the defendant Frick who had “drafted, signed, and administered many laws designed to eliminate Jews from German life and (the( economy”, and thus “paved the way for the Final Solution [. . .]”.872
597. It is clear from its description of persecution that the IMT accorded this crime a position of great prominence and understood it to include a wide spectrum of acts perpetrated against the Jewish people, ranging from discriminatory acts targeting their general political, social and economic rights, to attacks on their person.
598. This broad interpretation of persecution was upheld in subsequent cases. None of the courts endeavoured to define persecution but the term was generally used to describe the treatment suffered by the Jews and other groups specifically targeted by the Nazis. Persecution was a central allegation in several of the cases brought before Military Tribunals under Control Council Law No. 10. The Tribunals held that in persecuting Jews and other groups, the accused had infringed a wide variety of rights.873 For example, in US v. Ernst von Weizsäcker (the Ministries Case), the United States Military Tribunal stated:
Hitler made the Jewish persecution one of the primary subjects of his policy to gain and retain power [...]. The persecution of the Jews went on steadily from step to step and finally to death in foul form.874
599. The Tribunal described the progression of infringement of rights, which started with the deprivation of rights of citizenship; rights to work and education; economic and property rights; and then led to arrest and confinement in concentration camps ; beatings, mutilation and torture; deportations; slave labour and “finally over six million were murdered”.875 The US Military Tribunal did not purport to find a common definitive element in the wide variety of acts it illustrated.876
600. It is clear that the courts understood persecution to include severe attacks on the person such as murder, extermination and torture; acts which potentially constitute crimes against humanity under the other subheadings of Article 5. This conclusion is supported by the findings of national courts in cases arising out of the Second World War. For example, Gauleiter Artur Greiser was charged with and convicted by the Supreme National Tribunal of Poland of participating in crimes against the Polish and Jewish people, including acts of persecution and extermination , by, inter alia, “murdering them on the spot, concentrating them in ghettos . . . whence they were being gradually deported and murdered, mainly in the gas- chambers of the extermination camp at Chelmno [. . .], submitting the Jewish population from the very beginning of the occupation to every possible kind of vexation and torment, from verbal and physical effronteries to the infliction of the most grievous bodily harm, in a way calculated to inflict the maximum of physical suffering and human degradation”.877
601. In the case of Willy Zühlke, a former German prison warden was convicted by the Netherlands Special Court in Amsterdam of co-operating in the German policy of humiliation and persecution of Jews by holding them in illegal detention, beating and kicking them, and mistreating and humiliating them in other ways. It was noted by the Netherlands Special Court that “Jewish prisoners were ill-treated by him in a far more brutal manner than the other prisoners”.878
602. Adolf Eichmann was convicted, inter alia, of causing the murder , extermination, enslavement, starvation, and deportation of civilian Jewish people by the Israeli Supreme Court. The Court found that “in carrying out the above-mentioned activities (Eichmann( persecuted Jews on national, racial, religious and political grounds”.879 Furthermore, in 1985 the French Cour de Cassation convicted Klaus Barbie of “persecution against innocent Jews, [. . .] carried out for racial and religious motives with a view to their extermination, in furtherance of the “Final Solution”.880 In 1986 the Zagreb District Court passed judgement in the case of Andrija Artukovi c, a prominent member of the “Ustaša” movement in the self-proclaimed “Independent State of Croatia” during the Second World War. In this capacity he had ordered mass killings and deportations to a concentration camp. The Court held that his intent stemmed from his “Ustaša orientation, by which persecutions, concentration camps and mass killings of Serbs, Jews, Gypsies, as well as Croats who did not accept the ideology, were a part of the implementation of a program of creating a “pure ” Croatia”.881 The Court sentenced Artukovic to death, describing him as one of the “ruthless murderers, who under the cover of ‘protecting purity of race and faith’ and with the aim of realising their Nazi-Fascist ideology, [...] killed, slaughtered, tortured, crippled, exposed to great suffering, and persecuted thousands and thousands of people, among whom women and children”.882
603. More recently, in the case of Prosecutor v. Tadic before this Tribunal, Tadic was convicted under Article 5(h) for his role in “the attack on Kozarac and the surrounding areas, as well as the seizure, collection, segregation and forced transfer of civilians to camps, calling-out of civilians, beatings and killings”.883 It is noted that these acts potentially fall under other sub-headings of Article 5, although no objection based upon this fact was put forward by the Trial Chamber .
604. These findings emphasise the conclusion of international tribunals and national courts that the crime of persecution both during and since the Second World War did not consist only of those acts not covered by the other types of crimes against humanity. On the contrary, these Tribunals and courts specifically included crimes such as murder, extermination and deportation in their findings on persecution.
605. The Trial Chamber finds that the case-law referred to above reflects, and is indicative of, the notion of persecution as laid down in customary international criminal law. The Trial Chamber therefore concludes that acts enumerated in other sub-clauses of Article 5 can thus constitute persecution. Persecution has been used to describe some of the most serious crimes perpetrated during Nazi rule. A narrow interpretation of persecution, excluding other sub-headings of Article 5, is therefore not an accurate reflection of the notion of persecution which has emerged from customary international law.
606. It should be added that if persecution was given a narrow interpretation, so as not to include the crimes found in the remaining sub-headings of Article 5, a lacuna would exist in the Statute of the Tribunal. There would be no means of conceptualising those crimes against humanity which are committed on discriminatory grounds, but which, for example, fall short of genocide, which requires a specific intent “to destroy, in whole or in part, a national, ethnical, racial, or religious group”. An example of such a crime against humanity would be the so-called “ethnic cleansing”, a notion which, although it is not a term of art, is particularly germane to the work of this Tribunal.
607. Although the actus reus of persecution may be identical to other crimes against humanity, what distinguishes the crime of persecution is that it is committed on discriminatory grounds. The Trial Chamber therefore accepts the submission of the Prosecution that “[p]ersecution, which can be used to charge the conduct of ethnic cleansing on discriminatory grounds is a serious crime in and of itself and describes conduct worthy of censure above and apart from non-discriminatory killings envisioned by Article 5”.884
(d) Can Persecution Cover Acts not Envisaged in one of the Other Subheadings of Article 5?
608. The Prosecution argues that persecution can also involve acts other than those listed under Article 5. It is their submission that the meaning of “persecutory act” should be given a broad definition and includes a wide variety of acts not enumerated elsewhere in the Statute.885 By contrast, the Defence submits that the two basic elements of persecution are (a) the occurrence of a persecutory act or omission, and (b) a discriminatory basis for that act or omission on one of the listed grounds. As mentioned above, the Defence argues that persecution should be narrowly construed.
609. The Trial Chamber is thus called upon to examine what acts not covered by Article 5 of the Statute of the International Tribunal may be included in the notion of persecution. Plainly, the Trial Chamber must set out a clear-cut notion of persecution , in order to decide whether the crimes charged in this case fall within its ambit . In addition, this notion must be consistent with general principles of criminal law such as the principles of legality and specificity. First, the Trial Chamber will examine what types of acts, aside from the other categories of crimes against humanity have been deemed to constitute persecution. Secondly, it will examine whether there are elements underlying these acts which assist in defining persecution .
610. The Judgement of the IMT included in the notion of persecution a variety of acts which, at present, may not fall under the Statute of the International Tribunal , such as the passing of discriminatory laws, the exclusion of members of an ethnic or religious group from aspects of social, political, and economic life, the imposition of a collective fine on them, the restriction of their movement and their seclusion in ghettos, and the requirement that they mark themselves out by wearing a yellow star.886 Moreover, and as mentioned above, several individual defendants were convicted of persecution in the form of discriminatory economic acts.887
611. It is also clear that other courts have used the term persecution to describe acts other than those enumerated in Article 5. A prominent example is the trial of Josef Altstötter et al. (the Justice Trial). 888 Altstötter and the other accused were former German Judges, Prosecutors or officials of the Reich Ministry of Justice. They were charged with a common design, conspiracy , plan and enterprise which "embraced the use of the judicial process as a powerful weapon for the persecution and extermination of all opponents of the Nazi regime regardless of nationality and for the persecution and extermination of races”.889
612. The U.S. Military Tribunal in the Justice case held that the national pattern or plan for racial persecution was one of actual extermination of Jewish and Polish people, but that “lesser forms of racial persecution were universally practiced by governmental authority and constituted an integral part in the general policy of the Reich”.890 These lesser forms of persecution included the passing of a decree by which Jews were excluded from the legal profession; the prohibition of intermarriage between Jews and persons of German blood and the severe punishment of sexual intercourse between these groups ; and decrees expelling Jews from public services, educational institutions, and from many business enterprises. Furthermore, upon the death of a Jew his property was confiscated, and under an amendment to the German Citizenship Law, the Security Police and the SD could also confiscate property of Jews who were alive. Jews were subject to more severe punishments than Germans; the rights of defendants in court were severely circumscribed; courts were empowered to impose death sentences on Poles and Jews even if not prescribed by law; and the police were given carte blanche in the punishment of Jews without resort to the judicial process.891 In summary, what was considered to be persecution in the Justice case was the use of a legal system to implement a discriminatory policy.
613. The jurisprudence of the national courts provides further examples such as the trial of Hans Albin Rauter, before the Netherlands Special Court in The Hague. Rauter, a Nazi SS Obergruppenführer and a General of the Waffen -SS and the Police, was convicted and sentenced to death for his intentional participation in the framework of the German policy of persecution of the Jews, which manifested itself in multifarious measures.892 Also, Artukovic was found guilty of acts such as the passing and implementation of discriminatory decrees ranging from Decrees on racial identity and the protection of Aryan blood or the honour of the Croatian people to the Decree on deporting unsuitable and dangerous individuals to internment and labour camps.893
614. The Trial Chamber is thus bolstered in its conclusion that persecution can consist of the deprivation of a wide variety of rights. A persecutory act need not be prohibited explicitly either in Article 5 or elsewhere in the Statute. Similarly , whether or not such acts are legal under national laws is irrelevant. It is well -known that the Nazis passed many discriminatory laws through the available constitutional and legislative channels which were subsequently enforced by their judiciary. This does not detract from the fact that these laws were contrary to international legal standards. The Trial Chamber therefore rejects the Defence submission that persecution should not include acts which are legal under national laws.
615. In short, the Trial Chamber is able to conclude the following on the actus reus of persecution from the case-law above:
(a) A narrow definition of persecution is not supported in customary international law. Persecution has been described by courts as a wide and particularly serious genus of crimes committed against the Jewish people and other groups by the Nazi regime.
(b) In their interpretation of persecution courts have included acts such as murder , extermination, torture, and other serious acts on the person such as those presently enumerated in Article 5.
(c) Persecution can also involve a variety of other discriminatory acts, involving attacks on political, social, and economic rights. The scope of these acts will be defined more precisely by the Trial Chamber below.
(d) Persecution is commonly used to describe a series of acts rather than a single act. Acts of persecution will usually form part of a policy or at least of a patterned practice, and must be regarded in their context. In reality, persecutory acts are often committed pursuant to a discriminatory policy or a widespread discriminatory practice, as was found by the Zagreb District Court in Artukovic. 894 )
(e) As a corollary to (d), discriminatory acts charged as persecution must not be considered in isolation. Some of the acts mentioned above may not, in and of themselves , be so serious as to constitute a crime against humanity. For example, restrictions placed on a particular group to curtail their rights to participate in particular aspects of social life (such as visits to public parks, theatres or libraries) constitute discrimination, which is in itself a reprehensible act; however, they may not in and of themselves amount to persecution. These acts must not be considered in isolation but examined in their context and weighed for their cumulative effect.895
3. The Definition of Persecution
616. In the Judgement of Prosecutor v. Tadic, Trial Chamber II held that persecution is a form of discrimination on grounds of race, religion or political opinion that is intended to be, and results in, an infringement of an individual's fundamental rights. It is not necessary to have a separate act of an inhumane nature to constitute persecution, but rather, the discrimination itself makes the act inhumane . The Trial Chamber held that the crime of persecution encompasses a wide variety of acts, including, inter alia, those of a physical, economic, or judicial nature that violate an individual’s basic or fundamental rights. The discrimination must be on one of the listed grounds to constitute persecution.896
617. As mentioned above, this is a broad definition which could include acts prohibited under other subheadings of Article 5, acts prohibited under other Articles of the Statute, and acts not covered by the Statute. The same approach has been taken in Article 7(2)(g) of the ICC Statute, which states that “(p(ersecution means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity” (emphasis added).
618. However, this Trial Chamber holds the view that in order for persecution to amount to a crime against humanity it is not enough to define a core assortment of acts and to leave peripheral acts in a state of uncertainty. There must be clearly defined limits on the types of acts which qualify as persecution. Although the realm of human rights is dynamic and expansive, not every denial of a human right may constitute a crime against humanity.
619. Accordingly, it can be said that at a minimum, acts of persecution must be of an equal gravity or severity to the other acts enumerated under Article 5. This legal criterion has already been resorted to, for instance, in the Flick case.897
620. It ought to be emphasised, however, that if the analysis based on this criterion relates only to the level of seriousness of the act, it does not provide guidance on what types of acts can constitute persecution. The ejusdem generis criterion can be used as a supplementary tool, to establish whether certain acts which generally speaking fall under the proscriptions of Article 5( h), reach the level of gravity required by this provision. The only conclusion to be drawn from its application is that only gross or blatant denials of fundamental human rights can constitute crimes against humanity.
621. The Trial Chamber, drawing upon its earlier discussion of “other inhumane acts ”, holds that in order to identify those rights whose infringement may constitute persecution, more defined parameters for the definition of human dignity can be found in international standards on human rights such as those laid down in the Universal Declaration on Human Rights of 1948, the two United Nations Covenants on Human Rights of 1966 and other international instruments on human rights or on humanitarian law. Drawing upon the various provisions of these texts it proves possible to identify a set of fundamental rights appertaining to any human being , the gross infringement of which may amount, depending on the surrounding circumstances , to a crime against humanity. Persecution consists of a severe attack on those rights, and aims to exclude a person from society on discriminatory grounds. The Trial Chamber therefore defines persecution as 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 the other acts prohibited in Article 5.
622. In determining whether particular acts constitute persecution, the Trial Chamber wishes to reiterate that acts of persecution must be evaluated not in isolation but in context, by looking at their cumulative effect. Although individual acts may not be inhumane, their overall consequences must offend humanity in such a way that they may be termed “inhumane”. This delimitation also suffices to satisfy the principle of legality, as inhumane acts are clearly proscribed by the Statute .898
623. The Trial Chamber does not see fit to identify which rights constitute fundamental rights for the purposes of persecution. The interests of justice would not be served by so doing, as the explicit inclusion of particular fundamental rights could be interpreted as the implicit exclusion of other rights (expressio unius est exclusio alterius). This is not the approach taken to crimes against humanity in customary international law, where the category of “other inhumane acts” also allows courts flexibility to determine the cases before them, depending on the forms which attacks on humanity may take, forms which are ever-changing and carried out with particular ingenuity. Each case must therefore be examined on its merits.
624. In its earlier conclusions the Trial Chamber noted that persecution was often used to describe a series of acts. However, the Trial Chamber does not exclude the possibility that a single act may constitute persecution. In such a case, there must be clear evidence of the discriminatory intent. For example, in the former Yugoslavia an individual may have participated in the single murder of a Muslim person. If his intent clearly was to kill him because he was a Muslim, and this occurred as part of a wide or systematic persecutory attack against a civilian population , this single murder may constitute persecution. But the discriminatory intent of the perpetrator must be proved for this crime to qualify as persecution.
625. Although acts of persecution are often part of a discriminatory policy, the Trial Chamber finds that it is not necessary to demonstrate that an accused has taken part in the formulation of a discriminatory policy or practice by a governmental authority. An example is that of the defendant Streicher: “In his speeches and articles [...] he infected the German mind with the virus of anti-Semitism, and incited the German People to active persecution”.899 He did so not in any official capacity but as the publisher of an anti-Semitic journal , Der Stürmer. The Tribunal concluded that his “incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution” and sentenced him to death.900
626. The Trial Chamber observes that in the light of its broad definition of persecution , the Prosecution cannot merely rely on a general charge of “persecution” in bringing its case. This would be inconsistent with the concept of legality. To observe the principle of legality, the Prosecution must charge particular acts (and this seems to have been done in this case). These acts should be charged in sufficient detail for the accused to be able to fully prepare their defence.
627. In sum, a charge of persecution must contain the following elements:
(a) those elements required for all crimes against humanity under the Statute;
(b) a gross or blatant denial of a fundamental right reaching the same level of gravity as the other acts prohibited under Article 5;
(c) discriminatory grounds.
4. The Application of the Definition set out above to the Instant Case
628. The Trial Chamber will now examine the specific allegations in this case, which are the “deliberate and systematic killing of Bosnian Muslim civilians”, the “organised detention and expulsion of the Bosnian Muslims from Ahmici-Šantici and its environs ”, and the “comprehensive destruction of Bosnian homes and property”. Can these acts constitute persecution?
629. In light of the conclusions above, the Trial Chamber finds that the “deliberate and systematic killing of Bosnian Muslim civilians” as well as their “organised detention and expulsion from Ahmici” can constitute persecution. This is because these acts qualify as murder, imprisonment, and deportation, which are explicitly mentioned in the Statute under Article 5.
630. The Trial Chamber next turns its attention to the alleged comprehensive destruction of Bosnian Muslim homes and property. The question here is whether certain property or economic rights can be considered so fundamental that their denial is capable of constituting persecution. The Trial Chamber notes that in the Judgement of the IMT, several defendants were convicted of economic discrimination. For example, Göring “persecuted the Jews . . . and not only in Germany where he raised the billion mark fine . . . this interest was primarily economic - how to get their property and how to force them out of economic life in Europe”.901 Defendants Funk and Seyss-Inquart were also charged with acts of economic discrimination .902
631. The Trial Chamber finds that attacks on property can constitute persecution . To some extent this may depend on the type of property involved: in the passage from Flick cited above the Tribunal held that the compulsory taking of industrial property could not be said to affect the life and liberty of oppressed peoples and therefore did not constitute persecution. There may be certain types of property whose destruction may not have a severe enough impact on the victim as to constitute a crime against humanity, even if such a destruction is perpetrated on discriminatory grounds: an example is the burning of someone’s car (unless the car constitutes an indispensable and vital asset to the owner). However, the case at hand concerns the comprehensive destruction of homes and property. Such an attack on property in fact constitutes a destruction of the livelihood of a certain population.903 This may have the same inhumane consequences as a forced transfer or deportation . Moreover, the burning of a residential property may often be committed with a recklessness towards the lives of its inhabitants. The Trial Chamber therefore concludes that this act may constitute a gross or blatant denial of fundamental human rights, and, if committed on discriminatory grounds, it may constitute persecution .
5. The Mens Rea of Persecution
632. The Trial Chamber will now discuss the mens rea requirement of persecution as reflected in international case-law.
633. Both parties agree that the mental element of persecution consists of discriminatory intent on the grounds provided in the Statute. Nevertheless, the Trial Chamber will elaborate further on the discriminatory intent required.
634. When examining some of the examples of persecution mentioned above, one can discern a common element: those acts were all aimed at singling out and attacking certain individuals on discriminatory grounds, by depriving them of the political , social, or economic rights enjoyed by members of the wider society. The deprivation of these rights can be said to have as its aim the removal of those persons from the society in which they live alongside the perpetrators, or eventually even from humanity itself.
635. The grounds on which the perpetrator of persecution may discriminate are listed in Article 5(h) of the Statute as political, racial or religious grounds.904
636. As set forth above, the mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide. In this context the Trial Chamber wishes to stress that persecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discriminate: to attack persons on account of their ethnic, racial , or religious characteristics (as well as, in the case of persecution, on account of their political affiliation). While in the case of persecution the discriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of actions including murder, in the case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims of the genocide belong. Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. To put it differently, when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide.
D. The Question of Cumulation of Offences (Concursus Delictorum )
1. The Issue in Dispute
(a) Prosecutor’s Submissions
637. It is the Prosecutor’s contention that a person may be charged with, and convicted of, various crimes even when that person has only engaged in one criminal action against the same victim or victims. In other words, according to the Prosecutor the same act or transaction against one or more victims may simultaneously infringe several criminal rules and can consequently be classified as a multiple crime. For instance, one act (say, murder) may be both a war crime and a crime against humanity.
638. To support this view the Prosecutor relies on previous decisions of the ICTY and the ICTR authorising cumulative charging.905 In particular, reliance is placed on the Akayesu Judgement of the ICTR and the Tadic Judgement of the ICTY Trial Chamber. The Prosecutor also refers to an interlocutory decision rendered in this case on the subject of cumulation of offences. The Prosecutor places principal reliance on the test enunciated by a Trial Chamber of the ICTR in its Akayesu judgement of 2 September 1998. According to this test, “when more than one offence contained in the Articles of the Statute applies to a single set of facts, each offence may be separately charged : (1) where the offences have different elements; or (2) where the provisions creating the offences protect different interests; or (3) where it is necessary to record a conviction for both offences in order fully to describe what the accused did”.906
639. The Prosecutor endorses this test over that set out by this Trial Chamber in this case in its Decision on Defence Challenges to the Form of the Indictment of 15 May 1998, according to which:907
The Prosecutor may be justified in bringing cumulative charges when the Articles of the Statute referred to are designed to protect different values and when each Article requires proof of a legal element not required by the others.
The Prosecutor submits that this test, inasmuch as it requires the conjunction of these two conditions, and does not allow for the third condition postulated in the Akayesu Judgement, mentioned above, is “overly restrictive”.908 Nevertheless, the Prosecutor submits that even this restrictive test is met in this case.909
640. The third approach referred to by the Prosecutor may be referred to as the Tadic approach. In an oft-quoted dictum from the Tadic Decision on Defence Motion on Form of the Indictment, the Trial Chamber stated:910
In any event, since this is a matter that will only be at all relevant insofar as it might affect penalty, it can best be dealt with if and when matters of penalty fall for consideration. What can, however, be said with certainty is that penalty cannot be made to depend on whether offences arising from the same conduct are alleged cumulatively or in the alternative. What is to be punished by penalty is proven criminal conduct and that will not depend upon technicalities of pleading.
641. In the Tadic Sentencing Judgement,911 concurrent sentences were imposed for offences which had been cumulatively charged in the indictment in relation to one set of facts. The same approach was taken in the Delalic et al. 912 ) and Furundžija 913 final Judgements, as well as in a number of interlocutory decisions on preliminary motions objecting to the form of the indictment,914 on the basis of the Tadic dictum quoted above. The Prosecutor therefore also relies on the Tadic approach to justify cumulative charging.
642. Applying the tests enunciated above to the present case, the Prosecutor argues that it is justified in cumulatively charging (i) murder as a crime against humanity (Article 5(a) of the Statute) and persecution as a crime against humanity (Article 5(h) of the Statute), and (ii) murder as a crime against humanity (Article 5(a) of the Statute) and murder as a war crime (Article 3 of the Statute, incorporating the prohibition on murder laid down in Common Article 3 of the 1949 Geneva Conventions ), as these crimes have different elements and protect different societal values . It can also be assumed that the Prosecutor would use the same reasoning to justify the cumulative charging of (iii) inhumane acts as a crime against humanity (Article 5 of the Statute) and cruel treatment as a war crime (Article 3 of the Statute).
(ii) Murder as a Crime Against Humanity (Article 5(a) of the Statute) and Persecution as a Crime Against Humanity (Article 5(h) of the Statute)
643. The Prosecution argues that murder and persecution, as crimes against humanity , are not co-extensive but rather have different elements, and may thus be cumulatively charged applying the test set forth in the Akayesu case.915 There may be acts of persecution apart from murder, and there may be murders which do not constitute acts of persecution. To support this latter contention, the Prosecution maintains that murder as a crime against humanity may be committed without a discriminatory intent, whereas persecution requires just such a discriminatory element. Thus the Prosecution disagrees with the holding in the Tadic Trial Chamber Judgement that all crimes against humanity must be committed with a discriminatory intent. This finding was itself overruled by the Appeals Chamber in the same case .916 Accordingly the Prosecution argues that these two crimes can be cumulatively charged, under the first limb of the Akayesu test, viz. that they both have different elements.
644. Second, the Prosecution argues that different values are protected by these different provisions, and hence that the second, disjunctive limb of the Akayesu test is also satisfied.917
645. Third, with regard to the third, disjunctive limb – the “description” test – referred to in the Akayesu case, the Prosecution argues that “charging such unlawful conduct under these separate provisions serves to fully describe the magnitude of the offence …”,918 and for this reason too there can be cumulative charging.
646. Since the Kupreškic test involves the same first two limbs as those in Akayesu, but construed as conjunctive rather than disjunctive requirements – and since the Tadic test does not lay down a test but merely permits cumulative charging – the Prosecution concludes that “(t(he guidelines for multiple charging established by the decisions in Tadic and Akayesu and Kupreškic, among others, thus are fully satisfied by the charging decision in this case”.919
(iii) Murder as a Crime Against Humanity (Article 5(a) of the Statute) and Murder as a War Crime (Article 3 of the Statute, Incorporating the Prohibition on Murder Contained in Common Article 3)
647. The Prosecution addresses this same issue of cumulative charging in the context of murder as a crime against humanity (Article 5(a) of the Statute) and murder as a war crime (Article 3 of the Statute, incorporating Common Article 3’s prohibition on murder). The Prosecution argues that murder as a crime against humanity has different elements from murder as a war crime:920
The elements for the crime of murder as a crime against humanity and as a violation of the laws or customs of war are not identical. The chapeaux of the two crimes are very different. Crimes against humanity must ‘be directed against any civilian population as part of a widespread or systematic practice or policy’. This prerequisite is not one required to establish a violation of the laws or customs of war.
648. Second, the Prosecution argues that crimes against humanity and war crimes protect different societal interests. The Prosecution cites the ICTR Trial Chamber in Akayesu to support both of these views.921 Accordingly, the Prosecution argues that it is permissible to charge murder as a crime against humanity and murder as a war crime in relation to the same set of facts.922 The Prosecution also alludes to the negative test applied in Akayesu, according to which it is not justifiable to convict an accused of two offences in relation to the same set of facts where “one offence is a lesser included offence of the other, for example , murder and grievous bodily harm, robbery and theft, or rape and indecent assault ”.
649. On this issue, the Prosecution states that “(g(iven that neither the ICTY nor the ICTR has established jurisprudence indicating that crimes can be charged as lesser included offences of other crimes, the Prosecutor thus charges lesser included offences separately”.923 It is not clear whether, by the phrase “lesser included offences”, the Prosecutor is referring to, for example, murder (crimes against humanity) / murder (war crimes) or, instead , murder (war crimes) / inflicting serious bodily injury (war crimes). This issue will be dealt with below, when the concept of “lesser included offences” is explored .
(iv) Inhumane acts as a Crime Against Humanity (Article 5(i) of the Statute) and Cruel Treatment as a War Crime (Article 3 of the Statute)
650. Although the matter of cumulatively charging inhumane acts as a crime against humanity (Article 5(i) of the Statute) and cruel treatment as a war crime (Article 3 of the Statute) is not specifically addressed in the Prosecution brief, it may be assumed that the arguments in (ii) apply, mutatis mutandis to this scenario . Thus, to the extent that inhumane acts and cruel treatment have different elements and/or protect different interests, they may be cumulatively charged applying the Akayesu test (if either of these two conditions is met) and the Kupreškic test (if both of these conditions are met).924
(b) Submissions of the Defence
651. The Defence disagrees with the submissions of the Prosecution. Pursuant to a request of the Trial Chamber that the Parties submit briefs on this issue,925 Counsel for four of the accused have submitted briefs, which shall be considered in turn.
652. Counsel for Zoran Kupreškic and Mirjan Kupreškic submitted a joint Brief (“ Kupreškic Brief”).926 In the Kupreškic Brief, the Defence endorses the test articulated by this Trial Chamber in this case in its Decision of 15 May 1998 imposing a two-fold conjunctive requirement for cumulation of offences. Conversely, the Defence disapproves of the test propounded in Akayesu, both because it renders the two requirements articulated by this Trial Chamber in this case disjunctive rather than conjunctive requirements by use of the word “or” rather than “and”, and because it adds a third, disjunctive requirement (“where it is necessary to record a conviction for both offences in order fully to describe what the accused did”), which, the Defence argues, is contrary to the non bis in idem rule and the civil law principle of “imperfect concurrence”. The Defence requests the Court to reject the Tadic test for the same reasons. According to the Defence, the Trial Chamber, in order to decide this issue, should apply the laws, doctrine and jurisprudence on “imperfect concurrence” of the former Yugoslavia, at least to the extent that resort to international law and general principles of criminal law does not furnish a complete answer.927
653. The Defence further argues that the Tadic jurisdiction decision precludes double charging of murder under Articles 3 and 5. In this regard, it quotes the Appeals Chamber when it stated that “Article 3 may be taken to cover all violations of international humanitarian law other than the ‘grave breaches’ of the four Geneva Conventions falling under Article 2 (or, for that matter, the violations covered by Articles 4 and 5, to the extent that Articles 3, 4 and 5 overlap)”.928 Thus Article 3 is a residual clause which applies only if the principal norm cannot apply. Therefore if murder is charged under Article 5(a) or (h), it cannot be charged under Article 3. 929
654. Moreover, the Defence agrees with the Tadic Trial Chamber’s holding that “acts that are found to be crimes against humanity under other heads of Article 5 will not be included in the consideration of persecution as a separate offence under Article 5(h)”,930 based on the conclusion – with which the Prosecution and the Tadic Appeals Chamber disagrees - that discriminatory intent is required for all crimes against humanity .
655. The Defence asserts that even if no discriminatory intent was required for Article 5(a) (murder), cumulative charging under Article 5(a) and (h) is nonetheless impermissible as murder with intent to discriminate is an aggravated form of murder.931 This distinction between the basic form of an offence and an aggravated form is a paradigm of a “lesser included offence in common law (…C systems or ‘imperfect concurrence’ [...] by reason of specialty [...] in civil law systems”.932 According to the principle of speciality, where one crime, e.g. murder, is composed of some but not all elements of the other crime, e.g. discriminatory murder, and the former crime does not have any elements which are not included in the latter crime, then the latter crime is the only one to apply when all the elements are present.
656. The Defence submits that the Prosecution conceded that Articles 3 and 5(a) murder constitute lesser included offences to murder under Article 5(h), but asserted that neither the ICTY nor the ICTR has established jurisprudence indicating that crimes can be charged as lesser included offences of other crimes. The Defence asserts that the Akayesu Judgement established such jurisprudence.
657. The Defence applies the same reasoning to deny the permissibility of cumulative charging under Article 3 and Article 5(a).
658. Counsel for Zoran and Mirjan Kupreskic also filed a Petition,933 which similarly argues that “ideal concurrence” is impermissible in this case, evoking the principle of specialty.
659. Defence Counsel for Dragan Papic submitted a brief on this issue,934 dated 10 November 1998 and filed on 13 November 1998, in which Counsel joins in the brief filed by Counsel for Zoran Kupreškic and Mirjan Kupreškic on behalf of all Defence Counsel, and adds various additional points.
660. Defence Counsel for Vladimir Šantic submitted a brief935 in which the Defence uses the civil law concepts of real concurrence, ideal concurrence and apparent concurrence to argue that cumulative charging is not permissible under the present indictment.
661. “Real concurrence” occurs when the perpetrator commits several crimes, albeit in a single transaction, either by violating the same criminal provision against more than one person or by violating a number of distinct criminal provisions through disparate acts. The Defence does not give an example of real concurrence. Since this is a well-known concept in civil law countries and examples proliferate in the case-law, the Trial Chamber will mention, as an instance of the former sub-class , the commission of more than one murder by killing several people in a spray of gunfire; an example of the latter would be reckless driving and failure to assist a person injured as a result of the reckless driving, where there are disparate acts of driving recklessly and of not stopping after knowingly colliding with someone . The Defence states that cumulative charging is permissible only under real concurrence .
662. Neither “apparent concurrence” (unechte Konkurrenz, concours apparent
d’infractions ) nor “ideal concurrence” (Idealkonkurrenz, concours idéal
d’infractions ) are defined by the Defence. However, the notions are well-known
in civil law countries, although there is no unanimity about their exact definition.
It is usually held that “apparent concurrence” occurs when the perpetrator performs
an act that may appear to simultaneously breach several criminal provisions,
whilst in reality it only violates one.
662. In many legal systems “ideal concurrence” occurs when a person through one act breaches more than one criminal provision. For an instance drawn from German law: if a father uses violence to have sexual intercourse with his minor daughter, he has at one and the same time committed unlawful coercion, incest, sexual abuse of a person under his legal protection and, possibly, bodily harm. In French law, the production of a forged document may amount to both “usage de faux”, namely making use of a forged document with intent to defraud , and attempted deceit (“tentative d’escroquerie”).
663. In contrast to “real concurrence”, the Defence states that cumulative charging is not permissible in the case of ideal concurrence or apparent concurrence . In its discussion, ideal concurrence and apparent concurrence are not distinguished ; rather they are conflated. The Defence mentions three principles designed to deal with and solve problems of apparent/ideal concurrence: specialty, subsidiarity , consumption, and a possible fourth principle, alternativity.936
664. Under “specialty”, one crime, e.g. murder, may be qualified by the addition of further elements, e.g. the intent to destroy a racial group in whole or in part , as a specialised crime, i.e. genocide. In this case, if the additional element is present, then the special crime, i.e. genocide, should be charged and not both the special crime and the general crime, i.e. murder, and the accused can only be convicted of one crime.
665. It is widely held that the “subsidiarity” principle applies when one crime is a preparatory form of a second crime, so that if the second crime is completed , only that second crime should be charged. For example, a person might detain another person in order to kill him; murder should then be charged, not illegal detention and murder. In many legal systems “consumption” applies where one crime is “consumed” by another, a notion which parallels the common law idea of “lesser included offences”, e.g. robbery consumes theft, rape consumes sexual assault, etc . The fourth notion, “alternativity”, refers to the situation where one or more legal descriptions might apply to an act; then the “predominant” description should be chosen, e.g., in Akayesu, the crime of genocide rather than complicity in genocide.
666. In its brief the Defence also discusses the common law notion of double jeopardy which often leads to the same result as the civil law concepts just explained.937
667. The Defence concludes that:
(a) Bringing cumulative charges in the case of apparent concurrence is not permissible . It is possible (only( in the case of genuine concurrence. However, bringing alternative charges could be permissible, and the Prosecutor has already resorted to this solution several times.
(b) The crime of murder and the crime of persecution as crimes against humanity, especially in the Kupreškic case are typical cases of apparent concurrence, and in this case bringing cumulative charges, delivering a decision on two crimes and delivering two sentences is not possible. By the application of the criteria of subsidiarity and alternativity the accused (if found guilty at all) can be convicted for only one of these crimes.
(c) In the same way as (b), a violation of the laws or the customs of war should be assessed in relation to murder charged as a crime against humanity.
(d) Persecution and murder as crimes against humanity and murder as a violation of the laws or customs of war protect certain different, but also certain identical interests and values and entirely meet the criteria according to which they can be characterised as apparent concurrence. This requires the exclusion of bringing cumulative charges, of delivering cumulative decisions and of delivering cumulative sanctions from the point of view of substantive criminal law. At the same time, from the point of view of criminal procedure, it requires application of the double jeopardy rule as well as of the rule non bis in idem.938
668. The Trial Chamber considers that this issue has a broad import and great relevance , all the more so because it has not been dealt with in depth by an international criminal court.939 The Trial Chamber shall therefore consider it in its general dimension, so as to set out what it considers to be the correct legal standards on the basis of which the question must be decided in casu.
669. In delving into this new area of international criminal law, the Trial Chamber will rely on general principles of international criminal law and, if no such principle is found, on the principles common to the various legal systems of the world, in particular those shared by most civil law and common law criminal systems. In this search for and examination of the relevant legal standards, and the consequent enunciation of the principles applicable at the international level, the Trial Chamber might be deemed to set out a sort of ius praetorium. However, its powers in finding the law are of course far more limited than those belonging to the Roman praetor : under the International Tribunal’s Statute, the Trial Chamber must apply lex lata i.e. existing law, although it has broad powers in determining such law.940
670. It is appropriate to emphasise at the outset that the question of cumulation of charges is material in two distinct but closely intertwined respects. First of all, it is relevant from the viewpoint of substantive international criminal law. On this score the questions that arise are: (i) whether and on what conditions the same act or transaction may infringe two or more rules of international criminal law and (ii) in case of a double conviction for a single action, how this should be reflected in sentencing. Secondly, the question of cumulation is relevant from the viewpoint of procedural international criminal law. In this respect the question presents itself as follows: (i) when and on what conditions can the Prosecutor opt for cumulative charges for the same act or transaction? (ii) when should she instead put forward alternative charges? (iii) with what powers is a Trial Chamber vested when faced with a charge that has been wrongly formulated by the Prosecutor? In the opinion of the Trial Chamber the correct solution to both problems can only be found by first resolving the issue from the viewpoint of substantive law.
671. The Trial Chamber shall therefore examine the general legal criteria by which it is possible to distinguish cases where the same act or transaction infringes two or more provisions of the Statute from those cases where although the same seemingly holds true, in reality only one provision is breached. The Trial Chamber shall then establish which criteria should be applied to determine sentence when a single act is an offence under two or more Articles of the Statute.
672. In the light of the conclusions reached as a result of this analysis, the Trial Chamber shall dwell on the procedural aspects of this issue.
(b) Issues of Substantive Criminal Law
(i) Principles on Multiple Offences in International Criminal Law
673. Under traditional international criminal law it was exceedingly difficult to apply general principles concerning multiple offences so as to identify cases where the same act or transaction breached various rules of international criminal law and cases where instead only one rule was violated.
674. Under Article 6 of the London Agreement of 8 August 1945 some acts could qualify both as war crimes and crimes against humanity: e.g., mass murder or deportation of foreign civilians in occupied countries. True, that provision made it clear that some actions could only be characterised as crimes against humanity: for example , persecution on religious or political grounds of enemy civilians or persecution , on those same grounds, of civilians having the same nationality as the persecutor . By the same token, other actions could only qualify as war crimes: for example , wanton destruction of enemy property not justified by military necessity, pillage , use of prohibited weapons or execution of hostages. Nevertheless, as stated above , there was an area where the two categories overlapped. In addition, those instruments which provided for the various penalties consequent upon the various crimes did not distinguish between war crimes and crimes against humanity: they envisaged the same penalties (death sentence, imprisonment etc.) for both categories in the same terms. This holds true, for example, for Control Council Law No.10.941
675. It is therefore not surprising that the International Military Tribunal at Nuremberg (IMT) convicted many defendants both of war crimes and crimes against humanity for the same act.942 Similarly , the various military courts sitting at Nuremberg after World War II found many defendants guilty of both categories of crimes and sentenced them for both.
676. This pattern can be explained by three factors. First, at that time the class of “crimes against humanity” had just emerged and there were concerns about whether by convicting defendants of such crimes the courts would be applying ex post facto law. Secondly, and as a consequence, the relevant criminal provisions at the time did not draw a clear-cut distinction between the two classes of crimes . Thirdly, the general concepts of international criminal law were still in a state of flux.
677. The Trial Chamber holds the view that a satisfactory legal solution to the questions at issue can now be reached. The legal notion of “crimes against humanity ” is now firmly embedded in positive international law, its legal contours are neatly drawn and it no longer gives rise to doubts as to its legitimacy; in particular, its application does not raise the issue of retroactive criminal law. General principles of international criminal law, whenever they may be distilled by dint of construction , generalisation or logical inference, may also be relied upon. In addition, it is now clear that to fill possible gaps in international customary and treaty law , international and national criminal courts may draw upon general principles of criminal law as they derive from the convergence of the principal penal systems of the world. Where necessary, the Trial Chamber shall use such principles to fill any lacunae in the Statute of the International Tribunal and in customary law. However, it will always be necessary to bear in mind the dangers of wholesale incorporation of principles of national law into the unique system of international criminal law as applied by the International Tribunal.
678. It is possible to set out the following notions and principles.
(a) Generally speaking, two different legal situations may arise. First of all, it is possible for various elements of a general criminal transaction to infringe different provisions. For instance, the Inter-American Court of Human Rights has repeatedly held that the “forced disappearance of human beings is a multiple and continuous violation of many rights under the (American( Convention (on Human Rights( that the States Parties are obligated to respect and guarantee”.943 The Court rightly noted that the kidnapping of a person is contrary to Article 7 of the Convention, prolonged isolation and deprivation of communication is contrary to Article 5, while secret execution without trial followed by the concealment of the body is contrary to Article 4.944 In another case dealing with the illegal detention and subsequent killing of two persons by Colombian armed forces, the Court held that the respondent State had breached Article 7, laying down the right to personal liberty, and Article 4, providing for the right to life.945
(b) Similarly, when applying Article 3 of the European Convention on Human Rights referred to below, the European Commission and Court have not ruled out the possibility of a differentiated characterisation of various actions. Thus in the Greek case the European Commission held that some actions of the respondent State constituted torture, while other actions amounted to inhuman treatment.946
(c) Clearly, in these instances there exist distinct offences; that is, an accumulation of separate acts, each violative of a different provision. In civil law systems this situation is referred to as concours réel d’infractions, Realkonkurrenz , concorso reale di reati, etc. These offences may be grouped together into one general transaction on the condition that it is clear that the transaction consists of a cluster of offences.
679. The situation is different with regard to the case of one and the same act or transaction simultaneously breaching two or more provisions. The European Court has repeatedly held that “one and the same fact may fall foul of more than one provision of the Convention and Protocols”.947 It is appropriate, however, to distinguish between two categories of such acts or transactions.
(a) First, there may be an act or transaction that breaches one provision in some respects and another provision in other respects. Consider for example the shelling of a religious group of enemy civilians by means of prohibited weapons (e.g. chemical weapons) in an international armed conflict, with the intent to destroy in whole or in part the group to which those civilians belong. This single act contains an element particular to Article 4 of the Statute (on genocide) to the extent that it intends to destroy a religious group, while the element particular to Article 3 (on war crimes) lies in the use of unlawful weapons.
(b) Second, there may be acts or transactions that are fully covered by both provisions . Consider for example the systematic rape, by combatants, of enemy civilians in an occupied territory. This conduct is envisaged by, and runs contrary to, for example, both Article 3 (on war crimes) and Article 5(g) (on crimes against humanity ). This also applies to the case of lesser included offences, e.g. torture and cruel treatment (cruel treatment being the lesser included offence), both envisaged as offences under Article 3 common to the Geneva Conventions, taken in conjunction with Article 3 of the Statute.
680. Certain criteria for deciding whether there has been a violation of one or more provisions consistently emerge from national legislation and the case-law of national courts and international human rights bodies. In other words, it is possible to deduce from a survey of national law and jurisprudence some principles of criminal law common to the major legal systems of the world. These principles have to some extent been restated by a number of international courts. One test has been enunciated and spelled out by certain national courts, such as those in the United States. The Supreme Court of Massachusetts in Morey v The Commonwealth (1871 ) for instance held that:948
A single act may be an offence against two statutes: and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.
681. This has been followed in subsequent United States jurisprudence, notably the case of Blockburger v United States of America (1932) which approved the above criteria, since known as the “Blockburger test”:949
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offences or only one, is whether each provision requires proof of an additional fact which the other does not.
682. The test then lies in determining whether each offence contains an element not required by the other. If so, where the criminal act in question fulfils the extra requirements of each offence, the same act will constitute an offence under each provision.
683. If the Blockburger test is not met, then it follows that one of the offences falls entirely within the ambit of the other offence (since it does not possess any element which the other lacks). Then the relationship between the two provisions can be described as that between concentric circles, in that one has a broader scope and completely encompasses the other. In these cases the choice between the two provisions is dictated by the maxim in toto iure generi per speciem derogatur (or lex specialis derogat generali), whereby the more specific or less sweeping provision should be chosen. This maxim reflects a principle laid down both in general international law and in many national criminal systems (see e.g. Article 55 paragraph 2 of the Dutch Criminal Code950 and Article 15 of the Italian Criminal Code).951
684. The rationale behind the principle of speciality is that if an action is legally regulated both by a general provision and by a specific one, the latter prevails as most appropriate, being more specifically directed towards that action. Particularly in case of discrepancy between the two provisions, it would be logical to assume that the law-making body intended to give pride of place to the provision governing the action more directly and in greater detail.
685. When each of the two provisions requires proof of a fact which the other one does not require, civil law courts tend to speak of “reciprocal speciality” and find that both provisions apply. In sum, the reciprocal speciality doctrine leads to the same result as the Blockburger test.
686. In other cases, although the provisions cannot be said to be in a lex specialis - lex generalis relationship, it would nonetheless appear unsound to apply both provisions. This was illustrated by Judge Nieto-Navia, then President of the Inter -American Court of Human Rights, in his dissenting opinion in the Caballero Delgado and Santana case:952
In criminal law if a person is killed by a dagger it is obvious that he was also the victim of wounding. However, the crime that was committed is murder, and no judge will interpret the norms in such a way that the dead person was the victim of “murder and wounding”.
687. This notion corresponds to the common law doctrine of the “lesser included offence”.953
688. In civil law jurisdictions, a double conviction is ruled out in such cases by the so-called principle of consumption.954 Its ratio is that when all the legal requirements for a lesser offence are met in the commission of a more serious one, a conviction on the more serious count fully encompasses the criminality of the conduct.
689. In international law, albeit not in a criminal context, a similar principle may be found in the case-law of the European Commission and Court of Human Rights concerning the application of Article 3 of the European Convention on Human Rights . Article 3 of the Convention prohibits various actions, which may be grouped together into the following three classes: (i) torture, (ii) inhuman treatment or punishment , and (iii) degrading treatment or punishment.
690. Interestingly, the European Commission and Court have never applied the three provisions cumulatively. In substance, it may be inferred from their decisions that torture is any inhuman and degrading treatment which is deliberately inflicted for one of a number of specified purposes, e.g. to obtain information, and which causes extreme suffering; inhuman treatment or punishment is any action causing severe suffering and lacking in any justification; degrading treatment or punishment is any action which grossly humiliates an individual before himself or others, or drives him to act against his conscience or will. It follows that torture always constitutes inhuman and degrading treatment as well. By contrast, inhuman treatment or punishment may not amount to torture or to degrading treatment or punishment. Similarly, degrading treatment or punishment may result from an action which does not constitute torture or inhuman treatment or punishment.
691. The Aksoy case illustrates how Article 3 has been applied by the two international bodies. In this case, the European Court, after finding that the facts complained of amounted to torture, held that “(i(n view of the gravity of this conclusion, it [was] not necessary for the Court to examine the applicant’s complaints of other forms of ill-treatment”.955
692. In sum, the European Commission and Court have held that the more serious breach (torture) prevails over the other two less serious ones (inhuman treatment or degrading treatment). The two bodies have refrained from a multiple characterisation of the same action falling foul of Article 3: whenever an action proved to be contrary to both the proscription of inhuman treatment (or of degrading treatment) and to that of torture, the Commission and Court opted for the more serious breach. Presumably , the rationale behind this approach is twofold: (1) the European Commission and Court have applied a principle analogous to that of consumption; and (2) they have considered that the various norms of Article 3 all pursue the same goal and safeguard the same basic values.
693. The latter rationale leads us to a further test, which consists in ascertaining whether the various provisions at stake protect different values. Again, traces of this can be found in both the common law and civil law systems.956
694. Under this test, if an act or transaction is simultaneously in breach of two criminal provisions protecting different values, it may be held that that act or transaction infringes both criminal provisions. Take the example of resort to prohibited weapons with genocidal intent. This would be contrary to both Article 3 and Article 4 of the Statute. Article 3 intends to impose upon belligerents the obligation to behave in a fair manner in the choice of arms and targets, thereby (i) sparing the enemy combatants unnecessary suffering and (ii) protecting the population from the use of inhumane weapons. By contrast, Article 4 primarily intends to protect groups from extermination. A breach of both provisions with a single act would then entail a double conviction.
695. However, the Trial Chamber’s review of national case law indicates that the test is hardly ever used other than in conjunction with, and in support of, the other tests mentioned above (Blockburger and reciprocal speciality, as well as the principles of speciality and consumption).957 This test is therefore unlikely to alter the conclusions reached through the application of these principles.
(ii) Relationship Between the Various Offences Charged in the Indictment
696. Having set out the general principles of criminal law governing multiple offences in international law, the Trial Chamber will now apply these principles to the relations between the various substantive provisions of the Statute relied upon by the parties in the instant case.
697. Unlike provisions of national criminal codes or, in common-law countries, rules of criminal law crystallised in the relevant case-law or found in statutory enactments , each Article of the Statute does not confine itself to indicating a single category of well-defined acts such as murder, voluntary or involuntary manslaughter, theft , etc. Instead the Articles embrace broad clusters of offences sharing certain general legal ingredients. It follows that, for instance, a crime against humanity may consist of such diverse acts as the systematic extermination of civilians with poison gas or the widespread persecution of a group on racial grounds. Similarly , a war crime may for instance consist in the summary execution of a prisoner of war or the carpet bombing of a town.
698. In addition, under the Statute of the International Tribunal, some provisions have such a broad scope that they may overlap. True, some acts may only be characterised as war crimes (Article 3), e.g., the use of prohibited weapons against enemy combatants , attacking undefended towns, etc. Other acts or transactions may only be defined as crimes against humanity (Article 5): e.g., persecution of civilians, whatever their nationality, on racial, religious or political grounds. However, other acts , depending upon certain circumstances, may either be characterised as war crimes or both as war crimes and crimes against humanity. For instance, murder, torture or rape of enemy civilians normally constitute war crimes; however, if these acts are part of a widespread or systematic practice, they may also be defined as crimes against humanity. Plainly, Articles 3 and 5 have a different scope, which, however , may sometimes coincide or overlap.
699. In order to apply the principles on cumulation of offences set out above specific offences rather than diverse sets of crimes must be considered . The Trial Chamber will therefore analyse the relationship between the single offences with which the accused are charged, such as murder as a war crime, murder as a crime against humanity, etc.
a. Relationship Between “Murder” under Article 3 (War Crimes) and “Murder” under Article 5(a) (Crimes Against Humanity)
700. Following the principles set out above, the relevant question here is whether murder as a war crime requires proof of facts which murder as a crime against humanity does not require, and vice versa (the Blockburger test). Another relevant question is whether the prohibition of murder as a war crime protects different values from those safeguarded by the prohibition of murder as a crime against humanity .
701. With regard to the former question, while murder as a crime against humanity requires proof of elements that murder as a war crime does not require (the offence must be part of a systematic or widespread attack on the civilian population), this is not reciprocated. As a result, the Blockburger test is not fulfilled, or in other words the two offences are not in a relationship of reciprocal speciality . The prohibition of murder as a crime against humanity is lex specialis in relation to the prohibition of murder as a war crime.958
702. In addressing the latter question, it can generally be said that the substantive provisions of the Statute pursue the same general objective (deterring serious breaches of humanitarian law and, if these breaches are committed, punishing those responsible for them). In addition, they protect the same general values in that they are designed to ensure respect for human dignity. Admittedly, within this common general framework , Articles 3 and 5 may pursue some specific aims and protect certain specific values . Thus, for instance, the prohibition of war crimes aims at ensuring a minimum of humanitarian concern between belligerents as well as maintaining a distinction between combatants’ behaviour toward enemy combatants and persons not participating in hostilities. The prohibition of crimes against humanity, on the other hand, is more focused on discouraging attacks on the civilian population and the persecution of identifiable groups of civilians.
703. However, as under Article 5 of the Statute crimes against humanity fall within the Tribunal’s jurisdiction only when committed in armed conflict, the difference between the values protected by Article 3 and Article 5 would seem to be inconsequential .
704. As explained above, the validity of the criterion based on the difference in values protected is disputable if it is not also supported by reciprocal speciality between the two offences. It follows that, given also the marginal difference in values protected, the Trial Chamber may convict the Accused of violating the prohibition of murder as a crime against humanity only if it finds that the requirements of murder under both Article 3 and under Article 5 are proved.
b. Relationship Between “Persecution” under Article 5(h) (Crimes Against Humanity) and “Murder” under Article 5(a) (Crimes Against Humanity)
705. On the grounds set out above, the Trial Chamber agrees with the Prosecutor that “persecution” may comprise not only murder carried out with a discriminatory intent but also crimes other than murder. Count 1 of the indictment, which charges persecution, refers not only to killing, but also to “the comprehensive destruction of Bosnian Muslim homes and property” (para. 21(b)) and “the organised detention and expulsion of the Bosnian Muslims from Ahmici-Šantici and its environs” (para . 21(c)); in short, what in non-legal terms is commonly referred to as “ethnic cleansing”. There are clearly additional elements here beyond murder.
706. As for the relations between murder as a crime against humanity and persecution as a crime against humanity, it should be noted that persecution requires a discriminatory element which murder, albeit as a crime against humanity, does not. The Trial Chamber is of the view therefore that there is reciprocal speciality between these crimes ; indeed, both may have unique elements. An accused may be guilty of persecution for destroying the homes of persons belonging to another ethnic group and expelling the occupants, without however being found guilty of any acts of killing. The destruction of homes and the expulsion of persons, if carried out with a discriminatory intent , may in and of themselves be sufficient to constitute persecution. Equally, an accused may commit a non-discriminatory murder as part of a widespread attack on a civilian population which, because it is non-discriminatory, fails to satisfy the definition of persecution. These, then, are two separate offences, which may be equally charged.
707. If an accused is found guilty of persecution, inter alia because of the commission of murders, it seems that he should be found guilty of persecution only, and not of murder and persecution, because in that case the Blockburger test is not met: murder is in that case already encompassed within persecution as a form of aggravated murder, and it does not possess any elements which the persecutory murders do not. Hence, in that case, murder may be seen as either falling under lex generalis or as a lesser included offence, and a conviction should not ensue when there is already a conviction under lex specialis or for the more serious offence, i.e. persecutory murder.
708. Things however are different when a person is charged both with murder as a crime against humanity and with persecution (including murder) as a crime against humanity. In this case the same acts of murder may be material to both crimes. This is so if it is proved that (i) murder as a form of persecution meets both the requirement of discriminatory intent and that of the widespread or systematic practice of persecution, and (ii) murder as a crime against humanity fulfils the requirement for the wilful taking of life of innocent civilians and that of a widespread or systematic practice of murder of civilians. If these requirements are met, we are clearly faced with a case of reciprocal speciality or in other words the requirements of the Blockburger test are fulfilled. Consequently, murder will constitute an offence under both provisions of the Statute (Article 5(h) and (a)).
709. Let us now consider whether the prohibition of persecution as a crime against humanity protects different values from those safeguarded by the prohibition of murder as a crime against humanity. It is clear that the criminalisation of murder and persecution may serve different values. The prohibition of murder aims at protecting innocent civilians from being obliterated on a large scale. More generally, it intends to safeguard human life in times of armed conflicts. On the other hand, the ban on persecution intends to safeguard civilians from severe forms of discrimination . This ban is designed to reaffirm and impose respect for the principle of equality between groups and human beings.
710. This test then bears out and corroborates the result achieved by using the other test. Under the conditions described above, the test based on protection of values leads to the conclusion that the same act or transaction (murder) may infringe two different provisions of Article 5 of the Statute.
c. Relationship Between “Inhumane Acts” under Article 5(i) (Crimes Against Humanity ) and “Cruel Treatment” under Article 3 (War Crimes)
711. These two crimes are clearly presented as alternatives in the Indictment and should be considered as such. Except for the element of widespread or systematic practice required for crimes against humanity, each of them does not require proof of elements not required by the other. In other words, it is clear that every time an inhumane act under Article 5(i) is committed, ipso facto cruel treatment under Article 3 is inflicted. The reverse is however not true: cruel treatment under Article 3 may not be covered by Article 5(i) if the element of widespread or systematic practice is missing. Thus if the evidence proves the commission of the facts in question, a conviction should only be recorded for one of these two offences: inhumane acts, if the background conditions for crimes against humanity are satisfied, and if they are not, cruel treatment as a war crime. Given this, it is not strictly necessary to consider the “different values test”, since the Blockburger test is ultimately dispositive of the issue.
d. Relationship Between the Charges for Inhumane Acts (or Cruel Treatment) and the Charges for Murder
712. A brief word here should be said about the relationship between charges for inhumane acts/cruel treatment and murder. In Counts 2-9, for example, the accused are charged with the murder of the Ahmic family, and in Counts 10-11 for inhumane acts/cruel treatment of Witness KL by murdering his family before his eyes. These are clearly separate offences. Not only are the elements different, but the victims are even different. Witness KL’s family are the victims of the murder counts, while Witness KL himself is the victim of the inhumane acts/cruel treatment counts.
(iii) The Sentence to be Imposed in the Event of More Than One Conviction for A Single Action
713. The question remains as to how a double conviction for a single action shall be reflected in sentencing. Both parties seem to agree that a defendant should not suffer two distinct penalties, to be served consecutively, for the same act or transaction. However, the Trial Chamber is under a duty to apply the provisions of the Statute and customary international law. Article 24(1) of the Statute provides that:
The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the term of imprisonment, the Trial Chamber shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.
714. Pursuant to Article 48 of the former SFRY Criminal Code, which is still applied in the successor States of the SFRY, if the accused has committed several criminal offences by one action, the court shall first assess the punishment for each criminal offence and then proceed with the determination of the principal punishment. In the case of imprisonment, the court shall impose one punishment consisting of an aggravation of the most severe punishment assessed, but the aggravated punishment may not be as high as the total of all incurred punishments.959
715. The 1997 Criminal Code of the Republic of Croatia contains similar rules on sentencing in the case of multiple offences committed by one action.960 Outside the former Yugoslavia, the Italian Criminal Code includes a similar rule .961
716. As was held by the Trial Chamber in the Tadic case, “(t(he practice of courts in the former Yugoslavia does not delimit the sources upon which the Trial Chamber may rely in reaching its determination of the appropriate sentence for a convicted person”.962 In numerous legal systems, the penalty imposed in case of multiple conviction for offences committed by one action is limited to the punishment provided for the most serious offence . An instance of this approach is represented by Article 52(2) of the German Penal Code.963
717. Faced with this discrepancy in municipal legal systems, the Trial Chamber considers that a fair solution can be derived both from the object and purpose of the provisions of the Statute as well as the general concepts underlying the Statute, and from “the general principles of justice applied by jurists and practised by military courts” referred to by the International Military Tribunal at Nuremberg.964
718. The following proposition commends itself as sound. If under the principles set out above a Trial Chamber finds that by a single act or omission the accused has perpetrated two offences under two distinct provisions of the Statute, and that the offences contain elements uniquely required by each provision, the Trial Chamber shall find the accused guilty on two separate counts. In that case the sentences consequent upon the convictions for the same act shall be served concurrently, but the Trial Chamber may aggravate the sentence for the more serious offence if it considers that the less serious offence committed by the same conduct significantly adds to the heinous nature of the prevailing offence, for instance because the less serious offence is characterised by distinct, highly reprehensible elements of its own (e.g. the use of poisonous weapons in conjunction with the more serious crime of genocide).
719. On the other hand, if a Trial Chamber finds under the principles set out above that by a single act or omission the accused has not perpetrated two offences under two distinct provisions of the Statute but only one offence, then the Trial Chamber will have to decide on the appropriate conviction for that offence only. For example , if the more specialised offence, e.g. genocide in the form of murder, is made out on the evidence beyond a reasonable doubt, then a conviction should be recorded for that offence and not for the offence of murder as a war crime. In that case only one conviction will be recorded and only one sentence will be imposed.
(c) Issues of Procedural Criminal Law
(i) The Power of the Prosecutor to Opt for Cumulative or Alternative Charges
720. In the light of the foregoing discussion, the Trial Chamber shall answer the query raised above regarding when the Prosecutor may present cumulative charges for the same act or transaction.
721. The approach currently adopted by the Prosecution creates an onerous situation for the Defence, on the grounds that the same facts are often cumulatively classified under different headings, very often -- as in the case at issue -- under two different heads (war crimes, and crimes against humanity), and in other cases before the Tribunal under three (or even possibly four) different heads. Admittedly, the Defence is made cognisant of the various classifications of the facts propounded by the Prosecution and is thus enabled to make its case. The fact remains, however, that the charges are made cumulatively and therefore placed on the same footing, even though the facts which allegedly infringe various provisions of the Statute may, legally speaking, violate only one provision.
722. Neither the Statute nor the Rules establish how the charges must be brought by the Prosecutor. Generally speaking, if under the principles set out above, the facts allegedly committed by the accused are in breach of only one provision of the Statute, the Prosecutor should present only one charge. If, in the Prosecutor’s view, the alleged facts simultaneously infringe more than one provision of the Statute , the Prosecutor should present cumulative charges under each relevant provision .
723. In practice, however, the Prosecutor may legitimately fear that, if she fails to prove the required legal and factual elements necessary to substantiate a charge , the count may be dismissed even if in the course of the trial it has turned out that other elements were present supporting a different and perhaps even a lesser charge. As we shall see, at least for the time being it is questionable that the iura novit curia principle (whereby it is for a court of law to determine what relevant legal provisions are applicable and how facts should be legally classified ) fully applies in international criminal proceedings. If this is so, the eventuality just described might indeed result in a dismissal of the charge.
724. The Trial Chamber holds that the issue must be settled in the light of two basic but seemingly conflicting requirements. There is first the requirement that the rights of the accused be fully safeguarded. The other requirement is that the Prosecutor be granted all the powers consistent with the Statute to enable her to fulfil her mission efficiently and in the interests of justice.
725. The former requirement demands among other things that the accused be “informed promptly and in detail (...( of the nature and cause of the charge against him” (Article 21 (4) (a) of the Statute). It follows that the accused is entitled to know the specifics of the charges against him, namely the facts of which he is accused and the legal classification of these facts. In particular, as far as this legal element is concerned, he must be put in a position to know the legal ingredients of the offence charged.
726. It follows from the latter requirement (that relating to the functions of the Prosecutor), that legal technicalities concerning classification of international offences should not be allowed to thwart the mission of the Prosecutor, which is to prosecute persons responsible for serious violations of international humanitarian law. The efficient fulfilment of the Prosecution’s mission favours a system that is not hidebound by formal requirements of pleading in the indictment.
727. These requirements may be harmonised in the following manner.
(a) may make cumulative charges whenever it contends that the facts charged violate simultaneously two or more provisions of the Statute in accordance with the criteria discussed above;
(b) should charge in the alternative rather than cumulatively whenever an offence appears to be in breach of more than one provision, depending on the elements of the crime the Prosecution is able to prove. For instance, the Prosecution may characterise the same act as a crime against humanity and, in the alternative, as a war crime. Indeed, in case of doubt it is appropriate from a prosecutorial viewpoint to suggest that a certain act falls under a stricter and more serious provision of the Statute, adding however that if proof to this effect is not convincing, the act falls under a less serious provision. It may also prove appropriate to charge the indictee with a crime envisaged in a provision that is – at least in some respects - special vis-ŕ-vis another (e.g. Article 4 of the Statute) and, in the alternative , with a violation of a broader provision (e.g. Article 2 or 3 of the Statute), so that if the evidence turns out to be insufficient with regard to the special provision (the lex specialis), it may still be found compelling with respect to a violation of the broader provision (the lex generalis). However the Prosecution should make clear that these are alternative formulations by use of the word “or” between the crimes against humanity and war crimes charges, for example , and refrain in these circumstances from using the word “and”, to make clear the disjunctive and alternative nature of the charges being brought.
(c) should refrain as much as possible from making charges based on the same facts but under excessive multiple heads, whenever it would not seem warranted to contend, in line with the principles set out above in the section on the applicable law, that the same facts are simultaneously in breach of various provisions of the Statute.
(ii) The Obligations of the Prosecutor When She Decides to Change the Legal Classification of Facts in the Course of Trial and the Power of a Trial Chamber When it Disagrees with the Prosecutor’s Legal Classification of the Facts.
728. Neither the Statute nor the Rules establish how Trial Chambers should act in the case of an erroneous legal classification of facts by the Prosecutor. In particular , no guidance is offered on how a Trial Chamber should proceed when certain legal ingredients of a charge have not been proved but the evidence shows that, if the facts were differently characterised, an international crime under the jurisdiction of the Tribunal would nevertheless have been perpetrated. Absent such guidance, and in view of the lack of any general principles of international criminal law on this matter, it may prove useful to establish how most national criminal systems regulate this matter. This examination serves the purpose of establishing whether principles of criminal law common to the major legal systems of the world exist on this matter.965
729. In two of the major common law jurisdictions - England and Wales, and the United States of America – there is a system of “lesser included offences” and “alternative verdicts” which establishes which offences need to be separately charged in the indictment and which offences are automatically considered as lesser alternatives (e.g. murder and manslaughter, robbery and theft).966
730. In England, the position is now largely governed by Statute. Section 6(3) of the Criminal Law Act 1967 reads:
6. – (3) Where, on a person’s trial on indictment for any offence except treason or murder, the jury finds him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.
731. As for murder, manslaughter is always available as an alternative verdict, and need not be charged in the indictment; likewise, under the common law (as opposed to statutory law) theft is always available as an alternative verdict to robbery , and so on for all lesser included offences. Treason – always treated as a unique crime – seems to be the only offence for which there is no possible alternative verdict.
732. It is worth noting that the Criminal Law Act 1967 would apply not only to “ lesser included offences” but also to offences where the elements are different. For example, a person charged with rape could also be convicted of robbery if it is alleged in the indictment that he had also forcibly taken money from the rape victim. However, in these circumstances it would be preferable to amend the indictment to add the new count rather than for the Judge to give an oral direction as to the jury’s powers under section 6(3) of the above act.967 “Lesser included offences” are not the only alternative verdicts. Theft and handling of stolen goods are alternative verdicts, as it is not permissible for an accused to be convicted of both offences with respect to the same goods, but neither is a “lesser included” version of the other.968 Likewise, indecent assault is an alternative to a charge of unlawful sexual intercourse with a girl under 16 – i.e. the prosecution does not need to charge indecent assault in the indictment – although neither offence is necessarily more serious than the other. In the United States of America, alternative verdicts for lesser included offences not charged in the indictment are possible under Rule 31(c) of the Federal Rules of Criminal Procedure.969 There is an “elements test” for what constitutes a “lesser included offence”.970
733. Broader powers are conferred on courts in most civil law countries, including the States of the former Yugoslavia.971 Generally speaking, in these countries the principle iura novit curia (the court is expected and required to establish the law, while the facts must be proved by the parties) prevails. It follows that courts enjoy greater latitude in the determination of the applicable law than courts of common law countries. However , on close scrutiny it appears that in some civil law systems the powers of courts in the matter under discussion are more limited than in other systems. In short , in some countries the court may only reclassify, in the course of the trial, the facts of the case after duly warning the accused and enabling him to prepare his defence. Germany and Spain belong to this category. In other countries, such as France and Italy, courts may instead give a different legal characterisation of the facts from that propounded by the Prosecution, without necessarily advising the accused. This is permissible even in cases where the court eventually classifies the facts as a more serious offence than that charged by the Prosecution.
734. A brief survey of these legal systems may prove useful. In German law, changes in the legal characterisation of facts during the pre-trial or trial stage are dealt with under sections 206, 207 and 265 of the Code of Criminal Procedure.972 If the court deciding on the confirmation of the indictment is of the opinion that a different legal characterisation is warranted, the order confirming the indictment will contain a notice to that effect. The court is not bound by this notice if at the trial stage the judges change their minds. If the characterisation changes yet again during the trial, the accused must be given a warning by the court, except for where lesser included offences are concerned. The accused may then request an adjournment to prepare his defence. In the case of a mere change in the legal assessment of the otherwise unchanged facts, this adjournment is discretionary. The accused only has a right to an adjournment if the evidence at trial suggests new circumstances that would make the application of a more severe offence or sanction possible.973
735. In Spanish law, Article 653 of the Code of Criminal Procedure allows the Prosecution to charge in the alternative and especially reserves the parties’ right to re-evaluate the offences after the evidence has been heard.974 The law permits the presiding judge, where necessary, to ask the Prosecution and the Defence after the evidence has been presented whether they wish to amend their evaluations,975 and if the Prosecution intends to charge a more serious offence than originally charged, Article 793 No . 7 LECrim gives the court a discretion to grant an adjournment to the Defence .976 The court must hand down its sentence regarding all the legal aspects of the facts proven and may thus in the ordinary trial proceedings find the accused guilty of any offence that he has been warned of under Article 733 LECrim, even though the Prosecution may not have amended its charges.977
736. A different approach is taken in France and Italy. In France, the case-law has established the principle whereby, as long as the facts alleged by the Prosecution remain the same, courts are empowered to legally characterise those same facts in a manner different from that suggested by the prosecution, and without giving any prior notice to the accused.978 This would seem to entail, amongst other things, that the court is authorised to find that the crime of which the accused is guilty is more serious than that charged by the Prosecutor – again, on the condition that the facts charged remain the same .
737. In Italy, Article 521(1) of the Code of Criminal Procedure provides that “in its judgement the court may give a legal definition to the facts different from that set forth in the charge, as long as the crime is within the competence of that court”. The following two paragraphs of the same provision envisage instead the possibility that the facts are changed in the course of trial. If the court establishes that the facts are different from those set out in the indictment, or if the Prosecutor sets forth a new charge, the court must return the file to the Prosecutor and enable the accused to prepare his defence. The case law has clearly inferred from these provisions that, whenever the facts remain the same, courts are not bound by the legal classification of those facts propounded by the prosecutor. Courts may even find that the crime perpetrated by the accused is more serious than the crime charged in the indictment.979
738. It is apparent from the above survey that no general principle of criminal law common to all major legal systems of the world may be found. It therefore falls to the Trial Chamber to endeavour to look for a general principle of law consonant with the fundamental features and the basic requirements of international criminal justice.
739. In this regard, two basic requirements – already referred to above – acquire paramount importance on account of the present status of international criminal law. One is the requirement that the rights of the accused be fully safeguarded . The other requirement is that the Prosecutor and, more generally, the International Tribunal be in a position to exercise all the powers expressly or implicitly deriving from the Statute, or inherent in their functions, that are necessary for them to fulfil their mission efficiently and in the interests of justice.
740. Turning to the former requirement, it must be emphasised again that at present , international criminal rules are still in a rudimentary state. They need to be elaborated and rendered more specific either by international law-making bodies or by international case law so as to gradually give rise to general rules. In this state of flux the rights of the accused would not be satisfactorily safeguarded were one to adopt an approach akin to that of some civil law countries. Were the Trial Chamber allowed to convict persons of a specific crime as well as any other crime based on the same facts, of whose commission the Trial Chamber might be satisfied at trial, the accused would not be able to prepare his defence with regard to a well-defined charge. The task of the defence would become exceedingly onerous, given the aforementioned uncertainties which still exist in international criminal law. Hence, even though the iura novit curia principle is normally applied in international judicial proceedings,980 under present circumstances it would be inappropriate for this principle to be followed in proceedings before international criminal courts, where the rights of an individual accused are at stake. It would also violate Article 21(4)(a) of the Statute, which provides that an accused shall be informed “promptly and in detail” of the “nature and cause of the charge against him”.
741. On the other hand, the other requirement relating to the efficient discharge of the Tribunal’s functions in the interest of justice warrants the conclusion that any possible errors of the Prosecution should not stultify criminal proceedings whenever a case nevertheless appears to have been made by the Prosecution and its possible flaws in the formulation of the charge are not such as to impair or curtail the rights of the Defence.
742. A careful balancing of the two aforementioned requirements leads to the following conclusions:
(a) It may happen that, in the course of the trial, the Prosecutor finds that she has not proved beyond reasonable doubt the commission of the crime charged, but that a different offence, not charged in the indictment, has been proved which has different objective or subjective elements. For instance the Prosecutor may come to the conclusion that there is evidence of torture as a crime against humanity rather than rape as a crime against humanity; or of plunder of private property as a war crime instead of the attack of undefended dwellings or buildings as a war crime. She may consider that there is evidence of the extermination of civilians as a crime against humanity rather than of killing members of an ethnic group as genocide; or of unlawful deportation or transfer of civilians as a grave breach of the Geneva Conventions instead of genocide taking the form of deliberately inflicting on an ethnic or religious group conditions of life calculated to bring about its physical destruction in whole or part. To such cases others can be assimilated . Consider for instance the case where the Prosecutor realises that the charge of committing crimes against humanity in the form of deportation or imprisonment cannot be proved, while the charge of aiding and abetting in the execution of this crime can be substantiated by sufficient evidence. In this case the modality of participation in the commission of the crime is different from (albeit perhaps less serious than) actual perpetration. In these cases the Prosecutor must request the Trial Chamber to be granted leave to amend the indictment so as to afford the Defence the opportunity to contest the charge.
(b) During the course of the trial, the Prosecutor may conclude that a more serious offence than that charged in the Indictment has been or may be proved. For instance, she considers that while the accused had been charged with a war crime consisting of killing civilians, in the course of trial evidence has been presented showing that he may be found guilty of genocide in the form of killing members of an ethnic or religious group with the intent to destroy that group, in whole or in part. Or she may consider that while the crime charged was a war crime consisting of causing inhuman treatment to civilians, evidence has been presented showing that the accused engaged in torture as a crime against humanity. Clearly, once again the Prosecutor must request leave to amend the Indictment, so as to avoid any jeopardy to the rights of the accused. Again, the accused must be put in a position to contest the charges and to this end he must be informed promptly and in detail of the “nature and cause of the charge against him” (Article 21(4)(a) of the Statute). The same concept applies to the Trial Chamber, should it consider that a more serious offence has been proved in court.
(c) The Prosecutor may conclude during the trial that a lesser included offence , not charged in the Indictment, may be or has been proved in court. For instance , she considers that the murder of civilians charged as a crime against humanity has not been made out for lack of proof of a widespread or systematic practice, while evidence is sufficient for proving that a war crime was committed, consisting of the murder of civilians. Or else she concludes that the charge of genocide consisting of the killing of members of an ethnic group cannot be proved for lack of the requisite intent to destroy in whole or in part, the group; by contrast, evidence may be produced proving that the killing of civilians may be charged as a war crime. Clearly, these are cases where the lex specialis invoked by the Prosecutor is found not to be applicable, whereas the lex generalis is still applicable.
743. If in these and similar cases the Prosecutor is or believes she is able to prove all the elements of a crime except for that which make up an additional element elevating the crime to a more serious category, she need not request leave to amend the Indictment. For the accused has been given the opportunity to contest all the elements of the crime charged. If one of the elements is lacking, this does not entail that the crime has not been committed, provided all the elements of a lesser included offence are proven. However, it would seem advisable that prompt notice be given by the Prosecutor to the Defence and the Trial Chamber that she proposes to submit that the lesser but not the greater offence has been committed, so that the acused may know the particulars of the case against him or her.
744. Let us apply the same criteria for the power, if any, of Trial Chambers to depart from the classification of the offence suggested by the Prosecutor .
745. If it is the Trial Chamber that concludes that the more serious offence has not been proved, it is sufficient for it to make this finding in its judgement, without ordering the Prosecutor to amend the Indictment. To give a practical example , an accused may be charged in an indictment with one count of murder as a crime against humanity. During the trial, it is conclusively proved that the accused committed the murder in circumstances that would characterise it as a war crime, but it is not proved that the crime was committed in the context of a widespread or systematic attack on a civilian population. In those circumstances the Trial Chamber could convict the accused of murder as a war crime, despite the fact that that crime has not been charged in the indictment.
746. Similarly, the Trial Chamber may conclude that the facts proven by the Prosecutor do not show that the accused is guilty of having perpetrated a war crime; they show instead that he aided and abetted the commission of the crime. In this case, the Trial Chamber may classify the offence in a manner different from that suggested by the Prosecutor, without previously notifying the Defence of the change in the nomen iuris. For the same reason the Trial Chamber may find that the accused , charged with perpetrating a murder as a crime against humanity, is instead guilty of participating in a common design to commit murder as a crime against humanity .
747. If instead the Trial Chamber finds in the course of trial that the evidence conclusively shows that the accused has committed a more serious crime than the one charged, it may call upon the Prosecutor to consider amending the indictment . Alternatively, it may decide to convict the accused of the lesser offence charged . The same course of action should be taken by the Trial Chamber in the event the Prosecutor should decide not to accede to the Trial Chamber’s request that the indictment be amended.
748. Similarly, if the Trial Chamber finds in the course of trial that only a different offence can be held to have been proved, it should ask the Prosecutor to amend the indictment. If the Prosecutor does not comply with this request, the Trial Chamber shall have no choice but to dismiss the charge.