Article 7 (1) (d)

CRIME AGAINST HUMANITY OF DEPORTATION OR FORCIBLE

TRANSFER OF POPULATION
Elements:
1. The perpetrator deported or forcibly transferred, without grounds permitted under international
law, one or more persons to another State or location, by expulsion or other coercive acts.
2. Such person or persons were lawfully present in the area from which they were so deported or
transferred.
3. The perpetrator was aware of the factual circumstances that established the lawfulness of such
presence.
4. The conduct was committed as part of a widespread or systematic attack directed against a
civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a
widespread or systematic attack directed against a civilian population.
“Crime of Forced Population Transfer”
 Compulsory movement of people from one area to another within the same State 1. Deportation
has been recognized as a crime against humanity in each of the major international criminal
instruments prior to the ICC, including the Nuremberg Charter, the Tokyo Charter, the Allied
Control Council Law No. 10, and the statutes of the international criminal tribunals for the former
Yugoslavia and Rwanda.2
 The "attack" does not necessarily need to be a military attack as defined under international
humanitarian law, and "need not even involve military forces or armed hostilities, or any violent
force at all."3
“Deportation”
 Deportation requires the displacement of persons across a national border, to be distinguished
from forcible transfer which may take place within national boundaries.
 Article 49 of the Fourth Geneva Convention refers to ‘deportations of protected persons from
occupied territory to the territory of the Occupying Power or to that of any other country …’
 Both ‘deportation’ and ‘forcible transfer’ relate to the involuntary and unlawful evacuation of
individuals from the territory in which they reside. Yet, the two are not synonymous in
customary international law. Deportation presumes transfer beyond State borders, whereas
forcible transfer relates to displacements within a State. 4
 Forcible displacement of enemy soldiers is not prohibited under international humanitarian law. 5

“Forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that
caused by fear of violence, duress, detention, psychological oppression or abuse of power against such
person or persons or another person, or by taking advantage of a coercive environment.

1
M. Cherif Bassiouni, Crimes Against Humanity in International Law (The Hague: Kluwer Law International, 1999), p. 312
2
See Roy Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational
Publishers, 2001), p. 86; M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia
(New York: Transnational Publishers, 1996), p. 627-28 (arguing that the crime of "deportation" under the Nuremberg Charter included "all
unjustified forceful transfers [including] internal displacement")
3
Rodney Dixon in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos
Verlagsgesellschaft, 1999), p. 124.
4
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 521 citing the commentary on the ILC Draft
Code, p. 122 ‘Whereas deportation implies expulsion from the national territory, the forcible transfer of population could occur wholly
within the frontiers of one and the same State’
5
Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, paras. 772-775, 779-783, citing Cf. Henckaerts
and Doswald-Beck, Customary International Humanitarian Law, Vol. I, Rule 129, pp. 457- 462.

Pg. 1 of 15
“Deported or forcibly transferred” is interchangeable with “forcibly displaced”.

PROSECUTOR vs. JOVICA STANIŠIĆ AND FRANKO SIMATOVIĆ

Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 992-993:

[Forcible Displacement; Exchanging of victims across national border]

Deportation and forcible transfer both entail the forcible displacement of persons from the area in
which they are lawfully present, without grounds permitted under international law. The crime of
deportation requires that the victims be displaced across a de jure state border, or, in certain circumstances,
a de facto border. Forcible transfer involves displacement of persons within national boundaries.
Forcible displacement means that people are moved against their will or without a genuine choice.
Fear of violence, duress, detention, psychological oppression, and other such circumstances may create an
environment where there is no choice but to leave, thus amounting to the forcible displacement of people.
Displacement of persons carried out pursuant to an agreement among political or military leaders, or under
the auspices of the ICRC or another neutral organization, does not necessarily make it voluntary."

CASE SUMMARY

The trial before the ICTY against Jovica Stanišić and Franko Simatović lasted from 9
June 2009 until 31 January 2013.
The indictment alleges that Jovica Stanišić and Franko Simatović were co-perpetrators
in a joint criminal enterprise (“JCE”) that came into existence no later than April 1991 and
continued until at least 31 December 1995. The alleged objective of the JCE was the forcible
and permanent removal of the majority of non-Serbs from large areas in Croatia and Bosnia
and Herzegovina.
The charges include: Four counts of crimes against humanity, Persecutions (Count 1),
Murder (Count 2), Deportation (Count 4), Inhumane acts (forcible transfer) (Count 5), One
count of violations of the laws or customs of war, Murder (Count 3)
On 30 May 2013, Trial Chamber I of the ICTY found, by majority, Stanišić and
Simatović not responsible for committing the crimes alleged in the indictment through
participation in a JCE, as the Trial Chamber found that it was not established beyond
reasonable doubt that they possessed the requisite intent to further the common criminal
purpose. The Trial Chamber held that it had not been proven beyond reasonable doubt that
they had planned or ordered these crimes or, by majority, that they had aided and abetted
these crimes. Consequently, the Trial Chamber, by majority, acquitted Stanišić and Simatović
on all counts of the indictment.
Following the Prosecution’s appeal, the ICTY Appeals Chamber on 15 December 2015
granted, in part, the appeal and quashed the acquittals. The Appeals Chamber, by majority,
found that the Trial Chamber erroneously failed to make findings on the existence and scope
of a common criminal purpose shared by a plurality of persons prior to finding that the intent
of Stanišić and Simatović was not established. In so doing, the Appeals Chamber, by majority,
found that the Trial Chamber erred in law by failing to adjudicate and provide a reasoned
opinion on essential elements of JCE liability.
The ICTY Appeals Chamber ordered that Stanišić and Simatović be retried on all
counts of the indictment pursuant to Rule 117(C) of the ICTY Rules of Procedure and
Evidence.6

"Attack”
 An attack may also be nonviolent in nature, like imposing a system of apartheid, which is
declared a crime against humanity [by the] Apartheid Convention of 1973, or exerting
pressure on the population to act in a particular manner, may come under the purview of an
attack, if orchestrated on a massive scale or in a systematic manner. 7

6
http://www.irmct.org/en/cases/mict-15-96
7
Prosecutor vs. Akayesu, Judgment, Case No. ICTR-96-4-T, September 2, 1998, para. 581.

Pg. 2 of 15
 PROSECUTOR vs. RADOVAN KARADŽIĆ
Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 –
Volume I of IV (TC), 24 March 2016, paras. 488-491

[Elements for Deportation and Forcible Transfer]

are defined in this case as:
(i) the forced displacement of one or more persons by expulsion or other forms of coercion,
(ii) from an area in which they are lawfully present,
(iii) without grounds permitted under international law
There is an important distinction between the two crimes; for deportation, the displacement of persons
must be across a de jure border between two states or, in certain circumstances, a de facto border , and for forcible
transfer, the removal may take place within national boundaries.
To establish deportation and forcible transfer, there must be a forced displacement of persons carried out
by expulsion or other forms of coercion. The term “forced” may include physical force, as well as the threat of
force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression, or abuse of
power, or the act of taking advantage of a coercive environment. The forced character of the displacement is
determined by the absence of genuine choice by the victim in his or her displacement . As such, while persons may
consent to, or even request, their removal, any consent or request to be displaced must be given voluntarily and
as a result of the individual’s free will, assessed in light of the surrounding circumstances of the particular case."
Furthermore, the involvement of a non-governmental organisation in facilitating displacements does not in
and of itself render lawful an otherwise unlawful transfer. An agreement among military commanders, political
leaders, or other representatives of the parties in a conflict cannot make a displacement lawful either; it is the
consent of the individual that determines whether a displacement is voluntary."
As stated above, an element of deportation and forcible transfer is that the victim must be "lawfully present"
in the area from which the forced displacement takes place. In analysing this element of deportation and forcible
transfer, the terms "lawfully present" should be given their common meaning and should not be equated to the
legal concept of lawful residence."
CASE SUMMARY
The Accused was a founding member of the SDS and served as its President from July
1990 to July 1996. He was the President of the National Security Council of the Serbian
Republic of Bosnia and Herzegovina, and on 12 May 1992, the Accused was elected as the
President of the Presidency of the Serbian Republic of Bosnia and Herzegovina. From 17
December 1992, he was the sole President of Republika Srpska, and the Supreme Commander
of the armed forces of Republika Srpska.
The Accused stood trial for 11 Counts; two Counts of genocide, five Counts of crimes
against humanity, (namely persecution, murder, extermination, deportation, and forcible
transfer), and four Counts of violations of the laws or customs of war (namely murder, acts of
violence the primary purpose of which was to spread terror among the civilian population,
unlawful attacks on civilians, and the taking of hostages.
In the Indictment, the Prosecution alleged that the Accused participated in four joint
criminal enterprises (―JCEs‖). The Prosecution alleged the following:
From at least October 1991 to 30 November 1995, the Accused participated in a JCE,
the objective of which was to permanently remove Bosnian Muslims and Bosnian Croats from
Bosnian Serb-claimed territory in BiH through the crimes charged therein (―Overarching
JCE‖);
Between April 1992 and November 1995, the Accused participated in a JCE to
establish and carry out a campaign of sniping and shelling against the civilian population of
Sarajevo, the primary purpose of which was to spread terror among the civilian population
(―Sarajevo JCE‖);
Between approximately 26 May and 19 June 1995, the Accused participated in a JCE to
take hostage over 200 UN peacekeepers and military observers in order to compel NATO to
abstain from conducting air strikes against Bosnian Serb military targets (―Hostages JCE‖);
Between the days preceding 11 July 1995 and continuing until 1 November 1995, the Accused
participated in a JCE to eliminate the Bosnian Muslims in Srebrenica by killing the men and
boys of Srebrenica and forcibly removing the women, young children and some elderly men
(―Srebrenica JCE‖).

Pg. 3 of 15
 In addition, the Prosecution charged the Accused for having planned, instigated,
ordered, and/or aided and abetted the crimes in the Indictment. It also charged the Accused
as a superior pursuant to Article 7(3) of the Statute. While the Prosecution made its opening
statement on 27 October and 2 November 2009, the first witness for the Prosecution was
heard on 13 April 2010. Closing arguments were heard between 30 September and 7 October
2014. The Chamber sat 499 trial days, during which it heard the evidence of 434 witnesses. It
further received the evidence of 152 additional witnesses in writing. In total, 11,469 exhibits
were tendered into evidence. The complete trial record amounts to over 48,000 transcript
pages, over 95,000 pages of filings and over 190,000 pages of admitted exhibits, totalling to
over 330,000 pages of trial record. The Chamber’s findings and the reasons for these findings
will be summarised here.
However, it should be noted that this is only a summary and does not in any way form
part of the Judgement of the Chamber. The only authoritative account of the findings of the
Chamber is in the written Judgement. Confidential copies will be made available to the Parties
at the end of these proceedings, and a public redacted version will also be made available to
the public.
Before addressing the four components set out above, the Chamber finds on the basis
of the evidence that there was an armed conflict in BiH throughout the period relevant to the
Indictment and that the other general requirements for crimes under Article 3 of the Statute
are met. In relation to crimes against humanity, it finds that there existed a widespread and
systematic attack against the civilian populations at all times relevant to the Indictment, that
the relevant crimes formed part of that attack, and that the perpetrators knew of the attack
and that the crimes were part of it.
HELD: Chamber finds the Accused GUILTY of [COUNT 7] deportation, a crime against
humanity.
The Chamber has found that, at least by the time Directive 7 was issued in March 1995,
the Accused and Mladić had devised a long-term plan aimed at the eventual forcible removal
of the Bosnian Muslims in Srebrenica, and considers that the Accused’s establishment of
Bosnian Serb structures in Srebrenica to be demonstrative of the intent to permanently and
forcibly remove the Bosnian Muslim population. In reaching this conclusion, the Chamber
notes that throughout the operations in Srebrenica, the Accused was receiving information
through various channels, including contacts with high-ranking VRS officers such as Gvero
and Tolimir, as well as Ţivanović on the night of 11 July and Mladić during the afternoon of 13
July. The Accused also met twice with Tomislav Kovač of the RS MUP, who spent the evening
of 13 July and the day of 14 July in the Bratunac and Srebrenica areas. The Accused also
received regular written reports from multiple branches of the Bosnian Serb Forces,
including daily VRS combat reports which revealed that the Bosnian Serb Forces observed
relatively few able-bodied Bosnian Muslim males in Potočari and described the actions taken
by the Bosnian Serb Forces in pursuit of the column.
As mentioned before, at approximately 8 p.m. on 13 July, the Accused spoke to
Deronjić, who as civilian commissioner of Srebrenica answered directly to the Accused, about
the fate of the thousands of Bosnian Muslim male detainees then being held in Bratunac town.
Despite the fact that they did not explicitly mention the killing of detainees during the
conversation, the Accused and Deronjić spoke in code, referring to the detainees as ―goods‖
which had to be placed ―inside the warehouses before twelve tomorrow‖. Moreover, the
Chamber recalls that immediately after this conversation, Beara and Deronjić discussed
where—not whether—the detainees were to be killed. It is therefore clear that by that time, a
decision had already been made to kill the detainees, and Deronjić invoked the Accused’s
authority to convince Beara to accede to their movement to Zvornik. The Chamber finds that
this conversation, in addition to the Accused’s subsequent acts, demonstrates beyond
reasonable doubt the Accused’s agreement to the expansion of the objective to encompass the
killing of the Bosnian Muslim males. As the President of the RS and Supreme Commander of
the VRS, the Accused was the sole person within the RS with the power to intervene to
prevent the Bosnian Muslim males from being killed. Yet far from intervening to prevent the
killings from taking place at all, the Accused himself ordered that the Bosnian Muslim male
detainees who were then being held in Bratunac be transferred elsewhere to be killed; they
were then taken to Zvornik and killed. 8

PROSECUTOR vs. JADRANKO PRLIĆ

Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 48-49, 55-56:
[Removal]

8
http://www.icty.org/x/cases/karadzic/tjug/en/160324_judgement_summary.pdf

Pg. 4 of 15
 The Chamber considers that the removal must result from an act or omission by the accused or by
a person for whom he has criminal responsibility. The Prosecution must establish the nexus between this
act or omission and the removal of the victims.
Given that the prohibition on forcible removals seeks to protect the right of individuals to live in
their communities and in their homes and not be deprived of their property, the Chamber holds that there is
a “removal from an area” within the meaning of Article 5 of the Statute when the location to which the
victims are sent is so remote that they are no longer able to effectively enjoy these rights.
Deportation as a crime against humanity proscribed under Article 5(d) of the Statute assumes that
a border has been crossed. Deportation occurs when a person is moved across a national border separating
two States. In addition to this, the jurisprudence of the Tribunal also characterises as deportation the
crossing of any “de facto” border. By “de facto border”, the Appeals Chamber had in mind forcible removal
beyond occupied territory. Knowing whether this involves a “de facto border” within the meaning of
customary international law, that is, a border whose crossing constitutes the crime of deportation, must be
evaluated on a case-by-case basis.
By contrast, the Appeals Chamber has found that “constantly changing front lines” are not included
in the definition of a de facto border and that forcible transfer requiring persons to cross such constantly
changing front lines cannot lead to a conviction for deportation."
CASE SUMMARY
The case is based, in particular, on the accusations contained in the Indictment. The Prosecution
charges the six Accused with having participated in a joint criminal enterprise between 18 November 1991
and April 1994 that was designed to subject the Muslims and other non-Croats living the regions of the
territory of the Republic of Bosnia and Herzegovina, claimed as territories of the Croatian Community (and
later Republic) of Herceg-Bosna, in order to remove them permanently and to create a Croatian territory
with the borders of the Croatian Banovina. The six Accused are charged with having committed crimes
corresponding to 26 counts in the Indictment in eight municipalities and a whole network of detention
centres over a period that lasted for almost two and a half years.
It is alleged more specifically, as part of the joint criminal enterprise, that the Accused committed
the crimes of: persecutions (Count 1); murder (Count 2); rape (Count 4); deportation (Count 6); forcible
transfer (Count 8); imprisonment (Count 10); and inhumane acts (Counts 12 and 15) as crimes against
humanity. They are also charged with having committed grave breaches of the Geneva Conventions of 1949
in the form of wilful killing (Count 3); sexual assault (Count 5); the unlawful deportation, transfer and
detention of civilians (Counts 7, 9 and 11); inhuman treatment (Counts 13 and 16); and extensive
destruction and appropriation of property not justified by military necessity and carried out unlawfully and
wantonly (Counts 19 and 22). Finally, they are also accused of cruel treatment (Counts 14 and 17); unlawful
labour (Count 18); wanton destruction of cities, towns or villages (Count 20); destruction or wilful damage
to institutions dedicated to religion or education (Count 21); and plunder of public or private property
(Count 23), as violations of the laws or customs of war. With regard to the Municipality of Mostar, the
Prosecution charges the six Accused with carrying out unlawful attacks on civilians (Count 24); with
unlawfully inflicting terror on civilians (Count 25); and with inflicting cruel treatment by besieging East
Mostar (Count 26), all of which are violations of the laws or customs of war.
HVO launched a major attack on the ABiH in Mostar, during which it took the Vranica building
complex where the headquarters of the ABiH were located. During this operation that lasted several days,
HVO soldiers blew up the Baba Besir Mosque. HVO soldiers conducted mass arrests of Muslims in West
Mostar and separated the men from the women, children and elderly persons. The men belonging to the
ABiH were detained in the MUP building and at the Tobacco Institute where they were savagely beaten.
Other men -some belonging to the ABiH and others not - were detained and beaten at the Faculty of
Mechanical Engineering. Ten ABiH soldiers died as a result of the violence exerted upon them. The women,
children and elderly persons of West Mostar were sent to the Heliodrom where they were held for several
days before being able to return home.
Also in Mostar, HVO soldiers expelled the Muslims from West Mostar between May 1993 and
February 1994, in particular by means of major operations to evict them in mid-May, midJune, early July
and September 1993. The men were detained at the Heliodrom and their families were expelled to East
Mostar. No distinction was made between civilians and soldiers in the detention of the Muslim men. In July
1993, the HVO briefly detained some of these men at the Faculty of Mechanical Engineering, where they
were savagely beaten. Two of them died after being beaten all night long. 9

PROSECUTOR vs. JOVICA STANIŠIĆ AND FRANKO SIMATOVIĆ,

Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 999, 1012:
9
http://www.icty.org/x/cases/prlic/tjug/en/130529_summary_en.pdf

Pg. 5 of 15
 The persons who were forcibly displaced mainly fled to non-Serb controlled parts of Croatia and,
to a lesser extent, to other countries. Based on this, the Trial Chamber finds that they crossed a de facto or
de jure border.
The persons who were forcibly displaced mainly fled to the non-Serb controlled parts of Croatia
and, to a lesser extent, to other countries. Based on this, the Trial Chamber finds that they crossed a de facto
or de jure border."

Pg. 6 of 15
 Article 7 (1) (e)
CRIME AGAINST HUMANITY OF IMPRISONMENT OR OTHER SEVERE
DEPRIVATION OF PHYSICAL LIBERTY
Elements:
1. The perpetrator imprisoned one or more persons or otherwise severely deprived one or more
persons of physical liberty.
2. The gravity of the conduct was such that it was in violation of fundamental rules of international
law.
3. The perpetrator was aware of the factual circumstances that established the gravity of the
conduct.
4. The conduct was committed as part of a widespread or systematic attack directed against a
civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a
widespread or systematic attack directed against a civilian population.

PROSECUTOR vs. KRESO LUČIĆ

Judgment, 19 September 2007, pp. 51-52

In 2007, in the Lučić case, the Panel of the Court of Bosnia and Herzegovina stated:
The elements of “imprisonment” as a crime against humanity are as follows: “an individual is
deprived of his or her liberty; the deprivation of liberty is imposed arbitrarily, that is, no legal basis can be
invoked to justify the deprivation of liberty; the act or omission by which the individual is deprived of his or
her physical liberty is performed by the accused or a person or persons for whom the accused bears
criminal responsibility with the intent to deprive the individual arbitrarily of his or her physical liberty”
[ICTY, Krnojelac case, Judgement, 15 March 2002, para. 115].
The Court notes that imprisonment of civilians is unlawful where: “civilians have been detained in
contravention of Article 42 of the [1949] Geneva Convention IV, i.e. that they are detained without
reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; the
procedural safeguards required by Article 43 of the IV Geneva Convention are not complied with in respect
of detained civilians, even where initial detention may have been justified; and the imprisonment occurs as
part of a widespread or systematic attack against a civilian population” [ICTY, Kordić and Čerkez case,
Appeals Chamber Judgement, 17 December 2004, para. 114].
The Court also considers that “… deprivation of an individual’s liberty is arbitrary if imposed
without due process of law. The Trial Chamber outlined the following elements to establish a crime of
imprisonment (or unlawful confinement) as a crime against humanity … : an individual is deprived of his or
her liberty; the deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify
the deprivation of liberty; the act or omission by which the individual is deprived of his or her physical
liberty is performed by the accused or a person or persons for whom the accused bears criminal
responsibility with the intent to deprive the individual arbitrarily of his or her physical liberty or in the
reasonable knowledge that his act or omission is likely to cause arbitrary deprivation of physical liberty”.
[ICTY, Simić case, Judgement, 17 October 2003, para. 64].
The Court considers that the deprivation of liberty of the individual without the due process of law
is a distinctive element of the definition of imprisonment. Indeed, the ICTY Appeal Chamber noted that it
“agrees with the Trial Chamber’s finding that the term imprisonment in Article 5(e) of the statute should be
understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without the
due process of law, as part of a widespread and systematic attack directed against the civilian population”
[ICTY, Kordić and Čerkez case, Appeals Chamber Judgement, 17 December 2004, para. 116].

The Court also held:

It is true that the Geneva Conventions and their additional protocols, in case of an armed conflict,
both international and non-international, provide for internment and assigned residence as possible
measures to be taken. But this exceptional measure is subject to many guarantees that must be met …
Indeed, the Court emphasizes that these measures must be “absolutely necessary for the State security”.
This is implied under the general principle that personal liberty is a rule and that criminal justice system is

Pg. 7 of 15
 able to deal with persons suspected of representing a danger to State security. Another guarantee provided
by Article 78 of the [1949] Fourth Geneva Convention and Article 4(2)(b) of the [1977] Additional Protocol
II, consists in the prohibition of internment as a collective punishment, meaning that this internment can
only be ordered on a case-by-case basis, and not as a collective measure. Also, the principle of legality
implies that where a State decides to derogate the right to liberty, such a decision must, inter alia, be
officially proclaimed so as to enable the affected population to know the exact material, territorial and
temporal scope of application of that emergency measure. Furthermore, “internment” implies the right to be
informed about the reasons for such a measure and to be registered and held in a recognized place of
internment, with a right to challenge the lawfulness of the detention …
The Court concludes that … none of the required guarantees for internment have been respected.
The Court further concludes that the detention at issue was not “interment” but proper unlawful
imprisonment.

PROSECUTOR vs. AUGUSTIN NDINDILIYIMANA, FRANÇOIS-XAVIER NZUWONEMEYE ET INNOCENT

SAGAHUTU,
Case No. ICTR-00-56-A, Judgement (AC), 11 February 2014, para. 261:

[Attack; the conduct was committed as part of a widespread or systematic attack directed against a civilian
population.]
The Appeals Chamber notes that, in support of his argument that a widespread attack against the
civilian population had not yet started when the Prime Minister and the Belgian peacekeepers were killed,
Sagahutu relies on the Trial Chamber’s finding that open hostilities between the Rwandan armed forces and
the RPF began when the RPF troops moved out of the Conseil national pour le développement (“CND”)
barracks in Kigali on 7 April 1994.620 This finding was part of the Trial Chamber’s assessment on the nexus
of the killing of the Prime Minister and the Belgian peacekeepers with an armed conflict.621 As previously
held, the concepts of “attack” and “armed conflict” are not identical and Article 3 of the Statute does not
require that crimes against humanity be committed in the context of an armed conflict.622 Contrary to
Sagahutu’s assertion, the Trial Chamber did not find that the widespread and systematic attack against the
civilian population only started when the RPF moved out of the CND barracks. This submission is therefore
dismissed." 620 See Sagahutu Notice of Appeal, para. 87, referring to Trial Judgement, para. 2134; Sagahutu
Appeal Brief, para. 243.

PROSECUTOR vs. VOJISLAV ŠEŠELJ

Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, paras. 188, 192:
[Conduct of hostilities]
The Prosecution submits that a widespread or systematic attack was directed against the civilian
populations of Croatia, Bosnia and Vojvodina in the period from August 1991 to at least September 1993. It
explains that “an orchestrated campaign of violence and mistreatment was directed against the Croatian,
Muslim and other non-Serb population residing in the municipalities referred to in the Indictment”. Thus,
the Accused’s speech in Hrtkovci on 6 May 1992 allegedly played a decisive part, the Accused frequently
stressing the link between the deportation of the Croats from Hrtkovci, the armed conflict in Croatia and his
vision of a homogenous Greater Serbia. According to the Prosecution, “[t]he means and methods of attack,
the crimes committed and the attack’s discriminatory nature provide further proof that the attack was
directed against civilian populations.” Moreover, having taken control of the municipalities of Vukovar,
Zvornik, Mostar and Nevesinje, the Serbian forces, in collaboration with the local Serbian authorities,
allegedly put in place a system of persecutions designed to drive out from these territories the non-Serb
civilian population which was also subjected to deportation and forcible transfer.
In light of the totality of the evidence in the case file, the Trial Chamber, by a majority, Judge
Lattanzi dissenting, finds that the Prosecution failed to prove beyond all reasonable doubt that a
widespread and systematic attack was launched against the non-Serb civilian population living within large
areas of Croatia and BiH. The majority finds, in particular, that the Prosecution failed to prove that the non-
Serb populations living in the municipalities of Vukovar, Zvornik, Greater Sarajevo and the municipalities of
Mostar and Nevesinje, were targeted by a campaign of violence and mistreatment. The majority deems that
it did not receive sufficient evidence to irrefutably establish the existence of a widespread and systematic

Pg. 8 of 15
 attack against the civilian population; that the evidence that was presented and examined points rather to
an armed conflict between enemy military forces, with some civilian components. The presence of civilian
combatants in undetermined proportions in the context of clashes that many witnesses described as street
fighting, where every piece of territory, every house was fought for, presents a context which does not
support the conclusion that there was an attack directed against civilians.

PROSECUTOR V. WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY AND JOSHUA ARAP
SANG
Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 167

[Legal source/authority and evidence]

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

THE PROSECUTOR V. MOMCILO PERISIC

Case No. IT-04-81, Judgement (TC), 6 September 2011, para. 734
[Legal source/authority and evidence]

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

PROSECUTOR V. LUKIĆ ET AL.,

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

[Legal source/authority and evidence]

Evidence before the Trial Chamber shows that numerous acts of violence were perpetrated against
the Muslim civilian population in Vi{egrad by the Serb police, members of paramilitary groups and local
Serbs from before the indictment period began, and that the number of these acts increased with the
departure of the Uzice Corps. These acts of violence included unlawful arrests and beatings, abductions,
rapes, theft and destruction of property, and arbitrary killings. Two mosques in Visegrad were burned
down. The Trial Chamber recalls its finding that evidence on specific non-indicted crimes will be taken into
account when determining whether the Prosecution has satisfied the general requirements of Article 5 of
the Statute. This evidence also shows that Muslim men, women and children were the target of abductions,
rapes, arbitrary killings, acts of humiliation, beatings, and theft, most particularly during June and July 1992.
The Trial Chamber finds that these acts indisputably fit within the definition of "attack" as defined
in the case-law of the Tribunal. The Trial Chamber is further satisfied that the attacks were directed in a
discriminatory manner against the civilian population; the victims were civilians from Visegrad, many were
elderly and women and children, and all were Muslims."

PROSECUTOR V. DRAGOLJUB KUNARAC ET AL

Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 416:

[Legal source/authority and evidence]

Pg. 9 of 15
 The term "attack" in the context of a crime against humanity carries a slightly different meaning
than in the laws of war. In the context of a crime against humanity, "attack" is not limited to the conduct of
hostilities. It may also encompass situations of mistreatment of persons taking no active part in hostilities,
such as someone in detention. However, both terms are based on a similar assumption, namely that war
should be a matter between armed forces or armed groups and that the civilian population cannot be a
legitimate target.

PROSECUTOR vs. MOMĆILO KRAJIŠNIK

Case No. IT-00-39-T, Judgement (TC), 27 September 2006, para. 708

On the basis of the evidence discussed in part 4 of this judgement, the Chamber finds that, from 18
March 1992 until the end of the indictment period (30 December 1992) there was an attack directed against
the Bosnian-Muslim and Bosnian-Croat civilian population residing in the indictment municipalities. The
Chamber notes that, as described above in part 2, there might have been various factors or actions
attributed to members of these groups which may have influenced the timing and motivation of the attack.
However, these factors are not to be misunderstood as a justification for conducting a widespread and
systematic attack on a civilian population. The attack included a wide range of discriminatory measures
taken against Bosnian Muslims and Bosnian Croats, such as the imposition of curfews; the setting-up of
barricades and checkpoints where members of these ethnic groups were regularly stopped and searched;
regular searches of the houses of Muslims and Croats; and dismissals of Muslims and Croats from
employment in the armed forces, the police, municipal organs, and private and publicly owned companies.
Beginning in April 1992, Serb forces attacked Muslims and Croats living in towns, villages, and smaller
settlements, most of which were undefended and contained no military targets, in order to take control of
the municipality. Muslims and Croats were mistreated and killed. Men were often arrested and taken to
detention centres, while women and children were forced to leave their homes and often the municipality.
Serb forces then looted and destroyed the houses, rendering it impossible for the villagers to return.
Religious monuments and sacred sites of importance to Muslims and Croats were also destroyed. The
Muslim and Croat men and women kept in detention were often beaten or raped by members of Serb forces,
some of whom were employed as guards for the facility and others who were allowed access to the
detention centres. The conditions in many of the detention centres were intolerable, with insufficient food,
water, medical care, and hygiene facilities. As a result of the treatment of the detainees, and the conditions
of detention, many detainees suffered injuries and health problems, sometimes fatal. In addition, many
detainees were executed at the detention centres. Beginning towards the end of 1992, detainees were either
directly transferred out of the municipalities, or released and forced to leave their municipality by their own
means, after being compelled to sign over their property to the municipality or to local Serbs. From the
summer 1992 onwards, forcible transfer out of the municipality was also the fate of many Muslims and
Croats who, until then, had managed to remain in their homes."
Also, the attack in the context of a crime against humanity is not limited to the use of armed force;
it encompasses any mistreatment of the civilian population. 10

10
Prosecutor vs. Dragoljub Kunarac et al, Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 86:

Pg. 10 of 15
 Article 7 (1) (f)
CRIME AGAINST HUMANITY OF TORTURE
Elements:
1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.
2. Such person or persons were in the custody or under the control of the perpetrator.
3. Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful
sanctions.
4. The conduct was committed as part of a widespread or systematic attack directed against a
civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a
widespread or systematic attack directed against a civilian population.
“Torture”—any act by which severe pain or suffering whether physical or mental
"Attack"— in the context of a crime against humanity carries a slightly different meaning than in
the laws of war. In the context of a crime against humanity, "attack" is not limited to the conduct
of hostilities. It may also encompass situations of mistreatment of persons taking no active part
in hostilities, such as someone in detention. However, both terms are based on a similar
assumption, namely that war should be a matter between armed forces or armed groups and that
the civilian population cannot be a legitimate target. Art. 49(1) of Additional Protocol I to the
Geneva Conventions of 12 Aug 1949, e.g, defines ‘attacks’ as ‘acts of violence against the
adversary, whether in offence or in defence’.11

-- CASES --
PROSECUTOR vs. ENVER HADŽIHASANOVIĆ AND AMIR KUBURA
Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 1180 and 1279-1280

[Inflicting physical pain or suffering by acts of physical violence]

In this case, all the Prosecution witnesses are consistent in stating that, throughout their
detention in the Music School, they repeatedly underwent cruel treatment and lived in a
permanent state of anxiety. Thus, upon their arrival at the School, the detainees were almost
systematically kicked and beaten with rubber cable and wooden shovel handles by the soldiers
and guards of the School before they were taken to the basement cell. Witness XA recounts that
upon his arrival he was hit on the head with a wooden stick when he was climbing the stairs and
lost consciousness; when he came to, 15 to 20 7th Brigade soldiers were questioning him while
continuing to hit him about the head, on the back and in the stomach, causing him to pass again
out. He states that he was subjected to that treatment every day for eight days. The beatings
caused him to sustain two fractures of the skull. Another witness recounts that after having lost
and regained consciousness several times in the same circumstances, he was forced by a Muslim
soldier to eat a military insignia after being threatened with having a rubber cable thrust down
his throat if he did not do so.
In view of the above evidence and in particular the testimony of persons who were
detained at the former JNA Barracks in Travnik, the Chamber finds that cruel treatment was
inflicted on civilians and prisoners of war held at the detention centre in the Barracks during the
whole of the period at issue. It appears from the testimony, therefore, that detainees were beaten
during the period material to the Indictment. The detainees in question were beaten, sometimes
for several hours, with various objects and kicked and punched. The Chamber further finds that
11
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 416

Pg. 11 of 15
 such beatings were carried out repeatedly. Witness Ivan Josipović was also beaten almost every
evening during the first 50 days of his detention. As for Kruno Bonić, it appears from the
testimony that he was beaten on several occasions over a period of several months.

PROSECUTOR vs. MILE MRKŠIĆ ET AL.

Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para. 526-527

[Inflicting physical pain or suffering by acts of physical violence]

Turning next to the allegations of beatings in support of the charges of torture and cruel
treatment, the Chamber refers to its earlier findings, that at the arrival of the prisoners of war at
Ovćara, they were received by a large number of TO and paramilitary members of the Serb forces
as well as some JNA troops. The buses were emptied one by one and the prisoners of war, apart
from four, had to pass through a gauntlet of two rows of Serb soldiers, about 10 to 15 on each
side, who were beating them severely as they passed through. The prisoners were beaten with a
variety of implements including wooden sticks, rifle-butts, poles, chains and crutches. They were
kicked and punched. One witness described the beatings in front of the hangar the following way:
I don't know if the civilised world will be able to comprehend this. It is very difficult to
describe this. You can't even see this in the movies, the beatings were terrible. People lost their
teeth. There was so much blood, once we entered the hangar this straw was strewn on the floor
and it was all covered in blood, it's hard to describe it. They were kicking, hitting, yelling,
screaming […].
In effect, everyone but four, of the approximately 200 male prisoners from the five buses
had to pass through the gauntlet and was heavily beaten. It is not clear from the evidence
whether the two women were treated any differently. The soldiers were yelling "Ustashas" and
were verbally abusing the prisoners going through the gauntlet.
Further, as has been set out earlier in this Judgement, beatings by members of the Serb
forces continued inside the hangar. The beatings were not isolated acts, they lasted for some
hours during which the vast majority of the prisoners in the hangar was severely beaten. The
Chamber refers to its earlier findings that many of the approximately 200 men from the Vukovar
hospital were hit in many cases with implements such as iron rods and rifle-butts and kicked.
Sinisa Glavasevic, Vlado (Vladimir) Dukic, Tomislav Baumgertner who was 16 or 17 at the time,
Damir Kovaci, Damjan Samardzic and Kemal (]eman) Saiti are shown by the evidence to have
been beaten particularly severely. According to one witness, 12 of the Serb soldiers descended on
Sinisa Glavasevic and beat and kicked him badly. Damir Kovacic was kicked. Damjan Samardzic
was punched and beaten by five or six soldiers so severely that for a long time he could not move.
Kemal (]eman) Saiti was grabbed by the hair by a Serb paramilitary soldier and his head was
violently banged several times against the concrete floor. These beatings were capable of
inflicting serious pain and suffering and they indeed did so in many cases.

PROSECUTOR vs. IDRIZ BALAJ ET AL.

Case No. IT-04-84-T, Judgement (TC), 3 April 2008, paras. 187-188:

Based on the evidence, the Trial Chamber concludes that on 22 April 1998, Rosa
Radošević, Novak Stijović, and Staniša Radošević were stopped by armed KLA soldiers on the
road in or near Požar/Pozhare. KLA soldiers subsequently took the three by car in the direction
of Glođane/Gllogjan. At the entrance of Glođane/Gllogjan, Novak Stijović and Staniša Radošević
were kicked and beaten by a group of KLA soldiers with fists and rifle and pistol butts for a
considerable amount of time. Novak Stijović fell to the ground and Staniša Radošević was
bleeding. The three were then taken inside a room in a nearby house and Staniša Radošević was

Pg. 12 of 15
 beaten and interrogated. Staniša Radošević was sent out of the house on the condition that he
would go to collect two guns. After some time Rosa Radošević and Novak Stijović were released.
Staniša Radošević retrieved one gun and then left for Dečani/De?an under the pretext of getting
the other gun, but instead escaped and went to the local police station. The Trial Chamber is
satisfied that the beating caused Novak Stijović and Staniša Radošević serious physical suffering.
[…]

PROSECUTOR vs. DRAGAN NIKOLIĆ

Case No. IT-94-2-A, Judgement (AC), 4 February 2005, para. 40

In light of the above, the Appeals Chamber considers that, while the Trial Chamber
erroneously qualified the beatings underlying the crime of torture as having "all of the making of
de facto attempted murder", it was reasonable to conclude, on the basis of the evidence before it,
that "due to (their (seriousness and particular viciousness", the beatings underlying the crime of
torture amounted to the "highest level of torture" as an aggravating factor. The relief sought by
the Appellant was that the conclusion of the Trial Chamber at paragraph 213(v) "should not have
formed part of the aggravating factors and should be excised (and that (this excision goes to
moderate the nature as a whole of the aggravating factors in the case." Having determined that
the Trial Chamber correctly concluded that the gravity of the beatings was to be taken into
account as an aggravating factor in assessing the Appellant’s criminality for acts of torture, the
Appeals Chamber does not consider that the excision of the Trial Chamber’s erroneous
characterisation of the beatings as having all of the making of "de facto attempted murder"
moderates the nature as a whole of the aggravating factors. Therefore, this part of the Appellant’s
ground of appeal is dismissed.

PROSECUTOR vs. DRAGAN NIKOLIĆ

Case No. IT-94-2-T, Judgement (TC), 18 December 2003, paras. 189, 192, 196, 200, 208, 213

The Accused brutally and sadistically beat the detainees. He would kick and punch
detainees and use weapons such as iron bars, axe handles, rifle butts, metal "knuckles",
truncheons, rubber tubing with lead inside, lengths of wood and wooden bats to beat the
detainees. Prosecutor v. Milan Simić, Case No. IT-95-9/2-T, Judgement (TC), 17 October 2002,
para. 63:
In relation to count 4, the Plea Agreement details the "instruments" used to beat
the victims: the victims were beaten with fists, the leg of a chair, a rod or bar, the butt of
a rifle, and were kicked, on various parts of their bodies and especially in the genitals. It
further provides that the victims were forced to stand with their arms outstretched, and
were ordered to stand with their legs apart in order to receive forceful kicks to their
genitals.

PROSECUTOR vs. MILORAD KRNOJELAC

Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 231, 233, 250, 255

Because of the significance of this event generally to other issues in the case, however,
the Trial Chamber exceptionally records that it is satisfied that, on 8 July 1993, Ekrem Zekovic, a
Muslim detainee, tried to escape from the KP Dom, but was re-captured the same day. As soon as
he was brought back to the KP Dom, Zekovic was severely beaten by Milenko Burilo, a guard of
the KP Dom. While he was being beaten, the Accused intervened to stop it. As they were walking
away from the scene, Burilo continued to assault Zekovic in the presence of the Accused. The
Accused denied that he saw Zekovic being beaten. The Trial Chamber does not accept the denial

Pg. 13 of 15
of the Accused on that point, nor does his evidence cause the Trial Chamber to have any
reasonable doubt that the Zekovic was telling the truth. Zekovic was subsequently put in an
isolation cell and then taken out at some point and beaten again with bare hands and with a chain
by deputy warden Savo Todovic, in the presence of Boro Ivanovic. The Accused met with him and
they had a conversation about his attempted escape. Zekovic was then returned to the cell and
his hands and legs were tied to the floor with a metal ring. The next day, barely able to walk, he
was taken to the courtyard where detainees had been assembled. He was then returned to the
isolation cell where he spent 28 days. Seven days of that time were spent on the concrete cell
floor, handcuffed at all times except for two occasions when he was taken out to be beaten again
by the KP Dom guards on duty.
The Trial Chamber is satisfied that, in the presence of the Accused, detainees were told
by Todovic that, because of Zekovic’s escape, all food rations would be halved, and that work and
medical treatment would be forbidden. This punishment actually lasted for at least ten days. All
rooms were searched and medicines were seized. In addition, following the escape, several
detainees, all work companions of Zekovic, were severely beaten by KP Dom guards as
punishment for Zekovic’s escape or in order to obtain information about his whereabouts. The
Accused denied having been aware of any punishment inflicted as a result of Zekovic’s escape.
The Trial Chamber does not accept his evidence; nor did his evidence because the Trial Chamber
to have any reasonable doubt as to the truth of the Prosecution witnesses on this issue. FWS-73
was beaten and kicked with boots on the head and on his lower back so brutally that he
continues to the present day to suffer from the consequences of his mistreatment. Furthermore, a
group of detainees, including some of those who had been beaten, were locked in solitary
confinement for varying periods of time. FWS-73 stayed in an isolation cell for 12 days.
The Trial Chamber is satisfied that, in June or July 1992,661 Nurko Nisic, Zulfo Veiz and
Salem Bico were severely beaten by guards of the KP Dom, or by policemen from outside the KP
Dom, who had been allowed by the guards to enter the KP Dom. Nisic was taken out to be beaten
on at least two occasions while he was at the KP Dom.662 Several inmates saw the bruises on his
face and body. Sometime in June or July 1992, he was taken from his room and his screams and
the provocative remarks of those beating him were heard by other detainees. He was never seen
again after that. The Trial Chamber is satisfied that, when beating him, the KP Dom guards or
policemen from outside the KP Dom, intended to obtain from him a confession that he was
somehow involved in military activities, or information to that effect. They may also have
intended to punish him because they considered that his alleged military activities were
somehow connected with the injury of a Serb soldier named or nicknamed "Bota". The Trial
Chamber is not satisfied, however, that such an intention has been established beyond
reasonable doubt. Nisic was beaten extremely severely. Despite his frailty due to mal-
nourishment and mistreatment, he was given no medical assistance and he could not walk for
several days following the beatings. The Trial Chamber is satisfied that the mental and physical
pain inflicted upon Nisic by the guards of the KP Dom or policemen for the prohibited purpose
which has been accepted amounted to torture within the meaning of Article 3 and Article 5(f) of
the Statute."
The Trial Chamber is satisfied that, on an unknown date in the summer of 1992 but
before the month of July, Salko Mandzo was mistaken for another detainee, interrogated and
seriously beaten; he was hit with a bat, and cut on the face with a knife. Salko Mandzo lost
consciousness as a result of a blow he received on his head. The fact that the KP Dom guards
were mistaken about the identity of the victim does not detract from the conclusion that, when
inflicting such severe physical pain, the guards did so with the intention of obtaining either a
confession or information from him or the person they believed him to be. One Prosecution
witness testified that Savo Todovic and the Accused walked in during the beating and said that
they had been mistaken about the identity of the victim.

Pg. 14 of 15
Pg. 15 of 15