Table of contents
5.1. Deprivation of fundamental rights: Underlying acts against persons
P.1. Evidence of murder/killing
P.1.1. Evidence of considerable numbers of men from an ethnic group being murderd
P.1.2. Evidence of elderly and children being killed
P.1.3. Evidence of the stabbing to death of a baby by reason of being a boy
P.1.4. Evidence of dead female bodies
P.2. Evidence of deportation or forcible transfer
P.2.1. Evidence of civilians being displaced AND
P.2.2. Evidence of displaced persons not having a genuine choice to remain in a place
P.3. Evidence of imprisonment or unlawful detention
P.4. Evidence of cruel and inhumane treatment
P.4.2. Evidence of confinement under inhumane conditions
P.4.4. Evidence of civilians being used as human shields
P.5. Evidence of humiliating and degrading treatment
P.6. Evidence of use of hostage
5.2. Deprivation of fundamental rights: Underlying acts against property
P.7. Evidence of destruction of property
P.7.1. Evidence of destruction of or wilful damage to residential and commercial properties
P.7.2. Evidence of destruction of or wilful damage to religious and cultural buildings
P.8. Evidence of plunder of property
P.8.1. Evidence of looting of residential and commercial properties
P.9. Evidence of seizure of property
5.3. Deprivation of fundamental rights: Underlying acts of employing prohibited methods of warfare
P.10. Evidence of attacks on civilians
P.11. Evidence of attacks on civilian objects
P.12. Evidence of attacks on cities, towns, and villages
5.4. Severity of underlying crimes
Element
5. The perpetrator severely deprived, contrary to international law,21 one or more persons of fundamental rights.
5.1. Deprivation of fundamental rights: Underlying acts against persons
P.1. Evidence of murder/killing
A. Legal source/authority and evidence:
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 619-621:
4. Overall Finding on whether Elements for Persecution have been Satisfied
"619. The Trial Chamber has found that the widespread and systematic attack against the Bosnian Muslim population in Srebrenica was carried out on the basis of the ethnic, national and religious affiliation of the population. The Trial Chamber recalls in this respect the announcement of General Mladic that "the time has come for us to take revenge upon the Turks in this region." It further notes that many VRS soldiers were cursing at the Bosnian Muslims and calling them names.2021 VRS soldiers told refugees to leave the area calling it "Serb country" and part of "Greater Serbia ".2022 When Bosnian Muslim prisoners arrived at detention centres they were forced to repeat pro-Serb texts including that "this [area] is Serbia".2023 The Trial Chamber therefore finds that the circumstances accompanying the terrorising and the cruel and inhumane treatment of the Bosnian Muslim civilians, the subsequent forcible transfer of the women and children and the organised executions of the men substantiate the existence of a discriminatory intent on racial, religious or political grounds of the perpetrators.
620. The Trial Chamber finds that there is sufficient evidence to establish beyond reasonable doubt that the murder, the cruel and inhumane treatment and the terrorising of the civilian population as described above constitute blatant denials of fundamental rights that had a severe impact on the victims and therefore amount to persecutions. However, in relation to the destruction of the personal belongings such as clothes and wallets, the Trial Chamber does not find that those personal belongings constituted indispensable assets to their owners. The Trial Chamber therefore does not find that the burning of those personal belongings had a severe enough impact on the victims to reach the threshold of equal gravity as the acts listed in Article 5 of the Statute.
621. In summary the Trial Chamber finds that the murder, cruel and inhumane treatment, terrorising and forcible transfer of the Bosnian Muslim civilians constituted a persecutorial campaign against the Bosnian Muslim population."
P.1.1. Evidence of considerable numbers of men from an ethnic group being murderd
The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para. 748:
748. The Trial Chamber recalls that it found that between 12 July 1995 and approximately 19 July 1995, thousands of captured Bosnian Muslim males were killed by VRS and/or MUP forces in several different locations in and around Srebrenica, Bratunac, and Zvornik. Murder is enumerated in Article 5 of the Statute and by definition considered to be serious enough to amount to persecutions.
http//www.legal-tools.org/doc/653651/The Prosecutor v. Vlastimir Dordević, Case No. IT-05-87/1, Judgement (TC), 23 February 2011, para. 1780-1781:
1780. [T]he Chamber has found that the charge of murder as alleged in the Indictment has been established with respect to 10 locations in Kosovo. The Chamber has found that not less than 724 individuals specifically listed in the Schedule to the Judgement were murdered by Serbian forces. In the large majority of cases the victims, including many women and children, were civilians, who were unarmed and not in any way participating in any form of armed conflict. Some of those killed may have been members of the KLA but, virtually universally, these too were prisoners of the Serbian forces, unarmed and unable to participate in any form of armed conflict at the time they were killed. The evidence of these matters also demonstrates that the offences charged are merely examples, and by no means exhaustive, of the criminal conduct by Serbian forces against the Kosovo Albanian population in the course of the widespread and systematic attack referred to.
1781. In relation to the killings of identified persons charged as murder in the Indictment, and also those that were not specifically named as victims of the charge of murder, the evidence has established that the overwhelming majority of victims were Kosovo Albanians. The fact that the overwhelming majority of victims were Kosovo Albanians, in and of itself, is telling of the perpetrators’ intent to carry out these crimes against members of one ethnic group. Given this, and the overall circumstances, the Chamber finds that the requisite special intent is established.
Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 990:
"990. The Chamber recalls that it found that from 12 July until late July 1995, thousands of ablebodied Bosnian Muslim males were killed in the Potočari, Bratunac, Zvornik and Trnovo areas. The Trial Chamber finds that among those killed there were also some women, children and elderly. Murder is enumerated in Article 5 of the Statute and by definition considered to be serious enough to amount to persecution."
P.1.2. Evidence of elderly and children being killed
P.1.3. Evidence of the stabbing to death of a baby by reason of being a boy
P.1.4. Evidence of dead female bodies
A. Legal source/authority and evidence:
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 603-604:
"(a) Murder
603. The Prosecution charges that "the murder of thousands of Bosnian Muslim civilians, including men, women, children, and elderly persons," constitutes an act of persecution.
604. As discussed above, the Trial Chamber finds that during the days following the fall of Srebrenica thousands of Bosnian Muslim men were murdered.1981 The Trial Chamber further finds that amongst the killed there were also elderly and children. It also recalls the stabbing to death of a baby by VRS soldiers when they were told that it was a boy.1983 The Trial Chamber also finds that babies were killed intentionally by not satisfying their essential needs. The Trial Chamber further finds that women were killed and recalls evidence as to dead female bodies that were found in a stream near the UN compound in Potocari.1985"
[Evidentiary comment:]
P.2. Evidence of deportation or forcible transfer
A. Legal source/authority and evidence:
http//www.legal-tools.org/doc/653651/The Prosecutor v. Vlastimir Dordević, Case No. IT-05-87/1, Judgement (TC), 23 February 2011, para. 1776-1777:
1776. The Chamber is satisfied that the acts of forcible transfer are of sufficient gravity to constitute persecutions. The Chamber notes in particular that they affected a very large number of Kosovo Albanian civilians, that these people were typically deprived of their homes, their means of subsistence, and they were often subjected to severe hardship being deprived of normal amenities and forced to spend nights in the open or in overcrowded houses, without adequate conditions for caring for themselves and for the children, elderly and the sick, and such hardship and deprivation was accompanied by emotional turmoil and grief.
1777. The Chamber also finds that the acts of forcible transfer and deportation […] were committed with the requisite discriminatory intent. The overwhelming majority of those forcibly displaced were Kosovo Albanians, which, given the circumstances, in the Chamber’s finding indicates that Kosovo Albanians were targeted specifically. The Chamber has found […] that on a number of occasions Serbian forces carrying out the forcible displacement made specific remarks to the effect that there was no place for Kosovo Albanians in Kosovo and were insulting Kosovo Albanians on the basis of their ethnicity.
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 619-621:
"4. Overall Finding on whether Elements for Persecution have been Satisfied
619. The Trial Chamber has found that the widespread and systematic attack against the Bosnian Muslim population in Srebrenica was carried out on the basis of the ethnic, national and religious affiliation of the population. The Trial Chamber recalls in this respect the announcement of General Mladic that "the time has come for us to take revenge upon the Turks in this region." It further notes that many VRS soldiers were cursing at the Bosnian Muslims and calling them names.2021 VRS soldiers told refugees to leave the area calling it "Serb country" and part of "Greater Serbia ". When Bosnian Muslim prisoners arrived at detention centres they were forced to repeat pro-Serb texts including that "this [area] is Serbia".2023 The Trial Chamber therefore finds that the circumstances accompanying the terrorising and the cruel and inhumane treatment of the Bosnian Muslim civilians, the subsequent forcible transfer of the women and children and the organised executions of the men substantiate the existence of a discriminatory intent on racial, religious or political grounds of the perpetrators.
620. The Trial Chamber finds that there is sufficient evidence to establish beyond reasonable doubt that the murder, the cruel and inhumane treatment and the terrorising of the civilian population as described above constitute blatant denials of fundamental rights that had a severe impact on the victims and therefore amount to persecutions. However, in relation to the destruction of the personal belongings such as clothes and wallets, the Trial Chamber does not find that those personal belongings constituted indispensable assets to their owners. The Trial Chamber therefore does not find that the burning of those personal belongings had a severe enough impact on the victims to reach the threshold of equal gravity as the acts listed in Article 5 of the Statute.
621. In summary the Trial Chamber finds that the murder, cruel and inhumane treatment, terrorising and forcible transfer of the Bosnian Muslim civilians constituted a persecutorial campaign against the Bosnian Muslim population."
P.2.1. Evidence of civilians being displaced AND
http//www.legal-tools.org//066e67/The Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69, Judgement (TC), 30 May 2013, para. 1250:
1250. The Trial Chamber has examined the evidence and its findings in relation to each of the incidents of deportation and forcible transfer it found to have been committed in order to ascertain whether the particular principal perpetrators involved acted with discriminatory intent. In its assessment, the Trial Chamber considered its findings that in certain incidents the principal perpetrators introduced several discriminatory measures aimed specifically at marginalising the non-Serb population. In particular, the principal perpetrators intimidated and terrorised their victims on the basis of their ethnicity, including by engaging in criminal activities on a massive scale, damaging or destroying their local worship places, looting their houses, threatening members of particular ethnicities that they would lose their jobs and be expelled, dismissing persons or otherwise forcing them to leave their jobs and destroying the businesses of others on grounds of their ethnicity, imposing curfews on members of these ethnicities or other restrictions on their freedom of movement, and misappropriating the properties of victims belonging to a particular ethnicity after they were forced to leave or just before they were forced to leave. The Trial Chamber has also considered that in certain incidents the principal perpetrators were specifically assigned to search for and detain persons on grounds of their ethnicity. In a number of instances such persons were found to have been arbitrarily detained, at times on a large-scale and for considerable time, ill-treated, tortured, sexually abused, or forced to perform labour on grounds of their ethnicity. The principal perpetrators’ discriminatory intent was evidenced by the fact that Serb detainees were released after their ethnicity had been established, references that the arrests were made because of the victims’ ethnicity and for revenge, the cursing of victims using derogatory terms associated with their ethnicity, as well as other attempts to insult them on ethnic grounds by forcing them, for instance, to sing "Chetnik songs" and curse their political leaders. Notably, in one municipality detainees were beaten, sexually assaulted, tortured, and insulted all on the basis of their ethnicity, for instance one prisoner was beaten in his crotch and told that Muslims should not propagate. In another municipality detainees were abused while being told that "the Croatian nation has to be destroyed" and "all Croats have to be killed". In a number of incidents, the principal perpetrators issued ultimatums that all members of a particular ethnicity had to leave their town immediately or would be killed, and selected and transferred or organized the transfer of persons away in an effort to rid areas of members of that ethnicity. In other instances, the Trial Chamber found that the attacks on specific towns were aimed at forcing the local population to leave in order to establish a purely Serb territory, and in at least one incident the local population, referred to as "Ustašas", was requested to leave so that the village could form part of a Greater Serbia.
P.2.2. Evidence of displaced persons not having a genuine choice to remain in a place
A. Legal source/authority and evidence:
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 616-618:
"(e) Forcible Transfer
616. It is established that the Bosnian Muslim population was forcibly displaced from the Srebrenica enclave through Potocari, including the women, children and elderly who were transported to Kladanj, and the Bosnian Muslim men who were bussed out of Potocari to temporary detention facilities in Bratunac.
617. The evidence establishes that the Bosnian Muslim refugees in Potocari did not have a genuine choice of whether to remain in or leave the Srebrenica enclave. This lack of a genuine choice was a result of the actions and behaviour of the officers and soldiers of the VRS towards the refugees. In particular the Trial Chamber observes the following evidence testimony:
- the widespread knowledge among the Bosnian Muslim refugees of serious crimes committed by members of the Bosnian Serb forces in Potocari,
- the organised, inhumane and frequently aggressive process of separating out and removing the male members of the population,
- the evidence regarding the conditions in Potocari during the nights of 11 and, in particular, 12 July,
- that many VRS soldiers were cursing at the Bosnian Muslim refugees, saying that they would be slaughtered, and
- the demonstrative attack by the VRS on Potocari in the morning of 12 July.
618. All these actions by members of the Bosnian Serb forces served to show the Bosnian Muslim refugees that they did not have a genuine choice to remain in the enclave. The transport of the Bosnian Muslim refugees out of the enclave was consequently forcible in character. Although documentary evidence indicates that the VRS used the term "evacuation" to describe the forcible transfer, the Trial Chamber is unable to find that any of the exceptions to the general prohibition of forcible population displacements apply to the actions of the VRS. Moreover, the evidence is clear that the perpetrators did not intend that those displaced would be able to return once the situation had normalised in the area. The Trial Chamber therefore concludes that the elements of the crime of forcible transfer, as a component crime of persecution, have been met and that this crime was committed."
B. [Evidentiary comment:]
P.3. Evidence of imprisonment or unlawful detention
A. Legal source/authority and evidence:
http//www.legal-tools.org/doc/62a710/Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, para. 810 - 812:
"810. The Chamber finds that Serb authorities detained mainly Muslim, but also Croat civilians in more than 350 detention facilities, the majority of which are referred to in schedule C of the indictment, located in 33 municipalities, namely Banja Luka, Bijeljina, Bileća, Bosanska Krupa, Bosanski Novi, Bosanski Petrovac, Bratunac, Brčko, Čajniče, Čelinac, Doboj, Donji Vakuf, Foča, Gacko, Hadžići, Ilidža, Ilijaš, Kalinovik, Ključ, Kotor Varoš, Nevesinje, Novi Grad, Novo Sarajevo, Pale, Prijedor, Rogatica, Sanski Most, Sokolac, Teslić, Trnovo, Vlasenica, Vogošća, and Zvornik.TPF 1682
FPT With regard to 36 of the facilities listed in the indictment schedule, the Chamber either did not receive sufficient evidence to conclude that they functioned as detention centres where Muslim and Croat civilians were unlawfully held, or has not found that they operated within the indictment period or within one of the indictment municipalities.TPF 1683
FPT
811. Various facilities, such as prisons, police stations, schools, municipal buildings, industrial premises, hotels, and sports facilities, within the municipalities were all used as detention centres. Serb forces often arrested and detained Muslims and Croats after having attacked their villages and towns. Sometimes persons were put in temporary detention facilities before being transferred to other long-term detention facilities. For example, in Vlasenica municipality, following attacks on Sušica and several other villages, a MUP special unit detained men in the municipal court house before they were transferred to Sušica camp.
812. Serb forces arrested many thousands of Muslims and Croats and detained them in the detention centres referred to above. Detainees were sometimes divided into different categories, for example, detainees who were of security interest to the Serbs; detainees who helped to finance or supply arms; and detainees about whom the Serbs had no information and who were to be treated as hostages to be used in exchange for Serb citizens. According to another categorization in Prijedor municipality, group A detainees consisted of persons who were "not guilty of anything"; group B and group C consisted of persons who had supported the SDA or belonged to the SDA, or who had taken part in or financed attacks on Prijedor. The Chamber finds that these categories reveal that the arrest and detention of Muslims and Croats was widespread and not limited to lawful detention. This is also consistent with numerous witness testimonies received by the Chamber. The Chamber also notes that while the detainees in many cases consisted exclusively, or almost exclusively, of Muslims and Croats, the guards were always of Serb ethnicity. The Chamber finds that Serb forces detained Muslims and Croats on the basis of their ethnicity, and that the arrest and detention therefore was unlawful, discriminatory in fact, and carried out on discriminatory grounds."
1682 P As for the detention centres set out in schedule C of the indictment, the Chamber refers to part 4 of this judgement where all centres which the Chamber considers proven are indicated by name and code. In addition, part 4 discusses the following detention centres which were not explicitly set out in the indictment but which the Chamber considers proven: Bijeljina: Mauzer’s private jail or slaughterhouse; Hadžići: the professional trades school, the Garaže (garages), the Zgrada TO building, the basement of a hotel, Tarčin prison, the ?unovnica military barracks, the building of Social Affairs, and the Blažuj military barracks; Ilidža: the cultural and sports complex, the storage building of Energoinvest, Kasindol hospital, the graphic school, the kindergarten, and the Blažuj military barracks; Ilijaš: the industrial school, the former railway station, the INA gasoline storage plant, the old homes in Jamjanovića, the old pit in Podlugovi, the Nišići winter services maintenance, the MIK factory hall in Podlugovi, and a concrete bunker by the Stavanja river in Podlugovi; Novi Grad: the Energopetrol gasoline storage plant, a distribution centre, and the Kisikana oxygen storage plant; Pale: the cultural centre and the miliatrey barracks in Hrenovica; Trnovo: weekend cottages; Vlasenica: the municipal court house; Vogošća: the Sonje bunker beside the Kon Tiki boardinghouse, a sports complex, the Krivoglavci tunnel and the UNIS factorie.
683 Bijeljina: C2.6, C2.7, C2.10, C2.13-C2.15; Bosanska Krupa: C4.3; Bosanski Petrovac: C6.3; Bratunac: C7.1, C7.7, C7.8; Brčko: C8.10, C8.16; Doboj: C11.28, C11.29, C11.30; Donji Vakuf: C12.1, C12.12; Foča: C13.5, C13.16; Ilidža: C16.4; Ilijaš: C17.4, C17.6; Kalinovik: C18.1; Ključ: C19.7; Nevesinje: C21.2; Pale: C24.1, C24.3; Rogatica: C26.4, C24.9; Sanski Most: C28.16, C28.18-C28.20; Vlasenica: C.32.7; Vogošća: C33.6.
http//www.legal-tools.org/doc/e1ae55/Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 234:
"234.The unlawful detention of civilians: The unlawful detention of civilians, as a form of the crime of persecution, means unlawfully depriving a group of discriminated civilians of their freedom."
http//www.legal-tools.org/doc/5c6a53/Prosecutor v. Zoran Kupreškić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, paras. 628-629:
"628. The Trial Chamber will now examine the specific allegations in this case, which are the "deliberate and systematic killing of Bosnian Muslim civilians", the "organized detention and expulsion of the Bosnian Muslims from Ahmici-?antici and its environs", and the "comprehensive destruction of Bosnian homes and property". Can these acts constitute persecution?
629. In light of the conclusions above, the Trial Chamber finds 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."
P.4. Evidence of cruel and inhumane treatment
A. Legal source/authority and evidence:
http://www.legal-tools.org/doc/173e23/The Prosecutor v. Radovan Karadžić, Public Redacted Version of Judgement Issued on 24 March 2016, para. 2500-2506:
"2500. The Chamber found in Section IV.A.1 above that Serb Forces committed rape against Bosnian Muslim and Bosnian Croat women and men in Bijeljina, Brčko, Foča, Novo Sarajevo, Prijedor, Rogatica, Vlasenica, Vogošća, and Zvornik. Some Bosnian Muslim women and girls were raped on multiple occasions, sometimes on a continuous basis by members of Serb Forces while in detention facilities.
2501. In one case a woman was raped approximately 150 times during her detention. There were incidents where Bosnian Muslim women who had been detained were taken out of the facilities and raped by Serb Forces; in some incidents the rape was accompanied by additional threats or use of violence and sometimes involved gang rape. Some Bosnian Muslim women were moved to houses and apartments where they were raped on some occasions in front of each other. Other incidents included women being raped and further humiliated publicly by members of Serb Forces in villages which had been taken-over. The Chamber also found that some Bosnian Muslim male detainees, including a 13-year-old boy, were also raped by Serb Forces who used police truncheons and similar objects.
2502. In one incident Bosnian Muslim detainees were ordered to get down on all fours, a pointed stake was introduced into their anuses causing them to scream in pain; they were then ordered to wipe the blood with their clothes. In other incidents detainees were forced to have oral and sexual intercourse with each other, sometimes in front of other detainees.
2503. Other acts of sexual violence included male and female detainees who were ordered to undress, dance, and perform sexual acts in front of Bosnian Serb soldiers. In other incidents detainees were forced to remove their underwear and bite or suck each others’ penises while soldiers stood by and laughed. In another incident detainees were forced to lick the buttocks of a Bosnian Serb woman, who threatened to slit their throats if they did not comply. A female detainee had her breast exposed while a guard went over it with a knife and the other guards watched and laughed.
2504. The Chamber finds that each of these acts of rape and other acts of sexual violence were committed by members of Serb Forces without the consent of the victims, that the perpetrators intentionally committed these acts, and that the perpetrators were aware that the victims did not consent to such acts. In reaching that conclusion the Chamber has had regard to the circumstances in which they occurred and the horrific nature of the acts themselves. This includes the fact that the victims were often detained and subjected to threats of or actual violence and humiliation.
2505. With respect to the other acts of sexual violence referred to above, the Chamber finds that they involved serious abuses of a sexual nature which were inflicted upon the integrity of the victims by means of coercion, threat of force, or intimidation in a way that caused the utmost humiliation and degradation to the dignity of the victims. The Chamber finds that these acts of sexual violence amounted to denial of or infringement upon a fundamental right and were of equal gravity to the other crimes listed under Article 5 of the Statute.
2506. The Chamber therefore finds that Bosnian Muslim women, men, girls, and boys were subject to rape and other acts of sexual violence. "
http://www.legal-tools.org/doc/f0666a/The Prosecutor v. Milan Milutinović et al., Trial Judgement 26 February 2009, para. 630-632, 689-690, 1224:
"630. The women were handed over to another group of men and then taken to a barn in Cirez/Qirez. According to K24 they were handed over to three men wearing camouflage uniforms with a blend of dark green, yellow, and red marks, and with tiger badges on their sleeves, who took them to the barn. Rrahmani, however, testified that they were handed over to a group of men, two of whom then took them to the barn, while the third appeared later. The two men were older, with beards, and were wearing black and brown uniforms.
631. Both K24 and Rrahmani were relatively consistent in their accounts of the events that took place in and outside of the barn. According to Rrahmani, once they all entered the barn the two soldiers ordered the women to hand over their money, jewellery, and identification documents, and started taking women out of the barn, in succession. The first woman to come back told Rrahmani that she was forced to take her clothes off. When Rrahmani was taken out, she was searched, asked about the whereabouts of her husband, and then told to lift her blouse and her bra up. The soldier searching her touched her breasts and taunted her with sexual comments. About 20 minutes later she was told to go back into the barn. A third soldier arrived, who, according to Rrahmani, was very tall and blonde and could speak Albanian. In the next two hours or so all women, except for two elderly ones, were taken out of the barn one by one and searched in the same manner. Some, mainly the younger ones, were repeatedly taken out.
632. K24 also stated that a tall man with blonde hair took the women out of the room and searched them one by one, forcing them to take their clothes off. Eventually, over a period of two hours, he took out five young girls a number of times. These girls were: the three sisters, Antigona, Bukurije, and Mirishahe Dibrani; Lumnie Zymeri; and Zahide Xhema. They went out one by one and came back with their clothes in disorder, terrified and not willing to speak about what had happened. One said that they were stripped naked. At one point K24 was also taken outside, where she saw the other two men with tiger badges. The blonde man ordered her to take her clothes off and dropped his trousers to his knees. He started touching her breasts and vagina, at which point she fainted. When she regained consciousness she realised that she had not been raped. She was then told to get up and start walking to the barn. Just before entering the barn, the soldier escorting her told her to sit down and rest. Some five minutes later he told her to follow him and ordered her to take off her clothes. He took off his trousers and his underwear and started touching her. The man then threatened her with a knife, but soon after lost patience and told her to go back to the barn, which she did. Both women testified that, throughout their ordeal, the men taunted them verbally, making statements such as "[s]o, you want a republic, you want independence" and "you are asking for NATO, for Thaqi and Rugova".
689. The Chamber is satisfied that the evidence of K24, as well as of Rrahmani, is both credible and reliable. Thus, it is of the view that both K24 and Rrahmani were touched in a sexual and threatening manner around mid-April 1999. In addition, at least two other women were sexually assaulted and were then, together with another six women, thrown into three wells while still alive. All eight died as a result of drowning. The Chamber notes that these killings are not charged in the Indictment and thus will not be entering convictions in respect of the same.
690. With respect to the perpetrators of these sexual assaults, the Chamber notes that throughout April VJ and the MUP forces were in and around Cirez/Qirez, as confirmed by a number of April 1999 orders and combat reports of the 37th Motorised Brigade. Relying on the same orders and reports, the Chamber is satisfied that MUP forces were also present in the area and that they, as reported by Diković, were misbehaving and engaging in looting. The Chamber further recalls Diković’s evidence that members of his unit had been investigated for killing Kosovo Albanians and disposing of their bodies by throwing them into wells. However, the Chamber notes that the men described as perpetrators by Rrahmani and K24 wore either black and brown uniforms, or green camouflage uniforms with red ribbons and the tiger insignia. K24 also mentioned a man in a dark blue camouflage uniform releasing her and the remaining women from the barn. In addition, Salihu testified about "paramilitaries" being present in Cirez/Qirez. Accepting those accounts casts doubt on the allegation that the perpetrators were members of the regular VJ. Further doubt is caused by the fact that, when they returned to Kozica/Kozhica, the women went to the VJ soldiers and told them what had happened. The soldiers then attempted to investigate and find the other eight women who, by that time, had probably already been assaulted and thrown into wells. The Chamber cannot, therefore, make any findings about precisely who it was who sexually assaulted these women, but notes that the perpetrators worked in collaboration with VJ forces present in the area at the time and that they were armed, uniformed men who formed part of the forces of the FRY and Serbia.
1224. The Chamber is in no doubt that in Cirez/Qirez at least four women were subjected to acts of a sexual nature, infringing their physical integrity or amounting to an outrage to their personal dignity, during the course of the attack upon the Kosovo Albanian population of the municipality. Given that all these women were detained by the physical perpetrators and that some of them were later killed, it is clear that none of them consented to these sexual acts. The Chamber is also convinced that the physical perpetrators intentionally committed these acts and that they were aware that the victims did not consent. Since the women were also verbally abused by the physical perpetrators who made specific references to Kosovo Albanian leaders, the Chamber is convinced that the physical perpetrators carried out the sexual assaults with the intent to discriminate against the Kosovo Albanians as an ethnic group. Accordingly, all of the elements of sexual assault as a form of persecution, punishable as a crime against humanity under Article 5(h) are satisfied."
The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para. 750:
750. The Trial Chamber finds that, as described in detail above, the Bosnian Muslims detained in Potočari and elsewhere suffered serious bodily or mental harm caused by horrific and inhumane conditions, as well as physical assaults. The Trial Chamber further finds that this cruel and inhumane treatment is of equal gravity to the crimes listed in Article 5 and constitutes a blatant denial of fundamental rights that had a severe impact on the victims. The Trial Chamber therefore concludes that it amounts to an underlying act of persecutions.
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 619-621:
4. Overall Finding on whether Elements for Persecution have been Satisfied
619. The Trial Chamber has found that the widespread and systematic attack against the Bosnian Muslim population in Srebrenica was carried out on the basis of the ethnic, national and religious affiliation of the population. The Trial Chamber recalls in this respect the announcement of General Mladic that "the time has come for us to take revenge upon the Turks in this region." It further notes that many VRS soldiers were cursing at the Bosnian Muslims and calling them names. VRS soldiers told refugees to leave the area calling it "Serb country" and part of "Greater Serbia ". When Bosnian Muslim prisoners arrived at detention centres they were forced to repeat pro-Serb texts including that "this [area] is Serbia". The Trial Chamber therefore finds that the circumstances accompanying the terrorising and the cruel and inhumane treatment of the Bosnian Muslim civilians, the subsequent forcible transfer of the women and children and the organised executions of the men substantiate the existence of a discriminatory intent on racial, religious or political grounds of the perpetrators.
620. The Trial Chamber finds that there is sufficient evidence to establish beyond reasonable doubt that the murder, the cruel and inhumane treatment and the terrorising of the civilian population as described above constitute blatant denials of fundamental rights that had a severe impact on the victims and therefore amount to persecutions. However, in relation to the destruction of the personal belongings such as clothes and wallets, the Trial Chamber does not find that those personal belongings constituted indispensable assets to their owners. The Trial Chamber therefore does not find that the burning of those personal belongings had a severe enough impact on the victims to reach the threshold of equal gravity as the acts listed in Article 5 of the Statute.
621. In summary the Trial Chamber finds that the murder, cruel and inhumane treatment, terrorising and forcible transfer of the Bosnian Muslim civilians constituted a persecutorial campaign against the Bosnian Muslim population.
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 77-78, 770-771:
"(iii) Beatings
77. The Trial Chamber emphasises that the mere description of bodily assaults as "beatings" does not by itself establish that these beatings constitute the actus reus of cruel and inhumane treatment as persecutory acts. Instead, the beatings have to amount to a "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".
78. Taking into consideration the requirements of Article 5 (i) of the Statute as set out above, the Trial Chamber finds that beatings constitute cruel and inhumane treatment if the following elements can be proved:
(a) the beatings caused serious mental or physical suffering or injury or constituted a serious attack on human dignity, and
(b) the beatings were performed deliberately."
"135 - Cf. http//www.legal-tools.org/doc/5c6a53/Kupreskic Trial Judgement, paras 621, 627; http//www.legal-tools.org/doc/f2cfeb/Naletilic Trial Judgement, para. 635."
"3. Findings
770. The Trial Chamber is convinced that on 17 April 1992 and in the following months, a large number of non-Serb civilians were repeatedly beaten in the detention facilities in Bosanski Samac and in Crkvina, Brcko, and Bijeljina. Some of the victims had already been beaten upon their arrest. During their imprisonment in the detention facilities, detainees were severely beaten with various objects, such as rifles, metal bars, baseball bats, metal chains, police batons, and chair legs. The detainees were beaten on all parts of their bodies, and many of them suffered serious injuries. Some prisoners were beaten while undergoing interrogation. The beatings were applied by paramilitary forces from Serbia, local policemen, and a few members of the JNA. The beatings took place on a daily basis, day and night. The Defence for all three accused did not contest that such beatings occurred as described by the witnesses .
771. The Trial Chamber is satisfied that these beatings caused severe pain and suffering, both physically and mentally, to the detainees. The Trial Chamber is also satisfied that the beatings were committed on discriminatory grounds. The evidence shows that practically all detainees who were beaten were non-Serbs. On one occasion, a victim was beaten in the crotch, and his assailants told him that Muslims should not propagate .1728 Prisoners were regularly insulted on the basis of their ethnicity.1729 For these reasons, the Trial Chamber finds that the beatings that were committed on discriminatory grounds constitute cruel and inhumane treatment as an underlying act of persecution."
[Evidentiary comment:]
P.4.2. Evidence of confinement under inhumane conditions
A. Legal source/authority and evidence:
http//www.legal-tools.org/doc/62a710/Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, paras. 795-796, 798 and 800:
"795. The Chamber finds that, through acts and omissions, the Serb authorities established and perpetuated inhumane living conditions in many of the detention centres where Muslims and Croats were held (see section (e), below). Detainees were not provided with sufficient food, water, or medical care, and were kept in extremely cramped and unhygienic conditions.
796. For example, detainees in KP Dom [C13.8] in Foča were given starvation rations and suffered extreme weight loss. In addition, they were not allowed to receive visits and could therefore not supplement their meagre food rations. In Zvornik, 20 detainees died from heat stroke and lack of water within hours of arriving at the Karakaj technical school [C34.10]. In Omarska camp [C25.4] in Prijedor, up to 600 detainees were kept in an open concrete area in all weather conditions, while in Betonirka prison [C28.1] in Sanski Most, conditions were so cramped that detainees were forced to sleep sitting up. Some detention centres, such as Omarska camp, functioned as long-term detention facilities, where detainees were subjected to inhumane living conditions for several months."
"798. The Chamber also finds that Muslim and Croat detainees in numerous detention centres were physically and psychologically ill-treated 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. Detainees were beaten on a regular basis in many detention centres. In Batković camp [C2.5] in Bijeljina, for example, some detainees were beaten three times a day and were forced to beat each other. Extremely serious beatings took place in KP Dom [C13.8] in Foča, where detainees were sometimes beaten so severely that they could not walk for days. In the Petar Kočić school [C4.2] in Bosanska Krupa and in Đački Dom [C3.5] in Bileća, detainees were subjected to electric shocks. Many detainees sustained severe injuries as a result of these beatings. On many occasions, detainees were in fact beaten to death. The Chamber has dealt with such incidents in part 5.2.2, above."
"800. The Chamber finds that in a number of detention centres, Muslim and Croat detainees were raped or sexually abused. For example, in Batković camp [C2.5] in Bijeljina, male detainees were forced to engage in degrading sexual acts with each other in the presence of other detainees. In several detention centres in Foča, women and young girls were raped on a regular basis, namely in Bukovica motel [C13.19], the workers huts at Buk Bijela [C13.6], Srednja ?kola [C13.1], and Karaman’s house in Miljevina [C13.3=13.15]. Sexual abuse also occurred in Luka camp [C8.7] in Brčko; the civil defence headquarters [C15.1], a factory outside the town of Hadžići [C15.2], and the sports centre [C15.3=15.5] in Hadžići; Kalinovik elementary school [C18.2]; the police station [C20.4] and Pilana sawmill [C20.7] in Kotor Varoš; the police station [C33.8] in Vogošća; and the Dom Kulture Čelopek [C34.8] in Zvornik."
Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 994:
"994. The Trial Chamber finds that, as described above, the Bosnian Muslims in Potočari and detained elsewhere were subjected to horrific and inhumane conditions, as well as physical assaults. These combined circumstances constituted a serious attack on their human dignity and inflicted serious mental and physical suffering and injury. Furthermore, the civilian population gathered in Potočari had to endure a forced and painful separation process and the terrifying uncertainty which followed as to the fate of the men left behind. The Trial Chamber is satisfied these circumstances inflicted serious mental harm on the men, women and children of Srebrenica. For those few men who ultimately survived the executions, the horrendous circumstances they lived through witnessing the mass execution of all around them and escaping the same fate by chance there can be no doubt as to severe mental harm inflicted upon them. The Chamber finds that this cruel and inhumane treatment is of equal gravity to the crimes listed in Article 5 and constitutes a blatant denial of fundamental rights that had a severe impact on the victims. The Trial Chamber therefore concludes that it amounts to an underlying act of persecution."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 94-97:
"(vi) Confinement under inhumane conditions
94. When discussing "confinement under inhumane conditions", the Kvocka Trial Chamber found that:
Confinement in camps under inhumane conditions can be included under sub-clauses (e) and (i) prohibiting "imprisonment" and "other inhumane acts" and also meets the definition of a persecutory act.
95. The Trial Chamber went on to examine harassment, humiliation and psychological abuse stating that "these acts are not explicitly listed under Article 5 nor do they appear as specific offences under other Articles of the Statute", and concluded 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.
96. The http//www.legal-tools.org/doc/1a994b/Krnojelac Trial Chamber further observed:
The establishment and perpetuation of inhumane conditions is separately charged as inhumane acts, a crime against humanity pursuant to Article 5(i) of the Statute, and as cruel treatment, a violation of the law or customs of war pursuant to Article 3 of the Statute, and as such is of sufficient gravity to constitute persecution.
The Trial Chamber is satisfied that the establishment and perpetuation of inhumane conditions, constituting inhumane acts and cruel treatment of the non-Serb detainees, was carried out with the intent to discriminate against the non-Serbs detainees because of their religious or political affiliations. Accordingly, the Trial Chamber is satisfied that the crime of persecution has been established.
97. The Trial Chamber finds that harassment, humiliation, the creation of an atmosphere of fear through torture and other forms of physical and psychological abuse, an insufficient supply of food and water, lack of space, unhygienic detention conditions, and an insufficient access to medical care are circumstances that may constitute confinement under inhumane conditions and meet the actus reus of cruel and inhumane treatment as a persecutory act."
"171 - http//www.legal-tools.org/doc/34428a/Kvocka Trial Judgement, para. 189.
172 - http//www.legal-tools.org/doc/34428a/Kvocka Trial Judgement, para. 190.
173 - http//www.legal-tools.org/doc/34428a/Kvocka Trial Judgement, paras 191-192
174 - http//www.legal-tools.org/doc/1a994b/Krnojelac Trial Judgement, paras 439, 443."
[Evidentiary comment:]
A. Legal source/authority and evidence:
http//www.legal-tools.org/doc/62a710/Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, para. 815:
"815. The Chamber finds that Serb forces used Muslims and Croats for labour at front lines, including digging trenches and carrying munitions, in seven municipalities, namely Bijeljina, Bosanska Krupa, Brčko, Novo Sarajevo, Teslić, Vlasenica, and Vogošća. All the victims in the mentioned instances were held at various detention centres when they were taken for forced labour. For example, detainees at Batković camp in Bijeljina and Sušica camp in Vlasenica were regularly forced to perform manual labour, including digging trenches. Considering the findings on illegal detention and the conditions at detention centres (sections (c) and (e), above), the Chamber finds that there was no real possibility for the detainees to consent to be used for work and that the labour was therefore forced."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 84-93, 834-835, 837 :
"(v) Forced labour assignments
84. Forced labour assignments infringe upon a number of norms of international human rights and humanitarian law. In time of peace the international and regional human rights treaties provide for certain prohibitions against forced or compulsory labour. The discussion below focuses on the prohibition of unlawful labour during an armed conflict as defined by the norms of international humanitarian law.
85. Trial Chambers of the Tribunal have held that the charge of "forced labour assignments" may constitute the basis of the crime of enslavement as a crime against humanity under Article 5 (c), and the offence of slavery as a violation of the laws or customs of war under Article 3 of the Statute, and as such this offence is of sufficient gravity to support a charge of persecution.
86. The underlying acts of the charge of "forced labour assignments" infringe upon certain provisions of Geneva Conventions III and IV, and as such may constitute a violation of the laws or customs of war other than grave breaches of the Geneva Conventions, falling within the scope of Article 3 of the Statute. It is settled case-law of the Tribunal that the law of the Geneva Conventions is part of customary international law. As a crime against humanity under Article 5 of the Statute, the definition of forced labour is not restricted by the jurisdictional requirements applicable to grave breaches of the Geneva Conventions under Article 2 of the Statute, including the characterization of the conflict as international and the victims as "protected persons".
87. International humanitarian law generally prohibits forced or involuntary labour in international, as well as internal armed conflicts. As held in the http//www.legal-tools.org/doc/1a994b/Krnojelac Trial Judgement, the determination of whether protected persons laboured involuntary is a factual question, which has to be considered in light of all factual circumstances on a case by case basis.
88. Not all types of forced or compulsory labour are per se unlawful under international humanitarian law. Article 51 of Geneva Convention IV, applicable in international armed conflicts, sets out the circumstances under which civilians may be made to work. It allows persons above 18 years of age to be subjected to compulsory labour in two narrowly defined categories and only if strict conditions are met. Compulsory labour may be lawful only if required for the needs of the army of occupation for maintaining public services, and for the feeding, sheltering, clothing, transportation or health, for the benefit of the population of the occupied country. Civilians however cannot be requisitioned for such work as "the construction of fortifications, trenches, or aerial bases," nor can forced labour be performed for strategic or tactical interests of the army. It should be noted that international humanitarian law has endorsed the principle of narrow interpretation of this provision. A commentary noted that:
the stringent interpretation of the kinds of work permitted as compulsory labour is intended to protect individuals against abuse and injury. It proscribes all types of modern slavery for the benefit of the occupying power. It is also intended to prevent the assignment of inhabitants to locations that might be military objectives, since they would then be exposed to dangers associated with attacks against military targets.
89. Similarly, under Geneva Convention III, prisoners of war may be subjected to certain types of involuntary labour. The Convention however proscribes compelling prisoners of war to do dangerous or unhealthy work, or assigning a prisoner of war to "labour that would be looked upon as humiliating for a member of the detaining power’s own forces." While the text of the Convention refers to the removal of mines as an example of dangerous work, the Commentary to the Convention notes that the ban on forced dangerous work is intended to cover labour done "in the vicinity either of key military objectives or c of the battlefield."
90. If persons protected under Geneva Conventions III and IV are made to work, international humanitarian law sets out the conditions under which this may be done. Under Geneva Convention III, prisoners of war are entitled to "suitable working conditions, especially as regards to accommodation and food." Geneva Convention IV requires that working conditions for civilians in occupied territories, such as payment, working hours, safety, and others, should comply with the legislation in force in the occupied country. In the context of a non-international armed conflict, civilians deprived of liberty, if made to work, shall have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population.
91. The Trial Chamber notes that certain types of forced labour may amount to cruel and inhumane treatment if the conditions under which the labour is rendered are such as to create danger for the life or health of the civilians, or may arouse in them feelings of fear, and humiliation. It should be noted here that the principle of humane treatment enshrined in the Geneva Conventions implies an obligation for the occupying powers to protect civilians against inhumane acts. Forcing protected persons to work in life-threatening circumstances fails to meet the obligation for protection against acts of violence and may result in inflicting upon these persons physical and mental suffering. It has been held that placing detainees in life-threatening situations constitutes cruel and inhuman treatment.
92. It is important to emphasize that inhumane treatment encompasses not only acts or omissions that cause serious mental or physical suffering, but also acts or omissions that constitute a serious attack on human dignity. Among the provisions prohibiting humiliating and degrading treatment, Article 52, paragraph 2 of Geneva Convention III explicitly proscribes compelling prisoners of war to do humiliating labour. The Commentary to Geneva Convention III notes that the prohibition is against making the prisoner "the laughing stock of those around him." An inquiry into the specific circumstances in each case will be necessary in order to determine whether the conditions under which civilians were forced to work constituted a serious attack on human dignity.
93. The Trial Chamber finds that forced labour assignments which require civilians to take part in military operations violate the fundamental norms of international humanitarian law as defined above. The Trial Chamber is also satisfied that forced labour assignments which result in exposing civilians to dangerous or humiliating conditions amount to cruel and inhumane treatment. These acts reach the same level of gravity as the other crimes against humanity and if performed with the requisite discriminatory intent may constitute persecution."
"144 - Most of the global and regional international human rights treaties explicitly outlaw forced or involuntary labour. Article 8, para. 3 (a) of the ICCPR, Article 4, para. 2 of the ECHR, Article 6, para. 2 of the American Convention on Human Rights. With respect to Article 8 of the ICCPR, it has been noted that "involuntariness is the fundamental definitional feature of forced or compulsory labour." (Bossuyt, Guide to the "Traveaux Preparatoires" of the International Covenant on Civil and Political Rights, 1987, p. 167) cited in Krnojelac Trial Judgement, para. 359.
145 - Krnojelac Trial Judgement, para. 471.
146 - Krnojelac Trial Judgement, para. 356.
147 - The Tribunal has established that the offence of slavery under Article 3 of the Statute is the same as the offence of enslavement under Article 5. Both offences require proof of the same elements and both terms can be used interchangeably. (Kunarac Trial Judgement, para. 523; endorsed in Krnojelac Trial Judgement, para. 356).
148 - Article 51, Geneva Convention IV and Articles 49, 50 and 52, Geneva Convention III. Geneva Convention IV generally prohibits civilians to be compelled to work unless certain conditions are met. (See para. 88 below). Article 51, para. 2, Geneva Convention IV reads:
The Occupying Power may not compel protected persons to work unless they are over eighteen years of age, and then only on work which is necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country. Protected persons may not be compelled to undertake any work which would involve them in the obligation of taking part in the military operations. The Occupying Power may not compel protected persons to employ forcible means to ensure the security of the installations where they are performing compulsory labour.
149 - The http//www.legal-tools.org/doc/f2cfeb/Naletilic Trial Judgement held that alleged violations of this provision clearly infringe upon a rule of international humanitarian law serious enough to fall within the scope of Article 3 of the Statute. (para. 250).
150 - Krnojelac Appeal Judgement, para. 220; http//www.legal-tools.org/doc/051554/Celebici Appeal Judgement, paras 112 and 113; http//www.legal-tools.org/doc/f2cfeb/Naletilic Trial Judgement, para. 250.
151 - Article 51 Geneva Convention IV; Articles 49, 50 and 52 Geneva Convention III.
152 - Additional Protocol II contains further prohibitions of forced or involuntary labour in internal armed conflicts. (Article 4, para. 2).
153 - Krnojelac Trial Judgement, para. 359; Affirmed by Krnojelac Appeal Judgement, para. 191.
154 - Kunarac Trial Judgement, para. 530 in fine, and para. 542; see also http//www.legal-tools.org/doc/f2cfeb/Naletilic Trial Judgement, para. 253.
155 - Article 51, para. 2, Geneva Convention IV.
156 - The Commentary to Geneva Convention IV defines these needs as inter alia "those connected with billeting and the provision of fodder", see Commentary to Geneva Convention IV, p. 294.
157 - The Commentary to Geneva Convention IV notes that the expression "public utility services" referred to in Article 51, para. 2 should be understood as including water, gas and electricity services, transport, health and similar services. (Commentary to Geneva Convention IV, p. 295)
158 - Article 51, para. 2, Geneva Convention IV; see also Commentary to Geneva Convention IV, p. 294, and Dieter Fleck, Ed., Humanitarian Law in Armed Conflicts, The Handbook of, Oxford University Press, New York, 2d Edition, 1999; section 564, para. 3, p. 264.
159 - Dieter Fleck, Ed., Humanitarian Law in Armed Conflicts, The Handbook of, Oxford University Press, New York, 2d Edition, 1999, section 564, para. 1, p. 264.
160 - Prisoners of war may be compelled to do agricultural work, work connected with the camp administration and maintenance or work in some industries, but they cannot be forced to do work of military character. (Articles 50 and 52, Geneva Convention III, http//www.legal-tools.org/doc/f2cfeb/Naletilic Trial Judgement, paras 255 and 256).
161 - Article 52, Geneva Convention III.
162 - Commentary to Geneva Convention III, pp. 274-275, endorsed in http//www.legal-tools.org/doc/f2cfeb/Naletilic Trial Judgement, para. 257.
163 - Article 51, para. 1, Geneva Convention III.
164 - Article 51, para. 3, Geneva Convention IV:
Every such person shall, so far as possible, be kept in his usual place of employment. Workers shall be paid a fair wage and the work shall be proportionate to their physical and intellectual capacities. The legislation in force… concerning working conditions, and safeguards as regards, in particular, such matters as wages, hours of work, equipment, preliminary training, and compensation for occupational accidents and diseases, shall be applicable to the protected persons assigned to the work referred to in this Article.
165 - Article 5, para. 1(e), Additional Protocol II. The Trial Chamber in Krnojelac has held that, "while working conditions and safeguards need not be exactly the same as those enjoyed by the local civilian population", and "such persons need not necessarily be remunerated by wages for all work they are made to do," it will be necessary to "determine on a case by case basis whether labour performed should have been compensated in some way." (Krnojelac Trial Judgement, para. 360)
166 - http//www.legal-tools.org/doc/6b4a33/Celebici Trial Judgement, para. 528.
167 - Blaskic Trial Judgement, para. 700.
168 - http//www.legal-tools.org/doc/6b4a33/Celebici Trial Judgement, para. 543.
169 - Common Article 3 of the Geneva Conventions provides that protected persons in an armed conflict not of international character shall in all circumstances be treated humanely and prohibits outrages upon personal dignity, in particular humiliating and degrading treatment. Article 27 of Geneva Convention IV requires that protected persons are treated humanely at all times and protects them against insults and public curiosity. The Commentary to Geneva Convention IV notes that "the aim of the Convention is certainly to grant civilians in enemy hands a protection which will preserve their human dignity and prevent them from being brought down to the level of animals." (Commentary to Article 147, Geneva Convention IV, p. 598) Similarly, Article 13 of Geneva Convention III, providing for humane treatment of prisoners of war, explicitly requires that the prisoners of war be protected, among others, against insults and public curiosity.
170 - Commentary to Geneva Convention III, p. 277.
171 - http//www.legal-tools.org/doc/34428a/Kvocka Trial Judgement, para. 189."
"2. Findings
834. The Trial Chamber is satisfied that civilians who had to report every day in front of the Pensioner’s Home as well as civilians who were detained were forced to dig trenches, build bunkers, carry sandbags or railway sleepers for the construction of trenches, and build other fortifications on the frontline. It has been established that this work was not rendered voluntarily. Civilians were compelled to work under the supervision of armed guards, who beat, or fired at those who tried to escape. The Trial Chamber also accepts that the civilians who were forced to dig trenches, and to work on the frontline were not paid for their work.
835. The Trial Chamber is satisfied that civilians working on military assignments on the frontline were exposed to dangerous conditions and were under a high risk of being injured or killed. The Trial Chamber accepts that the acts of forcing civilians to work in life-threatening circumstances where they could be exposed to physical and mental suffering fail to meet the obligation for humane treatment of civilians enshrined in the Geneva Conventions and amount to cruel and inhumane treatment. The Trial Chamber is satisfied that these assignments were made on a discriminatory basis and that they reach the level of seriousness required for persecution."
"1938 - Osman Jasarevic, Rule 92bis Statement, para. 108.
1939 - Esad Dagovic, T. 3923; Witness L, T. 4281; Witness M, T. 5042-43; Nusret Hadzijusufovic, T. 6876, T. 6881-83, Safet Dagovic, T. 7190-91, T. 7193, T. 7200, T. 7216; Kemal Mehinovic, T. 7399-00, Exhibit P9J.
1940 - Nusret Hadzijusufovic, T. 6875; Kemal Mehinovic, T. 7400.
1941 - Esad Dagovic, T. 5914; Witness C, T. 7909.
1942 - Safet Dagovic, T. 7190-91.
1943 - Esad Dagovic, T. 3925; Witness L, T. 4282; Nusret Hadzijusufovic, T. 6876, T. 6881, T. 6886; Safet Dagovic, T. 7201; Kemal Mehinovic, T. 7398-99.
1944 - Witness G, T. 4091-92.
1945 - Esad Dagovic, T. 3923; Witness L, T. 4294; Nusret Hadzijusufovic, T. 6926; Safet Dagovic, T. 7198; Kemal Mehinovic, T. 7402; Witness C, T. 7913.
1946 - Safet Dagovic, T. 7192, T. 7194; Nusret Hadzijusufovic, T. 6884; Kemal Mehinovic, T. 7401-03; Witness C, T. 7910-12."
"2. Findings
[…]
837. The Trial Chamber is satisfied that non-Serb civilians were subjected to humiliating forced labour. Sulejman Tihic was forced to sweep the street outside the municipality building and the SUP building, while people walked by. Dragan Lukac had to clean a room in front of two Bosnian women and felt humiliated. Ahmet Hadzialijagic had to sweep the streets in front of the bank, which he used to manage. The director of a textile company had to sweep the compounds of the Samac textile industry. The Trial Chamber is satisfied that these assignments were such as to arouse feelings of fear and subordination, capable of causing the said persons psychological suffering, and of debasing them and the group to which they belonged, and as such constitute cruel and inhumane treatment. While single incidences of humiliating assignments may not reach the level of gravity required for persecution, the Trial Chamber accepts that these assignments were part of a pattern targeting the Bosnian Muslim and Bosnian Croat political and economic leadership. The Trial Chamber is satisfied that the humiliating assignments reach the level of gravity to amount to persecution."
"1948 - Sulejman Tihic, T. 1414.
1949 - Dragan Lukac, T. 1755-57.
1950 - Hajrija Drljacic, T. 8053-54."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 195, 199:
"195. On this point, the Appeals Chamber rejects the Prosecution’s argument that evidence which establishes the victim’s subjective state of mind and relates to the facts indicating that he was forced to work is clearly relevant and may of itself be sufficient to establish lack of consent. The Appeals Chamber takes the view that such an opinion is not sufficient to establish forced labour and that the detainees’ personal conviction that they were forced to work must be proven with objective and not just subjective evidence."
"199. The Appeals Chamber reiterates that the 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. It holds that, in these circumstances, forced labour must be considered as part of a series of acts comprising unlawful detention and beatings whose cumulative effect is of sufficient gravity to amount to a crime of persecution, given that the unlawful detention and beatings were based on one or more of the discriminatory grounds listed under Article 5 of the Statute. Accordingly, the degree of gravity of persecution based on those acts is the same as that of the crimes expressly laid down under Article 5 of the Statute."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 201, 203:
"(i) Acts enumerated elsewhere in the Statute
201. The following acts alleged in the Indictment are enumerated elsewhere in the Statute and also rise to the same level of gravity as other Article 5 crimes against humanity. As such, these acts may constitute the crime of persecution provided they are performed with the requisite discriminatory intent:
[…]
b. Trench-digging and use of hostages and human shieldsProsecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 201, 203:
"(i) Acts enumerated elsewhere in the Statute
201. The following acts alleged in the Indictment are enumerated elsewhere in the Statute and also rise to the same level of gravity as other Article 5 crimes against humanity. As such, these acts may constitute the crime of persecution provided they are performed with the requisite discriminatory intent:
[…]
b. Trench-digging and use of hostages and human shieldsProsecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 758-760:
"e. Constant humiliation and degradation
758. Acts of "constant humiliation and degradation" are not explicitly listed under Article 5 nor do they appear as specific offences under other articles of the Statute.
759. When examining the allegations of "harassment, humiliation and psychological abuse" and describing the conditions of detention prevailing in a camp, the Trial Chamber in the Kvo~ka et. al. case found that "humiliating treatment that forms part of a discriminatory attack against a civilian population may, in combination with other crimes or, in extreme cases alone, similarly constitute persecution.1439"
760. This Trial Chamber holds that the alleged acts of constant humiliation and/or degradation may amount to persecutions.1440"
1439. http//www.legal-tools.org/doc/34428a/Kvočka et al. Trial Judgement, para. 190.
1440. See supra para.736.
P.6. Evidence of use of hostage
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 201, 203:
"(i) Acts enumerated elsewhere in the Statute
201. The following acts alleged in the Indictment are enumerated elsewhere in the Statute and also rise to the same level of gravity as other Article 5 crimes against humanity. As such, these acts may constitute the crime of persecution provided they are performed with the requisite discriminatory intent:
[…]
b. Trench-digging and use of hostages and human shieldsFerdinand Nahimana et.al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement (AC), 28 November 2007, para. 986
986. The Appeals Chamber considers that hate speech targeting a population on the basis of ethnicity, or any other discriminatory ground, violates the right to respect for the dignity2256 of the members of the targeted group as human beings,2257 and therefore constitutes "actual discrimination". In addition, the Appeals Chamber is of the view that speech inciting to violence against a population on the basis of ethnicity, or any other discriminatory ground, violates the right to security2258 of the members of the targeted group and therefore constitutes "actual discrimination". However, the Appeals Chamber is not satisfied that hate speech alone can amount to a violation of the rights to life, freedom and physical integrity of the human being. Thus other persons need to intervene before such violations can occur; a speech cannot, in itself, directly kill members of a group, imprison or physically injure them.
2256 On the content of this right, see for example the Universal Declaration on Human Rights, the Preamble of which expressly refers to the recognition of dignity inherent to all human beings, while the Articles set out its various aspects.
2257 In this regard, it should be noted that, according to the http//www.legal-tools.org/doc/006011/Kvočka et al. Appeal Judgement (paras. 323-325), violations of human dignity (such as harassment, humiliation and psychological abuses) can, if sufficiently serious, constitute acts of persecution.
2258 On the right to security, see for example Article 3 of the Universal Declaration on Human Rights ("Everyone has the right to life, liberty and security of person").
5.2. Deprivation of fundamental rights: Underlying acts against property
P.8. Evidence of destruction of property
P.8.1. Evidence of destruction of or wilful damage to residential and commercial properties
http//www.legal-tools.org/doc/62a710/Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, paras. 829-831:
"829. The Chamber finds that acts of destruction of private property belonging to Muslims and Croats, including homes and business premises, were committed in 19 municipalities, namely Banja Luka, Bratunac, Bosanska Krupa, Bosanski Novi, Bosanski Petrovac, Brčko, Čajniče, Čelinac, Foča, Ilijaš, Ključ, Kotor Varoš, Novi Grad, Pale, Prijedor, Prnjavor, Sanski Most, Trnovo, and Vlasenica.
830. The destruction of private houses belonging to Muslims and Croats took place during attacks and take-overs of towns and villages by Serb forces in all the mentioned municipalities. Houses were destroyed by shelling, through explosives, or burnt down. For example, when Serb forces shelled the Muslim village Ahatovići in Novi Grad, almost all 130 houses in the village were destroyed. In Bratunac, during the attack on Glogova on 9 May 1992 after 65 villagers had been killed and the remaining ones had been detained, Serb forces burnt most of the houses in the village. In Vlasenica, Serb forces conducted military operations in a number of Muslim villages and hamlets in May and June 1992, during which they were under explicit order to burn all the houses to prevent the owners from returning. Almost all the Muslim houses in the area were in fact destroyed. Destruction of business premises were carried out in Banja Luka, Kotor Varoš, Prnjavor, and Sanski Most. For example, in Sanski Most, members of the paramilitary group SOS destroyed 28 shops and restaurants belonging to Muslims and Croats.
831. The Chamber finds that the acts of destruction of private houses had a severe impact on the victims, for the same reasons described in section (h), above. The Chamber had insufficient information to assess the impact on the victims of destruction of their business premises."
P.8.2. Evidence of destruction of or wilful damage to religious and cultural buildings
Prosecutor v. Vlastimir Dorđević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, para. 567:
"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
1872 See Trial Judgement, para. 1771; Milutinović et al. Trial Judgement, vol. 1, para. 205; Kordić and Čerkez Trial Judgement, paras 202, 206-207; Stakić Trial Judgement, paras 766-768; Krajišnik Trial Judgement, paras 780-783. The 1991 ILC Report lists the destruction of religious buildings as an example of persecutions as a crime against humanity (1991 ILC Report, vol. II, part. 2, p. 104). Similarly, post-WWII judgements have considered the destruction of religious buildings as persecutions as a crime against humanity (IMT Judgement, pp 248, 302; Israel v. Adolph Eichmann, District Court of Jerusalem, Judgement of 12 December 1961, 36 International Law Reports 5, para. 57).
1873 See Kordić and Čerkez Trial Judgement, paras 202, 206-207; Stakić Trial Judgement, paras 766-768; Krajišnik Trial Judgement, paras 780-783.
1874 See Blaškić Appeal Judgement, para. 146, citing and agreeing with Kupreškić et al. Trial Judgement, para. 631.
http//www.legal-tools.org/doc/653651/The Prosecutor v. Vlastimir Dordević, Case No. IT-05-87/1, Judgement (TC), 23 February 2011, para. 1810, 1812, 1819:
1810. The Chamber concludes that both mosques were the subject of a separate and deliberate attack which caused extensive damage. No specific reason for either attack is suggested by the evidence. The Chamber, therefore, is assisted by other events in these villages at the time. Both villages had been subjected to severe military attack by Serbian forces at the relevant time. There had been serious and deliberate destruction of property by Serbian forces. The attacks on each village were directed against the inhabitants. In each village the inhabitants were Kosovo Albanians. The attackers were Serbian forces. There is a religious divide between most Kosovo Albanians who are Muslim, and most Serbs, who are not. In each village the mosque was a centre of religious significance for the inhabitants and a place of social and cultural importance. The mosques were destroyed, inter alia, by the use of significant explosives or shelling, both of which were available to Serbian forces. In the circumstances the Chamber is persuaded and finds that the mosques in Celina/Celin? and Bela Crkva/Bellac?rk? were destroyed by elements of the Serbian forces, and were destroyed because of their religious and cultural significance to the Kosovo Albanian inhabitants of the villages.
1812. Evidence has been tendered in support of the destruction of the 16th century mosque in Brestovac/Brestoc and the mosque in Velika Krusa/Krush?-e-Madhe. In both cases, evidence about destruction was given by the Prosecution’s expert witness, András Riedlmayer. He classified the mosque in Brestovac/Brestoc on the basis of photographs as "almost destroyed". The Chamber accepts, as Riedlmayer testified, that the mosque was completely burnt, that it no longer had a roof and that the minaret had been destroyed above its balcony.6290 Members of the Islamic community had provided information to Riedlmayer, which was included in the witness’s report, that the mosque was destroyed on 25 March 1999.
1819. The Chamber is satisfied that the offence of persecutions by the destruction the mosque in Landovica/Landovic? by Serbian forces has been established. The Chamber is satisfied in particular that Serbian forces were present in the village on 26 and 27 March and at the time had deliberately caused destruction to houses in the village and damage by shelling and burning of houses. In the Chamber’s finding the nature of the damage to the mosque and its mechanism, as suggested by András Riedlmayer, is consistent in material respects with the observations of the witness and provides independent confirmation of his account. The Chamber finds that Serbian forces set fire to the interior of the mosque on 26 March 1999 and caused substantial destruction to the minaret and the structure of the mosque by an explosive device on 27 March 1999. There is no basis in the evidence before the Chamber for any view that the mosque may have been used for any military purpose on these days. Given the nature of the damage to the mosque and the circumstances the Chamber is satisfied that the Serbian forces who were responsible for the damage had the necessary intention.
http//www.legal-tools.org/doc/62a710/Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, paras. 836-837:
"836. The Chamber finds that more than 200 cultural or religious sites, mainly mosques, but also Catholic churches, the majority of which are referred to in schedule D of the indictment, were heavily damaged or destroyed by Serb forces in 26 municipalities, namely Bijeljina, Bosanska Krupa, Bosanski Novi, Bosanski Petrovac, Bratunac, Brčko, Čajniče, Čelinac, Doboj, Foča, Ilijaš, Kalinovik, Ključ, Kotor Varoš, Nevesinje, Novi Grad, Prijedor, Prnjavor, Rogatica, Sanski Most, Sokolac, Teslić, Trnovo, Višegrad,
837. The Chamber finds that Serb forces intentionally and wantonly destroyed the mosques, churches, and other religious monuments referred to above. Mosques were often destroyed using explosives and then further demolished with heavy machinery."
P.9. Evidence of plunder of property
http//www.legal-tools.org/doc/62a710/Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, paras. 820-824:
"820. The Chamber finds that acts of appropriation and plunder of property of Muslims and Croats were committed in 27 municipalities, namely Banja Luka, Bijeljina, Bileća, Bratunac, Bosanska Krupa, Bosanski Novi, Bosanski Petrovac, Čajniče, Čelinac, Donji Vakuf, Foča, Gacko, Hadžići, Ilidža, Kalinovik, Ključ, Kotor Varoš, Novo Sarajevo, Prijedor, Prnjavor, Rogatica, Sanski Most, Teslić, Višegrad, Vlasenica, Vogošća, and Zvornik.
821. In many municipalities, Serb authorities implemented decisions forcing Muslims to surrender all their property to the municipality in order to be allowed to leave. As discussed above in part 5.3.2, the departure was prompted by violence and discriminatory measures against Muslims and Croats. Muslims were given no option but to sign over their property to the Serb municipality, receiving nothing in exchange except for written authorization to leave the area.
822. For example, in Bosanski Petrovac, the war presidency adopted a decision that "all families that have signed contracts on the exchange of flats, houses and other immovable property may leave Petrovac Municipality." Muslim families who had not produced exchange contracts were allowed to leave only if they donated all movable and immovable property to the municipality. Similar procedures were adopted in Bosanski Novi, Foča, Ključ, Prnjavor, Vlasenica and Zvornik. In some municipalities, Muslims who owned property and had already left the area were instructed to report to the municipal authorities on very short notice or risk forfeiting their property to the municipality. In other cases, Serbs simply took over houses and flats from which Muslims and Croats had been forced.
823. The acts of appropriation and plunder also included the looting of Muslim- and Croat-owned private houses and businesses by armed Serb forces. The looting took place during and after attacks on towns and villages, and in the course of deportation or forcible transfer. In addition, detained Muslims and Croats were forced to surrender their belongings, jewellery, money, and documents to Serb soldiers or guards at detention centres while being detained.
824. Regarding the confiscation of private houses, the Chamber has considered both the economic and emotional value of the property, as well as the purpose of the confiscation, that is to force Muslims and Croats to leave the municipality and not return. The Chamber is convinced that this type of appropriation had a severe impact on the victims. The Chamber had insufficient information to assess the impact on the victims the instances of plunder of private houses and business premises, and the other forms of plunder described above."
P.9.1. Evidence of looting of residential and commercial properties
P.10. Evidence of seizure of property
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 108:
"108. The Appeals Chamber finds that the destruction of property, depending on the nature and extent of the destruction, may constitute a crime of persecutions of equal gravity to other crimes listed in Article 5 of the Statute."
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 761-768:
"f. Destruction, wilful damage and looting of residential and commercial properties
761. Article 3(b) of the Statute penalises "wanton destruction of cities, towns or villages, or devastation not justified by military necessity". Following the definition of this crime settled in the Tribunal’s jurisprudence, this Chamber concurs that the elements of the crime are satisfied where:
(i) the destruction occurs on a large scale;
(ii) the destruction is not justified by military necessity; and
(iii) the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction.
762. Article 3(e) of the Statute penalises "plunder of public and private property". Plunder encompasses "all forms of unlawful appropriation of property in armed conflict for which individual responsibility attaches under international law, including those acts traditionally described as ‘pillage’". Such acts of appropriation include "both widespread and systematised acts of dispossession and acquisition of property in violation of the rights of the owners and isolated acts of theft or plunder by individuals for their private gain."
763. The Trial Chamber notes that prior jurisprudence has held that "[i]n 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 […] civilians […]’." 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, business, and civilian personal property and livestock" may constitute the crime of persecution.
764. This Trial Chamber therefore concludes that acts of "destruction, wilful damage and looting of residential and commercial properties", even if not listed in Article 5 of the Statute, may amount to persecution.
g. Destruction of or wilful damage to religious and cultural buildings
765. Article 3(d) of the Statute penalises "the seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science" as violations of the laws or customs of war.
766. The International Military Tribunal[1], and the 1991 ILC Report, [2] inter alia, have singled out the destruction of religious buildings as a clear case of persecution as a crime against humanity.
767. This Trial Chamber shares the view that "₣tğhis act, when perpetrated with the requisite discriminatory intent, amounts to an attack on the very religious identity of a people".
768. The Trial Chamber therefore concludes that acts of "destruction of, or wilful damage to, religious and cultural buildings", even if not listed in Article 5 of the Statute, may amount to persecutions."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 205:
"205.This act is similar to the "wanton destruction of cities, towns or villages " and the "plunder of public or private property" violations of the laws or customs of war enumerated under Articles 3(b) and 3(e) of the Statute. This act has therefore already been criminalised under customary international law and the International Tribunal Statute in particular. Prior jurisprudence of the International Tribunal has made clear that the destruction of property with the requisite discriminatory intent may constitute persecution.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, paras. 104, 105:
"104. […] the Appeals Chamber holds that attacks launched deliberately against civilians or civilian objects may constitute persecutions as a crime against humanity.
105. With respect to the question as to whether a particular result of the attack is required, the Appeals Chamber recalls that acts may constitute a crime of persecutions if they are of gravity equal to the other crimes listed in Article 5 of the Statute, whether considered in isolation or in conjunction with other acts. Therefore, the Appeals Chamber finds that unlawful attack launched deliberately against civilians or civilian objects may constitute a crime of persecutions without the requirement of a particular result caused by the attack(s)."
P.13. Evidence of attacks on cities, towns, and villages
A. Legal source/authority and evidence:
Prosecutor v. Zdravko Tolimir, Judgement (TC), 12 December 2012, para 877:
877. With respect to the destruction of homes of the Bosnian Muslims of Zepa, the Majority found elsewhere in this Judgement that already in early July 1995, when the VRS started its attack on Zepa enclave, over 30 Bosnian Muslim homes in surrounding villages were destroyed. It also found that following the departure of the Bosnian Muslim population from Zepa at the end of July, VRS soldiers looted and burned houses in the enclave and in the surrounding villages.
878. The Majority is satisfied that the Bosnian Serb Forces burned or otherwise destroyed the homes of the Bosnian Muslims from Srebrenica and Zepa enclaves with the requisite discriminatory intent. Finally, the Majority also concludes that the destruction of homes, due to the severity of the impact, amounts to an act of persecution under Article 5.
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 203:
"203. This act is akin to an "attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings," a violation of the laws or customs of war enumerated under Article 3(c) of the Statute. This act has therefore already been criminalised under customary international law and the International Tribunal Statute in particular. Moreover, the act of attacking cities, towns and villages on discriminatory grounds provides the factual matrix for most of the other alleged acts of persecution (such as killing, imprisonment, forcible transfer, inhumane acts, wanton and extensive destruction of property, etc.). The combination of this actus reus with the requisite discriminatory mens rea would therefore constitute the crime of persecution."
5.4. Severity of underlying crimes
http//www.legal-tools.org/doc/4ad5eb/Ferdinand Nahimana et.al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement (AC), 28 November 2007, paras. 987-988:
"987. The second question is whether the violation of fundamental rights (right to respect for human dignity, right to security) is as serious as in the case of the other crimes against humanity enumerated in Article 3 of the Statute. The Appeals Chamber is of the view that it is not necessary to decide here whether, in themselves, mere hate speeches not inciting violence against the members of a group are of a level of gravity equivalent to that for other crimes against humanity. As explained above, it is not necessary that every individual act underlying the crime of persecution should be of a gravity corresponding to other crimes against humanity: underlying acts of persecution can be considered together. It is the cumulative effect of all the underlying acts of the crime of persecution which must reach a level of gravity equivalent to that for other crimes against humanity. Furthermore, the context in which these underlying acts take place is particularly important for the purpose of assessing their gravity.
988. In the present case, the hate speeches made after 6 April 19942259 were accompanied by calls for genocide against the Tutsi group2260 and all these speeches took place in the context of a massive campaign of persecution directed at the Tutsi population of Rwanda, this campaign being also characterized by acts of violence (killings, torture and ill-treatment, rapes …) and of destruction of property.2261 In particular, the speeches broadcast by RTLM – all of them by subordinates of Appellant Nahimana2262 –, considered as a whole and in their context, were, in the view of the Appeals Chamber, of a gravity equivalent to other crimes against humanity.2263 The Appeals Chamber accordingly finds that the hate speeches and calls for violence against the Tutsi made after 6 April 1994 (thus after the beginning of a systematic and widespread attack against the Tutsi) themselves constituted underlying acts of persecution.2264 In addition, as explained below,2265 some speeches made after 6 April 1994 did in practice substantially contribute to the commission of other acts of persecution against the Tutsi; these speeches thus also instigated the commission of acts of persecution against the Tutsi."
2258 On the right to security, see for example Article 3 of the Universal Declaration on Human Rights ("Everyone has the right to life, liberty and security of person").
2259 As explained infra XV. C. 2 (a) (ii) a. and XV. C. 2. (c), speeches made before 6 April 1994 cannot constitute acts of persecution since it cannot be concluded that they took place in the context of a systematic or widespread attack.
2260 See supra XII. B. 3. (b) (i) b. and XIII. C. 1 (c), where the Appeals Chamber has concluded that post-6 April 1994 RTLM broadcasts directly called for the murder of Tutsi.
2261 It should be recalled that it cannot reasonably be disputed that the Tutsi population was the victim of generalized and systematic attacks between 6 April and 17 July 1994, resulting in the murder of a great number of Tutsi: The Prosecutor v. ?douard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision of Judicial Notice, 16 June 2006, paras. 28-31 (see also paras. 35-38, taking judicial note of the genocide committed against the Tutsi in Rwanda between 6 April and 17 July 1994); http//www.legal-tools.org/doc/a686fd/Semanza Appeal Judgement, para. 192.
2262 See supra XIII. D. 1. (b) (ii) a. iii.
2263 Such speeches constituted a grave violation of the right to human dignity of the Tutsi, as well as very seriously threatening their physical and mental security.
2264 The Appeals Chamber notes that an ICTY Trial Chamber has found that speeches inciting hatred on political or other grounds, as alleged in the present case, could not constitute acts of persecution (http//www.legal-tools.org/doc/d4fedd/Kordić and Čerkez Trial Judgement, para. 209). This legal finding was not appealed and the http//www.legal-tools.org/doc/738211/Kordić and Čerkez Appeal Judgement accordingly did not address the issue. The reasoning underlying that finding is, however, inconsistent with the established case-law of the Appeals Chamber, which does not require that the underlying acts of persecution be "enumerated as a crime elsewhere in the International Tribunal Statute" (http//www.legal-tools.org/doc/d4fedd/Kordić and Čerkez Trial Judgement, para. 209) or regarded as crimes under customary international law. Moreover, it is not necessary that each underlying act of persecution be of a gravity equal to the other crimes against humanity; the underlying acts can be considered together. Finally, the finding that hate speech can constitute an act of persecution does not violate the principle of legality, as the crime of persecution is itself sufficiently well defined in international law. Moreover, the Appeals Chamber is not convinced by the argument that mere hate speech cannot constitute an underlying act of persecution because discourse of this kind is protected under international law."
Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, para. 900:
"900. 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.2672 In this regard, the Appeals Chamber notes that the Trial 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.2673 The Appeals Chamber found that the Kosovo Albanian girl in a convoy and the two young women in Beleg were sexually assaulted,2674 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”.2675 The Appeals Chamber also recalls that sexual assault by definition constitutes an infringement of a person’s physical or moral integrity.2676 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.2677 Therefore, the Appeals Chamber is satisfied that these sexual assaults reach the same level of gravity as other crimes listed in Article 5."
2672. Simic Appeal Judgement, para. 177; Blaškić Appeal Judgement, para. 135; Krnojelac Appeal Judgement, paras 199, 221.
2673. Trial Judgement, paras 1791, 1793.
2674. See supra, paras 859, 869.
2675. Brdanin Trial Judgement, para. 1012. See Br|anin Appeal Judgement, para. 296; Simić Appeal Judgement, para. 177; Naletilić and Martinović Appeal Judgement, para. 574; Blaškić Appeal Judgement, para. 135; Kordić and Cerkez Appeal Judgement, paras 102-103.
2676. See supra, paras 850-852.
2677. See Trial Judgement, paras 824, 832, 1145-1156, 1649-1650, 1673.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, Separate Opinion of Judge Shahabuddeen, paras. 5-7:
"5. The general view is that an act could only ground a charge of a crime against humanity committed through persecution if the act was itself a crime enumerated in article 5(a) to (g) of the Statute ("enumerated crimes") or if, not being such a crime, it attained a gravity comparable to that of an enumerated crime. This basis, for which authority could be found, needs care in its application. Article 5 of the Statute deals with crimes against humanity committed through certain supporting crimes. Under paragraph (h) of the provision, the relevant supporting crime is "persecution", the underlying act or acts being only evidence of the persecution. It is the "persecution" which must have the same gravity as that of enumerated crimes. The underlying act does not have to be a crime listed in article 5 of the Statute. It does not have to be a crime specified elsewhere in the Statute. Indeed, by itself it does not have to be a crime specified anywhere in international criminal law: it may be a non-crime. As was recalled in the Ministries Case:
6. The persecution of Jews went on steadily from step to step and finally to death in foul form. The Jews of Germany were first deprived of the rights of citizenship. They were then deprived of the right to teach, to practice professions, to obtain education, to engage in business enterprises, they were forbidden to marry except among themselves and those of their own religion; they were subject to arrest and confinement in concentration camps, to beatings, mutilation, and torture; their property was confiscated; they were herded into ghettos; they were forced to emigrate and to buy leave to do so; they were deported to the East, where they were worked to exhaustion and death; they became slave laborers; and finally over six million were murdered.
Citing that case, the Kvočka Trial Chamber later said: "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."
7. It follows that an underlying act may not by itself constitute a crime; therefore, there can be no question of its having the same gravity as an enumerated crime. But the act, taken separately or cumulatively with other acts, can give rise to the crime of persecution. The question which then arises is what is the level of persecution that the Statute is concerned with. It is possible that there can be persecution at different levels. It is here, I think, that it would be reasonable to say that the Statute is concerned only with cases in which the level of the gravity of the proven persecution matches the level of the gravity of an enumerated crime."
http//www.legal-tools.org/doc/f2cfeb/Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 637:
"637. In 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. [F]or 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."
