CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 6 Genocide » Art. 6 Genocide - Common elements » 2. [Mental element, specific] The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

Element:

2. [Mental element, specific] The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

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, para. 508:

"508. To the extent that the Trial Chamber relied on Nyiramasuhuko’s orders to rape women as circumstantial evidence of her genocidal intent in relation to the crime of genocide committed at the prefectoral office, the Appeals Chamber observes that the Prosecution expressly pleaded under the count of genocide that Nyiramasuhuko acted with “the intent to destroy, in whole or in part, a racial or ethnic group” in relation to the crimes committed at the Butare Prefecture Office,¹¹⁷⁴ thus providing clear notice to Nyiramasuhuko that she was alleged to have acted with genocidal intent. Given that the Indictment pleaded Nyiramasuhuko’s specific state of mind in relation to the count of genocide, the evidentiary facts by which her mens rea was to be established did not need to be pleaded.¹¹⁷⁵ The Appeals Chamber therefore finds no error in the Trial Chamber’s reliance on Nyiramasuhuko’s orders to commit rape as evidence of her genocidal intent.

1174. Nyiramasuhuko and Ntahobali Indictment, pp. 38, 39, referring to, inter alia, ibid., paras. 6.30, 6.31. See also ibid., para. 5.1.

1175. Cf. supra, para. 469. Cf. also infra, para. 548."

2.1. The perpetrator "intended" to destroy that group.

A. Legal source/authority and evidence:

The Prosecutor v. Edouard Karemera and Matthieu Ngirumpatse, Case No. ICTR-98-44, Judgement (TC), 2 February 2012, para. 1635, 1642, 1650:

1635. The Chamber has found that Karemera’s letter of 25 May 1994 regarding the implementation of Jean Kambanda’s directives, which he issued to préfets as Minister of the Interior for the Interim Government, had the effect of encouraging the continued killing of Tutsis. The only reasonable conclusion is that the perpetrators of the killings had the intent to destroy, in whole or in part, the Tutsi group.

1642. Given the open and notorious slaughter of Tutsis with cutting and thrusting weapons, and Karemera’s suggestion that the préfectures arm themselves with these weapons, the Chamber is convinced that Karemera was aware of the genocidal intent of the perpetrators and shared it.

1650. Considering the scale of the assaults and the brutal and systematic manner in which the Tutsi victims were attacked, the Chamber finds it proven beyond a reasonable doubt that the assailants who physically perpetrated the killings possessed the intent to destroy, in whole or in substantial part, the Tutsi group. In the context of the notorious and open slaughter of Tutsis in Bisesero at which the national and regional authorities were present, the Chamber concludes, as the only reasonable inference, that the authorities who ordered and instigated these attacks, as well as Karemera and Ngirumpatse, shared the assailants’ genocidal intent.

Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-T, Judgement (TC), 11 February 2009, para 29:

"29. By its nature, intent is not always susceptible to direct proof. In the absence of direct evidence, a perpetrator’s genocidal intent may be inferred from relevant facts and circumstances that can lead beyond reasonable doubt to the existence of the intent, provided that it is the only reasonable inference that can be made from the totality of the evidence. Genocidal intent may be inferred from certain facts or indicia, including but not limited to:

(a) the general context; (b) the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others; (c) the scale of atrocities committed; (d) their general nature; (e) their execution in a region or a country; (f) the fact that the victims were deliberately and systematically chosen on account of their membership in a particular group; (g) the exclusion, in this regard, of members of other groups; (h) the political doctrine which gave rise to the acts referred to; (i) the repetition of destructive and discriminatory acts; and (j) the perpetration of acts which violate the very foundation of the group or are considered as such by their perpetrators."

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 656:

"656. The Appeals Chamber has held that "the specific intent requires that the perpetrator seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such,"²⁰⁸³ although it found that the existence of a plan or policy is not a legal requirement of the crime.²⁰⁸⁴ It is not sufficient that the perpetrator simply knew that the underlying crime would inevitably or likely result in the destruction of the group. The destruction, in whole or in part, must be the aim of the underlying crime(s)."

"2083. Jelisić Appeal Judgement, para. 46

2084. Jelisić Appeal Judgement, para. 48."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 970:

"970. ‘Where direct evidence of genocidal intent is absent, the intent may still be inferred from the factual circumstances of the crime’.²⁴⁴³ Where an inference needs to be drawn, it has to be the only reasonable inference available on the evidence."

"2443. Krstić Appeal Judgement , para. 34."

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para. 252:

252. It is possible to infer the genocidal intent inherent in a particular act charged from the perpetrator’s deeds and utterances considered together, as well as from the general context of the perpetration of other culpable acts systematically directed against that same group, notwithstanding that the said acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership in a particular group, while excluding members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.²³⁷

253. Evidence of genocidal intent can be inferred from "the physical targeting of the group or their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning, the systematic manner of killing".²³⁸ The notion of "destruction of a group" means "the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, religious, cultural or other identity of a particular group".²³⁹ In proving the intent to destroy "in whole or in part", it is not necessary to establish that the perpetrator intended to achieve the complete annihilation of a group from every corner of the globe. There is no numeric threshold of victims necessary to establish genocide,²⁴⁰ even though the relative proportionate scale of the actual or attempted destruction of a group, by any act listed in Article 2 of the Statute, is strong evidence to prove the necessary intent to destroy a group in whole or in part.²⁴¹"

"237. Akayesu Judgment (TC), para. 523; Ntagerura and Others Judgment (TC), para. 663, Kajelijeli Judgment (TC), paras. 804 to 805.

238. Kayishema and Ruzindana Judgment (TC), para. 93; kajelijeli Judgment (TC), para. 86.

239. See ILC Report (1996), para. 50; see also Semanza Judgment (TC), para. 315; Kayishema and Ruzindana Judgement (TC), para. 95.

240. Semanza Judgment (TC), para. 316.

241. Kayishema and Ruzindana Judgment (TC), para. 93."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 319:

"319. In order to be held criminally liable for genocide by killing members of a group, in addition to showing that an accused possessed an intent to destroy the group as such, in whole or in part, the Prosecutor must show the following elements: (1) the perpetrator intentionally killed one or more members of the group, without the necessity of premeditation;⁵³⁹ and (2) such victim or victims belonged to the targeted ethnical, racial, national, or religious group.⁵⁴⁰"

"539. Bagilishema, Judgement, TC, paras. 55, 57-58; Musema, Judgement, TC, para. 155; Rutaganda, Judgement, TC, paras. 49, 50; Kayishema and Ruzindana, Judgement, TC, para. 103; Akayesu, Judgement, TC, para. 501. See also Kayishema and Ruzindana, Judgement, AC, para. 151.

540. Bagilishema, Judgement, TC, para. 55; Musema, Judgement, TC, paras. 154-155; Rutaganda, Judgement, TC, para. 60; Kayishema and Ruzindana, Judgement, TC, para. 99; Akayesu, Judgement, TC, para. 499."

Prosecutor v. Duško Sikirica et al, Case No. IT-95-8-T, Judgement on Defence Motions to Acquit (TC), 3 September 2001, paras. 46, 57 – 61:

"46. The Prosecution contends that, although it is extremely unlikely that there be direct evidence of the accused’s intent to commit genocide, such intent can be inferred from the evidence.¹²⁰In its oral arguments, the Prosecution referred to the Kayishema and Ruzindana Appeal Judgement oral summary, which held that, regarding a lack of explicit manifestation of intent, the requisite intent may normally be inferred from facts and circumstances.¹²¹The Appeals Chamber held that, generally, such an intent may be inferred from the words or deeds of the perpetrator and may be demonstrated by a deliberate pattern of conduct. The Appeals Chamber however stated that this persistent pattern of conduct was not an element of the crime of genocide but rather a means of proof so as to demonstrate whether the accused actually possessed the requisite intent.¹²²The Prosecution then referred to the Jelisić Appeal Brief, which set the following factors as being relevant to prove the mens rea element of genocide:

(a) The general and widespread nature of the atrocities committed;

(b) The general political doctrine giving rise to the acts;

(d) Methodical way of planning the killings;

(e) The systematic manner of killing and disposal of bodies;

(f) The discriminatory nature of the acts;

(g) The discriminatory intent of the accused.¹²³

The history relative to these factors is set out below.¹²⁴"

"120. Prosecution Response to the Sikirica Motion, para. 8. Hearing, T. 4388.

121. Hearing, T. 4388. See Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Motifs de l’Arr?t, 1 June 2001.

122. Hearing, T. 4389.

123. Prosecution Response to the Sikirica Motion, para. 8, citing Jelisić Appeal Brief, para. 4.44, with authorities.

124. In identifying these seven factors, the Prosecution has drawn from the Akayesu Trial Judgement, para. 523 and from Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement, 21 May 1999 ("Kayishema Trial Judgement"), para. 93, wherein the Trial Chambers set forth several factors from which the requisite intent may be inferred. Jelisić Appeal Brief, paras. 4.42–4.44. The Appeals Chamber in Jelisić held that in the absence of direct evidence, proof of specific intent may be inferred from "a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts." Jelisić Appeal Judgement, para. 47."

"57. The Trial Chamber notes the Prosecution submission that evidence that satisfies any of the following three standards meets the requirement of Article 4 that the accused must have committed the act "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such":

(a) The accused consciously desired the genocidal acts to result in the destruction, in whole or in part, of the group, as such;

(b) The accused, having committed his or her genocidal acts consciously and with will to act, knew that the genocidal acts were actually destroying, in whole or in part, the group, as such; or

(c) The accused, being an aidor and abettor to a manifest, ongoing genocide, knowing that there was such an ongoing genocide and that his or her conduct of aiding and abetting was part of that ongoing genocide, knew that the likely consequence of his or her conduct would be to destroy, in whole or in part, the group, as such.Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 549, 571 – 572:

"549. As a preliminary, the Chamber emphasises the need to distinguish between the individual intent of the accused and the intent involved in the conception and commission of the crime. The gravity and the scale of the crime of genocide ordinarily presume that several protagonists were involved in its perpetration. Although the motive of each participant may differ, the objective of the criminal enterprise remains the same. In such cases of joint participation, the intent to destroy, in whole or in part, a group as such must be discernible in the criminal act itself, apart from the intent of particular perpetrators. It is then necessary to establish whether the accused being prosecuted for genocide shared the intention that a genocide be carried out."

"571. The preparatory work of the Genocide Convention clearly shows that the drafters envisaged genocide as an enterprise whose goal, or objective, was to destroy a human group, in whole or in part. United Nations General Assembly resolution 96 (I) defined genocide as "the denial of the right of existence of entire human groups".¹²⁶⁷ The draft Convention prepared by the Secretary-General presented genocide as a criminal act which aims to destroy a group, in whole or in part,¹²⁶⁸ and specified that this definition excluded certain acts, which may result in the total or partial destruction of a group, but are committed in the absence of an intent to destroy the group.¹²⁶⁹ The International Law Commission upheld this interpretation and indicated that "a general intent to commit one of the enumerated acts combined with a general awareness of the probable consequences of such an act with respect to the immediate victim or victims is not sufficient for the crime of genocide. The definition of this crime requires a particular state of mind or a specific intent with respect to the overall consequence of the prohibited act".¹²⁷⁰ The International Court of Justice insisted, in its Opinion on the Legality of the Threat or Use of Nuclear Weapons,¹²⁷¹ that specific intent to destroy was required and indicated that "the prohibition of genocide would be pertinent in this case if the recourse to nuclear weapons did indeed entail the element of intent, towards a group as such, required by the provision quoted above".¹²⁷² The ICTR adopted the same interpretation. In The Prosecutor v. Jean Kambanda, the Trial Chamber stated: "the crime of genocide is unique because of its element of dolus specialis (special intent) which requires that the crime be committed with the intent ‘to destroy in whole or in part, a national, ethnic, racial or religious group as such’".¹²⁷³ In Kayishema, Ruzindana, the Trial Chamber also emphasised that "genocide requires the aforementioned specific intent to exterminate a protected group (in whole or in part)".¹²⁷⁴ Moreover, the Chamber notes that the domestic law of some States distinguishes genocide by the existence of a plan to destroy a group.1275 Some legal commentators further contend that genocide embraces those acts whose foreseeable or probable consequence is the total or partial destruction of the group without any necessity of showing that destruction was the goal of the act.¹²⁷⁶ Whether this interpretation can be viewed as reflecting the status of customary international law at the time of the acts involved here is not clear. For the purpose of this case, the Chamber will therefore adhere to the characterisation of genocide which encompass only acts committed with the goal of destroying all or part of a group.

"1267. UN Doc. A/96 (I), 11 December 1946 (Emphasis added).

1268. UN Doc. E/447 (1947), p. 20 "the word genocide means a criminal act directed against any one of the aforesaid groups of human beings, with the purpose of destroying it in whole or in part, or of preventing its preservation or development".

1269. UN Doc. E/447 (1947), p. 23. See also "Relations Between the Convention on Genocide on the One Hand and the Formulation of the Nurnberg Principles and the Preparation of a Draft Code of Offences Against Peace and Security on the Other", UN Doc. E/AC.25/3/Rev.1, 12 April 1948, p. 6: "The destruction of the human group is the actual aim in view. In the case of foreign or civil war, one side may inflict extremely heavy losses on the other but its purpose is to impose its will on the other side and not to destroy it."

1270. ILC Draft Code, p. 88 (emphasis added).

1271. ICJ Repors (1996), p. 240.

1272. Para. 26. The Chamber notes however that several dissenting opinions criticised the Opinion on the issue by holding that an act whose foreseeable result was the destruction of a group as such and which did indeed cause the destruction of the group did constitute genocide. In particular, Judge Weeramantry observes that the use of nuclear weapons inevitably brings about the destruction of entire populations and constitutes, as such, genocide. He thus challenges the interpretation that "there must be an intention to target a particular national, ethnical, racial or religious group qua such group, and not incidentally to some other act" (Reports p. 502). In the same vein, Judge Koroma comments on "the abhorrent shocking consequences that a whole population could be wiped out by the use of nuclear weapons during an armed conflict". He claims that such a situation constitutes genocide "if the consequences of the act could have been foreseen" (Reports, p. 577).

1273. ICTR 97-23-S, 4 September 1998 (hereinafter The "Kambanda Judgement"), para. 16.

1274. 21 May 1999, para. 89."

1275. Article 211-1 of the French Criminal Code states that the crime must be committed "in the execution of a concerted plan to destroy wholly or partially a group".

"1276. See in particular Eric David, Droit des conflits armés, p. 615; Alexander K.A. Greenawalt, "Rethinking genocidal intent: the case for a knowledge-based interpretation", Columbia Law Review, December 1999, pp. 2259-2294; Gil Gil Derecho penal internacional, especial consideracion del delito de genicidio, 1999.

572. Article 4 of the Statute does not require that the genocidal acts be premeditated over a long period.¹²⁷⁷ It is conceivable that, although the intention at the outset of an operation was not the destruction of a group, it may become the goal at some later point during the implementation of the operation. For instance, an armed force could decide to destroy a protected group during a military operation whose primary objective was totally unrelated to the fate of the group."

1277. The element of premeditation was dismissed at the proposal of Belgium (UN Doc. A/C.6/217) on the ground that such a provision was superfluous in light of the special intent already incorporated into the definition of the crime (UN Doc. A/C.6/SR.72, p. 8)."

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, paras. 55, 60:

"55. [A] crime of genocide is proven if it is established beyond reasonable doubt […] that this act was committed against a specifically targeted national, ethnical, racial or religious group, with the specific intent to destroy, in whole or in part, that group."

"60. The dolus specialis of the crime of genocide is found in the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.""

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 46, 78, 100:

"46. The specific intent requires that the perpetrator, by one of the prohibited acts enumerated in Article 4 of the Statute, seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such.⁸²"

"82. The Appeals Chamber notes it is speaking here solely in the context of the commission of genocide within the meaning of Article 4 of the Statute."

"78. In examining the intentionality of an attack against a group, the Trial Chamber will first consider the different concepts of the notion of destruction of a group as such before then reviewing the degree of intent required for a crime to be constituted. In other words, the Trial Chamber will have to verify that there was both an intentional attack against a group and an intention upon the part of the accused to participate in or carry out this attack. Indeed, the intention necessary for the commission of a crime of genocide may not be presumed even in the case where the existence of a group is at least in part threatened. The Trial Chamber must verify whether the accused had the "special" intention which, beyond the discrimination of the crimes he commits, characterises his intent to destroy the discriminated group as such, at least in part."

"100. Such a case is theoretically possible. The murders committed by the accused are sufficient to establish the material element of the crime of genocide and it is a priori possible to conceive that the accused harboured the plan to exterminate an entire group without this intent having been supported by any organisation in which other individuals participated¹⁴⁷. In this respect, the preparatory work of the Convention of 1948 brings out that premeditation was not selected as a legal ingredient of the crime of genocide, after having been mentioned by the ad hoc committee at the draft stage, on the grounds that it seemed superfluous given the special intention already required by the text¹⁴⁸ and that such precision would only make the burden of proof even greater¹⁴⁹. It ensues from this omission that the drafters of the Convention did not deem the existence of an organisation or a system serving a genocidal objective as a legal ingredient of the crime. In so doing, they did not discount the possibility of a lone individual seeking to destroy a group as such."

"147. Pieter N. Drost, The Crime of State, Genocide, A.W. Sythoff, Leyden, 1959, p. 85: "both as a question of theory and as a matter of principle nothing in the present Convention prohibits its provisions to be interpreted and applied to individual cases of murder by reason of the national, racial, ethnical or religious qualities of the single victim if the murderous attack was done with the intent to commit similar acts in the future and in connection with the first crime".

148. The French word "délibéré" was dropped further to a proposal of Belgium (UN Off. Doc. A/C.6/217, UN Doc. A/C.6/SR.72 p. 8).

149. On this point, see inter alia the commentary of J. Graven, op. cit., p. 495."

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, paras. 59, 525:

"59. Genocide is distinct from other crimes because it requires dolus specialis, a special intent. Special intent of a crime is the specific intention which, as an element of the crime, requires that the perpetrator clearly intended the result charged. The dolus specialis of the crime of genocide lies in "the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such". A person may be convicted of genocide only where it is established that he committed one of the acts referred to under Article 2(2) of the Statute with the specific intent to destroy, in whole or in part, a particular group."

"525. The crime of genocide sometimes implies several offenders participating in the commission of the crime. The Appeals Chamber concurs with the Appellant that in order to find a person guilty of genocide, it must be established that such a person was personally possessed of the specific intent to commit the crime at the time he did so. Nonetheless, as stated by the Appeals Chamber in Kayishema/Ruzindana, "explicit manifestations of criminal intent are […] often rare in the context of criminal trials".⁹⁸³ In the absence of explicit, direct proof, the dolus specialis may therefore be inferred from relevant facts and circumstances.⁹⁸⁴ Such an approach prevents perpetrators from escaping convictions simply because such manifestations are absent.⁹⁸⁵ The validity of this interpretation was confirmed by the Appeals Chambers of both ad hoc Tribunals.⁹⁸⁶ With respect to the facts and circumstances from which specific intent may be inferred, the ICTY Appeals Chamber in Jelisić stated that such facts are, inter alia:

The ICTY Appeals Chamber also indicated that the existence of a plan or policy is not "a legal ingredient" of the crime of genocide,⁹⁸⁸ but that proving the existence of such a plan or policy may facilitate proof of the crime.⁹⁸⁹ Moreover, the Kayishema/Ruzindana Appeal Judgement reveals that making anti-Tutsi utterances or being affiliated to an extremist anti-Tutsi group is not a sine qua non for establishing dolus specialis.⁹⁹⁰ The Appeals Chamber holds the view that establishing such a fact may, nonetheless, facilitate proof of specific intent."

"983. Kayishema/Ruzindana Appeal Judgement, para. 159.

982. Kayishema/Ruzindana Appeal Judgement, para. 159; Jelisić Appeal Judgement, para. 47.

985. Kayishema/Ruzindana Appeal Judgement., para. 159.

986. Jelisić and Kayishema/Ruzindana, respectively.

987. Jelisić Appeal Judgement, para. 47.

988. Ibid, para. 48.

989. Ibid., para. 48.

990. Kayishema/Ruzindana Appeal Judgement, para. 160."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 91:

"91. A distinguishing aspect of the crime of genocide is the specific intent (dolus specialis) to destroy a group in whole or in part. The dolus specialis applies to all acts of genocide mentioned in Article 2(a) to (e) of the Statute, that is, all the enumerated acts must be committed ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’ It is this specific intent that distinguishes the crime of genocide from the ordinary crime of murder.³⁸ The Trial Chamber opines that for the crime of genocide to occur, the mens rea must be formed prior to the commission of the genocidal acts. The individual acts themselves, however, do not require premeditation; the only consideration is that the act should be done in furtherance of the genocidal intent."

"38. Virginia Morris and Michael Scharf, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA, 167 (1998)"

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 498, 518 – 522:

"498. Genocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis. Special intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in "the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such"."

"518. Special intent is a well-known criminal law concept in the Roman-continental legal systems. It is required as a constituent element of certain offences and demands that the perpetrator have the clear intent to cause the offence charged. According to this meaning, special intent is the key element of an intentional offence, which offence is characterized by a psychological relationship between the physical result and the mental state of the perpetrator⁹⁸.

519. As observed by the representative of Brazil during the travaux préparatoires of the Genocide Convention,

520. With regard to the crime of genocide, the offender is culpable only when he has committed one of the offences charged under Article 2(2) of the Statute with the clear intent to destroy, in whole or in part, a particular group. The offender is culpable because he knew or should have known that the act committed would destroy, in whole or in part, a group.

521. In concrete terms, for any of the acts charged under Article 2 (2) of the Statute to be a constitutive element of genocide, the act must have been committed against one or several individuals, because such individual or individuals were members of a specific group, and specifically because they belonged to this group. Thus, the victim is chosen not because of his individual identity, but rather on account of his membership of a national, ethnical, racial or religious group. The victim of the act is therefore a member of a group, chosen as such, which, hence, means that the victim of the crime of genocide is the group itself and not only the individual¹⁰⁰.

522. The perpetration of the act charged therefore extends beyond its actual commission, for example, the murder of a particular individual, for the realisation of an ulterior motive, which is to destroy, in whole or part, the group of which the individual is just one element."

"98. See in particular: Roger Merle et André Vitu, "Traité de droit criminel", Cujas, 1984, (first edition, 1967), p.723 et seg.

99. Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September - 10 December 1994, op. cit., p.109.

100. Concerning this issue, see in particular Nehemiah Robinson, "The Genocide Convention. Its Origins as Interpretation", p.15, which states that victims as individuals "are important not per se but as members of the group to which they belong"."

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, paras. 502 – 504:

"502. Proof of genocidal intent. Whenever direct evidence of genocidal intent is lacking, as is mostly the case, this intent can be inferred from many acts and manifestations or factual circumstances.¹⁸⁵ In Jelisić the Appeals Chamber noted that "as to proof of specific intent, it may, in the absence of direct explicit evidence, be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts" (§ 47).

503. Courts and other bodies charged with establishing whether genocide has occurred must however be very careful in the determination of the subjective intent. As the ICTY Appeals Chamber rightly put it in Krstić (Appeal), "Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirements of specific intent. Convictions for genocide can be entered only where intent has been unequivocally established" (Judgment of 19 April 2004, at § 134). On this ground the Appeals Chamber, finding that the Trial Chamber had erred in demonstrating that the accused possessed the genocidal intent, reversed the Trial Chamber’s conviction of genocide and sentenced Krstić for complicity in genocide.

504. Similarly, States have shown caution when defining genocidal intent with regard to particular events, as is shown, for instance, by the position the Canadian authorities took in 1999 with regard to the question of mass killing of Kosovar Albanians by the armed forces of the central authorities of the Federal Republic of Yugoslavia (FRY) in the internal armed conflict between Kosovo and the Government of the FRY.¹⁸⁶"

"[1]85. See Jelisić (Appeals Chamber), at § 47; Rutaganda (Appeals Chamber), at § 528; Krstić (Appeals Chamber), at § 34. A number of factors from which intent may be inferred were mentioned in Akayesu (§§523-4: "the general context of the perpetration of other culpable acts systematically directed against that same group, whether . . . committed by the same offender or by others"; "the scale of atrocities committed"; the "general nature" of the atrocities committed "in a region or a country" ; "the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups"; "the general political doctrine which gave rise to the acts" ;"the repetition of destructive and discriminatory acts" or "the perpetration of acts which violate, or which the perpetrators themselves consider to violate the very foundation of the group—acts which are not in themselves covered by the list.…but which are committed as part of the same pattern of conduct."), in Musema (§ 166) as well as Kayishema and Ruzindana (§§ 93 and 527: "the number of group members affected" ;"the physical targeting of the group or their property"; "the use of derogatory language toward members of the targeted group"; "the weapons employed and the extent of bodily injury"; "the methodical way of planning"; "the systematic manner of killing" and "the relative proportionate scale of the actual or attempted destruction of a group.").

[1]86. In a Memorandum of 30 March 1999, the Legal Bureau of the Canadian Department of Foreign Affairs pointed out first that in the case of the Kosovar Albanians one element of genocide was present ("targeting a group on the basis of ethnicity"). Then, after noting that so-called ethnic cleansing has been expressly excluded from the Genocide Convention in the 1948 negotiations, it pointed that that such notion (namely the forcible expulsion of person from their homes in order to escape the threat of subsequent ill-treatment), showed an intent different from the "intent to destroy". It went on note that "Ethnic Albanians are being killed and injured in order to drive them from their homes, not in order to destroy them as a group, in whole or in part" (in 37 Canadian Yearkook of International Law 1999, at 328; emphasis in the original)."

B. Evidentiary comment:

Despite a passage in the Akeyasu Trial Judgment suggesting that the mental element for genocide would be established where it was shown that the perpetrator had actual or constructive knoweldge that acts would cause destruction of the group ("With regard to the crime of genocide, the offender is culpable only when he has committed one of the offences charged under Article 2(2) of the Statute with the clear intent to destroy, in whole or in part, a particular group. The offender is culpable because he knew or should have known that the act committed would destroy, in whole or in part, a group"; para 519), it is now well established in the case law of the Tribunals that this is not the case. Rather, the perpetrator himself must seek, by the acts in question, to achieve the group’s destruction (see especially Jelisić Appeals Judgment, para. 46).

Regarding the assessmente of the requisite intent, all sources acknowledge that it may be difficult to find explicit manifestations of intent by the perpetrators (direct evidence). Whenever direct evidence of genocidal intent is lacking, as is mostly the case, this intent can be inferred from many acts and manifestations or factual circumstances.

However, although the mental element requirements are strict, there is no additional requirement to prove premeditation (see Kayishema Trial Judgment, para. 91; Semanza Trial Judgment, para. 319; Krstić Trial Judgment, para. 572, Jelisić Trial Judgment, para. 100).

2.1.1. Evidence inferred from the words, deeds or position of the perpetrator.

A. Legal source/authority and evidence:

Prosecutor v. Ildéphonse Nizeyimana, Case No. ICTR-00-55C-A, Judgment (AC) 29 September 2014, paras. 122-125:

"122. The Appeals Chamber also rejects Nizeyimana’s contentions regarding the reasons for his anger at the presence of the Ruhutinyanya family in the ESO camp and his disgust at the resources spent on protecting the Tutsi family. In light of the Trial Chamber’s acceptance of the evidence that Nizeyimana characterized the Ruhutinyanya family as Inyenzi/Inkotanyi, and the gendarmesaccompanying them as accomplices,³⁹¹ the Appeals Chamber considers that the Trial Chamber reasonably concluded that Nizeyimana’s response to the presence of the family and the resources expended upon them was motivated by genocidal intent.

391. See Trial Judgement, paras. 127, 131, 139, 165, 179, 191, 198, 199, 1495, fn. 415.

123. With regard to the Trial Chamber’s reference to Nizeyimana’s role in the Cyahinda Parish attack,³⁹² the Appeals Chamber notes its conclusion, by Majority, below that the Trial Chamber erred in finding that Nizeyimana was actively involved in authorizing and planning this attack.³⁹³Nevertheless, the Appeals Chamber does not consider that this calls into question the Trial Chamber’s overall assessment of Nizeyimana’s mens rea with regard to the killing of the Ruhutinyanya family, particularly as the Trial Chamber’s observation of its conclusions on the Cyahinda Parish attack – which were based on separate findings – was made only after it had already concluded that Nizeyimana acted with the requisite knowledge and intent.³⁹⁴ Likewise, in its legal findings concerning the killing of the Ruhutinyanya family, the Trial Chamber independently concluded that Nizeyimana possessed genocidal intent and was aware of the genocidal intent held by the principal perpetrators,³⁹⁵ before considering that these findings were further bolstered by evidence of Nizeyimana’s disgust towards the Ruhutinyanya family, and before finally comparing this attitude with that purportedly exhibited in relation to the Cyahinda Parish attack.³⁹⁶ The Appeals Chamber therefore finds that the Trial Chamber’s reference to Nizeyimana’s role in the Cyahinda Parish attack was an additional consideration reinforcing its conclusion on Nizeyimana’s mens rea. In light of this, the Appeals Chamber does not consider that the Trial Chamber’s reference to this attack is capable of invalidating its independent finding that Nizeyimana had the requisite knowledge and intent regarding the killing of the Ruhutinyanya family.

392. Trial Judgement, para. 199.

393. See infra para. 158.

394. Trial Judgement, para. 198 (“The only reasonable inference is that the very danger the Ruhutinyanya family had faced at the roadblock was the reason why Nizeyimana ordered ESO soldiers to return the family to that very location.”). See also Trial Judgement, para. 199 (discussing Nizeyimana’s “anger” and “disgust” towards the Ruhutinyanya family’s presence, before comparing such “disgust” with that exhibited in relation to the Cyahinda Parish attack).

395. Trial Judgement, para. 1496.

396. Trial Judgement, para. 1497.

124. The Appeals Chamber also dismisses Nizeyimana’s arguments that the Trial Chamber erred in finding that Bizimana led the mission back to the Akanyaru border crossing roadblock. Contrary to Nizeyimana’s submissions, Witness ZML07’s evidence that Bizimana led the mission was corroborated by other evidence.³⁹⁷ The Trial Chamber noted that, contrary to the evidence ofWitnesses ZAW and AZD, Witness ZML07 testified that Nyirimanzi was not involved.³⁹⁸ However, the fact that Nizeyimana ordered Nyirimanzi to return the family to the border does not undermine the finding that it was Bizimana who led the mission. Moreover, as discussed above, the Trial Chamber considered and reasonably rejected the evidence that Muvunyi arranged the removal of the family.³⁹⁹ The Appeals Chamber further finds that the Trial Chamber was entitled to rely on evidence of Bizimana’s role in Rosalie Gicanda’s murder to infer intent, by demonstrating a pattern of targeted violence, including the perpetration of other culpable acts systematically directed against the same protected group, i.e., Tutsis. This also reinforced the Trial Chamber’s finding of the genocidal intent of the ESO soldiers and Interahamwe at the roadblock,⁴⁰⁰as well as Nizeyimana’s mens rea for the killing of the Ruhutinyanya family members.⁴⁰¹

397. Trial Judgement, paras. 152, 156. See also Trial Judgement, para. 160.

398. Trial Judgement, para. 196. Furthermore, the Trial Chamber considered in detail the evidence of Witnesses ZAW and AZD regarding Nizeyimana’s order to Nyirimanzi to return the family to the border. See Trial Judgement, paras. 162, 179, 187-190.

399. See supra para. 119. See also Trial Judgement, paras. 195, 196.400. Trial Judgement, para. 1495.

401. Trial Judgement, para. 208. Cf. Gatete Appeal Judgement, para. 247; Ntabakuze Appeal Judgement, paras. 237, 248; Hategekimana Appeal Judgement, paras. 133, 134; Renzaho Appeal Judgement, para. 499.

125. Accordingly, the Appeals Chamber does not consider that Nizeyimana has demonstrated that the Trial Chamber erred in its assessment of the mens rea underlying his conviction for the killing of the Ruhutinyanya family."

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, para. 496:

"496. The perpetrator’s specific genocidal intent may be inferred from deeds and utterances. It may also be inferred from the general context of the perpetration, in consideration of factors such as: the systematic manner of killing; the methodical way of planning; the general nature of the atrocities, including their scale and geographical location, weapons employed in an attack, and the extent of bodily injuries; the targeting of property belonging to members of the group; the use of derogatory language towards members of the group; and other culpable acts systematically directed against the same group, whether committed by the perpetrator or others."

"455. Gacumbitsi Judgement (TC), paras. 252-253; Akayesu Judgement (TC), para. 523; Kayishema and Ruzindana Judgement (TC), para. 93; Ntagerura and Others Judgement (TC), para. 663."

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para. 252:

252. It is possible to infer the genocidal intent inherent in a particular act charged from the perpetrator’s deeds and utterances […]"

Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, para. 34:

"34. The Defence also argues that the record contains no statements by members of the VRS Main Staff indicating that the killing of the Bosnian Muslim men was motivated by genocidal intent to destroy the Bosnian Muslims of Srebrenica.⁵⁵ The absence of such statements is not determinative. Where direct evidence of genocidal intent is absent, the intent may still be inferred from the factual circumstances of the crime.⁵⁶ The inference that a particular atrocity was motivated by genocidal intent may be drawn, moreover, even where the individuals to whom the intent is attributable are not precisely identified. If the crime committed satisfies the other requirements of genocide, and if the evidence supports the inference that the crime was motivated by the intent to destroy, in whole or in part, a protected group, a finding that genocide has occurred may be entered."

"55. Defence Appeal Brief, paras. 74-77.

56. Jelisić Appeal Judgement, para. 47; see also Rutaganda Appeal Judgement, para. 528."

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, para. 63:

"63. Thus evidence of the context of the alleged culpable acts may help the Chamber to determine the intention of the Accused, especially where the intention of a person is not clear from what that person says or does. The Chamber notes, however, that the use of context to determine the intent of an accused must be counterbalanced with the actual conduct of the Accused. The Chamber is of the opinion that the Accused’s intent should be determined, above all, from his words and deeds, and should be evident from patterns of purposeful action."

"59. Akayesu (TC) paras.523"

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (AC), 1 June 2001, para. 148:

"148. The Trial Chamber found that Kayishema possessed the requisite "intent to destroy the Tutsi group in whole or in part",²²⁰ which it inferred from the following factors: (i) the number of victims that were killed; (ii) the manner in which the killings were carried out (the methodology); and (iii) Kayishema’s utterances during and after the massacres.²²¹[…]"

"220. Trial Judgement, para. 540.

221. Ibid., para. 540. See also paras 531-539."

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 63:

"63. Therefore, the Chamber is of the view that, in practice, intent can be, on a case-by-case basis, inferred from the material evidence submitted to the Chamber, including the evidence which demonstrates a consistent pattern of conduct by the Accused."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 93, 527:

"39. Cited in Bassiouni, in The Law of the International Criminal Tribunal for the Former Yugoslavia, p. 524, and UN and Rwanda, 1993-6, p. 432, para. 166.

40. Wisconsin International Law Journal, 243 (1996).

"527. In the Law Part, the Trial Chamber acknowledges the difficulty in finding explicit manifestations of a perpetrator’s intent. The Trial Chamber states that the specific intent can be inferred from words and deeds and may be demonstrated by a pattern of purposeful action. The evidence, in the present case, is considered in light of this reality."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 728:

"728. As stated in its findings on the law applicable to the crime of genocide, the Chamber holds the view that the intent underlying an act can be inferred from a number of facts¹⁷⁹. The Chamber is of the opinion that it is possible to infer the genocidal intention that presided over the commission of a particular act, inter alia, from all acts or utterances of the accused, or from the general context in which other culpable acts were perpetrated systematically against the same group, regardless of whether such other acts were committed by the same perpetrator or even by other perpetrators."

"179. 1 See above the findings of the Trial Chamber on the law applicable to the crime of genocide."

Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, paras. 36-37, 469-472, 507, 514-522, 525-530:

"36. The Prosecution responds that the Indictment was clear that the forcible transfer allegations against Miletic included the civilian component of the column and those among the column who were later executed.¹²⁸"

128. Prosecution’s Response Brief (Miletic), paras 5-9, 16. See also Prosecution’s Response Brief (Miletic), paras 10-15.

"37. With regard to the column, the Appeals Chamber notes that the section of the Indictment under the sub-heading “The Forcible Removal of the Muslim Population from Srebrenica” could, when read in isolation, be understood to pertain only to the men from the column who were captured or who surrendered to MUP or VRS forces.¹²⁹ However, the Appeals Chamber recalls that when considering whether an accused received clear and timely notice, the indictment must be considered as a whole.¹³⁰ To this end, the Appeals Chamber observes that under Count 7, the Indictment alleges that the purpose of the JCE to enclaves”. ¹³¹ Under the sub-heading “The Joint Criminal Enterprise to Forcibly Remove the Muslim Population from Srebrenica and Zepa”, it further alleges that one purpose of the 2 July 1995 VRS attack on the Srebrenica enclave was to force the Muslim population into the small town of Srebrenica “thereby creat[ing] conditions where it would be impossible for the entire Muslim population to sustain itself, and that would require its departure”.¹³² Thus, the Indictment is clear that the target of the JCE to Forcibly Remove extended to the entire Bosnian Muslim population of Srebrenica. It necessarily follows that the target of the JCE included those Bosnian Muslims who would eventually flee Srebrenica in the column. Paragraph 56 under the same sub-heading of the Indictment reinforces such an understanding in that the description of the JCE includes “approximately 15,000 Bosnian Muslim men from the enclave, with some women and children, […] [including approximately 5,000] armed Bosnian Muslim military personnel” amassed in a column and headed towards Tuzla.¹³³"

129. Indictment, paras 63-64. See also Indictment, paras 61-62.

130. Karemera and Ngirumpatse Appeal Judgement, paras 370, 399; Bizimungu Appeal Judgement, para. 99; Dorđević Appeal Judgement, para. 588; Mrkšić and [ljivan~anin Appeal Judgement, para. 138.

131. Indictment, para. 49, heading following para. 49.

132. Indictment, para. 53.

133. Indictment, para. 56.

"469. Concerning Popovic’s argument regarding his support for opening the corridor, the Appeals Chamber notes the Trial Chamber’s finding that Popović was referring to Pandurević’s Interim Combat Report of 16 July 1995 when stating that “[i]t’s just like he wrote it … I was there on the spot and saw for myself he had received some numbers”.¹³⁰⁰ As found by the Trial Chamber, this report contains information on combat operations in the Zvornik area as well as Pandurevic’s decision to open a corridor so that the civilian population could be evacuated.¹³⁰¹ The Appeals Chamber finds that Popovic has failed to demonstrate that the Trial Chamber erred in finding that his words reflect his agreement with how Pandurević described the combat operations rather than his support for Pandurević’s decision to open the corridor. In any event, the Trial Chamber weighed the evidence and relied on Popović’s cumulative actions and words to show his genocidal intent.¹³⁰² Thus, this argument is dismissed."

1300. Trial Judgement, para. 1136. See Trial Judgement, paras 1137-1138.

1301. Trial Judgement, paras 1137-1138 ; Ex. 7DP00330, “Zvornik Brigade Interim Combat report, signed by Pandurević, 16 July 1995”.

1302. Trial Judgement, paras 1178-1180.

"470. Regarding Popović’s use of the term “balija”, the Trial Chamber found that it was “in no way determinative of his alleged specific intent to commit genocide, though it is relevant to it”.¹³⁰³ The Appeals Chamber observes that his use of the term “balija” did not form part of the “decisive factors” in the Trial Chamber’s finding that Popović had genocidal intent.¹³⁰⁴ The Appeals Chamber finds that Popović challenges the Trial Chamber’s reliance on certain evidence, without explaining why the conviction should not stand on the basis of the remaining evidence and, therefore, dismisses his argument."

1303. Trial Judgement, para. 1177.

1304. See Trial Judgement, para. 1180.

"471. The Trial Chamber found that “Popović aimed to spare no one amongst the Bosnian Muslims within his reach, not even a young boy”.¹³⁰⁵ This impugned finding was based on other findings regarding, notably, Popović’s involvement in co-ordinating the Orahovac killings on 14 July 1995 and the Kozluk Killings on 15 July 1995.¹³⁰⁶ Specifically, the Trial Chamber found that when a young boy emerged from a pile of corpses at the Orahovac execution site, calling for his father, Popović asked the executioners what they were waiting for and said “[j]ust finish him off”.¹³⁰⁷ In this regard, the Appeals Chamber notes that it dismisses below Popović’s challenges to the Trial Chamber’s findings that he was present at this execution site.¹³⁰⁸ The Trial Chamber further found that once someone had volunteered to participate in the executions that were to take place at Kozluk, Popović told the volunteer to go out and find other volunteers. ¹³⁰⁹ The Appeals Chamber considers that Popović has failed to demonstrate that no reasonable trial chamber could have made the impugned finding based on its previous findings on Popović’s involvement in the Orahovac killings and Kozluk Killings. The Appeals Chamber further observes that the Trial Chamber did not rely on Popović’s authority regarding the prisoners to find his genocidal intent and instead relied on his actions and statements.¹³¹⁰ Whether he had any specific authority over the prisoners is therefore irrelevant to the impugned finding and, by extension, to the Trial Chamber’s findings on his genocidal intent. The Appeals Chamber therefore dismisses Popović’s challenge to the impugned finding."

1305. Trial Judgement, para. 1179, referring to Trial Judgement, paras 1111-1122.

1306. Trial Judgement, paras 1111-1122.

1307. Trial Judgement, para. 1111.

1308. See infra, para. 1108.

1309. Trial Judgement, para. 1120.

1310. Trial Judgement, paras 1178-1180.

"472. Finally, the Appeals Chamber has upheld all of the other findings on which Popović alleges the Trial Chamber based his conviction for commission of genocide.¹³¹¹ The Appeals Chamber therefore dismisses Popovic’s arguments."

1311. See infra, paras 813-815, 819, 822, 831, 845, 847, 874, 904, 910, 1077-1078, 1103-1104, 1107-1108, 1143, 1153-1154, 1196-1197.

"507. In sum, the Prosecution has not demonstrated that the Trial Chamber erred by failing to consider relevant factors in determining whether Nikolic possessed genocidal intent. To the extent that the Prosecution’s arguments could be interpreted as being that the Trial Chamber failed to give sufficient weight to the relevant factors it considered or failed to interpret the evidence in a particular manner, the Appeals Chamber recalls that such mere assertions warrant dismissal without detailed analysis. The Appeals Chamber will therefore not address the Prosecution’s arguments in this light."

"514. The Appeals Chamber recalls that where the Prosecution appeals an acquittal it must show that, when account is taken of the errors of fact committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been eliminated.¹⁴³⁷ Thus, in requesting the Appeals Chamber to overturn an acquittal for genocide based on alleged errors of fact underpinning a trial chamber’s finding of a lack of the requisite mens rea, the Prosecution needs to show that, but for the Trial Chamber’s errors, the specific intent for genocide would have been unequivocally established. Bearing this in mind, the Appeals Chamber will consider this sub-ground of appeal on its merits."

1437. See supra, para. 21.

"515. First, with regard to the averred irrelevant legal considerations, the Appeals Chamber notes that the Trial Chamber considered Nikolic’s personal circumstances and position within the VRS as relevant to assessing his personal intent to destroy a group by placing his participation in the context in which it clearly occurred.¹⁴³⁸ In the view of the Appeals Chamber, it is clear from the Trial Chamber’s analysis that it did not draw a simple conclusion on the lack of genocidal intent by reason of Nikolic’s subordinate position within the VRS, but made a careful assessment of Nikolic’s role and position at the relevant time, which formed part of the evidence in totality. In this sense, the Trial Chamber found it relevant that Nikolic was a lower ranking military officer who was occupying a position of some importance in terms of functionality – the Chief of Security in the Zvornik Brigade. Contrary to the Prosecution’s submission,¹⁴³⁹ the Trial Chamber did not fail to reflect the degree of authority that Nikolic practically enjoyed and exercised in this position – indeed it specifically noted that the position was usually reserved for the rank of Major or higher.¹⁴⁴⁰ The Trial Chamber observed, however, that “in the context of an operation directed by Beara and Popovic, Nikolic would have little authority of his own”.¹⁴⁴¹ By reason of his position, Nikolic was ordered by his superiors to make logistical arrangements for the detention and killing of prisoners in the Zvornik area.¹⁴⁴² The Trial Chamber also accepted evidence that Nikolic was devoted to the Security Service.¹⁴⁴³ As noted by the Trial Chamber, such factors do not justify or excuse the carrying out of patently illegal orders.¹⁴⁴⁴ In this regard, such factors are irrelevant to determining individual criminal responsibility.¹⁴⁴⁵ However, evidence of Nikolic’s personal circumstances and position in the VRS formed part of “all of the evidence, taken together” which may be assessed to determine the existence of genocidal intent.¹⁴⁴⁶ The Appeals Chamber finds that such evidence was not legally irrelevant to the Trial Chamber’s assessment of whether Nikolic personally had genocidal intent."

1438. Trial Judgement, para. 1412.

1439. Prosecution’s Appeal Brief, para. 286

1440. Trial Judgement, para. 1412.

1441. Trial Judgement, para. 1412.

1442. Trial Judgement, para. 1412.

1443. Trial Judgement, para. 1413.

1444. Trial Judgement, para. 1412.

1445. Boskoski and Tarčulovski Appeal Judgement, para. 52.

1446. See Stakic Appeal Judgement, para. 55.

"516. With regard to the Prosecution’s argument that the Trial Chamber erred in law by considering that Nikolic’s possible motive for participating in the genocidal plan undermined his genocidal intent, the Appeals Chamber does not construe the Trial Chamber’s assertion that “[a]nother reasonable inference is that Nikolić’s blind dedication to the Security Service led him to doggedly pursue the efficient execution of his assigned tasks in this operation, despite its murderous nature and the genocidal aim of his superiors”¹⁴⁴⁷ to mean that the Trial Chamber confused intent and motive or that it concluded that the existence of a motive would be incompatible with genocidal intent.¹⁴⁴⁸ The Appeals Chamber considers that the Trial Chamber held that the Prosecution had not established genocidal intent beyond reasonable doubt."

1447. Trial Judgement, para. 1414.

1448. See Krnojelac Appeal Judgement, para. 103

"517. The Appeals Chamber now turns to the submission that the Trial Chamber considered irrelevant factual considerations. The Prosecution argues that the Trial Chamber erroneously focused on what Nikolic could have done, instead of what he did and how he did it,¹⁴⁴⁹ as well as on Nikolic’s lack of involvement in criminal acts that were completed prior to his joining the murder operation.¹⁴⁵⁰ The Appeals Chamber notes that the Trial Chamber found that, although Nikolić’s “acts and participation […] provide some evidence from which a genocidal intent on his part could be inferred”,¹⁴⁵¹ “Beara and Popović can properly be described as architects of this genocidal operation, [while] Nikolić was brought in to carry out specific tasks assigned to him, in implementation of a monstrous plan, designed by others.”¹⁴⁵² The Trial Chamber did not discount the significance of what Nikolic did, nor unreasonably compare his contributions to those of Beara and Popovic, nor require that Nikolic participate in criminal acts that were completed before he joined the genocide. Rather, the Trial Chamber specifically focused on the scope of Nikolic’s acts and participation for the purpose of determining whether and to what extent genocidal intent could be inferred. This does not mean that the Trial Chamber failed to appreciate that a genocidal plan involves a division of tasks.¹⁴⁵³ While the Trial Chamber may have placed undue emphasis on all of Nikolic’s tasks being confined to his sphere of military role and authority as a factor relevant to determining whether he had genocidal intent, it considered the scope of Nikolic’s acts and participation together with a range of other evidence that suggested to it that there were other reasonable inferences that could be drawn about his mental state than that of genocidal intent.¹⁴⁵⁴ The Appeals Chamber recalls that where proof of state of mind is based on inference, it must be the only reasonable inference available on the evidence. ¹⁴⁵⁵ The Trial Chamber’s consideration of the specific tasks assigned to Nikolic in the context of the genocidal operation as a whole was part of the totality of the evidence and therefore relevant to determining whether genocidal intent was the only reasonable inference available on the evidence. The Appeals Chamber therefore concludes that the Prosecution misconstrues the Trial Chamber’s basic reasoning."

1449. Prosecution’s Appeal Brief, paras 273, 275-278; Prosecution’s Reply Brief, paras 102, 109, 116-118.

1450. Prosecution’s Appeal Brief, paras 273, 279-280.

1451. Trial Judgement, para. 1409.

1452. Trial Judgement, para. 1410.

1453. Cf. Prosecution’s Appeal Brief, para. 275.

1454. Trial Judgement, para. 1414.

1455. Kvočka et al. Appeal Judgement, para. 237; Krstic Appeal Judgement, para. 41; Vasiljevic Appeal Judgement, para. 120.

"518. As to the Prosecution’s argument that the Trial Chamber contradicted its prior findings related to Nikolic’s involvement in the movement of prisoners from Bratunac to Zvornik,¹⁴⁵⁶ the Appeals Chamber notes that when discussing Nikolic’s possible mens rea for committing genocide and conspiracy to commit genocide, the Trial Chamber found that, “[w]hile he had some escort responsibilities, he was not implicated in the arrangements for the movement of the prisoners from Bratunac to Zvornik”.¹⁴⁵⁷ The Appeals Chamber notes that this appears to contradict the Trial Chamber’s earlier findings that Nikolic was heavily involved in organising the movement of these prisoners to Zvornik, by: (1) calling Obrenović on the evening of 13 July 1995 to tell him that Popovic had informed him of the large number of prisoners that would be transferred from Bratunac to Zvornik in order to be executed on Mladić’s orders and that Nikolić had been asked to assist (“Nikolić-Obrenović Conversation”); (2) requesting Obrenovic to assign to him Miomir Jašikovac and a military police platoon to carry out the task; and (3) supervising the operation by personally being present when the buses of prisoners arrived and assigning the Zvornik Brigade Military Police Company to guard the prisoners.¹⁴⁵⁸"

1456. Prosecution’s Appeal Brief, paras 273, 281; Prosecution’s Reply Brief, para. 119.

1457. Trial Judgement, para. 1410.

1458. Trial Judgement, paras 470-471, 1345, 1350.

"519. The Prosecution also argues that the Trial Chamber contradicted an earlier finding when, in the context of assessing Nikolic’s mens rea for genocide, it considered that “he is not directly implicated in the killings at Branjevo Military Farm”.¹⁴⁵⁹ The Appeals Chamber notes the Trial Chamber’s earlier finding that “Nikolić ordered Perić of the Zvornik Brigade 1st Battalion to secure the prisoners at the Kula School in the awareness that these prisoners were to be executed.”¹⁴⁶⁰ The Trial Chamber specified that “it is immaterial that Nikolić went to a funeral on 16 July 1995 on the day that they were killed at Branjevo Military Farm”.¹⁴⁶¹ In the view of the Appeals Chamber, in making this remark, the Trial Chamber was indicating that Nikolic was in fact implicated in the murders of these prisoners, in spite of the fact that he was not present on the day they were killed. The Appeals Chamber considers that this contradicts its later finding that Nikolic was not directly implicated in the killings at the Branjevo Military Farm."

1459. Prosecution’s Appeal Brief, para. 282; Trial Judgement, para. 1410.

1460. Trial Judgement, para. 1360. Cf. infra, paras 1327-1328.

1461. Trial Judgement, para. 1360.

"520. The Appeals Chamber therefore finds that the Trial Chamber did contradict two of its earlier findings in discussing considerations militating against finding that Nikolic had the requisite genocidal intent. However, neither of these later contradictory findings necessarily amount to an error of fact which has occasioned a miscarriage of justice. In this regard, the Appeals Chamber notes Nikolic’s involvement in the arrangements for moving the prisoners from Bratunac to Zvornik and his role in securing the prisoners at the Kula School with the knowledge they would be later executed. The Appeals Chamber, however, finds that the Prosecution has failed to show that the Trial Chamber erred in its overall reasoning that genocidal intent was not the only reasonable inference available from the evidence as it relates to Nikolic’s mental state in carrying out the specific tasks assigned to him by reason of his military and security positions."

"521. The Prosecution argues that the Trial Chamber also unreasonably considered as a factor negating Nikolic’s possible genocidal intent the fact that the Milići Prisoners remained alive in his custody until they were handed over to Popovic. ¹⁴⁶² The Appeals Chamber observes that the Trial Chamber was unable to make precise findings on the role, if any, that Nikolic had in terms of the custody of the Milići Prisoners or their handover to Popovic. ¹⁴⁶³ Considering the lack of evidence or findings on Nikolic’s role in the matter, the Appeals Chamber is of the view that no reasonable trier of fact could have relied on the fact that the prisoners remained alive in the custody of the Zvornik Brigade to counter the inference that Nikolic had genocidal intent.¹⁴⁶⁴ At the same time, the Appeals Chamber finds that the incident does not necessarily provide support for Nikolic’s genocidal intent.¹⁴⁶⁵ However, the Appeals Chamber finds that the Trial Chamber’s erroneous reliance on this evidence did not amount to a miscarriage of justice since the Trial Chamber based its reasoning on a wide range of evidence in addition to this one consideration. Thus, the absence of this consideration in the Trial Chamber’s discussion would not have altered the Trial Chamber’s conclusion that more than one inference about Nikolic’s mental state was reasonable."

1462. Prosecution’s Appeal Brief, paras 283-284; Prosecution’s Reply Brief, para. 118. See Trial Judgement, para. 1411.

1463. Trial Judgement, para. 1380.

1464. Trial Judgement, para. 1411.

1465. See Prosecution’s Appeal Brief, para. 283.

"522. Finally, the Appeals Chamber finds that the errors discussed above¹⁴⁶⁶ are insufficient to demonstrate a miscarriage of justice even when taken cumulatively."

1466. See supra, paras 520-521.

"525. The Appeals Chamber notes that the Trial Chamber made reference to all four of the considerations enumerated by the Prosecution in assessing Nikolic’s mens rea for committing genocide and conspiracy to commit genocide. In terms of Nikolic’s awareness of the genocidal plan, it found that “soon after the inception of his involvement in the killing operation, and certainly by the time of executions at Orahovac, Nikolić knew that this was a massive killing operation being carried out with a genocidal intent”.¹⁴⁷⁸

1478. Trial Judgement, para. 1407.

"526. The Trial Chamber also found that Nikolic’s key contributions to the genocide were made concurrent with, or after the acquisition of, this knowledge.¹⁴⁷⁹ These key contributions consisted of the planning and organising of detentions and executions of thousands of prisoners in multiple locations in the Zvornik area.¹⁴⁸⁰ Furthermore, the Trial Chamber specifically considered the persistent and determined efforts of Nikolic to contribute to this plan.¹⁴⁸¹ With all of this in mind, the Trial Chamber determined that “the central issue, however, is whether those actions, combined with his knowledge of the genocidal intent of others, considered in the totality of the evidence, are sufficient to satisfy the Trial Chamber beyond reasonable doubt that Nikolić not only knew of the intent but that he shared it”.¹⁴⁸²"

1479. Trial Judgement, para. 1407.

1480. Trial Judgement, paras 1404, 1408.

1481. Trial Judgement, paras 1408-1409.

1482. Trial Judgement, para. 1408.

"527. Ultimately, the Trial Chamber was not convinced beyond reasonable doubt that Nikolic shared the genocidal intent of which he was aware since this was not the only reasonable inference it could draw from the evidence, another being that “Nikolic’s blind dedication to the Security Service led him to doggedly pursue the efficient execution of his assigned tasks in this operation, despite its murderous nature and the genocidal aim of his superiors.”¹⁴⁸³"

1483. Trial Judgement, para. 1414

"528. The Appeals Chamber recalls the margin of deference it gives to the factual findings reached by a trial chamber and that it will only intervene when a clear error has been made.¹⁴⁸⁴ The Appeals Chamber, Judge Niang dissenting, is not convinced that the errors made by the Trial Chamber in the course of its reasoning on Nikolic’s possible mens rea for genocide or conspiracy to commit genocide undermine the conclusions reached by the Trial Chamber.¹⁴⁸⁵"

1484. See supra, para. 513.

1485. See supra, paras 520-522.

"529. The Appeals Chamber, Judge Niang dissenting, finds that the Prosecution has failed to show that the Trial Chamber erred in concluding that Nikolic did not possess the requisite genocidal intent so as to hold him responsible for genocide as well as conspiracy to commit genocide. The Appeals Chamber recalls that the crimes of genocide and conspiracy to commit genocide both require genocidal intent as a part of the mens rea element,¹⁴⁸⁶ and in the absence of such a finding of genocidal intent, it is unnecessary to discuss the submissions of the Parties on the actus reus of conspiracy to commit genocide.¹⁴⁸⁷"

"530. In light of the foregoing, the Appeals Chamber, Judge Niang dissenting, dismisses the Prosecution’s ground of appeal 7 in its entirety."

1486. In order for the mens rea for conspiracy to commit genocide to be satisfied “the individuals involved in the agreement must have the intent to destroy in whole or in part a national, ethnical, racial or religious group as such (mens rea)”. Nahimana et al. Appeal Judgement, para. 894. Likewise, for genocide an accused must act “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”. Munyakazi Appeal Judgement, para. 141

1487. The Appeals Chamber also considers that Nikolić’s arguments on the possible violation of his fundamental right to appeal, as resulting from the entering of a new conviction on appeal, is rendered moot. Nikolić’s Response Brief, paras 111-122.

P.15. Evidence of intention to destroy that group inferred from statements by the perpetrator.

P.15.1. Evidence of the perpetrator expressing his or her intention to destroy that group.

A. Legal source/authority and evidence:

Prosecutor v. Emmanuel Rukundo, Case No. ICTR-2001-70-T , Judgement (TC), 1 December 2010, paras. 572,575. But see Appeals Chamber’s findings, Prosecutor v. Emmanuel Rukundo, Case No. ICTR-2001-70-A, Judgement (AC), 20 October 2010, paras. 235-238 (Below).

"572. Considering the general context of violence against the Tutsi in Gitarama préfecture and in Kabgayi, and, in particular, Rukundo’s participation in the systematic abduction and killing of Tutsi refugees at the St. Léon Minor Seminary on the basis of lists, as well as his statement that "something had to be done" about RPF sympathizers, the Chamber finds beyond reasonable doubt that Rukundo, when committing these crimes, possessed the intent to destroy, in whole or in part, the Tutsi ethnic group."

"575. Considering the general context of mass violence against the Tutsi in Gitarama préfecture and in Kabgayi, and, specifically, Rukundo’s words spoken prior to assaulting Witness CCH, that her entire family had to be killed for assisting the Inyenzi, the Chamber finds that Rukundo possessed the intent to destroy, in whole or in substantial part, the Tutsi ethnic group."

Prosecutor v. Emmanuel Rukundo, Case No. ICTR-2001-70-A, Judgement (AC), 20 October 2010, paras. 235-238:

"235. Central to the Trial Chamber’s finding of genocidal intent was Rukundo’s assertion that Witness CCH’s family had to be killed because one of her relatives was assisting the "Inyenzi". While evidence concerning the use of expressions such as "Inyenzi" can, in some circumstances, suffice to establish genocidal intent,576 the Appeals Chamber recalls that inferences drawn from circumstantial evidence must be the only reasonable inference available.577 In this particular context, the Appeals Chamber, Judge Pocar dissenting, considers that genocidal intent is not the only reasonable inference to be drawn from Rukundo’s assertion. In particular, the Appeals Chamber, Judge Pocar dissenting, observes that Rukundo’s language can plausibly be interpreted as expressing anger that a former friend was affiliated with the "Inyenzi", without signifying a personal desire to destroy Tutsis.578 This interpretation is supported by the fact that Rukundo’s statement did not frighten Witness CCH; according to her evidence, she only became frightened when Rukundo locked her in his room prior to assaulting her.579 The Appeals Chamber also notes that, after they entered the room together, Rukundo told Witness CCH that if he could have hidden her, he would have done so.580

236. The Appeals Chamber, Judge Pocar dissenting, also considers that the "general context of mass violence" cited by the Trial Chamber is insufficient to justify a finding of genocidal intent with respect to this incident. The Appeals Chamber, Judge Pocar dissenting, observes that the crime committed against Witness CCH was qualitatively different from the other acts of genocide perpetrated by Rukundo. In its analysis of events at Saint Joseph’s College and the Saint Léon Minor Seminary, the Trial Chamber relied on the systematic, repeated searches for Tutsis on the basis of identity cards or lists, and the subsequent killing or assault of those individuals removed, to conclude that the perpetrators, including Rukundo, had genocidal intent.581 By contrast, the Appeals Chamber, Judge Pocar dissenting, considers that Rukundo’s sexual assault of Witness CCH appears to have been unplanned and spontaneous.582 In this context, the Appeals Chamber, Judge Pocar dissenting, finds that his act could reasonably be construed as an opportunistic crime that was not accompanied by the specific intent to commit genocide. While this analysis does not alter the highly degrading and non-consensual nature of the act committed, the Appeals Chamber, Judge Pocar dissenting, considers that it supports the inference that Rukundo’s sexual assault, while taking place during a genocide, was not necessarily a part of the genocide itself.583

237. In light of this equivocal evidence, the Appeals Chamber, Judge Pocar dissenting, finds that no reasonable trier of fact could find that the only reasonable inference available from the evidence was that Rukundo possessed genocidal intent in relation to the sexual assault of Witness CCH. Consequently, the Appeals Chamber does not need to address Rukundo’s remaining arguments under this ground of appeal.

238. Accordingly, the Appeals Chamber, Judge Pocar dissenting, grants Rukundo’s Eighth Ground of Appeal and reverses his conviction for genocide, in part, for causing serious mental harm to Witness CCH. 580"

577 Ntagerura et al. Appeal Judgement, para. 306.

578 T. 13 February 2007 p. 58 ("I said hello to him, I introduced myself, and I told him that Father […] was a relative of mine, and then I asked him for protection, I asked him to hide me. And he answered as follows: ‘If Father […] is your relative, then you all have to die, because Father […] was assisting Inyenzi. He was my friend, but when he started helping the Inyenzi, he is no longer my friend. We do not even talk to each other. He’s no longer my friend.’ He went on to say that they had found some documents at Louis Rudahunga's place and who had to be killed, and that this document included a list of people who were making financial contributions to the Inkotanyi.").

579 See T. 14 February 2007 p. 19 ("If I told the Prosecutor that I was afraid, I was not afraid to carry the carton. I became afraid when I saw him lock the door with the key."). The Appeals Chamber notes that Witness CCH testified that she assisted Rukundo by carrying drinks into his room, explaining that she hoped Rukundo would choose to help her. T. 13 February 2007 p. 61; T. 14 February 2007 p. 9 ("When he said those words, he did not seem to be annoyed. I believed that he just might change his mind and do something for me.").

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1314-1318, 1399:

"1314. Steeped in knowledge, Beara became a driving force behind the murder enterprise. His vigorous efforts to organise locations and sites, recruit personnel, secure equipment and oversee executions all evidence his grim determination to kill as many as possible as quickly as possible. His encounters with Deronjić on the night of 13 July provide a chilling illustration of a mind set on destruction. He announces an intent to "kill all" the detained men, and without pause to consider or comment upon the horrific nature of his "orders" he launches into a series of heated exchanges about the best location for this reprehensible undertaking.

1315. Beara’s own words provide further evidence of his intent. He stated on 13 July:

"Shove them all on the playground, who gives a fuck about them. You mean they are doing it amongst themselves [killing themselves]? Well, excellent. Just let them continue. Fuck it."

Beara further stated on 14 July: We have a lot of prisoners and it is very hard for us to control them. They are at various locations in the Zvornik municipality. We have to get rid of them. I expect some assistance from the municipality.

1316. And there are his striking words to Krstić as he implores him for more men to carry out this nefarious crime: "I don’t know what to do. I mean it Krle. There are still 3500 ‘parcels’ that I have to distribute and I have no solution." These words capture clearly and succinctly the state of mind of a man bent on destroying a group by killing all the members of it within his reach.

1317. From his knowledge, his actions and his words, the Trial Chamber is satisfied beyond reasonable doubt of Beara’s genocidal intent.

1318. The factors which the Trial Chamber finds to be decisive in finding that Beara had the requisite specific intent for genocide are the scale and scope of the killing operation carried out with his knowledge, pursuant to his instructions and under his supervision, his extensive and forceful participation in all components of the killing operation, his demonstrated determination to kill as many as possible and his vital contribution in overcoming hurdles and challenges to effective implementation. Further, the systematic, exclusive targeting of Bosnian Muslims, the repetition by Beara of destructive and discriminatory acts and his words all evidence his genocidal intent. Further, his participation in these killings with knowledge that they would contribute to the destruction of the group also demonstrates his genocidal intent. Accordingly, the Trial Chamber is satisfied beyond reasonable doubt that Beara parti cipated in the JCE to Murder with genocidal intent. He is therefore guilty of genocide."

"1399. As indicated before, while the use of derogatory language may be of relevance in relation to genocidal intent, it does not in and of itself evidence such intent. This is particularly the case given the culture within the VRS and the Zvornik Brigade in which such language was commonplace. Further, the Trial Chamber has considered the proximity of Nikolić’s use of the language to the criminal acts but is not persuaded that this adds weight to the evidence as an indicator of genocidal intent. His words are captured at that time because he served as duty officer during the relevant period and again there is nothing to suggest this was other than a reflection of an unacceptable but common practice."

Prosecutor v. Ephrem Setako, Case No. ICTR-04-81-T , Judgement (TC), 25 February 2010, para. 472:

"472. Considering the nature of these events, the Chamber finds that the assailants intentionally killed these two groups of Tutsis. The selection of the victims was not by chance. Setako called for the killing of Tutsis at the camp on 25 April, and among the large number of persons there only members of this group were killed. In addition, the victims of the killings on 11 May were identified as Tutsis before the instruction to kill them was given. The Chamber has also heard extensive evidence of the targeting of Tutsis in Ruhengeri prefecture (II.3.1-.5). In this context, the only reasonable conclusion is that the assailants who perpetrated the killings possessed the intent to destroy, in whole or in substantial part, the Tutsi group."

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, paras. 240 – 244:

"240. Mr. Harland testified that on numerous occasions, members of the Bosnian Serb leadership expressed their resolve to achieve the stated objective at all costs, and that Radovan Karadžić, in particular, in his pre-conflict statements forecast the extermination of the Bosnian Muslim population in the event of war. Radovan Karadžić stated, "We will use this Serbian-supported war machine to make life impossible for civilians", to terrorise the civilians in order to reach a particular political goal.⁶⁰⁹

241. The following quotations provide insight into Radovan Karadžić state of mind at the relevant time:

• "They [Muslims] will disappear, that people will disappear from the face of the Earth . . . . They do not understand that there would be bloodshed and that the Muslim people would be exterminated. The deprived Muslims, who do not know where he is leading, to what he is leading the Muslims, would disappear . . .".⁶¹⁰

• "In just a couple of days, Sarajevo will be gone and there will be five hundred thousand dead, in one month Muslims will be annihilated in Bosnia and Herzegovina. . .".⁶¹¹

• "First, none of their leaders would survive, they’d all be killed in three to four hours. They’d stand no chance of surviving whatsoever".⁶¹²

• "This is the road that you want Bosnia and Herzegovina to take, the same highway of hell and suffering that Slovenia and Croatia went through. Don’t think you won’t take Bosnia and Herzegovina to hell and Muslim people in possible extinction. Because, Muslim people will not be able to defend itself if it comes to war here!"⁶¹³

• "What will we do if we get a state in which we are a minority? . . . They want us and the Croats to remain in a unified Bosnia so that we control the Muslims. We cannot be in that unified state. We well know, where fundamentalism arrives, you cannot live any more. . . . This conflict was incited so that the Muslims would not exist".⁶¹⁴

• "We certainly know that we must give up something – that is beyond doubt insofar as we want to achieve our first strategic goal: to drive our enemies by the force of war from their homes, that is, the Croats and Muslims, so that we will no longer be together in a state".⁶¹⁵

242. On 1 May 1992, Biljana Plavšić told Mr. Doyle, Lord Carrington’s personal representative, that if there was to be a division of territory, the Serbs deserved more territory, and if it took the lives of three million people to solve the problem, then they should get on with it.⁶¹⁶

243. Similarly, Dragan Kalinić, Minister of Health of Republika Srpska, said in May 1992, at the 16th RS Assembly in relation to Sarajevo, ". . . knowing who our enemies are, how perfidious they are, how they cannot be trusted until they are physically, militarily destroyed and crushed, which, of course, implies eliminating and liquidating their key people".⁶¹⁷

244. At the 34th Assembly of Republika Srpska from 27 August to 1 October 1993, Momčilo Krajišnik stated, "Believe me, it would be the greatest tragedy if the Muslims accepted to live together with us. You’ve seen how they engratiate [sic] themselves with the Croats. . . . [W]e might lose our state. I simply wouldn’t accept that; I would accept a lesser percentage than we have now in order to remain divided, that we have our state and not be with the Muslims".⁶¹⁸"

"609. Mr. Harland: T. 27004.

610. Ex. 613, tab 88 (intercepted communication with Gojko \ogo, dated 12 October 1991).

611. Ex. 613, tab 89 (intercepted communication with Mom~ilo Mandi}, dated 13 October 1991).

612. Ex. 613, tab 93 (intercepted communication with Miodrag Davidovi}, dated 15 October 1991).

613. Professor de la Brosse: Ex. 446, tab 33, at p. 3 (Radovan Karadžić speaking before the Bosnia and Herzegovina Parliament on 15 October 1991).

614. Dr. Donia: Ex. 537, tab 2, at p. 13 (17th RS Assembly session held on 24-26 July 1992).

615. Ex. 537, tab 2, at p. 64 (42nd RS Assembly session held on 18-19 July 1994); T. 26486.

616. T. 25292.

617. T. 26517; Ex. 537, tab 4, at p. 38.

618. Ex. 537, tab 4, at p. 11 (27th RS Assembly session held on 10 January 1994)."

Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10-T and ICTR-96-17-T, Judgement (TC), 21 February 2003, para. 826:

"826. In Section II.4 above, the Chamber found that a large number of men, women and children, who were predominantly Tutsi, sought refuge in the area of Bisesero from April through June 1994, where there was widespread violence during that period, in the form of attacks targeting this population on an almost daily basis. Witnesses heard attackers singing songs referring to the extermination of the Tutsi. The Chamber concludes that these attacks were carried out with the specific intent to destroy in whole the Tutsi population in Bisesero, for the sole reason of its ethnicity.¹¹⁶⁰"

"1160. See, II.4.4 to 4.25 in conjunction with II.4.2 supra."

Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 933:

"933. Accordingly, the Chamber notes that on the basis of the evidence presented, it emerges that acts of serious bodily and mental harm, including rape and other forms of sexual violence were often accompanied by humiliating utterances, which clearly indicated that the intention underlying each specific act was to destroy the Tutsi group as a whole. The Chamber notes, for example, that during the rape of Nyiramusugi Musema declared: "The pride of the Tutsis will end today". In this context, the acts of rape and sexual violence were an integral part of the plan conceived to destroy the Tutsi group. Such acts targeted Tutsi women, in particular, and specifically contributed to their destruction and therefore that of the Tutsi group as such. Witness N testified before the Chamber that Nyiramusugi, who was left for dead by those who raped her, had indeed been killed in a way. Indeed, the Witness specified that "what they did to her is worse than death"."

[B. Evidentiary comment:]

P.15.2. Evidence of the perpetrator expressing satisfaction after the commission of genocidal acts.

A. Legal source/authority and evidence:

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1179-80:

"1179. […] His own words at the outset of the operation, telling Momir Nikolic that "all the balija have to be killed" (emphasis added), are also evidence of his genocidal intent."

"1180. […] Even his own words, grading the success of the operation with a top mark,demonstrate his commitment to the destruction of the group.[…]"

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, para. 245:

"245. Other examples of statements by Radovan Karadžić are the following: "we have preserved 250,000 places of the living space where Muslims lived";⁶¹⁹ "we have no further reason to fight; we have liberated almost all that is ours";⁶²⁰ and "They will challenge us because of ethnic cleansing, . . . but we will say – Serbs have also been ethnically cleansed".⁶²¹ Following the take-over of Srebrenica in July 1995, Radovan Karadžić addressed the 54th Assembly of Republika Srpska in October 1995: "I . . . found General Krstić and advised him to go into the city and proclaim the fall of Srebrenica, and after that we will chase the Turks through the woods. I approved that radical mission, and I feel no remorse for it".⁶²²"

"619. Ex. 537, tab 4, at p. 11 (34th RS Assembly session held 27 August to 1 October 1993).

620. Ex. 537, tab 4, at p. 12 (17th RS Assembly session held 24-26 July 1992).

621. Ex. 537, tab 4, at p. 11 (42nd RS Assembly session in 18-19 July 1994)."

[B. Evidentiary comment:]

P.15.3. Evidence of the perpetrator having ordered or encouraged other to commit genocidal acts.

A. Legal source/authority and evidence:

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1496:

1496. The Chamber considers that Nizeyimana’s orders to return the family to the location from which they were first retrieved amounted to significant and substantial contributions to their deaths. In light of Nizeyimana’s awareness that the implementation of these instructions would lead to the killing of this family, the only reasonable conclusion is that he too possessed genocidal intent. The Chamber also finds that Nizeyimana was aware of the genocidal intent held by the principal perpetrators.

Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82, Judgement (TC), 3 August 2010, para. 454-456:

454. By instructing the mostly Tutsi refugees at Gisagara market to go to Kabuye hill, Ntawukulilyayo substantially contributed to their subsequent killings. His encouraging words to the displaced persons that they would be accommodated for at Kabuye hill facilitated their movement from the populated centre of Gisagara market to the relatively isolated Kabuye hill. This provided a tactical advantage to the attackers, who subsequently surrounded the refugees, and it removed the assault from the public eye. He provided further sanction and material support to the killings that followed at Kabuye hill by bringing soldiers there. Both his status as the highest administrative official in the sub-prefecture and his act of transporting soldiers to Kabuye hill clearly would, at a minimum, have lent encouragement and moral support to the principal perpetrators he transported there, even though his stay was brief.

455. No one expressly heard Ntawukulilyayo give instructions to the soldiers he brought to Kabuye hill. However, his prominent role in removing Tutsis from Gisagara market to Kabuye hill and his direct involvement in transporting assailants to there leads the Majority to the only reasonable conclusion that he ordered the assailants that he brought there to kill the Tutsi refugees. This finding accepts the possibility that similar orders may have been given by other civilian or military authorities. Nonetheless, Ntawukulilyayo’s position of authority, direct involvement and presence at the hill, even if brief, would have compelled the assailants to whom he had issued orders to kill.

456. Given the systemic and extensive nature of the attack, the Majority has no doubt that its purpose was to eliminate the primarily Tutsi refugees gathered on Kabuye hill and that the assailants possessed genocidal intent. Furthermore, the range of assailants, including soldiers and communal police, who participated in the assault just hours after Ntawukulilyayo sent refugees to Kabuye hill evinces considerable coordination. Indeed, Ntawukulilyayo’s arrival on Kabuye hill with soldiers would no doubt have required planning, given that they were not normally stationed within the sub-prefecture. Under the circumstances, there is no doubt that Ntawukulilyayo instructed refugees to go to Kabuye hill and transported soldiers there with the knowledge of the genocidal intent of the assailants and that his acts would assist the killings. The evidence firmly establishes that Ntawukulilyayo shared that genocidal intent.

Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D, Judgement (TC), 31 May 2012, para 887:

887. Having considered the totality of the evidence, the Chamber concludes that the Prosecution has proven beyond a reasonable doubt that on the afternoon of 14 April 1994, Nzabonimana held a meeting at Cyayi cellule, Kiyumba secteur, Nyabikenke commune, Gitarama préfecture, located approximately 250 to 300 metres from the commune office. Approximately 30 people were present at Cyayi centre, including Witness CNAI, Witness CNAX, Witness T193, Isaac Kamali and a Tutsi named Evariste Munyagatare. At this meeting, Nzabonimana said to those gathered: "I know that Hutus do not heed instructions. Do not continue to eat the cows of Tutsi who have sought refuge at the communal office. What really matters is not the cows; it is, rather, the owners of the cows that matter." Evariste Munyagatare challenged Nzabonimana after he spoke, and Nzabonimana said that their time had not yet come, but that it would come soon.

Prosecutor v. Fran?ois Karera, Case No. ICTR-01-74-T, Judgement (TC), 7 December 2007, paras 538-539:

"538. The Chamber is satisfied that Kabahaye, Murekezi, Ndingutse and Palatin Nyagatare were killed pursuant to Karera’s orders to the policemen and Interahamwe to kill Tutsi and destroy their homes, which were given between 7 and 15 April (II.4.5).

539. Karera’s orders to kill Tutsis demonstrate his genocidal intent. He was aware of the dangerously unstable environment, having evacuated his family from Nyamirambo for safety reasons (II.7), and knew that his order would lead to killings. His order to destroy houses of Tutsis as well as the destruction of the houses of Kahabaye and Felix Dix (II.4.5) also illustrate his intent. The Chamber sees no need to take into account Karera’s anti-Tutsi statement concerning school-children in Zaire in December 1994 (II.8.2)."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-A, Judgement (AC), 19 September 2005, paras. 80 – 81:

"80. The Appeals Chamber finds that the fact that the Appellant gave the order to attack the refugees at the Gikomero Parish Compound, thus starting a massacre which resulted in the death of a large number of Tutsi refugees, would already as such allow a reasonable trier of fact to find that the Appellant had a genocidal intent.

81. In addition, the Appeals Chamber notes that Witness GEK, who had been found "highly credible" by the Trial Chamber,¹⁶⁸ testified about the meeting that occurred sometime between 6 and 10 April 1994 at the home of the Appellant’s cousin in Gikomero:

"168. Trial Judgement, para. 272.

169. Trial Judgement, para. 273. Cf. Trial Judgement, para. 253, quoting T. 3 September 2001 pp. 170, 171."

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, Judgement (TC), 15 July 2004, paras. 458, 462:

"458. The Chamber has found that on two occasions, on 23 and 24 April 1994, the Accused travelled to Gitwa Hill, which was then the site of a gathering of thousands of Tutsi refugees encircled by an even larger number of primarily civilian attackers. On each of these occasions, the Accused distributed weapons to attackers taking part in the siege. Further, the Accused overtly encouraged, by his words or acts, the initiation of an attack against the Tutsi civilians sheltering on Gitwa Hill. On one occasion he said: ‘Go. There are Tutsi who have become difficult. There are Tutsi on the hill and they’ve proved to be difficult. You, therefore have to kill them, and when you kill them, you will be compensated." On a different occasion, the Accused said that the attackers ‘should implement the plan that was envisaged immediately’, meaning thereby that the Tutsi should be killed."

"462. The Accused instigated, and aided and abetted, this genocide at Gitwa Hill. He expressly urged the attackers to kill the "Tutsi" assembled there. He distributed machetes and, on at least one occasion, transported armed attackers to the site. He visited Gitwa Hill two occasions, distributing machetes and urging an attack on the Tutsi. By his words and deeds, the Accused manifested an intent that the Tutsi on Gitwa Hill, who numbered in the thousands, should be attacked and killed. Further, the Accused was well aware that his remarks and actions were part of a wider context of ethnic violence, killing and massacres Rwanda during this period.⁶⁰⁰ The Chamber finds that by urging the killing of the Tutsi Gitwa Hill, the Accused intended to destroy, in whole or in part, the Tutsi ethnic group."

"600. T. 25 November 2004 p. 14 ("Now, I knew that people were being massacred…"); T. 28 November 2004 p. 14 ("Q. Were massacres committed in Rwanda from around the 7th of April to about the middle of July?.... A. The massacres were committed….")."

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para. 258 - 259:

"258. The Chamber recalls that the phrase "destroy in whole or in part a[n] ethnic group" does not imply a numeric approach. It is sufficient to prove that the Accused acted with intent to destroy a substantial part of the targeted group.²⁴⁹ In this instance, the scale of the massacres and the fact that Tutsi were targeted, including in the incitement by the Accused, are sufficient proof thereof.

259. In its factual findings, the Chamber extensively considered the actions and utterances of the Accused. Thus, at the meeting of 9 April, the Accused urged the conseillers de secteur to incite the Hutu to kill the Tutsi. Similarly, in the morning of 13 April at the Nyakarambi market, on 14 April at the Rwanteru and Kanyinya trading centres, the Accused made similar utterances to the population, and on 17 April, he instigated the rape of Tutsi women and girls. Moreover, the Accused personally killed Murefu, a Tutsi, thereby signalling the beginning of the attack at Nyarubuye Parish on 15 April 1994.²⁵⁰ The Chamber finds that at the time of the events in Rusumo commune, which events have been established in the factual findings above, Sylvestre Gacumbitsi had the intent to destroy, in whole or in part, the Tutsi ethnic group."

"249. See ILC Report (1996), para. 8.

250. See supra: Chapter II, Parts B and C."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, paras. 637, 639:

"637. The Chamber has found that at a meeting occurring sometime between 6 April 1994 and 10 April 1994, at the home of his cousins in Gikomero commune, the Accused addressed those present, incited them to start killing Tutsi, and distributed grenades, machetes and guns to them to use and to further distribute. He also told the participants that he would return to see if they had started the killings, or so that the killings could start."

"639. The Majority of the Chamber has found that the Accused, after a conversing with Pastor Nkuranga, ordered the armed persons whom he brought to the Parish to "work" which, in this context, was understood by some witnesses as an order for the killings of the Tutsi refugees to start. The Majority of the Chamber agrees with the witnesses’ understanding that the Accused gave a verbal order to start the killings."

Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, Judgement (TC), 3 December 2003, paras. 957, 966 – 969:

"957. In ascertaining the intent of the Accused, the Chamber has considered their individual statements and acts, as well as the message they conveyed through the media they controlled."

"966. Ferdinand Nahimana, in a Radio Rwanda broadcast on 25 April 1994, said he was happy that RTLM had been instrumental in awakening the majority people, meaning the Hutu population, and that the population had stood up with a view to halting the enemy. At this point in time, mass killing – in which RTLM broadcasts were playing a significant part – had been ongoing for almost three weeks. Nahimana associated the enemy with the Tutsi ethnic group. His article Current Problems and Solutions, published in February 1993 and recirculated in March 1994, referred repeatedly to what he termed as the ‘Tutsi league’, a veiled reference to the Tutsi population as a whole, and associated this group with the enemy of democracy in Rwanda. As the mastermind of RTLM, Nahimana set in motion the communications weaponry that fought the ‘war of media, words, newspapers and radio stations’ he described in his Radio Rwanda broadcast of 25 April as a complement to bullets. Nahimana also expressed his intent through RTLM, where the words broadcast were intended to kill on the basis of ethnicity, and that is what they did.

967. Jean-Bosco Barayagwiza said in public meetings, ‘let’s exterminate them’ with ‘them’ being understood by those who heard it as a reference to the Tutsi population. After seperating the Tutsi from the Hutu and humiliating the Tutsi by forcing them to perform the Ikinyemera, their traditional dance, at several public meetings, Barayagwiza threatened to kill them and said it would not be difficult. From his words and deeds, Barayagwiza’s ruthless commitment to the destruction of the Tutsi population as a means by which to protect the political gains secured by the Hutu majority from 1959 is evident.

968. Hassan Ngeze wrote many articles and editorials, and made many statements that openly evidence his genocidal intent. In one such article he stated that the Tutsi ‘no longer conceal the fact that this war pits the Hutus against the Tutsis’.¹⁰⁸⁹ His Radio Rwanda broadcast of 12 June 1994 called on listeners not to mistakenly kill Hutu rather than Tutsi. Crass references to the physical and personal traits of Tutsi ethnicity permeate Kangura and his own writings in Kangura. Ngeze harped on the broad nose of the Hutu as contrasted with the aquiline nose of the Tutsi, and he incessantly described the Tutsi as evil. His role in saving Tutsi individuals whom he knew does not, in the Chamber’s view, negate his intent to destroy the ethnic group as such. Witness LAG heard him say, ‘[I]f Habyarimana were also to die, we would not be able to spare the Tutsi.’ Witness AEU heard Ngeze on a megaphone, saying that he was going to kill and extermintae all the Inyenzi, by which he meant the Tutsi, and as set forth above, Ngeze himself ordered an attack on Tutsi civilians in Gisenyi, evidencing his intent to destroy the Tutsi population.

969. Based on the evidence set forth above, the Chamber finds beyond a reasonable doubt that Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze acted with intent to destroy, in whole or in part, the Tutsi ethnic group. The Chamber considers that the association of the Tutsi ethnic group with a political agenda, effectively merging ethnic and political identity, does not negate the genodical animus that motivated the Accused. To the contrary, the identifiation of Tutsi individuals as enemies of the state associated with political opposition, simply by virtue of their Tutsi ethnicity, underscores the fact that their membership in the ethnic group, as such, was the sole basis on which they were targetted."

"1089. See paragraph 181."

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, paras. 819 – 820, 823 – 827:

"819. The Chamber found that at a meeting on the evening of 6 April 1994 following the death of the President of the Republic of Rwanda, at the Canteen next to the Nkuli Commune Office the Accused addressed those persons present – who were all of Hutu ethnic origin – saying to them ‘you very well know that it was the Tutsi that killed – that brought down the Presidential plane. What are you waiting for to eliminate the enemy?’ The Chamber found that by ‘the enemy’ the Accused meant the Tutsi ehtnic group.

820. The Chamber found that on the morning of 7 April 1994 the Accused reminded those present at the Nkuli Commune Office of the undertaking they had reached the previous evening and that it was now their ‘business to act’."

"823. The Chamber found that, at Byangabo market on the morning of 7 April 1994, between 8 and 9am, the Accused assembled members of the Interhamwe, and instructed them to ‘[k]ill and exterminate all those people in Rwankeri’ and to ‘exterminate the Tutsis’. He also ordered them to dress up and ‘start work’.

824. The Chamber found that Tutsi civilians were attacked or killed in Busogo Cellule, Mukingo Commune, in their residence or at their places of shelter on 7 April 1994. The Chamber found that the Accused participated in this attack by directing the Interahamwe from Byangabo market towards Rwankeri Cellule, to join the attack, and by acting as a liaison with Mukamira camp for military and weapons assitance. The Interahamwe attackers at Busogo Hill formed part of a much larger group of people who were attacking the Tutsis in Busogo. This attack killed approximately 80 entire Tutsi families.

825. The Chamber found that Prosecution Witness GDD, an Interahamwe member, went out on the 8 April 1994 and murdered 8 Tutsis in Gitwa secteur in the Nkuli commune. His victims, who he was able to name, were a Tutsi woman and seven children, who were of mixed Tutsi and Hutu ethnicity. The Chamber found that Witness GDD committed these murders, in furtherance of the Accused’s orders to ‘fine comb’ the Nkuli commune for Tutsis.

826. The Chamber found a woman who was thought to be Tutsi and her son were singled out at a roadblock in front of Witness GDQ’s house on 8 April 1994, and subsequently killed by an Interahamwe named Musafiri. Kanoti, a Hutu man who was also present, and accompanying these victims, was not killed. The Accused was present at the roadblock during this event and was heard saying, ‘No Tutsi should survive at Mukingo’."

"827. The Chamber found that, on 8 April 1994, the Accused and the Interahamwe were inspecting bodies and searching for survivors. Witness GBH pleaded with the Accused to stop the killings, however, in the words of GBH, the Accused responded by saying ‘that it was necessary to continue, look for those or hunt for those who had survived’."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 429:

"429. In addition to having knowledge of the genocidal intent of the principal perpetrators at the various massacre sites in Bicumbi and Gikoro communes, the Chamber finds that the Accused possessed an independent intent to destroy the Tutsi ethnical group, as such. The trial record provides clear and unequivocal evidence of the Accused’s genocidal intent at the time of the massacres at Musha church. The Chamber has inferred the Accused’s specific intent to aid and abet in the commission of genocide from his actions and from his words. On 8 or 9 April 1994, the Accused told Bisengimana that the church had to be burned to kill the predominantly Tutsi refugees inside. In addition, the Accused’s specific intent to destroy the Tutsi group, as such, is reflected by the fact that he instructed soldiers to separate Hutu from Tutsi, who were then killed by gunfire and grenades. Moreover, the Chamber infers the Accused’s genocidal intent from the statement he made to the principal attackers after they had completed the killings at Mabare mosque on 12 April 1994: "We came to assist you, and I believe that those who have not been killed would not be able to resist you. Go and find them and exterminate them."

Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10-T and ICTR-96-17-T, Judgement (TC), 21 February 2003, para. 789:

"789. From his presence and actions in relation to the attack at the Complex, from the letter he received on the eve of the attack, in which the Tutsi Pastors plead for his assistance adding, "tomorrow we shall die with our families", Elizaphan Ntakirutimana knew that Tutsi, in particular, were being targeted for attack, and that by transporting attackers to the Complex, he would be assisting in the attack against the Tutsi. The Chamber has also taken into account his actions in Bisesero, for instance, transporting armed attackers to various parts of Bisesero and pointing out Tutsi refugees to the armed attackers who then attacked these refugees, and ordering attackers to remove the roof of Murambi Church so that it could not be used as a hiding-place for Tutsi. Based on the totality of the evidence before it, the Chamber finds that Elizaphan Ntakirutimana had the requisite intent to commit genocide, that is, the intent to destroy, in whole the Tutsi ethnic group."

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 399:

"399. The Chamber notes that many corroborating testimonies presented at trial show that the Accused actively participated in the widespread attacks and killings committed against the Tutsi group. The Chamber is satisfied that the Accused, who held a position of authority because of his social standing, the reputation of his father and, above all, his position within the Interahamwe, ordered and abetted in the commission of crimes against members of the Tutsi group. He also directly participated in committing crimes against Tutsis. The victims were systematically selected because they belonged to the Tutsi group and for the very fact that they belonged to the said group. As a result, the Chamber is satisfied beyond any reasonable doubt that, at the time of commission of all the above-mentioned acts which in its opinion are proven, the Accused had indeed the intent to destroy the Tutsi group as such."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 542, 556:

"542. Witnesses heard Ruzindana giving orders to the Hutu attackers in the Bisesero area. Specifically, some testified about Ruzindana’s statements about not sparing babies whose mothers had been killed because those attacking the country initially left as children.²⁷⁸ The Trial Chamber also heard evidence of Ruzindana’s anti-Tutsi utterances to the assailants, saying that the Tutsi refugees were "the enemy.""

"278. Trans., 14 Oct. 1997, p. 17."

"556. […] Kayishema instigated the attacks by ordering the attackers to "shoot those Tutsi dogs" and by firing the first shot into the Stadium. […]"

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 118-119, 729:

"118. […]In this connection, Alison Desforges, an expert witness, in her testimony before this Chamber on 25 February 1997, stated as follows:

119. […] Witness OO further told the Chamber that during the same meeting, a certain Ruvugama, who was then a Member of Parliament, had stated that he would rest only when no single Tutsi is left in Rwanda."

"729. First of all, regarding Akayesu's acts and utterances during the period relating to the acts alleged in the Indictment, the Chamber is satisfied beyond reasonable doubt, on the basis of all evidence brought to its attention during the trial, that on several occasions the accused made speeches calling, more or less explicitly, for the commission of genocide. The Chamber, in particular, held in its findings on Count 4, that the accused incurred individual criminal responsibility for the crime of direct and public incitement to commit genocide. Yet, according to the Chamber, the crime of direct and public incitement to commit genocide lies in the intent to directly lead or provoke another to commit genocide, which implies that he who incites to commit genocide also has the specific intent to commit genocide: that is, to destroy, in whole or in part, a national, ethnical, racial or religious group, as such."

[B. Evidentiary comment:]

P.15.4. Evidence of persons encouraging the commission of genocidal acts on behalf or under the control of the perpetrator.

A. Legal source/authority and evidence:

Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, Judgement (TC), 3 December 2003, paras. 957 – 965, 969:

"957. In ascertaining the intent of the Accused, the Chamber has considered their individual statements and acts, as well as the message they conveyed through the media they controlled.

958. On 15 May 1994, the Editor-in-Chief of RTLM, Gaspard Gahigi, told listeners:

959. The RTLM broadcast on 4 June 1994 is another compelling illustration of genocidal intent:

960. Even before 6 April 1994, RTLM was equating the Tutsi with the enemy, as evidenced by its broadcast of 6 January 1994, with Kantano Habimana asking, ‘Why should I hate the Tutsi? Why should I hate the Inkotanyi?’

961. In an article published by Kangura in January 1994, Hassan Ngeze wrote:

962. In perhaps its most graphic expression of genocidal intent, the cover of Kangura No. 26 answered the question ‘What Weapons Shall We Use to Conquer the Inyenzi Once And For All?’ with the depition of a machete. That the Tutsi ethnic group was the target of the machete was clear from another quote on the same cover: ‘How about re-launching the 1959 Bahutu revolution so that we can conquer the Inyenzi-Ntutsi.’ The same cover also bore the headline ‘The Batutsi, God’s Race!’¹⁰⁸⁸

963. Kangura and RTLM explicitly and repeatedly, in fact relentlessly, targeted the Tutsi population for destruction. Demonizing the Tutsi as having inherently evil qualities, equating the ethnic group with ‘the enemy’ and portraying its women as seductive enemy agents, the media called for the extermination of the Tutsi ethnic group as a response to the political threat that they associted with Tutsi ethnicity.

964. The genocidal intent in the activities of the CDR was expressed through the phrase ‘tubatsembasembe’ or ‘let’s exterminate them’, a slogan changed repeatedly at CDR rallies and demonstration. At a policy level, the CDR communiques called on the Hutu population to ‘neutralize by all means possible’ the enemy, defined to be the Tutsi ethnic group."

965. The editorial policies as evidenced by the writings of Kangura and the broadcasts of RTLM constitute, in the Chamber’s view, conclusive evidence of genocidal intent. Individually, each of the Accused made statements that further evidence of his genocidal intent.

"1085. See paragraph 392.

1086. See paragraph 396.

1087. See paragraph 215.

1088. See paragraph 160."

[B. Evidentiary comment:]

P.15.5. Evidence of the perpetrator using perjorative terms towards members of that group.

A. Legal source/authority and evidence:

Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Judgement (AC), 12 March 2008, para. 180:

"180. Moreover, the Trial Chamber referred to the testimony of Witness CBR, who it deemed credible,426 CBR testified that on 15 April 1994, already before the destruction of the church on 16 April 1994, Athanase Seromba ordered that the "saleté"427 lying on the ground be removed. By "saléte" Athanase Seromba alluded to the bodies of the Tutsi refugees that had been killed during the attacks launched on 15 April 1994.428 As such left undisturbed by the Trial Chamber, CBR’s account of the events was in essence confirmed by Witness CNJ,429 also found credible by the Trial Chamber.430 Consequently, the Trial Chamber found at paragraph 191 of the Trial Judgement that,

it has been proven beyond a reasonable doubt that on 15 April 1994, Athanase Seromba asked the assailants, who were preparing to attack the Tutsi in the presbytery courtyard, to stop the killings and to first remove the bodies. The Chamber also finds that the attacks against Tutsi refugees resumed after the bodies had been removed.

In this context, the Appeals Chamber also recalls again the testimony of Witness CBK, on which the Trial Chamber relied, upheld by the Appeals Chamber,431 in that Athanase Seromba stated:

"Destroy the church. We, the Hutu, are many in number and, furthermore, in the house of God. Demons have gotten in there."432

426 Trial Judgement, para 179.

427 The Appeals Chamber notes that this word is constantly used in the French original of the Trial Judgement, whereas

the translation sometimes refers to "filth" and on other occasions to "rubbish."

428 Trial Judgement, para. 164.

429 See T. 24 January 2005 p. 14 ("[…] Father Seromba prevented us from entering and he told us, first of all, remove

the dead bodies that were in front of the secretariat. […] These were the Tutsis whom we were pursuing. […]").

430 Trial Judgement, paras. 165, 180.

431 See supra, paras. 115, 116.

432 T. 19 October 2004 pp. 25-26 (closed session) (emphasis added).

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para. 253:

"253. Evidence of genocidal intent can be inferred from "the physical targeting of the group or their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning, the systematic manner of killing".²³⁸ […]"

"238. Kayishema and Ruzindana Judgment (TC), para. 93; kajelijeli Judgment (TC), para. 86."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 75:

"75. […] Goran Jelisić made scornful and discriminatory remarks about the Muslim population. Often, Goran Jelisić insulted the Muslims by calling them "balijas" or "Turks"¹⁰². Of one detainee whom he had just hit, Goran Jelisić allegedly said that he must be have been mad to dirty his hands with a "balija" before then executing him¹⁰³."

"102. Witness A, FPT p. 45; Witness F, FPT p. 248.

103. Witness F, FPT p. 248."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 93, 293, 538 – 540, 556:

"93. […] The Chamber finds that the intent can be inferred either from words or deeds and may be demonstrated by a pattern of purposeful action.40 In particular, the Chamber considers evidence such as […] the use of derogatory language toward members of the targeted group […]."

40 Wisconsin International Law Journal, 243 (1996).

"175. See the testimonies of Witnesses G, U and Z explaining that Inkotanyi meant "all the Tutsis" or the "enemy"."

"538. Kayishema’s utterances, as well as utterances by other individuals under his direction before, during and after the massacres, also demonstrate the existence of his specific intent. Tutsis were called Inkotanyi meaning an RPF fighter or an enemy of Rwanda, Inyenzi meaning cockroach. They also were referred to as filth or dirt. Witness WW testified how she heard the Tutsi were being referred to as "dirt" when Kayishema told Bourgmestre Bagilishema that "all the dirt has to be removed,"²⁷⁴referring to the Tutsis who had sought shelter in the communal office. During the attacks at the Stadium, Kayishema called the Tutsi: "Tutsi dogs" and "Tutsi sons of
bitches," when instigating the attackers to kill the Tutsis gathered there.

539. The Chamber also finds that Kayishema used a megaphone to relay a message from Kigali encouraging the extermination of the Tutsis during the attack at the Complex. Several witnesses who survived the massacres at the Complex heard Kayishema say "go to work" or "get down to work"²⁷⁵ which, as many witnesses affirmed, meant to begin killing the Tutsis. Other witnesses testified to having heard the attackers, including members of the Interahamwe, who were de facto under Kayishema’s control, sing songs about exterminating the Tutsi.²⁷⁶ The Trial Chamber accepts Prosecution exhibit 297, tendered through Witness HH, which was a transcription of the lyrics of one of these extermination songs. Essentially, the song urges attackers not to spare the elderly and even the babies because Kagame (the then RPF leader) left Rwanda as a child.²⁷⁷ Again, the Chamber notes the common intention of the attackers with that of Kayishema.

540. In sum for all the reasons stated above the Chamber finds beyond a reasonable doubt that Kayishema had the intent to destroy the Tutsi group in whole or in part and, in pursuit of that intent, carried out the acts detailed below."

"274. Trans., 19 Feb. 1998, p.34 and Chapter on Genocide in Kibuye

275. See supra (discussing Factual Findings).

276. See testimony of witnesses F, W, B, PP,NN.

277. See Chapter 5.4 , supra (Bisesero Factual Findings.)."

"556. […] Kayishema instigated the attacks by ordering the attackers to "shoot those Tutsi dogs" and by firing the first shot into the Stadium."

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 513:

"513. Was there a genocidal intent? Some elements emerging from the facts including the scale of atrocities and the systematic nature of the attacks, killing, displacement and rape, as well as racially motivated statements by perpetrators that have targeted members of the African tribes only, could be indicative of the genocidal intent. […]"

[B. Evidentiary comment:]

P.16. Exculpatory: Evidence of perpetrator’s statements from which intention to destroy that group cannot be inferred.

P.16.1. Evidence of mere discriminatory intent.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 986 – 987:

"986. In his utterances, the Accused openly derided and denigrated Bosnian Muslims and Bosnian Croats. He also stated publicly that only a small percentage of them could remain in the territory of the ARK. Some of the Accused’s utterances are openly nasty, hateful, intolerable, repulsive and disgraceful. On one occasion, speaking in public of mixed marriages, he remarked that children of such marriages could be thrown in the Vrbas River, and those who would swim out would be Serbian children. On another occasion, he publicly suggested a campaign of retaliatory ethnicity-based murder, declaring that two Muslims would be killed in Banja Luka for every Serbian killed in Sarajevo.²⁴⁷⁸

987. Whilst these utterances strongly suggest the Accused’s discriminatory intent, however, they do not allow for the conclusion that the Accused harboured the intent to destroy the Bosnian Muslims and Bosnian Croats of the ARK.²⁴⁷⁹"

"2478. See VIII.C. supra, "The Accused’s propaganda campaign".

2479. There is evidence that his intent may have instead been limited to forcibly displacing them from the ARK. Describing another of the Accused’s speech, one witness noted that: "He said that Muslims could not stay in Banja Luka, that their safety and security should be dealt with in other ways, primarily by moving them out": BT-55, T. 17553. See also, referring to Prijedor, Barney Mayhew, ex. P1617, T. 6047: "[T]here was a predominant aim, it seemed, to drive out at least enough of the Muslim population to be certain that the number remaining could be of no threat at all and would be fully subdued". See X. C. infra, "Mitigating circumstances"."

[B. Evidentiary comment:]

P.16.2. Evidence of mere support for the war.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 988:

988. Finally, the Prosecution makes much of the speech made by the Accused following Dragan Kalinic’s speech during the 16th session of the SerBiH Assembly, held on 12 May 1992.²⁴⁸⁰ Dragan Kalinic, a delegate from Sarajevo and later SerBiH Health Minister, is recorded as stating : "Have we chosen the option of war or the option of negotiation? I say this with a reason and I must instantly add that knowing who our enemies are, how perfidious they are, how they cannot be trusted until they are physically, militarily destroyed and crushed, which of course implies eliminating and liquidating their key people. I do not hesitate in selecting the first option, the option of war." The Accused began his own speech by applauding the speech made by Dragan Kalinic: "I would like to say a heart-felt bravo to Mr. Kalinic. In all my appearances in this joint Assembly, it has never crossed my mind that though he seems to be quiet, while I seem hawkish, his opinions are the closest to mine. I believe that this is a formula and we should adhere to this formula."²⁴⁸¹ This speech is not unequivocal. The most that can safely be gleaned from it is that the Accused ultimately endorsed the war option, as suggested by Dragan Kalinic, and not the negotiation option. His response to Kalinic does not allow the finding that he had genocidal intent."

"2480. Prosecution Final Brief, para. 588.

2481. Ex. P50, "Minutes of the 16th session of the SerBiH Assembly held on 12 May 1992", pp. 22, 29-30."

[B. Evidentiary comment:]

P.16.3. Exculpatory: Evidence of lack of use of perjorative terms towards members of that group.

A. Legal source/authority and evidence:

Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para.554:

"554. Even though Dr. Stakic helped to wage an intense propaganda campaign against Muslims, there is no evidence of the use of hateful terminology by Dr. Stakic himself from which the dolus specialis could be inferred. Statements made by Dr. Stakic do not publicly advocate killings and while they reveal an intention to adjust the ethnic composition of Prijedor, the Trial Chamber is unable to infer an intention to destroy the Muslim group. This inference cannot be drawn from Dr. Stakic’s remark that Muslims in Bosnia "were created artificially"¹¹⁷⁶ and his interview in January 1993 with German television, while demonstrating intolerance of Muslims, advocated the removal of "enemy" Muslims from Prijedor rather than the physical elimination of all Muslims. The interview concludes with the statement : "those who stained their hands with blood will not be able to return. Those others, if they want…when the war ends, will be able to return".¹¹⁷⁷ The intention to displace a population is not equivalent to the intention to destroy it."

"1176. Exh. S187, p. 5; T. 5692.

1177. Exh. S365-1, p. 4."

[B. Evidentiary comment:]

P.17. Evidence of the perpetrator’s participation in meetings where genocidal acts were planned.

A. Legal source/authority and evidence:

Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T, Judgement (TC), 1 December 2010, para. 653:

"653. The Chamber recalls that genocidal intent may be inferred from the facts. In this case the Accused attended a meeting at which the demolition of the Nyange Church was discussed, that he suggested to others that the church should be destroyed and that he was present during the attacks on the Tutsi on the morning of 15 April 1994, including when Ndahimana instructed the assailants to start working, which was understood to mean "kill the Tutsi". The Accused was also seen repeatedly on 15 and 16 April 1994 in the presence of individuals such as Ndahimana, Kayishema and Ndungutse, who were overseeing and directing the attacks. Having considered the totality of the evidence, the Chamber finds it established beyond reasonable doubt that Kanyarukiga acted with the special intent to destroy the Tutsi ethnic group, either in whole or in part."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-A, Judgement (AC), 19 September 2005, para. 81:

"168. Trial Judgement, para. 272.

169. Trial Judgement, para. 273. Cf. Trial Judgement, para. 253, quoting T. 3 September 2001 pp. 170, 171."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 637:

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC), 16 May 2003, para. 251 – 252, 418

"251. Based on the totality of the evidence, the Chamber finds that on 3 May 1994, from around noon to between 4.00 p.m. and 5.00 p.m., the Accused attended and spoke at a large meeting at Kibuye Prefectural Office held at the initiative of the Interim Government, which was also attended by officials and representatives of political parties, churches and civil society. The meeting was called ostensibly for pacification purposes; however, the killings and deteriorating security situation in Kibuye were not condemned. At the meeting, the Prime Minister, Jean Kambanda, referred to Tutsi as "Inkotanyi" and "accomplices", and asked for the crowd to be vigilant against them as they were the enemy. He also said that they had infiltrators everywhere in the country who had to be rooted out. He denounced the previous government as being made up of Inkotanyi accomplices.²²⁸

252. The Accused addressed the meeting and supported the calling of the meeting. He expressed support for the Interim Government and Jean Kambanda. The Chamber finds, from the content of the discussions and the Accused’s conduct and words spoken at the meeting, that the Accused supported actions or inaction in failing to protect the Tutsi population, which resulted in the deaths of many Tutsi victims."

"418. In this regard, the Chamber has also taken into consideration the Accused’s attendance and participation at meetings held to plan and organize the killing of Tutsi in Bisesero (see II.3.1.3 above), his acts of incitement (see II.4.2.4, and II.4.4.4. above), and his expression of support at the 3 May meeting of the Prime Minister, Jean Kambanda, and the Interim Government, and actions or inactions in failing to protect the Tutsi population (see II.4.3.4 above)."

"228. Kambanda pleaded guilty to genocide before the Tribunal and was convicted on 4 September 1998."

P.18. Evidence of provision of logistical support for the commission of genocidal acts.

P.18.1. Evidence that the perpetrator provided weapons.

A. Legal source/authority and evidence:

Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D, Judgement (TC), 31 May 2012, para 1527, 1538:

1527. The Chamber considers that Witness CNAK, a Hutu, provided clear and plausible testimony as to how he came to be an eyewitness at the weapons distribution which occurred at the Tambwe commune office. Witness CNAK testified that he accompanied his roommate, who was a killer during the genocide, to the commune office. The Chamber notes that Defence Witness T97 corroborated Witness CNAK’s testimony that Witness CNAK’s roommate "did not conduct himself well" during the killings. Furthermore, although Witness CNAK did not know the name of the individual who accompanied Nzabonimana and Witness T92, the witness described him as a military officer who was responsible for Civil Defence. Witness T92 gave corroborating evidence that Jean-Damascene Ukirikyeyezu was a Major and was President of Civil Defence in Gitarama.

1538. The Chamber concludes that Witness CNAK provided a credible, consistent and reliable first-hand account of the weapons distribution at the Tambwe commune office. The Chamber recalls that it may find an allegation proven beyond a reasonable doubt on the basis of a single, uncorroborated witness’s testimony (2.7.4). Having considered the totality of the evidence, the Chamber concludes that the Prosecution has proven beyond a reasonable doubt that towards the end of April or early May 1994, Nzabonimana brought weapons to the Tambwe commune office which were subsequently distributed to the population. The Chamber also finds that the Prosecution has proven beyond a reasonable doubt that Nzabonimana spoke and he said they had brought the weapons so that they could take charge of their own protection and ensure the security of the country from the enemy; the enemy meaning Tutsis.

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, Judgement (TC), 15 July 2004, paras. 458, 462:

"462. The Accused instigated, and aided and abetted, this genocide at Gitwa Hill. He expressly urged the attackers to kill the "Tutsi" assembled there. He distributed machetes and, on at least one occasion, transported armed attackers to the site. He visited Gitwa Hill two occasions, distributing machetes and urging an attack on the Tutsi. By his words and deeds, the Accused manifested an intent that the Tutsi on Gitwa Hill, who numbered in the thousands, should be attacked and killed. Further, the Accused was well aware that his remarks and actions were part of a wider context of ethnic violence, killing and massacres Rwanda during this period.600 The Chamber finds that by urging the killing of the Tutsi Gitwa Hill, the Accused intended to destroy, in whole or in part, the Tutsi ethnic group."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 637:

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC), 16 May 2003, paras. 411, 419:

"411. The Chamber found, in II.2.1.4 above, that on 10 April 1994, in Gisovu, the Accused and three soldiers transported guns. Approximately ten days after 6 April 1994, the Accused procured gendarmes for an attack on Mubuga Church against Tutsi, whom he called "Inyenzi", sheltering inside. These gendarmes took ammunition, grenades and bullets with them to the attack (see II.2.2.4 above)."

"419. Based on the above, together with the Accused’s leadership role and personal participation in attacks in Bisesero, where the Interahamwe were chanting "Let’s exterminate them", being a reference to the Tutsi; the Accused’s association with officials and prominent figures at these attacks; his acts of shooting at Tutsi during these attacks; his act of killing the old man and young boy, both Tutsi, his transportation of weapons and procurement of gendarmes for an attack on Mubuga Church against the Tutsi hiding inside, the Chamber finds that the Accused perpetrated these acts with the requisite intent to destroy, in whole or in part, the Tutsi ethnic group."

Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10-T and ICTR-96-17-T, Judgement (TC), 21 February 2003, para. 793:

"793. Considering his killing of Charles Ukobizaba and his shooting at Tutsi refugees at the Complex, his participation in this attack, including procuring ammunition and gendarmes for the attack, together with his killing of Esdras, son of Munyandinda (a Tutsi) and shooting at Tutsi refugees during attacks in various parts of Bisesero, the Chamber finds that Gérard Ntakirutimana had the requisite intent to destroy, in whole, the Tutsi ethnic group."

[B. Evidentiary comment:]

P.18.2. Evidence that the perpetrator procured gendarmes.

A. Legal source/authority and evidence:

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC), 16 May 2003, paras. 411, 419:

Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10-T and ICTR-96-17-T, Judgement (TC), 21 February 2003, para. 793:

[B. Evidentiary comment:]

P.18.3. Evidence that the perpetrator provided transportation.

A. Legal source/authority and evidence:

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, Judgement (TC), 15 July 2004, paras. 459, 462:

459. On one of the two visits, the Accused transported some fifty civilians, identified as Interahamwe, to Gitwa Hill to join the attackers. These Interahamwe were traveling in a truck in convoy with the Accused."

"462. The Accused instigated, and aided and abetted, this genocide at Gitwa Hill. He expressly urged the attackers to kill the "Tutsi" assembled there. He distributed machetes and, on at least one occasion, transported armed attackers to the site. He visited Gitwa Hill two occasions, distributing machetes and urging an attack on the Tutsi. By his words and deeds, the Accused manifested an intent that the Tutsi on Gitwa Hill, who numbered in the thousands, should be attacked and killed. Further, the Accused was well aware that his remarks and actions were part of a wider context of ethnic violence, killing and massacres Rwanda during this period.600 The Chamber finds that by urging the killing of the Tutsi Gitwa Hill, the Accused intended to destroy, in whole or in part, the Tutsi ethnic group."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 638:

"638. The Chamber has found that the Accused arrived at the Gikomero Parish Compound in the early afternoon of 12 April 1994 in a white pick-up vehicle and was accompanied by armed people in the back of the pick-up."

Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10-T and ICTR-96-17-T, Judgement (TC), 21 February 2003, paras. 788 – 789, 829 – 830, 834:

"788. At para. 310 in Section II.3.8.3 (e) above (see also paras. 283-285 in II.3.8.3(c)), the Chamber found that Elizaphan Ntakirutimana conveyed armed attackers to the Mugonero Complex in his vehicle on the morning of 16 April 1994, and that these attackers proceeded to kill Tutsi refugees at the Complex. Considering his position of authority in the community as a senior pastor, the Chamber finds that his act of personally driving armed attackers in his own vehicle to the scene of the attack, his association with these armed attackers, and his presence at the scene of the attack at the Complex, constituted practical assistance and encouragement to these attackers, which substantially contributed to the commission of the crime of genocide by these attackers.

789. From his presence and actions in relation to the attack at the Complex, from the letter he received on the eve of the attack, in which the Tutsi Pastors plead for his assistance adding, "tomorrow we shall die with our families", Elizaphan Ntakirutimana knew that Tutsi, in particular, were being targeted for attack, and that by transporting attackers to the Complex, he would be assisting in the attack against the Tutsi. The Chamber has also taken into account his actions in Bisesero, for instance, transporting armed attackers to various parts of Bisesero and pointing out Tutsi refugees to the armed attackers who then attacked these refugees, and ordering attackers to remove the roof of Murambi Church so that it could not be used as a hiding-place for Tutsi. Based on the totality of the evidence before it, the Chamber finds that Elizaphan Ntakirutimana had the requisite intent to commit genocide, that is, the intent to destroy, in whole the Tutsi ethnic group."

"829. By transporting attackers in his vehicle to the scene of the attacks, instructing them to pursue Tutsi refugees and pointing out the locations of Tutsi refugees in Bisesero, Elizaphan Ntakirutimana provided practical assistance and encouragement to the armed attackers, which substantially contributed to the commission of the crime of genocide by these attackers, as established at para. 826 above.

830. From his presence and participation in attacks in Bisesero, from the fact that at certain occasions, he was present when attackers he had conveyed set upon chasing Tutsi refugees nearby, singing songs about exterminating the Tutsi, Elizaphan Ntakirutimana knew that Tutsi in particular were being targeted for attack, and that by transporting armed attackers to Bisesero and pointing out Tutsi refugees to the attackers, he would be assisting in the killing of the Tutsi in Bisesero. The Chamber has also taken into account his act of conveying to the Mugonero Complex attackers who proceeded to kill Tutsi. Having considered all the evidence, the Chamber finds that Elizaphan Ntakirutimana had the requisite intent to commit genocide, that is, the intent to destroy, in whole, the Tutsi ethnic group."

"834. The Chamber finds that in shooting and killing Esdras and the wife of Nzamwita, in pursuing and shooting at the refugees, in transporting and leading armed attackers in the attacks, and considering his participation in attacks against Tutsi refugees in Mugonero Complex, in particular his murder of Charles Ukobizaba, Gérard Ntakirutimana had the requisite intent to destroy, in whole, the Tutsi ethnic group."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 536:

"536. In the area of Bisesero the attacks continued for several months; April, May and June of 1994. At Bisesero, evidence proves that Kayishema was leading and directing the attacks. The attackers were transported by government buses and other vehicles. This Chamber finds that Ruzindana brought the Hutu attackers in his personal vehicles and that Kayishema did the same in the trucks belonging to the Prefecture. The assailants included the local officials such as the bourgmestres, counseillers, communal police, the gendarmerie nationale, members of the Interahamwe, other soldiers as well as the accused themselves."

[B. Evidentiary comment:]

P.19. Evidence of the perpetrator leading others in the commission of genocidal acts.

A. Legal source/authority and evidence:

Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D, Judgement (TC), 31 May 2012, para. 1712-1717:

1712. The Chamber considers that, particularly when viewed in context, Nzabonimana’s remarks substantially contributed to the successful attack upon the commune office. The Chamber recalls its finding that Nzabonimana was an influential figure in Gitarama prefecture and that Nzabonimana originated from Nyabikenke commune (3.1.3).

1713. Prior to Nzabonimana’s exhortations to the population at Cyayi centre to kill Tutsis at the commune office before taking their property, the attempted attack on the commune office had been unsuccessful. Commune policemen and members of the population assisted in repelling the attacks upon the commune office. Following Nzabonimana’s address at Cyayi centre, commune policemen and members of the population successfully attacked the commune office with the only resistance coming from the refugees themselves.

1714. In addition, after Nzabonimana’s speech at Cyayi centre, the attacks escalated in their intensity and character. Whereas during the attack upon Ntarabana Parish (3.4.5.3.1) and during the unsuccessful attack upon the commune office of 13 April 1994, the assailants used only traditional weapons (3.5.2.3.2), on 15 April 1994, the assailants used firearms and grenades.

1715. Having considered the totality of the evidence, the Chamber concludes that the only reasonable inference from this circumstantial evidence is that Nzabonimana substantially contributed to the continuance and ultimate success of the genocidal attack upon the commune office in which between 15 and 60 Tutsis were killed, including the individual who Nzabonimana threatened at Cyayi centre.

1717. The Chamber also finds that by threatening a Tutsi and saying that Tutsis should be massacred at Cyayi centre on 14 April 1994, Nzabonimana prompted others to act and to continue the genocidal attack upon the commune office, and that Nzabonimana intended to do so. There is no doubt that, at the time of Nzabonimana’s prompting, he knew of the genocidal intent of his audience, particularly given the meeting’s temporal and physical proximity to the recent attack on the commune office. Nzabonimana’s knowledge of this specific intent is further demonstrated through his reminder to the attendees that their killing of Tutsis should take place before, rather than after, the taking of Tutsi property. The Chamber also notes the extensive circumstantial evidence of Nzabonimana’s genocidal intent, set out below.

Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36A-T, Judgement (TC), 5 July 2010, para. 500:

"500. The Trial Chamber also finds that the only reasonable inference that can be drawn from the evidence adduced at trial is that in leading the attacks on these places of refuge, the Accused was aware that the attacks were part of a context of widespread attacks on Tutsi civilians. The two attacks together resulted in thousands of civilian deaths, and there is no evidence that the Hutu staff and gendarmes present at the parishes on the days in question were targeted together with the Tutsis who had sought refuge at the parishes. Whether Munyakazi led the attacks because he shared an animosity towards Tutsis or because he sought to curry favour with political associates or authorities, the Trial Chamber finds that in leading the attacks, Munyakazi shared the specific intent to eliminate the protected group that had sought refuge at these two parishes."

Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Judgement (AC), 12 March 2008, para. 177:

"177. The Appeals Chamber finds, Judge Liu dissenting, that while the Trial Chamber correctly set out the applicable law, it erred in concluding that the Prosecution had not proved that Athanase Seromba acted with the required specific intent. The Appeals Chamber particularly notes that, in any event at least on 16 April 1994, Athanase Seromba approved and joined the decision of Kayishema, Ndahimana, Kanyarukiga, Habarugira and other persons to destroy the church when no other means were available to kill the Tutsis who were seeking refuge inside. Further, Athanase Seromba advised the bulldozer driver on where the weakest side of the church was and directed him to destroy the church, assuring him that it would be Hutus who would be able to rebuild it. The Appeals Chamber notes that this in effect meant killing the Tutsis inside the church. Indeed, Athanase Seromba knew that there were approximately 1,500 Tutsis in the church and that the destruction of the church would necessarily cause their death."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 643:

"643. The Chamber has found on the basis of the totality of the evidence that the Accused initiated the attack. The Majority has further found that the Accused used the word "work" and to give an order to the attackers to start the killings. Therefore the evidence adduced by the Prosecution proves that the Accused personally led an attack of individuals, soldiers, Interahamwe, and policemen against Tutsi refugees on 12 April 1994 at the Parish Church and adjoining school in Gikomero, Kigali-Rural préfecture. The Chamber has found that the Accused arrived at the school with a group of individuals, soldiers, policemen and Interahamwe armed with firearms, grenades and other weapons and that he led them in the Gikomero Parish Compound and gave them the order to attack."

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC), 16 May 2003, paras. 412 – 415, 419:

412. In II.2.4.4 above, the Chamber found that on a day sometime between 17 and 30 April 1994, at 9.30 a.m. and later, between 10.30 a.m. and noon, the Accused was one of the leaders of two large-scale attacks by more than 6,000 armed attackers, comprising soldiers, policemen and Interahamwe, against Tutsi refugees at Muyira Hill. The Accused was armed with a gun at the time, and he shot at Tutsi refugees during the attacks. In II.2.5.5 above, the Chamber found that sometime between the end of April and beginning of May 1994, from between 8.30 a.m. and 9.30 a.m. to 3.00 p.m., the Accused was one of the leaders of a large-scale attack by armed attackers against Tutsi refugees at Kivumu in Bisesero. The Accused was armed with a gun during the attack, in the course of which he shot at Tutsi refugees.

413. In addition, the Chamber found that on 13 May 1994, sometime between 7.00 a.m. and 10.00 a.m., the Accused was one of the leaders of a large-scale attack by thousands of armed attackers against Tutsi refugees at Muyira Hill. The attackers, comprising Interahamwe, soldiers, policemen and Hutu civilians, were chanting "Tuba Tsemba Tsembe", which means "Let’s exterminate them", a reference to the Tutsi. The Accused was armed with a gun during the attack, in the course of which he shot at Tutsi refugees. Thousands of Tutsi died as a result of the attack. During the attack, the Accused also instructed the attackers, showing them where to go and how to attack the refugees (see II.2.6.4 above).

414. As a continuation of the 13 May attack, the Chamber found that on the morning of 14 May, the Accused and many armed attackers, comprising civilians, soldiers, Interahamwe, gendarmes and communal policemen, launched a large-scale attack against the Tutsi refugees at Muyira Hill. The Accused was armed with a gun and shot at Tutsi refugees at Muyira Hill (see II.2.7.5 above).

415. The Chamber found that around 18 June 1994, the Accused led armed attackers in an attack at Kiziba in Bisesero against Tutsi refugees, in the course of which he shot at Tutsi refugees (see II.2.9.4 above)."

P.20. Evidence of the perpetrator’s position of power and authority.

A. Legal source/authority and evidence:

Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D, Judgement (TC), 31 May 2012, para. 89?, 91, 92:

89. The Chamber has considered the extensive evidence of both Prosecution and Defence witnesses with regard to Nzabonimana’s influence in Gitarama préfecture. It is undisputed that Nzabonimana originated from Nyabikenke commune in Gitarama préfecture, and that at various times between 1989 and 1994, he held the positions of Minister of Planning and Minister of Youth and Associative Movements in the Government of Rwanda. The Parties further agree that, in 1994, Nzabonimana was both the Chairman of the MRND party in Gitarama préfecture and the Minister of Youth and Associative Movements, a position he held until the Interim Government went into exile in July 1994. In this regard, the Chamber notes that Nzabonimana was the only Minister from Nyabikenke commune, and recalls that the Interim Government, of which Nzabonimana was a member, established its headquarters at Murambi in Gitarama préfecture on 12 April 1994.

91. Furthermore, the Chamber observes that the evidence established that Nzabonimana had the power to exert his influence in his native region of Gitarama préfecture as exemplified by his participation and speeches at Butare trading centre ( 3.5.1.3), Cyayi centre ( 3.5.2.3), the Murambi meeting ( 3.5.7.3) and the reinstallation ceremony of the Musambira bourgmestre ( 3.5.8.4). The Chamber notes that Nzabonimana’s influence clearly increased after the death of the President and he was able to have an impact on the population of Gitarama préfecture.

92. Based on the foregoing, the Chamber concludes that there is overwhelming evidence from both the Prosecution and Defence that because of his position as a Minister in the Interim Government, his previous tenure as Minister of Planning, his Chairmanship of the MRND party in Gitarama préfecture, his association with and roots in the region and the settlement of the Interim Government in Gitarama préfecture, Nzabonimana was an influential political personality in Gitarama préfecture during the events of April to July 1994.

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1313:

"1313. Far more telling are the inferences which can be drawn from his detailed knowledge of the killing operation itself and Beara's high level and far reaching participation in it. As the most senior officer of the Security Branch—the entity charged with a central directing role—he had perhaps the clearest overall picture of the massive scale and scope of the killing operation.[…]"

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, para. 288:

"288. […] On the basis of the evidence as to –

(1) the overall leadership position of the Accused among the Serbian people, including the Bosnian Serbs in Bosnia and Herzegovina;

(2) the Accused’s advocacy of and support for the concept of a Greater Serbia;

(3) the logistical and financial support from Serbia to the Bosnian Serbs, which it is reasonable to infer was provided with the knowledge and support of the Accused; the logistical support is illustrated by the close relationship of VJ personnel with the VRS;

(4) the nature of the Accused’s relationship and involvement with the Bosnian Serb political and military leadership, as evidenced by the request of Karadžić that the Accused keep in touch with him and that it was very important for Karadžić to have his assessment;⁷⁵³

(5) the authority and influence of the Accused over the Bosnian Serb leadership;

(6) the intimate knowledge that the Accused had "about everything that was being done";

his insistence that he be informed "about everything that was going to the front line";⁷⁵⁴ and

(7) the crimes committed, the scale and pattern of the attacks on the four territories, their intensity, the substantial number of Muslims killed, the brutal treatment of Muslims in detention centres and elsewhere, and the targeting of persons essential to the survival of the Muslims as a group,

a Trial Chamber could infer that he not only knew of the genocidal plan of the joint criminal enterprise, but also that he shared with its members the intent to destroy a part of the Bosnian Muslims as a group in that part of the territory of Bosnia and Herzegovina which it was planned to include in the Serbian state."

"753. See supra, at para. 276.

754. See supra, at para. 285."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 643:

"641. The Chamber has found that the Accused was in a position of authority over the armed attackers, insofar as he led them to the Gikomero Parish Compound. The Chamber, however, has not found that the Accused was in a formal superior-subordinate relationship with the attackers of the Gikomero Parish Compound, nor that he maintained effective control over them."

2.1.2. Evidence inferred from the words or deeds of others.

P.21. Evidence of intention to destroy the group by those who acted with the perpetrator.

A. Legal source/authority and evidence:

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC), 16 May 2003, paras. 413, 419:

"413. In addition, the Chamber found that on 13 May 1994, sometime between 7.00 a.m. and 10.00 a.m., the Accused was one of the leaders of a large-scale attack by thousands of armed attackers against Tutsi refugees at Muyira Hill. The attackers, comprising Interahamwe, soldiers, policemen and Hutu civilians, were chanting "Tuba Tsemba Tsembe", which means "Let’s exterminate them", a reference to the Tutsi. The Accused was armed with a gun during the attack, in the course of which he shot at Tutsi refugees. Thousands of Tutsi died as a result of the attack. During the attack, the Accused also instructed the attackers, showing them where to go and how to attack the refugees (see II.2.6.4 above)."

P.22. Evidence of incitement to commit genocide by political leaders.

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 279, 282:

"279. According to one report, prior to 6 April, the public authorities did not openly engage in inciting the Hutus to perpetrate massacres. On 19 April however, the President of the Interim Government, told the people of Butare to "get to work" in the Rwandan sense of the term by using their machetes and axes."

"282. As a result of the diffusion of the anti-Tutsi propaganda, the killings "started off like a little spark and then spread."¹⁶⁴ Degni-Segui stated that many communities were involved. Butare was an exception as there was resistance to carrying out the killings because the prefect was a Tutsi. The killings did not start in Butare until 19 April, after the Interim Government sacked the prefect and after a visit and an inciting speech by the Interim President. The speech urged the inhabitants of Butare to engage in a murderous manhunt by appealing to the populace that "the enemies are among you, get rid of them."¹⁶⁵

"164. Trans., 5 Mar. 1998, p. 110.

165. Pros. exh. 330B, p. 6."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 118 – 119:

"118. […] Many facts show that the intention of the perpetrators of these killings was to cause the complete disappearance of the Tutsi. In this connection, Alison Desforges, an expert witness, in her testimony before this Chamber on 25 February 1997, stated as follows:

P.23. Evidence of incitement to commit genocide by media sources.

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 279 – 281:

"279. Military and civilian official perpetuated ethnic tensions prior to 1994. Kangura newspaper, established after the 1990 RPF invasion, Radio Television Mille Colline (RTLM) and other print and electronic media took an active part in the incitement of the Hutu population against the Tutsis. Kangura had published the "Ten Commandments" for the Hutus in 1991, which stated that the Tutsis were the enemy. In addition, according to witnesses, in 1991 ten military commanders produced a full report that answered the question how to defeat the enemy in the military, media and political domains. These witnesses also testified that in September 1992 the military issued a memorandum, based on the 1991 report, which also defined the "enemy" as the Tutsi population, thereby transferring the hostile intentions of the RPF to all Tutsis."

"280. Several witnesses stated that during the atrocities "the Rwandese carried a radio set in one hand and a machete in the other."¹⁵⁸ This demonstrates that the radio was a powerful tool for the dissemination of ethnic hatred. Radio National and RTLM freely and regularly broadcasted ethnic hatred against the Tutsis. For example, a UNICEF report refers to an RTLM broadcast stating that "for babies who were still suckling . . . they [the assailants] had to cut the legs so that they would not be able to walk."¹⁵⁹ In 1992 Leon Mugesera, a professor turned propagandist for the MRND, declared in a public meeting "nous ne commettrons pas l’ erreur de ’59 ou nous avons fait échoppé des plus jeunes" (we will not make the 1959 mistake where we let the younger ones [Tutsis] escape.)¹⁶⁰ Mugusera also incited the Hutus by explaining that ". . . we must remove the entrails but there is shorter way, let us throw them into the river so they can go out of the country that way."¹⁶¹ These speeches and reports became widely diffused through repetition in public meetings and through the mass media.

281. The dissemination and acceptance of such ideas was confirmed by a Hutu policeman to Prosecution witness Patrick de Saint-Exupery, a journalist reporting for the French newspaper Le Figaro. De Saint-Exupery remarked that the policeman had told him how they killed Tutsis "because they were the accomplices of the RPF" and that no Tutsis should be left alive.¹⁶² (emphasis added.) This witness, who went to the Bisesero region late June 1994, described how "the hill was scattered, literally scattered with bodies, in small holes, in small ditches, on the foliage, along the ditches, there were bodies and there were many bodies."¹⁶³

"158. Trans., 9 Mar. 1998, p. 47.

159. Trans., 5 Mar. 1998, at 112; Prosecution exh. 331B.

160. Trans., 5 Mar. 1998, p. 98.

161. Ibid. p. 85.

162. Trans., 18 Nov. 1997, p. 136.

163. Trans., 18 Nov. 1997, p. 153."

2.1.3. Evidence inferred from the existence of a plan or policy to destroy that group.

Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, paras. 248-255, 264-269:

''248. The Appeals Chamber also finds no merit in Tolimir’s challenges to the Trial Chamber’s reliance on various factors to infer genocidal intent. First, the Appeals Chamber observes that Tolimir does not substantiate his arguments as to why the Trial Chamber erred in inferring genocidal intent by considering the following factors: the destruction by Bosnian Serb Forces of the identification documents of the Bosnian Muslim men from Srebrenica who were detained for the purpose of being executed, the inhumane conditions of detention of those men, the large number of Bosnian Muslim men killed, and the burial and reburial of the victims killed.⁷³¹ These unsupported assertions are summarily dismissed.⁷³²''

⁷³¹ Appeal Brief, paras 172-173, 175-176. Tolimir asserts that the burial and reburial of the bodies of killed Bosnian Muslims merely indicates “the intention to conceal murders”, not an intention to commit genocide, but does not explain why acts revealing an “intention to conceal murders” cannot be probative, in combination with other factors, of genocidal intent. See Appeal Brief, para. 176. He also ignores the Trial Chamber’s finding that the pattern of large-scale burials and reburials evidenced the organisation and coordination of the killing operation, from which genocidal intent may be inferred. See Trial Judgement, para. 770. As Tolimir acknowledges, the Trial Chamber did not consider this factor alone as conclusive evidence of genocidal intent, but assessed it in combination with the entire evidence as a whole. See Appeal Brief, para. 179, citing Trial Judgement, paras 769-772.

⁷³² See Luki and Luki Appeal Judgement, para. 15 (summary dismissal is warranted for “mere assertions unsupported by any evidence, undeveloped assertions, failure to articulate an error”).

''249. The Appeals Chamber also dismisses Tolimir’s argument regarding the Trial Chamber’s reliance on opportunistic killings as an indicator of genocidal intent. As Tolimir acknowledges, opportunistic killings may be used to infer such intent on a limited basis – by placing the mass killings in their proper context.⁷³³ This is exactly what the Trial Chamber did, relying on the opportunistic killing of one Bosnian Muslim man on 13 July 1995 as a part of its consideration of the circumstances under which the separation of the men at Potoari occurred on 12 and 13 July 1995 and the capture of thousands of Bosnian Muslim men from the column on the same day, i.e. 13 July 1995, which it found to be “telling of the intent of the Bosnian Serb Forces”.⁷³⁴ The Appeals Chamber finds no error in this analysis.''

⁷³³ Blagojevi and Joki Appeal Judgement, para. 123.

⁷³⁴ Trial Judgement, para. 769.

''250. Tolimir further contends that the Trial Chamber improperly inferred genocidal intent from the capture and execution of the Bosnian Muslim men from the column since, in his view, the Bosnian Serb Forces were merely targeting “enemy military forces engaged in military operation”.⁷³⁵ This contention is groundless. The Trial Judgement contains no finding and Tolimir does not cite to any evidence that the captured members of the column were engaging in combat operations when killed.⁷³⁶ The Appeals Chamber further notes the Trial Chamber’s findings that the column “consisted predominantly of able-bodied men between the ages of 16 and 65” with “a small number of women, children, and elderly”, that “[a]n unknown number of the men from the column were armed”, and that “[p]eople with weapons were mixed with those who did not have weapons to provide security”.⁷³⁷ These findings do not support Tolimir’s argument that all of the men captured from the column were “enemy soldiers involved in military operation”.⁷³⁸ Even if the column heading to Tuzla could be accepted as a “military operation”, the Trial Chamber found that the men and boys were killed subsequent to their separation from the column.⁷³⁹''

⁷³⁵ Appeal Brief, para. 174. See also Appeal Brief, para. 171.

⁷³⁶ See Trial Judgement, para. 771. See also Appeal Brief, paras 171, 174.

⁷³⁷ Trial Judgement, para. 240.

⁷³⁸ Appeal Brief, para. 171.

⁷³⁹Trial Judgement, paras 708, 771.

''251. The Appeals Chamber is not persuaded by Tolimir’s argument that the Trial Chamber erred in considering that genocidal intent could be inferred from the VRS opposition to the proposal to open a corridor to allow the column to pass through Bosnian Serb territory.⁷⁴⁰ The Trial Chamber found that there was “fierce fighting from the evening of 15 July to the early morning of 16 July” and that following a cease-fire agreement in the wake of a renewed ABiH request for an open corridor on 16 July 1995, “the 28th Division mounted an even fiercer attack”.⁷⁴¹ It was only then that Pandurevi, acting against orders, agreed to allow “the remainder of the armed column to pass safely through the lines into the ABiH-held territory”.⁷⁴² Tolimir fails to show that no reasonable trial chamber could have concluded on the basis of these findings that Pandurevi’s decision to open the corridor was based on his assessment of the situation on the ground and did not negate the existence of an official stance of opposing such a corridor, from which genocidal intent could be inferred.''

⁷⁴⁰ See Appeal Brief, para. 174.

⁷⁴¹ Trial Judgement, para. 512.

⁷⁴² Trial Judgement, paras 513, 516.

''252. Tolimir also contends that the Trial Chamber erred in relying on the involvement of several layers of leadership in the killing operation as circumstantial evidence of genocidal intent.⁷⁴³ The Appeals Chamber, however, does not see an error in the Trial Chamber’s analysis. The implication of multiple levels of military command in a genocidal operation can evidence the systematic nature of the culpable acts and an organised plan of destruction, which may be relied upon to infer genocidal intent.⁷⁴⁴ Contrary to Tolimir’s argument, the Trial Chamber did not only find that “certain individuals” were involved;⁷⁴⁵it found that multiple units and several levels of command of the Bosnian Serb Forces were implicated in the killing operation.⁷⁴⁶ Tolimir fails to identify any findings or evidence contradicting or demonstrating an error in these factual findings. The Appeals Chamber, thus, finds no error in the Trial Chamber’s consideration of this factor.''

⁷⁴³ Appeal Brief, para. 177.

⁷⁴⁴ See supra, para. 246.

⁷⁴⁵ Appeal Brief, para. 177.

⁷⁴⁶ See Trial Judgement, paras 78-79, 81-82, 123-126, 128, 130-131, 141-143, 146-147, 149, 152-153, 219, 226, 236, 262, 265, 1065, 1071.

''253. The Appeals Chamber further rejects Tolimir’s argument that the Trial Chamber erred by basing its mens rea analysis on the very acts constituting the actus reus of genocide, thereby double-counting those acts as indicators of genocidal intent.⁷⁴⁷ Tolimir misunderstands the Trial Chamber’s analysis. The Trial Chamber did not consider the underlying genocidal acts themselves (i.e., the mass killings, the acts causing serious mental harm or leading to conditions of life designed to bring about the Bosnian Muslims’ destruction as a group) as proof of the dolus specialis. It only relied on the circumstances under which such acts were committed, as well as the mental state of the perpetrators.⁷⁴⁸The Appeals Chamber recalls that genocidal intent may be inferred from “the general context” of the commission of the underlying genocidal acts, “the perpetration of other culpable acts systematically directed against the same group”,⁷⁴⁹ or “proof of the mental state with respect to the commission of the underlying act” of genocide.⁷⁵⁰ This was the approach followed by the Trial Chamber in this case. The Appeals Chamber finds no error in the Trial Chamber’s analysis.''

⁷⁴⁷ Appeal Brief, paras 168, 178.

⁷⁴⁸ Trial Judgement, para. 772.

⁷⁴⁹ Karadzic Rule 98bis Appeal Judgement, para. 80, and references cited therein. The Appeals Chamber notes that under Ground of Appeal 7, Tolimir argues that those “other culpable acts systematically directed against the same group” must be “the acts that are the actus reus of genocide”. Appeal Brief, para. 78. Tolimir cites no authority for this proposition and the Appeals Chamber summarily dismisses it as unsubstantiated. The Appeals Chamber further notes that this argument contradicts Tolimir’s position, under Ground of Appeal 10, that acts constituting the actus reus of genocide may not be taken into account as indicators of genocidal intent. Appeal Brief, paras 168, 179.

⁷⁵⁰ Krstic Appeal Judgement, para. 20.

''254. The Appeals Chamber rejects, for similar reasons, Tolimir’s argument that the Trial Chamber erred in law by holding that evidence of the intent to forcibly remove may also constitute evidence of genocidal intent when considered in connection with other culpable acts systematically directed against the group. The fact that the forcible transfer operation does not constitute, in and of itself, a genocidal act does not preclude a Trial Chamber from relying on it as evidence of the intentions of those individuals involved.⁷⁵¹ The Appeals Chamber therefore finds no legal error in the Trial Chamber’s holding. For the same reasons, the Appeals Chamber finds no merit in Tolimir’s related argument that forcible transfer can only be considered as evidence of genocidal intent if the affected members of the group are transferred to a place where they are subjected to conditions leading to their death or destruction. As noted, a trial chamber may rely on the act of forcible transfer as evidence of genocidal intent, regardless of the destination of the transfer.⁷⁵² Tolimir’s argument is thus dismissed.''

⁷⁵¹ Krstic Appeal Judgement, para. 33. See also ICJ Croatia v. Serbia Judgment, paras 162-163, 478; Bosnia Genocide Judgment, para. 190.

⁷⁵² Krstic Appeal Judgement, para. 33. In support of his argument, Tolimir quotes the judgement of the District Court of Jerusalem in the Eichmann case. See Appeal Brief, para. 80, n. 58. Tolimir’s reliance on that case is, nevertheless, misplaced. The District Court found, in relevant part, that Eichmann had “caused this grave [bodily or mental] harm by means of enslavement, starvation, deportation and persecution, confinement to ghettos, to transit camps and to concentration camps – all this under conditions intended to humiliate the Jews, to deny their rights as human beings, to suppress and torment them by inhuman suffering and torture”. Eichmann District Court Judgement, para. 199. In holding so, the District Court was determining the means used by Eichmann and others to inflict serious bodily or mental harm on the Jewish people. The District Court did not find that genocidal intent may be inferred from acts of forcible transfer only where the transferred group has been exposed to certain types of conditions, such as enslavement or confinement to a concentration camp.

''255. In view of the Appeals Chamber’s prior conclusion that the Trial Chamber erred in finding that the forcible transfer operation of Žepa’s Bosnian Muslims satisfied the actus reus requirements of Article 4(2)(b) and (c) of the Statute,⁷⁵³ Tolimir’s mens rea arguments pertaining to that operation are dismissed as moot.⁷⁵⁴''

⁷⁵³ See supra, paras 221, 237.

⁷⁵⁴ See Appeal Brief, para. 180.

''264. The Appeals Chamber also fails to see the relevance of the method of selection of the targeted leaders of Žepa in view of the Trial Chamber’s findings on the prominent positions these three men occupied in the Žepa community.⁷⁸⁴ For a finding of genocide it suffices that the leaders were “selected for the impact that their disappearance would have on the survival of the group as such”.⁷⁸⁵ Genocide may be committed even if not all leaders of a group are killed – even though targeting “the totality [of the leadership] per se may be a strong indication of genocide regardless of the actual numbers killed”.⁷⁸⁶''

⁷⁸⁴ Trial Judgement, paras 599, 778.

⁷⁸⁵Trial Judgement, para. 777, and authorities cited therein.

⁷⁸⁶ Commission of Experts Report, para. 94 (cited in Trial Judgement, para. 777).

''265. With regard to Tolimir’s challenge to the Trial Chamber’s conclusion that the three Žepa leaders were killed with genocidal intent, the Appeals Chamber notes the Trial Chamber’s finding that all three Žepa leaders were arrested and detained “shortly after the completion of the forcible removal operation in Žepa” at the end of July 1995.⁷⁸⁷The Trial Chamber found that after several days in detention, Hajri and Imamovi were killed sometime in late August 1995, while Pali was killed in early September 1995.⁷⁸⁸ The Appeals Chamber recalls that according to the Commission of Experts Report and as the Trial Chamber itself recognised, “[t]he character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group […] at the same time or in the wake of that” attack.⁷⁸⁹ As the Trial Chamber found, the selective targeting of a protected group’s leadership may amount to genocide only if the leaders are selected because of “the impact that their disappearance would have on the survival of the group as such”.⁷⁹⁰ The impact of the leaders’ disappearance may of course be assessed only after the leaders are attacked. Only by considering what happened to the rest of the protected group at the same time or in the wake of the attack on its leadership could “the impact that [the leaders’] disappearance would have on the survival of the group as such” be assessed.⁷⁹¹''

⁷⁸⁷ Trial Judgement, para. 778.

⁷⁸⁸ Trial Judgement, paras 679-680, 778.

⁷⁸⁹ Commission of Experts Report, para. 94. The Trial Chamber also stated that the killings of the three Žepa leaders must not be seen in isolation, but in conjunction with “the fate of the remaining population of Žepa”. Trial Judgement, para. 781.

⁷⁹⁰ Trial Judgement, para. 749, citing Jelisi Trial Judgement, para. 82.

⁷⁹¹ Trial Judgement, para. 749, citing Jelisi Trial Judgement, para. 82.

''266. The Appeals Chamber is not convinced of the reasonableness of the Trial Chamber’s finding regarding the impact of the killings of the three Žepa leaders on the Žepa civilian population. The Trial Chamber cited no evidence in support of its finding that the disappearance of the three Žepa leaders would have an impact on the protected group. The Trial Judgement contains no reference to evidence as to the impact of the disappearance of the three Žepa leaders on the survival of the Bosnian Muslim population from Žepa. The Appeals Chamber notes, in this regard, that, even though the Trial Chamber found, based on forensic evidence, that the three Žepa leaders suffered violent deaths caused by injuries to the head or skull while in the custody of Bosnian Serb Forces and were then buried in a mass grave,⁷⁹² there are no findings or references to evidence as to whether the VRS members who detained and murdered the three Žepa leaders intended, for instance, to use their actions in a way that would intimidate and expedite the removal of the Bosnian Muslims of Žepa, prevent their return, or impact their survival as a group in any other way.⁷⁹³''

⁷⁹² Trial Judgement, paras 658, 665-666, 677-680. Tolimir does not raise specific challenges to these findings per se, but claims that there is no specific proof of who were the perpetrators, dates, and exact circumstances of these three killings. See Appeal Brief, para. 185. The Appeals Chamber has already rejected such claims as Tolimir does not explain at all why it was unreasonable for the Trial Chamber to conclude that the three Žepa leaders suffered violent deaths while detained by the Bosnian Serb Forces. See supra, paras 152-153.

⁷⁹³ The Appeals Chamber notes the Trial Chamber’s finding that on the morning of 28 July 1995, Mladi told a UN officer that Avdo Pali was dead – even though at that time, Pali was still alive and was only killed after 5 September 1995. Trial Judgement, paras 666, 679. Mladi’s misstatement was contradicted by Tolimir, who stated that he could not confirm the information of Pali’s death. Trial Judgement, para. 666. These findings do not undermine the Appeals Chamber’s conclusion that the Trial Chamber made no findings as to the impact of the disappearance of the three Žepa leaders on the survival of the Bosnia Muslims from Žepa. Mladi’s false statement about Pali’s death does not amount to an effort to intimidate or threaten the destruction of the Bosnian Muslims from Žepa.

''267. The Appeals Chamber has already established that the Trial Chamber did not err in finding that the only reasonable inference from the evidence was that the three Žepa leaders suffered a violent death at the hands of their Bosnian Serb captors.⁷⁹⁴ However, the Trial Chamber failed to explain how their detention and killings – committed weeks after the entire Žepa population had been forcibly transferred from the enclave – had any impact “on the survival of the group as such”.⁷⁹⁵ The Trial Chamber accepted in its conclusion that there was such an impact, but it did not consider or analyse whether or how the killings of the three Žepa leaders after the Bosnian Muslim civilian population of Žepa had been transferred to safe areas of BiH specifically affected the ability of those removed civilians to survive and reconstitute themselves as a group.⁷⁹⁶A finding that Žepa’s Bosnian Muslims lost three of their leaders⁷⁹⁷ does not suffice to infer that those civilians were affected by the loss of their leaders in a way that would threaten or tend to contribute to their physical destruction as a group.''

⁷⁹⁴ See supra, para. 144.

⁷⁹⁵ Trial Judgement, para. 782.

⁷⁹⁶ Trial Judgement, paras 780-782.

⁷⁹⁷ Trial Judgement, para. 782.

''268. The Appeals Chamber also notes that the killings of the three Žepa leaders were alleged and found to be natural and foreseeable consequences of the JCE to Forcibly Remove; in other words, these killings were neither charged nor found to be: (i) connected with the killings of Srebrenica’s male population; or (ii) part of the forcible transfer operations involving Srebrenica’s women, children and elderly and Žepa’s Muslim population, which constituted the common purpose and sole objective of the JCE to Forcibly Remove.⁷⁹⁸ These Trial Chamber’s findings confirm the tenuous connection between the three killings and the genocidal acts committed against the Muslims of Eastern BiH under the two JCEs and further undermine the notion that the three killings formed part of the same genocidal enterprise.''

⁷⁹⁸ Trial Judgement, paras 776, 1148-1154.

''269. In this context, particularly in light of the fact that the forcible transfer operation of Žepa’s Bosnian Muslims had been completed before the three Žepa leaders were detained and killed and in the absence of any findings as to whether or how the loss of these three prominent figures affected the ability of the Bosnian Muslims from Žepa to survive in the post-transfer period, the inference of genocidal intent was not the only reasonable inference that could be drawn from the record. In the view of the Appeals Chamber, the evidence does not allow for the conclusion that the murders of the three Žepa leaders had a significant impact on the physical survival of the group as such so as to amount to genocide. There is, in sum, no sufficient evidentiary support for the finding that Hajri, Pali, and Imamovi were killed “with the specific genocidal intent of destroying part of the Bosnian Muslim population as such”.⁷⁹⁹The Trial Chamber, therefore, erred in holding that the record established beyond reasonable doubt that Hajri, Pali, and Imamovi were killed by the Bosnian Serb Forces with the specific intent of destroying part of the Bosnian Muslim population as such and thus that their murders constituted genocide. The Appeals Chamber’s conclusion does not preclude, of course, that these killings constituted crimes proscribed under other provisions of the Statute.''

⁷⁹⁹ Trial Judgement, para. 782.

A. Legal source/authority and evidence:

Prosecutor v. Augustin Ngirabatware, Case No. MITC-12-29-A, Judgment (AC), 18 December 2014, paras. 35, 37, 40:

"35. Turning to Ngirabatware's submission that the Indictment was defective in relation to the location of the roadblock, the Appeals Chamber notes that paragraph 49 of the Indictment alleges that the roadblock was situated "at the Customs Office on the Cyanika-Gisa tarred road in Nyamyumba commune". The Trial Chamber found that, given the testimony of Witness ANAN that there was no customs office in Cyanika, the Indictment was, in this respect, "factually incorrect".^1l0 It nevertheless concluded that the additional information provided in the Indictment as to the alleged location of the roadblock gave sufficient notice to Ngirabatware in that respect.¹¹¹

110. Trial Judgement, para. 228 ("Given that the Indictment alleges this event occurred in a location, namely at the Customs Office, that the Prosecution's own witness acknowledged does not exist, the Indictment is factually incorrect in this regard.").

111. Trial Judgement, para. 228."

"37. The Appeals Chamber tums next to Ngirabatware's submission in relation to the commune where the roadblock was allegedly located. The Appeals Chamber notes that, on appeal, the parties agree that the Cyanika-Gisa road was in the Rubavu Commune.¹¹³However, in the Indictment, the Prosecution alleged that the roadblock on the Cyanika-Gisa road was in the Nyamyumba Commune.¹¹⁴While the Trial Chamber observed that evidence on the trial record placed the roadblock in the Rubavu Commune,¹¹⁵ it was nevertheless satisfied that the roadblock was in the Nyamyumba Commune, as pleaded in the Indictment.¹¹⁶Having considered the evidence relied upon by the Trial Chamber and the parties in their submissions on appeal,¹¹⁷ the Appeals Chamber finds that no reasonable trier of fact could have found beyond reasonable doubt that the roadblock was in the Nyamyumba Commune. Rather, the evidence demonstrates that the roadblock was in the Rubavu Commune.

113. See Appeal Brief, para. 227; Response Brief, paras. 275, 282. See also T. 30 June 2014 p. 41.

114. Indictment, para 49.

115. Trial Judgement, para. 228, referring to Witness ANAS, T. 16 March 2010 p. 14, Witness ANAT, T. 17 March 2010 p. 59, Ngirabatware, T. 1 December 2010 p. 64, Witness DWAN-49, T. 19 September 2011 pp. 7-8 (closed session), T. 20 September 2011 p. 40.

116. Trial Judgement, paras. 319, 1332, 1366.

117. Trial Judgement, para. 228, referring to Witness ANAS, T. 16 March 2010 p. 14, Witness ANAT, T. 17 March 2010 p. 59, Ngirabatware, T. 1 December 2010 p. 64, Witness DWAN-49, T. 19 September 2011 pp. 7-8 (closed session), T. 20 September 2011 p. 40; Appeal Brief, para. 225(iii), (vii), referring, in addition to the evidence referred to by the Trial Chamber, fo Witness ANAO, T. 17 February 2010 p. 5; Response Brief, para. 272."

"40. The Appeals Chamber also notes that the Prosecution's case that the roadblock was located on the Cyanika-Gisa road remained consistent throughout the trial.¹²⁷ As to the roadblock's precise location, the sketch annexed to the Prosecution's Pre-Trial Brief,¹²⁸ as well as Witnesses Delvaux, ANAO, and ANAS,¹²⁹ placed the roadblock on that road nearer to Gisa, whereas the main Prosecution witnesses, namely Witnesses ANAT and ANAN, placed it on the same road but close to Cyanika.¹³⁰ Despite such discrepancies, the ICTR Registry's official record of the site visit, which took place after all the witnesses were heard, shows that the parties "unanimously agreed" as to the roadblock's exact 10cation.¹³¹ Indeed, the parties' submissions following the site visit make clear that their dispute over the distance between Cyanika and Gisa was limited to approximately 300 meters.¹³² Accordingly, the Appeals Chamber finds that the inconsistencies in the evidence as to the roadblock's precise location were minor and do not, as such, show that Ngirabatware lacked sufficient notice of the location where the crime was allegedly committed or that he suffered any prejudice as a result. Accordingly, the Appeals Chamber is satisfied that Ngirabatware was reasonably able to identify the location of his alleged criminal conduct.

127. See, e.g., Indictment, para 49; Prosecution Pre-Trial Brief, paras. 64-65, RP. 1244, 1130-1126; Prosecution Exhibit6, p. 46; Prosecution Exhibit 7. See also Witness Delvaux, T. 23 September 2009 pp. 57-58, T. 24 September 2009 pp. 10-11, 43; Witness ANAN, T. 1 February 2010 pp. 36, 43, T. 8 February 2010 p. 94 (closed session); Witness ANAO, T. 16 February 2010 p. 12, T. 17 February 2010 p. 5, T. 18 February 2010, pp. 6-7 (closed session); Witness ANAS, T. 16 March 2010 pp. 14-15; Witness ANAT, T. 16 March 2010 p. 67; The Prosecutor 1'. Augustin NgirabalYvare, Case No. ICTR-99-54-T, Prosecution's Submissions on the Registry'SConfidential Report on the Site Visit Dated 31 May 2012, 14 June 2012 (confidential) ("Prosecution's Submissions on the Site Visit"), paras. 38-39.

128. See Prosecution Pre-Trial Brief, Annex 2, Exhibit 4, RP. 1130.

129. Witness Delvaux, T. 23 September 2009 pp. 57-58, T. 24 September 2009 pp. 10-11, 43, in which he comments on the map he prepared and was admitted into evidence as Prosecution Exhibit 6; Witness ANAO, T. 16 February 2010 p. 12, T. 17 February 2010 p. 5, T. 18 February 2010, pp. 6-7 (closed session); Witness ANAS, T. 16 March 2010 p. 14.

130. Witness ANAN, T. 1 February 2010 pp. 36, 43, T. 8 February 2010 p. 94 (closed session); Witness ANAT, T. 16 March 2010 p. 67.

131. Chamber Exhibit 1, p. 5.

132. See Prosecution's Submissions on the Registry's Confidential Report on the Site Visit Dated 31 May 2012, 14 June 2012, p. 10: "Site 38 [Cyanika] is 700 meters away from Gisa"; Defence's Additional Submissions to the Defence Closing Brief Following the Site Visit in the Republic of Rwanda on 21-25 May 2012, 14 June 2012 (confidential), para, 12: "the distance between Gisa and Cyanika [...] was more than 1 Kilometer". See also Trial Judgement, para. 304."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (AC), 1 June 2001, para. 139:

"139. It follows from the Trial Judgement that the Prosecution’s case during trial was that a genocide of the Tutsi population was planned and executed by public officials, both on a national and regional level, in Rwanda during 1994. The Prosecution, being unable to tender into evidence some official document outlining a genocidal plan, put forward a theory that such a plan could be inferred from the existence of such sufficient indicia as (i) the existence of lists of persons to be executed (targeting, inter alia, the Tutsi élite); (ii) the dissemination of extremist ideology through the Rwandan media; (iii) the use of the civil defence programme and the distribution of weapons to the civilian population; and (iv) the "screening" carried out at many roadblocks. The Trial Chamber considered that the relevant indicia had been proven by the Prosecutor. Consequently, it held that "the massacres of the Tutsi population indeed were ‘meticulously planned and systematically co-ordinated’ by top level Hutu extremists in the former Rwandan government at the time in question".¹⁹⁵

"195. Ibid., para 289."

B. Evidentiary comment:

Although the existence of a plan to commit genocide will provide strong evidence of an intention to destroy a protected group, ICTY and ICTR authorities have both indicated that the existence of such a plan is not a legal prerequisite for a finding that genocide has been committed (see Jelisić Appeals Judgment, para. 48 and Kayishema Trial Judgment, para. 94, below).

P.24. Evidence of the existence of a plan or policy to commit genocide.

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 656, 674:

"2083. Jelisić Appeal Judgement, para. 46

2084. Jelisić Appeal Judgement, para. 48."

"674. The Trial Chamber is convinced that the criminal acts committed by the Bosnian Serb forces were all parts of one single scheme to commit genocide of the Bosnian Muslims of Srebrenica, as reflected in the "Krivaja 95" operation, the ultimate objective of which was to eliminate the enclave and, therefore, the Bosnian Muslim community living there. The forcible transfer was an integral part of this operation, which also included killings and destruction of properties. The Bosnian Serb forces separated the able-bodied men in Potočari, and captured those in the column heading to Tuzla, regardless of their military or civilian status. The separation of the men from the rest of the Bosnian Muslim population shows the intent to segregate the community and ultimately to bring about the destruction of the Bosnian Muslims of Srebrenica. The Bosnian Muslim men were stripped of their personal belongings and identification, detained, and finally taken to execution sites, where the Bosnian Serb forces deliberately and systematically killed them, solely on the basis of their ethnicity."

Prosecutor v. Duško Sikirica et al., Case No. IT-95-8-T, Judgement on Defence Motions to Acquit (TC), 3 September 2001, paras. 62, 92:

"62. The Chamber notes the Defence argument that the existence of a plan or policy to commit genocide is a legal ingredient of the crime. The Prosecution disputed that contention, arguing that while the existence of a plan or policy of genocide may be relevant to the proof of the intent required, it is not a legal ingredient of the crime. This issue has now been settled by the Jelisić Appeal Judgement where it was held that "the existence of a plan or policy is not a legal ingredient of the crime", although "in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases."¹⁶⁸"

"168. Jelisić Appeal Judgement, para. 48."

"92. The Prosecution has alleged that the victimisation of non-Serb civilians in the Prijedor municipality took place as part of a wider plan implemented by the Bosnian Serb authorities in the region to expel the Bosnian Muslim and Bosnian Croat populations from that municipality. While the Prosecution has adduced evidence which might suggest that the Bosnian Serb authorities’ general political doctrine gave rise to a campaign of persecution against the non-Serb population of Prijedor, there is no evidence that this doctrine sought to promote genocide."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 572 – 573:

"572. The Appeals Chamber, in a recent decision, indicated that the existence of a plan was not a legal ingredient of the crime of genocide but could be of evidential assistance to prove the intent of the authors of the criminal act(s).¹²⁷⁸ Evidence presented in this case has shown that the killings were planned: the number and nature of the forces involved, the standardised coded language used by the units in communicating information about the killings, the scale of the executions, the invariability of the killing methods applied, indicate that a decision was made to kill all the Bosnian Muslim military aged men.¹²⁷⁹

573. The Trial Chamber is unable to determine the precise date on which the decision to kill all the military aged men was taken. Hence, it cannot find that the killings committed in Poto~ari on 12 and 13 July 1995 formed part of the plan to kill all the military aged men. Nevertheless, the Trial Chamber is confident that the mass executions and other killings committed from 13 July onwards were part of this plan."

"1278. Jelisić Appeal Judgement, para. 48.

1279. Supra, para. 85-87."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Judgement (AC), 5 July 2001, para. 48:

"48. The Appeals Chamber is of the opinion that the existence of a plan or policy is not a legal ingredient of the crime. However, in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases. The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the crime.⁸³"

"83. This was also held in the oral decision by the Appeals Chamber for the ICTR in Obed Ruzindana and Clément Kayishema v. Prosecutor, Case No.: ICTR-95-1-A, 1 June 2001."

"93. Regarding the assessment of the requisite intent, the Trial Chamber acknowledges that it may be difficult to find explicit manifestations of intent by the perpetrators. The perpetrator’s actions, including circumstantial evidence, however may provide sufficient evidence of intent. The Commission of Experts in their Final Report on the situation in Rwanda also noted this difficulty. Their Report suggested that the necessary element of intent can be inferred from sufficient facts, such as the number of group members affected.³⁹ The Chamber finds that the intent can be inferred either from words or deeds and may be demonstrated by a pattern of purposeful action.⁴⁰ In particular, the Chamber considers evidence such as the physical targeting of the group or their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning, the systematic manner of killing. Furthermore, the number of victims from the group is also important. In the Report of the Sub-Commission on Genocide, the Special Rapporteur stated that "the relative proportionate scale of the actual or attempted destruction of a group, by any act listed in Articles II and III of the Genocide Convention, is strong evidence to prove the necessary intent to destroy a group in whole or in part."⁴¹

94. It is also the view of the Chamber that although a specific plan to destroy does not constitute an element of genocide, it would appear that it is not easy to carry out a genocide without such a plan, or organisation. Morris and Scharf note that "it is virtually impossible for the crime of genocide to be committed without some or indirect involvement on the part of the State given the magnitude of this crime."⁴² They suggested that "it is unnecessary for an individual to have knowledge of all details of the genocidal plan or policy." The Chamber concurs with this view."

"39. Cited in Bassiouni, in The Law of the International Criminal Tribunal for the Former Yugoslavia, p. 524, and UN and Rwanda, 1993-6, p. 432, para. 166.

40. Wisconsin International Law Journal, 243 (1996).

41. UN Doc. E/CN.4/Sub.2/1985/6, p. 16, para. 29.

42. Morris and Scharf, supra, p. 168"

"275. [United Nations Special Rapporteur of the Commission on Human Rights, Dr. René Degni-Segui] testified that although to date no one has found any official written document outlining the genocidal plan, there exist sufficient indicators that a plan was in place prior to the crash of the President’s plane on 7 April 1994. These indicators include (1) execution lists, which targeted the Tutsi elite, government ministers, leading businessmen, professors and high profile Hutus, who may have favoured the implementation of the Arusha Accords; (2) the spreading of extremist ideology through the Rwandan media which facilitated the campaign of incitement to exterminate the Tutsi population; (3) the use of the civil defence programme and the distribution of weapons to the civilian population; and, (4) the "screening" carried out at many roadblocks which were erected with great speed after the downing of the President’s plane.¹⁵⁷ The outcome of the implementation of these indicators was the massacres carried out throughout the country.

276. It is the opinion of the Trial Chamber that the existence of such a plan would be strong evidence of the specific intent requirement for the crime of genocide. To make a finding on whether this plan existed, the Trial Chamber examines evidence presented regarding the more important indicators of the plan."

"157. See Pros. exh. 330B and 331B, p. 5."

"289. In summary, the Trial Chamber finds that the massacres of the Tutsi population indeed were "meticulously planned and systematically co-ordinated" by top level Hutu extremists in the former Rwandan government at the time in question.¹⁷¹ The widespread nature of the attacks and the sheer number of those who perished within just three months is compelling evidence of this fact. This plan could not have been implemented without the participation of the militias and the Hutu population who had been convinced by these extremists that the Tutsi population, in fact, was the enemy and responsible for the downing of President Habyarimana’s airplane."

"171. Trans., 5 Mar. 1998, 84."

"309. Evidence presented to the Chamber shows that in Kibuye Prefecture the massacres were pre-arranged. For months before the commencement of the massacres, bourgmestres were communicating lists of suspected RPF members and supporters from their commune to the Prefect¹⁸⁷ In addition, the Prosecutor produced a series of written communications between the Central Authorities,¹⁸⁸Kayishema and the Communal Authorities that contain language regarding whether "work has begun" and whether more "workers" were needed in certain commune.¹⁸⁹ Another letter sent by Kayishema to the Minister of Defence requested military hardware and reinforcement to undertake clean-up efforts in Bisesero.¹⁹⁰"

"187. Pros. exh. 55-58.

188. Pros. exh. 52, 54 and 296.

189. Pros. exh. 53. (Letter from Kayishema to all Bourgmestres in Kibuye.)

190. Pros. exh. 296."

"528. The Chamber examines the tragic events in Rwanda and in Kibuye in 1994 in Part V. The examination is useful here as it gives context to the crimes at the four crimes sites. The analysis shows that there indeed was a genocidal plan in place prior to the downing of the President’s airplane in April 1994. This national plan to commit genocide was implemented at prefecture levels. For instance, Kayishema as the Prefect, disseminated information to the local officials above and below him using the established hierarchical lines of communications.²⁶⁸

529. The Prosecution submitted that the killings were planned and organised with a clear strategy, which was implemented by Kayishema and Ruzindana in Kibuye. The plan was executed efficiently and successfully in this Prefecture. Those who escaped the April massacres in and around Kibuye Town fled to Bisesero where they were relentlessly pursued and attacked. One witness described Bisesero Hill as strewn with dead bodies "like small insects which had been killed off by insecticide."²⁶⁹There is documentary evidence that Kayishema requested reinforcement from the national authorities to attack the unarmed Tutsi population under the guise that there was a "security problem" in Bisesero.²⁷⁰

530. A letter dated 26 June 1994 written by the then Bourgmestre of Mabanza, Bagilishema to the Prefect of Kibuye, Kayishema, stated that there was no need for sending additional attackers to Mabanza because there were no Tutsis left in his commune.²⁷¹The letter clearly indicates the knowledge and participation of the civilian authorities in the process of extermination."

"268. See, for example, Pros exh’s. 51 and 53.

269. See Chapter 5.4 , supra (Bisesero Factual Findings.)

270. Pros. exh. 296.

271. Pros. exh. 59."

P.24.1. 271. Pros. exh. 59."Evidence of lists or numbers of people to be killed.

A. Legal source/authority and evidence:

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1512:

1512. Furthermore, there is evidence that shortly after this attack, ESO and other soldiers continued to participate in targeted killings of Tutsis. Specifically, around 21 April 1994, ESO soldiers participated in the separation and killing of Tutsis at the Butare University. Around 29 April, ESO soldiers participated in the separation and removal of Tutsis at the Groupe Scolaire, which led to their subsequent slaughter. There is additional evidence that, starting in the last third of April, soldiers used lists to identify and kill Tutsis at the Butare University Hospital. In this context, the Chamber has no doubt that the physical perpetrators who killed Gicanda and others taken from her home possessed genocidal intent

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (AC), 1 June 2001, para. 139:

"195. Ibid., para 289."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 89:

"89. The Trial Chamber notes in this regard that one witness related how a Serbian friend had told him that he had planned for only 20% of the Muslims to remain¹²³. Another witness declared that he was told during an interrogation at the mosque that 5% of the Muslims and Croats would be allowed to live but that this 5% would have to perform back-breaking work¹²⁴. Some witnesses even declared that on several occasions during their time at Luka they had carried up to twenty bodies¹²⁵."

"123. Witness J, FPT p. 830.

124. Witness I, FPT pp. 687-758.

125. Witness L, FPT p. 965; Witness D, FPT p.445. Allegedly, these bodies were then loaded into a refrigerated lorry (Witness A, FPT p. 5; Witness J, FPT p. 773), while others were thrown into the Sava River (Witness B, FPT pp. 136-139)."

[B. Evidentiary comment:]

P.24.2. Evidence of plans to forcibly relocate members of that group.

A. Legal source/authority and evidence:

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, paras. 238 – 239:

"238. Both Radovan Karadžić and Biljana Plavšić stated that the basic goal of the Serb war aim was to redistribute the population of Bosnia and Herzegovina so that the Serbs would be left in control of a single continuous block of territory, embracing the whole of the border with Montenegro, Serbia, and all of the traditionally Serb-inhabited areas.⁶⁰⁴ This required the removal of very large numbers of Bosnian Muslims because they were the majority population along the Drina River Valley in North-Eastern Bosnia, adjacent to Serbia.⁶⁰⁵

239. Aleksa Buha, Foreign Minister of the RS, stated in May 1994 in the Assembly of Republika Srpska that their "primary option [was] unification with Serbia, and if that doesn’t fly, then independence".⁶⁰⁶ This was reiterated in May 1994 by Milan Martić, President of Republic of Serbian Krajina who stated in the same session that "we are one and the same nations . . . and be sure that before long, whether it please someone or not, we will be one state".⁶⁰⁷ Radovan Karadžić had also promoted the idea of unification when he announced in October 1993 that "we must propose the complete unity of the Serbian people, including Yugoslavia, the RSK and the RS".⁶⁰⁸"

"604. Mr. Harland: T. 26954.

605. Ibid.

606. Dr. Donia: Ex. 537, tab 4, at p. 1.

607. Ibid.

608. Ibid."

[B. Evidentiary comment:]

P.24.3. Evidence of meetings or planning.

A. Legal source/authority and evidence:

The Prosecutor v. Edouard Karemera and Mathieu Ngirumpatse, Case No. ICTR-98-44, Judgement (TC), 2 February 2012, para. 1646:

1646. By 25 April 1994, the atrocities committed in Rwanda were widespread and public and militiamen and civilians to be supplied by the fund were killing Tutsis throughout the country. The vast majority of the killers were Interahamwe and other groups of armed civilians who routinely used traditional weapons to massacre Tutsis. Kabuga made it clear in his letter to the Interim Government that he intended to use the fund to purchase traditional weapons for the military, militiamen, and civilians. In these circumstances, the only reasonable conclusion is that Kabuga and the assailants who physically perpetrated the killings possessed the intent to destroy, in whole or in a substantial part, the Tutsi group.

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1506-1507:

1506. Given Nizeyimana’s participation in the security committee’s visit to Cyahinda Parish on the day prior to the attack, there is no question that Nizeyimana was aware of the circumstances that led the primarily Tutsis refugees to the parish. Through his subsequent participation in the planning of the military operation as well as his authorisation of the ESO soldiers who participated in it, the Chamber has no doubt that Nizeyimana possessed genocidal intent and that he was aware of that held by the principal perpetrators.

1507. Furthermore, when evaluating the impact of Nizeyimana’s contribution, the Chamber recalls that Nizeyimana’s presence at the Cyahinda Parish necessarily allowed him to examine – from military intelligence and operations perspectives – the strengths and weaknesses of the displaced Tutsis who had fortified themselves within the parish. It is noteworthy that during the ensuing attack, ESO soldiers utilised specialised arms that could weaken structural safe havens for the refugees within the parish facilities and kill numbers of them from a safe distance. In light of the fact that the primarily Tutsi refugees had previously staved off initial, armed assaults by the bourgmestre and gendarmes, the use of these heavy weapons is not coincidental. Indeed, the Chamber has no doubt that the participation of the ESO soldiers and the weaponry utilised reflect Nizeyimana’s on-the-ground assessment of the situation at Cyahinda Parish and were a direct result of Nizeyimana’s contributions to the planning and authorisation of this assault. There is no question that Nizeyimana’s contributions proved to be both significant and substantial to the ensuing extermination operation.

Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D, Judgement (TC), 31 May 2012, para. 938:

938. Having examined and analysed the Prosecution and Defence evidence, the Chamber finds beyond a reasonable doubt that on 13 April 1994, an attempted attack was made upon the Tutsis seeking refuge at the Nyabikenke commune office. Witness T24 and commune policemen repelled the attack at the Nyagahondo forest, before it reached the commune office. As a result of the counter-attack one of the assailants was killed and others were injured, but the refugees were unharmed. On the afternoon of 14 April 1994, Nzabonimana held a meeting in Nyabikenke commune at Cyayi centre, located only 250 to 300 metres from the commune office. The evidence established beyond a reasonable doubt that approximately 30 people were present at the centre, including Prosecution Witnesses CNAI and CNAX, a Tutsi named Evariste Munyagatare, Isaac Kamali and Defence Witness T193. At this meeting, Nzabonimana asked those gathered to prioritise the massacre of Tutsis before taking their property. Nzabonimana stated: "I know that Hutus do not heed instructions. Do not continue to eat the cows of Tutsi who have sought refuge at the communal office. What really matters is not the cows; it is rather, the owners of the cows that matter." He also issued a threat to a Tutsi named Evariste Munyagatare, who was among those seeking refuge at the Nyabikenke commune office.

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, paras. 819 – 820, 822:

820. The Chamber found that on the morning of 7 April 1994 the Accuse reminded those present at the Nkuli Commune Office of the undertaking they had reached the previous evening and that it was now their ‘business to act’."

"822. The Chamber found that there was an attack on the morning of 7 April 1994 against approximately 12 families of Tutsis living in Kinyababa cellule, totalling approximately 80 people. The Chamber found that this attack was carried out in furtherance of the understanding reached at the previous night’s meeting at the Nkuli Commune Office, in which several local officials were present, including the Accused. The Chamber found that Witness GDD, amongst others, reported back to the Accused at the end of the day on what had been achieved, and assured the Accused that they had ‘eliminated everything’."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 297:

"297. Witness F’s testimony is illustrative of many other witnesses and of the situation as a whole. A resident of Gitesi commune, Witness F testified that he heard the news of the crash at 10 a.m. on 7 April and that as a result, the mood of the people changed to one of panic in his neighbourhood. On 7 or 8 April, a meeting took place at Mutekano Bar, situated some 400-500 meters from the Kibuye prison, along the road heading to the Kibuye Prefecture Office. Witness F testified during that period, he interacted with one Mathew, who was participating in the said meeting. Witness F observed the meeting, the topic of which was security – addressing the "Tutsi problem" -- from the roadside for about twenty minutes. Many local officials participated in the meeting."

[B. Evidentiary comment:]

P.24.4. Evidence of propaganda.

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 279 – 282, 312:

282. As a result of the diffusion of the anti-Tutsi propaganda, the killings "started off like a little spark and then spread."¹⁶⁴ Degni-Segui stated that many communities were involved. Butare was an exception as there was resistance to carrying out the killings because the prefect was a Tutsi. The killings did not start in Butare until 19 April, after the Interim Government sacked the prefect and after a visit and an inciting speech by the Interim President. The speech urged the inhabitants of Butare to engage in a murderous manhunt by appealing to the populace that "the enemies are among you, get rid of them."165"

"158. Trans., 9 Mar. 1998, p. 47.

159.. Trans., 5 Mar. 1998, at 112; Prosecution exh. 331B.

1604. Trans., 5 Mar. 1998, p. 98.

161. Ibid. p. 85.

162. Trans., 18 Nov. 1997, p. 136.

163. Trans., 18 Nov. 1997, p. 153."

164. Trans., 5 Mar. 1998, p. 110.

165. Pros. exh. 330B, p. 6."

"312. Considering this evidence, the Trial Chamber finds that, in Kibuye Prefecture, the plan of genocide was implemented by the public officials. Persons in positions of authority used hate speech and mobilised their subordinates, such as the gendarmes the communal police, and the militias, who in turn assisted in the mobilisation of the Hutu population to the massacre sites where the killings took place. Tutsis were killed, based on their ethnicity, first in their homes and when they attempted to flee toperceived safe havens they were stopped at roadblocks and some were killed on the spot. Those who arrived at churches and stadiums were attacked and as a result tens of thousands perished."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 524:

"524. Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia also stated that the specific intent of the crime of genocide

Thus, in the matter brought before the International Criminal Tribunal for the former Yugoslavia, the Trial Chamber, in its findings, found that

"101. International Criminal Tribunal for the former Yugoslavia, Decision of Trial Chamber 1, Radovan Karadžić, Ratko Mladic case (Cases Nos. IT-95-5-R61 and IT-95-18-R61), Consideration of the Indictment within the framework of Rule 61 of the Rules of Procedure and Evidence, paragraph 94.

102. Ibid. Paragraph 95."

[B. Evidentiary comment:]

P.25. Evidence of preparations to commit genocide.

P.25.1. Evidence of use of civil defence groups or militias.

A. Legal source/authority and evidence:

The Prosecutor v. Edouard Karemera and Mathieu Ngirumpatse, Case No. ICTR-98-44, Judgement (TC), 2 February 2012, para. 1632:

1632. The Chamber also found that Kambanda’s directive to all préfets dated 25 May 1994 on the organisation of civil defence manifests an agreement to encourage extremist militiamen and armed civilians to attack and kill Tutsis and destroy Rwanda’s Tutsi population.

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, para. 824:

"824. The Chamber found that Tutsi civilians were attacked or killed in Busogo Cellule, Mukingo Commune, in their residence or at their places of shelter on 7 April 1994. The Chamber found that the Accused participated in this attack by directing the Interahamwe from Byangabo market towards Rwankeri Cellule, to join the attack, and by acting as a liaison with Mukamira camp for military and weapons assitance. The Interahamwe attackers at Busogo Hill formed part of a much larger group of people who were attacking the Tutsis in Busogo. This attack killed approximately 80 entire Tutsi families."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 283 – 286, 293, 312:

"283. In 1994, Rwandan officials controlled the militias and civil defence forces. The militias trained in military camps. During times of unrest or emergency states call such groups into duty to supplement its armed forces. The evidence before the Trial Chamber moreover reveals that both the militias and the civil defence forces programme became an integral part of the machinery carrying out the genocidal plan in 1994.

284. One of the means by which an ordinary Rwandan became involved in the genocide was through the civil defence programme. Initially both Hutus and Tutsis were involved in the civil defence programme. Authorities established the civil defence programme in 1990 for the security of the civilian population, whereby they could arm persons at all administrative levels, from the top of the prefecture, down to the cellule. Degni Segui confirmed this scheme during a conversation with Bisimungu, the Chief of Staff of the Armed Forces, the chief of the police and the Commander of the Gendarmerie, during one of his visits to Rwanda. Unfortunately, the civil defence programme was used in 1994 to distribute weapons quickly and ultimately transformed into a mechanism to exterminate Tutsis. Numerous eyewitnesses such as Witnesses C and F confirmed this fact. They testified that they witnessed the distribution of machetes to civilians by the Prefectoral and Communal authorities in early April 1994. Other evidence before this Chamber shows that 50,000 machetes were ordered and distributed through this programme shortly before the commencement of the 1994 massacres, to the militias of the MRND (members of the Interahamwe) and CDR (members of the Impuzamugambi), and the Hutu civilian population. Degni-Segui concluded that in the end this "system served to kill innocent people, namely Tutsis."¹⁶⁶

285. Prosecution evidence, including letters from Rwandan authorities confirmed that "the population must remain watchful in order to unmask the enemy and his accomplices and hand them over to the authorities."¹⁶⁷ Witness R who was familiar with the administrative structure of Rwanda in 1994, affirmed that the people were told to "protect themselves within the Cellules and the Sectors," by organising patrols and erecting roadblocks.¹⁶⁸

286. Other eyewitnesses recounted their versions of the occurrences at the massacre sites and almost all affirmed the presence of members of the Interahamwe and other armed civilians. In fact, several witnesses averred that the majority of the attackers were members of the militias and other civilians who were singing songs of extermination as they approached their victims. Several witnesses further stated that most of these attackers carried machetes and other traditional agricultural tools, as opposed to the gendarmes or police who were armed with guns and grenades."

"166. Trans., 9 Mar. 1998, p. 101-102.

167. Pros. exh. 52, p. 4.

168. Trans., 2 Oct. 1997, p. 51."

"293. The Chamber finds that events in Kibuye unfolded as follows. After the crash of the President’s plane, the atmosphere quickly began to change. The Hutu population began openly to use accusatory or pejorative terms, such as Inkotanyi (Kinyarwanda for RPF accomplice/enemy)¹⁷⁵ and Inyenzi (Kinyarwanda for cockroach) when referring to the Tutsis. The members of the Interahamwe and other armed militant Hutus began a campaign of persecution against the Tutsis based on the victims’ education and social prominence. Simultaneously, the Tutsi population, as a whole, suffered indiscriminate attacks in their homes. Perpetrators set on fire their houses and looted and killed their herds of cattle. Witness A testified that on the morning of 7 April 1994 his Hutu neighbours began to engage in looting, attacking Tutsi-owned houses and slaughter Tutsi-owned livestock. Witnesses C, F, OO and E, corroborated these occurrences."

"175. See the testimonies of Witnesses G, U and Z explaining that Inkotanyi meant "all the Tutsis" or the "enemy"."

"312. Considering this evidence, the Trial Chamber finds that, in Kibuye Prefecture, the plan of genocide was implemented by the public officials. Persons in positions of authority used hate speech and mobilised their subordinates, such as the gendarmes the communal police, and the militias, who in turn assisted in the mobilisation of the Hutu population to the massacre sites where the killings took place. Tutsis were killed, based on their ethnicity, first in their homes and when they attempted to flee to perceived safe havens they were stopped at roadblocks and some were killed on the spot. Those who arrived at churches and stadiums were attacked and as a result tens of thousands perished."

[B. Evidentiary comment:]

P.25.2. Evidence of use of roadblocks.

A. Legal source/authority and evidence:

The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54, Judgement (TC), 20 December 2012, para. 840, 1375:

840. The Chamber also finds beyond reasonable doubt that, later that same day and still prior to the attack on Nyambwega, Ngirabatware returned to the Bruxelles roadblock with two vehicles transporting weapons. Upon arriving at the roadblock, Ngirabatware chastised the Interahamwe for only pretending to work. He said he brought weapons because he did not want to see any Tutsis in Busheke cellule, and he charged that Safari was communicating with "Inyenzi". At the Bruxelles roadblock many Interahamwe were present including Juma. Firearms and grenades were offloaded at this roadblock, and Ngirabatware drove to the nearby Gitsimbi/Cotagirwa roadblock, where he summoned Bagango. Bagango came immediately, and weapons were offloaded. Ngirabatware explained that he brought weapons because he did not want to see any Tutsis in Nyamyumba commune and ordered Bagango to work well. Ngirabatware also told Bagango that Safari needed to be located and killed. After Ngirabatware left, Bagango said that he was going to the commune office.

1375. The Chamber has considered the totality of the evidence adduced in this case, especially as it relates to the ethnic composition of the people who were targeted for attack beginning on 7 April 1994. Starting on this date, weapons were distributed in Nyamyumba commune with the explanation that no Tutsis should remain in the commune. Thereafter, Tutsis were sought out and killed in Nyamyumba commune (3.10.4.7). Others were raped (3.14.5.3; 3.14.6.2). The evidence further establishes that the Gitsimbi/Cotagirwa roadblock in Nyamyumba commune served as a base of operations for persons who attacked, looted and killed civilians, mainly Tutsis.

Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82, Judgement (TC), 3 August 2010, para. 328-329:

328. Paragraphs 15 and 23 of the Indictment identify three roadblocks within Gisagara subprefecture that were allegedly manned by armed civilians and other subordinates of Ntawukulilyayo as locations where Tutsis were killed. The barriers were the "Jaguar" roadblock near the Catholic Church in Gisagara, one near Ntawukulilyayo’s residence and one near the trading centre on the road towards Musha. However, the Chamber recalls that the Prosecution conceded during its final submissions that no specific evidence was led concerning these three checkpoints. The Chamber has also reviewed the evidentiary record and similarly finds that it does not specifically implicate Ntawukulilyayo in the killing of Tutsis at any of these three barriers. While there is general evidence that roadblocks were used to single out and kill Tutsis, none of it demonstrates that killings occurred at any of the roadblocks expressly identified in the Indictment.

329. More specifically, the Chamber’s review of the evidence reveals that roadblocks were established in Gisagara sub-prefecture, after President Habyarimana’s death on 6 April 1994. They were mounted initially to provide security for all persons and, in some instances, manned by Hutus and Tutsis together. Evidence also indicates that later in April, however, roadblocks were used to stop and single out Tutsi civilians. From around 20 April, Prosecution Witnesses AZN, AZV, and BAU saw roadblocks in Gisagara town, which refugees at the market could not pass.

Prosecutor v. Protais Zigiranyirazo, Case No. ICTR-01-77-T, Judgement (TC), 18 December 2008, paras. 413 - 414:

"413. With regard to the evidence led by the Prosecution on the Kiyovu roadblock, the Chamber found that the roadblock was under the charge of Corporal Irandemba, the Accused’s guard. On 12 April 1994, Witness BCW, whose evidence the Chamber accepted, was compelled to man the Kiyovu roadblock. Other watchmen, house-help, and at times, soldiers, also manned the roadblock. The Chamber further found that on 12 April 1994, the Accused passed through the roadblock, saw about three corpses, and gave orders to the men manning the roadblock to check identity papers "well … since Tutsis have changed their identification papers." On 17 April 1994, the Accused passed through the roadblock again, and instructed Corporal Irandemba to find food for the men so that they could remain at the roadblock. Food was delivered on another day from Camp Kigali. On the same occasion, the Accused promised guns to those manning the roadblock. The promise came following an indication from the men that they required the guns to fight at the "battle front." Additionally, the Chamber found that those with Tutsi identity cards were taken aside and killed, and at least between 10 and 20 people were killed at the Kiyovu roadblock.

414. Given the killing of Tutsi at the Kiyovu roadblock, the context within which the killings took place,772 and the checking of identification papers specifically for those of Tutsi ethnicity, the Chamber finds that the only reasonable conclusion is that those who physically perpetrated the killings, possessed the intent to destroy in whole, or in part, the Tutsi ethnic group. Accordingly, the Chamber finds that acts of genocide, as defined under Article 2 of the Statute, took place at the Kiyovu roadblock in April 1994."

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, Judgement (TC), 15 July 2004, para. 470:

"470. Whether by killing Nors the attackers intended to destroy the Tutsi ethnic group, in whole or in part, must be assessed within the context of ethnic killing in Rwanda at the time. First, evidence in the present case confirms findings in many previous cases that roadblocks were places where Tutsi were identified and killed.⁶⁰⁹ Second, Witness CGC testified that he could smell decomposing bodies while he was at the roadblock, and heard that many people had been killed there, both before and after the Accused’s visit. Third, Witness CGC was himself taken to the roadblock and threatened with death because he was a Tutsi, before being rescued by his mentor. Fourth, Defence Witness DC testified that those at the roadblock asked him to stay there to assist in the killing of Nors, who they believed would be returning along the road in a vehicle shortly. Fifth, the killers were undoubtedly aware that Tutsi were being indiscriminately stopped, identified and killed throughout Kibuye, including at control points such as roadblocks. On the basis of these facts, the Chamber infers that, in killing Nors, the participants at this roadblock intended to destroy, in whole or in part, the Tutsi ethnic group."

"609. As, for example, the testimony of Witness CGE, CGF, DL and DM concerning the Gitaka Centre roadblock; Witness DN, concerning massacres at roadblocks (T. 3 November 2003 p. 2003); the expert testimony of Witness Des Forges (T. 24 September 2003) p. 35."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 287 – 288, 294, 312:

"287. The perpetrators of the genocide often employed roadblocks to identify their victims. Both Prosecution and Defence witnesses testified to this fact. Degni-Segui testified that within hours of the President’s death, the military personnel, soldiers, the members of the Interahamwe and armed civilians erected and manned roadblocks. In fact, some roadblocks were erected within thirty to forty-five minutes after the crash of President’s plane and remained throughout Rwanda for at least the following three months. According to this witness "what they had to do was to use identity cards to separate the Tutsis from the Hutus. The Tutsis were arrested and thereafter executed, at times, on the spot."¹⁶⁹

288. De Saint-Exupery confirmed the existence of roadblocks in Rwanda during the time in question. He testified that from Goma to Kibuye on 25 June 1994, "at the approach . . . to each locality, there was a roadblock."¹⁷⁰ Witness Sister Julianne Farrington stated that in May 1994 as she travelled from Butare to Kibuye, she went through 45 roadblocks. She further stated that at some roadblocks military personnel monitored movements, while others were manned by young Hutus in civilian dress. Other witnesses, including witnesses G, T, and Defence witness DA and DM, who travelled through various parts of Rwanda during the genocide, confirmed these facts before this Trial Chamber. The Trial Chamber notes that those who produced identity cards bearing the indication Hutu and those with travel documents were able to pass through these roadblocks without serious difficulties. Conversely, those identified as Tutsis were either arrested or killed. The Trial Chamber recognises that the erection of roadblocks is a natural phenomenon during times of war. However, the roadblocks in Rwanda were unrelated to the military operations. Sadly, they were used to identify the Tutsi victims of the genocide."

"169. Trans., 5 Mar. 1998, p. 105.

170. Trans., 18 Nov. 1997, p. 118."

"294. On their way to the gathering places many witnesses saw roadblocks where the perpetrators separated Tutsis from the Hutus. Once the Tutsis reached these places they were injured, mutilated and some of the women were raped. In the end the Tutsis were massacred by Hutu assailants who sang songs whose lyrics exhorted extermination during the attacks. These attackers were armed and led by local government officials and other public figures. The fact that these massacres occurred is not in dispute. In fact, Kayishema testified that he and others engaged in a clean-up operation after the massacres."

"312. Considering this evidence, the Trial Chamber finds that, in Kibuye Prefecture, the plan of genocide was implemented by the public officials. Persons in positions of authority used hate speech and mobilised their subordinates, such as the gendarmes the communal police, and the militias, who in turn assisted in the mobilisation of the Hutu population to the massacre sites where the killings took place. Tutsis were killed, based on their ethnicity, first in their homes and when they attempted to flee to perceived safe havens they were stopped at roadblocks and some were killed on the spot. Those who arrived at churches and stadiums were attacked and as a result tens of thousands perished."

[B. Evidentiary comment:]

P.25.3. Evidence of distribution of weapons.

A. Legal source/authority and evidence:

The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54, Judgement (TC), 20 December 2012, para. 869-870:

869. The Chamber finds that on 7 April 1994 and prior to the attack on Safari Nyambwega, Ngirabatware went to the Bruxelles area of Nyamyumba commune with two vehicles transporting weapons. At the Bruxelles roadblock, Ngirabatware asked that Faustin Bagango be located. Once Bagango arrived, Ngirabatware said that he brought weapons because he did not want any Tutsis alive in Bruxelles. Ngirabatware provided ten machetes to Bagango, who in turn gave them to Jean Simpunga for further distribution. Simpunga distributed nine machetes to roadblocks in the Bruxelles area and kept one for himself. Bagango said that the rest of the machetes would be taken to Kabilizi and Munanira secteurs in Nyamyumba commune

870. Later that same day, and still prior to the attack on Nyambwega, Ngirabatware returned to the Bruxelles roadblock with two vehicles transporting weapons. Upon arriving at the roadblock, Ngirabatware chastised the Interahamwe for only pretending to work. He said he brought weapons because he did not want to see any Tutsis in Busheke cellule, and he charged that Safari was communicating with "Inyenzi". At the Bruxelles roadblock many Interahamwe were present including Juma. Firearms and grenades were offloaded at this roadblock, and Ngirabatware drove to the nearby Gitsimbi/Cotagirwa roadblock, where he summoned Bagango. Bagango came immediately, and weapons were offloaded. Ngirabatware explained that he brought weapons because he did not want to see any Tutsis in Nyamyumba commune and ordered Bagango to work well. Ngirabatware also told Bagango that Safari needed to be located and killed. After Ngirabatware left, Bagango said that he was going to the commune office

Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D, Judgement (TC), 31 May 2012, para 1281, 1285, 1538:

1281. Based upon an evaluation of the entirety of the evidence, the Chamber concludes that the Prosecution and Defence witnesses testified about the same event. Each of the witnesses confirmed that Kambanda was present, that he spoke at the meeting and that weapons were distributed to the Ndiza battalion. The witnesses provided consistent testimony as to the size and location of the meeting and as to who received weapons. All the witnesses testified that Gaspard Sebahima was present, and Witnesses CNAL, T117 and T114 testified that he received a weapon. Witnesses CNAL, T117 and T114 all testified that Witnesses T114 and T117 received a weapon. The Chamber acknowledges that Witness CNAL testified that 25 guns were distributed whereas the Defence witnesses placed the number between five and 10. The Chamber considers this to be a minor discrepancy.

1285. Considering the consistent testimony of both Prosecution and Defence witnesses as to these details, the Chamber concludes that the witnesses were testifying as to the same incident. Furthermore, the Chamber finds that weapons were distributed at the ceremony and that Kambanda told the attendees that the weapons were to be used to kill the "enemy," meaning the Tutsis.

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 298:

"298. Witness F testified that after the meeting of 8 April, he witnessed machetes being distributed by Ndida, the Commune Secretary. The machetes had been transported into the commune by Prefectoral trucks and the Secretary of Gitesi Commune supervised the unloading. They were taken towards the Petrol Rwanda fuel Station. About twenty persons received a machete each including, Eriel Ndida, Rusigera, Siriaki, Emmanuel, the Headmaster and many others. On 9 April, the local officials departed to other commune after the distribution of machetes. That evening around his neighbourhood in Gitesi, Witness F noticed that the situation had changed and that militant Hutus openly were attacking the Tutsi. The proximity of the distribution of weapons to the massacres of Tutsi civilians is evidence of the genocidal plan. He noticed that militant Hutu had begun throwing rocks at Tutsis and throwing some persons into Lake Kivu. He also observed similar acts of violence in Gishyita commune. He stated that some persons from Gishyita crossed Lake Kivu to take refuge in the commune of Gitesi.¹⁷⁸"

"178. Trans., 22 April 1997, p.36."

[B. Evidentiary comment:]

P.26. Evidence of government’s involvement.

A. Legal source/authority and evidence:

The Prosecutor v. Edouard Karemera and Mathieu Ngirumpatse, Case No. ICTR-98-44, Judgement (TC), 2 February 2012, para. 1632, 1635-36:

1636. The Chamber considers the only reasonable inference to be that Karemera aided and abetted the genocide through the issuance of this letter. His encouragement, as Minister of the Interior and Vice-President of the MRND, to continue killing Tutsis seven weeks after the genocide had begun had a substantial effect on its realisation.

Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, para. 35:

"35. In this case, the factual circumstances, as found by the Trial Chamber, permit the inference that the killing of the Bosnian Muslim men was done with genocidal intent. As already explained, the scale of the killing, combined with the VRS Main Staff’s awareness of the detrimental consequences it would have for the Bosnian Muslim community of Srebrenica and with the other actions the Main Staff took to ensure that community’s physical demise, is a sufficient factual basis for the finding of specific intent. The Trial Chamber found, and the Appeals Chamber endorses this finding, that the killing was engineered and supervised by some members of the Main Staff of the VRS.⁵⁷ The fact that the Trial Chamber did not attribute genocidal intent to a particular official within the Main Staff may have been motivated by a desire not to assign individual culpability to persons not on trial here. This, however, does not undermine the conclusion that Bosnian Serb forces carried out genocide against the Bosnian Muslims."

"57. Trial Judgement, paras. 591 – 599."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 309 – 312, 528 – 530:

310. Some of the most brutal massacres occurred after meetings organized by the Prefectoral authorities and attended by the heads of the Rwandan interim government and/or ordinary citizens of the prefecture to discuss matters of "security."¹⁹¹ During one of these meetings Kayishema was heard requesting reinforcement from the central authorities to deal with the security problem in Bisesero. Witness O testified that on 3 May 1994, Interim Governmental Prime Minister Jean Kambanda visited Kibuye prefecture with a number of other officials, including Ministers of Interior, Information, and Finance, the Prefect of Kibuye, and the General Secretary of MDR party. Witness O attended a meeting with these and other officials in his capacity as an official of Kibuye hospital and voiced his concern regarding seventy-two Tutsi children who survived the massacre at the Complex and were in poor physical condition at Kibuye hospital. Members of the Interahamwe had threatened these children, aged between 8 and 15 years. The Prime Minister did not personally respond to Witness O’s concern, but asked the Minister of Information to do so. That minister rebuked Witness O, remarking that he should not protect people who don’t want to be protected. He also declared that Witness O obviously did not approve of the politics of the Interim Government, and could not recognize the enemy. The Minister of Information gave the impression that the Interim Government recognized these infirm children as enemies. Later, these children were forcibly taken from the hospital and killed.

311. Sister Farrington testified to having witnessed the discriminatory attitude of various Kibuye authorities towards all Tutsis. During the occurrences Sister Farrington went to Kibuye Prefectoral offices to inquire about obtaining a laissez-passer that would allow some of the nuns from her convent to leave Rwanda. Over a period of three days she spoke with the Sous-prefect, Gashangore as well as Kayishema. Gashangore used hostile language when referring to Tutsis and accused specific people in the Prefecture of being "central to the activities of the Inkontany." During another attempt to obtain help, Sister Farrington spoke with Kayishema in his office where he spoke to her in an agitated and aggressive tone. Kayishema told her that there was a war prepared by the Inkotanyi, and the Tutsi people were collaborators of the enemy. As proof he showed her a list of names of people, maps and other documents allegedly preparing Tutsis to become revolutionaries.

Conclusion

312. Considering this evidence, the Trial Chamber finds that, in Kibuye Prefecture, the plan of genocide was implemented by the public officials. Persons in positions of authority used hate speech and mobilised their subordinates, such as the gendarmes the communal police, and the militias, who in turn assisted in the mobilisation of the Hutu population to the massacre sites where the killings took place. Tutsis were killed, based on their ethnicity, first in their homes and when they attempted to flee to perceived safe havens they were stopped at roadblocks and some were killed on the spot. Those who arrived at churches and stadiums were attacked and as a result tens of thousands perished."

"187. Pros. exh. 55-58.

188. Pros. exh. 52, 54 and 296.

189. Pros. exh. 53. (Letter from Kayishema to all Bourgmestres in Kibuye.)

190. Pros. exh. 296."

191. Meetings attended by Prime Minister Kambanda and/or his Ministers included that on 3 May 1994."

"268. See, for example, Pros exh’s. 51 and 53.

269. See Chapter 5.4 , supra (Bisesero Factual Findings.)

270. Pros. exh. 296.

271. Pros. exh. 59."

P.26.1. Evidence of transportation by government vehicles.

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 536:

[B. Evidentiary comment:]

P.26.2. Evidence of involvement of public officials or soldiers in carrying out the attacks.

A. Legal source/authority and evidence:

Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D, Judgement (TC), 31 May 2012, para. 900-902:

900. The parties contest the involvement of commune policemen in the 3.00 a.m. attack on the commune office. Prosecution Witnesses CNAI and CNAX both testified that they saw commune policemen take part in the attack. Defence Witness T28, also an eyewitness, denied that commune policemen were involved. However, the Chamber notes that Witnesses T28 and BCB corroborated the Prosecution witnesses’ testimony that commune policemen were present at the scene of the attack. The Chamber notes that while Witness T28 was not personally implicated in the attack, he was indirectly implicated. The Chamber considers that, consequently, Witness T28 may have had a motive to distance himself from the allegation.

901. Witness T28 stated that he could not identify the assailants because it was raining heavily on the night of the attack. The Chamber notes that this testimony was uncorroborated. No other witnesses testified that it was raining heavily on the night of the attack. Witness CNAI testified that he was able to identify the attackers because of the bright moonlight. Based on the foregoing, the Chamber does not find Witness T28 to be a reliable witness as to the identity of the assailants involved in the attack on the night of 14 to 15 April 1994.

902. Considering the foregoing, the Chamber finds that Witnesses CNAI and CNAX provided consistent, credible and reliable evidence that commune policemen took part in the night time attack on the commune office.

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 643 – 644:

644. The Chamber has found that individuals, soldiers, policemen and Interahamwe attacked the refugees and that a large number of Tutsis were killed by those attackers at the Gikomero Parish Compound on 12 April 1994."

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC), 16 May 2003, para. 414:

"414. As a continuation of the 13 May attack, the Chamber found that on the morning of 14 May, the Accused and many armed attackers, comprising civilians, soldiers, Interahamwe, gendarmes and communal policemen, launched a large-scale attack against the Tutsi refugees at Muyira Hill. The Accused was armed with a gun and shot at Tutsi refugees at Muyira Hill (see II.2.7.5 above)."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 536:

[B. Evidentiary comment:]

P.26.3. Evidence of involvement of public officials in planning the attacks.

A. Legal source/authority and evidence:

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, paras. 821 – 822:

"821. The Chamber found that on the morning of 7 April, at the Mukingo Commune Office, the Accused asked Bourgmestre Harerimana for Police Officers to assist in the killing of Tutsi, but was informed that they had not reported for duty.

822. The Chamber found that there was an attack on the morning of 7 April 1994 against approximately 12 families of Tutsis living in Kinyababa cellule, totalling approximately 80 people. The Chamber found that this attack was carried out in furtherance of the understanding reached at the previous night’s meeting at the Nkuli Commune Office, in which several local officials were present, including the Accused. The Chamber found that Witness GDD, amongst others, reported back to the Accused at the end of the day on what had been achieved, and assured the Accused that they had ‘eliminated everything’."

[B. Evidentiary comment:]

2.1.4. Evidence inferred from the systematic or widespread character or the nature of the genocidal acts.

Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82-T , Judgement (TC), 3 August 2010, para. 456:

"456. Given the systemic and extensive nature of the attack, the Majority has no doubt that its purpose was to eliminate the primarily Tutsi refugees gathered on Kabuye hill and that the assailants possessed genocidal intent. Furthermore, the range of assailants, including soldiers and communal police, who participated in the assault just hours after Ntawukulilyayo sent refugees to Kabuye hill evinces considerable coordination. Indeed, Ntawukulilyayo’s arrival on Kabuye hill with soldiers would no doubt have required planning, given that they were not normally stationed within the sub-prefecture. Under the circumstances, there is no doubt that Ntawukulilyayo instructed refugees to go to Kabuye hill and transported soldiers there with the knowledge of the genocidal intent of the assailants and that his acts would assist the killings. The evidence firmly establishes that Ntawukulilyayo shared that genocidal intent."

P.27. Evidence of systematic and consistent character of the genocidial acts.

A. Legal source/authority and evidence:

Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82-T , Judgement (TC), 3 August 2010, para. 456:

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, para. 496:

"455. Gacumbitsi Judgement (TC), paras. 252-253; Akayesu Judgement (TC), para. 523; Kayishema and Ruzindana Judgement (TC), para. 93; Ntagerura and Others Judgement (TC), para. 663."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, paras. 423 - 424, 427:

"423. The Chamber also took judicial notice that [t]he following state of affairs existed in Rwanda between 6 April 1994 to 17 July 1994. There were throughout Rwanda widespread or systematic attacks against a civilian population based on Tutsi ethnic identification. During the attacks, some Rwandan citizens killed or caused serious bodily or mental harm to persons perceived to be Tutsi. As a result of the attacks, there were a large number of deaths of persons of Tutsi ethnic identity.

424. Based on the factual findings concerning the killings that took place at the four sites in Bicumbi and Gikoro communes enumerated in the Indictment, namely, Ruhanga church, Musha church, Mwulire Hill, and Mabare mosque, the Chamber holds that the situation demonstrates that soldiers, Interahamwe, and other principal authors of the killings were engaged in furthering the general campaign to kill persons identified as Tutsi that was prevalent throughout Rwanda at that time. Moreover, because the killings that occurred at the four sites named in this Indictment were systematically directed against Tutsi civilians, the Chamber infers that the principal perpetrators acted with the intent to destroy the Tutsi ethnical group, as such. Therefore, the Chamber finds that genocide was committed in Bicumbi and Gikoro communes."

"427. The Accused’s intent is evident from the context in which he committed his acts that provided substantial assistance to the principal perpetrators. The specific acts of the Accused must be viewed in the context of the then existing state of attacks that took place against civilian persons identified as Tutsi at various sites in Bicumbi and Gikoro communes. The Chamber has found that the Accused was present at various sites, including Musha church, Mwulire Hill, and Mabare mosque in April 1994, where a substantial number of Tutsi civilians was systematically massacred on account of their identification as Tutsi.⁶⁹³ The Accused, having been present at these massacre sites, knew that the principal perpetrators of the killings were killing Tutsi based on their ethnical identification. This knowledge provides evidence of the Accused’s intent for complicity to commit genocide."

"693. See Semanza, Decision on Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, Annex A, para. 2. See Annex II, Part A, para. 2."

Prosecutor v. Duško Sikirica et al., Case No. IT-95-8-T, Judgement on Defence Motions to Acquit (TC), 3 September 2001, paras. 95 – 96:

"95. The Prosecution has also referred to the methodical way in which the killings were planned as well as the systematic manner of killing and the disposal of bodies. The evidence does not support the conclusion that there was any particular system in disposing of bodies. Indeed, apart from the Room 3 massacre, the killings appear to have been sporadic. The Room 3 massacre of about 120 people is an episode, which, by itself, would not necessarily signify a particular system of killing.

96. Although the factors raised by the Prosecution have been examined on an individual basis, the Chamber finds that, even if they were taken together, they do not provide a sufficient basis for inferring the requisite intent."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Judgement (AC), 5 July 2001, para. 47:

"47. As to proof of specific intent, it may, in the absence of direct explicit evidence, be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts."

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, paras. 62 – 63:

"62. On the issue of determining the offender’s specific intent, the Chamber applies the following reasoning, as held in Akayesu:

63. Thus evidence of the context of the alleged culpable acts may help the Chamber to determine the intention of the Accused, especially where the intention of a person is not clear from what that person says or does. The Chamber notes, however, that the use of context to determine the intent of an accused must be counterbalanced with the actual conduct of the Accused. The Chamber is of the opinion that the Accused’s intent should be determined, above all, from his words and deeds, and should be evident from patterns of purposeful action."

"59. Akayesu (TC) paras.523"

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (AC), 1 June 2001, para. 148:

"220. Trial Judgement, para. 540.

221. Ibid., para. 540. See also paras 531-539."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 88:

"88. As has already been seen, the collection of the population in centres located at different points around the town, their subsequent transfer to detention camps and the interrogations always conducted in an identical manner over a short period of time demonstrate that the operation launched by the Serbian forces against the Muslim population of Brcko was organised. Consequently, whether this organisation meant to destroy in whole or in part the Muslim group must be established."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 93, 289 – 291, 534 – 537:

"39. Cited in Bassiouni, in The Law of the International Criminal Tribunal for the Former Yugoslavia, p. 524, and UN and Rwanda, 1993-6, p. 432, para. 166.

40. Wisconsin International Law Journal, 243 (1996).

41. UN Doc. E/CN.4/Sub.2/1985/6, p. 16, para. 29.

290. The cruelty with which the attackers killed, wounded and disfigured their victims indicates that the propaganda unleashed on Rwanda had the desired effect, namely the destruction of the Tutsi population. The involvement of the peasant population in the massacres was facilitated also by their misplaced belief and confidence in their leadership,¹⁷² and an understanding that the encouragement of the authorities to guaranteed them impunity to kill the Tutsis and loot their property.

291. Final reports produced estimated the number of the victims of the genocide at approximately 800,000 to one million, nearly one-seventh of Rwanda’s total population.¹⁷³ These facts combined prove the special intent requirement element of genocide. Moreover, there is ample evidence to find that the overwhelming majority of the victims of this tragedy were Tutsi civilians which leaves this Chamber satisfied that the targets of the massacres were "members of a group," in this case an ethnic group. In light of this evidence, the Trial Chamber finds a plan of genocide existed and perpetrators executed this plan in Rwanda between April and June 1994."

"171. Trans., 5 Mar. 1998, 84."

172. See Part II, supra discussing the Historical Context of 1994 Events in Rwanda.

173. Pros. exh. 331B, p. 5."

"534. The Trial Chamber finds compelling evidence that the attacks were carried out in a methodical manner. The Prosecution submitted that evidence of specific intent (dolus specialis) arises from the repetitive character of the planned and programmed massacres and the constant focus on the Tutsi members of the population. The perpetrators did not commit just one massacre but continually killed the Tutsi from April to June 1994.²⁷²

535. This consistent and methodical pattern of killing is further evidence of the specific intent. Kayishema was instrumental in executing this pattern of killing. Tutsi refugees gathered in places which had served historically as safe havens including the Complex, the Stadium and Mubuga Church. These places were surrounded by Hutu assailants, those inside the structure were not allowed to leave, and were denied food, medicine or sanitary facilities.²⁷³ Eventually, the refugees were massacred. If there were too many Tutsis to kill in one day the killers would return to finish off their ‘work’ the next morning. This Chamber finds that Kayishema instigated the attacks at the Complex and the Stadium.

536. In the area of Bisesero the attacks continued for several months; April, May and June of 1994. At Bisesero, evidence proves that Kayishema was leading and directing the attacks. The attackers were transported by government buses and other vehicles. This Chamber finds that Ruzindana brought the Hutu attackers in his personal vehicles and that Kayishema did the same in the trucks belonging to the Prefecture. The assailants included the local officials such as the bourgmestres, counseillers, communal police, the gendarmerie nationale, members of the Interahamwe, other soldiers as well as the accused themselves.

537. The weapons used and the methods by which the Tutsis were killed are also consistent throughout the four crime sites. Generally, the witnesses testified that Kayishema and the gendarmes were armed with guns and grenades while other attackers used traditional farming instruments such as machetes and crude weapons such as bamboo spears. Grenades and guns were used at the crime sites where the Tutsis were taking refuge in enclosed spaces to start the attack, and thereafter victims were hacked to death by machetes. Kayishema and Ruzindana both were seen carrying firearms at the crime sites."

"272. Trans., 21 Oct. 1998, pp. 125 and 141.

273. See supra Chapter 5.3 (discussing safe places)."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 523, 728:

"523. On the issue of determining the offender’s specific intent, the Chamber considers that intent is a mental factor which is difficult, even impossible, to determine. This is the reason why, in the absence of a confession from the accused, his intent can be inferred from a certain number of presumptions of fact. The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.

524. Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia also stated that the specific intent of the crime of genocide

Thus, in the matter brought before the International Criminal Tribunal for the former Yugoslavia, the Trial Chamber, in its findings, found that

102. Ibid. Paragraph 95."

"179. See above the findings of the Trial Chamber on the law applicable to the crime of genocide."

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 513:

Guatemala: Memory of Silence, Report of the Commission for Historical Clarification February 1999 (online: Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1521-1522:

1521. While these attacks only resulted in the deaths of two Tutsis and the serious bodily harm of a third, the Chamber has no doubt that the perpetrators acted with the intent to destroy at least a substantial part of the Tutsi group. These attacks were emblematic of the systematic nature in which Tutsi civilians were identified and killed on an ongoing basis at this roadblock and others manned by ESO soldiers in Butare town. Notably, a prominent Tutsi lecturer, Pierre Claver Karenzi, was killed in the vicinity of a nearby roadblock manned by ESO soldiers on the same day that Rwekaza was killed and Witness ZAV was shot.

1522. Indeed, these attacks followed President Sindikubwabo’s 19 April 1994 speech, which marked a significant increase in violence and the targeting of Tutsi civilians within Butare town. Around 20 April, ESO soldiers killed Rosalie Gicanda, the former Tutsi Queen of Rwanda, and others taken from her home. Around 21 April, ESO soldiers participated in the separation and killing of Tutsis at the Butare University. Around 29 April, ESO soldiers participated in the separation and removal of Tutsis at the Groupe Scolaire, which led to their subsequent slaughter. There is additional evidence that, starting in the last third of April, soldiers used lists to identify and kill Tutsis at the Butare University Hospital.

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 546 – 547:

"546. […] The military aged men who fled to Potocari were systematically separated from the other refugees. They were gathered in the "White House" and were forced to leave their identification papers and personal belongings outside the house. While opportunistic killings occurred in Potocari on 12 and 13 July,¹²⁰⁰ most of the men detained in the White house were bussed to Bratunac, from the afternoon of 12 July throughout 13 July,¹²⁰¹ and were subsequently led to execution sites. Additionally, the VRS launched an artillery attack against the column of Bosnian Muslim men marching toward Tuzla soon after it became aware of its existence.¹²⁰² A relentless search for the men forming the column started on 12 July and continued throughout 13 July. The few survivors qualified the search as a "man hunt" that left hardly any chance of escape.¹²⁰³ Attack resumed on 14 and 15 July against the third of the column that had managed to cross the asphalt road between Konjevic Polje and Nova Kasaba on 11-12 July.¹²⁰⁴ […]

547. […] The strength of the desire to capture all the Bosnian Muslim men was so great that Bosnian Serb forces systematically stopped the buses transporting the women, children and the elderly at Tisca and checked that no men were hiding on board.¹²¹¹ Those men found in the buses were removed and subsequently executed.¹²¹² Admittedly, as the Defence has argued, some wounded men were authorised to leave the Srebrenica enclave under the escort of UNPROFOR. A report of 13 July, however, indicates that the VRS agreed to their evacuation only because of the presence of UNPROFOR and in order to show to the media that non-combatants were properly treated.¹²¹³ Except for the wounded, all the men, whether separated in Potocari or captured from the column, were executed, either in small groups or in carefully orchestrated mass executions. They were led to sites located in remote places for execution. The men, sometimes blindfolded, barefoot or with their wrists bound behind their backs, were lined up and shot in rounds. Others were jammed into buildings and killed by rounds of automatic rifles or machine gunfire, or with hand grenades hurled into the buildings.¹²¹⁴ […]"

"1200. Supra, paras. 43-47, 58.

1201. Supra, para. 59, 66.

1202. An intercept submitted into evidence indicates that the Bosnian Serbs were aware of the column as of 12 July at 0300 hours. supra, para. 162.

1203. Supra, para. 62.

1204. Supra, para. 65.

[…]

1211. Supra, para. 216. The screening of the men probably took place on 12 July and in the earlier hours of 13 July.

1212. para. 106.

1213. P459, supra para. 86.

1214. Execution in Kravica on 13 July, Pilica cultural Dom on 16 July."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 535:

"273. See supra Chapter 5.3 (discussing safe places)."

[B. Evidentiary comment:]

P.27.2. Evidence of systematic disposal of bodies.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 547:

"547. […] Bulldozers usually arrived immediately after the execution was completed, to bury the corpses.¹²¹⁵ Soldiers would sometimes start digging the graves while the executions were still in progress.¹²¹⁶ Bosnian Serb soldiers would come back to the execution sites a few hours later and check that no one had been left alive.¹²¹⁷ The evidence shows that the VRS sought to kill all the Bosnian Muslim military aged men in Srebrenica, regardless of their civilian or military status."

"1215. Supra, para. 68.

1216. Orahovac, 14 July.

1217. See esp. Witnesses J and K’s testimony who are survivors of the execution carried out at the Kravica warehouse. supra para. 207."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 120:

"120. Dr. Alison Desforges testified that many Tutsi bodies were often systematically thrown into the Nyabarongo river, a tributary of the Nile. Indeed, this has been corroborated by several images shown to the Chamber throughout the trial. She explained that the underlying intention of this act was to "send the Tutsi back to their place of origin", to "make them return to Abyssinia", in keeping with the allegation that the Tutsi are foreigners in Rwanda, where they are supposed to have settled following their arrival from the Nilotic regions.⁵⁴"

"54. See supra, in the chapter on the history of Rwanda, the statements made by Léon Mugesera during the meeting of the MRND held on 22 November 1992, referred to the fact that Tutsi had supposedly come from Ethiopia and that, after they were killed, their bodies should be thrown into the Rwandan tributaries of the Nile, so that they can go back to where they supposedly came. See Prosecution Exhibit tendered and recorded as No. 74."

[B. Evidentiary comment:]

P.27.3. Evidence of consistency of the weapons employed.

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 537:

"537. The weapons used and the methods by which the Tutsis were killed are also consistent throughout the four crime sites. Generally, the witnesses testified that Kayishema and the gendarmes were armed with guns and grenades while other attackers used traditional farming instruments such as machetes and crude weapons such as bamboo spears. Grenades and guns were used at the crime sites where the Tutsis were taking refuge in enclosed spaces to start the attack, and thereafter victims were hacked to death by machetes. Kayishema and Ruzindana both were seen carrying firearms at the crime sites."

[B. Evidentiary comment:]

P.27.4. Evidence of consistency in the modus operandi.

A. Legal source/authority and evidence:

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1531-1533:

1531. Indeed, this killing followed President Sindikubwabo’s 19 April 1994 speech, which marked a significant increase in violence and the targeting of Tutsi civilians within Butare town. Around 20 April, ESO soldiers killed Rosalie Gicanda, the former Tutsi Queen of Rwanda, and others taken from her home. Around 21 April, ESO soldiers participated in the separation and killing of Tutsis at the Butare University. Around 29 April, ESO soldiers participated in the separation and removal of Tutsis at the Groupe Scolaire, which led to their subsequent slaughter. There is additional credible evidence that, starting in the last third of April, soldiers used lists to identify and kill Tutsis at the Butare University Hospital. When viewing this killing in context, the only reasonable conclusion is that the physical perpetrator possessed genocidal intent.

1532. The Chamber observes that there is no direct evidence demonstrating that Nizeyimana ordered or authorised this particular killing. Notwithstanding, the Chamber considers it significant that it occurred on the same day when Nizeyimana ordered ESO soldiers manning a roadblock just down the road to kill two Tutsis. Indeed, the Chamber has no doubt that the Hotel Faucon roadblock was among a network of geographically proximate roadblocks manned by ESO soldiers – including those at the Gikongoro / Cyangugu and Kigali roads junction and at Chez Bihira – that were turned towards the task of identifying and eliminating Tutsis, at least by the last third of April 1994.

1533. In the Chamber’s view, the open and notorious manner in which Tutsis were being targeted at these roadblocks, which were only a short distance apart, cannot reasonably be understood as coincidence. The only reasonable inference is that the instructions Nizeyimana issued at Gikongoro / Cyangugu and Kigali roads junction were necessarily transmitted and consistent with those issued to the Hotel Faucon roadblock down the road. Nizeyimana’s proven conduct in relation to killings and attack at the Gikongoro / Cyangugu and Kigali roads junction barrier is sufficient to establish that he similarly approved of and authorised the killings of Tutsi at the Hotel Faucon roadblock as well, which, by implication, included Pierre Claver Karenzi. The Chamber has no doubt that the ESO soldier who killed Karenzi did so knowing he had the full support of Nizeyimana. Given his considerable authority and high rank within the ESO’s hierarchy, such approval and authorisation significantly and substantially contributed to this killing. The Chamber also considers that this conduct establishes that Nizeyimana possessed genocidal intent and was aware of the physical perpetrator’s genocidal intent as well.

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 88:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 535:

"273. See supra Chapter 5.3 (discussing safe places)."

[B. Evidentiary comment:]

P.28. Evidence of widespread nature of the genocidial acts.

A. Legal source/authority and evidence:

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, paras. 496, 498, 516:

"455. Gacumbitsi Judgement (TC), paras. 252-253; Akayesu Judgement (TC), para. 523; Kayishema and Ruzindana Judgement (TC), para. 93; Ntagerura and Others Judgement (TC), para. 663."

"498. […] There is no numeric threshold of victims necessary to establish genocide⁴⁵⁷, even though the relative proportionate scale of the actual or attempted destruction of a group, by any act listed in Article 2 of the Statute, is strong evidence of the intent to destroy a group, in whole or in part.⁴⁵⁸

"457. Gacumbitsi Judgement (TC), para. 253; Semanza Judgement (TC), para. 316.

458. Gacumbitsi Judgement (TC), para. 253; Kayishema and Ruzindana Judgement (TC), para. 93."

"516. Factors such as the sheer scale of the massacres, during which a great number of Tutsi civilians died or were seriously injured, and the number of assailants who were involved in the attacks against Tutsi civilians, lead the Chamber to the irresistible conclusion that the massacres, in which the Accused participated, were intended to destroy the Tutsi group in whole or in part."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 697, 973:

"697. In view of the specific intent required for genocide, it is not necessary to prove the de facto destruction of the group in whole or in part.¹⁷¹⁵ Nevertheless, the de facto destruction of the group may constitute evidence of the specific intent and may also serve to distinguish the crime of genocide from the inchoate offences in Article 4(3) of the Statute, such as the attempt to commit genocide.¹⁷¹⁶"

"1715. See Stakić Trial Judgement , para. 522.

1716. See further para. 725 supra."

"973. As the Milošević Trial Chamber has stated, "the extent of the actual destruction, if it does take place, will more often than not be a factor from which the inference may be drawn that the underlying acts were committed with the specific intent".²⁴⁴⁶ In determining whether the requisite specific intent can be inferred from the evidence, the Trial Chamber will examine the evidence as to the actual destruction of the groups within the terms of Article 4(2)(a), (b) and (c).²⁴⁴⁷"

"2446. Milošević Rule 98bis Decision, para. 125.

2447. Ultimately, for the purposes of any eventual conviction, it would still have to be shown that the Accused is responsible for these acts under one of the bases of responsibility plead in the Indictment. But for the moment the analysis will take place without taking those requirements into account."

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, Judgement (TC), 15 July 2004, para. 460:

"460. The Tutsi civilians on Gitwa Hill were sporadically attacked from about 17 April until a final, devastating attack on 26 April, resulting in the deaths of thousands of men, women and children. The attackers were mostly civilians, armed with guns, grenades, machetes and other weapons. Many thousands were killed that day because they were Tutsi. The events at Gitwa Hill formed part of a wider context of ethnically motivated massacres of Tutsi throughout Rwanda, including Kibuye Prefecture. Defence and Prosecution witnesses alike offered overwhelming and uncontradicted evidence of organized massacres of Tutsi, based on their ethnic identity, starting soon after 6 April.⁵⁹⁹ Indeed, thousands of attackers who had participated in attacks in Kibuye Town, proceeded to Gitwa Hill. In this context, it would have been impossible for the attackers to be unaware that their actions were part of a wave of massacres of a substantial number of Tutsi throughout Kibuye Prefecture and Rwanda."

"599 The Defence expert testified: "Now we are at the beginning of 1994…. We understand that there's ethnic tension…. President Habyarimana's plane [is] shot down. Then this was followed by the massacre of the Tutsi. Now, the massacres ran for several months." T. 19 November 2003 pp. 34-35. Direct evidence of massacres, in addition to that at Gitwa Hill, was offered by Witnesses DC, DN and CGH concerning a bloody attack on Tutsis at Gatwaro stadium, in Kibuye on 18 April; by Witnesses DC and DN of a massacre at Home St. Jean on 17 April; and by Witness DC of massacres at Rutsiro commune around 11 April. This testimony confirms repeated factual findings by Trial Chambers that there were widespread attacks against Tutsi civilians on the basis of their ethnicity in Rwanda from April through June 1994: Nahimana et al., Judgement (TC), paras. 120-121; Semanza, Judgement (TC), para. 277; Niyitegeka, Judgement (TC), paras. 392-394, 403; Kayishema and Ruzindana, Judgement (TC), para. 289; Akayesu, Judgement (TC), para. 126; Rutaganda, Judgement (TC), paras. 371-77. These widespread attacks have been expressly characterized as genocide in several cases, including, Nahimana, Judgement (TC), para. 121; Kayishema and Ruzindana, Judgement (TC), para. 291; and Akayesu , para. 126. The characterization, in appropriate circumstances, of a massacre or series of massacres as genocide was recently approved by the Appeals Chamber: Krstić, Judgement (AC), para. 37."

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, paras. 252, 258:

"252. It is possible to infer the genocidal intent inherent in a particular act charged from the perpetrator’s deeds and utterances considered together, as well as from the general context of the perpetration of other culpable acts systematically directed against that same group, notwithstanding that the said acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership in a particular group, while excluding members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.²³⁷"

"237. Akayesu Judgment (TC), para. 523; Ntagerura and Others Judgment (TC), para. 663, Kajelijeli Judgment (TC), paras. 804 to 805."

"249. See ILC Report (1996), para. 8."

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, para. 125:

"125. Since the acts in Article 4(2) of the Statute are only required to be committed with an intent to destroy the protected group, it is clear that the actual destruction of the group need not take place. However, the extent of the actual destruction, if it does take place, will more often than not be a factor from which the inference may be drawn that the underlying acts were committed with the specific intent to destroy, in whole or in part, a specific group as such.²²⁸"

"228 - See B. Whitaker, "Revised and updated report on the question of the prevention and punishment of the crime of genocide", 2 July 1985, U.N. Doc. E/CN.4/Sub.2/1985/6 ("United Nations Expert Study on Genocide"), at para. 29 ("Genocide need not involve the destruction of a whole group . . . the relative proportionate scale of the actual or attempted destruction of a group, by any means listed in Articles II and III of the Convention, is certainly strong evidence to prove the necessary intent to destroy a group, in whole or in part.")."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, para. 35:

"57. Trial Judgement, paras. 591 – 599."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 629:

"629. In the Report of the Sub-Commission on Genocide, the Special Rapporteur stated: ‘The relative proportionate scale of the actual or attempted destruction of a group, by any act listed in Articles II and III of the Genocide Convention, is strong evidence to prove the necessary intent to destroy a group in whole or in part.’"

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 423:

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, paras. 62 – 63:

"62. On the issue of determining the offender’s specific intent, the Chamber applies the following reasoning, as held in Akayesu:

"524. Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia also stated that the specific intent of the crime of genocide

Thus, in the matter brought before the International Criminal Tribunal for the former Yugoslavia, the Trial Chamber, in its findings, found that

102. Ibid. Paragraph 95."

"730. Furthermore, the Chamber has already established that genocide was committed against the Tutsi group in Rwanda in 1994, throughout the period covering the events alleged in the Indictment¹⁸⁰. Owing to the very high number of atrocities committed against the Tutsi, their widespread nature not only in the commune of Taba, but also throughout Rwanda, and to the fact that the victims were systematically and deliberately selected because they belonged to the Tutsi group, with persons belonging to other groups being excluded, the Chamber is also able to infer, beyond reasonable doubt, the genocidal intent of the accused in the commission of the above-mentioned crimes."

"180. See above, the findings of the Trial Chamber on the occurrence of genocide against the Tutsi group in Rwanda in 1994."

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 513:

P.28.1. Evidence of the scale of the attack.

A. Legal source/authority and evidence:

Prosecutor v. Protais Zigiranyirazo, Case No. ICTR-01-77-T, Judgement (TC), 18 JDecember 2008, paras. 400 - 402:

"400. The Chamber found that the Prosecution proved beyond reasonable doubtthat hundreds and possibly more than a thousand Tutsi civilians sought refuge on Kesho Hill on the morning of 8 April 1994. Following a first unsuccessful attack by assailants, the Chamber found that on the morning of 8 April 1994, the Accused arrived at Kesho Hill as part of a convoy which included officials, Presidential Guards, soldiers, Interahamwe and civilians. The Chamber did not find that the Accused led the convoy.

401. The Chamber further found that, upon arrival at the site, the Accused and other officials, including bourgmestre Bazabuhande, and Jaribu, the Director of the Rubaya Tea Factory, addressed the assailants from a position close to the road at the base of the hill. Bazabuhande spoke first, then the Accused, and then Jaribu. The Chamber did not make a finding on the exact words spoken by the Accused, or whether one of the three officials ordered the attack. However, the Chamber did find that the crowd of assailants applauded the Accused’s speech, and immediately after the three speeches, commenced the attack using guns, grenades and traditional weapons, on the Tutsi civilians who had sought refuge on the hill. The Chamber found that between 800 and 1500 Tutsi were killed that day.

402. Given the ethnicity of the victims, the scale of the killings, and the contextwithin which they took place,766 the only reasonable conclusion is that the physical perpetrators of the killings possessed the intent to destroy in whole or in part the Tutsi ethnic group. Accordingly, the Chamber finds that acts of genocide, as defined under Article 2 of the Statute, took place on Kesho Hill on 8 April 1994."

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, Judgement (TC), 15 July 2004, paras. 461, 470:

"461. Even in the absence of other massacres, a brutal attack targeting several thousand members of an ethnic group, is itself indicative of the requisite intent to destroy an ethnic group, in whole or in part. Those who participated in the attacks on Gitwa Hill on 26 April and preceding days, committed genocide."

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, para. 246:

"246. On the basis of the inference that may be drawn from this evidence, a Trial Chamber could be satisfied beyond reasonable doubt that there existed a joint criminal enterprise, which included members of the Bosnian Serb leadership, whose aim and intention was to destroy a part of the Bosnian Muslim population, and that genocide was in fact committed in Brčko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Ključ and Bosanski Novi. The genocidal intent of the Bosnian Serb leadership can be inferred from all the evidence, including the evidence set out in paragraphs 238-245. The scale and pattern of the attacks, their intensity, the substantial number of Muslims killed in the seven municipalities, the detention of Muslims, their brutal treatment in detention centres and elsewhere, and the targeting of persons essential to the survival of the Muslims as a group are all factors that point to genocide."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 644:

"644. The Chamber has found that individuals, soldiers, policemen and Interahamwe attacked the refugees and that a large number of Tutsis were killed by those attackers at the Gikomero Parish Compound on 12 April 1994."

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC), 16 May 2003, para. 413:

Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10-T and ICTR-96-17-T, Judgement (TC), 21 February 2003, para. 785:

"785. The Chamber found that a large number of men, women and children, the majority unarmed Tutsi, sought shelter from violence and attacks around Mugonero in the days following 6 April 1994 and that many assembled at the Mugonero Complex for that purpose. The Chamber further found that the attack of 16 April at the Complex, which lasted throughout the day and into the night, claimed hundreds of lives among the refugees at the Complex and left many wounded. It further found that the attack specifically targeted the Tutsi population -- irrespective of age or sex -- for the sole reason of their ethnicity. In the Chamber’s view, the massive and systematic character of the attack and ensuing onslaught, as described above, leaves no doubt as to the fact that the violent assault proceeded on the basis of an intent to destroy, in its whole, the Tutsi population at the Complex.^{Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 546:}

"546. Overall, however, as many as 8,000 to 10,000 men from the Muslim column of 10,000 to 15,000 men were eventually reported as missing.¹²⁰⁷"

"1207. Supra, para. 83."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 531, 533:

"531. The number of Tutsis killed in the massacres, for which Kayishema is responsible, either individually or as a superior, provides evidence of Kayishema’s intent. The Trial Chamber finds that enormous number of Tutsis were killed in each of the four crime sites. In the Complex, the number of Tutsis killed was estimated to be about 8,000; there were between 8,000 and 27,000 Tutsis massacred at the Stadium; and, at Mubuga Church between 4,000 and 5,500 Tutsi were massacred. The number killed in Bisesero is more difficult to estimate, however, evidence suggests that the number of those who perished was well into the tens of thousands.

"533. The number of the Tutsi victims is clear evidence of intent to destroy this ethnic group in whole or in part. The killers had the common intent to exterminate the ethnic group and Kayishema was instrumental in the realisation of that intent."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 523:

[B. Evidentiary comment:]

P.28.2. Evidence of the number of the victims.

A. Legal source/authority and evidence:

Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36A-T, Judgement (TC), 5 July 2010, para. 496:

"496. The Trial Chamber has already found that Munyakazi was the leader of the attack on Shangi Parish on 29 April 1994, and one of the leaders of the attack on Mibilizi Parish on 30 April 1994 (see Chapters II.8 and II.9). All the evidence indicates that apart from a very small number of individual parish staff and gendarmes, who were not killed during these attacks, those present at the two parishes were predominantly Tutsi civilians. The assailants killed approximately 5,000-6,000 refugees in the course of the 29 April 1994 attack on Shangi Parish. Approximately 60-100 Tutsis were killed by the same groups during the 30 April attack on Mibilizi Parish. Very few refugees survived either attack, and thus the Trial Chamber is able to infer that the overall intent of the attackers was to eliminate members of a protected group on the basis of its ethnic composition. The Defence has not suggested that there was any other motive or purpose or intent underlying these attacks."

Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, para. 868:

"868. In the instances of extermination, the Chamber has considered whether a genocidal intent of the perpetrator could be inferred directly from the large number of killings. In this context, the Chamber has also considered the number of victims relative to the number of Muslims and Croats present in the village or detention centre where the killings took place, and the selection of the victims. The Chamber finds that in no instance are the killings themselves sufficient to make a conclusive finding on whether the perpetrator had a genocidal intent."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 974:

"974. The proper basis for comparison would be between those Bosnian Muslims or Bosnian Croats who were victims within the terms of Article 4(2)(a), (b) or (c), and the populations of those groups in the whole ARK. However, since the Prosecution has lead evidence of underlying acts only for some municipalities, the Trial Chamber has looked at the number of Bosnian Muslims and Bosnian Croats in the relevant ARK municipalities, excluding Celinac and Sipovo. The number of Bosnian Muslims and Bosnian Croats who were victims within the terms of Article 4(2)(a), (b) or (c) as such and of itself does not allow the Trial Chamber to legitimately draw the inference that the underlying acts were motivated by genocidal intent.²⁴⁴⁸ Still, this does not necessarily negate the inference that there was an intent to destroy in part the Bosnian Muslim and Bosnian Croat groups. However, in the Trial Chamber’s view, when considering that fact along with other aspects of the evidence, the intent to destroy parts of the Bosnian Muslims and Bosnian Croats is not the only reasonable inference that may be drawn from the evidence."

"2448. The Trial Chamber has already found that at least 1,669 Bosnian Muslim and Bosnian Croat non-combatants were killed by armed Serb forces. It has also found that conditions calculated to bring about physical destruction were deliberately inflicted on approximately 13,924 Bosnian Muslims and Bosnian Croats. The regular transfer of detainees between different camps and detention facilities may cause some distortion in these numbers. On the other hand, the populations of Bosnian Muslims and Bosnian Croats in the relevant ARK municipalities, excluding Sipovo and Celinac, were, according to the 1991 census, 228,717 and 63,207 respectively. The victims would amount to about 5,34% of the population of those groups in the ARK. It is more difficult to give an estimate of those who were subjected to serious bodily and/or mental harm. In the first place , this is because there is no evidence of the number detained for the following detention facilities: Banja Luka CSB, Mali Logor, Viz Tunjice Penitentiary, Donji Vakuf SUP building, Kljuc SUP building, Nikola Mackic School, Ljubija football stadium , Prijedor SUP building, Teslic SUP building, the reason being that the majority of these were places of interrogation rather than of confinement. Mali Logor and Viz Tunjice Penitentiary, on the other hand, were penitentiary centres in existence before the war. In the second place, this is because although the evidence demonstrates that the beatings were widespread, they were not administered on all detainees, particularly when these were women and children. Nevertheless, of those detention facilities for which there is an estimated number of detainees, around 15,623 Bosnian Muslims and Bosnian Croats were detained in those camps and detention facilities where serious bodily and/or mental harm was inflicted on some of them."

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, para. 246:

Prosecutor v. André Ntagerura et al., Case No. ICTR-96-10A-T, Judgement (TC), 25 February 2004, para. 690:

"690. The Chamber also finds that the soldiers at the Gashirabwoba football field possessed the requisite intent during the killings on 12 April 1994, that is, to destroy, in whole or in part, members of the Tutsi ethnic group. […] The soldiers’ intention to destroy the Tutsi group, in whole or in part, can be inferred from the context of the massacre at the Gashirabwoba fooball field and from the other events occurring in Cyangugu at that time. The Cahbmer recalls that soldiers came to the fooball field the evening before the massacre and asked the refugees whether they were all Tutsis. The refugees informed the soldiers that there were some Hutus amongst them. Thus, the soldiers were aware that the primary ethnic composition of the refugees at the Gashirabwoba football field was Tutsi. In the Chamber’s view, the manner in which the soldiers killed the refugees and the resulting large number of victims reflect the soldiers’ intention to destroy members of the Tutsi ehtnic group, in whole or in part. In reaching this conclusion, the Chamber has also considered the overwhelming evidence in this case that, at the time of the massacre at the Gashirabwoba football field, thousands of Tutsis in Cyangugu were being forced to seek refuge in parishes and schools or to hide in the bush because their Hutu neighbours and Interahamwe attacked them in their homes."

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, para. 810, 824:

"810. The Kayishema and Ruzindana Trial Chamber quoted the Report of the Sub-Commission on Genocide where the Special Rapporteur stated that ‘[t]he relative proportionate scale of the actual or attempted destruction of a group, by any act listed in Articles II and III of the Genocide Convention, is strong evidence to prove the necessary intent to destroy a gorup in whole or in part.’¹⁰⁴⁸"

"1048. Kayishema and Ruzindana, Judgment (TC), para. 93."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 423, 427:

"693. See Semanza, Decision on Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, Annex A, para. 2. See Annex II, Part A, para. 2."

Prosecutor v. Duško Sikirica et al., Case No. IT-95-8-T, Judgement on Defence Motions to Acquit (TC), 3 September 2001, paras. 93 – 94:

"93. The Prosecution has referred to the general and widespread nature of the atrocities committed as well as the scale of the actual or attempted destruction as evidence from which the requisite intent may be inferred.

94. While the general and widespread nature of the atrocities committed may be evidence of a plan of persecution, the Chamber holds that, in the circumstances of this case, it is not sufficient to satisfy the specific intent required for the crime of genocide. As for the scale of the actual or attempted destruction, the analysis in paragraphs 69-74 shows that it was only a small percentage of the Bosnian Muslim or Bosnian Croat group that were victims within the terms of Article 4(2)(a), (b) and (c) of the Statute. The Chamber is unable to infer from this evidence an intent to target a substantial number of Bosnian Muslims or Bosnian Croats."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 546:

"546. […] Overall, however , as many as 8,000 to 10,000 men from the Muslim column of 10,000 to 15,000 men were eventually reported as missing.¹²⁰⁷"

"1207. Supra, para. 83."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Judgement (AC), 5 July 2001, para. 47:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (AC), 1 June 2001, para. 148:

"220. Trial Judgement, para. 540.

221. Ibid., para. 540. See also paras 531-539."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras 89 – 90:

90. During the exhumations which took place in summer 1997, approximately 66 bodies were discovered scattered about in four mass graves. The positions of the bodies indicate that they were piled haphazardly into the graves¹²⁶. Most were the bodies of males of fighting age and most of them had been shot dead¹²⁷."

"123. Akayesu Judgement, paras. 544-547.

124. Witness J, FPT p. 830.

125. Witness I, FPT pp. 687-758.

126. Witness L, FPT p. 965; Witness D, FPT p.445. Allegedly, these bodies were then loaded into a refrigerated lorry (Witness A, FPT p. 5; Witness J, FPT p. 773), while others were thrown into the Sava River (Witness B, FPT pp. 136-139).

127. Testimony of Mr. Wright, FPT p. 1356, exhibit 60."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 93, 291:

"39. Cited in Bassiouni, in The Law of the International Criminal Tribunal for the Former Yugoslavia, p. 524, and UN and Rwanda, 1993-6, p. 432, para. 166.

40. Wisconsin International Law Journal, 243 (1996).

41. UN Doc. E/CN.4/Sub.2/1985/6, p. 16, para. 29.

"291. Final reports produced estimated the number of the victims of the genocide at approximately 800,000 to one million, nearly one-seventh of Rwanda’s total population.¹⁷³ These facts combined prove the special intent requirement element of genocide. Moreover, there is ample evidence to find that the overwhelming majority of the victims of this tragedy were Tutsi civilians which leaves this Chamber satisfied that the targets of the massacres were "members of a group," in this case an ethnic group. In light of this evidence, the Trial Chamber finds a plan of genocide existed and perpetrators executed this plan in Rwanda between April and June 1994."

"173. Pros. exh. 331B, p. 5."

[B. Evidentiary comment:]

P.28.3. Evidence of the number of persons involved in the commission of genocidal acts.

A. Legal source/authority and evidence:

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, para. 516:

[B. Evidentiary comment:]

P.28.4. Exculpatory: Evidence that the scale of the actual destruction was not substantial in the light of the scope of the perpetrators’control and ability to destroy.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 978:

"978. Moreover, the Prosecution submits that "had the Accused and other participants in the joint criminal enterprise intended solely to displace the Muslim and Croat population from the ARK, they clearly could have done so without overseeing the killing, imprisonment, torture and rape of Muslims and Croats on such a vast scale and in such systematic ways".²⁴⁵⁷ On the contrary, as stated, the scale of the acts enumerated in Article 4(2)(a) to (c) does not allow the Trial Chamber to legitimately come to the conclusion in favour of the existence of genocidal intent, particularly when viewed in light of the number of Bosnian Muslims and Bosnian Croats forcibly displaced from the ARK. The difference between the two is too pronounced, particularly in light of the fact that during much of the period relevant to the Indictment, and certainly as from summer 1992, the Bosnian Serb forces controlled the territory of the ARK, as shown by the fact that they were capable of mustering the logistical resources to forcibly displace tens of thousands of Bosnian Muslims and Bosnian Croats,²⁴⁵⁸ resources which, had such been the intent, could have been employed in the destruction of all Bosnian Muslims and Bosnian Croats of the ARK.²⁴⁵⁹"

"2457. Prosecution Final Brief, para. 559.

2458. For comparative purposes, in a single instance, between 9000 and 10000 Bosnian Muslims from Bosanski Novi were deported into Croatian territory in July 1992: see T

20628-20630 (closed session). See C.2. supra, "The facts and findings".

2459. See Barney Mayhew, T. 13597, cross-examined by Mr Ackerman: "Would you agree with me, I think that if it had been a unified aim of the Serb authorities to massacre the people who were confined in Manjaca and Omarska and Keraterm and Trnopolje in May, June, July of 1992, that there was absolutely nothing to keep them from doing so? They had the guns and the bullets and could have done it. Correct?" "Yes"."

[B. Evidentiary comment:]

P.29. Evidence of selection of victims.

Prosecutor v. Augustin Bizimungu, Case No. ICTR-00-56B-A , Judgement (AC), 30 June 2014, paras. 181, 312 :

"181. The Trial Chamber noted that Witness DBJ inferred that the soldiers must have inspected the identity cards of the civilians at the Josephite Brothers compound since no Hutus were removed.⁵²⁴ However, Bizimungu contends that the witness later stated that he did not know the criteria by which people were selected to be removed.⁵²⁵ The Appeals Chamber is not convinced that this amounts to a contradiction that could undermine the Trial Chamber’s assessment of Witness DBJ’s credibility. In this regard, the Appeals Chamber notes that Witness DBJ was clear in his testimony that soldiers checked the identity cards of civilians at the compound and took away Tutsis.⁵²⁶ The Appeals Chamber understands that Witness DBJ’s statement that he did not know the criteria by which people were selected to be removed simply refers to the fact that he could not explain why the soldiers merely passed through his room without removing him, despite him being a Tutsi, but removed people from other rooms in the compound.^527"

524 Trial Judgement, para. 1057.

525 Bizimungu Appeal Brief, para. 411, referring to Witness DBJ, T. 31 August 2005 p. 49.

526 Witness DBJ, T. 29 August 2005 pp. 27, 32. The Appeals Chamber further notes that Witness DBJ testified that a soldier and a member of the Presidential Guard had asked to see his identity card at the beginning of the attack but that he answered that he had lost it, and subsequently he was not asked again to show his identity card. See T. 29 August 2005 p. 32.

527 Witness DBJ, T. 31 August 2005 pp. 48, 49 (“A: […] I was in a room, it was open and the killers passed through that room. They saw the brothers that were with me. They went out. And the others were in the other rooms. They brought out people and killed them. […] Q: And as you state, the killers passed through your room. They did not bother you. They went into other rooms. And it would appear that they hurt the others, but you wouldn’t know why. You don’t know why; is that correct? A: You are using words that cross purposes, Counsel, when you say that they hurt people which means that they didn’t kill them. They passed through our room and they went into other rooms. But I did not know why or what criteria they used to take people out of the centre”.).

"312. In the same vein, in light of the widespread targeting of Tutsis in Musambira Commune following the killing of the President, taken in conjunction with the widespread killing of Tutsis in Rwanda generally at the time,⁸⁸⁹ the only reasonable inference available from Witness DBB’s evidence was that the soldiers who participated in the crimes acted with genocidal intent. Furthermore, in light of the Trial Chamber’s conclusion that Bizimungu knew or had reason to know of the involvement of soldiers in the killings of Tutsi civilians at the Musambira dispensary,⁸⁹⁰ the only reasonable inference is that he also knew of their genocidal intent.^891"

889 Trial Judgement, para. 2090.

890 Trial Judgement, paras. 1205, 1987, 1992.

891 See Ntabakuze Appeal Judgement, paras. 228, 248, 250 (affirming the trial chamber’s findings that Ntabakuze had knowledge of his subordinates’ genocidal intent when assessing the defendant’s knowledge for Article 6(3) of the Statute); but cf. Delalić et al. Appeal Judgement, para. 238 (stating that knowledge sufficient to establish liability under Article 6(3) of the Statute does not need to provide “specific information about unlawful acts committed or about to be committed”).

P.29.1. Evidence of selecting victims on the basis of their membership of that group.

A. Legal source/authority and evidence:

Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T, Judgement (TC), 6 December 2010, para. 686 - 687:

"686. In its findings on criminal responsibility the Chamber determined that Hategekimana’s assistance to the assailants, in the form of armed military reinforcements, his presence and his orders substantially influenced the killings that followed. In its Factual Findings, the Chamber determined that the Hutu refugees (approximately five) were separated from the Tutsis. Soldiers from the Ngoma Camp herded the Tutsis from the church in small groups and delivered them to the Interahamwe and armed civilians, who led them away to areas around Ngoma Parish, where they killed the Tutsis with traditional weapons.

687. In light of the foregoing and given the organised nature and the scale of these killings at the Ngoma Parish on 30 April 1994, within the context of the ongoing genocide in Rwanda, the only reasonable conclusion is that the assailants who physically perpetrated the killings possessed the genocidal intent to destroy in whole or in part a substantial part of the Tutsi group. Hategekimana and all the other participants in the joint criminal enterprise, Interahamwe and armed civilians in the case at hand, shared this genocidal intent."

Prosecutor v. Emmanuel Rukundo, Case No. ICTR-2001-70-T , Judgement (TC), 1 December 2010, para. 567:

"567. Within this context, Rukundo led a group of soldiers who systematically searched for Tutsi refugees in St Joseph’s College and checked identity cards to verify the refugees’ Tutsi ethnicity. The soldiers specifically asked Madame Rudahunga whether she was the wife of Louis Rudahunga, who was targeted as an RPF accomplice. Shortly after the incident, Rukundo boasted about having entered Rudahunga’s house and having killed his wife and two of his children, whom Rukundo referred to as Inyenzi."

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008, paras. 2127-2134:

"2127. On the morning of 7 April 1994, around 300 Hutu and Tutsi refugees gathered at the Kibagabaga mosque in Remera due to increasing insecurity in the area. A group of Interahamwe attacked a Tutsi refugee in front of the mosque and threatened the refugees there with attack if they did not surrender the Tutsis. That afternoon, the refugees fended off three attacks. A soldier came to the mosque for his sister, intimating that further attacks were coming. On 8 April, soldiers and Interahamwe surrounded the mosque, and the soldiers fired for a few minutes, killing several persons, to prompt the refugees to line up on the street. The soldiers checked identity cards and then withdrew. The Interhamwe then continued checking cards and killed more than 20 mostly Tutsi refugees.

2128. In the Kabeza area of Kigali, members of the Para Commando Battalion, Presidential Guard and Interahamwe went from house to house on 7 and 8 April and killed people. The area was predominately Tutsi and considered sympathetic to the RPF.

2129. On 8 April, soldiers wearing black berets and militiamen attacked and killed a number of Tutsi refugees at the Saint Josephite Centre. The assailants initially asked to see the refugees’ identity cards, and Hutus were asked to leave. During the course of the attack, some of the women were asked to undress before being killed and at least one woman was raped by a soldier.

2130. At Karama hill near Kigali in Rubungo commune, soldiers and gendarmes killed a number of Tutsi refugees on 8 April. Many of the refugees at the school had just fled an attack at a nearby roadblock where military personnel were separating Hutus and Tutsis based on their identity cards before killing the Tutsis.

2131. On 9 April 1994, a number of soldiers and gendarmes digging trenches near Kibagabaga Catholic Church were told by a high-ranking soldier to kill the refugees there. The military personnel then gave firearms and grenades to a group of Interahamwe who began attacking the church. During the attack, the Interahamwe asked to see the identity cards of the refugees and killed the Tutsis. The military personnel watched as the attack proceeded.

2132. During an attack on Gikondo Parish on the morning of 9 April, the army sealed off the Gikondo area, and gendarmes moved systematically through the neighbourhood with lists, sending Tutsis to the parish. The gendarmes checked the identity cards of the Tutsis there against their lists and burned the identity cards. The Interahamwe then proceeded to kill the more than 150 Tutsi refugees in an atrocious manner. The parish priests and UNAMIR military observers were forced to watch at gunpoint. Major Brent Beardsley of UNAMIR arrived shortly after the attack and described the terrible scene, which bore witness of killing, mutilation and rape. The Interahamwe returned later that night to finish off the survivors.

2133. Considering the nature of how the attacks unfolded, the Chamber finds that soldiers, gendarmes or Interahamwe participating in the events intentionally killed Tutsis during these events. Furthermore, the acts of rape, sexual violence and mistreatment constituted serious bodily or mental harm.

2134. The Chamber heard extensive evidence about the killing of Tutsi civilians throughout Kigali area and in other parts of Rwanda in the days immediately after the death of President Habyarimana. In the course of many of the attacks, the assailants checked the identity cards of the victims or asked Hutus to leave. In these circumstances, the only reasonable conclusion is that the assailants who physically perpetrated the killings possessed the intent to destroy, in whole or in substantial part, the Tutsi group."

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, paras. 515, 517:

"515. The Chamber finds that the attacks mentioned in Paragraph 513 above were systematically directed against the Tutsi group. Before the attacks on Mubuga Church commenced, Hutu refugees, who were intermingled with the Tutsi, were instructed to come out of the church. Similarly, both Prosecution and Defence witnesses testified that the refugees who had gathered on Kanyinya and Muyira Hills were predominantly Tutsi."

"517. The Accused targeted Tutsi civilians during these attacks by shooting and raping Tutsi victims. He also raped a young Hutu girl, Witness BJ, whom he believed to be Tutsi, but later apologised to her when he was informed that she was Hutu. During the course of some of the attacks and rapes, the Accused specifically referred to the Tutsi ethnic identity of his victims."

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para. 258:

"249. See ILC Report (1996), para. 8.

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 427:

427. The Accused’s intent is evident from the context in which he committed his acts that provided substantial assistance to the principal perpetrators. The specific acts of the Accused must be viewed in the context of the then existing state of attacks that took place against civilian persons identified as Tutsi at various sites in Bicumbi and Gikoro communes. The Chamber has found that the Accused was present at various sites, including Musha church, Mwulire Hill, and Mabare mosque in April 1994, where a substantial number of Tutsi civilians was systematically massacred on account of their identification as Tutsi.⁶⁹³ The Accused, having been present at these massacre sites, knew that the principal perpetrators of the killings were killing Tutsi based on their ethnical identification. This knowledge provides evidence of the Accused’s intent for complicity to commit genocide.

"693. See Semanza, Decision on Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, Annex A, para. 2. See Annex II, Part A, para. 2."

Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10-T and ICTR-96-17-T, Judgement (TC), 21 February 2003, para. 785:

"785. The Chamber found that a large number of men, women and children, the majority unarmed Tutsi, sought shelter from violence and attacks around Mugonero in the days following 6 April 1994 and that many assembled at the Mugonero Complex for that purpose. The Chamber further found that the attack of 16 April at the Complex, which lasted throughout the day and into the night, claimed hundreds of lives among the refugees at the Complex and left many wounded. It further found that the attack specifically targeted the Tutsi population -- irrespective of age or sex -- for the sole reason of their ethnicity. In the Chamber’s view, the massive and systematic character of the attack and ensuing onslaught, as described above, leaves no doubt as to the fact that the violent assault proceeded on the basis of an intent to destroy, in its whole, the Tutsi population at the Complex.^{1148Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 546 – 547:}

"546. The Trial Chamber is ultimately satisfied that murders and infliction of serious bodily or mental harm were committed with the intent to kill all the Bosnian Muslim men of military age at Srebrenica. The evidence shows that the mass executions mainly took place between 13 and 16 July, while executions of smaller scale continued until 19 July. All of the executions systematically targeted Bosnian Muslim men of military age, regardless of whether they were civilians or soldiers. The military aged men who fled to Potocari were systematically separated from the other refugees. They were gathered in the "White House" and were forced to leave their identification papers and personal belongings outside the house. While opportunistic killings occurred in Potocari on 12 and 13 July,¹²⁰⁰ most of the men detained in the White house were bussed to Bratunac, from the afternoon of 12 July throughout 13 July,¹²⁰¹ and were subsequently led to execution sites. Additionally, the VRS launched an artillery attack against the column of Bosnian Muslim men marching toward Tuzla soon after it became aware of its existence.¹²⁰² A relentless search for the men forming the column started on 12 July and continued throughout 13 July. The few survivors qualified the search as a "man hunt" that left hardly any chance of escape.¹²⁰³ Attack resumed on 14 and 15 July against the third of the column that had managed to cross the asphalt road between Konjevic Polje and Nova Kasaba on 11-12 July.¹²⁰⁴ As the pressures on the VRS mounted during the fatal week of 11-16 July, negotiations were undertaken between the Bosnian Muslim and Bosnian Serb sides and a portion of the Bosnian Muslim column was eventually let through to government-held territory.¹²⁰⁵ The most logical reason for this was that most of the VRS troops had been relocated to Zepa by this time and , due to lack of manpower to stop the column, the Zvornik brigade was forced to let them go.¹²⁰⁶ Overall, however , as many as 8,000 to 10,000 men from the Muslim column of 10,000 to 15,000 men were eventually reported as missing.¹²⁰⁷

547. The VRS may have initially considered only targeting the military men for execution.¹²⁰⁸ Some men from the column were in fact killed in combat and it is not certain that the VRS intended at first to kill all the captured Muslim men, including the civilians in the column.¹²⁰⁹ Evidence shows, however, that a decision was taken, at some point, to capture and kill all the Bosnian Muslim men indiscriminately. No effort thereafter was made to distinguish the soldiers from the civilians. Identification papers and personal belongings were taken away from both Bosnian Muslim men at Potocari and from men captured from the column; their papers and belongings were piled up and eventually burnt.¹²¹⁰ The strength of the desire to capture all the Bosnian Muslim men was so great that Bosnian Serb forces systematically stopped the buses transporting the women, children and the elderly at Tisca and checked that no men were hiding on board.¹²¹¹ Those men found in the buses were removed and subsequently executed.¹²¹² Admittedly, as the Defence has argued, some wounded men were authorised to leave the Srebrenica enclave under the escort of UNPROFOR. A report of 13 July, however , indicates that the VRS agreed to their evacuation only because of the presence of UNPROFOR and in order to show to the media that non-combatants were properly treated.¹²¹³ Except for the wounded , all the men, whether separated in Potocari or captured from the column, were executed, either in small groups or in carefully orchestrated mass executions. They were led to sites located in remote places for execution. The men, sometimes blindfolded, barefoot or with their wrists bound behind their backs, were lined up and shot in rounds. Others were jammed into buildings and killed by rounds of automatic rifles or machine gunfire, or with hand grenades hurled into the buildings.¹²¹⁴ Bulldozers usually arrived immediately after the execution was completed, to bury the corpses.¹²¹⁵ Soldiers would sometimes start digging the graves while the executions were still in progress.¹²¹⁶ Bosnian Serb soldiers would come back to the execution sites a few hours later and check that no one had been left alive.¹²¹⁷ The evidence shows that the VRS sought to kill all the Bosnian Muslim military aged men in Srebrenica, regardless of their civilian or military status."

"1200. Supra, paras. 43-47, 58.

1201. Supra, para. 59, 66.

1202. An intercept submitted into evidence indicates that the Bosnian Serbs were aware of the column as of 12 July at 0300 hours. supra, para. 162.

1203. Supra, para. 62.

1204. Supra, para. 65.

1205. Supra, para. 65.

1206. Supra, para. 85.

1207. Supra, para. 83.

1208. A list of criminals of war was drawn upon Zivanovic’s order dated 13 July; an intercepted conversation between Cerovic and Beara on 16 July (P335) also indicates that the prisoners should be screened.

1209. Supra, paras. 77, 80.

1210. Supra, para. 171.

1211. Supra, para. 216. The screening of the men probably took place on 12 July and in the earlier hours of 13 July.

1212. para. 106.

1213. P459, supra para. 86.

1214. Execution in Kravica on 13 July, Pilica cultural Dom on 16 July.

1215. Supra, para. 68.

1216. Orahovac, 14 July.

1217. See esp. Witnesses J and K’s testimony who are survivors of the execution carried out at the Kravica warehouse. supra para. 207."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Judgement (AC), 5 July 2001, para. 47:

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, paras. 62 – 63:

"62. On the issue of determining the offender’s specific intent, the Chamber applies the following reasoning, as held in Akayesu:

"59. Akayesu (TC) paras.523"

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 523, 730:

"180. See above, the findings of the Trial Chamber on the occurrence of genocide against the Tutsi group in Rwanda in 1994."

[B. Evidentiary comment:]

P.29.2. Evidence of killing of civilians (including children, pregnant women).

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 674 - 675:

675. Immediately before and during these massacres, the remainder of the Bosnian Muslim population of Srebrenica was forcibly transferred to Bosnian Muslim-held territory. The forcible transfer of the women, children and elderly is a manifestation of the specific intent to rid the Srebrenica enclave of its Bosnian Muslim population. The manner in which the transfer was carried out – through force and coercion, by not registering those who were transferred, by burning the houses of some of the people, sending the clear message that they had nothing to return to, and significantly, through its targeting of literally the entire Bosnian Muslim population of Srebrenica, including the elderly and children – clearly indicates that it was a means to eradicate the Bosnian Muslim population from the territory where they had lived."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 310, 532:

"310. […] Witness O attended a meeting with these and other officials in his capacity as an official of Kibuye hospital and voiced his concern regarding seventy-two Tutsi children who survived the massacre at the Complex and were in poor physical condition at Kibuye hospital. Members of the Interahamwe had threatened these children, aged between 8 and 15 years. The Prime Minister did not personally respond to Witness O’s concern, but asked the Minister of Information to do so. That minister rebuked Witness O, remarking that he should not protect people who don’t want to be protected. He also declared that Witness O obviously did not approve of the politics of the Interim Government, and could not recognize the enemy. The Minister of Information gave the impression that the Interim Government recognized these infirm children as enemies. Later, these children were forcibly taken from the hospital and killed."

"532. Not only were Tutsis killed in tremendous numbers, but they were also killed regardless of gender or age. Men and women, old and young, were killed without mercy. Children were massacred before their parents’ eyes, women raped in front of their families. No Tutsi was spared, neither the weak nor the pregnant."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 125:

"125. Clearly therefore, the massacres which occurred in Rwanda in 1994 had a specific objective, namely the extermination of the Tutsi, who were targeted especially because of their Tutsi origin and not because they were RPF fighters. In any case, the Tutsi children and pregnant women would, naturally, not have been among the fighters."

Guatemala: Memory of Silence, Report of the Commission for Historical Clarification February 1999 (online: Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 121:

"121. Other testimonies heard, especially that of Major-General Dallaire, also show that there was an intention to wipe out the Tutsi group in its entirety, since even newborn babies were not spared. Even pregnant women, including those of Hutu origin, were killed on the grounds that the foetuses in their wombs were fathered by Tutsi men, for in a patrilineal society like Rwanda, the child belongs to the father’s group of origin. In this regard, it is worthwhile noting the testimony of witness PP, heard by the Chamber on 11 April 1997, who mentioned a statement made publicly by the accused to the effect that if a Hutu woman were impregnated by a Tutsi man, the Hutu woman had to be found in order "for the pregnancy to be aborted". According to prosecution witnesses KK, PP and OO, the accused expressed this opinion on other occasions in the form of a Rwandese proverb according to which ‘if a snake wraps itself round a calabash, there is nothing that can be done, except to break the calabash’ (" Iyo inzoka yiziritse ku gisabo, nta kundi bigenda barakimena).⁵⁵In the context of the period in question, this proverb meant that if a Hutu woman married to a Tutsi man was impregnated by him, the foetus had to be destroyed so that the Tutsi child which it would become should not survive. It should be noted in this regard that in Rwandese culture, breaking the "gisabo", which is a big calabash used as a churn was considered taboo. Yet, if a snake wraps itself round a gisabo, obviously, one has no choice but to ignore this taboo in order to kill the snake."

"55. These are the Kinyarwanda words used by witness PP."

[B. Evidentiary comment:]

P.29.4. Evidence of selecting victims on the basis that their death or mistreatment would be particularly detrimental to the survival of that group.

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 674:

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, para. 246:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 546 – 547, 594 – 595, 597:

547. The VRS may have initially considered only targeting the military men for execution.¹²⁰⁸ Some men from the column were in fact killed in combat and it is not certain that the VRS intended at first to kill all the captured Muslim men, including the civilians in the column.¹²⁰⁹ Evidence shows, however, that a decision was taken, at some point, to capture and kill all the Bosnian Muslim men indiscriminately. No effort thereafter was made to distinguish the soldiers from the civilians. Identification papers and personal belongings were taken away from both Bosnian Muslim men at Potocari and from men captured from the column; their papers and belongings were piled up and eventually burnt.¹²¹⁰ The strength of the desire to capture all the Bosnian Muslim men was so great that Bosnian Serb forces systematically stopped the buses transporting the women, children and the elderly at Tisca and checked that no men were hiding on board.¹²¹¹ Those men found in the buses were removed and subsequently executed.¹²¹² Admittedly, as the Defence has argued, some wounded men were authorised to leave the Srebrenica enclave under the escort of UNPROFOR. A report of 13 July, however, indicates that the VRS agreed to their evacuation only because of the presence of UNPROFOR and in order to show to the media that non-combatants were properly treated.¹²¹³ Except for the wounded, all the men, whether separated in Potocari or captured from the column, were executed, either in small groups or in carefully orchestrated mass executions. They were led to sites located in remote places for execution. The men, sometimes blindfolded, barefoot or with their wrists bound behind their backs, were lined up and shot in rounds. Others were jammed into buildings and killed by rounds of automatic rifles or machine gunfire, or with hand grenades hurled into the buildings.¹²¹⁴ Bulldozers usually arrived immediately after the execution was completed, to bury the corpses.¹²¹⁵ Soldiers would sometimes start digging the graves while the executions were still in progress.¹²¹⁶ Bosnian Serb soldiers would come back to the execution sites a few hours later and check that no one had been left alive.¹²¹⁷ The evidence shows that the VRS sought to kill all the Bosnian Muslim military aged men in Srebrenica, regardless of their civilian or military status."

"1200. Supra, paras. 43-47, 58.

1201. Supra, para. 59, 66.

1202. An intercept submitted into evidence indicates that the Bosnian Serbs were aware of the column as of 12 July at 0300 hours. supra, para. 162.

1203. Supra, para. 62.

1204. Supra, para. 65.

1205. Supra, para. 65.

1206. Supra, para. 85.

1207. Supra, para. 83.

1209. Supra, paras. 77, 80.

1210. Supra, para. 171.

1211. Supra, para. 216. The screening of the men probably took place on 12 July and in the earlier hours of 13 July.

1212. para. 106.

1213. P459, supra para. 86.

1214. Execution in Kravica on 13 July, Pilica cultural Dom on 16 July.

1215. Supra, para. 68.

1216. Orahovac, 14 July.

1217. See esp. Witnesses J and K’s testimony who are survivors of the execution carried out at the Kravica warehouse, supra para. 207. "594. The Trial Chamber concludes from the evidence that the VRS forces sought to eliminate all of the Bosnian Muslims in Srebrenica as a community. Within a period of no more than seven days, as many as 7,000- 8,000 men of military age were systematically massacred while the remainder of the Bosnian Muslim population present at Srebrenica , some 25,000 people, were forcibly transferred to Kladanj. The Trial Chamber previously described how the VRS attempted to kill all the Bosnian Muslim men of military age, regardless of their civilian or military status; wounded men were spared only because of the presence of UNPROFOR and the portion of the column that managed to get through to government-held territory owed its survival to the fact that the VRS lacked the military resources to capture them."

"594. The Trial Chamber concludes from the evidence that the VRS forces sought to eliminate all of the Bosnian Muslims in Srebrenica as a community. Within a period of no more than seven days, as many as 7,000- 8,000 men of military age were systematically massacred while the remainder of the Bosnian Muslim population present at Srebrenica, some 25,000 people, were forcibly transferred to Kladanj. The Trial Chamber previously described how the VRS attempted to kill all the Bosnian Muslim men of military age, regardless of their civilian or military status; wounded men were spared only because of the presence of UNPROFOR and the portion of the column that managed to get through to government-held territory owed its survival to the fact that the VRS lacked the military resources to capture them.

595. Granted, only the men of military age were systematically massacred, but it is significant that these massacres occurred at a time when the forcible transfer of the rest of the Bosnian Muslim population was well under way. The Bosnian Serb forces could not have failed to know, by the time they decided to kill all the men, that this selective destruction of the group would have a lasting impact upon the entire group. Their death precluded any effective attempt by the Bosnian Muslims to recapture the territory. Furthermore, the Bosnian Serb forces had to be aware of the catastrophic impact that the disappearance of two or three generations of men would have on the survival of a traditionally patriarchal society, an impact the Chamber has previously described in detail.¹³³⁵ The Bosnian Serb forces knew, by the time they decided to kill all of the military aged men, that the combination of those killings with the forcible transfer of the women, children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica. Intent by the Bosnian Serb forces to target the Bosnian Muslims of Srebrenica as a group is further evidenced by their destroying homes of Bosnian Muslims in Srebrenica and Potocari¹³³⁶ and the principal mosque in Srebrenica soon after the attack.¹³³⁷"

"1335. Supra, paras. 90-94.

1336. Supra, paras. 41, 123, 153.

1337. It was eventually turned into a parking lot. P4/4 to P4/6; Ruez, T. 542-543."

"597. The strategic location of the enclave, situated between two Serb territories, may explain why the Bosnian Serb forces did not limit themselves to expelling the Bosnian Muslim population. By killing all the military aged men, the Bosnian Serb forces effectively destroyed the community of the Bosnian Muslims in Srebrenica as such and eliminated all likelihood that it could ever re-establish itself on that territory.¹³³⁸"

"1338. See Witness Halilovic, supra para. 94."

Guatemala: Memory of Silence, Report of the Commission for Historical Clarification February 1999 (online: Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para. 252:

"237. Akayesu Judgment (TC), para. 523; Ntagerura and Others Judgment (TC), para. 663, Kajelijeli Judgment (TC), paras. 804 to 805."

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, paras. 62 – 63:

"62. On the issue of determining the offender’s specific intent, the Chamber applies the following reasoning, as held in Akayesu:

"59. Akayesu (TC) paras.523"

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 523 - 524, 730:

524. Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia also stated that the specific intent of the crime of genocide

Thus, in the matter brought before the International Criminal Tribunal for the former Yugoslavia, the Trial Chamber, in its findings, found that

102. Ibid. Paragraph 95."

"180. See above, the findings of the Trial Chamber on the occurrence of genocide against the Tutsi group in Rwanda in 1994."

[B. Evidentiary comment:]

P.30. Evidence of the nature and purpose of the genocidal acts.

A. Legal source/authority and evidence:

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, para. 496:

"455. Gacumbitsi Judgement (TC), paras. 252-253; Akayesu Judgement (TC), para. 523; Kayishema and Ruzindana Judgement (TC), para. 93; Ntagerura and Others Judgement (TC), para. 663."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 93:

"39. Cited in Bassiouni, in The Law of the International Criminal Tribunal for the Former Yugoslavia, p. 524, and UN and Rwanda, 1993-6, p. 432, para. 166.

40. Wisconsin International Law Journal, 243 (1996).

41. UN Doc. E/CN.4/Sub.2/1985/6, p. 16, para. 29.

P.30.1. Evidence of rape as a means of destroying that group.

A. Legal source/authority and evidence:

The Prosecutor v. Edouard Karemera and Mathieu Ngirumpatse, Case No. ICTR-98-44, Judgement (TC), 2 February 2012, para. 1665-67:

1665. The Chamber has found that from April to June 1994, Tutsi women and girls were raped and sexually assaulted systematically and on a large scale by the same individuals who were attacking Tutsis as a group (Interahamwe and other militias, gendarmes, soldiers, and civilians (see V.8). The rapes and sexual assaults occurred throughout Rwanda, including Kigali-ville, Ruhengeri, Gitarama, Kibuye, and Butare préfectures.

1666. Considering the nature of the crimes and the brutal and often public manner in which they were carried out, often repeatedly and by more than one assailant, the Chamber concludes that the sexual assaults, mutilations and rapes that Tutsi women were forced to endure from April to June 1994 certainly constituted acts of serious bodily and mental harm.

1667. In light of the evidence brought before it, the Chamber is satisfied that the rapes, mutilations and other acts of sexual violence against Tutsi women and girls were systematic and widespread. Many of these women were subjected to severe humiliation and physical injuries. As a consequence, these crimes did not only cause serious bodily and mental harm to the women themselves, but also, by extension, to their families and communities. Furthermore, many Tutsi women were killed after they were subjected to rapes and sexual assaults.

Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 933:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 731 – 732:

"731. With regard, particularly, to the acts described in paragraphs 12(A) and 12(B) of the Indictment, that is, rape and sexual violence, the Chamber wishes to underscore the fact that in its opinion, they constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such. Indeed, rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims¹⁸¹ and are even, according to the Chamber, one of the worst ways of inflicting harm on the victim as he or she suffers both bodily and mental harm. In light of all the evidence before it, the Chamber is satisfied that the acts of rape and sexual violence described above, were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public, in the Bureau Communal premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.

732. The rape of Tutsi women was systematic and was perpetrated against all Tutsi women and solely against them. A Tutsi woman, married to a Hutu, testified before the Chamber that she was not raped because her ethnic background was unknown. As part of the propaganda campaign geared to mobilizing the Hutu against the Tutsi, the Tutsi women were presented as sexual objects. Indeed, the Chamber was told, for an example, that before being raped and killed, Alexia, who was the wife of the Professor, Ntereye, and her two nieces, were forced by the Interahamwe to undress and ordered to run and do exercises "in order to display the thighs of Tutsi women". The Interahamwe who raped Alexia said, as he threw her on the ground and got on top of her, "let us now see what the vagina of a Tutsi woman tastes like". As stated above, Akayesu himself, speaking to the Interahamwe who were committing the rapes, said to them: "don't ever ask again what a Tutsi woman tastes like". This sexualized representation of ethnic identity graphically illustrates that tutsi women were subjected to sexual violence because they were Tutsi. Sexual violence was a step in the process of destruction of the tutsi group - destruction of the spirit, of the will to live, and of life itself."

"181. See above, the findings of the Trial Chamber on the Chapter relating to the law applicable to the crime of genocide, in particular, the definition of the constituent elements of genocide."

[B. Evidentiary comment:]

P.30.2. Evidence of acts to disable victims or render them defenceless.

A. Legal source/authority and evidence:

Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Judgement (AC), 12 March 2008, paras. 178-179:

"178. Moreover, on two occasions, already before the destruction of the church on 16 April 1994, Athanase Seromba turned away Tutsi refugees from the presbytery, whereupon two of them were killed.422 With respect to these factual findings, the Trial Chamber relied on the testimony of several witnesses. Witness CBJ, who the Trial Chamber deemed credible with respect to the circumstances of Meriam’s death,423 testified as follows:

At the beginning, when people started fleeing and taking refuge at the church, she took refuge in the church after the death of Habyarimana. But on the 14th -- or before the 14th of April 1994, Father Seromba -- the girls from Miriam's family and the people who were educated, in particular the teachers -- so Father Seromba had given to these people lodgings, accommodation at the presbytery. But on the 14th, when they held the meeting, the purpose of which was to decide on our being killed, he sent away these people to whom he had provided accommodation. So Miriam and her family joined us in the church. I was together with Miriam and her family in the church. And on the 15th, the doors were opened for us and we came out. And after having gotten outside, during the attacks, Miriam went to the same building in which she was before, and Father Seromba, once again, sent her -- sent away the people who were in the rear court to the presbytery, and where these people were coming out, they were being shot at. Miriam was captured after she had been sent away by Father Seromba. She was beaten up in front of the secretariat, and I saw people bring her to the front of the church. I didn't quite observe the scene, but subsequently I saw her mortal remains, that is the mortal remains of Miriam. Her clothes had been stripped off. She was treated very shabbily, and that is what I can say that I saw about Miriam.424

179. Furthermore, Witness CBK, one of the witnesses who the Trial Chamber deemed credible with respect to the circumstances of Gatare’s death, testified:

A. Gatare had hidden behind the presbytery. And Seromba, who was on the upper level of the presbytery, discovered him and asked Gatare to come out. Gatare refused and Seromba asked one of his watchmen to get him out, and he was killed behind the rear courtyard of the presbytery.

[…]

Q. When Gatare the teacher was killed, where was Father Seromba?

A. Father Seromba was at the upper level of the presbytery building.

Q. Did Father Seromba do anything to protect Gatare the teacher from being killed?

A. I saw nothing. He did nothing.

Q. Did Father Seromba do anything to prevent the killing of Gatare, who was the worker at the commune?

A. He did nothing. Gatare asked for forgiveness from Father Seromba, and he was saying, "People of the king, why do you" -- "why are you against me?"

Q. You spoke, Witness -- sorry. When Gatare was saying this, where were you?

A. I was in the kitchen. Seromba came to get Gatare out.

Q. Where exactly was Gatare when Seromba came to get him out?

A. Gatare had just left the rear courtyard. He was in the kitchen, and Gatare said, "Why are you against me, people of the king?" And Seromba ordered that he be taken out.425419 Trial Judgement, para. 320.

422 Trial Judgement, paras. 193, 201, 202. As a further indicia for Athanase Seromba’s mens rea vis-à-vis the Tutsis, the Appeals Chamber notes that four of the parish’s six employees were dismissed by him on 13 April 1994, all of them Tutsis. The remaining employees were Hutus. See Trial Judgement, para. 114.

423 Trial Judgement, para. 201.

424 T. 12 October 2004 p. 9.

425 T. 19 October 2004, pp 30-31 (closed session).

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 119:

"119. Furthermore, as mentioned above, Dr. Zachariah also testified that the Achilles’ tendons of many wounded persons were cut to prevent them from fleeing. In the opinion of the Chamber, this demonstrates the resolve of the perpetrators of these massacres not to spare any Tutsi. Their plan called for doing whatever was possible to prevent any Tutsi from escaping and, thus, to destroy the whole group."

[B. Evidentiary comment:]

P.30.3. Evidence of acts having symbolic meaning.

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 676:

"676. In such a context, the killings in Bratunac town were also a manifestation of this intent to destroy the group. It had an impact on the Bosnian Muslim group beyond the death of the men killed; it sent a message to the remaining members of the group of their fate – that they were at the mercy of the Bosnian Serbs and that their lives, too, could be taken at any moment."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 120:

[B. Evidentiary comment:]

P.30.4. Evidence of the particular cruelty of the genocidial acts.

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 290:

"290. The cruelty with which the attackers killed, wounded and disfigured their victims indicates that the propaganda unleashed on Rwanda had the desired effect, namely the destruction of the Tutsi population. The involvement of the peasant population in the massacres was facilitated also by their misplaced belief and confidence in their leadership,¹⁷² and an understanding that the encouragement of the authorities to guaranteed them impunity to kill the Tutsis and loot their property."

[B. Evidentiary comment:]

P.31. Evidence of other persecutorial acts preceding or accompanying the genocidal acts.

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, para. 496:

"455. Gacumbitsi Judgement (TC), paras. 252-253; Akayesu Judgement (TC), para. 523; Kayishema and Ruzindana Judgement (TC), para. 93; Ntagerura and Others Judgement (TC), para. 663."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 983:

"c. The perpetration and/or repetition of other destructive or discriminatory acts committed as part of the same pattern of conduct²⁴⁷³

983. The Trial Chamber has already provided an overview of the crimes that were committed in execution of the Strategic Plan in the ARK during the period relevant to the Indictment, and found a pattern of conduct of the Bosnian Serb forces throughout the ARK municipalities, the final objective of which was the permanent removal of most of the non-Serb population. The evidence shows a consistent, coherent and criminal strategy of cleansing the ARK of Bosnian Muslims and Bosnian Croats implemented by the Bosnian Serb forces.²⁴⁷⁴"

"2473. The Trial Chamber is of the view that this section encompasses the factors cited in the Prosecution Final Brief of "the general nature of atrocities in a region or a country", of "the systematic targeting of members of the group, especially at the exclusion of members of other groups", of "the destruction of religious and cultural property and symbols, as well as the destruction of homes belonging to members of the groups" and of "the perpetration of acts which violate, or which the perpetrators themselves consider to violate, the very foundation of the group". The Trial Chamber has not considered the factor of "the systematic disposal of bodies, including the concealment of bodies in mass graves, causing terrible distress to survivors unable to verify or mourn the deaths" because it does not consider that, in the circumstances of this case , it is a factor from which the specific intent required for the crime of genocide could be inferred.

2474. See IV.C. supra , "The implementation of the Strategic Plan in the Bosnian Krajina"."

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para. 252:

Prosecutor v. André Ntagerura et al., Case No. ICTR-96-10A-T, Judgement (TC), 25 February 2004, para. 690:

"690. The Chamber also finds that the soldiers at the Gashirabwoba football field possessed the requisite intent during the killings on 12 April 1994, that is, to destroy, in whole or in part, members of the Tutsi ethnic group. […] The soldiers’ intention to destroy the Tutsi group, in whole or in part, can be inferred from the context of the massacre at the Gashirabwoba fooball field and from the other events occurring in Cyangugu at that time. The Cahbmer recalls that soldiers came to the fooball field the evening before the massacre and asked the refugees whether they were all Tutsis. The refugees informed the soldiers that there were some Hutus amongst them. Thus, the soldiers were aware that the primary ethnic composition of the refugees at the Gashirabwoba football field was Tutsi. In the Chamber’s view, the the manner in which the soldiers killed the refugees and the resulting large number of victims reflect the soldiers’ intention to destroy members of the Tutsi ehtnic group, in whole or in part. In reaching this conclusion, the Chamber has also considered the overwhelming evidence in this case that, at the time of the massacre at the Gashirabwoba football field, thousands of Tutsis in Cyangugu were being forced to seek refuge in parishes and schools or to hide in the bush because their Hutu neighbours and Interahamwe attacked them in their homes."

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC), 16 May 2003, paras. 416 – 417:

"416. In ascertaining the intent of the Accused, the Chamber has also taken into account incidents charged elsewhere, in addition to his acts relevant to this charge. The Chamber has considered the Accused’s act of ordering Interahamwe to undress a Tutsi woman, and to insert a sharpened piece of wood into her genitalia, after ascertaining that she was of the Tutsi ethnic group (see II.7.2.4 above). The body was then left, with the piece of wood protruding from it, in plain view on a public road for some three days thereafter. Further, the Chamber has taken into account the murder of an old man and young boy, both Tutsi, by the Accused (see II.5.1.4 above).

417. The Chamber has also considered the Accused’s jubilation at the killing of Assiel Kabanda and his subsequent decapitation and castration, and the piercing of his skull through the ears with a spike. Kabanda was a prominent Tutsi whose capture was met with rejoicing by the Accused and others (see II.7.1.4 above)."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Judgement (AC), 5 July 2001, para. 47:

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgement (TC), 7 June 2001, paras. 62 – 63:

"62. On the issue of determining the offender’s specific intent, the Chamber applies the following reasoning, as held in Akayesu:

"175. See the testimonies of Witnesses G, U and Z explaining that Inkotanyi meant "all the Tutsis" or the "enemy".

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 523 – 524:

524. Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia also stated that the specific intent of the crime of genocide

Thus, in the matter brought before the International Criminal Tribunal for the former Yugoslavia, the Trial Chamber, in its findings, found that

102. Ibid. Paragraph 95."

P.31.1. Evidence of forced transfer of members of that group.

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 674 – 675, 677:

"677. The Trial Chamber has no doubt that all these acts constituted a single operation executed with the intent to destroy the Bosnian Muslim population of Srebrenica. The Trial Chamber finds that the Bosnian Serb forces not only knew that the combination of the killings of the men with the forcible transfer of the women, children and elderly, would inevitably result in the physical disappearance of the Bosnian Muslim population of Srebrenica, but clearly intended through these acts to physically destroy this group."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 975 – 976:

"975. Although the Prosecution repeatedly acknowledged that the "mass deportation is not relied upon in this case as a genocidal act, but only as evidence that the Accused intended to destroy the Bosnian Muslim and [Bosnian] Croat groups in the ARK",²⁴⁴⁹ when assessing the size of the victimised parts of the Bosnian Muslim and Bosnian Croat groups, it repeatedly took into consideration and referred to the "sheer" numbers of Bosnian Muslims and Bosnian Croats who were "forcibly transferred".²⁴⁵⁰ The Trial Chamber acknowledges that, whilst forcible displacement does not constitute in and of itself a genocidal act, it does not preclude a Trial Chamber from relying on it as evidence of intent.²⁴⁵¹ But in the Trial Chamber’s view it is not appropriate to rely on it as evidence of the actual destruction of the targeted parts of the protected groups, since that would in effect mean the consideration, as it were through the back door, of forcible displacement as an underlying act.

976. On the subject of forcible displacement, the Trial Chamber finds, in accordance with the stated views of the Appeals Chamber, that forcible displacement could be an additional means to ensure the physical destruction, in this case of the Bosnian Muslim and Bosnian Croat groups of the ARK.²⁴⁵² The Appeals Chamber has also stated, however, that the existence of the specific intent required for the crime of genocide must be supported by the factual matrix.²⁴⁵³ […]"

"2449. Confidential Prosecution’s Response to Trial Chamber’s Questions Regarding Genocide and the Krstić Appeal Judgement, 29 April 2004, fn.14; Prosecution Final Brief, fn. 995 and 1027. See also para. 693 supra, and accompanying.

2450. Confidential Prosecution’s Response to Trial Chamber’s Questions Regarding Genocide and the Krstić Appeal Judgement, 29 April 2004, para. 13; Prosecution Final Brief, paras 531, 556.

2451. See also para. 693 supra, and accompanying .

2452. See Krstić Appeal Judgement , para. 31.

2453. Krstić Appeal Judgement , para. 32."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, para. 33:

"33. The Trial Chamber - as the best assessor of the evidence presented at trial - was entitled to conclude that the evidence of the transfer supported its finding that some members of the VRS Main Staff intended to destroy the Bosnian Muslims in Srebrenica. The fact that the forcible transfer does not constitute in and of itself a genocidal act⁵³ does not preclude a Trial Chamber from relying on it as evidence of the intentions of members of the VRS Main Staff. The genocidal intent may be inferred, among other facts, from evidence of "other culpable acts systematically directed against the same group."⁵⁴"

"53. See Stakić Trial Judgement, para. 519 and nn. 1097 - 1098 (citing K. Kreß, Münchner Kommentar zum StGB, Rn 57, section 6 VStGB (2003); William A. Schabas, Genocide in International Law (2000), p. 200; BGH v. 21.2.2001 – 3 StR 244/00, NJW 2001, 2732 (2733)).

54. Jelisić Appeal Judgement, para. 47.

[B. Evidentiary comment:]

P.31.2. Evidence of acts of disposal of bodies.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 596:

"596. Finally, there is a strong indication of the intent to destroy the group as such in the concealment of the bodies in mass graves, which were later dug up, the bodies mutilated and reburied in other mass graves located in even more remote areas , thereby preventing any decent burial in accord with religious and ethnic customs and causing terrible distress to the mourning survivors, many of whom have been unable to come to a closure until the death of their men is finally verified."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 120:

[B. Evidentiary comment:]

P.31.3. Evidence of detention and mistreatment of members of that group.

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, para. 246:

[B. Evidentiary comment:]

2.1.5. Evidence which is insufficient to exclude the intention to destroy that group

P.32. Evidence of motives of the perpetrator.

A. Legal source/authority and evidence:

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-A, Judgement (AC), 9 July 2004, paras. 49 – 52:

"49. It may be recalled that during the drafting of the Genocide Convention, the delegates debated whether to include the element of motive in the definition of the crime of genocide.⁶⁵ After extensive discussion, the words "as such" were introduced into the draft document to replace an explicit reference to motives made in an earlier draft. Venezuela, the author of this amendment, stated that "an enumeration of motives was useless and even dangerous, as such a restrictive enumeration would be a powerful weapon in the hands of the guilty parties and would help them to avoid being charged with genocide. Their defenders would maintain that the crimes had been committed for other reasons than those listed in article II."⁶⁶ The Venezuelan delegate continued that "it was sufficient to indicate that intent was a constituent factor of the crime."⁶⁷ He observed that replacing the statement of motives with the words "as such" should meet the views of those who wanted to retain the statement, noting that motives were implicitly included in the words "as such".⁶⁸

50. The Trial Chamber in the Akayesu case interpreted the concerned provision in Article 2(2) of the Statute to mean that "the act must have been committed against one or several individuals, because such individual or individuals were members of a specific group, and specifically because they belonged to this group."⁶⁹ This interpretation was adopted by the Tribunal in subsequent cases, including by the Trial Chamber in the present case.⁷⁰

51. The Appellant proposes that the correct interpretation of the words "as such" is "solely," so that a finding of the requisite specific intent would be predicated on proof that the perpetrator committed the proscribed acts against members of the protected group "solely because they were members of such a group."⁷¹ This proposal, if adopted, would introduce into the calculus of the crime of genocide the determination whether the perpetrator’s acts were motivated solely by the intent to destroy the protected group, in whole or in part, or whether the perpetrator was motivated by that intent as well as other factors.

52. In Kayishema and Ruzindana, the Appeals Chamber cautioned that "criminal intent (mens rea) must not be confused with motive" and stated that "in respect of genocide, personal motive does not exclude criminal responsibility" provided that the genocidal acts were committed with the requisite intent.⁷² This position was reinforced in Prosecutor v. Jelisić, where the ICTY Appeals Chamber observed that "the existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide."⁷³

"65. See generally Machteld Boot, Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (2002), pp. 411-414.

66. UN GAOR 6^th Committee, 76^th Meeting (1948), p. 124.

67. Ibid.

68. UN GAOR 6^th Committee, 76^th Meeting (1948), pp. 124-125.

69. Akayesu Trial Judgement, para. 521.

70. Trial Judgement, para. 410. See also Media Case Trial Judgement, para. 948; Semanza Trial Judgement, para. 312; Bagilishema Trial Judgement, para. 61; Rutaganda Trial Judgement, para. 60; Musema Trial Judgement, paras. 153, 154, 165.

71. Appellant’s Brief, paras. 80, 82 (emphasis in original).

72. Kayishema and Ruzindana Appeal Judgement, para. 161.

73. Jelisić Appeal Judgement, para. 49. Note also that the ICTY Appeals Chamber in the case of Prosecutor v. Tadić stated that save for sentencing, motive is irrelevant in criminal law. Tadić Appeal Judgement, paras. 268, 269. See also M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia (1996), p. 528: "The actor’s intent, or state of mind, at the time of performing the act is different than his motives. The latter are the ultimate purposes or goals sought to be accomplished by such conduct and they are irrelevant." (citations omitted).

74. Prosecutor v. Kambanda, ICTR-97-23-S, Judgement and Sentence, 4 September 1998, para. 16; Prosecutor v. Jelisić, IT-95-10-A, Judgement, 14 December 1999, Partial Dissenting Opinion of Judge Wald, para. 2.

75. See William A. Schabas, Genozid im V?lkerrecht (2003), pp. 340-341; William A. Schabas, Genocide in International Law (2000), pp. 254-255."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Judgement (AC), 5 July 2001, paras. 49, 71:

"49. The Appeals Chamber further recalls the necessity to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide. In the Tadi} appeal judgement the Appeals Chamber stressed the irrelevance and "inscrutability of motives in criminal law".⁸⁴"

"84. Prosecutor v. Dusko Tadic, Case No.: IT-95-1-A, Judgement, 15 July 1999 ("the Tadic appeal judgement"), para. 269, p. 120."

"71. [A]s has been mentioned above, the Tribunal has declared in the Tadic appeal judgement the irrelevance and "inscrutability of motives in criminal law" insofar as liability is concerned, where an intent – including a specific intent – is clear."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (AC), 1 June 2001, para. 161:

"161. Ruzindana contends further that certain witnesses ascribed to him a personal motive for his actions (such as the elimination of business competitors) and that "a person who commits a crime, in the quest of a personal goal, such as vengeance or lucre … is not guilty of genocide but of an ordinary crime".²⁴⁰ The Appeals Chamber notes that criminal intent (mens rea) must not be confused with motive and that, in respect of genocide, personal motive does not exclude criminal responsibility providing that the acts proscribed in Article 2(2)(a) through to (e) were committed "with intent to destroy, in whole or in part a national, ethnical, racial or religious group".²⁴¹"

"240. Ruzindana’s Brief, para. 23, with references to the testimonies of Witnesses X, CC, EE and II.

241. See also Tadic Appeal Judgement, para. 269."

Prosecutor v. Dusko Tadic, Case No. IT-95-1-A, Judgement (TC), 15 July 1999, paras. 268 – 269:

"268. One reason why the above cases do not refer to "motives" may be, as the Defence has suggested,³³³ that "the issue in these cases was not whether the Defendants committed the acts for purely personal motives". The Appeals Chamber believes, however, that a further reason why this was not in issue is precisely because motive is generally irrelevant in criminal law, as the Prosecution pointed out in the hearing of 20 April 1999:

269. The Appeals Chamber approves this submission, subject to the caveat that motive becomes relevant at the sentencing stage in mitigation or aggravation of the sentence (for example, the above mentioned thief might be dealt with more leniently if he stole to give presents to his children than if he were stealing to support a heroin habit). Indeed the inscrutability of motives in criminal law is revealed by the following reductio ad absurdum. Imagine a high-ranking SS official who claims that he participated in the genocide of the Jews and Gypsies for the "purely personal" reason that he had a deep-seated hatred of Jews and Gypsies and wished to exterminate them, and for no other reason. Despite this quintessentially genocidal frame of mind, the accused would have to be acquitted of crimes against humanity because he acted for "purely personal" reasons. Similarly, if the same man said that he participated in the genocide only for the "purely personal" reason that he feared losing his job, he would also be entitled to an acquittal. Thus, individuals at both ends of the spectrum would be acquitted. In the final analysis, any accused that played a role in mass murder purely out of self-interest would be acquitted. This shows the meaninglessness of any analysis requiring proof of "non-personal" motives. The Appeals Chamber does not believe, however, that the Trial Chamber meant to reach such a conclusion. Rather, the requirement that the accused’s acts be part of a context of large-scale crimes, and that the accused knew of this context, was misstated by the Trial Chamber as a negative requirement that the accused not be acting for personal reasons. The Trial Chamber did not, the Appeals Chamber believes, wish to import a "motive" requirement; it simply duplicated the context and mens rea requirement, and confused it with the need for a link with an armed conflict, and thereby seemed to have unjustifiably and inadvertently added a new requirement."

"333. Defence’s Substituted Response to Cross-Appellant’s Brief, para. 4.16.
334. T. 152-153 (20 April 1999)."

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para.492:

"493. Of course, this special intent must not be confused with motive, namely the particular reason that may induce a person to engage in criminal conduct. For instance, in the case of genocide a person intending to murder a set of persons belonging to a protected group, with the specific intent of destroying the group (in whole or in part), may be motivated, for example, by the desire to appropriate the goods belonging to that group or set of persons, or by the urge to take revenge for prior attacks by members of that groups, or by the desire to please his superiors who despise that group. From the viewpoint of criminal law, what matters is not the motive, but rather whether or not there exists the requisite special intent to destroy a group.¹⁷⁸"

"178. See e.g. Jelisić (Appeals Chamber), July 5, 2001, § 49."

P.32.1. Evidence that there were also other reasons for the genocidial acts.

A. Legal source/authority and evidence:

Prosecutor v. Aloys Simba, Case No. ICTR-2001-76-T, Judgement (TC), 13 December 2005, para. 406:

"417. In reaching this conclusion, the Chamber has considered the arguments of the Defence that Simba could not have committed genocide, given his close association with Tutsi and his tolerant views, which it suggests resulted in his marginalization and attacks against his family in Gikongoro.414 There is no clear evidence that Simba was among the adherents of a hard line anti-Tutsi philosophy. It cannot be excluded that he participated in the joint criminal enterprise, as a former career military officer and public servant, out of a misguided sense of patriotism or to ensure the protection of himself and those in his care.415 In responding to similar arguments of lack of enthusiasm for killings or reluctant participation in relation to another specific intent crime (persecution), the Appeals Chamber in Kvocka et al. stated:

418. Simba was physically present at two massacre sites. He provided traditional weapons, guns, and grenades to attackers poised to kill thousands of Tutsi. Simba was aware of the targeting of Tutsi throughout his country, and as a former military commander, he knew what would follow when he urged armed assailants to "get rid of the filth". The only reasonable conclusion, even accepting his submissions as true, is that at that moment, he acted with genocidal intent."

414 Defence Closing Brief, paras. 1045-1097; T. 8 July 2005 pp. 15-16 ("First of all because I was not present at the sites but also because the state of my mind would not allow me to perpetrate such crimes. I believe those accusing me have not been able to demonstrate the special hatred that I could harbour against the Tutsi of Gikongoro. If ever I was thirsty for Tutsi blood I could have found such blood in Kigali especially as I had Tutsi blood in my house. Mr. President, the Tutsi of Gikongoro are my neighbours, are my friends, childhood

friends, my benefactors, the people who elected me. Why would I have attacked those innocent individuals?").

415 The Chamber has noted Simba’s explanations for assuming the role of civil defence adviser. T. 22 March 2005 p. 2 (" Q. Is it correct that in 1994 you accepted to place yourself at the service of the nation by giving your assistance to the civil defence as advisor to the Gikongoro préfet? A. Yes, I accepted that, but I do not think that is an accusation, because the country was at war, and each and every citizen is called upon to help his country, to defend his country, because a good citizen cannot stay idle when a country is at war.") T. 24 March 2005 pp.

76-77 ("I also told you that, when I accepted to participate in the civil defence operation, this is not because I believed so much in the government … It was not I who asked; this time I was contacted. Before I was contacted, I was calm in my own corner. Now, if a report were to be given that I had been contacted and that I declined the responsibilities entrusted to me, how were they going to treat me? So I thought this thing would be a problem for me. I am telling you that many people, many important and intelligent people, died. They died just like that because they did not want to collaborate because there was disagreement.").

416 Kvocka et al., Judgment (AC), 28 February 2005, paras. 224, 232-233 (internal citations omitted), 416

Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10-A and ICTR-96-17-A, Judgement (TC), 13 December 2004, paras. 304, 363:

"304. The Appeals Chamber need not consider whether the Trial Chamber erred in finding that the refugees were targeted "solely" for their Tutsi ethnicity because the definition of the crime of genocide does not contain such a requirement.⁵¹⁹ It is immaterial, as a matter of law, whether the refugees were targeted solely on the basis of their ethnicity or whether they were targeted for their ethnicity in addition to other reasons."

"519. See Niyitegeka Appeal Judgement, paras. 48-53."

"363. Elizaphan Ntakirutimana submits that the evidence established that the Appellants did not have the intent to destroy Tutsi "solely" because of their ethnicity.⁵⁷⁹ As stated above, the definition of the crime of genocide in Article 2 of the Statute, which mirrors the definition set out in the Genocide Convention, does not require that the intent to destroy a group be based solely on one of the enumerated grounds of nationality, ethnicity, race, or religion.⁵⁸⁰

"579. Appeal Brief (E. Ntakirutimana), p. 59.

580. See supra Section III B. See also Niyitegeka Appeal Judgement, para. 53."

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, Judgement (TC), 15 July 2004, para. 469:

"469. The Chamber is of the view that Nors was perceived to be, at least in part, of Tutsi ethnicity. Testimony in the present case indicates that physical traits were an important, if not decisive, indicator of ethnic identity in Rwanda in 1994.⁶⁰⁷ As Nors had the physical appearance of a Tutsi, he would have been understood to be Tutsi. Having a single European parent is not mutually exclusive with being perceived as part-Tutsi; indeed, several witnesses referred to him as a "half-caste", which would seem to imply that he was understood to be part-European, and part-Rwandan. It is highly improbable that he would have been targeted if his Rwandan ethnicity was perceived to be Hutu or Twa. Further, Nors was killed very soon after the Accused had instructed that Tutsi be killed, providing circumstantial support for the inference that he was, in fact, killed for that reason. Finally, the presence of additional motives for the killing of Nors (as, for example, that he may have been part-Belgian) does not displace the killers’ genocidal intent.⁶⁰⁸ In light of these factors, the Chamber infers that Nors was targeted because he was understood to be, at least in part, Tutsi."

"607. As indicated by Witnesses CGL and CGH, as well as CGC.

608. Niyitegeka, Judgement (AC), para. 53 ("In other words, the term ‘as such’ clarifies the specific intent requirement. It does not prohibit a conviction for genocide in a case in which the perpetrator was also driven by other motivations that are legally irrelevant in this context. Thus the Trial Chamber was correct in interpreting ‘as such’ to mean that the proscribed acts were committed against the victims because of their membership in the protected group, but not solely because of such membership")."

[B. Evidentiary comment:]

P.32.2. Evidence that the perpetrator was motivated by bening intention

Human Rights and Equal Opportunities Commission (Australia), Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, House of Representatives Official Hansard, 38^th Parliament, 26 May 1997, p. 4002; online: www.humanrights.gov.au/social_justice/bth_report/report/index.html, Chapter 13:

"This finding raises a third issue, namely, the question of mixed motives. Does the Genocide Convention apply where the destruction of a particular culture was believed to be in the best interests of the children belonging to that group or where the child removal policies were intended to serve multiple aims, for example, giving the children an education or job training as well as removing them from their culture? Where good intentions are acknowledged, do they negate the bad or transform the intention to destroy the group as such (ie for its own good) into a benign intention? Does the Convention apply in cases where the destruction of a particular culture and its family institutions was believed to be in the best interests of the children or where the child removal policies were intended to serve multiple aims?

Through much of the period beginning around the middle of the nineteenth century and persisting until the repeal of overtly discriminatory legislation in the 1960s, a key objective of the forcible removal of Indigenous children was to remove them from the influence of their parents and communities, to acculturate them and to socialise them into Anglo-Australian values and aspirations.

Other objectives included education of the children to make them `useful' and `worthy' citizens, their training for labour and domestic service, their protection from malnutrition, neglect or abuse, the reduction of government support for idle dependants and the protection of the community from `dangerous elements'.

A O Neville, Western Australia's Chief Protector (1915-40), believed he could `do nothing' for `full-bloods', who were thought to be dying out. However, he could absorb the `half-castes'.

The native must be helped in spite of himself! Even if a measure of discipline is necessary it must be applied, but it can be applied in such a way as to appear to be gentle persuasion ... the end in view will justify the means employed (quoted by Haebich 1988 on page 156).

Neville's successor eventually came to have reservations about this policy and practice.

The debates at the time of the drafting of the Genocide Convention establish clearly that an act or policy is still genocide when it is motivated by a number of objectives. To constitute an act of genocide the planned extermination of a group need not be solely motivated by animosity or hatred (Lippmann 1994 pages 22-23)."

[B. Evidentiary comment:]

P.33. Evidence that the genocidal acts were not the most efficient way of destroying the group.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, para. 32

"32. In determining that genocide occurred at Srebrenica, the cardinal question is whether the intent to commit genocide existed. While this intent must be supported by the factual matrix, the offence of genocide does not require proof that the perpetrator chose the most efficient method to accomplish his objective of destroying the targeted part. Even where the method selected will not implement the perpetrator’s intent to the fullest, leaving that destruction incomplete, this ineffectiveness alone does not preclude a finding of genocidal intent. The international attention focused on Srebrenica, combined with the presence of the UN troops in the area, prevented those members of the VRS Main Staff who devised the genocidal plan from putting it into action in the most direct and efficient way. Constrained by the circumstances, they adopted the method which would allow them to implement the genocidal design while minimizing the risk of retribution."

P.34. Evidence of having saved or protected members of that group.

A. Legal source/authority and evidence:

Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, Judgement (TC), 3 December 2003, para. 968:

"968. Hassan Ngeze wrote many articles and editorials, and made many statements that openly evidence his genocidal intent. […] His role in saving Tutsi individuals whom he knew does not, in the Chamber’s view, negate his intent to destroy the ethnic group as such. Witness LAG heard him say, ‘[I]f Habyarimana were also to die, we would not be able to spare the Tutsi.’ Witness AEU heard Ngeze on a megaphone, saying that he was going to kill and extermintae all the Inyenzi, by which he meant the Tutsi, and as set forth above, Ngeze himself ordered an attack on Tutsi civilians in Gisenyi, evidencing his intent to destroy the Tutsi population."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (AC), 1 June 2001, paras. 147 – 149:

"147. Kayishema submits that the Trial Chamber erred in finding that he possessed the requisite mens rea for the crime of genocide, a challenge which is limited to the factual aspects of the Trial Chamber’s finding.²¹⁷ Accordingly, Kayishema does not take issue with the Trial Chamber’s conclusion in respect of how intent may be inferred. His argument is that Witness O gave evidence during the trial to the effect that Kayishema was responsible for the rescue of 72 Tutsi children, who had survived the massacre at Home St Jean Complex, and that the Trial Chamber failed to properly take this evidence into account.²¹⁸He submits further that this particular piece of evidence demonstrates his innocence.²¹⁹

148. The Trial Chamber found that Kayishema possessed the requisite "intent to destroy the Tutsi group in whole or in part",²²⁰which it inferred from the following factors: (i) the number of victims that were killed; (ii) the manner in which the killings were carried out (the methodology); and (iii) Kayishema’s utterances during and after the massacres.²²¹ As submitted by Kayishema, Witness O’s evidence could be taken in support of the assertion that the 72 children, who had survived the massacres at the Home St. Jean Complex, were taken to the hospital upon Kayishema’s order.²²² However, in determining the mens rea, the Trial Chamber assessed and weighed all relevant evidence that had been presented to it, including also other aspects of Witness O’s testimony.²²³ On the basis of such evidence, it found that it had been established beyond reasonable doubt that the requisite mens rea was present.

149. The Appeals Chamber observes that in light of the overall evidence, the fact that the 72 children may have been taken to the hospital pursuant to Kayishema’s instructions has little direct bearing on the question whether he possessed the requisite mens rea. Accordingly, the Appeals Chamber finds Kayishema’s submissions to be unpersuasive and that he has failed to demonstrate the unreasonableness of the Trial Chamber’s conclusion."

"217. Ibid., para. 72bis.

Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, Judgement (TC), 3 December 2003, para. 984:

"984. The Trial Chamber in Akayesu interpreted ‘as such’ to mean that the act must be committed against individual because the individual was a member of a specific group and specifically because he belonged to this group, so that the victim is the group itself, not merely the individual.¹⁰⁸⁴ The individual is the personification of the group. The Chamber considers that acts committed against Hutu opponents were committed on account of their support of the Tutsi ethnic group and in furtherance of the intent to destroy the Tutsi ethnic group."

"1084. Akayesu (TC) para. 521."

2.1.6. Exculpatory evidence

P.36. Evidence that killings were arbitrary or random.

A. Legal source/authority and evidence:

Prosecutor v. Duško Sikirica et al., Case No. IT-95-8-T, Judgement on Defence Motions to Acquit (TC), 3 September 2001, paras. 95:

"95. The Prosecution has also referred to […] the systematic manner of killing and the disposal of bodies. The evidence does not support the conclusion that there was any particular system in disposing of bodies. Indeed, apart from the Room 3 massacre, the killings appear to have been sporadic. The Room 3 massacre of about 120 people is an episode, which, by itself, would not necessarily signify a particular system of killing."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 91-98, 102 – 108:

"91. The Prosecutor also tendered lists¹²⁸ of names of persons who were reputedly killed at the time of the acts ascribed to the accused¹²⁹. In particular, the Prosecutor submitted a list of thirty-nine persons who for the most part were either members of the local administrative or political authorities, well-known figures in town, members of the Muslim Youth Association, members of the SDA or simply SDA sympathisers¹³⁰.

92. One witness¹³¹ described how the police detectives who interrogated the detainees at Luka camp appeared to decide which detainees were to be executed upon the basis of a document. Another detainee¹³² claimed at the hearing to have seen a list of numbered names headed "people to execute" in one of the administrative building offices in Luka camp. According to this witness, about fifty names appeared on the list and they were mostly Muslim.

93. However, the reason for being on these lists and how they were compiled is not clear. Nor has it been established that the accused relied on such a list in carrying out the executions. One witness stated inter alia that Goran Jelisić seemed to select the names of persons at random from a list¹³³. Other witnesses suggested that the accused himself picked out his victims from those in the hangar. In no manner has it been established that the lists seen by Witness K or by Witness R at Luka camp correspond to that submitted by the Prosecutor¹³⁴. It is not therefore possible to conclude beyond all reasonable doubt that the choice of victims arose from a precise logic to destroy the most representative figures of the Muslim community in Brcko to the point of threatening the survival of that community¹³⁵.

94. In addition, it has been established that many detainees at Luka camp had a laissez-passer¹³⁶. According to Witness F, eighty to a hundred persons out of a total of six to seven hundred detainees were reputedly released in this way on the day they arrived, 8 May 1992. Other laissez-passer were reportedly issued subsequently. Allegedly, the detainees were also exchanged as of 19 May 1992¹³⁷.

95. It has also not been established beyond all reasonable doubt whether the accused killed at Luka camp under orders. Goran Jelisić allegedly presented himself to the detainees as the Luka camp commander¹³⁸. The detainees believed that he was the chief or at least a person in authority because he gave orders to the soldiers at the camp¹³⁹ who appeared to be afraid of him¹⁴⁰. The Trial Chamber does not doubt that the accused exercised a de facto authority over the staff and detainees at the camp.

96. However, no element establishing the chain of command within which he operated has been presented. In particular, no clear information has been provided concerning the authority to which he answered. Some testimony did however make reference to a man who supposedly presented himself as being Jelisić’s superior¹⁴¹. This commander¹⁴², who wore the uniform of the Yugoslav National Army (JNA), supposedly came to Luka camp on about 16 or 18 May 1992 with other military personnel and reported that an order had been given for the detainees not to be killed but kept alive for use in exchanges¹⁴³. Several witnesses attested to Goran Jelisić’s being present in Luka camp up until 18 or 19 May 1992 and reported that there was a change of regime following his departure. Cruel treatment allegedly became less frequent and there were supposedly no more murders¹⁴⁴.

97. The Trial Chamber thus considers it possible that Goran Jelisić acted beyond the scope of the powers entrusted to him. Some of the testimony heard would appear to confirm this conclusion since it describes the accused as a man acting as he pleased and as he saw fit¹⁴⁵. One witness even recounted that Goran Jelisić had an altercation with a guard and told him that he should not subject the detainees to such treatment¹⁴⁶.

98. In consequence, the Trial Chamber considers that, in this case, the Prosecutor has not provided sufficient evidence allowing it to be established beyond all reasonable doubt that there existed a plan to destroy the Muslim group in Brcko or elsewhere within which the murders committed by the accused would allegedly fit."

"102. Admittedly, the testimony makes it seem that during this period Goran Jelisić presented himself as the "Serbian Adolf"¹⁵¹ and claimed to have gone to Brcko to kill Muslims. He also presented himself as "Adolf" at his initial hearing before the Trial Chamber on 26 January 1998¹⁵². He allegedly said to the detainees at Luka camp that he held their lives in his hands and that only between 5 to 10 % of them would leave there¹⁵³. According to another witness, Goran Jelisić told the Muslim detainees in Luka camp that 70% of them were to be killed, 30% beaten and that barely 4% of the 30% might not be badly beaten¹⁵⁴. Goran Jelisić remarked to one witness that he hated the Muslims and wanted to kill them all, whilst the surviving Muslims could be slaves for cleaning the toilets but never have a professional job. He reportedly added that he wanted "to cleanse" the Muslims and would enjoy doing so, that the "balijas" had proliferated too much and that he had to rid the world of them¹⁵⁵. Goran Jelisić also purportedly said that he hated Muslim women, that he found them highly dirty and that he wanted to sterilise them all in order to prevent an increase in the number of Muslims but that before exterminating them he would begin with the men in order prevent any proliferation¹⁵⁶.

103. The statements of the witnesses bring to light the fact that, during the initial part of May, Goran Jelisić regularly executed detainees at Luka camp. According to one witness, Goran Jelisić declared that he had to execute twenty to thirty persons before being able to drink his coffee each morning. The testimony heard by the Trial Chamber revealed that Goran Jelisić frequently informed the detainees of the number of Muslims that he had killed. Thus, on 8 May 1992 he reputedly said to one witness that it was his sixty-eighth victim¹⁵⁷, on 11 May that he had killed one hundred and fifty persons¹⁵⁸ and finally on 15 May to another witness¹⁵⁹ following an execution that it was his "eighty-third case".

104. Some witnesses pointed out that Goran Jelisić seemed to take pleasure from his position, one which gave him a feeling of power, of holding the power of life or death over the detainees and that he took a certain pride in the number of victims that he had allegedly executed¹⁶⁰. According to another testimony, Goran Jelisić spoke in a bloodthirsty manner, he treated them like animals or beasts and spittle formed on his lips because of his shouts and the hatred he was expressing. He wanted to terrorise them¹⁶¹.

105. The words and attitude of Goran Jelisić as related by the witnesses essentially reveal a disturbed personality¹⁶². Goran Jelisić led an ordinary life before the conflict. This personality, which presents borderline, anti-social and narcissistic characteristics and which is marked simultaneously by immaturity, a hunger to fill a "void" and a concern to please superiors, contributed to his finally committing crimes¹⁶³. Goran Jelisić suddenly found himself in an apparent position of authority for which nothing had prepared him. It matters little whether this authority was real. What does matter is that this authority made it even easier for an opportunistic and inconsistent behaviour to express itself.

106. Goran Jelisić performed the executions randomly. In addition, Witness R, an eminent and well-known figure in the Muslim community was allegedly forced to play Russian roulette with Goran Jelisić before receiving a laissez-passer directly from him¹⁶⁴. Moreover, on his own initiative and against all logic, Goran Jelisić issued laissez-passer to several detainees at the camp, as shown inter alia by the case of Witness E¹⁶⁵ whom Goran Jelisić released after having beaten.

107. In conclusion, the acts of Goran Jelisić are not the physical expression of an affirmed resolve to destroy in whole or in part a group as such.

108. All things considered, the Prosecutor has not established beyond all reasonable doubt that genocide was committed in Brcko during the period covered by the indictment. Furthermore, the behaviour of the accused appears to indicate that, although he obviously singled out Muslims, he killed arbitrarily rather than with the clear intention to destroy a group. The Trial Chamber therefore concludes that it has not been proved beyond all reasonable doubt that the accused was motivated by the dolus specialis of the crime of genocide. The benefit of the doubt must always go to the accused and, consequently, Goran Jelisić must be found not guilty on this count."

"151. The International Criminal Tribunal for Rwanda noted similarly in the Kayishema case that "although a specific plan to destroy does not constitute an element of genocide, it would appear that it is not easy to carry out a genocide without such a plan, or organisation" (para. 94).

152. Witness J, FPT pp. 774 and 808; Witness A, FPT p. 125.

153. FPT p. 1.

154. Witness F, FPT pp. 234-567.

155. Witness G, FPT pp. 372-434.

156. Witness K, FPT pp. 864-865.

157. Witness K, FPT pp. 867-868.

158. Witness F, FPT p. 249.

159. Witness A, FPT p. 45.

160. Witness R, FPT pp. 1401-1405.

161. Witness B, FPT pp. 131-133.

162. Witness K, FPT pp. 840-903 and 980-1026.

163. See note 25. See also the report of Doctor van den Bussche, 8 November 1999.

164. The Trial Chamber notes that the presence of a woman at Goran Jelisić’s side also seems to have encouraged him to commit certain murders in order to impress the young woman.

165. Witness R, FPT pp. 1383-1476."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 91 – 98:

"128. Testimony of Mr. Albert Charles Hunt, FPT pp. 1363 and 1369.

129. These lists name just over a hundred people who died. The first list (exhibit 12) was compiled using documents supplied by Republika Srpska which established a list of persons whose bodies were reportedly found in a mass grave. The second list (exhibit 13) was compiled by witness Mustafa Ramic. It appears from these exhibits that about sixty persons were killed in Brcko during May 1992 (of a total Muslim population of about 22 000 people – see note 101).

130. Exhibits 12 and 13.

131. Exhibit 13.

132. Witness L, FPT pp. 945-948.

133. Witness K, FPT pp. 840-903 and 980 to 1026.

134. Witness R, FPT pp. 1384-1476. The existence of lists was also remarked upon by Witness J, FPT p. 830.

135. Exhibit 13.

136. As indicated above, the figures provided by a prosecution witness put the Muslim population at over 22 000 in the town of Brcko alone.

137. Witness L, FPT p. 944; Witness H, FPT p. 669; Witness I, FPT p. 730; Witness G, FPT p. 423; Witness J, FPT p. 808.

138. Witness M, FPT p. 1076; Witness O, FPT p. 1155; Witness B, FPT pp. 158-159.

139. Witness D, FPT pp. 440-441. According to Witness O, Goran Jelisić wore the uniform of the civilian police or a camouflage uniform, FPT p. 1153.

140. Witness L, FPT pp. 907-970.

141. Witness B, FPT p. 139.

142. Witness A, FPT p. 95; Witness B, FPT p. 139.

143. Djurkovic or Jerkovic, Witness A, FPT p. 55; Witness B declared that "Kole" was the chief at Luka on 12 or 13 May 1992 and that he had been replaced by Vojkan and then Kosta, FPT p. 181.

144. Witness M, FPT p. 1076; Witness O, FPT p. 1155; Witness B, FPT pp. 158-159.

145. Witness K, FPT p. 885; Witness A, FPT p. 55.

146. Witness I, FPT p. 761; Witness R, FPT p. 1413."

P.37. Evidence that only some members of that group were selected as victims of the genocidal acts.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 979:

"979. Finally, the victims of the underlying acts in Article 4(2)(a) to (c), particularly in camps and detention facilities, were predominantly, although not only, military -aged men. This additional factor could militate further against the conclusion that the existence of genocidal intent is the only reasonable inference that may be drawn from the evidence.²⁴⁶⁰ There is an alternative explanation for the infliction of these acts on military-aged men, and that is that the goal was rather to eliminate any perceived threat to the implementation of the Strategic Plan in the ARK and beyond. Security for the Bosnian Serbs seems to have been the paramount interest. In the words of one witness: "the aim was to reduce the threat to the detainer, the detainer’s community, and anyone […] who looked as if they would fight, once sent to the other side, would be eligible for detention".²⁴⁶¹"

"2460. The Trial Chamber is aware that the Appeals Chamber has stated that: "The killing of military aged men was, assuredly, a physical destruction, and given the scope of the killings the Trial Chamber could legitimately draw the inference that their extermination was motivated by a genocidal intent": Krstić Appeals Chamber, para. 27 (emphasis added). This is not an inference that may be drawn in this case.

2461. "In looking at Trnopolje and Manjaca, the majority were of fighting age": Barney Mayhew, ex. P1617, T. 6071. See ex. P1617/S166A, "CSCE Rapporteur Mission to Banja Luka, 30-31/08/92, Meeting with the Mayor of Prijedor", dated 3 September 1992 and authored by Charles McLeod, where an unidentified individual from the Bosnian Serb authorities stated that "We have released a certain number of prisoners from the camp who were from here and who are still around but in proposing an exchange we take a risk because we know as soon as they go back they will be mobilised and fight against us. We have already had experience of this". See Charles McLeod, T. 7318, describing Manjaca camp: "[t]hree and a half thousand male members of the predominantly [Bosnian] Muslim population had been brought together to hold them until a solution was found for what to do next with them". In addition, no provision seems to have been made to keep them over the winter. See ex. P1617/ S 217 A, "Mayhew Report on Manjaca and Trnopolje", dated 4 September 1992, on Majaca: "The camp commandant said that no provision of any kind had been made for winter, as he hoped the prisoners would all have gone before then"... on Trnopolje: "Again, no provision has been made for winter". Furthermore, the Trial Chamber has also found that some military-aged non -Serbs were initially prevented by authorities from leaving. In Banja Luka, very few men of military age were permitted to leave in the direction of Travnik, for authorities feared that they would be mobilised into the ABiH: Amir Dzonlic, T. 2397, 2487."

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, paras. 513 – 514, 516 – 517:

"513. Was there a genocidal intent? Some elements emerging from the facts […] could be indicative of the genocidal intent. However, there are other more indicative elements that show the lack of genocidal intent. The fact that in a number of villages attacked and burned by both militias and Government forces the attackers refrained from exterminating the whole population that had not fled, but instead selectively killed groups of young men, is an important element. A telling example is the attack of 22 January 2004 on Wadi Saleh, a group of 25 villages inhabited by about 11 000 Fur. According to credible accounts of eye witnesses questioned by the Commission, after occupying the villages the Government Commissioner and the leader of the Arab militias that had participated in the attack and burning, gathered all those who had survived or had not managed to escape into a large area. Using a microphone they selected 15 persons (whose name they read from a written list), as well as 7 omdas, and executed them on the spot. They then sent all elderly men, all boys, many men and all women to a nearby village, where they held them for some time, whereas they executed 205 young villagers, who they asserted were rebels (Torabora). According to male witnesses interviewed by the Commission and who were among the survivors, about 800 persons were not killed (most young men of those spared by the attackers were detained for some time in the Mukjar prison)."

"514. This case clearly shows that the intent of the attackers was not to destroy an ethnic group as such, or part of the group. Instead, the intention was to murder all those men they considered as rebels, as well as forcibly expel the whole population so as to vacate the villages and prevent rebels from hiding among, or getting support from, the local population."

"516. Another element that tends to show the lack of genocidal intent is the fact that in contrast with other instances described above, in a number of instances villages with a mixed composition (African and Arab tribes) have not been attacked. This for instance holds true for the village of Abaata (north-east of Zelingei, in Western Darfur), consisting of Zaghawa and members of Arab tribes.

517. Furthermore, it has been reported by a reliable source that one inhabitant of the Jabir Village (situated about 150 km from Abu Shouk Camp) was among the victims of an attack carried out by Janjaweed on 16 March 2004 on the village. He stated that he did not resist when the attackers took 200 camels from him, although they beat him up with the butt of their guns. Instead, prior to his beating, his young brother, who possessed only one camel, had resisted when the attackers had tried to take his camel, and had been shot dead. Clearly, in this instance the special intent to kill a member of a group to destroy the group as such was lacking, the murder being only motivated by the desire to appropriate cattle belonging to the inhabitants of the village. Irrespective of the motive, had the attackers’ intent been to annihilate the group, they would not have spared one of the brothers."

2.2. The perpetrator intended "to destroy" that group

P.38. Evidence of intention to destroy by physical or biological means

A. Legal source/authority and evidence:

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, para. 497:

"497. The notion of "destruction of a group" means "the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, religious, cultural or other identity of a particular group".⁴⁵⁶"

"456. See ILC Report (1996), para. 50; see also Gacumbitsi Judgement (TC), para. 253; Semanza Judgement (TC), para. 315; Kayishema and Ruzindana Judgement (TC), para. 95."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 627:

"627. An Accused may be liable under Article 2 if he "intends to destroy a […] group." According to the Report of the International Law Commission, destruction within the meaning of Article 2 is "[t]he material destruction of a group either by physical and biological means and not the destruction of the national, linguistic, religious, cultural or other identity of a particular group."

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, para. 808:

"808. An Accused may be liable under Article 2 if he ‘intends to destroy a […] group.’ The Trial Chambers of the Tribunal and particularly that in Semanza made reference to the Report of the International Law Commission which states that destruction within the meaning of Article 2 is ‘[t]he material destruction of a group either by physical and biological means and not the destruction of the national, linguistic, religious, cultural or other identity of a particular group.’¹⁰⁴⁵"

"1045. See ‘ILC Report 1996; Draft Code of Crimes Against the Peace and Security of Mankind’, p. 90; Semanza, Judgment (TC), 15 May 2003, para. 315, Kayishema and Ruzindana, Judgment (TC), para. 95."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 315:

315. Article 2 of the Statute indicates that the perpetrator must be shown to have committed the enumerated prohibited acts with the intent to "destroy" a group. The drafters of the Genocide Convention, from which the Tribunal’s Statute borrows the definition of genocide verbatim, unequivocally chose to restrict the meaning of "destroy" to encompass only acts that amount to physical or biological genocide.⁵³⁵"

"535. Report of the International Law Commission on the Work of its Forty-Eighth Session 6 May – 26 July 1996, UN GAOR International Law Commission, 51st Sess., Supp. No. 10, p. 90, UN Doc. A/51/10 (1996) ("As clearly shown by the preparatory work for the Convention, the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, religious, cultural or other identity of a particular group.")."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 95:

"95. The perpetrator must intend to destroy a group in whole or in part. This begs the question of what constitutes the "destruction of a group." The Prosecution suggests that the term should be broadly interpreted and encompass acts that are undertaken not only with the intent to cause death but also includes acts which may fall short of causing death.⁴³ In the Akayesu Judgement, acts of sexual violence, which occurred in Taba Commune were found to form an integral part of the process of destruction, specifically, targeting Tutsi women and contributing to their destruction and the destruction of the Tutsi as a group.⁴⁴The Trial Chamber concurs with this view and that of the International Law Commission (ILC) which stated that "it is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe."⁴⁵

"43. Prosecutor’s Brief, 9 Oct. 1998, p. 30.

44. Akayesu Judgement, para. 731.

45. ILC Draft Code of Crimes, p. 42, para. 8"

B. Evidentiary comment:

The significance placed on evidence of an ‘ethic cleansing’ campaign and whether or not it is evicence of genocidal intent is likely to depend on the meaning given by the Court to the term "destroy" and whether this encompases something falling short of the death of group members – for example their mass forced deportation or transfer.

Some inconsistency appears to remain in the approach of the ICTY to the concept of "destruction" and what it encompasses. In particular, it seems to remain unclear the extent to which the forced removal of a group from one geographical location to another might constitute the group’s destruction. In Stakić and again in Brđanin the Trial Chamber drew a dichotomy between the forced displacement of a group on the one hand, and its destruction on the other, apparently assuming that the former could not constitute a form of the latter. However in other cases, for example Krstić and Milošević, the Tribunal appears to treated mass deportations as part of an ‘ethnic cleansing’ program as potentially constituting a type of destruction. In Blagojević the Trial Chamber explicitly held that forced transfers could amount to destruction (see below).

P.39. Not sufficient: Evidence of cultural genocide

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 657 – 666:

"657. The Appeals Chamber has recently confirmed that, by using the term "destroy", "[t]he Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group."²⁰⁸⁵ In the travaux préparatoires of the Convention, a distinction was made between physical or biological genocide on the one hand and cultural genocide on the other.²⁰⁸⁶ The International Law Commission described the difference between these concepts in the following terms:

658. The Trial Chamber notes that what was originally intended to be excluded from the definition of the crime was cultural genocide, and that this does not in itself prevent that physical or biological genocide could extend beyond killings of the members of the group. The Trial Chamber acknowledges that there have been attempts, both in the Tribunal’s case-law and in other sources, to interpret the concept of physical or biological destruction in this way.²⁰⁸⁸

659. In this respect, the Trial Chamber recalls the opinion of Judge Shahabuddeen, in the Krstić Appeal Judgement, according to which a "distinction should be made between the nature of the listed ‘acts’ [of genocide] and the ‘intent’ with which they are done."²⁰⁸⁹ While the listed acts indeed must take a physical or biological form, the same is not required for the intent.²⁰⁹⁰ With the exceptions of the acts listed in Article 4(2)(c) and (d), "the Statute itself does not require an intent to cause physical or biological destruction of the group in whole or in part".²⁰⁹¹ Judge Shahabuddeen found that:

Judge Shahabuddeen concluded that "[t]he intent certainly has to be to destroy, but, except for the listed act, there is no reason why the destruction must always be physical or biological."²⁰⁹³"

660. In relation to forcible transfer, Judge Shahabuddeen found that "mere displacement" does not amount to genocide. However, he further found that displacement can constitute genocide when the consequence is dissolution of the group.²⁰⁹⁴ Furthermore, he found that in the Krstić case,

661. The Trial Chamber observes, moreover, that the majority of the Krstić Appeals Chamber, held that:

662. A broader notion of the term ‘destroy’, encompassing also "acts which may fall short of causing death",²⁰⁹⁷ had already been considered by the ICTR. In the Akayesu case the Trial Chamber found that acts of rape and sexual violence formed an integral part of the process of destruction of the Tutsi as a group and could therefore constitute genocide. In particular, the Trial Chamber stated that

The Trial Chambers in the Kayishema and Ruzindana case and in the Musema case concurred with this view.²⁰⁹⁹

663. Regarding displacement of people, further support for a broader notion of destruction can also be found elsewhere. Judge Elihu Lauterpacht, in the case before the International Court of Justice concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide,2100 concluded, in his separate opinion, that:

Furthermore, the Commission of Experts found that:

The Trial Chamber observes that a number of UN General Assembly resolutions have equated ‘ethnic cleansing,’ which includes as a central component the forcible transfer and deportation of civilians, with genocide.²¹⁰³

664. The Trial Chamber finally notes the judgement of the Federal Constitutional Court of Germany, explaining that

Furthermore, it found that such an interpretation would not be in violation of international law and that "it has generally been accepted that the limit of the meaning of the text has been exceeded only when the intention to destroy relates solely to a group’s cultural identity [that is, cultural genocide]".2105 The Constitutional Court upheld thereby, as constitutional, an interpretation by the Oberlandesgericht Düsseldorf (Higher Regional Court of Düsseldorf) and the Bundesgerichtshof (Federal Supreme Court) of the term "destroy" as meaning the destruction of "the group as a social unit in its specificity, uniqueness and feeling of belonging [and that] the biological-physical destruction of the group is not required".²¹⁰⁶

665. The Trial Chamber finds that the term "destroy" in the genocide definition can encompass the forcible transfer of a population. The Trial Chamber recalls that the specific intent for the crime of genocide must be to destroy the group as a separate and distinct entity.²¹⁰⁷ In this regard, the Trial Chamber concurs with the observation made by the Sikirica Trial Chamber that:

666. The Trial Chamber finds in this respect that the physical or biological destruction of a group is not necessarily the death of the group members. While killing large numbers of a group may be the most direct means of destroying a group, other acts or series of acts, can also lead to the destruction of the group. A group is comprised of its individuals, but also of its history, traditions, the relationship between its members, the relationship with other groups, the relationship with the land. The Trial Chamber finds that the physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself – particularly when it involves the separation of its members. In such cases the Trial Chamber finds that the forcible transfer of individuals could lead to the material destruction of the group, since the group ceases to exist as a group, or at least as the group it was. The Trial Chamber emphasises that its reasoning and conclusion are not an argument for the recognition of cultural genocide, but rather an attempt to clarify the meaning of physical or biological destruction."

"2085. Krstić Appeal Judgement, para. 25. The destruction of a group’s sociological or cultural identity in itself does not meet the definition of genocide under customary international law. Ibid, referring to Krstić Trial Judgement, para. 580.

2086. Cultural genocide was included in the genocide definition both in the Draft Convention on the Crime of Genocide, prepared by the Secretary-General in pursuance of the resolution of the Economic and Social Council dated 28 March 1947 (UN Doc. E/447, 26 June 1947) and in the Draft Conventione drawn up by the Ad Hoc Committee on Genocide (UN Doc. E/794, 24 May 1948).

2087. 1996 ILC Draft Code.

2088. The Krstić Trial Chamber, for example, admitted that recent developments had indicated a broadening of the definition of genocide in this respect to include other forms of genocide. Krstić Trial Judgement, paras 577-79.

2089. Krstić Appeal Judgement, Partial dissenting opinion of Judge Shahabuddeen ("Partial dissenting opinion of Judge Shahabuddeen") para. 48.

2090. Partial dissenting opinion of Judge Shahabuddeen, para. 48.

2091. Partial dissenting opinion of Judge Shahabuddeen, para. 48.

2092. Partial dissenting opinion of Judge Shahabuddeen, para. 50.

2093. Partial dissenting opinion of Judge Shahabuddeen, para. 51.

2094. This view was also expressed by K. Kreß, Münchner Kommentar zum StGB, Rn 57, §6 VStGB, (Munich 2003), W. A. Schabas, Genocide in International Law (Cambridge University Press, 2000), p. 200, and adopted by the Stakić Trial Chamber. See Stakić Trial Judgement, para. 519.

2095. Judge Shahabuddeen partial dissenting opinion, para. 57.

2096. Krstić Appeal Judgement, para. 31, referring to Krstić Trial Judgement, para. 595.

2097. Kayishema and Ruzindana Trial Judgement , para. 95.

2098. Akayesu Trial Judgement, paras 731-732.

2099. The Kayishema and Ruzindana Trial Chamber also referred to the International Law Commission, which stated that "it is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe". Kayishema and Ruzindana Trial Judgement, para. 95, referring to 1996 ILC Draft Code, p. 42. The same reasoning of the Akayesu Trial Judgement has been adopted by the Musema Trial Chamber. See Musema Trial Judgement, para. 933.

2100. Application of the Convention of the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Order on further Requests for the Indication of Provisional Measures, ICJ Reports, 1993, pp. 325-795.

2101. Ibid., Separate opinion of Judge Lauterpacht, para. 69 (emphasis added).

2102. Final Report of the Commission of Experts, Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674, 27 May 1994, para. 94 (emphasis added).

2103. See, for example, Resolution 47/121, UN Doc. AG/Res/47/121 (18 December 1992) stating in the preamble: "Gravely concerned about the deterioration of the situation in the Republic of Bosnia and Herzegovina owing to intensified aggressive acts by the Serbian and Montenegrin forces to acquire more territories by force, characterized by a consistent pattern of gross and systematic violations of human rights, a burgeoning refugee population resulting from mass expulsions of defenceless civilians from their homes and the existence in Serbian and Montenegrin controlled areas of concentration camps and detention centres, in pursuit of the abhorrent policy of "ethnic cleansing", which is a form of genocide."

2104. Prosecutor v. Nikola Jorgić, Judgement, Federal Constitutional Court, 2 BvR 1290/99 (12 December 2000) p. 13 (unofficial translation).

2105. Ibid. pp 17-22 (unofficial translation).

2106. Prosecutor v. Nikola Jorgić, Judgement, Higher Regional Court of Düsseldorf, 2 StE 8/96 (26 September 1997) pp. 94-95 (unofficial translation). See also Prosecutor v. Nikola Jorgić, Judgement, Federal Supreme Court, 3 StR 215/98 (30 April 1999) p. 25 (unofficial translation).

2107. Brđanin Trial Judgement, para. 698, citing Stakić Trial Judgement, para. 521; Krstić Trial Judgement, para. 552; Jelisić Trial Judgement, para. 79. Further, the ILC has stated that: "[t]he group itself is the ultimate target or intended victim of this type of massive criminal conduct (…) the intention must be to destroy the group 'as such’, meaning as a separate and distinct entity", ILC Draft Code, p. 88. See also Resolution 96(I) of the UN General Assembly: "Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings" (General Assembly Resolution 96(I), 1 GAOR, 1^st Session, 55th meeting pp 188-189, UN Doc. A/64/Add.1, 1947).

2108. Brđanin Trial Judgement, para. 698, ("Sikirica Rule 98 bis Decision"), para. 89."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, paras. 25 – 29:

"25.The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group.³⁹ The Trial Chamber expressly acknowledged this limitation, and eschewed any broader definition. The Chamber stated: "[C]ustomary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. [A]n enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide."⁴⁰

26. […] The main evidence underlying the Trial Chamber’s conclusion that the VRS forces intended to eliminate all the Bosnian Muslims of Srebrenica was the massacre by the VRS of all men of military age from that community.⁴¹ […]

27. […] The killing of the military aged men was, assuredly, a physical destruction, and given the scope of the killings the Trial Chamber could legitimately draw the inference that their extermination was motivated by a genocidal intent.

28. The Trial Chamber was also entitled to consider the long-term impact that the elimination of seven to eight thousand men from Srebrenica would have on the survival of that community. In examining these consequences, the Trial Chamber properly focused on the likelihood of the community’s physical survival. As the Trial Chamber found, the massacred men amounted to about one fifth of the overall Srebrenica community.⁴⁶ The Trial Chamber found that, given the patriarchal character of the Bosnian Muslim society in Srebrenica, the destruction of such a sizeable number of men would "inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica."⁴⁷ Evidence introduced at trial supported this finding, by showing that, with the majority of the men killed officially listed as missing, their spouses are unable to remarry and, consequently, to have new children.⁴⁸ The physical destruction of the men therefore had severe procreative implications for the Srebrenica Muslim community, potentially consigning the community to extinction.

29. This is the type of physical destruction the Genocide Convention is designed to prevent."

"39. The International Law Commission, when drafting a code of crimes which it submitted to the ICC Preparatory Committee, has examined closely the travaux préparatoires of the Convention in order to elucidate the meaning of the term "destroy" in the Convention’s description of the requisite intent. The Commission concluded: "As clearly shown by the preparatory work for the Convention, the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, cultural or other identity of a particular group." Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 May – 26 July 1996, G.A.O.R., 51st session, Supp. No. 10 (A/51/10) (1996), pp. 90-91. The commentators agree. See, e.g. , William A. Schabas, Genocide in International Law (2000), p. 229 (concluding that the drafting history of the Convention would not sustain a construction of the genocidal intent which extends beyond an intent at physical destruction).

40. Trial Judgement, para. 580. See also ibid., para. 576 (discussing the conclusion of the International Law Commission, quoted in note 39, supra).

41. Trial Judgement, para. 594.

46. See ibid ., paras. 592 - 594 (finding, on the basis of the parties’ estimates, the number of the killed men to be approximately 7,500 and the overall size of the Srebrenica community, augmented by refugees from the surrounding areas, to be approximately 40,000).

47. Ibid., para. 595.

48. See ibid ., para. 93 and notes 195, 196."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 580:

"580. The Trial Chamber is aware that it must interpret the Convention with due regard for the principle of nullum crimen sine lege. It therefore recognises that, despite recent developments, customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide. The Trial Chamber however points out that where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group. In this case, the Trial Chamber will thus take into account as evidence of intent to destroy the group the deliberate destruction of mosques and houses belonging to members of the group."

P.39.1. Evidence of destruction of cultural and religious buildings.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 580:

B. Evidentiary comment:

Case law consistently found that the destruction referred to under the Genocide Convention only covers a physical or biological destruction and does not include sociological or cultural destruction. (Krstić Trial para 580; Jelisić Trial paras 78-83; Sikirica et al Judgment on Defence Motion to Acquit, paras 63-86).

P.40. Not sufficient: Evidence of "ethnic cleansing".

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 981 – 982:

"981. The Trial Chamber has already addressed the political agenda of the Bosnian Serb leadership, in the context of which it has identified the Strategic Plan.²⁴⁶³ The Strategic Plan contained elements that denote its genocidal potential. "The project of an ethnically homogenous state formulated against the backdrop of mixed populations necessarily envisages the exclusion of any group not identified with the Serbian one".²⁴⁶⁴ The exclusion was to be achieved by the use of force and fear against any such group. In addition, there are obvious similarities between a genocidal policy and the policy commonly known as ethnic cleansing.²⁴⁶⁵ The underlying criminal acts for each may often be the same.²⁴⁶⁶ For the reasons stated above, however, it is not possible to conclude from the evidence that this potential materialised in the territory of the ARK in the period relevant to the Indictment. While the Trial Chamber is satisfied that the Strategic Plan was to link Serb-populated areas in BiH together, to gain control over these areas and to create a separate Bosnian Serb state, from which most non-Serbs would be permanently removed, and that force and fear were used to implement it, it is not possible to conclude from the evidence actually brought forth in the instant case that there was an intention to do so by destroying the Bosnian Muslim and Bosnian Croat groups of the ARK.²⁴⁶⁷ The Trial Chamber stresses that it is only on the basis of the evidence in this concrete case, temporally and geographically limited, that it reaches the conclusion that genocidal intent is not the only reasonable inference that may be drawn from the Strategic Plan.

982. In addition, the Prosecution submits that, no later than the 12 May 1992 SerBiH Assembly Meeting, a decision was made to escalate the Strategic Plan to genocide, and that this decision can be inferred from the statements of the Bosnian Serb leadership and from the increase in the intensity of the violence against Bosnian Muslims and Bosnian Croats.²⁴⁶⁸ The Trial Chamber has not found evidence of this alleged escalation into genocide in the territory of the ARK.²⁴⁶⁹ Instead, the Trial Chamber has already found that, after the breakout of conflict in BiH in early April 1992, crimes committed against the non-Serb civilian population in the ARK increased in scale and gravity and that these crimes were committed with the aim of implementing the Strategic Plan.²⁴⁷⁰ The ethnic cleansing was not a by-product of the criminal activity; it was its very aim and an integral part of the Strategic Plan.²⁴⁷¹ As shown, the increase in these crimes did not necessarily denote the onslaught of a genocidal campaign, but the continued implementation of the discriminatory campaign for the achievement of the Strategic Plan. Further, the similarities between the policy of ethnic cleansing and genocide have already been remarked upon. Genocide has at times been referred to as the last resort of the frustrated 'ethnic cleanser'.²⁴⁷² In the ARK, however, the Bosnian Serb leadership was able to assert control over the territory with relative ease, after which it embarked on a campaign of massive displacement."

"2463. See IV.B. supra , "The political agenda of the Bosnian Serb leadership".

2464. Karadžić and Mladic Rule 61 Decision, para. 94.

2465. See Krstić Trial Judgement , para. 562; see T. 20617 (closed session): "[Ethnic cleansing] was a strategy to force people to move through different steps, starting by threats, by selective killings, selective destruction of building, and then once the separation of the communities took place, i.e., when the Serbian people left the places, then the second phase started with the use of paramilitary to take control of the towns and then organise the return of Serbs from the village and Serbs coming from other areas of Yugoslavia. I’m talking about displaced Serbs coming from Croatia, for instance".

2466. See Schabas, Genocide in International Law, p. 200.

2467. The argument that the statements by the Bosnian Serb leadership, some of which have already been discussed in the section on the general overview, constitute evidence of genocidal intent can be dealt with in much the same fashion.
2468. Prosecution Final Brief, paras 543, 552.

2469. In actual fact, the process of ethnic cleansing accelerated in October 1992: see C.2. supra, " Forcible nature of the transfers". The Prosecution also argues that the Trial Chamber should also take into account in determining the existence of an intent to destroy "the fact that all of the evidence indicates a continuing plan of destruction that would not have subsided in the fall of 1992 without the intervention of factors beyond the control of the Accused and other participants in the joint criminal enterprise ", such as the humanitarian aid provided by relief agencies, and the attention of the international community as a result of the existence of the Prijedor camps being reported in the media: Prosecution Final Brief, para. 557. For the reasons stated above, the Trial Chamber is not satisfied beyond reasonable doubt that the implementation of the Strategic Plan in the ARK resulted in genocide being committed in the relevant ARK municipalities in the time relevant to the Indictment.

2470. See IV. A, supra , "Background to the armed conflict in Bosnia and Herzegovina" and C. "The implementation of the Strategic Plan in the Bosnian Krajina".

2471. BT-19, T. 20635-20658, 20708 (closed session); BT-21, T. 8226 (closed session).

2472. See Schabas, Genocide in International Law, p. 201."

P.41. Not sufficient: Evidence of displacement.

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Judgement (AC), 9 May 2007, para. 123:

"123. The Appeals Chamber notes that genocidal intent may be inferred, among other facts, from evidence of other culpable acts systematically directed against the same group.332 Thus, the Appeals Chamber accepts that the forcible transfer operation, the separations, and the mistreatment and murders in Bratunac town are relevant considerations in assessing whether the principal perpetrators had genocidal intent. However, the Appeals Chamber is not convinced by the Trial Chamber’s reasoning that the forcible transfer operation alone or coupled with the murders and mistreatment in Bratunac town would suffice to demonstrate the principal perpetrators’ intent to "destroy" the protected group.334 The Krstic Appeal Judgement clearly held that "forcible transfer does not constitute in and of itself a genocidal act", and it is simply a relevant consideration as part of the overall factual assessment.335 Similarly, the Appeals Chamber notes that "opportunistic killings" by their very nature provide a very limited basis for inferring genocidal intent. Rather, as the Appeals Chamber determined in the Krsti} Appeal Judgement, these culpable acts simply assist in placing the mass killings in their proper context.336 Consequently, no reasonable trier of fact could find beyond a reasonable doubt that, without knowledge of the mass killings, Blagojevic’s awareness of the other facts related to the forcible transfer operation shows that he had knowledge of the principal perpetrators’ genocidal intent."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 976 – 978:

"976. On the subject of forcible displacement, the Trial Chamber finds, in accordance with the stated views of the Appeals Chamber, that forcible displacement could be an additional means to ensure the physical destruction, in this case of the Bosnian Muslim and Bosnian Croat groups of the ARK.²⁴⁵² The Appeals Chamber has also stated, however, that the existence of the specific intent required for the crime of genocide must be supported by the factual matrix.²⁴⁵³ The extremely high number of Bosnian Muslim and Bosnian Croat men, women and children forcibly displaced from the ARK in this case, particularly when compared to the number of Bosnian Muslims and Bosnian Croats subjected to the acts enumerated in Article 4(2)(a), (b) and (c), does not support the conclusion that the intent to destroy the groups in part, as opposed to the intent to forcibly displace them, is the only reasonable inference that may be drawn from the evidence.²⁴⁵⁴

977. Still, the Prosecution submits that "[w]hile the underlying motive or objective of the joint criminal enterprise was the permanent removal of the Bosnian Muslim and Bosnian Croat groups from the ARK, it is submitted that several types of crimes, including genocide, were used and intended to further that objective" and that "the intent to expel the Bosnian Muslim and Bosnian Croat groups from the ARK and the specific intent to destroy them in whole or in part through genocide existed simultaneously, and were in fact complementary".²⁴⁵⁵ This hypothesis is simply not borne out by the evidence. The Bosnian Serb authorities in the ARK implemented a policy to create an ethnically homogeneous ARK, which entailed the forcible, unlawful and permanent removal of the Bosnian Muslims and Bosnian Croats from the ARK. Leaving aside the question whether the intent to expel can exist alongside the intent to destroy,²⁴⁵⁶ the Trial Chamber finds that, inter alia, given the significant difference in numbers between those forcibly displaced from the ARK and those subjected to acts envisaged in Article 4(2)(a) to (c), the existence of an intent to destroy alongside the intent to forcibly displace is not the only reasonable inference that may be drawn from the evidence.

978. Moreover, the Prosecution submits that "had the Accused and other participants in the joint criminal enterprise intended solely to displace the Muslim and Croat population from the ARK, they clearly could have done so without overseeing the killing, imprisonment, torture and rape of Muslims and Croats on such a vast scale and in such systematic ways".²⁴⁵⁷ On the contrary, as stated, the scale of the acts enumerated in Article 4(2)(a) to (c) does not allow the Trial Chamber to legitimately come to the conclusion in favour of the existence of genocidal intent, particularly when viewed in light of the number of Bosnian Muslims and Bosnian Croats forcibly displaced from the ARK. The difference between the two is too pronounced, particularly in light of the fact that during much of the period relevant to the Indictment, and certainly as from summer 1992, the Bosnian Serb forces controlled the territory of the ARK, as shown by the fact that they were capable of mustering the logistical resources to forcibly displace tens of thousands of Bosnian Muslims and Bosnian Croats,²⁴⁵⁸ resources which, had such been the intent, could have been employed in the destruction of all Bosnian Muslims and Bosnian Croats of the ARK.²⁴⁵⁹"

"2452. See Krstić Appeal Judgement , para. 31.

2453. Krstić Appeal Judgement , para. 32.

2454. In addition, the Prosecution argues that "the most serious crimes occurred disproportionately in Prijedor and the other "Variant B" municipalities where Serbs were a minority before 1992": Prosecution Final Brief, para. 554: see IV. C. supra, "The implementation of the Strategic Plan in the Bosnian Krajina". Again in these cases, the number of Bosnian Muslims and Bosnian Croats deported or forcibly transferred far surpasses those who were victims of the acts under Article 4(2)(a) to (c): see C.2. supra , "The facts and findings".

2455. Prosecution Final Brief, fn . 1027 (confidential). In support of this contention the Prosecution cites a single witness, who stated that "there were two ways to cleanse or to clean (…) any particular area from Croats or Muslims, were to kill them or to expel them. So it was a two -fold strategy. And it depended on each case the relative importance of killings or expulsions in terms of the strategy, but there were a lot of killings, of course ": see T. 20637 (closed session). It is necessary to note, however, that this statement was not limited to the ARK but in fact referred to the whole of BiH : see T. 20635-20637 (closed session). The Trial Chamber notes that this is not a case where the "relative importance of killings" may lead to the only reasonable inference that these were committed with genocidal intent. As noted below, the Trial Chamber does not negate that ethnic cleansing may under certain circumstances ultimately reach the level of genocide, but in this particular case, it is not the only reasonable inference that may be drawn from the evidence.
2456. The Appeal Chamber appears to regard the two as compatible (see Krstić Appeal Judgement, para. 31). Cf Schabas, Genocide in International Law, p. 200: "[Ethnic cleansing] is intended to displace a population, [genocide] to destroy it. The issue is one of intent and it is logically inconceivable that the two agendas coexist".

2457. Prosecution Final Brief, para . 559.

2458. For comparative purposes, in a single instance, between 9000 and 10000 Bosnian Muslims from Bosanski Novi were deported into Croatian territory in July 1992: see T

20628-20630 (closed session). See C.2. supra, "The facts and findings".

2459. See Barney Mayhew, T . 13597, cross-examined by Mr Ackerman: "Would you agree with me, I think that if it had been a unified aim of the Serb authorities to massacre the people who were confined in Manjaca and Omarska and Keraterm and Trnopolje in May, June, July of 1992, that there was absolutely nothing to keep them from doing so? They had the guns and the bullets and could have done it. Correct?" "Yes"."

Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 553-554:

"553. In relation to "killing members of the group" the Trial Chamber is not satisfied that Dr. Stakic possessed the requisite dolus specialis for genocide, but leaves open the question whether he possessed the dolus eventualis for killings which may be sufficient to satisfy the subjective elements of other crimes charged in the Indictment. While the Trial Chamber is satisfied that the common goal of the members of the SDS in the Municipality of Prijedor, including Dr. Stakic as President of the Municipal Assembly, was to establish a Serbian municipality, there is insufficient evidence of an intention to do so by destroying in part the Muslim group. The Trial Chamber believes that the goal was rather to eliminate any perceived threat, especially by Muslims, to the overall plan and to force non-Serbs to leave the Municipality of Prijedor. Security for the Serbs and protection of their rights seems to have been the paramount interest. As one member of the ECMM delegation which visited Prijedor Municipality in late August 1992 pointed out, "the conclusion to be drawn from what we have seen is that the Muslim population is not wanted and is being systematically kicked out by whatever method is available".¹¹⁷³ Had the aim been to kill all Muslims, the structures were in place for this to be accomplished. The Trial Chamber notes that while approximately 23,000 people were registered as having passed through the Trnopolje camp at various times when it was operational and through other suburban settlements,¹¹⁷⁴ the total number of killings in Prijedor municipality probably did not exceed 3, 000.¹¹⁷⁵

"1173. Exh. S166; Charles McLeod, T. 5130, T. 5161-62.

1174. Exh. S434.

1175. Ewa Tabeau, T. 8414-17.

1176. Exh. S187, p. 5; T. 5692.

1177. Exh. S365-1, p. 4."

B. Evidentiary comment:

Whether or not this approach taken in Brđanin and Stakić is correct is necessarily related to the question of what it means to "destroy" a group. These decisions seem predicated on the notion that physical removal and/or dissolution of group members cannot constitute destruction of the group. That approach is contradicted by the views of the Trial Chamber in Blagojević (at paras. 665 – 666) which were that "the physical or biological destruction of a group is not necessarily the death of the group members" and that "the physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the gourp can no longer reconstitute itself".

P.42. Not sufficient: Evidence that the acts were intended to defeat rebels.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 979:

"979. Finally, the victims of the underlying acts in Article 4(2)(a) to (c), particularly in camps and detention facilities, were predominantly, although not only, military -aged men. This additional factor could militate further against the conclusion that the existence of genocidal intent is the only reasonable inference that may be drawn from the evidence.²⁴⁶⁰ There is an alternative explanation for the infliction of these acts on military -aged men, and that is that the goal was rather to eliminate any perceived threat to the implementation of the Strategic Plan in the ARK and beyond. Security for the Bosnian Serbs seems to have been the paramount interest. In the words of one witness: "the aim was to reduce the threat to the detainer, the detainer’s community, and anyone […] who looked as if they would fight, once sent to the other side, would be eligible for detention".²⁴⁶¹"

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, paras. 513, 514:

P.43. Exculpatory: Evidence of housing in camps of internally displaced people.

A. Legal source/authority and evidence:

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 515:

"515. Another element that tends to show the Sudanese Government’s lack of genocidal intent can be seen in the fact that persons forcibly dislodged from their villages are collected in IDP camps. In other words, the populations surviving attacks on villages are not killed outright, so as to eradicate the group; they are rather forced to abandon their homes and live together in areas selected by the Government. While this attitude of the Sudanese Government may be held to be in breach of international legal standards on human rights and international criminal law rules, it is not indicative of any intent to annihilate the group. This is all the more true because the living conditions in those camps, although open to strong criticism on many grounds, do not seem to be calculated to bring about the extinction of the ethnic group to which the IDPs belong. Suffice it to note that the Government of Sudan generally allows humanitarian organizations to help the population in camps by providing food, clean water, medicines and logistical assistance (construction of hospitals, cooking facilities, latrines, etc.)."

2.3.The perpetrator intended to destroy that group "in whole or in part".

A. General evidentiary comment:

Although the definition of the crime of genocide requires that in all cases the intent must be to destroy the group either in whole or in part, this element has often not been considered expressly in judgments handed down by the ad hoc tibunals. In particular, much consideration has been given to the question of what constitutes "part" of a protected group and how this may be proven by evidence. The tribunals do not appear to have required evidence that an intention was to destroy a group "in whole".

2.3.1.I ntention to destroy the group in part.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 700 – 703:

"700. As stated earlier, under the Genocide Convention, the terms "in whole or in part" speak to the intended scope of destruction, as opposed to the actual destruction of the group. It is clear from the terms of the Genocide Convention that "any act committed with intent to destroy a part of a group, as such, constitutes an act of genocide within the meaning of the Convention".¹⁷²¹ The Trial Chamber agrees with the Krstić and Stakić Trial Chambers that "the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it".¹⁷²²

701. In the Krstić case, the Appeals Chamber held that "[t]he intent requirement of genocide under Article 4 of the Statute is therefore satisfied where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group".¹⁷²³ It further stated that "the substantiality requirement both captures genocide’s defining character as a crime of massive proportions and reflects the Convention’s concern with the impact the destruction of the targeted part will have on the overall survival of the group".¹⁷²⁴

702. According to the Appeals Chamber, the determination of when the targeted group is substantial enough to meet this requirement may involve a number of considerations, including but not limited to: the numeric size of the targeted part of the group - measured not only in absolute terms but also in relation to the overall size of the entire group -, the prominence within the group of the targeted part of the group, and the area of the perpetrators’ activity and control as well as the possible extent of their reach.¹⁷²⁵ The Appeals Chamber has held that "[t]he applicability of these factors, as well as their relative weight, will vary depending on the circumstances of a particular case".¹⁷²⁶

703. Thus, the jurisprudence of the Tribunal supports the approach that permits a characterisation of genocide even when the specific intent to destroy a group, in part, extends only to a limited geographical area.¹⁷²⁷ The Trial Chamber further notes that according to the jurisprudence of the Tribunal, the intent to destroy a group may, in principle, be established if the destruction is related to a significant section of the group, such as its leadership.¹⁷²⁸ The Appeals Chamber has stated that "[p]roperly understood, this factor is only one of several which may indicate whether the substantiality requirement is satisfied ".¹⁷²⁹"

"1721. Krstić Trial Judgement , para. 584.

1722. Krstić Trial Judgement , para. 590; Stakić Trial Judgement, para. 524.

1723. Krstić Appeal Judgement , para. 12; See also Jelisić Trial Judgement, para. 10; Sikirica Rule 98bis Decision, para. 65.

1724. Krstić Appeal Judgement , para. 8; See also Krstić Trial Judgement, para. 590; Jelisić Trial Judgement, para. 82; Sikirica Rule 98bis Decision, para. 77.

1725. Krstić Appeal Judgement , paras 12-14.

1726. Krstić Appeal Judgement , para. 14.

1727. Rule 98bis Decision, para. 53; Jelisić Trial Judgement, para. 83; Sikirica Rule 98bis Decision, para. 68; Krstić Trial Judgement, paras 589-590; Stakić Trial Judgement, para. 523.

1728. Stakić Trial Judgement , para. 525; Krstić Trial Judgement, para. 587; Sikirica Rule 98bis Decision, paras 76-85; Jelisić Trial Judgement, para. 82.

1729. Krstić Appeal Judgement , fn. 22."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, paras. 8 – 14, 17:

"8. It is well established that where a conviction for genocide relies on the intent to destroy a protected group "in part," the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole. Although the Appeals Chamber has not yet addressed this issue, two Trial Chambers of this Tribunal have examined it. In Jelisić, the first case to confront the question, the Trial Chamber noted that, "[g]iven the goal of the [Genocide] Convention to deal with mass crimes, it is widely acknowledged that the intention to destroy must target at least a substantial part of the group."¹⁰ The same conclusion was reached by the Sikirica Trial Chamber: "This part of the definition calls for evidence of an intention to destroy a substantial number relative to the total population of the group."¹¹ As these Trial Chambers explained, the substantiality requirement both captures genocide’s defining character as a crime of massive proportions and reflects the Convention’s concern with the impact the destruction of the targeted part will have on the overall survival of the group.¹²

9. The question has also been considered by Trial Chambers of the ICTR, whose Statute contains an identical definition of the crime of genocide.¹³ These Chambers arrived at the same conclusion. In Kayishema, the Trial Chamber concluded, after having canvassed the authorities interpreting the Genocide Convention, that the term "‘in part’ requires the intention to destroy a considerable number of individuals who are part of the group."¹⁴ This definition was accepted and refined by the Trial Chambers in Bagilishema and Semanza, which stated that the intent to destroy must be, at least, an intent to destroy a substantial part of the group.¹⁵

10. This interpretation is supported by scholarly opinion. The early commentators on the Genocide Convention emphasized that the term "in part" contains a substantiality requirement. Raphael Lemkin, a prominent international criminal lawyer who coined the term "genocide" and was instrumental in the drafting of the Genocide Convention, addressed the issue during the 1950 debate in the United States Senate on the ratification of the Convention. Lemkin explained that "the destruction in part must be of a substantial nature so as to affect the entirety."¹⁶ He further suggested that the Senate clarify, in a statement of understanding to accompany the ratification, that "the Convention applies only to actions undertaken on a mass scale."¹⁷ Another noted early commentator, Nehemiah Robinson, echoed this view, explaining that a perpetrator of genocide must possess the intent to destroy a substantial number of individuals constituting the targeted group.¹⁸ In discussing this requirement, Robinson stressed, as did Lemkin, that "the act must be directed toward the destruction of a group," this formulation being the aim of the Convention.¹⁹

11. Recent commentators have adhered to this view. The International Law Commission, charged by the UN General Assembly with the drafting of a comprehensive code of crimes prohibited by international law, stated that "the crime of genocide by its very nature requires the intention to destroy at least a substantial part of a particular group."²⁰ The same interpretation was adopted earlier by the 1985 report of Benjamin Whitaker, the Special Rapporteur to the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities.²¹

12. The intent requirement of genocide under Article 4 of the Statute is therefore satisfied where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group. The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4.²²

13. The historical examples of genocide also suggest that the area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered. Nazi Germany may have intended only to eliminate Jews within Europe alone; that ambition probably did not extend, even at the height of its power, to an undertaking of that enterprise on a global scale. Similarly, the perpetrators of genocide in Rwanda did not seriously contemplate the elimination of the Tutsi population beyond the country’s borders.²³ The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can - in combination with other factors - inform the analysis.

14. These considerations, of course, are neither exhaustive nor dispositive. They are only useful guidelines. The applicability of these factors, as well as their relative weight, will vary depending on the circumstances of a particular case."

"10. Jelisić Trial Judgement, para. 82 (citing Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 May – 26 July 1996, G.A.O.R., 51st session, Supp. No. 10 (A/51/10) (1996), p. 89; Nehemiah Robinson, The Genocide Convention: A Commentary (1960) (1st ed. 1949), p. 63; Genocide Convention, Report of the Committee on Foreign Relations, U.S. Senate, 18 July 1981), p. 22). The Jelisić Trial Judgement was reversed in part by the Appeals Chamber on other grounds. See Jelisić Appeal Judgement, para. 72. The Trial Chamber’s definition of what constitutes an appropriate part of the group protected by the Genocide Convention was not challenged.

11. Sikirica judgment on defence motions to acquit, para. 65.

12. Jelisić Trial Judgement, para. 82; Sikirica judgment on defence motions to acquit, para. 77.

13. See Art. 2 of the ICTR Statute (defining the specific intent requirement of genocide as the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such").

14. Kayishema and Ruzindana Trial Judgement, para. 97.

15. See Bagilishema Trial Judgement, para. 64 ("the intention to destroy must target at least a substantial part of the group") (citing Kayishema and Ruzindana TrialJudgement, para. 97); Semanza Triall Judgement and Sentence, para. 316 ("The intention to destroy must be, at least, to destroy a substantial part of the group") (citing Bagilishema Trial Judgement, para. 64). While Kayishema used the term "considerable number" rather than "substantial part," Semanza and Bagilishema make it clear that Kayishema did not intend to adopt a different standard with respect to the definition of the term "a part." The standard adopted by the Trial Chambers of the ICTR is therefore consistent with the jurisprudence of this Tribunal.

16. 2 Executive Sessions of the Senate Foreign Relations Committee, Historical Series (1976), p. 370; see also Jelisić Trial Judgement, para. 82; William A. Schabas, Genocide in International Law (2000), p. 238.

17. Ibid., cited in William A. Schabas, Genocide in International Law (2000), p. 238.

18. Nehemia Robinson, The Genocide Convention: A Commentary (1960), pp. 63.

19. Ibid., p.58.

20. Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May – 26 July 1996, p. 89. The Draft Code of Crimes Against the Peace and Security of Mankind, adopted by the International Law Commission, contains a prohibition of the offence of genocide substantively similar to the prohibition present in the Genocide Convention. The Draft code is not binding as a matter of international law, but is an authoritative instrument, parts of which may constitute evidence of customary international law, clarify customary rules, or, at the very least, "be indicative of the legal views of eminently qualified publicists representing the major legal systems of the world." Furundzija Trial Judgement, para. 227.

21. Benjamin Whitaker, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, U.N. Doc. E/CN.4/Sub.2/1985/6, para. 29 ("‘In part’ would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group, such as its leadership."); see also Jelisić Trial Judgement, para. 65 (quoting the report); Trial Judgement, para. 587 (same).

22. The Trial Chambers in Jelisić and Sikirica referred to this factor as an independent consideration which is sufficient, in and of itself, to satisfy the requirement of substantiality. See Jelisić Trial Judgement, para. 82; Sikirica Trial Judgement, para. 65. Properly understood, this factor is only one of several which may indicate whether the substantiality requirement is satisfied.

23. For a discussion of these examples, see William A. Schabas, Genocide in International Law (2000), p. 235."

"17. Finally, the ambit of the genocidal enterprise in this case was limited to the area of Srebrenica. While the authority of the VRS Main Staff extended throughout Bosnia, the authority of the Bosnian Serb forces charged with the take-over of Srebrenica did not extend beyond the Central Podrinje region. From the perspective of the Bosnian Serb forces alleged to have had genocidal intent in this case, the Muslims of Srebrenica were the only part of the Bosnian Muslim group within their area of control."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 583 – 588, 590 – 592:

"583. The Defence contends that the term "in part" refers to the scale of the crimes actually committed, as opposed to the intent, which would have to extend to destroying the group as such, i.e. in its entirety.¹²⁹² The Defence relies for this interpretation on the intention of the drafters of the Convention, which it contends was confirmed by the subsequent commentary of Raphael Lemkin in 1950 before the American Congress during the debates on the Convention's ratification¹²⁹³ and by the implementing legislation proposed by the United States during the Nixon and Carter administrations.¹²⁹⁴ That is, any destruction, even if only partial, must have been carried out with the intent to destroy the entire group, as such.

584. The Trial Chamber does not agree. Admittedly, by adding the term "in part", some of the Convention’s drafters may have intended that actual destruction of a mere part of a human group could be characterised as genocide, only as long as it was carried out with the intent to destroy the group as such.¹²⁹⁵ The debates on this point during the preparatory work are unclear, however, and a plain reading of the Convention contradicts this interpretation. Under the Convention , the term ''in whole or in part'' refers to the intent, as opposed to the actual destruction, and it would run contrary to the rules of interpretation to alter the ordinary meaning of the terms used in the Convention by recourse to the preparatory work which lacks clarity on the issue. The Trial Chamber concludes that any act committed with the intent to destroy a part of a group, as such, constitutes an act of genocide within the meaning of the Convention.

585. The Genocide Convention itself provides no indication of what constitutes intent to destroy "in part". The preparatory work offers few indications either. The draft Convention submitted by the Secretary-General observes that "the systematic destruction even of a fraction of a group of human beings constitutes an exceptionally heinous crime".¹²⁹⁶ Early commentaries on the Genocide Convention opined that the matter of what was substantial fell within the ambit of the Judges’ discretionary evaluation. Nehemia Robinson was of the view that the intent to destroy could pertain to only a region or even a local community if the number of persons targeted was substantial.¹²⁹⁷ Pieter Drost remarked that any systematic destruction of a fraction of a protected group constituted genocide.¹²⁹⁸

586. A somewhat stricter interpretation has prevailed in more recent times. According to the ILC, the perpetrators of the crime must seek to destroy a quantitatively substantial part of the protected group:

The Kayishema and Ruzindana Judgement stated that the intent to destroy a part of a group must affect a "considerable" number of individuals.¹³⁰⁰ The Judgement handed down on Ignace Bagilishema, on 7 June 2001, also recognised that the destruction sought must target at least a substantial part of the group.¹³⁰¹

587. Benjamin Whitaker's 1985 study on the prevention and punishment of the crime of genocide holds that the partial destruction of a group merits the characterisation of genocide when it concerns a large portion of the entire group or a significant section of that group.

The "Final Report of the Commission of Experts established pursuant to Security Council resolution 780 (1992)" (hereinafter "Report of the Commission of Experts") confirmed this interpretation, and considered that an intent to destroy a specific part of a group, such as its political, administrative, intellectual or business leaders, "may be a strong indication of genocide regardless of the actual numbers killed". The report states that extermination specifically directed against law enforcement and military personnel may affect "a significant section of a group in that it renders the group at large defenceless against other abuses of a similar or other nature". However, the Report goes on to say that "the attack on the leadership must be viewed in the context of the fate of what happened to the rest of the group. If a group suffers extermination of its leadership and in the wake of that loss, a large number of its members are killed or subjected to other heinous acts, for example deportation, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the Convention in a spirit consistent with its purpose".¹³⁰³

588. Judge Elihu Lauterpacht, the ad hoc Judge nominated by Bosnia-Herzegovina in the case before the International Court of Justice regarding the application of the Convention on the Prevention and Punishment of the Crime of Genocide, spoke similarly in his separate opinion.¹³⁰⁴ Judge Lauterpacht observed that the Bosnian Serb forces had murdered and caused serious mental and bodily injury to the Bosnian Muslims and had subjected the group to living conditions meant to bring about its total or partial physical destruction. He went on to take into account "the forced migration of civilians, more commonly known as ‘ethnic cleansing’" in order to establish the intent to destroy all or part of the group. In his view, this demonstrated the Serbs’ intent "to eliminate Muslim control of, and presence in, substantial parts of Bosnia-Herzegovina". Judge Lauterpacht concluded that the acts which led to the group's physical destruction had to be characterised as "acts of genocide" since they were "directed against an ethnical or religious group as such, and they (were( intended to destroy that group, if not in whole certainly in part, to the extent necessary to ensure that that group (would( no longer occup(y( the parts of Bosnia-Herzegovina coveted by the Serbs".¹³⁰⁵

"1292. Final Submissions of the Accused, paras. 96-101.

1293. Letter of Raphael Lemkin published in "Executive Sessions of the U.S. Senate Foreign Relations Committee", Historical Series 781-805 (1976), p. 370, quoted in the Defence Final Trial Brief, para. 97. Raphael Lemkin explained that partial destruction must target a substantial part in such a way that it affects the group as a whole.
1294. Senate Executive Report No. 23, 94th Cong., 2nd Session (1976), pp. 34-35.

1295. In this regard, See especially the commentary of the representative of the United Kingdom, Fitzmaurice, UN Doc. A/C.6/SR. 73. The preparatory work is unclear on the issue. It does indeed Seem that there was confusion between the actus reus and the mens rea in this respect.

1296. Draft Convention for the Prevention and Punishment of Genocide presented by the Secretary-General, 26 June 1947, UN Doc. E/447, p. 24.

1297. Nehemia Robinson, The Genocide Convention, p. 63: "the intent to destroy a multitude of persons of the same group must be classified as genocide even if these persons constitute only part of a group either within a country or within a region or within a single community, provided the number is substantial". The writer also noted before the Foreign Relations Commission of the American Senate: "the intent to destroy a multitude of persons of the same group must be classified as genocide even if these persons constitute only part of a group either within a country or within a single community, provided the number is substantial because the aim of the convention is to deal with action against large numbers, not individual events if they happen to possess the same characteristics. It will be up to the court to decide in every case whether such intent existed" (The Genocide Convention. Its Origins and Interpretation, reprinted in Hearings on the Genocide Convention Before a Subcomm. of the Senate Comm. on Foreign Relations, 81st Cong., 2nd Sess., 487, 498 (1950) ).

1298. Pieter Drost, The Crime of State, Book II, Genocide, Sythoff, Leyden, p. 85: "Acts perpetrated with the intended purpose to destroy various people as members of the same group are to be classified as genocidal crimes although the victims amount to only a small part of the entire group present within the national, regional or local community".

1299. Ibid., p. 89.

1300. Prosecutor v. Radovan Karadžić and Ratko Mladic case, para. 97: "'in part' requires the intention to destroy a considerable number of individuals who are part of the group".

1301. The Prosecutor v. Ignace Bagilishema , case no. ICTR-95-1A-T, 7 June 2001 (hereinafter "Bagilishema Judgement") para. 64: "Although the destruction sought need not be directed at every member of the targeted group, the Chamber considers that the intention to destroy must target at least a substantial part of the group".

1302. Para. 29.

1303. Report of the Commission of Experts , UN Doc. S/1994/674, para. 94 (emphasis added).

1304. Application of the Convention of the Prevention and Punishment of the Crime of Genocide, Bosnia-Herzegovina v. Yugoslavia (Serbia and Montenegro), Order on further Requests for the Indication of Provisional Measures, ICJ Reports (1993), pp. 325- 795.

1305. Separate Opinion of Judge Lauterpacht, ICJ Reports (1993), p. 431."

"590. The Trial Chamber is thus left with a margin of discretion in assessing what is destruction "in part" of the group. But it must exercise its discretionary power in a spirit consonant with the object and purpose of the Convention which is to criminalise specified conduct directed against the existence of protected groups , as such. The Trial Chamber is therefore of the opinion that the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide need not seek to destroy the entire group protected by the Convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such. A campaign resulting in the killings, in different places spread over a broad geographical area, of a finite number of members of a protected group might not thus qualify as genocide, despite the high total number of casualties, because it would not show an intent by the perpetrators to target the very existence of the group as such. Conversely, the killing of all members of the part of a group located within a small geographical area, although resulting in a lesser number of victims, would qualify as genocide if carried out with the intent to destroy the part of the group as such located in this small geographical area. Indeed, the physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue. In this regard, it is important to bear in mind the total context in which the physical destruction is carried out.

591. The parties have presented opposing views as to whether the killings of Bosnian Muslim men in Srebrenica were carried out with intent to destroy a substantial part of the Bosnian Muslim group. It should be recalled that the Prosecution at different times has proposed different definitions of the group in the context of the charge of genocide. In the Indictment, as in the submission of the Defence, the Prosecution referred to the group of the Bosnian Muslims, while in the final brief and arguments it defined the group as the Bosnian Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia. The Trial Chamber has previously indicated that the protected group, under Article 4 of the Statue, should be defined as the Bosnian Muslims.

592. The Prosecution first argues that "causing at least 7,475 deaths of mainly Bosnian Muslim men in Srebrenica, the destruction of this part of the group, which numbered in total approximately 38,000 to 42,000 prior to the fall",¹³¹² constitutes a substantial part of the group not only because it targeted a numerically high number of victims, but also because the victims represented a significant part of the group. It was common knowledge that the Bosnian Muslims of Eastern Bosnia constituted a patriarchal society in which men had more education, training and provided material support to their family. The Prosecution claims that the VRS troops were fully cognisant that by killing all the military aged men, they would profoundly disrupt the bedrock social and cultural foundations of the group. The Prosecution adds that the mass executions of the military aged men must be viewed in the context of what occurred to the remainder of the Srebrenica group. The offensive against the safe area aimed to ethnically cleanse the Bosnian Muslims¹³¹³ and progressively culminated in the murder of the Bosnian Muslim men as well as the evacuation of the women, children and elderly.¹³¹⁴ In the Prosecution’s view, the end result was purposeful, as shown by the longstanding plan of Republika Sprska to eliminate the Bosnian Muslims from the area. Specifically , Radovan Karadžić, in Directive 7 of 7 March 1995,¹³¹⁵ ordered the Drina Corps to "[...] create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica and Zepa ".¹³¹⁶ General Krstić and his superiors also manifested genocidal intent by using inflammatory rhetoric and racist statements that presented the VRS as defending the Serbian people from a threat of genocide posed by "Ustasha-Muslim hords".¹³¹⁷ According to the Prosecution, "by killing the leaders and defenders of the group and deporting the remainder of it, the VRS and General Krstić had assured that the Bosnian Muslim community of Srebrenica and its surrounds would not return to Srebrenica nor would it reconstitute itself in that region or indeed, anywhere else".¹³¹⁸ The Prosecution points us to the terrible impact the events of 11-16 July had upon the Bosnian Muslim community of Srebrenica : "what remains of the Srebrenica community survives in many cases only in the biological sense, nothing more. It’s a community in despair; it’s a community clinging to memories; it’s a community that is lacking leadership; it’s a community that’s a shadow of what it once was".¹³¹⁹ The Prosecution concludes that "the defendant’s crimes have not only resulted in the death of thousands men and boys, but have destroyed the Srebrenica Muslim community ".¹³²⁰"

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 80:

"80. Notwithstanding this, it is recognised that the destruction sought need not be directed at the whole group which, moreover, is clear from the letter of Article 4 of the Statute. The ILC also states that "[i]t is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe"¹⁰⁸. The question which then arises is what proportion of the group is marked for destruction and beyond what threshold could the crime be qualified as genocide? In particular, the Trial Chamber will have to verify whether genocide may be committed within a restricted geographical zone."

"108. Stefan Glaser, Droit international pénal conventionnel, Bruylant, Brussels, 1970, p. 107. Professor Pella also uses this criterion to distinguish the two crimes in his "Memorandum concerning a draft code of offences against the peace and security of mankind" submitted to the ILC during its second session (UN Off. Doc., A/CN.4/39, 4 November 1950, para. 141, pp. 188-189)." Prosecutor v. Duško Sikirica et al., Case No. IT-95-8-T, Judgement on Defence Motions to Acquit (TC), 3 September 2001, paras. 63 – 65:

63. Obviously, the relevant portion of this phrase that calls for analysis is " destroy… in part" and, indeed, the Prosecution’s submissions are so confined. Hence the question is: what is meant by the destruction in part of a group, which, in the context of this case, would be the groups of Bosnian Muslims and Bosnian Croats in Prijedor.¹⁶⁹This is essentially an exercise in treaty interpretation. Here again, it is necessary to refer to Article 31(1) of the Vienna Convention on the Law of Treaties.¹⁷⁰Essentially, therefore, the question is what is the ordinary meaning that should be given to the phrase "destroy in whole or in part" in its context and in the light of the object and purpose of the 1948 Genocide Convention.

64. There is no case law as to the construction of the phrase, "in part", except for the Kayishema Trial Judgement, which held that this phrase "requires the intention to destroy a considerable number of individuals who are part of the group."¹⁷¹

65. The United Nations Expert Study on Genocide defines the term "in part" as implying "a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership".¹⁷²This definition means that, although the complete annihilation of the group is not required, it is necessary to establish "the intention to destroy at least a substantial part of a particular group".¹⁷³The Chamber believes that it is more appropriate to speak of a "reasonably substantial" rather than a "reasonably significant" number. This part of the definition calls for evidence of an intention to destroy a reasonably substantial number relative to the total population of the group. According to this definition, if that criterion is not met, the mens rea may yet be established by evidence of an intention to destroy a significant section of the group, such as its leadership. While the Chamber does not reject that aspect of the definition, which sees the two elements as being alternative, there may be situations in which the inference as to the intent can not be drawn on the basis of the evidence in relation to each element in isolation, but when the evidence in relation to each is viewed as a whole, it would be perfectly proper to draw the inference."

"170. See 166, supra.

171. Kayishema Trial Judgement, para. 97.

172. United Nations Expert Study on Genocide, para. 29.

173. 1996 ILC Draft Code, p. 89."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 96 – 97:

"96. Another aspect for consideration is that the intent to destroy the group must be "in whole or in part." The ILC stated that "the crime of Genocide by its very nature requires the intention to destroy at least a substantial part of a particular group."⁴⁶In the Report of the Sub-Commission on Genocide, the Special Rapporteur stated that "in part" would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership. Hence, both proportionate scale and total number are relevant.⁴⁷

97. The Trial Chamber opines, therefore, that "in part" requires the intention to destroy a considerable number of individuals who are part of the group. Individuals must be targeted due to their membership of the group to satisfy this definition."

"46. Ibid.

47. Mr. Whitaker, in UN Doc. E/CN.4/Sub.2/1985/6, p. 16, para. 29."

P.44. Evidence of intention to destroy a numerically significant part of the group.

Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, paras. 186-188:

''186. Likewise, the Trial Chamber’s analysis of the “substantiality” requirement was properly reasoned. The Trial Chamber based its finding that the Bosnian Muslim population of Eastern BiH constituted a substantial part of the protected group (i.e., the Bosnian Muslims)⁵²⁹on the definition of the substantial part of the protected group in the Indictment.⁵³⁰ In reaching its conclusion on this point, the Trial Chamber referred to and applied by analogy the reasoning given in the Popovi et al. Trial Judgement and the Krsti Appeal Judgement as to why the Bosnian Muslim population of Srebrenica, although a small percentage of the overall Muslim population of BiH, amounted to a substantial part of that group. The Trial Chamber stated, in this regard, that:⁵³¹ [t]he Srebrenica enclave was of immense strategic importance to the Bosnian Serb leadership because (1) the ethnically Serb state they sought to create would remain divided and access to Serbia disrupted without Srebrenica; (2) most Muslim inhabitants of the region had, at the relevant time, sought refuge in the Srebrenica enclave and the elimination of the enclave would accomplish the goal of eliminating the Muslim presence in the entire region; and (3) the enclave’s elimination despite international assurances of safety would demonstrate to the Bosnian Muslims their defencelessness and be “emblematic” of the fate of all Bosnian Muslims.⁵³²''

⁵²⁹ See Trial Judgement, paras 774-775.

⁵³⁰ See Trial Judgement, para. 775, citing Indictment, para. 10. See also Trial Judgement, para. 730.

⁵³¹ See Trial Judgement, para. 774, citing Popovi et al. Trial Judgement, para. 865 (which summarised the relevant findings of the Krsti Appeal Judgement).

⁵³² Trial Judgement, para. 774, citing Popovi et al. Trial Judgement, para. 865 (which referred to Krsti Appeal Judgement, paras 15-16).

''187. The Trial Chamber in this case did not take judicial notice of the relevant findings in the Popovi et al. Trial Judgement or the Krsti Appeal Judgement, nor did it adopt them as directly applicable findings. Instead, the Trial Chamber quoted the Popovi et al. Trial Judgement and explained why its (and the Krsti Appeal Judgement’s) reasoning – which, as the Trial Chamber acknowledged, concerned the Srebrenica enclave – would also apply by analogy to the facts of the Tolimir case. The Trial Chamber specified that: While the Appeals Chamber made this finding ₣in the Krsti caseğ specifically with regard to the Bosnian Muslims of Srebrenica, the reasoning equally applies to the broader population specified in the Indictment, namely “the Bosnian Muslim population of Eastern Bosnia and in particular, the enclaves of Srebrenica, Žepa and Gora`de”.⁵³³ In determining, thus, that the Bosnian Muslim population of Eastern BiH was a substantial part of the entire Bosnian Muslim population, the Trial Chamber held that the reasoning in other relevant cases equally applied to the circumstances of this case, namely the definition of the protected group pleaded in the Indictment (which Tolimir did not contest).⁵³⁴''

⁵³³Trial Judgement, para. 775, citing Indictment, para. 10.

⁵³⁴ Trial Judgement, para. 775.

''188. As in the Popovic et al. case – where similar challenges were rejected on appeal⁵³⁵ the Appeals Chamber does not find that the Trial Chamber’s analysis of the substantiality requirement was based exclusively on other cases without proper reasoning and without regard to the evidence in this case. Tolimir does not demonstrate that the Trial Chamber failed to provide a reasoned opinion in this regard or to establish a requisite element of the crime of genocide.''

⁵³⁵ Popovic et al. Appeal Judgement, para. 421.

A. Legal source/authority and evidence:

Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, para. 853:

"853. Thus the indictment alleges intent to achieve destruction "in part". This can be proven only if the intent to destroy a substantial part of the protected group is proven 1698. To determine whether the targeted part of the group is substantial, the numerical relation of the part to the overall size of the group should be considered, as well as its prominence within the group as a whole.TP1699 PT In Krstić, the proven intent to destroy approximately 40,000 Bosnian Muslims of Srebrenica was said by the Appeals Chamber to meet the substantiality requirement.TPF1700"

1698 P Krstić Appeal Judgement, paras 8-12.

1699 Ibid., para. 14.

1700 Ibid., paras 15-16.

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 668:

"668. The Appeals Chamber has held that the term "in whole or in part" must be interpreted as requiring that "the alleged perpetrator intended to destroy at least a substantial part of the protected group."²¹¹⁴ The Appeals Chamber has specified that "the numeric size of the targeted part of the group," which should be evaluated not only in absolute terms but also in relation to the overall size of the entire group, as well as "the prominence" within the group of the targeted portion, are among the factors to consider when determining whether the targeted part is substantial enough to meet this requirement.²¹¹⁵ The Appeals Chamber further found that "[t]he intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can – in combination with other factors – inform the analysis."²¹¹⁶"

"2114. Krstić Appeal Judgement, para. 12. See also Jelisić, Trial Judgement, para. 82; Sikirica Rule 98 bis Decision paras 66-86; Krstić Trial Judgement, paras 590-591; Akayesu Trial Judgement, para. 521; Semanza Trial Judgement, para. 312; Nahimana et al. Trial Judgement, para. 948; Ndindabahizi Trial Judgement, para. 454.

2115. Krstić Appeal Judgement, para. 12. The Krstić Trial Chamber added that perpetrators of genocide "must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such"; Krstić Trial Judgement, para. 590.

2116. Krstić Appeal Judgement, para. 13."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, para. 15:

"15. In this case, having identified the protected group as the national group of Bosnian Muslims, the Trial Chamber concluded that the part the VRS Main Staff and Radislav Krstić targeted was the Bosnian Muslims of Srebrenica, or the Bosnian Muslims of Eastern Bosnia.²⁴ This conclusion comports with the guidelines outlined above. The size of the Bosnian Muslim population in Srebrenica prior to its capture by the VRS forces in 1995 amounted to approximately forty thousand people.²⁵ This represented not only the Muslim inhabitants of the Srebrenica municipality but also many Muslim refugees from the surrounding region.²⁶ Although this population constituted only a small percentage of the overall Muslim population of Bosnia and Herzegovina at the time, the importance of the Muslim community of Srebrenica is not captured solely by its size.²⁷ As the Trial Chamber explained, Srebrenica (and the surrounding Central Podrinje region) were of immense strategic importance to the Bosnian Serb leadership. Without Srebrenica, the ethnically Serb state of Republica Srpska they sought to create would remain divided into two disconnected parts, and its access to Serbia proper would be disrupted.²⁸ The capture and ethnic purification of Srebrenica would therefore severely undermine the military efforts of the Bosnian Muslim state to ensure its viability, a consequence the Muslim leadership fully realized and strove to prevent. Control over the Srebrenica region was consequently essential to the goal of some Bosnian Serb leaders of forming a viable political entity in Bosnia, as well as to the continued survival of the Bosnian Muslim people. Because most of the Muslim inhabitants of the region had, by 1995, sought refuge within the Srebrenica enclave, the elimination of that enclave would have accomplished the goal of purifying the entire region of its Muslim population."

"24. Trial Judgement, para. 560 ("The Chamber concludes that the protected group, within the meaning of Article 4 of the Statute, must be defined, in the present case, as the Bosnian Muslims. The Bosnian Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia constitute a part of the protected group under Article 4."). See also Trial Judgement, para. 591. Although the Trial Chamber did not delineate clearly the interrelationship between these two alternative definitions, an explanation can be gleaned from its Judgement. As the Trial Chamber found, "most of the Bosnian Muslims residing in Srebrenica at the time of the [Serbian] attack were not originally from Srebrenica but from all around the central Podrinje region." Trial Judgement, para. 559; see also ibid., para. 592 (speaking about "the Bosnian Muslim community of Srebrenica and its surrounds"). The Trial Chamber used the term "Bosnian Muslims of Srebrenica" as a short-hand for the Muslims of both Srebrenica and the surrounding areas, most of whom had, by the time of the Serbian attack against the city, sought refuge with the enclave. This is also the sense in which the term will be used in this Judgement.

25. While the Trial Chamber did not make a definitive determination as to the size of the Bosnian Muslim community in Srebrenica, the issue was not in dispute. The Prosecution estimated the number to be between 38,000 and 42,000. See Trial Judgement, para. 592. The Defence’s estimate was 40,000. See ibid ., para. 593.

26. The pre-war Muslim population of the municipality of Srebrenica was 27,000. Trial Judgement, para. 11. By January 1993, four months before the UN Security Council declared Srebrenica to be a safe area, its population swelled to about 50,000 – 60,000, due to the influx of refugees from nearby regions. Ibid., para. 14. Between 8,000 and 9,000 of those who found shelter in Srebrenica were subsequently evacuated in March – April 1993 by the UN High Commissioner for Refugees. Ibid., para. 16.

27. The Muslim population of Bosnia and Herzegovina in 1995, when the attack against Srebrenica took place, was approximately 1,400,000. See www.unhabitat.org/habrdd/conditions/southeurope/bosnia.htm, accessed 26/03/2004 (estimating that the Muslims constituted 40 percent of the 1995 population of 3,569,000). The Bosnian Muslims of Srebrenica therefore formed about 2.9 percent of the overall population.

28. Trial Judgement, para. 12; see also para. 17."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para.

"628. Under Article 2, an accused may be liable if he "intends to destroy in whole or in part a […] group." As has been explained in judgments of this Tribunal, in order to establish an intent to destroy "in whole or in part", it is not necessary to show that the perpetrator intended to achieve the complete annihilation of a group from every corner of the globe. It is sufficient to prove that the perpetrator have intended to destroy more than an imperceptible number of the targeted group. In effect, the Chamber endorses the opinion expressed in the Semanza Judgment: the Prosecution must establish, beyond reasonable doubt, the intent of the perpetrator to destroy the target group in whole or in part, there is no numeric threshold of victims necessary to establish genocide."

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, para. 809:

"809. Under Article 2, an accused may be liable if he ‘intends to destroy in whole or in part a […] group.’ As has been explained in judgments of this Tribunal, in order to esbalish an intent to destroy ‘in whole or in part’, it is not necessary to show that he perpetrator intended to achieve the complete annihilation of a group from every corner of the globe. Nevertheless, the perpetrator must have intended to destroy more than an imperceptible number of the targeted group.¹⁰⁴⁶ In effect, the Semanza Trial Chamber was correct in observing that while the Prosecution must establish, beyond reasonable doubt, the intent of the perpetrator to destroy the target group in whole or in prat, there is no numeric threshold of victims necessary to establish genocide.¹⁰⁴⁷"

"1046. See ‘ILC Report 1996; Draft Code of Crimes Against the Peace and Security of Mankind’, p. 90; Bagilishema Judgment (TC), para. 64; Kayishema and Ruzindana, Judgment (TC), para. 96; Akayesu, Judgment (TC), para. 496 – 499; Semanza, Judgment (TC), para. 316.

1047. Semanza, Judgment (TC), para. 316."

Prosecutor v. Duško Sikirica et al., Case No. IT-95-8-T, Judgement on Defence Motions to Acquit (TC), 3 September 2001, para. 67:

"67. As to this criterion, the relevant evidence would be that which relates to the number of Bosnian Muslims or Bosnian Croats who were killed (Article 4(2)(a)), or suffered bodily or mental harm (Article 4(2)(b)), or on whom were deliberately inflicted conditions of life calculated to bring about the destruction of the group as such (Article 4(2)(c)). Of course, ultimately, it would still have to be shown that these acts were committed by Dusko Sikirica with the required intent, and on one of the recognised legal bases: (1) direct personal responsibility; (2) complicity ; or (3) common design.¹⁷⁴But, for the moment, the analysis will take place without taking those requirements into account."

"174. Command responsibility would also be a basis for criminal liability. However, the Prosecution no longer relies on Article 7(3) in relation to genocide."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 592 – 593:

"592. The Prosecution first argues that "causing at least 7,475 deaths of mainly Bosnian Muslim men in Srebrenica, the destruction of this part of the group, which numbered in total approximately 38,000 to 42,000 prior to the fall",¹³¹² constitutes a substantial part of the group not only because it targeted a numerically high number of victims, but also because the victims represented a significant part of the group. It was common knowledge that the Bosnian Muslims of Eastern Bosnia constituted a patriarchal society in which men had more education, training and provided material support to their family. The Prosecution claims that the VRS troops were fully cognisant that by killing all the military aged men, they would profoundly disrupt the bedrock social and cultural foundations of the group. The Prosecution adds that the mass executions of the military aged men must be viewed in the context of what occurred to the remainder of the Srebrenica group. The offensive against the safe area aimed to ethnically cleanse the Bosnian Muslims¹³¹³ and progressively culminated in the murder of the Bosnian Muslim men as well as the evacuation of the women, children and elderly.¹³¹⁴ In the Prosecution’s view, the end result was purposeful, as shown by the longstanding plan of Republika Sprska to eliminate the Bosnian Muslims from the area. Specifically , Radovan Karadžić, in Directive 7 of 7 March 1995,¹³¹⁵ ordered the Drina Corps to "[...] create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica and Zepa ".¹³¹⁶ General Krstić and his superiors also manifested genocidal intent by using inflammatory rhetoric and racist statements that presented the VRS as defending the Serbian people from a threat of genocide posed by "Ustasha-Muslim hords".¹³¹⁷ According to the Prosecution, "by killing the leaders and defenders of the group and deporting the remainder of it, the VRS and General Krstić had assured that the Bosnian Muslim community of Srebrenica and its surrounds would not return to Srebrenica nor would it reconstitute itself in that region or indeed, anywhere else".¹³¹⁸ The Prosecution points us to the terrible impact the events of 11-16 July had upon the Bosnian Muslim community of Srebrenica : "what remains of the Srebrenica community survives in many cases only in the biological sense, nothing more. It’s a community in despair; it’s a community clinging to memories; it’s a community that is lacking leadership; it’s a community that’s a shadow of what it once was".¹³¹⁹ The Prosecution concludes that "the defendant’s crimes have not only resulted in the death of thousands men and boys, but have destroyed the Srebrenica Muslim community ".¹³²⁰

593. The Defence argues in rejoinder that, "although the desire to condemn the acts of the Bosnian Serb Army at Srebrenica in the most pejorative terms is understandably strong", these acts do not fall under the legal definition of genocide because it was not proven that they were committed with the intent to destroy the group as an entity.¹³²¹ First, the killing of up to 7,500 members of a group, the Bosnian Muslims, that numbers about 1,4 million people, does not evidence an intent to destroy a "substantial" part of the group . To the Defence, the 7,500 dead are not even substantial when compared to the 40,000 Bosnian Muslims of Srebrenica.¹³²² The Defence also points to the fact that the VRS forces did not kill the women, children and elderly gathered at Potocari but transported them safely to Kladanj , as opposed to all other genocides in modern history, which have indiscriminately targeted men, women and children.¹³²³ The Defence counters the Prosecution’s submission that the murder of all the military aged men would constitute a selective genocide, as the VRS knew that their death would inevitably result in the destruction of the Muslim community of Srebrenica as such.¹³²⁴ According to the Defence , had the VRS actually intended to destroy the Bosnian Muslim community of Srebrenica , it would have killed all the women and children, who were powerless and already under its control, rather than undertaking the time and manpower consuming task of searching out and eliminating the men of the column.¹³²⁵ The Defence rejects the notion that the transfer of the women, children and elderly can be viewed cynically as a public relations cover-up for the planned execution of the men. First, it says the decision to transfer the women, children and elderly was taken on 11 July, i.e. before the VRS decided to kill all the military aged men. Further, the Defence points out, by the time the evacuation started, the world community was already aware of, and outraged by, the humanitarian crisis caused by the VRS in Srebrenica, and the VRS was not concerned with covering up its true intentions.¹³²⁶ The Defence also argues that the VRS would have killed the Bosnian Muslims in Zepa, a neighbouring enclave, as well, if its intent was to kill the Bosnian Muslims as a group.¹³²⁷ Furthermore, the Defence claims that none of the military expert witnesses "could attribute the killings to any overall plan to destroy the Bosnian Muslims as a group".¹³²⁸ To the Defence, a true genocide is almost invariably preceded by propaganda that calls for killings of the targeted group and nothing similar occurred in the present case. Inflammatory public statements made by one group against another – short of calling for killings - are common practice in any war and cannot be taken as evidence of genocidal intent.¹³²⁹ The Defence argues that, despite the unprecedented access to confidential material obtained by the Prosecution, none of the documents submitted, not even the intercepted conversations of VRS Army officers involved in the Srebrenica campaign, show an intent to destroy the Bosnian Muslims as a group.¹³³⁰ The Defence contends that the facts instead prove that the VRS forces intended to kill solely all potential fighters in order to eliminate any future military threat . The wounded men were spared.¹³³¹ More significantly, 3,000 members of the column were let through after a general truce was concluded between the warring parties.¹³³² The Defence concludes that the killings were committed by a small group of individuals within a short period of time as a retaliation for failure to meet General Mladic’s demand of surrender to the VRS of the BiH Army units in the Srebrenica area. The Defence recognises that "the consequences of the killings of 7,500 people on those who survived are undoubtedly terrible". However, it argues that these consequences would remain the same, regardless of the intent underlying the killings and thus "do not contribute to deciding and determining what the true intent of the killing was".¹³³³ The Defence concludes that "there is no proof and evidence upon which this Trial Chamber could conclude beyond all reasonable doubt that the killings were carried out with the intent to destroy, in whole or in part, the Bosnian Muslims as an ethnic group".¹³³⁴"

"1312. Prosecutor’s final Trial Brief, para. 412.

1313. Prosecutor’s final Trial Brief, para. 420.

1314. Prosecutor’s final Trial Brief, para. 423.

1315. P425.

1316. cited in the Prosecutor’s final Trial Brief, para. 425.

1317. P750, cited in the Prosecutor’s final Trial Brief, para. 416.

1318. Prosecutor’s final Trial Brief, para. 438.

1319. T. 10004-10005.

1320. Closing arguments, T. 10009.

1321. Final Submissions of the Accused, para. 131.

1322. Closing arguments, T. 10113.

1323. Final Submissions of the Accused, para. 133.

1324. Closing arguments, T. 10118.

1325. Closing arguments, T. 10118.

1326. Closing arguments, T. 10118-10119.

1327. Final Submissions of the Accused, paras. 141-145.

1328. Final Submissions of the Accused, para. 156.

1329. Final Submissions of the Accused, para. 161, Closing arguments, T. 10129.

1330. Final Submissions of the Accused, para. 157, 166.

1331. Closing arguments, T. 10120.

1332. Final Submissions of the Accused, paras. 146-147.

1333. Closing arguments, T. 10139.

1334. Closing arguments, T. 10140."

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, para. 64:

"64. As for the meaning of the terms "in whole or in part", the Chamber agrees with the statement of the International Law Commission, that "the intention must be to destroy the group as such, meaning as a separate and distinct entity, and not merely some individuals because of their membership in a particular group".⁶⁰ Although the destruction sought need not be directed at every member of the targeted group, the Chamber considers that the intention to destroy must target at least a substantial part of the group.⁶¹"

"60. ILC, Draft Code of Crimes, p. 88, and Akayesu (TC) paras. 496-499.

61. For example, the Chamber in Kayishema and Ruzindana (TC) held that the accused must have the intention to destroy a "considerable" number of members of a group."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 81 – 82:

"81. The Prosecution accepts that the phrase "in whole or in part" must be understood to mean the destruction of a significant portion of the group from either a quantitative or qualitative standpoint. The intention demonstrated by the accused to destroy a part of the group would therefore have to affect either a major part of the group or a representative fraction thereof, such as its leaders¹⁰⁹.

82. Given the goal of the Convention to deal with mass crimes, it is widely acknowledged that the intention to destroy must target at least a substantial part of the group¹¹⁰. The Tribunal for Rwanda appears to go even further by demanding that the accused have the intention of destroying a "considerable" number of individual members of a group¹¹¹. In a letter addressed to the United States Senate during the debate on Article II of the Convention on genocide, Rapha?l Lemkin explained in the same way that the intent to destroy "in part" must be interpreted as an desire for destruction which "must be of a substantial nature [...] so as to affect the entirety"¹¹². A targeted part of a group would be classed as substantial either because the intent sought to harm a large majority of the group in question or the most representative members of the targeted community. The Commission of Experts specified that "[i]f essentially the total leadership of a group is targeted, it could also amount to genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others - the totality per se may be a strong indication of genocide regardless of the actual numbers killed. A corroborating argument will be the fate of the rest of the group. The character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group. If a group has its leadership exterminated, and at the same time or in the wake of that, has a relatively large number of the members of the group killed or subjected to other heinous acts, for example deported on a large scale or forced to flee, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the Convention in a spirit consistent with its purpose"¹¹³. Genocidal intent may therefore be manifest in two forms. It may consist of desiring the extermination of a very large number of the members of the group, in which case it would constitute an intention to destroy a group en masse. However, it may also consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such. This would then constitute an intention to destroy the group "selectively". The Prosecutor did not actually choose between these two options¹¹⁴."

"109. ILC Draft Articles, p. 89.

110. Prosecutor’s pre-trial brief, para. 4.3, pp. 12-13.

111. The ILC Draft Articles just as Nehemia Robinson’s commentary indicate that the perpetrators of genocide must be seeking to destroy a "substantial part" of the group (ILC Draft Articles, p. 89; Nehemia Robinson, The Genocide Convention, New York, 1949 (1st edition), 1960, p. 63); the U. S. Senate’s "understanding" of Article II of the Convention also states that the U.S. interprets "partial destruction" as the destruction of a "substantial part" of the group (Genocide Convention, Report of the Committee on Foreign Relations, U.S. Senate, 18 July 1981, p. 22).

112. Kayishema Judgement, para. 97.

113. Rapha?l Lemkin in Executive Session of the Senate Foreign Relations Committee, Historical Series, 1976, p. 370. In the same vein, the implementing legislation proposed by the Nixon and Carter administrations stated that "'substantial part' means a part of a group of such numerical significance that the destruction or loss of that part would cause the destruction of the group as a viable entity", S EXEC. REP. No. 23, 94th Cong., 2nd Sess. (1976), pp. 34-35.

114. Report of the Commission of Experts, para. 94 (emphasis added)."

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 492:

"492. As clarified by international case law, the intent to destroy a group "in part" requires the intention to destroy "a considerable number of individuals"¹⁷² or "a substantial part"¹⁷³, but not necessarily a "very important part"¹⁷⁴ of the group.¹⁷⁵ Instances mentioned in either case law or the legal literature include, for example, the intent to kill all Muslims of Bosnia-Herzegovina, or all Muslims living in a region of that country,¹⁷⁶ or, for example, to destroy all the Jews living in Italy or the Armenians living in France.¹⁷⁷"

"172. See Kayishema and Ruzindana (ICTR, Trial Chamber, 21 May 1999), at § 97.

173. See Jelisić (ICTY Trial Chamber, 14 December 1999, at §§ 82), Bagilishema (ICTR, Trial Chamber, 7 June 2001,, at § 64) and Semanza (ICTR, Trial Chamber, 15 May 2003, at § 316.

174. See Jelisić (ICTY, Trial Chamber, 14 December 1999), at §§ 81-2.

175. According to B. Whitaker, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, UN Doc. E/CN.4/Sub.2/1985/6, at § 29, the expression "in part" indicates "a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership". Interestingly, the United States, in its domestic legislation implementing the Genocide Convention, defined "substantial part" as "a part of a group of such numerical significance that the destruction or loss of that part would cause the destruction of the group as a viable entity within the nation of which such group is a part." (Genocide Convention Implementation Act 1987, sec. 1093 (8)).

176. Krstić, (ICTY Trial Chamber), August 2, 2001, § 590: "[T]he physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue."; confirmed by the Appeals Chamber, judgement of 19 April 2004, §§ 6-23.

177. W. Schabas, Genocide in International Law (Cambridge, Cambridge University Press, 2000), at 235, notes that the term "in part" is intended "to undermine pleas from criminals who argue that they did not intend the destruction of the group as a whole". He then notes that the Turkish Government targeted in 1915 the Armenians "within its borders, not those of the Diaspora"; the Nazis intended to destroy all the Jews living in Europe; the Rwandan extremists did not intend to eliminate "Tutsi population beyond the country’s borders"."

P.45. Evidence of intention to destroy a geographically defined part of the group.

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 673:

"673. The Trial Chamber finds that in the present case the targeted group was the Bosnian Muslims of Srebrenica – a substantial part of the Bosnian Muslim group."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 703, 736, 964 – 968:

"1727. Rule 98bis Decision, para. 53; Jelisić Trial Judgement, para. 83; Sikirica Rule 98bis Decision, para. 68; Krstić Trial Judgement, paras 589-590; Stakić Trial Judgement, para. 523.

1728. Stakić Trial Judgement , para. 525; Krstić Trial Judgement, para. 587; Sikirica Rule 98bis Decision, paras 76-85; Jelisić Trial Judgement, para. 82.

1729. Krstić Appeal Judgement , fn. 22."

"736. The Trial Chamber concludes that the protected groups, within the meaning of Article 4 of the Statute, must be defined, in the present case, as the Bosnian Muslims and Bosnian Croats, as such. The Bosnian Muslims and Bosnian Croats of the ARK would therefore constitute parts of the protected groups. The question of whether the intent to destroy these parts of the protected groups falls under the definition of genocide is discussed below."

"964. The Prosecution submits that the Bosnian Muslims and Bosnian Croats of the ARK were the parts of these groups targeted for destruction, that they are "substantial" parts, and therefore that the intent to destroy these parts falls under the definition of genocide.²⁴²⁹ In considering this submission, the Trial Chamber must answer the question "how much of a group a perpetrator must intend to destroy in order to meet the legal requirements of genocide".²⁴³⁰

965. It is necessary at this stage to determine the geographical area to which the charges of genocide and complicity in genocide relate.²⁴³¹ The Indictment alleges that the Accused participated in a campaign designed to destroy Bosnian Muslims and Bosnian Croats "in the municipalities listed in paragraph 4 [of the Indictment], which formed part of the ARK".²⁴³² Of these, three were withdrawn at the stage of the Trial Chamber’s Rule 98bis Decision, leaving Banja Luka, Bosanska Krupa, Bosanski Novi, Bosanski Petrovac, Celinac, Donji Vakuf, Kljuc, Kotor Varos, Prijedor, Prnjavor, Sanski Most, Teslic and Sipovo ("relevant ARK municipalities"). Moreover, the Prosecution did not lead evidence of underlying acts for genocide with respect to the municipalities of Celinac and Sipovo.²⁴³³

966. The Trial Chamber is aware that narrowing down the scope of the "targeted part" to the relevant ARK municipalities could have a distorting effect, in more ways than one. In the first place, this is because the intent to destroy a group in part means seeking to destroy a "distinct part" of the group,²⁴³⁴ and it is difficult to justify how the Bosnian Muslims and the Bosnian Croats of the relevant ARK municipalities constitute distinct parts as opposed to those of the ARK as a whole. In the second place, this is because, in the Prosecution’s submission, any alleged genocidal intent was not limited to the Bosnian Muslims and the Bosnian Croats of the relevant ARK municipalities, but extended to those of the ARK.²⁴³⁵ Finally, the discussion on the scope of the "targeted part" becomes of some importance when it is necessary to address whether the "targeted part" satisfies the requirement of substantiality.

967. The Trial Chamber finds that there is sufficient evidence that the targeted parts of the groups were the Bosnian Muslims and Bosnian Croats of the ARK.²⁴³⁶ For the purposes of analysing whether the requirement of substantiality is satisfied, since it is difficult to precisely determine which municipalities belonged to the ARK at any given time, it suffices that the Trial Chamber is satisfied that all thirteen municipalities addressed in the Indictment and referred to as the relevant ARK municipalities belonged to the ARK at any given time.²⁴³⁷ According to the 1991 census, there were 2,162,426 Bosnian Muslims and 795,745 Bosnian Croats in BiH.²⁴³⁸ Of these, 233,128 Bosnian Muslims and 63,314 Bosnian Croats lived in the relevant ARK municipalities.²⁴³⁹ Numerically speaking, the Bosnian Muslims and Bosnian Croats of the relevant ARK municipalities, on their own, constituted a substantial part, both intrinsically and in relation to the overall Bosnian Muslim and Bosnian Croat groups in BiH.²⁴⁴⁰ The requirement of substantiality is satisfied, at a minimum, by the relevant ARK municipalities, and it is therefore unnecessary to inquire further into other relevant factors such as the prominence of the targeted parts within the groups.²⁴⁴¹ The Trial Chamber is satisfied that, in targeting the Bosnian Muslims and Bosnian Croats of the ARK, the perpetrators intended to target at least substantial parts of the protected groups.

968. Furthermore, as noted below, evidence of genocidal intent may have to be inferred from the facts and circumstances. Because evidence of the underlying acts has only been lead with respect to certain municipalities, this could have an effect on the determination of the existence of genocidal intent. For this reason, when it comes to determining whether the actual extent of the destruction supports the inference that the underlying acts were committed with the specific intent, the Trial Chamber will only consider for the sake of comparison the populations of the relevant ARK municipalities, excluding Celinac and Sipovo."

"2429. In addition, the Prosecution submits, in the alternative, that "the evidence at trial has established beyond a reasonable doubt that the Accused and other participants in the joint criminal enterprise intended to destroy the Bosnian Muslim and Bosnian Croat leadership and military-aged men in the ARK. Thus, they intended to destroy the groups 'in part' within the meaning of Article 2": Prosecution Final Brief, para. 537. For the reasons that follow, namely that the evidence supports the conclusion that the targeted parts were the Bosnian Muslims and Bosnian Croats of the ARK, the Trial Chamber has not felt it necessary to address these submissions. It is satisfied, however , that it is not possible to draw the conclusion from the evidence that the leadership was targeted, for the reason that the acts enumerated in Article 4(2)(a) to (c) were inflicted on Bosnian Muslims and Bosnian Croats the overwhelming majority of whom did not belong to the leadership. While leaders of the SDA and HDZ were among the first to be arrested, the overwhelming majority of those detained were not prominent. See IV.C. supra, "The implementation of the Strategic Plan in the Bosnian Krajina". The question of men of military age is addressed in more detail below.

2430. Prosecutor v. Slobodan Milošević, Case IT-02-54-T, Decision on Motion for Judgement of Acquittal, 16 June 2004, para. 127 ("Milošević Rule 98bis Decision").

2431. Despite the reference to the "ARK" and to "relevant ARK municipalities", for the purposes of determining the specific intent for genocide, these should be understood as the area comprised by the Indictment throughout the whole period relevant to the Indictment, regardless of the fact that the ARK strictly speaking ceased to exist at some point before the end of it.

2432. Indictment, para. 36. Paragraph 4 of the Indictment enumerates the following municipalities: Banja Luka, Bihac-Ripa c, Bosanska Dubica, Bosanska Gradiska, Bosanska Krupa, Bosanski Novi, Bosanski Petrovac , Celinac, Donji Vakuf, Kljuc, Kotor Varos, Prijedor, Prnjavor, Sanski Most, Sipovo and Teslic. Of these, Bihac-Ripac, Bosanska Dubica and Bosanska Gradiska were dropped by the Rule 98bis Decision.

2433. The Indictment does not charge the commission of any of the acts envisaged in Article 4(2)(a), (b) and (c) in the municipality of Celinac. The Indictment charges the infliction of serious bodily or mental harm in the municipality of Sipovo, but the Prosecution withdrew this allegation in the Prosecution Final Brief. See E. 2. supra, "Causing serious bodily or mental harm to members of the group".

2434. See Krstić Trial Judgement, para. 590.

2435. The Indictment also alleges that the most extreme manifestation of this genocidal campaign took place in the municipalities of Bosanski Novi, Kljuc, Kotor Varos, Prijedor and Sanski Most: Indictment, para. 36. The Prosecution subsequently maintained that "it would submit in the alternative (…) that the Muslim and Croat communities in Prijedor, Sanski Most, Kljuc and Kotor Varos could also be seen to have been specially targeted and to constitute "substantial parts" of the overall groups under Krstić [Appeal Judgement]": Confidential Prosecution’s Response to Trial Chamber’s Questions Regarding Genocide and the Krstić Appeal Judgement", 29 April 2004, para. 8. It is not clear why the Prosecution does not or no longer make this argument with respect to Bosanski Novi. Regardless, the Trial Chamber does not consider it necessary to address this submission because it was not pleaded in the Indictment and because the evidence does not support it. It may however become relevant when evaluating whether the extent of the actual destruction supports a finding of genocidal intent. See para. 974 infra and accompanying.

2436. See IV.C. supra, "The implementation of the Strategic Plan in the Bosnian Krajina". See also ex. P229, "Conclusions adopted by the municipalities of Bihac, Bosanski Petrovac, Bosanska Krupa –referred to as Srpska Krupa-, Sanski Most, Prijedor, Bosanski Novi and Kljuc", dated 7 June 1992: "All seven municipalities in our sub-region agree that Muslims and Croats should move out of our municipalities until a level is reached where Serbian authority can be maintained and implemented on its own territory in each of these municipalities. In this respect, we request that the Crisis Staff of the Autonomous Region of Krajina provide a corridor for the resettlement of Muslims and Croats to Central Bosnia and Alija’s independent state of BiH because they voted for it. If the leadership of the Autonomous Region of Krajina is Banja Luka fails to solve this issue, our seven municipalities will take all Muslims and Croats under military escort from our municipalities to the centre of Banja Luka (…)".

2437. See VI.A. supra , "The Autonomous Region of Krajina".

2438. Ex. P60: "Croatia National Statistics Depot, Population of Bosnia and Herzegovina, Permanent Population by Ethnicities in Municipalities; Censuses of 1971, 1981 and 1991" dated April 1995 , which contains the 1991 census for BiH.
2439. Ex. P60: "Croatia National Statistics Depot, Population of Bosnia and Herzegovina, Permanent Population by Ethnicities in Municipalities; Censuses of 1971, 1981 and 1991" dated April 1995 , which contains the 1991 census for BiH.

2440. They would amount to about 10.78% and 7.96% respectively of the total population of Bosnian Muslims and Bosnian Croats in BiH.

2441. Nevertheless, other factors that would point towards the satisfaction of the substantiality requirement are satisfied too. E.g.: with respect to prominence within the group, Banja Luka was the biggest town on the Serbian side: see T. 20623 (closed session). See also VI, A. 3. supra, "The dispute between the ARK and the authorities of the SerBiH on the status of the ARK". With respect to the area of the Accused’s activity and power as well as the possible extent of their reach, the Trial Chamber is satisfied that this would correspond to the territory of the ARK: see VIII.B. supra, "De jure and de facto power of the Accused" and C. supra, "The Accused’s participation in the implementation of the Strategic Plan"."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, para. 15:

28. Trial Judgement, para. 12; see also para. 17."

Prosecutor v. Duško Sikirica et al., Case No. IT-95-8-T, Judgement on Defence Motions to Acquit (TC), 3 September 2001, para. 68:

"68. The Chamber agrees with the Prosecution’s submission that the intent to destroy a multitude of persons belonging to a group may amount to genocide, even where these persons constitute only part of a group within a given geographical area: a country or a region or a single community. The Chamber also agrees that, as is argued by the Prosecution, this approach is supported by the Akayesu Trial Judgement, which dealt with a single commune where the accused was bourgemestre,¹⁷⁵and the Jelisić Trial Judgement, where it was held that customary international law permits the characterisation of genocide even when the discriminatory intent only extends to "a limited geographic zone".¹⁷⁶Whether the group belongs to a country or a region or a single community, it is clear that it must belong to a geographic area, limited though it may be. Thus, the proper basis for comparison is between those Bosnian Muslims or Bosnian Croats who were victims within the terms of Article 4(2)(a), (b) or (c), and those groups as a whole in the Prijedor municipality. The comparison should not be between Bosnian Muslims and Bosnian Croats who were victims within the terms of Article 4(2)(a), (b) or (c) while detained in the Keraterm camp and the total number that constituted those groups in Keraterm."

"176. Jelisić Trial Judgement, para. 83."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 582, 585, 589 – 590, 594 – 595:

"582. Invoking the work of the ILC and the Jelisić Judgement, the Prosecution interprets the expression "in whole or in part" to mean a "substantial" part in quantitative or qualitative terms.¹²⁸⁸ However, the Prosecution states that "it is not necessary to consider the global population of the group. The intent to destroy a multitude of persons because of their membership in a particular group constitutes genocide even if these persons constitute only part of a group either within a country or within a region or within a single community".¹²⁸⁹ The Prosecution relies on, inter alia, the Akayesu Judgement which found the accused guilty of genocide for acts he committed within a single commune and the Nikolić Decision taken pursuant to Rule 61, which upheld the characterisation of genocide for acts committed within a single region of Bosnia-Herzegovina, in that case, the region of Vlasenica.¹²⁹⁰ The Prosecution further cites the Jelisić Judgement which declared that "international custom admitted the characterisation of genocide even when the exterminatory intent only extended to a limited geographic zone".¹²⁹¹"

"1288. Prosecutor’s pre-trial brief pursuant to Rule 65 ter (E)(i), 25 February 2000, para. 100.

1289. Prosecutor’s pre-trial brief pursuant to Rule 65 ter (E)(i), 25 February 2000, para. 101.

1290. Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, Decision of Trial Chamber I, 20 October 1995, IT-94-2-R61, para. 34.

1291. Jelisić Judgement, para. 83."

"585. The Genocide Convention itself provides no indication of what constitutes intent to destroy "in part". The preparatory work offers few indications either. The draft Convention submitted by the Secretary-General observes that "the systematic destruction even of a fraction of a group of human beings constitutes an exceptionally heinous crime".¹²⁹⁶ Early commentaries on the Genocide Convention opined that the matter of what was substantial fell within the ambit of the Judges’ discretionary evaluation. Nehemia Robinson was of the view that the intent to destroy could pertain to only a region or even a local community if the number of persons targeted was substantial.¹²⁹⁷ Pieter Drost remarked that any systematic destruction of a fraction of a protected group constituted genocide.¹²⁹⁸"

"1296. Draft Convention for the Prevention and Punishment of Genocide presented by the Secretary-General, 26 June 1947, UN Doc. E/447, p. 24.

1297. Nehemia Robinson, The Genocide Convention, p. 63: "the intent to destroy a multitude of persons of the same group must be classified as genocide even if these persons constitute only part of a group either within a country or within a region or within a single community, provided the number is substantial". The writer also noted before the Foreign Relations Commission of the American Senate: "the intent to destroy a multitude of persons of the same group must be classified as genocide even if these persons constitute only part of a group either within a country or within a single community, provided the number is substantial because the aim of the convention is to deal with action against large numbers, not individual events if they happen to possess the same characteristics. It will be up to the court to decide in every case whether such intent existed" (The Genocide Convention - Its Origins and Interpretation, reprinted in Hearings on the Genocide Convention Before a Subcomm. of the Senate Comm. on Foreign Relations, 81st Cong., 2nd Sess., 487, 498 (1950) ).

1298. Pieter Drost, The Crime of State, Book II, Genocide, Sythoff, Leyden, p. 85: "Acts perpetrated with the intended purpose to destroy various people as members of the same group are to be classified as genocidal crimes although the victims amount to only a small part of the entire group present within the national, regional or local community"."

"589. Several other sources confirm that the intent to eradicate a group within a limited geographical area such as the region of a country or even a municipality may be characterised as genocide. The United Nations General Assembly characterised as an act of genocide the murder of approximately 800 Palestinians¹³⁰⁶ detained at Sabra and Shatila, most of whom were women, children and elderly.¹³⁰⁷ The Jelisić Judgement held that genocide could target a limited geographic zone.¹³⁰⁸ Two Judgements recently rendered by German courts took the view that genocide could be perpetrated within a limited geographical area. The Federal Constitutional Court of Germany, in the Nikola Jorgic case, upheld the Judgement of the Düsseldorf Supreme Court,¹³⁰⁹ interpreting the intent to destroy the group "in part" as including the intention to destroy a group within a limited geographical area.¹³¹⁰ In a Judgement against Novislav Djajic on 23 May 1997, the Bavarian Appeals Chamber similarly found that acts of genocide were committed in June 1992 though confined within the administrative district of Foca.¹³¹¹

590. The Trial Chamber is thus left with a margin of discretion in assessing what is destruction "in part" of the group. But it must exercise its discretionary power in a spirit consonant with the object and purpose of the Convention which is to criminalise specified conduct directed against the existence of protected groups , as such. The Trial Chamber is therefore of the opinion that the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide need not seek to destroy the entire group protected by the Convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such. A campaign resulting in the killings, in different places spread over a broad geographical area, of a finite number of members of a protected group might not thus qualify as genocide, despite the high total number of casualties, because it would not show an intent by the perpetrators to target the very existence of the group as such. Conversely, the killing of all members of the part of a group located within a small geographical area, although resulting in a lesser number of victims, would qualify as genocide if carried out with the intent to destroy the part of the group as such located in this small geographical area. Indeed, the physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue. In this regard, it is important to bear in mind the total context in which the physical destruction is carried out."

"1306. There are varying estimates as to the number of victims. The Israeli commission of inquiry put the number of victims at 800. However, according to the ICRC, no less than 2,400 people were massacred. The massacre was perpetrated over two days, on 16 and 17 September 1982.

1307. UN Doc. AG/Res.37/123D (16 December 1982), para. 2. It should however be noted that the resolution was not adopted unanimously, notably, the paragraph characterising the massacre as an act of genocide was approved by 98 votes to 19, with 23 abstentions. See UN Doc. A/37/PV.108, para. 151.

1308. Jelisić Judgement, para. 83.

1309. Düsseldorf Supreme Court, Nikola Jorgic case, 30 April 1999, 3StR 215/98.

1310. Federal Constitutional Court, 2BvR 1290/99, 12 December 2000, par. 23: "The courts also do not go beyond the possible meaning of the text by accepting that the intent to destroy may relate to a geographically limited part of the group. There is support for that interpretation in the fact that STGB para. 220a ( the national law integrating the Convention( penalises the intent to destroy partially as well as entirely".

1311. Bavarian Appeals Court, Novislav Djajic case, 23 May 1997, 3 St 20/96, section VI, p. 24 of the English translation."

"594. The Trial Chamber concludes from the evidence that the VRS forces sought to eliminate all of the Bosnian Muslims in Srebrenica as a community. Within a period of no more than seven days, as many as 7,000- 8,000 men of military age were systematically massacred while the remainder of the Bosnian Muslim population present at Srebrenica , some 25,000 people, were forcibly transferred to Kladanj. The Trial Chamber previously described how the VRS attempted to kill all the Bosnian Muslim men of military age , regardless of their civilian or military status; wounded men were spared only because of the presence of UNPROFOR and the portion of the column that managed to get through to government-held territory owed its survival to the fact that the VRS lacked the military resources to capture them.

595. Granted, only the men of military age were systematically massacred, but it is significant that these massacres occurred at a time when the forcible transfer of the rest of the Bosnian Muslim population was well under way. The Bosnian Serb forces could not have failed to know, by the time they decided to kill all the men , that this selective destruction of the group would have a lasting impact upon the entire group. Their death precluded any effective attempt by the Bosnian Muslims to recapture the territory. Furthermore, the Bosnian Serb forces had to be aware of the catastrophic impact that the disappearance of two or three generations of men would have on the survival of a traditionally patriarchal society, an impact the Chamber has previously described in detail.¹³³⁵ The Bosnian Serb forces knew, by the time they decided to kill all of the military aged men, that the combination of those killings with the forcible transfer of the women, children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica. Intent by the Bosnian Serb forces to target the Bosnian Muslims of Srebrenica as a group is further evidenced by their destroying homes of Bosnian Muslims in Srebrenica and Potocari¹³³⁶ and the principal mosque in Srebrenica soon after the attack.¹³³⁷"

"1335. Supra, paras. 90-94.

1336. Supra, paras. 41, 123, 153.

1337. It was eventually turned into a parking lot. P4/4 to P4/6; Ruez, T. 542-543."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 83:

"83. The Prosecution contends, however, that the geographical zone in which an attempt to eliminate the group is made may be limited to the size of a region or even a municipality¹¹⁵. The Trial Chamber notes that it is accepted that genocide may be perpetrated in a limited geographic zone¹¹⁶. Furthermore, the United Nations General Assembly did not hesitate in characterising the massacres at Sabra and Shatila¹¹⁷ as genocide, even if it is appropriate to look upon this evaluation with caution due to its undoubtedly being more of a political assessment than a legal one. Moreover, the Trial Chamber adopted a similar position in its Review of the Indictment Pursuant to Article 61 filed in the Nikolić case. In this case, the Trial Chamber deemed that it was possible to base the charge of genocide on events which occurred only in the region of Vlasenica¹¹⁸. In view of the object and goal of the Convention and the subsequent interpretation thereof, the Trial Chamber thus finds that international custom admits the characterisation of genocide even when the exterminatory intent only extends to a limited geographic zone."

"115. For the discussion of this point, see below.

116. Prosecutor’s pre-trial brief, para. 4.4, pp. 13-14.

117. Nehemia Robinson states that "the intent to destroy a multitude of persons of the same group must be classified as Genocide even if these persons constitute only a part of a group either within a country or within a region or within a single community", (emphasis added) p. 63.

118. UN Off. Doc. AG/Res. 37/ 123 D (16 December 1982), para. 2."

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 492:

"172. See Kayishema and Ruzindana (ICTR, Trial Chamber, 21 May 1999), at § 97.

173. See Jelisić (ICTY Trial Chamber, 14 December 1999, at §§ 82), Bagilishema (ICTR, Trial Chamber, 7 June 2001,, at § 64) and Semanza (ICTR, Trial Chamber, 15 May 2003, at § 316.

174. See Jelisić (ICTY, Trial Chamber, 14 December 1999), at §§ 81-2.

P.45.1. Evidence of the intention to destroy a geographical area of strategic or symbolic importance to the group.

A. Legal source/authority and evidence:

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 864:

"865. The Trial Chamber finds that the Muslims of Eastern Bosnia constitute a substantial component of the entire group, Bosnian Muslims. As has been found by the Appeals Chamber, although the size of the Bosnian Muslim population in Srebrenica before its capture by the VRS was a small percentage of the overall Muslim population of BiH at the time, the import of the community is not appreciated solely by its size.3018 The Srebrenica enclave was of immense strategic importance to the Bosnian Serb leadership because (1) the ethnically Serb state they sought to create would remain divided and access to Serbia disrupted without Srebrenica; (2) most Muslim inhabitants of the region had, at the relevant time, sought refuge in the Srebrenica enclave and the elimination of the enclave would accomplish the goal of eliminating the Muslim presence in the entire region; and (3) the enclave’s elimination despite international assurances of safety would demonstrate to the Bosnian Muslims their defencelessness and be "emblematic" of the fate of all Bosnian Muslims.3019 The Chamber agrees with this analysis and adopts the conclusion."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, paras. 15 – 16:

16. In addition, Srebrenica was important due to its prominence in the eyes of both the Bosnian Muslims and the international community. The town of Srebrenica was the most visible of the "safe areas" established by the UN Security Council in Bosnia. By 1995 it had received significant attention in the international media. In its resolution declaring Srebrenica a safe area, the Security Council announced that it "should be free from armed attack or any other hostile act."²⁹ This guarantee of protection was re-affirmed by the commander of the UN Protection Force in Bosnia (UNPROFOR) and reinforced with the deployment of UN troops.³⁰ The elimination of the Muslim population of Srebrenica, despite the assurances given by the international community, would serve as a potent example to all Bosnian Muslims of their vulnerability and defenselessness in the face of Serb military forces. The fate of the Bosnian Muslims of Srebrenica would be emblematic of that of all Bosnian Muslims."

28. Trial Judgement, para. 12; see also para. 17.

29. Security Council Resolution 819, UN Doc. S/RES/819 (1993), quoted in Trial Judgement, para. 18 and n. 17. The two other protected enclaves created by the Security Council were ?epa and Gorazde. See Security Council Resolution 824, UN Doc. S/RES/824 (1993); Trial Judgement, para. 18 and n. 18.

30. Trial Judgement, paras. 15, 19 - 20."

B. Evidentiary comment:

The ICTY has held that a group may not be defined by reference to its geographical location (see Krstić Trial Judgment, para. 559 and Brđanin Trial Judgment, para. 734). However genocide may be made out where there is shown to be an intention to destroy a geographically specific "part" of a protected group may.

In this context, the question arises as to whether any geographical delimitation is sufficient (some of the cases seem to suggest this) or whether evidence must be led demonstrating that the area in question represents a "substantial" part of the whole group, numerically or otherwise. The latter would appear to be the approach more consistent with the jurisprudence requiring that the targeted part of a group be a "substantial" part of it. Otherwise a geographically defined part of the group could be designated as so small and specific as to avoid the "substantial" requirement.

P.46. Evidence of intention to destroy a part of the group consisting of its leadership.

A. Legal source/authority and evidence:

Prosecutor v. Zdravko Tolimir, Judgement (TC), 12 December 2012, paras. 781-782:

"781. In accordance with the Jelic Trial Chamber's finding—in which it relied on the Commission of Experts Report—the Majority also takes into account the fate of the remaining population of Zepa; their forcible transfer immediately prior to the killing of these three leaders is a factor which supports its finding of genocidal intent. To ensure that the Bosnian Muslim population of this enclave would not be able to reconstitute itself, it was sufficient—in the case of Zepa—to remove its civilian population, destroy their homes and their mosque, and murder its most prominent leaders. These three men, similar to the thousands of those murdered following the fall of Srebrenica, also ended up in mass graves.

782. The Majority has no doubt that the murder of Hajric, Palic and Imamovic was a case of deliberate destruction of a limited number of persons selected for the impact that their disappearance would have on the survival of the group as such. On the basis of the above, the Majority, Judge Nyambe dissenting, is satisfied beyond reasonable doubt that Bosnian Serb Forces killed the three leaders named in the Indictment with the specific genocidal intent of destroying part of the Bosnian Muslim population as such"

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 702 - 703:

"702. According to the Appeals Chamber, the determination of when the targeted group is substantial enough to meet this requirement may involve a number of considerations, including but not limited to: the numeric size of the targeted part of the group - measured not only in absolute terms but also in relation to the overall size of the entire group -, the prominence within the group of the targeted part of the group, and the area of the perpetrators’ activity and control as well as the possible extent of their reach.¹⁷²⁵ The Appeals Chamber has held that "[t]he applicability of these factors, as well as their relative weight, will vary depending on the circumstances of a particular case".¹⁷²⁶

"1725. Krstić Appeal Judgement , paras 12-14.

1726. Krstić Appeal Judgement , para. 14.

1728. Stakić Trial Judgement , para. 525; Krstić Trial Judgement, para. 587; Sikirica Rule 98bis Decision, paras 76-85; Jelisić Trial Judgement, para. 82.

1729. Krstić Appeal Judgement , fn. 22."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, para. 12:

"12. […] In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4.²²"

"22. The Trial Chambers in Jelisić and Sikirica referred to this factor as an independent consideration which is sufficient, in and of itself, to satisfy the requirement of substantiality. See Jelisić Trial Judgement, para. 82; Sikirica Trial Judgement, para. 65. Properly understood, this factor is only one of several which may indicate whether the substantiality requirement is satisfied."

Prosecutor v. Duško Sikirica et al., Case No. IT-95-8-T, Judgement on Defence Motions to Acquit (TC), 3 September 2001, paras. 65, 76 – 78, 80-84:

"65. The United Nations Expert Study on Genocide defines the term "in part" as implying "a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership".¹⁷²This definition means that, although the complete annihilation of the group is not required, it is necessary to establish "the intention to destroy at least a substantial part of a particular group".¹⁷³The Chamber believes that it is more appropriate to speak of a "reasonably substantial" rather than a "reasonably significant" number. This part of the definition calls for evidence of an intention to destroy a reasonably substantial number relative to the total population of the group. According to this definition, if that criterion is not met, the mens rea may yet be established by evidence of an intention to destroy a significant section of the group, such as its leadership. While the Chamber does not reject that aspect of the definition, which sees the two elements as being alternative, there may be situations in which the inference as to the intent can not be drawn on the basis of the evidence in relation to each element in isolation, but when the evidence in relation to each is viewed as a whole, it would be perfectly proper to draw the inference."

"172. United Nations Expert Study on Genocide, para. 29.

173. 1996 ILC Draft Code, p. 89."

"76. If the quantitative criterion is not met, the intention to destroy in part may yet be established if there is evidence that the destruction is related to a significant section of the group, such as its leadership.

77. The Chamber finds persuasive the analysis in the Jelisić Trial Judgement that the requisite intent may be inferred from the "desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such."¹⁷⁷The important element here is the targeting of a selective number of persons who, by reason of their special qualities of leadership within the group as a whole, are of such importance that their victimisation within the terms of Article 4(2) (a), (b) and (c) would impact upon the survival of the group, as such.

78. In examining the evidence to determine whether leaders were targeted, one is looking for Bosnian Muslims who, whether by reason of their official duties or by reason of their personality, had this special quality of directing the actions or opinions of the group in question, that is those who had a significant influence on its actions."

"177. Jelisić Trial Judgement, para. 82."

"80. Notwithstanding that submission, very little evidence has been adduced as to the leadership status of those who were detained in Keraterm. There is evidence that among those detained were taxi-drivers, schoolteachers, lawyers, pilots, butchers and café owners.¹⁷⁹But there is no specific evidence that identifies them as leaders of the community. Indeed, they do not appear to have been persons with any special significance to their community , except to the extent that some of them were of military age, and therefore could be called up for military service. The Chamber notes the Prosecution submission that the Serbs targeted those Bosnian Muslims from the Brdo area who were active in the defence of their villages, and that it was appropriate to treat them as soldiers , and thus an important element of the leadership, since their elimination would have a significant impact on the survival of the group. Further, according to the Prosecution, the evidence is that most of the Brdo detainees were in Room 3, and therefore were among those killed in the Room 3 massacre.

81. While the Trial Chamber acknowledges that the necessary intent can be established on that basis, it is unable to conclude that any action within the terms of Article 4(2) (a), (b) or (c) on the part of the Bosnian Serbs in relation to a limited number of Bosnian Muslims of military age, acting in defence of their villages, would have a significant impact on the survival of the Muslim population as a whole in Prijedor . There is no evidence as to the specific number of the detainees from the Brdo region, and there is evidence that they were all placed in Room 3, which had somewhere between 150-200 people. There is, further, little evidence as to the targeting of specific individuals within the Prijedor area, apart from those who were brought and placed in Keraterm. The Chamber rejects the submission that all those Bosnian Muslims, whether from the Brdo area or elsewhere, and who were active in the resistance of the take-over of their villages, should be treated as leaders. Acceptance of that submission would necessarily involve a definition of leadership so elastic as to be meaningless."

"179. See, e.g., Witness A, T. 599-600 (who testified that a butcher was detained in Keraterm); Witness G, T. 1735; Witness C, T. 918-919 (who heard that there was a pilot in the camp); Fikret Hidic, T. 2318 (who identified himself as a teacher in Kozarac); and Witness F, T. 1376 (who was a taxi-driver and then a café-owner in Prijedor)."

82. With regard to the situation outside the Keraterm camp, no evidence has been led to show that the disappearance of those who were targeted by Bosnian Serbs would have a significant impact on the survival of the population¹⁸⁰in Prijedor to which they belonged by reason of their leadership status or for any other reason.

83. Although the analysis has mainly dealt with Bosnian Muslims, the Indictment also alleges that Bosnian Croats were targeted. However, as stated in paragraph 73 supra, the evidence shows that the number of Croats who suffered from acts covered by Article 4(2)(a), (b), and (c) was very small, and there is no evidence as to their significance within the group.

84. In light of the foregoing, the Chamber does not consider that there is a sufficient evidential basis for inferring an intention to destroy a significant section of the Bosnian Muslim or Bosnian Croat population, such as its leadership, whether in or outside the Keraterm camp."

"180. This formulation is adopted from the Jelisić Trial Judgement, para. 82."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 587 – 588:

588. Judge Elihu Lauterpacht, the ad hoc Judge nominated by Bosnia-Herzegovina in the case before the International Court of Justice regarding the application of the Convention on the Prevention and Punishment of the Crime of Genocide, spoke similarly in his separate opinion.¹³⁰⁴ Judge Lauterpacht observed that the Bosnian Serb forces had murdered and caused serious mental and bodily injury to the Bosnian Muslims and had subjected the group to living conditions meant to bring about its total or partial physical destruction. He went on to take into account "the forced migration of civilians, more commonly known as ‘ethnic cleansing’ in order to establish the intent to destroy all or part of the group. In his view, this demonstrated the Serbs’ intent "to eliminate Muslim control of, and presence in, substantial parts of Bosnia-Herzegovina". Judge Lauterpacht concluded that the acts which led to the group's physical destruction had to be characterised as "acts of genocide" since they were "directed against an ethnical or religious group as such, and they were intended to destroy that group, if not in whole certainly in part, to the extent necessary to ensure that that group would no longer occupy the parts of Bosnia-Herzegovina coveted by the Serbs".¹³⁰⁵"

"1302. Para. 29.

1303. Report of the Commission of Experts , UN Doc. S/1994/674, para. 94 (emphasis added).

1305. Separate Opinion of Judge Lauterpacht, ICJ Reports (1993), p. 431."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 81 – 82:

"109. ILC Draft Articles, p. 89.

110. Prosecutor’s pre-trial brief, para. 4.3, pp. 12-13.

112. Kayishema Judgement, para. 97.

114. Report of the Commission of Experts, para. 94 (emphasis added)."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 96 – 97:

"46. Ibid.

47. Mr. Whitaker, in UN Doc. E/CN.4/Sub.2/1985/6, p. 16, para. 29."

P.47. Evidence of intention to destroy a part of the group that is otherwise significant.

A. Legal source/authority and evidence:

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 864:

"866. The Trial Chamber also finds that the killing of all of the male members of a population is a sufficient basis to infer the intent to biologically destroy the entire group. The Trial Chamber notes that some young boys, elderly men and the infirm were amongst those killed and that no distinction was made between civilians and military men. Thus, the scope of the killing was wider than simply the men who posed a military threat. Further, the extent of the killings undoubtedly has had a detrimental impact on the physical survival of the Muslims of Eastern Bosnia. The Chamber finds beyond reasonable doubt that the devastating impact on the community would have been evident to, and intended by, members of the Bosnian Serb Forces, including members of the VRS Main Staff and the Security Branch."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 702:

"1725. Krstić Appeal Judgement , paras 12-14.

1726. Krstić Appeal Judgement , para. 14."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, paras. 13, 17:

"13. The historical examples of genocide also suggest that the area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered. Nazi Germany may have intended only to eliminate Jews within Europe alone; that ambition probably did not extend, even at the height of its power, to an undertaking of that enterprise on a global scale. Similarly, the perpetrators of genocide in Rwanda did not seriously contemplate the elimination of the Tutsi population beyond the country’s borders.²³ The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can - in combination with other factors - inform the analysis."

"23. For a discussion of these examples, see William A. Schabas, Genocide in International Law (2000), p. 235."

Prosecutor v. Duško Sikirica et al., Case No. IT-95-8-T, Judgement on Defence Motions to Acquit (TC), 3 September 2001, paras. 65, 82 – 84:

"65. The United Nations Expert Study on Genocide defines the term "in part" as implying "a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership".¹⁷²This definition means that, although the complete annihilation of the group is not required, it is necessary to establish "the intention to destroy at least a substantial part of a particular group".¹⁷³The Chamber believes that it is more appropriate to speak of a "reasonably substantial " rather than a "reasonably significant" number. This part of the definition calls for evidence of an intention to destroy a reasonably substantial number relative to the total population of the group. According to this definition, if that criterion is not met, the mens rea may yet be established by evidence of an intention to destroy a significant section of the group, such as its leadership. While the Chamber does not reject that aspect of the definition, which sees the two elements as being alternative, there may be situations in which the inference as to the intent can not be drawn on the basis of the evidence in relation to each element in isolation , but when the evidence in relation to each is viewed as a whole, it would be perfectly proper to draw the inference."

"172. United Nations Expert Study on Genocide, para. 29.

173. 1996 ILC Draft Code, p. 89."

"82. With regard to the situation outside the Keraterm camp, no evidence has been led to show that the disappearance of those who were targeted by Bosnian Serbs would have a significant impact on the survival of the population¹⁸⁰in Prijedor to which they belonged by reason of their leadership status or for any other reason.

"180. This formulation is adopted from the Jelisić Trial Judgement, para. 82."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 81 – 82:

"109. ILC Draft Articles, p. 89.

110. Prosecutor’s pre-trial brief, para. 4.3, pp. 12-13.

112. Kayishema Judgement, para. 97.

114. Report of the Commission of Experts, para. 94 (emphasis added)."

2.3.2. Evidence which is not required.

P.48. Not required: Evidence of the actual destruction of the group.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 697:

"1715. See Stakić Trial Judgement , para. 522.

1716. See further para. 725 supra."

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, Judgement (TC), 15 July 2004, para. 454:

"454. […] The actual destruction of a substantial part of the group is not a required material element of the offence, but may assist in determining whether the accused intended to bring about that result.⁵⁸⁸"

"588. Krstić, Judgment (AC), para. 35; Akayesu, Judgment (AC), paras. 497, 730."

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, para. 125:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 497:

"497. Contrary to popular belief, the crime of genocide does not imply the actual extermination of group in its entirety, but is understood as such once any one of the acts mentioned in Article 2(2)(a) through 2(2)(e) is committed with the specific intent to destroy "in whole or in part" a national, ethnical, racial or religious group."

P.49. Not required: Evidence that a substantial part of the group was actually destroyed.

A. Legal source/authority and evidence:

Prosecutor v. Duško Sikirica et al., Case No. IT-95-8-T, Judgement on Defence Motions to Acquit (TC), 3 September 2001, para. 75:

"75. The fact that the evidence does not establish that a substantial number of Bosnian Muslims or Bosnian Croats were victims within the terms of Article 4 (2)( a), (b) and (c) of the Statute, does not necessarily negate the inference that there was an intent to destroy in part the Bosnian Muslim or Bosnian Croat group. However, in the Chamber’s view, when that fact is considered along with other aspects of the evidence, it becomes clear that this is not a case in which the intent to destroy a substantial number of Bosnian Muslims or Bosnian Croats can properly be inferred."

P.50. Not required: Evidence of genocidal acts against multiple victims.

A. Legal source/authority and evidence:

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, Judgement (TC), 15 July 2004, para. 471:

"471. The fact that only a single person was killed on this occasion does not negate the perpetrators’ clear intent, which was to destroy the Tutsi population of Kibuye and of Rwanda, in whole or in part.⁶¹⁰ Accordingly, the killers of Nors committed genocide."

"610. Past formulations have emphasized that genocide may be committed even when there is a single victim, provided that the perpetrators possess the requisite intent: Musema, Judgement (TC), para. 165 ("For any of the acts charged to constitute genocide, the said acts must have been committed against one or more persons because such person or persons were members of a specific group, and specifically, because of their membership in this group"); Rutaganda, Judgement (TC), para. 60; Semanza, Judgement (TC), para. 316; William Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), p. 234 ("No acceptable rationale can justify why an individual murder, if committed with the intent to destroy a group ‘in whole or in part’, should not be qualified as genocide")."

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, para. 809:

"809. Under Article 2, an accused may be liable if he ‘intends to destroy in whole or in part a […] group.’ As has been explained in judgments of this Tribunal, in order to esbalish an intent to destroy ‘in whole or in part’, it is not necessary to show that he perpetrator intended to achieve the complete annihilation of a group from every corner of the globe. Nevertheless, the perpetrator must have intended to destroy more than an imperceptible number of the targeted group.¹⁰⁴⁶ In effect, the Semanza Trial Chamber was correct in observing that while the Prosecution must establish, beyond reasonable doubt, the intent of the perpetrator to destroy the target group in whole or in part, there is no numeric threshold of victims necessary to establish genocide.¹⁰⁴⁷"

1047. Semanza, Judgment (TC), para. 316."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 521:

"521. In concrete terms, for any of the acts charged under Article 2 (2) of the Statute to be a constitutive element of genocide, the act must have been committed against one or several individuals, because such individual or individuals were members of a specific group, and specifically because they belonged to this group. Thus, the victim is chosen not because of his individual identity, but rather on account of his membership of a national, ethnical, racial or religious group. The victim of the act is therefore a member of a group, chosen as such, which, hence, means that the victim of the crime of genocide is the group itself and not only the individual."

B. Evidentiary comment:

Some case law, when dealing with the constituent elements of genocide, held the view that there may be genocide even if one of the acts prohibited by the relvant rules is committed "against one" member of the protected group. While this broad interpretation seems inconsistent with the text of the norms of the Genocide Convention which speaks of "members of a group", it fully purports with the wording of the Elements of Crimes on Genocide, which all refer instead to "one or more persons".

2.4. The perpetrator intended to destroy that group "as such".

A. Legal source/authority and evidence:

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1312:

"1312.[...]The Trial Chamber recalls that the words "as such" here underscore that something more than discriminatory intent is required for genocide, that the intent must be "to destroy the group as a separate and distinct entity" and that the ultimate victim of the crime of genocide is the group[…]

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 669 – 670:

"669. The victims of the crime must be targeted because of their membership in the protected group, although not necessarily solely because of such membership.²¹¹⁷

670. As mentioned above, the Trial Chamber recalls that the specific intent must be to destroy the group as a separate and distinct entity.²¹¹⁸"

"2117. Niyitegeka Appeal Judgement, para. 53.

2118. See supra para. 665, and in particular Sikirica Rule 98 bis Decision, para. 89."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 698 – 699:

"698. The specific intent must be to destroy the group as a separate and distinct entity.¹⁷¹⁷ The Trial Chamber concurs with the observation made by the Sikirica Trial Chamber that:

699. This is consonant with the United Nations General Assembly Resolution 96(I), which defined genocide as "a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings".¹⁷¹⁹ The intent to destroy makes genocide an exceptionally grave crime and distinguishes it from other serious crimes, in particular persecution, where the perpetrator selects his victims because of their membership in a specific community but does not necessarily seek to destroy the community as such.¹⁷²⁰"

"1717. Stakić Trial Judgement , para. 521; Krstić Trial Judgement, para. 552; Jelisić Trial Judgement , para. 79. Further, the ILC has stated that: "St]he group itself is the ultimate target or intended victim of this type of massive criminal conduct (…) the intention must be to destroy the group 'as such’, meaning as a separate and distinct entity ", ILC Draft Code, p. 88.

1718. Prosecutor v. Dusko Sikiri ca, Damir Dosen, Dragan Kolundzija, Case No. IT-95-8-T, Judgement on Defence Motion to Acquit, 3 September 2001 ("Sikirica Rule 98bis Decision"), para. 89.

1719. UN Doc. A/ 96(I) (1946), 11 December 1946. This view was confirmed by the ICJ when it observed that the Genocide Convention looked "to safeguard the very existence of certain human groups and (…) to confirm and endorse the most elementary principles of morality": Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, ICJ Reports (1951), p. 23. See Krstić Appeal Judgement, para. 8; Krstić Trial Judgement, para. 552.

1720. See Krstić Trial Judgement , para. 553; Jelisić Trial Judgement, para. 79. See also Niyitegeka Appeal Judgement, para. 53: "The term ’as such’ has the effet utile of drawing a clear distinction between mass murder crimes in which the perpetrator targets a specific group because of its nationality, race, ethnicity or religion. In other words, the term ’as such’ clarifies the specific intent requirement" (omitted)."

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-A, Judgement (AC), 9 July 2004, para.53:

53. The words "as such," however, constitute an important element of genocide, the "crime of crimes."74 It was deliberately included by the authors of the Genocide Convention in order to reconcile the two diverging approaches in favour of and against including a motivational component as an additional element of the crime. The term "as such" has the effet utile of drawing a clear distinction between mass murder and crimes in which the perpetrator targets a specific group because of its nationality, race, ethnicity or religion.75 In other words, the term "as such" clarifies the specific intent requirement. It does not prohibit a conviction for genocide in a case in which the perpetrator was also driven by other motivations that are legally irrelevant in this context. Thus the Trial Chamber was correct in interpreting "as such" to mean that the proscribed acts were committed against the victims because of their membership in the protected group, but not solely because of such membership."

Prosecutor v. Duško Sikirica et al., Case No. IT-95-8-T, Judgement on Defence Motions to Acquit (TC), 3 September 2001, paras. 61, 87 – 90:

"61. As the Chamber has indicated before, the requisite intent for the crime of genocide will have to be inferred from the evidence. The seven factors enumerated by the Prosecution are relevant.¹⁶⁷However they are by no means the only factors relevant to prove the required intent. The Chamber stresses that all the evidence must be examined. Moreover, before embarking on an examination of the evidence, it is important to understand what it is that Article 4(2) requires to be proved by way of evidence in order to establish the requisite mens rea. There are two elements in the chapeau of Article 4(2), which the Prosecution is required, as a matter of law, to establish. First, it must establish the intent to destroy in whole or in part the Bosnian Muslim or Bosnian Croat populations in Prijedor; secondly, it must also establish an intention to destroy the Bosnian Muslim or Bosnian Croat group as such. These two elements are cumulative, that is to say, the Prosecution must not only establish an intention to destroy the Bosnian Muslim or Bosnian Croat populations in whole or in part, but it must also establish the intention to destroy those groups as such. The Sikirica Motion will succeed if the Prosecution fails to establish either of these two ingredients of the mens rea."

"167 - See para. 46 supra."

"87. The Kayishema Trial Chamber held that the phrase "to destroy the group, as such" "speaks to specific intent (the requisite mens rea)".¹⁸¹ The Akayesu Trial Chamber held that "the victim of the crime of genocide is the group itself and not only the individual".¹⁸²Thus, "the victim is chosen not because of his individual identity, but rather" because he is "a member of a group, chosen as such".¹⁸³

88. In the Jelisić case, the Trial Chamber held that

89. This Chamber concurs with that analysis. In particular, it wishes to emphasise that it is the mental element of the crime of genocide that distinguishes it from other crimes that encompass acts similar to those that constitute genocide. The evidence must establish that it is the group that has been targeted, and not merely specific individuals within that group. That is the significance of the phrase "as such" in the chapeau. Whereas it is the individuals that constitute the victims of most crimes, the ultimate victim of genocide is the group, although its destruction necessarily requires the commission of crimes against its members, that is, against individuals belonging to that group. This is what differentiates genocide from the crime against humanity of persecution. Even though they both have discriminatory elements, some of which are common to both crimes, in the case of persecution, the perpetrator commits crimes against individuals, on political, racial or religious grounds. It is this factor that establishes a demarcation between genocide and most cases of ethnic cleansing. Practically every case prosecuted before the International Tribunal has involved ethnic cleansing, in which particular groups have been specifically targeted for various kinds of abuse and mistreatment, including murder and detention. However, it is noteworthy that in none of the other cases involving the detention of persons in camps in the Prijedor municipality (with which this case is concerned), has the Prosecution alleged genocide. That by itself, of course, does not serve to invalidate the specific allegations of genocide in this case, and in no way relieves the Chamber of its duty to determine whether the legal ingredients of genocide have been established in this particular case. However, the Chamber sees no essential difference between this case and the other trials for ethnic cleansing in the Prijedor municipality. No evidence has been adduced to show that there was a specific intent to target the Bosnian Muslims or Bosnian Croats as such, that is, as a group, as distinct from the individual members of that group.

90. The Chamber concludes that the evidence has not established that Dusko Sikirica possessed the very specific intent required by Article 4(2) to destroy in part the Bosnian Muslims or Bosnian Croats as a group, even though it may establish the mistreatment of the members of that group on political, racial or religious grounds, in which event the relevant crime is persecution, not genocide. Therefore, even if the evidence established an intention to destroy a part of the Bosnian Muslim or Bosnian Croat population, the Sikirica Motion would still succeed because what was targeted was not the group as such, but individual members of the group. As the Chamber has indicated earlier, the two elements as to the requirement of intent in the chapeau of Article 4(2) – the intention to destroy in part and the intention to destroy the group as such - are cumulative. However, neither element has been satisfied on the Prosecution case."

"181. Kayishema Trial Judgement, para. 99.

182. Akayesu Trial Judgement, para. 521.

183. Ibid.

184. Jelisić Trial Judgement, para. 70."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 550 – 553, 561:

"550. Genocide refers to any criminal enterprise seeking to destroy, in whole or in part, a particular kind of human group, as such, by certain means. Those are two elements of the special intent requirement of genocide:

- the act or acts must target a national, ethnical, racial or religious group;

- the act or acts must seek to destroy all or part of that group.¹²¹⁹

551. The parties agreed that genocide must target not only one or several individuals but a group as such.¹²²⁰

552. United Nations General Assembly resolution 96 (I) defined genocide as "a denial of the right of existence of entire human groups".¹²²¹ On the same issue, the Secretariat explained:

In 1951, following the adoption of the Genocide Convention, the International Court of Justice observed that the Convention looked "to safeguard the very existence of certain human groups and ₣…ğ to confirm and endorse the most elementary principles of morality".¹²²³ The ILC also insisted on this point in 1996:

The Akayesu Judgement¹²²⁵ and the Kayishema and Ruzindana Judgement¹²²⁶ upheld this interpretation.

553. The Convention thus seeks to protect the right to life of human groups, as such. This characteristic makes genocide an exceptionally grave crime and distinguishes it from other serious crimes, in particular persecution, where the perpetrator selects his victims because of their membership in a specific community but does not necessarily seek to destroy the community as such¹²²⁷."

"1219. Jelisić Judgement, para. 66.

1220. Prosecutor’s Submissions of agreed matters of law presented during the pre-trial conference of 7 March 2000, 8 March 2000, paras. 92 and 93.

1221. UN Doc. A/ 96(I) (1946), 11 December 1946.

1222. "Relations Between the Convention on Genocide on the One Hand and the Formulation of the Nurnberg Principles and the Preparation of a Draft Code of Offences Against Peace and Security on the Other", U.N. Doc. E/AC.25/3/Rev.1, 12 April 1948, p. 6. Nehemia Robinson set forth this essential characteristic of genocide very explicitly in his commentary on the Convention: "The main characteristic of Genocide is its object: the act must be directed toward the destruction of a group. Groups consist of individuals, and therefore, destructive action must, in the last analysis, be taken against individuals. However, these individuals are important not per se but only as members of the group to which they belong" (op.cit. p. 63).

1223. Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, ICJ Reports (1951), p. 23.

1224. ILC Draft Code, p. 88.

1225. Akayesu Judgement, para. 522: "The perpetration of the act charged therefore extends beyond its actual commission, for example, the murder of a particular individual, for the realisation of an ulterior motive, which is to destroy, in whole or in part, the group of which the individual is just one element".

1226. Kayishema, Ruzindana Judgement, para. 99: "Destroying’ has to be directed at the group as such, that is, qua group".

1227. See in particular the Kupreskic Judgement, para. 636 and the Jelisić Judgement, para. 79."

"561. The Prosecution and the Defence, in this case, concur in their belief that the victims of genocide must be targeted by reason of their membership in a group.¹²⁴² This is the only interpretation coinciding with the intent which characterises the crime of genocide. The intent to destroy a group as such, in whole or in part, presupposes that the victims were chosen by reason of their membership in the group whose destruction was sought. Mere knowledge of the victims’ membership in a distinct group on the part of the perpetrators is not sufficient to establish an intention to destroy the group as such. As the ILC noted:

"1242. Prosecutor’s pre-trial brief pursuant to Rule 65 ter (E) (i), 25 February 2000, para. 92, p. 33.

1243. ILC Draft Code, p. 109. See also Pieter Drost, The Crime of State, Genocide, p. 124, for a commentary on the Convention: "It is an externally perceptible quality or characteristic which the victim has in common with the other members of the group, which makes him distinct from the rest of society in the criminal mind of his attacker and which for that very reason causes the attacker to commit the crime against such marked and indicated individual"."

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, para. 61:

"61. For one of the underlying acts to be constitutive of the crime of genocide, it must have been committed against a person because this person was a member of a specific group, and specifically because of his or her membership of this group. Consequently, the perpetration of the act is in realization of the purpose of the perpetrator, which is to destroy the group in whole or in part. It follows that the victim of the crime of genocide is singled out by the offender not by reason of his or her individual identity, but on account of his or her being a member of a national, ethnical, racial, or religious group. This means that the victim of the crime of genocide is not only the individual but also the group to which he or she belongs.Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 67 – 68, 79:

"67. The special intent which characterises genocide supposes that the alleged perpetrator of the crime selects his victims because they are part of a group which he is seeking to destroy. Where the goal of the perpetrator or perpetrators of the crime is to destroy all or part of a group, it is the "membership of the individual in a particular group rather than the identity of the individual that is the decisive criterion in determining the immediate victims of the crime of genocide"⁸⁸.

68. From this point of view, genocide is closely related to the crime of persecution, one of the forms of crimes against humanity set forth in Article 5 of the Statute. The analyses of the Appeals Chamber⁸⁹ and the Trial Chamber⁹⁰ in the Tadic case point out that the perpetrator of a crime of persecution, which covers bodily harm including murder⁹¹, also chooses his victims because they belong to a specific human group. As previously recognised by an Israeli District Court in the Eichmann case⁹² and the Criminal Tribunal for Rwanda in the Kayishema⁹³ case, a crime characterised as genocide constitutes, of itself, crimes against humanity within the meaning of persecution."

"88. ILC Draft Articles, p. 88; the same comment was made by Pieter N. Drost, based on the preparatory works of the Convention, in The Crime of State, Genocide, A.W. Sythoff, Leyden, 1959, p. 124: "It is an externally perceptible quality or characteristic which the victim has in common with the other members of the group, which makes him distinct from the rest of society in the criminal mind of his attacker and which for that very reason causes the attacker to commit the crime against such marked and indicated individual"(emphasis added).

89. Tadic Appeals Judgement, para. 305.

90. Tadic Judgement, para. 697: "what is necessary is some form of discrimination that is intended to be and results in an infringement of an individual’s fundamental rights. Additionally, this discrimination must be on specific grounds, namely race, religion or politics".

91. See in particular the Tadic Judgement, para, 717.

92. The Israeli District Court noted that "All Sthe accusedC did with the object of exterminating the Jewish people also amounts ipso facto to persecution of Jews on national, racial, religious and political grounds" (Attorney General of Israel v. Eichmann, Judgement of the District Court, in E. Lauterpacht, International Law Reports, vol. 36, part VI, para. 201, p. 239 (1968)).

93. Judgement, para. 578."

"79. Apart from its discriminatory character, the underlying crime is also characterised by the fact that it is part of a wider plan to destroy, in whole or in part, the group as such. As indicated by the ILC, "the intention must be to destroy the group "as such", meaning as a separate and distinct entity, and not merely some individuals because of their membership in a particular group".¹⁰⁵ By killing an individual member of the targeted group, the perpetrator does not thereby only manifest his hatred of the group to which his victim belongs but also knowingly commits this act as part of a wider-ranging intention to destroy the national, ethnical, racial or religious group of which the victim is a member. The Tribunal for Rwanda notes that "[t]he perpetration of the act charged therefore extends beyond its actual commission, for example, the murder of a particular individual, for the realisation of an ulterior motive, which is to destroy, in whole or in part, the group of which the individual is just one element"¹⁰⁶. Genocide therefore differs from the crime of persecution in which the perpetrator chooses his victims because they belong to a specific community but does not necessarily seek to destroy the community as such.¹⁰⁷"

"105. ILC Draft Articles, p. 88.

106. Akayesu Judgement, para. 522.

107. Stefan Glaser, Droit international pénal conventionnel, Bruylant, Brussels, 1970, p. 107. Professor Pella also uses this criterion to distinguish the two crimes in his "Memorandum concerning a draft code of offences against the peace and security of mankind" submitted to the ILC during its second session (UN Off. Doc., A/CN.4/39, 4 November 1950, para. 141, pp. 188-189)."

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, paras. 60, 399:

"60. In concrete terms, for any of the acts charged to constitute genocide, the said acts must have been committed against one or more persons because such person or persons were members of a specific group, and specifically, because of their membership in this group. Thus, the victim is singled out not by reason of his individual identity, but rather on account of his being a member of a national, ethnical, racial or religious group. The victim of the act is, therefore, a member of a given group selected as such, which, ultimately, means the victim of the crime of genocide is the group itself and not the individual alone. The perpetration of the act charged, therefore, extends beyond its actual commission, for example, the murder of a particular person, to encompass the realization of the ulterior purpose to destroy, in whole or in part, the group of which the person is only a member."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 99:

"99. This phrase speaks to specific intent (the requisite mens rea). The "destroying" has to be directed at the group as such, that is, qua group, as stipulated in Article 2(2) of the Statute."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 521 – 522:

2.4.1. Evidence inferred from the words or conduct of the perpetrator.

P.51. Evidence of statements by the perpetrator.

A. Legal source/authority and evidence:

Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D, Judgement (TC), 31 May 2012, para. 1717:

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, Judgment, para. 517:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 563:

"563. The accused himself defined the objective of the campaign in Bosnia during an interview in November 1995, when he explained that the Podrinje region should remain "Serbian for ever, while the Eastern part of Republika Srpska and the Drina river would be an important meeting point for the entire Serbian people from both sides of the Drina".¹²⁴⁶

"1246 - P743, p. 2."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 73, 75:

"75. The words and deeds of the accused demonstrate that he was not only perfectly aware of the discriminatory nature of the operation but also that he fully supported it. It appears from the evidence submitted to the Trial Chamber that a large majority of the persons whom Goran Jelisić admitted having beaten and executed were Muslim. Additionally, many of the elements showed how Goran Jelisić made scornful and discriminatory remarks about the Muslim population. Often, Goran Jelisić insulted the Muslims by calling them "balijas" or "Turks"¹⁰². Of one detainee whom he had just hit, Goran Jelisić allegedly said that he must be have been mad to dirty his hands with a "balija" before then executing him¹⁰³."

"102. Witness A, FPT p. 45; Witness F, FPT p. 248.

103. Witness F, FPT p. 248."

P.51.1. Evidence of the perpetrator expressing regret at having mistakenly attacked a person not a member of the group.

A. Legal source/authority and evidence:

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, para. 517:

[B. Evidentiary comment:]

P.52. Evidence of conduct by the perpetrator.

A. Legal source/authority and evidence:

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 76:

"76. It also appears from the testimony that Goran Jelisić allegedly humiliated the Muslims by forcing them to sing Serbian songs. At the police station, he supposedly made them line up facing the Serbian Flag and sing.¹⁰⁴"

"104. Witness Q, FPT pp. 1203-1227."

P.52.1. Evidence of the perpetrator acting on instructions to attack members of the group.

A. Legal source/authority and evidence:

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, Judgement (TC), 15 July 2004, para. 469:

"607. As indicated by Witnesses CGL and CGH, as well as CGC.

[B. Evidentiary comment:]

P.53. Evidence of victims belonging to the group.

A. Legal source/authority and evidence:

Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10-A and ICTR-96-17-A, Judgement (TC), 13 December 2004, para. 303:

"303. The Appellant argues that "[a] finding that the overwhelming majority of the refugees killed and wounded at Mugonero were Tutsis cannot support a finding that Tutsi refugees were targeted solely on the basis of their ethnic group."⁵¹⁶In the view of the Appeals Chamber, the finding that the Tutsi seeking refuge at Mugonero were targeted on the basis of their ethnicity has not been shown to be unreasonable. The evidence included testimonies of Witnesses MM, HH, YY, and several others indicating that most of the refugees assembled at the Mugonero Complex were of Tutsi ethnicity.⁵¹⁷ The Trial Chamber was entitled to find from the evidence that these refugees were targeted on grounds of their ethnicity.⁵¹⁸"

"516. Id., p. 33.

517. See Trial Judgement, paras. 338-339.

518. See id., paras. 334-340."Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10-T and ICTR-96-17-T, Judgement (TC), 21 February 2003, para. 340:

"340. On the basis of the evidence considered above, the Chamber finds that the majority of the persons who sought refuge at the Complex up to 16 April were Tutsi. The Chamber also finds that the overwhelming majority of the refugees who were killed and wounded during the attack at the Complex on 16 April were Tutsi. Accordingly, the Chamber finds that Tutsi refugees were targeted solely on the basis of their ethnic group."

2.4.2. Evidence inferred from the context in which the genocidial acts were committed.

P.54. Evidence of widespread and systematic violence

A. Legal source/authority and evidence:

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 73 – 75:

"73. In seeking proof of discriminatory intent, the Trial Chamber takes account of not only the general context in which the acts of the accused fit but also, in particular, his statements and deeds. The Trial Chamber deems, moreover, that an individual knowingly acting against the backdrop of the widespread and systematic violence being committed against only one specific group could not reasonably deny that he chose his victims discriminatorily."

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 400:

"400. Moreover, on the basis of evidence proffered at trial and discussed in this Judgement under the section on the general allegations,¹¹⁶ the Chamber finds that, at the time of the events referred to in the Indictment, numerous atrocities were committed against Tutsis in Rwanda. From the widespread nature of such atrocities, throughout the Rwandan territory, and the fact that the victims were systematically and deliberately selected owing to their being members of the Tutsi group, to the exclusion of individuals who were not members of the said group, the Chamber is able to infer a general context within which acts aimed at destroying the Tutsi group were perpetrated. Consequently, the Chamber notes that such acts as are charged against the Accused were part of an overall context within which other criminal acts systematically directed against members of the Tutsi group, targeted as such, were committed."

"116. See Chapter 4, Section 8 of this Judgement."

P.55. Evidence of a general campaign of persecution.

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 293 – 294, 312:

294. On their way to the gathering places many witnesses saw roadblocks where the perpetrators separated Tutsis from the Hutus. Once the Tutsis reached these places they were injured, mutilated and some of the women were raped. In the end the Tutsis were massacred by Hutu assailants who sang songs whose lyrics exhorted extermination during the attacks. These attackers were armed and led by local government officials and other public figures. The fact that these massacres occurred is not in dispute. In fact, Kayishema testified that he and others engaged in a clean-up operation after the massacres."

"175. See the testimonies of Witnesses G, U and Z explaining that Inkotanyi meant "all the Tutsis" or the "enemy"."

"312. Considering this evidence, the Trial Chamber finds that, in Kibuye Prefecture, the plan of genocide was implemented by the public officials. Persons in positions of authority used hate speech and mobilised their subordinates, such as the gendarmes the communal police, and the militias, who in turn assisted in the mobilisation of the Hutu population to the massacre sites where the killings took place. Tutsis were killed, based on their ethnicity, first in their homes and when they attempted to flee to perceived safe havens they were stopped at roadblocks and some were killed on the spot. Those who arrived at churches and stadiums were attacked and as a result tens of thousands perished."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 123:

"123. Two facts, in particular, which suggest that it was indeed the Tutsi who were targeted should be highlighted: […] Secondly, the propaganda campaign conducted before and during the tragedy by the audiovisual media, for example, "Radio Television des Milles Collines"(RTLM), or the print media, like the Kangura⁵⁸ newspaper. These various news media overtly called for the killing of Tutsi, who were considered as the accomplices of the RPF and accused of plotting to take over the power lost during the revolution of 1959. Some articles and cartoons carried in the Kangura newspaper, entered in evidence, are unambiguous in this respect. In fact, even exhibit 25A could be added to this lot. Exhibit 25A is a letter from the "GZ" staff headquarters dated 21 September 1992 and signed by Deofratas Nsabimana, Colonel, BEM, to which is annexed a document prepared by a committee of ten officers and which deals with the definition of the term enemy. According to that document, which was intended for the widest possible dissemination, the enemy fell into two categories, namely:" the primary enemy" and the "enemy supporter". The primary enemy was defined as "the extremist Tutsi within the country or abroad who are nostalgic for power and who have NEVER acknowledged and STILL DO NOT acknowledge the realities of the Social Revolution of 1959, and who wish to regain power in RWANDA by all possible means, including the use of weapons". On the other hand, the primary enemy supporter was "anyone who lent support in whatever form to the primary enemy". This document also stated that the primary enemy and their supporters came mostly from social groups comprising, in particular, "Tutsi refugees", "Tutsi within the country", "Hutu dissatisfied with the current regime", "Foreigners married to Tutsi women" and the "Nilotic-hamitic tribes in the region"."

"58. It will be noted in this regard that in the travaux preparatoires of the Genocide Convention, the Yugoslav delegate indicated with regard to the genocide of Jews by the Nazis that the crimes began with the preparation and mobilization of the masses by means of the ideas spread by the necessary propaganda and in circles which financed this propaganda. See the Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September 1948-10 December 1948, Official Records of the General Assembly."

P.56. Evidence of the number of the victims belonging to the group.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 568:

"568. The operation, however, was not confined to mere retaliation. Its objective, although perhaps restricted initially to blocking communications between the two enclaves and reducing the Srebrenica enclave to its urban core, was quickly extended. Realising that no resistance was being offered by the Bosnian Muslim forces or the international community, President Karadžić broadened the operation’s objective by issuing, on 9 July, the order to seize the town.¹²⁶³ By 11 July, the town of Srebrenica was captured, driving 20,000 to 25,000 Muslim refugees to flee towards Potocari. Operation Krivaja 1995 then became an instrument of the policy designed to drive out the Bosnian Muslim population. The humanitarian crisis caused by the flow of refugees arriving at Potocari, the intensity and the scale of the violence, the illegal confinement of the men in one area, while the women and children were forcibly transferred out of the Bosnian Serb held territory , and the subsequent death of thousands of Bosnian Muslim civilian and military men, most of whom clearly did not die in combat, demonstrate that a purposeful decision was taken by the Bosnian Serb forces to target the Bosnian Muslim population in Srebrenica, by reason of their membership in the Bosnian Muslim group. It remains to determine whether this discriminatory attack sought to destroy the group, in whole or in part, within the meaning of Article 4 of the Statute."

"1263 - Supra, para. 33."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 74:

"74. The testimony heard during the trial⁹⁸shows that the offensive against the civilian population of Brcko, of which the acts of Goran Jelisić formed part, was directed mainly against the Muslim population. A great majority of the persons detained in the collection centres and at Luka camp were Muslim⁹⁹. During interrogations, the Muslims were questioned about their possible involvement in resistance movements or political groups¹⁰⁰. Most of the victims who were killed during the conflict in Brcko were Muslims.¹⁰¹"

"98. In this regard, the Trial Chamber notes that several witnesses (Q, B, N, E) whose statements are included in the factual basis also testified before the Trial Chamber during the genocide trial.

99. Witness B, FPT p. 159; Witness I, FPT p. 686; Witness N, FPT pp. 1115-1116.

100. Witness D, FPT pp. 525-526.

101. See exhibit 12. The witness Mustafa Rami}, former mayor of Br~ko, alleged that about 2000 of the 3000 Muslims who supposedly remained in Br~ko after the destruction of the bridges were killed or disappeared (FPT pp.1318-1327). According to the prior statement of witness John Ralston, in 1991 the town of Brko had a population of 41 046 of which 55.5% were Muslims, 19.9% Serbs, 6.9% Croats and 17.5% others. Muslims also accounted for the majority of the population throughout most of the Brko municipality."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 291, 312:

"173. Pros. exh. 331B, p. 5."

"312. Considering this evidence, the Trial Chamber finds that, in Kibuye Prefecture, the plan of genocide was implemented by the public officials. Persons in positions of authority used hate speech and mobilised their subordinates, such as the gendarmes the communal police, and the militias, who in turn assisted in the mobilisation of the Hutu population to the massacre sites where the killings took place. Tutsis were killed, based on their ethnicity, first in their homes and when they attempted to flee to perceived safe havens they were stopped at roadblocks and some were killed on the spot. Those who arrived at churches and stadiums were attacked and as a result tens of thousands perished."

P.57. Evidence of statements by others.

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 279, 282, 293, 294:

"279. […] According to one report, prior to 6 April, the public authorities did not openly engage in inciting the Hutus to perpetrate massacres. On 19 April however, the President of the Interim Government, told the people of Butare to "get to work" in the Rwandan sense of the term by using their machetes and axes."

164. Trans., 5 Mar. 1998, p. 110.

165. Pros. exh. 330B, p. 6."

"293. […] The Hutu population began openly to use accusatory or pejorative terms, such as Inkotanyi (Kinyarwanda for RPF accomplice/enemy)¹⁷⁵ and Inyenzi (Kinyarwanda for cockroach) when referring to the Tutsis. The members of the Interahamwe and other armed militant Hutus began a campaign of persecution against the Tutsis based on the victims’ education and social prominence. Simultaneously, the Tutsi population, as a whole, suffered indiscriminate attacks in their homes. Perpetrators set on fire their houses and looted and killed their herds of cattle. Witness A testified that on the morning of 7 April 1994 his Hutu neighbours began to engage in looting, attacking Tutsi-owned houses and slaughter Tutsi-owned livestock. Witnesses C, F, OO and E, corroborated these occurrences."

175. See the testimonies of Witnesses G, U and Z explaining that Inkotanyi meant "all the Tutsis" or the "enemy"."

"294. […] In the end the Tutsis were massacred by Hutu assailants who sang songs whose lyrics exhorted extermination during the attacks. […]"

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 118 – 119:

"118. […] Alison Desforges, an expert witness, in her testimony before this Chamber on 25 February 1997, stated as follows: "on the basis of the statements made by certain political leaders, on the basis of songs and slogans popular among the Interahamwe, I believe that these people had the intention of completely wiping out the Tutsi from Rwanda so that-as they said on certain occasions - their children, later on, would not know what a Tutsi looked like, unless they referred to history books". Moreover, this testimony given by Dr. Desforges was confirmed by two prosecution witnesses, witness KK and witness OO, who testified separately before the Tribunal that one Silas Kubwimana had said during a public meeting chaired by the accused himself that all the Tutsi had to be killed so that someday Hutu children would not know what a Tutsi looked like.

P.58. Evidence of prior separation or classification of victims.

A. Legal source/authority and evidence:

Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T, Judgement (TC), 6 December 2010, para. 686 - 687:

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, para. 515:

Prosecutor v. André Ntagerura et al., Case No. ICTR-96-10A-T, Judgement (TC), 25 February 2004, para. 690:

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, para. 826:

"826. The Chamber found a woman who was thought to be Tutsi and her son were singled out at a roadblock in front of Witness GDQ’s house on 8 April 1994, and subsequently killed by an Interahamwe named Musafiri. Kanoti, a Hutu man who was also present, and accompanying these victims, was not killed. The Accused was present at the roadblock during this event and was heard saying, ‘No Tutsi should survive at Mukingo’."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 429:

"429. In addition, the Accused’s intent to destroy the Tutsi group, as such, is reflected by the fact that he instructed soldiers to separate Hutu from Tutsi, who were then killed by gunfire and grenades. […]"

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 287 – 288, 294, 300, 307:

"169. Trans., 5 Mar. 1998, p. 105.

170. Trans., 18 Nov. 1997, p. 118."

"300. Witness F spent the night at the church parish at Bukataye. During the night, there was an attack on the church parish, led by the Headmaster of the Pentecostal school. People carrying clubs and spears accompanied the Headmaster of the school. He said, "the Tutsi who were in the Church should come out so that they could be killed."¹⁸² Those who were unable to flee the Church were separated. Tutsi women separated from the Hutu women. The latter remained and watched as the attackers killed the former. Witness F stated that the men, including him, then fled to the bushes."

"182. Trans., 22 Apr. 1997, p. 51."

"307. Almost all Prosecution and Defence witness, including Mrs. Kayishema, who travelled throughout Kibuye Prefecture, testified that they encountered roadblocks. At these roadblocks the attackers used identification cards to distinguish between and to separate Hutus from Tutsis."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 123:

"123. Two facts, in particular, which suggest that it was indeed the Tutsi who were targeted should be highlighted: Firstly, at the roadblocks which were erected in Kigali immediately after the crash of the President's plane on 6 April 1994 and, later on, in most of the country's localities, members of the Tutsi population were sorted out. Indeed, at these roadblocks which were manned, depending on the situation, either by soldiers, troops of the Presidential Guard and/or militiamen, the systematic checking of identity cards indicating the ethnic group of their holders, allowed the separation of Hutu from Tutsi, with the latter being immediately apprehended and killed, sometimes on the spot. […]"

P.59. Evidence of the opinions of witnesses as to why victims were killed.

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 299, 304:

"299. On 12 April, the first person in Witness F’s neighbourhood was killed. Munazi, who was with other militant Hutu and members of the Interahamwe killed Nyirakagando, an elderly Tutsi. Witness F and others saw her dead body in the morning of 13 April, as they were fleeing their homes. Witness F stated that "the Hutus killed her because she was Tutsi."¹⁷⁹[…]"

"179. Trans., 22 Apr. 1997, p. 46."

"304. Witness C testified that two days after the President’s death people in Burunga, Mabanza commune started fleeing. She testified that attackers were attacking the Tutsi for being Tutsi and burning their houses. She explained that there was no apparent reason for these attacks besides these persons’ ethnicity. […]"

2.4.3. Exculpatory evidence.

P.60. Exculpatory: Evidence of different basis on which victims were targeted.

P.60.1. Evidence that victims were targeted to defeat rebel groups.

A. Legal source/authority and evidence:

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, paras. 513 – 514:

[B. Evidentiary comment:]

P.60.2. Evidence that victims were targeted to steal property only.

A. Legal source/authority and evidence:

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 517:

"517. Furthermore, it has been reported by a reliable source that one inhabitant of the Jabir Village (situated about 150 km from Abu Shouk Camp) was among the victims of an attack carried out by Janjaweed on 16 March 2004 on the village. He stated that he did not resist when the attackers took 200 camels from him, although they beat him up with the butt of their guns. Instead, prior to his beating, his young brother, who possessed only one camel, had resisted when the attackers had tried to take his camel, and had been shot dead. Clearly, in this instance the special intent to kill a member of a group to destroy the group as such was lacking, the murder being only motivated by the desire to appropriate cattle belonging to the inhabitants of the village. Irrespective of the motive, had the attackers’ intent been to annihilate the group, they would not have spared one of the brothers."

[B. Evidentiary comment:]

P.61. Exculpatory: Evidence that members of the group were not made the victim of genocidal acts.

A. Legal source/authority and evidence:

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 515 – 516:

516. Another element that tends to show the lack of genocidal intent is the fact that in contrast with other instances described above, in a number of instances villages with a mixed composition (African and Arab tribes) have not been attacked. This for instance holds true for the village of Abaata (north-east of Zelingei, in Western Darfur), consisting of Zaghawa and members of Arab tribes."

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