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by their very nature or consequences be objectively part of the attack. 569 A crime that
is committed before, after or away from the main attack on the civilian population
could still, if sufficiently connected, be part of that attack. The crime must not,
however, be an isolated act, i.e. so far removed from the attack that, having
considered the context and circumstances in which it was committed, the acts cannot
be said to have been part of the attack.570
191. Knowledge. An accused or a perpetrator must have known that there is an
attack on the civilian population and that his or her acts formed part of the attack. 571
He or she need not know the details of the attack or share the purpose or goals of the
broader attack.572 Evidence of knowledge depends on the facts of a particular case; as
a result, the manner in which this legal element may be proved may vary according to
the circumstances.573
192. The NUON Chea Defence submits that there is a requirement additional to
those set out above, namely that an accused must have knowledge of the
discriminatory nature of any widespread and systematic attack forming the basis of
charges against him or her.574 They do not advance any authority in support of this
assertion. As the ICTR Statute is the only instrument other than the ECCC Law to
include the jurisdictional requirement that the attack must have been carried out on a
discriminatory basis, ICTR jurisprudence provides useful guidance on this issue. The
Chamber’s review of ICTR case law reveals that, almost uniformly, 575 the ICTR has
not required an accused to have knowledge of the discriminatory nature of the
widespread and systematic attack.576 Similarly, in the KAING Guek Eav Trial
Judgement, the Chamber did not require knowledge of the discriminatory nature of
569
KAING Guek Eav Trial Judgement, para. 318; Kunarac et al. Appeal Judgement, para. 85;
Šainović et al. Appeal Judgement, para. 264.
570
KAING Guek Eav Trial Judgement, para. 318; Kunarac et al. Appeal Judgement, para. 100.
571
Kunarac et al. Appeal Judgement, para. 85; Munyakazi Appeal Judgement, para. 141.
572
KAING Guek Eav Trial Judgement, para. 319; Kunarac et al. Appeal Judgement, paras 102-103.
573
KAING Guek Eav Trial Judgement, para. 319; Blaškić Appeal Judgement, para. 126.
574
NUON Chea Closing Submissions in Case 002/01, para. 208.
575
The ICTR Trial Chamber in Ntakirutimana did require knowledge of the discriminatory nature of
the widespread and systematic attack, para. 693.
576
See e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 389; Gacumbitsi Appeal
Judgement, para. 86; Kayishema and Ruzindana Trial Judgement, paras 133-134; Seromba Trial
Judgement, para. 360; Kamuhanda Trial Judgement, paras 657-6; Semanza Trial Judgement, paras 327332.
Case 002/01, Judgement, 7 August 2014 - Public
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