"Judgement"

14 January 2000
Trial Chamber II (Judges Cassese [Presiding], May and Mumba)

Brief Historical Background

The amended Indictment of 9 February 1998 alleged that during the armed conflict between the Croatian forces1 and those of the Government of Bosnia and Herzegovina2, the former systematically attacked villages chiefly inhabited by Bosnian Muslims in the Lasva River Valley region of central Bosnia and Herzegovina.

The six accused were charged in connection with their alleged role in the attack on the village of Ahmici in Central Bosnia on 16 April 1993 and the persecution and massacre of its inhabitants3.

All of the accused were charged with crimes against humanity (under Article 5 of the Statute - persecutions on political, racial or religious grounds) and five of them4 with violations of the laws or customs of war (under Article 3 of the Statute - murder; cruel treatment).

In its Judgement, the Trial Chamber found five of the accused guilty and sentenced them to terms ranging from six years to 25 years imprisonment: Zoran Kupreskic, 10 years; Mirjan Kupreskic, 8 years; Vlatko Kupreskic, 6 years; Drago Josipovic, 15 years; Vladimir Santic, 25 years; Dragan Papic was acquitted.

Preliminary Issues

The Trial Chamber started by considering three preliminary issues: first, it described the tu quoque defence as absolutely fallacious and inapplicable. The tu quoque defence can be defined as an argument based on the alleged reciprocal nature of the obligations under international humanitarian law which would entitle a party to violate its obligations under such law if they are being committed by the enemy5. In this case, the Defence contended that the attacks against the Muslim population were somehow justifiable because similar attacks had been perpetrated by the Muslim forces against the Croatian population. The Trial Chamber made it clear that, even if proved, similar attacks by the Muslim forces on Croats could never justify the attack carried out on Ahmici.

The Trial Chamber declared that there existed no international precedent supporting this defence and that, in any case, such an argument misconstrued the nature of the rules of international humanitarian law. This body of law cannot be conceived as an aggregate of bilateral obligations, namely, as an exchange of rights and obligations6. "Instead, the bulk of this body of law lays down absolute obligations, namely obligations that are unconditional or in other words not based on reciprocity."7 The Trial Chamber found that this is evidence of the progressive trend towards the so-called "humanisation" of international legal obligations8. Humanitarian rules were designed primarily to benefit individuals qua human beings, not to protect State interests. They thus constitute obligations erga omnes, obligations towards the international community as a whole, not merely obligations of States vis-à-vis one another. In addition, most norms of international humanitarian law have attained the status of jus cogens, i.e. non-derogable and overriding rules9.

The second preliminary issue dealt with the status of the population of Ahmici at the time of the attack. According to the Defence, because of the presence of a few people taking up arms spontaneously and of persons who had previously taken part in hostilities, the population of Ahmici lost its civilian status and the village could consequently not be regarded as undefended. Instead, the Defence argued that the attack on Ahmici should be regarded as a militarily-justified action.

The Trial Chamber started by emphasising the "sacrosanct character of the duty to protect civilians"10 and added that in cases where one can expect a large number of civilians to be mingled with combatants, the attacker should take proportionate care to spare the life of the civilians11. Therefore, widespread and indiscriminate attacks or reprisals against civilians are evidently illegal.

In addition, although single attacks might not per se be illegal, their cumulative effect may render them so: "in case of repeated attacks, all or most of them falling within the grey area between indisputable legality and unlawfulness, it might be warranted to conclude that the cumulative effect of such acts entails that they may not be in keeping with international law. Indeed, this pattern of military conduct may turn out to jeopardise excessively the lives and assets of civilians, contrary to the demands of humanity."12

The situations in which the protection of civilians can be limited are well circumscribed, namely13: 1) when civilians abuse their rights14; 2) when, despite the object of a military attack being comprised of military objectives, belligerents cannot avoid causing so-called collateral damage to civilians15; and 3) at least according to some authorities, when civilians may legitimately be the object of reprisals16.

Although it leaves the attacker with a wide margin of appreciation as to the means and methods of warfare, the underlying leitmotiv of humanitarian law is its concern for the "elementary considerations of humanity". Consequently, this limits the discretion of the belligerents and expands the protection accorded to civilians17.

More specifically, the Appeals Chamber declared that reprisals against civilians have come to be absolutely forbidden by international humanitarian law, including with regard to civilians located in the combat zone18. The Trial Chamber considered that, in the field of humanitarian law, and all the more so when the issue is one of preventing civilians from becoming casualties of war, the formation of a customary rule depends primarily and essentially on the view or opinio juris States have about this rule. To that extent a lack of practice might be regarded as secondary19.

The third and last preliminary issue is concerned with the weigh to be given by this Tribunal to case law in its findings on international humanitarian law and international criminal law20. The Trial Chamber declared that "generally speaking, and subject to the binding force of decisions of the Tribunal’s Appeals Chamber upon the Trial Chambers, the International Tribunal cannot uphold the doctrine of binding precedent (stare decisis) adhered to in common law countries. Indeed, this doctrine among other things presupposes to a certain degree a hierarchical judicial system. Such a hierarchical system is lacking in the international community. Clearly, judicial precedent is not a distinct source of law international criminal adjudication."21 However, the Trial Chamber added that "judicial decisions may prove to be of invaluable importance for the determination of existing law."22 It concluded that the Tribunal must adjudicate on the strength of the law, not of cases.

Finally, the Trial Chamber considered the normative corpus to be applied by the Tribunal and, more specifically, the hierarchy of these sources.23 The Statute of the Tribunal is its natural and primary source of law. If the Statute proves insufficient or incomplete24, international customary law would be considered. The general principles of international criminal law would come next or, if no such principles are found, the general principles of criminal law common to the major legal systems of the world could be applicable25. Finally, lacking any such principles or rules, general principles of law consonant with the basic requirements of international justice must be applied.

Crimes against Humanity

According to the Trial Chamber, the essence of crimes against humanity is "a systematic policy of a certain scale and gravity directed against a civilian population."26 Referring to the Nikolic Rule 6127 decision, the Trial Chamber identified the three core elements of crimes against humanity as: 1) the existence of an armed conflict; 2) the widespread or systematic nature of occurrence of crimes directed against civilians; and 3) the perpetrator’s knowledge of the wider context in which his acts occurs28.

With regard to the requirement of an armed conflict, the Trial Chamber said that "the nature of the nexus required by Article 5 of the Statute is merely that the act be linked geographically as well as temporally with the armed conflict."29

Second, crimes against humanity must be ‘directed against a civilian population’. The latter two terms, ‘civilian’ and ‘population’, are to be defined broadly. This is supported by both the object and purpose of humanitarian law and by the existing case law on that point30. In addition, because Article 5 constitutes a departure from customary international law, its restrictive effect on the protection of victims of war should be kept to a minimum. The Trial Chamber concluded that "the presence of those actively involved in the conflict should not prevent the characterization of a population as civilian and those actively involved in a resistance movement can qualify as victims of crimes against humanity."31

Connected to that point is the principle that crimes against humanity will generally consist of a course of conduct rather than a particular act. However, in certain circumstances, the Trial Chamber found that a single act could amount to a crime against humanity "when it occurred within the necessary context."32 On the other hand, an isolated act could not qualify as a crime against humanity33.

Crimes against humanity need not be State-organised but somehow organically linked to the State by its tolerating, encouraging or otherwise endorsing the criminal behavior34. Thus, to be found guilty of crimes against humanity, one need not be a State official or a member of the armed forces. An individual acting in a private capacity may also be found guilty of crimes against humanity35.

The third core element of crimes against humanity, namely its mental element, consists of the knowledge that the criminal possesses of the context within which he acts. The mens rea for crimes against humanity is comprised of two elements: 1) the intent to commit the underlying offence, combined with 2) the knowledge of the broader context in which that offence occurs36. After recalling that discriminatory animus is applicable only with regard to the crime of persecution and that motives are irrelevant in this context, the Trial Chamber made it clear that crimes against humanity suppose that the criminal understands the overall context of his act. He must be aware that his acts are part of or somehow related to a broader criminal picture37.

Finally, with regard to the constituent offences of crimes against humanity considered in this case, the Trial Chamber repeated the definition and elements of murder contained in Article 5(a)38 and declared that the required mens rea of murder is the intent to kill or the intent to inflict serious injury in reckless disregard of human life39.

As to the definition of the "other inhumane acts", the Trial Chamber made it clear that the notion was designed as a residual category "as it was felt to be undesirable for this category to be exhaustively enumerated."40 The Trial Chamber referred to major international standards on human rights, drew upon various provisions of these texts and identified a "set of basic rights appertaining to human beings, the infringement of which may amount, depending on the accompanying circumstances, to a crime against humanity." As with any other type of crimes against humanity, these inhumane acts must necessarily be carried out systematically or on a large scale. Then, "once the legal parameters for determining the content of the category of "inhumane acts" are identified, resort to the ejusdem generis rule for the purpose of comparing and assessing the gravity of the prohibited act may be warranted."41

Persecution as a Crime against Humanity

The Trial Chamber defined the crime of persecution as "a gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5."42 Persecution is thus composed of three sorts of elements: 1) those elements required for all crimes against humanity under the Statute43; 2) a gross or blatant denial of a fundamental right reaching the same level of gravity as the other acts prohibited under Article 544; and 3) discriminatory grounds.

Persecution does not necessarily require a physical element and the victims of persecution are not necessarily civilians45. In addition, persecution can consist of persecutory acts or omissions.

The crime of persecution need not be linked to any other crime of the Statute in order to be punishable46. Nor is any link with a discriminatory policy of the State required47.

With regard to its actus reus or material element, persecution generally consists of a series of acts rather than a single one48. In addition, the cumulative effects of these acts rather than their individual impact must be considered: "[a]cts charged as persecution must not be considered in isolation. Some of the acts mentioned above may not, in and of themselves, be so serious as to constitute a crime against humanity."49

The crime of persecution covers a broad range of acts potentially encompassing50, but also going beyond51, the acts enumerated in the other subheadings of Article 5. However, in order to respect the principle of legality, the Prosecutor cannot rely merely on a general charge of "persecution", but must instead charge particular acts, in sufficient detail for the accused to be able to prepare his defence.

Turning to the mens rea or mental element of the crime of persecution, the Trial Chamber highlighted its discriminatory nature52. The mens rea for persecution, although linked to that of genocide, is nevertheless distinct: "While in the case of persecution the discriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of actions including murder, in case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims of the genocide belong. Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution."53

Cumulation of Offences54

According to the Prosecutor, a person may be charged with, and convicted of, multiple crimes "even when that person has only engaged in one criminal action against the same victim or victims." In other words, "the same act or transaction against one or more victims may simultaneously infringe several criminal rules and can consequently be classified as a multiple crime."55 The Defence opposed this conception and argued that cumulative charges in the case of apparent concurrence is not permissible and should be limited to cases of genuine concurrence56.

This issue raises two sorts of problems, substantive and procedural. Starting with substantive international criminal law, the Trial Chamber first considered whether and on what conditions the same act or transaction may infringe two or more rules of international criminal law. Two different legal situations may arise: first, it is possible for various elements of a general criminal transaction to infringe different provisions57. In these instances, there exist distinct offences, that is an accumulation of separate acts, each violating of a different provision. "These offences may be grouped together into one general transaction on the condition that it is clear that the transaction consists of a cluster of offences."58

This situation differs from the case in which one and the same act or transaction simultaneously breaches two or more provisions59. Different tests have been devised by national systems to decide in which case or cases one act or transaction could violate two or more distinct provisions60. This enabled the Trial Chamber to deduce from its survey a number of principles of criminal law which it applied to the relations between the various substantive provisions of the Statute relied upon by the parties in the present case.

However, the Trial Chamber made it clear that the application of these principles could not be automatic but that it would have to take into account the specificities of this Tribunal. Indeed, "unlike provisions of national criminal codes or, in common-law countries, rules of criminal law crystallised in the relevant case-law or found in statutory enactments, each Article of the Statute does not confine itself to indicating a single category of well-defined acts such as murder, voluntary or involuntary manslaughter, theft, etc. Instead the Articles embrace broad clusters of offences sharing certain general legal ingredients. […] 698. In addition, under the Statute of the International Tribunal, some provisions have such a broad scope that they may overlap."61 As a consequence, when considering the issue of cumulation of offences, the Trial Chamber will have to refer to specific offences (for example, murder as a war crime) rather than diverse sets of crimes.

Four distinct relationships were reviewed and two recurring questions were asked in each case: first, whether one crime requires proof of facts which the other crime does not require and second whether each prohibition protect a different set of values62.

1) Relationship between "murder" as a war crime and "murder" as a crime against humanity63. The Trial Chamber emphasised the fact that whereas murder as a crime against humanity requires proof of elements that murder as a war crime does not require (namely that the offence be part of a systematic or widespread attack on the civilian population), the reverse is not true. Therefore, the two offences are not in a relationship of reciprocal speciality64 and the prohibition of murder as a crime against humanity is thus lex specialis in relation to the prohibition of murder as a war crime65. With regard to the second issue, the Trial Chamber stated that, as a matter of principle, the substantive provisions of the Statute pursue the same general objective66. However, individual articles of the Statute may pursue some specific aims and protect slightly distinct values. This is so with regard to Article 3 and 5 of the Statute, but a difference between the values were regarded as inconsequential with regard to the offences under consideration67. According to the Trial Chamber, "the validity of the criterion based on the difference in values protected is disputable if it is not also supported by reciprocal speciality between the two offences. It follows that, given also the marginal difference in values protected, the Trial Chamber may convict the Accused of violating the prohibition of murder as a crime against humanity only if it finds that the requirements of murder under both Article 3 and under Article 5 are proved."68

2) Relationship between "persecution" as a crimes against humanity and "murder" as a crime against humanity69. According to the Trial Chamber, "persecution" may not only include murder but also other crimes70. In addition, persecution requires a discriminatory element which murder, albeit a crime against humanity, does not71. The Trial Chamber thus held that there existed a "reciprocal speciality between these crimes" since both may have unique elements. The two separate offences may thus be equally charged. The Trial Chamber concluded that if an accused is found guilty of persecution, inter alia because of the commission of murders, it seems that he should be found guilty of persecution only, and not of murder and persecution, because finding him guilty of both would be contrary to the Blockburger test72. Nevertheless, if the accused is charged both with murder as a crime against humanity and with persecution (including murder) as a crime against humanity, the same acts may be material to both crimes73 and a case of reciprocal speciality may arise74. Concerning the values that each provision covers, the Trial Chamber was of the view that the prohibition on persecution and that on murder serve and defend different values75. The conclusion of the values test leads to the same finding, namely that the same act or transaction (murder) may infringe two different provisions of Article 5 of the Statute.

3) Relationship between "Inhumane Acts" as a crime against humanity and "Cruel Treatment" as a war crime76. Except for the element of widespread or systematic practice required for crimes against humanity, each crime does not require proof of elements not required by the other. "In other words, it is clear that every time an inhumane act under Article 5(i) is committed, ipso facto cruel treatment under Article 3 is inflicted."77 The reverse is however not true: cruel treatment under Article 3 may not be covered by Article 5(i) if the widespread or systematic element is missing. "Thus if the evidence proves the commission of the facts in question, a conviction should only be recorded for one of these two offences: inhumane acts, if the background conditions for crimes against humanity are satisfied, and if they are not, cruel treatment as a war crime."78

4) Relationship between the Charges of Inhumane Acts (or Cruel Treatment) and the Charges of Murder. These are clearly separate offences, both with regard to their elements and victims.

The second substantive issue related to the consequence of multiple conviction on sentencing. The Trial Chamber declared that if the accused is found guilty on two separate counts for a single act or omission, the sentences shall be served concurrently79. The Trial Chamber may also aggravate the sentence for the more serious offence "if it considers that the less serious offence committed by the same conduct significantly adds to the heinous nature of the prevailing offence."80

The Trial chamber was also faced with three procedural issues. First, it considered when and on what conditions the Prosecutor can opt for cumulative charges for the same act or transaction. Neither the Statute nor the Rules establishes how the charges must be brought by the Prosecutor. According to the Trial Chamber, two guiding principles must be harmonised to answer this procedural question: 1) the requirement that the rights of the accused be fully safeguarded81; and 2) the requirement that the Prosecutor be granted all the powers consistent with the Statute to enable her to fulfill her mission efficiently82.

On the basis of these two principles, the Trial Chamber declared that a) the Prosecution may make cumulative charges whenever it contends that the facts charged violate simultaneously two or more provisions of the Statute in accordance with the criteria it established; that b) depending on the elements of the crime the Prosecution is able to prove, the Prosecution should use alternative rather than cumulative charges whenever an offence appears to be in breach of more than one provision83; and that c) the Prosecution should refrain as much as possible from making charges based on the same facts but under excessive multiple heads, whenever it would not seem warranted to contend that the same facts are simultaneously in breach of various provisions of the Statute.

Second, when should the Prosecutor use alternative rather than cumulative charges? Here again, the Statute and the Rules are silent. The Trial Chamber engaged in a thorough study of national practices, but it found significant discrepancies between national systems. Referring again to the protection of the right of the accused and the need for the Prosecution to be able to fulfil its mission efficiently, the Trial Chamber established a general principle of law consonant with the basic requirements of international criminal justice84. It concluded that:

1) It may happen that, in the course of the trial, the Prosecutor finds that she has not proved beyond reasonable doubt the commission of the crime charged, but that a different offence, not charged in the indictment, has been proved. In these cases, the Prosecutor must request the Trial Chamber to be granted leave to amend the indictment so as to afford the Defence the opportunity to contest the charge.

2) During the trial, the Prosecutor may conclude that a more serious offence than that charged in the Indictment has been or may be proved. The Prosecutor would have to request leave to amend the Indictment.

3) The Prosecutor may conclude during the trial that a lesser included offence, not charged in the Indictment, may be or has been proved in court. "If in these and similar cases the Prosecutor is or believes she is able to prove all the elements of a crime except for that which make up an additional element elevating the crime to a more serious category, she need not request leave to amend the Indictment [for] the accused has been given the opportunity to contest all the elements of the crime charged."85

Finally, what can the Trial Chamber do when a charge has been wrongly formulated by the Prosecutor86? If the Trial Chamber concludes that the more serious offence has not been proved to its satisfaction, it can make this finding in its Judgement without ordering the Prosecutor to amend the Indictment. In such a situation, the Trial Chamber could also classify the offence in a manner different from that suggested by the Prosecutor87. If, instead, the Trial Chamber considers that the evidence shows that the accused has committed a more serious offence than the one charged, or a different offence, "it may call upon the Prosecutor to consider amending the indictment."88 If the Prosecutor does not comply with the request, the Trial Chamber would dismiss the charge.

Sentencing

In addition to its finding in respect of cumulation of offences and its impact on sentencing, the Trial Chamber emphasised the purposes of sentencing and cited retribution, deterrence and rehabilitation as its general goals. Moreover, the Trial Chamber underlined the need "to show the people of not only the former Yugoslavia, but of the world in general, that there is no impunity for these types of crimes."89

Finally, with regard to the acquittal of one accused, Dragan Papic, the Trial Chamber declared that the Prosecution’s evidence was insufficient to establish the accused’s guilt beyond reasonable doubt.

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1. The Croatian forces mainly consisted of the forces of the Croatian Community of Herceg-Bosna and the Croatian Defence Council (HVO).
2. From January 1993 until at least May 1993.
3. During the attack the village was shelled from a distance and then groups of HVO soldiers went from house-to-house attacking Bosnian Muslim civilians and burning their houses, barns and livestock. 116 inhabitants were said to have been killed and twenty-four wounded. The attack also resulted in the destruction of 169 houses and two mosques.
4. Dragan Papic being excluded.
5. See below the related issue of reprisals.
6. With regard to the rules prohibiting attacks against civilians, see The Prosecutor v. Martic, Review of the Indictment Pursuant to Rule 61, 8 March 1996, para. 9 and 15.
7. Para. 517. See Common Article 1 of the 1949 Geneva Conventions which provides that "The High Contracting Parties undertake to respect [...] the present Convention in all circumstances." See also the Appeals Chamber’s reference to another common provision of the Geneva Conventions (respectively Articles 51, 52, 131 and 148) at paragraph 517 of the Judgement.
8. This trend refers to the "general erosion of the role of reciprocity in the application of humanitarian law over the last century." (para. 518)
9. See paragraph 520 and footnote 771 of the Judgement. See also The Prosecutor v. Furundzija, Judgement, 10 December 1998, para. 153 (summarised in Judicial Supplement No. 1).
10. Para. 513. See also para. 521: "The protection of civilians in time of armed conflict, whether international or internal, is the bedrock of modern humanitarian law."
11. Para. 524: "Reasonable care must be taken in attacking military objectives so that civilians are not needlessly injured through carelessness."
12. Para. 526.
13. Para. 522.
14. Para. 523.
15. See paragraph 526 with regard to the effect of cumulative attacks. See also paragraph 524 concerning the requirement of proportionality in the attack and the use of indiscriminate means or method of warfare.
16. See the findings of the Trial Chamber on that point below.
17. Paragraph 525 is devoted to the Martens Clause.
18. See The Prosecutor v. Martic, Review of Indictment Pursuant to Rule 61, 8 March 1996, paras. 15-16.
19. Para. 527: "Principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even when State practice is scant or inconsistent."
20. As mentioned by the Trial Chamber, the solution to this question depends on whether or not this Tribunal can be regarded as an international court proper. The Trial Chamber declared that it had no doubt that it was. See paragraphs 538-539.
21. Para. 540.
22. Para. 541. With regard to the respective value to be assigned to national and international case law, the Trial Chamber said that it should apply a stricter level of scrutiny to national decisions than to international judgements, since the latter are at least based on the same corpus of law as that applied by this Tribunal, whereas the former tend to apply national law, or primarily that law, or else interpret international law through the prism of national legislation (para. 542).
23. Para. 591.
24. And if the Report of the Secretary-General proves to be of no assistance in interpreting the Statute.
25. National law, namely national legislation and national judicial decisions, can be relied upon at this stage "with a view to determining the emergence of a general principle of criminal law common to all major systems of the world." Furthermore, the Tribunal may have to apply national law incidenter tantum, i.e. in the exercise of its incidental jurisdiction.
26. Para. 543.
27. The Prosecutor v. Nikolic, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995.
28. On that point, see The Prosecutor v. Tadic, Judgement, 7 May 1997, paras. 626 and 657.
29. Para. 546. See also The Prosecutor v. Tadic, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 69.
30. See also The Prosecutor v. Mrksic et al. ("Vukovar Hospital"), Review of Indictment Pursuant to Rule 61, 3 April 1996, para. 29.
31. Para. 549. See also paragraphs 512 and 522. The presence of off-duty soldiers and a few people taking up arms spontaneously would not deprive the population of its civilian status.
32. Para. 550. See The Prosecutor v. Tadic, Judgement, 7 May 1997, para. 649: "[c]learly, a single act by a perpetrator taken within the context of a widespread or systematic attack against a civilian population entails individual criminal responsibility and an individual perpetrator need not commit numerous offences to be held liable. Although it is correct that isolated, random acts should not be included in he definition of crimes against humanity, that is the purpose of requiring that the acts be directed against a civilian population and thus "[e]ven an isolated act can constitute a crime against humanity if it is the product of a political system based on terror or persecution"".
33. With regard to isolated acts, see The Prosecutor v. Tadic, Decision on Defence Motion on the Form of the Indictment, 14 November 1995, para. 11.
34. See paragraphs 551-555. See The Prosecutor v. Tadic, Opinion and Judgement, 7 May 1997, paragraphs 653-655.
35. Para. 555: "While crimes against humanity are normally perpetrated by State organs, i.e. individuals acting in an official capacity such as military commanders, servicemen, etc…, there may be cases where the authors of such crimes are individuals having neither official status nor acting on behalf of a governmental authority. The available case-law seems to indicate that in these cases some sort of explicit or implicit approval or endorsement by State or governmental authorities is required, or else that it is necessary for the offence to be clearly encouraged by a general governmental policy or clearly fit such a policy."
36. See again The Prosecutor v. Tadic, Judgement, 7 May 1997, para. 656 and 659. See also The Prosecutor v. Tadic, Judgement, 15 July 1999, para. 248-252, concerning the relevance of personal motives with regard to crimes against humanity.
37. Quoting the ICTR Kayishema Judgement, the Trial Chamber declared that knowledge meant that "part of what transforms an individual’s act(s) into a crime against humanity is the inclusion of the act within a greater dimension of criminal conduct." (para. 557)
38. Para. 560: "It can be said that the accused is guilty of murder if he or she engaging in conduct which is unlawful, intended to kill another person or to cause this person grievous bodily harm, and has caused the death of that person."
39. Para. 561.
40. Para. 563.
41. Para. 566. Under the ejusdem generis rule of interpretation, the expression being considered would cover actions similar to those specifically provided for (see paragraph 564).
42. Para. 621.
43. See what was said above with regard to these conditions and The Prosecutor v. Nikolic, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995.
44. Paras. 619-620: "619. [...] acts of persecution must be of an equal gravity or severity to the other acts enumerated under Article 5. [...] 620. [...] The only conclusion to be drawn from [the ejusdem generis criterion] is that only gross or blatant denials of fundamental human rights can constitute crimes against humanity."
45. Military personnel can be victims of persecution (para. 568).
46. Para. 581. See also paragraph 616 with regard to the self-contained inhumane nature of persecution: "It is not necessary to have a separate act of an inhumane nature to constitute persecution, but rather, the discrimination itself makes the act inhumane."
47. Para. 625. See however what was said above with regard to the policy element of crimes against humanity in general.
48. Para. 615: "Persecution is commonly used to describe a series of acts rather than a single act. Acts of persecution will usually form part of a policy or at least of a patterned practice, and must be regarded in their context. In reality, persecutory acts are often committed pursuant to a discriminatory policy or widespread discriminatory practice [...]." However, it is not completely excluded that a single act could amount to persecution (see para. 624).
49. Para. 615. See also paragraph 622.
50. Para. 616: "The Trial Chamber held that the crime of persecution encompasses a wide variety of acts, including, inter alia, those of a physical, economic or judicial nature that violate an individual’s basic or fundamental rights. The discrimination must [however] be one of the listed grounds to constitute persecution." See also para. 614 of this Judgement and The Prosecutor v. Tadic, Opinion and Judgement, 7 May 1997, para. 707.
51. With regard to the acts covered by the other subheadings of Article 5, see paragraphs 593ff. At the mens rea level, what distinguishes persecution from those other crimes covered in the other subheadings is its discriminatory animus. For these acts not envisaged in one of the other subheadings of Article 5, see paragraphs 608ff.
52. On the common features of genocide and persecution, see para. 634-6. With regard to persecution, there are three possible discriminatory grounds: political, racial or religious. With regard to genocide, Article 4 of the Statute mentions the national, ethnical, racial or religious grounds.
53. Para. 636. See also The Prosecutor v. Jelisic, Judgement, 14 December 1999 (summarised in Judicial Supplement No. 10).
54. The issue of cumulation of offences is given large and thorough consideration in this Judgement. The section devoted to it starts at page 253 (para. 637) and ends at page 294 (para. 748).
55. Para. 637.
56. Paras. 651ff for details.
57. The Trial Chamber gives as an example the case of forced disappearance of human beings which is a multiple and continuous violation of many protected rights (see para. 678).
58. Para. 678.
59. Para. 679.
60. See paras. 680-695. Five tests were considered by the Trial Chamber: 1) The Blockburger test is concerned with cases where the same act or transaction constitutes a violation of two distinct statutory provisions: the test to be applied to determine whether there are two offences or only one consists in determining whether each provision requires proof of an additional fact which the other does not. The test thus lies in determining whether each offence contains an element not required by the other. If it does, the same act will constitute an offence under each provision (para. 681-2); 2) if the Blockburger test is not met, the lex specialis derogat generali principle could apply (para. 683-4); 3) When each of the two provisions requires proof of a fact which the other one does not require, civil law courts tend to speak of ‘reciprocal speciality’ and find that both provisions apply. In sum, the reciprocal speciality doctrine leads to the same result as the Blockburger test (para. 685); 4) The principle of consumption argues that when all the legal requirements for a lesser offence are met in the commission of a more serious one, a conviction on the more serious count fully encompasses the criminality of the conduct (para. 686-8); 5) finally, a complementary test consists in ascertaining whether the various provisions at stake protect different values. Under this test, if an act or transaction is simultaneously in breach of two criminal provisions protecting different values, it may be held that that act or transaction infringes both criminal provisions (para. 693-4). This latter test is not independent, but should apply in conjunction with the other test described above.
61. Paras. 697-698.
62. See also The Prosecutor v. Krstic, Decision on Defence Preliminary Motion on the Form of the Amended Indictment, Count 7-8, 28 January 2000, with regard to the overlap between persecution, deportation and inhumane acts/forcible transfer.
63. Respectively Articles 3 and 5(a) of the Statute.
64. Para. 701. See the Blockburger test as described in paragraph 681.
65. See The Prosecutor v. Tadic, Decision on Jurisdiction, 2 October 1995, para. 91.
66. Namely, deterring serious breaches of humanitarian law and, if these breaches are committed, punishing those responsible for them.
67. Para. 702-3
68. Para. 704.
69. Respectively Article 5(h) and 5(a) of the Statute.
70. Para. 705.
71. Indeed, the Appeals Chamber declared that a discriminatory animus was required only for persecution and not for any other crime against humanity (See The Prosecutor v. Tadic, Judgement, 15 July 1999, para. 305; summarised in Judicial Supplement No. 6).
72. Para. 707. See footnote 60, above.
73. Para. 708.
74. Murder would then constitute an offence under both Articles 5(h) and 5(a) of the Statute.
75. Para. 709: "the prohibition of murder aims at protecting innocent civilians from being obliterated on a large scale. [...] On the other hand, the ban on persecution intends to safeguard civilians from severe forms of discrimination. This ban is designed to reaffirm and impose respect for the principle of equality between groups and human beings."
76. Respectively Article 5(i) and 3 of the Statute.
77. Para. 711.
78. Para. 711. Given this, the Trial Chamber adds, "it is not strictly necessary to consider the ‘different values test’, since the Blockburger test is ultimately dispositive of the issue." (para. 711)
79. See paragraph 866 according to which multiple convictions should lead the Trial Chamber to impose sentences on each count to be served concurrently.
80. Para. 718.
81. Para. 725. See Article 21(4)(a) of the Statute on the right of the accused to be "informed promptly and in detail.
82. Para. 726.
83. Para. 727. Let. (b), "For instance, the Prosecution may characterise the same act as a crime against humanity and, in the alternative, as a war crime. Indeed, in case of doubt it is appropriate from a prosecutorial viewpoint to suggest that a certain act falls under a stricter and more serious provision of the Statute, adding however that if proof to this effect is not convincing, the act falls under a less serious provision."
84. The Trial Chamber made it clear that the jura novit curia principle could not apply fully in the proceedings before an international criminal court (para. 740) but that errors of the Prosecution should not necessarily nullify criminal proceedings whenever a case does appear to have been made by the Prosecution (para. 741).
85. Para. 743.
86. A connected issue is dealt with in The Prosecutor v. Krstic, Decision on Defence Preliminary Motion on the Form of the Amended Indictment, Count 7-8, 28 January 2000. In this case, the Trial Chamber considered at what stage of the trial it should address the issue of cumulative charges. The practice so far had been to leave this question for the end of the trial (see The Prosecutor v. Krnojelac, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, para. 5 and The Prosecutor v. Delalic et al., Decision on Application for Leave to Appeal by Hazim Delic (Defects in the Form of the Indictment), 6 December 1996, para. 36). However, the Trial Chamber declared that "there are good reasons for considering the matter of cumulative versus alternative charging at the beginning. If the issues are clarified and narrowed at the outset, it may help in making the proceedings [...] more focused and efficient. In addition, it may aid the defendant in the preparation of his case to know which charges will ultimately be considered to cover the same "offence" for purposes of conviction and sentencing." Nevertheless, the Trial Chamber declined to do so in the present case.
87. Para. 746.
88. Para. 746.
89. Para. 848.