CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 7 Crimes against humanity » Art. 7 Crimes against humanity - Common elements » 1. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

Element:

sca1. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

1.1. Attack

Prosecutor v. Augustin Ndindiliyimana, François-Xavier Nzuwonemeye et Innocent Sagahutu, Case No. ICTR-00-56-A, Judgement (AC), 11 February 2014, para. 261:

"261. The Appeals Chamber notes that, in support of his argument that a widespread attack against the civilian population had not yet started when the Prime Minister and the Belgian peacekeepers were killed, Sagahutu relies on the Trial Chamber’s finding that open hostilities between the Rwandan armed forces and the RPF began when the RPF troops moved out of the Conseil national pour le développement (“CND”) barracks in Kigali on 7 April 1994.⁶²⁰ This finding was part of the Trial Chamber’s assessment on the nexus of the killing of the Prime Minister and the Belgian peacekeepers with an armed conflict.⁶²¹ As previously held, the concepts of “attack” and “armed conflict” are not identical and Article 3 of the Statute does not require that crimes against humanity be committed in the context of an armed conflict.⁶²² Contrary to Sagahutu’s assertion, the Trial Chamber did not find that the widespread and systematic attack against the civilian population only started when the RPF moved out of the CND barracks. This submission is therefore dismissed."

620 See Sagahutu Notice of Appeal, para. 87, referring to Trial Judgement, para. 2134; Sagahutu Appeal Brief, para. 243.

621 See Trial Judgement, Section 5.10.2.1.2.

622 See Nahimana et al. Appeal Judgement, para. 916, quoting Kunarac et al. Appeal Judgement, para. 86; Semanza Appeal Judgement, para. 269. See also Tadić Appeal Judgement, para. 251.

1.1.1. Conduct of hostilities, or

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, paras. 188, 192:

"188. The Prosecution submits that a widespread or systematic attack was directed against the civilian populations of Croatia, Bosnia and Vojvodina in the period from August 1991 to at least September 1993. It explains that “an orchestrated campaign of violence and mistreatment was directed against the Croatian, Muslim and other non-Serb population residing in the municipalities referred to in the Indictment”. Thus, the Accused’s speech in Hrtkovci on 6 May 1992 allegedly played a decisive part, the Accused frequently stressing the link between the deportation of the Croats from Hrtkovci, the armed conflict in Croatia and his vision of a homogenous Greater Serbia. According to the Prosecution, “[t]he means and methods of attack, the crimes committed and the attack’s discriminatory nature provide further proof that the attack was directed against civilian populations.” Moreover, having taken control of the municipalities of Vukovar, Zvornik, Mostar and Nevesinje, the Serbian forces, in collaboration with the local Serbian authorities, allegedly put in place a system of persecutions designed to drive out from these territories the non-Serb civilian population which was also subjected to deportation and forcible transfer."

"192. In light of the totality of the evidence in the case file, the Trial Chamber, by a majority, Judge Lattanzi dissenting, finds that the Prosecution failed to prove beyond all reasonable doubt that a widespread and systematic attack was launched against the non-Serb civilian population living within large areas of Croatia and BiH. The majority finds, in particular, that the Prosecution failed to prove that the non-Serb populations living in the municipalities of Vukovar, Zvornik, Greater Sarajevo and the municipalities of Mostar and Nevesinje, were targeted by a campaign of violence and mistreatment. The majority deems that it did not receive sufficient evidence to irrefutably establish the existence of a widespread and systematic attack against the civilian population; that the evidence that was presented and examined points rather to an armed conflict between enemy military forces, with some civilian components. The presence of civilian combatants in undetermined proportions in the context of clashes that many witnesses described as street fighting, where every piece of territory, every house was fought for, presents a context which does not support the conclusion that there was an attack directed against civilians."

P.1. Evidence of conduct of hostilities that includes the multiple commission of acts referred to in article 7(1).

A. Legal source/authority and evidence:

Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 167:

167. Having reviewed the evidence as a whole, the Chamber considers that there are substantial grounds to believe that, from 30 December 2007 to 16 January 2008, large gangs of Kalenjin individuals armed with, inter alia, machetes, pangas, bows, arrows, petrol cans and firearms, carried out an attack in the specific locations referred to in the counts, within the meaning of article 7(1) and 7(2)(a) of the Statute, against particular ethnic groups of the civilian population (primarily Kikuyu, Kamba and Kisii), who were perceived to be PNU supporters. The Chamber, however, is not satisfied that the Prosecutor has provided sufficient evidence to establish substantial grounds to believe that an attack within the meaning of said provisions occurred after 16 January 2008.

The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para. 734:

734. The Trial Chamber finds that there was a widespread or systematic attack directed against the Bosnian Muslim civilian population in the area of Srebrenica. As the evidence shows, the attack was of a large-scale, affecting approximately 35,000 people who lived in the area, and was organised in nature.

Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 890-891:

"890. Evidence before the Trial Chamber shows that numerous acts of violence were perpetrated against the Muslim civilian population in Vi{egrad by the Serb police, members of paramilitary groups and local Serbs from before the indictment period began, and that the number of these acts increased with the departure of the Uzice Corps. These acts of violence included unlawful arrests and beatings, abductions, rapes, theft and destruction of property, and arbitrary killings. Two mosques in Visegrad were burned down. The Trial Chamber recalls its finding that evidence on specific non-indicted crimes will be taken into account when determining whether the Prosecution has satisfied the general requirements of Article 5 of the Statute. This evidence also shows that Muslim men, women and children were the target of abductions, rapes, arbitrary killings, acts of humiliation, beatings, and theft, most particularly during June and July 1992.

891. The Trial Chamber finds that these acts indisputably fit within the definition of "attack" as defined in the case-law of the Tribunal. The Trial Chamber is further satisfied that the attacks were directed in a discriminatory manner against the civilian population; the victims were civilians from Visegrad, many were elderly and women and children, and all were Muslims."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 416:

"416. The term "attack" in the context of a crime against humanity carries a slightly different meaning than in the laws of war.¹⁰⁸⁸ In the context of a crime against humanity, "attack" is not limited to the conduct of hostilities. It may also encompass situations of mistreatment of persons taking no active part in hostilities, such as someone in detention. However, both terms are based on a similar assumption, namely that war should be a matter between armed forces or armed groups and that the civilian population cannot be a legitimate target."

"1088. Art. 49(1) of Additional Protocol I to the Geneva Conventions of 12 Aug 1949, eg, defines ‘attacks’ as ‘acts of violence against the adversary, whether in offence or in defence’."

1.1.2.Mistreatment of the civilian population

P.2. Evidence of mistreatment of the civilian population that includes the multiple commission of acts referred to in article 7(1).

A. Legal source/authority and evidence:

Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, para. 708:

"708. On the basis of the evidence discussed in part 4 of this judgement, the Chamber finds that, from 18 March 1992 until the end of the indictment period (30 December 1992) there was an attack directed against the Bosnian-Muslim and Bosnian-Croat civilian population residing in the indictment municipalities. The Chamber notes that, as described above in part 2, there might have been various factors or actions attributed to members of these groups which may have influenced the timing and motivation of the attack. However, these factors are not to be misunderstood as a justification for conducting a widespread and systematic attack on a civilian population. The attack included a wide range of discriminatory measures taken against Bosnian Muslims and Bosnian Croats, such as the imposition of curfews; the setting-up of barricades and checkpoints where members of these ethnic groups were regularly stopped and searched; regular searches of the houses of Muslims and Croats; and dismissals of Muslims and Croats from employment in the armed forces, the police, municipal organs, and private and publicly owned companies. Beginning in April 1992, Serb forces attacked Muslims and Croats living in towns, villages, and smaller settlements, most of which were undefended and contained no military targets, in order to take control of the municipality. Muslims and Croats were mistreated and killed. Men were often arrested and taken to detention centres, while women and children were forced to leave their homes and often the municipality. Serb forces then looted and destroyed the houses, rendering it impossible for the villagers to return. Religious monuments and sacred sites of importance to Muslims and Croats were also destroyed. The Muslim and Croat men and women kept in detention were often beaten or raped by members of Serb forces, some of whom were employed as guards for the facility and others who were allowed access to the detention centres. The conditions in many of the detention centres were intolerable, with insufficient food, water, medical care, and hygiene facilities. As a result of the treatment of the detainees, and the conditions of detention, many detainees suffered injuries and health problems, sometimes fatal. In addition, many detainees were executed at the detention centres. Beginning towards the end of 1992, detainees were either directly transferred out of the municipalities, or released and forced to leave their municipality by their own means, after being compelled to sign over their property to the municipality or to local Serbs. From the summer 1992 onwards, forcible transfer out of the municipality was also the fate of many Muslims and Croats who, until then, had managed to remain in their homes."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 86:

"86. Also, the attack in the context of a crime against humanity is not limited to the use of armed force; it encompasses any mistreatment of the civilian population."

Introduction to the Elements of Crimes against Humanity, para. 3:

"Attack directed against a civilian population" in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. The acts need not constitute a military attack. It is understood that "policy to commit such attack" requires that the State or organization actively promote or encourage such an attack against a civilian population.⁶"

"6. A policy which has a civilian population as the object of the attack would be implemented by a State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 416:

"1088. Art. 49(1) of Additional Protocol I to the Geneva Conventions of 12 Aug 1949, eg, defines ‘attacks’ as ‘acts of violence against the adversary, whether in offence or in defence’."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 581:

"581. The concept of attack' maybe defined as a unlawful act of the kind enumerated in Article 3(a) to (I) of the Statute, like murder, extermination, enslavement etc. An attack may also be non violent in nature, like imposing a system of apartheid, which is declared a crime against humanity in Article 1 of the Apartheid Convention of 1973, or exerting pressure on the population to act in a particular manner, may come under the purview of an attack, if orchestrated on a massive scale or in a systematic manner."

1.2. Directed against any civilian population

1.2.1. Directed against: Evidence of the civilian population be the primary object of the attack (not just an incidental victim of the attack).

Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, paras. 604-605:

"604. The Appeals Chamber considers that Miletić distorts the Trial Chamber’s holdings by claiming that it did “not mak[e] a distinction between a legitimate military action and an attack on the civilian population” and held “that all of the military activity around the enclaves constituted an attack on the civilian population”.¹⁷¹⁰ The Trial Chamber found that there was a dual purpose in the Krivaja-95 military operation, with legitimate military aims being one of its purposes.¹⁷¹¹ Furthermore, the Trial Chamber found that it was not necessary to speculate as to what military action on the part of the VRS might have been justified in relation to the enclaves in fulfilment of these legitimate military aims, considering the attack’s “full-scale, indiscriminate and disproportionate” character.¹⁷¹² The Trial Chamber based this characterisation of the attack on its findings pertaining to the Krivaja-95 military operation.¹⁷¹³ Miletić does not address this factual basis and consequently has failed to show any error in the Trial Chamber’s characterisation. He has also failed to show any error in its reasoning."

1710. Miletić’s Appeal Brief, para. 132.

1711. Trial Judgement, paras 774-775, 1486, 1996, 2000. See also Miletić’s Appeal Brief, para. 128.

1712. Trial Judgement, para. 775. See also Miletić’s Appeal Brief, para. 128.

1713. Trial Judgement, para. 775, referring to Trial Judgement, Chapter III, Sections D.1-3 (events regarding the military attack on Srebrenica from 28 June 1995 up until 11 July 1995), K.1-6 (events in Žepa in 1995 up until 25 July 1995). See Trial Judgement, paras 769-774. See also supra, para. 573.

"605. With regard to the Trial Chamber’s alleged failure to establish when the legitimate attack became illegal, the Appeals Chamber observes that the Trial Chamber did not find that an initially lawful operation subsequently became illegal. As recalled in the preceding paragraph, the Trial Chamber found that the Krivaja-95 military operation had a dual purpose, with legitimate military aims being one of its purposes. The Trial Chamber traced these purposes back to Directive 7, finding that “while the Directive contains legitimate military goals, it clearly denotes at the same time an illegal plan for an attack directed against a civilian population taking the form of measures aimed at forcing the populations of Srebrenica and Žepa to leave the enclaves”.¹⁷¹⁴ The Appeals Chamber recalls that the Trial Chamber found that Directive 7 was issued in March 1995 and was finalised no later than 17 March 1995 when it was forwarded to the Drina Corps.¹⁷¹⁵ The Trial Chamber found that the Krivaja-95 military operation was carried out in early July 1995, following preparations in late June 1995.¹⁷¹⁶ It is thus clear from the Trial Chamber’s findings that it considered the illegal purpose or plan to have existed before the beginning of the Krivaja-95 military operation. The Appeals Chamber recalls in this regard that it has dismissed Miletić’s argument that it was only with Karadzic’s 9 July Order that the civilian population of the enclaves became the target of the attack.¹⁷¹⁷ Miletić’s argument thus rests on a faulty premise."

1714. Trial Judgement, para. 762. See also Trial Judgement, paras 1996, 2000.

1715. See supra, para. 573.

1716. Trial Judgement, paras 242 et seq.

1717. See supra, para. 599.

Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, para. 524:

"524. The Appeals Chamber is further satisfied that the Trial Chamber reasonably concluded that Serbian forces committed the crimes of deportation and other inhumane acts (forcible transfer). The Appeals Chamber finds that the Trial Chamber reasonably found that no evidence suggested that the shelling, shooting, and burning of houses by the Serbian forces were directed at military targets. By contrast, it found that the Serbian forces intentionally targeted protected persons.¹⁷²⁷In particular, the Trial Chamber found that no KLA troops were seen in the area where some of the crimes occurred.¹⁷²⁸ Further, where the evidence established KLA presence and activities, the Trial Chamber carefully considered whether the Serbian forces were legally combating the KLA.¹⁷²⁹Additionally, \or|ević merely notes instances of shelling of towns and villages, but fails to provide any examples of when an “over-expansive” definition of civilian was applied.1730 In light of the overwhelming evidence that entire towns and villages were displaced, the pattern of the attacks, and the coordinated action of the Serbian forces involved, the Appeals Chamber finds that \or|ević has failed to show that the Trial Chamber erred in concluding that Serbian forces targeted Kosovo Albanian civilians and that these attacks were the “dominant and compelling” reason causing the civilians to flee, resulting in the crimes of deportation and other inhumane acts (forcible transfer).^1731"

1727. For example, in Bela Crkva/Bellacërkë the Trial Chamber found that MUP and VJ forces caused Kosovo Albanian villagers to flee, that men were separated from women and children, and that about 65 of these men were shot (Trial Judgement, paras 1617-1618). In Mala Kruša/Krushë-e-Vogël, the Trial Chamber found that 400-500 Kosovo Albanian residents were forcibly transferred on 25 March 1999 after the village had been shelled, houses looted and set on fire, and male residents killed (Trial Judgement, paras 482-483, 1619-1620). In Velika Kruša/Krushë-e Madhe, a village very close to Mala Kruša/Krushë-e-Vogël, the Trial Chamber found that about 3,000-4,000 residents fled because of the increased menacing presence of the Serbian forces surrounding the village, later the Serbian forces burnt houses and destroyed the mosque (Trial Judgement, paras 503-506, 1622). The Appeals Chamber notes that paragraph 1622 of the Trial Judgement refers to “Velika Kruša/Krushë-e-Vogël” rather than “Velika Kruša/Krushë-e Madhe”. However, based on the facts described in the paragraph, the Appeals Chamber is satisfied that the Trial Chamber was discussing the events that occurred in Velika Kruša/Krushë-e Madhe). In Celina/Celinë, the Trial Chamber held that Serbian forces shelled the village, killed residents, burned houses and forcibly transferred Kosovo Albanian residents on 25 March 1999 (Trial Judgement, paras 517-522, 1623). The Trial Chamber made explicit findings that the shelling was not directed at military targets (Trial Judgement, paras 533, 1623) and that the victims were unarmed and not taking part in hostilities (Trial Judgement, para. 522). In Landovica/Landovicë, the Trial Chamber found that the VJ shelled and burned the village on 26 March 1999 which caused the residents to flee. Eleven of the 13 villagers who were killed were women and children (Trial Judgement, paras 588-594, 1628). In Leocina/Leçine, Brocna/Burojë and Izbica/Izbicë, the Trial Chamber found that Kosovo Albanian villagers were forcibly transferred in late March 1999 after Serbian forces had taken positions in Brocna/Burojë and shelled Leocina/Leçine and Izbica/Izbicë, with no evidence that the shelling was directed against military targets. Also, Serbian forces were burning houses on their way, and women and children were ordered to leave their home villages and go to Albania (Trial Judgement, paras 607, 1630-1631). In Kladernica/Klladërnicë, the Trial Chamber found that 10,000 to 12,000 Kosovo Albanians, mainly women and children, fled the shelling of the village on 12 April 1999. Serbian forces separated 300-400 men and ordered the rest of the people to go to Albania (Trial Judgement, paras 647, 1634). In Turicevac/Turiqec and Tušilje/Tushilë, the Trial Chamber held that Kosovo Albanian residents left the villages in late March/early April 1999 due to the acts of Serbian forces; that they were escorted by the police and that men were separated for questioning (Trial Judgement, paras 635-639, 1632-1633), some were released and some were killed (Trial Judgement, para. 639). In Pecane/Peqan, the Trial Chamber expressly considered that while virtually every household had a family member in the KLA and that the KLA was active in the area, the displacement was caused by the Serb forces shelling and that this shelling was not directed at any military target (Trial Judgement, paras 704-706, 1639). In Belanica/Bellanicë, the Trial Chamber held that Serbian forces killed three men in the village on 1 April 1999; set houses on fire; threatened the people; and killed livestock (Trial Judgement, paras 715, 1641); the Trial Chamber further found that the KLA had withdrawn from the area (Trial Judgement, para. 712) that the population tried to surrender to the Serb forces and that it was the Serb forces that directed the convoy to the Albanian border (Trial Judgement, paras 714, 716, 718, 1641). In Zabare/Zhabar, the Trial Chamber held that thousands of Kosovo Albanian residents were deported on 17 April 1999 after the shooting of Serbian forces with machine guns, and that specific orders to leave were given by the MUP to the population (Trial Judgement, paras 1647-1648). In Vladovo/Lladovë, the Trial Chamber found that Kosovo Albanian residents were forcibly transferred after they had left the village because of Serbian military presence nearby; that villagers who attempted to return – including one woman - were killed by Serbian forces; and that villagers who had not fled were ordered by VJ soldiers to leave the village which they did (Trial Judgement, para. 1661). In Nosalje/Nosaljë, the Trial Chamber held that Kosovo Albanian residents were attacked by Serbian forces and forcibly transferred in April 1999 (Trial Judgement, para. 1662). In Mirosavlje/Mirosalë, the Trial Chamber found that 4,000 Kosovo Albanians were deported by Serbian forces in early April 1999, by fear caused by acts of Serbian forces in the village and in neighbouring villages (Trial Judgement, para. 1667). In Kotlina/Kotlinë, the Trial Chamber found that on 24 March 1999, shelling by Serbian forces caused the male population to flee, and women, children and elderly men were put on military trucks and driven to the town of Kačanik/Kaçanik. The Trial Chamber found that Serbian forces had blown up 22 men captured in wells that had been mined. Out of fear, the remaining 48 villagers left the village. In addition, Serbian forces specifically ordered women and children to leave (Trial Judgement, para. 1669). In Kačanik/Kaçanik, the Trial Chamber held that Kosovo Albanian residents were forced to leave the town on 27 and 28 March 1999 due to shelling and shooting carried out by Serbian forces, and ultimately deported. There was no evidence of return fire. A pregnant woman died after being shot while walking through the courtyard of her house (Trial Judgement, paras 1127-1130, 1670). In Donja Sudimlja/Studime-e-Poshtme, the Trial Chamber found that Kosovo Albanian villagers left the village in late March 1999 because of shelling by Serbian forces, that Serbian police told the remaining residents to leave the village within 15 minutes and that shooting was directed at civilian houses (Trial Judgement, para. 1676).

1728. In Velika Kruša/Krushë-e-Vogël, the Trial Chamber found that 3,000-4,000 Kosovo Albanians were forcibly transferred on 25 March 1999 (Trial Judgement, para. 1622). In Pirane/Piranë, the Trial Chamber held that 2,700 Kosovo Albanians were forcibly transferred on 25 March 1999 (Trial Judgement, paras 582-586, 1628). In Pecane/Peqan, the Trial Chamber found that the Kosovo Albanian population of this village was displaced in March 1999 (Trial Judgement, paras 704-707, 1639). In Vata/Vataj, the Trial Chamber held that the Kosovo Albanian residents of the village were deported in April 1999 (Trial Judgement, para. 1671).

1729. The Trial Chamber found in relation to the Serbian forces’ presence in Vesekovce/Vesekoc and their shelling of Slakovce/Sllakovc on 1 May 1999, that on the following day, no less than 30,000 Kosovo Albanians headed towards Vučitrn/Vushtrri in a convoy which came under Serbian shelling. Shortly thereafter, Serbian forces specifically directed the convoy to the Agricultural Cooperative in Vučitrn/Vushtrri town. The Trial Chamber considered that the KLA, who were present in the area, had told the villagers that they could no longer protect them, but that it was the Serbian forces who had ordered them to go to Vučitrn/Vushtrri town, shelling the convoy and killing some men (Trial Judgement, para. 1677).

1730. See Dorđević Appeal Brief, para. 316.

1731. See supra, paras 173-176, 194-207.

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 188:

188. The Prosecution submits that a widespread or systematic attack was directed against the civilian populations of Croatia, Bosnia and Vojvodina in the period from August 1991 to at least September 1993. It explains that “an orchestrated campaign of violence and mistreatment was directed against the Croatian, Muslim and other non-Serb population residing in the municipalities referred to in the Indictment”. […] According to the Prosecution, “[t]he means and methods of attack, the crimes committed and the attack’s discriminatory nature provide further proof that the attack was directed against civilian populations.” Moreover, having taken control of the municipalities of Vukovar, Zvornik, Mostar and Nevesinje, the Serbian forces, in collaboration with the local Serbian authorities, allegedly put in place a system of persecutions designed to drive out from these territories the non-Serb civilian population which was also subjected to deportation and forcible transfer.

P.3. Evidence of the means and method used in the course of the attack.

P.4. Evidence of the civilian status of the victims.

Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, para. 143:

''143. Insofar as Tolimir argues that the murder of the Bosnian Muslim males from Srebrenica did not constitute, in and of itself, or form part of, a widespread or systematic attack against the civilian population of Srebrenica and Žepa because the victims were ABiH fighters, not civilians, the Appeals Chamber considers that, even if the Trial Chamber had accepted that all the men killed were ABiH fighters⁴¹³ killed unlawfully hors de combat, according to the Trial Chamber’s findings, the vast majority of victims of the overall attack on the civilian population of Srebrenica and Žepa, remained civilians.⁴¹⁴Thus, even if the Trial Chamber had erred in its finding as to the status of the ABiH soldiers, such an error would have had no impact on its conclusions. The Appeals Chamber recalls that the Trial Chamber found that the killing of the Bosnian Muslim men from Srebrenica comprised just one component of the widespread and systematic attack which was directed primarily at the civilian population of Srebrenica and Žepa. The Trial Chamber found that the attack directed against the civilian population also included the military actions against both enclaves, the removal of thousands of women, children, and elderly, and the restriction of humanitarian aid.⁴¹⁵ Tolimir fails to show any error in these findings. His arguments are thus rejected.⁴¹⁶''

⁴¹³ Regarding Tolimir’s claim that a general mobilisation order by the ABiH in the days before the fall of Srebrenica altered the civilian status of all men in the enclave, the Appeals Chamber notes that the Trial Chamber made no finding as to the existence of such an order (by contrast it did find that “[o]n that first day of the VRS attack against Žepa, 14 July [1995], the War Presidency decided that there should be a “general mobilisation” of the population on the territory of Žepa municipality” (Trial Judgement, para. 613)). In view of its finding that the Trial Chamber reasonably found that killings of the men and boys of Srebrenica formed one component of the widespread and systematic attack on the civilian population, the Appeals Chamber need not review the evidence cited by Tolimir in his submissions in this regard (see Appeal Brief, n. 50).

⁴¹⁴ See infra, n. 415.

⁴¹⁵Trial Judgement, paras 701, 710. The Trial Chamber found in particular that by early July 1995, there were an estimated 42,000 persons inside the Srebrenica enclave and approximately 6,500 to 10,000 people in the Žepa enclave with no food, no water, and few medical supplies (Trial Judgement, paras 196-199, 202-204, 242); that some 25,000-30,000 Bosnian Muslims, almost entirely women, children and the elderly were forcibly transferred from Potoari (Trial Judgement, paras 304, 808, 817, 842); and that nearly 4,400 Bosnian Muslim civilians were forcibly transferred from Žepa (Trial Judgement, paras 645-649, 827, 833, 842). In contrast, the Trial Chamber found that the large-scale murder operation after the fall of Srebrenica and the three Žepa leaders in August 1995 involved at least 4,970 Bosnian Muslim male victims. See Trial Judgement, paras 571, 727-729. The Appeals Chamber's conclusion that the Trial Chamber did not commit any error in finding a single widespread and systematic attack against the Bosnian Muslim civilians of Srebrenica and Žepa does not negate the distinction in the Indictment and the Trial Judgement between the different interrelated components of that attack, namely the killing operation (that was charged and found to have been executed through the JCE to Murder) and the forcible transfer operations in Srebrenica and Žepa (that were pleaded and found to have been part of the JCE to Forcibly Remove). The distinction between the different components of that attack is important for the purposes of the legal questions in other parts of this Judgement, while the inquiry and conclusions in this section (and the corresponding section of the Trial Judgement) only relate to the chapeau requirements of Article 5 of the Statute.

⁴¹⁶ The Appeals Chamber observes that the Trial Chamber considered some members of the group of men killed as persons hors de combat when determining the civilian status of the population subjected to a widespread or systematic attack, and in so doing cited jurisprudence that pronounces on the status of victims of underlying acts of crimes against humanity. Trial Judgement, para. 708, n. 3038 and para. 697, n. 2976, citing Mrki and ljivananin Appeal Judgement, para. 36, Marti Appeal Judgement, para. 307. The Appeals Chamber observes that these considerations of persons hors de combat and the reference to the above mentioned case law on victims of the underlying crimes may be misleading when placed in the context of making a finding of an attack against a civilian population concerning the chapeau element of Article 5 of the Statute, since it may risk to convey the appearance of an inapposite blending of this finding with the finding of the status of the victims of the underlying crime which amounts to a crime against humanity. For the sake of a clear and unambiguous jurisprudence, the Appeals Chamber would like to underscore that these are, however, two distinct legal elements.

The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para.735:

735. The attack was directed against United Nations enclaves, established specifically to protect civilians, and thus, there can be no doubt that the population of these enclaves was predominantly civilian. The Trial Chamber finds, therefore, that the attack was directed against a civilian population within the meaning of Article 5 of the Statute.

Prosecutor v. Zdravko Tolimir, Judgement (TC), 12 December 2012, para 708:

708. The Bosnian Muslim males were also targeted with little to no effort by the Bosnian Serb Forces to distinguish between civilians and combatants. In Potočari, the male population, some as young as 12 and some of advanced age, were separated out of the crowds and sent to detention centres; at least one was killed while still in Potocari. Many more males were taken as prisoners from a column that had set forth from Susnjari. These individuals suffered a swift series of systematic killings that played out in coordinated action by the Bosnian Serb Forces. The boys and many of the men taken from Potočari or the column were civilians and had never been engaged in armed combat. The remainder of the men were hors de combat upon capture or surrender from the column. While the Accused submits that persons hors de combat cannot be victims of crimes against humanity, this position is in contravention of the clear jurisprudence set forth in the Martic Appeal Judgement and reiterated by the Mrkic and Suljivan?anin Appeals Chamber. So long as the crimes are part of a widespread or systematic attack on a civilian population, Article 5 does not require proof that the actual victims were civilians. In the present case, the murder of these men formed an intrinsic part of the attack directed at the Bosnian Muslim population of the Srebrenica and Zepa enclaves.

Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 125, 129, 1078:

“125. A list of casualties issued by the municipality of Škabrnja (P99) and a list issued by the Zadar Medical Centre Pathology Unit (P1747) both indicate that the following people died in Škabrnja on 18 November 1991: Joso Brkić, Joso Miljanić, Kata Rogić, Grgica Šegarić, Krsto Šegarić, Rade Šegarić, Vice Šegarić, Stana Vicković, Petar Pavičić, Marija Brkić, Marko Brkić, Grgo Jurić, Petar Jurić, Niko Pavičić, Josip Perica, Ljubo Perica, Ivan Ražov, Nikola Rogić, Mara Zilić,³⁰² Pavica Zilić, and Roko Zilić.³⁰³ Forensic evidence confirms the deaths of all except two of these individuals.³⁰⁴ P1747 lists the following additional casualties: Sime Šegarić, Željko Ćurković, Stanko Vicković, Marko Rogić, Slavko Miljanić, Ivica Šegarić, Ante Ražov, Mile Pavičić, Jela Jurić, Vladimir Horvat, Nediljko Škara, Gaspar Perica, Nediljko Jurić, and Tadija Žilić.³⁰⁵ Forensic evidence confirms all except two of these deaths.³⁰⁶ P99 lists the following additional civilian casualties: Luca Šegarić, Grgo Bilaver, Peka Bilaver, Dumica Gospić, Anica Jurić, Mirko Kardum, Jela Ražov, and Milka Zilić.³⁰⁷ Forensic evidence confirms two of these deaths.³⁰⁸ Marija Dražina and Marko Župan are also listed in exhibit P909, indicating that they died in Škabrnja on 19 November 1991.³⁰⁹ The parties agree on the identities of 39 individuals, most of whom are among the aforementioned casualties.³¹⁰ The forensic evidence often specifies the cause of death of the victims and gives an indication of the circumstances of the death (e.g. point-blank gunshot wound).”

301. D1474 (Mladić Notebook Excerpt), pp. 7, 9.

302. The Trial Chamber notes that there is a discrepancy between Mara Žilić’s year of birth indicated in P1747 (1914) and in P99 (1915) but nevertheless concludes that the two documents refer to the same individual.

303. P99 (List of Croatian soldiers and civilians who died in Škabrnja, Municipality of Škabrnja, 9 July 2002); P1747 (Zadar Medical Centre list of deceased, with causes of death, 18 November 1991).

304. Autopsy reports of Joso Miljanić and Stana Vicković are not in evidence. P512 (Chart on proof of death documentation filled in by Davor Strinović), pp. 26-34; P871 (Autopsy report for Josip Perica), pp. 1-2; P874 (Autopsy report for Marija Brkić, 23 November 1991); P878 (Autopsy report for Kata Rogić); P879 (Autopsy report for Nikola Rogić); P885 (Autopsy report for Ivan Ražov); P882 (Autopsy report for Roko Žilić); P883 (Autopsy report for Niko Pavičić), pp. 1-2; P886 (Autopsy report for Petar Jurić), pp. 1-3; P887 (Autopsy report for Ljubo Perica), pp. 1, 3; P889 (Autopsy report for Krsto Šegarić); P891 (Autopsy report for Pavica Žilić); P892 (Autopsy report for Mara Žilić); P893 (Autopsy report for Joso Brkić, 24 November 1991), pp. 1, 3; P894 (Autopsy report for Grgo Jurić), pp. 1, 3; P895 (Autopsy report for Grgica Šegarić); P897 (Autopsy report for Rade Šegarić); P898 (Autopsy report for Vice Šegarić); P900 (Autopsy report for Marko Brkić, 25 November 1991); P904 (Autopsy report for Petar Pavičić), pp. 1-3.

305. P1747 (Zadar Medical Centre list of deceased, with causes of death, 18 November 1991).

306. Autopsy reports of Jela Jurić and Nediljko Jurić are not in evidence. P873 (Autopsy report for Šime Šegarić, undated); P875 (Autopsy report for Željko Čurković, 23 November 1991), pp. 1, 3; P876 (Autopsy report for Vladimir Horvat), pp. 1-2; P877 (Autopsy report for Stanko Vicković); P880 (Autopsy report for Marko Rogić); P881 (Autopsy report for Nediljko Škara); P888 (Autopsy report for Perica Gašpar), pp. 1-3; P890 (Autopsy report for Tadija Žilić); P896 (Autopsy report for Slavko Miljanić), pp. 1-2; P901 (Autopsy report for Mile Pavičić), pp. 1, 3; P902 (Autopsy report for Ivica Šegarić); P903 (Autopsy report for Ante Ražov), pp. 1, 3; P908 (On-site investigation record Škabrnja, 6 April 1996); P910 (List of persons who died in Škabrnja, 5 December 1991).

307. P99 (List of Croatian soldiers and civilians who died in Škabrnja, Municipality of Škabrnja, 9 July 2002).

308. There is forensic evidence for Jela Ražov and Luca Šegarić. P907 (Autopsy report for Jela Ražov); P908 (Onsite investigation record Škabrnja, 6 April 1996), pp. 22-24; P910 (List of persons who died in Škabrnja, 5 December 1991). The forensic evidence for Luca Šegarić indicates that she died of violent causes sometime prior to 6 April 1992.

309. P909 (List of individuals who died on 19 November 1991), p. 1.

310. These are Jozo Brkić, Josip Miljanić, Jozo Miljanić, Petar Pavičić, Ilija Ražov, Kata “Soka” Rogić, Grgica “Maja” Šegarić, Krsto Šegarić, Lucia Šegarić, Rade Šegarić, Vice Šegarić, Stana Vicković, Ivan Babić, Marija Brkić, Marko Brkić, Željko Ćurković, Marija Dražina, Šime Ivković, Marko Ivković, Ana Jurić, Grge Jurić, Petar Jurić, Jozo Miljanić, Noko/Niko Pavičić, Pešo Pavičić, Josip Perić, Joso Perica, Ljubo Perica, Ivan Ražov, Jela Ražov, Branko Rogić, Nikola Rogić, Peter Rogić, Kljajo Šegarić, Mara Zilić, Milka Zilić, Pavica Zilić, Roko Zilić, Tadija Zilić, and Marko Župan. See Decision on Motion For Admission of Agreed Facts, 12 January 2011; First Joint Motion for Admission of Agreed Facts Between the Prosecution and the Stanišić Defence, 16 February 2010, Annex A, Part D; T. 11277.

“129. The Trial Chamber further notes that a list of casualties issued by the municipality of Škabrnja (P99) and a list of deceased and causes of death from the Zadar Medical Centre (P1747) are inconsistent in relation to the civilian/combatant status of certain victims. As exhibit P1747 is a document from the Zadar Medical Centre Pathology Unit, and it is unclear as to the basis on which the people listed therein were determined to have been civilians, the Trial Chamber does not rely on exhibit P1747 in relation to the victims’ civilian or combatant status described therein.”

“1078. Considering that many of those displaced had been transferred from other detention facilities, and included women, children and elderly persons, the Trial Chamber finds that they were civilians or persons placed hors de combat.”

P.5. Evidence of the number of the victims.

Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 176:

176. On the basis of the material provided to the Chamber, there are substantial grounds to believe that the attack perpetrated was widespread. Viewed as a whole, the evidence shows that the attack was massive, frequent, carried out collectively with considerable seriousness and directed against a large number of civilian victims.

P.6. Evidence of the discriminatory nature of the attack.

Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 167, 172, 174:

172. The Chamber is also satisfied that there are substantial grounds to believe that the attack aimed at targeting the civilian population, primarily members of the Kikuyu, Kamba and Kisii communities believed to be supporting the PNU. There are no indications in the evidence before the Chamber that the physical perpetrators specifically targeted combatants or individuals other than civilians. In some instances, the evidence tends to show that physical perpetrators victimised people belonging to the Kalenjin community who, however, were believed to be PNU supporters.Thus, viewed as a whole, the evidence shows that the criterion used by the perpetrators to identify and attack their victims was essentially their perceived political affiliation with the PNU.

174. In light of the above, the Chamber finds that there is sufficient evidence to establish substantial grounds to believe that between 30 December 2007 and 16 January 2008, an attack took place against specific groups of the Kenyan civilian population, namely perceived PNU supporters, in the four locations referred to in the counts.

Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para. 472:

"472. It is in this setting that the Chamber finds that, at the time relevant to the Indictment, there was in fact, not only a military operation against the Croat forces in and around Vukovar, but also a widespread and systematic attack by the JNA and other Serb forces directed against the Croat and other non-Serb civilian population in the wider Vukovar area. The extensive damage to civilian property and civilian infrastructure,1740 the number of civilians killed or wounded during the military operations1741 and the high number of civilians displaced or forced to flee1742 clearly indicate that the attack was carried out in an indiscriminate way, contrary to international law. It was an unlawful attack. Indeed it was also directed in part deliberately against the civilian population.[…]"

1740 See supra, paras 55-58; 465-466.

1741 See supra, para 468.

1742 See supra, para 467.

P.7. Evidence of the nature of the crimes committed in the course of the attack.

P.8. Evidence of the resistance to the assailants at the time.

P.9. Evidence of the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.

A. Legal source/authority and evidence:

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 91:

"91. In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider, inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 425:

"425. The methods of attack and the scale of the crimes committed against the Muslim population or the edifices symbolising their culture sufficed to establish beyond reasonable doubt that the attack was aimed at the Muslim civilian population. An ECMM observer noted that, further to his visit to Ahmici on 22 April 1993, "apart from the systematic destruction and the religious edifices that had been dynamited, what was most striking was the fact that certain houses remained intact, inhabited even, and one wondered how those islands had been able to survive such a show of violence"⁸⁹⁰. Several international observers who went to the village a few days after the attack on Ahmici reported finding "a phenomenon of a ferocity and a brutality almost impossible to describe"⁸⁹¹. The accused went to Ahmici on the morning of 27 April and noted the scale of the damage: houses burnt , livestock slaughtered and an entirely deserted village⁸⁹². He conceded, both to the Commission on Human Rights representatives on 5 May 1993 ⁸⁹³and in his testimony⁸⁹⁴before the Trial Chamber that crimes had been committed in Ahmici."

"890. PT p. 23584.

891. Witness Thomas, PT pp. 2672 and 2674.

892. Witness Blaškic, PT pp. 19036-19037.

893. P 184; witness Marin, PT p. 13631.

894. Witness Blaškic, PT pp. 19025-19026: "I toured a part of the village. I saw burned houses in the village, and there was still some embers. They may have been burned during the night or set fire to. I saw the minaret and mosque and other signs of destruction"."

1.2.2.Any

P.10. Evidence of the victims possessing the same nationality as the perpetrator; or

P.11. Evidence of the victims possessing a different nationality than the perpetrator; or

P.12. Evidence of the victims being stateless; or

P.13. Evidence of the victims being linked to any side of the conflict;

A. Legal source/authority and evidence:

Prosecutor v Mitar Vasiljević, Case No. IT-98-32-T, Judgement (TC), 29 November 2002, para. 33:

"33.The expression "directed against any civilian population" specifies that, in the context of a crime against humanity, a civilian population is the primary object of the attack.Kunarac Appeals Judgment, par 91; http//www.legal-tools.org/doc/fd881d/Kunarac Trial Judgment, par 421.

37. http//www.legal-tools.org/doc/fd881d/Kunarac Trial Judgment, par 423; Tadic Trial Judgment, par 635.

38. http//www.legal-tools.org/doc/fd881d/Kunarac Trial Judgment, par 423."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 423:

"423. The protection of Article 5 extends to "any" civilian population including, if a state takes part in the attack, that state’s population.¹⁰⁹⁵ It is therefore unnecessary to demonstrate that the victims are linked to any particular side of the conflict."

"1095. http//www.legal-tools.org/doc/0a90ae/Prosecutor v Tadic, Case IT-94-1-T, Opinion and Judgement, 7 May 1997, par 635. See also History of the United Nations War Crimes Commission (1948), p.193.

1096. See, eg, Attorney General of the State of Israel v Yehezkel Ben Alish Enigster, District Court of Tel-Aviv, 4 Jan 1952."

1.2.3.Civilian population

Prosecutor v. Vlastimir Dorđević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 789:

"789. […] The Appeals Chamber recalls that the clothing of victims may be considered when determining whether a particular victim was actively participating in hostilities at the time of death.2317 Therefore, it was reasonable for the Trial Chamber to rely on Witness Lama’s evidence to conclude that the victims were hors de combat and not taking part in hostilities at their time of death. […]"2318

2317 See Boškoski and Tarculovski Appeal Judgement, para. 81. See supra, para. 525.

2318 Trial Judgement, paras 1139, 1747.

Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 984-986:

“984. In relation to the same incident, (Murder of at least 38 non-Serb civilians in Škabrnja on 18 November 1991 (para. 32)) the Trial Chamber recalls the evidence in the factual finding regarding Josip Miljanić, who was forced to kneel and was then shot in the head. The Trial Chamber therefore finds that Josip Miljanić was hors de combat or otherwise not taking part in active hostilities at the time he was killed and will further consider his death in relation to this finding.”

“985. In relation to another incident (Murder of approximately 27 non-Serb civilians by using them as human shields on or about 12 July 1992 (para. 54)), the Trial Chamber, having considered the circumstances in which two of the alleged victims (Omer Delić, Salih Makarević) were killed, their uniform and the active hostilities in and around the relevant area at the time of their deaths, and for a third alleged victim (Nedžad Makarević) having considered evidence of ABiH affiliation and the active hostilities in and around the relevant area at the time of his death, finds that they were all three killed in a context which might reasonably be perceived as a combat situation. As such, the evidence is insufficient to establish that they were hors de combat or otherwise not taking part in active hostilities when they were killed. Consequently, the Trial Chamber will not consider these killings further in relation to this finding.”

“986. With regard to the remaining victims, considering their age and clothing as well as the circumstances in which the murders were carried out, and in certain cases Adjudicated Facts and direct evidence on the status of the victims, the Trial Chamber finds that they were civilians or detained, or otherwise placed hors de combat or otherwise not taking part in active hostilities when they were killed.”

Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-A, Judgement (AC), 5 May 2009, paras. 29-32:

29. The Appeals Chamber recently confirmed that "there is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber that requires that individual victims of crimes against humanity be civilians".95 Further, it held that under customary international law, persons hors de combat can also be victims of crimes against humanity, provided that all the other necessary conditions are met.96

30. This is not to say that under Article 5 of the Statute the status of the victims as civilians is irrelevant. In fact, the status of the victims is one of the factors that can be assessed in determining whether the jurisdictional requirement that the civilian population be the primary target of an attack has been fulfilled,97 along with, inter alia, the means and method used in the course of the attack, the number of victims, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.98

31. Further, the fact that a population under the chapeau of Article 5 of the Statute must be "civilian" does not imply that such population shall only be comprised of civilians. The status of the victims will thus also be relevant to determining whether the population against which the attack is directed is civilian. In Kordi} and ^erkez, the Appeals Chamber stated: The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.99 In Blaškić, the Appeals Chamber, relying on the ICRC Commentary to Article 50 of Additional Protocol I,100 held that "in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined".101

32. Accordingly, whereas the civilian status of the victims, the number of civilians, and the proportion of civilians within a civilian population are factors relevant to the determination of whether the chapeau requirement of Article 5 of the Statute that an attack be directed against a "civilian population" is fulfilled, there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be "civilians".

95 Martic Appeal Judgement, para. 307. See also paras 303-306, 308. In Martić, the Appeals Chamber entered convictions for crimes committed against persons hors de combat, considering that they were victims of a widespread and systematic attack against the civilian population, and that all the elements of the offences were met (see Martić Appeal Judgement, paras 318-319, 346, 355).

96 <link http www.legal-tools.org doc ca5eff _blank>Martić Appeal Judgement, paras 311, 313.

97 <link http www.legal-tools.org doc _blank>Kunarac et al. Appeal Judgement, para. 92: "The Appeals Chamber is satisfied that the Trial Chamber correctly defined and identified the "population" which was being attacked and that it correctly interpreted the phrase "directed against" as requiring that the civilian population which is subjected to the attack must be the primary rather than an incidental target of the attack".

98 <link http www.legal-tools.org doc _blank>Kunarac et al. Appeal Judgement, para. 91.

99 <link http www.legal-tools.org doc _blank>Kordic and Cerkez Appeal Judgement, para. 50. See also <link http www.legal-tools.org doc c81a32 _blank>Galić Appeal Judgement, para. 136.

100 ICRC Commentary to Article 50 of Additional Protocol I, para. 1922: "In wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population".

101 <link http www.legal-tools.org doc _blank>Blaškić Appeal Judgement, para. 115. See also <link http www.legal-tools.org doc c81a32 _blank>Galić Appeal Judgement, para. 137.

Prosecutor v. Nikola Sainovic, Case No. IT-05-87-A, Judgement (AC), 23 January 2014, paras. 627-628 :

"627. Sainovic and Lukic contest the Trial Chamber’s finding that the objective of the widespread and systematic attack launched by the FRY and Serbian forces was the “villages”.²⁰⁸⁴ Sainovic avers that the evidence shows that the VJ and the MUP legitimately targeted the KLA forces, which had assumed positions in various villages, amidst the civilian population.²⁰⁸⁵ Lukic argues that the KLA did not comply with the laws or customs of war and abused civilians by intermingling with civilians and using them as shields.²⁰⁸⁶ He maintains that the Trial Chamber improperly expanded the definition of “civilian” to include KLA members who engaged in combat wearing civilian clothes and that if the definition of “civilian” in international humanitarian law excluding “combatants or fighters hors de combat” had been properly applied, the presence of a large number of soldiers or combatants would have deprived the population of the civilian character.²⁰⁸⁷"

2084. Sainovic’s Appeal Brief, para. 424. See also Lukić’s Appeal Brief, para. 260.

2085. Sainovic’s Appeal Brief, paras 424-427, referring to Vladimir Lazarevic, 8 Nov 2007, T. 17917, Exh. P1966, Exh. P1968, Exh. P1969, Exh. P1970, Exh. P1990, Exh. P2808, Exh. 3D690, Exh. 5D245, Exh. 5D249.

2086. Lukić’s Appeal Brief, paras 200, 226-228, 233. Lukic’s arguments that the Trial Chamber erred in finding that an armed conflict existed “with the KLA, which was a terrorist organization” (Lukic’s Appeal Brief, para. 159) and that the KLA was “an organized armed force that fought by legally acceptable means that complied with the laws or customs of war” (Lukic’s Appeal Brief, paras 225-226; contra Prosecution’s Response Brief (Lukic), para. 196) misrepresent the Trial Judgement. The Trial Chamber found the KLA to be an organised armed group (Trial Judgement, vol. 1, paras 840-841). However, the Trial Chamber did not make any findings as to whether the KLA complied with the laws or customs of war or whether it was a “terrorist” group (Trial Judgement, vol. 1, paras 795, 840-841), since it was immaterial for the determination of the organised nature of the KLA and the existence of an armed conflict (Trial Judgement, vol. 1, para. 791, correctly setting out the law in this regard). The Appeals Chamber does not see any error in this approach. Lukić’s submissions in this regard are therefore dismissed.

2087. Lukic’s Appeal Brief, paras 229-232, referring to Blaskic Appeal Judgement, para. 115, Galic Appeal Judgement, para. 50, Mrksic et al. Trial Judgement, para. 461, Article 50 of Additional Protocol to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977 (“Additional Protocol I”).

"628. The Prosecution submits that the Trial Chamber correctly found that the FRY and Serbian authorities conducted “an orchestrated, widespread and systematic campaign of terror and violence against the Kosovo Albanian civilian population” and not simply legitimate operations against the KLA.²⁰⁸⁸ The Prosecution adds that, having discussed evidence related to KLA activity and set forth the correct law that the population need only be predominantly civilian, the Trial Chamber carefully considered whether the VJ and the MUP were legitimately combating the KLA in each of the relevant locations.²⁰⁸⁹"

2088. Prosecution’s Response Brief (Sainovic), paras 271-273, referring to Trial Judgement, vol. 2, paras 1156, 1178, ibid., vol. 3, para. 95.

2089. Prosecution’s Response Brief (Sainovic), paras 272-273, and references therein; Prosecution’s Response Brief (Lukic), para. 197, referring to Trial Judgement, vol. 1, paras 145-146, 797-820, ibid., vol. 2, paras 1179-1262.

P.14. Evidence demonstrating that the attack was directed at the civilian population generally or indiscriminately (rather than at some selected members of that population).

P.14.1. The concept of ‘population’: Evidence of a sizeable group of people who possess some distinctive features that mark them as targets of the attack.

Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 172 :

The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC - 01/04-01/07, Decision on confirmation of charges (PTC), 30 September 2008, para. 409, 410, 413:

409. Secondly, there are substantial grounds to believe that the attack against the civilian population of Bogoro village was part of a widespread campaign of military attacks against civilians in the large geographical area of Iruri. For example, the evidence establishes that, prior to the attack against the civilian population of Bogoro, the FNI and/or the FRPI killed approximately 1200 civilians throughout the region of Ituri in the DRC, in particular in the village of Nyankunde.

410. In addition, the Chamber finds that there is also sufficient evidence to establish substantial grounds to believe that in the month following the attack against the civilian population of Bogoro approximately 900 civilians, predominantly from the Hema ethnic group, were also killed by the FNI/FRPI in Bunia/Nyakasanza, Tchomia,537 and Katoto. There are also substantial grounds to believe that by the end of July 2003, approximately 600 civilians, predominantly from the Hema ethnic group, were killed by the joint forces of the FNI/FRPI in Mandro, Kilo and Drodro.

413. In the view of the Chamber, there are substantial grounds to believe that the violent acts which occurred in Bogoro village on 24 February 2003 were not random acts of violence against the civilian population but were committed pursuant to a common policy and an organised common plan which was, inter alia, (i) part of a larger campaign of reprisals specifically directed against the predominantly Hema civilians living in villages in the Ituri region; (ii) a demonstration of the FNI/FRPI’s opposition to any alliance between the UPC (Hema) and the FNI/FRPI (Lendu and Nigiti) within the FIPI; and (iii) a means to "wipe out" the village of Bogoro so as to ensure FNI/FRPI control over the route to Bunia and to facilitate the transit of goods along the Bunia-Lake Albert axis.

Prosecutor v. Nikola Sainovic, Case No. IT-05-87-A, Judgement (AC), 23 January 2014, paras. 627-628 :

2084. Sainovic’s Appeal Brief, para. 424. See also Lukić’s Appeal Brief, para. 260.

2088. Prosecution’s Response Brief (Sainovic), paras 271-273, referring to Trial Judgement, vol. 2, paras 1156, 1178, ibid., vol. 3, para. 95.

P.15. Evidence of a large or sufficient number of victims.

The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC - 01/04-01/07, Decision on confirmation of charges (PTC), 30 September 2008, para. 408:

408. Firstly, there is sufficient evidence to establish substantial grounds to believe that the attack against the predominantly Hema population of the relatively small geographical area of Bogoro village resulted in the deaths of a large number of victims. Although exact estimates differ, there is sufficient evidence to establish substantial grounds to believe that the attack on Bogoro village on 24 February 2003 itself resulted in the deaths of approximately 200 civilians.

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1547:

1547. The Prosecution has charged Nizeyimana with the attack on Cyahinda Parish (II. 4.2) as extermination as a crime against humanity under Article 6 (1) and 6 (3) of the Statute.3893 The Chamber has already concluded that the attack on Cyahinda Parish amounts to genocide. Given the high concentration of Tutsis within the parish facilities and the fact that the concluding attack resulted in the deaths of thousands who had sought refuge there, the Chamber has no doubt that this attack amounted to killings on a large scale. The evidence firmly establishes that the principal perpetrators, as well as Nizeyimana, participated with the intent to kill on a mass scale based on ethnic grounds [...]

Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 178:

178. In particular, there are substantial grounds to believe that the violence in the Uasin Gishu District (encompassing Turbo town and the greater Eldoret area) resulted in the death of more than 230 people, the injury to 505 and the displacement of more than 5000 persons. In the Nandi District (encompassing Kapsabet town and Nandi Hills town) at least 7 people were murdered and a number of houses and business premises were looted and bumt.Thousands of people in Kapsabet and in Nandi Hills were forced to seek refuge at the respective police stations or in IDP camps in the surrounding areas.

A. Legal source/authority and evidence:

Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 627:

"627. The Trial Chamber is satisfied that the events which took place in Prijedor municipality between 30 April and 30 September 1992 constitute an attack directed against a civilian population. The scale of the attack was such that it cannot be characterised as having been directed against only a limited and randomly selected group of individuals. Rather, most of the non-Serb population in the Municipality of Prijedor was directly affected. Moreover, it is clear from the combat reports that the Serb military forces had the overwhelming power as compared to the modest resistance forces of the non-Serbs."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 330:

"330. The term "population" does not require that crimes against humanity be directed against the entire population of a geographic territory or area.⁵⁵⁵ The victim(s) of the enumerated act need not necessarily share geographic or other defining features with the civilian population that forms the primary target of the underlying attack, but such characteristics may be used to demonstrate that the enumerated act forms part of the attack."

"555. <link http www.legal-tools.org doc _blank>Bagilishema, Judgement, TC, para. 80; <link http www.legal-tools.org doc fd881d _blank><link http www.legal-tools.org doc fd881d _blank>http://www.legal-tools.org/doc/fd881d/Kunarac, Judgement, AC, para. 90."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, paras. 90-92:

"90. As was correctly stated by the Trial Chamber, the use of the word "population" does not mean that the entire population of the geographical entity in which the attack is taking place must have been subjected to that attack.105 It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian "population", rather than against a limited and randomly selected number of individuals."

"105.Trial Judgement, para 424. See also <link http www.legal-tools.org doc a0948e _blank>Tadic Trial Judgement, para 644.

91. […] In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider, inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war."[…]

92.The Appeals Chamber is satisfied that the Trial Chamber correctly defined and identified the "population" which was being attacked and that it correctly interpreted the phrase "directed against" as requiring that the civilian population which is subjected to the attack must be the primary rather than an incidental target of the attack."

P.16. Evidence of the targeted population being of a predominantly civilian nature.

P.16.1. Evidence of the presence of non-civilians the number of which is not large enough to deprive the population of its civilian character.

A. Legal source/authority and evidence:

Prosecutor v. Vlastimir Dorđević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 747:

"747. […] For murder as a crime against humanity under Article 5 of the Statute, while the chapeau requirements necessitate proof that the act of the perpetrator was part of a widespread or systematic attack "directed against any civilian population", 2226 this does not mean that the individual victims of crimes against humanity must be civilians. 2227 Persons hors de combat may also be victims of murder as a crime against humanity, provided that they were victims of a widespread and systematic attack against the civilian population, and that all the elements of the crime were met. 2228 Therefore, even if some of the victims were members of the KLA, as Dorđević suggests, if they had laid down their arms at the relevant time, they were no longer legitimate targets."

2226 See Kordić and Čerkez Appeal Judgement, paras 93, 95-97; Blaškić Appeal Judgement, para. 98; Kunarac et al. Appeal Judgement, para. 85. Likewise, the presence of soldiers does not necessarily deprive a civilian population of its civilian character (Galić Appeal Judgement, para. 144; Blaškić Appeal Judgement, para. 115. See Kordić and Čerkez Appeal Judgement, para. 50).

2227 Martić Appeal Judgement, para. 308.

2228 See Martić Appeal Judgement, paras 307, 311, 313; Mrkšić and Sljivancanin Appeal Judgement, paras 29, 33. See also Martić Appeal Judgement, paras 303-306, 308, 318-319, 346, 355.

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 552:

"552. The attack was clearly directed against the Bosnian Muslim civilian population in the Srebrenica enclave. The Trial Chamber has heard evidence that the 28th Division of the ABiH was located in the Srebrenica enclave and that members of that division were among the men that formed the column.¹⁸⁶⁷ However, The Trial Chamber finds that the estimated number of members of the ABiH present in the enclave and among the column, ranging from about 1,000 soldiers to 4,000 soldiers do not amount to such numbers that the civilian character of the population would be affected, as the vast majority of the people present in the enclave itself and in the column were civilians.¹⁸⁶⁸"

"1867. See supra section II, C and D.

1868. Pieter Boering estimated that there were about 1,000 soldiers in the enclave. Pieter Boering, T. 884-85, 947, 997. UNMO estimated that there were about 4,000 soldiers in the enclave. Ex. D4/ 1, UNMO, Postscript to Srebrenica, 26 July 1995, which reads: Strength ABiH: not known, however the usual estimate of 10% of the population would give a force of approxi mately 4,000."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, para. 115:

"115. The Trial Chamber also stated that the "presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of that population." The ICRC Commentary on this point states:

Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 1023:

“1023. Considering that those forcibly displaced were inhabitants of Erdut and that they did not put up any resistance prior to being forced out, the Trial Chamber finds that they were civilians or persons placed hors de combat.”

1.2.4.A state or organizational policy inferred from the totality of the circumstances.[1]

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, paras. 119-120:

"3. Requirement that the acts of the accused and the attack itself must have been committed in pursuance to a pre-existing criminal policy or plan

[…]

119. Furthermore, the Prosecution argues that legally, Article 5 of the Statute does not require proof of the existence of a policy as a "formal legal ingredient."²²⁸ It submits that the Trial Chamber "was correct in framing the notion of policy as a means of establishing that the broader attack against a civilian population is systematic in character."²²⁹ The Prosecution adds that such an approach is in keeping with the jurisprudence of the International Tribunal and of the ICTR, World War II case law, and the International Law Commission draft codes on the subject.²³⁰ It states that this conclusion is also a logical one since, if it were a general requirement for all crimes against humanity, the requirements of widespread or systematic would stop being genuine alternatives.²³¹ Concerning the Appellant’s suggestion that the policy in question must further be a pre-existing and official one, adopted at the highest level by a State or organisation or group, the Prosecution submits that nothing in the Statute supports such a proposition.²³² In the alternative, the Prosecution submits that this need not in any case be a pre-existing official, State, organisational or group plan or policy.²³³ The requirement would be met "by a showing that a State, government or entity tolerated the crimes in question."²³⁴ Nor, as pointed out by the Trial Chamber, would such a policy need to be explicitly formulated or expressed or come from a high hierarchical level.²³⁵

120. The Appeals Chamber considers that, as noted above, it is not clear whether the Trial Chamber deemed the existence of a plan to be a legal element of a crime against humanity. In relation to this issue, the Appeals Chamber has stated, on a previous occasion:

…neither the attack nor the acts of the accused needs to be supported by any form of "policy" or "plan". There was nothing in the Statute or in customary international law at the time of the alleged acts which required proof of the existence of a plan or policy to commit these crimes. As indicated above, proof that the attack was directed against a civilian population and that it was widespread or systematic, are legal elements of the crime. But to prove these elements, it is not necessary to show that they were the result of the existence of a policy or plan. It may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic (especially the latter) to show that there was in fact a policy or plan, but it may be possible to prove these things by reference to other matters. Thus, the existence of a policy or plan may be evidentially relevant, but it is not a legal element of the crime.²³⁶

The Appeals Chamber agrees that a plan or policy is not a legal element of a crime against humanity, though it may be evidentially relevant in proving that an attack was directed against a civilian population and that it was widespread or systematic."

"228 – Respondent’s Brief, para. 6.22.

229 – Respondent’s Brief, para. 6.25.

230 – Respondent’s Brief, paras. 6.26-6.29.

231 – Respondent’s Brief, para. 6.30.

232 – Respondent’s Brief, para. 6.34.

233 – Respondent’s Brief, para. 6.35.

234 – Respondent’s Brief, para. 6.35.

235 – Respondent’s Brief, paras. 6.38-6.39.

236 - <link http www.legal-tools.org doc _blank>Kunarac Appeal Judgement, para. 98 (omitted)."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 329:

"a. The Attack Must be Widespread or Systematic

[…]

329. "Widespread" refers to the large scale of the attack.⁵⁵⁰ "Systematic" describes the organized nature of the attack.⁵⁵¹The Appeals Chamber of the ICTY recently clarified that the existence of a policy or plan may be evidentially relevant, in that it may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic, but that the existence of such a plan is not a separate legal element of the crime.⁵⁵²

"<link appdata>550. <link http www.legal-tools.org doc b8d7bd _blank>Akayesu, Judgement, TC, para. 580. See also <link http www.legal-tools.org doc _blank>Ntakirutimana, Judgement, TC, para. 804; <link http www.legal-tools.org doc _blank>Bagilishema, Judgement, TC, para. 77; <link http www.legal-tools.org doc _blank>Musema, Judgement, TC, para. 204; <link http www.legal-tools.org doc f0dbbb _blank>Rutaganda, Judgement, TC, para. 69.

551. <link http www.legal-tools.org doc _blank>Ntakirutimana, Judgement, TC, para. 804; <link http www.legal-tools.org doc _blank>Musema, Judgement, TC, para. 204; <link http www.legal-tools.org doc f0dbbb _blank>Rutaganda, Judgement, TC, para. 69; <link http www.legal-tools.org doc _blank>Kayishema and Ruzindana, Judgement, TC, para. 123; <link http www.legal-tools.org doc b8d7bd _blank>Akayesu, Judgement, TC, para. 580.

552. <link http www.legal-tools.org doc fd881d _blank><link http www.legal-tools.org doc fd881d _blank>http://www.legal-tools.org/doc/fd881d/Kunarac, Judgement, AC, para. 98."

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 234:

"234.The acts of the accused must not be isolated but form part of the attack.⁶¹⁹ This means that the act, by its nature or consequence, must objectively be a part of the attack.⁶²⁰ The only question with regard to the general requirements of Article 5 of the Statute that gave raise to controversy in the jurisprudence of the Tribunal was the question whether the acts of the accused must also be connected to some kind of policy or plan.⁶²¹ While it was held that the acts must be undertaken "in furtherance of a policy"⁶²² other Trial Chambers applied a more liberal view.⁶²³ The Appeals Chamber has clarified that the existence of a policy or plan may serve as evidence in establishing that an attack was directed against a civilian population and that it was widespread or systematic. It does not however constitute a separate and additional legal element of the crime as it is neither enshrined in the Statute of the Tribunal nor a requirement under customary law.⁶²⁴"

"619 - <link http www.legal-tools.org doc _blank>Tadic Appeal Judgement, para 248.

620 - <link http www.legal-tools.org doc _blank>Tadic Appeal Judgement, paras 248, 251, 271; <link http www.legal-tools.org doc _blank>Kunarac Appeal Judgement, para 99.

621 - <link http www.legal-tools.org doc fd881d _blank>Kunarac Trial Judgement, para 432; <link http www.legal-tools.org doc d4fedd _blank>Kordic Trial Judgement, para 181. 622 - <link http www.legal-tools.org doc a0948e _blank>Tadic Trial Judgement, paras 626 and 653; <link http www.legal-tools.org doc b8d7bd _blank>Akayesu Trial Judgement, para 580.

623 - The <link http www.legal-tools.org doc _blank>Kupreskic Trial Judgement expressed "some doubt as to whether it is strictly a requirement, as such, for crimes against humanity" and held that, in any case, "such a policy need not be explicitly formulated, nor need it be the policy of a State", para 551. The <link http www.legal-tools.org doc d4fedd _blank>Kordic Trial Judgement held that the existence of a plan or policy should only be regarded as indicative of the systematic character of offences charged under Article 5 of the Statute, <link http www.legal-tools.org doc d4fedd _blank>Kordic Trial Judgement, para 182. The <link http www.legal-tools.org doc _blank>Krnojelac Trial Judgement did not accept the connection of the acts of the perpetrator to a policy or plan as a separate element of Article 5 of the Statute but concurred with the findings in the <link http www.legal-tools.org doc d4fedd _blank>Kordic Trial Judgement that such plan or policy may be indicative to determine that an attack is widespread or systematic and that the acts of the accused are part of the attack, <link http www.legal-tools.org doc _blank>Kronojelac Trial Judgement, para 58.

624 - <link http www.legal-tools.org doc _blank>Kunarac Appeal Judgement, para 98."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 98:

"98.Contrary to the Appellants’ submissions, neither the attack nor the acts of the accused needs to be supported by any form of "policy" or "plan". There was nothing in the Statute or in customary international law at the time of the alleged acts which required proof of the existence of a plan or policy to commit these crimes.¹¹⁴ As indicated above, proof that the attack was directed against a civilian population and that it was widespread or systematic, are legal elements of the crime. But to prove these elements, it is not necessary to show that they were the result of the existence of a policy or plan. It may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic (especially the latter) to show that there was in fact a policy or plan, but it may be possible to prove these things by reference to other matters. Thus, the existence of a policy or plan may be evidentially relevant, but it is not a legal element of the crime."

"114. There has been some debate in the jurisprudence of this Tribunal as to whether a policy or plan constitutes an element of the definition of crimes against humanity. The practice reviewed by the Appeals Chamber overwhelmingly supports the contention that no such requirement exists under customary international law. See, for instance, Article 6(c) of the Nuremberg Charter; Nuremberg Judgement, Trial of the Major War Criminals before the International Military Tribunal, Nüremberg, 14 November 1945 – 1 October 1945, in particular, pp 84, 254, 304 (Streicher) and 318-319 (von Schirach); Article II(1)(c) of Control Council Law No 10; In re Ahlbrecht, ILR 16/1949, 396; Ivan Timofeyevich Polyukhovich v The Commonwealth of Australia and Anor, (1991) 172 CLR 501; Case FC 91/026; Attorney-General v Adolph Eichmann, District Court of Jerusalem, Criminal Case No. 40/61; Mugesera et al. v Minister of Citizenship and Immigration, IMM-5946-98, 10 May 2001, Federal Court of Canada, Trial Division; In re Trajkovic, District Court of Gjilan (Kosovo, Federal Republic of Yugoslavia), P Nr 68/2000, 6 March 2001; Moreno v Canada (Minister of Employment and Immigration), Federal Court of Canada, Court of Appeal, ?1994g 1 F.C. 298, 14 September 1993; Sivakumar v Canada (Minister of Employment and Immigration), Federal Court of Canada, Court of Appeal, ?1994g 1 F.C. 433, 4 November 1993. See also Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993, paras 47-48; Yearbook of the International Law Commission (ILC), 1954, vol. II, 150; Report of the ILC on the work of its 43rd session, 29 April – 19 July 1991, Supplement No 10 (UN Doc No A/46/10), 265-266; its 46th session, 2 May – 22 July 1994, Supplement No 10 (UN Doc No A/49/10), 75-76; its 47th session, 2 May – 21 July 1995, 47, 49 and 50; its 48th session, 6 May – 26 July 1996, Supplement No 10 (UN Doc No A/51/10), 93 and 95-96. The Appeals Chamber reached the same conclusion in relation to the crime of genocide (<link http www.legal-tools.org doc _blank>Jelisic Appeal Judgement, para 48). Some of the decisions which suggest that a plan or policy is required in law went, in that respect, clearly beyond the text of the statute to be applied (see e.g., Public Prosecutor v Menten, Supreme Court of the Netherlands, 13 January 1981, reprinted in 75 ILR 331, 362-363). Other references to a plan or policy which have sometimes been used to support this additional requirement in fact merely highlight the factual circumstances of the case at hand, rather than impose an independent constitutive element (see, e.g., Supreme Court of the British Zone, OGH br. Z., vol. I, 19). Finally, another decision, which has often been quoted in support of the plan or policy requirement, has been shown not to constitute an authoritative statement of customary international law (see In re Altst?tter, ILR 14/1947, 278 and 284 and comment thereupon in Ivan Timofeyevich Polyukhovich v The Commonwealth of Australia and Anor, (1991) 172 CLR 501, pp 586-587)."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 58:

"58.This Trial Chamber is satisfied that there is no requirement under customary international law that the acts of the accused person (or of those persons for whose acts he is criminally responsible) be connected to a policy or plan.¹⁹⁷ Such plan or policy may nevertheless be relevant to the requirement that the attack must be widespread or systematic and that the acts of the accused must be part of that attack.¹⁹⁸"

"197 - See fn 1109 in <link http www.legal-tools.org doc fd881d _blank>Kunarac Trial Judgment, at page 144 which relies, inter alia, upon the following authorities: the Judgment of the International Military Tribunal for the Trial of the German Major War Criminals, Nuremberg 30 September/1 October 1946 ("Nuremberg Judgment"), reprinted in Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 - October 1946, Vol 1, pp 84, 254, 304 (with respect to Streicher) and pp 318-319 (with respect to Von Schirach); Articles 9 and 10 of the Charter of the International Military Tribunal for the Prosecution and Punishment of the German Major War Criminals, Berlin, 6 October 1945 ("Nuremberg Charter"); the Control Council Law No 10 case of the court at Stade (Germany) ILR 14/1947, pp 100-102; Supreme Court of the British Zone, OGH br Z, Vol I, p 19 and Vol II, p 231; In re Altstotter, ILR 14/1947, pp 278, 284; the Dutch case In re Ahlbrecht, ILR 16/1949, p 396; the Australian case Ivan Timofeyevich Polyukhovich v The Commonwealth of Australia and Anor, (1991) 172 CLR 501, Case FC 91/026 at 1991 Aust Highct LEXIS 63, BC9102602; Yearbook of the International Law Commission ("ILC") (1954); Vol II, p 150; Report of the ILC on the Work of its 43rd Sess, 29 Apr – 19 July 1991, Supp No 10 (UN Doc No A/46/10), pp 265-266, of its 46th sess, 2 May – 22 July 1994, Supp No 10 (UN Doc No A/49/10), pp 75-76, of its 47th sess, 2 May-21 July 1995, pp 47, 49, 50, and of its 48th sess, 6 May – 6 July 1996, Supp No 10 (UN Doc No A/51/10), pp 93, 95-96.
198 - See <link http www.legal-tools.org doc _blank>Prosecutor v Kordic and Cerkez, Case IT-95-14/2-T, Judgment, 26 Feb 2001 (Kordic and Cerkez Trial Judgment, par 182; <link http www.legal-tools.org doc fd881d _blank>Kunarac Trial Judgment, par 432."

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 182:

"1. Widespread or systematic attack against any civilian population

[…]

182. The Trial Chamber agrees that it is not appropriate to adopt a strict view in relation to the plan or policy requirement. In particular, it endorses the Kupreskic finding that "[a]lthough the concept of crimes against humanity necessarily implies a policy element, there is some doubt as to whether it is strictly a requirement, as such, for crimes against humanity." In the Chamber’s view, the existence of a plan or policy should better be regarded as indicative of the systematic character of offences charged as crimes against humanity."

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 68:

"The Actus Reus Must be Committed as Part of a Widespread or Systematic Attack

68. The Chamber notes that "widespread", as an element of crimes against humanity, was defined in the <link http www.legal-tools.org doc b8d7bd _blank>Akayesu Judgement, as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims, whilst "systematic" was defined as thoroughly organised action, following a regular pattern on the basis of a common policy and involving substantial public or private resources[2]. The Chamber concurs with these definitions and finds that it is not essential for this policy to be adopted formally as a policy of a State. There must, however, be some kind of preconceived plan or policy.²⁵"

"25. Report on the International Law Commission to the General Assembly, 51 U.N. GAOR Supp. (No 10) at 94 U.N.Doc. A/51/10 (1996)."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 123-124:

"Widespread or Systematic

123. The attack must contain one of the alternative conditions of being widespread or systematic.⁶³ A widespread attack is one that is directed against a multiplicity of victims.⁶⁴ A systematic attack means an attack carried out pursuant to a preconceived policy or plan. Either of these conditions will serve to exclude isolated or random inhumane acts committed for purely personal reasons.⁶⁵

The Policy Element

124. For an act of mass victimisation to be a crime against humanity, it must include a policy element. Either of the requirements of widespread or systematic are enough to exclude acts not committed as part of a broader policy or plan. Additionally, the requirement that the attack must be committed against a "civilian population" inevitably demands some kind of plan and, the discriminatory element of the attack is, by its very nature, only possible as a consequence of a policy."

"63. Despite the French text containing the conjunctive ‘and’ instead of the disjunctive ‘or’ between the terms widespread or systematic, the Trial Chamber is in no doubt that the correct interpretation is the disjunctive. The matter has already been settled in the <link http www.legal-tools.org doc b8d7bd _blank>Akayesu Judgement and needs no further debate here.

64. The ILC Draft Code of Crimes explained "large scale" (the term used in place of ‘widespread’) to mean acts that are "directed against a multiplicity of victims." Article 18, para. 4 of commentary.

65. The ILC Draft Code of Crimes defines systematic as "meaning pursuant to a preconceived plan or policy. The implementation of this plan or policy could result in the repeated or continuous commission of inhumane acts. The thrust of this requirement is to exclude random acts that were not committed as part of a broader plan or policy." Article 18, para. 3 of commentary.

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 580:

"The act must be committed as part of a widespread or systematic attack.

[…]

580. The concept of ‘systematic’ may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources. There is no requirement that this policy must be adopted formally as the policy of a state. There must however be some kind of preconceived plan or policy.¹⁴⁵"

"145. Report on the International Law Commission to the General Assembly, 51 U.N. GAOR Supp. (No 10) at 94 U.N.Doc. A/51/10 (1996)."

Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 648:

"648. It is therefore the desire to exclude isolated or random acts from the notion of crimes against humanity that led to the inclusion of the requirement that the acts must be directed against a civilian "population", and either a finding of widespreadness, which refers to the number of victims, or systematicity, indicating that a pattern or methodical plan is evident, fulfils this requirement. As explained by the commentary to the I.L.C. Draft Code:

(3) The opening clause of this definition establishes the two general conditions which must be met for one of the prohibited acts to qualify as a crime against humanity covered by the present Code. The first condition requires that the act was "committed in a systematic manner or on a large scale". This first condition consists of two alternative requirements. . . Consequently, an act could constitute a crime against humanity if either of these conditions is met.

The commentary to the I.L.C. Draft Code further explains these requirements and

their origins. It states:

The first alternative requires that the inhumane acts be committed in a systematic manner meaning pursuant to a preconceived plan or policy. The implementation of this plan or policy could result in the repeated or continuous commission of inhumane acts. The thrust of this requirement is to exclude a random act that was not committed as part of a broader plan or policy. The Nürnberg Charter did not include such a requirement. None the less the Nürnberg Tribunal emphasized that the inhumane acts were committed as part of the policy of terror and were "in many cases . . . organized and systematic" in considering whether such acts constituted crimes against humanity.

(4) The second alternative requires that the inhumane acts be committed on a large scale meaning that the acts are directed against a multiplicity of victims. This requirement excludes an isolated inhumane act committed by a perpetrator acting on his own initiative and directed against a single victim. The Nürnberg Charter did not include this second requirement either. None the less the Nürnberg Tribunal further emphasized that the policy of terror was "certainly carried out on a vast scale" in its consideration of inhumane acts as possible crimes against humanity. . . . The term "large scale" in the present text . . . is sufficiently broad to cover various situations involving multiplicity of victims, for example, as a result of the cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude.¹⁴⁸"

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 188:

"188. The Prosecution submits that a widespread or systematic attack was directed against the civilian populations of Croatia, Bosnia and Vojvodina in the period from August 1991 to at least September 1993. It explains that “an orchestrated campaign of violence and mistreatment was directed against the Croatian, Muslim and other non-Serb population residing in the municipalities referred to in the Indictment”. […] According to the Prosecution, “[t]he means and methods of attack, the crimes committed and the attack’s discriminatory nature provide further proof that the attack was directed against civilian populations.” Moreover, having taken control of the municipalities of Vukovar, Zvornik, Mostar and Nevesinje, the Serbian forces, in collaboration with the local Serbian authorities, allegedly put in place a system of persecutions designed to drive out from these territories the non-Serb civilian population which was also subjected to deportation and forcible transfer."

P.17. Evidence of the general historical circumstances and the overall political background against which the criminal acts are set;

The Prosecutor v. Edouard Karemera and Mathieu Ngirumpatse, Case No. ICTR-98-44, Judgement (TC), 2 February 2012, para. 661-663:

661. The Chamber notes that the assassinations of President Habyarimana and army Chief of Staff Nsabimana did not in itself affect the composition or functions of the government. Thus, it was the assassination of Prime Minister Agathe Uwilingiyimana that created the need for the formation of a new government.

662. The Chamber, furthermore, notes that the formation of a new government, either pursuant to the 1991 Constitution or the Arusha Accords, would have required the participation of the President of the Constitutional Court to swear in new ministers.

663. Thus, the assassination of Prime Minister Agathe Uwilingiyimana made it possible to form a new government, while the elimination of the various opposition party leaders ensured that their support for the Arusha Accords would not be included. The elimination of the President of the Constitutional Court facilitated the installation of ministers appointed by the Hutu Power wings of the political parties.

P.18. Evidence of the involvement of political, governmental or military officials/authorities;

Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 194:

194. The frequency of preparatory meetings of the Network intensified in the period between 14 December 2007 and 22 December 2007, when at least three gatherings took place. In the course of these meetings, the final arrangements for the execution of the attack were made. The first one of these meetings took place in Kabongwa, more specifically in the residence of one of the members of the Network, whose house had been designated to stock the weapons to be used during the attack. The meeting was attended by, inter alia, Mr. Ruto, at least one of the three commanders, the four divisional commanders, politicians and former soldiers. Updates about the weaponry obtained to date were provided and one of the three commanders gave a demonstration on how to use hand-grenades.Moreover, the same commander informed the participants that the leaflets, referred to in another meeting at Mr. Cheramboss' house, had been duly distributed with a view to threaten the enemy communities.

The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para 562:

562. The Trial Chamber therefore finds that key VRS officers, including Mladic, Galic and Dragomir Milosevic were involved in the commission of the crimes in Sarajevo by devising and implementing a campaign of sniping and shelling on civilians, which was an integral part to the siege of Sarajevo. The Trial Chamber found that the crimes committed by VRS members, under the effective control of these VRS officers, constituted murder and attacks on civilians as violation of the laws or customs of war (Counts 2 and 4), and murder and inhumane acts as crimes against humanity (Counts 1 and 3). The Trial Chamber is therefore satisfied that these key officers and their subordinates committed the charged crimes.

P.19. Evidence of the establishment and implementation of autonomous political/military structures;

P.19.1. Evidence of the establishment of parallel institutions meant to implement policy.

P.20. Evidence of the general content of a political objective or programme, as it appears in the writings and speeches of its authors;

Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 168, 193, 216:

168. In order to properly substantiate its findings with regard to the existence of an attack against the civilian population as well as the analysis of the other contextual and specific elements of the crimes against humanity charged in the Amended DCC, the Chamber stresses that the evidence as a whole indicates that there are substantial grounds to believe that the attack referred to above is attributable to one and the same group of Kalenjin perpetrators, which did not act randomly and in a disconnected manner. Rather, the Chamber finds that different groups of perpetrators carried out the attack against the specific subset of the civilian population, namely perceived PNU supporters, in the four locations included in the counts following a unified, concerted and pre-determined strategy. To reach this conclusion, the Chamber relies on the testimonies of insider witnesses, specifically Witnesses 1, 2, 4, 6 and 8 as well as other pieces of evidence.

193. The next meeting was convened as planned at Mr. Ruto's house on the announced date, at which Mr. Sang, the three commanders and several other members of the Network were present. Mr. Sang introduced the attendees via microphone, presenting their names and their assigned duties within the Network. As in all previous planning meetings, the purpose of the attack, namely to evict the enemy communities, including Kikuyu, was confirmed. Mr. Ruto addressed the attendees as follows: "[...] we have done big things. These people we are going to kill. The Kikuyus, and the Kisiis and the Kambas in vicinity. Do you promise me we will do that or not?" In response, people promised to obey his orders. Apart from these assurances regarding the attack as planned, the meeting was mainly focused on the logistical and financial arrangements for the purposes of the execution of the attack. More specifically, arrangements were made for the transportation of gas cylinders to Eldoret town "to burn the big houses belonging to the Kikuyus". Also, weapons and ammunitions were distributed to representatives of different regions where the attack should take place. Moreover, a stipendiary scheme was established based on the rank of the perpetrators, whereby former soldiers were paid higher than the youths. This salary scheme was supposed to be integrated into a rewarding mechanism according to which a given sum of money was paid for every Kikuyu, Kamba and Kisii killed during the attack.

216. Having reviewed the evidence submitted by the parties, the Chamber considers that there are substantial grounds to believe that the Network promoted a policy aimed at targeting members of the civilian population supporting the PNU, in order to punish them and evict them from the Rift Valley

P.21. Evidence of media propaganda;

P.22. Evidence of the mobilisation of armed forces;

The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyattta and Mohammed Hussein Ali, Case No. ICC-01/09-02/11, Decision of confirmation of charges (PTC), 23 January 2012, para. 160-61, 163:

160. First, the Chamber turns to the allegation that the attackers were ferried from elsewhere. In this respect. Witness OTP-2 states that "people from other areas" and not only locals were involved in the attack in Naivasha. According to this witness, especially in Kabati estate the attackers were not known to their victims. In addition, the HRW Report quotes a victim who reported seeing three trucks with armed men arriving in Naivaisha "on the night of Saturday, January 26".

161. This constitutes, in the view of the Chamber, sufficient corroboration of the evidence discussed above in relation to the planning in Central Province and the subsequent organization and transport of Mungiki members to Naivasha for the purpose of the attack The Chamber is therefore satisfied that the attackers in Naivasha included non-residents who were transported to Naivasha with the specific purpose to attack.

163. Although there are certain references in the evidence to the fact that some attackers arrived from elsewhere, the Chamber considers that, viewed as whole, the evidence establishes that the majority of the attackers in Nakuru were local Mungiki. However, the Chamber recalls its above consideration to the effect that this fact is not in itself required for the overall determination of the organized and systematic nature of the attack.

P.23. Evidence of the temporally and geographically repeated and co-ordinated military offensives;

ICC, The Prosecutor v. Callixte Mbarushimana , ICC-01/04-01/10, Decision on the confirmation of charges (PTC), 16 December 2011, para. 263-267:

"At this juncture, the Majority recalls that the "policy" element required by article 7 of the Statute need not be formalised. However, in light of the analysis of the evidence as a whole, and, in particular, several discrepancies between the Prosecution’s allegations and the evidence submitted, the Majority is unable to be satisfied to the threshold of substantial grounds to believe that the FDLR pursued the policy of attacking the civilian population. The Majority further notes that the alleged policy to create a "humanitarian catastrophe" in the terms alleged by the Prosecution could not be inferred, to the requisite threshold, from the Chamber’s findings in the War Crimes Section.

264. Indeed, although the Chamber has found substantial grounds to believe that acts amounting to war crimes were committed on 5⁶³⁸ out of the 25 occasions alleged by the Prosecution, the evidence submitted is, nevertheless, insufficient for the Majority to be convinced, to the threshold of substantial grounds to believe, that such acts were part of a course of conduct amounting to "an attack directed against the civilian population", within the meaning of article 7 of the Statute.

265. Further, as found in the War Crimes Section, the 5 occasions on which war crimes were found to have been committed are scattered over a 6 month period. The Majority further notes that the 4 attacks against the civilian population that the Chamber found to have been committed (in Mianga on or about 12 April 2009, Busurungi on or about 9-10 May 2009, Manje on or about 20 July 2009 and Malembe on or about 11 to 16 August 2009) were mostly carried out in retaliation for attacks carried out by the FARDC/Mai Mai on the FDLR and/or Rwandese⁶³⁹ civilians, were all launched with the aim of targeting both military objectives (FARDC positions in those villages and surroundings) and the civilian population or individual civilians not taking direct part in the hostilities, who were perceived as supporting the FARDC. Accordingly, such attacks cannot be considered to be part of any larger organised campaign specifically designed to be directed against the civilian population.

266. In view of the foregoing, absent the essential requirement that the crimes were committed pursuant to or in furtherance of an organisational policy to commit an attack directed against the civilian population, as set out in article 7(1) and (2)(a) of the Statute, the Majority of the Chamber, the Presiding Judge dissenting, deems it unnecessary to analyse the remaining elements of the crimes against humanity charged by the Prosecution.

267. Accordingly, the Majority finds that there are not substantial grounds to believe that the crimes against humanity of murder under article 7(l)(a) of the Statute, inhumane acts under article 7(l)(k) of the Statute, rape under article 7(l)(g) of the Statute, torture under article 7(l)(f) of the Statute and persecution under article 7(l)(h) of the Statute were committed by the FDLR troops in: Remeka in late January and in late February 2009, Busheke in late January 2009, Kipopo on or about 12-13 February 2009, Mianga on or about 12 April 2009, Luofu and Kasiki on or about 18 April 2009, Busurungi and neighbouring villages on or about 28 April 2009, and on or about 9-10 May 2009, Manje on or about 20-21 July, tiie village of W-673 and W-674 in Masisi territory in the second half of 2009, Ruvundi in October 2009, Mutakato on or about 2-3 December 2009, Kahole on or about 6 December 2009, Pinga on or about 12 February 2009 and on or about 14 February 2009, Miriki in February 2009 or Malembe on or about 11-16 August 2009 and 15 September 2009."

"638. Busurungi in March 2009, Mianga on or about 12 April 2009, Busurungi on or about 9-10 May 2009, Manje on or about 20 July 2009 and Malembe on or about 11 to 16 August 2009.

639. Summary of interview of Witness 559, EVD-PT-OTP-00848, at 0974, paragraph 6; Transcript of Interview of Witness 561, EVD-PT-OTP-00631 at 1307, 1340 ("Interpreter:[...] they told us that we were to attack the soldiers who were based in BUSURUNGI[...] just to retaliate") and at 1350; EVD-PT-D06-01307,Transcript of Interview of Witness 526, at 0344, 0346. (Investigator: "OK. Were you trying to defend yourselves and get back to [REDACTED]? Interpreter: Yes"; Investigator: "was your task and was your duty there to defend that village from attack? Interpreter: Yes"); EVD-PT-OTP-00715, transcript of interview of Witness 527,at 0490 ("Interpreter:...FDLR, the MURWANASHYAKA and the other ones, were saying that if weare attacked we will defend ourselves")".

Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 179:

179. In addition, there are substantial grounds to believe that the attack was systematic. An attack is systematic when it implies the "organised nature of the acts of violence and the improbability of their random occurrence". Several factors lead the Chamber to this conclusion, which is supported by the testimonies of various witnesses as well as by pieces of indirect evidence. First, the Chamber reiterates that, in the preparatory phase of the attack as well as during its execution, coordinators were in charge of identifying houses belonging to PNU supporters to be attacked in the different target locations. Some of these coordinators were later deployed on the ground to assist the perpetrators and make sure that the selected properties were attacked and burnt down and that PNU supporters were victimized. Second, the evidence shows that the perpetrators approached the target locations simultaneously, in large numbers, and from different directions, by vehicles or on foot, or both.262 Third, the perpetrators erected roadblocks around such locations with a view toward intercepting PNU supporters attempting to flee, with the aim of eventually killing them. Finally, the evidence indicates that, in the actual implementation of the attack, the physical perpetrators used petrol and other inflammable material to systematically burn down the properties belonging to PNU supporters.

P.24. Evidence of the links between the military hierarchy and the political structure and its political programme;

P.25. Evidence of the alterations to the "ethnic" composition of populations; Evidence of discriminatory measures, whether administrative or other.

P.25.1. Evidence of discriminatory banking restrictions.

P.25.2. Evidence of discriminatory policies regarding laissez-passers.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 203-204, 631:

"203. The systematic character refers to four elements which for the purposes of this case may be expressed as follows:

- the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or weaken a community³⁷⁹;

- the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another ³⁸⁰;

- the preparation and use of significant public or private resources, whether military or other³⁸¹;

- the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan.

204. This plan, however, need not necessarily be declared expressly or even stated clearly and precisely ³⁸² . It may be surmised from the occurrence of a series of events ³⁸³, inter alia:

- the general historical circumstances and the overall political background against which the criminal acts are set;

- the establishment and implementation of autonomous political structures at any level of authority in a given territory;

- the general content of a political programme, as it appears in the writings and speeches of its authors;

- media propaganda;

- the establishment and implementation of autonomous military structures;

- the mobilisation of armed forces;

- temporally and geographically repeated and co-ordinated military offensives;

- links between the military hierarchy and the political structure and its political programme

- alterations to the "ethnic" composition of populations;

- discriminatory measures, whether administrative or other (banking restrictions, laissez-passer,…)

- the scale of the acts of violence perpetrated – in particular, murders and other physical acts of violence, rape, arbitrary imprisonment, deportations and expulsions or the destruction of non-military property, in particular, sacral sites."

380. According to the Report of the ILC on the work of its 48th session, the term systematic means "pursuant to a preconceived plan or policy. The implementation of this plan or policy could result in the repeated or continuous commission of inhumane acts" (emphasis added) (Report of the ILC on the work of its 48th session, 6 May – 26 July 1996, supplement no. 10 (A/51/10) (hereinafter the "1996 ILC Report"), p. 94). This definition is in keeping with the preceding work of the ILC and, in particular, that of its 43rd session which created the offence of "Systematic or mass violations of human rights" under Article 21 and which stated that the systematic characteristic related to a "constant practice or to a methodical plan to carry out [...] violations of human rights" (emphasis added) (1991 ILC Report, p. 266).

381. In the <link http www.legal-tools.org doc b8d7bd _blank>Akayesu Judgement, the Judges referred to the concerted policy and use of "substantial public or private resources" to characterise the systematic nature (para. 580).

382. Cf. especially, the <link http www.legal-tools.org doc a0948e _blank>Tadic Judgement, para. 653.

383. Review of the Indictments Pursuant to Article 61 of the Rules of Procedure and Evidence, The Prosecutor v. Radovan Karadzic and Ratko Mladic, Case no. IT-95-5-R61, 11 July 1996, (hereinafter "Article 61 Karadzic and Mladic"), para. 43; Review of the Indictment Pursuant to Article 61 of the Rules of Procedure and Evidence, The Prosecutor v. Dragan Nikolic, Case no. IT-94-2-R61, 20 October 1995, (hereinafter "Article 61 Nikolic"), para. 27; Review of the Indictment Pursuant to Article 61 of the Rules of Procedure and Evidence, The Prosecutor v. Milan Martic, Case no. IT-95-11-R61, 8 March 1996, para. 27."

"631. In that connection, the Trial Chamber notes that the Kiseljak authorities created an official commission responsible for driving civilians out of the region¹⁴⁵⁵."

"1455. Witness LL, PT p. 8026, p. 8050; witness WW, PT p. 9705."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 53:

"53. The existence of an acknowledged policy targeting a particular community, the establishment of parallel institutions meant to implement this policy, the involvement of high-level political or military authorities, the employment of considerable financial, military or other resources and the scale or the repeated, unchanging and continuous nature of the violence committed against a particular civilian population are among the factors which may demonstrate the widespread or systematic nature of an attack."

P.26. Evidence of the scale of the acts of violence perpetrated – in particular, murders and other physical acts of violence, rape, arbitrary imprisonment, deportations and expulsions or the destruction of non-military property, in particular, sacral sites.

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 159:

"159. The Trial Chamber is satisfied beyond reasonable doubt that there was a widespread or systematic attack against the Bosnian Muslim and Bosnian Croat civilian population in the Bosnian Krajina during the period relevant to the Indictment. The attack took many forms. By the end of 1992, nearly all Bosnian Muslims and Bosnian Croats had been dismissed from their jobs in, amongst others, the media, the army, the police, the judiciary and public companies.⁴⁰⁹ Numerous crimes were committed against Bosnian Muslims and Bosnian Croats, including murder, torture, beatings, rape, plunder and the destruction of property.⁴¹⁰ Villages were shelled, houses were torched and looted.⁴¹¹ In the spring of 1992, a number of detention camps where Bosnian Muslim and Bosnian Croat civilians were arrested and detained en masse were established throughout the ARK.⁴¹² In several instances, mass killings of civilians took place.⁴¹³ Moreover, a policy of "ethnically cleansing" the ARK of its non-Serb population was systematically implemented by the Bosnian Serbs. Indeed, tens of thousands of Bosnian Muslims and Bosnian Croats were forcibly expelled from the ARK by the Bosnian Serbs and taken in convoys of buses and trains to Bosnian Muslim held territory in BiH or to Croatia.On the basis of the pattern of conduct by which these crimes were committed throughout the Bosnian Krajina, the Trial Chamber is satisfied that they were mostly perpetrated with a view to implement the Strategic Plan.^414"

"409. See paras 84-86 infra .

410. The following chapters of this Judgement develop each of these specific crimes.

411. IX.D., "Destructions", will develop Count 10 (Unlawful and wanton extensive destruction and appropriation of property not justified by military necessity), Count 11 (Wanton destruction of cities, towns or villages or devastation not justified by military necessity) and Count 12 (Destruction or wilful damage done to institutions dedicated to religion).

412. The establishment of detention camps for civilians will be developed in several sections of Chapter IX of this Judgement, namely Sections A, "Extermination and Wilful Killing", B, "Torture", and E, "Genocide".

413. Count 4 (Extermination) and Count 5 (Wilful killing) will be developed in IX.A. of this judgement.

414. IX.C., "Deportation and Inhumane Acts" infra will specifically develop Count 8 (Deportation) and Count 9 ( Inhumane Acts) of the Indictment."

Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 628-629:

"628. Recalling that the requirement that an attack be widespread or systematic is disjunctive, the Trial Chamber is nonetheless satisfied beyond reasonable doubt that the attack has to be characterised as both widespread and systematic.

629. The Chamber is satisfied that the attack directed against the civilian population was prepared as of 7 January 1992 when the Assembly of the Serbian People in Prijedor was first established. The plan to rid the Prijedor municipality of non-Serbs and others not loyal to the Serb authorities was activated through the takeover of power by Serbs on 30 April 1992. Thereafter the attack directed against the civilian population intensified, according to the plan, culminating with the attacks on Hambarine and Kozarac in late May 1992. Attacks on predominantly non-Serb areas including the Brdjo region ensued, with hundreds of non-Serbs killed and many more arrested and detained by the Serb authorities, inter alia in detention facilities."

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 238, 240:

"238. The Chamber is satisfied that there was a widespread and systematic attack against the Muslim civilian population in Mostar, Sovici and Doljani at the time relevant to the Indictment. The attack took many forms. It started with the collection and detention of Muslim civilians after the fierce fighting around Sovici and Doljani and their subsequent transfer to detention centres and, later, to territory controlled by the ABiH.⁶³¹ The BH Muslim houses in the area were burnt to make sure that there would be no return of the Muslim population.⁶³² BH Muslim religious sites, like the mosques in the area, were systematically destroyed.⁶³³ Detention facilities for the BH Muslim part of the population were established all over the area.⁶³⁴ Detained BH Muslim civilians and BH Muslim soldiers hors de combat were often subjected to humiliating and brutal mistreatment by soldiers who had unfettered access to the detention facilities.^635"

"631. See supra paras 30-35.

632. See infra paras 582-585.

633. Witness Said Smajkic testified that out of the 20 mosques in the area, there was not a single one left that could receive believers to come for prayers as the destruction was large-scale, witness Said Smajikic, T 4079. Witness O corroborated this evidence, testifying that all mosques were literally razed to the ground, witness O, T 2158.

634. See supra para 55 and infra paras 643-665.

635. See infra paras 346-456."

"240. The evidence thus establishes that there was a widespread and systematic attack against the Muslim part of the civilian population in the area relevant to the Indictment. It further establishes that this campaign had a specific aim: to transform the formerly ethnically mixed area in and around Mostar⁶⁴² into BH Croat territory, to be populated by an ethnically pure BH Croat population.

"642. Witness P testified that Mostar had the highest rate of inter-ethnic marriages of any city in Bosnia and Herzegovina and the relationship between BH Croats and BH Muslims was once strong as it was a very integrated community, witness P, T 2244."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 612:

"612. The Trial Chamber is satisfied that a widespread and systematic attack by the Serb forces against the non-Serb civilian population took place in and around Foca in the period covered by the Indictment, and that the acts which took place at the KP Dom were part thereof. This attack included the systematic rounding up and imprisonment of non-Serb civilians, the burning and destruction of non-Serb, mostly Muslim, properties, the demolition of several mosques in the Foca town and municipality, the unlawful killing of non-Serb civilians, as well as the torture and mistreatment of many male non-Serb detainees at the KP Dom.^203"

"203. See pars 12-50, supra."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 425, 467-468, 626-627, 630:

"890. PT p. 23584.

891. Witness Thomas, PT pp. 2672 and 2674.

892. Witness Blaškic, PT pp. 19036-19037.

893. P 184; witness Marin, PT p. 13631.

"467. Lastly, the idea that these crimes could have been committed by uncontrolled elements is impossible to reconcile with the scale and uniformity of the crimes committed on 16 April in the municipality of Vitez. The Trial Chamber adopts the opinion expressed by witness Morsink, a professional soldier acting as an observer for the ECMM at the material time:

I believe that one or two minor cases may have been committed by small, uncontrolled groups, but the large-scale and systematic manner in which these events took place , entire villages being burned, and other villages, we saw that it was the Muslim houses that were systematically selected, and we saw that the same type of events were taking place at the same time period in different locations, and it would be impossible, in my opinion, for this to have been carried out by uncontrolled groups ⁹⁷⁵.

The planned nature and, in particular, the fact that all these units acted in a perfectly co-ordinated manner presupposes in fact that those troops were responding to a single command, which accordingly could only be superior to the commander of each of those units.

468. In this connection, it is worth recalling that that was the opinion expressed by the accused himselfKunarac Appeal Judgement, para. 94.

1853. Yearbook of the International Law Commission 1996, Volume II, part 2, Report of the Commission to the General Assembly on the work of its forty-eight session, p. 47."

Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 630:

"630. Having established that the attack was systematic, it is not strictly necessary to consider the requirement that the attack be widespread. Nonetheless, the Chamber finds that the attack on the non-Serb population of Prijedor was also widespread. The attacks, as such, occurred throughout the municipality of Prijedor, initially in Hambarine and Kozarac, and then spreading to the whole of the Brdjo region. Moreover, thousands of citizens of Prijedor municipality passed through one or more of the three main detention camps, Omarska, Keraterm and Trnopolje, established in the towns of Omarska, Prijedor and Trnopolje respectively."

P.29. Evidence of substantial public or private resources involved;

P.29.1. Evidence of the substantial use of logistics;

P.29.2. Evidence of the substantial use of human resources;

Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 190:

190. On 2 November 2007, as planned, the next meeting took place at Mr. Ruto's house in the presence of, inter alia, Mr. Ruto, Mr. Sang,? several members of the Parliament, the three commanders, Kalenjin elders, traditional elders, and a number of coordinators who were assigned to gather the persons who would carry out the attack against members of the Kikuyu, Kamba and Kisii communities. During the meeting, Mr. Ruto reminded those present that the lands and farms in Rift Valley, which historically belonged to the Kalenjins, are currently owned by the Kikuyu.Thus, people must be united and ready to fight for power. Mr. Ruto, as the leader of the Network, declared that he was ''going to lead this war by the front" . As a follow-up, he ordered the three commanders to line up and present their respective lists of coordinators. Thereafter, he gave guns and ammunition to the three commanders in a symbolic distribution and mentioned that the next meeting at his house would take place on 14 December 2007.

Prosecutor v. Jovica Stanišić and Franko Simatovic , Case No. IT-03-69-A, Judgement (AC), 9 December 2015, paras. 96-108:

“96. The Prosecution asserts that the Trial Chamber erred in law by following the Perisić Appeal Judgement and requiring that the acts of an aider and abettor be specifically directed to assist the commission of a crime.³⁴⁸ More specifically, the Prosecution argues that: (i) the specific direction requirement has no basis under customary international law;³⁴⁹ (ii) the Perisić Appeal Judgement mischaracterised the Tribunal’s prior case-law when finding that specific direction is an element of the actus reus of aiding and abetting;³⁵⁰ (iii) the Perisić Appeal Judgement introduced vague concepts which create considerable uncertainty and practical difficulties and make decisions on when acts may lead to criminal liability unpredictable;³⁵¹ and (iv) the specific direction requirement undermines the principles of and respect for international humanitarian law.³⁵² The Prosecution submits that, independently or together, these constitute cogent reasons that require the Appeals Chamber to depart from the Perisić Appeal Judgement with respect to specific direction.³⁵³”

348. Prosecution Appeal Brief, paras 129, 131, referring to Trial Judgement, para. 1264.

349. Prosecution Appeal Brief, paras 132-137; AT. 9.

350.  Prosecution Appeal Brief, paras 132, 138-142. See also Prosecution Appeal Brief, paras 134-137.

351.  Prosecution Appeal Brief, paras 132, 143-149. In particular, the Prosecution avers that, while the Perisić Appeal Judgement states that specific direction establishes a “culpable link” between the assistance provided by the aider and abettor and the crimes of the principal perpetrators, it does not provide any further guidance as to its meaning. See Prosecution Appeal Brief, para. 144. The Prosecution also submits that, by requiring specific direction as an element of the actus reus of aiding and abetting in cases where the accused was “remote”, the Perisić Appeal Judgement effectively requires evidence on the state of mind of the accused. According to the Prosecution, the analysis of the evidence in the Perisić Appeal Judgement further suggests that this state of mind needs to be higher than the mens rea of knowledge required for aiding and abetting, and therefore blurs the distinction between aiding and abetting and JCE. See Prosecution Appeal Brief, paras 145-147.

352.  Prosecution Appeal Brief, paras 132, 150-152.

353.  Prosecution Appeal Brief, paras 129, 132, 137-138, 142-143, 149, 152. See also Prosecution Reply Brief, paras 26-51. 

“97. During the appeal hearing, the Prosecution noted that, in the Šainović et al. Appeal Judgement and the Popovic et al. Appeal Judgement issued subsequent to the Perisić Appeal Judgement, the specific direction requirement had been found to be inconsistent with customary international law and that the Trial Chamber’s analysis of aiding and abetting and the resultant acquittals were “tainted by the now rejected specific direction requirement”.³⁵⁴”

354. AT. 18. See also AT. 9, 99-100, referring to Šainović et al. Appeal Judgement, para. 1649, Popovic et al. Appeal Judgement, para. 1758. 

“98. Stanišić responds that the Prosecution has failed to show cogent reasons to depart from the Perisić Appeal Judgement, which affirms that specific direction is an element of aiding and abetting.³⁵⁵ He maintains that the Perisić Appeal Judgement was decided correctly and that the Prosecution’s submissions are devoid of merit.³⁵⁶ In particular, Stanišić submits that the jurisprudence of the Tribunal and the ICTR as well as customary international law have required specific direction as an element of aiding and abetting³⁵⁷ and that the Prosecution has failed to prove that the Appeals Chamber in the Perisić case “mischaracterised” the previous decisions of the Tribunal and “overstated” the significance of specific direction.³⁵⁸ Stanišić further asserts that the specific direction element establishes the “culpable link between assistance provided by an accused individual and the crimes of principal perpetrators” and that whether specific direction is best characterised as an element of the actus reus or the mens rea is, for this purpose, “of lesser importance”.³⁵⁹”

355. Stanišić Response Brief, paras 104-105, 109, 111, 161. Stanišić also contends that the Prosecution is “forum shopping” as the submissions are similar to the arguments it advanced in the Perisić case, which were rejected by the Appeals Chamber. See Stanišić Response Brief, paras 109-110, 161.

356. Stanišić Response Brief, paras 105, 111, 161.

357. Stanišić Response Brief, paras 112-123, 129-153, Public Annex I.

358. Stanišić Response Brief, paras 124-128. Stanišić also submits that the element of specific direction neither introduces vague concepts nor undermines respect for international humanitarian law, but rather supports the goals of international humanitarian law by ensuring certainty and specificity in the attribution of responsibility. See Stanišić Response Brief, paras 155-160. 

359. Stanišić Response Brief, para. 106, referring to Perisić Appeal Judgement, para. 37. See also Stanišić Response Brief, paras 107-108. 

“99. At the appeal hearing, Stanišić submitted that, even assuming that the Trial Chamber erred in law in requiring that specific direction is an essential element of the actus reus of aiding and abetting, this error would not invalidate his acquittal.³⁶⁰ In his view, regardless of whether specific direction is required as a distinct element, “[t]he Trial Chamber’s analysis encompassed all factors that could have been examined as specific direction, but without a shadow of doubt, according to the jurisprudence of this Tribunal, had to be considered by any reasonable Trial Chamber in deciding substantial effect”.³⁶¹ Stanišić further submitted that, having considered all these factors, the Trial Chamber’s analysis that “the kind of assistance” he and Simatović provided did not have “the required [substantial] effect on the perpetration of the crimes” is “eminently reasonable”.³⁶²”

360. AT. 58-59. 

361. AT. 60. 

362. AT. 59-61, referring to Trial Judgement, paras 2359-2361.

“100. Simatovic responds that customary international law as well as the jurisprudence of the Tribunal and the ICTR recognise specific direction as an integral element of the actus reus of aiding and abetting; an approach that has been consistently taken by the Appeals Chamber since it was first articulated in the Tadic Appeal Judgement.³⁶³ Simatović also submits that abandoning the concept of specific direction would create difficulties and vagueness in establishing the actus reus of aiding and abetting.³⁶⁴ He further avers that the mens rea standard for aiding and abetting, which is derived from customary international law, requires the existence of a “purpose” or “aim” and that “mere awareness” is not sufficient.³⁶⁵ Simatovic adds that the Appeals Chamber in the present case “must take into account not only the notion of specific direction as an element of actus reus of aiding and abetting but also the generally adopted standard of customary international law which foresees the existence of a purpose-aim as a sine qua non element of aiding and abetting.”³⁶⁶”

363. Simatovic Response Brief, paras 190-191, 223; AT. 73, 83. See also Simatovic Response Brief, paras 194-201. Simatovic also asserts that the Perisić Appeal Judgement correctly established the concept of “culpable link” between assistance provided by the aider and abettor and the crimes of the principal perpetrators. See Simatović Response Brief, paras 204-205, referring to Perisić Appeal Judgement, paras 37-38.

364. Simatovic Response Brief, paras 202-203.

365. Simatović Response Brief, para. 206. In this context, Simatović also argues that the “purpose – aim” standard for the mens rea of aiding and abetting is reflected in Article 25(3)(c) of the Rome Statute of the International Criminal Court (“ICC Statute”), which required that the accused acted with the aim of facilitating the commission of a crime. See Simatović Response Brief, paras 206-213, 216, 219. He also argues that this standard has been accepted by States not party to the ICC Statute, including the United States. See Simatović Response Brief, paras 214-215, referring to Presbytarian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, para. 259 (2nd Cir. 2009), Aziz v. Alcolac, Inc., 658 F.3d 388, para. 401 (4th Cir. 2011). He further asserts that the Tribunal’s case-law relating to the mens rea of aiding and abetting is inconsistent and that it should be revised along the lines of customary international law. See Simatović Response Brief, paras 216-222.

366. Simatović Response Brief, para. 223.

“101. In reply, the Prosecution submits that neither Stanišić nor Simatović has demonstrated that specific direction is grounded in customary international law.³⁶⁷ It also argues that, by acknowledging their uncertainty as to whether specific direction is an element of the mens rea or the actus reus, both Stanišić and Simatović “lend credence to” the Prosecution’s contention that the notion of “specific direction” introduces vague concepts.³⁶⁸ The Prosecution adds that both Stanišić and Simatović have violated the Tribunal’s “practice requirements” by failing to file a book of authorities with their respective response briefs and that, for this reason alone, their arguments relying on authorities other than the jurisprudence of the Tribunal and the ICTR should be disregarded.³⁶⁹”

367. Prosecution Reply Brief, para. 25. See also Prosecution Reply Brief, paras 28, 33-42, 47, 49-51.

368.  Prosecution Reply Brief, paras 25, 43. According to the Prosecution, Stanišić also relies on domestic sources discussing the mens rea of aiding and abetting liability to support the Perišić Appeal Judgement. It also points out that, similarly, Simatović argues in favour of specific direction as a requirement of the actus reus and then drifts into an unpersuasive argument to change the mens rea standard from “knowledge” to “purpose”. See Prosecution Reply Brief, paras 25, 37-38, 48.

369.  Prosecution Reply Brief, para. 25. 

“102. Finally, with regard to Stanišić’s argument that the Trial Chamber’s error would have had no impact on his acquittal, the Prosecution replied that the Trial Chamber considered that his and Simatović’s assistance did not have a substantial effect because their acts were not specifically directed at the crimes, and therefore that his acquittal was a direct result of “this erroneous requirement”.³⁷⁰”

370. AT. 99-100.

“103. As a preliminary matter, the Appeals Chamber first turns to the Prosecution’s argument that, in light of Stanišić’s and Simatović’s failure to submit their respective book of authorities, their submissions relying on authorities other than the jurisprudence of the Tribunal and the ICTR should be disregarded. The Practice Direction requires that a book of authorities be attached to a response brief, containing a separate compilation setting out clearly all authorities relied upon, a table of contents, and an authorised version of all authorities other than those of the Tribunal and the ICTR, with an English or French translation when necessary.³⁷¹ The Appeals Chamber observes that, while both Stanišić and Simatović cited numerous authorities other than those of the Tribunal and the ICTR in support of their arguments on specific direction,³⁷² neither of them provided a book of authorities as required by the Practice Direction. Stanišić did provide a table of authorities,³⁷³ but without copies of the texts attached.³⁷⁴ Stanišić and Simatović have therefore failed to comply with the Practice Direction. However, since both Stanišić and Simatović refer sufficiently clearly to the authorities relied upon in their respective response briefs, this failure did not materially prejudice the Prosecution.³⁷⁵ The Appeals Chamber therefore dismisses the Prosecution’s argument in this respect.³⁷⁶”

371. Practice Direction, paras 7-9.

372. See, e.g., Stanišić Response Brief, fns 191, 220-224; Simatović Response Brief, fns 247, 252-253.

373. Stanišić Response Brief, Public Annex III.

374. The public annex I to the Stanišić Response Brief, which allegedly sets out State practice and opinio juris on aiding and abetting, gives extracts from relevant national laws and jurisprudence. See Stanišić Response Brief, paras 131, 161, Public Annex I. Although it includes some of the authorities cited in the Stanišić Response Brief itself, it does not include all of them. Compare Stanišić Response Brief, fns 191, 220-224 with Stanišić Response Brief, Public Annex I. In addition, the passages contained in this annex seem to have been typed out by Stanišić’s counsel from various sources and cannot be considered authorised versions, i.e. photo-copies of the actual authorities.

375. See Prosecution Reply Brief, paras 32, 37-38, 49-50, responding to Stanišić’s and Simatović’s arguments on the jurisprudence other than that of the Tribunal and the ICTR with references to the contents of such jurisprudence.

376. The Appeals Chamber recalls that the Practice Direction endows it with discretion as to whether, and if so, how to sanction a party on failure to comply with its requirements. See Practice Direction, para. 17. 

“104. Turning to the question of specific direction, the Appeals Chamber recalls that, in the Šainović et al. Appeal Judgement, which was issued subsequent to the Perišić Appeal Judgement, it clarified that specific direction is not an element of aiding and abetting liability.377 In arriving at this conclusion, it carefully reviewed the jurisprudence of the Tribunal and the ICTR in this regard378 and re-examined the elements of aiding and abetting liability under customary international law.379 The Appeals Chamber then observed that, neither in the jurisprudence of the Tribunal and the ICTR nor under customary international law, had specific direction been considered to be an element of aiding and abetting liability.380 As a result, it rejected the approach adopted in the Perišić Appeal Judgement, which required specific direction as an element of the actus reus of aiding and abetting,381 and held that this approach was “in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law”.382 The Appeals Chamber re-affirmed that, “under customary international law, the actus reus of aiding and abetting ‘consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime’” and that “[t]he required mens rea is ‘the knowledge that these acts assist the commission of the offense’.”383”

377. Šainović et al. Appeal Judgement, para. 1649.

378. Šainović et al. Appeal Judgement, paras 1623-1625, referring to Tadić Appeal Judgement, para. 229, Aleksovski Appeal Judgement, para. 163, Gotovina and Markač Appeal Judgement, para. 127, Brdanin Appeal Judgement, para. 151, Krstić Appeal Judgement, para. 137, Čelebići Appeal Judgement, para. 352, Blaškić Appeal Judgement, paras 45-46 (quoting Blaškić Trial Judgement, para. 283, in turn quoting Furund`ija Trial Judgement, para. 249), Krnojelac Appeal Judgement, paras 33, 37, Kvočka et al. Appeal Judgement, paras 89-90, Blagojević and Jokić Appeal Judgement, paras 127, 186, 189, 191, 193-194, Simić Appeal Judgement, para. 85, Orić Appeal Judgement, para. 43, Vasiljević Appeal Judgement, paras 102, 134-135, Kupreškić et al. Appeal Judgement, paras 254, 283, Karera Appeal Judgement, para. 321, Nahimana et al. Appeal Judgement, paras 482, 672, Kalimanzira Appeal Judgement, para. 74, Ntawukulilyayo Appeal Judgement, paras 214, 216, Rukundo Appeal Judgement, para. 52, Muvunyi I Appeal Judgement, para. 79, Seromba Appeal Judgement, para. 139, Muhimana Appeal Judgement, para. 189, Ntagerura et al. Appeal Judgement, para. 370, Ntakirutimana Appeal Judgement, para. 530. See also Šainović et al. Appeal Judgement, paras 1619, 1650, referring to Mrkšić and [ljivančanin Appeal Judgement, para. 159, Lukić and Lukić Appeal Judgement, para. 424. See further Šainovi] et al. Appeal Judgement, para. 1622.

379. Šainović et al. Appeal Judgement, paras 1626-1648. The Appeals Chamber examined the jurisprudence derived from cases which dealt with crimes committed during the Second World War and found that, in none of these relevant cases, was “specific direction” required as a distinct element. See Šainović et al. Appeal Judgement, paras 1627-1642. The Appeals Chamber also reviewed national law and held that requiring specific direction for aiding and abetting liability is not a general, uniform practice in national jurisdictions. See Šainović et al. Appeal Judgement, paras 1643-1646. Finally, the Appeals Chamber examined international instruments (the Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission in 1996 and the ICC Statute) and found no support for the proposition that specific direction is an element of aiding and abetting liability under customary international law. See Šainović et al. Appeal Judgement, paras 1647-1648. See also Šainović et al. Appeal Judgement, para. 1622.

380. Šainović et al. Appeal Judgement, paras 1623-1625, 1649.

381. Perišić Appeal Judgement, para. 36.

382. Šainović et al. Appeal Judgement, para. 1650.

383. Šainović et al. Appeal Judgement, para. 1649, quoting Blaškić Appeal Judgement, para. 46, in turn quoting Blaškić Trial Judgement, para. 283, in turn quoting Furund`ija Trial Judgement, para. 249. Accordingly, the Appeals Chamber confirmed that “the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements stated the prevailing law in holding that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting, accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability”. See Šainović et al. Appeal Judgement, para. 1650 (internal references omitted).

“105. Subsequently, in the Popović et al. Appeal Judgement, the Appeals Chamber re-affirmed that “‘specific direction’ is not an element of aiding and abetting liability under customary international law”.384”

384. Popović et al. Appeal Judgement, para. 1758, quoting Šainović et al. Appeal Judgement, para. 1649. See also Popović et al. Appeal Judgement, paras 1764, 1783.

“106. Accordingly, the Appeals Chamber, Judge Agius and Judge Afande dissenting, finds that the Trial Chamber erred in law in requiring that the acts of the aider and abettor be specifically directed to assist the commission of a crime. This also means that the Trial Chamber erred in law in making a finding on a substantial effect of the contributory acts contingent upon establishing specific direction, by holding that, when assessing whether the acts carried out by the aider and abettor have a substantial effect on the perpetration of a crime, the Trial Chamber must find that they are specifically directed to assist that crime.385”

385. Trial Judgement, para. 1264. In this regard, the Appeals Chamber notes that the Trial Chamber took a slightly different approach from the Perišić Appeal Judgement, which considered substantial contribution by an aider and abettor to be a requirement independent from, and in addition to, specific direction, and stated that substantial contribution may be one of the factors for determining whether specific direction is established. See Perišić Appeal Judgement, paras 38-39. In the present case, the Prosecution asserts that, even accepting that specific direction constitutes an element of the actus reus of aiding and abetting, the Trial Chamber misapplied the legal test for aiding and abetting as set out in the Perišić Appeal Judgement, by making a finding of substantial contribution contingent upon establishing specific direction. See Prosecution Appeal Brief, para. 161. See also Prosecution Appeal Brief, paras 154-155. Given that the Appeals Chamber has found that specific direction is not an element of aiding and abetting liability, the Prosecution’s argument is moot to the extent that it concerns the Trial Chamber’s misapplication of the legal test as set out in the Perišić Appeal Judgement.

“107. The Appeals Chamber is not persuaded by Stanišić’s argument that, even if the Trial Chamber erred in law in requiring that specific direction is an essential element of the actus reus of aiding and abetting, this error would have no impact on its conclusion that the substantial effect requirement was not fulfilled and, in turn, would not invalidate his acquittal. The Trial Chamber found that the substantial effect requirement was not met because the evidence did not establish specific direction.386 This means that, had the Trial Chamber not made the finding on substantial contribution contingent upon specific direction, it might have found that the evidence establishes that the contributory acts had a substantial effect on the crimes even if it was insufficient to establish specific direction.”

386. See Trial Judgement, para. 2360. See also Trial Judgement, para. 2361.

“108. In light of the foregoing, the Appeals Chamber, Judge Agius and Judge Afande dissenting, concludes that the Trial Chamber erred in law by requiring that the acts of the aider and abettor be specifically directed to assist the commission of a crime. Accordingly, the Appeals Chamber, Judge Agius and Judge Afande dissenting, grants sub-ground 2(A) of the Prosecution’s appeal. The Appeals Chamber will assess the impact of this finding in Section V below.”

P.29.3. Evidence of the substantial use of financial resources.

The Prosecutor v. Edouard Karemera and Mathieu Ngirumpatse, Case No. ICTR-98-44, Judgement (TC), 2 February 2012, para. 1103:

1103. It is undisputed that the Fonds de Défense Nationale was created on 25 April 1994, nearly three weeks after the genocide began. The Chamber acknowledges that the creation of a national defense fund would not have been a criminal act if it had been limited to financing the war against the RPF. However, the fund was also set up to provide militias with traditional weapons at a point in time when the killings of Tutsi civilians were extremely widespread and public. Moreover, the Chamber has taken judicial notice that the vast majority of the killers were Interahamwe and other groups of armed civilians. It is also clear that the killers routinely used traditional weapons such as knives, spears, machetes, hoes, and clubs to commit the massacres. These are precisely the types of weapons Félicien Kabuga intended to re-provision the youths with, once the fund was established.

Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 201-202:

201. Based on the details of the meetings discussed earlier, members of the Network, including Mr. Ruto, gave regular assurances that money was available to cover the expenses needed to carry out the attack, including buying weapons and providing the youths without military experience with operational training and transportation to and from the target locations.

202. The Chamber underlines that Witness 4 and Witness 6 corroborate each other in declaring that members of the Network were paid according to their rank, namely based on whether they were former soldiers or not. Such payment was meant to be a form of salary and also served the purpose of motivating the perpetrators. In the Chamber's opinion, the evidence shows that the main funding channels of the Network were essentially constituted by consistent private contributions by businessmen and members of the parliament, including Mr. Ruto.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 580:

"580. The concept of widespread' may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. The concept of systematic' may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources. There is no requirement that this policy must be adopted formally as the policy of a state. There must however be some kind of preconceived plan or policy.¹⁴⁵"

"145. Report on the International Law Commission to the General Assembly, 51 U.N. GAOR Supp. (No 10 ) at 94 U.N.Doc. A/51/10 (1996)."

P.30. Evidence of substantial means and methods employed;

P.30.1. Evidence of the substantial employment of weapons/equipments;

P.30.2. Evidence of the scale of the tactics/operational plans.

A. Legal source/authority and evidence:

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 91:

P.31. Evidence of the substantial result or consequences of the attack;

A. Legal source/authority and evidence:

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 95:

"95. As stated by the Trial Chamber, the assessment of what constitutes a "widespread" or "systematic" attack is essentially a relative exercise in that it depends upon the civilian population which, allegedly, was being attacked.¹¹¹ A Trial Chamber must therefore "first identify the population which is the object of the attack and, in light of the means, methods, resources and result of the attack upon the population, ascertain whether the attack was indeed widespread or systematic ".¹¹² The consequences of the attack upon the targeted population, the number of victims, the nature of the acts, the possible participation of officials or authorities or any identifiable patterns of crimes, could be taken into account to determine whether the attack satisfies either or both requirements of a "widespread" or "systematic" attack vis-à-vis this civilian population."

P.32. Evidence of a multiplicity of victims.

A. Legal source/authority and evidence:

<link http www.legal-tools.org doc _blank>Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 173, 177:

173. As mentioned above, on the basis of witnesses' testimonies and other pieces of evidence, there was a well-established strategy aiming at identifying the areas most densely populated by communities believed to be supporting the PNU and, within these areas, properties belonging to PNU supporters. In a complementary manner, premises owned by Kalenjins were marked in order to be kept safe, unless their owners were found to be PNU supporters. Viewed as a whole, this strategy would ensure that, during the attack, physical perpetrators would exclusively target members of those communities perceived to be PNU supporters.

177. This is demonstrated by the geographical scope of the attack, which covered four different locations in two districts (Uasin Gishu and Nandi) of the Rift Valley Province. Moreover, as recalled in paragraphs 167-172 above, the evidence indicates that in the locations included in the charges presented by the Prosecutor, the amount of burning and destruction of properties, injuries and murders is among the highest in the whole Kenyan territory. As a consequence, the Uasin Gishu and Nandi Districts registered a number of victims, which is among the largest of the post-election violence in Kenya.

<link http www.legal-tools.org doc _blank>Ferdinand Nahimana et.al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement (AC), 28 November 2007, para. 924

"924. The Appeals Chamber considers that, except for extermination,2092 a crime need not be carried out against a multiplicity of victims in order to constitute a crime against humanity. Thus an act directed against a limited number of victims, or even against a single victim, can constitute a crime against humanity, provided it forms part of a widespread or systematic attack against a civilian population.2093"

2093 <link http www.legal-tools.org doc _blank>Deronjić Appeal Judgement, para. 109; <link http www.legal-tools.org doc _blank>Kordić and Čerkez Appeal Judgement, para. 94; <link http www.legal-tools.org doc _blank>Bla{ki} Appeal Judgement, para. 101; <link http www.legal-tools.org doc _blank>Kunarac et al. Appeal Judgement, para. 96.

<link http www.legal-tools.org doc _blank>Prosecutor v. Paul Bisengimana, Case No. ICTR 00-60-T, Judgement (TC), 13 April 2006, para. 47:

"47. Based on the facts contained in the Plea Agreement, the Chamber is convinced that widespread attacks were committed in Gikoro commune in April 1994 because the attacks resulted in a lager number of victims."

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, para. 209-210:

"209. In total, the International Committee of the Red Cross documented the abduction of 138 Serbs, apparently civilians or those placed hors de combat, whom it was believed were in KLA custody. Human Rights Watch estimated that, from late February 1998 to late September 1998, between 100 and 140 Kosovo Albanians, Serbs and Roma, apparently civilians or those placed hors de combat, were abducted by KLA forces.685 Most of these abductions took place in Drenica, in Malisheve/Malisevo, and in Rrahovec/Orahovac. Aside from Serbian civilians affected by direct combat between the KLA and Serbian forces, there were also instances of Serbian civilians being apprehended at KLA checkpoints and removed from buses. The specific factual circumstances surrounding some such abductions are detailed further in this Judgement and need not be discussed in detail here. As will be apparent from other parts of this Judgement there is no evidence as to the circumstances in which a number of persons of Serbian ethnicity, who were apparently civilians, came to be in KLA custody, except insofar as some of these kidnapped persons, at least, may in fact have been detained in Llapushnik/Lapusnik and are the subject of specific evidence considered in this Judgement.

210. History confirms, regrettably, that wartime conduct will often adversely affect civilians.Nevertheless, the Chamber finds that, even if it be accepted that those civilians of whatever ethnicity believed to have been abducted by the KLA in and around the relevant period were in truth so abducted, then, nevertheless, in the context of the population of Kosovo as a whole the abductions were relatively few in number and could not be said to amount to a "widespread" occurrence for the purposes of Article 5 of the Statute."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 580:

1.3.1. The scale of the attack.

Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 970-971:

“970. When assessing whether the general elements of crimes against humanity are fulfilled, the Trial Chamber will consider the evidence with regard to the individual counts in the Indictment. This evidence is dealt with in detail in chapter 3, and the review and analysis of this evidence will not be repeated here. As set out in the above-mentioned chapters, the Trial Chamber finds that Serb Forces (as defined in paragraphs 4 and 6 of the Indictment) committed a large number of murders against Croats, Muslims, and other non-Serbs. The Trial Chamber further finds that these Serb Forces committed deportation and forcible transfer of many thousands of Croats and Muslims from each of the areas referred to in the Indictment: SAO Krajina, SAO SBWS, and the Indictment municipalities in Bosnia Herzegovina. In this respect, the Trial Chamber has considered incidents where people were moved against their will or without a genuine choice. The Trial Chamber has also considered incidents where Serb Forces created an environment where the victims had no choice but to leave. This included attacks on villages and towns, arbitrary detention, killings, and illtreatment. These conditions prevailed during the days or weeks, and sometimes months, prior to people leaving. The Trial Chamber has also found that the crimes of murder, deportation, and forcible transfer constituted underlying acts of persecution as well.”

“971. The Trial Chamber finds that crimes were committed throughout the Indictment area over the course of many years, although with a concentration in the fall of 1991 in SAO Krajina and SAO SBWS, and April through September 1992 in Bosnia-Herzegovina. The victims of the crimes were, with few exceptions, non-Serbs. In SAO Krajina and SAO SBWS most victims were Croats and in the Indictment municipalities in Bosnia-Herzegovina most were Muslims. The evidence shows that the persons targeted were primarily members of the civilian population. Based on the foregoing, the Trial Chamber finds the requirements of “attack”, “widespread”, and “civilian population” have been met. Considering this, and that the legal requirement is that the attack was widespread or systematic, the Trial Chamber will not address whether the attack was systematic.”

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 193:

"193. It was incumbent on the Prosecution to make its case with clarity and present a picture which clearly demonstrated to the judges that the civilians were targeted en masse, when in fact they were not taking part in the fighting and presented no danger to the Serbian fighters. In the opinion of the majority, the Prosecutor failed to fulfil this obligation, simply limiting himself to general assertions which do not account for the specific evidence received by the judges. Under these circumstances, the majority is unable to dismiss the argument of the Defence - echoed by many of the witness testimonies¹⁴⁸ - which explains that the civilians fled the combat zones to find shelter in the localities occupied by members of the same ethnic or religious group; that the buses that were provided in this context were not part of operations to forcibly transfer the population, but rather acts of humanitarian assistance to non-combatants fleeing the zones where they no longer felt safe."

"148. VS-1022, T(E) 9524 to 9525, 9528 to 9530 (closed session); P696 under seal, para. 16."

1.3.2. The pattern of the attack.

P.33. Evidence of a pattern relating to criminal acts – "the non-accidental repetition of similar criminal conduct on a regular basis";

P.33.1. Evidence of the repeated and continuous commission of criminal acts.

A. Legal source/authority and evidence:

Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T, Judgement (TC), 1 December 2010, para. 661:

" 661. The Chamber has further found that the Tutsi who sought refuge at the Nyange Parish were attacked repeatedly between 13 and 16 April 1994, that many died during attacks on 15 April 1994 and that the vast majority were massacred on 16 April 1994. The Chamber recalls that the Hutu assailants attacked the Tutsi over multiple days with an array of weapons before ultimately demolishing the church with at least one bulldozer on 16 April 1994. The Chamber has found that Gaspard Kanyarukiga, Grégoire Ndahimana, Fulgence Kayishema, Télesphore Ndungutse, Joseph Habiyambere and others intentionally planned the demolition of the Nyange Church, which resulted in the killing of approximately 2000 Tutsi on 16 April 1994. Based on these findings, the Chamber is satisfied that the attacks on the Tutsi at the Nyange Parish were also systematic."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 94:

"94. As stated by the Trial Chamber, the phrase "widespread" refers to the large -scale nature of the attack and the number of victims,¹⁰⁸ while the phrase "systematic" refers to "the organised nature of the acts of violence and the improbability of their random occurrence".¹⁰⁹ The Trial Chamber correctly noted that "patterns of crimes – that is the non-accidental repetition of similar criminal conduct on a regular basis – are a common expression of such systematic occurrence".¹¹⁰

P.34. Evidence of a pattern relating to victims;

P.34.1. Evidence of a pattern relating to the national, ethnical, racial, religiousetc identity of victims;

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 573, 575, 624-625:

"573. […]- finally and more specifically, the Croatian inhabitants of Loncari were warned of the attacks and left the village several hours before the start of the hostilities."

"575. Busovaca, which had a population of two to three thousand Muslims before the hostilities, only has thirty or so Muslims living there todayProsecutor v. Fran?ois Karera, Case No. ICTR-01-74-T, Judgement (TC), 7 December 2007, para 554:

" 554. Given the large number of victims and perpetrators, the Chamber finds that the attack against Tutsi refugees at Ntarama Church on 15 April 1994 satisfies the requirement of scale. The attackers’ arrival on board several buses and their waiting for Karera’s green light before commencing the attack also suggests organization. Karera was an instigator and direct participant in this attack."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 502-504:

"502. Several facts bear witness to the organized and planned nature of the aforementioned attacks on Vitez and Stari Vitez.

i) The 16 April 1993 attack

503. According to the witness Parrott, the soldiers involved in the 16 April 1993 operation on Vitez and Stari Vitez seemed "well organized" and "appeared to be using military […] tactics"¹⁰⁸⁹. Indeed, the attack was organized into two separate phases in order to achieve maximum efficiency. First of all, it started with an artillery attack and was followed by an infantry attack with torching of houses and expulsion of the inhabitants¹⁰⁹⁰.

504. Several clues suggest that the attack was well prepared, in particular:

- increased control of the town by HVO forces¹⁰⁹¹: on 15 April, the witness Kavazovic saw groups of HVO soldiers in combat gear "who were blocking all the entrances to buildings"¹⁰⁹²and explained that, on 15 April, he had been warned by a Croatian friend that "bad things were about to happen in Vitez"¹⁰⁹³. That same day, the witness Pezer saw that access to the Vitez-Zenica road was closed and noted "unusual movements by HVO soldiers" and HVO members filling their vehicles with fuel¹⁰⁹⁴. The witness Bower explained that the HVO controlled access to Stari Vitez¹⁰⁹⁵. HVO soldiers were seen filling three tow trucks with bags of sand¹⁰⁹⁶. Those bags were set out at the crossroads that led to the Hotel Vitez and in the old town¹⁰⁹⁷. The witness S noticed the presence of snipers, machine guns and cannons, which were aimed at the two Muslim areas of Stari Vitez and Treskavica¹⁰⁹⁸. Finally, on the day of the attack, the witness Ellis saw twenty or so soldiers wearing the HVO insignia at a checkpoint and more heavily armed than usual¹⁰⁹⁹.

- Preparation of the necessary equipment: the organizers of the attack used heavy, sophisticated weaponry which was "designed specifically for air defence"¹¹⁰⁰. Some witnesses saw a very large calibre anti-aircraft gun mounted on a vehicle and a very modern anti-tank weapon¹¹⁰¹.

- Creation of a system for regrouping soldiers and patrolling in small groups¹¹⁰²."

"1089. Witness Parrott, PT pp. 5032-5033.

1090. Witness Djidic, PT of 29 July 1997, pp. 1206-1207 ; witness Pezer, PT of 19 August 1997, pp. 1563-1570; witness Ellis, PT of 30 September 1997, pp. 2988-2989.

1091. P45C, P53 ; witness Watters, PT pp. 3538-3539.

1092. Witness Kavazovic, PT of 26 august 1997, pp. 3538-3539.

1093. D53, p. 4.

1094. Witness Pezer, PT of 19 August 1997, p. 1556.

1095. Witness Bower, PT pp. 9375-9377. The witness added that to the west, the road which leads to Stari Vitez was blocked by a roadblock, explosives and landmines.

1096. Witness S, PT pp. 4876-4877.

1097. Witness S,PT pp. 4898-4900 and 4905-4906.

1098. Witness S, PT pp. 4898-4900 and pp. 4905-4907.

1099. Witness Ellis, PT of 29 September 1997, pp. 2970-2974.

1100. Witness Ellis, PT of 30 September 1997, pp. 2988-2989.

1101. P106 ; witness Pezer, PT of 19 August 1997, pp. 1555-1556; witness Ellis, PT of 30 September 1997, pp. 2987-2988.

1102. Witness Ellis, PT of 30 September 1997, pp. 3113-3114. The witness Hughes noticed that there existed an efficient system of reconnaissance between the soldiers, with the probable aim of better recognizing one another. The HVO soldiers wore ribbons attached to the epaulettes of their uniforms, PT p. 4537."

P.40. Evidence of a military or armed group being organized.

P.40.1. Evidence of a military or armed group being structurally organized;

Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 188, 192:

188. This first organisational meeting was followed by a number of other meetings each implementing substantial factors of the attack as planned during the said meeting. Thus, a secret oath ceremony took place on 15 April 2007 in a milk plant located in Molo where Mr. Ruto, Mr. Sang, Mr. Cheramboss and Reverend Kosgei, among several others, were present. During the ceremony, Mr. Ruto, MPs, and the three commanders were sprinkled with animals' blood and took an oath to kill Kikuyu, Kamba and Kisiis "mercilessly".

192. At the beginning of December 2007, the second meeting took place at Mr. Cheramboss' house, where it was reiterated that the Kalenjin farms were taken away by the Kikuyu and members of this community must be removed, together with those of the Kisii community, either by warning them through leaflets or by force, namely by killing, looting and burning their properties. In this context, the developed operational structure of the Network was announced. Within this structure, four divisional commanders were tasked with the implementation and the coordination of the attack on the ground in locations including Kapsabet and Nandi Hills towns The divisional commanders were subordinate to the three commanders, who were initially assigned during the 30 December 2006 meeting, with the responsibility in North Rift Valley, Central Rift Valley and South Rift Valley. Following this announcement, Mr. Ruto confirmed receipt of a large number of weapons through a high ranking member of the Network. He also confirmed that material for crude weapons was stored at a shop belonging to one of the divisional commanders. Further, Mr. Ruto emphasized the "need to have weapons to allow the former soldiers to do their work and [...] Mr. Cheramboss to give training youth" . At the close of the meeting, Mr. Ruto called again for the next meeting to take place at his house on 14 December 2007.

P.40.2. Evidence of a military or armed group being functionally organized;

P.40.3. Evidence of a military or armed group being logistically organized;

P.40.4. Evidence of a system for grouping soldiers/combatants;

Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 196:

196. The last of the whole set of preparatory meetings of the Network took place at Mr. Ruto's house on 22 December 2007, where people from different regions were organized in separate tents. High ranking members of the Network, including at least two of the three commanders, were present. Weapons purchased from neighbouring countries and introduced into the Kenyan territory through Mount Elgon, as anticipated as early as the 30 December 2006 meeting, were distributed to former soldiers. Moreover, as commonly done within the Network, money was paid to the attendees on the basis of their rank, namely whether they were former soldiers or youths.

P.40.5. Evidence of a system for patrolling in small groups;

P.40.6. Evidence of a system of reconnaisance among soldiers/combatants with the probable aim of better recognizing one another.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 502-504, 659:

"502. Several facts bear witness to the organized and planned nature of the aforementioned attacks on Vitez and Stari Vitez.

i) The 16 April 1993 attack

504. Several clues suggest that the attack was well prepared, in particular:

- Creation of a system for regrouping soldiers and patrolling in small groups¹¹⁰²."

"1089. Witness Parrott, PT pp. 5032-5033.

1090. Witness Djidic, PT of 29 July 1997, pp. 1206-1207 ; witness Pezer, PT of 19 August 1997, pp. 1563-1570; witness Ellis, PT of 30 September 1997, pp. 2988-2989.

1091. P45C, P53 ; witness Watters, PT pp. 3538-3539.

1092. Witness Kavazovic, PT of 26 august 1997, pp. 3538-3539.

1093. D53, p. 4.

1094. Witness Pezer, PT of 19 August 1997, p. 1556.

1095. Witness Bower, PT pp. 9375-9377. The witness added that to the west, the road which leads to Stari Vitez was blocked by a roadblock, explosives and landmines.

1096. Witness S, PT pp. 4876-4877.

1097. Witness S,PT pp. 4898-4900 and 4905-4906.

1098. Witness S, PT pp. 4898-4900 and pp. 4905-4907.

1099. Witness Ellis, PT of 29 September 1997, pp. 2970-2974.

1100. Witness Ellis, PT of 30 September 1997, pp. 2988-2989.

1101. P106 ; witness Pezer, PT of 19 August 1997, pp. 1555-1556; witness Ellis, PT of 30 September 1997, pp. 2987-2988.

"659. More fundamentally and in addition to these important elements, the Trial Chamber holds that the indubitable conclusion to be drawn from the manner in which the offensives progressed and the systematic and widespread nature of the crimes perpetrated is that the military operations of April and June 1993 were ordered at the highest level of the HVO military command by the Central Bosnia Operative Zone commander - General Blaskic. In this regard, the Trial Chamber will recall three striking points already brought out:

- the offensives conducted in April in the municipality of Vitez and to the north of Kiseljak and in June to the south of Kiseljak all evolved along similar lines ;

- the attacks on Kiseljak were on each occasion led mostly by HVO troops, and more precisely by the Ban Jelacic Brigade whose commander received orders directly from the accused.

- and finally, the offensives all produced the same result: the systematic expulsion of Muslim civilian inhabitants from their villages and, in most cases, the destruction of their dwellings and the plunder of their property."

P.41. Evidence ofattacks being organized into a number of distinct phases/steps.

P.41.1. Evidence of a military or armed group being employed for each phase/step of the attack;

P.41.2. Evidence of distinct weapons/equipments being employed for each phase/step of the attack

P.41.3. Evidence of distinct objects of the attack for each phase/step of the attack.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 502-503, 624-625:

"502. Several facts bear witness to the organized and planned nature of the aforementioned attacks on Vitez and Stari Vitez.

i) The 16 April 1993 attack

"1089. Witness Parrott, PT pp. 5032-5033.

1090. Witness Djidic, PT of 29 July 1997, pp. 1206-1207 ; witness Pezer, PT of 19 August 1997, pp. 1563-1570; witness Ellis, PT of 30 September 1997, pp. 2988-2989.

"624. […]- finally, and more significantly, the offensives were carried out in the same manner.

On that last point, the Trial Chamber notes that all the attacks, except that on Gromiljak¹⁴³⁸, occurred in two clear phases: heavy artillery fire intended to defeat any Muslim inhabitants who refused to surrender, followed by infantry offensives.

625. Those soldiers proceeded in the same way each time: they violently killed certain Muslim civilians, confined those they had decided to spare and from among those, picked out the men of fighting age. The men were mainly taken to the Kiseljak barracks , where they were detained for several months and sent to the front in small groups to dig trenches. Other people, mainly women, children and the elderly were driven to the part of the village of Rotilj which was under HVO surveillance. In most of the villages, the infantry systematically looted, damaged or even destroyed the houses, farms and places of worship of the Muslims, usually by torching them."

"1438. That was probably because the village of Gromiljak was inhabited mainly by Croats that it was spared the HVO artillery."

P.42. Evidence of the organized employment of means and methods of the attack.

P.42.1. Evidence of the organized employment of weapons/equipments.

P.42.2. Evidence of the use of tactics/operational plans;

A. Legal source/authority and evidence:

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 91:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 467-468, 502-504, 624-625:

468. In this connection, it is worth recalling that that was the opinion expressed by the accused himselfKunarac Appeal Judgement, para. 99; <link http www.legal-tools.org doc _blank>Tadic Appeal Judgement, paras 248, 251, 271.

3100 <link http www.legal-tools.org doc _blank>Tadic Appeals Judgement, para. 248; <link http www.legal-tools.org doc f2cfeb _blank>Naletilić Trial Judgement, para. 234; <link http www.legal-tools.org doc d4fedd _blank>Kordić Trial Judgement, para. 178; <link http www.legal-tools.org doc _blank>Mrksic et al. Trial Judgement, para. 438.

3101 <link http www.legal-tools.org doc _blank>Kunarac Appeal Judgement, para. 100; <link http www.legal-tools.org doc _blank>Kupre{ki} Trial Judgement, para. 550; Tadi} Trial Judgement, para. 119.

Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 895:

"895. The crimes allegedly committed by Milan Luki} and Sredoje Luki} indisputably formed part of the attack. The alleged crimes were linked temporally and geographically to the attack, and in terms of purpose and objective, and, in fact, were mostly committed during the height of the attack against the Muslim population, namely in June 1992.[…]"

Prosecutor v Mitar Vasiljević, Case No. IT-98-32-T, Judgement (TC), 29 November 2002, para. 32:

"32. The acts of the accused must be part of the attack.³⁴ In effect, as stated by the Appeals Chamber, the nexus between the acts of the accused and the attack consists of the following two elements:³⁵

(i) the commission of an act which, by its nature or consequences, is objectively part of the attack; coupled with

(ii) knowledge on the part of the accused that there is an attack on the civilian population and that his act is part thereof."

"34 - <link http www.legal-tools.org doc _blank>Tadic Appeal Judgment, pars 248 and 255; <link http www.legal-tools.org doc _blank>Kunarac Appeals Judgment, par 100.

35 - <link http www.legal-tools.org doc _blank>Kunarac Appeals Judgment, par 99. See also <link http www.legal-tools.org doc fd881d _blank>Kunarac Trial Judgment, par 418; <link http www.legal-tools.org doc _blank>Tadic Appeal Judgment, pars 248, 251 and 271; Tadic Trial Judgment, par 659; Mrksic and Others Rule 61 Decision, par 30."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 99:

"99. The acts of the accused must constitute part of the attack.¹¹⁵ In effect, as properly identified by the Trial Chamber, the required nexus between the acts of the accused and the attack consists of two elements:¹¹⁶

(i) the commission of an act which, by its nature or consequences, is objectively part of the attack; coupled with

(ii) knowledge on the part of the accused that there is an attack on the civilian population and that his act is part thereof.^117"

"115. See <link http www.legal-tools.org doc _blank>Tadic Appeal Judgement, para 248.

116. Trial Judgement, para 418; <link http www.legal-tools.org doc _blank>Tadic Appeal Judgement, paras 248, 251 and 271; <link http www.legal-tools.org doc a0948e _blank>Tadic Trial Judgement, para 659 and Mrksic Rule 61 Decision, para 30."

P.44. Evidence of the characteristics, aims, nature, or consequence of an act that form part of the attack.

Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 987:

“987. The Trial Chamber further finds, based on the affiliation of the perpetrators and the manner in which the acts took place, that there was a close relationship between the killings and the armed conflict.”

P.44.1. An act before or after the main attack against the civilian population, or away from the main attack could still be the part of the attack.

A. Legal source/authority and evidence:

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, para. 866:

"866. An act may form part of the widespread or systematic attack without necessarily sharing all the same features, such as the time and place of commission of the other acts constituting the attack. In determining whether an act forms part of a widespread or systematic attack, the Chamber will consider its characteristics, aims, nature, and consequence."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 326:

"326. […] Although the act need not be committed at the same time and place as the attack or share all of the features of the attack, it must, by its characteristics, aims, nature, or consequence objectively form part of the discriminatory attack."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 55:

"55. The acts of the accused need to be objectively part of the "attack" against the civilian population,¹⁹⁰ but need not be committed when that attack is at its height. These acts must not be isolated, but must form part of the attack.¹⁹¹ A crime committed several months after, or several kilometres away from, the main attack against the civilian population could still, if sufficiently connected, be part of that attack.^192"

"190. <link http www.legal-tools.org doc fd881d _blank>Kunarac Trial Judgment, pars 418, 592.

191. Prosecutor v Kupreskic and Others, IT-95-16-T, Judgment, 14 Jan 2000 ("Kupreskic Trial Judgment"), par 550.

192. See for example <link http www.legal-tools.org doc fd881d _blank>Kunarac Trial Judgment, par 417 ff."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 100:

"100. The acts of the accused must be part of the "attack" against the civilian population, but they need not be committed in the midst of that attack. A crime which is committed before or after the main attack against the civilian population or away from it could still, if sufficiently connected, be part of that attack. The crime must not, however, be an isolated act.¹¹⁸ A crime would be regarded as an "isolated act" when it is so far removed from that attack that, having considered the context and circumstances in which it was committed , it cannot reasonably be said to have been part of the attack.^119"

"118. <link http www.legal-tools.org doc _blank>Kupreskic Trial Judgement, para 550.

119. Ibid.; <link http www.legal-tools.org doc a0948e _blank>Tadic Trial Judgement, para 649 and Mrksic Rule 61 Decision, para 30. On 30 May 1946, the Legal Committee of the United Nations War Crime Commission held that: "Isolated offences did not fall within the notion of crimes against humanity. As a rule systematic mass action, particularly if it was authoritative, was necessary to transform a common crime, punishable only under municipal law, into a crime against humanity, which thus became also the concern of international law. Only crimes which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied at different times and places, endangered the international community or shocked the conscience of mankind, warranted intervention by States other than that on whose territory the crimes had been committed, or whose subjects had become their victims" (see, History of the United Nations War Crimes Commission and the Development of the Laws of War, Compiled by the United Nations War Crimes Commission, 1948, p 179)."

1.4.2. Knowledge on the part of the accused that there is an attack on the civilian population and that his act is part thereof.

[See also section 2.1. below]

A. Legal source/authority and evidence:

The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para. 595:

595. The Trial Chamber finds that the crimes committed in Zagreb during the Indictment period formed part of an attack directed against the civilian population and that this attack – due to its large-scale and organised nature - was widespread and systematic. The Trial Chamber is also satisfied that the SVK knew of the existence of such attack and that the crimes were part of it.

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1171, 1186:

"1171. A Drina Corps order dated 20 March 1995 echoed the language of Directive 7 by stating that it was the task of 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". This order was from the Drina Corps Command and included a section entitled "Security Support", which outlines the actions required from the Security Organ in support of the combat operation. This order dealt with Popovic’s area of expertise, and considering his position as Chief of Security of the Drina Corps, the Trial Chamber finds that Popovic was aware of this order."

"1186. The Trial Chamber has found that there was a widespread and systematic attack directed against a civilian population with several components culminating in the military action against Srebrenica. As established above, Popovic had knowledge of the 20 March Drina Corps Order, through which the plan for the transfer of the Bosnian Muslim population from the Srebrenica and Zepa enclaves was to be implemented.[…]."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 418:

"418. There must exist a nexus between the acts of the accused and the attack, which consists of:

(i) the commission of an act which, by its nature or consequences, is objectively part of the attack; coupled with

(ii) knowledge on the part of the accused that there is an attack on the civilian population and that his act is part of the attack.¹⁰⁹¹"

"1091 - <link http www.legal-tools.org doc _blank>Prosecutor v Tadic, Case IT-94-1-A, Judgement, 15 July 1999, pars 248, 251 and 271; <link http www.legal-tools.org doc _blank>Prosecutor v Tadic, Case IT-94-1-T, Opinion and Judgement, 7 May 1997, par 659; and Prosecutor v Mrksic and Others, Case IT-95-13-R61, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 3 Apr 1996, par 30. See also Prosecutor v Kunarac and Others, Case IT-96-23 and IT-96-23/1, Decision on Prosecution’s Motion for Exclusion of Evidence and Limitation of Testimony, 3 July 2000, par 6(b)."

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