Crimes against Humanity under Customary International Law

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1 United States v von Loeb (1948) xi Law Reports of Trials of War Criminals 563.

Chapter 9

Crimes against Humanity under Customary International Law and the icc: The Chapeau Elements

We wish the law were otherwise but we must administer it as we find it1

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1 Introduction

Both under customary international law and under the icc Statute, a crime against humanity requires that an ‘underlying crime’ be committed in the context of what is known as the ‘chapeau element’. The chapeau element of a crime against humanity is that there must be a ‘widespread or systematic attack directed against any civilian population’ and the accused’s (or perpetra-tor’s) acts must make up ‘part of ’ that attack (the nexus requirement) as well as possessing a knowledge that their acts constitute part of the attack (the mens rea requirement). The icc Statute further requires that the attack be pursu-ant to a ‘State or Organizational policy’. As argued in Chapter 8, the authors contend that the better view is that, under customary international law, there must also be a policy element and a minimum level of scale.

This chapter seeks to draw upon all the sources discussed in the text and analyse in detail the chapeau elements of crimes against humanity both under customary international law and under the icc Statute. Chapter 10 will then undertake the same analysis in relation to the underlying crimes. This chap-ter addresses this topic by addressing each aspect of the chapeau element by element:

1. ‘attack’ (Section 2);2. ‘directed against’ (Section 3);3. ‘any civilian’ (Section 4);

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2 Antonio Cassese and Paola Gaeta (eds), Cassese’s International Criminal Law (3rd ed, Oxford University Press: Oxford, 2013).

3 International Military Tribunal (Nuremberg), Judgment and Sentences (1 October 1946) (1947) 41 American Journal of International Law 172, 221.

4 Hersch Lauterpacht, International Law and Human Rights (Praeger: New York, 1950) 3, 42–45.5 See, for example, (icty) Prosecutor v Tadić (Trial Chamber Judgment), Case No IT-94-1-T

(7 May 1997) (‘Tadić – Trial’), [622]–[623] followed by the Special Court of Sierra Leone (scsl) in Prosecutor v Fofana and Kondewa (Trial Chamber Judgment), Case No SCSL-04-14-A (2 August 2007) (‘cdf – Trial’), [101].

4. ‘population’ (Section 5);5. ‘widespread or systematic’ (Section 6);6. the policy element (Section 7); and7. the nexus and ‘mens rea’ (Section 8).

Before undertaking this analysis, it is necessary to make a few observations about crimes against humanity under customary international law. In partic-ular, it is important to: (a) distinguish the crime under custom from human rights law; and (b) understand whether it is peremptory norm of customary international law.

1.1 Crimes against Humanity and Human Rights LawWhile it is often said that crimes against humanity are closely linked to the protection of human rights,2 the norms of crimes against humanity under cus-tomary law and the principles of individual criminal responsibility are a radi-cal deviation from the traditional state-based focus of international law. The Nuremberg Tribunal famously held that:

Crimes against international law are committed by men, not abstract en-tities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.3

The statement was controversial at the time as some authors stated that only states could be the subject of international law.4 After Nuremberg, however, individual criminal responsibility for crimes against humanity was one of the Nuremberg Principles and may be taken, like the definition of crimes against humanity itself, to have been ‘affirmed’ by the General Assembly in Resolution 95(I) (1946). Since then, individual criminal responsibility for crimes against humanity has been well established.5

The same cannot be said about all international ‘offences’ in the loose sense of conduct condemned at the international level. A distinction exists between


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6 For example, see Bruce Broomhall, International Justice and the International Criminal Court (Oxford University Press: Oxford, 2003), Chapter 1.

7 See Guénaël Mettraux, ‘Using Human Rights Law for the Purposes of Defining Interna-tional Criminal Offences: The Practice of the International Criminal Tribunal for the Former Yugoslavia’ in Robert Roth and Marc Henzelin (eds), Le Droit Pénal à l’épreuve de l’internationalisation (lgdj: Paris, 2002) 183.

8 It was Principle 2 of the Nuremberg Principles and may be taken, like the definition of crimes against humanity itself, to have been ‘affirmed’ by the General Assembly in its Dec-laration of 1946 (Resolution 95(I)): see Affirmation of the Principles of International Law Recognized by the Charter of The Nürnberg Tribunal. For the position on superior orders under the icc Statute, see Article 33.

9 See Michael Byers, Custom, Power and the Power of Rules: International Relations and Cus-tomary International Law (Cambridge University Press: Cambridge, 1999) 183–203.

10 See Chapter 5, Section 4.1.

international crimes, stricto sensu, which impose criminal responsibility di-rectly upon individuals (such as crimes against humanity, genocide and war crimes) and mere ‘treaty crimes’ where the only international obligation is upon the State Parties to take action as stipulated in the treaty, not individual responsibility (of which torture may be an example).6 Hence, in discerning the elements of crimes against humanity under customary international law, care must be taken when relying upon international human rights law7 and treaties such as the iccpr (or even the icc Statute). The parties to treaties are states and the duties directly created by them fall upon State Parties, not individuals.

1.2 Crimes against Humanity as a Peremptory NormMany aspects of crimes against humanity suggest that it is a significant norm in the field of international law. Article 6(c) of the London Charter states that crimes against humanity can be committed ‘whether or not in violation of the domestic law’. Further, Article 8 states that obedience to superior orders is no defence. This is an accepted part of the concept of crimes against humanity.8 That international law can apply directly to individuals in the absence of state consent in the form of a binding treaty and irrespective of conflicting local law (or even treaty law) is very much an exception.

But is the prohibition on crimes against humanity a jus cogens norm? The threshold for the establishment of such peremptory or jus cogens rules is likely higher than that for other customary rules.9 Chapter 5 argued that there are sound reasons for confining crimes against humanity, as a peremptory norm of customary international law, to ‘manifestly unlawful’ conduct as recognised by the principal legal systems of the world.10 This suggests a high hurdle has to


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11 M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Cambridge University Press: Cambridge, 2011) 263, 269, 452.

12 Christian Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge: Cam-bridge University Press, 2005) 144–145.

13 (IACtHR) Almonacid-Arellano et al. v Chile (Decision on Admissibility of Petition), Inter-American Court of Human Rights, Report No 44/02, Doc 5 (9 October 2002), [99].

14 (Belgium) Aguilar Diaz et al. v Pinochet, Tribunal of First Instance of Brussels (Belgium), order of 6 November 1998 (‘Belgian Pinochet Case’), reprinted in (1999) 118 Journal des Tribunaux 308 with critical note by Joe Verhoeven. See English summary by Luc Reydams in (1999) 93(3) American Journal of International Law 700, 702–703.

15 (Spain) Sentencia por crímenes contra la humanidad en el caso Adolfo Scilingo, Audiencia National Española, No 16/2005 (19 April 2005) (‘Scilingo – Audiencia National’) accessed online at <http://www.derechos.org/nizkor/espana/juicioral/doc/sentencia.html>, Fun-damentos, Sexto, [4]–[5].

16 (Argentina) Case of Julio Hector Simon (Decision declaring Argentina’s Amnesty Laws Unconstitutional), Supreme Court of Justice of Argentina, Case No 17.768 (14 June 2005).

17 (Uruguay) Ministerio Publico c Alvarez Armellino y Larcebeau Aguirregaray (Judgment), Juez Penal de Turno Montevideo, Decision No 0157 (29 October 2009), 166, 204–205.

18 (uk) R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte [2000] 1 ac 61 (‘Pinochet No 1’), 108–109.

19 (icj) Case Concerning Armed Activities on the Territory of the Congo (drc v Rwanda) (Deci-sion on Jurisdiction of the Court and Admissibility of the Application), Case No 126/2006 (3 February 2006), [64].

20 (ECtHR) Al-Adsani v United Kingdom (2002) 34 ehrr 273 (‘Al-Adsani – echr’), [60].21 (icty) Prosecutor v Furundžija (Trial Chamber Judgment), Case No IT-95-17/I-T

(10 December 1998) (‘Furundžija – Trial’), [144]–[154].

be overcome before a new underlying offence is accorded the status of a crime against humanity.

Bassiouni11 and Tams12 suggest that the prohibition against crimes against humanity constitutes a norm of jus cogens. The same has been held by the Inter-American Court of Human Rights13 and domestic courts in Belgium,14 Spain,15 Argentina,16 Italy, Uruguay17 and the uk.18 The icj has held that the Genocide Convention imposes obligations that are erga omnes19 and both the European Court of Human Rights20 and the icty21 has held that torture has obtained a jus cogens status.

The result appears to be that, while the matter has not always been sub-jected to rigorous analysis, states generally view as uncontroversial the propo-sition that the prohibition on states and individuals committing crimes against humanity is a norm of customary international law that cannot be derogated from under any circumstances. This is clear from the formulation of the defini-tion of crimes against humanity in various international instruments, as being


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22 (icty) Prosecutor v Tadić (Decision on the Form of the Indictment), Case No IT-94-1-A, (14 November 1995) (‘Tadić – Indictment’), [11]; Prosecutor v Kunarac, Kovac and Vukovic (Trial Chamber Judgment), Case No IT-96-23 & IT-96-23 (22 February 2001) (‘Kunarac – Trial’), [415] and [422]; affirmed generally in Prosecutor v Kunarac, Kovac and Vukovic (Appeals Chamber Judgment), Case No IT-96-23 & IT-96-23 (12 June 2002) (‘Kunarac – Appeal’), [89]; Prosecutor v Naletilić (Trial Chamber Judgment), Case No IT-98-34-T (31 March 2003) (‘Naletilić – Trial’), [233]; Prosecutor v Limaj, Bala and Musliu (Trial Cham-ber Judgment), Case No IT-03-66-T (30 November 2005) (‘Limaj – Trial’), [182]; Prosecutor v Krnojelac (Trial Chamber Judgment), Case No IT-97-25-T (15 March 2002) (‘Krnojelac – Trial’), [54]; Prosecutor v Vasiljević (Trial Chamber Judgment), Case No IT-98-32-T (29 November 2002) (‘Vasiljević – Trial’), [29]; Prosecutor v Radoslav Brđanin (Trial Chamber Judgment), Case No IT-99-36-T (1 September 2004) (‘Brđanin – Trial’), [131]; Prosecutor v Perišić (Trial Chamber Judgment), Case No IT-04-81-T (6 September 2011) (‘Perišić – Trial’), [82]; (ictr) Prosecutor v Nahimana (Appeals Chamber Judgment), Case No ICTR-99-52-A (28 November 2007) (‘Nahimana – Appeal’), [918]; Prosecutor v Bagosora et al. (Trial Chamber Judgment), Case No ICTR-98-41-T (18 December 2008) (‘Bagosora – Trial’), [2165]; Prosecutor v Yussuf Munyakazi (Trial Chamber Judgment), Case No ICTR-97-36A (5 July 2010) ( ‘Munyakazi – Trial’), [503]; Prosecutor v Ephrem Setako (Trial Chamber Judg-ment), Case No ICTR-04-81-T (25 February 2010) (‘Setako – Trial’), [476]; (spet) Public Prosecutor v Marques (Judgment), Special Panel Case No 09/2000 (11 December 2001) (‘Los Palos – Judgment’), [636], citing (icty) Prosecutor v Blaškić (Trial Chamber Judgment),

without any defence, as trumping domestic law, and as applying notwithstand-ing a person’s official status. This broad application supports the need for care not to allow crimes against humanity to become over inclusive and cover all forms of human rights violations the derogation from which may in fact be permissible.

That said, the question of whether the prohibition on crimes against hu-manity is a norm of jus cogens character is different from the question of whether a particular state has jurisdiction to try a person for crimes against humanity. The jurisdiction to try and the role of jus cogens in that discussion will be addressed in Chapter 11.

2 The ‘Attack’

2.1 Course of ConductThe tribunals have generally defined an ‘attack’ as requiring a ‘course of conduct’ involving the commission of acts of violence or other acts of mis-treatment of the civilian population.22 Similarly, the icc Statute defines an ‘attack’ as requiring ‘a course of conduct involving the multiple commission


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Case No IT-95-14-T (3 March 2000) (‘Blaškić – Trial’), [202]. See also (scsl) cdf – Trial, above n 5, [111] (defined an attack as ‘a campaign, operation or course of conduct’), citing Prosecutor v Brima, Kanu and Kamara (Decision on Motion for Judgment of Acquittal), Case No SCSL-04-16-T (31 March 2006) (‘Brima – Acquittal’); (eac) Ministère Public v Hab-ré (Judgment) (30 May 2016), accessed online at <http://www.chambresafricaines.org/pdf/Jugement_complet.pdf> (only available in French) (‘Habré – Trial’), [1356]–[1357].

23 icc Statute, Art 7(2)(a).24 (icty) Prosecutor v Tadić (Appeals Chamber Judgment), Case No IT-94-1-A (15 July 1999)

(‘Tadić – Appeal’), [251]; Kunarac – Appeal, above n 22, [86]; Vasiljević – Trial, above n 22, [30]; Limaj – Trial, above n 22, [182]; (ictr) Prosecutor v Akayesu (Trial Chamber Judg-ment), Case No ICTR-96-4-T (2 September 1998) (‘Akayesu – Trial’), [565]; Prosecutor v Semanza (Trial Chamber Judgment), Case No ICTR-97-20-T (15 May 2003) (‘Semanza – Trial’), [443] (scsl) Prosecutor v Charles Ghankay Taylor (Trial Chamber Judgment), Case No SCSL-2003-01-T (26 April 2012) (‘Taylor – Trial’), [506]; (eccc) Kaing Guek Eav alias Duch (Trial Chamber Judgment), eccc, Case No 001/18-07-2007/ECCC/TC (26 July 2010) (‘Duch – Trial’), [299]; Prosecutor v Chea and Samphan (Trial Chamber Judgment), Case No 002/19-09-2007/ECCC/TC (7 August 2014) (‘Case 002/01 – Trial’), [178]; (eac) Habré – Trial, above n 22, [1357]. See also (icc) Elements of Crimes, Introduction to Article 7 of the Statute, [3]; Authorisation of an Investigation into the Situation in the Republic of Kenya (Pre-Trial Chamber ii Decision), ICC-01/09-19 (31 March 2010) (‘Kenya – Authorisation Decision’), [80]; Prosecutor v Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gom-bo), ICC-01/05-01/08 (15 June 2009) (‘Bemba Gombo – Confirmation’), [75] (distinguishing an attack from a ‘military attack’).

25 (icty) Kunarac – Appeal, above n 22, [86] (relying on the principle in Tadić – Appeal, above n 24, [251]); Vasiljević – Trial, above n 22, [30]; Limaj – Trial, above n 22, [182]; (scsl) Prosecutor v Brima, Kamara and Kanu (Trial Chamber ii Judgment), Case No SCSL-04-16-T (20 June 2007) (‘afrc – Trial’), [214]; (eccc) Duch – Trial, above n 24, [299]; Case 002/01 – Trial, above n 24, [178]; (eac) Habré – Trial, above n 22, [1357].

26 (icty) Limaj – Trial, above n 22, [194].

of acts[…]’.23 However, an ‘attack’ for the purposes of the definition of crimes against humanity is distinct from the notion of armed conflict.24 An attack need not be directed at an enemy and may take place entirely in peacetime; it may precede or outlast any period of armed conflict, or it may overlap with and form part of the armed conflict in a territory.25 In a military operation where combatants use armed force, civilian casualties or violations of the laws of war will not of themselves amount to an attack for the purpose of the threshold for crimes against humanity.

The icty Trial Chamber in Limaj held that while there need not be a ‘mili-tary assault or forceful takeover’ to demonstrate an ‘attack’, ‘the existence of an attack is most clearly evident when a course of conduct is launched on the basis of massive state action’26 and where ‘the attacking force possessed


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27 (icty) Limaj – Trial, above n 22, [195].28 (icty) Limaj – Trial, above n 22, [195].29 (icty) Limaj – Trial, above n 22, [196]–[204].30 (ictr) Akayesu – Trial, above n 24, [581] (which refers to ‘a [sic] unlawful act…’). Note,

that it has been said – incorrectly – that the icty Trial Chamber in Prosecutor v Mrkšić (Decision on Review of Indictment Pursuant to Rule 61), Case No IT-95-13-R61 (3 April 1996) (‘Mrkšić – Indictment’) supports this proposition. However, the relevant section of the Trial Chamber’s decision is referring to the individual crimes that form part of the attack – not the attack itself (‘However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity’).

31 (icty) Tadić – Indictment, above n 22, [11]. See also similar comments made in Blaškić – Trial, above n 22, [202].

32 (icty) Kunarac – Trial, above n 22, [415] and [422]; affirmed generally in Kunarac – Appeal, above n 22, [89]. cdf – Trial, above n 5, [111] (defined an attack as ‘a campaign, operation or course of conduct’), citing Brima – Acquittal, above n 22.

overwhelming superiority’.27 An attack was more difficult to establish in the situation there at hand involving the Kosovo Liberation Army (kla) who were ‘a guerrilla force engaged in limited combat with superior, conventional mili-tary forces’.28 Nonetheless, the Tribunal was satisfied that the cumulative effect of the kla’s insurgent tactics of bombing local businesses and killing of their proprietors as well as abduction tactics used to influence the military and stra-tegic contest constituted an ‘attack’.29

It is unclear whether or not an ‘attack’ requires multiple acts or whether an attack can consist of one act with multiple victims. For example, can one act of violence, such as a chemical attack or bomb explosion which leaves many peo-ple dead and injured, constitute a ‘crime against humanity’? While the Trial Chamber in Akayesu held that a single act could amount to an attack,30 the icty Trial Chamber in Tadić held the opposite:31

The very nature of the criminal acts in respect of which competence is conferred upon the International Tribunal by Article 5, that they be “directed against any civilian population”, ensures that what is to be al-leged will not be one particular act but, instead, a course of conduct.

Later decisions have been less clear. The icty Trial Chamber in Kunarac was more equivocal, citing the above passage in defining an attack as a ‘course of conduct’ but stating only that an attack ‘generally’ ‘will not consist of one par-ticular act but of a course of conduct’.32 Despite this nuance, a number of icty Trial Chambers have cited Kunarac only for the proposition that an ‘attack’


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33 See (icty) Naletilić – Trial, above n 22, [233]; Limaj – Trial, above n 22, [182]; Krnojelac – Trial, above n 22, [54] (‘can be defined as’); Vasiljević – Trial, above n 22, [29]; Brđanin – Trial, above n 22, [131]; Perišić – Trial, above n 22, [82].

34 (ictr) Nahimana – Appeal, above n 22, [918]; Bagosora – Trial, above n 22, [2165]; Mun-yakazi – Trial, above n 22, [503]; Setako – Trial, above n 22, [476].

35 (spet) Los Palos – Judgment, above n 22, [636], citing (icty) Blaškić – Trial, above n 22, [202].

36 Report of the International Law Commission on the work of its forty-eighth session, 6 May – 26 July 1996, un gaor, 51st sess, Supp. 10, un Doc. A/51/10 (12 November 1996) 94–95 (‘1996 ilc Report’).

37 (icty) Prosecutor v Blagojević and Jokić (Trial Chamber Judgment), Case No IT-02-60-A (17 January 2005) (‘Blagojević – Trial’), [545]; Blaškić – Trial, above n 22, [206].

38 (eac) Habré – Trial, above n 22, [1359].39 (eccc) Duch – Trial, above n 24, [298], citing (ictr) Nahimana – Appeal, above n 22,

[918] and at [300], citing Blaškić – Trial, above n 22, [206]. The same approach was taken in Case 002/01 – Trial, above n 24, [178]–[179].

40 (scsl) Prosecutor v Sesay, Kllon and Gbao (Trial Chamber Judgment), Case No SCSL-04-15-T (2 March 2009) (‘ruf – Trial’), [77]; cdf – Trial, above n 5, [111]; Taylor – Trial, above n 24, [506].

41 Antonio Cassese, ‘Terrorism is also Disputing Some Crucial Legal Categories of Inter-national Law’ (2001) 12 European Journal of International Law 993, fn 5 (Cassese also lists Robert Badinter and the un Secretary-General Kofi Annan as holding this view); Geoffrey Robertson qc, ‘It’s a Crime, Not a War: The Terrorist Attack on New York City’, The Guardian (12 September 2001); Alain Pellet, ‘Non, ce n’est pas la guerre!’, Le Monde

may be defined as a ‘course of conduct’, without mentioning the further aspect of the Tribunal’s finding.33 Similarly, the ictr (including both Trial and Appeal Chambers) have cited Kunarac for the conclusion that an attack must consti-tute ‘a series of acts’.34 The same finding has been made by the spet.35

In contrast with these authorities, a number of icty Trial Chambers have adopted the view of the ilc36 that an attack may be ‘widespread’ either because of the ‘cumulative effect of a series of inhuman acts or the singular effect of an inhumane act of extraordinary magnitude.’37 This line of authority was followed by the the Extraordinary African Chambers in Habré,38 and was followed in the eccc notwithstanding the fact that the Tribunal defined an attack as referring to ‘the multiple commission of acts of violence’.39 The scsl has appeared to leave the question open, defining attack as meaning a ‘cam-paign, operation or course of conduct’ (emphasis added).40

This question becomes important in the context of terrorism. Can one significant act of terrorism constitute a crime against humanity? After the September 11 attacks, a number of writers claimed that they were crimes against humanity.41 By contrast, a number of writers have claimed that they


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(21 September 2001); Interview with Benjamin Ferencz, former imt prosecutor (19 Sep-tember 2001) accessed online at <http://www.ratical.org/ratville/CAH/Ferencz.html>; Christopher Greenwood qc, ‘International law and the “war against terrorism”’ (2002) 78 International Affairs 301; Jordan Paust, ‘There is No Need to Revise the Laws of War in Light of September 11th’, The American Society of International Law Task Force on Ter-rorism (November 2002), available online at <http://www.asil.org/taskforce/paust.pdf>; Frederic Kirgis, ‘Terrorist Attacks on the World Trade Centre and the Pentagon’, asil In-sights (Sep 2002), available online at <http://www.asil.org/insights/insigh77.htm>; David Scheffer, ‘Staying the Course with the International Criminal Court’ (November 2001/Feb-ruary 2002) 35 Cornell International Law Journal 47; Human Rights Watch, ‘September 11: One Year On’, available online at <http://www.hrw.org/press/2002/09/sept11.htm>; Chibli Mallat, ‘The Original Sin: “Terrorism” or “Crimes against Humanity” ‘(Fall 2002) 34(2) Case Western Reserve Journal of International Law 245; Mark Drumbl, ‘Terrorist Crime, Taliban Guild, Western Victims, and International Law’ (Fall 2002); ‘International Law and the Challenge of Terrorism’ (Fall/Winter 2004) 9 Journal of Islamic Law & Culture 1.

42 William Schabas, ‘Is Terrorism a Crime against Humanity’ (2004) 8 International Peace-keeping: The Yearbook of International Peace Operations 255.

43 1996 ilc Report, above n 36.44 1996 ilc Report, above n 36, 95, [4]–[5].

were not.42 It should be noted, however, that the attacks of September 11 2001 consisted of more than one criminal act and the legal issues revolving around these attacks primarily concerned the question of the extent to which non-state actors, such as terrorists, can satisfy any ‘state or organizational policy’ requirement which is discussed below.

At least under customary international law, there does not appear to be any well-grounded legal basis for excluding the possibility that an inhumane act of extraordinary magnitude may amount to an ‘attack’ and a crime against hu-manity if the other elements of the offence are made out. Whilst this is without legal precedent in fact, it was accepted as possible by the ilc in its 1994 Re-port.43 Such a situation must of course be distinguished from a situation where an isolated inhumane act is directed at a single victim or on behalf of a single, isolated individual – both of which the ilc considered would not constitute a crime against humanity.44

This leaves for consideration whether such an interpretation is open to the icc given the language of Article 7(2)(a) of the icc Statute (which defines ‘attack’ to mean ‘a course of conduct involving the multiple commission of acts referred to in paragraph 1’ (emphasis added)). The negotiations at Rome reveal that the wording arose out of concerns by some States’ delegations that a defi-nition which permitted either a purely ‘systematic’ attack or a purely ‘wide-spread’ attack may not properly capture the necessary threshold requirement


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45 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press: Oxford, 2010) 141; see also Chapter 4, Sections 4.1, 4.2 and 4.3.2.

46 Chapter 4, Section 5.2.2.47 Chapter 4, Section 5.2.2; Chapter 3, Section 3.3.2(iv).48 (icc) Kenya Authorisation Decision, above n 24, [95].49 (icty) Kunarac – Trial, above n 22, [415] and [422]; followed in Vasiljević – Trial, above

n 22, [29]; Naletilić – Trial, above n 22, [233] and Brđanin – Trial, above n 22.

of a crime against humanity.45 The history of its drafting suggests it was in-serted in the definition to ensure some minimal level of scale for a purely ‘sys-tematic’ attack, thereby bringing about a compromise between those delega-tions which regarded the qualifiers ‘widespread’ and ‘systematic’ as cumulative requirements and those who saw them as true alternatives.46

This background suggests that the rationale behind the wording ‘a course of conduct involving the multiple commission of acts […]’ was to exclude a pure-ly isolated or random acts of violence rather than to require the commission of at least two acts. This is supported by the statements of the Trial Chamber in Tadić and the ilc prior to the Rome Conference.47

Hence, the correct distinction to be drawn is between a single, but ‘isolated’ inhumane act of extraordinary magnitude – such as the act of a lone criminal who may detonate a bomb in a crowded office building (which would not be a crime against humanity) – and the case where the act is the result of a well organised, planned and executed ‘State or organisational policy’ to target a ci-vilian population by a single act but with widespread consequences – such as where a State uses its military to drop a bomb or chemical weapon on a civil-ian town or village (which could be a crime against humanity). The necessary planning by the State reveals a ‘course of conduct’, a ‘policy’ and, in such a case, the words ‘multiple commission of acts’ should be interpreted sufficient-ly broadly to cover a case where there are multiple defendants and multiple victims on a large scale.

The jurisprudence in the icc on this point is not yet clear. On the one hand, icc Pre-Trial Chamber ii in the Kenya Authorisation Decision appeared to open the way for the acceptance of this position, citing with apparent approval the statement of the ilc on this point.48 On the other hand, however, the Trial Chamber in Bemba Gombo appeared to go the other way, noting that the term ‘course of conduct’ imposed a ‘quantitative threshold’ that required ‘more than a few’, ‘several’ or ‘many’ acts.

2.2 Acts of Violence or Other MistreatmentWhile early trial chambers held that an attack required ‘the commission of acts of violence’,49 the icty Appeals Chamber in Kunarac and more recent


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50 (icty) Kunarac – Appeal, above n 22, [86]; Prosecutor v Kordić and Čerkez (Appeals Chamber Judgment), Case No IT-95-14/2-A (17 December 2004) (‘Kordić – Appeal’), [666]; Limaj – Trial, above n 22, [182]; (ictr) Nahimana – Appeal, above n 22, [918]; (scsl) Pros-ecutor v Brima, Kamara and Kanu (Decision on Defence Motion for Judgment of Acquittal Pursuant to Rule 98), Case No SCSL-2004-04-16-TR98 (31 March 2006) (‘afrc – Rule 98 Decision’), [42]; afrc – Trial, above n 25, [214]; ruf – Trial, above n 40, [77]; cdf – Trial, above n 5, [111]; Taylor – Trial, above n 24, [506]; (eccc) Duch – Trial, above n 24, [298] (citing Nahimana – Appeal, above n 22, [918]) and Case 002/01 – Trial, above n 24, [178] (accepting the terminology of ‘acts of violence’ although accepting that it encompasses any mistreatment of the civilian population); (iht) Prosecutor v Anfal (Special Verdict), Iraqi High Tribunal, Case No 1/CSecond/2006 (24 July 2007) (‘Anfal – Trial’), 519.

51 (icty) Prosecutor v Krajišnik (Trial Chamber Judgment), Case No IT-00-39-T (27 Septem-ber 2006) (‘Krajišnik – Trial’), [706] (emphasis added).

52 (icty) Blagojević – Trial, above n 37, [551] and Section ii, C.53 (icc) Elements of Crimes, Introduction to Article 7 of the Statute, [3]; Kenya Authorisa-

tion Decision, above n 24, [80] and Bemba Gombo – Confirmation, above n 24, [75].54 (ictr) Akayesu – Trial, above n 24, [581]; Prosecutor v Musema (Trial Chamber Judgment),

Case No ICTR-96-13-T (27 January 2000) (‘Musema – Trial’), [205]; Prosecutor v Georges Anderson Nderubumwe Rutaganda (Trial Chamber Judgment), Case No ICTR-96-3-T (6 December 1999) (‘Rutaganda – Trial’), [69]; Semanza – Trial, above n 24, [205]; (scsl) afrc – Rule 98 Decision, above n 50, [42].

tribunals accept that an attack ‘encompasses any mistreatment of the civil-ian population’.50 The Trial Chamber in Krajišnik held that an attack may also encompass not only the ‘conduct causing physical or mental injury, [but also] acts preparatory to such conflict’.51 By way of example, in the Blagojević and Jokić case, the relevant ‘attack’ comprised both the shelling and sniping of ci-vilians, and subjecting them to abuse, degrading conditions and aggressively separating men from women and children.52

This position is similar to that at the icc, where an attack for the purposes of article 7(1) of the Rome Statute is not restricted to a ‘military attack’; instead, the term refers only to ‘a campaign or operation carried out against a civilian population’.53

There remains uncertainty as to whether mere ‘mistreatment’ in the nature of a non-violent act or course of conduct can be an ‘attack’. For example, can the systematic or widespread imprisonment of civilians – such as the impris-onment of Americans of Japanese descent during World War 2 – be an ‘attack’ and therefore a ‘crime against humanity’? The ictr Trial Chamber in Akayesu explicitly said the ‘attack’ might be non-violent in character, such as imposing a policy of apartheid which is not listed in Article 3, a finding that has been fol-lowed in other decisions.54 A similar finding was made by the Supreme Court of Canada in Mugesera:


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55 (Canada) Mugesera v Canada (Minister of Citizenship and Immigration), [2005] 2 s.c.r. 100, 2005 scc 40, [153].

56 (ictr) Akayesu – Trial, above n 24, [581]; Prosecutor v Muhimana (Trial Chamber Judgment), Case No ICTR-95-1B-T (28 April 2005) (‘Muhimana – Trial’), [526]; Pros-ecutor v Gacumbitsi (Trial Chamber Judgment), Case No ICTR-2001-64-T (17 June 2004) (‘Gacumbitsi – Trial’), [298]; Semanza – Trial, above n 24, [327]; Musema – Trial, above n 54, [205]; Rutaganda – Trial, above n 54, [69]; and also followed in Prosecutor v Kajelijeli (Trial Chamber Judgment), Case No ICTR-98-44A-T (1 December 2003) (‘Kajelijeli – Trial’), [867]. See also Prosecutor v Kayishema and Ruzindana (Trial Chamber Judgment), Case No ICTR-95-1-T (21 May 1999) (‘Kayishema – Trial’), [122] (requiring ‘a combination of the enumerated crimes’).

57 M. Cherif Bassiouni, Crimes Against Humanity (1st ed, 1992), 252.58 Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford University

Press: Oxford, 2005), 156.

An “attack” may be “a course of conduct involving the commission of acts of violence”. It may also be a course of conduct that is not characterized by the commission of acts of violence if it involves the imposition of a system such as apartheid, or the exertion on the population of pressure to act in a particular manner that is orchestrated on a massive scale or in a systematic manner. It is fair to say, however, that in most instances, an attack will involve the commission of acts of violence.55 (citations omitted)

In the case law of the ictr, ‘attack’ is generally defined as an unlawful act, event, or series of events of the kind listed in Article 3(a)-(i) of the Statute.56 This suggests that the acts making up the ‘attack’ need not be the crimes pro-vided for in the Statute nor must they be violent, but they should be of equal gravity.

Some writers have doubted that mere ‘mistreatment’, being the commis-sion of purely non-violent acts can constitute an ‘attack’ and hence, be a crime against humanity. Bassiouni has, for instance, argued that examples such as the detention of Americans of Japanese descent during World War 2 will not reach the certain threshold level of inhumane conduct needs to be reached before a crime against humanity is involved.57 Mettraux disputes that a system of apartheid could be regarded as ‘non-violent’ or that any ‘attack’ within the meaning of crimes against humanity could be non-violent in the broad sense of the word.58 David Luban also agrees with this view stating:

The requirement of an attack means that something more is go-ing on than the erection of a stable system of group subordination or


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59 David Luban, ‘A Theory of Crimes against Humanity’ (2004) 29 Yale Journal of Interna-tional Law 85, 101–102.

60 Evidence provided to the us District Court for the Central District of California: see ( United States) Sarei v Rio Tinto , plc 22 F. Supp. 2d 1116, District Court for the Central District of California (‘Sarei v Rio Tinto – District Court’), 1149.

61 The cases are all discussed further in Chapter 7, Section 2.5.2(a).62 (United States) Sarei v Rio Tinto, plc, 671 F.3d 736, Court of Appeals for the Ninth Circuit,

Judgment, 25 October 2011. See also Sarei v Rio Tinto – District Court, above n 60, 1150.63 (United States) Sarei v Rio Tinto – District Court, above n 60, 1126.64 (United States) Miguel Angel Morales v Governor Edmund Brown, 2015 u.s. Dist. LEXIS

142676, District Court for the Northern District of California, Judgment, 19 October 2015, 26.

65 (United States) Sexual Minorities Uganda v Lively, 960 F. Supp. 2d 304, District Court for the District of Massachusetts, Opinion, 14 August 2013, 319–320.

oppression, such as the subordination of women throughout most of recorded history. The word suggests something dynamic, something moving and ongoing – a persecution in the process of getting worse, per-secution conducted through a military campaign of some kind, persecu-tion working to destroy or drive away the persecuted group rather than subordinating and exploiting it, and typically conjoined with crimes of the murder type. […] No good purpose is served by labeling all the world’s oppressions crimes against humanity. […] [An attack] requires specific flash points of criminality over and above the general evil of erecting a social system of oppression and domination.59

Professor Ratner has likewise argued that crimes against humanity refers to ‘a set of acts against human life, liberty, physical welfare, health or dignity, undertaken as part of a widespread or systematic attack against a civilian population’.60

The question has arisen in a number of us civil cases.61 One us Court of Appeals assumed without deciding that a blockade of food and medical sup-plies could amount to an attack against a civilian population.62 In that case, it was alleged that a blockade imposed by Papua New Guinean authorities on the people of Bougainville caused the death of more than 2,000 children in its first two years and some 10,000 Bougainvilleans had died by 1997.63 While one District Court held that housing prison inmates in an area susceptible to a particular diseases was not sufficient,64 another District Court held that mere persecution of the lgbti community in Uganda without any particular acts of violence could potentially amount to an ‘attack’.65 While not discussed in great


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66 (Chile) Sentence First December 2016, 5° Juzgado de Garantía de Santiago, Chile, rit 4471-2016, accessed online at <http://reformaprocesal.poderjudicial.cl/ConsultaCausas JsfWeb/page/panelConsultaCausas.jsf> on 17 October 2017. See discussion in Chapter 7, Section 4.2.2.

67 (Netherlands) Gerechtshof Den Haag, ecli: nl: ghdha: 2015: 1082, Case No 22-005123-11, Judgment, 7 May 2015.

68 (United States) Presbyterian Church of Sudan v Talisman Energy Inc, 453 F. Supp. 2d 633, District Court for the Southern District of New York, Opinion, 12 September 2006, 670–671.

69 (Romania) High Court of Cassation and Justice (Criminal Section), Case No 3986/2/2014, Judgment (10 February 2016) (Vişinescu – Court of Cassation), 3. See discussion in Chapter 7, Section 5.5.2.

70 Discussed in Chapter 7, Sections 5.2.2, 5.3.2 and 5.4.2.

detail, it may be that a concern about the non-violent nature of the allegations drove the Chilean decision in the Israeli Judges Case concerning allegations of certain Israeli judges supporting the construction of the West Bank security barrier and seizing goods from Palestinians.66

Some cases have appeared to hold that non-violent acts may be sufficient, albeit in circumstances that appear to clearly encompass violence. The Court of Appeal of The Hague in the Netherlands found that the actions of the Tamil Tigers in imprisoning and detaining its own population amounted to an ‘attack’.67 Yet, this occurred either during a period where such detention left the civilians trapped in a war zone or otherwise in a broader context of vio-lence towards the population. A further us District Court held that the depor-tation of civilians around a particular set of oil fields in the Sudan may amount to an attack against a civilian population.68 Yet, the individuals were deported forcefully and often by military action.

In Romania, it has been held by the High Court of Cassation that the mis-treatment of prisoners in custody was sufficient to amount to a crime against humanity in circumstances where the prisoners were largely political prison-ers and the Court found the mistreatment to be directed at instituting a regime of exterminating political prisoners.69 Similarly, cases in Estonia, Latvia and Hungary have found that deportation on its own was sufficient in circumstanc-es where such actions were large-scale and often directed at political oppo-nents and undesirables.70

Ultimately, the better view appears to be that an ‘attack’ will necessarily require either aggression or violence of some conventional kind or mistreat-ment on such a scale or of such seriousness, most usually perpetrated by a state, such that the only conclusion is that it can only be understood as an


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71 Oxford English Dictionary: ‘[t]o take aggressive military action against (a place, or enemy forces, equipment etc.) with weapons or armed forces; to begin a military assault on’, ‘[t]o begin or engage in aggressive and violent physical action against (a person or animal); to attempt to injure or kill; to assault’; ‘[t]o launch or engage in a military or violent physical attack’.

72 Chapter 8, Section 3.73 (icty) Limaj – Trial, above n 22, [195]ff.

act of aggression or violence towards that population rather than the pursuit of some other legitimate aim. Such an interpretation of the word ‘attack’ is in accordance with the ordinary meaning of the word.71 It is also consistent with the view put forward in Chapter 8 by the authors that a proper analysis of state practice and opinio juris reveals that a crime against humanity must reach a minimum level of scale and seriousness in order to warrant the intervention of the international community.72

This position is consistent with the jurisprudence of the ad hoc tribunals, where mistreatment of the relevant population usually formed part of a broader pattern of detaining, mistreating and killing members of a particular population by a state or armed group. It is also consistent with the few authori-ties that do not concern attacks by way of a state or armed group (i.e. attacks in the conventional sense of armed violence). In Limaj for instance, the icty Trial Chamber clearly considered the issue of whether what had occurred was an ‘attack’ where a non-state guerrilla force, the kla, was ‘engaged in limited combat with superior, conventional military forces’.73 The Tribunal there went to some lengths to satisfy itself that the type of operation that the kla were conducting could properly be characterised as an ‘attack’.

The same issue confronts the interpretation of the Rome Statute. Under the definition in Article 7 of the icc Statute, an ‘attack’ is defined in Article 7(2) to mean ‘a course of conduct involving the multiple commission of acts referred to in paragraph 1…’. …The question arises as to whether the definition of the term ‘attack’ in this manner leads to a different conclusion than that under customary international law. Put differently, the question is whether the word ‘attack’ in Article 7(1) incorporates any normative content above and beyond a literal reading of the words ‘course of conduct involving the multiple commis-sion of acts referred to in paragraph 1…’. On this question, no settled position has yet been reached at the icc.

On the one hand, icc Pre-Trial Chamber ii in Bemba Gombo has taken a literal view of the definition in Article 7(2), holding that the term means that ‘more than a few isolated incidents or acts as referred to in article 7(1) of the


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74 (icc) Bemba Gombo – Confirmation, above n 24, [80]–[81] (relying on Rodney Dixon, ‘Ar-ticle 7 Crimes Against Humanity: Para 1 “Chapeau”’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, ch Beck etc.: Munich, 2008) 234–235), followed in Prosecutor v Laurent Gbag-bo (Pre-Trial Chamber Confirmation Decision), ICC-02/11-01/11-656-Red (12 June 2014) (‘Laurent Gbagbo – Confirmation’), [209].

75 (icc) Bemba Gombo – Confirmation, above n 24, [75], citing: Akayesu – Trial, above n 24, [581].

76 (icc) Prosecutor v Jean-Pierre Bemba Gombo (Trial Chamber iii Judgment), ICC-01/05-01/08-3343 (21 March 2016) (‘Bemba Gombo – Trial’), [149]–[151].

77 (icc) Prosecutor v Germain Katanga (Trial Chamber Judgment), ICC-01/04-01/07-3436-tENG (7 March 2014) (‘Katanga – Trial’), [1101].

78 (icc) Katanga – Trial, above n 77, [1101].79 Luban, above n 59, 107.80 On property crimes as crimes against humanity, see Chapter 10.81 (icc) Laurent Gbagbo – Confirmation, above n 74, [209].

Statute have occurred’.74 The Pre-Trial Chamber held that ‘[t]he commission of the acts referred to in [A]rticle 7(1) of the Statute constitute the “attack” itself and, beside the commission of the acts, no additional requirement for the ex-istence of an “attack” should be proven.’75 The Trial Chamber in Bemba Gombo appeared to take the same approach.76

The majority in the Katanga Trial Judgment went even further, noting that the term ‘attack’ required ‘campaign, an operation or a series of actions di-rected against a civilian population, viz. a course of conduct and not a single isolated act’77 but that ‘a single event may well constitute an attack within the meaning of article 7(2)(a), provided that the other elements of that article are met’.78 This appears to be in line with Professor Luban’s suggestion that ‘multiple’ could be read to include ‘as few as two’ acts.79 This also appears to imply that the term ‘attack’ itself incorporates very little normative content.

On this view, an attack may indeed be non-violent or non-aggressive. Some of the crimes in Article 7(1), such as persecution, imprisonment, inhumane acts, may be broad enough to encompass non-violent acts. For example, perse-cution may encompass attacks on economic or civil rights, such as the right to employment or to enjoy property.80

By contrast, in the Laurent Gbagbo Confirmation Decision, icc Pre-Trial Chamber i held that the expression ‘course of conduct’ ‘embodies a systemic aspect as it describes a series or overall flow of events as opposed to a mere ag-gregate of random acts’ and that it ‘implies the existence of a certain pattern’.81 The Court continued that while multiple acts are necessary, the occurrence of


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82 (icc) Laurent Gbagbo – Confirmation, above n 74, [210].83 On when definitional clauses may be misleading, see (icc) Prosecutor v Ruto and Sang

(Decision on Defence Applications for Judgments of Acquittal), ICC-01/09-01/11 (5 April 2016) (‘Ruto – Defence Application for Acquittal’), [308] and authorities cited therein (see also [319]–[320]).

84 See above, Section 2.1.85 See Section 3.1.86 See above, Section 2.1.

those acts is not the only evidence that may be relevant to prove its existence; rather that ‘evidence relevant to proving the degree of planning, direction or organisation by a group or organisation is also relevant to assessing the links and commonality of features between individual acts’ for the purpose of deter-mining whether the requisite ‘pattern’ of behaviour is present.82

On balance, the better view is that the term ‘attack’ under Article 7(1) does carry a normative content and should be read in the same or at least a similar manner as that term under customary international law.

First, Article 21 of the icc Statute explicitly provides that recourse may be had ‘where appropriate’ to principles and rules of international law. Particu-larly when read in light of Article 21, the use of the word ‘attack’ and ‘course of conduct’ in Article 7(1) and (2) is ambiguous or obscure within the meaning of Article 32 of the Vienna Convention of the Law on Treaties. As such, recourse may be had to the preparatory work of the treaty and the circumstances of its conclusion.83

Secondly, this conclusion is consistent with the historical background to the inclusion of the definition for ‘attack’. As discussed above84 and in Chapter 8,85 the definition was to ensure a minimum level of content was attributed to the term ‘attack’; it was not intended to set out the only requirements of the term ‘attack’. The term ‘attack’ itself was uncontroversial and had been used in both the icty Statute and the ictr Statute (both dealing with attacks involving state-sponsored armed violence) and referred to by the ilc. Indeed, the icty itself had defined the word ‘attack’ to mean a ‘course of conduct’.86 In such cir-cumstances, there has been no apparent intention to depart from the meaning of the term ‘attack’ under customary international law.

In light of these considerations, the term should not be understood to have been defined exhaustively, but in a manner that includes the ordinary mean-ing of the term ‘attack’ in addition to the words ‘course of conduct’. As noted above, this conclusion is more consistent with the ordinary meaning of the word ‘attack’.


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87 (icty) Blagojević – Trial, above n 37, [100]–[101].88 (ictr) Bagosora and Nsengiyumva v Prosecutor (Appeals Chamber Judgment), Case No

ICTR-98-41-A (14 December 2011) (‘Bagosora – Appeal’), [390].89 (icc) Muthaura – Confirmation, see below n 284.90 (icc) Kenya – Authorisation Decision, above n 24, [1060].91 (icty) Kunarac – Appeal, above n 22, [91] (approving Kunarac – Trial, [421]) (‘primary

object of the attack’), followed in Prosecutor v Martić (Appeals Chamber Judgment), Case

2.3 Particularising the AttackA prosecutor will be required to particularise the relevant ‘attack’ that it is rely-ing upon. That said, the ad hoc Tribunals have allowed prosecutors a wide dis-cretion to determine which attack they choose to rely on. On the one hand, the attack may be a smaller part of a broader conflict. For instance, in Blagojević, the ‘Krivja 95’ operation on Srebrenica was the relevant ‘attack’ relied upon rather than Serb attacks on Bosnians generally.87 On the other hand, the at-tack may be defined in a much broader way. In Bagosora and Nsengiyumva, the Appeal Chamber confirmed that the Trial Chamber did not err in categorising Rwanda as ‘one crime scene’.88 The Chamber rejected the contention that the attacks would need to be widespread or systematic in a specific location inde-pendently of attacks taking place elsewhere.89

icc practice currently suggests further that a Prosecutor will need to iden-tify specifically where the relevant attack occurred. In the Muthaura Confirma-tion Decision, the Pre-Trial Chamber interpreted the Prosecutor’s phrase ‘in or around locations including Nakuru and Naivasha’ as meaning ‘in or around Nakuru’ and ‘in or around Naivasha’ and accordingly only assessed evidence in respect of allegations in those locations.90 Similarly, in Katanga, the relevant attack was one military campaign on the town of Bogoro, Ituri.

Ultimately, provided that it is clear to an accused person what is the particu-lar attack relied upon, it would not appear to matter whether it was an entire attack or only a smaller part of a much broader attack that is relied upon. From a prosecution perspective, however, there are difficult choices that need to be made depending on the facts of the particular case. The smaller the attack, the easier it may be to prove, but the less likely it may be to reach the necessary threshold of a crime against humanity.

3 ‘Directed Against’

3.1 Primary ObjectThe phrase ‘directed against’ has been interpreted to mean that the civilian population must be the ‘primary object’ of the attack91 or the ‘primary rather


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No IT-95-11-A (8 October 2008) (‘Martić – Appeal’), [305], Kordić – Appeal, above n 50, [96]; Prosecutor v Blaškić (Appeals Chamber Judgment), Case No IT-95-14-A (29 July 2004) (‘Blaškić – Appeal’), [106]; (scsl) afrc – Trial, above n 25, [216]; Taylor – Trial, above n 24, [507]; (eccc) Duch – Trial, above n 24, [305], [308]; (eac) Habré – Trial, above n 22, [1363]; (Bangladesh) Chief Prosecutor v Abdul Quader Molla (Judgment) (ICT-2), ict-bd Case No. 02 of 2012 (5 February 2013) (‘Molla – Judgment’), [374].

92 (scsl) cdf – Trial, above n 5, [114] (relying on Kunarac – Appeal, [91]), cited with appar-ent approval in Fofana and Kondewa v Prosecutor (Appeals Chamber Judgment), Case No SCSL-04-A-829 (28 May 2008) (‘cdf – Appeal’), [256], followed in ruf – Trial, above n 40, [80]; (eccc) Case 002/01 – Trial, above n 24, [182]. These standards appear to be the same given that the decisions explaining it rely on the Appeal Chamber decision in Kunarac.

93 (icc) Bemba Gombo – Confirmation, above n 24, [76] (‘primary object of the attack and not just an incidental victim of the attack’), relying on (icty) Kunarac – Appeal, above n 22, [91] and two decision following it (Prosecutor v Milomir Stakić (Trial Chamber Judg-ment), Case No IT-97-24-T (31 July 2003) (‘Stakić – Trial’), [624] and Vasiljević – Trial, above n 22, [33]); Kenya Authorisation Decision, above n 24, [82] (‘primary object of the at-tack in question and cannot merely be an incidental victim’), relying on Bemba Gombo – Confirmation and the cases cited therein.

94 (icty) Kunarac – Appeal, above n 22, [91].95 (icty) Kunarac – Appeal, above n 22, [91], followed in Kordić – Appeal, above n 50, [96]

and Blaškić – Appeal, above n 91, [106], Prosecutor v Galić (Appeals Chamber Judgment), Case No IT-98-29-A (30 November 2006) (‘Galić – Appeal’), [132], Martić – Appeal, above n 91, [305]. See also (eccc) Case 002-02 – Trial, above n 24, [184] (listing these factors as being relevant to whether an attack was directed against a ‘civilian population’); (eac) Habré – Trial, above n 22, [1365].

than an incidental object’ of the attack.92 This interpretation has been applied in the icc.93 Accordingly, this requirement will not be satisfied merely because civilian casualties are an outcome of military operations.94

In assessing whether or not a civilian population was the primary object of the attack, relevant factors will include:95

• the means and methods used;• the status and number of the victims;• the discriminatory nature of the attack;• the nature of crimes committed in its course;• the level of resistance; and• the extent of the attempts to comply with the laws of war.

The icty Appeals Chamber in Kunarac indicated that where a crime against humanity occurs during an armed conflict, the laws of war, with their pro-hibition on targeting civilians, will provide a benchmark for determining


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96 (icty) Kunarac – Appeal, above n 22, [91].97 (icc) Bemba Gombo – Trial, above n 76, [153].98 See discussion in Chapter 6, Section 2.2.4.99 While not specifically stated, see, for example, the conclusions reached in: (icty) Pros-

ecutor v Blagojević and Jokić (Appeals Chamber Judgment), Case No IT-02-60-A (9 May 2007) (‘Blagojević – Appeal’), [36]–[42]; Blaškić – Trial, above n 22, [425]–[428], [573]–[579], [623]–[634] and [676]–[678]; Prosecutor v Kupreškić et al. (Trial Chamber Judg-ment), Case No IT-95-16-T (14 January 2000) (‘Kupreškić – Trial’), [524] and [526]; and Kunarac – Trial, above n 22, [416].

100 (scsl) cdf – Appeal, above n 92, [247].101 (scsl) cdf – Trial, above n 5, [693].102 (scsl) cdf – Appeal, above n 92, [246].

whether an attack will amount to a crime against humanity.96 Accordingly, the icc Trial Chamber in Bemba Gombo noted that acts such as looting as-sets from civilians may be taken into account in considering whether an attack was directed against a civilian population.97 In that case, it was held that the attack was directed against the civilian population inter alia on the basis that the civilians were indiscriminately targeted and that such targeting had often occurred after the opposing forces had left the relevant territory.98

3.2 Presence of Some Military Objective or Legitimate ‘ultimate objective’

An attack may still be ‘directed against’ a civilian population even if the ‘attack’ had some legitimate military objective if, for example, civilians and their build-ings are also targeted.99 For example, the scsl Appeals Chamber in Fofana and Kondewa (the cdf case) found that an attack could still be directed against a civilian population where the ‘ultimate objective’ of the fighting force was legitimate and/or aimed at aggressors.100 The Appeals Chamber overturned the finding of the Trial Chamber that the attack was not ‘directed against’ a civilian population because: first, because the attack was primarily concerned with the rebels and juntas that controlled the towns, villages and communities throughout Sierra Leone; and secondly, that the forces ‘fought for the restora-tion of democracy’.101

In the course of its reasoning, the Appeals Chamber noted a submission by the prosecution that crimes against humanity prohibit attacks directed against civilians regardless of their purpose.102 While the Chamber made no comment on this submission, that statement must be correct.

The scsl has said that defences relevant to the laws of war relating to the le-gitimacy and proportionality of an armed attack against a civilian population do not apply as such to crimes against humanity, which can take place in times


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103 (scsl) afrc – Rule 98 Decision, above n 50, [66].104 (scsl) cdf – Appeal, above n 92, [246].105 Discussed in detail in Chapter 6, Section 2.2.3.106 (Germany) Oberlandesgericht Stuttgart, Judgment, 28 September 2015, 3StE 6/10.107 See discussion in Chapter 7, Section 3.3.2.108 (icty) Tadić – Trial, above n 5, [625], followed in Kunarac – Trial, above n 22, [423] (cit-

ing Tadić – Trial), [635]; unwcc, History of the United Nations War Crimes Commission (1948) 193 and Attorney General of the State of Israel v Yehezkel Ben Alish Enigster, District Court of Tel-Aviv, 4 Jan 1952 (‘Enigster – Trial’); (scsl) cdf – Trial, above n 5, [118] (citing Kunarac – Trial and Tadić – Trial); (eccc) Duch – Trial, above n 24, [312]; Case 002/01 – Trial, above n 24, [187].

of peace or armed conflict.103 That said, such matters will likely be of factual relevance to whether an attack was ‘directed against’ a civilian population. As will be, for instance, other aspects of the chapeau such as the consistency or inconsistency of the actions with a particular policy or plan104 or the propor-tion the victims that are ‘civilian’ according to international humanitarian law.

One controversial recent example is found in the decision of the icc Trial Chamber’s decision in Katanga.105 The majority judgment (Judge Van den Wyngaert dissenting) found an attack to be directed against a civilian popula-tion by combatants of a conglomerate of military forces in the drc. The ma-jority found that an attack was directed against the civilian population despite there being combatants from opposing groups in the village attacked and only some 33 identified civilian killings in a village of 800 civilians, with combat-ants killings far exceeding the number of civilians killed. The decision may be contrasted with the decision of the Stuttgart Higher Regional Court decision in the fdlr Case.106 There, the Court dismissed a charge of crimes against hu-manity said to be perpetrated by the Forces Démocratiques de Libération du Rwanda (fdlr) in the drc in part on the basis that it could not be said that the primary object of the attack was the civilian population as opposed to the combatants in the various villages.107

4 ‘Any Civilian’

4.1 ‘Any’ Civilian – The Distinction with War CrimesThe term ‘any civilian population’ can be traced to the Nuremberg Precedent and the fact that crimes against humanity, unlike war crimes in international armed conflict, can be committed against persons regardless of their nationali-ty. The fact that an attack may be directed at ‘any’ civilian population means the victim and the accused need not be linked to opposite sides of the conflict.108


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109 (icc) Prosecutor v Katanga and Chui (Decision on the Confirmation of Charges), ICC-01/04-01/07-717 (13 October 2008) (‘Katanga – Confirmation’), [399], fn 511, citing Roy Lee (Ed), The International Criminal Court: Elements of Crimes and Rules of Evidence (Transna-tional Publishers: New York, 2001) 78 (‘Most delegations quickly agreed that this was too complex a subject and evolving area in the law, better left to resolution in case law.’).

110 (icty) Tadić – Trial, above n 5, [638] (citing Article 50(3), Additional Protocol i, (France) Barbie case; Final Report of the Commission of Experts Established Pursuant to Secu-rity Council Resolution 780 (1992), un Doc. S/1994/674, [77]–[78]); Prosecutor v Drag-omir Milošević (Trial Chamber Judgment), Case No IT-98-29/1-T (12 December 2007) (‘Milošević, D – Trial’), [922] (citing Article 50(1), Additional Protocol 1, Kordić – Appeal, above n 50, [50] and Galić – Appeal, above n 95, [144]), approved in Prosecutor v Drag-omir Milošević (Appeals Chamber Judgment), Case No IT-98-29/1-A (12 November 2009) (‘Milošević, D – Appeal’), [50]–[51]; Limaj – Trial, above n 22, [186]; Prosecutor v Jelisić (Trial Chamber Judgment), Case No IT-95-10-T (14 December 1999) (‘Jelisić – Trial’), [54]; (ictr) Kayishema – Trial, above n 56, [128] (citing Tadić – Trial); (scsl) Prosecutor v Nor-man, Fofana and Kondewa (Decision on Motions for Judgment of Acquittal Pursuant to Rule 98) Case No SCSL-2004-04-14-T473 (21 October 2005) (‘cdf – Rule 98 Decision’), [59] (citing Tadić – Trial and Kayishema – Trial), followed in cdf – Trial, above n 5, [117]; ruf – Trial, above n 40, [83]; (eccc) Duch – Trial, above n 24, [305]; Case 002/01 – Trial, above n 24, [183]; (eac) Habré – Trial, above n 22, [1365]; (Bangladesh) Molla – Judgment, above n 91, [292]. See also (iht) Anfal – Trial, above n 50, 519 (requiring that there be a ‘majority’ of civilians).

111 (icty) Blaškić – Appeal, above n 91, [115]; Kordić – Appeal, above n 50, [50], [97], followed in Galić – Appeal, above n 95, [136]–[137], [144]; Martić – Appeal, above n 91, [307] (follow-ing Blaškić – Appeal, Kordić – Appeal and Galić – Appeal); (eccc) Duch – Trial, above n 24, [305]–[306]; Case 002/01 – Trial, above n 24, [183] (also noting that the factors listed above under ‘directed against’ will be relevant); (eac) Habré – Trial, above n 22, [1365].

Insofar as the icc is concerned, the drafters of the icc Statute intentionally left ‘any civilian population’ undefined in order that the term may be left to the case-law.109

4.2 ‘Predominantly’ CivilianThe phrase ‘any civilian’ has been interpreted to mean that the targeted popu-lation must be ‘predominantly civilian’.110 The presence of some soldiers in the population will not necessarily alter the character of the population; it will depend on the number of soldiers and the purpose of their presence.111 The Appeal Chamber in Blaškić relied on the icrc commentary for this proposi-tion, citing the following section:

in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian popu-lation, for example soldiers on leave visiting their families. However,


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112 (icty) Blaškić – Appeal, above n 91, [115], citing icrc Commentary (Additional Proto-cols), [1922], followed in Galić – Appeal, above n 95, [137], (eccc) Duch – Trial, above n 24, [306].

113 (icty) Brđanin – Trial, above n 22, [134], citing Blaškić – Appeal, above n 91, [115].114 (icty) Blagojević – Trial, above n 37, [552], affirmed on appeal: see Blagojević – Appeal,

above n 99, [36]–[42].115 (icty) Perišić – Trial, above n 22, [735].116 Chapter 6, Section 2.2.3.

provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of the population.112

The presence of soldiers in ‘fairly large numbers’, however, may deprive the population of its civilian character.113 The precise number or proportion at which this will occur will depend on the circumstances of a given case. In the case of Srebrenica, it was held that 1,000–4,000 soldiers in a population of 40,000 (that is, making up as much as 10% of the population) did not deprive the group of being characterised as predominantly civilian.114

Where applicable, the un declaration of safe zones is likely to have a role to play in this question. In Perišić, the Trial Chamber, for instance, appeared to find that the population of Srebrenica was predominantly civilian solely on the basis that it was an enclave established by the un specifically to protect civilians.115 Although it is unlikely that the un declaration of a safe zone will per se result in the population being ‘predominantly civilian’, such a declara-tion would at least be of evidentiary relevance.

More controversially, the majority of the icc Trial Chamber in Katanga appeared satisfied that an attack on a village constituted an attack notwith-standing that ‘a minimum’ of 60 civilians were killed out of 800 present and despite as many as twice that number of soldiers being killed (see discussion in Chapter 6116). This decision included a very critical dissenting judgment. Ultimately, the decision is not likely to be a useful precedent on this point, as a proper understanding of the decision appears to be that – whether rightly or wrongly – the majority proceeded on the basis that the number of civilians killed was in fact much more than 60.

4.3 Any ‘civilian’What is meant by the term ‘civilian’ and whether the actual victim of a crime against humanity must be a ‘civilian’ has led to some confusion in the ad hoc Tribunals. The confusion arises from the difference between the concept of a civilian for the purposes of a crime against humanity and the concept of a


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117 As understood by the Regulations annexed to the Convention respecting the Laws and Customs of War on Land, done at The Hague, The Netherlands, opened for signature 8 October 1907, 187 Consolidated Treaty Series 227 (entered into force on 26 January 1910), subsequently supplemented by the Geneva Convention relative to the Treatment of Prison-ers of War, done in Geneva, Switzerland, opened for signature 12 August 1949, 75 unts 135, art 4 (entered into force 21 October 1950) and the Protocol Additional to the Geneva Con-ventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol i), done in Geneva, Switzerland, opened for signature 8 June 1977, 1125 unts 3, Arts 43–44 (entered into force 7 December 1978).

118 (icty) Tadić – Trial, above n 5, [639], followed in Limaj – Trial, above n 22, [223] (stating that ‘The Chamber acknowledges, however, that the definition of “civilian” employed in the laws of war cannot be imported wholesale into discussion of crimes against human-ity’ and citing Tadić – Trial).

civilian under the laws of war. In times of armed conflict, the laws of war have developed a concept of civilian status. They essentially define ‘civilian’ nega-tively, such that all who are not combatants are considered to be civilians, but a combatant cannot be a ‘civilian’.117

The difficulty with applying the concept of civilian, as understood by the laws of war, to crimes against humanity is that such crimes may take place in times of peace where the notion of ‘combatants’ versus ‘civilians’ has no legal meaning. Even in times of armed conflict, crimes against humanity are intended to afford protection to victims who are being persecuted by perpe-trators who may, so far as the laws of war are concerned, be on the same side of the conflict. The laws of war are simply inapposite in such a case. This was recognised by the Trial Chamber in Tadić which determined that:

[The] definition of civilians contained in Common Article 3 is not im-mediately applicable to crimes against humanity because it is a part of the laws or customs or war and can only be applied by analogy. The same applies to the definition contained in Protocol i and the Commen-tary, Geneva Convention iv, on the treatment of civilians, both of which advocate a broad interpretation of the term ‘civilian’.118

Similarly, the Appeals Chamber in Erdemović held that this factor goes to the very raison d’être of crimes against humanity:

[R]ules proscribing crimes against humanity address the perpetrator’s conduct not only towards the immediate victim but also towards the whole of humankind […] It is therefore the concept of humanity as vic-tim which essentially characterises crimes against humanity […] Because


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119 (icty) Prosecutor v Erdemović (Appeals Chamber Judgment), Case No IT-96-22-A (7 Octo-ber 1997), Separate Opinion of Judge Kirk McDonald and Vohrah, [21].

120 See Chapter 2.121 Chapter 2, Section 4.1.

of their heinousness and magnitude, they constitute an egregious attack on human dignity, on the very notion of humaneness. They consequently affect, or should affect, each and every member of mankind, whatever his or her nationality, ethnic group and location […] This aspect of crimes against humanity as injuring a broader interest than that of the immedi-ate victim […] is shown by the intrinsic elements of the offence…119

Two interconnected questions arise:

1. Is the term ‘civilian’ in ‘any civilian population’ to be defined in accor-dance with ihl?

2. Nevertheless, can non-‘civilians’, such as combatants placed hors de com-bat or members of armed resistance groups, be the victims of a crime against humanity?

These questions have been answered differently throughout the history of crimes against humanity.

4.3.1 Early HistoryArticle 6(c) of the London Charter provided for two types of crimes against humanity. The first type required acts such as murder, extermination, enslave-ment, deportation, and other inhumane acts ‘committed against any civil-ian population’. The second concerned ‘persecutions’ which did not have to be committed against any civilian population. The main role of the term ‘any civilian population’, as understood at Nuremberg, was to include all persons who were being mistreated and who were not linked to an opposing belliger-ent. The focus was to capture the atrocities of the Nazis irrespective of the status or nationality of the victim. This was its ‘raison d’être’ at the time.120 This was made clear in Article 6(c) of the London Charter where a person could be a victim of persecution as a crime against humanity without having to be a member of a ‘civilian population’.

In respect of acts alleged to be war crimes, the Indictment at Nuremberg also charged most of the defendants with crimes against humanity.121 The In-dictment grounded the charges for crimes against humanity in ‘the methods


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122 Being grounded not just in international conventions but also in broad notions of natural law or general principles of criminal law or, as stated by the French Prosecutor de Men-thon at Nuremberg, ‘the penal laws of all civilised States’: see Chapter 2, Section 4.2.

123 The Tribunal preceded upon the basis of a wide overlap between war crimes and crimes against humanity: see Chapter 2, Section 3.

124 (Nuremberg) United States v Wilhelm von Leeb et al., Judgment of 27 October 1948, Mili-tary Tribunal v, Law Reports of the Trials of War Criminals, vol xi (‘The High Command Case’), 520, 596–599, 675, 679, 683. See also United States v Ernst Von Weizsaecker et al., Judgment of 11–13 April 1949, Military Tribunal iv, Law Reports of the Trials of War Crimi-nals, vol xiv (‘The Ministries Case’) 541–546.

125 (Nuremberg) Supreme Court in the British Occupied Zone, OGHSt 1, 217–229; Supreme Court in the British Occupied Zone, OGHSt 2, 231–246; Supreme Court in the British Oc-cupied Zone, OGHSt 1, 45–49. Neddermeier case, 10 March 1949, British Court of Appeal established under Control Council Law 10 (text in German) – British Zone of Control, Control Commission Courts, Court of Appeals Report, Criminal Cases, 1949, no 1, 58–60. See also discussion in See discussion in Killean et al., ‘Soldiers as victims at the eccc: exploring the concept of “civilian” in crimes against humanity’ (2017) Leiden Journal of International Law 685.

and crimes [which] constituted violations of international conventions, of internal penal laws, of the general principles of criminal law as derived from the criminal law of all civilised nations’.122 As a result, the consideration of the charges for crimes against humanity was allowed to overlap with the charges for war crimes, irrespective of the status of the victims.

The Nuremberg Tribunal convicted all but two of the defendants of both war crimes and crimes against humanity as charged and without distinc-tion between the two sets of charges. Whilst it did not state so expressly, the Tribunal in its judgment appeared to treat conduct towards a non-German national, including members of the armed forces, as both a war crime and a crime against humanity. This was not limited to the ‘persecution’ type offences (i.e. which did not need to be committed against any civilian population); rath-er, the Tribunal appeared to consider that the ‘murder’ type offences could also be committed against members of the military. This suggests a broad interpre-tation was given to the notion of ‘committed against any civilian population’ under Article 6(c).

This position is consistent with other early authorities. It is also supported by the Tokyo Charter (which deleted the words ‘civilian population’), the Tokyo Tribunal,123 other post World War Two cases under Council Control Law 10, such as the High Command Case before the us Military Tribunal,124 and cases of the Supreme Court in the British Occupied zone125 which held that mem-bers of the military could be victims of a crime against humanity. Similarly,


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126 (France) Crim. 27 novembre 1992, Bull. No.394, Cour de cassation (chambre criminelle), M. Touvier (‘La Cour ne s’attachera pas, dans les développements qui suivent a la question de résistants, puisque, dans l’affaire de Rillieux, comme il a été mentionne supra toutes les victimes (six, en tout cas, sur les sept) étaient juives, qu’elles ont été fusillées a ce titre, et que si certaines d’entre elles appartenaient a la Résistance, les auteurs du massacre l’ignoraient selon toute apparence’), translated and reprinted in 100 ilr 338, 352.

127 (France) Prosecutor v Klaus Barbie, Cour de cassation (chambre criminelle), 20 decembre 1985, Bull. No. 407 (‘Barbie’) (‘mais attendu qu’en prononçant comme elle l’a fait, en ex-cluant la qualification de crimes contre l’humanité pour l’ensemble des actes imputes a l’inculpé qui auraient été commis contre des personnes appartenant ou pouvant apparte-nir a la Résistance, alors que l’arrêt constate que les crimes “atroces” dont ces personnes ont été systématiquement ou collectivement les victimes étaient présentes, par ceux au nom de que ni les mobiles animant ces victimes, ni leur éventuelle qualité de combat-tants, ne sauraient exclure l’existence, a la charge de l’inculpe, de l’élément intentionnel constitutive des infractions poursuivies, la Chambre d’accusation a méconnu le sens et la portée des textes vises aux moyens’), translated in Federation Nationale des Désportés et Internés Résistants et Patriotes and Others v Barbie (1988) 78 ilr 124, 137, 139–140.

128 (Estonia) See Prosecutor v Karl-Leonhard Paulov (Judgment), Supreme Court Criminal Chamber, Case No. 3-1-1-31-00 (21 March 2000). This case is discussed in Chapter 7, Section 5.2.2.

in France, the Cour de Cassation in Barbie – followed in Touvier126 – held that members of the French Resistance, who were ‘combatants’ and ‘dangerous adversaries’ opposing the Nazis, may be victims of crimes against human-ity whatever the form of their opposition.127 Finally, in Estonia, the Supreme Court in Paulov held that the ‘forest brothers’ resistance fighters to the Soviet regime have been held to be victims of crimes against humanity despite their resistance and the fact that they were armed.128

4.3.2 Key Controversy – Is the Term ‘civilian’ in ‘any civilian population’ to be Defined in Accordance with ihl?

Unlike Article 6(c) of the London Charter, the relevant texts of the icty, ictr and the icc Statutes require all crimes against humanity (i.e. including perse-cution) to be directed against any civilian population. Hence, the Tribunals have had to consider the ‘civilian’ requirement for all crimes against humanity. At least initially, the ad hoc Tribunals were split on the question of whether the rules of ihl had any relevance to the issue of a person being a ‘civilian’ in the case of a prosecution for crimes against humanity.

Early in the history of the ad hoc Tribunals, a number of Chambers adopted a broad approach to the definition of ‘civilian’. The icty Trial Chamber in Blaškić held that ‘[t]he specific situation of the victim at the moment the crimes were committed, rather than his status, must be taken into account in determining


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129 (icty) Blaškić – Trial, above n 22, [214]. See also Prosecutor v Stanislav Galić (Trial Cham-ber Judgment), Case No IT-98-29-T (5 December 2003) (‘Galić – Trial’), [143] (‘[t]he defini-tion of a “civilian” is expansive and includes individuals who at one time performed acts of resistance, as well as persons hors de combat when the crime was perpetrated’).

130 (spet) Los Palos – Judgment, above n 22, [638], citing Blaškić – Trial, above n 22, [214].131 (Bangladesh) Molla – Judgment, above n 91, [290].132 (ictr) Akayesu – Trial, above n 24, [582], followed in Kajelijeli – Trial, above n 56, [873]–

[874], Rutaganda – Trial, above n 54, [71] (‘defined as people who were not taking any active part in the hostilities’, citing Akayesu – Trial), Musema – Trial, above n 54, (‘defined as people who were not taking any active part in the hostilities’, citing Akayesu – Trial), and Prosecutor v Bisengimana (Trial Chamber Judgment), Case No ICTR-00-60-T (13 April 2006) (‘Bisengimana – Trial’), [48] (citing Akayesu – Trial in full).

133 (icty) Kupreškić – Trial, above n 99, [548]–[549] and Tadić – Trial, above n 5, [636]–[643] (where it was said that those actively involved in a resistance movement can qualify as victims of crimes against humanity). Mettraux criticises this statement, saying a per-son killed while undertaking some act of ‘resistance’ is not a civilian: Mettraux, above n 58, 169.

134 (icty) Blaškić – Trial, above n 22, [214]; and Kordić and Čerkez (Trial Chamber Judgment), Case No IT-95-14/2-T (26 February 2001) (‘Kordić – Trial’), [180].

135 Cassese, above n 2, 91, 102.136 Gerhard Werle, Principles of International Criminal Law (tmc Asser Press: The Hague,

2005) 222.

his standing as a civilian’.129 This approach was followed in the spet130 and in Bangladesh.131 Similarly, the ictr Trial Chamber in Akayesu held that ‘[m]embers of the civilian population are people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause.’132 Some cases have also followed Barbie, saying resistance fighters and others bearing arms, who are not strictly members of the armed forces, can be part of the ‘civilian population’, either generally,133 or because they have laid down their arms.134

This view has support amongst many scholars. Cassese has written that un-der customary international law a victim of a crime against humanity does not have to be a ‘civilian’, as understood by the laws of war.135 Provided the victim’s ‘humanity’ is being attacked at the time of the crimes he or she is a ‘civilian’. Similarly, Werle has stated: ‘Most important in demonstrating membership in a civilian population is the victims’ need for protection, which follows from their defencelessness vis-à-vis state, military or other organised force’.136

This view was also supported by the lack of any direct evidence of an in-tention by the Security Council to narrow the crime’s reach in 1993 or 1994 compared with the position at Nuremberg. The Commission of Experts’ Report


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137 Experts’ Report (Yugoslavia), [78].138 Experts’ Report (Yugoslavia), [78].139 (icty) Blaškić – Appeal, above n 91, [116].140 (icty) Blaškić – Appeal, above n 91, [110], citing Report of the Secretary General, un Doc.

S/25704 (3 May 1993), [37].141 (icty) Blaškić – Appeal, above n 91, [113].142 (icty) Kordić – Appeal, above n 50, [97].143 (icty) Kordić – Appeal, above n 50, [458]. The Appeals Chamber also found that ‘mem-

bers of the armed forces residing in their homes in the area of the conflict, as well as members of the to residing in their homes, remain combatants whether or not they are in combat, or for the time being armed’: [51].

144 (icty) Kordić – Appeal, above n 50, [591]–[640].145 (icty) Kordić – Appeal, above n 50, [421]–[422].

(Yugoslavia) stated that no quick conclusion could be reached about whether persons who once bore arms cannot be part of the ‘civilian population’.137 It also stated that those who use arms to defend themselves or their community, such as a ‘sole policeman or local defence guard’, may still be victims of a crime against humanity.138

Despite this, the broad approach was rejected by the icty Appeals Chamber in Blaškić on 29 July 2004, which found that it was the status of the victims as defined by ihl that was significant.139 The Chamber cited the Report of the Secretary General to the effect that the Geneva Conventions ‘constitute rules of international humanitarian law and provide the core of the customary law applicable in international armed conflicts’ and found that, since the defini-tions of ‘civilian’ contained therein also reflect customary international law, they ‘are relevant’ in the context of crimes against humanity.140 Accordingly, the Chamber concluded that members of the armed forces (as well as mem-bers of organised resistance groups) cannot claim civilian status.141

The matter was further confused by the Appeals Chamber in Kordić in De-cember of the same year. On the one hand, the Chamber held, consistently with the Blaškić Appeals Chamber, that the term ‘civilian’ in the context of Article 5 must be defined in accordance with Article 50(1) of Additional Protocol i142 and that ‘the two victims are to be considered as “combatants” and cannot claim the status of civilians’.143 It only applied the crime of impris-onment to those who proved to be civilians under the laws of war.144 On the other hand, the Chamber departed from the Blaškić Appeals Chamber in stat-ing that ‘ABiH soldiers [who] were killed after their arrest, after being placed “hors de combat” were without doubt […] “civilians” in the sense of Article 5 of the Statute’.145


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146 See, for instance: (icty) Galić – Appeal, above n 95, [144]; (scsl) ruf – Trial, above n 40, [219].

147 (scsl) afrc – Rule 98 Decision, above n 50, [42(c)] (citing: Prosecutor v Akayesu (Ap-peals Chamber Judgment), Case No ICTR-96-4-A (1 June 2001) (‘Akayesu – Appeal’), [582]; Tadić – Appeal, above n 24, [637]–[638]); cdf – Rule 98 Decision, above n 110, [58] (specifi-cally adopting ‘the broader interpretation as further described in the icty Trial Chamber in the Blaškić case’ at [214]). See also (icty) Limaj – Trial, above n 22, [186] (while reciting the principles in the Blaškić Appeals Decision, the Chamber concluded: ‘As a result, the definition of a “civilian” is expansive and includes individuals who at one time performed acts of resistance, as well as persons who were hors de combat when the crime was com-mitted’); (ictr) Bisengimana – Trial, above n 132, [48] (following Akayesu – Trial rather than Blaškić – Appeal).

148 (icty) Martić – Appeal, above n 91, [293]–[296].149 (icty) Martić – Appeal, above n 91, [297] (citing Tadić – Appeal, above n 24, [282]–[283],

[285] and Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1949, icj Reports 1950, 8, for the proposition that words should be given their natural and ordinary meaning the context).

The position in Blaškić was followed by some tribunals (including by the icty Appeals Chamber in Galić)146 but was not followed by others.147

4.3.3 Current Resolution of the Ad Hoc Tribunals – Distinction between the Attack and Its Victims

Ultimately, much of the controversy surrounding the definition of ‘civilian’ was resolved by the icty Appeals Chamber in Martić in its decision of 8 October 2008. As discussed below, two key propositions emerged. A distinc-tion was drawn between the question of whether the term ‘civilian’ in ‘any civilian population’ should be defined in accordance with ihl and the sepa-rate question of whether a combatant under ihl can nevertheless be a victim of a crime against humanity.

(a) The Term ‘civilian’ for the Purposes of the Relevant AttackFirst, the Appeals Chamber affirmed the Blaškić Appeals Chamber decision that, for the purposes of determining whether there is an attack directed against a civilian population, the term ‘civilian’ was to be interpreted in line with international humanitarian law.148 The Chamber held that provisions of the Statute are to be interpreted according to the ‘natural and ordinary mean-ing in the context in which they occur’149 and that the definition of ‘civilian’ in Additional Protocol i accords with the ordinary meaning of the term ‘civilian’


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150 (icty) Martić – Appeal, above n 91, [297].151 (icty) Martić – Appeal, above n 91, [300].152 (icty) Martić – Appeal, above n 91, [300] (citing icrc Commentary on Additional Proto-

cols, [4761]–[4789]).153 (icty) Martić – Appeal, above n 91, [278], [301] (citing (Nuremberg) Supreme Court in

the British Occupied Zone, OGHSt 1, 217 (228); Supreme Court in the British Occupied Zone, OGHSt 1, 45 (47); Supreme Court in the British Occupied Zone, OGHSt 2, 231, 241–242).

154 (icty) Martić – Appeal, above n 91, [278], [301] (citing (France) Barbie, above n 127, 140; and Touvier, above n 126, 352).

155 (icty) Martić – Appeal, above n 91, [278], [301] (citing Herman von Hebel and Daryl Rob-inson, ‘Crimes within the Jurisdiction of the Court’, in International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (Kluwer Law International: The Hague, 1999) 79, 97, fn 54).

156 (icty) Martić – Appeal, above n 91, [298] (citing as an example (icty) Galić – Trial, above n 129, [48]).

(in English) and ‘civil’ (in French), as persons who are not members of the armed forces.150

The Chamber stated that the Prosecution’s contention that the definition did not apply to non-international armed conflicts was also unpersuasive as Article 13 of Additional Protocol ii refers to the protection of civilians and the civilian population.151 The Chamber reasoned that, according to the icrc Com-mentary, the provision corresponds with Article 50 of Additional Protocol i and therefore civilians must be defined as those persons who do not belong to the armed forces, militias or volunteer corps forming part of such armed forces, organised resistance groups or a levee on masse.152 The Chamber also considered that this conclusion was supported by the post-World-War ii juris-prudence that has held that victims of crimes against humanity could include members of the armed forces153 and resistance fighters,154 and that negotia-tions for the icc Statute demonstrate several delegations argued that the term ‘civilian population’ in the context of crimes against humanity should not be interpreted as strictly limited to civilians.155

The Appeals Chamber held that the ‘jurisprudence does not redefine the mean-ing of the term “civilian”, but merely refers to the rule laid down in Article 51(3) of Additional Protocol i, according to which civilians enjoy “general protection against dangers arising from military operations” unless and for such time as they take a direct part in hostilities.’156 The Chamber also held that the defini-tional consistency between crimes against humanity and war crimes ‘accords with the historical development of crimes against humanity, intended as they


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157 (icty) Martić – Appeal, above n 91, [299] (footnotes omitted).158 (icty) Milošević, D – Appeal, above n 110, [50]; Prosecutor v Mrkšić (Appeals Chamber Judg-

ment), Case No IT-95-13/1-A (5 May 2009) (‘Mrkšić – Appeal’), [35]; Prosecutor v Stanišić & Simatović (Trial Chamber Judgment), Case No IT-03-69 (30 May 2013) (‘Simatović – Trial’), [965].

159 (eccc) Duch – Trial, above n 24, [305], following (icty) Mrkšić – Appeal, above n 158, and Blaškić – Appeal, above n 91.

160 (scsl) ruf – Trial, above n 40, [82] (as discussed further below, the Tribunal held ‘person who is hors de combat does not prima facie fall within this definition’, citing Blaškić – Appeal, above n 91).

161 (icty) Martić – Appeal, above n 91, [305], [307].162 (icty) Martić – Appeal, above n 91, [307], [311], [313]–[314].163 Cassese, above n 2, 91, 102.164 (icty) Martić – Appeal, above n 91, [306] (citing: Report of the Secretary-General Pursu-

ant to Paragraph 2 of Security Council Resolution 808 (1993), un Doc. S/25704 (3 May 1993), fn 9; un sc Res 827 (1993), un Doc. S/RES/827, 3297th mtg (25 May 1993) (approving the Report of the Secretary-General); Final Report of the Commission of Experts Established Pursuant to the Security Council Resolution 780, un scor, 49th Session, Annex un Doc. S/1994/674, [77]–[80], noting that Article 4 of Additional Protocol ii addressed ‘funda-mental guarantees’ and included in the protected group ‘all persons who do not take a direct part or who have ceased to take part in hostilities’).

were to fill the gap left by the provisions pertaining to crimes against peace and war crimes in the [Nuremberg Charter].’157

This approach of the Martić Appeals Chamber – i.e. that the term ‘civilian’ is to be interpreted in accordance with international humanitarian law – has since been followed by the icty Tribunals158 and the eccc,159 although the position at the scsl has not been entirely clear.160

(b) No Requirement that Victims Need be ‘civilians’Secondly, the Appeals Chamber in Martić confirmed that, while the term ‘any civilian’ should be interpreted in line with ihl for the purposes of assessing whether there is an ‘attack directed against any civilian population’, this ‘does not necessarily require that the criminal acts within this attack must be com-mitted against civilians only.’161 Victims may be persons hors de combat even if they are not ‘civilians’ for the purposes of the chapeau elements of crimes against humanity.162 Cassese argues victims may also include enemy combat-ants (although not under the icty, ictr and the icc).163

In supporting of its position, the Appeals Chamber cited a number of sourc-es demonstrating that the drafters of the icty Statute did not intend to exclude combatants who are placed hors de combat from the purview of Article 5164 as


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165 (icty) Martić – Appeal, above n 91, [308], citing: Prosecutor v Radislav Krstić (Trial Cham-ber Judgment), Case No IT-98-33-T (2 August 2001) (‘Krstić – Trial’), [34], [37], [41]–[47], [53]–[67], [80]–[84], [499], [503]–[505], [547] and [549] (requiring a distinction between the categories of victims between those hors de combat and those who were civilian for the purposes of the crime of extermination. In Prosecutor v Krstić (Appeals Chamber Judgment), Case No IT-98-33-A (19 April 2004) (‘Krstić – Appeal’), [269], the Appeals Cham-ber may arguably have endorsed this point by entering a conviction for extermination – albeit without discussion of this point.). Similar analyses can be found: Blagojević – Trial, above n 37, [114]–[115], [213], [218]–[221], [567]–[569], [577], [619], [732]–[733], [736], [738]; Blagojević – Appeal, above n 99, [59], [101]; Brđanin – Trial, above n 22, [436], [439], [449], [465], [476] (Extermination was found in the context of camps and detention fa-cilities, no distinction was drawn between the types of victims except to say they were ‘non-combatants’. From the context, this arguably includes persons hors de combat.)

166 (icty) Martić – Appeal, above n 91, [307] (citing: Blaškić – Appeal, above n 91, [114]–[115]; Kordić – Appeal, above n 50, [50], [97]; Galić – Appeal, above n 95, [136]–[137], [144]).

167 (icty) Martić – Appeal, above n 91, [309].168 (Nuremberg) The High Command Case, above n 124, 520, 596-599, 675, 679, 683; The Min-

istries Case, above n 124, 541–546.169 (Nuremberg) Supreme Court in the British Occupied Zone, OGHSt 1, 217–229; Supreme

Court in the British Occupied Zone, OGHSt 2, 231–246; Supreme Court in the British Occu-pied Zone, OGHSt 1, 45–49.

170 (France) Barbie above n 127, 140; Touvier, above n 126, 352.171 In the negotiations of the Genocide Convention, proposals to refer to the Nuremberg

Judgment in the preamble to the Convention were rejected in part because crimes against humanity had been interpreted restrictively by the International Military Tribu-nal: see generally un gaor 6th Committee, 3rd Session, 109th mtg, un Doc. A/C.6/SR.109 (17 November 1948), in particular 497–498; un Doc. A/C.6/SR.110 in particular 502 et seq. See also ilc Yearbook [1996] vol 2, Part ii, 47–50 and Article 21 of the 1991 version of the Draft Code of Crimes against Peace and the Security of Mankind and its Commentary, ilc Yearbook [1991] vol 2, Part ii, 96–97, 103–104.

well as statements implicitly supporting this position.165 The Chamber found that statements to the contrary were not persuasive as they were made in the context of assessing whether a population was predominantly civilian for the purposes of the chapeau rather than whether non-civilians could be victims.166

Finally, the Appeals Chamber held that this approach reflected customary international law,167 citing the High Command Case before the us Military Tribunal,168 cases of the Supreme Court in the British Occupied zone,169 the French cases of Barbie and Touvier,170 as well as discussion at the drafting of the Genocide Convention.171 Particularly, the Chamber drew attention to the post-ww2 cases that distinguished between crimes against humanity and or-dinary domestic crimes, not on the basis of the status of the victims, but on


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172 (icty) Martić – Appeal, above n 91, [310] (citing: (Nuremberg) United States v Altstötter et al., reprinted in 3 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10 (1951) (‘The Justice Case’), 973: ‘It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual. It is significant that the enactment employs the words “against any civilian population” instead of “against any civilian individual”. The provision is directed against offenses (sic) and inhumane acts and persecutions on political, racial, or religious grounds systematically organized and con-ducted by or with the approval of government.’ (emphasis added); Trial of Major War Criminals before the International Military Tribunal, Nuremberg, Judgment, 14 Novem-ber 1945 to 1 October 1946 (Buffalo, New York: William S. Hein & Co, Inc, 1995), vol 1, 982; United States v Friedrich Flick et al., Judgment of 22 December 1947, Military Tribunal iv, Law Reports of War Criminals, vol ix, 2).

173 See discussion in Chapter 7, Section 5.2.2.174 (icty) Mrkšić – Appeal, above n 158, [28]–[29]; Milošević, D – Appeal, above n 110, [58];

(scsl) Taylor – Trial, above n 24, [507] (citing Mrkšić – Appeal); (eccc) Duch – Trial, above n 24, [305]; Case 002/01 – Trial, above n 24, [187]. See also (iht) Summary of the verdict of 1991 case, Case No 1/T2/2007, 12 February 2007, Hamadi Al-saedi, Case Western Reserve University School of Law (Spring 2010), accessible online at <http://www.trial-ch.org/uploads/tx_wetwdb/Hmoud_-_1991_case.pdf> (‘1991 Incidents Case – Summary’), 118 (see discussion in Chapter 5, Section 3.5.3(d)).

175 (ictr) Bagosora – Trial, above n 22, [2175] (‘Considering their status as United Nations peacekeepers and that they were disarmed, the Chamber is satisfied that the victims could not be considered as combatants’, citing the Martić – Appeal, above n 91, [302], [313]).

176 (scsl) ruf – Trial, above n 40, [82].

the element of scale or organisation involved in crimes against humanity.172 Presumably, the Estonian case of Paulov may be added to this list.173

This approach has since been followed.174While it may be arguable that the ictr Trial Chamber in Bagosora suggest-

ed that un peacekeepers rendered hors de combat may be considered ‘civilian’ for the purposes of the chapeau, the better view is that the Chamber intended only that they could be victims in the sense held by the icty Appeals Chamber in Martić.175

The one notable deviation from this approach has been the scsl Trial Chamber in the ruf Case. While the Trial Chamber seems to have intended to follow the Martić Appeal decision, the chamber appeared to find that a person hors de combat would only prima facie not constitute a ‘civilian’:176

A person who is hors de combat does not prima facie fall within this defi-nition. However, the Chamber concurs with the icty Appeals Chamber


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177 (scsl) ruf – Trial, above n 40, [1447], [1455], [2156], affirmed in Prosecutor v Sesay, Kllon and Gbao (Appeals Chamber Judgment), Case No SCSL-04-15-A (26 October 2009) (‘ruf – Appeal’), [1069].

178 (icty) Blaškić – Appeal, above n 91, [113].179 (icty) Blaškić – Appeal, above n 91, [113].180 (icty) Limaj – Trial, above n 40, [224]; (scsl) cdf – Appeal, above n 92, [260].

in the Martić case that where a person hors de combat is the victim of an act which objectively forms part of a broader attack directed against a civilian population, this act may amount to a crime against humanity. Thus, persons hors de combat may form part of the civilian population for the purpose of crimes against humanity, provided that the remaining general requirements of Article 2 are satisfied in respect of the particular incident.

Accordingly, it is not clear that the Chamber intended to deviate from the po-sition in Martić. For instance, the Chamber only applied the principle to one incident: a killing of 63 suspected Kamajors and 1 afrc member who was hors de combat.177 In any event, the ruf Case has not been followed elsewhere in this regard, including in the more recent decision in the Taylor Case.

(c) Distinguishing ‘civilians’ from ‘combatants’The principles discussed above raise questions as to when civilians who take up arms will be considered to be combatants. A distinction may need to be drawn between wartime and peacetime in this respect.

In times of war, these questions generally appear to be resolved in accor-dance with the general principles of international humanitarian law. For instance, the icty Appeals Chamber in Kordić held that ‘members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status.’178 The Chamber held that ‘members of organised resistance groups’ (not being members of the armed forces) could not claim civilian status where they: first, are commanded by a per-son responsible for his subordinates; second, have a fixed distinctive sign recog-nizable at a distance; third, that they carry arms openly; and fourth, that they conduct their operations in accordance with the laws and customs of war.179

Civilians do not lose their civilian status merely because they are perceived to be ‘collaborators’ with the armed forces.180 Naturally, such a status would likely cease if they are in fact taking part in hostilities. The scsl Trial Cham-ber in the ruf Case held that persons accused of ‘collaborating’ with the armed forces will cease to be civilians where they are ‘taking direct part in the


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181 (scsl) ruf – Trial, above n 40, [86].182 (scsl) ruf – Trial, above n 40, [86] (citing Juan Carlos Abella v Argentina, Inter-American

Court of Human Rights, Case 11.137, Report No 55/97, OEA/Ser.L/V/II.95 Doc. 7 rev. at 271 (18 November 1997) (‘Tablada Case’), [176]–[178], [189] and [328]).

183 (icty) Prosecutor v Šešelj (Trial Chamber Judgment) Case No IT-03-67-T (21 March 2016) (‘Šešelj – Trial’), [192].

184 (icty) Šešelj – Trial, above n 183, [193].185 (ictr) Bagosora – Trial, above n 22, [2175].186 (ictr) Kayishema – Trial, above n 56, [127]. Mettraux agrees with this conclusion:

Mettraux, above n 58, 168. Others have criticized it: see Kai Ambos and Steffen Wirth, ‘The Current Law of Crimes Against Humanity: An Analysis of untaet Regulation 15/2000’ (2002) 13 Criminal Law Forum 1; Werle, above n 136, 223.

187 (scsl) cdf – Trial, above n 5, [137], approved in cdf – Appeal, above n 92, [261]; ruf – Trial, above n 40, [88] (citing cdf – Trial and cdf – Appeal).

hostilities’ but it will not be sufficient that such persons are ‘indirect[ly] sup-porting or failing to resist an attacking force’.181 Further, where such persons are taking direct part in hostilities, they would only qualify as legitimate mili-tary targets during the period of their direct participation.182

The fact that ‘civilian combatants’ took direct part in ‘clashes … described as street fighting’ led the icty Trial Chamber in Šešelj to find that there was no attack against the civilian population.183 The Trial Chamber held that the Pros-ecution must prove that ‘civilians were targeted en masse’, whilst not taking part in the fighting and not presenting any danger to military forces.184

One difficult issue in this area may be un Peacekeepers. As noted above, the ictr Trial Chamber in Bagosora held as follows: ‘Considering their status as United Nations peacekeepers and that they were disarmed, the Chamber is satisfied that the victims could not be considered as combatants’.185 It is not clear that this same conclusion would follow if the troops were in fact engaged in hostilities.

In times of peace, however, the laws of war do not apply and different ques-tions may arise. One such issue is whether or not police forces or gendarmerie are considered ‘civilian’. The ictr Trial Chamber in Kayishema held that the term ‘civilian’ excluded those ‘who have the duty to maintain public order and have the legitimate means to exercise force’ such as the rebel forces, the po-lice and the Gendarmerie Nationale.186 This may be taking the position too far. Whilst international humanitarian law is not directly applicable in times of peace, even during armed conflict the rules of war do not necessarily make such persons combatants.

Perhaps more reasonably, the scsl Tribunals have held that the status of police officers must be determined on a case-by-case basis.187 The Appeals


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188 (scsl) cdf – Appeal, above n 92, [260] (citing cdf – Trial, [136]).189 (scsl) ruf – Trial, above n 40, [87] (citing Yves Sandoz, Christophe Swinarski and Bruno

Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (icrc/Martinus Nijhoff Publishers: Geneva, 1987), Addi-tional Protocol 1, Article 43(3), [1682]–[1683] and Article 59(3), [2277]–[2281]); (eccc) Case 002/01 – Trial, above n 24, [186].

190 (scsl) ruf – Trial, above n 40, [88].191 (icty) Prosecutor v Orić (Trial Chamber Judgment), Case No IT-06-68-T (30 June 2006)

(‘Orić – Trial’), [187]–[188] and [215]–[221]; Blaškić – Trial, above n 22, [453]–[456]; (ictr) Akayesu – Trial, above n 24, [68]–[69], Prosecutor v Bagilishema (Trial Chamber Judg-ment), Case No ICTR-95-1A-T (7 June 2001) (‘Bagilishema – Trial’), [177], [181]–[183].

192 (scsl) cdf – Appeal, above n 92, [261].193 (icty) Prosecutor v Đorđević (Trial Chamber Judgment), Case No IT-05-87/1-T (23 Febru-

ary 2011) (‘Đorđević – Trial’), [1707].

Chamber in the cdf Case appeared to endorse the Trial Chamber’s finding that it was a ‘general presumption’ that police officers are considered civilians (‘for the purpose of international humanitarian law’) where they are ‘in the execu-tion of their typical law enforcement duties’ and where they do not ‘operate under the control of the military’.188 The Trial Chamber in the ruf Case as well as the eccc reached the same conclusion.189 The Trial Chamber in the ruf Case explained that one way in which a civilian police force would be operat-ing under the control of the military is where they are incorporated into the armed forces either de lege or de facto.190 While not enunciating the principles as such, various icty and ictr Tribunals have discussed whether or not the military has exercised de jure or de facto control over police or gendarmerie on various occasions.191

Whether or not a police force is incorporated into the armed forces does not appear to be the only relevant question. For instance, the status of the par-ticular individuals in question may need be considered. When these principles were applied in the cdf Case, the Appeal Chamber held that those policemen who took part in the fighting were not civilian but those without ammunition were civilian.192 Similarly, these questions were considered in the context of an armed conflict. The same principles may not necessarily apply in the context of peacetime.

In the icty case of Đorđević, the defence raised the contention that the persons killed were not ‘victims’, but persons killed in the course of a genu-ine police operation to arrest and deal with terrorist forces. The Trial Cham-ber rejected this on the basis that: first, they were unarmed; and secondly, ‘[n]o attempt was made to identify or arrest [any persons] for the purpose of investigation or trial as terrorists or suspected terrorists.’193 Had such a claim been established on the evidence, the proper analysis would not be that such


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194 See below, Section 5.2.195 In (icty) Prosecutor v Mrkšić, et al. (Review of the Indictment Pursuant to Rule 61 of the

Rules of Procedure and Evidence), Trial Chamber i, Case No. IT-95-13-R61 (3 April 1996) (‘Mrkšić – Vukovar Hospital Decision’), Kupreškić – Trial, above n 99, [548]–[549] and Tadić – Trial, above n 5, [636]–[643] it was said that those actively involved in a resistance movement can qualify as victims of crimes against humanity. Similar views were held in (icty) Blaškić – Trial, above n 22, [214] and Kordić – Trial, above n 134, [180], albeit to the effect that such persons may be ‘civilians’. Mettraux criticises this statement, saying a person killed while undertaking some act of ‘resistance’ is not a civilian: Mettraux, above n 58, 169.

196 Willem Adriaan Veenhoven, Winifred Crum Ewing, Stichting Plurale Samenlevingen, Case Studies on Human Rights and Fundamental Freedoms: A World Survey, Volume 1 (Brill Nijhoff: The Hague, 1976) 417–422.

persons were not civilians and the relevant attack was not directed against any civilian ‘population’.194

Ultimately, these authorities suggest that, in the case of resistance fighters, a precise investigation of the facts is required to ascertain their status. Some earlier cases had followed Barbie, finding that resistance fighters and others bearing arms, who are not strictly members of the armed forces, can be part of the ‘civilian population’.195 Nonetheless, the weight of current authority sug-gests that if, under international humanitarian law, they constitute an orga-nized resistance group complying with the laws of war, they cannot claim to be civilians for the purpose of identifying the ‘civilian population’ irrespective of whether they are in combat or armed. On the other hand, if they do not con-stitute such an organized resistance group, they can qualify as being ‘civilians’ except where they are taking direct part in the hostilities.

4.3.4 Conclusion – The icc and BeyondIt may be that the position adopted by the ad hoc Tribunals will not be the last word on the matter.

First, while a common position has been reached in the ad hoc Tribunals, it cannot be said that the conclusion is entirely satisfactory. There remains the possibility under such an approach that what may be regarded in lay terms as an ‘atrocity’ committed by a state or organisation will not amount to either a crime against humanity or a war crime. For example, a dictator on coming to power may conduct a widespread purge of the armed forces, killing those of a particular ethnic or tribal background. There are historical precedents for this. On coming to power in Uganda in 1971, and subsequently, Idi Amin brutally purged the Army of those from the Lango and related Acholi tribes and figures of over 500 murdered have been recorded.196 In Ethiopia, military ruler Mengistu Hailemariam did the same to members of the armed forces in


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197 See Chapter 7, Section 6.1.2. Such crimes were, however, only part a much broader attack that could in any event be classified as an attack against a civilian population even on the definition of the ad hoc Tribunals.

198 See discussion in Killean et al. (2017), above n 125.199 (eccc) Notification on the interpretation of ‘attack against the civilian population’ in the

context of crimes against humanity with regard to a state’s or regieme’s own armed forces (Office of the Co-Investigating Judges), Case File No: 004/07-09-2000 (7 February 2017) (‘Notification on the interpretation of “attack against the civiliain population”’), [56].

200 (eccc) Notification on the interpretation of ‘attack against the civiliain population’, above n 200, [57].


202 (eccc) Notification on the interpretation of ‘attack against the civiliain population’, above n 200, [43]. The International Co-Investigating Judge also drew attention to the conventions on genocide and apartheid as ‘demonstrat[ing] the international community’s resolution

Ethiopia (the Derg) after assuming power, and Mengistu and many others were convicted of crimes against humanity in relation to such acts in the Ethiopian courts.197

Where it may be contended that such an action is in effect an attack on the population more generally, the logic is somewhat strained. The sim-pler view would be that they are being attacked as a civilian population be-cause at the time of the attack they are defenceless and are not engaging in hostilities.

This question has recently arisen at the eccc in the context of certain purges undertaken by the Khmer Rouge. The International Co-Investigating Judge in Cases 003 and 004 called for amicus curiae briefs on the question of whether an attack against members of the armed forces satisfied the chapeau elements of crimes against humanity.198 After accepting such briefs, the In-ternational Co-Investigating Judge found that, under international customary law between 1975 and 1979, an attack against members of the armed forces in peacetime could amount to a crime against humanity.199 Such an attack during an armed conflict also could amount to a crime against humanity, unless the armed forces were in fact allied with an opposing side in a conflict.200

In reviewing the post-Second World War jurisprudence on crimes against humanity, the International Co-Investigating Judge stated that the courts ‘pri-marily looked at the systematic or large scale nature of the attack, rather than on the formal status of the victim’,201 which ‘evidences a broad interpretation of the term civilian population.’202 He also questioned the ad hoc tribunals’


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to protect all individuals against human rights violations committed in peace or war when not justified by military’, [44]–[45].

203 (eccc) Notification on the interpretation of ‘attack against the civiliain population’, above n 200, [52]–[54]. Although the International Co-Investigating Judge stated that the icty’s reliance on international humanitarian law was ‘understandable’ given that tribunal’s ju-risdictional requirement for crimes against humanity be have been committed during an armed conflict, [54].


205 (eccc) Notification on the interpretation of ‘attack against the civiliain population’, above n 200, [63]–[65].

206 Rachel Killean, Eithne Dowds and Amanda Kramer, ‘Soliders as Victims at the eccc: Ex-ploring the Concept of “Civilian” in Crimes against Humanity’ (2017) Leiden Journal of International Law, 18.

207 (icty) Martić – Appeal, above n 91, [278] (citing von Hebel et al., above n 155, 97, fn 54.)

reliance on international humanitarian law for the meaning of civilian popula-tion, given that crimes against humanity occurred during both war and peace, and that international humanitarian law has not been used to determine the meaning of attack.203

The International Co-Investigating Judge concluded that a broad meaning of civilian population that included members of armed forces should be ad-opted at the eccc, particularly given the purpose of crimes against humanity to protect ‘against human rights violations perpetrated on a large scale against individuals, including a state’s own nationals, who were not otherwise pro-tected by the existing laws and customs of war’.204 He went further to state that excluding members of armed forces from the protection of crimes against humanity could lead to absurd results if, for example, a government during peacetime took actions against members of its armed forces of a particular religion.205

Commentators have made similar arguments to the International Co-Inves-tigating Judge, arguing that the narrow interpretation of civilian population by some of the ad hoc tribunals and the icc risks creating a ‘protection gap’ in international criminal law.206

Secondly, the position at the icc is not yet clear. At the negotiations of the Rome Statute, several delegations argued that the term ‘civilian popula-tion’ in the context of crimes against humanity should not be interpreted as strictly limited to civilians.207 Despite this, the drafters of the Rome Statute


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208 (icc) Katanga – Confirmation, above n 109, [399], fn 511 (citing Roy Lee (Ed), The Interna-tional Criminal Court: Elements of Crimes and Rules of Evidence (Transnational Publishers: New York, 2001) 78: ‘Most delegations quickly agreed that this was too complex a subject and evolving area in the law, better left to resolution in case law.’)

209 (icc) Bemba Gombo – Confirmation, above n 24, [78] (following (icty) Kunarac – Appeal); Kenya – Authorisation Decision, above n 24, [82] (following Bemba Gombo – Confirmation and Kunarac – Appeal); Katanga – Trial, above n 77, [1102]; Bemba Gombo – Trial, above n 76, [154], [156].

210 (icc) Bemba Gombo – Confirmation, above n 24, [78] (following (icty) Kunarac – Appeal); Kenya – Authorisation Decision, above n 24, [82] (following Bemba Gombo – Confirmation and Kunarac – Appeal); Katanga – Trial, above n 77, [1102].

211 (icc) Katanga – Confirmation, above n 109, [399], citing (icty) Tadić – Trial, above n 5, [635], Jelisić – Trial, above n 110, [54].

212 (scsl) cdf – Appeal, above n 92, [259].

intentionally left ‘any civilian population’ undefined in order that the term may be left to the case-law.208

The icc has not yet given proper consideration to this issue and there may be scope for argument that a deviation from the position in the ad hoc Tribu-nals is appropriate. On the one hand, a number of early decisions of the icc Pre-Trial Chamber and Trial Chamber have followed the Kunarac Appeal deci-sion in defining ‘civilian’ in accordance with ihl.209 On the other hand,210 Pre-Trial Chamber i in the Katanga Confirmation Decision has been less clear. The Pre-Trial Chamber cited the broad position held by the icty Trial Chamber in Tadić, noting that ‘as opposed to war crimes which are provided for in Article 8 of the Statute, the term “civilian population” within the meaning of article 7 of the Statute affords protections to “any civilian population” regardless of their nationality, ethnicity or other distinguishing feature’.211

Thirdly, despite the apparent resolution, there are a number of matters that are not entirely settled. A number of authorities since Martić, for instance, have started to use less constrictive language when describing the role of Ad-ditional Protocol 1 in interpreting ‘civilian’. The scsl Appeal Chamber, for instance, held that Additional Protocol 1 is a ‘useful tool’ in determining the ‘civilian population’ element.212 Further, the icty Appeals Chamber in Mrkšić, stated the following after citing the principle in Martić that ‘victims’ need not be civilian:

This is not to say that under Article 5 of the Statute the status of the victims as civilians is irrelevant. In fact, the status of the victims is one of the factors that can be assessed in determining whether the jurisdic-tional requirement that the civilian population be the primary target of


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213 (icty) Mrkšić – Appeal, above n 158, [30], followed in Đorđević – Trial, above n 193, [1593].214 (icty) Prosecutor v Martić (Trial Chamber Judgment), Case No IT-95-11-T (12 June 2007)

(‘Martić – Trial’), [56].215 (icty) Prosecutor v Mrkšić (Trial Chamber Judgment), Case No IT-95-13/-T (27 September

2007) (‘Mrkšić – Trial’), [454].216 (icty) Mrkšić – Trial, above n 216, [460]. An example of such a ‘gap’ would include Idi

Amin’s purge of around one third of the army after taking control of the country in 1971. Such action would be neither a war crime nor a crime against humanity.

an attack has been fulfilled, along with, inter alia, the means and method used in the course of the attack, the number of victims, 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. ( emphasis added)213

Further, the Martić Trial Chamber’s reasoning suggests that its position was based at least in part on the fact that the icty Statute specifically linked civil-ians to an armed conflict, stating that:

Article 5 of the Statute defines crimes against humanity more nar-rowly than required under customary international law by including a requirement of a nexus between the crime and the armed conflict. This requirement in Article 5 necessarily links crimes against humanity to an armed conflict in which distinction must be made between com-batants and non-combatants. Therefore, to allow for the term “civilians” to include all persons who were not actively participating in combat, in-cluding those who were hors de combat, at the time of the crime would impermissibly blur this necessary distinction.214

This suggests the distinction between combatants and non-combatants may not be ‘necessary’ under customary law, the ictr Statute or the icc Statute, where no link with armed conflict is present in the definition. These remarks and the conclusion were adopted in the subsequent Trial Chamber judgment in Mrkšić.215 The Trial Chamber further accepted that this conclusion would lead to a ‘protection gap’ (i.e. where atrocities were committed against combat-ants or persons hors de combat outside war time), although noted that ‘it is not for this Tribunal to fill this gap through its case law’.216


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217 (icty) Mrkšić – Trial, above n 216, [458].218 (icty) Mrkšić – Trial, above n 216, [458], citing Articles 46 and 49 of Geneva Convention

iii.219 Cassese, above n 2, 104.220 Werle, above n 136, 222.

Fourthly, this position is not entirely consistent with the position at Nurem-berg. Like in Martić, the icty Trial Chamber in Mrkšić appeared to base its position at least in part on the fact that its conclusion was consistent with the practice at Nuremberg:

this [conclusion] is in line with the historical origin of crimes against humanity which, from the outset, focused on civilian victims as was clear from the notion “against any civilian population” in Article 6(c) of the Nuremberg Charter. This further supports the proposition that crimes against humanity are committed against civilians, not combatants or fighters … the underlying principle, i.e. that crimes against humanity, as opposed to war crimes, are directed against civilian victims.217

A related reason why the Trial Chamber took this narrow view was that it pointed out that some of the underlying offences, such as deportation and pos-sibly imprisonment and forced labour even as an act of persecution, could only take place if the victims were civilians, because under the Geneva Conventions prisoners of war may be deported, imprisoned or subjected to forced labour.218

Yet, these statements are not entirely accurate. In fact, the ‘persecution’ type offences at Nuremberg did not need to be against a ‘civilian population’. And, in any event, crimes against humanity at the time of Nuremberg had a large factual overlap between war crimes owing to presence of the war nexus. Any such link is not necessarily required in times of peace. As Cassese has argued, ‘because of the gradual disappearance in customary international law of the nexus between crimes against humanity and war, the emphasis on the civil-ian population as the exclusive target of such crimes dwindled, if not disap-peared’.219 Provided the victim’s ‘humanity’ is being attacked at the time of the crimes, it makes sense that he or she is a ‘civilian’ for the purposes of crimes against humanity. As Werle explains it:

Most important in demonstrating membership in a civilian population is the victims’ need for protection, which follows from their defenceless-ness vis-à-vis state, military or other organised force.220


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221 (icty) Milošević, D – Appeal, above n 110, [60], Kunarac – Trial, above n 22, [426] and (scsl) ruf – Trial, above n 40, [86] (each applying the principle contained in Article 50(1) of Additional Protocol 1).

222 (icty) Blaškić – Appeal, above n 91, [111]; Milošević – Appeal, above n 110, [60]; (scsl) ruf – Trial, above n 40, [86] (following Blaškić – Appeal).

223 (icty) Mrkšić – Trial, above n 216, [454], [464].

Applying this logic, civilians would cover members of the military forces not only where, during times of armed conflict, they have laid down their arms or are on longer participating in hostilities, but also military personnel in the absence of any armed conflict (where the protection of international humanitarian law falls away), commensurate with the protection afforded such persons under Common Article 3 of the Geneva Conventions. It would only be if the victim was engaging in active hostilities at the time and was targeted in accordance with the laws of war (in times of armed conflict) or not inconsistent with the victim’s fundamental human rights (in times of peace) that he or she would no longer be a ‘civilian’.

4.4 Presumptions and Burden of ProofThe use by some tribunals of international humanitarian law has also extended to presumptions and burden of proof. A number of tribunals have held, for instance, that in case of doubt a person shall be presumed to be a civilian and cannot be attacked merely because the question appears dubious.221 When it comes to establishing the ‘civilian’ component for the purposes of a prosecu-tion for crimes against humanity, however, the Prosecution must still discharge the burden of showing that the person was a civilian.222 The exception to this does appear to be in the finding in Mrkšić that this proposition does not extend to mens rea of crimes against humanity.223 That is, it is not required for the prosecution to establish that the individual knew that the victim was civilian.

5 ‘Population’

5.1 Civilian Population as Such

5.1.1 Overview – Collective Rather than IndividualThe meaning of the word ‘population’ has received much attention, particu-larly by the icty, in order to bring the definition in Article 5 in line with the Tribunal’s view of customary law and the Nuremberg Precedent.


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224 Chapter 2, Section 5. See also unwcc, History of The United Nations War Commission (hmso: London, 1948) 193: ‘[T]he word population appears to indicate that a larger body of victims is visualized and that single and isolated acts against individuals may be con-sidered to fall outside the concept’.

225 (icty) Tadić – Trial, above n 5, [644].226 (icty) Kunarac – Appeal, above n 22, [90], affirming Kunarac – Trial, above n 22, [424]

(citing Tadić – Trial, above n 5).

In Chapter 2, the authors suggest that in its historical context, and as inter-preted by the Nuremberg Tribunal, the word ‘population’ did not receive any particular attention beyond making it clear that the words ‘any civilian popula-tion’ meant that the victim could have any status or be of any nationality. At Nuremberg, the approach appeared to be that, for example, murder, if con-nected with war crimes or aggression (called crimes against peace) could be a crime against humanity and overlap with war crimes. Further, the offence of persecution as a crime against humanity could occur without the requirement that it be committed against any civilian population.

Others at the time of Nuremberg, particularly the un War Crimes Commis-sion, suggested that a crime against humanity in the London Charter, through the word ‘population’, implied certain additional requirements: ‘the word pop-ulation appears to indicate that a large body of victims is visualized and that single and isolated acts against individuals may be considered to fall outside the concept’.224

Citing the un War Crimes Commission as authority, the icty Trial Chamber in Tadić adopted the latter approach. The Chamber held as follows:225

The requirement in Article 5 of the Statute that the prohibited acts must be directed against a civilian “population” does not mean that the entire population of a given State or territory must be victimised by these acts in order for the acts to constitute a crime against humanity. Instead the “population” element is intended to imply crimes of a collective nature and thus exclude single or isolated acts which, although possibly consti-tuting war crimes or crimes against national penal legislation, do not rise to the level of crimes against humanity.

[…]Thus the emphasis is not on the individual victim but rather on the

collective, the individual being victimised not because of his individual attributes but rather because of his membership of a targeted civilian population.

This position was affirmed by the icty Appeals Chamber in Kunarac.226 In Limaj, the icty Trial Chamber stated ‘the requirement that a “civilian


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227 (icty) Limaj – Trial, above n 22, [218], see also [187].228 See Oxford English Dictionary: (‘A populated or inhabited place’; ‘The extent to which

a place is populated or inhabited; the collective inhabitants of a country, town, or other area; a body of inhabitants’).

229 (icty) Tadić – Trial, above n 5, [644], followed in Kunarac – Trial, above n 22, [424]; Kunarac – Appeal, above n 22, [90] (citing Kunarac – Trial and Tadić – Trial), followed in Blaškić – Appeal, above n 91, [105] and Prosecutor v Stakić (Appeals Chamber Judgment), Case No IT-97-24-A (22 March 2006) (‘Stakić – Appeal’), [247]; (ictr) Bagilishema – Trial, above n 191, [80] (citing Tadić – Trial); Semanza – Trial, above n 24, [330] (citing Bagilishema – Trial and Kunarac – Appeal); (scsl) ruf – Trial, above n 40, [85] (citing Kunarac – Appeal and Blaškić – Appeal); (eac) Habré – Trial, above n 22, [1364]; (icc) Bem-ba Gombo Confirmation Decision, above n 24, [77] (citing Bagilishema – Trial, Semanza – Trial, Kunarac – Appeal); Kenya Authorisation Decision, above n 24, [82] (following Bemba Gombo – Confirmation and authorities cited therein); (eccc) Duch – Trial, above n 24, [303]; Case 002/01 – Trial, above n 24, [182].

230 (icty) Tadić – Trial, above n 5, [644].231 (France) Barbie, above n 127; see also some of the cases under ccl 10 discussed in Chapter

3, Section 2.3.

population” be the target of an attack may be seen as another way of empha-sising the requirement that the attack be of large scale or exhibit systematic features’.227

In the result, the word ‘population’ conveys a subtle and technical notion which has a broader meaning than all of the inhabitants of a geographical area.228 In its modern context, the main purpose served by the word ‘popula-tion’ is to emphasise the requirement of scale and to exclude single or isolated acts.

Whether what is targeted is a ‘population’ is ultimately a question of fact and degree. The civilian ‘population’ does not need to be the entire population of a given state or territory or the entire geographical area relevant to a given indictment.229 The crimes must however, be ‘of a collective nature’ and not constitute ‘single or isolated acts’.230

In resolving this question in any given case, two guiding principles are useful:

1. the question must be examined having regard to the number targeted and the nature of the targeting; and

2. the attack must not consist of single or isolated acts.

Before those principles are further addressed, the following two matters should be noted. First, the principles do require that individual victims must in fact be a part of the group targeted. The Tribunals have held, consistently with previ-ous case law,231 that persons opposing a policy of ideological supremacy can


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232 (ictr) Akayesu – Trial, above n 24, [584]; Semanza – Trial, above n 24, [331], Musema – Trial, above n 54, [209]; Rutaganda – Trial, above n 54, [73]; Muhimana – Trial, above n 56, [529]; Gacumbitsi – Trial, above n 56, [301]; Kajelijeli – Trial, above n 56, [878]; (icty) Naletilić – Trial, above n 22, [636]; Prosecutor v Kvočka et al. (Trial Chamber Judgment), Case No IT-98-30/1-T (2 November 2001) (‘Kvočka – Trial’), [195] (relying on findings in Tadić – Trial).

233 (ictr) Semanza – Trial, above n 24, [331].234 (ictr) Semanza – Trial, above n 24, [330].235 (icty) Kunarac – Appeal, above n 22, [90], followed in e.g.: Martić – Appeal, above n 91,

[305]; Stakić – Trial, above n 93, [624]; Brđanin – Trial, above n 22, [134]; (scsl) ruf – Trial, above n 40, [85]; cdf – Trial, above n 5, [119] (cited with approval in cdf – Appeal, above n 92, [258]); Taylor – Trial, above n 24, [507]; afrc – Trial, above n 25, [217]; (eccc) Duch – Trial, above n 24, [303] (following Blaškić – Appeal, above n 91); Case 002/01 – Trial, above n 24, [182]; (eac) Habré – Trial, above n 22, [1364]; (icc) Bemba Gombo – Confirmation, above n 24 [77]; Kenya – Authorisation Decision, above n 24, [81].

be victims, even if not part of the community targeted on religious or racial grounds, provided that the victim was targeted to support or further the goals of the attack232 (or, on one authority, provided it in fact furthers the attack233). For example, if certain Hutus are targeted because of their sympathy for the plight of the Tutsis, or because they oppose the regime responsible for the at-tack, they can be victims of the crimes against humanity as part of the attack being committed against the Tutsis.

Secondly, the victims of the enumerated act need not necessarily share geo-graphic or other defining features with the civilian population that forms the primary target of the underlying attack, but if the victims do share such char-acteristics, this may be used to demonstrate that the specified act forms part of the attack.234

5.1.2 Number Targeted and Nature of the TargetingThe first key principle in determining whether an attack has been directed against a ‘population’ is that it will be necessary to show that ‘enough individu-als were targeted’ in the course of the attack, or that they were ‘targeted in such a way’ as to satisfy the Chamber that the attack was in fact directed against a civilian ‘population’, rather than against a ‘limited and randomly selected num-ber of individuals’.235 This suggests an inquiry should be made into: first, the number targeted; and the nature of the targeting.

As to the first, as noted above, ‘enough individuals’ may be targeted even though that number does not make up the entire population or geographical area in question. The necessary implication of this is that the targeting of a state, a municipality, a village or another circumscribed area or a group within


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236 See Mettraux, above n 58, 161, based upon the author’s review of the indictments.237 (icty) Kupreškić – Trial, above n 99, [149].238 Luban, above n 59, 108; Simon Chesterman, ‘An Altogether Different Order: Defining the

Elements of Crimes Against Humanity’ (2000) 10 Duke Journal of Comparative & Interna-tional Law 307, 315.

239 (ictr) Bagilishema – Trial, above n 191, [78]; (spet) Los Palos – Judgment, above n 22, [638]. It is important to not also that the Chamber in Bagilishema itself doubted the exis-tence of a policy requirement as such.

240 See Chapter 8, Section 3.2.

such a geographical area may suffice. Hence, while the Tribunals have often not been clear on the precise bounds of the ‘population’ in question, Tribunals appear to have accepted that: in Tadić, the ‘population’ was the Muslim in-habitants in a 20km diameter area; in Kunarac, it consisted of three small mu-nicipalities; in Rutaganda, it was the Tutsi inhabitants of two prefectures; in Musema, it was the Tutsi inhabitants of two communes within the Kibuye Pre-fecture;236 and in Kupreškić, the attack was on the 600 Muslim inhabitants of the village of Ahmici.237

While the approach of looking for a minimum level of scale has been crit-icised by some academics,238 a number of Tribunals and Courts have inter-preted the concept of an attack against a ‘population’ as requiring exactly that exercise. This view was expressed for instance, in pre-Kunarac decisions of the ictr and spet.239

This causes a number of difficult questions in application. For example, how many people must be targeted before the group can constitute a ‘population’? Often in the case of the icty and the ictr, the Prosecution has framed the indictment to refer to a municipality or a village as the relevant ‘population’ rather than, for instance, the entire population of the relevant area. One can understand the Prosecution wanting to limit its task, but to allege that each separate ‘attack’ on a village or municipality in Bosnia or Rwanda was the rel-evant ‘attack’ on a ‘civilian population’ for the purposes of the Statute seems somewhat removed from the reality of the circumstances of the widespread atrocities across the former Yugoslavia and Rwanda which prompted the inter-vention of the Security Council.

This question has some overlap with the question of when an attack will reach a minimum level of scale or seriousness to amount to crimes against humanity, discussed in more detail in Chapter 8.240 On the one hand, Ratner and Abrams speculate that the assassination of a single political figure, such as the killing of Hungarian leader Imre Nagy in 1956 by the Soviet authori-ties, may suffice as a crime against humanity if it is intended to threaten the


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241 Steven Ratner and Jason Abrams, Accountability for Human Rights Atrocities in Inter-national Law: Beyond the Nuremberg Legacy (2nd ed, Oxford University Press: Oxford, 2001) 61.

242 (icc) Prosecutor v Al Bashir (Decision on the Prosecution’s Application for Warrant of Arrest against Omar Hassan Ahmad Al Bashir), ICC-02/05/01/09 (4 March 2009), [125]; see also (icj) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) [2015] icj Rep 3, 58.

243 (icty) Tadić – Trial, above n 5, [644]; and Kunarac – Appeal, above n 22, [90], affirming Kunarac – Trial, above n 22, [424]. See also (eac) Habré – Trial, above n 22, [1364].

244 (Canada) Mugesera – Supreme Court, above n 55, [161]–[163]. A similar conclusion was reached by the us District Court in (United States) Sarei v Rio Tinto – District Court, above n 60, 1150. See discussion in Chapter 7.

entire ‘civilian population’.241 On the other hand, the authors in Chapter 8 have contended that this would be insufficient to amount to a crime against humanity.

It is important to distinguish between the number of victims and the con-cept of the ‘population’ which forms the object and purpose of the directed attack. For instance, an ‘attack’ may be ‘directed against’ all Muslims in a mu-nicipality but only in fact be executed against a smaller number. The word ‘population’ focuses on the object of the attack rather than the number of ac-tual victims. The position is similar to that of genocide, where it has been held that to establish the requisite genocidal intent, the conduct must ‘present […] a concrete threat to the existence of the targeted group, or targeted thereof […] as opposed to just being [a threat that is] latent or hypothetical’, or reach a sufficient scale.242

As to the second, the nature of the targeting, the individuals must be targeted in a manner that is arbitrary, indiscriminate or to instil fear into a larger popu-lation; it may be accepted that if the targeting is legitimate or reasonable, no crime will be committed. This principle is derived from the finding of the icty Trial Chamber in Tadić that the victim must have been chosen because of their membership of the targeted group, not their individual attributes.243 Similar findings have been made that the targeted group must ‘share distinctive fea-tures which identify them as targets of the attack’ such as ethnic or religious commonalities.244 This issue is discussed further below. It is suggested that the drawing of a distinction between targeting based on individual attributes and targeting based on group attributes, is in fact an articulation of the proposition that the targeting must be arbitrary or illegitimate, as opposed to legitimate or reasonable. Targeting based on race, ethnicity, religion or political affiliation is a classic illustration of such targeting.


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245 (United States) Loi v Dow Chemical Co (In re ‘Agent Orange’ Product Liability Litigation), 373 F. Supp. 2d 7 (e.d.n.y., 2005) (‘In re Agent Orange – District Court’). The case is dis-cussed further in Chapter 7.

246 (icty) Đorđević – Trial, above n 193, [1707].247 (United States) Mamani v Berzaín, 654 F.3d 1148 (11th Cir., 2011) (‘Mamani v Berzaín

– Appeal’).248 (United States) Mamani v Berzaín – Appeal, above n 248, 1154–1156.249 Although, the decision should be treated with some caution as it was later overturned

on the basis that it was not decided by the necessary majority of judges in (Peru) Con-stitutional Court of Peru, Case No 01969-2011-PHC/TC (5 April 2016). See discussion in Chapter 7, Section 4.4.2(b).

250 (scsl) cdf – Appeal, above n 92, [247].

For example, in In Re Agent Orange,245 a us District Court considered that the use by us and Vietnamese authorities of the chemical ‘Agent Orange’ in the Vietnam War did not amount to a crime against humanity on the basis that the actions were carried out as a legitimate military operation that was not con-trary to international humanitarian law. Similarly, in the icty case of Đorđević, the defence raised the contention that the persons killed were not ‘victims’, but persons killed in the course of a genuine police operation to arrest and deal with terrorist forces. The Trial Chamber rejected this on the evidence.246

Although more controversial, a similar concept has arisen in the context of the suppression of protesters. In Mamani v Berzaín,247 a us Court of Appeals dismissed a civil claim of crimes against humanity against Bolivian authorities when 70 were killed and 400 injured in the context of the state’s suppression of civil unrest. The Court held that it had not been established that the killing rose to the level of extrajudicial killings as opposed to, for instance, negligent shooting or shooting for individual reasons unlinked to the state.248 Similar logic may have been responsible for the finding of the Peruvian Constitutional Court that the execution of 90 to 100 individuals by Peruvian authorities at El Fronton prison in June of 1986 did not amount to a crime against humanity.249 The deaths in question took place in the context of the Peruvian authorities putting down (albeit violently) a prison riot purportedly on behalf of the Shin-ing Path terrorist group.

Of course, an attack may still amount to a crime against humanity even where the overall objective of the attack is legitimate. This was the finding of the scsl where crimes were found in the context of a legitimate military attack.250 Operation Condor in South America in the 1970s and 1980s had as its ostensible objective to eradicate the threat of communism, but the mech-anism of doing so was still an attack against a civilian population. As held


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251 See (Canada) Shalabi v The Minister of Public Safety and Emergency Preparedness 2016 fc 961, discussed in Chapter 7, Section 2.2.2(c).

252 (United States) Doe v Liu Qi et al., 349 F. Supp. 2d 1258 (N.D. Cal., 2004) (‘Doe v Liu Qi – District Court’), 1309–1311.

253 (Israel) Enigster – Trial, above n 108, [13(B)(5)].254 Mettraux, above n 133, 166.

by one Canadian Federal Court, a legitimate objective such as the investiga-tion and interrogation of suspected terrorists may be pursued by illegitimate means such as illegal detention and torture.251 Assuming the illegal deten-tion and torture is on a sufficient scale, such conduct may amount to a crime against humanity. Accordingly, it is not difficult to see how the extrajudicial killing of large enough number of people could amount to a crime against humanity,

A similar concern arose in one us District Court case concerning the Chinese crackdown on practitioners of Falun Gong, which included both the official policy of outlawing the Falun Gong as well as the arbitrary arrest, detention and torture of Falun Gong practitioners.252 In an application for default judg-ment, the Court decided not to address the issue of whether or not the ac-tions amounted to a crime against humanity out of an apparent concern that it would require it to sit in judgment on official government policy. However, the outlawing of an organisation and arrest pursuant to such a law – to the extent such actions are legitimate and do not involve a gross abuse of the victim’s human rights – may be able to be distinguished from actions of arbitrary arrest and torture.

Accordingly, assuming the minimum threshold for scale and seriousness is met, can, for example, a group of trade union leaders, the members of a small opposition party, the detainees at Guantanamo Bay or asylum seekers detained by the Australian government be a ‘population’? What about a police force which opens fire on a street demonstration or a riot. Is that an attack on a civilian population? A Court in Israel held that the detainees of two Nazi concentration camps consisted of a civilian population in the sense used in the definition,253 but Mettraux doubts the correctness of this.254

Ultimately, assuming the minimum threshold for scale and seriousness is met, provided the nature of the targeting is such that it can be fairly said that the victims within the group have been attacked arbitrarily or indiscriminately or to instil fear in the wider population, such a group may fairly be regarded as a ‘civilian population’. What is further required, as discussed in Chapter 8 and below, is that such grouping must be targeted pursuant to some policy of a State or organisation in the nature of a de facto power.


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255 (icty) Tadić – Trial, above n 5, [644].256 (icty) Limaj – Trial, above n 22, [187].257 Guénaël Mettraux, ‘Crimes against Humanity in the Jurisprudence of the International

Criminal Tribunals For The Former Yugoslavia and For Rwanda’ (2002) 43 Harvard Inter-national Law Journal 237, 255.

258 Mettraux, above n 58, 166.259 (eac) Habré – Trial, above n 22, [1364].260 (Canada) Mugesera – Supreme Court, above n 55, [128], [151]. See discussion in Chapter 7,

Section 2.2.2(a).

5.1.3 Exclusion of Single or Isolated ActsThe second key principle in determining whether an attack has been directed against a ‘population’ is the exclusion of single or isolated act(s). The main role this exclusion plays is to require both, that the attack on the population is pursuant to some course of conduct which may satisfy the ‘policy element’, and that the underlying crime perpetrated on the victim is related to the attack in question. In the case of ethnic violence such as occurred in the former Yugo-slavia and Rwanda, the matter may be relatively clear. On the other end of the spectrum, the targeting of individuals arising out of some personal animosity between the perpetrator and the particular victim will not suffice.

Difficulties arise when considering remarks by the Tribunals such as the icty Trial Chamber in Tadić which said the victim must have been chosen because of their membership of the targeted group, not their individual at-tributes.255 Similarly, the icty Trial Chamber in Limaj held that ‘the targeting of a select group of civilians – for example, the targeted killing of a number of political opponents – cannot satisfy the requirements of Article 5’.256 Mettraux writes something similar, contending that ‘…the killing of only a select group of civilians – a number of political opponents to the regime – could not be re-garded, in principle, as a crime against humanity; in such a case, no population can be said to have been attacked.’257 Mettraux also writes that ‘[a] group of individuals randomly or fortuitously assembled – such as a crowd at a football game – could not be regarded as a “population” under this definition’.258 The same finding as to the targeting of ‘random’ individuals was made by the eac in Habré.259

The implication is similar from the finding by the Supreme Court of Canada in Mugesera that the attack must be directed against a ‘civilian population or other identifiable group’.260 The Court held that the term ‘population’ ‘suggests that the attack is directed against a relatively large group of people who share distinctive features which identify them as targets of the attack’ such as ethnic


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261 (Canada) Mugesera – Supreme Court, above n 54, [161]–[163]. (United States) A similar conclusion was reached by the us District Court in (United States) Sarei v Rio Tinto – District Court, above n 60, 1150.

262 See Chapter 5, Section 2.2.2(b).263 (icty) Limaj – Trial, above n 22, [217].264 (icty) Limaj – Trial, above n 22, [211]–[225] and, in particular, [211], [215].265 (icty) Limaj – Trial, above n 22, [224].266 (icty) Limaj – Trial, above n 22, [226] (‘…it is not possible to discern from them [the

abductions] that the civilian population itself was the subject of an attack, or that Kosovo Albanian collaborators and perceived or suspected collaborators and other abductees were of a class or category so numerous and widespread that they themselves constituted a “population” in the relevant sense’).

266 (icty) Limaj – Trial, above n 22, [216], [226]–[227].268 See Chapter 5, Section 2.2.2(b).269 (scsl) cdf – Trial, above n 5, [119] and ruf – Trial, above n 40, [85].

or religious commonalities (emphasis added).261 Does the target of the attack need to be a group sharing common elements such as ethnicity or religion or will targeting on political grounds suffice?

As discussed in detail in Chapter 5,262 the Trial Chamber in Limaj found that the perceived collaborators were targeted ‘as individuals rather than as members of a larger population’.263 This was despite a kla policy of targeting both Kosovo Albanian and Serbian civilians believed to be, or suspected of being, associated or collaborating with the Serbian authorities.264 The Tribu-nal accepted that ‘at least as a general rule’, perceived collaborators abducted by the kla were entitled to civilian status’.265 Nevertheless, the small number of abductions involved and the limited level of organisation displayed by the kla in respect of the alleged ‘attack’,266 along with the fact that most persons ‘were singled out as individuals’ not because of their membership of a ‘popula-tion’,267 led the Tribunal to conclude that there was no ‘attack directed against any civilian population’.

Similar findings were made by the icty Trial Chamber in Haradinaj – also a case concerning the kla.268

The issue was subsequently addressed by the scsl in the ruf Case and the cdf Case. At first instance, the Trial Chambers in both cases endorsed the find-ing in Limaj that ‘the targeting of a select group of civilians – for example, the targeted killing of political opponents’ could not constitute a ‘civilian popula-tion’.269 Like in Limaj, these Chambers did so at the same time as reciting the principle in Kunarac that provided that ‘enough individuals were targeted’ or were ‘targeted in such a way’, the group could amount to a ‘population’.

On appeal in the cdf Case, one of the accused specifically contended that the decision in Limaj supported the view that where victims were perceived


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270 (scsl) cdf – Appeal, above n 92, [254].271 (scsl) cdf – Appeal, above n 92, [254].272 (scsl) cdf – Appeal, above n 92, [260], followed in ruf – Trial, above n 40, [86].273 (scsl) cdf – Appeal, above n 92, [260], followed in ruf – Trial, above n 40, [86].274 (United States) Bowoto v Chevron Corporation (Order Granting Defendants’ Motion for

Summary Judgment on Plaintiffs’ Crimes Against Humanity Claim), District Court for the Northern District of California, Case No C 99-02506 si (14 August 2009) (‘Bowoto v Chev-ron’). See discussion in Chapter 7, Section 2.5.2(b).

275 (United States) Bowoto v Chevron, above n 275, 24–31. nb: The Court at this stage appears to mistakenly cite Limaj as Lujic.

and suspected collaborators targeted as individuals, they are therefore not tar-geted as part of the larger civilian population.270 The Prosecution responded that ‘unlike in Limaj, in this case there was a plan and specific orders from [the accused] to target civilians and civilians were attacked indiscriminately in large numbers’.271 Without explicitly rejecting the Trial Chamber’s citation of the finding in Limaj, the Chamber noted that persons accused of ‘collabo-rating’ with the government or armed forces are accorded civilian status un-der international law and therefore should be considered part of the ‘civilian population’.272 Accordingly, the decision appears to make clear that a group’s ‘real or perceived connection’ with one side of a conflict will not prevent the group being a civilian population273 at least when they are targeted unlawfully and in large numbers.

The finding in Limaj was relied upon heavily in the decision of the us District Court of the Northern District of California in the civil decision of Bowoto v Chevron Corporation.274 The case concerned the Nigerian govern-ment security forces – allegedly with the assistance of Chevron – violently suppressing individuals protesting petroleum development in the Niger Delta. Following Limaj,275 The Court considered that, ‘[i]f they [the victims] were targeted based on individualized suspicion of engaging in certain behaviour, then the attack was not “directed at a civilian population,” and was less likely to be “widespread”.’ The Court concluded that, like Limaj, the victims were tar-geted ‘because they were oil protestors, or because they were associated with oil protestors’. They were not targeted, as they were in Galić, simply because they were civilians’.

Such reasoning should not be regarded as the correct application of the remarks in Limaj. Ultimately, the proposition in Limaj that the targeting of a select group of civilians – such as the targeted killing of a number of politi-cal opponents – cannot amount to a crime against humanity, needs to be un-derstood by interpreting the word ‘select’ as primarily encompassing a small number of victims selected because of specific individual attributes. If enough


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276 See Chapter 8, Sections 3.2 and 4.8.277 See, for example, (France) Barbie, above n 127; see also and Chapters 2 and 3.278 (Canada) Mugesera – Supreme Court, above n 55, [163].

persons are attacked with sufficient seriousness – for example, 200 killed with-out due process or cause – even if this is because of their opposition to a regime and/or they are being attacked in part to intimidate a wider group of civilians, the attack may properly be described as being directed against a population. Hence, an attack on a football crowd, demonstrators or even a prison popula-tion may be a crime against humanity.

While the international community has at times sought to distinguish acts of ‘terrorism’ from ‘crimes against humanity’,276 that is not to say that there cannot be some overlap between the two crimes. Ultimately, the position un-der customary international law has now developed to the point where it can be sufficient in some circumstances for a group of individuals to be targeted for political reasons and that this can amount to a crime against humanity pro-vided that the requisite scale and level of seriousness is reached.

First, this position is consistent with the fact that persons who are ‘collabo-rators’ (of whatever ethnic or national origin) have frequently been held to be victims of crimes against humanity. At Nuremberg, the charges of crimes against humanity covered acts towards individual non-Jewish opponents of the Nazi regime. This was followed in the French jurisprudence to cover Nazi acts of retribution against the French Resistance, irrespective of whether such persons were Jewish and even if the attack was directed primarily against the Resistance itself.277 The key factor in the French jurisprudence was that the state was practising a general policy of ideological supremacy (meaning, in effect, a policy of terror, violence and human rights abuses).

The same approach was adopted by the Supreme Court in Canada in Muge-sera, where the Court considered an incitement to violence in Rwanda in 1990 - where the scale of the violence was far less than in 1994. It concluded that, at the time, there was an attack directed against the Tutsi and moderate Hutu. The latter group was identified as being ethnically Hutu but who either in fact opposed, or perceived to be opposed, to the violence directed against the Tutsi and those who would perpetrate such violence. The two groups ‘were ethnical-ly and politically identifiable’ and ‘were a civilian population as this term is un-derstood in customary international law’.278 The inclusion of ‘moderate Hutu’ as a politically identifiable ‘civilian population’ shows a flexible approach to the term ‘civilian population’.

Secondly, there is significant support for the view that a population may be targeted on the ‘political’ grounds. Despite Limaj and Haradinaj, the majority of


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279 (IACtHR) Almonacid-Arellano, above n 13 [82(6)].280 (United States) Doe v Alvaro Rafael Saravia et al. (Findings of Fact and Conclusions of

Law), District Court for the Eastern District of California, Case No CIV-F-03-6249 oww ljo (24 November 2004) (‘Doe v Saravia – District Court’),

281 (icty) Naletilić – Trial, above n 22, [636]; Kvočka – Trial, above n 233, [195].282 eccc Statute, Art 5; and ictr Statute, Art 3.283 (icc) Katanga – Confirmation, above n 109, [399]; Bemba Gombo – Confirmation, above

n 24 [76]; Kenya – Authorisation Decision, above n 24, [81]; Prosecutor v Ruto et al. (Pre-Trial Chamber ii Confirmation Decision), ICC-01/09-01/11-373 (5 February 2012) (‘Ruto – Confirmation’), [164]; and Prosecutor v Muthaura et al. (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute), Pre-Trial Chamber ii, Case No ICC-01/09-02/11-382-Red (29 January 2012) (‘Muthaura – Confirmation’), [110].

authorities appear to accept that an attack on dissidents can suffice in certain circumstances. As discussed in Chapter 7, it has been held that attacks on ‘dis-sidents’, political opponents and undesirables in East Timor and Bangladesh, political dissidents in Latin America, Former Soviet states of Latvia, Hungary, Romania, and African states Ethiopia and Senegal can be a crime against hu-manity, even though, no doubt, the individual attributes of the victims played a role in the individuals being targeted. In respect of Chile in particular, the Inter-American Court of Human Rights held in the case of Almonacid-Arellano that the attack in question was an ‘attempt to carry out a “cleanup” operation aimed at those who were regarded as dangerous by reason of their ideas and activities and to instil fear into their colleagues who eventually might be a “threat”’ and, indeed, that ‘the selection of victims was largely carried out ar-bitrarily’.279 The assassination of Archbishop Romero in El Salvador is another example.280

A number of icty Trial Chambers have also held that the underlying crime of persecution may be committed ‘where a person is targeted on the basis of religious, political or racial considerations’ (emphasis added) and that the ‘tar-geted group must be interpreted broadly, and may, in particular, include such persons who are defined by the perpetrator as belonging to the victim group due to their close affiliations or sympathies for the victim group’ (emphasis in origi-nal).281 This position is also consistent with the additional requirement in the ictr and eccc statutes that a crime against humanity be committed on ‘na-tional, political, ethnic, racial or religious grounds’282 (emphasis added).

Further, the early decisions of the icc held that the population targeted encompasses opposition or dissident groups or a group ‘defined by its (per-ceived) political affiliation’.283 Pre-Trial Chamber ii in the Ruto Confirmation Decision held that there was a relevant ‘attack against a civilian population’ de-spite the fact that ‘the criterion used by the perpetrators to identify and attack


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284 (icc) Ruto – Confirmation, above n 284, [172]–[174]. A similar finding was made in Muthaura – Confirmation, above n 284, [142]–[145].

285 (scsl) cdf – Appeal, above n 92, [260]–[264].286 (scsl) cdf – Appeal, above n 92, [263] citing Semanza – Trial, above n 24, [330] (to the

effect that ‘The victim(s) of the enumerated act need not necessarily share geographic or other defining features with the criminal population that forms the primary target of the underlying attack, but such characteristics may be used to demonstrate that the enu-merated act forms part of the attacks’), afrc – Trial, above n 25, [225] and Almonacid-Arellano, above n 13.

287 (scsl) afrc – Trial, above n 25, [225], cited in cdf – Appeal, above n 92, [263].288 See Chapter 8, Section 3.2.289 This finding was in fact specifically made by the Court: see Bowoto v Chevron, above n 275,

30–31.

their victims was essentially their perceived political affiliation with the pnu [i.e. the rival political party].’284

Both points were confirmed by the scsl Appeals Chamber in the cdf Case.285 The Chamber rejected the view that a group must be distinguished based on ‘nationality, race or ethnicity’, noting that a number of cases had found that a ‘civilian population’ was targeted ‘based on less defined grounds’ which included ‘alleged or perceived opponents to a regime, faction or po-litical party’.286 The Appeals Chamber endorsed the finding of the scsl Trial Chamber in the afrc Case that there was an attack against a civilian popu-lation despite the attack being ‘aimed broadly at quelling opposition to the regime and punishing civilians suspected of supporting the cdf/Kamajors’.287

The authors suggest that both Limaj and Haradinaj should be viewed as supporting the following two propositions. First, the attacks simply did not reach the requisite level of scale to be said to have been targeting a ‘popula-tion’ as opposed to the combination of a number of single, isolated events. Precisely when that scale is met is discussed in Chapter 8.288 On the one hand, in the cases before the scsl as well as cases in East Timor, Bangladesh, South America, Ex-Soviet States and Africa, the number of victims were typically in the hundreds and thousands and were sufficiently large that the attack could clearly be said to have been against a ‘population’. On the other hand, the killing of around 60 people surrounding the assassination of Prime Minister Hariri was rejected by the international community as being sufficient to con-stitute crimes against humanity for the purposes of the jurisdiction of the stl. Bowoto v Chevron Corporation is better understood either in the same way as Limaj (namely, that the minimum scale and seriousness was not reached) or that the killings in question occurred over such a large period of time against such a wide range of targets as to constitute a number of single, isolated acts rather than attacks directed against a population.289


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290 (icc) Katanga – Confirmation, above n 109, [399].291 (icc) Katanga – Confirmation, above n 109, [399], citing Tadić – Trial, above n 5, [635].

Secondly, the kla (unlike all of the other cases discussed) was a weak non-state resistance movement with limited resources operating against a superior state force itself practising a policy of terror. In such circumstances, it is diffi-cult to find that the kla committed an attack against a ‘population’.

A broad interpretation to the word ‘population’ highlights the issues of whether a policy element is required and the requisite nature of the organ-isation which can be the author of a crime against humanity. As discussed in Chapter 8, killing 200 innocent civilians may be a crime against humanity when carried out by a State or de facto power pursuant to a policy to kill such civilians, even without those civilians sharing some ‘distinguishing feature’ be-yond whatever happens to be the rationale of such an attack – such as to quell opposition or a protest or simply to instil fear in the general population. On the other hand, if a single person or a fairly weak or poorly organised terror-ist group kills 200 innocent civilians, even if marked out because of a ‘distin-guishing feature’, such as ethnicity or religion, this may not amount to a crime against humanity.

5.2 Position at the iccIt is unclear whether the position at the icc differs from that articulated above. In the Katanga Confirmation Decision, the Pre-Trial Chamber considered that the drafters of the icc Statute had left the term ‘any civilian population’ un-defined and that ‘as opposed to war crimes … the term “civilian population” within the meaning of article 7 of the Statute affords rights and protections to “any civilian population” regardless of their nationality, ethnicity or other dis-tinguishing feature’.290 The Chamber then cited from the icty Trial Chamber in Tadić to the following effect:291

The requirement … that the enumerated acts be “directed against any civilian population” contains several elements. The inclusion of the word “any” makes it clear that crimes against humanity can be committed against civilians of the same nationality as the perpetrator or those who are stateless, as well as those of a different nationality. However, the re-maining aspects, namely, the definition of a “civilian” population and the implications of the term “population”, require further examination.

In the Bemba Gombo Confirmation Decision, the Chamber found that the term was ‘not defined’ but was ‘not novel’; the Chamber then endorsed the find-ing of the Pre-Trial Chamber in the Katanga Confirmation Decision that ‘the


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292 (icc) Bemba Gombo – Confirmation, above n 24, [76].293 (icc) Kenya – Authorisation Decision, above n 24, [81]294 (icc) Muthaura – Confirmation, above n 284, [110].295 (icc) Laurent Gbagbo – Confirmation Decision, above n 74, [209].296 (icc) Prosecutor v Ongwen (Decision on the confirmation of charges against Dominic

Ongwen), Pre-Trial Chamber ii, ICC-02/04-01/15-422-Red (23 March 2016) (‘Ongwen – Confirmation’), [62]–[63].

297 (icc) Bemba Gombo – Trial, above n 76, [154].298 (icc) Bemba Gombo – Trial, above n 76, [155].

potential civilian victims under article 7 of the Statute could be of any nation-ality, ethnicity or other distinguishing features’.292 The same finding was made in the Kenya Authorisation Decision.293 While again not clear, this impliedly suggests an acceptance that while the ‘population’ attacked may be ‘any’ such population, it nonetheless must be a ‘population’ defined by ‘nationality, eth-nicity or other distinguishing features’.

icc Pre-Trial Chamber i in the Muthaura Confirmation Decision took a similar approach although extended it to groups defined on political grounds. The Pre-Trial Chamber held that the term ‘any civilian population’ ‘has been previously interpreted to mean “groups distinguishable by nationality, ethnic-ity or other distinguishing features”’ and that this includes ‘a group defined by its (perceived) political affiliation’.294 This was followed in the Laurent Gbagbo Confirmation Decision.295 In the Ongwen Confirmation Decision, Pre-Trial Chamber ii did not review the contextual elements of crimes against hu-manity, but appeared to consider the group attacked to be those who resided in internally displaced camps and were therefore perceived as government supporters.296

The Katanga Trial Judgment and the Bemba Gombo Trial Judgment do not make clear what meaning they attribute to the word ‘population’ as opposed to ‘any’, ‘civilian’ and ‘directed against’. In the Bemba Gombo Trial Judgment, for instance, the Trial Chamber held that the term ‘directed against’ the civil-ian population did not require the prosecution prove ‘the entire population of a geographical area’ was targeted but only that civilians were targeted ‘in numbers or a manner sufficient to satisfy the Chamber that the “attack” was directed against the civilian population, as opposed to just a limited number of individuals.’297 The Trial Chamber went on to hold that the term ‘any’ meant that the provision was ‘not limited to populations defined by common nation-ality, ethnicity or other similar distinguishing features’ (emphasis added), cit-ing the Katanga and Bemba Gombo Confirmation Decisions.298

Ultimately, the better view is that the terms should be interpreted in the same manner as under customary international law. As the icc has recognised,


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299 (icty) Tadić – Appeal, above n 24, [248]; Kunarac – Appeal, above n 22, [93], [97], fol-lowed in Stakić – Appeal, [246]; Blaškić – Appeal, above n 91, [98] (following Tadić – Appeal and Kunarac – Appeal); Kordić – Appeal, above n 50, [93] (following Blaškić – Appeal); (ictr) Akayesu – Trial, above n 24, [579], followed in Kayishema – Trial, above n 56, [123] and Rutaganda – Trial, above n 54, [67]; Prosecutor v Ntakirutimana (Appeals Chamber Judgment), Case No ICTR-96-10-A & ICTR-96-17-A (13 December 2004) (‘Ntakirutimana – Appeal’), [515]; (scsl) afrc – Trial, above n 25, [215]; cdf – Trial, above n 5, [112]; ruf – Trial, above n 40, [78]; Taylor – Trial, above n 24, [511]; (eccc) Duch – Trial, above n 24, [300]; Case 002/01 – Trial, above n 24, [179]; (icc) Katanga – Confirmation, above n 109, [412]; Kenya Authorisation Decision, above n 24, [94]; and Bemba Gombo – Confirmation, above n 24, [82].

300 (icty) Blaškić – Trial, above n 22, [207]; Jelisić – Trial, above n 110, [53]; (eccc) Duch – Trial, above n 24, [300]. See also: Schabas, above n 45, 149; Mettraux, above n 58, 171.

301 See Chapter 8, Section 3.1.302 See Chapter 8, Section 3.2.

the term had a defined meaning at the time of the Rome Conference and there appears to be no apparent intention either at the Rome Conference or the text of the icc Statute for departing from that position.

6 ‘Widespread or Systematic’

6.1 Widespread or Systematic AttackThe position of the ad hoc Tribunals and the icc is that the attack must be ‘widespread’ or ‘systematic’; it need not be both.299 Despite this position, it was contended in Chapter 8 that some ambiguity remains in the application of this principle. As some trial chambers and commentators have stated, the term ‘systematic’ overlaps with ‘widespread’ and the two will be difficult to separate in practice.300 The resolution of the term must also be considered alongside the requirement that an attack be directed against a ‘population’ (discussed above) and the debated ‘policy’ requirement (discussed above).

Ultimately, two main conclusions were reached in Chapter 8 in respect of the position under customary international law. First, it was concluded that, whether an attack be ‘widespread’ or ‘systematic’, the attack must reach a cer-tain minimum level of scale and seriousness.301 This will usually be satisfied by a ‘widespread’ attack constituted by atrocities and deaths in the thousands, but may be satisfied by a ‘systematic’ attack constituted by atrocities and deaths in the hundreds (and possibly smaller) in exceptional circumstances.302

Secondly, insofar as the icc is concerned, the position reached was largely the same as that under customary international law, although it may be less


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303 See, in particular Chapter 8, Sections 3.2, 4.7.3 and 4.9.304 (icty) Tadić – Trial, above n 5, [649], followed in Kupreškić – Trial, above n 99, [550]

and Kunarac – Trial, above n 22, [431]; Kunarac – Appeal, above n 22, [96] (affirming Kunarac – Trial, [431]), followed in Blaškić – Appeal, above n 91, [101], Kordić – Appeal, above n 50, [94], (ictr) Prosecutor v Gacumbitsi (Appeals Chamber Judgment), Case No ICTR-2001-64-A (7 July 2006) (‘Gacumbitsi – Appeal’), [102]; Nahimana – Appeal, above n 22, [924] (scsl) afrc – Trial, above n 25, [215]; (eccc) Duch – Trial, above n 24, [301], Case 002/01 – Trial, above n 24, [179]; (icc) Kenya Authorisation Decision, above n 24, [94]; (United States) Doe v Saravia – District Court, above n 281, [263]; and (Bangladesh) Chief Prosecutor v Professor Ghulam Azam (Trial Chamber Judgment), ict-bd Case No 06 of 2011 (15 July 2013) (‘Prof. Azam – Judgment’), [306].

305 Ibid.306 (icty) Kupreškić – Trial, above n 99, [550], citing the judgments of the Supreme Court

for the British Zone in: Entscheidungen des Obersten Gerichtshofes für die Britische Zone in Strafsachen, vol. i, pp. 6 et seq.; 19 et seq.; 39 et seq.; 45 et seq.; 49 et seq.; 56 et seq.

307 (United States) Doe v Saravia – District Court, above n 281, [263].

onerous given the particular jurisdiction being exercised by the icc.303 That is, reiterating the theme developed throughout this text, the contextual element of crimes against humanity should be seen as jurisdictional in nature, arising out of states’ desires to balance the protection of human rights with state sov-ereignty. The icc Statute contains a number of safeguards that protect state sovereignty, that the ad hoc tribunals and states exercising universal jurisdic-tion do not – namely, that a case will not be admissible unless it is of sufficient gravity and that the state with jurisdiction over the offence is unwilling or un-able to prosecute. Accordingly, it was argued that both, the requirement that an attack reach a minimum scale and seriousness, and the policy requirement, may be interpreted as being less onerous, than is required by the position un-der customary international law.

In any case, only the attack, not the acts of the accused, must be widespread or systematic.304 If all other conditions are met, a single or limited number of acts with a single victim could be a crime against humanity.305 As the icty Trial chamber in Kupreškić noted, the act of denouncing a Jewish neighbour to the Nazi authorities – if committed against a background of widespread persecution – has been regarded as amounting to a crime against humanity.306 Similarly, a us District Court in Doe v Saravia found that the assassination of Archbishop Romero – a vocal opponent of the El Salvadoran government – constituted a crime against humanity as it formed a part of a broader attack that was directed against a civilian population.307


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308 (icty) Kunarac – Appeal, above n 22, [95], followed in Brđanin – Trial, above n 22, [136].309 Mettraux, above n 58, 171.310 (France) Pascal Senyamhara Safari alias Simbikangwa (Grounds for Verdict), Cour

d’Assises Paris (14 March 2014). See Chapter 7, Section 3.2.2.

The icty Appeal Chamber in Kunarac held that the following factors may be taken into account in assessing whether or not the ‘widespread’ or ‘system-atic’ elements are satisfied:308

• the consequences of the attack on the targeted population;• the number of victims;• the nature of the acts;• the possible participation of officials or authorities; and• any identifiable patterns of crimes.

Mettraux has noted that the following factors may also be relevant in consider-ing whether or not the attack was ‘widespread’ or ‘systematic’:309

• the logistics and financial resources involved;• the existence of public statements or political views underpinning the

events;• the existence of a plan or policy targeting a specific group of individuals;• the foreseeability of the criminal occurrences;• temporally and geographically repeated and coordinated military opera-

tions which all led to the same result or consequences;• alteration of the ethnic, religious, or racial composition of the population;• the establishment and implementation of autonomous political or military

structures at any level of authority in a given territory; and• the adoption of various discriminatory measures.

A similar list of key factors was provided by the French Cour d’Assises in Sim-bikangwa albeit specific to the Rwandan case before the Court.310 While such statements may be a useful starting point, the terms ‘widespread’ and ‘system-atic’ must be looked at individually in more detail.

6.2 ‘Widespread’With one exception (discussed below), the ad hoc Tribunals have tended to follow the commentary of the ilc as to the meaning of the term ‘widespread’, namely, that it refers to ‘large scale action with a significant number of the


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311 (icty) Kunarac – Appeal, above n 22, [94] (citing Tadić – Trial, above n 5, [648]), followed in Kordić – Appeal, above n 50, [94], Blaškić – Appeal, above n 91, [101], (ictr) Nahimana – Appeal, above n 22, [920], Bagosora – Appeal, above n 88, [389]; Bagilishema – Trial, above n 191, [77]; Kayishema – Trial, above n 56, [123]; (scsl) ruf – Trial, above n 40, [78]; cdf – Trial, above n 5, [112]; Taylor – Trial, above n 24, [511]; (eccc) Duch – Trial, above n 24, [300], Case 002/01 – Trial, above n 24, [179]; (eac) Habré – Trial, above n 22, [1359]. See also (spet) Los Palos – Judgment, above n 22, [636].

312 (icty) Tadić – Trial, above n 5, [648].313 (icty) Tadić – Trial, above n 5, [648].314 (scsl) afrc – Trial, above n 25, [215]; (eccc) Case 002/01 – Trial, above n 24, [179].315 See above, Section 2.1.316 (icc) Katanga – Confirmation, above n 109, [395]; Bemba Gombo – Confirmation, above

n 24, [83]. See also Werle, above n 136, 225.

victims’.311 While on one view this may suggest that an attack may either cover a wide geographical area or a large number of victims, the better view appears to be that the focus is the number of victims. The ilc text relied upon by Tadić and, in turn, Kunarac, stated that the requirement was that ‘inhumane acts be committed on a large scale meaning that the acts are directed against a mul-tiplicity of victims’312 (underlining added). The text further states that ‘[t]his requirement excludes an isolated inhumane act committed by a perpetrator acting on his own initiative and directed against a single victim.’313 The scsl and the eccc314 have adopted the same definition.

While the focus may be on the number of victims, the reality is that the is-sues of geographical scale and number of victims will likely overlap. It is diffi-cult to see how an attack could be said to cover a wide geographical area unless it also led to a large number of victims throughout that area. Were a large-scale military assault to move through a large geographical area (e.g. 10 villages), it would be difficult to prove an ‘attack’ was ‘widespread’ were there only to be a small number of civilian victims in each of the 10 villages (e.g. 4 or 5). Simi-larly, outside the exceptional case of a single act of extraordinary magnitude discussed above,315 an attack that affects a large number of victims will usually occur across a large geographical area.

While not entirely free from doubt, the position at the icc appears to be the same. Some early Pre-Trial Chambers required only that there be a large number of victims or cover a large geographical area, this appeared to be on the basis that an attack may cover either ‘a large geographic area or an attack in a small geographical area, but directed at a large number of civilians’.316 Said differently, this says only that a widespread attack need not cover a large geo-graphical area if it affects a multiplicity of victims (e.g. if there is a single act of extraordinary magnitude). Later decisions appear to have adopted the more


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317 (icc) Kenya – Authorisation Decision, above n 24, [95]; Laurent Gbagbo – Confirmation, above n 74, [222].

318 (ictr) Akayesu – Trial, above n 24, [580].319 (ictr) Musema – Trial, above n 54, [204], Rutaganda – Trial, above n 54, [68].320 (ictr) Semanza – Trial, above n 24, [329] (‘large-scale’); Prosecutor v Ntakirutimana

(Trial Chamber Judgment), Case No ICTR-96-10-T & ICTR-96-17-T (21 February 2003) (‘ Ntakirutimana – Trial’), [804] (‘massive or large-scale, involving many victims’); Pros-ecutor v Niyitegeka (Trial Chamber Judgment), Case No ICTR-96-14-T (16 May 2003) (‘ Niyitegeka – Trial’), [439] (‘massive or large-scale, involving many victims’); Kayishema – Trial, above n 56, [123] (‘directed against a multiplicity of victims’, citing the ilc rather than Akayesu – Trial).

321 (ictr) Kajelijeli – Trial, above n 56, [871] (citing Niyitegeka – Trial, above n 321, and Ntakirutimana – Trial, above n 321), followed in Bisengimana – Trial, above n 132, [44].

322 (ictr) Nahimana – Appeal, above n 22, [920], Bagosora – Appeal, above n 88, [389].

qualified position that the widespread element refers to both the large-scale nature of the attack and the number of victims and that ‘[t]he assessment is neither exclusively quantitative nor geographical, but must be carried out on the basis of the individual facts’.317

Ultimately, the better view is that while the primary focus must be on the number of victims, other factors will be relevant to determining whether a widespread attack has occurred in the circumstances.

The one exception to the ilc formulation is that a number of Chambers have instead relied on the formulation of the ictr Trial Chamber in Akayesu on the meaning of ‘widespread’. There, the Trial Chamber stated that the ‘concept of widespread may be defined as massive, frequent, large scale ac-tion carried out collectively with incredible seriousness and directed against a multiplicity of victims’.318 A question arises as to whether this imposes a differ-ent and possibly higher standard than that imposed by the ilc test. While the position is not entirely free from doubt, this appears to be a different way of stating the same test as set out by the ilc.

First, a number of Chambers apply the two tests without considering there to be any difference. While some ictr Chambers followed the Akayesu defini-tion,319 others have used language more closely resembling the ilc definition but purporting to follow Akayesu.320 Referring to these differing statements of the applicable test, the ictr Trial Chamber in Kajelijeli held that all ‘refer to the scale of the attack, and sometimes the multiplicity of victims’ and that, ultimately, the test was whether the attack was ‘large scale, involving many vic-tims’.321 More recent ictr Appeal Chamber decisions have appeared to follow the ilc definition.322


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323 (icc) Prosecutor v Germain Katanga (Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga), ICC-01/04-01/07-262 (7 July 2007) (‘Katanga – Arrest Warrant’), [33], followed in Katanga – Confirmation, above n 109, [395]; Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir), Pre-Trial Chamber i, ICC-02/05-01/09-3 (4 March 2009) (‘Al Bashir – Arrest War-rant Decision’), [81].

325 (icc) Bemba Gombo – Trial, above n 76, [163]; Bemba Gombo – Confirmation, above n 24, [83]; Kenya – Authorisation Decision, above n 24, [95]; Laurent Gbagbo – Confirmation, above n 74, [222]. The Chambers rely on Katanga – Confirmation, above n 109, in addition to Akayesu – Trial.

326 (icc) Bemba Gombo – Trial, above n 76, [163].327 See Chapter 8, Section 3.2.328 See Chapter 8, Section 3.2.329 E.g. the shelling and sniping of the residents of Sarajevo seen in the Galić Case in the

icty, the massacre by Iraqi authorities in the Al Dujail Case in the Iraqi High Tribunal or the massacres committed by the Gaddaffi regime against Libyans in 2011 (all of which are discussed in more detail in Chapter 8, Section 3.2).

330 E.g. the atrocities in Rwanda.

Similarly, as in the ictr Chambers, some icc Chambers have adopted the definition of the ilc,323 while others have cited the definition in Akayesu, although without appearing to view the two as being relevantly different.324

Secondly, the kind of scale required for an attack to be widespread implied by the test enunciated in Akayesu is consistent with general practice.325 In Chap-ter 8, a detailed analysis was conducted of the case law and it was concluded that an attack must reach a minimum level of scale before it may constitute a crime against humanity, whether the attack was ‘widespread’ or ‘systematic’.326 Only once that minimum scale and seriousness is met does the crime rise to a level of international concern.

As discussed in Chapter 8,327 from that starting point, the term ‘widespread’ must be read in contradistinction to ‘systematic’. The term ‘systematic’ encom-passes an attack that may not necessarily be ‘widespread’ but follows a pat-tern of control, direction and intensity that it is of international concern (for instance, a deliberate massacre carried out directly by a head of state328). The term ‘widespread’ refers to an attack that encompasses so many victims (and possibly such a wide geographical area) that the attack is of international con-cern regardless of the fact that it may not be said to be ‘systematic’ in the sense of being controlled or directed.329

6.3 ‘Systematic’Like the term ‘widespread’, the ad hoc Tribunals have tended to follow the commentary of the ilc as to the meaning of the term ‘systematic’, referring to


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330 (icty) Kunarac – Appeal, above n 22, [94] (citing Tadić – Trial, above n 5, [648]), followed in Kordić – Appeal, above n 50, [94]; Blaškić – Appeal, above n 91, [101], (ictr) Nahimana – Appeal, above n 22, [920], Bagosora – Appeal, above n 88, [389]; Report of the International Law Commission on the Work of its Forty-Third Session, un gaor, 46th sess, Supp 10, un Doc. A/46/10 (22 October 1991) 266 (‘1991 ilc Report’); and 1996 ilc Report, above n 36, 94–95. (scsl) cdf – Trial, above n 5, [112]; ruf – Trial, above n 40, [78]; Taylor – Trial, above n 24, [511]; (eccc) Duch – Trial, above n 24, [300]; and Case 002/01 – Trial, above n 24, [179]; (eac) Habré – Trial, above n 22, [1360].

331 (icty) Tadić – Trial, above n 5, [648]–[649].332 (ictr) Gacumbitsi – Appeal, above n 305, [101] (‘a deliberate pattern of conduct, but does

not necessarily include the idea of a plan’); Semanza – Trial, above n 24, (‘organized na-ture of the attack’); Ntakirutimana – Trial, above n 321, [804] (‘organized pattern of con-duct, not a mere random occurrence’).

333 (icty) Kunarac – Appeal, above n 22, [94] (affirming Kunarac – Trial, above n 22, [429]), followed in Blaškić – Appeal, above n 91, [101], Kordić – Appeal, above n 50, [94], (scsl) cdf – Trial, above n 5, [112], ruf – Trial, above n 40, [78], afrc – Trial, above n 25, [215].

334 (icc) Kenya – Authorisation Decision, above n 24, [96]; Laurent Gbagbo – Confirmation, above n 74, [223]; (eccc) Case 002/01 – Trial, above n 24, [179].

335 (ictr) Akayesu – Trial, above n 24, [580], followed in Rutaganda – Trial, above n 54, [68] and (scsl) afrc – Trial, above n 25, [215].

the ‘organised nature of the violence or mistreatment and the improbability of their random occurrence’.330 As the Trial Chamber in Tadić noted, the ilc considered that the requirement of systematicity would be satisfied by a ‘pat-tern or methodical plan’ or a ‘preconceived plan or policy [which] could result in the repeated or continuous commission of inhumane acts’.331 Some ictr Chambers have defined it in similar ways.332 The Appeal Chamber in Kunarac further held that ‘patterns of crimes – that is the non-accidental repetition of similar criminal conduct on a regular basis – are a common expression of such systematic occurrence’.333 These principles have been followed in the icc and eccc.334

A question arises in interpreting the term ‘systematic’ as to how the term should be seen to differ from the policy element. While the majority of tribu-nals cite only a high-level definition if ‘systematic’ as above, a few early Trial Chambers elaborated on the term in a manner that suggested a very large over-lap between the two concepts. The ictr Trial Chamber in Akayesu held that ‘[t]he concept of “systematic” may be defined as thoroughly organised and fol-lowing a regular pattern on the basis of a common policy involving substantial public or private resources’ and stated that, while there was ‘no requirement that this policy must be adopted formally as the policy of a state[; t]here must however be some kind of preconceived plan or policy’.335 Similarly, the spet in


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336 (spet) Los Palos – Judgment, above n 22, [637].337 (icty) Blaškić – Trial, above n 22, [203], followed in (Indonesia) Prosecutor v Abilio Soares

(Judgment), Case No 01/PID.HAM/AD.Hoc/2002/ph.JKT.PST (14 August 2002) (‘Abilio Soares – Judgment’), 79; (Bangladesh) Molla – Judgment, above n 91, [376].

338 Citing: (icty) Tadić – Trial, above n 5, [648]; (ictr) Akayesu – Trial, above n 24, [580]; Kayishema – Trial, above n 56, [123]; and (Netherlands) Public Prosecutor v Menten (Judg-ment), Supreme Court of the Netherlands (13 January 1981), reprinted in (1987) 75 ilr 331 (‘Menten – Judgment’) 362–363 (‘The concept of crimes against humanity also requires – although this is not expressed in so many words in the […] definition – that the crimes in question form part of a system based on terror or constitute a link in a consciously pur-sued policy directed against particular groups of people’ (emphasis added)’).

339 Citing the 1996 ilc Report, above n 36, 94 (stating that the term systematic means ‘pur-suant to a preconceived plan or policy. The implementation of this plan or policy could result in the repeated or continuous commission of inhumane acts’); and 1991 ilc Report, above n 331, 266 (which created the offence of ‘Systematic or mass violations of human rights’ under Article 21 and which stated that the systematic characteristic related to a ‘constant practice or to a methodical plan to carry out […] violations of human rights’).

340 Citing (ictr) Akayesu – Trial, above n 24, [580].341 (icty) Kordić – Trial, above n 134, [182].

Los Palos held that it required an act be ‘carried out pursuant to a preconceived policy or plan’.336

The icty Trial Chamber in Blaškić held that the systematic character em-bodied four elements:337

• the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or weaken a community;338

• the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another;339

• the preparation and use of significant public or private resources, whether military or other;340

• the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan.

The ultimate rejection of the requirement of a policy by the icty Appeals Chamber in Kunarac has not rendered these principles redundant. As the icty Trial Chamber in Kordić held – after doubting that the policy element was a ‘requirement as such’ – ‘the existence of a plan or policy should better be regarded as indicative of the systematic character of offences charged as crimes against humanity’.341 This was followed by the icty Trial Chamber in Limaj – decided


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342 (icty) Limaj – Trial, above n 22, [212]–[213].343 (icty) Limaj – Trial, above n 22, [212]–[213]. For its final two sentences, the Cham-

ber referred to Kupreškić – Trial, above n 99, [552] and Tadić – Trial, above n 5, [654], respectively.

344 See Chapter 8, Sections 4.2 and 4.7.345 (icty) Limaj – Trial, above n 22, [212].346 (icty) Limaj – Trial, above n 22, [213].347 (icty) Limaj – Trial, above n 22, [213], citing Tadić – Trial, above n 5, [654]; and Kupreškić –

Trial, above n 99, [552].348 (icc) Kenya – Authorisation Decision, above n 24, [96].

after the decision of the Appeals Chamber decision in Kunarac. The Chamber in Limaj stated that ‘[t]he existence of a plan or policy can be indicative of the systematic character of offences charged as crimes against humanity’.342 The Trial Chamber continued that:343

Although not a legal element of Article 5, evidence of a policy or plan is an important indication that the acts in question are not merely the workings of individuals acting pursuant to haphazard or individual design, but instead have a level of organisational coherence and support of a magnitude sufficient to elevate them into the realm of crimes against humanity.

Accordingly, the principles relevant to the so-called ‘policy element’ – discussed in detail in Chapter 8344 – will be relevant indicia as to whether an attack is ‘systematic’. For instance, it was held in Limaj that while this aspect will ‘most often’ be present where there is ‘significant State action and where formal channels of command can be discerned’345 and that ‘[s]pecial issues arise … in considering whether a sub-state unit or armed opposition group, whether insurrectionist or trans-boundary in nature, evinces a policy to direct an attack’.346 In the view of the Trial Chamber, following the Tadić Trial Cham-ber, ‘such an organisational unit must demonstrate in order to have sufficient competence to formulate a policy is a level of de facto control over territory’.347 In Chapter 8, it was contended that the author of the attack must be either a State or organisation in the nature of a de facto power under customary inter-national law.

Various icc Pre-Trial Chambers have taken slightly differing approaches. On the one hand, the icc Pre-Trial Chamber in the Kenya Authorisation Decision cited both the factors listed in Akayesu and in Blaškić as being relevant to the application of the ‘systematic’ element.348 On the other hand, other Pre-Trial


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349 (icc) Katanga – Confirmation, above n 109, [397]; and (icc) Laurent Gbagbo – Confirma-tion, above n 74, [216].

350 Namely, (icc) Katanga – Confirmation, above n 109, [396], Bemba Gombo – Confirmation, above n 24, [81], Kenya – Authorisation Decision, above n 24, [84] and Prosecutor v Laurent Gbagbo (Decision on the Prosecutor’s Application Pursuant to Article 58 for a warrant of arrest), Pre-Trial Chamber iii, ICC-02/11-01/11/11-9-Red (30 November 2011) (‘Gbagbo – Arrest Warrant Decision’), [37].

351 (icc) Katanga – Trial, above n 77, [1111]–[1113].352 (icc) Katanga – Trial, above n 77, [1113].353 (icc) Ruto – Confirmation, above n 284, [166].354 (icc) Ruto – Confirmation, above n 284, [169].

Chambers have been satisfied simply where there is either ‘an organised plan in furtherance of a common policy, which follows a regular pattern and results in a continuous commission of acts’ (citing Akayesu) ‘or as “patterns of crimes” such that the crimes constitute a “non-accidental repetition of similar criminal conduct on a regular basis”’ (citing Kunarac), without citing the Blaškić Trial Chamber.349

The majority of the Trial Chamber in Katanga distanced itself from the earlier decisions of the Pre-Trial Chambers.350 The majority distinguished the requirement of a ‘policy’ – which the majority considered best understood as being the intention of committing or meaning to commit the attack – from the requirement that an attack is ‘systematic’, referring to the existence of a ‘pattern of repeated conduct or the recurring or continuous perpetration of interlinked, non-random acts’.351 The majority considered that the ‘systematic’ requirement ‘goes beyond the existence of any policy’ and also entails:352

…inquiry as to whether a series of repeated actions seeking to produce always the same effects on a civilian population was undertaken with consideration – identical acts or similarities in criminal practices, contin-ual repetition of a same modus operandi, similar treatment meted out to victims or consistency in such treatment across a wide geographic area.

In the Confirmation of Charges decision in Ruto et al., the defence teams attacked the Prosecution’s contention that there was an ‘attack against the civilian population’ on the basis that the attack was not an ‘organised, policy-driven form of violence’.353 In rejecting this contention, the Pre-Trial Chamber focused on two facts in particular: first, groups of the civilian population and target locations were identified in advance;354 and secondly, that some of the perpetrators who were in charge of such identification during the preparatory


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355 (icc) Ruto – Confirmation, above n 284, [170].356 See Chapter 8, Section 4.357 See Section 6.2.1.358 For a very clear example of this approach, see the legislation in Chile discussed in

Chapter 7, Section 4.2.1.359 E.g. the massacre by Iraqi authorities in the Al Dujail Case in the Iraqi High Tribunal or

the massacres committed by the Gaddaffi regime against Libyans in 2011 (all of which are discussed in more detail in Chapter 8, Section 3.2).

360 See, for example, (IACtHR) Case of Gelman v Uruguay (Judgment on Merits and Rep-arations), Inter-American Court of Human Rights, (ser. C) No 221 (24 February 2011) (‘ Gelman – Judgment’), where the Court preferred to use the term ‘systematic’ rather than ‘widespread’ to describe the attack (discussed in Chapter 7, Section 4.5.2). (icty) Another example is the shelling and sniping of the residents of Sarajevo by Bosnian Serb forces as seen in the Galić Case (among others).

361 See Chapter 8, Section 4.

phase were subsequently deployed on the ground to materially execute the attack and/or assist and direct others to do so.355

While these authorities make clear that there is an overlap between the ‘sys-tematic’ aspect and the ‘policy’ element and that the existence of a policy will be indicative of a systematic attack, the precise boundary between the two terms is still not entirely clear. In the authors’ view, the real distinction to be kept in mind is that the two terms perform very different functions.

On the one hand, the term ‘systematic’ should be read – alongside the term ‘widespread’ – as articulating the circumstances in which an attack will reach a sufficient level of scale and seriousness to attract the attention of the inter-national community. This was discussed in Chapter 8 as the humanity princi-ple.356 As discussed immediately above,357 the term ‘systematic’ encompasses an attack that may not necessarily be ‘widespread’ but follows a pattern of control, direction and intensity that it is of international concern.358 For in-stance, a deliberate massacre carried out directly by a head of state359 or a sophisticated campaign of suppressing political opponents as was witnessed in many Latin American states forming part of Operation Condor in the 1970s and 1980s.360

On the other hand, the ‘policy’ element is directed at ensuring that, in cir-cumstances in which perpetrators perpetrate such attacks with impunity due to the participation, toleration or acquiescence of the de jure or de facto authority, the perpetrators are nonetheless able to be brought to justice by the international community. This was discussed in Chapter 8 as the impunity principle.361


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362 See Chapter 8, Section 3.2.363 (icty) Tadić – Trial, above n 5, [653]; (ictr) Akayesu – Trial, above n 24, [580]; Rutaganda –

Trial, above n 54, [69]; Kayishema – Trial, above n 56, [123]–[125], [581].364 (icty) Kunarac – Appeal, above n 22, [98], [101], followed in Blaškić – Appeal, above n 91,

[100], [120], Kordić – Appeal, above n 50, [98], (ictr) Semanza – Trial, above n 24, [329]–[332], Gacumbitsi – Appeal, above n 305, [84], Nahimana – Appeal, above n 22, [922], (scsl) afrc – Trial, above n 25, [215]; ruf – Trial, above n 40, [79]; cdf – Trial, above n 5, [113]; Taylor – Trial, above n 24, [511].

365 See Chapter 8, Section 4.7.1.366 See Chapter 8, Sections 4.7.2 and 4.7.3.367 See Chapter 8, Section 4.7.4.

The circumstances in which a ‘systematic’ attack will reach a sufficient level of scale and seriousness is discussed in detail in Chapter 8.362

Finally, to the extent that the ictr Trial Chamber in Akayesu sought to establish a different and higher standard required of a systematic attack than was imposed under the ilc – namely, by requiring that it be ‘thoroughly’ organised – that proposition should be treated with some caution. In the con-text of interpreting what is a ‘systematic’ attack, such a proposition is doubtful and has not been adopted to the same extent as the ilc formulation. Secondly, in the context of what the ‘policy’ element requires, it appears inconsistent with state practice which has a less demanding test.

7 The Policy Requirement

7.1 Customary International LawIn the early jurisprudence of the ad hoc tribunals, crimes against humanity was said to require that a plan or policy be present.363 Further, the icc Statute requires that there be a ‘state or organisational policy’ present (discussed below at 7.2). Since the Kunarac Appeal Decision, however, the tribunals have held that there is no legal requirement that there be some plan or policy, but that this consideration will be evidentially relevant to determining if the attack was systematic and directed against a population.364

As noted above, this issue was discussed extensively in Chapter 8, where the authors conclude that a crime against humanity under customary internation-al law requires a policy element.365 While the position is not entirely clear, the content of the ‘policy element’ is that the attack must have either been com-mitted pursuant to either the policy, tolerance or acquiescence of a state, or of a non-state entity with control over sufficient people, people or territory that it is a de facto power (i.e. a state-like entity).366 In this context, the distinction between crimes against humanity and terrorism ought to be kept in mind.367


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368 (icc) Kenya – Authorisation Decision, above n 24, [89].369 (icc) See icc Prosecutor, Decision on the Situation in Palestine (3 April 2012), avail-

able online at <http://www.icc-cpi.int/NR/rdonlyres/9B651B80-EC43-4945-BF5A-FAFF5 F334B92/284387/SituationinPalest- ine030412ENG.pdf> (‘Situation in Palestine Decision’).

370 (icc) Situation in Palestine Decision, above n 370, [5].371 (icc) Situation in Palestine Decision, above n 370, [5].372 General Assembly Votes Overwhelmingly to Accord Palestine ‘Non-Member Observer

State’ Status in United Nations, un General Assembly Meetings Coverage, General As-sembly Press Release ga/11317 (29 November 2012), accessed online at <http://www .un.org/press/en/2012/ga11317.doc.htm> on 2 February 2015.

373 Sabin, Palestine applies for membership of icc to try Israel for Gaza destruction as alleged war crimes, The Independent (3 January 2015), accessed online at <http://www. independent .co.uk/news/world/middle-east/palestine-applies-for-membership-of-icc-to-try-israel -for-gaza-destruction-as-alleged-war-crimes-9955566.html> on 3 February 2015.

7.2 The iccUnder the icc Statute, the widespread or systematic attack must be pursuant to a ‘State or organizational policy’. Three questions arise as to this policy:

1. what is a ‘state’;2. what is an ‘organization’; and3. what is a ‘policy’.

While each of the key decisions were addressed in detail in Chapter 6, the following is a summary of the position in respect of each of the three ques-tions. Finally, the authors set out a conclusion on the suggested interpretation that should be adopted.

7.2.1 ‘State’The term ‘state’ will in most cases be ‘self-explanatory’.368 Two controversies in particular may arise, however. First, when is an entity a ‘state’, and, secondly, who in the state must possess the relevant policy.

The first issue was foreshadowed when the Government of Palestine lodged a declaration of acceptance of the exercise of jurisdiction of the icc on 22 January 2009.369 The Prosecutor refused to accept the declaration on the basis that such a declaration could only be made by a ‘State’ under Article 125.370 In such a circumstance, the Prosecutor decided that, ‘[i]n instances where it is controversial or unclear whether an applicant constitutes a “State”, it is the practice of the Secretary-General to follow or seek the General Assembly’s di-rectives on the matter’.371 Following the General Assembly’s recognition of the statehood of Palestine372 and Palestine’s application to join the icc in January 2015,373 the Prosecutor’s criteria now appears to be satisfied.


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374 (icc) Situation in Palestine Decision, above n 370, [8] (accepting that the issue may have to be considered – notwithstanding the issue of statehood was not resolved by the un organs or Assembly of States Parties – in the case of a Security Council referral).

375 (icc) Kenya Authorisation Decision, above n 24, [89] (citing (icty) Blaškić – Trial, above n 22, [205]). See also (icty) Tadić – Trial, above n 5, [653]–[655]; see also 1991 ilc Report, above n 331, 266; and 1996 ilc Report, above n 36.

376 (icc) Kenya Authorisation Decision, above n 24, [89].377 Bassiouni (2010), above n 11, 24, 28; Schabas (2008), above n 45, 973 (‘As I understand

[Bassiouni’s] view, the term organization is meant to encompass bodies within a State such as the Gestapo and the ss’).

378 (icc) Kenya – Authorisation Decision, above n 24, (Judge Kaul Dissenting Opinion), [43].379 (icc) Kenya – Authorisation Decision, above n 24, (Judge Kaul Dissenting Opinion), [43].

Notwithstanding this position, the Prosecutor has also suggested in the case of Palestine that the Court may have to decide itself whether or not an entity is a ‘State’.374 This position is likely to be correct. While the question may argu-ably be resolved on the basis of the General Assembly resolution alone, the better view is that the issue must be resolved in accordance with definition under customary international law.

As to the second issue, the icc has thus far followed the position of the ad hoc Tribunals to the effect that a ‘state’ policy ‘does not necessarily need to have been conceived “at the highest level of the State machinery”.’375 The icc Pre-Trial Chamber in the Kenya Authorisation Decision interpreted this to mean that a policy adopted by regional or even local organs of the State could satisfy the requirement of a State policy.376 This statement is properly understood, however, as relating to the ‘organisational’ limb of the policy element. It is to this end that the Trial Chamber directed its statement in Blaškić. As Bassiouni has stated, it appears that other units of the state such as the military, intel-ligence services, the police or similar organizational units will fall within the ‘organizational’ limb of the policy requirement.377

The point was also addressed by Judge Kaul in his dissenting opinion in the Kenya Authorisation Decision, namely, ‘at which level a policy may be adopted in order to be attributable to a State’.378 The Judge agreed with the majority that while acts or organs of government may be imputable or attributable to the State, questions of attribution do not solve the problem. Rather, the poli-cy must be made ‘at the high level’.379 This would include ‘the government or high-ranking military commanders’ and may also, in specific circumstances, ‘be adopted by an organ which, albeit at the regional level, such as the highest official or regional government in a province, has the means to establish a pol-icy within its sphere of action’.


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380 (icc) Laurent Gbagbo – Confirmation, above n 74, [219]–[220].381 See further discussion in Chapter 6, Section 4.2.2.382 (icc) Kenya Authorisation Decision, above n 24.383 (icc) Kenya – Authorisation Decision, above n 24, (Judge Kaul Dissenting Opinion);

Schabas, above n 45, 152; M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev. ed., Kluwer Law International: The Hague, 1999); and M. Cherif Bassiouni, The Legislative History of the International Criminal Court: Introduction, Analy-sis and Integrated Text Volume 1 (Transnational Publishers: New York, 2005), 151–152.

384 See Daryl Robinson, ‘Essence of Crimes against Humanity Raised by Challenges at icc’, ejil: Talk! (27 September 2011), accessed online at <http://www.ejiltalk.org/essence-of -crimes-against-humanity-raised-by-challenges-at-icc/> on 28 August 2013.

The point was also obliquely addressed in the Laurent Gbagbo Confirmation Decision, where Pre-Trial Chamber i held that the pro-Gbagbo forces, which included elements of the fds, youth militia and mercenaries, and were led by Laurent Gbagbo and his inner circle were an ‘organisation’ and that this organ-isation ‘comprised part of the State apparatus’.380 However, the logic of this conclusion may be criticised as, if a policy is in fact formulated at the highest level of the State machinery, then no further analysis need be undertaken as to whether it is sufficient for the purposes of the policy element.381

7.2.2 ‘Organisational’The term ‘organisation’ has been subject to a great deal of commentary and its interpretation currently remains unsettled. Essentially, there appear to be three views:

• the broad view, namely, that the term ‘organization’ should be read broadly to include any association of persons with an established structure.382 On this view, provided that the organisation is capable of committing a ‘wide-spread or systematic attack’, this element would be satisfied;

• the narrow view, namely, only a ‘State-like’ organisation or de facto power will qualify;383 and

• a third view (the broader view), namely, that the attack need only be commit-ted by a group of individuals without the need for any particular collectivity.

At the very least, it appears that commentators agree that common crime waves will not suffice to constitute an organisation.384

(a) The Broad ViewThe majority of icc Pre-Trial ii in the Kenya Authorisation Decision held that the formal nature of the group and the level of its organisation should not be


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385 (icc) Kenya Authorisation Decision, above n 24, [90]. See also Muthaura – Confirmation, above n 284, [112].

386 (icc) Kenya – Authorisation Decision, above n 24, [90].387 Gerhard Werle and Boris Burghardt, ‘Do Crimes Against Humanity Require the Participa-

tion of a State or a “State-like” Organization?’ (2012) 10(5) Journal of International Criminal Justice 1151. See also Robinson, above n 385.

388 (icc) Kenya – Authorisation Decision, above n 24, [92]; Ruto – Confirmation, above n 284, [184].

389 (icc) Kenya – Authorisation Decision, above n 24, [90]. See also at [91]–[92], citing the ilc Commentary to the Draft Code, Yearbook of the International Law Commission 1991, vol ii, Part 2, A/CN.4/SER.A/1991/Add.1 (Part 2) (19 July 1991) (‘ilc Commentary to the Draft Code’), 103; Blaškić – Trial, above n 22, [205]; Rodney Dixon and Christopher Hall, ‘Article 7’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, ch Beck etc.: Munich, 2008), 236–237.

390 (icc) Ruto – Confirmation, above n 284, [184]–[185]; Muthaura – Confirmation, above n 284, [114].

391 (icc) Kenya Authorisation Decision, above n 24, [90] (citing Marcello Di Filippo, ‘Terrorist crimes and international co-operation: critical remarks on the definition and inclusion of terrorism in the category of international crimes’ (2008) 19(3) European Journal of In-ternational Law 533, 567; Darryl Robinson, ‘Defining “Crimes Against Humanity” at the Rome Conference’ (1999) 93(1) American Journal of International Law 43, 50; Kriangsak Kittichaisaree, International Criminal Law – Beyond the Nuremberg Legacy (3rd ed, Oxford University Press: Oxford, 2009) 70; Benedetto Conforti, Diritto internazionale (Editoriale Scientifica: Naples, 2006) 191; and Peter Burns, ‘Aspect of Crimes Against Humanity and the International Criminal Court’, paper presented at Symposium on the icc, Beijing, China (3–4 February 2007) accessed online at <http://www.icclr.law.ubc.ca/Site%20Map/ICC/AspectofCrimesAgainstHumanity.pdf> on 1 March 2010). See also Ruto – Confirma-tion, above n 284, [184]; Muthaura – Confirmation, above n 284, [112].

the defining characteristic.385 Accordingly, on this view, an organisation need not be state-like.386 This appears to be in line with some writers who suggest that the term should be read broadly to include any association of persons with an established structure.387 The organisation in question need not be linked to a state;388 an organisation may be either individuals with de facto power or a ‘purely’ private criminal organization where it has the capacity to infringe basic rights.389 The same position was adopted by the majority in the Kenya Confirmation Decisions.390

The majority held that the proper distinction between those organisations that fall within Article 7 and those that do not is based on whether or not the group ‘has the capability to perform acts which infringe on basic human val-ues’.391 The majority found that whether or not a particular group satisfies this


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392 (icc) Kenya Authorisation Decision, above n 24, [93]; Ruto – Confirmation, above n 284, [185].

393 Cf Article 1(1), Additional Protocol ii.394 See, for example, Di Filippo, above n 392, 567–568.395 See, for example, Article 1(1), Additional Protocol ii; and Di Filippo, above n 392, 566–567.396 See, for example, Jennifer Smith, ‘An International Hit Job: Prosecuting Organized Crime

Acts as Crimes Against Humanity’ (2009) 97 Georgetown Law Journal 1111, 1133–1134; and Burns, above n 392.

397 (icc) Kenya – Authorisation Decision, above n 24, [93]; Ruto – Confirmation, above n 284, [185].

398 (icc) Ruto – Confirmation, above n 284, [186]; cf. Muthaura – Confirmation, above n 284, [186] (where an ‘organization’ was also found).

399 (icc) Ruto – Confirmation, above n 284, [197]–[199].400 (icc) Ruto – Confirmation, above n 284, [200]–[206].

requirement must be made on a case-by-case basis, taking into account the following factors (footnotes included):392

1. whether the group is under a responsible command, or has an estab-lished hierarchy;393

2. whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population;394

3. whether the group exercises control over part of the territory of a State;395

4. whether the group has criminal activities against the civilian population as a primary purpose;396

5. whether the group is part of a larger group which fulfils some or all of the abovementioned criteria.

The majority found that these factors do not constitute a rigid legal definition and do not need to be exhaustively fulfilled.397

This understanding was then applied by Pre-Trial Chamber ii in the Ruto et al. Confirmation Decision, the majority of which holding that the network of perpetrators belonging to the Kalenjin community (the Network) was an ‘organisation’ for the purposes of Article 7.398 This was on the basis that: the Network was under responsible command and had an established hierarchy, in charge of securing the establishment and efficient functioning of the Net-work as well as the pursuit of its criminal purposes (comprising three generals and four divisional commanders, all reporting to Mr Ruto);399 the Network had the means to carry out a widespread or systematic attack (possessing a ‘con-siderable amount of capital, guns, crude weapons an manpower’);400 and the


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401 (icc) Ruto – Confirmation, above n 284, [207]–[208].402 (icc) Ruto and Sang – Defence Application for Acquittal, above n 83. See also discussion in

Chapter 6, Section 4.2.2(d).403 (icc) Katanga – Confirmation, above n 109, [396] (citing 1991 Draft Code, commentary

on Art. 21, [5]: “Private individuals with de facto power or organized in criminal gangs or groups”; Akayesu – Trial, above n 24, [580]; Kordić – Trial, above n 134, [179]; Kordić – Appeal, above n 50, [94]; Kayishema – Trial, above n 56, [123]; and 1996 ilc Report, above n 36, 94).

404 (icc) Bemba Gombo – Confirmation, above n 24, [81] (citing no authority, but adopting the words used in Katanga – Confirmation, above n 109).

405 Werle and Burghardt, above n 388.406 (icc) Katanga – Trial, above n 77, [1119].407 (icc) Bemba Gombo – Trial, above n 76, [158].

Network identified the criminal activities against the civilian population as its primary purpose.401

While the prosecution case in Ruto and Sang was later dismissed by major-ity on the evidence presented by the prosecution on the basis that the alleged Network was not made out,402 this does not affect the findings of the Pre-Trial Chamber.

The approach of the majority in the Kenya Authorisation Decision that an organisation need not be State-like has generally been followed by a number of icc Chambers, albeit with the various Chambers adopted differing formula-tions as to the relevant test. Pre-Trial Chamber i in the Katanga Confirmation Decision held that a group will fall within the term ‘organisation’ either where they ‘govern a particular territory’ or where they have the ‘capability to com-mit a widespread or systematic attack against a civilian population’403 (em-phasis added). This appeared to be followed by Pre-Trial Chamber ii in the Bemba Gombo Confirmation Decision.404 While the use of the word ‘govern’ is unclear (i.e. in that it may include States only or may include State-like entities or armed groups with control of territory), the second formulation is extremely broad and appears to follow the view of some writers that, once all other ele-ments are established, any association of individuals will, without more, con-stitute an organization.405 That is, once a ‘widespread or systematic attack’ is established, the group clearly has the relevant capability.

A similar approach has been taken by the Trial Chambers in Katanga and Bemba Gombo. In Katanga, the Trial Chamber held that the relevant organisa-tion need not be a ‘quasi-State’ but rather ‘have a set of structures and mecha-nisms … that are sufficiently efficient to ensure the coordination necessary to carry out an attack … [and] sufficient means to promote or encourage the at-tack, with no further requirement necessary’.406 The same definition was ad-opted by the Trial Chamber in Bemba Gombo.407


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408 (icc) Bemba Gombo – Trial, above n 76, (Separate Opinion of Judge Ozaki), [25].409 (icc) Bemba Gombo – Trial, above n 76, (Separate Opinion of Judge Ozaki), [28]–[29].410 (icc) Bemba Gombo – Trial, above n 76, (Separate Opinion of Judge Ozaki), [28]–[29].411 (icc) Kenya – Authorisation Decision, above n 24, (Dissenting Opinion of Judge Kaul), [51].412 (icc) Kenya – Authorisation Decision, above n 24, (Dissenting Opinion of Judge Kaul), [51].

In Katanga, Judge Ozaki delivered a Separate Opinion providing further analysis of the requirements of what organisations may suffice. Judge Ozaki stated that, while she had no objection to the relevant analysis in the relevant statement of principle in the majority’s judgment, she stated that the existence of a policy was to be distinguished from how it may be proven and that the Chamber should provide clearer guidance on what was required to avoid the definition becoming circular.408 Reasoning by analogy with the definition of ‘[o]rganized criminal group’ in the United Nations Convention against Transna-tional Crime, Judge Ozaki discerned there to be a number of minimum features that the organisation was required to have: (a) a collectivity of three or more persons; (b) existing for a certain period of time, which, at least, transcends the period during which the policy was formed and implemented; (c) with a particular aim or purpose, whether it is criminal or not, and (d) with a certain structure.409

Jude Ozaki also set out a number of further factors that may be relevant:410

• whether the group has an established internal hierarchy;• whether the group exercises control over part of the territory of a state;• the group’s infrastructure and resources; and• whether the group is part of a larger group, which fulfils some or all of the

abovementioned criteria.

(b) The Narrow ViewBy contrast to the broad view, Judge Kaul – dissenting in the Kenya Authorisa-tion Decision – held that the relevant organisation should demonstrate at least some of the indicia of statehood or ‘partake of some characteristics of a State’, albeit falling short of a ‘state’ under customary international law.411 Judge Kaul held that private organizations that rise to the requisite quasi-State level could involve the following characteristics:412

• a collectivity of persons;• which was established and acts for a common purpose;• over a prolonged period of time;• which is under responsible command or adopted a certain degree of hierar-

chical structure, including, as a minimum some kind of policy level;


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413 (icc) Kenya – Authorisation Decision, above n 24, (Dissenting Opinion of Judge Kaul), [52].414 (icc) Kenya – Authorisation Decision, above n 24, (Dissenting Opinion of Judge Kaul),

[51], fn 56, citing: Prosecutor v Thomas Lubanga Dyilo (Decision on the confirmation of charges), Case No 01/04-01/06-803-tEN (7 February 2007), [233] et seq.; and Bemba Gombo – Confirmation, above n 24 [236].

415 See (icc) Kenya – Authorisation Decision, above n 24, (Dissenting Opinion of Judge Kaul), [48] (apparently accepting the following could fall within the term: ‘the acts of military-like organized armed groups in the context of an armed conflict not of an international character who over a prolonged period of time allegedly committed crimes according to a policy’.) See also Katanga – Confirmation, above n 109, [396] (noting that a policy may be made either by ‘groups of persons who govern a specific territory or by any organisa-tion with the capability to commit a widespread or systematic attack against a civilian population’).

416 (icc) Kenya – Authorisation Decision, above n 24, (Dissenting Opinion of Judge Kaul), [51], fn 55 (citing Bemba Gombo – Confirmation; Kony – Arrest Warrant; and Katanga – Confirmation).

• with the capacity to impose the policy on its members and to sanction them; and

• has the capacity and means available to attack any civilian population on a large scale.

Judge Kaul found that non-state actors which do not reach this level include ‘groups of organized crime, a mob, groups of (armed) civilians or criminal gangs’ as well as ‘violence-prone groups of persons formed on an ad hoc basis, randomly, spontaneously, for a passing occasion, with fluctuating membership and without a structure and level to set up a policy … even if they engage in nu-merous serious and organized crimes.’413 However, Judge Kaul found that con-trol over the territory is not a necessary aspect of an ‘organization’, although it may serve as an additional factor to be considered.414

This view would appear to capture not only entities with functioning gov-ernments such as the Republika Srpska (the Serb-controlled part of Bosnia & Herzegovina) or Palestine, but also armed groups controlling large areas of ter-ritory, such as the Lord’s Resistance Army in Uganda, or the armed groups in the drc such as the mlc.415 However, while Judge Kaul states that ‘organized armed groups’ qualified as ‘organizations’, he noted that even though an or-ganization ‘may not show a military structure, it should nevertheless have a structure and capacity similar to that of an organized armed group’.416

While it is correct to say that the dissenting view of Judge Kaul is against the trend of authority of decisions at the icc, the question cannot be considered as closed. Judge van den Wyngaert, in her dissenting opinion in the Katanga


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417 (icc) Prosecutor v Germain Katanga (Minority Opinion of Judge Christine Van den Wyn-gaert), ICC-01/04-01/07-3436-AnxI 07-03-2014 1/170 nm T (7 March 2014) (‘Katanga – Trial (Dissenting Opinion of Judge Van den Wyngaert)’), [206], [267]. See also [198].

418 William Schabas, The Rome Statute of the International Criminal Court: A Commentary, (2nd ed, Oxford University Press: Oxford, 2009), 152; Bassiouni, above n 384, 244–245.

419 See Chapter 6, Section 5.3.420 (icc) Ruto and Sang – Defence Application for Acquittal, above n 83.421 (icc) Ruto and Sang – Defence application for Acquittal, above n 83, [302], [462].422 (icc) Ruto and Sang – Defence application for Acquittal, above n 83, [302].423 (icc) Ruto and Sang – Defence application for Acquittal, above n 83, [412].424 (icc) Elements of Crimes, Article 7, Introduction, [3].425 (icc) Ruto – Confirmation, above n 284, [209].

Trial Judgment left the question open.417 Further, the dissenting view has sup-port from a number of eminent academics418 and, as noted in Chapter 6,419 the majority view proceeds on what the authors suggest to be a controversial premise as to the raison d’être of crimes against humanity (discussed further below).

(c) A Third Approach to ‘organisational policy’A third – and even broader – approach has now emerged in the form of the Separate Opinion of Eboe-Osuji in the Decision on the Defence Application For Acquittal in Ruto and Sang.420 Judge Eboe-Osuji held that there need not be an involvement of ‘an aggregate entity’ in a crime against humanity but only a ‘coordinated course of action, regardless of the number of accomplices in-volved’.421 This would include ‘conduct of an individual who executed multiple large scale attacks against civilians in a systematic way, and the conduct of an individual who planned one large scale attack that inflicted widespread harm to a civilian population’.422 In his view, ‘lone wolf ’ attacks may amount to crimes against humanity, if they constitute a widespread and/or systematic attack.423

7.2.3 ‘Policy to commit such an attack’(a) Actively Promote or EncourageThe Elements of Crimes provides that a ‘policy to commit such an attack’ re-quires that the State or organization ‘actively promote or encourage such an attack against a civilian population’.424 The icc Pre-Trial Chambers have held that a ‘policy’ is distinct from that of a ‘plan’, although there may be overlap between the two concepts.425 Similarly, while evidence of planning, organisa-tion and direction may be relevant to the policy element as well as whether


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426 (icc) Laurent Gbagbo – Confirmation, above n 74, [215].427 (icc) Katanga – Confirmation, above n 109, [396], applied in Kenya – Authorisation Deci-

sion, above n 24, [84] and [86].428 (icc) Bemba Gombo – Confirmation, above n 24 [81] (citing Tadić – Trial), followed in

Kenya – Authorisation Decision, above n 24, [85]–[86]; and Laurent Gbagbo – Confirmation, above n 74, [216]. See also Dixon and Hall, above n 390.

429 See above, Section 6.3.430 (icc) Katanga – Confirmation, above n 109, [396], followed in Kenya – Authorisation Deci-

sion, above n 24, [84], [86].431 See above, Section 6.3.432 (icc) Kenya – Authorisation Decision, above n 24, [84]–[86] (purporting to apply both

authorities). See also Muthaura – Confirmation, above n 284, [111].433 (icc) Kenya – Authorisation Decision, above n 24, [86], fn 78 (citing Article 18 of the ilc

Draft Code: ‘[a] crime against humanity means any of the following acts, when commit-ted in a systematic manner or on a large scale and instigated or directed by a Government or by an organization or group […].’).

an attack is systematic, the two concepts should not be conflated.426 Further, the policy need not be explicitly defined by the State or organisational427 and need not be formalised.428 The difference between the ‘policy’ element and a ‘systematic’ attack is discussed above.429

Different Chambers have expressed the applicable test differently. On the one hand, Pre-Trial Chamber i in Katanga Confirmation Decision stated that the policy element will be satisfied if the attack is ‘thoroughly organised and follow[s] a regular pattern’ and ‘in furtherance of a common policy involving public or private resources’ (emphasis added).430 This appears to adopt the wording used in Akayesu as to when an attack will be ‘systematic’.431 On the other hand, Pre-Trial Chamber ii in the Bemba Gombo Confirmation Decision has stated that it will be satisfied if it was ‘planned, directed or organised’ as opposed to consisting of ‘spontaneous or isolated acts of violence’. This ap-pears to adopt the language of the ilc as to when an attack will be ‘systematic’.

These decisions appear to impose differing levels of organisation or plan-ning, although it is not entirely clear whether any difference was in fact intend-ed. In the Kenya Authorisation Decision, for instance, the Pre-Trial Chamber applied both lines of authority, which would suggest that they were seen to be complimentary.432 That said, it is difficult to resist the conclusion that the standard in fact applied by the majority appeared to be a lower one than that suggested in Katanga. The organisation in question – the so-called ‘Network’ – did not appear to be thoroughly organised. Further, the majority referred in a footnote to the Draft Code of Crimes Against the Peace and Security of Mankind (adopted by the ilc in 1996)433 (the icl Draft Code) and the Commentary to


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434 (icc) Kenya – Authorisation Decision, above n 24, [86], fn 78, citing the ilc Commentary to the Draft Code, Yearbook of International Law Commission 1996, Volume 2, un Doc. A/CN.4/SER.A/1996/Add.1 (Part 2) (1996), 47 (which indicated that the wording of Article 18 was ‘intended to exclude the situation in which an individual commits an inhumane act while acting on his own initiative pursuant to his own criminal plan in the absence of any encouragement or direction from either a Government or a group or organization’, which, according to the ilc, would not constitute a crime against humanity).

435 (icc) Kenya – Authorisation Decision, above n 24, [88], fn 78 (citing Dixon and Hall, above n 390).

436 (icc) Laurent Gbagbo – Confirmation, above n 74, [215].437 (icc) Kenya – Authorisation Decision, above n 24, [86]. See list of authorities considering

the ‘policy’ element at fn 79 (namely, authorities prior to the Kunarac – Appeal, above n 22, [98]).

438 (icc) Kenya Authorisation Decision, above n 24, [87] (footnotes omitted), citing (icty) Blaškić – Trial, above n 22, [204].

439 (icc) Kenya – Authorisation Decision, above n 24, [88].

the icl Draft Code.434 The Chamber stated that ‘it is worth noting … that the ilc Draft Code does not require that there must be a policy per se, but only that crimes be instigated by the Government or organization’. The Pre-Trial Cham-ber also noted that this approach had some academic support.435 This appears more consistent with the Bemba Gombo Confirmation Decision.

Similarly, Pre-Trial Chamber i in its later Laurent Gbagbo Confirmation Deci-sion again cited both authorities but stated the test as it was stated in Bemba Gombo.436

This point is considered further below.Whether or not a policy is present will depend upon a range of differ-

ent factors. In the Kenya Authorisation Decision, the majority of the Pre-Trial Chamber held that, while the ad hoc Tribunals have now abandoned the policy requirement, it is ‘useful’ and ‘appropriate’ to consider their definition of the concept of a ‘ policy’ in early cases.437 Accordingly, the Pre-Trial Chamber ap-plied the Blaškić Trial Chamber’s statement that a plan ‘need not necessarily be declared expressly or even stated clearly and precisely’, but ‘may be surmised from the occurrence of a series of events’ listed by the Trial Chamber.438 The Pre-Trial Chamber held that it ‘may refer to these factors, inter alia, when determin-ing whether there was a policy to commit an attack’ in the case before them.439

These factors include the following (footnotes omitted):

• the general historical circumstances and the overall political background against which the criminal acts are set;

• the establishment and implementation of autonomous political structures at any level of authority in a given territory;


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440 (icc) Kenya Authorisation Decision, above n 24, [87] (citing (icty) Blaškić – Trial, above n 22, [204]).

441 (icc) Bemba Gombo – Trial, above n 76, [160].442 (icc) Bemba Gombo – Trial, above n 76, [160].443 (icc) Laurent Gbagbo – Confirmation, above n 74, [214].

• the general content of a political programme, as it appears in the writings and speeches of its authors;

• media propaganda;• the establishment and implementation of autonomous military structures;• the mobilisation of armed forces;• temporally and geographically repeated and co-ordinated military

offensives;• links between the military hierarchy and the political structure and its

political programme;• alterations to the ‘ethnic’ composition of the populations;• discriminatory measures, whether administrative or other (banking restric-

tions, laissez-passer, …);• the scale of the acts of violence perpetrated – in particular, murders and

other physical acts of violence, rape, arbitrary imprisonment, deportations and expulsions or the destruction of non-military property, in particular, sacral sites.440

The Trial Chamber in Bemba Gombo adopted the same approach.441 The Chamber held, citing Blaškić, that the relevant factors from which a policy may be inferred include:442

• that the attack was planned, directed or organised;• a recurrent pattern of violence;• the use of public or private resources to further the policy;• the involvement of the State or organizational forces in the commission of

crimes;• statements, instructions or documentation attributable to the State or orga-

nization condoning or encouraging the crimes; and/or• an underlying motivation.

Finally, a number of icc Chambers have held that while it is not necessary that the policy have ‘a certain rationale or motivations’, ‘[e]stablishing the underly-ing motive may, however, be useful for the detection of common features and links between acts’.443


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444 (icc) Ruto – Confirmation, above n 284, [211].445 (icc) Ruto – Confirmation, above n 284, [212].446 (icc) Ruto – Confirmation, above n 284, [213].447 (icc) Bemba Gombo – Trial, above n 76, [161].448 (icc) Bemba Gombo – Trial, above n 76, [161].459 (icc) Elements of Crimes, Article 7, Introduction, fn 6, applied in Kenya – Authorisation

Decision, above n 24, [83]; and Ruto – Confirmation, above n 284, [210].450 (icc) Elements of Crimes, Article 7, Introduction, fn 6, applied in Kenya – Authorisation

Decision, above n 24, [83].451 (icc) Laurent Gbagbo – Confirmation, above n 74, [182]–[192].

(b) Policy to Commit ‘such an attack’The Pre-Trial Chamber in the Ruto Confirmation Decision emphasised that the relevant policy must be directed to commit ‘such an attack’.444 That is, the policy must be connected to the attack itself; a ‘policy’ cannot be to simply to achieve certain political goals that do not necessarily include the attack in question. On this basis, the Chamber rejected the prosecution’s contention that the second limb of the Network’s policy was ‘to gain power and create a uniform odm voting block’.445 The Chamber held that this policy ‘is merely political in nature and may not aim at committing an attack against the civil-ian population’, although such an intention may be the ‘motive or the purpose of a potential policy to commit the attack’.446

The converse point was made by the Trial Chamber in Bemba Gombo.447 That is, that it must be shown that the relevant ‘course of conduct’ or attack was committed pursuant to or in furtherance of the policy. The Trial Chamber said that this is satisfied where the perpetrators act deliberately to further the policy as well as where the perpetrators engage in conduct envisaged by the policy ‘with knowledge thereof ’.448

(c) Policy of TolerationA policy does not necessarily need to be a positive policy. The Elements of Crimes further provides that a policy may ‘in exceptional circumstances, be im-plemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack’.449 Although, the Elements of Crimes also states that ‘[t]he existence of a such a policy cannot be inferred solely from the absence of government or organizational action’.450 In the Laurent Gbagbo Confirma-tion Decision, the issue did not squarely arise as, while the Chamber consid-ered the Accused’s failure to sanction offenders as part of its assessment,451 there were many other positive actions that founded a relevant policy being present.


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452 (icc) Muthaura – Confirmation, above n 284, [224]–[226] (footnotes omitted).453 (icc) Muthaura – Confirmation, above n 284, [226] (footnotes omitted).454 See, for example, (icc) Laurent Gbagbo – Confirmation, above n 74, [217] (specifically not

deciding the issue). The Chamber went on to find that the pro-Gbagbo forces were both an ‘organization’ and were attributable to the ‘state’ for the purposes of the policy require-ment: [219]–[220].

455 See Chapter 6, Section 5.3.456 See Chapter 6, Section 5.1.

In the Muthaura Confirmation Decision, the icc Pre-Trial Chamber rejected a claim by the Prosecutor that the police participated in the relevant attack by way of a deliberate failure to act or a creation of a ‘free zone’.452 It was, however, on the basis of evidence, rather than principle. While the Chamber found that there was credible evidence of police officers denying assistance to victims of a particular ethnicity and subsequent police failures to properly investigate the crimes committed, such failures were mainly the result of ‘ethnic bias on the part of individual police officers as well as of ineptitude and failure of senior police officers to sufficiently appreciate the violence’.453

7.2.4 ConclusionThe present trend of authority in the icc is that the broad definition of ‘organi-zation’ is to be adopted, namely, that the attack may be authored by an organ-isation capable of committing a widespread or systematic attack without that organisation needing to be a state-like entity or de facto power. That position was set out by the majority in the Kenya Authorisation Decision and has since been generally followed by the Trial Chambers in Katanga and Bemba Gombo. That said, given in particular the dissenting voices at the icc, it cannot be said that the position in the icc has entirely been settled.454 Indeed, as set out in Chapter 6,455 there are good reasons to contend that this position should be revisited in light of the full range of sources of international law.

The proper interpretation of the scope of the ‘State or organizational pol-icy’ requirement is likely to depend on the weight accorded to the position under customary international law in light of the particular jurisdiction be-ing exercised by the icc. In addition to the ordinary principles of the Vienna Convention on the Law of Treaties, Article 21 of the icc Statute provides that the Court is to apply ‘[i]n the first place’, the Statute, Elements of Crimes and the Rules and ‘[i]n the second place, where appropriate’, treaties and rules of international law.456 The interpretation of the scope of the ‘State or orga-nizational policy’ element is one where it may clearly be contended that it is appropriate to look to the interpretation under customary international law. The words themselves are ambiguous and, as has been discussed earlier in this


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457 See Chapter 4, Section 5.2.3 and 5.2.4; and Chapter 8, Section 4.3.458 See Chapter 8, Sections 4.7.2 and 4.7.3.459 See Chapter 8, Section 4.9.

text,457 so too is the travaux préparatoires. It would appear highly artificial to simply interpret the words of the icc Statute as if in a void and entirely divorced from their customary law status – especially given the customary international law definition was clearly in the minds of those drafting the icc Statute.

As set out above, it was concluded in Chapter 8 that customary interna-tional law requires that the attack be committed pursuant to either the policy, toleration or acquiescence of a state or de facto power because of sufficient control over people, resources or territory.458 This was based on both an exten-sive analysis of state practice as well as the fundamental raison d’être of crimes against humanity. It was contended there and throughout this text that the definition of crimes against humanity seeks to strike a balance between the protection of both human rights and state sovereignty. Article 7 is no different in this respect. If Article 7 of the icc Statute is to be interpreted in light of that position, two potential positions result.

First, and primarily, the term ‘State or organizational’ should be read in a more narrow sense to include only entities that are states or de facto powers, more in line with the dissenting opinion of Judge Kaul and the Tadić case that was in the forefront of the minds of the participants at the Rome Conference. Adopting such an interpretation, the term ‘policy’ should be interpreted broad-ly to include acquiescence or toleration of atrocities.459 This requires reading the term ‘exceptional circumstances’ broadly to include situations where a government (or possibly a de facto power if it controls territory) ‘clearly’ fails to prevent atrocities from occurring or investigate or punish their perpetrators. To do so does not unduly stretch the term ‘exceptional’. For, it clearly is the case that the ordinary or usual position is that sovereign states will do – and indeed have a duty to do – their utmost to prevent atrocities occurring to their own people. Where a State does not do so, it is easy to characterise such inaction as both ‘exceptional’ as well as being an action amounting to the adoption of a policy that must be intended to encourage such an attack.

Secondly, and alternatively, if either the interpretation of ‘State or orga-nizational’ is read broadly or if the ‘exceptional circumstances’ requirement is to be read narrowly, an alternative interpretation may also be open. That would require giving a narrower meaning to the term ‘policy’ than is present under customary international law but giving a broader meaning to the term ‘organization’. The result would be that the ‘organisation’ that may commit the crime would include criminal gangs or a terrorist group but that the policy


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460 See above, Section 6.3.461 icc Statute, Arts 13 and 17.

must extend beyond mere acquiescence. Indeed, for weak non-state entities, this may even require a standard as was been set out in Akayesu, namely, that the acts be ‘thoroughly’ organised and involve ‘substantial’ public or private resources.460 This would be to impose a standard somewhere in between the broad view and the very broad view of Judge Eboe-Osuji discussed above.

This alternative position could only be justified on the basis that the bal-ance to be effected between human rights and state sovereignty is necessarily different in the icc than what it is under customary international law. As dis-cussed in Chapter 6, the icc Statute already provides various protections to states against undue interference. Situations may only reach the icc in par-ticular ways and further limitations are imposed on the admissibility of situa-tions even if referred.461 As such, it may be credibly contended that the policy element may strike a different balance between human rights and state sover-eignty than is struck under customary international law.

As noted in Chapter 8, the difficulty with this latter interpretation is that it seems, on balance, less faithful to the drafting history at the Rome Conference and the concern to protect state sovereignty that clearly underpinned the in-clusion of the policy element.

On either view, the result of this analysis is that the focus is not on an arbi-trary and detached notion of what an ‘organization’, considered in the abstract, but is on the balance to be effected between human rights and state sovereignty on the basis of the humanity principle and the impunity principle discussed in Chapter 8. If the primary interpretation is adopted, an organisation is a state-like entity simply where it has sufficient control over people, resources or terri-tory in the area where the crimes were committed. This would include a group with administrative control over territory (e.g. Republika Srpska in Yugoslavia or the Tamil Tigers in Sri Lanka) or an armed group with military control over territory (e.g. the various armed groups considered in Katanga and Bemba Gombo). In such cases, the question is whether the entity is so powerful that the risk of impunity is present. Indeed, in Bemba Gombo, the fact that the mlc was invited into the car by the de jure car authorities may even be sufficient to say that the attack was encouraged or tolerated in a loose sense sufficient to engage the policy element.

Similarly, if the alternative view is adopted, the question does not turn on the examination of the group per se but rather on the extent to which a given collection of individuals with at least some level of organisation or coordination – has threatened the sovereignty of the territorial state. In the


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462 (icty) Mrkšić – Appeal, above n 158, [41]. See also Tadić – Appeal, above n 24, [271]; and Vasiljević – Trial, above n 22, [32].

example of the situation in Kenya, for instance, the key point should not be precisely how the ‘Network’ was structured and organised but rather how the group managed to coordinate or organise such violence or aggression to undermine territory that would ordinarily be under the sovereign control of the territorial state. Here, the violence occurred at such a point in time im-mediately following presidential elections and due to factors such as extant sectarian tensions caused such a level of political instability that the Kenyan authorities were effectively incapacitated to prevent such sporadic violence from occurring.

In other instances, where there is an outbreak of sectarian violence along ethnic lines in states where the rule of law or the sovereign’s grip on power is weak, it is the notorious ability for such disputes to spread and cause signifi-cant harm that would justify the classification of groups directing or organis-ing such violence as an organisation. This is consistent with the analysis in Chapter 8 concerning the circumstances in which the un Security Council has invoked Chapter vii of the un Charter to justify the intervention into purely internal atrocities.

8 The Nexus between the Attack and the Underlying Crime

An accused can only be liable for a crime against humanity where there is a nexus between the attack and the crime. This nexus consists of two elements:

1. Objective element: the commission of an act which, by its nature or con-sequences, is objectively part of the attack; and

2. Subjective element: knowledge of the attack and that the crime is part thereof.

The term ‘nexus’ is often used only to refer to the objective component (with the second element classified as mens rea). Nonetheless, the approach of refer-ring to both components as a ‘nexus’ component was taken by the icty Appeal Chamber in Mrkšić.462 While not much turns on the label, the use of the term ‘mens rea’ is potentially liable to conflate the definition of the offence with the mode of liability of a particular accused. As such, categorising them both as being ‘nexus’ requirements of an offence is the most conceptually clear way of understanding the two elements.


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463 (icty) Tadić – Appeal, above n 24, (Separate Opinion of Judge Cassese), [14], followed in (Bangladesh) Chief Prosecutor v Muhammad Kamaruzzaman (Judgment) (ICT-2), ict-bd Case No. 03 of 2012 (9 May 2013) (‘Kamaruzzaman – Judgment’), [502]. See also Kai Ambos, ‘Concursus, Delictorium and Sentencing’ in Treatise of International Criminal Law – Volume ii: The Crimes and Sentencing (Oxford University Press: Oxford, 2004) 254; Micaela Frulli, ‘Are Crimes Against Humanity More Serious than War Crimes?’ (2001) 12(2) Euro-pean Journal of International Law 329.

Further, while many authorities refer to the nexus requirement as being a nexus between the attack and the accused (including those cited immediately above), this is often inaccurate. As will be explained below, there is a lack of clarity on the part of the tribunals as to whose acts and mental state are rel-evant. Treating the mental element as a nexus rather than a mens rea makes clearer the position that, depending on the circumstances, the subjective nexus component may be satisfied by either an accused or a non-accused perpetrator

That said, in either case, the subjective component of the offence is impor-tant. It is important not only as it links a perpetrator with the jurisdictional component of crimes against humanity. It is important as it also increases the seriousness of the offending and the moral culpability of the perpetrator for his or her actions. As Judge Cassese found in his Separate Opinion in the Tadić Sentencing Appeal, the same act committed both a war crime and a crime against humanity is necessarily more serious when committed as a crime against humanity because of the nexus:463

Thus, if murder is defined as a “crime against humanity”, it cannot con-sist merely of a single or even a multiple violation of international hu-manitarian law, however serious this may have been. Rather, murder is simply one element of extensive criminal misconduct and the murderer must have acted in the knowledge that his or her conduct formed part of this overall context. Normally a “widespread or systematic practice” of misbehaviour is either planned or instigated, or promoted, or coun-tenanced, or at least tolerated by the governmental authorities wielding control over the area where the crime has been committed … It follows that the murder at issue forms part of a whole pattern of criminality, and may amount to what the great Dutch international lawyer b.v.a. Röling termed “system criminality” (encompassing large-scale crimes perpe-trated to advance the war effort, at the request of, or with the encourage-ment or toleration of government authorities), as opposed to “individual criminality” (embracing crimes committed by combatants on their own initiative and often for reasons known only to themselves). In addition,


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464 (icty) Tadić – Appeal, above n 24, [248] (citing Vukovar Hospital Rule 61 Decision, [30]), [251], [271], followed in Kunarac – Appeal, above n 22, [99]; Mrkšić – Appeal, above n 158, [41]; (ictr) Akayesu – Trial, above n 24, [580]; Gacumbitsi – Appeal, above n 305, [102]; and (scsl) ruf – Trial, above n 40, [89]; cdf – Trial, above n 5, [120]; afrc – Trial, above n 25, [220]; (eccc) Duch – Trial, above n 24, [318]; Case 002/01 – Trial, above n 24, [190]; (icc) Katanga – Confirmation, above n 109, [391], [400]; Bemba Gombo – Confirmation, above n 24 [84].

465 (icty) Kunarac – Appeal, above n 22, [99]–[100] (approving Kunarac – Trial, above n 22, [417]–[418]), followed in Vasiljević – Trial, above n 22, [32]; (ictr) Kajelijeli – Trial, above n 56, [866]; Semanza – Trial, above n 24, [326]; (scsl) ruf – Trial, [89]. See also (icty) Tadić – Appeal, above n 24, [271] (requiring the act be ‘related’ to the attack).

466 (icty) Kunarac – Appeal, above n 22, [100]; Krnojelac – Trial, above n 22, [55] (the act ‘need not be committed when that attack is at its height’ and ‘[a] crime committed several months after, several kilometres away from, the main attack against the civilian popula-tion could still, if sufficiently connected, be part of that attack’); (ictr) Kajelijeli – Trial, above n 56, [866]; Semanza – Trial, above n 24, [326]; (scsl) ruf – Trial, above n 40, [89]; (eccc) Duch – Trial, above n 24, [318]; Case 002/01 – Trial, above n 24, [190]. See also ( Bangladesh) Kamaruzzaman – Judgment, above n 464, [525].

467 (icc) Katanga – Confirmation, above n 109, [400]; Bemba Gombo – Confirmation, above n 24 [84], [86]; Kenya – Authorisation, above n 24, [98].

the requisite intent of the perpetrator is more serious than in murder as a “war crime”: the perpetrator must not only intend to cause the death of one or more persons, but must have done so while being aware that this conduct was a common practice. This among other things may also sig-nify that he or she was hoping to enjoy impunity by engaging in conduct that, being widespread, might ultimately have gone unpunished.

8.1 Objective Element: ‘part of ’ the attack8.1.1 ‘By their nature or consequences … objectively part of ’ the AttackFor the acts of the accused to amount to crimes against humanity they must objectively form ‘part of ’ the relevant attack.464 A number of ad hoc Tribunals have held that the accused’s acts will form part of an attack if, by their nature, aims, characteristics or consequences, they are objectively part of the attack and are liable to have the effect of furthering that attack.465 An act need not share all the characteristics of the ‘attack’ and can take place before or after, and at places away from, the main attack and still be regarded as part of it, if there is sufficient connection between the two.466

The icc has adopted the same approach, holding that the acts must be com-mitted ‘in furtherance of ’ the relevant attack considering the ‘nature, aims and consequences of such act.’467


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468 (icc) Kenya – Authorisation Decision, above n 24, [135].469 (scsl) afrc Case – Trial, [220], followed in Taylor – Trial, above n 24, [512].470 (icty) Kunarac – Trial, above n 22, [592].471 (icty) Prosecutor v Milutinović et al. (Trial Chamber Judgment), Case No IT-05-87-T

(26 February 2009) (‘Milutinović – Trial’), [155]. The Trial Chamber cited the following authorities: Kupreškić – Trial, above n 99, [544] (reiterating that the focus was on the underlying crime); Blaškić – Trial, above n 22, [429] (where the accused did not physi-cally commit the offences charged); Blaškić – Appeal, above n 91, [98], [102] (conclud-ing that ‘the Trial Chamber was correct in stating that acts constituting crimes against humanity must be part of a widespread or systematic attack against civilians’); Kordić – Appeal, above n 50, [117] (recognising, in the context of inhumane acts as crimes against humanity, that the underlying offences may be committed by either the accused or his subordinates).

Whether or not an act or omission is ‘part of ’ the relevant attack will be a question of fact that will need to be assessed on a case-by-case basis.468 In the afrc Case, the scsl Trial Chamber found that, while each case will depend on the facts, the following factors indicated a ‘reliable indicia’ of the nexus element:469

1. the similarities between the perpetrator’s acts and the acts occurring within the attack;

2. the nature of the events and circumstances surrounding the perpetrator’s acts;

3. the temporal and geographic proximity of the perpetrator’s acts with the attack; and

4. the nature and extent of the perpetrator’s knowledge of the attack when he commits the acts.

Accordingly, in Kunarac, the icty Trial Chamber held that the torture, en-slavement and sexual assaults carried out by the Bosnian Serb defendants on Muslim women were part of the ‘attack’ because the victims were chosen by reason of their ethnicity and the crimes in question corresponded with other such acts occurring against Muslim civilians in the same region of Foča at the time.470

Importantly, the icty Trial Chamber in Milutinović clarified the application of these principles where the accused is not the physical perpetrator of the underlying crime. In such cases, the Trial Chamber held that the nexus require-ment will be met if the underlying offences comprise part of the attack, regard-less of whether they are physically committed by the accused or merely by those for whose acts he or she bears responsibility.471 In Ongwen, the Pre-Trial


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472 (icc) Ongwen – Confirmation, above n 297, [107].473 (icty) Kunarac – Appeal, above n 22, [100] (affirming Kunarac – Trial, above n 22, [550]);

Blaškić – Appeal, above n 91, [101]; Kordić – Appeal, above n 50, [94]; (ictr) Kayishema – Trial, above n 56, [134] (icc) Kenya Authorisation Decision, above n 24, [94]; (scsl) ruf – Trial, above n 40, [89]. See also (icty) Tadić – Trial, above n 5, [648] (noting that the purpose of the chapeau requirement is to exclude ‘isolated or random acts’). Cf (BiH) Mirko Todorović and Miloš Radić (Second Instance Judgment), Case No X-KRŽ-07/382 (17 February 2009) (‘Todorović – Appeal’), [108] (although, the decision appears to mis-quote Blaškić – Appeal). See also (icty) Tadić – Appeal, above n 24, [271] (requiring the act not be ‘unrelated’ to the attack); and (Bangladesh) Molla – Judgment, above n 91, [245], [374].

474 (icty) Kunarac – Appeal, above n 22, [100] (affirming Kunarac – Trial, above n 22, [550] and citing Tadić – Trial and Mrkšić Rule 61 Decision), followed in Prosecutor v Simić et al. (Trial Chamber Judgment), Case No IT-95-9-T (17 October 2003) (‘Simić – Trial’), [41], (scsl) ruf – Trial, above n 40, [89]; (eccc) Duch – Trial, above n 24, [318]; Case 002/01 – Trial, above n 24, [190]. See also (Bangladesh) Molla – Judgment, above n 91, [374].

475 (icc) Kenya – Authorisation Decision, above n 24, [98] (citing (icty), Simić – Trial, above n 475).

Chamber ii criticised the Prosecution for not laying sexual violence charges in relation to acts that fell outside of the indictment period. The Chamber em-phasised that there is no requirement that the underlying crimes fall within the attack against the civilian population, provided the nexus requirement is otherwise satisfied.472

8.1.2 ‘Isolated or random’ ActsThe ad hoc Tribunals have held that ‘isolated or random’ acts will not fall with-in the parameters of a crime against humanity.473 A crime will be regarded as an ‘isolated act’ when it is ‘so far removed from that attack that, having considered the context and circumstances in which it was committed, it can-not reasonably be said to have been part of the attack.’474 Accordingly, there will come a point when the acts of the accused are so far removed from the attack, in terms of time, distance or characteristics, that they are ‘isolated or random’.

The icc has adopted a similar approach, holding that ‘[i]solated acts which clearly differ […] from other acts forming part of the attack, would fall outside the scope’.475

One controversial area appears to be where an accused’s acts were oppor-tunistic acts facilitated by a general climate of civil unrest and lawlessness rather than crimes targeting a particular population. A Special Panel in East Timor held that a revenge killing by one militia member against another mili-tia member was not a crime against humanity because it could not be related


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476 (spet) Prosecutor v Martins and Gonzales (Judgment), Special Panel Case No 11/2001 (13 November 2003) 15–16. See also (icc) for instance, Kenya – Authorisation Decision, above n 24, [155].

477 (icty) Limaj – Trial, above n 22, [216].478 (ictr) Kayishema – Trial, above n 56, [122]–[123].479 (icty) Tadić – Appeal, above n 24, [255], [272].480 However, motive may be relevant to establishing the mens rea: see Johan Van der Vyver,

‘The International Criminal Court and the Concept of Mens Rea in International Crimi-nal Law’ (2004) 12 University of Miami International & Comparative Law Review 57, 73–74.

481 (icty) Tadić – Appeal, above n 24, [259]–[262]. As discussed in Chapter 3, Section 2.3.1, in Sch, the accused had denounced her landlord solely “out of revenge and for the purpose of rendering him harmless” after tensions in their tenancy had arisen (Decision of Flens-burg District Court dated 30 March 1948 in Justiz und NS-Verbrechen, vol. ii, pp. 397–402). In H., H denounced his father-in-law for listening to a foreign broadcasting station be-cause his father-in-law was of aristocratic origin and incessantly mocked H for his low birth and tyrannised the family with his relentlessly scornful behaviour (Decision of the Braunschweig District Court dated 22 June 1950, in Justiz und NS-Verbrechen, vol. vi, pp. 631–644, at p. 639). In V., the natural mother of a child denounced the adoptive mother of the child in the hope of regaining the relationship with the increasingly estranged child (Decision of the Supreme Court for the British Zone dated 22 June 1948, S. StS 5/48, in Entscheidungen des Obersten Gerichtshofes für die Britische Zone, Entscheidungen in Straf-sachen, vol. i, pp. 19–25).

482 Cassese, above n 2, 100.483 Discussed in Chapter 3, Section 2.3.2. See also Cassese, above n 2, 100, fn 41.

to the attack against the civilian population.476 Arguably, some support for this may be found in the icty Trial Chamber’s decision in Limaj.477

Ultimately, however, and despite some early authority to the contrary,478 the icty Appeals Chamber in Tadić rejected the conclusion that an act will be outside the definition simply because it was committed for ‘purely personal motives’.479 The Chamber found that, provided both the objective and subjec-tive nexus elements are satisfied, the accused’s motive is not relevant to the analysis.480 In particular, the Chamber pointed to the ‘denunciation’ cases, where, for instance, certain individuals were convicted of crimes against hu-manity for denouncing Jewish neighbours for various personal reasons.481

A similar example, raised by Cassese, is where a state official acts in a pri-vate capacity.482 This issue was raised in the Weller case in the British Occu-pied Zone at Nuremberg.483 The case concerned three German soldiers (one of which was Weller) who broke into a house in Monchengladbach (near Dus-seldorf), where various Jewish families had been obliged to move in together. The soldiers proceeded to beat 10 or 11 of the 16 inhabitants one at a time. The head of the Gestapo was informed of these actions and stated that the actions constituted ‘an isolated event, which would in no way be approved’.


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484 Luban, above n 59, 95–96.485 (icty) Kunarac – Trial, above n 22, [493], Kupreškić – Trial, above n 99, [555] and the cases

cited therein. This is consistent with the jurisprudence of the German Courts under ccl 10 discussed in Chapter 3.

486 (icty) Mrkšić – Appeal, above n 158, [36], citing Mrkšić – Trial, above n 216, [481].487 (icty) Mrkšić – Trial, above n 216, [481], cited in Mrkšić – Appeal, above n 158, [36],

fn 114.488 (icty) Mrkšić – Trial, above n 216, [472], [482], cited in Mrkšić – Appeal, above n 158, [37].

At first instance, the District Court of Monchengladbach acquitted the accused of crimes against humanity on the basis that a crime against human-ity must be ‘either systematically organized by the government or carried out with its approval’. This conviction was overturned by the Supreme Court for the British Occupied Zone, which found relevantly as follows:

the link with the national-socialist system of power and tyranny exists not only in the case of those actions which are ordered and approved by the holders of hegemony. That link also exists when those actions can only be explained by the atmosphere and condition created by the authorities in power. The trial court was wrong when it attached deci-sive value to the fact that after his action the accused was ‘rebuked’ and that even the Gestapo disapproved of the excess as an isolated infringe-ment. This action nevertheless fitted into the persecution of the Jews carried out by the state and the party. This is proved by the fact that the accused … was in any event not held criminally accountable in a manner commensurate to the gravity of his guilt.

The same conclusion is reached by Professor Luban,484 and has been con-firmed by the ad hoc Tribunals. The Tribunals have found that the accused need not be acting on the orders, or as agent, of the organisation or state which may be responsible for the attack, as long as the acts, viewed objectively, can be seen as furthering that attack.485

A similar issue arises in the situation where, in the context of an attack on a civilian population, the victims in a particular incident (as opposed to the attack) are not predominantly civilian, or indeed, are even predominantly non-civilian. In Mrkšić, the victims of a number of murders committed in the region of Ovčara were found to be ‘predominantly non-civilians’486 (of the 194 persons that were murdered, 181 were known to be active in the Croatian forces in Vukovar487). Despite this, the murders occurred during a widespread and systematic attack on the ‘civilian population’ of Vukovar.488


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489 (icty) Mrkšić – Appeal, above n 158, [41]ff.490 (icty) Mrkšić – Trial, above n 216, [476], [481] (see also [207]), approved in Mrkšić –

Appeal, above n 158, [42].491 (icty) Mrkšić – Appeal, above n 158, [42].492 See Section 4 (particularly 4.3.3 and 4.3.4).493 (icty) Mrkšić – Appeal, above n 158, [475] (where it is said that ‘…virtually all non-Serb

males of military age had become involved in the Croat forces given the grave situation…’).494 (icty) Tadić – Appeal, above n 24, [248] (citing Vukovar Hospital Rule 61 Decision, [30]),

[251], [271], followed in Kunarac – Appeal, above n 22, [102]–[103]; Kordić – Appeal, above n 50, [99]–[100]; (ictr) Akayesu – Trial, above n 24, [584]; Kayishema – Trial, above n 56, [135]; Gacumbitsi – Appeal, above n 305, [86]; (scsl) ruf – Trial, above n 40, [90]; cdf – Trial, above n 5, [121]; afrc – Trial, above n 25, [221]; (icc) Katanga – Confirmation, above n 109, [401]–[402]; Bemba Gombo – Confirmation, above n 24 [88].

The Chambers in Mrkšić resolved the issue by asking whether the nexus re-quirement was satisfied;489 namely, whether there was a nexus between the acts of the accused and such an attack. In the case of the killings at Ovčara, the nexus requirement was not satisfied as the Trial Chamber found that the pris-oners were selected based on their involvement in the Croatian armed forces and as such were treated differently from the civilian population.490 It was not suf-ficient that, inter alia, the perpetrators ‘harboured intense feeling of animosity towards persons they perceived as enemy forces’.491

This issue has some relevance to the definition of civilian discussed above.492 For, this decision would seem to lead to the untenable result that, if an aggressor sought to perpetrate a number of crimes on the people of a par-ticular ethnic village, were they to treat the armed soldiers noticeably worse than the civilians, and do so because they were armed soldiers, that fact would take them outside the realm of a crime against humanity. This is particularly relevant in a situation where many men of military age had become involved in the military because of the aggression faced.493 It may be argued of course, that such an obstacle is only illusory, as such crimes would be prosecuted as war crimes. But this is not necessarily true if the ‘armed conflict’ element is not present, or even where only an internal armed conflict may be present.

8.2 Subjective Element: mens reaWhile the Rome Statute was the first statute to specifically require an element of mens rea, the ad hoc Tribunals have consistently held that it is a require-ment of crimes against humanity.494 Generally speaking, both at customary international law and the icc, the subjective requirement or mens rea is that


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495 (icty) Tadić – Appeal, above n 24, [248] (‘the accused must have known that his acts fit into such a pattern’) and Kunarac – Appeal, above n 22, [99], [102] (‘knowledge on the part of the accused that there is an attack on the civilian population and that his act is part thereof ’), followed in Blaškić – Appeal, above n 91, [124], [126], Kordić – Appeal, above n 50, [99]–[100], (ictr) Kayishema – Trial, above n 56, [133]–[134]; Bagilishema – Trial, above n 191, [94]; Musema – Trial, above n 54, [206]; Semanza – Trial, above n 24, [332]; (scsl) ruf – Trial, above n 40, [90]; (iht) 1991 Incidents Case – Summary, above n 174, 111.

496 (icty) Milutinović – Trial, above n 472, [154], referring to the following authorities: Tadić – Appeal, above n 24, [248] (‘the accused’); Kunarac – Appeal, above n 22, [85] and [99] (both ‘the accused’ and ‘the perpetrator’); Blaškić – Appeal, above n 91, [124] (‘the accused’); Blaškić – Trial, above n 22, [257] (both ‘the accused’ and ‘the perpetrator’); Kupreškić – Trial, above n 99, [544] (‘the perpetrator’); Kunarac – Trial, above n 22, [410], [418], [433]–[435] (both ‘the accused’ and ‘the perpetrator’). See also (icty) Kordić – Appeal, above n 50, [99] (‘the accused’); (scsl) afrc – Trial, above n 25, [221] (‘the perpe-trator’); ruf – Trial, above n 40, [91] (‘the accused’).

497 (icty) Tadić – Appeal, above n 24, [248].498 (icty) Mrkšić – Indictment, above n 30, [15] (‘the responsibility of the accused for the acts

for which they have been charged could be established not only because of their position

the perpetrator/accused must know that there is an attack on the civilian pop-ulation and that her or his acts comprise part of the attack.495

8.2.1 Who Must Possess the mens rea?At least under customary international law, an issue arises as to who must possess the relevant mens rea. As acknowledged by the icty Trial Chamber in Milutinović, an important distinction must be made in this regard between the knowledge of the person accused of a particular offence (the accused) and the knowledge of a person other than the person accused of a particular offence, who may have in fact physically committed the particular act on the ground (the perpetrator). For instance, a senior general may be charged with murder as a crime against humanity where the physical acts comprising the murder were committed by a lower-ranked soldier.

Unfortunately, the jurisprudence of the ad hoc Tribunals has often used the terms ‘accused’ and ‘perpetrator’ interchangeably, without being entirely clear which person is referred to.496 The earliest and most regularly cited author-ity on point is the icty Appeals Chamber in Tadić, which refers to the acts of the accused having to form part of the attack and that the accused must have known that their acts fit into such a pattern.497 The authority cited is the Vukovar Hospital Rule 61 Decision, which referred to the physical perpetrator of the crime (or at least the accused only insofar as they were also the physical perpetrator of the crime).498


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of authority but also because of their direct participation in the commission of those acts’ (emphasis added)).

499 (icty) Milutinović – Trial, above n 472, [153]–[162].500 (icty) Milutinović – Trial, above n 472, [157].501 (icty) Milutinović – Trial, above n 472, [158].502 (icty) Milutinović – Trial, above n 472, [160], [162].503 (icty) Prosecutor v Šainović et al. (Appeals Chamber Judgment), Case No IT-05-87-A (23

January 2014) (‘Šainović – Appeal’), [280].504 (icty) cdf – Appeal, above n 92, [314]–[320].

This issue was recognised by the icty Trial Chamber in Milutinović.499 After considering the authorities in question, the Chamber held that to simply require that the accused have the requisite knowledge would be both: (a) over-inclusive (in that it would include the situation where neither the physical perpetrator nor intermediary perpetrator has the requisite knowledge and the accused’s knowledge of the context is too far removed from the offence, for instance, like aiding and abetting); and (b) under-inclusive (as it excludes the situation where a non-accused superior or intermediary perpetrator has the requisite knowledge).500

Accordingly, in the Chamber’s view, the relationship between the individual and the commission of the offence must be ‘sufficiently direct or proximate’.501 This is best captured by circumstances where an accused is responsible for di-rectly committing an offence (i.e. commission, planning, ordering, instigating) as the knowledge of the context is part of the mental process resulting in the commission of the act. The same cannot be said for an aider and abettor, or a person who fails to prevent or punish an offender.

In the result, the Milutinović Trial Chamber concluded that the mens rea ele-ment will be satisfied where the requisite mens rea was possessed by either:502

• the physical perpetrator; or• the person who planned, ordered or instigated his conduct.

This approach was accepted on appeal.503Importantly, the Appeals Chamber clarified that the question of whether a

crime against humanity has been committed should be distinguished from the question of the individual criminal responsibility of the accused. It is only in respect of the latter that the accused must individually possess the requisite mens rea in order to be found guilty. Nonetheless, the position may not entirely settled. The scsl Appeals Chamber in the cdf Case, for instance, specifically held that it was the accused (referred to as the ‘actual perpetrator’) that must have the particular mens rea.504


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505 (icc) Kenya – Authorisation Decision, above n 24, [79] (finding that ‘[i]n light of the nature of the current stage of the proceedings, bearing in mind that there is presently no suspect before the Court, the Chamber considers that the last requirement [i.e. knowledge of the attack] cannot be adequately addressed at this stage, as knowledge is an aspect of the mental element under article 30(3) of the Statute’). Interestingly, in subsequent confirma-tion decisions in respect of the Kenya situation, the Pre-Trial Chambers have appeared to treat the mens rea requirement as being established by the establishment of individual crim-inal responsibility: Ruto – Confirmation, above n 284, [163] and Muthaura – Confirmation, above n 284, [415], [417] (although see [105] and [293]).

506 (icc) Katanga – Confirmation, above n 109, [401] (citing Paragraph 2 of the Introduction to Article 7, Elements of Crimes); Bemba Gombo – Confirmation, above n 24 [87]–[89],

The question must be resolved by considering the fundamental role of the mens rea. That is to require that a person accused of committing a crime against humanity is aware of the context in which their actions are committed – i.e. to provide a subjective nexus between an accused and the offence, to provide a subjective nexus between the offence and the chapeau, and to ensure that the accused is aware of the context in which their crimes are committed. Seen in this light, a minimum requirement is that the accused possessed the mens rea. The question then is whether it is sufficient.

The ultimate upshot from Milutinović is that a crime against humanity requires that at least one of the direct perpetrators of a crime against human-ity possesses the relevant mens rea, whether that be the high-ranking members who ordered the offences or the low ranking members who carried out any order. It is not sufficient only that it be possessed by a person accused by way of a form of derivative liability such an aiding or abetting or command respon-sibility. This means that where an accused is charged on such a basis, it will be necessary not only to establish that the accused had the mens rea but also that at least one of the direct perpetrators had the requisite mens rea.

While the jurisprudence in the icc is unclear at this stage, the same result would appear to follow. Article 7(1) makes clear that the accused must have knowledge of the attack. Further, the Elements of Crimes makes clear in respect of each underlying crime that it must be the perpetrator – in the sense of the direct perpetrator of the underlying crime – who must possess the rel-evant mens rea. The position has, however, not finally been settled in the early decisions of the icc.

On the one hand, some Pre-Trial Chambers appear to have focused on the accused and even suggested that the mens rea element is established per se in the context of determining individual criminal responsibility.505

On the other hand, other Chambers have enunciated the test by focusing on the perpetrator only.506 For instance, in Bemba Gombo, the Pre-Trial Chamber


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[126]. However, the Pre-Trial Chamber in Katanga took the opposite approach in applica-tion: see [417] (looking to the accused to resolve the mens rea element).

507 (icc) Bemba Gombo – Confirmation, above n 24 [89].508 (icc) Bemba Gombo – Trial, above n 76, [168].509 (icty) Kunarac – Appeal, above n 22, [99], [102] (affirming Kunarac – Trial, above n 22,

[434]), followed in Blaškić – Appeal, above n 91, [124]; Kordić – Appeal, above n 50, [99]; (ictr) Akayesu – Appeal, above n 147, [467]; Semanza – Trial, above n 24, [332]; Gacumbitsi – Appeal, above n 305, [86]; Bagosora – Appeal, above n 88, [389]; (scsl) cdf – Appeal, above n 92, [314]; afrc – Trial, above n 25, [221]; ruf – Trial, above n 40, [91]; cdf – Trial, above n 5, [121]; (eccc) Case 002/01 – Trial, above n 24, [191]; and (iht) 1991 Incidents Case – Summary, above n 174, 111. See also (icty) Tadić – Appeal, above n 24, [248] (‘the accused must have known that his acts fit into such a pattern [of widespread or systematic crimes directed against a civilian population]’;) (Bangladesh) Kamaruzzaman – Judgment, above n 464, [133] (‘aware of [the] context’).

510 (icc) Katanga – Confirmation, above n 109, [401]–[402]; See also [401] (‘It may be noted that the ad hoc tribunals have understood this phrase to mean that the perpetrator knew there was an attack on a civilian population, and that his or her acts were part of that

held specifically that the accused’s mental state was relevant to individual criminal responsibility, while the mens rea element ‘pertains to the knowledge of the attack by the alleged direct perpetrators, namely the Mouvement pour la Liberation du Congo … troops in the field’.507 The same position was adopted by the Trial Chamber in Bemba Gombo.508 The important qualification in Bemba Gombo, however, is that it concerned an accused charged by way of command responsibility. As such, the approach adopted is entirely consistent with the approach in Milutinović.

The better view is that the position should be the same as under customary international law.

8.2.2 mens rea: KnowledgeNotwithstanding the controversy in respect of who must possess the requisite mens rea, the ad hoc Tribunals have held that the mens rea element will be sat-isfied where the relevant person (whether that be perpetrator or accused):509

• knows that there is a widespread or systematic attack against a civilian pop-ulation; and

• knows that the conduct of the physical perpetrator is part of that attack.

This approach appears to have been followed in the icc. The icc Elements of Crimes requires that a crime be committed with ‘knowledge of the attack’. This has been articulated either as being that the person ‘knew that the con-duct was part of or intended the conduct to be part of ’ the attack510 or that


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attack’), citing (icty) Kordić – Appeal, above n 50, [99]; Blaškić – Appeal, above n 91, [124]; (ictr) Semanza – Trial, above n 24, [332]; (iht) 1991 Incidents Case – Summary, above n 174, 111.

511 (icc) Bemba Gombo – Confirmation, above n 24 [88].512 (icty) Blaškić – Appeal, above n 91, [122]; Limaj – Trial, above n 22, [190]; (ictr)

Gacumbitsi – Appeal, above n 305, [86] (approving Gacumbitsi – Trial, above n 56, [332]); Semanza – Trial, above n 24, [332]; Prosecutor v Ntagerura et al. (Judgment), Trial Cham-ber iii, Case No ictr-99-46 (25 February 2004) (‘Ntagerura – Trial’), [698]; Bagilishema – Trial, above n 191, [84] (scsl) ruf – Trial, above n 40, [90]; (Bangladesh) Kamaruzzaman – Judgment, above n 464, [133].

513 (icty) Kunarac – Appeal, above n 22, [102] (approving Kunarac – Trial, above n 22, [434]), [104], followed in Blaškić – Appeal, above n 91, [122] (regarding knowledge of the pre-cise details of the plan), Galić – Trial, above n 129, [148], Limaj – Trial, above n 22, [190], Milošević, D – Trial, above n 110, [929], Đorđević – Trial, above n 193, [1594], (scsl) ruf – Trial, above n 40, [90]; (eccc) Case 002/01 – Trial, above n 24, [191].

514 (icty) Kunarac – Appeal, above n 22, [103] (citing (Israel) Enigster – Trial, above n 108, [13]), followed in Blaškić – Appeal, above n 91, [122], [124], Kordić – Appeal, above n 50, [99]; (ictr) Semanza – Trial, above n 24, [332]; Bagilishema – Trial, above n 191, [94]; (scsl) ruf – Trial, above n 40, [90]; (eccc) Case 002/01 – Trial, above n 24, [191]. See also (icty) Tadić – Appeal, above n 24, [248] and [255]–[270] (finding that the crime may be committed for purely personal motives).

515 (icty) Limaj – Trial, above n 22, [190] (citing Kunarac – Appeal).516 (icc) Laurent Gbagbo – Confirmation, above n 74, [214].517 (icty) Blaškić – Appeal, above n 91, [126], followed in (scsl) ruf – Trial, above n 40, [90].

the perpetrator was aware of the attack and that the acts form part of the attack.511

(a) Knowledge of the AttackThe first aspect of the mens rea is that the accused must have knowledge of the attack. The ad hoc Tribunals have held that a person must have knowledge of the ‘broader’ or ‘overall’ context in which his acts took place.512 The person need not know the details of the attack,513 share the purpose or goals of the attack,514 or approve of the context in which his or her acts occur.515 Similarly, in the icc, it will only be necessary to establish ‘knowledge of the attack in general terms’ and ‘should not be interpreted as requiring proof that the per-petrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization’.516

Evidence of knowledge depends on the facts of a particular case and the manner in which it is proved may vary from case to case.517 The icty Trial Chamber in Dragomir Milošević noted that knowledge of certain events is sufficient to warrant the conclusion that the perpetrator had notice of the


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518 (icty) Milošević, D – Trial, above n 110, [929], citing Blagojević – Appeal, above n 99, [102].519 (icty) Prosecutor v Limaj et al. (Appeals Chamber Judgment), Case No IT-03-66-A (27

September 2007) (‘Limaj – Appeal’), [218] (citing Blagojević – Trial, above n 37, [483], [748], Prosecutor v Aleksovski (Trial Chamber Judgment), Case No IT-95-14/1-T (25 June 1999) (‘Aleksovski – Trial’), [80], (ictr) Bagilishema – Trial, above n 191, [925]); see also Blagojević – Appeal, above n 99, [66], [75]–[76]; and Milošević, D – Trial, above n 110, [929].

520 (iht) 1991 Incidents Case – Summary, above n 174, 111.521 (icc) Elements of Crimes; Bemba Gombo – Confirmation, above n 24 [88]; Katanga –

Confirmation, above n 109, [401].522 Kriangsak Kittichaisaree, International Criminal Law (Oxford University Press: Oxford,

2001) 328–329.523 Donald Piragoff and Darryl Robinson, ‘Article 30 – Mental Element’, in Otto Triffterer (ed),

Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, ch Beck etc.: Munich, 2008) 853; and Maria Kelt and Herman von Hebel, ‘What Are the Elements of Crimes?’, in Roy Lee (Ed), The International Crimi-nal Court: Elements of Crimes and Rules of Evidence (Transnational Publishers: New York, 2001) 13–18.

524 (icty) Tadić – Appeal, above n 24, [248], [252], [255]–[270], [272], followed in Kunarac – Appeal, above n 22, [103], Blaškić – Appeal, above n 91, [124], Kordić – Appeal, above

wider context and nature of the crimes without necessarily having knowledge of every individual attack.518 The ad hoc Tribunals have also held that the per-petrator’s proximity to the area of criminal activity will often support an in-ference of knowledge of the crimes519 as will the rank, role or position of the defendant.520

The icc appears to follow this approach, noting:521

However, the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last element indicates that this men-tal element is satisfied if the perpetrator intended to further an attack.

As noted by Professor Clark, this addresses ‘the extent to which “passive” acqui-escence or collusion will be sufficient to represent participation in (or consti-tute) an attack’ and the scope will be left to the judges of the icc to address.522 Further, the general consensus appears to be that Article 30 of the icc Statute does not apply to the contextual (chapeau) elements.523

The question of a perpetrator/accused’s motive is a separate question from the accused’s knowledge. The accused may act out of purely personal motives unrelated to furthering the attack, provided the nexus elements are satisfied.524


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n 50, [99] (ictr) Gacumbitsi – Appeal, above n 305, [103], and (scsl) ruf – Trial, above n 40, [90].

525 (icty) Tadić – Appeal, above n 24, [282]–[292], followed in (ictr) Akayesu – Appeal, above n 147, [467].

526 (scsl) ruf – Trial, above n 40, [90].527 (icty) Kunarac – Appeal, above n 22, [103], followed in ruf – Trial, above n 40, [90], fn 193.

See also (icty) Milutinović – Trial, above n 472, [161], fn 297 (‘this holding seems appropri-ate only in the context of a perpetrator-accused. In light of this Trial Chamber’s views of the distinction between a physical perpetrator and a non-perpetrator accused, the fact that the offence was actually physically committed for purely personal reasons would be irrelevant to the question of whether that offence constituted a crime against humanity’).

528 M. Cherif Bassiouni, Introduction to International Criminal Law (Transnational Publish-ers: New York, 2003) 281–289.

529 (icty) Mrkšić – Appeal, above n 158, [3].530 (icty) Mrkšić – Trial, above n 216, [479], [581].531 (icty) Mrkšić – Appeal, above n 158, [42], citing Mrkšić – Trial, above n 216, [474]–[476].

Further, the accused need not act out of any discriminatory motives525 and need not intend that their acts be directed against the targeted population.526 Nonetheless, evidence that acts were committed for purely personal reasons could be indicative of a ‘rebuttable assumption’ that he was not aware that his acts were part of that attack.527

This may lead to some odd results. For example, if two persons are charged with rape – both acting out of private motives – one will have committed a crime against humanity, if aware of the attack at the time, and the other will be innocent of that crime, if unaware of the attack.

(b) Knowledge that the Acts Form ‘part of ’ the AttackThe second aspect of the mens rea is that the perpetrator/accused knew that their acts formed part of the attack. As Bassiouni points out, if persons, because of the limited role played, are honestly unaware that they have contributed to a crime against humanity, the required mens rea cannot be made out.528

While the first part of the mens rea usually obtains the majority of the atten-tion, this second part arose in the icty trial of Mrkšić, where the accused were acquitted of crimes against humanity on the basis that this element was not present. On 20 and 21 November 1991, in the final days of Serb siege of the Croat city of Vukovar, 194 people were taken from the Vukovar hospital to Ovčara, where they were tortured and executed.529 181 of these people were found to be in the Croatian military.530 Further, the crimes in Ovčara were found to have been directed against a specific group of individuals, the victims of the crimes were selected based on their perceived involvement in the Croatian armed forces, and as such treated “differently from the civilian population”.531


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532 (icty) Mrkšić – Appeal, above n 158, [42].533 (icty) Mrkšić – Appeal, above n 158, [42].534 (icty) Tadić – Appeal, above n 24, [282]–[292], followed in (ictr) Akayesu – Appeal,

above n 147, [467].535 (icty) Tadić – Appeal, above n 24, [297]; (ictr) Akayesu – Appeal, above n 147, [464].536 Schabas, above n 45, 157.537 (icty) Tadić – Appeal, above n 24, [248]; Kordić – Appeal, above n 50, [99]; and Blaškić – Appeal,

above n 91, [124]–[126]; (ictr) Akayesu – Appeal, above n 147, [467]; Semanza – Trial, above n 24, [332]; Gacumbitsi – Appeal, above n 305, [86] (affirming Gacumbitsi – Trial, above n 56, [302]); Bagosora – Appeal, above n 88, [389]; and (scsl) afrc – Trial, above n 25, [221].

Accordingly, the Appeals Chamber found that such a finding ‘precludes that they intended that their acts form part of the attack against the civilian popu-lation of Vukovar and renders their acts so removed from the attack that no nexus can be established.’532 It was not sufficient that the crimes occurred two days after the fall of Vukovar, within the geographical scope of the attack, the perpetrators also participated in the attack on Vukovar and that the perpetra-tors ‘harboured intense feeling[s] of animosity towards persons they perceived as enemy forces’.533

8.2.3 No Requirement of Discriminatory Intent or MotiveAs noted above, under customary international law and the Rome Statute, there is no requirement that crimes against humanity be committed with any discriminatory intent or motive (with the exception of the crime of perse-cution).534 The ictr statute required that crimes against humanity be com-mitted ‘on national, political, ethnic, racial or religious grounds’. However, as discussed in Chapter 5, this was likely inserted into the statute in substitution for the removal of the war nexus that was included in its counterpart statute for the icty. Furthermore, the requirement received no support during the Rome Conference and was accordingly dropped from the Rome Statute. On top of this, the ad hoc Tribunals have confirmed that, with the exception of the un-derlying crime of persecution, no discriminatory intent or motive is required for crimes against humanity.535 This view is confirmed by most writers.536

8.2.4 Standard of ‘knowledge’ RequiredThe requisite standard of knowledge is that the accused either ‘knew’ or ‘had reason to know’. The majority of Chambers have simply held that the mens rea component requires ‘knowledge’ (without explaining whether this can only mean actual knowledge).537 However, a number of Chambers, including the


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538 (icty) Tadić – Trial, above n 5, [659]; Kupreškić – Trial, above n 99, [556]–[557]; (ictr) Kayishema – Trial, above n 56, [133]; Musema – Trial, above n 54, [206]; Prosecutor v Georg-es Ruggiu (Judgment and Sentence), Trial Chamber i, Case No ICTR-97-32-I (1 June 2000) (‘Ruggiu – Trial’), [20]; (scsl) cdf – Appeal, above n 92, [314] (implicitly accepting the Trial Chamber’s characterisation – see cdf – Trial, above n 5, [121]); and ruf – Trial, above n 40, [90].

539 (Canada) Regina v Finta [1994] 1 scr 701 (‘Finta – Supreme Court’), 820 (Lamer cj, Gon-thier, Cory, and Major jj, with La Forest, L’Heureux-Dubé and McLachlin jj. dissenting).

540 (Canada) Finta – Supreme Court, above n 540, 820. See also Chapter 3, Section 4.3.541 See Judith Bello and Irwin Cotler, ‘Regina v Finta’ (1996) 90(3) American Journal of Inter-

national Law 460.542 (icty) Tadić – Trial, above n 5, [658]–[659].543 (icty) Kunarac – Appeal, above n 22, [102] (affirming Kunarac – Trial, above n 22, [434]);

Krnojelac – Trial, above n 22, [59]; and (Canada) Mugesera – Supreme Court, above n 55, [173].

544 (spet) Los Palos – Judgment, above n 22, [642].545 (Canada) Mugesera – Supreme Court, above n 55, [173], citing (icty) Tadić – Appeal,

above n 24, [248], Kunarac – Trial, above n 22, [434], Blaškić – Trial, above n 22, [251]; and (ictr) Ruggiu – Trial, above n 539, [20].

546 (icty) Blaškić – Appeal, above n 91, [126] (‘The Trial Chamber, in stating that it “suffices that he knowingly took the risk of participating in the implementation of the ideology, policy or plan,” did not correctly articulate the mens rea applicable to crimes against humanity.’)

scsl Appeals Chamber in the cdf Case, have held that it is sufficient that the accused possesses ‘actual or constructive knowledge’ or has ‘reason to know’.538

Some controversy has surrounded precisely what the ‘reason to know’ standard entails. The mens rea requirement was controversial in Finta and split the Supreme Court of Canada.539 Ultimately, the majority accepted the expert view of Professor Bassiouni and held that the defendant must know or be aware of ‘the facts or circumstances which would bring the acts within the definition of crimes against humanity’.540 The majority ruling was criticised at the time as placing an unnecessary burden on the prosecution.541 Whilst the Statutes of the icty and the ictr are silent on the matter, Finta was followed by the Trial Chamber in Tadić without analysis, probably because an alibi defence was raised rather than any question of intent.542

Initially, the icty Appeals Chamber in Kunarac found that it would suffice if the perpetrator ‘took the risk’ that their acts formed part of the attack.543 This view was subsequently followed, including by the spet544 and the Supreme Court of Canada in Mugesera.545 Later, the icty Appeals Chamber in Blaškić appeared to reject that standard.546 While the Appeals Chamber decision was


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547 And the decision may also be read as a criticism of the Trial Chamber’s reference to a ‘plan or policy’: The sentence immediately following the one cited above is: ‘Moreover, as stated above, there is no legal requirement of a plan or policy, and the Trial Chamber’s statement is misleading in this regard’. See also ambiguity at [166].

548 (icty) Limaj – Trial, above n 22, [190]; (scsl) afrc – Trial, above n 25, [222]. See also Schabas, above n 45.

549 (icty) Šainović – Appeal, above n 504, [271]. Similarly, the Appeals Chamber in Blagojević appeared to accept it was sufficient that the accused knew enough to ‘put him on notice’: see Blagojević – Appeal, above n 99, [102].

550 Kai Ambos, ‘Crimes Against Humanity and the International Criminal Court’, in Leila Nadya Sadat (ed), Forging a Convention for Crimes Against Humanity (Cambridge Univer-sity Press: Cambridge, 2011) 289–290.

551 (icc) Bemba Gombo – Confirmation, above n 24, [87].552 (icty) Blaškić – Appeal, above n 91, [126], followed in Limaj – Trial, above n 22, [190].

not entirely clear,547 a number of Chambers and writers since have treated the Blaškić Appeals Chamber as rejecting the ‘took the risk’ test.548 None-theless, the later icty Appeals Chamber in Šainović clarified that the Blaškić Appeals Chamber did not intend to depart from the earlier decision in Ku-narac and therefore found that it will suffice that the accused ‘took the risk’ that their acts formed part of the attack549

In the result, as has been pointed out elsewhere, this formulation would catch a perpetrator of a crime at a moment when the attack is only imminent or only just beginning – i.e. where positive knowledge of the attack cannot exist by definition.550

In the icc, the Elements of Crimes states that an accused must have either knowledge of the attack or an intention to further the attack, but that the mens rea element ‘should not be interpreted as requiring proof that the perpetra-tor had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization’. icc Pre-Trial Chamber ii has held that ‘knowledge’ means ‘awareness that a circumstance exists or a conse-quence will occur in the ordinary course of events’551 (emphasis added). This is not inconsistent with Article 33 because in the case of defendants who do not have such knowledge, any orders being followed cannot be ‘orders to commit crimes against humanity’.

8.2.5 Standard of ProofEvidence 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 from case to case.552 Difficulties may arise, however, as to proof of the relevant knowledge. The Tribunals have said because ‘explicit manifestations of criminal intent


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are … often rare’, ‘the requisite intent may normally be inferred from relevant facts and circumstances’.553 The icc has similarly held that the relevant knowl-edge may be inferred from circumstantial evidence.554

While the list is not exhaustive, some of the factors listed by Tribunals and Courts as being relevant factors in assessing whether the ‘knowledge’ element is present to include:

• the perpetrator’s proximity to the area of criminal activity;555• the scale of the attack and how visible the attacks were;556 and• the seniority of the person.557

Further, icc Pre-Trial Chamber i in the Katanga Confirmation Decision has held that the relevant factors will include the following:558

• the accused’s position in the military hierarchy;• whether the accused assumed an important role in the broader criminal

campaign;• the accused’s presence at the scene of crimes;• the accused’s references to the superiority of his group over the enemy

group; and• the general historical and political environment in which the acts occurred.

For instance, the Iraqi Special Tribunal held in the case of Ali Hassan Al-Majid (‘Chemical Ali’) that the defendant was the Supreme Leader of the Northern Zone of Iraq during the relevant period. In that area at the time, there was an attack targeting Kurdish civilian launched whereby ‘[a]ll the state’s military and civil capabilities were exploited’ in the attack, thousands of civilians were

553 (ictr) Prosecutor v Kayishema (Appeals Chamber Judgment), Case No ICTR-95-1-A (1 June 2001), [159], followed in Prosecutor v Kamuhanda (Appeals Chamber Judgment), Case No ICTR-99-54A-A (19 September 2005), [87].

554 (icc) Katanga – Confirmation, above n 109, [402]555 (icty) Limaj – Appeal, above n 520, [218], followed in Milošević, D – Trial, above n 110,

[929]. See also Blagojević – Appeal, above n 99, [66], [75]–[76].556 (icty) Prosecutor v Gotovina et al. (Trial Chamber Judgment), Case No IT-06-90-T (15 April

2011), [1722], (iht) Anfal – Trial, above n 50, 520–521.557 (BiH) Marko Samardžija (Second Instance Judgment), Case No X-KRŽ-05/07 (3 November

2006), 17; (iht) Anfal – Trial, above n 50, 520–521.558 (icc) Katanga – Confirmation, above n 109, [402]; see also (iht) 1991 Incidents Case –

Summary, above n 174, 111, where a similar list appears to have been adopted.


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559 (iht) Anfal – Trial, above n 50, 521–522.560 (iht) Anfal – Trial, above n 50, 523.561 (iht) See Chapter 10, Section 1.2.3(b).

killed, and chemical weapons were used.559 Whether these factors would have established the mens rea itself is unclear as the Tribunal possessed evidence of letters and documents showing Ali ordering such crimes.560

As has been discussed in Chapter 10, lesser states of mind – e.g. an apprecia-tion of certain risks or wilful blindness – may be relevant to drawing the infer-ence that the necessary mental state was present.561


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Documents

Crimes against Humanity under Customary International Law