Documente Academic
Documente Profesional
Documente Cultură
h)
i)
j)
k)
Murder
Extermination
Enslavement
Deportation or forcible transfer of population,
Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of International law.
Torture
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable
gravity;
Persecution against any identifiable group or collectivity on political,
racial, national, ethinic, cultural , religious, gender as defined in
paragraph 3, or other grounds that are universally recognized as
impermissible under international law, in connection with any at
referred to in this paragraph or any crime within the jurisdiction of the
court;
Enforced disappearance of persons;
The crime of aparthied
Other inhuman acts of a similar character intentionally causing great
suffering, or serious injury or body or to mental or physical health.
1 In the original French version of the Statute, these requirements were worded
cumulatively: Dans le cedre dune adieux generalise et systematic thereby
significantly increasing the threashold for application of this provision. Since
customary international law requires only that the attack be widespread or
systematic, there are sufficient reasons to assume that the French versionb suffers
from an error in translation.
attack. This means that the act, by its nature or consequence, must
objectively be a part of the attack.
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 33:
The nexus which is required is between the accuseds acts and the attack
on the civilian population.
Widespread:
The Prosecutor vs. Akayesu, Case No. ICTR -96-4-T-Judgement,
September 2, 1998 paragraph. 580. The Chamber stated that The
concept of widespreadmay be defined as massive, frequent, large scale
action, carried out collectively with considerable seriousness and directed
against a multipleicity of victims.7
Prosecutor vs Kordic et al, al, Case No IT-95-14/ 2-T, Judgment,
February 2001, paragraph 179. A widespread criminal offence may
involve the cumulative effect of aseries of inhuman acts or the singular
effect of an inhumane act of extraordinary maginitude.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para 123:
A widespread attack is one that is directed a gainst a multiplicity of
victims
Systematic
a) Whether plan or policy required.
The concept of systematic may be defined as thoroughly organised and
following a regular pattern on the basis of a common policy involving
substantial public or private resources. There is no requirement that this
policy must be adopted formally as the policy of a state. There must however
be some kind pre-conceived plan or policy8.
Prosecutor vs Kordic et al, al, Case No IT-95-14/2-A, Judgment,
December 17,2004, Paragragh 94. The systematic character of a
crime against humanity refers to similar criminal conduct and the
improbabability of its random occurance.9
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para.
123: A systematic attack means an attack carried out pursuant to a
preconceived policy or plan.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 124,
581:
For an act of mass victimisation to be a crime against humanity, it must
include a policy element.The requirements of widespread or systematic are
enough to exclude acts not committed as part of a broader policy or plan.
Additionally, the requirement that the attack must be committed against a
civilian population . . . demands some kind of plan and, the discriminatory
element of the attack is . . . only possible as a consequence of a policy.
But see Semanza, (Trial Chamber), May 15, 2003, para. 329:
Systematic describes the organized nature of the attack. The . . . ICTY
recently clarified that the existence of a policy or plan may be evidentially
relevant, in that it may be useful in establishing that the attack was directed
against a civilian population and that it was widespread or systematic, but
that the existence of such a plan is not a separate legal element of the
crime.
Application
Akayesu, (Trial Chamber), September 2, 1998, para. 173: The
widespread requirement was met, in part, because of the scale of the
events that took place. Around the country, a massive number of killings
took place within a very short time frame. Tutsi were clearly the target of the
attack. The systematic nature of the attack was evidenced by the
unusually large shipments of machetes into the country shortly before it
occurred; the structured manner in which the attack took place; the fact
that [t]eachers and intellectuals were targeted first; and the fact that
through the media and other propaganda, Hutu were encouraged
systematically to attack Tutsi.
Directed against
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 235:
An attack is directed against a civilian population if the civilian
population is the primary object of the attack.
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002,
para. 90:
The expression directed against is an expression which specifies that in
the context of a crime against humanity the civilian population is the primary
object of the attack.
In order to determine whether the attack may be said to have been so
directed, the Trial Chamber will consider . . . the means and method used in
the course of the attack, the status of the victims, their number, the
discriminatory nature of the attack, the nature of the crimes committed in its
course, the resistance to the assailants at the time and the extent to which
the attacking force may be said to have complied or attempted to comply
with the precautionary requirements of the laws of war.
Civilian defined
Population
Semanza, (Trial Chamber), May 15, 2003, para. 330:
The term population does not require that crimes against humanity be
directed against the entire population of a geographic territory or area. The
victim(s) of the enumerated act need not necessarily share geographic or
other defining features with the civilian population that forms the primary
target of the underlying attack, but such characteristics may be used to
demonstrate that the enumerated act forms part of the attack.
D. THE ATTACK MUST BE ON NATIONAL, POLITICAL, ETHNIC,
RACIAL OR RELIGIOUS GROUNDS (DISCRIMINATORY GROUNDS)
(ELEMENT 4).
Akayesu, (Trial Chamber), September 2, 1998, para. 578: The act
must be committed on one or more discriminatory grounds, namely,
national, political, ethnic, racial or religious grounds.
Semanza, (Trial Chamber), May 15, 2003, para. 331: Article 3 of the
ICTR Statute requires that the attack against the civilian population be
committed on national, political, ethnical, racial or religious grounds. Acts
committed against persons outside the discriminatory categories may
nevertheless form part of the attack where the act against the outsider
supports or furthers or is intended to support or further the attack on the
group discriminated against on one of the enumerated grounds.
It was further held, in Akayesu, (Trial Chamber), September 2, 1998,
para 580 that;
inhumane acts commited against persons not falling within any one of the
discriminatory categories could constitute crimes against humanity if the
perpetrators intention was to further his attacks on the group discriminated
against