Table of contents
Element
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. 572, 574 – 576:
572. The Trial Chamber finds that the elements for the crime extermination are as follows:
1912. See, e.g., http//www.legal-tools.org/doc/1a994b/Krnojelac Trial Judgement, para. 324; Krstic Trial Judgement para. 485; http//www.legal-tools.org/doc/33ecfb/Stakic Trial Judgement paras 641-642. The Stakic Trial Chamber clarified that the intent required for the crime of extermination should be the same as the mens rea of murder as a crime against humanity, namely dolus directus or dolus eventualis, and does not include a threshold of negligence or gross negligence. http//www.legal-tools.org/doc/33ecfb/Stakic Trial Judgement para. 642.
574. As mentioned above, the mens rea required for the crime of extermination consists of the intent to kill persons on a massive scale or to inflict serious bodily injury or create conditions of life that lead to the death of a large number of individuals.1916
575. Both the Blagojevic and Jokic Defence refer to the definition of extermination adopted by the Vasiljevic Trial Chamber, which considered that in addition to the intent to cause the death of a large number of individuals, the crime of extermination requires that the perpetrator "must also have known of the vast scheme of collective murder and have been willing to take part therein."1917 The Prosecution does not make reference to this purported element in its submissions.
576. The Appeals Chamber held in the Krstic case that extermination does not require the proof of a plan or policy to carry out the underlying act, adding that the presence of such a plan or policy may be important evidence of the widespread or systematic nature of the attack.1918 In view of this holding, the Brdanin Trial Chamber recently found that "the Vasiljevic ‘knowledge that [the offender’s] action is part of a vast murderous enterprise in which a larger number of individuals are systematically marked for killing or killed’, if proven, will be considered as evidence tending to prove the accused’s knowledge that his act was part of a widespread or systematic attack against a civilian population, and not beyond that."1919 This Trial Chamber endorses this view and does not consider the existence of a " vast scheme of collective murder" or "vast murderous enterprise" as a separate element of the crime nor as an additional layer of the mens rea required for the commission of the crime.
1916. The Trial Chamber concurs with the http//www.legal-tools.org/doc/4c3228/Brdjanin Trial Judgement that among the conditions created to cause death are the depravation of food and medicine. http//www.legal-tools.org/doc/4c3228/Brdjanin Trial Judgement, para. 389.
1917. Blagojevic Final Brief, para. 132 and Jokic Final Brief, para. 290, referring to http//www.legal-tools.org/doc/8035f9/Vasiljevic Trial Judgement, paras 228-229. It appears that the http//www.legal-tools.org/doc/8035f9/Vasiljevic Trial Judgement uses the terms "vast scheme of collective murder" and "vast murderous enterprise" interchangeably.
1918. http//www.legal-tools.org/doc/86a108/Krstic Appeal Judgement, para. 225, referring to http//www.legal-tools.org/doc/029a09/Kunarac Appeal Judgement, para. 98.
1919. http//www.legal-tools.org/doc/4c3228/Brdjanin Trial Judgement, para. 394 (emphasis added)."
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras 393 – 394:
"393. The third approach was adopted by the Vasiljevic Trial Chamber. The threshold for mens rea of extermination was defined as follows:
The question arises whether the mens rea for extermination entails an additional element vis-à-vis the second approach formulated by the Krstic and Stakic Trial Chambers, namely the requirement to prove ‘knowledge of a vast murderous enterprise’.
394. The Trial Chamber recalls what it had stated in its Rule 98bis decision regarding the elements required for the crime of extermination, namely, that the Vasiljevic approach was being preferred for the sole purpose of the Rule 98bis exercise because it is more beneficial to the accused.934 Since then, the http//www.legal-tools.org/doc/86a108/Krstic Appeal Judgement has crystallised the legal position on the matter in stating that for the purpose of extermination, no proof is required of the existence of a plan or policy to commit that crime.935 In its decision, the Appeals Chamber added that the presence of such a plan or policy may be important evidence that the attack against a civilian population was widespread or systematic.936 In view of this pronouncement, the Trial Chamber makes it clear that the Vasiljevic "knowledge that his action is part of a vast murderous enterprise in which a larger number of individuals are systematically marked for killing or killed"937, if proven, will be considered as evidence tending to prove the accused’s knowledge that his act was part of a widespread or systematic attack against a civilian population, and not beyond that.
933. http//www.legal-tools.org/doc/8035f9/Vasiljevic Trial Judgement , para. 229 (Emphasis added).
934. See Rule 98bis Decision, para. 78.
935. http//www.legal-tools.org/doc/86a108/Krstic Appeal Judgement , para. 225.
936. Ibid.
937. http//www.legal-tools.org/doc/8035f9/Vasiljevic Trial Judgement , para. 229."
Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 641, 656, 876:
"641. Turning now to the mental element, this Trial Chamber finds that the mens rea required for extermination is that the perpetrator intends to kill persons on a massive scale or to create conditions of life that lead to the death of large numbers of individuals. This includes the requirement that the perpetrator’s mental state encompasses all objective elements of the crime: the annihilation of a mass of people."
"656. The Trial Chamber is satisfied that the Accused possessed the requisite intent to kill, including the intent to cause serious bodily harm in the reasonable knowledge that it was likely to result in death.1304 However, this intent must also cover the killings of a large number of targeted individuals. The Trial Chamber will now evaluate the evidence presented in these respects."
"1304. See supra Section III. E. 2. (b) (ii)"
"876. […]Moreover, extermination requires the intent to annihilate a mass of people. […]"
Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 341:
"341. […] Accordingly, the Chamber finds that the mental element for extermination is the intent to perpetrate or participate in a mass killing.
Bagilishema, Judgement, TC, para. 89; http//www.legal-tools.org/doc/6164a4/Kayishema and Ruzindana, Judgement, TC, para. 144.
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 147:
"147. An actor may be guilty of extermination if he kills, or creates the conditions of life that kills, a single person providing the actor is aware that his act(s) or omission(s) forms part of a mass killing event.86 […]"
"86. Trans., 17 April 1997, p.11"
P.21. Evidence of involvement in the planning of the mass killing.
A. Legal source/authority and evidence:
Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D, Judgement (TC), 31 May 2012, para. 1786:
1786. The Chamber has also found Nzabonimana guilty of genocide for instigating the killing of Tutsis taking refuge at the Nyabikenke commune office (4.2.3.2). Based upon the same reasoning, the Chamber finds that the principal perpetrators possessed the intent to commit extermination, that Nzabonimana knew of this intent and that he intended for extermination to be committed.
Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 656-661:
"656. The Trial Chamber is satisfied that the Accused possessed the requisite intent to kill, including the intent to cause serious bodily harm in the reasonable knowledge that it was likely to result in death.1304 However, this intent must also cover the killings of a large number of targeted individuals. The Trial Chamber will now evaluate the evidence presented in these respects.
657. As a preliminary point, the Trial Chamber reiterates its opinion that the "Kozarski Vjesnik" weekly was the voice of the Serb authorities and that the opinions expressed therein, particularly if published by the Crisis Staff or other Serb municipal authorities, can be considered to have been known by the Accused and the other participants in the bodies over which he presided.1305 The Trial Chamber also stresses its earlier finding that the Serb authorities under the leadership of the Accused created an atmosphere of terror and impunity in the Municipality of Prijedor, where widespread criminal behaviour not only went unpunished but was also tacitly condoned by the authorities provided the perpetrator was loyal to the Serb cause.1306
658. The preparations for the takeover of power show how tightly intertwined the Serb civilian, police, and military authorities were.1307 The evidence also shows that the Accused, as President of the People’s Defence Council, was the key co-ordinator between these authorities and that this body under his direction repeatedly acted upon issues fundamental to the defence of the Serb municipality, such as reinforcements of and mobilisation into the TO and the 343rd Motorised Brigade. As has been found earlier, the Accused was keenly aware of his own role in the events and had a very clear opinion1308 about whom he and his fellow Serbs were fighting against.1309 It is appropriate here to once again cite the Accused’s own words, which clearly show his conviction that all non-Serbs who did not want to pledge allegiance to the Serb authorities were considered "extremists":
The Trial Chamber recalls in this connection the Accused’s statement to the British Channel 4. Well aware that he was being interviewed on international television, the Accused stated that he was informed by the Chief of the SJB, Simo Drljaca, about deaths in the Omarska camp.1311
659. The closely coordinated co-operation between the various Serb authorities is furthermore shown by a "Kozarski Vjesnik" interview from May 1994 with Radmilo Zeljaja, then Colonel and commander of the 43rd Motorised Brigade in Prijedor.1312 Colonel Zeljaja stressed in particular the following:
660. The Trial Chamber has already discussed the coordinated co-operation between politicians, the police and the military, who are therefore mutually responsible for all foreseeable crimes committed under their jurisdiction.
661. Killings were perpetrated on a massive scale against the non-Serb population of Prijedor municipality. The lives of the non-Serb population were of very little, if any, value to the Serb perpetrators. The Trial Chamber has found that the Accused, because of his political position and role in the implementation of the plan to create a purely Serb municipality, was familiar with the details and the progress of the campaign of annihilation directed against the non-Serb population. Dr. Stakic was aware of the killings of non-Serbs and of their occurrence on a massive scale. The Trial Chamber is therefore convinced that the Accused acted with the requisite intent, at least dolus eventualis, to exterminate the non-Serb population of Prijedor municipality in 1992 and finds the Accused guilty of this crime, punishable under Article 5(b) of the Statute."
1304. See supra Section III. E. 2. (b) (ii)
1305. See supra Section I. D. 2. (d) (i)
1306. See supra Section III. E. 2. (b) (ii)
1307. See supra Section I. D. 1.
1308. Exh. S187, p.4.
1309. See supra Section III. B. 2. (b) (iii)
1310. Exh. S187, p.4, see supra para. 497.
1311. See supra para. 597.
1312. Exh. S274, emphasis added."
Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC) 16 May 2003, para. 453:
"453. Taking into consideration the Accused’s leadership role in attacks against Tutsi, his acts of shooting at Tutsi refugees, his procurement of weapons and gendarmes for attacks against Tutsi, his characterization of the old man and young boy as "Inyenzi" or "Tutsi", and the evidence discussed in paragraphs 416-418 above, the Chamber finds that the Accused intended to kill Tutsi civilians and knew that his acts were part of a widespread and systematic attack against the civilian Tutsi population on ethnic grounds."
http://www.legal-tools.org/doc/d0a544/Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 350, 374:
"350. The Trial Chamber finds, beyond a reasonable doubt that Kayishema knew or must have known that an attack was about to occur. This is because Kayishema stated that he had received orders from Kigali to kill Tutsis, he initiated the attack on 17 April, and he gave orders for the attack to begin. It follows, therefore, that Kayishema had the requisite knowledge. Kayishema was seen at the Complex twice before the attacks of 17 April and knew or must have known from the massive number of armed attackers that, in the circumstances of Kibuye Prefecture at the time, there was potential for a massacre to occur. Indeed, because smaller scale attacks had occurred there on the 15 and 16 April, Kayishema must have been aware of the potential for further attacks. Furthermore, as shown above in paragraph 28 of the Indictment, the Complex massacres followed the massacre at Mubuga Church where Kayishema had played a major role by initiating a systematic pattern of extermination within Kibuye. For these reasons, the Prosecution proved the allegations in paragraph 27."
"374. Paragraph 34 of the Indictment alleges that people under Kayishema’s control, surrounded the Stadium and prevented people from leaving at a time when Kayishema knew the attack was going to occur. The evidence of Prosecution witnesses I, K, L and M, discussed above, is sufficient to show that after those seeking refuge had gathered in the Stadium, it was surrounded by people under Kayishema’s control, including gendarmes. Witnesses I, K, L, M and O, testified that gendarmes prevented persons from leaving the Stadium from about 16 April 1994. Kayishema himself accepted that gendarmes were controlling the movement of people in and out of the Stadium. Furthermore, the Stadium massacre followed the massacres at Mubuga Church and Catholic Church, Home St. John. Indeed, a systematic pattern of extermination existed which is a clear demonstration of the specific intent to destroy Tutsis within Kibuye Prefecture in whole or in part. The evidence shows that Kayishema played a major role within this system. For these reasons, the Trial Chamber finds that at the time when the Tutsi were prevented from leaving, Kayishema knew or had reason to know that an attack on the Stadium was going to occur."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4, Judgment (TC), 2 September 1998, para 182:
"182. The Indictment alleges that the killings in Taba were openly committed and so widespread that the Accused must have known about them. A number of witnesses, including Witness PP and Witness V, testified that they informed the Accused of the killings which were taking place in Taba. Others, such as Witness NN, testified that the Accused was present at the bureau communal and elsewhere when killings took place, and that he witnessed these killings. Others, including Witness KK, Witness NN, Witness G, Witness W, Witness J, Witness C, Witness JJ and Witness V, have testified that the Accused supervised and actively participated in the killings. The Accused himself acknowledged that he knew such killings were taking place. He testified that he was told that there were killings everywhere in Taba, and that it was the Tutsi who were being killed. He stated that on 19 April 1994, killings spread to most of the commune of Taba. The issue is not contested, and it has been established that the Accused knew that killings were taking place and were widespread in Taba during the period in question."
Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, paras. 701-705:
"701. The Trial Chamber found that Beara possessed the mens rea for extermination since he participated in the JCE to Murder, which involved large-scale murders as its common purpose or as a natural and foreseeable consequence.2012 The Trial Chamber found that Beara’s contribution to the common purpose of the JCE to Murder was significant and that “his actions and words” demonstrated beyond any doubt that “he shared the intent to murder on a massive scale”.2013 The Appeals Chamber notes that this finding also fulfils the intent required for the crime of extermination.2014"
2012. Trial Judgement, para. 1325.
2013. Trial Judgement, para. 1301.
2014. Lukic and Lukic Appeal Judgement, para. 536 (“The mens rea of extermination requires the intention of the perpetrator ‘to kill on a large scale or to systematically subject a large number of people to conditions of living that would lead to their deaths’.”).
"702. It is clear that the Trial Chamber did not infer Beara’s role in the planning of the killing operation, or his involvement in events prior to 13 July 1995, based only on his position in the VRS hierarchy and the conduct of his subordinates. The Appeals Chamber notes that the Trial Chamber considered Beara’s position as Chief of Security for the VRS Main Staff in relation to, and in conjunction with, evidence that, as of the morning of 12 July 1995, Popovic and M. Nikolic – both subordinates of Beara – were aware of the murder operation as well as the fact that the orders for the operation were given by Mladić.2015 The Trial Chamber also took into account the role played by members of the Security Branch “from the beginning”.2016 The Appeals Chamber additionally notes the finding of the Trial Chamber that “[a]s officer in charge of the security organs in the VRS, Beara had to be apprised of the subordinate security organs’ work to provide guidance and evaluate and monitor their work”.2017 In view of these findings, and in the absence of any contrary evidence, the Appeals Chamber finds that Beara has failed to show that a reasonable trier of fact could not have come to this conclusion. His argument is dismissed."
2015. Trial Judgement, paras 139, 1299.
2016. Trial Judgement, para. 1299.
2017. Trial Judgement, para. 1206.
"703. Turning to Beara’s contention that his own orders did not involve the killing operation, the Appeals Chamber considers that since Beara was convicted of the crime of extermination based on his participation in the JCE to Murder and not based on ordering, it is irrelevant whether his conduct amounted to the issuance of direct orders to murder.2018 To the extent that Beara argues that evidence of his own actions militates against the Trial Chamber’s finding that he shared the intent to kill, the Appeals Chamber finds no support for this contention in the references to which he cites.2019 The argument is thus dismissed."
2018. See also infra, paras 1843-1844.
2019. See Beara’s Appeal Brief, para. 286, referring to his ground of appeal 23, which in relevant part, in para. 255, refers to Trial Judgement, paras 1257, 1267, 1278-1279.
"704. As to Beara’s argument that he was not present at meetings when “concrete organizational matters” were discussed, the Appeals Chamber notes that Beara refers to just one meeting on 14 July 1995. In this regard, the Trial Chamber accepted the evidence of PW-162/Davidovic that he had a meeting with officers at the Bratunac SDS Offices about procuring construction machinery from the brickworks in Bratunac municipality (“Bratunac SDS Offices Meeting”), that Beara remained in another office during this time, and that the subject matter of this conversation was not discussed with Beara. 2020 However, the Trial Chamber found that soon after the Bratunac SDS Offices Meeting, Beara himself went to the brick factory in Bratunac where he had a confrontation with Witness Deronjic about the potential detention and killings of prisoners at the site.2021 Thus even if Beara was not present during the Bratunac SDS Offices Meeting, a reasonable trier of fact could have found that “the evidence demonstrates Beara’s overarching responsibility for and participation in the killing operation carried out in pursuance of the common purpose” of the JCE to Murder.2022 Beara’s argument therefore has no merit."
2020. Trial Judgement, para. 1274.
2021. Trial Judgement, para. 1275.
2022. Trial Judgement, para. 1301.
"705. Regarding Beara’s contention that the Trial Chamber accorded little or no weight to exculpatory evidence of his “true intent”, the Appeals Chamber recalls that it has upheld the Trial Chamber’s finding that the evidence of BSF efforts to screen the men in Poto~ari did not indicate a legitimate screening operation.2023 Hence, the Appeals Chamber is not persuaded that such evidence runs contrary to the Trial Chamber’s finding that Beara had the intent to exterminate. With regard to Beara’s argument as to his efforts to organise transportation of the detained men out of the enclave, the Appeals Chamber has found that the Trial Chamber properly considered the evidence of his conversation with Čelanović on 13 July 1995 and that Beara has failed to demonstrate how the Trial Chamber’s finding was unreasonable in light of the entirety of the evidence.2024 With respect to Beara’s suggestion that the Trial Chamber accorded little or no weight to evidence showing that he detained the Bosnian Muslim men for exchange rather than execution, the Appeals Chamber notes that the finding that Beara relies upon concerns an intercepted conversation of 1 August 1995 regarding Bosnian Muslim men whom the VRS caught while crossing the Drina River.2025 This finding concerns an incident that took place two weeks after the events of 13- 16 July 1995 and thus has no direct relevance to his intent during this period."
2023. See supra, para. 565.
2024. See infra, para. 1208.
2025. Trial Judgement, para. 1291.
P.22. Evidence of knowledge of previous attacks.
A. Legal source/authority and evidence:
"350. The Trial Chamber finds, beyond a reasonable doubt that Kayishema knew or must have known that an attack was about to occur. This is because Kayishema stated that he had received orders from Kigali to kill Tutsis, he initiated the attack on 17 April, and he gave orders for the attack to begin. It follows, therefore, that Kayishema had the requisite knowledge. Kayishema was seen at the Complex twice before the attacks of 17 April and knew or must have known from the massive number of armed attackers that, in the circumstances of Kibuye Prefecture at the time, there was potential for a massacre to occur. Indeed, because smaller scale attacks had occurred there on the 15 and 16 April, Kayishema must have been aware of the potential for further attacks. Furthermore, as shown above in paragraph 28 of the Indictment, the Complex massacres followed the massacre at Mubuga Church where Kayishema had played a major role by initiating a systematic pattern of extermination within Kibuye. For these reasons, the Prosecution proved the allegations in paragraph 27."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4, Judgment (TC), 2 September 1998, para 182:
"182. The Indictment alleges that the killings in Taba were openly committed and so widespread that the Accused must have known about them. A number of witnesses, including Witness PP and Witness V, testified that they informed the Accused of the killings which were taking place in Taba. Others, such as Witness NN, testified that the Accused was present at the bureau communal and elsewhere when killings took place, and that he witnessed these killings. Others, including Witness KK, Witness NN, Witness G, Witness W, Witness J, Witness C, Witness JJ and Witness V, have testified that the Accused supervised and actively participated in the killings. The Accused himself acknowledged that he knew such killings were taking place. He testified that he was told that there were killings everywhere in Taba, and that it was the Tutsi who were being killed. He stated that on 19 April 1994, killings spread to most of the commune of Taba. The issue is not contested, and it has been established that the Accused knew that killings were taking place and were widespread in Taba during the period in question."
P.23. Evidence of knowledge of preparations for massacre.
A. Legal source/authority and evidence:
"350. The Trial Chamber finds, beyond a reasonable doubt that Kayishema knew or must have known that an attack was about to occur. This is because Kayishema stated that he had received orders from Kigali to kill Tutsis, he initiated the attack on 17 April, and he gave orders for the attack to begin. It follows, therefore, that Kayishema had the requisite knowledge. Kayishema was seen at the Complex twice before the attacks of 17 April and knew or must have known from the massive number of armed attackers that, in the circumstances of Kibuye Prefecture at the time, there was potential for a massacre to occur. Indeed, because smaller scale attacks had occurred there on the 15 and 16 April, Kayishema must have been aware of the potential for further attacks. Furthermore, as shown above in paragraph 28 of the Indictment, the Complex massacres followed the massacre at Mubuga Church where Kayishema had played a major role by initiating a systematic pattern of extermination within Kibuye. For these reasons, the Prosecution proved the allegations in paragraph 27."
P.24. Evidence that the mass killings were widespread and openly committed.
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4, Judgment (TC), 2 September 1998, para 182:
"182. The Indictment alleges that the killings in Taba were openly committed and so widespread that the Accused must have known about them. A number of witnesses, including Witness PP and Witness V, testified that they informed the Accused of the killings which were taking place in Taba. Others, such as Witness NN, testified that the Accused was present at the bureau communal and elsewhere when killings took place, and that he witnessed these killings. Others, including Witness KK, Witness NN, Witness G, Witness W, Witness J, Witness C, Witness JJ and Witness V, have testified that the Accused supervised and actively participated in the killings. The Accused himself acknowledged that he knew such killings were taking place. He testified that he was told that there were killings everywhere in Taba, and that it was the Tutsi who were being killed. He stated that on 19 April 1994, killings spread to most of the commune of Taba. The issue is not contested, and it has been established that the Accused knew that killings were taking place and were widespread in Taba during the period in question."
[1] See supra Section I. E. 3. (b)
[2] See supra Section I. E. 3. (h)
[3] See supra Section I. E. 3. (b)
[4] See supra Section I. E. 3. (h)
