Kordic and Cerkez - Judgement

II. DEFINITION AND ELEMENTS OF THE CRIMES

A. Persecution as a Crime Against Humanity

The submissions of the parties reveal two major areas of dispute regarding persecutions under Article 5(h) of the Statute: (a) whether the crime of persecution can be applied only in connection with other crimes enumerated in the Statute; and (b) the appropriate mens rea for the crime of persecution. The Defence asserts that the actus reus for the crime of persecution must be committed in connection with another crime enumerated in the Statute, while the Prosecution submits that persecution need not be connected to any other statutory crime. In relation to the mens rea, the Defence argues that the accused must have committed the act “with specific intent to severely deprive the victim of fundamental rights by reason of the identity of the group or collectivity”.²²⁸ The Prosecution’s position is that a showing that the accused had the “knowledge ” that his acts fit within the widespread or systematic attack on discriminatory grounds is sufficient.²²⁹
The parties, however, do agree with the Tadic Trial Chamber’s three basic requirements for the crime of persecution: (1) the occurrence of a discriminatory act or omission; (2) a discriminatory basis for that act or omission on one of the listed grounds, specifically race, religion or politics; and (3) the intent to cause, and a resulting infringement of an individual’s enjoyment of a basic or fundamental right.²³⁰ The Tadic Appeal Judgement further clarified the distinction between persecution and other Article 5 offences, holding that persecution is the only crime against humanity enumerated in Article 5 to require a discriminatory intent.²³¹
The Trial Chamber now turns to consider the areas of dispute regarding the crime against humanity of persecution.

1. Actus Reus
(a) Scope of the crime of persecution
The Prosecution submits that the term “persecutory act” could include acts enumerated in the Statute as well as acts not specifically listed therein.²³² The Defence submits that the crime of persecution must be narrowly construed, and applied only in connection with another crime within the jurisdiction of the International Tribunal.²³³ The Defence explicitly rejects the Tadic and Kupreskic Trial Chamber rulings that persecution may encompass acts not enumerated in the Statute.²³⁴ The Defence relies upon the Charters of the International Military Tribunal (IMT ) and the International Military Tribunal of the Far East (IMTFE), which required that persecution occur in the execution of other crimes within the jurisdiction of those Tribunals,²³⁵ as evidence of customary international law on this matter. The Defence also notes that Article 7(1)(h) of the Rome Statute of the International Criminal Court (ICC Statute) requires that persecution occur in connection with other crimes in the jurisdiction of the ICC.²³⁶
As the Trial Chambers in Tadic, Kupreskic and Blaskic have recognised, the crime of persecution under Article 5(h) has never been comprehensively defined.²³⁷ Neither international treaty law nor case law provides a comprehensive list of illegal acts encompassed by the charge of persecution, and persecution as such is not known in the world’s major criminal justice systems.²³⁸ The Trial Chamber agrees with the Defence²³⁹ that the crime of persecution needs careful and sensitive development in light of the principle of nullum crimen sine lege. Following the definition of the principle of legality set forth in Article 15 of the ICCPR, the Appeals Chamber in Aleksovski held that this principle requires “that a person may only be found guilty of a crime in respect of acts which constituted a violation of the law at the time of their commission.”²⁴⁰ In order for the principle of legality not to be violated, acts in respect of which the accused are indicted under the heading of persecution must be found to constitute crimes under international law at the time of their commission.
At the outset, the Trial Chamber notes that the wording of Article 5(h) does not contain any requirement of a connection between the crime of persecution and other crimes enumerated in the Statute. The jurisprudence of Trial Chambers of the International Tribunal thus far appears to have accepted that the crime of persecution can also encompass acts not explicitly listed in the Statute.²⁴¹ The Kupreskic Trial Chamber placed particular emphasis upon the principle of legality when considering in some detail the issue now before this Chamber. It found that the actus reus for persecution requires no link to crimes enumerated elsewhere in the Statute.²⁴²
The Trial Chamber concurs with the Kupreskic decision in this regard , and finds that, consonant with customary international law, the crime of persecution may indeed encompass crimes not enumerated elsewhere in the Statute. But of equal importance, and in order to comply with the principle of legality, this Trial Chamber also adopts the Kupreskic position that there must be “clearly defined limits on the expansion of the types of acts which qualify as persecution.”²⁴³
The Trial Chamber thus agrees that acts must reach a similar level of gravity as the other offences listed in Article 5 in order to fall within the crime of persecution .²⁴⁴ In its definition of the actus reus of persecution, the Trial Chamber in Kupreskic set forth a four-part test in which an act of persecution is constituted by (1) a gross or blatant denial, (2) on discriminatory grounds, (3) of a fundamental right, laid down in international customary or treaty law, (4) reaching the same level of gravity as the other crimes against humanity enumerated in Article 5 of the Statute.²⁴⁵ The Trial Chamber finds that acts which meet the four criteria set out above, as well as the general requirements applicable to all crimes against humanity, may qualify as persecution, without violating the principle of legality.
The Prosecution has urged the Trial Chamber to forego the final aspect of the Kupreskic definition of persecution (the “same level of gravity” test), because it “would limit the inclusion of some acts, such as certain property destruction and dismissal from employment, that do not necessarily rise, in and of themselves , to the level of inhumane acts prescribed under Article 5.”²⁴⁶ The Trial Chamber recognises that the “same level of gravity” test may indeed result in the exclusion of some acts from the realm of criminal persecution, yet finds this to be a wholly valid result. To reiterate the words of the Kupreskic Trial Chamber, “[a]lthough the realm of human rights is dynamic and expansive, not every denial of a human right may constitute a crime against humanity”.²⁴⁷
Article 7(1)(h) of the ICC Statute, upon which the Kordic Defence relies in support of its argument, sets out the requirement that persecutions be connected to another crime within the jurisdiction of the Court.²⁴⁸ The ICC Statute further defines persecution as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.”²⁴⁹ The Kupreskic Trial Chamber found this provision to be more restrictive than is necessary under customary international law.²⁵⁰ The Trial Chamber observes that, although the Statute of the ICC limits persecution to acts performed in connection with other crimes falling within its jurisdiction , in practice, the list of acts which may potentially be characterised as persecution is extensive in view of the broad range of crimes listed thereunder.²⁵¹
Thus far, Trial Chambers of this International Tribunal have held that the following acts constitute persecution: participation 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”;²⁵² “murder, imprisonment, and deportation” and such attacks on property as would constitute “a destruction of the livelihood of a certain population;”²⁵³ and the “destruction and plunder of property”, “unlawful detention of civilians” and the “deportation or forcible transfer of civilians,” and physical and mental injury.²⁵⁴ In Blaskic, the Trial Chamber found that the crime of persecution encompasses both bodily and mental harm and infringements upon individual freedom.²⁵⁵ The Trial Chamber notes that all of these acts are enumerated as crimes (grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war and crimes against humanity) elsewhere in the Statute.
In addition, the Trial Chamber wishes to emphasise the unique nature of the crime of persecution as a crime of cumulative effect. As the Kupreskic Trial Chamber held, “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’”.²⁵⁶ In this connection , the Trial Chamber notes the Defence contention that all the means of persecution alleged by the Prosecution in paragraph 37 of the Indictment must be proved in order for a widespread or systematic campaign of persecution to be proved.²⁵⁷ However, while the notion of persecution is generally used to describe a series of acts, the Trial Chamber agrees with the Kupreskic finding that “a single act may constitute persecution”, provided there is “clear evidence of the discriminatory intent.”²⁵⁸
The Trial Chamber now turns to a consideration of the specific offences alleged to constitute persecutions in the Indictment.
(b) Specific offences alleged in the Indictment
The specific offences with which the accused are charged in the Indictment may be conveniently divided into two categories: (a) acts enumerated elsewhere in the Statute which rise to the same level of gravity as other crimes listed in Article 5; (b) acts not enumerated elsewhere in the Statute which do not rise to the same level of gravity as other crimes listed in Article 5.

(i) Acts enumerated elsewhere in the Statute
The following acts alleged in the Indictment are enumerated elsewhere in the Statute and also rise to the same level of gravity as other Article 5 crimes against humanity. As such, these acts may constitute the crime of persecution provided they are performed with the requisite discriminatory intent:

a. Attacking cities, towns and villages²⁵⁹
This act is akin to an “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings,” a violation of the laws or customs of war enumerated under Article 3(c) of the Statute. This act has therefore already been criminalised under customary international law and the International Tribunal Statute in particular. Moreover, the act of attacking cities, towns and villages on discriminatory grounds provides the factual matrix for most of the other alleged acts of persecution (such as killing, imprisonment, forcible transfer, inhumane acts, wanton and extensive destruction of property, etc.). The combination of this actus reus with the requisite discriminatory mens rea would therefore constitute the crime of persecution.

b. Trench-digging and use of hostages and human shields²⁶⁰
These acts are generally recognised as grave breaches of the Geneva Conventions of 1949, and as such are already criminal under customary international law and the International Tribunal Statute in particular.²⁶¹ For that reason and for those listed in the above paragraph, the Trial Chamber finds that this act combined with the requisite discriminatory intent rises to the same level of gravity as other Article 5 crimes against humanity.

c. Wanton destruction and plundering²⁶²
This act is similar to the “wanton destruction of cities, towns or villages ” and the “plunder of public or private property” violations of the laws or customs of war enumerated under Articles 3(b) and 3(e) of the Statute. This act has therefore already been criminalised under customary international law and the International Tribunal Statute in particular. Prior jurisprudence of the International Tribunal has made clear that the destruction of property with the requisite discriminatory intent may constitute persecution.²⁶³ If the ultimate aim of persecution is the “removal of those persons from the society in which they live alongside the perpetrators, or eventually even from humanity itself”,²⁶⁴ the widespread or systematic , discriminatory, destruction of individuals’ homes and means of livelihood would surely result in such a removal from society. In the context of an overall campaign of persecution, rendering a people homeless and with no means of economic support may be the method used to “coerce, intimidate, terrorise and forcibly transfer … civilians from their homes and villages.” Thus, when the cumulative effect ²⁶⁵ of such property destruction is the removal of civilians from their homes on discriminatory grounds, the “wanton and extensive destruction and/or plundering of Bosnian Muslim civilian dwellings , buildings, businesses, and civilian personal property and livestock” may constitute the crime of persecution.

d. Destruction and damage of religious or educational institutions²⁶⁶
This act is the same as the “destruction or wilful damage done to institutions dedicated to religion”, a violation of the laws or customs of war enumerated under Article 3(d) of the Statute. This act has therefore already been criminalised under customary international law and the International Tribunal Statute in particular . Moreover, the IMT,²⁶⁷ the jurisprudence of this International Tribunal,²⁶⁸ and the 1991 ILC Report,²⁶⁹ inter alia, have all singled out the destruction of religious buildings as a clear case of persecution as a crime against humanity.
This act, when perpetrated with the requisite discriminatory intent, amounts to an attack on the very religious identity of a people. As such, it manifests a nearly pure expression of the notion of “crimes against humanity”, for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects. The Trial Chamber therefore finds that the destruction and wilful damage of institutions dedicated to Muslim religion or education, coupled with the requisite discriminatory intent, may amount to an act of persecution.

(ii) Acts not enumerated elsewhere in the Statute
The following acts are not enumerated elsewhere in the Statute, nor do they rise to the same level of gravity as the other acts enumerated in Article 5 of the Statute.

a. Encouraging and promoting hatred on political etc. grounds
The Trial Chamber notes that the Indictment against Dario Kordic is the first indictment in the history of the International Tribunal to allege this act as a crime against humanity.²⁷⁰ The Trial Chamber, however, finds that this act, as alleged in the Indictment, does not by itself constitute persecution as a crime against humanity. It is not enumerated as a crime elsewhere in the International Tribunal Statute, but most importantly , it does not rise to the same level of gravity as the other acts enumerated in Article 5.²⁷¹ Furthermore, the criminal prohibition of this act has not attained the status of customary international law .²⁷² Thus to convict the accused for such an act as is alleged as persecution would violate the principle of legality .

b. Dismissing and removing Bosnian Muslims from government etc.
As with the above act, the Trial Chamber finds that this act, as alleged in the Amended Indictment,²⁷³ does not constitute persecution as a crime against humanity because it does not rise to the same level of gravity as the other crimes against humanity enumerated in Article 5. The criminal prohibition of this act has not even reached the level of customary international law. As the National Military Tribunal noted in the Einsatzgruppen case

We do not refer to localised outbursts of hatred nor petty discriminations which unfortunately occur in the most civilised of states. When persecutions reach the scale of nation-wide campaigns designed to make life intolerable for, or to exterminate large groups of people, law dare not remain silent.²⁷⁴

This act would have to amount to an extremely broad policy to fit within Nuremberg jurisprudence, in which economic discrimination generally rose to the level of legal decrees dismissing all Jews from employment and imposing enormous collective fines . As alleged, it does not.

2. Mens Rea
The parties do not dispute that the mental element of the crime of persecution consists of acting with discriminatory intent on the political, racial, and religious grounds provided in the Statute. This is consistent with the Tadic Appeal Judgement finding that a discriminatory intent “is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required , that is, for Article 5(h), concerning various types of persecution.”²⁷⁵ The issue before the Trial Chamber is whether the accused must have had the specific intent to advance the persecutory policy and shared the discriminatory intent behind that policy, or whether a showing that the accused had the objective knowledge that his acts fit within the widespread or systematic attack on discriminatory grounds is sufficient. Defining the appropriate mens rea for the crime of persecution is a complex task. Generally, determining whether the accused possessed the requisite mens rea for other crimes against humanity involves a two-step process. The accused must first have had the requisite specific intent to commit the underlying act (such as murder, extermination or torture). Then, if that act is to entail additional, criminal, liability as a crime against humanity, the accused must also have had the requisite mens rea for crimes against humanity, which has been defined as knowledge of the context of a widespread or systematic attack directed against a civilian population.
With regard to the crime of persecution, a particular intent is required, in addition to the specific intent (to commit the act and produce its consequences ) and the general intent (objective knowledge of the context in which the accused acted). This intent – the discriminatory intent – is what sets the crime of persecution apart from other Article 5 crimes against humanity. As the Trial Chamber in Blaskic stressed, the crime of persecution “obtains its specificity ” from its particular, discriminatory mens rea: “It is the specific intent to cause injury to a human being because he belongs to a particular community or group, rather than the means employed to achieve it, that bestows on it its individual nature and gravity….”²⁷⁶ This discriminatory intent requirement for the crime of persecution is thus different from the more general level of intent required for the other crimes against humanity under Article 5, when mere “knowledge of the context” of a widespread or systematic attack against a civilian population is sufficient.²⁷⁷
The Kupreskic Trial Judgement also notes the elevated nature of the mens rea for persecution: “The mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide .”²⁷⁸ Although the Kupreskic Trial Chamber observed that it is not necessary to demonstrate that an accused participated in the formulation of a discriminatory policy or practice by a governmental authority,²⁷⁹ the Trial Chamber did maintain that “what matters is the intent to discriminate”.²⁸⁰
The Prosecution and the Defence agree with the Kupreskic formulation of the intent requirement for persecution: the acts of the accused must have been “aimed at singling out and attacking certain individuals on discriminatory grounds ”, with the aim of “removal of those persons from the society in which they live alongside the perpetrators, or eventually even from humanity itself”.²⁸¹
The Kordic Defence, however, stresses that the Prosecutor must prove the specific discriminatory intent of the individual accused. The Defence further asserts that the accused’s criminal intent may not be imputed solely by demonstrating his membership in, or association with, an alleged criminal enterprise.²⁸² As the Secretary-General stated,

The question arises … whether a juridical person, such as an association or organisation , may be considered criminal as such and thus its members, for that reason alone , be made subject to the jurisdiction of the International Tribunal. The Secretary -General believes that this concept should not be retained in regard to the International Tribunal. The criminal acts set out in this statute are carried out by natural persons; such persons would be subject to the jurisdiction of the International Tribunal irrespective of membership in groups.²⁸³

According to the Defence, the Prosecution's case is predicated on the assumption that, if this Trial Chamber finds that the Bosnian Croat institutions operated as "criminal" associations in Central Bosnia, and further finds that the accused (particularly Dario Kordic) was a prominent member of one or more of those organisations, the Prosecution may then be relieved from having to prove that Dario Kordic possessed the requisite discriminatory intent when committing the alleged acts of persecution .²⁸⁴ As a result, the Defence proposes that the Trial Chamber adopt this formulation of the discriminatory mens rea : “a desire to deprive a defined group of its fundamental rights as laid down in international customary or treaty law so as to remove the persons in that group from the society in which they live or even from humanity itself.”²⁸⁵
Although the Prosecution does concede that “discriminatory grounds constitute a more particular mental state standard than that required by other enumerated crimes against humanity in Article 5”,²⁸⁶ the Prosecution goes on to reject the notion that the requisite discriminatory mens rea for persecution amounts to a specific intent requirement. According to the Prosecution, it is sufficient that the accused had knowledge of the discriminatory grounds on which the widespread or systematic attack against a civilian population was launched. Such knowledge does not relate to the subjective motives of the perpetrator, but to his objective knowledge that such acts fit into a widespread or systematic attack against a civilian population based on political, racial or religious grounds.²⁸⁷
The Trial Chamber finds that an adoption of the Prosecution’s formulation of the requisite mens rea would eviscerate the distinction between persecution and the other enumerated crimes against humanity. Such an approach also would dilute the gravity of persecution as a crime against humanity, making it difficult to reach principled decisions in sentencing. Given the fact that the actus reus of persecution overlaps with the actus reus of other Article 5 crimes, the sole distinction between the two lies in the mens rea. Yet despite acknowledging the more stringent intent requirement, the Prosecution essentially adopts the mens rea formulated by the International Tribunal for crimes against humanity in general (“the objective knowledge that such acts fit into a widespread or systematic attack against a civilian population”), simply tacking on the additional requirement that the accused had the objective knowledge that attack was “based on political , racial or religious grounds”. This approach does not incorporate the requisite heightened mens rea that justifies the increased gravity of criminal liability for the crime of persecution. Rather, it simply requires that the accused have known one more thing.
In practice, it is hard to imagine a case where an accused somehow has the objective knowledge that his or her acts are committed in the context of a widespread or systematic attack against a civilian population, yet remains ignorant of the grounds (racial, religious or political) on which that attack has been launched. That would be tantamount to stating that the accused must have remained wholly ignorant of the racial, religious or political identity of the victim in order to escape the charge of persecution. In this manner, any distinction between persecutions and other crimes against humanity (or, for that matter, between persecutions and any other crime within the jurisdiction of this International Tribunal) collapses .
The expansion of mens rea is an easy but dangerous approach. The Trial Chamber must keep in mind that the jurisdiction of this International Tribunal extends only to “natural persons”²⁸⁸ and only the crimes of those individuals may be prosecuted. Stretching notions of individual mens rea too thin may lead to the imposition of criminal liability on individuals for what is actually guilt by association, a result that is at odds with the driving principles behind the creation of this International Tribunal.
The Trial Chamber therefore finds that in order to possess the necessary heightened mens rea for the crime of persecution, the accused must have shared the aim of the discriminatory policy: “the removal of those persons from the society in which they live alongside the perpetrators, or eventually from humanity itself.”²⁸⁹

B. Wilful Killing and Murder
The Indictment charges Dario Kordic and Mario Cerkez with killings under Article 2 of the Statute (“wilful killing”, Counts 8 and 15 respectively), Article 3 of the Statute (“murder”, Counts 9 and 16 respectively), and Article 5 of the Statute (“murder”, Counts 7 and 14 respectively). The Trial Chamber will now consider the elements of these crimes.

1. Wilful Killing
(a) Arguments of the parties
The Prosecution emphasises at the outset that the specific elements of wilful killing under Article 2 are the same as those of murder under Articles 3 and 5, and therefore that the submissions will apply equally in respect of those crimes .²⁹⁰
In the Prosecution’s submission, the crime of wilful killing comprises the following elements: (i) the death of the victim, (ii) that an act or omission of the accused was a substantial cause of the death, (iii) that the accused intended to kill or inflict serious injury in reckless disregard of human life.²⁹¹ The Prosecution submits that the requisite intent may be inferred from the circumstances , which include the foreseeability of death as a consequence of the accused’s acts .²⁹²
The Kordic Defence argues that the crime of wilful killing consists of the following four elements: (i) the death of the victim, (ii) the commission of an unlawful act by the accused that directly caused the death of the victim, (iii) the accused intended to commit the conduct causing the victim’s death, and (iv) the accused intended to kill the victim (which includes a situation where the accused knows with virtual certainty that the death of the victim would result from his actions).²⁹³
In respect of the mens rea, the Defence contends that the term “wilful ” implies a heightened requirement, such that the perpetrator must be shown to have had either direct intent (where a person intends the consequences of his actions) and knowledge (where a person knows that a specific outcome is virtually certain to result as a consequence of his actions).²⁹⁴
Thus, the Defence contests the Prosecution’s submission that the requisite intent may be met where the perpetrator acted recklessly in disregard of the likelihood that the victim’s death would result.²⁹⁵ Wilfulness, it is submitted, “entails embracing, not disregarding the prospect that the accused’s action will result in the death of the victim.”²⁹⁶
Moreover, the Defence submits that the Prosecution must establish that the accused intended to kill. It is not sufficient to show that the accused acted with the intent to cause severe bodily harm.²⁹⁷
The Cerkez Defence made no individual submissions as to the legal ingredients of this crime, but the Trial Chamber notes its joinder in the Kordic Final Brief .²⁹⁸
(b) Discussion
The Trial Chamber in the Celebici case was the first to identify the ingredients of the offence of wilful killing in Article 2(a) of the Statute.²⁹⁹ That finding was adopted by the Trial Chamber in the Blaskic case.³⁰⁰ This Chamber can see no reason to depart from the findings of the Celebici and Tadic Trial Chambers on this matter. Accordingly, the Chamber finds that, in relation to the crime of wilful killing, the actus reus – the physical act necessary for the offence – is the death of the victim as a result of the actions or omissions of the accused.³⁰¹ In this regard, the Chamber observes that the conduct of the accused must be a substantial cause of the death of the victim, who must have been a “protected person”.³⁰² To satisfy the mens rea for wilful killing, it must be established that the accused had the intent to kill, or to inflict serious bodily injury in reckless disregard of human life.³⁰³

2. Murder (Article 3)
(a) Arguments of the parties
The Prosecution submits that the offence of murder includes the following elements :³⁰⁴ (1) the occurrence of acts or omissions causing the death of victim; (2) the acts or omissions were committed wilfully; (3) the victims of the acts or omissions were taking no active part in the hostilities pursuant to Common Article 3 of the Geneva Conventions; (4) there was a nexus between the acts or omissions and an armed conflict; (5) the accused bears individual criminal responsibility for the destruction or devastation under Article 7(1) or 7(3).
The Kordic Defence submits that “the elements of ‘murder’ under Article 3 should be the same as for ‘wilful killing’ under Article 2”.³⁰⁵
The Prosecution Final Brief states that:

The crime of murder, as charged in the Amended Indictment, contravenes a basic rule of international humanitarian law similar to the safeguards against wilful killing , as prohibited in each grave breach provision of the Geneva Conventions.³⁰⁶
Having repeated elements 1, 4, and 5 of this offence as listed in its Pre-trial Brief, the Prosecution further submits that “the underlying offence wilful killing under Article 2, and the crime of murder as provided for in Common Article 3 and Article 5 of the Statute, apart from their respective jurisdictional conditions, require the same actus reus and mens rea”,³⁰⁷ referring to a statement of the Celebici Trial Judgement that “[t]here can be no line drawn between ‘wilful killing’ and ‘murder’ which affects their content ”.³⁰⁸
(b) Discussion
Following the findings of the Celebici and Blaskic Trial Chambers,³⁰⁹ the Trial Chamber finds that the elements of the offence of “murder” under Article 3 of the Statute are similar to those which define a “wilful killing” under Article 2 of the Statute, with the exception that under Article 3 of the Statute the offence need not have been directed against a “protected person” but against a person “taking no active part in the hostilities”.³¹⁰

3. Murder (Article 5)
(a) Arguments of the parties
The Prosecution agrees with the Celebici Trial Chamber that the actus reus of murder requires the death of a victim. The result of the acts or omission of the accused must be a “substantial cause” of the death of the victim.³¹¹ The Prosecution submits that the mens rea for murder under Article 5 should be interpreted to cover acts whereby the accused intended to kill or inflict serious injury in reckless disregard for human life, or when an accused willingly took the risk that such death could occur.³¹² The Defence argues that an omission may not constitute the actus reus for murder, and the accused’s act must have “directly” caused the death of the victim .³¹³
(b) Discussion
Although there has been some controversy in the International Tribunal’s jurisprudence as to the meaning to be attached to the discrepancy between the use of the word “murder” in the English text of the Statute and the use of the word “assassinat ” in the French text, it is now settled that premeditation is not required.³¹⁴ Most recently, the Blaskic Trial Chamber held that “it is murder (“meurtre ”) and not premeditated murder (“assassinat”) which must be the underlying offence of a crime against humanity.”³¹⁵
The constituent elements of a murder do not appear to be controversial.³¹⁶ In order for an accused to be found guilty of murder, the following elements need to be proved:

- the death of the victim;

- that the death resulted from an act or omission of the accused or his subordinate ;

- that the accused or his subordinate intended to kill the victim, or to cause grievous bodily harm or inflict serious injury in the reasonable knowledge that the attack was likely to result in death.³¹⁷

These elements are similar to those required in connection to wilful killing under Article 2 and murder under Article 3 of the Statute, with the exception that in order to be characterised as a crime against humanity a “murder” must have been committed as part of a widespread or systematic attack against a civilian population .³¹⁸

C. Offences of Mistreatment
Dario Kordic and Mario Cerkez are alleged to have caused injuries to Bosnian Muslims in a series of towns and villages listed in the Indictment. These acts are charged under Article 2 of the Statute (as “wilfully causing great suffering or serious injury to body or health” in Count 11 in respect of Dario Kordic, and Count 18 in respect of Mario Cerkez, and as “inhuman treatment” in Count 12 in respect of Dario Kordic, and Count 19 in respect of Mario Cerkez), Article 3 of the Statute (as “violence to life and persons” in Count 13 in relation to Dario Kordic, and Count 20 in relation to Mario Cerkez), and finally under Article 5 (as “inhumane acts” in Count 10 in respect of Dario Kordic, and Count 17 in respect of Mario C erkez).³¹⁹ Dario Kordic and Mario Cerkez are further alleged to have participated in the inhuman and/or cruel treatment of detainees, charged under Article 2 of the Statute as “inhuman treatment” (in Counts 23 and 31 respectively), and under Article 3 of the Statute as “cruel treatment ” (in Counts 24 and 32 respectively).³²⁰ Dario Kordic and Mario Cerkez are finally alleged to have participated in the use of Bosnian Muslims as human shields, which is charged under Article 2 of the Statute as “inhuman treatment” (in Counts 27 and 35 respectively), and under Article 3 of the Statute as “cruel treatment” (in Counts 28 and 36 respectively).³²¹ The Trial Chamber now turns to a consideration of the elements of these offences .

1. Wilfully Causing Great Suffering or Serious Injury to Body or Health (Article 2)
(a) Arguments of the parties
The Prosecution submits that, in order to establish the crime of wilfully causing great suffering or serious injury to body or health, it must prove “the wilful occurrence of acts or omissions which cause either (a) great suffering; or (b) serious injury to body or health, including mental health”.³²² The mens rea requirement is satisfied, it is argued, when the act is deliberate ; there is no additional requirement that the act be undertaken with specific intent or prohibited purpose.³²³
The Prosecution concurs with the finding of the Trial Chamber in the Celebici case that the crime of wilfully causing great suffering encompasses more than just physical suffering and may extend to include moral suffering.³²⁴ The Prosecution further submits that the requirement that the injury be serious means that it need only rise beyond the level of being “not slight or negligible ”.³²⁵
The Kordic Defence submits that, like the crime of inhuman treatment, the crime of wilfully causing great suffering is extremely difficult to define,³²⁶ but to the extent it is susceptible to definition, it is submitted, it comprises the following elements: (i) the victim experienced serious injury to body or health ; (ii) the accused committed an unlawful act that directly caused the victim to experience serious injury; (iii) the accused intended to commit the conduct that caused the victim to experience the serious injury, and intended for the victim to experience serious injury; and (iv) justification was lacking.³²⁷
The Kordic Defence submits that the term “great suffering” should be interpreted to require a showing of verifiable incapacity. Moreover, it is argued, the mens rea requirement is not satisfied by a showing of recklesness; the accused must have intended, through his deliberate acts, to cause great suffering or serious injury.³²⁸ Finally, the Defence contends that it must be for the Prosecution to establish that the actions that inflicted great suffering or serious injury were not necessary.³²⁹
The Cerkez Defence submits that the existence of a serious injury for the purpose of this crime may not be proved in the absence of medical documentation, or at least a detailed description of the injuries by the wounded person.³³⁰
(b) Discussion
This crime, set forth in Article 2(c) of the Statute, is one of a group of crimes falling under the general heading of inhuman treatment. The ICRC Commentary to Geneva Convention IV provides the following discussion in relation to this crime :

Wilfully causing great suffering: - This refers to suffering inflicted without the ends in view for which torture is inflicted or biological experiments carried out. It would therefore be inflicted as a punishment, in revenge or for some other motive, perhaps out of pure sadism. In view of the fact that suffering in this case does not seem, to judge by the phrase which follows, to imply injury to body or health, it may be wondered if this is not a special offence not dealt with by national legislation. Since the Conventions do not specify that only physical suffering is meant, it can quite legitimately be held to cover moral suffering also.

Serious injury to body or health:- This is a concept quite normally encountered in penal codes, which usually use as a criterion of seriousness the length of time the victim is incapacitated for work.³³¹
In interpreting this Commentary, the Chamber agrees with the findings of the Trial Chamber in Celebici, which held, inter alia, that the scope of this crime encompasses mental, in addition to physical suffering. Moreover, the Celebici Trial Chamber held that the terms “great” and “serious”, which qualify the terms “suffering” and “injury”, respectively, merely require a finding that a particular act of mistreatment, in order to fall within the ambit of this crime, must occasion suffering or injury of the requisite level of seriousness.³³²
Accordingly, the Trial Chamber finds that the crime of wilfully causing great suffering or serious injury to body or health constitutes an intentional act or omission which causes serious mental or physical suffering or injury, provided the requisite level of suffering or injury can be proven. This crime is distinguished from that of inhuman treatment in that it requires a showing of serious mental or physical injury. Thus, acts where the resultant harm relates solely to an individual’s human dignity are not included within this offence. Provided the acts of causing injuries alleged in the Indictment meet the requirements set forth by the Trial Chamber, they may be characterised as the crime of wilfully causing great suffering . As with all offences charged under Article 2 of the Statute, there is a further requirement that the acts must have been directed against a “protected person”.

2. Inhuman Treatment (Article 2)
(a) Arguments of the parties
The Prosecution submits that the specific elements of the crime of inhuman treatment are (i) the infliction of serious mental or physical suffering or injury , or a serious attack on human dignity, and (ii) the accused must have intended unlawfully to inflict such suffering or to attack human dignity.³³³
The Prosecution argues that the scope of this crime was correctly established in the Celebici Judgement; in this regard, a victim need not suffer physical injury or injury to health for an act to qualify as inhuman treatment under the Geneva Conventions.³³⁴ The crime, it is argued, extends to encompass inadequate living conditions for detainees.³³⁵
The Prosecution concurs with the statement in both the Celebici and Blaskic Trial Judgements that “in the final analysis, deciding whether an act constitutes inhuman treatment is a question of fact to be ruled on with all the circumstances of the case in mind.”³³⁶
As to the mens rea element, the Prosecution submits that this is satisfied where the act was committed intentionally. There is no additional requirement, it is argued, that the acts or omission were committed with the specific intent to cause suffering or attack human dignity.³³⁷
The Kordic Defence agrees with the Celebici Trial Chamber finding that “inhuman treatment” under Article 2 of the Statute, “cruel treatment” under Article 3 of the Statute and “inhuman acts” under Article 5 of the Statute are all the same offence.³³⁸ The Defence, however , submits that none of these crimes have been sufficiently defined under international law so as to warrant prosecution without violating the principle of legality.³³⁹
The Kordic Defence observes that the European Court was the only body to have formulated a definition of the offence of inhuman treatment at the time the crimes alleged in the Indictment were committed. In its submission, that definition comprises three elements: (i) the occurrence of acts causing an intense and severe suffering , physical or mental, (ii) the intent to commit the act that caused intense and severe suffering, and the intent to cause such suffering, and (iii) the lack of any justification.³⁴⁰ It is the Defence submission that even under this definition, the principle of legality is violated.³⁴¹ Relying upon the finding of the Trial Chamber in the Tadic case, the Defence submits that, while the suffering associated with the crime of inhuman treatment may be physical or mental , the action that causes the suffering must have a serious physical component.³⁴²
The Kordic Defence rejects the definition of the crime of inhuman treatment set forth in the Celebici Trial Judgement for the reason that it is far too vague to provide notice, even when applied prospectively, of the acts encompassed .³⁴³
In relation to the mens rea element, the Kordic Defence contends that the perpetrator must have acted, not only deliberately, but with the intent to cause serious injury.³⁴⁴ The Defence submits that the crime may only be established where the treatment lacked any justification ; in support of this position, it cites a case where the European Commission held that certain conditions of detention, including isolation, constant artificial lighting and lack of physical exercise, did not constitute inhuman treatment where these conditions were shown to be related to ensuring security and preventing escape.³⁴⁵
The Cerkez Defence observes that Article 27 of Geneva Convention IV states that while protected persons have the right to have their religious customs, honour and family rights protected (and, to be protected from acts of violence or threats ) a party to the conflict may undertake measures of control and security in respect of protected persons which are necessary as a result of war.³⁴⁶
In the submission of the Cerkez Defence, the crime of inhuman treatment comprises the following elements: (i) premeditation, (ii) long duration, (iii) intensive physical and psychological suffering and acute psychiatric disturbances.³⁴⁷
(b) Discussion
The elements of the crime of inhuman treatment in Article 2(b) of the Statute were extensively discussed by the Trial Chamber in the Celebici case. This Chamber is persuaded by its reasoning and adopts the Celebici Trial Chamber’s findings in that respect. Consequently, this Chamber holds that “inhuman treatment is an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental harm or physical suffering or injury or constitutes a serious attack on human dignity.”³⁴⁸ As with all offences charged under Article 2 of the Statute, the act must have been directed against a “protected person”. The Trial Chamber is of the view that the acts alleged in the Indictment (injuries, inhuman treatment of detainees, and use of persons as human shields) may be characterised as “inhuman treatment” under Article 2 of the Statute provided the above-mentioned required elements are proven.

3. Violence to Life and Person (Article 3)
(a) Arguments of the parties
The Prosecution identifies the elements of this offence as follows:³⁴⁹ (1) the occurrence of acts or omissions causing death or serious mental or physical suffering or injury; (2) the acts or omissions were committed wilfully; (3) the victims of the acts or omissions were persons taking no active part in hostilities pursuant to Common Article 3 of the Geneva Conventions; (4) there was a nexus between the acts or omissions and an armed conflict; (5) the accused bears individual criminal responsibility for the acts or omissions under Article 7(1) or 7(3) of the Statute .
In respect of this offence, the Kordic Defence submits that³⁵⁰

the offense of violence to life and person should be considered the same underlying offense as “wilfully causing great suffering or serious injury to body or health ” under Article 2.
The Prosecution Final Brief submits that “[t]he offence of violence to life and person covers a panoply of criminal conduct that includes murder”.³⁵¹
(b) Discussion
The Trial Chamber notes that this offence is to be found in Common Article 3(1)(a) of the Geneva Conventions. Although this provision was originally designed to apply in armed conflicts “not of an international character”, it is now accepted that the fundamental character of the prohibitions it contains renders it applicable to both internal and international conflicts.³⁵² The Trial Chamber agrees with the Blaskic Trial Chamber that the offence of “violence to life and person” is

a broad offence, which … encompasses murder, mutilation, cruel treatment and torture and which is accordingly defined by the cumulation of the elements of these specific offences. The offence is to be linked to those of Article 2(a) (wilful killing), Article 2(b) (inhuman treatment) and Article 2(c) (causing serious injury to body ) (sic) of the Statute. … The Trial Chamber considers that the mens rea is characterised once it has been established that the accused intended to commit violence to the life or person of the victims deliberately or through recklessness . ³⁵³

With respect to the specific act of causing injuries alleged in the Indictment, the Trial Chamber is of the view that, where the act did not result in the death of the victim, it may be better characterised as “wilfully causing great suffering ” or “inhuman treatment” under Article 2 of the Statute.

4. Cruel Treatment (Article 3)
(a) Arguments of the parties
The Prosecution identifies the elements of this offence as follows:³⁵⁴ (1) the occurrence of acts or omissions causing serious mental or physical suffering or injury or constituting a serious attack on human dignity; (2) the acts or omissions were committed wilfully; (3) the victims of the acts or omissions were persons taking no active part in hostilities pursuant to Article 3 Common to the Geneva Conventions; (4) there was a nexus between the acts or omissions and an armed conflict ; (5) the accused bears individual criminal responsibility for the acts or omissions under Article 7(1) or 7(3) of the Statute.
In respect of this offence, the Kordic Defence “agrees with the Celebici Trial Chamber that cruel treatment under Article 3 is the same offense as inhuman treatment under Article 2”.³⁵⁵
The Prosecution Final Brief submits that

… the elements of the offense of cruel treatment are constituted by an accused’s participation in: (a) an intentional act or omission that, judged objectively, is deliberate and not accidental; and (b) that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.³⁵⁶
The Prosecution also suggests that “the mens rea of cruel treatment is similar to the mens rea for the offenses of inhuman treatment under Article 2 and outrages upon personal dignity under Common Article 3”.³⁵⁷ Considering that, in the existing case-law of the International Tribunal, this offence is considered to include acts of severe beatings, sexual mutilations, inflicting burns, forced eating of grass, contribution to an atmosphere of terror, and the use of human shields, the Prosecution “notes that the elements of cruel treatment under Common Article 3 carries the equivalent meaning and performs the same residual function as the offense of inhuman treatment under Article 2 of the Statute”.³⁵⁸
(b) Discussion
As the offence of “violence to life and person”, the offence of “cruel treatment ” is prohibited in Common Article 3 of the Geneva Conventions. The Celebici Trial Chamber found that

cruel treatment constitutes an intentional act or omission, that is an act which , judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity .³⁵⁹

The Celebici Trial Chamber went on to conclude that “cruel treatment” is “equivalent to the offence of inhuman treatment in the framework of the grave breaches provisions of the Geneva Conventions.”³⁶⁰ The Trial Chamber sees no reason to depart from these findings.

5. Inhumane Acts (Article 5)
(a) Arguments of the parties
The Prosecution submits that the specific elements of the crime of inhumane acts are identical to the elements of the Article 2 crime of inhumane treatment: (a) the infliction of serious mental or physical suffering or injury, or a serious attack on human dignity; and (b) the accused must have intended unlawfully to inflict such suffering or to attack human dignity.³⁶¹ The Prosecution further contends that there is no additional requirement that these acts or omissions be committed with the specific intent to cause suffering or attack human dignity. The mens rea element is fulfilled as long as the act “judged objectively, is deliberate and not accidental”.³⁶²
With respect to the actus reus for inhumane acts, the Kordic Defence submits that the acts must have caused intense and severe mental or physical suffering , and that under the circumstances, the acts were unjustifiable.³⁶³ As for the mens rea, the Defence asserts that the acts must have been committed with a specific intent to take part in the furtherance of formal government policy or plan and with discriminatory intent.³⁶⁴
The Cerkez Defence submits that inhumane treatment is defined as action of violent behaviour, but not as violent as torture. Relevant factors in determining inhuman treatment are premeditation, long duration, intensive physical and psychological suffering and acute psychiatric disturbances.³⁶⁵
(b) Discussion
It is not controversial that the category “other inhumane acts” provided for in Article 5 is a residual category, which encompasses acts not specifically enumerated .³⁶⁶ Trial Chambers have considered the threshold to be reached by these other acts in order to be incorporated in this category, reaching similar conclusions as to the serious nature of these acts. The Tadic Trial Chamber found that “inhumane acts” are acts “similar in gravity to those listed in the preceding subparagraphs”.³⁶⁷ In the words of the Kupreskic Trial Chamber, in order to be characterised as inhumane, 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.”³⁶⁸ The Tadic Trial Chamber, in relation to the requisite nature of “other inhumane acts”, held that they “must in fact cause injury to a human being in terms of physical or mental integrity, health or human dignity.”³⁶⁹
Acts such as “mutilation and other types of severe bodily harm”, “beatings and other acts of violence”,³⁷⁰ and “serious physical and mental injury”³⁷¹ have been considered as constituting inhumane acts. The Trial Chamber in Kupreskic took a broader approach of which acts may fall into the category of other inhumane acts in concluding that acts such as the forcible transfer of groups of civilians, enforced prostitution, and the enforced disappearance of persons, may be regarded as “other inhumane acts”.³⁷²
Within the context of the discussion of “other inhumane acts”, the Blaskic Trial Chamber defined the elements of serious bodily or mental harm thus:

- the victim must have suffered serious bodily or mental harm; the degree of severity must be assessed on a case-by-case basis with due regard for the individual circumstances ;

- the suffering must be the result of an act of the accused or his subordinate;

- when the offence was committed, the accused or his subordinate must have been motivated by the intent to inflict serious bodily or mental harm upon the victim.³⁷³

In addition, as discussed in relation to the requirements for the application of Article 5 of the Statute, the acts must have been committed as part of a widespread or systematic attack against a civilian population.
The Trial Chamber finds that where the act alleged in the Indictment to have caused injuries meets the requirements set out in the preceding paragraph, they may be characterised as “inhumane acts” for the purposes of Article 5 of the Statute .

D. Unlawful Confinement of Civilians and Imprisonment
Dario Kordic and Mario Cerkez are alleged to have participated in the illegal detention of Bosnian Muslims. These acts are charged under Article 2 (as “unlawful confinement” in Counts 22 and 30 respectively), and Article 5 of the Statute (as “imprisonment” in Counts 21 and 29 respectively).³⁷⁴ This section will determine the legal ingredients of these offences.

1. Unlawful Confinement (Article 2)
(a) Arguments of the Parties
According to the Prosecution, in order to constitute the crime of unlawful confinement of a civilian under Article 2 of the Statute, it must be proved that : (a) the victim was a civilian; and either (b) the initial confinement was not legal; or (c) the continuing confinement was not legal because the requisite procedural safeguards were violated.³⁷⁵
In relation to (b), the Prosecution argues that while the confinement of civilians is permitted in certain limited situations – and only as a measure of last resort - where the person is definitely suspected of or engaged in activities hostile to the security of a State, these situations remain the exception and, consequently , do not apply to an individual’s political attitude towards the State.³⁷⁶ Moreover, although the determination of the security of the State, a threat to which justifies internment or assigned residence, is left to the authorities of the State itself, it must nevertheless be made on a case-by-case basis³⁷⁷ and the exceptional measure of confinement can never be taken on a collective basis .³⁷⁸
In respect of (c), the Prosecution states that even if the initial confinement of civilians is justifiable under the exceptions discussed above, the detainee must still be granted some basic procedural rights. Any failure to implement these procedural safeguards can render an otherwise lawful confinement unlawful.³⁷⁹ The procedural safeguards are those provided in Articles 43 and 78 of Geneva Convention IV, that is to say the detainee’s right to have his detention reconsidered as soon as possible by an appropriate court or an administrative board.³⁸⁰ Furthermore, in addition to the review of the legality of confinement under international humanitarian law, the detainee is also entitled to a periodic review of the detention , bearing in mind that “no civilian should be kept in … an internment camp for a longer time than the security of the detaining party absolutely demands”³⁸¹ and that, upon confinement or/and release, his or her identity should be given by the detaining party to the Protecting Power .³⁸²
In its Pre-trial Brief, the Kordic Defence submitted the following as constituting the elements of the offence under Article 2(g): (1) the occurrence of acts directly causing civilian/s to be unlawfully confined; (2) the acts were committed intentionally , that is, with intent to commit the act and intent to cause the victims to be unlawfully confined; (3) the victims of the acts were protected persons under Geneva Convention IV; (4) the acts occurred during an international armed conflict, and there was a nexus between the act and the conflict; (5) the accused bears individual criminal responsibility for the acts under Article 7(1) or 7(3) of the Statute.³⁸³
The Cerkez Defence argues that the internment of civilians in wartime may be necessary and justified in order to safeguard the civilian population living in a combat zone, as well as to safeguard the party’s own troops and prevent espionage and sabotage operations.³⁸⁴ The Defence cited the United States Supreme Court cases of Korematsu v. United States ³⁸⁵ and Hirabayashi v. United States³⁸⁶ for this proposition . In both cases, the claims of the plaintiff – U.S. nationals of Japanese origin - were rejected on the basis that the measures in question did not constitute a violation of their constitutional rights or a discrimination against them. The measures constituted, rather, temporary measures justified by safety considerations . The Defence further notes that these two cases involved the internment of Japanese -American civilians in the United States far from any combat activities, whereas “the temporary and short” internment of Bosnian Muslims was not motivated by national discrimination but, as in the cases cited above, was similarly justified by safety considerations, to protect against espionage and sabotage, as well as for the detainees’ protection. The Defence concludes that if the internment of Japanese-Americans does not constitute a violation of human rights, then the internment of Bosnian Muslims from the zone of actual war operations should legally be viewed likewise .³⁸⁷
(b) Discussion
The offence of unlawful confinement is punishable under Article 2(g) of the Statute as a grave breach of the Geneva Conventions. Two questions arise in considering the elements of this offence. Firstly, whether the initial confinement was lawful . Secondly, regardless of the legality of the initial confinement, whether the confined persons had access to the procedural safeguards regulating their confinement .

(i) Legality of the Initial Confinement
In order to assess the legality of the initial confinement, the Trial Chamber must evaluate its conformity with international humanitarian law. Although, as a rule, civilians are entitled to the rights and privileges set forth in Geneva Convention IV, there are instances in an armed conflict whereby certain of those rights may be temporarily restricted or suspended.³⁸⁸ Accordingly, Article 5 of Geneva Convention IV provides:

Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
[...]
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

Although the language of this provision may suggest a broad application of Article 5 to a variety of situations, the Chamber observes nevertheless that “activities hostile to the security of the State”, are above all espionage, sabotage and intelligence with the enemy Government or enemy nationals and exclude, for example, a civilian’s political attitude towards the State.³⁸⁹ As stated in the Celebici Trial Judgement:

While there is no requirement that the particular activity in question must be judged as criminal under national law before a State can derogate from the rights of protected civilians under Article 5, it is almost certain that the condemned activity will in most cases be the subject of criminal punishment under national law. However, the instances of such action that might be deemed prejudicial or hostile to State security must be judged as such under international law, both for cases arising in occupied and unoccupied territory.³⁹⁰
Paragraph 4 of Article 27 of Geneva Convention IV contains a reservation permitting a party to restrict certain rights arising under this Convention:

[...] the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

However, the treatment of protected persons must in all circumstances meet the standards set forth in paragraphs 1, 2 and 3 of Article 27:

Protected persons are entitled, in all circumstances, to respect for their persons , their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.

Without prejudice to the provisions relating to their state of health, age and sex , all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.

Thus, paragraph 1 of Article 27 lays down the general principles of respect for fundamental rights - including the respect for personal liberty - and humane treatment .³⁹¹ Paragraph 2 focuses on the treatment of women, while paragraph 3 pertains to the equality of treatment and non-discrimination.
In sum, the reservation in paragraph 4 leaves a wide margin of discretion to the belligerents with regard to the choice of measures, which can range from imposing a duty to register to the internment of civilians.³⁹² However, what is fundamental is that, even if these measures of constraint are justified and made absolutely necessary based on the requirements of State security, the fundamental rights of the persons must be respected.³⁹³
Articles 41,³⁹⁴ 42 and 43 of Geneva Convention IV specify the circumstances under which a party may resort to internment. Article 41 provides:

Should the Power in whose hands protected persons may be consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment , in accordance with the provisions of Articles 42 and 43.
…

Assigned residence consists of moving people from their domicile and forcing them to live, as long as the circumstances justifying such action continue to exist, in a locality which is generally out of the way and where supervision is more easily exercised.³⁹⁵ Internment is the most severe form of assigned residence, since internees are detained, not just outside their normal place of residence, but in a camp with other detainees.³⁹⁶ Article 41 thus specifies that the internment of civilians is the most severe measure of control permitted under Article 27, paragraph 4, of the Convention. However, such extreme measures are subject to strict conditions, primarily set out in Articles 42 and 43 of Geneva Convention IV.
Article 42 of Geneva Convention IV provides:

The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.

If internment is permitted only in cases of absolute necessity, it is, to a large extent, up to the Party exercising this right to determine the activities that are prejudicial to the external or internal security of the State. However, if activities threatening the security of the State, such as subversive activities or direct assistance to the enemy, may permit a Party to intern people or place them in assigned residence – but only if it has a serious and legitimate reason to think that they are members of a subversive organization - the mere fact that a person is a national of the enemy cannot be considered as threatening the security of the country where he lives.³⁹⁷ Furthermore, the fact that a man is “of military age should not necessarily be considered as justifying the application of these measures”.³⁹⁸
However, whether in the territory of the occupying power or in that of the occupied power, internment and assigned residence are exceptional measures to be taken only after careful consideration of each individual case, and never on a collective basis.³⁹⁹

(ii) Procedural Safeguards
Civilians interned in accordance with Articles 5, 27 or 42 of Geneva Convention IV should be granted the procedural rights set forth in Article 43 of Geneva Convention IV, which reads as follows:

Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose . If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision , if circumstances permit.

Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or who have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions , be notified as rapidly as possible to the Protecting Power.
This Article provides the individuals interned or placed in assigned residence with basic procedural rights in relation to the detaining power. The first paragraph guarantees the right of appeal, under an a posteriori scheme before an appropriate court or administrative board designated by the detaining party. In cases where an appeal is denied, the court or administrative board must reconsider the case periodically. Paragraph 2 obliges the detaining party to provide the Protecting Power with the names of protected persons who are interned, placed in assigned residence or released.⁴⁰⁰ If the exceptional and severe decision to intern or to place a civilian in assigned residence is taken where it is not justified by absolute necessity for the security of the State, the court or administrative board must revoke it.⁴⁰¹
Finally, Article 132 of Geneva Convention IV provides:

Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist.

The Parties to the conflict shall, moreover, endeavour during the course of hostilities , to conclude agreements for the release, the repatriation, the return to places of residence or the accommodation in a neutral country of certain classes of internees , in particular children, pregnant women and mothers with infants and young children , wounded and sick, and internees who have been detained for a long time.

Despite its general wording, paragraph 1 forms the counterpart to the principle stated in Article 42, and seeks to prevent the unlimited detention of civilians.
Based on the foregoing, the Chamber agrees with the following findings of the Trial Chamber in Celebici in respect of the crime of unlawful confinement :

[T]he confinement of civilians during armed conflict may be permissible in limited cases, but has in any event to be in compliance with the provisions of articles 42 and 43 of the Geneva Convention IV. The security of the State concerned might require the internment of civilians and, furthermore, the decision of whether a civilian constitutes a threat to the security of the State is largely left to its discretion.⁴⁰²

The Trial Chamber went on to assert that

… the measure of internment for reasons of security is an exceptional one and can never be taken on a collective basis. An initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in article 43 of Geneva Convention IV.⁴⁰³
The Trial Chamber now looks at the arguments of the Cerkez Defence with regard to the Korematsu and Hirabayashi cases. The Chamber first notes that the decisions in question were rendered in the light of the United States Constitution and prior to the adoption of the Geneva Conventions. It is the opinion of this Trial Chamber that those decisions should not be analysed solely in the context of the Second World War, but also, and especially, in the light of their subsequent development. Thus, in 1984, the United States District Court for the Northern District of California⁴⁰⁴ rendered a judgement whereby Mr. Korematsu was granted a writ of coram nobis⁴⁰⁵ to vacate his conviction on the grounds of governmental misconduct, i.e., that the Government deliberately omitted relevant information and provided misleading information before the Supreme Court, and seriously impaired the judicial process.⁴⁰⁶ On that occasion, the United States Government acknowledged the injustice suffered by the petitioner and other Japanese-Americans.⁴⁰⁷ In its decision, the court referred to the findings of the Commission on Wartime Relocation and Internment of Civilians⁴⁰⁸:

“[B]road historical causes which shaped these decisions [exclusion and detention] were race prejudice, war hysteria and a failure of political leadership”. As a result, “a grave injustice was done to American citizens and resident aliens of Japanese ancestry who, without individual review or any probative evidence against them, were excluded, removed and detained by the United States during World War II.⁴⁰⁹

According to the court, although the Supreme Court’s decision stands as the law of this case,

Justices of that Court and legal scholars have commented that the decision is an anachronism in upholding overt racial discrimination as compellingly justified.⁴¹⁰

Thus, the court stated that “[a]s a legal precedent, [the Korematsu decision] is now recognized as having very limited application.” Interestingly, the court cited the United States Government’s acknowledgement of its concurrence with the Commission’s observations that “today the decision in Korematsu lies overruled in the court of history”.⁴¹¹
Given this evolution of the American legal perception of the Korematsu and Hirabayashi decisions, coupled with the fact that the Supreme Court decisions were rendered prior to the adoption of the Geneva Conventions, the Chamber cannot consider these decisions as constituting a precedent with regard to the question of what constitutes unlawful confinement of civilian persons under the Geneva Conventions . The Trial Chamber finds that the confinement of civilians during armed conflict may be permissible in limited cases, but will be unlawful if the detaining party does not comply with the provisions of Articles 42 and 43 of Geneva Convention IV . Thus, as confirmed by the Celebici Appeal Judgement, the confinement of civilians will be unlawful in the following circumstances:

(i) when a civilian or civilians have been detained in contravention of Article 42 of Geneva Convention IV, ie, they are detained without reasonable grounds for believing that the security of the Detaining Power makes it absolutely necessary ; and

(ii) where the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.⁴¹²

2. Imprisonment (Article 5)
(a) Arguments of the Parties
According to the Prosecution, the underlying elements of imprisonment as a crime against humanity are identical to the elements as set forth above for unlawful confinement under Article 2 of the Statute.⁴¹³
The Kordic Defence submits that the mens rea for imprisonment, as with all other crimes against humanity, must be the specific intent to take part in the furtherance of a formal government policy or plan and with discriminatory intent .⁴¹⁴
The Cerkez Defence arguments are the same as those set out with regard to the crime of unlawful confinement of civilians.⁴¹⁵
(b) Discussion
The offence of imprisonment is punishable under Article 5(e) of the Statute as a crime against humanity. This section will consider the definition of imprisonment pursuant to which its legality will be discussed.
The Trial Chamber observes that, to date, the jurisprudence of the ad hoc International Tribunals has not addressed the crime against humanity of imprisonment . Therefore, this Trial Chamber deems it necessary briefly to determine the scope of imprisonment in the context of crimes against humanity.
Concerning the Statutes of the ad hoc International Tribunals, Article 5 of the International Tribunal Statute and Article 3 of the ICTR Statute both refer to the term “imprisonment” as a crime against humanity but do not define it.⁴¹⁶
As for the Indictment, it charges Dario Kordic under “Imprisonment/Unlawful Confinement” with a crime against humanity (Count 21) and a grave breach (Count 22). Likewise, under “Imprisonment/Unlawful Confinement”, the Indictment charges Mario Cerkez with a crime against humanity (Count 29) and a grave breach (Count 30). This coupling of the charges in the Indictment suggests that although imprisonment and unlawful confinement are two distinct crimes, the Prosecution has viewed them as sharing the same elements. This inference is strengthened by the Prosecution Final Brief in which it considers that the underlying elements of imprisonment as a crime against humanity are identical to the elements as set forth in paragraphs 51-63 of its Final Brief for unlawful confinement under Article 2 of the Statute .
In its definition of crimes against humanity, the Internationaln Law Commission refers to the prohibited act of “arbitrary imprisonment” under sub-paragraph (h):

the term imprisonment encompasses deprivation of liberty of the individual and the term “arbitrary” establishes the requirement that the deprivation be without due process of law.⁴¹⁷

The International Law Commission further indicates that arbitrary imprisonment is contrary to Article 9 of the Universal Declaration of Human Rights and to Article 9 of the International Covenant on Civil and Political Rights (“ICCPR”)⁴¹⁸ and would cover the practice of concentration camps or detention camps or “other forms of long-term detention”.⁴¹⁹
Finally, Article 7(1)(e) of the ICC Statute mentions “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law”. Thus, this provision prohibits imprisonment only where it is contrary to international law and draws a distinction between lawful and unlawful imprisonments.⁴²⁰
In the light of this analysis, the Trial Chamber concurs with the arguments of the Prosecution with regard to the identity of the elements of the crime of imprisonment and those of unlawful confinement.
The Trial Chamber concludes that the term imprisonment in Article 5(e) of the Statute should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against a civilian population. In that respect, the Trial Chamber will have to determine the legality of imprisonment as well as the procedural safeguards pertaining to the subsequent imprisonment of the person or group of persons in question, before determining whether or not they occurred as part of a widespread or systematic attack directed against a civilian population .
Based on the aforementioned definition, the imprisonment of civilians will be unlawful where:

- civilians have been detained in contravention of Article 42 of Geneva Convention IV, i.e., they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary;

- the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where initial detention may have been justified;⁴²¹ and

- they occur as part of a widespread or systematic attack directed against a civilian population.

E. Taking of Hostages
Dario Kordic and Mario Cerkez are charged in the Indictment with taking Bosnian Muslims as hostages. These acts are charges under Article 2 (as “taking civilians as hostages” in Counts 25 and 33 respectively) and Article 3 of the Statute (as “taking of hostages” in Counts 26 and 34 respectively).

1. Taking Civilians as Hostages (Article 2)
(a) Arguments of the parties
The Prosecution submits that the elements of the crime of taking civilians as hostages under Article 2(h) are: (i) civilians were seized, detained, or otherwise held hostage; (ii) the detained civilians were wilfully used for the purpose of obtaining some advantage or securing some commitment from a Party to the conflict , or other person or group of persons; and (iii) there was a threat to the life , well-being or freedom of the civilians detained if such advantage was not obtained or such commitment not secured.⁴²²
The Prosecution observes that the term “hostages” was defined in The Hostages Trial, W. List and Others as “those persons of the civilian population who are taken into custody for the purpose of guaranteeing with their lives the future good conduct of the population of the community from which they are taken.”⁴²³ The ICRC Commentary to Article 75(2)(c) of Additional Protocol I, it is argued, expanded the definition of hostages in the Hostages case to include persons “detained for the purpose of obtaining certain advantages.”⁴²⁴ While Article 12 of the International Convention Against the Taking of Hostages specifically states that the Convention does not apply to acts of hostage-taking committed in the course of armed conflict, it is argued that it can be of assistance in determining the essential elements of the offence.⁴²⁵ The Convention defines the crime in the following terms:

any person [who] seizes or detains and threatens to kill, to injure or to continue to detain another person in order to compel a third party, namely a State, an international organisation, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage .⁴²⁶
The Kordic Defence submits that the crime of unlawfully taking civilians as hostages comprises the following elements: (i) the victims are civilians detained against their will, (ii) there is no reasonable basis for their detention, (iii) the civilian detainees are answerable with their lives, physical well-being, or their freedom for the granting of a concession, (iv) the accused committed an unlawful act that caused the detention of the civilians and he intended to commit that act , (v) the accused intended to detain civilians against their will for the purpose of extracting a concession.⁴²⁷
In the Defence’s submission, hostage-taking is only unlawful where the accused lacks a reasonable basis for detaining the civilian hostages. Thus, it is argued , detention is permitted to protect civilians or when security concerns make it necessary.⁴²⁸
As regards the mens rea element, the Defence submits that the accused must not only have deliberately detained the victims, he must have intended to detain them for the purpose of extracting a concession. Moreover, it is argued, “even if a concession is eventually sought . . . the accused is not liable absent proof that he performed his original actions of detention for the purpose of extracting a concession”.⁴²⁹
The Cerkez Defence made no individual submissions in relation to the legal ingredients of this offence, but the Trial Chamber notes its joinder in the Kordic Final Brief.⁴³⁰
(b) Discussion
This crime is listed as one of the grave breaches in Article 147 of Geneva Convention IV. The ICRC Commentary thereto provides:

The taking of hostages: Hostages might be considered as persons illegally deprived of their liberty, a crime which most penal codes take cognizance of and punish. However, there is an additional feature, i.e. the threat either to prolong the hostage’s detention or to put him to death. The taking of hostages should therefore be treated as a special offence. Certainly, the most serious crime would be to execute hostages which, as we have seen, constitutes wilful killing. However, the fact of taking hostages, by its arbitrary character, especially when accompanied by a threat of death, is in itself a very serious crime; it causes in the hostage and among his family a mortal anguish which nothing can justify.⁴³¹
It would, thus, appear that the crime of taking civilians as hostages consists of the unlawful deprivation of liberty, including the crime of unlawful confinement . In that regard, the Chamber observes that the elements of the crime of unlawful confinement are set out above.
The additional element that must be proved to establish the crime of unlawfully taking civilians hostage is the issuance of a conditional threat in respect of the physical and mental well-being of civilians who are unlawfully detained. The ICRC Commentary identifies this additional element as a “threat either to prolong the hostage’s detention or to put him to death”. In the Chamber’s view, such a threat must be intended as a coercive measure to achieve the fulfilment of a condition. The Trial Chamber in the Blaskic case phrased it in these terms: “The Prosecution must establish that, at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage.”⁴³²
Consequently, the Chamber finds that an individual commits the offence of taking civilians as hostages when he threatens to subject civilians, who are unlawfully detained, to inhuman treatment or death as a means of achieving the fulfilment of a condition.

2. Taking of Hostages (Article 3)
(a) Arguments of the parties
The Prosecution defines the elements of this offence as follows:⁴³³ (1) the occurrence of acts or omissions causing person/s to be seized, detained, or otherwise unlawfully held as hostages; (2) the acts or omissions involved a threat to injure, kill, or continue to detain such person/s in order to compel a State, military force, international organisation, natural person or group of persons to act or refrain from acting, as an explicit or implicit condition for the safe release of the hostage/s; (3) the acts or omission were committed wilfully; (4) the victims of the acts or omissions were persons taking no active part in hostilities pursuant to Common Article 3 of the Geneva Conventions; (5) there was a nexus between the acts or omissions and an armed conflict; (6) the accused bears individual criminal responsibility for the acts or omissions under Article 7(1) or 7(3) of the Statute .
The Kordic Defence submits that this offence “should be analysed in a manner consistent with ‘taking civilians as hostages’ under Article 2”, with “Article 2 ” being understood to be that of the Statute.⁴³⁴ It also concurs in the Blaskic Trial Judgement in respect of the definition of hostages and the actus reus of the offence of hostage-taking.⁴³⁵
The Prosecution Final Brief submits that this offence violates Common Article 3 (1) of the Geneva Conventions as well as Article 75 (2) (c) of Additional Protocol I and Article 4 (2) (c) of Additional Protocol II.⁴³⁶
The Cerkez Final Brief asserts that the Prosecution has not proved the offence , an assertion that is more linked to facts than law.⁴³⁷
(b) Discussion
The Trial Chamber notes that Common Article 3(1)(b) of the Geneva Conventions prohibits the taking of hostages in respect of persons taking no active part in the hostilities, members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. The Blaskic Trial Chamber, relying upon the ICRC Commentary (GC IV) adopted a broad definition of the term “hostage”.⁴³⁸ It went on

The definition of hostages must be understood as being similar to that of civilians taken as hostages within the meaning of grave breaches under Article 2 of the Statute , that is – persons unlawfully deprived of their freedom, often wantonly and sometimes under threat of death.⁴³⁹

The Blaskic Trial Judgement also held that hostages are taken to “obtain some advantage or to ensure that a belligerent, other person or other group of persons enter into some undertaking”.⁴⁴⁰
This Trial Chamber concurs with these findings and considers that, in the context of an international armed conflict, the elements of the offence of taking of hostages under Article 3 of the Statute are essentially the same as those of the offence of taking civilians as hostage as described by Article 2 (h).

F. Attacks and Property-Related Offences

1. Unlawful Attacks on Civilians and Civilian Objects (Article 3)
Dario Kordic and Mario Cerkez are charged with the offence of unlawful attack on civilians (under Counts 3 and 5 respectively), and unlawful attack on civilian objects (under Counts 4 and 6 respectively) under Article 3 of the Statute.⁴⁴¹
(a) Arguments of the parties
The Prosecution defines the elements of the offence of unlawful attack on civilians as follows:⁴⁴² (1) an attack resulted in civilian deaths, serious injury to civilians, or a combination thereof; (2) the civilian status of the population or individual persons killed or seriously injured was known or should have been known; (3) the attack was wilfully directed at the civilian population or individual civilians; (4) there was a nexus between the attack and an armed conflict; (5) the accused bears individual criminal responsibility for the attack under either Article 7(1) or 7(3) of the Statute.
The Prosecution defines the elements of the offence of unlawful attack on civilian objects as follows:⁴⁴³ (1) an attack resulted in damage to civilian objects; (2) the civilian character of the objects damaged was known or should have been known; (3) the attack was wilfully directed at civilian objects; (4) there was a nexus between the attack and an armed conflict ; (5) the accused bears individual criminal responsibility for the attack under either Article 7(1) or 7(3) of the Statute.
The Kordic Defence defines the elements of the two offences as follows:⁴⁴⁴ (1) a wilful and deliberate attack is launched against civilians or protected civilian objects; (2) the attack is indiscriminate (i.e., not directed at a specific military objective), and in violation of international humanitarian law; (3) the attack causes civilian deaths, serious injury to civilians or a combination thereof; (4) the accused intended (dolus directus) to launch the attack against civilians ; (5) the accused launched the attack with the knowledge that such attack will cause excessive loss of life or injury to civilians or damage to civilian objects .
The Kordic Defence maintains that only “serious” violations are covered by Article 3 of the Statute and argues that unlawful attacks on civilians or civilian objects may only be regarded as “serious” if they result in death or serious injury .⁴⁴⁵
(b) Discussion
There is little difference between the definitions given by the Prosecution and the Defence. Civilians and civilian objects are protected by, inter alia , Geneva Convention IV. Civilians are expressly protected under that Convention , and civilian objects, such as civilian hospitals organised to give care to the wounded and sick, the infirm and maternity cases, “may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict”.⁴⁴⁶ The protection of civilians and civilian objects is augmented by Additional Protocol I, Article 50 (1) of which defines the category of civilians as including those who do not belong to one of the categories of persons referred to in Article 4 (A) (1), (2), (3) and (6) of Geneva Convention III, and in Article 43 of Additional Protocol I . Article 51 (2) of Additional Protocol I provides that

The civilian population as such, as well as individual civilians, shall not be the object of attack.

However, civilians will no longer enjoy the protection afforded by Additional Protocol I if “they take a direct part in hostilities”.⁴⁴⁷
Article 52 (1) of Additional Protocol I defines civilian objects as “all objects which are not military objectives”. Military objectives are defined in paragraph 2 as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” Article 52 (2) further states that “[a]ttacks shall be limited strictly to military objectives”.
In short, prohibited attacks are those launched deliberately against civilians or civilian objects in the course of an armed conflict and are not justified by military necessity. They must have caused deaths and/or serious bodily injuries within the civilian population or extensive damage to civilian objects.⁴⁴⁸ Such attacks are in direct contravention of the prohibitions expressly recognised in international law including the relevant provisions of Additional Protocol I.

2. Destruction of Property
Dario Kordic and Mario Cerkez are charged in Counts 37 and 40 of the Indictment , respectively, with the crime of extensive destruction of property not justified by military necessity under Article 2(d) of the Statute. Counts 38 and 41 respectively charge them with the crime of wanton destruction not justified by military necessity under Article 3(b) of the Statute.⁴⁴⁹
(a) Extensive destruction of property not justified by military necessity (Article 2)

(i) Arguments of the Parties
The Prosecution submits that the elements of this crime are: (i) the occurrence of extensive destruction of property protected pursuant to the Geneva Conventions , where (ii) the destruction was not justified by military necessity and (iii) the destruction was committed wilfully.⁴⁵⁰
In the Prosecution’s submission, the property protected by this provision can be real or personal, public or private. In order to qualify as a grave breach, it is argued, the quantity or value of the property destroyed must be sufficiently large.⁴⁵¹ Relying upon the decision of the Trial Chamber in the Blaskic case, the Prosecution submits that the meaning of “extensive” must be evaluated based upon the facts and circumstances of the military operation at issue.⁴⁵²
Moreover, it is argued, the term “extensive” must be assessed in light of what is justified by military necessity. According to the Prosecution, the targeted destruction of houses belonging to a particular national or ethnic group with no purpose other than to prevent their continuing habitation can never be justified by military necessity.⁴⁵³ Finally , it is submitted, the alleged perpetrator of this crime must have acted intentionally or with “extreme indifference to the substantial likelihood of destruction of protected property as a consequence of the conduct in question”.⁴⁵⁴
The Kordic Defence submits that the elements of this offence are: (i) that the property is destroyed beyond repair, (ii) that the property is protected under the Geneva Conventions, (iii) that the destruction occurred on a large scale, (iv ) that the accused wantonly committed an unlawful act that caused the destruction of the property, (v) that the destruction was not justified by military necessity .⁴⁵⁵ It is argued that, other than certain designated types of property, the Geneva Conventions do not provide general protection for property in enemy territory; rather the offence applies in respect of real and personal property only in occupied territory.⁴⁵⁶
In the Defence’s submission, the term “extensive” means that the destruction must have occurred on a large scale.⁴⁵⁷ Moreover, the Prosecution bears the burden of proving that the destruction of the property in question was not justified by military necessity.⁴⁵⁸

(ii) Discussion
Article 147 of Geneva Convention IV sets out the crime of extensive destruction as a grave breach. The ICRC Commentary thereto states, in relation to the crime of extensive destruction

The Fourth Convention forbids the destruction of civilian hospitals and their property or damage to ambulances or medical aircraft. Furthermore, the Occupying Power may not destroy in occupied territory real or personal property except where such destruction is rendered absolutely necessary by military operations. On the other hand, the destruction of property on enemy territory is not covered by the provision. In other words, if an air force bombs factories in an enemy country, such destruction is not covered either by Article 53 or by Article 147. On the other hand, if the enemy Power occupies the territory where the factories are situated, it may not destroy them unless military operations make it absolutely necessary.⁴⁵⁹
Several provisions of the Geneva Conventions identify particular types of property accorded general protection thereunder. For example, Article 18 of Geneva Convention IV provides that “civilian hospitals organized to give care to the wounded and sick , the infirm and maternity cases, may in no circumstances be the object of an attack , but shall at all times be respected and protected by the parties to the conflict ”.⁴⁶⁰ While property thus protected is presumptively immune from attack, the Conventions identify certain highly exceptional circumstances where the protection afforded to such property will cease.⁴⁶¹
Article 53 of Geneva Convention IV sets forth a general prohibition on the destruction of property in occupied territory:

Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities , or to social or co-operative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.⁴⁶²

While the protective scope of this provision encompasses all real and personal property , other than property accorded general protection under the Geneva Conventions, it only applies in occupied territories. This is confirmed by the ICRC Commentary , which states that:

[i]n order to dissipate any misconception in regard to the scope of Article 53, it must be pointed out that the property referred to is not accorded general protection ; the Convention merely provides here for its protection in occupied territory. The scope of the Article is therefore limited to destruction resulting from action by the Occupying Power. It will be remembered that Article 23(g) of the Hague Regulations forbids the unnecessary destruction of enemy property; since that rule is placed in the section entitled “hostilities”, it covers all property in the territory involved in a war; its scope is therefore much wider than that of the provision under discussion , which is only concerned with property situated in occupied territory.

Thus, the protective requirement set forth in Article 53 of Geneva Convention IV represents an additional duty that attaches only to an Occupying Power.
The question arises what is meant by the term “occupied territory” for the purposes of the application of Article 53 of Geneva Convention IV. Section III of Geneva Convention IV, under which Article 53 falls, deals with the treatment which the inhabitants of occupied territory must receive from the Occupying Power , and

represents the first attempt to codify the rules of international law dealing with occupation since the conclusion of the Hague Conventions of 1899 and 1907 concerning the laws and customs of war on land. The rules set forth in Section III will supplement Sections II and III of the Regulations annexed to these Conventions, by making numerous points clearer.⁴⁶³

In light of the absence of a definition of the term “occupied territory” in the Geneva Conventions, and considering the customary status of the Hague Convention (IV) and the Regulations attached thereto,⁴⁶⁴ the Trial Chamber will have recourse to that Convention in defining the term.
Thus, Article 42 of the Regulations attached to Hague Convention IV⁴⁶⁵ provides that:

Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

The Trial Chamber accepts this definition and finds that the enquiry as to whether a particular territory is occupied must be conducted on a case-by-case basis.
In Blaskic, the only case to date before the International Tribunal to have provided a definition of this crime, the Trial Chamber found that

[a]n Occupying Power is prohibited from destroying movable and non-movable property except where such destruction is made absolutely necessary by military operations . To constitute a grave breach, the destruction unjustified by military necessity must be extensive, unlawful and wanton. The notion of “extensive” is evaluated according to the facts of the case – a single act, such as the destruction of a hospital, may suffice to characterise an offence under this count.⁴⁶⁶
In view of the foregoing, the Trial Chamber finds that the crime of extensive destruction of property as a grave breach comprises the following elements, either :
(i) Where the property destroyed is of a type accorded general protection under the Geneva Conventions of 1949, regardless of whether or not it is situated in occupied territory; and the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction; or
(ii) Where the property destroyed is accorded protection under the Geneva Conventions , on account of its location in occupied territory; and the destruction occurs on a large scale; and
(iii) the destruction is not justified by military necessity; and the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction.
(b) Wanton destruction not justified by military necessity (Article 3)

(i) Arguments of the parties
The Prosecution submits that the offence of wanton destruction or devastation includes the following elements:⁴⁶⁷ (1) the occurrence of destruction or devastation of property; (2) the destruction or devastation was not justified by military necessity; (3) the destruction or devastation was committed wilfully; (4) there was a nexus between the destruction or devastation and an armed conflict; (5) the accused bears individual criminal responsibility for the destruction or devastation under Article 7(1) or 7(3).
The Kordic Defence submits that, in respect of this offence, the Prosecution must prove the following:⁴⁶⁸ (1) the destruction or devastation occurred on a large scale, involving whole areas; (2) the accused wantonly committed an act that caused the destruction or devastation ; (3) the accused intended thereby to cause the destruction or devastation; (4 ) the destruction or devastation is not justified by military necessity; (5) there is a nexus between the destruction or devastation and an armed conflict in which the accused participated.
In defining the offence, the Prosecution Final Brief repeats the first three elements listed in the Prosecution Pre-trial Brief.⁴⁶⁹ The Prosecution further argues, with reference to Article 2 (d) of the Statute concerning extensive destruction, that “the scope of Article 3 (b) differs, however, in that devastation is not limited to destruction of property in occupied territory or in the control of an armed force”.⁴⁷⁰ The Prosecution also considers that military necessity “does not justify a violation of international humanitarian law insofar as military necessity was a factor which was already taken into account when the rules governing the conduct of hostilities were drafted”.⁴⁷¹ It argues that the mental element of this offence “does not include ordinary negligence”, and that “the destruction of protected property cannot be purely accidental”.⁴⁷²
The Cerkez Final Brief seems to endorse the elements defined by the Prosecution by merely asserting that “on locations where property was destroyed, this was the result of attacks on strategic points and not civilian property”.⁴⁷³ The validity of this assertion is a matter of evidence, rather than law.

(ii) Discussion
The Trial Chamber considers that the elements for the crime of wanton destruction not justified by military necessity charged under Article 3(b) of the Statute are satisfied where:

(i) the destruction of property occurs on a large scale;

(ii) the destruction is not justified by military necessity; and

(iii) the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction.
The Trial Chamber observes that, while property situated on enemy territory is not protected under the Geneva Conventions, and is therefore not included in the crime of extensive destruction of property listed as a grave breach of the Geneva Conventions, the destruction of such property is criminalised under Article 3 of the Statute.⁴⁷⁴

3. Plunder (Article 3)
Dario Kordic and Mario Cerkez are both charged with the “plunder of public or private property” under Article 3(e) of the Statute in Counts 39 and 42 respectively .
(a) Arguments of the parties
The Prosecution lists the following elements of the offence:⁴⁷⁵ (1) public or private property was unlawfully or violently acquired; (2) the property was acquired wilfully; (3) there was a nexus between the unlawful appropriation of property and an armed conflict; (4) the accused bears individual criminal responsibility for the unlawful acquisition of property under either Article 7(1) or 7(3) of the Statute.
The Kordic Defence maintains that the Prosecution must prove several elements of plunder, particularly that the property was appropriated without justification , with the intent permanently to deprive the owner of its possession or use, and that the property was of sufficient monetary value to involve grave consequences to its owner.⁴⁷⁶ It goes on to define the elements as follows:⁴⁷⁷ (1) the accused unlawfully appropriated private or public property; (2) the accused did so against the will and consent of the owner; (3) the appropriation was of sufficient monetary value to involve grave consequences for the victims; (4) the accused appropriated the property with the intent unlawfully to deprive the owner its use and benefit; (5) the accused intended to appropriate the property permanently ; (6) the appropriation was not justified; and (7) there was a nexus between the appropriation and an armed conflict in which the accused participated.
(b) Discussion
The offence of plunder or spoliation has long been known to international law , and it is prohibited as a matter of both conventional and customary law.⁴⁷⁸
The essence of the offence is defined by the Celebici Trial Judgement as “all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches under international law, including those acts traditionally described as “pillage”.⁴⁷⁹ Such acts of appropriation include both widespread and systematised acts of dispossession and acquisition of property in violation of the rights of the owners and isolated acts of theft or plunder by individuals for their private gain.⁴⁸⁰ The Judgement also expresses, and this Trial Chamber concurs, that “the prohibition against unjustified appropriation of private or public property constitutes a rule protecting important values”.⁴⁸¹ To measure that importance, the Celebici Trial Judgement refers to “sufficient monetary value” of the property so appropriated as to involve “grave consequences for the victims”.⁴⁸²
The Celebici Trial Judgement has been followed by the Blaskic Trial Judgement⁴⁸³ and the Jelisic Trial Judgement.⁴⁸⁴ This Trial Chamber sees no reason why it should depart from the conclusions of those Judgements .

4. Destruction or Wilful Damage to Institutions Dedicated to Religion or Education (Article 3)
Dario Kordic and Mario Cerkez are finally charged with the offence of destruction or wilful damage to institutions dedicated to religion or education under Article 3(d) of the Statute, in Counts 43 and 44 respectively.
(a) Arguments of the parties
The Prosecution defines as follows the elements of this offence:⁴⁸⁵ (1) institutions dedicated to religion or education were destroyed; (2) the destruction or damage was committed wilfully; (3) the institutions destroyed or wilfully damaged were protected under international humanitarian law; (4) there was a nexus between the destruction or wilful damage and an armed conflict; and (5) the accused bears individual criminal responsibility for the attack under either Article 7(1) or 7 (3) of the Statute.
The Kordic Defence lists the following elements:⁴⁸⁶ (1) institutions dedicated to religion or education were destroyed or wilfully damaged ; (2) the institutions in question or their surroundings were not used for a military purpose; (3) the institutions in question were protected under international humanitarian law; (4) the accused caused the destruction or damage; (5) the accused intended (dolus directus) to commit the action that caused the destruction or damage ; (6) the accused intended thereby to cause the destruction or damage of specified religious institutions which constitute the cultural or spiritual heritage of peoples ; (7) there was a nexus between the destruction or damage and an international armed conflict in which the accused participated.
The Defence stresses that the destruction or wilful damage to religious institutions does not constitute a violation of Article 3 if the institution was used for military purposes. The Defence argues that a “contrary rule” would encourage defenders to shield military forces and objectives by placing them in the proximity of religious buildings.⁴⁸⁷ The Defence further argues that the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 grants “special protection” only to property registered under the International Register of Cultural Property under Special Protection. Absent this registration, the Defence maintains, institutions would receive only ordinary protection. In other words, such institutions could be destroyed or damaged in cases of military necessity, regardless of whether they are occupied or used for military purposes.⁴⁸⁸
(b) Discussion
The offence appears, from the submissions of the parties, to be of a narrower scope than the one recognised by Article 3(d) of the Statute, in that no reference is made to the seizure of, or destruction or damage done to, institutions of charity , the arts and sciences, works of art and science, or historic monuments.
Article 27 of the Hague Regulations provides in part that

In sieges and bombardments all necessary steps must be taken to spare, as far as possible, building dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected , provided they are not being used at the time for military purposes.

Similarly, Article 53 of Additional Protocol I states that

Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited:

(a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples;

(b) to use such objects in support of the military effort;

(c) to make such objects the object of reprisals.

Article 1 of the Cultural Property Convention lists numerous types of cultural property for protection in the form of “movable or immovable property of great importance to the cultural heritage of every people”, “buildings whose main and effective purpose is to preserve or exhibit the movable cultural property”, and “centres containing a large amount of cultural property”. This Convention had been binding on the former Socialist Federal Republic of Yugoslavia as a contracting State since 1956, and continues to apply to the Republic of Croatia and RBiH as from their dates of independence , following their deposit of declarations of succession.⁴⁸⁹
The Trial Chamber notes that educational institutions are undoubtedly immovable property of great importance to the cultural heritage of peoples in that they are without exception centres of learning, arts, and sciences, with their valuable collections of books and works of arts and science. The Trial Chamber also notes one international treaty which requires respect and protection to be accorded to educational institutions in time of peace as well as in war.⁴⁹⁰
This offence overlaps to a certain extent with the offence of unlawful attacks on civilian objects except that the object of this offence is more specific: the cultural heritage of a certain population. Educational institutions are certainly civilian objects. The offence this section is concerned with is the lex specialis as far as acts against cultural heritage are concerned. The destruction or damage is committed wilfully and the accused intends by his acts to cause the destruction or damage of institutions dedicated to religion or education and not used for a military purpose.⁴⁹¹ The Trial Chamber intends to apply this more specialised offence to the facts of this case.
As to the Defence argument regarding the application of the Cultural Property Convention, the Trial Chamber notes that protection is generally accorded by the Convention to cultural property defined therein. Special protection as a special measure is provided for “a limited number of refuges intended to shelter movable cultural property”. However, under Article 8 (1), this special protection would be lost if the refuges were used for military purposes. It appears therefore that there is little difference between the conditions for the according of general protection and those for the provision of special protection. The fundamental principle is that protection of whatever type will be lost if cultural property, including educational institutions, is used for military purpose, and this principle is consistent with the custom codified in Article 27 of the Hague Regulations.