A/HRC/8/14*
page 7
population, including indiscriminate or disproportionate attacks or threats thereof. The actual
inflicting of terror on the civilian population is not a required element of this crime. Further,
confirming the decision of the Trial Chamber, the Appeals Chamber noted that the mental
element of the crime “is composed of the specific intent to spread terror among the civilian
population”.8 The Appeals Chamber found that: “a plain reading of article 51 (2) suggests that
the purpose of the unlawful acts or threats to commit such unlawful acts need not be the only
purpose of the acts or threats of violence. The fact that other purposes may have coexisted
simultaneously with the purpose of spreading terror among the civilian population would not
disprove this charge, provided that the intent to spread terror among the civilian population was
principal among the aims”.9 Such intent can be inferred from the circumstances of the acts or
threats, that is, from their nature, manner, timing and duration.10
(b)
Genocide
10. The Appeals Chamber in The Prosecutor v. Milomir Stakic11 (hereafter Stakic) dealt,
inter alia, with elements of the crime of genocide. The Appeals Chamber reaffirmed the Trial
Chamber’s conclusion that, based on the etymology of the term “genocide”, the drafting history
of the Genocide Convention, subsequent discussion by experts and article 4 of the Statute of the
ICTY, the target group must be positively defined. Thus, the elements of genocide must be
separately considered in relation to Bosnian Muslims and Bosnian Croats.
(c)
Crimes against humanity
11. In Stakic, the Appeals Chamber outlined the actus reus and the mens rea requirements
for deportation as a crime against humanity, consistent with the jurisprudence of the ICTY
to date.12 The Appeals Chamber surveyed relevant international law and authority and
concluded that the actus reus of deportation as a crime against humanity consists of the forced
displacement of persons by expulsion or other forms of coercion from the area in which they are
lawfully present, and requires that individuals be transferred across a de jure State border.13 In
certain circumstances, the crime of deportation can consist of transfers across de facto borders,
provided there is support for such under customary international law. The Appeals Chamber
held that constantly changing frontlines do not amount to de facto borders under customary
8
Ibid., para. 104.
9
Ibid.
10
Ibid.
11
Case No. IT-97-24-A.
12
Ibid., paras. 265 et seq.
13
Ibid., paras. 278, 289.
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