6. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.

6.1. Discriminatory intent to target such person or persons by reason of the identity of a group or collectively (as a representative of a group or collectivity).

6.2. Discriminatory intent to target the collectivity or group as such.

6. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.

Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, para. 203:

"203. The Appeals Chamber considers that the fact that people not belonging to the targeted group were affected by attacks of the Serbian forces against the Kosovo Albanian population does not deprive such conduct of its discriminatory character.⁶¹⁶ Dordevic’s argument that the Trial Chamber made impermissibly generalised findings in relation to the perpetrator’s discriminatory intent ignores the Trial Chamber’s other relevant findings."

Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, para. 742:

"742. The Appeals Chamber recalls that persecution is an act or omission carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion, or politics (the mens rea).²¹³² The Trial Chamber was thus required to establish that Miletic intended the acts of terrorising civilians. The Appeals Chamber understands Miletic’s challenge to the Trial Chamber’s findings about his “role in disseminating terror”²¹³³ is in fact a challenge of whether a reasonable trier of fact could have established that he intended the acts of terrorising civilians as found by the Trial Chamber."

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, para. 498:

"498. Persecution may take different forms. It may be committed through acts or omissions, some of which are listed in the Statute. For persecution to be established, the act or omission must discriminate in fact. An act, or omission, is discriminatory if the victim is targeted due to his membership in one of the protected groups."

6.1. Discriminatory intent to target such person or persons by reason of the identity of a group or collectively (as a representative of a group or collectivity).

ICTY

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

"The Appeals Chamber in Kordić and Čerkez concluded that persecutions as a crime against humanity has a materially distinct element from deportation,other inhumane acts (forcible transfer), and murder as crimes against humanity, in that persecutions requires proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate."[1]

In Kupreškić, Trial Chamber held that:

"[t]he mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide. In this context the Trial Chamber wishes to stress that persecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discriminate: to attack persons on account of their ethnic, racial, or religious characteristics."[2]

In Kordić, Trial Chamber held that:

"[W]ith 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."[3]

In Krnojelac, Trial Chamber held that:

"The crime of persecution also derives its unique character from the requirement of a specific discriminatory intent. It is not sufficient for the accused to be aware that he is in fact acting in a way that is discriminatory; he must consciously intend to discriminate. While the intent to discriminate need not be the primary intent with respect to the act, it must be a significant one. There is no requirement under persecution that a discriminatory policy exist or that, in the event that such a policy is shown to have existed, the accused has taken part in the formulation of such discriminatory policy or practice by a governmental authority."[4]

In Tuta and Štela, Trial Chamber held that:

"[The crime of persecution] is a crime requiring a specific intent of the perpetrator. He or she must willingly commit the act or omission and must carry it out with the specific intent to discriminate on racial, religious or political grounds."[5]

In Stakić, Trial Chamber noted that:

"[T]he role of the particular accused has a significant impact on the question whether proof is required of a discriminatory intent in relation to each specific act charged, or whether it would suffice that proof of a discriminatory attack is a sufficient basis from which to infer the discriminatory intent in relation to acts forming part of that attack. In both the Vasiljević and Krnojelac cases, the accused were closely related to the actual commission of crimes. [...].

"In the present case, however, the Accused is not alleged to be the direct perpetrator of the crimes. Rather, as the leading political figure in Prijedor municipality, he is charged as the perpetrator behind the direct perpetrator/actor ... In such a context, to require proof of the discriminatory intent of both the Accused and the acting individuals in relation to all the single acts committed would lead to an unjustifiable protection of superiors and would run counter to the meaning, spirit and purpose of the Statute of this International Tribunal."[6]

In Krnojelac, Trial Chamber held that there:

"The crime of persecution also derives its unique character from the requirement of a specific discriminatory intent. It is not sufficient for the accused to be aware that he is in fact acting in a way that is discriminatory; he must consciously intend to discriminate. While the intent to discriminate need not be the primary intent with respect to the act, it must be a significant one. There is no requirement under persecution that a discriminatory policy exist or that, in the event that such a policy is shown to have existed, the accused has taken part in the formulation of such discriminatory policy or practice by a governmental authority."[7]

In Stakić, Trial Chamber held that:

"[t]he requirement that an accused intend to discriminate does not require the existence of a discriminatory policy."[8]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 73:

"73. The Chamber adopts the clarification provided by the Krnojelac and Vasiljević Chambers, namely, that discriminatory intent alone does not suffice, and that the act or omission must have “discriminatory consequences” in fact, and not merely be committed with discriminatory intent. Concerning the actus reus of the crime of persecution, the Appeals Chamber has thus acknowledged that there is discrimination in fact even if the victim is not a member of the group discriminated against and is targeted because the perpetrator mistakenly identifies them with that group."

ECCC

In Kaing, the Appeals Chamber ruled that:

"Furthermore, with respect to the interpretation of the discrimination in fact requirement, this Chamber agrees with the Trial Chamber that an act or omission is discriminatory in fact where 'a victim is targeted because of the victim's membership in a group defined by the perpetrator on specific grounds, namely on political, racial or religious basis.' With regard to political grounds specifically, the perpetrator may define the targeted victims based on a subjective assessment as to what group or groups pose a political threat or danger. The group or groups persecuted on political grounds may include various categories of persons, such as: officials and political activists; persons of certain opinions, convictions and beliefs; persons of certain ethnicity or nationality; or persons representing certain social strata ('intelligentsia', clergy, or bourgeoisie, for example). Furthermore, the targeted political group or groups may be defined broadly by a perpetrator such that they are characterised in negative terms and include close affiliates or sympathisers as well as suspects. In practice, acts against suspects, sympathizers and affiliates also have an impact on the primary targets of the persecution, adding to their overall oppression and isolation. As such, specific acts or omissions of the perpetrator committed against the suspects, sympathizers or affiliates remain acts or omissions committed against the targeted group or groups as whole."[9]

"In addition, the Supreme Court Chamber emphasizes that the requirement of discrimination in fact is connected to the requirement that the victim actually belong to a sufficiently discernible political, racial or religious group. This latter requirement is articulated in the jurisprudence that accepts the 'discrimination in fact' approach and in the doctrine.604 It has also been expressly included in the ICC Statute, which defines persecution as an act that is perpetrated against a person belonging to an identifiable group or collectivity."[10]

"Consequently, the Supreme Court holds that, consistent with the requirement that the persecutory act must discriminate in fact, and that "a victim is targeted because of the victim's membership in a group defined by the perpetrator on specific grounds, namely on political, racial or religious basis,"607 the requisite persecutory consequences must occur for the group, in that denying the individual victim's fundamental right has an impact on the discrimination of the group as a whole. Conversely, where the act or omission undertaken with persecutory intent is committed against an individual who does not belong to the targeted group, the consequences of the act "are real for the victim" in the sense of the denial of the fundamental right, but not discriminatory in fact as is required for persecution. Thus, this Chamber agrees with the position taken on this point by the ICTY Trial Chamber in the Krnojelac Trial Judgement, whose logic this Chamber finds persuasive over ICTY jurisprudence to the contrary."[11]

In Kaing, Appeals Chamber stated that:

"As the revolution wore on, however, individuals were indiscriminately apprehended, mistreated and eliminated without any attempt at rational or coherent justification on political grounds, in actions that were no longer persecution but constituted a reign of terror where no discernible criteria applied in targeting the victims. As found unanimously by the Trial Chamber, the Accused knew that not all those held at S-21 were in fact enemies of the Party, but that they were in any event detained, interrogated and executed. He used all possible means, including torture, to strive assiduously to implement CPK ideology and continuously provided his superiors with the names of all persons whom he well understood would then inevitably be considered as traitors and political enemies. It follows that the Accused, in his criminal activity, consciously mistreated persons who did not fall under any persecutory category and did so, not in order to discriminate against political enemies, but to demonstrate his loyalty and efficiency to the Party. Absent any general criteria for targeting these victims, atrocities committed against them neither discriminate in fact nor originate from a discriminatory, persecutory intent. With respect to acts against these persons, the Supreme Court Chamber considers that the Trial Chamber committed an error of law by qualifying them as persecution on political grounds."[12]

6.2. Discriminatory intent to target the collectivity or group as such.

In Krnojelac, Trial Chamber held that there:

"The crime of persecution also derives its unique character from the requirement of a specific discriminatory intent. It is not sufficient for the accused to be aware that he is in fact acting in a way that is discriminatory; he must consciously intend to discriminate. While the intent to discriminate need not be the primary intent with respect to the act, it must be a significant one. There is no requirement under persecution that a discriminatory policy exist or that, in the event that such a policy is shown to have existed, the accused has taken part in the formulation of such discriminatory policy or practice by a governmental authority."[13]