6. The conduct constituted, or took place as part of, a mass killing of members of a civilian population.

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 483-484, 5613-5614:

"483. The actus reus of extermination consists of “the act of killing on a large scale”. This involves “any act, omission or combination thereof which contributes directly or indirectly to the killing of a large number of individuals”. In determining what is sufficient for a finding that a large number of individuals were killed, the Tribunal’s jurisprudence has consistently held that there is no minimum numerical threshold of victims that must be reached. Furthermore, it is not necessary that the victims of extermination be precisely identified by name, and it suffices to establish that killings occurred on a mass scale. An assessment of whether the element of “massiveness” has been met must be made on a case by case basis, taking into account all the relevant factors. Relevant factors include, for example, the time and place of the killings, the selection of the victims and the manner in which they were targeted, and whether the killings were aimed at the collective group rather than victims in their individual capacity. There is no requirement to establish that there was a “vast scheme of collective murder”."

"484. Trial Chambers have previously found that it was possible to establish extermination “on an accumulation of separate and unrelated incidents, meaning on an aggregated basis”. The Appeals Chamber recently stated in Tolimir that the actus reus of extermination “may be established through an aggregation of separate incidents”. The Chamber notes that, in this formulation, the possibility of accumulating “unrelated” incidents was removed. The Tolimir Appeals Chamber went on to state that for the purpose of aggregating separate incidents, it is not required that the killing be on a vast scale in a concentrated location over a short period of time. However, even with respect to separate incidents, the Appeals Chamber made it clear that killing incidents which did not form part of the same murder operation could not be accumulated for the purposes of extermination. In assessing whether specific killing incidents formed part of the same murder operation, the Tolimir Appeals Chamber also recalled that the ICTR Appeals Chamber stated that “as a general matter, the element of killing on a large scale cannot be satisfied by a collective consideration of distinct events committed in different prefectures, in different circumstances, by different perpetrators, and over an extended period of time”."

"5613. Earlier in this Judgement, the Chamber recalled that there is no minimum threshold of victims for the purposes of extermination; it still has to be satisfied that the killings occurred on a mass scale and needs to conduct a case-by-case assessment in that regard."

"5614. Further, as previously noted, extermination may be established based on the accumulation of separate incidents. However, it has been found that “as a general matter, the element of killing on a large scale cannot be satisfied by a collective consideration of distinct events committed in different prefectures, in different circumstances, by different perpetrators, and over an extended period of time”."

6.1.A mass killing occurred.

ICTY

As noted by ICTY Trial Chamber in The Prosecutor v. Radovan Karadžić:

"483. The actus reus of extermination consists of "the act of killing on a large scale". This involves "any act, omission or combination thereof which contributes directly or indirectly to the killing of a large number of individuals". In determining what is sufficient for a finding that a large number of individuals were killed, the Tribunal’s jurisprudence has consistently held that there is no minimum numerical threshold of victims that must be reached. Furthermore, it is not necessary that the victims of extermination be precisely identified by name, and it suffices to establish that killings occurred on a mass scale. An assessment of whether the element of "massiveness" has been met must be made on a case by case basis, taking into account all the relevant factors. Relevant factors include, for example, the time and place of the killings, the selection of the victims and the manner in which they were targeted, and whether the killings were aimed at the collective group rather than victims in their individual capacity. There is no requirement to establish that there was a "vast scheme of collective murder".

484. Trial Chambers have previously found that it was possible to establish extermination "on an accumulation of separate and unrelated incidents, meaning on an aggregated basis". The Appeals Chamber recently stated in Tolimir that the actus reus of extermination "may be established through an aggregation of separate incidents". The Chamber notes that, in this formulation, the possibility of accumulating "unrelated" incidents was removed. The Tolimir Appeals Chamber went on to state that for the purpose of aggregating separate incidents, it is not required that the killing be on a vast scale in a concentrated location over a short period of time. However, even with respect to separate incidents, the Appeals Chamber made it clear that killing incidents which did not form part of the same murder operation could not be accumulated for the purposes of extermination. In assessing whether specific killing incidents formed part of the same murder operation, the Tolimir Appeals Chamber also recalled that the ICTR Appeals Chamber stated that "as a general matter, the element of killing on a large scale cannot be satisfied by a collective consideration of distinct events committed in different prefectures, in different circumstances, by different perpetrators, and over an extended period of time"." [1]

According to the Stakić Trial Chamber:

"Extermination must form part of a widespread or systematic attack against a civilian population. An act amounting to extermination, as explained by the Trial Chamber in Prosecutor v. Vasiljević, 'must be collective in nature rather than directed towards singled out individuals. However, in contrast to genocide, the offender need not have intended to destroy the group or part of the group to which the victims belong,' and it is not required that the victims share national, ethnical, racial or religious characteristics. In this context it should be emphasised that the crime of extermination may apply to situations where some members of a group are killed but others spared. It suffices that the victims be defined by political affiliation, physical attributes or simply the fact that they happened to be in a certain geographical area. Moreover, the victims may be defined in the negative, i.e. as not belonging to, not being affiliated with or not loyal to the perpetrator or the group to which the perpetrator belongs."[2]

According to the Vasiljević Trial Chamber:

"It is also apparent from the material reviewed that it is not sufficient to establish extermination for the offender to have intended to kill a large number of individuals, or to inflict grievous bodily harm, or to inflict serious injury, in the reasonable knowledge that such act or omission was likely to cause death as in the case of murder. He must also have known of the vast scheme of collective murder and have been willing to take part therein. As opposed to persecution pursuant to Article 5(h) of the Statute, it need not be established that he acted on any discriminatory grounds. Also, the ultimate reason or motives - political or ideological - for which the offender carried out the acts are not part of the required mens rea and are, therefore, legally irrelevant."[3]

According to the Perišić Trial Chamber:

"The requirement of killings on a large scale does not suggest a numerical minimum, nor a precise identification of certain named or described persons; it suffices to establish that killings occurred on a mass scale. An assessment of whether this requirement has been met must be made on the basis of a case-by-case analysis of all relevant factors. It is not necessary that a large number of killings occurred furing a single incident in a concentrated place over a short period. It may also be found 'on an accumulation of separate and unrelated incidents, meaning on an aggregated basis'. The Trial Chamber [also] notes that the elements of the crime of extermination neither require the existence of a 'vast scheme of collective murder'."[4]

Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, para. 146:

''146. With regard to Tolimir’s argument that the killing of the three Zepa leaders was not part of the one murder operation involving the mass killings of the men of Srebrenica, the Appeals Chamber recalls that the actus reus of the crime of extermination is “the act of killing on a large scale” and the mens rea is the intention to kill on a large-scale. It further recalls that the crime of extermination differs from murder in that it requires an element of massiveness, which is not required for murder. The Appeals Chamber has clarified that: The assessment of “large scale” is made on a case-by-case basis, taking into account the circumstances in which the killings occurred. Relevant factors include, inter alia: the time and place of the killings; the selection of the victims and the manner in which they were targeted; and whether the killings were aimed at the collective group rather than victims in their individual capacity.''

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 2457-2459:

"2457. The Chamber has also had regard to each of the killing incidents identified above to determine whether they amount to extermination. While the Chamber recalls that there is no minimum threshold of victims for the purposes of extermination, it still has to be satisfied that the killings occurred on a mass scale and needs to conduct a case-by-case assessment in that regard."

"2458. As previously noted, extermination may be established based on the accumulation of separate incidents. However, it has been found that “as a general matter, the element of killing on a large scale cannot be satisfied by a collective consideration of distinct events committed in different prefectures, in different circumstances, by different perpetrators, and over an extended period of time”."

"2459. In this case, the Chamber noted that a large number of killing incidents charged in the Indictment with respect to the Municipalities were committed in different locations, in different circumstances, and by different perpetrators over an extended period of time. Having considered these factors, where the Chamber found that the incidents in question were distinct, the Chamber assessed on a case-by-case basis whether each incident amounts to a mass scale killing for the purposes of the actus reus of extermination. In making that assessment, the Chamber has had regard to the scale of each of the killing incidents and the circumstances in which the killings occurred. The Chamber has done so where the circumstances indicated that the killings were committed in geographically proximate locations, in similar circumstances, over a relatively short period of time and were thus considered to be part of the same operation."

ICTR

In the Ndahimana Appeals Judgement, the Appeals Chamber held that:

"The Appeals Chamber also recalls that, with respect to extermination as a crime against humanity, "a particularly large number of victims can be an aggravating circumstance in relation to the sentence for this crime if the extent of the killings exceeds that required for extermination." The Appeals Chamber further recalls that extermination is the act of killing on a "large scale", and that "large scale" does not suggest a strict numerical approach with a minimum number of victims. While extermination as a crime against humanity has been found in relation to the killing of thousands of persons, it has also been found in relation to fewer killings, such as the killings of approximately 60 individuals and less."[5]

According to the Kayishema Trial Chamber:

"The term 'mass', which may be understood to mean 'large scale,' does not command a numerical imperative but may be determined on a case-by-case basis using a common sense approach. The actor need not act with a specific individual(s) in mind."[6]

As to the Nizeyimana Trial Chamber:

"While there is no numerical threshold in establishing extermination, case law emphasises that the killings must occur on a large or mass scale. The Chamber is not satisfied that the killing of the Ruhutinyanya family, the killing of Rosalie Gicanda and others taken from her home, the killing of Remy Rwekaza and Beata Uwambaye as well as the attack on Witness ZAV at the Gikongoro / Cyangugu and Kigali roads junction roadblock, the killing of Pierre Claver Karenzi at the Hotel Faucon roadblock as well as the killing of persons taken from the Matabaro and Nyirinkwaya residences amount to extermination. The evidence related to the number of deaths in each instance is too ambiguous and or too low to establish killing on a large scale"[7]

According to the Bagosora and Nsengiyumva Appeals Chamber:

"[...] the Appeals Chamber considers that the Trial Chamber was unreasonable to conclude that the 'large scale' requirement for extermination was satisfied based on a collective consideration of events committed in different prefectures, in different circumstances, by different perpetrators, and over a period of two months. Each of the incidents which formed the basis of Nsengiyumva's convictions presented distinct features and could not be said to constitute one and the same incident. As such, they could not be considered to constitute one and the same crime sharing the same actus reus."[8]

Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphone Nteziryayo, Joseph Kanyabashi and Élie Ndayambaje, Case No. ICTR-98-42-A, Judgement (AC), 14 December 2015, paras. 2123, 3309:    

"2123. The Appeals Chamber recalls that the actus reus of extermination is the act of killing on a large scale. This is what distinguishes the crime of extermination from the crime of murder. The Appeals Chamber further recalls that “large scale” does not suggest a strict numerical approach with a minimum number of victims. The assessment of “large scale” is made on a case-by-case basis, taking into account the circumstances in which the killings occurred. Relevant factors include, inter alia, the time and place of the killings, the selection of the victims and the manner in which they were targeted, and whether the killings were aimed at the collective group rather than victims in their individual capacity." 

"3309. With respect to the crime of extermination, the Appeals Chamber recalls that the actus reus of extermination is the act of killing on a large scale. “Large scale” does not suggest a strict numerical approach with a minimum number of victims. The assessment of “large scale” is made on a case-by-case basis, taking into account the circumstances in which the killings occurred. Relevant factors include, inter alia, the time and place of the killings, the selection of the victims and the manner in which they were targeted, and whether the killings were aimed at the collective group rather than victims in their individual capacity."

6.2. The victims of the mass killing were members of a civilian population.

6.3. The perpetrator's conduct (that is, the killing of one or more persons) constituted or took place as part of the mass killing.

ICTY

As noted by ICTY Appeals Chamber in The Prosecutor v. Tolimir Zdravko:

"141. With respect to Tolimir’s argument that the Trial Chamber erred in law in applying an incorrect standard to establish the mens rea of extermination by not requiring that the civilian population was the intended target of mass murder, the Appeals Chamber recalls that, as noted by the Trial Chamber, it is well-established that with regard to the victims of the underlying acts of crimes against humanity, "[t]here is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber that requires that individual victims of crimes against humanity be civilians". The Appeals Chamber has more specifically clarified that: whereas the civilian status of the victims, the number of civilians, and the proportion of civilians within a civilian population are factors relevant to the determination of whether the chapeau requirement of Article 5 of the Statute that an attack be directed against a "civilian population" is fulfilled, there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be "civilians".

142. Accordingly, while the establishment of the actus reus of a crime against humanity requires that the crime occur as part of a widespread or systematic attack directed against a civilian population, the victims of the underlying crime do not have to be civilians. The Appeals Chamber thus rejects Tolimir’s argument that the Trial Chamber erred in law by applying an incorrect mens rea standard for extermination when not requiring proof of intent to commit mass murder against civilians. It was sufficient for the Trial Chamber to be satisfied in that regard that the mens rea for the crime of extermination was established on the basis of evidence of the intent to kill on a massive scale as part of a widespread or systematic attack directed against a civilian population." [9]

The Krstić Trial Chamber held that:

"[t]he very term 'extermination' strongly suggests the commission of a massive crime, which in turn assumes a substantial degree of preparation and organisation. It should be noted, though, that 'extermination' could also, theoretically, be applied to the commission of a crime which is not 'widespread' but nonetheless consists in eradicating an entire population, distinguishable by some characteristic(s) not covered by the Genocide Convention, but made up of only a relatively small number of people. In other words, while extermination generally involves a large number of victims, it may be constituted even where the number of victims is limited."[10]

According to the Stakić Trial Judgement,

"[N]o specific minimum number of victims is required. As the Trial Chamber in Vasiljević held, the lowest figure from the Second World War cases to which the crime of extermination was applied was a total of 733 killings. The Chamber added in a footnote however that it does not suggest, 'that a lower number of victims would disqualify that act as 'extermination' as a crime against humanity, nor does it suggest that such a threshold must necessarily be met.' In the opinion of this Trial Chamber, an assessment of whether the element of massiveness has been reached depends on a case-by-case analysis of all relevant factors."[11]

According to the Vasiljević Trial Judgement:

"[...] the act of extermination must be collective in nature rather than directed towards singled out individuals. However, contrary to genocide, the offender need not have intended to destroy the group or part of the group to which the victims belong."[12]

The Stakić Trial Chamber held that:

"This Trial Chamber does not find that the case-law provides support for the Defence submission that the killings must occur on a vast scale in a concentrated place over a short period of time. Such a claim does not follow from the requirement that the killings must be massive. [...] As the Trial Chamber in Krstić held, the massiveness of the crime automatically assumes a substantial degree of preparation and organisation which may serve as an indicia for the existence of a murderous 'scheme' or 'plan', but not, as proposed by the Defence, of a 'vast scheme of collective murder' as a separate element of the crime."[13]

"The evidence shows that the proven killings, many of which independently would reach the requisite level of massiveness for the purpose of an evaluation under Article 5(b) of the Statute, were aimed at the collective group of targeted individuals and not at the victims in their individual capacity. This holds true for, inter alia, the massacre in Room 3 of the Keraterm Camp, [...] the killings of a around 120 men who were called out in an organised fashion on 5 August in the Keraterm Camp [...] [and] the closely controlled and cold-blooded executions at Korićanske Stijene on Mount Vlasić on 21 August 1992."[14]

ICTR

According to the Trial Chamber in Semanza:

"Extermination may be differentiated from murder in that it is directed against a population rather than individuals. The material element of extermination is killing that constitutes or is part of a mass killing of members of a civilian population. The scale of the killing required for extermination must be substantial. Responsibility for a single or a limited number of killings is insufficient."[15]

The Kayishema Trial Judgement held that:

"An actor may be guilty of extermination if he kills, or creates the conditions of life that kills, a single person providing the actor is aware that his act(s) or omission(s) forms part of a mass killing event. For a single killing to form part of extermination, the killing must actually form part of a mass killing event. An 'event' exists when the (mass) killings have close proximity in time and place."[16]