5. The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights.

5.1. Deprivation of fundamental rights: Underlying acts against person.

5.2. Deprivation of fundamental rights: Underlying acts against property.

5.3. Deprivation of fundamental rights: Underlying acts of employing prohibited methods of warfare.

5.4. Severity of underlying crimes.

5. The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights.

In Tadić, the ICTY Trial Chamber stated:

"It is the violation of the right to equality in some serious fashion that infringes on the enjoyment of a basic or fundamental right that constitutes persecution, although the discrimination must be on one of the listed grounds to constitute persecution under the Statute."[1]

The Kupreškić Trial held that:

"[...] in order to identify those rights whose infringement may constitute persecution, more defined parameters for the definition of human dignity can be found in international standards on human rights such as those laid down in the Universal Declaration on Human Rights of 1948, the two United Nations Covenants on Human Rights of 1966 and other international instruments on human rights or on humanitarian law. Drawing upon the various provisions of these texts it proves possible to identify a set of fundamental rights appertaining to any human being, the gross infringement of which may amount, depending on the surrounding circumstances, to a crime against humanity. Persecution consists of a severe attack on those rights, and aims to exclude a person from society on discriminatory grounds. The Trial Chamber therefore defines persecution as the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5."[2]

"[...] A persecutory act need not be prohibited explicitly either in Article 5 or elsewhere in the Statute. Similarly, whether or not such acts are legal under national laws is irrelevant. It is well-known that the Nazis passed many discriminatory laws through the available constitutional and legislative channels which were subsequently enforced by their judiciary. This does not detract from the fact that these laws were contrary to international legal standards. The Trial Chamber therefore rejects the Defence submission that persecution should not include acts which are legal under national laws."[3]

According to Blaškić, Trial Chamber:

"[...] the crime of 'persecution' encompasses not only bodily and mental harm and infringements upon individual freedom but also acts which appear less serious, such as those targeting property, so long as the victimised persons were specially selected on grounds linked to their belonging to a particular community."[4]

According to the Kupreškić Trial Chamber:

"Persecution has been used to describe some of the most serious crimes perpetrated during Nazi rule. A narrow interpretation of persecution [...] is therefore not an accurate reflection of the notion of persecution which has emerged from customary international law.

"It should be added that if persecution was given a narrow interpretation [...] a lacuna would exist in the Statute of the Tribunal. There would be no means of conceptualising those crimes against humanity which are committed on discriminatory grounds, but which, for example, fall short of genocide, which requires a specific intent 'to destroy, in whole or in part, a national, ethnical, racial, or religious group'. An example of such a crime against humanity would be the so-called 'ethnic cleansing', a notion which, although it is not a term of art, is particularly germane to the work of this Tribunal."[5]

The Krstić Trial Judgement provides that:

"[...] persecutory acts are not limited to those acts enumerated in other sub-clauses of Article 5 or elsewhere in the Statute, but also include the denial of other fundamental human rights, provided they are of equal gravity or severity"[6]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 75:

"75. An act of persecution does not require express prohibition either in Article 5 or another provision of the Statute. Indeed, depriving a person of a substantial number of their rights may constitute persecution. However, the acts constituting the crime of persecution, whether considered in isolation or jointly with other acts, must constitute a crime of equal severity with the crimes enumerated in Article 5 of the Statute. In applying the criterion of severity, the acts of persecution must be evaluated in context and not in isolation, taking into consideration their cumulative effect."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 597:

"597. Other acts of persecution alleged to have been committed in Bijeljina by Serb Forces and Bosnian Serb Political and Governmental Organs include (i) torture, beatings, and physical and psychological abuse, during and after the take-over and in scheduled detention facilities, as cruel or inhumane treatment; (ii) rape and other acts of sexual violence, during and after the take-over and in scheduled detention facilities, as cruel and inhumane treatment; (iii) the establishment and perpetuation of inhumane living conditions in detention facilities in Bijeljina, including the failure to provide adequate accommodation, shelter, food, water, medical care, or hygienic sanitation facilities, as cruel or inhumane treatment; (iv) forcible transfer or deportation of Bosnian Muslims and Bosnian Croats from their homes; (v) unlawful detention in scheduled detention facilities; (vi) forced labour at the frontline and the use of Bosnian Muslims and Bosnian Croats as human shields; (vii) the appropriation or plunder of property, during and after the take-over, during arrests and detention and in the course of or following acts of deportation or forcible transfer; (viii) the wanton destruction of private property including homes and business premises and public property including cultural monuments and sacred sites; and (ix) the imposition and maintenance of restrictive and discriminatory measures."

5.1. Deprivation of fundamental rights: Underlying acts against person.

As noted by ICTY Trial Chamber in The Prosecutor v. Milan Milutinović et al.:

"Having been classified as falling within crimes such as "torture" and "inhumane acts", among others, sexual assault offences may reach the requirement of gravity equal to that of other crimes against humanity enumerated in Article 5 of the Statute, particularly since both "torture" and "inhumane acts" are expressly listed as underlying offences within the ambit of Article 5. The Chamber therefore concludes that "sexual assault" is a form of persecution and thus is punishable as a crime against humanity, so long as the equal gravity requirement is satisfied. In reaching its conclusions concerning the elements of "sexual assault" below, the Chamber has throughout been mindful of the equal gravity requirement that qualifies the offence as a form of persecution.

Elements

Having established that "sexual assault" fulfils the criteria for consideration as a form of persecution, the elements of the offence that are here applied must now be clarified.

As noted above, the ICTR explicitly held in Akayesu that "[s]exual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact" including forced nudity. In Brđ;anin, the Trial Chamber found that the offence of sexual assault "embraces all serious abuses of a sexual nature inflicted upon the integrity of a person by means of coercion, threat of force or intimidation in a way that is humiliating and degrading to the victim’s dignity."

These cases provide some indication of the types of conduct short of sexual penetration that may be considered to constitute "sexual assault", rather than the narrower offence of rape, which does require such penetration. However, no international treaty sets out the elements of sexual assault as an offence recognised by international law. Similarly, the elements of sexual assault in customary international law have never been elaborated.

Analysis of the situation in a number of common law and civil law jurisdictions leads to the conclusion that, while the majority do not have a codified, elements-based definition of the term "sexual assault", they do generally have provisions on the prosecution and punishment of offences similar to sexual assault. These domestic systems often provide for a range of different types of offences that could be considered to fall within the more general category of sexual assault that is here under discussion.

Overall, analysis of domestic approaches to sexual assault offences shows some common elements. Generally, it is required that sexual assault be committed through the exercise of violence, force, constraint or other form of coercion on the victim. Threat to use violence against the victim or, in some cases, against a third person, can also be sufficient. However, a number of jurisdictions place the emphasis upon absence of the victim’s consent rather than highlighting the use of violence or threats by the perpetrator. However, the Chamber observes that the apparent disparity in approach is of a formal nature only. As stated above, the Trial Chamber in Brđ;anin found that for a finding of the offence of sexual assault, a person must be subjected to "coercion, threat of force, or intimidation". In Akayesu, the ICTR embraced a broad understanding of coercion, holding that it may be evidenced by "[t]hreats, intimidation, extortion and other forms of duress which prey on fear or desperation" as well as be inherent "in certain circumstances, such as armed conflict". In this light, when a victim performed an act without giving genuine consent to the same, the necessary implication is that that person had been coerced to do so. Therefore, in this respect, domestic solutions are consonant with the existing international jurisprudence.

The Statute and jurisprudence of the Tribunal only contain rape and sexual assault, rather than other categories of offences of a sexual nature. The Trial Chamber is, therefore, of the view that a broad approach to the requisite elements is appropriate, so long as the equal gravity requirement for its characterisation as a form of persecution is taken account of. Thus, the Chamber considers that "sexual assault" may be committed in situations where there is no physical contact between the perpetrator and the victim, if the actions of the perpetrator nonetheless serve to humiliate and degrade the victim in a sexual manner. Indeed, limiting the elements of sexual assault to non-consensual touching would contradict existing jurisprudence such as in the case of Akayesu, where it was held that "[s]exual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact" including forced nudity. Furthermore, the Chamber considers that it would be inappropriate to place emphasis on the sexual gratification of the perpetrator in defining the elements of "sexual assault". In the context of an armed conflict, the sexual humiliation and degradation of the victim is a more pertinent factor than the gratification of the perpetrator, and it is this element that provides specificity to the offence.

Any form of coercion, including acts or threats of violence, detention, and generally oppressive surrounding circumstances, is simply evidence that goes to proof of lack of consent. In addition, the Trial Chamber is of the view that when a person is detained, particularly during an armed conflict, coercion and lack of consent can be inferred from these circumstances. In this regard, the force required for a sexual assault is only that which is necessary to perform the act of a sexual nature, and actual coercion is not a required element.

The Chamber therefore finds that, in addition to the general requirements of crimes against humanity, and the specific requirements of persecutions, the Prosecution must prove that the following elements have been satisfied beyond a reasonable doubt, in order to establish that the underlying offence of sexual assault as a form of persecution, as a crime against humanity, has been committed:

(a) The physical perpetrator commits an act of a sexual nature on another, including requiring that person to perform such an act.

(b) That act infringes the victim’s physical integrity or amounts to an outrage to the victim’s personal dignity.

(c) The victim does not consent to the act.

(d) The physical perpetrator intentionally commits the act.

(e) The physical perpetrator is aware that the act occurred without the consent of the victim. "[7]

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"The Appeals Chamber further recalls that in order for underlying acts to amount to persecutions as a crime against humanity, they must be of equal gravity or severity as other acts enumerated under Article 5 of the Statute. In this regard, the Appeals Chamber notes that theTrial Chamber found that Witness K20 and Witness K14 were raped, which is listed as a crime against humanity under Article 5(g) of the Statute. The Appeals Chamber found that the Kosovo Albanian girl in a convoy and the two young women in Beleg were sexually assaulted, which is not listed in the Statute as a crime against humanity. The Appeals Chamber, however, recalls that sexual assault may be punishable as persecutions under international criminal law, "provided that it reaches the same level of gravity as the other crimes against humanity enumerated in Article 5 of the Statute". The Appeals Chamber also recalls that sexual assault by definition constitutes an infringement of a person’s physical or moral integrity. Furthermore, it notes that the sexual assaults in question were committed against young women, by multiple perpetrators, and in a general context of fear, intimidation, and harassment. Therefore, the Appeals Chamber is satisfied that these sexual assaults reach the same level of gravity as other crimes listed in Article 5."[8]

In Prosecutor v. Blaškić, the ICTY Trial Chambers held that:

"[P]articipation in 'the attack on Kozarac and the surrounding areas, as well as the seizure, collection, segregation and forced transfer of civilians to camps, calling-out of civilians, beatings and killings'."[9]

The Kupreskic Trial Chamber found that:

"[the 'deliberate and systematic killing of Bosnian Muslim civilians' as well as their 'organised detention and expulsion from Ahmici' can constitute persecution. This is because these acts qualify as murder, imprisonment, and deportation, which are explicitly mentioned in the Statute under Article 5."[10]

"[...] attacks on property can constitute persecution. To some extent this may depend on the type of property involved: in the passage from Flick cited above the Tribunal held that the compulsory taking of industrial property could not be said to affect the life and liberty of oppressed peoples and therefore did not constitute persecution. There may be certain types of property whose destruction may not have a severe enough impact on the victim as to constitute a crime against humanity, even if such a destruction is perpetrated on discriminatory grounds: an example is the burning of someone's car (unless the car constitutes an indispensable and vital asset to the owner). However, the case at hand concerns the comprehensive destruction of homes and property. Such an attack on property in fact constitutes a destruction of the livelihood of a certain population. This may have the same inhumane consequences as a forced transfer or deportation. Moreover, the burning of a residential property may often be committed with a recklessness towards the lives of its inhabitants. The Trial Chamber therefore concludes that this act may constitute a gross or blatant denial of fundamental human rights, and, if committed on discriminatory grounds, it may constitute persecution."[11]

"[T]he causing of the "humanitarian crisis in Potočari, the burning of homes in Srebrenica and Potočari, the terrorisation of Bosnian Muslim civilians, the murder of thousands of Bosnian Muslim civilians, in Potočari or in carefully orchestrated mass scale executions, and the forcible transfer of the women, children and elderly out of the territory controlled by the Bosnian Serbs."[12]

"Thus far, the Trial Chambers of the ICTY have found that the following acts may constitute persecution when committed with the requisite discriminatory intent: imprisonment, unlawful detention of civilians or infringement upon individual freedom, murder, deportation or forcible transfer, 'seizure, collection, segregation and forced transfer of civilians to camps', comprehensive destruction of homes and property, the destruction of towns, villages and other public or private property and the plunder of property, attacks upon cities, towns and villages, trench-digging and the use of hostages and human shields, the destruction and damage of religious or educational institutions, and sexual violence. The Trial Chamber also notes jurisprudence from World War II trials found acts or omissions such as denying bank accounts, educational or employment opportunities, or choice of spouse to Jews on the basis of their religion, constitute persecution. Thus, acts that are not inherently criminal may nonetheless become criminal and persecutorial if committed with discriminatory intent."[13]

"The Trial Chamber is also satisfied that the horrendous conditions of detention and the demoralizing treatment of detainees in Omarska camp were sufficiently degrading and traumatizing to constitute per se an outrage upon personal dignity, which qualifies as persecution since it was clearly committed on discriminatory grounds.

"In addition to the harassment, humiliation, and psychological trauma endured by the detainees as part of their daily life in the camp, psychological abuse was also inflicted upon them through having to see and hear torturous interrogations and random brutality perpetrated on fellow inmates. The Trial Chamber is satisfied that the harassment, humiliation, and psychological abuses fall under the actus reus of persecution."[14]

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 502, 504:

"502. Murder is set out as a crime against humanity under Article 5(a). Accordingly killings can constitute persecution, provided the general elements for persecution are met. The Chamber has already found that the elements of murder under Article 5 of the Statute are the same as those articulated for murder as a violation of the laws or customs of war under Article 3 of the Statute. The Chamber thus refers to this earlier discussion."

"504. The Appeals Chamber has held that the right to be free from “cruel, inhuman or degrading treatment or punishment” is recognised under customary international law and enshrined in international human rights instruments. Cruel and/or inhumane treatment is defined as an act or omission which causes serious mental or physical suffering or injury, or which constitutes a serious attack on human dignity. The act or omission must be committed with the intent to cause serious mental or physical suffering or injury or a serious attack on human dignity, or with the knowledge that serious mental or physical suffering or injury or the serious attack on human dignity was a probable consequence of the act or omission. The Chamber will now examine, in turn, the various forms of cruel or inhumane treatment listed by the Prosecution as underlying acts of persecution under Count 3 of the Indictment."

5.2. Deprivation of fundamental rights: Underlying acts against property.

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"The Appeals Chamber considers destruction of religious or culturally significant property as an underlying act of the crime of persecutions to be the same as "destruction or wilful damage done to institutions dedicated to religion, [or other cultural property] "; a violation of the laws or customs of war enumerated under Article 3(d) of the Statute. Contrary to Dorđević’s assertion, the mens rea element for both acts is the same. The Appeals Chamber recalls that the mens rea element for destruction of institutions dedicated to religion or other cultural property under Article 3(d) "is […] met if the acts of destruction or damage were wilfully, i.e. either deliberately or through recklessness, directed against" the property."[15]

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"The Appeals Chamber has not previously addressed the issue of equal gravity specifically in relation to persecutions through destruction of religious or culturally significant property. The Appeals Chamber finds that the destruction of religious property meets the equal gravity requirement as it amounts to "an attack on the very religious identity of a people" and as such manifests "a nearly pure expression" of the notion of crimes against humanity, as also found by several trial chambers. Proof that a building is dedicated to religion satisfies the equal gravity requirement without requiring an assessment of the value of the specific religious property to a particular community. It is different in that respect to the destruction of private property which may not necessarily have a sufficiently severe impact to constitute a crime against humanity."[16]

In Blaškić, Trial Chamber held that:

"[T]he destruction of property must be construed to mean the destruction of towns, villages and other public or private property belonging to a given civilian population or extensive devastation not justified by military necessity and carried out unlawfully, wantonly and discriminatorily. In the same context, the plunder of property is defined as the unlawful, extensive and wanton appropriation of property belonging to a particular population, whether it be the property of private individuals or of state or "quasi-state" public collectives."[17]

According to the Kordić Trial Chamber:

"Prior jurisprudence of the International Tribunal has made clear that the destruction of property with the requisite discriminatory intent may constitute persecution. If the ultimate aim of persecution is the 'removal of those persons from the society in which they live alongside the perpetrators, or eventually even from humanity itself', the widespread or systematic, discriminatory, destruction of individuals' homes and means of livelihood would surely result in such a removal from society. In the context of an overall campaign of persecution, rendering a people homeless and with no means of economic support may be the method used to 'coerce, intimidate, terrorise and forcibly transfer ... civilians from their homes and villages.' Thus, when the cumulative effect of such property destruction is the removal of civilians from their homes on discriminatory grounds, the "wanton and extensive destruction and/or plundering of Bosnian Muslim civilian dwellings, buildings, businesses, and civilian personal property and livestock" may constitute the crime of persecution."[18]

Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 567-568:

"567. The Appeals Chamber has not previously addressed the issue of equal gravity specifically in relation to persecutions through destruction of religious or culturally significant property. The Appeals Chamber finds that the destruction of religious property meets the equal gravity requirement as it amounts to “an attack on the very religious identity of a people” and as such manifests “a nearly pure expression” of the notion of crimes against humanity, as also found by several trial chambers.¹⁸⁷² Proof that a building is dedicated to religion satisfies the equal gravity requirement without requiring an assessment of the value of the specific religious property to a particular community.¹⁸⁷³ It is different in that respect to the destruction of private property which may not necessarily have a sufficiently severe impact to constitute a crime against humanity.¹⁸⁷⁴"

"568. In light of the foregoing, the Appeals Chamber finds that it was not necessary for the Trial Chamber to assess for each mosque individually whether its destruction satisfied the equal gravity requirement. In these circumstances, Dordevic has failed to show that the Trial Chamber erred and his argument therefore must fail." 

Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 802, 809, 815, 822:

"802. In light of the above, the Appeals Chamber finds that Dordevic has failed to show that no reasonable trier of fact could have reached the same conclusion as the Trial Chamber, and therefore has failed to show that the Trial Chamber erred in concluding that the crime of persecutions was established in relation to the destruction of the mosques in Celina/Celinë, Bela Crkva/Bellacërkë, and Rogovo/Rogovë."

"809. In light of the above, the Appeals Chamber finds, Judge Tuzmukhamedov dissenting, that Dordevic has failed to show that no reasonable trier of fact could have reached the same conclusion as the Trial Chamber, and therefore has failed to show that the Trial Chamber erred in concluding that the crime of persecutions was established in relation to the mosque in Landovica/Landovicë."

"815. Based on the foregoing, the Appeals Chamber finds that Dordevic has failed to demonstrate that no reasonable trier of fact could have reached the same conclusion as the Trial Chamber and therefore Dordevic has failed to show that the Trial Chamber erred in finding that crime of persecutions was established in relation to the Hadum Mosque and its adjacent library."

"822. Based on the forgoing, the Appeals Chamber finds that Dordevic has failed to demonstrate that no reasonable trier of fact could have reached the same conclusion as the Trial Chamber and therefore has failed to demonstrate that the Trial Chamber erred in finding that the crime of persecutions was established in relation to the destruction of the mosque in Vlastica/Llashticë on or about 6 April 1999."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 528-529, 531-533:

"528. Acts of plunder, which have been deemed by the Tribunal to include pillage, infringe various norms of international humanitarian law. The prohibition against plunder is general in scope and extends both to acts of looting committed by individual soldiers for their private gain and to the organised seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory."

"529. Plunder involves the intentional and unlawful appropriation of private or public property. Furthermore, pursuant to Articles 1 and 5 of the Statute, the offence must involve grave consequences for the victim. The assessment as to when a piece of property reaches the threshold level of a certain value so as to create grave consequences for the victim can only be made on a case by case basis in conjunction with the particular circumstances of the case. The threshold of seriousness can be met in circumstances where appropriation is vis-à-vis a large number of individuals even though there are no grave consequences for each individual as the overall effect on the civilian population and the multitude of offences committed would render the violation serious."

"531. The destruction of various types of property is prohibited by a number of international instruments. In this context, the term of property is understood to cover both private and public property, including cultural and religious property.  While the destruction of property is listed as an offence under Articles 2 and 3 of the Statute in various forms, Article 5 makes no mention of it. However, the Appeals Chamber has held that, depending on the nature and the extent of the destruction and if committed with discriminatory intent, the destruction of property can be of equal gravity to other crimes listed under Article 5 and as such may constitute persecution as a crime against humanity."

"532. For wanton destruction of property to be established, the Prosecution must prove the following elements: (i) the property was destroyed or damaged extensively; (ii) the destruction was not justified by military necessity; and (iii) the destruction was committed with the intent to destroy.''

"533. The property must not have been used for a military purpose at the time it suffered the destruction or extensive damage. It is for the Prosecution to establish that the destruction or extensive damage was not justified by military necessity. The Appeals Chamber has held that determining whether destruction occurred pursuant to military necessity involves a determination of what constitutes a military objective with reference to the definition in Article 52(2) of Additional Protocol I, according to which military objectives are “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage”."

5.3. Deprivation of fundamental rights: Underlying acts of employing prohibited methods of warfare.

5.4. Severity of underlying crimes.

The Krnojelac Trial Judgement points out that:

"the principle of legality requires that the Prosecution must charge particular acts amounting to persecution rather than persecution in general."[19]

The Vasiljević, Trial Chamber held that:

"In charging persecution, the principle of legality requires the Prosecutor to identify particular acts amounting to persecution rather than persecution in general."[20]

In Kupreškić Trial Chamber said it:

"[...] does not exclude the possibility that a single act may constitute persecution. In such a case, there must be clear evidence of the discriminatory intent. For example, in the former Yugoslavia an individual may have participated in the single murder of a Muslim person. If his intent clearly was to kill him because he was a Muslim, and this occurred as part of a wide or systematic persecutory attack against a civilian population, this single murder may constitute persecution. But the discriminatory intent of the perpetrator must be proved for this crime to qualify as persecution"."[21]

In Kordić, Trial Chamber held that:

"[I]n its definition of the actus reus of persecution, the Trial Chamber in Kupreškić set forth a four-part test in which an act of persecution is constituted by (1) a gross or blatant denial, (2) on discriminatory grounds, (3) of a fundamental right, laid down in international customary or treaty law, (4) reaching the same level of gravity as the other crimes against humanity enumerated in Article 5 of the Statute. The Trial Chamber finds that acts which meet the four criteria set out above, as well as the general requirements applicable to all crimes against humanity, may qualify as persecution, without violating the principle of legality."[22]

In Kupreškić, Trial Chamber held that:

"[I]n the light of its broad definition of persecution, the Prosecution cannot merely rely on a general charge of 'persecution' in bringing its case. This would be inconsistent with the concept of legality. To observe the principle of legality, the Prosecution must charge particular acts (and this seems to have been done in this case). These acts should be charged in sufficient detail for the accused to be able to fully prepare their defence."[23]

In Kordić, Trial Chamber stated that:

"[T]he Prosecution has urged the Trial Chamber to forego the final aspect of the Kupreškic definition of persecution (the 'same level of gravity' test), because it "would limit the inclusion of some acts, such as certain property destruction and dismissal from employment, that do not necessarily rise, in and of themselves, to the level of inhumane acts prescribed under Article 5."[24]

"[...] The Trial Chamber, however, finds that [Encouraging and promoting hatred on political etc. grounds], as alleged in the Indictment, does not by itself constitute persecution as a crime against humanity. It is not enumerated as a crime elsewhere in the International Tribunal Statute, but most importantly, it does not rise to the same level of gravity as the other acts enumerated in Article 5. Furthermore, the criminal prohibition of this act has not attained the status of customary international law. Thus to convict the accused for such an act as is alleged as persecution would violate the principle of legality.

"As with the above act, the Trial Chamber finds that [Dismissing and removing Bosnian Muslims from government etc], as alleged in the Amended Indictment, does not constitute persecution as a crime against humanity because it does not rise to the same level of gravity as the other crimes against humanity enumerated in Article 5."[25]

In Krnojelac, Trial Chamber held that:

"[N]ot every act or omission denying a fundamental human right is serious enough to constitute a crime against humanity.While acts or omissions listed under other subparagraphs of Article 5 of the Statute are by definition serious enough, others (either listed under other articles of the Statute or not listed in the Statute at all) must meet an additional test. Such acts or omissions must reach the same level of gravity as the other crimes against humanity enumerated in Article 5 of the Statute. This test will only be met by gross or blatant denials of fundamental human rights. When invoking this test, acts should not be considered in isolation but rather should be examined in their context and with consideration of their cumulative effect. Separately or combined, the acts must amount to persecution, though it is not required that each alleged underlying act be regarded as a violation of international law."[26]

In Krnojelac, Trial Chamber held that:

"[I]t can be said that at a minimum, acts of persecution must be of an equal gravity or severity to the other acts enumerated under Article 5."[27]

"[I]f the analysis based on this criterion relates only to the level of seriousness of the act, it does not provide guidance on what types of acts can constitute persecution. The ejusdem generis criterion can be used as a supplementary tool, to establish whether certain acts which generally speaking fall under the proscriptions of Article 5(h), reach the level of gravity required by this provision. The only conclusion to be drawn from its application is that only gross or blatant denials of fundamental human rights can constitute crimes against humanity."[28]

The Krnojelac Trial Judgement observes that:

"the acts must amount to persecution, though it is not required that each alleged underlying act be regarded as a violation of international law."[29]

The Krnojelac Appeal Judgement held that:

"[T]he acts underlying the crime of persecution, whether considered in isolation or in conjunction with other acts, must constitute a crime of persecution of gravity equal to the crimes listed under Article 5 of the Statute. [...]."[30]

In Tuta and Štela, Trial Chamber held that:

"[I]n order to determine the severity of the discriminatory acts or omissions not listed under Article 5 of the Statute, they should be considered in their context and their cumulative effect, and not in isolation. In the jurisprudence of the Tribunal, various acts or omissions have already been acknowledged as discriminatory acts in the meaning of Article 5(h) of the Statute while others have been rejected. While this jurisprudence may render some guidance for the consideration of the severity of certain acts or omissions, the findings of the Chamber, will be made on a case-by-case basis on the merits of each individual persecution allegation, taking into account the particular context and details of the individual act or omission charged in the Indictment."[31]