7. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law.

7. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law.

In Kvočka, Trial Chamber held that:

"Discrimination is the main feature that distinguishes the crime of persecution from other crimes against humanity. Any crime against humanity under the other sub-clauses of Article 5 that also meets the additional requirement of discrimination would qualify as persecution. Discrimination in the context of persecution under Article 5(h) must be on political, racial, or religious grounds. In other words, the discriminatory intent necessary for the crime must be characterizable in terms of politics, race, and religion."[1]

In Tadić, Appeals Chamber observed that:

"The experience of Nazi Germany demonstrated that crimes against humanity may be committed on discriminatory grounds other than those enumerated in Article 5(h), such as physical or mental disability, age or infirmity, or sexual preference. Similarly, the extermination of 'class enemies' in the Soviet Union during the 1930s [...] and the deportation of the urban educated of Cambodia under the Khmer Rouge between 1975-1979, provide other instances which would not fall under the ambit of crimes against humanity based on the strict enumeration of discriminatory grounds suggested by the Secretary-General in his Report."[2]

The Tadić Trial Judgement provided that:

"[The] accused's role in, [...] beatings and killings described above clearly constituted an infringement of the victims' enjoyment of their fundamental rights and these acts were taken against non-Serbs on the basis of religious and political discrimination."[3]

Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 560-562, 557-558, 876, 886-887:

"560. The Appeals Chamber will now address Dordevic’s argument that the Trial Chamber failed to apply the element of specific intent required for persecutions.¹⁸⁵⁴ The Trial Chamber correctly set out that the crime of persecutions requires specific intent, i.e. the intent to discriminate on political, racial or religious grounds.¹⁸⁵⁵ It subsequently made a general finding that the “widespread destruction [of Kosovo Albanian religious sites] was committed with persecutory intent as symbols of Kosovo Albanian heritage and identity”.¹⁸⁵⁶ The Trial Chamber also specifically addressed the element of discriminatory intent with regard to the mosques in Celina/Celinë, Bela Crkva/Bellacërkë, and Rogovo/Rogovë.¹⁸⁵⁷ It subsequently found for each of these mosques that the crime of persecutions through wanton destruction was established.¹⁸⁵⁸ With regard to the Four Mosques and the White Mosque in Suva Reke/Suharekë, while it did not specifically discuss the element of discriminatory intent in relation to each mosque,¹⁸⁵⁹ the Trial Chamber equally concluded that the crime of persecutions was established through their destruction or the damage they sustained.¹⁸⁶⁰"

"561. As noted above, the Trial Chamber made a general finding on whether the wanton destruction or damage of religious sites was committed with discriminatory intent.¹⁸⁶¹ As this finding relates to all of the damaged mosques, the Appeals Chamber considers that the Trial Chamber was not required to discuss separately, in relation to each mosque, whether it was destroyed with discriminatory intent. However, it would have been preferable if the Trial Chamber had taken a consistent approach rather than providing a discussion in relation to some of individual mosques and not in relation to others. The Appeals Chamber considers that the placement of a legal finding in a trial judgement is immaterial and a matter within a trial chamber’s discretion provided it is clear that the finding is overarching."

"562. In these circumstances, the Appeals Chamber is satisfied that the Trial Chamber made the required finding that the destruction or damage to the mosques was carried out with discriminatory intent. Dordevic has therefore failed to show that the Trial Chamber erred, and his argument is dismissed."

"557. The Trial Chamber set out that the crime of persecutions consists of an act or omission that: (i) discriminates in fact and denies or infringes upon a fundamental right laid down in international customary or treaty law (actus reus); and (ii) is carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion, or politics (mens rea).¹⁸⁴⁸ It further held that the mens rea for the underlying act of destruction of religious sites is met when the perpetrator “acted with the intent to destroy or damage that property or in the reckless disregard of the substantial likelihood of the destruction or damage”.¹⁸⁴⁹"

"558. By arguing that the mens rea standard for persecutions through destruction of religious or culturally significant property is specific (discriminatory) intent, Dordevic appears to overlook that the mens rea for the crime of persecutions is twofold: it requires both the requisite mens rea for the underlying act and the specific intent to discriminate on political, racial, or religious grounds.¹⁸⁵⁰ In order to establish the crime of persecutions through destruction of religious or culturally significant property, a trial chamber thus must be satisfied that: (i) the mens rea for destruction of religious or culturally significant property is met; and (ii) the destruction is carried out with discriminatory intent."

"876. The Appeals Chamber recalls that the crime of persecutions “requires evidence of a specific intent to discriminate on political, racial, or religious grounds and that it falls to the Prosecution to prove that the relevant acts were committed with the requisite discriminatory intent”.²⁵⁷⁷ The Trial Chamber correctly stated that the requisite discriminatory intent cannot be inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity, however, it “may be inferred from such a context of the attack so long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent”.²⁵⁷⁸ Circumstances that may be taken into consideration include the operation of a prison (in particular, the systematic nature of the crimes committed against a racial or religious group within that prison) and the general attitude of the alleged perpetrator of the offence as seen through his or her behaviour.²⁵⁷⁹ The Appeals Chamber further recalls that, if out of a group of persons selected on the basis of racial, religious, or political grounds, only certain persons are singled out and subjected to mistreatment, a reasonable trier of fact may infer that this mistreatment was carried out on discriminatory grounds.²⁵⁸⁰"

"886. In order to find that the sexual assaults of the five young women amount to the crime of persecutions, the Appeals Chamber must be satisfied that the only reasonable inference is that the sexual assualts were carried out with the intent to discriminate on political, racial, or religious grounds.²⁶⁰⁶ In this respect, the Appeals Chamber recalls that the requisite discriminatory intent cannot be inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity.²⁶⁰⁷ It may nevertheless be inferred from the context of the attack so long as, in the light of the facts of the case, circumstances surrounding the commission of the crime substantiate the existence of such intent.²⁶⁰⁸ Furthermore, the case law shows that the fact that crimes occurred while the victims were – on discriminatory grounds – deported or detained prior to deportation, has been considered in order to infer discriminatory intent from the circumstances.²⁶⁰⁹"

"887. The Appeals Chamber further recalls that personal motive does not preclude a perpetrator from also having the requisite specific intent.²⁶¹⁰ The Appeals Chamber emphasises that the same applies to sexual crimes, which in this regard must not be treated differently from other violent acts simply because of their sexual component. Thus, a perpetrator may be motivated by sexual desire but at the same time also possess the intent to discriminate against his or her victim on political, racial, or religious grounds.²⁶¹¹ Furthermore, the Appeals Chamber recalls that, although the crime of persecutions often refers to a series of acts, a single act may qualify as persecutions as long as it discriminates in fact and is carried out deliberately with the intention to discriminate on one of the listed grounds.²⁶¹²"

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:

s. 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."

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. 536:

"536. It has been held that these restrictive and discriminatory measures can constitute persecution when considered in isolation or in conjunction with other acts amounting to persecution under Article 5(h) of the Statute."