Element:
Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 557-559:
"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."
"559. The Appeals Chamber considers destruction of religious or culturally significant property as an underlying act of the crime of persecutions to be the same as “destruction or wilful damage done to institutions dedicated to religion, [or other cultural property]”; a violation of the laws or customs of war enumerated under Article 3(d) of the Statute. 1851 Contrary to Dordevic’s assertion, the mens rea element for both acts is the same.1852 The Appeals Chamber recalls that the mens rea element for destruction of institutions dedicated to religion or other cultural property under Article 3(d) “is […] met if the acts of destruction or damage were wilfully, i.e. either deliberately or through recklessness, directed against” the property.1853 Dordevic has therefore failed to show that the Trial Chamber erred in law in holding that recklessness is sufficient to satisfy the mens rea element for destruction of religious or culturally significant property as an underlying act of persecutions. Consequently, his argument that the perpetrators must have “specifically targeted” the mosques cannot hold. Dordevic’s argument that the Trial Chamber erred in applying the recklessness standard in relation to the Four Mosques is therefore dismissed."
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. 497, 534:
"497. Persecution is defined in the jurisprudence of the Tribunal as an act or omission (i) which discriminates in fact and denies or infringes upon a fundamental right laid down in international customary law or treaty law (actus reus); and (ii) is carried out deliberately with the intention to discriminate on political, social or religious grounds (mens rea). Although the Statute refers to the listed grounds in the conjunctive, the presence of discriminatory intent on any one of these listed grounds is sufficient to fulfill the mens rea requirement for persecution."
"534. The act resulting in the destruction of property must have been committed with the intent, albeit direct or indirect, to destroy or damage extensively the property in question."
