Table of contents
P.15. Evidence of the perpetrator’s active participation in the attack
P.16. Evidence of the perpetrator’s military rank as a commander
P.17. Evidence of the scope of the perpetrator’s activities/roles during the attack
P.18. Evidence of the perpatrator’s participation in the oath-taking ceremony
P.19. Evidence of the perpetrator’s presence in the area of the attack
P.20. Evidence of the authority exercised by the perpetrator
P.21. Evidence of the perpetrator’s awareness of the wider background to the attack
P.24. Not required: Evidence of persecutory plan or policy
P.27. Evidence of the victim who personally carry the criteria of the group
6.2. Discriminatory intent to target the group or collectivity as such
P.29. Evidence of the perpetrator’s active participation in the attack
P.30. Evidence of the perpetrator’s military rank as a commander
P.31. Evidence of the scope of the perpetrator’s activities/roles during the attack
P.32. Evidence of the perpatrator’s participation in the oath-taking ceremony
P.33. Evidence of the perpetrator’s presence in the area of the attack
P.34. Evidence of the authority exercised by the perpetrator
P.35. Evidence of the perpetrator’s awareness of the wider background to the attack
P.38. Not required: Evidence of persecutory plan or policy
P.41. Evidence of the victim who personally carry the criteria of the group
P.43. Evidence of explicit statements made by alleged perpetrators.
Element
Prosecutor v. Vlastimir Dorđević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, para. 203:
"203. The Appeals Chamber considers that the fact that people not belonging to the targeted group were affected by attacks of the Serbian forces against the Kosovo Albanian population does not deprive such conduct of its discriminatory character. 616 […]"
616 Cf. Krnojelac Appeal Judgement, para. 185.
273. The Chamber observes that the evidence indicates that the Network perpetrators killed and forcibly displaced persons primarily belonging to the Kikuyu, Kamba and Kisii communities on the basis that they were perceived as PNU supporters. In this respect, the Chamber recalls what has been stated in paragraph 172 above, namely that the criterion used by the Network perpetrators to identify and attack their victims was, in essence, their perceived political affiliation to the PNU. The Chamber wishes to stress that, based on the evidence. Network perpetrators also targeted members of other communities, including Kalenjin, believed to be siding with the PNU. Testimonies of various witnesses who attended preparatory meetings consistently indicate that members of the Network, including Mr. Ruto, made speeches and instructed perpetrators to target Kikuyu, Kamba and Kisii on the basis that "these people [...] don't vote for us the only thing is to kill them and evict them from the Rift Valley". Most of these witnesses were also present on the ground immediately before and during the attack to the target locations, and stated that local leaders coordinating the groups of raiders instructed the perpetrators to "attack the kikuyu because they stole the votes", or said that after the Kikuyu had fled or been killed, the target was "those who were supporting Kibaki" ."
http//www.legal-tools.org/doc/e1ae55/Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 235:
"235. The perpetrator of the acts of persecution does not initially target the individual but rather membership in a specific racial, religious or political group."
P.16. Evidence of the perpetrator’s active participation in the attack
P.17. Evidence of the perpetrator’s military rank as a commander
P.18. Evidence of the scope of the perpetrator’s activities/roles during the attack
P.19. Evidence of the perpatrator’s participation in the oath-taking ceremony
P.20. Evidence of the perpetrator’s presence in the area of the attack
P.21. Evidence of the authority exercised by the perpetrator
P.22. Evidence of the perpetrator’s awareness of the wider background to the attack
Prosecutor v. Vlastimir Dorđević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, para. 893:
"893. As set out above, the other two young women from Beleg were held in the same house as Witness K20 and Witness K58, and were taken to a nearby house together with Witness K20 on the evening of the sexual assault.2641 The circumstances surrounding the sexual assaults of the other two women are therefore the same as those regarding Witness K20’s rape. This includes, in particular, evidence regarding: (i) the clear discriminatory nature of comments made by members of the Serbian forces to the three women as they were standing in the courtyard, (ii) comments made to the group of women and children, (iii) the fact that the perpetrators were members of the Serbian forces who were also involved in the forcible transfer of Kosovo Albanians, (iv) the fact that both women were Kosovo Albanian, and (v) the fact that their sexual assaults took place in the context of their forcible transfer.2642 The Appeals Chamber, Judge Tuzmukhamedov dissenting, therefore finds that the only reasonable inference that can be drawn from the evidence is that the perpetrators acted with discriminatory intent when they sexually assaulted the other two young women. Like for Witness K20’s perpetrators, the fact that they may have also been motivated by personal motives, does not affect the conclusion that they acted with the intent to discriminate."
"895. The Appeals Chamber considers that Witness K14’s rape, like those of Witness K20 and the two other young women in Beleg, took place in the context of a systematic campaign of terror and violence involving the commission of numerous persecutory acts against Kosovo Albanians,2658 and aimed at creating conditions of terror and fear so as to force the Kosovo Albanians out of Kosovo. 2659 The Appeals Chamber notes that Witness K14 actually fled as a result of her rape, fearing further sexual harassment.2660 The Appeals Chamber further notes that Witness K14 was Kosovo Albanian and the perpetrators of her sexual assault were persons in a position of authority and members of the Serbian forces who also carried out the general attack on the Kosovo Albanian people.2661 Given the specific and contextual circumstances surrounding Witness K14’s rape, the Appeals Chamber, Judge Tuzmukhamedov dissenting, is satisfied that the only reasonable inference is that the perpetrators acted with discriminatory intent. In this regard, the Appeals Chamber, Judge Tuzmukhamedov dissenting, considers that, even if it were to be assumed that the policemen were also motivated by sexual desire, the decision to rape Witness K14 arose out of a will to discriminate against her on ethnic grounds."
"897. The Kosovo Albanian girl’s sexual assault took place in the context of the systematic campaign of terror and violence involving the commission of numerous persecutory acts against Kosovo Albanians,2667 and aimed at forcing them out of Kosovo.2668 The girl in a convoy was sexually assaulted while she and other Kosovo Albanians sought safety, and were travelling in a convoy along a road lined with Serbian forces.2669 The Appeals Chamber, Judge Tuzmukhamedov dissenting, finds that the specific and contextual circumstances surrounding the commission of this sexual assault demonstrate that the only reasonable inference was that it was carried out with discriminatory intent. Whether the perpetrators also acted out of sexual desire does not alter this conclusion. It particularly notes that the girl was travelling in a convoy with other fleeing Kosovo Albanians, who were systematically harassed by Serbian forces standing along the road while the convoy passed. The girl’s sexual assault cannot be viewed separately from these circumstances."
2641 See supra, paras 866, 890.
2642 See supra, paras 866-869, 889-891; Trial Judgement, paras 1150-1151.
2658 See Trial Judgement, paras 817-832, 1649-1650, 1777-1778, 1790, 1811, 1819, 1825, 1832, 1837, 1841, 1850, 1854-1856, 2027-2035, 2129-2130; supra, paras 866-869, 889-891. See supra, Sections XVI.B, XVII.B. The Appeals Chamber notes that the Trial Chamber found that during this campaign, Kosovo Albanians were specifically targeted on the basis of their ethnicity (see Trial Judgement, paras 1649-1650, 1777-1778, 1781, 1783).
2659 Trial Judgement, paras 1649-1650, 1791, 1793, 2007, 2035, 2126, 2128-2130, 2143-2144.
2660 Trial Judgement, paras 838, and references cited therein.
2661 Trial Judgement, paras 834-835, 1597-1598, 1601, 1791, 1793, 2027-2029, 2036-2051.
2667 See Trial Judgement, paras 817-832, 1649-1650, 1777-1778, 1790, 1811, 1819, 1825, 1832, 1837, 1841, 1850, 1854-1856, 2027-2035, 2129-2130; supra, para. 859. See supra, Sections XVI.B, XVII.B. The Appeals Chamber notes that the Trial Chamber found that during this campaign, Kosovo Albanians were specifically targeted on the basis of their ethnicity (see Trial Judgement, paras 1649-1650, 1777-1778, 1781, 1783).
2668 Trial Judgement, paras 1649-1650, 1791, 1793, 2007, 2035, 2126, 2128-2130, 2143-2144.
2669 Trial Judgement, paras 817-832, 1597-1598, 1601, 1792, 2027-2029, 2036-2051; supra, paras 857, 859.
A. Legal source/authority and evidence:
http//www.legal-tools.org/doc/5c6a53/Prosecutor v. Zoran Kupreškić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, paras. 770-784:
"2. Zoran Kupreskic
(a) Count 1
770. The accused, together with his brother Mirjan Kupreskic, was charged with persecution as a crime against humanity pursuant to Article 5(h) of the Statute under count 1 of the indictment.
771. The Trial Chamber has defined the actus reus of persecution under Article 5(h) of the Statute as the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5 of the Statute. As a crime against humanity the common prerequisites of a link with an armed conflict, a widespread or systematic attack on a civilian population in furtherance of a systematic policy, and the grave nature of the offences also apply. The requisite mens rea is the intent to discriminate, to attack persons on account of their racial or religious characteristics or political affiliation as well as knowledge of the widespread or systematic nature of the attack on civilians.
772. The mode of participation in the wider sense under Article 7(1) of the Statute and as charged in the indictment is either direct commission by the accused, i.e . as the sole perpetrator or as a co-perpetrator, or as an aider and abettor. The definition for both categories was recently given by the Appeals Chamber in its http//www.legal-tools.org/doc/8efc3a/Judgement in Tadic of 15 July 1999.The Prosecutor v. Ante Gotovina et al., Case No. ICTR-06-90, Judgement (TC), 15 April 2011, para. 1875-1876:
1875. The Trial Chamber also considered incidents in which the perpetrators used derogatory ethnic terms and called the victims or members of their family "Chetnik". For example, the perpetrators of the plunder of ?urdija Amanović’s property in Vrbnik, Orlić municipality, accused her sons of being "Chetniks" and in relation to the incidents of plunder after 5 August 1995 in Čolovići, Orlić municipality, one perpetrator referred to the victim’s mother as "Chetnik".
1876. The Trial Chamber further considered incidents in which houses marked as Croatian were spared from plunder. This included houses on the Knin-Drniš road which had Croatian markings on them (see chapter 4.2.15 (Knin-Drniš road)). As set out in chapter 4.2.9 (Knin town), in Knin town it was a common sight that houses were marked as "Croatian house" etc. so as to prevent it from being looted, although that did not always make a difference for what then happened to the house. The Trial Chamber finds the widespread practice of marking houses in such a manner at the time to be an indicator that ethnic considerations were expected to play a considerable role for the motivation of the perpetrators at the time and is consistent with the selective destruction of Serb villages.
P.25. Not required: Evidence of persecutory plan or policy
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 110-112:
"110. The Appeals Chamber reiterates that the mens rea of the perpetrator carrying out the underlying physical acts of persecutions as a crime against humanity requires evidence of a "specific intent to discriminate on political, racial, or religious grounds." The requisite discriminatory intent may not be "inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity." However, the Appeals Chamber considers that the "discriminatory intent may be inferred from such a context as long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent."
111. Pursuant to the jurisprudence of the International Tribunal, the Appeals Chamber holds that a showing of a specific persecutory intent behind an alleged persecutory plan or policy, that is, the removal of targeted persons from society or humanity, is not required to establish the mens rea of the perpetrator carrying out the underlying physical acts of persecutions. The Appeals Chamber holds that the mens rea for persecutions "is the specific intent to cause injury to a human being because he belongs to a particular community or group." The Appeals Chamber stresses that there is no requirement in law that the actor possess a "persecutory intent" over and above a discriminatory intent."
"112. […] the Appeals Chamber considers that a person who orders, plans or instigates an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, plan or instigation, has the requisite mens rea for establishing liability under Article 7(1) of the Statute pursuant to ordering, planning or instigating. Ordering, planning or instigating with such awareness has to be regarded as accepting that crime. Thus, an individual who orders, plans or instigates an act with the awareness of a substantial likelihood that persecutions as a crime against humanity will be committed in the execution of the order, plan or instigation, may be liable under Article 7(1) of the Statute for the crime of persecutions."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 185:
"185. The Appeals Chamber notes that the Trial Chamber correctly defined the crime of persecution as it appears in paragraph 431 of the Judgment. It reads: "… the crime of persecution consists of an act or omission which discriminates in fact and which: denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea)."
Prosecutor v. Vlastimir Dorđević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, para. 876:
"876. The Appeals Chamber recalls that the crime of persecutions "requires evidence of a specific intent to discriminate on political, racial, or religious grounds and that it falls to the Prosecution to prove that the relevant acts were committed with the requisite discriminatory intent".2577 The Trial Chamber correctly stated that the requisite discriminatory intent cannot be inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity, however, it "may be inferred from such a context of the attack so long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent".2578 Circumstances that may be taken into consideration include the operation of a prison (in particular, the systematic nature of the crimes committed against a racial or religious group within that prison) and the general attitude of the alleged perpetrator of the offence as seen through his or her behaviour.2579 The Appeals Chamber further recalls that, if out of a group of persons selected on the basis of racial, religious, or political grounds, only certain persons are singled out and subjected to mistreatment, a reasonable trier of fact may infer that this mistreatment was carried out on discriminatory grounds."2580
2577 Krnojelac Appeal Judgement, para. 184.
2578 Trial Judgement, paras 1759-1760. See Blaškić Appeal Judgement, para. 164, citing Krnojelac Appeal Judgement, para. 184. See also Kordić and Čerkez Appeal Judgement, para. 110.
2579 Krnojelac Appeal Judgement, para. 184. There, the Appeals Chamber found that in a situation when only the non-Serb detainees in a prison were subjected to beatings and forced labour, it was reasonable to conclude that these acts were committed because of the political or religious affiliation of the victims, and that they were committed with the requisite discriminatory intent (Krnojelac Appeal Judgement, paras 186, 201-202, see also paras 236-237 regarding forcible displacement).
2580 Naletilić and Martinović Appeal Judgement, para. 572, referring to Kordić and Čerkez Appeal Judgement, where the Appeals Chamber found that in a situation in which all the guards belong to one ethnic group and all the prisoners to another, it could reasonably be inferred that the latter group was being discriminated against ( Kordić and Čerkez Appeal Judgement, para. 950); Kvocka et al. Appeal Judgement, where the Appeals Chamber stated that since almost all the detainees in the camp belonged to the non-Serb group, it could reasonably be concluded that the reason for their detention was membership of that group and that the detention was therefore of a discriminatory character (Kvocka et al. Appeal Judgement, para. 366).
A. Legal source/authority and evidence:
http://www.legal-tools.org/doc/173e23/The Prosecutor v. Radovan Karadžić, Public Redacted Version of Judgement Issued on 24 March 2016, para. 2514-2516:
"2514. Examples of such insults and taunts which the Chamber found were connected to these acts of cruel and inhumane treatment include the following. Detainees who were subject to beatings or mistreatment were called "balijasquot; and a quot;Turkish gang, a fictitious people, a non-existent people" and told that they would all be killed or exterminated. Other detainees were subject to similar ethnic slurs during the beating and mistreatment. In one incident a detainee was forced to run around the detention facility and swear at the detainees’ "balija mother". Some detainees were called "Ustasha" before or during their mistreatment. Detainees were also forced to sing "Chetnik" songs and to make the "Serb three-finger sign". Detainees were also taunted with political comments such as "You wanted a state: here is a state for you", "where is now your Alija to save you?", and "Where is Naser, your liberator?". Bosnian Muslims were told "there would be no balija state soon" and they were finished. The Chamber recalls that it found that during one rape, a Bosnian Muslim woman was told that "Muslim women should give birth to Serb children", and the perpetrator also said that Muslims were not human beings. The discriminatory nature of the conditions of detention was shown, for example, by the finding that in facilities where some Bosnian Serb detainees were also held, they received better food and did not suffer the extreme weight loss of non-Serb detainees.
"2515. In finding discriminatory intent for these acts of cruel and inhumane treatment, the Chamber also had regard to the surrounding circumstances in the Municipalities in the lead-up to, during, and after the take-over of the Municipalities including specific statements directed against the Bosnian Muslim population. In Foča for example, Bosnian Serb leaders made radio announcements that it was no longer possible for Bosnian Serbs to live with their Bosnian Muslim neighbours, that they could not be woken every morning by the hodza from the mosque, and that the "the time had come for the Serbs to settle accounts with the balijas once and for all, and that the Serbs would no longer allow their ribs to be broken. They will no longer allow their children to be circumcised". Similar radio broadcasts were made in Prijedor which referred to the destruction of the "balijas" and their property and mosques.
"2516. In addition, the Chamber found in Bratunac, for instance, that in the lead-up to the conflict, SDS members wrote slogans on street and traffic signs as well as on public and private property, which were derogatory towards Bosnian Muslims, including messages to the effect: "Muslims, Balijas, Turks move out, you’re going to be slaughtered". In Vlasenica, Bosnian Serb leaders declared that when BiH "was proclaimed a sovereign state, we will draw up our borders in blood". Similarly in Vlasenica, graffiti was written on the houses of prominent Bosnian Muslims saying "Ustasha", "Muslims out", "We will slaughter", "Out", and "This is Serb, this is Serbia". Bosnian Serb leaders in Vogošća said that "Muslims were simply going to disappear"."
Prosecutor v. Vlastimir Dorđević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 886-887:
"886. In order to find that the sexual assaults of the five young women amount to the crime of persecutions, the Appeals Chamber must be satisfied that the only reasonable inference is that the sexual assualts were carried out with the intent to discriminate on political, racial, or religious grounds. 2606 In this respect, the Appeals Chamber recalls that the requisite discriminatory intent cannot be inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity.2607 It may nevertheless be inferred from the context of the attack so long as, in the light of the facts of the case, circumstances surrounding the commission of the crime substantiate the existence of such intent. 2608 Furthermore, the case law shows that the fact that crimes occurred while the victims were - on discriminatory grounds - deported or detained prior to deportation, has been considered in order to infer discriminatory intent from the circumstances.2609
887.The Appeals Chamber further recalls that personal motive does not preclude a perpetrator from also having the requisite specific intent.2610 The Appeals Chamber emphasises that the same applies to sexual crimes, which in this regard must not be treated differently from other violent acts simply because of their sexual component. Thus, a perpetrator may be motivated by sexual desire but at the same time also possess the intent to discriminate against his or her victim on political, racial, or religious grounds.2611 Furthermore, the Appeals Chamber recalls that, although the crime of persecutions often refers to a series of acts, a single act may qualify as persecutions as long as it discriminates in fact and is carried out deliberately with the intention to discriminate on one of the listed grounds."2612
2606 Deronjić Judgement on Sentencing Appeal, para. 109; Blaškić Appeal Judgement, para. 131; Krnojelac Appeal Judgement, para. 185. See Trial Judgement, para. 1755.
2607 See Kvocka et al. Appeal Judgement, para. 366. See also Blaškić Appeal Judgement, para. 164, citing Krnojelac Appeal Judgement, para. 184; Kordić and Čerkez Appeal Judgement, para. 110.
2608 See Kvocka et al. Appeal Judgement, para. 366. See also Blaškić Appeal Judgement, para. 164, citing Krnojelac Appeal Judgement, para. 184; Kordić and Čerkez Appeal Judgement, para. 110.
2609 Krnojelac Appeal Judgement, paras 185-186; Kordić and Čerkez Appeal Judgement, para. 950; Kvocka et al. Appeal Judgement, paras 462-463; Naletelić and Martinović Appeal Judgement, para. 572.
2610 Kvocka et al. Appeal Judgement, para. 463; Krnojelac Appeal Judgement, para. 102; Jelisić Appeal Judgement, para. 49.
2611 See Kvocka et al. Appeal Judgement, para. 370 (where the Appeals Chamber considered that the Trial Chamber reasonably conclude that Radić acted with the required discriminatory intent when he committed rape and sexual violence against non-Serb women "notwithstanding his personal motives for committing these acts" (Kvocka et al. Appeal Judgement, para. 370). See also Kunarac et al. Appeal Judgement, para. 153 (where the Appeals Chamber held that even if the perpetrator’s motivation is entirely sexual, it does not follow that the perpetrator does not have the intent to commit an act of torture (Kunarac et al. Appeal Judgement, para. 153)); Jelisić Appeal Judgement, para. 49 (where the Appeals Chamber held that a perpetrator of the crime of genocide may act to obtain personal economic benefits, or political advantage or some form of power, but this does not preclude him or her from also having the specific intent to commit genocide (Jelisić Appeal Judgement, para. 49)).
2612 Kordić and Čerkez Appeal Judgement, para. 102, citing Blaškić Appeal Judgement, para. 135; Vasiljević Appeal Judgement, para. 113.
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 184:
"184.The Appeals Chamber reiterates that, in law, persecution as a crime against humanity requires evidence of a specific intent to discriminate on political, racial or religious grounds and that it falls to the Prosecution to prove that the relevant acts were committed with the requisite discriminatory intent. The Appeals Chamber may not hold that the discriminatory intent of beatings can be inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity. According to the Appeals Chamber, such a context may not in and of itself evidence discriminatory intent. Even so, the Appeals Chamber takes the view that discriminatory intent may be inferred from such a context as long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent. Circumstances which may be taken into consideration include the operation of the prison (in particular, the systematic nature of the crimes committed against a racial or religious group) and the general attitude of the offence’s alleged perpetrator as seen through his behaviour."
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 1250:
“1250. The Trial Chamber has examined the evidence and its findings in relation to each of the incidents of deportation and forcible transfer it found to have been committed in order to ascertain whether the particular principal perpetrators involved acted with discriminatory intent. In its assessment, the Trial Chamber considered its findings that in certain incidents the principal perpetrators introduced several discriminatory measures aimed specifically at marginalising the non-Serb population.2157 In particular, the principal perpetrators intimidated and terrorised their victims on the basis of their ethnicity,2158 including by engaging in criminal activities on a massive scale,2159 damaging or destroying their local worship places,2160 looting their houses,2161 threatening members of particular ethnicities that they would lose their jobs and be expelled,2162 dismissing persons or otherwise forcing them to leave their jobs and destroying the businesses of others on grounds of their ethnicity,2163 imposing curfews on members of these ethnicities or other restrictions on their freedom of movement,2164 and misappropriating the properties of victims belonging to a particular ethnicity after they were forced to leave or just before they were forced to leave.2165 The Trial Chamber has also considered that in certain incidents the principal perpetrators were specifically assigned to search for and detain persons on grounds of their ethnicity.2166 In a number of instances such persons were found to have been arbitrarily detained, at times on a large-scale and for considerable time,2167 ill-treated,2168 tortured,2169 sexually abused,2170 or forced to perform labour on grounds of their ethnicity.2171 The principal perpetrators’ discriminatory intent was evidenced by the fact that Serb detainees were released after their ethnicity had been established,2172 references that the arrests were made because of the victims’ ethnicity and for revenge,2173 the cursing of victims using derogatory terms associated with their ethnicity, as well as other attempts to insult them on ethnic grounds by forcing them, for instance, to sing “Chetnik songs” and curse their political leaders.2174 Notably, in one municipality detainees were beaten, sexually assaulted, tortured, and insulted all on the basis of their ethnicity, for instance one prisoner was beaten in his crotch and told that Muslims should not propagate.2175 In another municipality detainees were abused while being told that “the Croatian nation has to be destroyed” and “all Croats have to be killed”.2176 In a number of incidents, the principal perpetrators issued ultimatums that all members of a particular ethnicity had to leave their town immediately or would be killed,2177 and selected and transferred or organized the transfer of persons away in an effort to rid areas of members of that ethnicity.2178 In other instances, the Trial Chamber found that the attacks on specific towns were aimed at forcing the local population to leave in order to establish a purely Serb territory,2179 and in at least one incident the local population, referred to as “Ustašas”, was requested to leave so that the village could form part of a Greater Serbia.2180”
2157. See for instance findings in chapter 3.8.2.
2158. See for instance findings in chapters 3.1.7 and 3.3.1.
2159. See for instance findings in chapters 3.3.1, 3.5.2, 3.6.3, and 3.8.2.
2160. See for instance findings in 3.1.7, 3.2.6, 3.3.1, 3.5.2, 3.6.3, and 3.8.2.
2161. See for instance findings in chapters 3.1.7, 3.2.6, and 3.5.2.
2162. See for instance findings in chapter 3.3.1.
2163. See for instance findings in chapters 3.1.7, 3.5.2, 3.6.3, and 3.8.2.
2164. See for instance findings in chapters 3.1.7, 3.2.6, 3.5.2, and 3.8.2.
2165. See for instance findings in chapters 3.2.6, 3.3.1, 3.6.3, and 3.8.2.
2166. Findings in chapters 3.2.6, 3.5.2, and 3.8.2.
2167. Findings in chapters 3.1.7, 3.2.6, 3.4.2, and 3.5.2.
2168. Findings in chapters 3.1.7 and 3.2.6.
2169. Findings in chapters 3.1.7, 3.2.6, and 3.4.2.
2170. Findings in chapter 3.1.7.
2171. Findings in chapters 3.1.7, 3.5.2, and 3.8.2.
2172. Findings in chapter 3.2.6.
2173. Findings and evidence reviewed in chapter 3.2.6.
2174. Findings and evidence reviewed in chapters 3.1.7, 3.2.6, 3.5.2, and 3.8.2.
2175. Findings in chapter 3.4.2.
2176. Findings in chapter 3.1.7.
2177. Findings in chapter 3.8.2.
2178. See for instance findings in chapter 3.3.1, 3.5.2, and 3.8.2.
2179. See for instance findings and evidence reviewed in chapters 3.1.7 and 3.2.6.
2180. See findings on chapter 3.1.7.
P.28. Evidence of the victim who personally carry the criteria of the group
A. Legal source/authority and evidence:
http//www.legal-tools.org/doc/f2cfeb/Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 636:
"636. The targeted group does not only comprise persons who personally carry the (religious, racial or political) criteria of the group. The targeted group must be interpreted broadly1571, and may, in particular, include such persons who are defined by the perpetrator as belonging to the victim group due to their close affiliations or sympathies for the victim group. The Chamber finds this interpretation consistent with the underlying ratio of the provision prohibiting persecution, as it is the perpetrator who defines the victim group while the targeted victims have no influence on the definition of their status. The Chamber finds that in such cases, a factual discrimination is given as the victims are discriminated in fact for who or what they are on the basis of the perception of the perpetrator.1572
1571.The Chamber in the http//www.legal-tools.org/doc/34428a/Kvocka Trial Judgement held that also persons suspected of being members of the targeted group are covered as possible victims of discrimination and that, thus, a BH Serb, targeted on suspicion of sympathising with BH Muslims, could be the victim of persecution. It further held that the discrimination element was met in cases where the victim was suspected of belonging to the targeted group, even if the suspicion later proved inaccurate, http//www.legal-tools.org/doc/34428a/Kvocka Trial Judgement para 195.
1572.The Chamber thus respectfully disagrees with the interpretation of the http//www.legal-tools.org/doc/34428a/Kvocka Trial Judgement by the Chamber in the http//www.legal-tools.org/doc/1a994b/Krnojelac Trial Judgement where it held that the approach taken in Kvocka rejected the need for discriminatory consequences. The Chamber in Krnojelac found that the Statute does not expressly require that the discrimination take place against a member of the targeted group but that this is a necessary implication of the occurrence of an act or omission on a discriminatory basis; para 432. The Chamber generally agrees with the finding that the victim of persecution must be a member of the targeted group. It is, however, in disagreement with the overly narrow interpretation of the term "targeted group" apparently implied by the Chamber in Krnojelac as it appears to ignore the specific nature of the crime of persecution. In the view of the Chamber, a teleological interpretation of the element "discriminatory basis" demands to take into account the fact that the power to define the "targeted group" rests solely in the hands of the perpetrator group. If a certain person is defined by the perpetrator as belonging to the targeted group, this definition thus becomes "discriminatory in fact" for the victim as it may not be rebutted, even if such classification may be incorrect under objective criteria.
6.2. Discriminatory intent to targetthe group or collectivity as such
P.30. Evidence of the perpetrator’s active participation in the attack
P.31. Evidence of the perpetrator’s military rank as a commander
P.32. Evidence of the scope of the perpetrator’s activities/roles during the attack
P.33. Evidence of the perpatrator’s participation in the oath-taking ceremony
P.34. Evidence of the perpetrator’s presence in the area of the attack
P.35. Evidence of the authority exercised by the perpetrator
P.36. Evidence of the perpetrator’s awareness of the wider background to the attack
A. Legal source/authority and evidence:
http//www.legal-tools.org/doc/5c6a53/Prosecutor v. Zoran Kupreškić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, paras. 770-784:
"2. Zoran Kupreskic
(a) Count 1
770. The accused, together with his brother Mirjan Kupreskic, was charged with persecution as a crime against humanity pursuant to Article 5(h) of the Statute under count 1 of the indictment.
771. The Trial Chamber has defined the actus reus of persecution under Article 5(h) of the Statute as the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5 of the Statute. As a crime against humanity the common prerequisites of a link with an armed conflict, a widespread or systematic attack on a civilian population in furtherance of a systematic policy, and the grave nature of the offences also apply. The requisite mens rea is the intent to discriminate, to attack persons on account of their racial or religious characteristics or political affiliation as well as knowledge of the widespread or systematic nature of the attack on civilians.
772. The mode of participation in the wider sense under Article 7(1) of the Statute and as charged in the indictment is either direct commission by the accused, i.e . as the sole perpetrator or as a co-perpetrator, or as an aider and abettor. The definition for both categories was recently given by the Appeals Chamber in its http//www.legal-tools.org/doc/8efc3a/Judgement in Tadic of 15 July 1999.http://www.legal-tools.org/doc/738211/Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 110-112:
"110. The Appeals Chamber reiterates that the mens rea of the perpetrator carrying out the underlying physical acts of persecutions as a crime against humanity requires evidence of a "specific intent to discriminate on political, racial, or religious grounds." The requisite discriminatory intent may not be "inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity." However, the Appeals Chamber considers that the "discriminatory intent may be inferred from such a context as long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent."
111. Pursuant to the jurisprudence of the International Tribunal, the Appeals Chamber holds that a showing of a specific persecutory intent behind an alleged persecutory plan or policy, that is, the removal of targeted persons from society or humanity, is not required to establish the mens rea of the perpetrator carrying out the underlying physical acts of persecutions. The Appeals Chamber holds that the mens rea for persecutions "is the specific intent to cause injury to a human being because he belongs to a particular community or group." The Appeals Chamber stresses that there is no requirement in law that the actor possess a "persecutory intent" over and above a discriminatory intent."
"112. […] the Appeals Chamber considers that a person who orders, plans or instigates an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, plan or instigation, has the requisite mens rea for establishing liability under Article 7(1) of the Statute pursuant to ordering, planning or instigating. Ordering, planning or instigating with such awareness has to be regarded as accepting that crime. Thus, an individual who orders, plans or instigates an act with the awareness of a substantial likelihood that persecutions as a crime against humanity will be committed in the execution of the order, plan or instigation, may be liable under Article 7(1) of the Statute for the crime of persecutions."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 185:
"185. The Appeals Chamber notes that the Trial Chamber correctly defined the crime of persecution as it appears in paragraph 431 of the Judgment. It reads: "… the crime of persecution consists of an act or omission which discriminates in fact and which: denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea)."
A. Legal source/authority and evidence:
ICTY, The Prosecutor v. Jovica Stanišić and Franko Simatović, IT-03-69-T, Judgement (TC), 30 May 2013, para. 1245:
"1245. The Trial Chamber has examined the evidence and its findings in relation to each of the murders it found to have been committed in order to ascertain whether the particular principal perpetrators involved acted with discriminatory intent. In its assessment, the Trial Chamber has taken into consideration its findings that in certain instances the principal perpetrators targeted their victims specifically because of their ethnicity, as demonstrated by their questioning about ethnicity and subsequent release of Serb persons just before the killings took place. In relation to other instances, the Trial Chamber has found that the principal perpetrators called their victims "Ustashas" and stated that "no Ustashe should stay alive" or that they should all be slaughtered just before or right after killing them and, subsequently, explained the killings on grounds that they "hated all Ustashas" or "because the victims were Ustashas". Furthermore, in some instances the principal perpetrators were found to have insulted their victims on the basis of their non-Serb ethnicity, for instance by cursing their "Ustasha" or "balija" mothers, immediately before the victims were murdered. In other instances the Trial Chamber has considered that the principal perpetrators, who had shown discriminatory intent by their explicit discriminatory statements made before killing their victims, were also found to have participated in other murder incidents targeting victims of the same ethnicity. In such cases, the Trial Chamber infers that the victims of the other incidents have also been specifically targeted on grounds of their ethnicity. Lastly, with regard to a number of murder incidents, the Trial Chamber concludes that the principal perpetrators acted with discriminatory intent given its findings on their engagement in deliberate harassing, terrorising, looting, beating and, at times, killing other victims of the same ethnicity within the same period."
ICTY, The Prosecutor v. Jovica Stanišić and Franko Simatović, IT-03-69-T, Judgement (TC), 30 May 2013, para. 1250:
"1250. The Trial Chamber has examined the evidence and its findings in relation to each of the incidents of deportation and forcible transfer it found to have been committed in order toascertain whether the particular principal perpetrators involved acted with discriminatory intent. In its assessment, the Trial Chamber considered its findings that in certain incidents the principal perpetrators introduced several discriminatory measures aimed specifically at marginalising the non-Serb population. In particular, the principal perpetrators intimidated and terrorised their victims on the basis of their ethnicity, including by engaging in criminal activities on a massive scale, damaging or destroying their local worship places, looting their houses, threatening members of particular ethnicities that they would lose their jobs and be expelled, dismissing persons or otherwise forcing them to leave their jobs and destroying the businesses of others on grounds of their ethnicity, imposing curfews on members of these ethnicities or other restrictions on their freedom of movement, and misappropriating the properties of victims belonging to a particular ethnicity after they were forced to leave or just before they were forced to leave. The Trial Chamber has also considered that in certain incidents the principal perpetrators were specifically assigned to search for and detain persons on grounds of their ethnicity. In a number of instances such persons were found to have been arbitrarily detained, at times on a large-scale and for considerable time, ill-treated, tortured, sexually abused, or forced to perform labour on grounds of their ethnicity. The principal perpetrators’ discriminatory intent was evidenced by the fact that Serb detainees were released after their ethnicity had been established, references that the arrests were made because of the victims’ ethnicity and for revenge, the cursing of victims using derogatory terms associated with their ethnicity, as well as other attempts to insult them on ethnic grounds by forcing them, for instance, to sing "Chetnik songs" and curse their political leaders. Notably, in one municipality detainees were beaten, sexually assaulted, tortured, and insulted all on the basis of their ethnicity, for instance one prisoner was beaten in his crotch and told that Muslims should not propagate. In another municipality detainees were abused while being told that "the Croatian nation has to be destroyed" and "all Croats have to be killed". In a number of incidents, the principal perpetrators issued ultimatums that all members of a particular ethnicity had to leave their town immediately or would be killed, and selected and transferred or organized the transfer of persons away in an effort to rid areas of members of that ethnicity. In other instances, the Trial Chamber found that the attacks on specific towns were aimed at forcing the local population to leave in order to establish a purely Serb territory, and in at least one incident the local population, referred to as "Ustašas", was requested to leave so that the village could form part of a Greater Serbia."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 184:
"184. The Appeals Chamber reiterates that, in law, persecution as a crime against humanity requires evidence of a specific intent to discriminate on political, racial or religious grounds and that it falls to the Prosecution to prove that the relevant acts were committed with the requisite discriminatory intent. The Appeals Chamber may not hold that the discriminatory intent of beatings can be inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity. According to the Appeals Chamber, such a context may not in and of itself evidence discriminatory intent. Even so, the Appeals Chamber takes the view that discriminatory intent may be inferred from such a context as long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent. Circumstances which may be taken into consideration include the operation of the prison (in particular, the systematic nature of the crimes committed against a racial or religious group) and the general attitude of the offence’s alleged perpetrator as seen through his behaviour."
P.42. Evidence of the victim who personally carry the criteria of the group
P.44. Evidence of explicit statements made by alleged perpetrators.
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 1245:
“1245. The Trial Chamber has examined the evidence and its findings in relation to each of the murders it found to have been committed in order to ascertain whether the particular principal perpetrators involved acted with discriminatory intent. In its assessment, the Trial Chamber has taken into consideration its findings that in certain instances the principal perpetrators targeted their victims specifically because of their ethnicity, as demonstrated by their questioning about ethnicity and subsequent release of Serb persons just before the killings took place.2152 In relation to other instances, the Trial Chamber has found that the principal perpetrators called their victims “Ustashas” and stated that “no Ustashe should stay alive” or that they should all be slaughtered just before or right after killing them and, subsequently, explained the killings on grounds that they “hated all Ustashas” or “because the victims were Ustashas”.2153 Furthermore, in some instances the principal perpetrators were found to have insulted their victims on the basis of their non-Serb ethnicity, for instance by cursing their “Ustasha” or “balija” mothers, immediately before the victims were murdered.2154 In other instances the Trial Chamber has considered that the principal perpetrators, who had shown discriminatory intent by their explicit discriminatory statements made before killing their victims, were also found to have participated in other murder incidents targeting victims of the same ethnicity.2155 In such cases, the Trial Chamber infers that the victims of the other incidents have also been specifically targeted on grounds of their ethnicity. Lastly, with regard to a number of murder incidents, the Trial Chamber concludes that the principal perpetrators acted with discriminatory intent given its findings on their engagement in deliberate harassing, terrorising, looting, beating and, at times, killing other victims of the same ethnicity within the same period.2156”
2152. See for instance the findings and evidence reviewed in chapters 3.1.1, 3.2.4, and 3.6.1.
.2153 See for instance the findings and evidence reviewed in chapters 3.1.3, 3.1.4, and 3.1.5.
2154. See for instance the findings in chapters 3.1.4, 3.6.2, and 3.7.1.
2155. See for instance the findings in chapters 3.1.2, 3.1.3, 3.2.3, 3.2.4, and 3.2.5.
2156. See for instance findings and evidence reviewed in chapters 3.1.6, 3.1.7, 3.2.1, 3.2.2, 3.2.3, 3.2.5, 3.2.6, 3.4.1, 3.5.1, and 3.5.2.
A. Legal source/authority and evidence:
<link http www.legal-tools.org doc f2cfeb _blank>Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 636:
"636. The targeted group does not only comprise persons who personally carry the (religious, racial or political) criteria of the group. The targeted group must be interpreted broadly, and may, in particular, include such persons who are defined by the perpetrator as belonging to the victim group due to their close affiliations or sympathies for the victim group. The Chamber finds this interpretation consistent with the underlying ratio of the provision prohibiting persecution, as it is the perpetrator who defines the victim group while the targeted victims have no influence on the definition of their status. The Chamber finds that in such cases, a factual discrimination is given as the victims are discriminated in fact for who or what they are on the basis of the perception of the perpetrator."
