1. I agree with the judgment of the Appeals Chamber. In support, I propose to speak separately on (a) the avoidance in the judgment of any remarks on deportation, ( b) the gravity of a crime of persecution, and (c) whether there was a genuine possibility of consent to work or to be relocated.

2. On the question of the meaning of “deportation” as it is used in article 2(g) and in article 5(d) of the Statute, I accept that there can be cases in which the general importance of a view expressed by the Trial Chamber can warrant an expression of opinion by the Appeals Chamber even if the point is not relevant to the determination of the appeal. But the competence is obviously not to be freely exercised; whether it will be exercised is a matter of degree of linkage and of discretion, as sought to be explained below.

3. As to the degree of linkage, even if the point is not relevant to the determination of the appeal, there has to be a connection between it and the issues which are relevant to the determination of the appeal. In this case, the issues which are relevant to the determination of the appeal arise on the indictment. There is not any connection between the indictment, as it is understood by the Appeals Chamber, and the references to “deportation” in article 2(g) and in article 5(d) of the Statute.

4. As to discretion, the matter admits of different views and may soon arise in other appeals; therefore, it may be better left for determination in other appeal proceedings. Meanwhile, it cannot be said that the Appeals Chamber is by default approving of the views of the Trial Chamber; in paragraph 224 of its judgment, the Appeals Chamber has made it clear that it is expressing no views either by way of affirmation or by way of rejection of the definition given by Trial Chamber.

5. The general view is that an act could only ground a charge of a crime against humanity committed through persecution if the act was itself a crime enumerated in article 5(a) to (g) of the Statute (“enumerated crimes”) or if, not being such a crime, it attained a gravity comparable to that of an enumerated crime. This basis , for which authority could be found,¹ needs care in its application.

6. Article 5 of the Statute deals with crimes against humanity committed through certain supporting crimes. Under paragraph (h) of the provision, the relevant supporting crime is “persecution”, the underlying act or acts being only evidence of the persecution . It is the “persecution” which must have the same gravity as that of enumerated crimes. The underlying act does not have to be a crime listed in article 5 of the Statute. It does not have to be a crime specified elsewhere in the Statute. Indeed , by itself it does not have to be a crime specified anywhere in international criminal law: it may be a non-crime. As was recalled in the Ministries Case:²

The persecution of Jews went on steadily from step to step and finally to death in foul form. The Jews of Germany were first deprived of the rights of citizenship . They were then deprived of the right to teach, to practice professions, to obtain education, to engage in business enterprises, they were forbidden to marry except among themselves and those of their own religion; they were subject to arrest and confinement in concentration camps, to beatings, mutilation, and torture; their property was confiscated; they were herded into ghettos; they were forced to emigrate and to buy leave to do so; they were deported to the East, where they were worked to exhaustion and death; they became slave laborers; and finally over six million were murdered.

Citing that case, the Kvocka Trial Chamber later said:

[J]urisprudence from World War II trials found acts or omissions such as denying bank accounts, educational or employment opportunities, or choice of spouse to Jews on the basis of their religion, constitute persecution. Thus, acts that are not inherently criminal may nonetheless become criminal and persecutorial if committed with discriminatory intent.³

7. It follows that an underlying act may not by itself constitute a crime; therefore , there can be no question of its having the same gravity as an enumerated crime . But the act, taken separately or cumulatively with other acts, can give rise to the crime of persecution. The question which then arises is what is the level of persecution that the Statute is concerned with. It is possible that there can be persecution at different levels. It is here, I think, that it would be reasonable to say that the Statute is concerned only with cases in which the level of the gravity of the proven persecution matches the level of the gravity of an enumerated crime .

8. Consent is a matter of will. Milch⁴ shows that the use of a conventional labour contract can be a fictitious method of disguising the absence of real consent to work. In the trial of the major war criminals at Nuremberg, the International Military Tribunal pointed out that even the fact that workers might theoretically be allowed to transfer their savings to their own country does not necessarily show consent.⁵ The issue whether there is consent might arise in various settings. The Kunarac ⁶ Trial Chamber correctly held that in certain circumstances even the fact that a woman initiated sex does not necessarily imply consent. The circumstances of a particular case have to be considered to determine whether it was at all possible for consent to be given in that case .

9. The circumstances of this case have been recalled in paragraphs 193-194 of the judgment of the Appeals Chamber and elsewhere in it. There were many vacant cells in KP Dom; yet the non-Serb detainees were heaped into crowded cells, each of which was designed to accommodate one prisoner in solitary confinement but which now held up to 18 detainees, without the possibility of lying down and with little hygiene . There was no provision for warmth even during a severe winter, and detainees were forbidden to make any necessary extra clothing. They were given bare survival food ; they lost weight, between 20 and 40 kilos per detainee. They were generally required to stay in their cells, sometimes placed in isolation for small infractions. There were frequent beatings; the cries and moans of those being beaten could be heard . There was torture. Fresh bloodstains were visible. Detainees knew that colleagues were taken out never to return – that they were made to “disappear”. There was evidence that detainees had been killed on the premises; surviving detainees knew this. The atmosphere was one of violence and fear; the climate was oppressive; detainees were vulnerable; the situation was inhuman.

10. In such circumstances, it is difficult to appreciate what more the prosecution could be asked to show in discharge of its burden to prove that there was no possibility of genuine consent to work or to be relocated. The fact that some detainees were eager for the opportunity to go out of KP Dom to work or to be relocated has been dealt with in the judgment. That does not show that there was a possibility of genuine consent; on the contrary, it is only evidence of the consequence of the absence of any possibility of genuine consent.

11. It is written that, on a question of fact (such as whether there was consent ), the Appeals Chamber will only intervene if the finding of the Trial Chamber was one which no reasonable tribunal of fact could have made. That is a healthy caution against appellate intervention propelled by inadmissible considerations. But, wholesome as is the admonition, it does not extend so far as to require the upholding of a conclusion issuing from a course of reasoning which cannot be reconciled with common sense. The task of the prosecution is rightly heavy; it should not be made unmanageably so.

Done in English and French, the English text being authoritative.

______________________
Mohamed Shahabuddeen

Dated 17 September 2003
At The Hague
The Netherlands

[Seal of the Tribunal]