5.The perpetrator killed one or more persons.

5.1.1.Killing by direct methods.

5.1.2.Killing by indirect methods.

5. The perpetrator killed one or more persons.

ICTY

According to the Kupreškić Trial Chamber:

"The constituent elements of murder under Article 5(a) of the Statute are well known. They comprise the death of the victim as a result of the acts or omissions of the accused, where the conduct of the accused was a result of the acts or omissions of the accused, where the conduct of the accused was a substantial cause of the death of the victim. 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."[1]

In the Tadić case, the Appeals Chamber said:

"It can be noted that some cases appear broadly to link the notion of common purpose to that of causation. In this regard, the Ponzano case, which concerned the killing of four British prisoners of war in violation of the rules of warfare, can be mentioned. Here, the Judge Advocate adopted the approach suggested by the Prosecutor, and stressed:

[...] the requirement that an accused, before he can be found guilty, must have been concerned in the offence. [T]o be concerned in the commission of a criminal offence [...] does not only mean that you are the person who in fact inflicted the fatal injury and directly caused death, be it by shooting or by any other violent means; it also means an indirect degree of participation [...]. [I]n other words, he must be the cog in the wheel of events leading up to the result which in fact occurred. He can further that object not only by giving orders for a criminal offence to be committed, but he can further that object by a variety of other means [...].

"Further on, the Judge Advocate submitted that while the defendant's involvement in the criminal acts must form a link in the chain of causation, it was not necessary that his participation be a sine qua non, or that the offence would not have occurred but for his participation. Consonant with the twin requirements of criminal responsibility under this category, however, the Judge Advocate stressed the necessity of knowledge on the part of the accused as to the intended purpose of the criminal enterprise."[2]

Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 135:

"135. The Trial Chamber further received evidence about the deaths of other people on 18 November 1991 in Škabrnja. It considers, however, that there is a reasonable possibility that these persons died as a result of collateral damage or an accident.329 The Trial Chamber will therefore not further consider the deaths of Jela Jurić, Grgo Bilaver, Peka Bilaver, Ana Brkić, Dumica Gospić, Anica Jurić, Mirko Kardum, Milka Žilić, and Pavica Žilić in relation to this incident."

5.1.1. Killing by direct methods.

The Tadić Trial Chamber judgment said:

"The Trial Chamber is cognisant of the fact that during the conflict there were widespread beatings and killings and indifferent, careless and even callous treatment of the dead. Dead prisoners were buried in makeshift graves and heaps of bodies were not infrequently to be seen in the grounds of the camps. Since these were not times of normalcy, it is inappropriate to apply rules of some national systems that require the production of a body as proof to death. However, there must be evidence to link injuries received to a resulting death. This the Prosecution has failed to do. Although the Defence has not raised this particular inadequacy of proof, it is incumbent upon the Trial Chamber to do so. When there is more than one conclusion reasonably open on the evidence, it is not for this Trial Chamber to draw the conclusion least favourable to the accused, which is what the Trial Chamber would be required to do in finding that any of the four prisoners died as a result of their injuries or, indeed, that they are in fact dead.

"For these reasons the Trial Chamber finds that the Prosecution has failed to establish beyond reasonable doubt that any of these four prisoners died from injuries received in the assaults made on them in the hangar, as alleged in Counts 5, 6 and 7 contained in paragraph 6 of the Indictment."[3]

The Krnojelac Trial Judgement noted:

"The basic requirements for the crime of murder are:

[...]

It is necessary to have regard to two particular issues arising with respect to the law in this case. The first issue concerns the fact that the Prosecution, although alleging that the victims in Schedule C were murdered at the KP Dom, has not been able to bring direct evidence before the Trial Chamber of their deaths, such as an identification of their bodies.

The second issue concerns the death of one individual by suicide.

"The first issue can be dealt with quite simply. Proof beyond reasonable doubt that a person was murdered does not necessarily require proof that the dead body of that person has been recovered. The Defence has not disputed this. It has accepted, quite rightly, that the fact of a victim's death can be inferred circumstantially from all of the evidence presented to the Trial Chamber.856 All that is required to be established from that evidence is that the only reasonable inference from the evidence is that the victim is dead as a result of what occurred in the KP Dom."[4]

5.1.2. Killing by indirect methods.

In the Delalić case, the Trial Chamber said:

"Having reached this conclusion, the remaining issue becomes the formulation of the elements of these crimes of 'wilful killing' and 'murder'. It is apparent that it is a general principle of law that the establishment of criminal culpability requires an analysis of two aspects. The first of these may be termed the actus reus - the physical act necessary for the offence. In relation to homicide of all natures, this actus reus is clearly the death of the victim as a result of the actions of the accused. The Trial Chamber finds it unnecessary to dwell on this issue, although it notes that omissions as well as concrete actions can satisfy the actus reus element and, further, that the conduct of the accused must be a substantial cause of the death of the victim."[5]