1.The conduct was committed as part of a widespread or systematic attack against any civilian population.

According to the Appeals Chamber in Kunarac et al.,

"In order to amount to crime against humanity, the acts of an accused must be part of a widespread or sytematic attack ʻdirected against any civilian population'. This phrase has been interpreted [...] as encompassing five elements:

- There must be an attack

- The acts of the perpetrator must be part of the attack

- The attack must be directed against any civilian population

- The attack must be widespread or systematic

"- The perpetrator must know that his acts constitute part of a pattern of widespread or systematic crimes directed against a civilian population and know that his acts fit into such pattern."[1]

Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, para. 577:

"577. The Appeals Chamber recalls that in order to amount to a crime against humanity, the acts of an accused must be part of a widespread or systematic attack directed against any civilian population.¹⁶³⁶ The Trial Chamber explained the actions it considered to form part of the attack directed against the Bosnian Muslim civilian populations of Srebrenica and Žepa (“Attack”).¹⁶³⁷ The Trial Chamber also provided a detailed factual narrative of those actions.¹⁶³⁸ The Appeals Chamber therefore considers that Miletić has failed to demonstrate that the Trial Chamber erred in law by not determining specifically which actions were encompassed in the Attack."

Prosecutor v. Nikola Sainovic, Case No. IT-05-87-A, Judgement (AC), 23 January 2014, para. 249:

"249. As a preliminary matter, the Appeals Chamber must decide whether the Prosecution is entitled to appeal on this point. The crux of the matter is whether the Prosecution has waived its right to appeal because it failed to raise this issue at the trial stage. The Appeals Chamber will also consider whether there are special circumstances that justify an exception to the waiver rule."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 471-472:

"471. Article 5 of the Statute gives the Tribunal jurisdiction over various offences “when committed in armed conflict, whether international or internal in character, and directed against any civilian population”. Unlike the exigency in Article 3 that the offences be closely related to the armed conflict, the requirement under Article 5 that the offence be committed in armed conflict is a purely jurisdictional prerequisite which is satisfied by proof that there was an armed conflict at the time and place relevant to the indictment but does not mandate any material nexus between the acts of the accused and the armed conflict."

"472. Tribunal jurisprudence has identified the following five general requirements for crimes against humanity under Article 5 of the Statute:

(i) There must be an attack; (ii) the attack must be directed against any civilian population; (iii) the attack must be widespread or systematic; (iv) the acts of the perpetrator must be part of the attack; and (v) the perpetrator1543 must know that there is a widespread or systematic attack directed against a civilian population and know that his acts constitute part of this attack."

Prosecutor v. Augustin NDINDILIYIMANA, François-Xavier NZUWONEMEYE et Innocent SAGAHUTU, Case No. ICTR-00-56-A, Judgement (AC), 11 February 2014, para. 260:

"260. The Appeals Chamber recalls that an enumerated crime under Article 3 of the Statute constitutes a crime against humanity if it is proven to have been committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic, racial, or religious grounds. The term “widespread” refers to the large scale nature of the attack and the number of victims, whereas the term “systematic” refers to “the organised nature of the acts of violence and the improbability of their random occurrence”. With respect to the mens rea, the perpetrator must have acted with knowledge of the broader context of the attack, and with knowledge that his acts (or omissions) formed part of the widespread or systematic attack against the civilian population."

1.1.Attack

ICC

Prosecutor v. Bosco Ntaganga, Case No. ICC-01/04-02/06, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda (PTC), 9 June 2014, para 23:

"an “attack” denotes a course of conduct involving the multiple commission of acts referred to in paragraph (1) of the same provision. As the charged crimes must take place within an “attack”, the Prosecutor is free to present further additional acts to the ones charged, with a view to demonstrating that an “attack” within the meaning of articles 7(1) and 7(2)(a) of the Statute took place, as illustrated below in paragraphs 24 to 30."

ICTY

The Đorđ;ević Trial Chamber noted:

"[I]n order to constitute a crime against humanity, a crime listed under Article 5 of the Statute must be committed 'in an armed conflict'. This requirement is satisfied by proof that there was an armed conflict at the relevant time and place, and that, objectively, the acts of the accused were linked geographically, as well as temporally, with the armed conflict. This requirement is specific to the Tribunal; as held by the Appeals Chamber, under customary international law crimes against humaniy may also be committed in times of peace."[2]

In Krnojelac the Trial Chamber observed:

"The concept of 'attack' is distinct and independent from the concept of 'armed conflict'. In practice, the attack could outlast, precede, or run parallel to the armed conflict, without necessarily being a part of it."[3]

The Perišić Trial Chamber stated that:

"An 'attack' may be defined as a course of conduct involving the commission of acts of violene. In the context of crimes against humanity, an 'attack' is distinct from the concept of 'armed conflict' and not limited to the use of armed force. Rather, it may encompass any mistreatment of the civlian population. The attack may precede, outlast or continue during the armed conflict and need not be part of it."[4]

"[I]n international law there is no justification for attacks on civilians carried out either by virtue of the tu quoque principe (i.e. the argument whereby the fact that the adversary is committing similar crimes offers a valid defence to a belligerent's crimes) or on the strength of the principle of reprisals."[5]

The Kunarac Appeals Judgement noted:

"[...] When establishing whether there was an attack upon a particular civilian population, it is not relevant that the other side also committed atrociites against its opponent's civilian population."[6]

"The existence of an attack from one side against the other side's civilian population would neither justify the attack by that other side against the civilian population of its opponent nor displace the conclusion that the other side's forces were in fact targeting a civilian population as such. Each attack against the other's civilian population would be equally illegitimate and crimes committed as part of this attack could, all other conditions being met, amount to crimes against humanity."[7]

“35. First, there must be an attack. The concept of an attack must be distinguished from that of an armed conflict. Although the attack may occur within the context of an armed conflict, it is equally true that the attack may precede an armed conflict, may continue once it has ended or proceed during the conflict, without necessarily being part of it. However, as stated earlier, the Tribunal will be competent to judge crimes committed by an accused only if they are committed as part of an attack occurring “in an armed conflict”. An “attack” has been defined as “a course of conduct involving the commission of acts of violence”. In the case of a crime against humanity, the term “attack” is not restricted to the use of armed force but may also encompass circumstances where there is mistreatment of the civilian population.^”

Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 962:

"962. Attack. An attack on a civilian population is a separate and distinct concept from that of an armed conflict. The attack is not limited to the use of force, but encompasses any mistreatment of the civilian population, and can commence before, outlast, or continue during the armed conflict. An attack is composed of acts of violence, or the kind of mistreatment referred to in Article 5 (a) through (i) of the Statute."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para 473:

"473. The concepts of “attack” and “armed conflict” are not identical. An attack could precede, outlast, or continue during the armed conflict but need not be part of it. Furthermore, in the context of a crime against humanity, an attack is not limited to the use of armed force but encompasses any mistreatment of the civilian population."

ICTR

According to the Trial Chamber in Musema,

"An attack may also be non-violent in nature, such as imposing a system of apartheid, which is declared a crime against humanity in Article 1 of the Apartheid Convention of 1973, or exerting pressure on the population to act in a particular manner, which may come under the purview of an attack, it orchestrated on a massive scale or in a systematic manner."[8]

1.1.1. Conduct of hostilities; OR

According to the Ndindiliyimana et al. Trial Chamber:

"[a]n attack against a civilian population means the perpetration against that population of a series of acts of violence or of the kind of mistreatment referred to in sub-paragraph (a) to (i)."[9]

1.1.2. Mistreatment of the civilian population

1.2. Directed against any civilian population

Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, paras. 141-142:

''141. With respect to Tolimir’s argument that the Trial Chamber erred in law in applying an incorrect standard to establish the mens rea of extermination by not requiring that the civilian population was the intended target of mass murder, the Appeals Chamber recalls that, as noted by the Trial Chamber, it is well-established that with regard to the victims of the underlying acts of crimes against humanity, “[t]here is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber that requires that individual victims of crimes against humanity be civilians”. The Appeals Chamber has more specifically clarified that: whereas the civilian status of the victims, the number of civilians, and the proportion of civilians within a civilian population are factors relevant to the determination of whether the chapeau requirement of Article 5 of the Statute that an attack be directed against a “civilian population” is fulfilled, there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be “civilians”.''

''142. Accordingly, while the establishment of the actus reus of a crime against humanity requires that the crime occur as part of a widespread or systematic attack directed against a civilian population, the victims of the underlying crime do not have to be civilians. The Appeals Chamber thus rejects Tolimir’s argument that the Trial Chamber erred in law by applying an incorrect mens rea standard for extermination when not requiring proof of intent to commit mass murder against civilians. It was sufficient for the Trial Chamber to be satisfied in that regard that the mens rea for the crime of extermination was established on the basis of evidence of the intent to kill on a massive scale as part of a widespread or systematic attack directed against a civilian population.''

Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 522-523, 747:

"522. The Appeals Chamber turns to Dordevic’s contention that the Trial Chamber erred in its definition and application of an individual’s civilian status in an internal armed conflict. Dordevic argues that the Trial Chamber reversed the burden of proof when it considered that the presumption of civilian status, as set out in Article 50(1) of Additional Protocol I, applied to internal armed conflict despite its absence from the text of Article 13 of Additional Protocol II.¹⁷¹³ The Appeals Chamber recalls that the principle contained in Article 50(1) of Additional Protocol I, that in cases of doubt a person shall be considered a civilian, is limited to the expected conduct of a member of the military.¹⁷¹⁴ In contrast, where the criminal responsibility of an accused is at issue, the Prosecution bears the burden of proof concerning the civilian status of victims.¹⁷¹⁵ Ðorđević’s submissions fail to acknowledge these two different standards. As a result, he misrepresents two distinct sets of findings made by the Trial Chamber: (i) the findings made in relation to the disproportionate use of force by Serbian forces as an indicator of the existence of the JCE¹⁷¹⁶ and (ii) the findings made in relation to the commission of crimes by these forces.¹⁷¹⁷ In discussing the first set of findings and determining whether the disproportionate use of force by the VJ and the MUP was “a further indication that the purpose of the operations was to perpetuate the crimes established”,¹⁷¹⁸ the Trial Chamber stated that, in an internal armed conflict, in case of doubt an individual should be presumed to be a civilian.¹⁷¹⁹ It considered that this principle entailed, at a minimum, that attacking forces assess and determine whether there is any doubt as to the status of the target.¹⁷²⁰ It then concluded that the Serbian forces’ excessive use of force showed that no such assessments were made.¹⁷²¹ Accordingly, the Appeals Chamber is satisfied that the Trial Chamber did not relieve the Prosecution of its burden to prove that the victims were civilians or otherwise protected persons under IHL, nor did it apply an “over-expansive definition” of civilian.¹⁷²² The Appeals Chamber will now consider whether the Trial Chamber properly applied the burden of proof in finding that Serbian forces committed the crimes of murder, deportation, and other inhumane acts (forcible transfer)."

"523. With respect to the crime of murder, the Trial Chamber correctly recalled that Common Article 3 of the Geneva Conventions is applicable to internal armed conflicts and protects persons not taking active part in hostilities.¹⁷²³ The Appeals Chamber recalls that persons taking no active part in hostilities include persons in detention¹⁷²⁴ and that the “well-established jurisprudence of the Tribunal has repeatedly affirmed that the body proper of the Geneva Conventions cannot be interpreted in such a way as to afford lesser protection to individuals than that which is afforded by common Article 3”.¹⁷²⁵ The Appeals Chamber observes that the Trial Chamber performed an extensive analysis of the circumstances surrounding the killings and took into account numerous factors in reaching its findings that the great majority of the victims were detained, unarmed, or otherwise taking no active part in hostilities at the time of their death.¹⁷²⁶ Accordingly, the Appeals Chamber, Judge Tuzmukhamedov partially dissenting, finds that the Trial Chamber reasonably concluded that the victims were entitled to protection under Common Article 3(1) and Article 13(2) of Additional Protocol II. Dordevic has therefore failed to show that the Trial Chamber erred in reaching this conclusion."

"747. The Appeals Chamber recalls in this regard that in addition to civilians taking no active part in hostilities, victims of murder as a war crime under Article 3 of the Statute include any individual not taking active part in hostilities, “including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause”. ²²²⁵ For murder as a crime against humanity under Article 5 of the Statute, while the chapeau requirements necessitate proof that the act of the perpetrator was part of a widespread or systematic attack “directed against any civilian population”,²²²⁶ this does not mean that the individual victims of crimes against humanity must be civilians.²²²⁷ Persons hors de combat may also be victims of murder as a crime against humanity, provided that they were victims of a widespread and systematic attack against the civilian population, and that all the elements of the crime were met.²²²⁸ Therefore, even if some of the victims were members of the KLA, as Dordevic suggests, if they had laid down their arms at the relevant time, they were no longer legitimate targets."

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 36: 

"36. Second, the attack must be directed against a civilian population of any sort. The expression “directed against” indicates that, in the event of a crime against humanity, the civilian population must constitute the primary target of the attack. In order to determine whether this was the case, the Trial Chamber must consider, among other indicia, the means and methods employed during the attack, the status of the victims, their number, the discriminatory character of the attack, the nature of the crimes committed during the attack, the resistance to the assailants at the time, as well as the extent to which the attacking forces may be said to have complied or attempted to comply with the precautionary requirements of the laws of war."

Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 964-965: 

"964. Directed against a civilian population. “Directed against” indicates that it is the civilian population which is the primary object of the attack. The attack does not have to be directed against the civilian population of the entire area relevant to the indictment. It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Trial Chamber that the attack was in fact directed against a civilian “population”, rather than against a limited and randomly selected number of individuals."

"965. According to the Appeals Chamber, the definition of civilian for the purpose of Article 5 of the Statute corresponds with the definition of civilian contained in Article 50 of Additional Protocol I to the 1949 Geneva Conventions. Additional Protocol I defines a “civilian” as an individual who is not a member of the armed forces or otherwise a combatant. The Appeals Chamber has emphasized that the fact that an attack for the purpose of crimes against humanity must be directed against a civilian population, does not mean that the criminal acts within that attack must be committed against civilians only. A person placed hors de combat, for example by detention, may also be a victim of an act amounting to a crime against humanity, provided that all the other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against a civilian population."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 474-476:

"474. A population is considered to be a civilian population under Article 5 of the Statute if it is predominantly civilian in nature. The presence within a population of persons who do not come within the definition of civilians does not necessarily deprive the population of its civilian character. The Appeals Chamber has held that a determination as to whether the presence of soldiers within a civilian population deprives the population of its civilian character will depend on the number of soldiers, as well as whether they are on leave."

"475. For the purpose of Article 5 of the Statute, an attack can be considered to have been directed against a civilian population if the civilian population was the “primary rather than an incidental target of the attack”. In order to determine whether the attack was so directed, the Appeals Chamber has identified a non-exhaustive list of relevant factors, such as the means and method used during the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in the course of the attack, the resistance to the assailants at the time of the attack, 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. The term “population” does not mean that the entire population of the geographical entity in which the attack is occurring was subjected to the attack.  However, the attack must have targeted more than “a limited and randomly selected number of individuals” within the population."

"476. Finally, as discussed above, while the civilian status of the victims, the number of civilians, and the proportion of civilians within a civilian population are factors relevant to the determination as to whether an attack is directed against a “civilian population”, there is no requirement that individual victims of crimes against humanity be civilians. It is therefore possible for a person hors de combat to be a victim of an act amounting to a crime against humanity."

1.2.1. Directed against: Evidence of the civilian population be the primary object of the attack (not just an incidental victim of the attack).

ICTY

The Tadić Trial Judgement said:

"The requirement [...] that the enumerated acts be 'directed against any civilian population' contains several elements."[10]

The Perišić Trial Chamber stated that:

"'the attack must have been directed against the civilian population' means that '[t]he civilian population must be the primary object of attack'. It is not a requirement that the attack be against the whole civilian population. However, a Trial Chamber must be satisfied that the attack was in fact directed against a civlian population, rather than against a limited and randomly selected number of individuals."[11]

In the Kunarac and Vukovic Judgement, the Trial Chamber said:

"the expression 'directed against any civilian population' ensures that generally, the attack will not consist of one particular act but of a course of conduct."[12]

The Perišić Trial Chamber stated that:

"A population may qualify as 'civlian' even if individuals who do not fall within the definition of civilians are among it. In order to determine whether the presence of non-civilians deprives the population of its civilian character, the number of non-civilians, as well as whether they are on leave or laid down their arms, must be examined."[13]

"[t]he requirement under Article 5 that an attack be directed against a civilian population does not mean that the individual victims of criminal acts committed within the attack must be civilians only. The jurisprudence of the Tribunal does not suggest that a Trial Chamber is required to determine whether every single individual victim of the alleged crimes against humanity is a "civilian" under international humanitarian law. As a consequence, persons hors de combat may also fall under the protection of Article 5 of the Statute."[14]

1.2.2. Any

ICTY

According to the Tadić Trial Chamber:

"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 as those of a different nationality."[15]

According to the Kunarac Trial Judgement:

"The protection of Article 5 extends to 'any' civilian population including, if a state takes part in the attack, that state's population. It is therefore unnecessary to demonstrate that the vicims are linked to any particular side of the conflict."[16]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 39:

"39. The term “of any sort” means that crimes against humanity can be committed against civilians of the same nationality as the perpetrator or against those who are stateless, as well as those of a different nationality."

ICTR

According to the Trial Chamber in the Semanza case:

"victim(s) of the enumerated act need not necessarily share geographic or other defining features with the civilian population that forms the primary target of the underlying attack, but such characteristics may be used to demonstrate that the enumerated act forms part of the attack."[17]

1.2.3. Civilian population

ICC

The ICC Pre-Trial Chamber in the Muthaura et al. case stated:

"[...] the Chamber notes that the qualifier 'any civilian population' has been previously interpreted to mean 'groups distinguishable by nationality, ethnicity or other distinguishing features'. In the view of the Chamber, the civilian population targeted can include a group defined by its (perceived) political affiliation."[18]

ICTY

The Kunarac Trial chamber stated:

"The 'civilian population' comprises, [...], all persons who are civilians as opposed to members of the armed forces and other legitimate combattants."[19]

The Kordić and čerkez Trial Judgement stated that:

"A population may be considered as 'civilian' even if certain non-civilians are present -it must simply be 'predominantly civilian in nature.'"[20]

"[c]rimes against humanity therefore do not mean only acts committed against civilians in the strict sense of the term but include also crimes against two categories of people: those who were members of a resistance movement and former combatants - regardless of whether they wear uniform or not - but who were no longer taking part in hostilities when the crimes were perpetrated because they had either left the army or were no longer bearing arms or, ultimately, had been placed hors de combat, in particular, due to their wounds or their being detained. It also follows that the specific situation of the victim at the moment the crimes were committed, rather than his status, must be taken into account in determining his standing as a civilian."[21]

In Kunarac et al., the Trial Chamber noted that:

"the expression "population" does not mean that the entire population of the geographical entity in which the attack is taking place (a state, a municipality or another circumscribed area) must be subject to the attack."[22]

According to the Tadić Trial Chamber judgement:

"the 'population' element is intended to imply crimes of collective nature and thus exclude single or isolated acts which, although possibly constituting war crimes or crimes against penal legislation, do not rise to the level of crimes against humanity."[23]

The Kunarac Appeals Judgement noted that:

"it is sufficient to show that enough individuals 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 number of individuals."[24]

According to the Tadić Trial Chamber:

"From Common Article 3 to the Barbie case, a wide definition of civilian population, as supported by these sources, is justified. Thus the presence of those actively involved in the conflict should not prevent the characterization of a population as civilian and those actively involved in a resistance movement can qualify as victims of crimes against humanity."[25]

The Kunarac, Kovac and Vukovic Trial Judgement stated that:

"A person shall be considered to be a civilian for as long as there is a doubt as to his or her status."[26]

"As a group, the civilian population shall never be attacked as such. Additionally, customary international law obliges parties to the conflict to distinguish at all times between the civilian population and combatants, and obliges them not to attack a military objective if the attack is likely to cause civilian casualties or damage which would be excessive in relation to the military advantage anticipated."[27]

The Kunarac, Kovac and Vukovic Appeals Chamber judgement stated that:

"In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider, inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirement of the laws of war. To the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and the legality of the acts committed in its midst."[28]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 37-38: 

"38. Regarding the “character” of the population, it has been acknowledged that the targeted population must be predominantly civilian. It follows then that the presence of isolated non-civilians among this population does not deprive that population itself of its civilian character. The Appeals Chamber specified that the civilian status of the victims, the number of civilians and the proportion of civilians among the population attacked are relevant factors in determining the civilian status of the population attacked. The Chamber recalls, however, that the determination of the civilian character of the population is an issue which forms part of the assessment of the evidence. Furthermore, the Chamber notes that the Petković Defence argues both that the crime of imprisonment provided under Article 5(e) can be committed only towards civilians and that it cannot be committed when the detainees are prisoners of war.  In this regard, the Chamber notes that, under settled case-law, it is not necessary that the individual victims of the underlying crimes be themselves civilians, provided that the population targeted in the attack is civilian in character. Thus, a person hors de combat, that is to say, a person who, while having the status of combatant, no longer participates in hostilities, because he was, for example, injured or captured, may be the victim of a crime against humanity provided that this act forms part of a widespread or systematic attack against a civilian population."

"39. The term “of any sort” means that crimes against humanity can be committed against civilians of the same nationality as the perpetrator or against those who are stateless, as well as those of a different nationality."

Prosecutor v. Nikola Sainovic, Case No. IT-05-87-A, Judgement (AC), 23 January 2014, para. 549:

"549. The Appeals Chamber finally turns to Lukic’s argument that some of the 287 human remains recovered could have been the bodies of combatants and that therefore the Trial Chamber erred in its finding that the Serbian forces’ operation was directed against the civilian population.¹⁷⁹⁵ The Appeals Chamber recalls that in order to constitute a crime against humanity, the acts of an accused must be part of a widespread or systematic attack directed against any civilian population.¹⁷⁹⁶ The jurisprudence of the Tribunal provides that the “civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character”.¹⁷⁹⁷ In order to consider whether a population is “civilian” for the purposes of Article 5 of the Statute, “the civilian status of the victims, the number of the civilians, and the proportions of civilians” within the population must be evaluated.¹⁷⁹⁸ The Appeals Chamber notes that the Trial Chamber did not conclude that all of the 287 Kosovo Albanians killed were civilians but rather found that the only reasonable inference to be drawn from the evidence was that “many of these killed people were civilians or hors de combat at the time of their killing.”¹⁷⁹⁹ The Appeals Chamber further notes that in its conclusions, the Trial Chamber noted that “these murders were committed as a part of the joint VJ and MUP operation in the Reka/Caragoj valley, which was a widespread and systematic attack directed against the civilian population.”¹⁸⁰⁰ The Appeals Chamber therefore concludes that the fact that some combatants may have been among those killed does not deprive the Kosovo Albanian population at hand of its “civilian” status pursuant to Article 5 of the Statute. The Appeals Chamber therefore finds that the chapeau requirement of Article 5 of the Statute that the crimes be “directed against any civilian population” is met."

SCSL

The Taylor Trial Chamber stated:

"During this time, the evidence demonstrated that there were large numbers of civilian victims and that attacks were widespread and occurred in the areas that were under control of the AFRC/RUF junta forces. This mistreatment of civilians during junta rule demonstrates that the RUF and AFRC specifically targeted the civilian population in order to minimise any resistance or opposition to the regime."[29]

1.2.4. A State or organizational policy inferred from the totality of the circumstances.

In the Katanga Trial Judgement, the Trial Chamber held that:

"The attack, within the meaning of article 7(2)(a) of the Statute, must be executed pursuant to or in furtherance of a State or organisational policy. The Statute and the Elements of Crimes leave undefined the term "organisation", but two provisional conclusions may be drawn from a plain reading of the texts as they stand:

the organisation is not the State, as the text uses the conjunction "or" to denote that the concepts are and must remain distinct;

- the Elements of Crimes state that the organisation or State must "actively promote or encourage" the attack against the civilian population. That they so specify presupposes that the organisation in question has sufficient means to promote or encourage a campaign involving the multiple commission of acts referred to in article 7(2) of the Statute.

The Chamber notes that paragraph 3 of the Introduction to article 7 of the Elements of Crimes and article 7(2)(a) of the Statute make no reference whatsoever to any centralised and hierarchical structure of the organisation but only to an object. However, the Chamber is aware that the characteristics of the organisation, within the meaning of the Statute and the Elements of Crimes, were canvassed by a Pre-Trial Chamber of the Court. It considers that, here too, interpretation is expedient so as to delineate the contours of an organisation.

Turning first to its plain meaning, the term "organisation" must be understood as an "[a]ssociation, regie ou non par des institutions, qui se propose des buts determines" [TRANSLATION: an association, whether or not governed by institutions, that sets itself specific objectives]. This very general definition does not, however, allow the contours of an organisation to be clearly circumscribed. To such end, the Chamber places the term in its context. The question then arises as to whether the normative connection of the organisation to the existence of an attack within the meaning of article 7(2)(a) may affect the definition of the characteristics of such organisation. In the Chamber’s view, the connection of the term "organisation" to the very existence of the attack and not to its systematic or widespread nature presupposes that the organisation has sufficient resources, means and capacity to bring about the course of conduct or the operation involving the multiple commission of acts referred to in article 7(2)(a) of the Statute. It therefore suffices that the organisation have a set of structures or mechanisms, whatever those may be, that are sufficiently efficient to ensure the coordination necessary to carry out an attack directed against a civilian population. Accordingly, as aforementioned, the organisation concerned must have sufficient means to promote or encourage the attack, with no further requirement necessary. Indeed, by no means can it be ruled out, particularly in view of modern asymmetric warfare, that an attack against a civilian population may also be the doing of a private entity consisting of a group of persons pursuing the objective of attacking a civilian population; in other words, of a group not necessarily endowed with a well-developed structure that could be described as quasi-State.

That the attack must further be characterised as widespread or systematic does not, however, mean that the organisation that promotes or encourages it must be structured so as to assume the characteristics of a State. In the Chamber’s opinion, of prime import are, it must be repeated, the capacities for action, mutual agreement and coordination, which, in its view, are essential features to defining an organisation that, by very reason of the means and resources it possesses and its membership, allow an attack to be executed.

Moreover, it must be noted that the "general practice accepted as law", identified by the jurisprudence of the ad hoc tribunals, adverts to crimes against humanity committed by States and organisations that are not specifically defined as requiring quasi-State characteristics. Thus, the jurisprudence of the ad hoc tribunals has drawn specific attention to the milestone in the definition of a crime against humanity - initially conceived as an instrument to shield the individual from abuses by his or her national State - by recalling that "non-State actors are also possible perpetrators of crimes against humanity". The Rome Statute in this regard therefore echoes the rules of custom brought to the fore by the ad hoc tribunals.

Recalling that the method of interpretation that it must follow encompasses, inter alia, the purpose and object of the Statute, the Chamber also underscores that a restrictive conception of the organisation requiring that it possess quasi-State characteristics, would not further the Statute’s goal of prosecuting the most serious crimes. To so conceive the organisation would in effect exclude any entities that may have undertaken a widespread or systematic operation involving the multiple commission of acts under article 7(1) of the Statute pursuant to or in furtherance of their policy, on the sole ground that they are insufficiently hierarchical to be considered, in theory, as capable of pursuing or enforcing a policy whose aim is such an attack." [98]

ICC

The Mbarushimana Pre-Trial Chamber found that:

"absent the essential requirement that the crimes were committed pursuant to or in furtherance of an organisational policy to commit an attack directed against the civilian population, as set out in article 7(1) and (2)(a) of the Statute, the Majority of the Chamber, the Presiding Judge dissenting, deems it unnecessary to analyse the remaining elements of the crimes against humanity charged by the Prosecution."[30]

The Ruto, Kosgey and Sang Pre-Trial Chamber stated that:

"The Chamber also considers that an attack which is 'planned, directed organised', as opposed to 'spontaneous or [consisting of] isolated acts', satisfies the policy requirement. The implementation of a policy can consist of a deliberate failure to take action, which is consciously aimed at encouraging such attack."[31]

"The Chamber finds that there are substantial grounds to believe that, over the course of these meetings, several issues which were crucial for the implementation of the policy were dealt with, including: (i) the appointment of commanders and divisional commanders responsible for the operations on the field;(ii) the production of maps marking out the areas most densely inhabited by communities perceived to be or actually siding with the PNU; (iii) the identification of houses and business premises owned by PNU supporters with a view to target them; (iv) the purchase of weapons as well as of material to produce crude weapons and their storage before the attack; (v) the transportation of the perpetrators to and from the target locations; and (vi) the establishment of a stipendiary scheme and a rewarding mechanism to motivate the perpetrators to kill and displace the largest number of persons belonging to the target communities as well as to destroy their properties."[32]

"The Chamber also recalls that the determination of whether a given group qualifies as an organisation under the Statute must be made on a case-by-case basis. In making its determination, the Chamber may take into account a number of factors, inter alia: (i) whether the group is under a responsible command, or has an established hierarchy; (ii) whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population; (iii) whether the group exercises control over part of the territory of a State; (iv) whether the group has criminal activities against the civilian population as a primary purpose; (v) whether the group articulates, explicitly or implicitly, an intention to attack a civilian population; (vi) whether the group is part of a larger group, which fulfils some or all of the abovementioned criteria. Lastly, the Chamber stresses that, while the above factors may assist the Chamber in its determination, they do not constitute a rigid legal definition, and do not need to be exhaustively fulfilled."[33]

1.3. Widespread or systematic character of the attack

ICC

According to the Ruto, Kosgey and Sang Pre-Trial Chamber:

"On the basis of the material provided to the Chamber, there are substantial grounds to believe that the attack perpetrated was widespread. Viewed as a whole, the evidence shows that the attack was massive, frequent, carried out collectively with considerable seriousness and directed against a large number of civilian victims.

"This is demonstrated by the geographical scope of the attack, which covered four different locations in two districts (Uasin Gishu and Nandi) of the Rift Valley Province. Moreover, as recalled in paragraphs 167-172 above, the evidence indicates that in the locations included in the charges presented by the Prosecutor, the amount of burning and destruction of properties, injuries and murders is among the highest in the whole Kenyan territory. As a consequence, the Uasin Gishu and Nandi Districts registered a number of victims which is among the largest of the post-election violence in Kenya."[34]

"First, the Chamber reiterates that, in the preparatory phase of the attack as well as during its execution, coordinators were in charge of identifying houses belonging to PNU supporters to be attacked in the different target locations. Some of these coordinators were later deployed on the ground to assist the perpetrators and make sure that the selected properties wereattacked and burnt down and that PNU supporters were victimized. Second, the evidence shows that the perpetrators approached the target locations simultaneously, in large numbers, and from different directions, by vehicles or on foot, or both.262 Third, the perpetrators erected roadblocks around such locations with a view toward intercepting PNU supporters attempting to flee, with the aim of eventually killing them. Finally, the evidence indicates that, in the actual implementation of the attack, the physical perpetrators used petrol and other inflammable material to systematically burn down the properties belonging to PNU supporters."[35]

ICTY

The Tadić Appeals Chamber stated:

"The Appeals Chamber agrees that it may be inferred from the words 'directed against any civilian population' in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of wirdespread or systematic crimes directed against a civilian population and that the accused must have known that his acts fit into such a pattern. There is nothing in the Statute, however, which mandantes the imposition of a further condition that the acts in question must not be committed for purely personal reasons, except to the extent that this condition is a consequence or a re-statement of the other two conditions mentioned."[36]

The Blaškić Trial Judgement said that:

"there can be no doubt that inhumane acts constituting a crime against humanity must be part of a systematic or widespread attack against civilians."[37]

The Kordic and Cerkez Trial Chamber said that:

"[I]t is also generally accepted that the requirement that the occurrence of crimes be widespread or systematic is a disjunctive one"[38]

It continued by stressing that:

"this requirement is intended to ensure that it is crimes of a collective nature that are penalised whereby [...] an individual is 'victimised not because of his individual attribues but rather because of his membership of a targeted civilian population'."[39]

The Blaškić Trial Chamber said that:

"[f]or inhumane acts to be characterised as crimes against humanity, it is sufficient that one of the conditions be met. The fact still remains however, that in practice, these two criteria will often be difficult to separate since a widespread attack targeting a large number of victims generally relies on some form of planning or organisation."[40]

The Jelisić Trial Chamber recognised that:

"The existence of an acknowledged policy targeting a particular community, the establishment of parallel institutions meant to implement this policy, the involvement of high-level political or military authorities, the employment of considerable financial, military or other resources and the scale or the repeated, unchanging and continuous nature of the violence committed against a particular civilian population are among the factors which may demonstrate the widespread or systematic nature of an attack."[41]

"An 'attack' can be described as a course of conduct involving the commission of acts of violence."[42]

"directed against any civilian population", ensures that what is to be alleged will not be one particular act but, instead, a course of conduct."[43]

According to the Tadić Trial Chamber:

"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 constituting war crimes or crimes against national penal legislation, do not rise to the level of crimes against humanity."[44]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 41-42: 

"41. Third, the attack must be widespread or systematic. This requirement is in the alternative, rather than cumulative. The adjective “widespread” refers to the attack being conducted on a large scale as well as to the high number of victims it caused, whereas the adjective “systematic” emphasizes the organised character of the acts of violence and the improbability of their random occurrence. Thus, it is in the “patterns” of the crimes, in the sense of the deliberate, regular repetition of similar criminal conduct that one discerns their systematic character. Among the factors which may be taken into account in determining whether the attack meets either or both conditions (“widespread” or “systematic”) are the consequences of the attack on the civilian population targeted, the number of victims, the nature of the acts, the possible participation of political officials or authorities, or any identifiable pattern of crime in the sense defined above."

"42. Only the attack, not the individual acts of the accused, must be widespread or systematic. Moreover, the acts of the accused need only be a part of this attack, and all other requirements being met, a single act or relatively limited number of acts by that person would be characterised as a crime against humanity, unless those acts may be said to be isolated or random."

Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 963, 971: 

"963. Widespread or systematic. “Widespread” refers to the large-scale nature of the attack and the number of targeted persons. “Systematic” refers to the “organized nature of the acts of violence”. The existence of a plan or policy can be indicative of the systematic character of the attack but it is not a distinct legal element."

"971. The Trial Chamber finds that crimes were committed throughout the Indictment area over the course of many years, although with a concentration in the fall of 1991 in SAO Krajina and SAO SBWS, and April through September 1992 in Bosnia-Herzegovina. The victims of the crimes were, with few exceptions, non-Serbs. In SAO Krajina and SAO SBWS most victims were Croats and in the Indictment municipalities in Bosnia-Herzegovina most were Muslims. The evidence shows that the persons targeted were primarily members of the civilian population. Based on the foregoing, the Trial Chamber finds the requirements of “attack”, “widespread”, and “civilian population” have been met. Considering this, and that the legal requirement is that the attack was widespread or systematic, the Trial Chamber will not address whether the attack was systematic."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras.471-472, 477:

"471. Article 5 of the Statute gives the Tribunal jurisdiction over various offences “when committed in armed conflict, whether international or internal in character, and directed against any civilian population”. Unlike the exigency in Article 3 that the offences be closely related to the armed conflict, the requirement under Article 5 that the offence be committed in armed conflict is a purely jurisdictional prerequisite which is satisfied by proof that there was an armed conflict at the time and place relevant to the indictment but does not mandate any material nexus between the acts of the accused and the armed conflict."

"472. Tribunal jurisprudence has identified the following five general requirements for crimes against humanity under Article 5 of the Statute:

(i) There must be an attack; (ii) the attack must be directed against any civilian population; (iii) the attack must be widespread or systematic; (iv) the acts of the perpetrator must be part of the attack; and (v) the perpetrator1543 must know that there is a widespread or systematic attack directed against a civilian population and know that his acts constitute part of this attack."

"477. The attack must be widespread or, in the alternative, systematic. While the term “widespread” refers to the large-scale character of the attack and the number of persons targeted, the term “systematic” refers to the organised nature of the acts of violence and the improbability of their random occurrence. The assessment of what constitutes “widespread” or “systematic” is to be conducted on a case by case basis and may take into account the consequences of the attack upon 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. While the existence of a plan or policy may be used to demonstrate the existence of a widespread or systematic attack directed against a civilian population, it is not a legal element under Article 5 of the Statute."

ICTR

The Trial Chamber in the Semanza case stated:

"This Tribunal has consistently held that, in line with customary international law, the requirements of 'widespread' and 'systematic' should be read disjunctively in accordance with the English version of the Statute, rather than cumulatively in accordance with the French text."[45]

Prosecutor v. Augustin Ndindiliyimana, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-A, Judgement (AC), 11 February 2014, para. 260:

"260. The Appeals Chamber recalls that an enumerated crime under Article 3 of the Statute constitutes a crime against humanity if it is proven to have been committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic, racial, or religious grounds. The term “widespread” refers to the large scale nature of the attack and the number of victims, whereas the term “systematic” refers to “the organised nature of the acts of violence and the improbability of their random occurrence”. With respect to the mens rea, the perpetrator must have acted with knowledge of the broader context of the attack, and with knowledge that his acts (or omissions) formed part of the widespread or systematic attack against the civilian population."

1.3.1. The scale of the attack

ICTY

The Kunarac Trial Judgement noted:

"The widespread or systematic nature of the attack is essentially a relative notion. The Trial Chamber must first identify the population which is the object of the attack and, in light of the means, methods, resources and result of the attack upon this population, ascertain whether the attack was indeed widespread or systematic."[46]

"[The] consequences of the attack upon the targeted population, the number of victims, the nature of the acts, the possible participation of officials or authorities or any identifiable patterns of crimes, could be taken into account to determine whether the attack satisfies either or both requirements of a 'widespread' or 'systematic' attack vis-a-vis this civilian population."[47]

"Widespread or systematic. 'Widespread' refers to the large-scale nature of the attack and the number of targeted persons. 'Systematic' refers to the 'organized nature of the acts of violence'. The existence of a plan or policy can be indicative of the systematic character of the attack but it is not a distinct legal element."[48]

According to the Blaškić Trial Judgement:

"'widespread' means acts committed on a 'large scale' and 'directed at a multiplicity of victims'"[49]

According to the Tadić Trial Judgement:

"[widespreadness] refers to the number of victims"[50]

According to the Kunarac Trial Judgement:

"[widespread] connotes the large-scale nature of the attack and the number of victims"[51]

According to the Blaskic Trial judgment:

"A crime against humanity is made special by the methods employed in its perpetration (the widespread character) or by the context in which these methods must be framed (the systematic character) [...]."[52]

According to the Tadić Trial Chamber:

"The decision of Trial Chamber I of the International Tribunal in the Vukovar Hospital Decision is a recent recognition of the fact that a single act by a perpetrator can constitute a crime against humanity. In that decision the Trial Chamber stated:

"30. Crimes against humanity are to be distinguished from war crimes against individuals. In particular, they must be widespread or demonstrate a systematic character. However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as."[53]

According to the Kunarac Trial Chamber:

"Only the attack, not the individual acts of the accused, must be "widespread or systematic". A single act could therefore be regarded as a crime against humanity if it takes place in the relevant context:

"For example, 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. An isolated act, however, - i.e. an atrocity which did not occur within such a context - cannot."[54]

According to the Kordić Trial Judgement:

"a crime may be widespread or committed on a large scale by the 'cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude'"."[55]

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 193:

"193. It was incumbent on the Prosecution to make its case with clarity and present a picture which clearly demonstrated to the judges that the civilians were targeted en masse, when in fact they were not taking part in the fighting and presented no danger to the Serbian fighters. In the opinion of the majority, the Prosecutor failed to fulfil this obligation, simply limiting himself to general assertions which do not account for the specific evidence received by the judges. Under these circumstances, the majority is unable to dismiss the argument of the Defence - echoed by many of the witness testimonies ¹⁴⁸ - which explains that the civilians fled the combat zones to find shelter in the localities occupied by members of the same ethnic or religious group; that the buses that were provided in this context were not part of operations to forcibly transfer the population, but rather acts of humanitarian assistance to non-combatants fleeing the zones where they no longer felt safe."

"148. VS-1022, T(E) 9524 to 9525, 9528 to 9530 (closed session); P696 under seal, para. 16."

ICTR

"[i]ntended to be read as disjunctive elements, 'widespread' refers to the large scale nature of the attack and the number of targeted persons, while 'systematic' describes the organised nature of the acts of violence and the improbability of their random occurrence."[56]

"The Trial Chamber correctly articulated these required elements of crimes against humanity and, constraty to Nsenglyumva's contention, provided a reasoned opinion for its conclusion that the totality of the evidence established that these required elements were met. Nsenglyumva's argument that the Trial Chamber erred in 'taking the country of Rwanda as one crime scene' implied that, in order to qualify as crimes against humanity, the attacks in Gisenyi should have been shown to have been widespread or systematic independently of attacks taking place elsewhere in Rwanda. Such a suggestion is, however, erroneous, as the requirement is that the attacks be committed within a broader context, that is, as part of a widespread or schismatic attack. Nsengiyumva fails to show that the Trial Chamber erred in holding that this requirement was satified."[57]

The Trial Chamber in the Musema case said:

"The Chamber considers that 'widespread', as an element of crimes against humanity, is a massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against multiple victims, while 'systematic' constitutes organized action, following a regular pattern, on the basis of a common policy and involves substantial public or private resources. It is not essential for such policy to be adopted formally as a policy of a State. However, there must exist some form of preconceived plan or policy."[58]

1.3.2. The pattern of the attack

ICC

According to the Muthaura, Kenyatta and Ali Pre-Trial Chamber:

"[...] the precise identification of targets by the attackers is indicative of the planned and systematic nature of the violence."[59]

ICTY

According to the Kunarac Trial Judgement:

"[...] there has been some difference of approach in the jurisprudence of the ICTY and ICTR, and in that of other courts, as well as in the history of the drafting of international instruments, as to whether a policy element is required under existing customary law. The Trial Chamber does not have to decide that point because even if there is such a requirement, it has been fulfilled in this case."[60]

The Krnojelac Trial Chamber stated that it:

"[i]s satisfied that there is no requirement under customary international law that the acts of the accused person (or of those persons for whose acts he is criminally responsible) be connected to a policy or plan. Such a plan or policy may nevertheless be relevant to the requirement that the attack must be widespread or systematic and that the acts of the accused must be part of that attack."[61]

"[t]he Trial Chamber agrees that it is not appropriate to adopt a strict view in relation to the plan or policy requirement. In particular, it endorses the Kupreškić finding that 'although the concept of crimes against humanity necessarily implies a policy element, there is some doubt as to whether it is strictly a requirement, as such, for crimes against humanity.' In the Chamber's view, the existence of a plan or policy should better be regarded as indicative of the systematic character of offences charged as crimes against humanity."[62]

"There was nothing in the Statute or in customary international law at the time of the alleged acts which required proof of the existence of a plan or policy to commit these crimes."[63]

"The acts of the accused must not be isolated but form part of the attack. This means that the act, by its nature or consequence, must objectively be a part of the attack. The only question with regard to the general requirements of Article 5 of the Statute that gave raise to controversy in the jurisprudence of the Tribunal was the question whether the acts of the accused must also be connected to some kind of policy or plan. While it was held that the acts must be undertaken 'in furtherance of a policy', other Trial Chambers applied a more liberal view."[64]

According to the Kunarac Appeal Judgement:

"Proof that the attack was directed against a civilian population and that it was widespread or systematic are legal elements of the crime. But to prove these elements, it is not necessary to show that they were the result of the existence of a policy or plan. It may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic (especially the latter) to show that there was in fact a policy or plan, but it may be possible to prove these things by reference to other matters."[65]

"The Blaskic Trial Chamber clarified the meaning of the 'systematic' requirement. It held that this requirement refers to the following four elements: (1) the existence of a political objective, that is, to destroy, persecute or weaken a community; (2) 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; (3) the preparation and use of significant public or private resources, whether military or other; (4) the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan. Moreover, a crime may be widespread or committed on a large scale by the "cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude"."[66]

According to the Kunarac Trial Chamber:

"The adjective 'systematic' signifies the organised nature of the acts of violence and the improbability of their random occurrence. 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."[67]

According to the Kunarac Appeals Chamber:

"As stated by the Trial Chamber, the phrase 'widespread' refers to the large-scale nature of the attack and the number of victims, while the phrase 'systematic' refers to "the organised nature of the acts of violence and the improbability of their random occurrence". The Trial Chamber correctly noted 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'."[68]

According to the Taylor Trial Chamber:

"The pattern of mistreatment shows that crimes were not isolated or random, but rather formed part of a continuous campaign directed against civilians in communities that the RUF controlled. This pattern of civilian mistreatment remained a feature of the RUF regime throughout the conflict, and resulted in large numbers of civilian being mistreated, through abductions, forced labour and sexual enslavement, in various towns and villages throughout Kailahun District."[69]

ICTR

"[...] The concept of systematic' may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources. There is no requirement that this policy must be adopted formally as the policy of a state. There must however be some kind of preconceived plan or policy."[70]

1.3.3. The organized nature of the attack

ICC

The Muthaura, Kenyatta and Ali Pre-Trial Chamber said:

"The Chamber is of the view that several other subsidiary facts alleged by the Prosecutor also support the conclusion that the Mungiki attack in or around Nakuru and Naivasha was not a spontaneous occurrence of violence, but was organized and systematic. In particular, the Chamber finds that the following facts are of relevance to this conclusion: (i) the ferrying of attackers from other locations specifically for the purpose of the attack; (ii) the recruitment of new members int the Mungiki organization specifically for the purpose of participating in the attack; (iii) the provision of uniforms and weapons to the attackers; and (iv) the precise identification of the targets of the attack."[71]

ICTR

The Nizeyimana Trial Chamber stated:

"The Chamber is satisfied that these killings reflect a methodical and organised approach. The immediate proximity in time and space of the removal of the persons from the two residences with the ensuing executions demonstrates that these killings were intentional. Furthermore, there is no doubt that the assailants attacked the Matabaro and Nyirinkwaya residences knowing that this was part of a widespread and systematic attack on political and ethnic grounds."[72]

SCSL

The Taylor Trial Chamber said:

"Farming was organised. When labour was requested by RUF commanders, chiefdom and deputy chiefdom commanders were enlisted to bring civilians to farms to work without pay or benefit.1227 Witness Mustapha M. Mansaray explained that when Sam Bockarie and Issa Sesay required labour, they would order the G5 of the RUF who would communicate the order to chiefdom commanders, section commanders and town commanders in each town and village who would then order civilians to provide produce to the RUF. If civilians refused to comply, they faced beatings or detention or the RUF would appropriate their produce."[73]

In the Taylor Appeals Judgement, the Appeals Chamber held that:

"In this respect, Article 2 of the Statute, crimes against humanity, specifically defines crimes committed either on a large-scale or in an organised manner. The essence of crimes against humanity is a systematic policy of a certain scale and gravity directed against the civilian population, and in practice, these crimes are often committed by organised groups."[74]

1.4.A s part of: Nexus between the acts of the perpetrator and the attack

ICTY

According to the Kunarac Trial Judgement:

"The underlying offence does not need to constitute the attack but only to form a part of the attack or, as it was put by the Appeals Chamber, to "comprise[s] part of a pattern of widespread and systematic crimes directed against a civilian population." [...]."[75]

"There must exist a nexus between the acts of the accused and the attack, which consist of :

(i)the commission of an act which, by its nature or consequences, is objectively part of the attack; coupled with

"(ii)knowledge on the part of the accused that there is an attack on the civilian population and that his act is part of the attack."[76]

According to the Kunarac Appeals Judgement:

"The acts of the accused must be part of the 'attack' against the civilian population, but they need not be committed in the midst of that attack. A crime which is committed before or after the main attack against the civilian population or away from it could still, if sufficiently connected, be part of that attack. The crime must not, however, be an isolated act. A crime would 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 cannot reasonably be said to have been part of the attack."[77]

Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, para. 570:

"570. With respect to Beara’s argument concerning the nexus between the acts of extermination and the widespread and systematic attack on a civilian population, the Appeals Chamber recalls that the nexus requirement is fulfilled by an act which, by its nature or consequences, is objectively part of the attack, coupled with knowledge on the part of the accused that there is an attack on the civilian population and that his act is part thereof.¹⁶¹⁰ As noted above, the Trial Chamber found that it was evident to all that the column contained a large component of civilians.¹⁶¹¹ Furthermore, the men detained from the column were killed in one murder operation starting on 12 July 1995 that targeted all the able-bodied Bosnian Muslim men of Srebrenica, including those men separated from their families at Poto~ari and detained at common locations in Bratunac and Zvornik.¹⁶¹² Thus, the Appeals Chamber considers that the evidence cited by Beara¹⁶¹³ in no way establishes that a reasonable trier of fact could not have found that the killing of these men constituted part of the continuing widespread and systematic attack against the civilian population of the Srebrenica enclave.¹⁶¹⁴ The Appeals Chamber notes in this regard that Beara advances no argument specific to the second prong of the nexus requirement regarding his knowledge."

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 43-44: 

"43. The perpetrator’s acts must constitute part of the attack. Stated otherwise, the acts of the perpetrator must, by their nature or their consequences, form an objective part of the attack.  It is not necessary for the acts of an accused to have been committed at the height of the attack, and so long as there is even a minimally sufficient nexus, a crime committed before or after the principal attack upon the civilian population or located at some distance from it may still be considered part of it. However, as stated above, an isolated act, that is, an act so remote from the attack in question that the act could not reasonably considered part of it, may not be characterised as a crime against humanity."

"44. The existence of a policy or plan to support the commission of the crimes is not a requisite condition for crimes against humanity. However, it may be relevant in connection with taking evidence."

Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 966: 

"966. Acts of the perpetrator are part of the attack. Acts which cannot reasonably be understood to be objectively part of the attack fail this requirement."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras.471-472, 478:

"471. Article 5 of the Statute gives the Tribunal jurisdiction over various offences “when committed in armed conflict, whether international or internal in character, and directed against any civilian population”. Unlike the exigency in Article 3 that the offences be closely related to the armed conflict, the requirement under Article 5 that the offence be committed in armed conflict is a purely jurisdictional prerequisite which is satisfied by proof that there was an armed conflict at the time and place relevant to the indictment but does not mandate any material nexus between the acts of the accused and the armed conflict."

"472. Tribunal jurisprudence has identified the following five general requirements for crimes against humanity under Article 5 of the Statute:

(i) There must be an attack; (ii) the attack must be directed against any civilian population; (iii) the attack must be widespread or systematic; (iv) the acts of the perpetrator must be part of the attack; and (v) the perpetrator1543 must know that there is a widespread or systematic attack directed against a civilian population and know that his acts constitute part of this attack."

"478. The acts of the perpetrator must be part of the attack on the civilian population, although they need not be committed in the midst of that attack. An offence which is committed before or after the attack against the civilian population or away from it could still, if sufficiently connected, be part of that attack. Whether a given offence is sufficiently connected to the attack will depend on the factual circumstances of the case but, in any event, it should not be so far removed from the attack so as to constitute an isolated act void of any nexus to the attack."

 Prosecutor v. Augustin Ndindiliyimana, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-A, Judgement (AC), 11 February 2014, paras. 260, 262: 

"260. The Appeals Chamber recalls that an enumerated crime under Article 3 of the Statute constitutes a crime against humanity if it is proven to have been committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic, racial, or religious grounds. The term “widespread” refers to the large scale nature of the attack and the number of victims, whereas the term “systematic” refers to “the organised nature of the acts of violence and the improbability of their random occurrence”. With respect to the mens rea, the perpetrator must have acted with knowledge of the broader context of the attack, and with knowledge that his acts (or omissions) formed part of the widespread or systematic attack against the civilian population."

"262. In addition, while the Trial Chamber observed that the circumstances at the Prime Minister’s residence in the morning of 7 April 1994 were “chaotic” and that the attack against the Belgian peacekeepers appeared to have been spontaneous, unplanned, and disorganised, the Appeals Chamber is not convinced that this made it unreasonable for the Trial Chamber to conclude that the crimes formed part of a widespread or systematic attack against the civilian population. In this context, the Appeals Chamber recalls that the Trial Chamber was satisfied that the killing of the Prime Minister was a well organized operation involving Reconnaissance Battalion soldiers who could not have acted “outside the orders and knowledge” of Sagahutu as a commander within this battalion. The Appeals Chamber recalls further that, while the existence of a plan may support a finding that an attack was directed at a civilian population and that it was widespread or systematic, it is not a legal element of crimes against humanity. Hence, the Trial Chamber’s conclusion that the killings of the Prime Minister and the Belgian peacekeepers were not part of a pre-conceived plan for the purposes of conspiracy to commit genocide was not inconsistent with its finding that these killings were related to a broader attack against the civilian population."

1.4.1. The commission of an act which, by its nature or consequences, is objectively part of the attack; and

ICTY

According to the Krnojelac Trial Judgement:

"The acts of the accused need to be objectively part of the 'attack' against the civilian population, but need not be committed when that attack is at its height. These acts must not be isolated, but must form part of the attack. A crime committed several months after, or several kilometres away from, the main attack against the civilian population could still, if sufficiently connected, be part of that attack."[78]

According to the Kunara Appeals Chamber:

"[...] A crime would 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 cannot reasonably be said to have been part of the attack."[79]

According to the Naletilic Trial Chamber:

"The acts of the accused must not be isolated but form part of the attack. This means that the act, by its nature or consequence, must objectively be a part of the attack. The only question with regard to the general requirements of Article 5 of the Statute that gave raise to controversy in the jurisprudence of the Tribunal was the question whether the acts of the accused must also be connected to some kind of policy or plan. While it was held that the acts must be undertaken 'in furtherance of a policy', other Trial Chambers applied a more liberal view. The AppealsChamber has clarified that the existence of a policy or plan may serve as evidence in establishing that an attack was directed against a civilian population and that it was widespread or systematic. It does not however constitute a separate and additional legal element of the crime as it is neither enshrined in the Statute of the Tribunal nor a requirement under customary law."[80]

ICTR

"[a]lthough the act need not be committed at the same time and place as the attack or share all of the features of the attack, it must, by its characteristics, aims, nature, or consequence objectively form part of the [...] attack."[81]

1.4.2. Knowledge on the part of the accused that there is an attack against civilian population and that his act is part thereof

According the Kordic Trial Chamber:

"The requirement that an attack, to qualify as a crime against humanity, imports the requirement that the accused's acts must be related to a widespread or systematic attack on a civilian population is now settled in the International Tribunal's jurisprudence."[82]

Prosecutor v. Nikola Sainovic, Case No. IT-05-87-A, Judgement (AC), 23 January 2014, paras. 272-281:

"272. In determining whether the legal elements of the crimes against humanity charged in the Indictment were proved in relation to the events that took place in Prizren, Celina, Bela Crkva/Bellacërka, Mala Krusa/Krusha e Vogël, Suva Reka/Suhareka, Srbica/Skenderaj, Kosovska Mitrovica/Mitrovica, Vucitrn/Vushtrria, Gnjilane/Gjilan, Kotlina/Kotllina, Kacanik/Kaçanik town, and Dubrava/Lisnaja, the Trial Chamber found that either the principal perpetrators “or those at whose behest they were acting” were aware that they were acting as part of a larger attack against the Kosovo Albanian population.⁷⁷⁵ This finding was made in the context of determining whether a crime against humanity had been committed, not whether a particular accused bore criminal responsibility for such a crime.⁷⁷⁶"

"273. Pavkovic argues that the Trial Chamber failed to identify the principal perpetrators or the persons at whose behest they were acting who had the requisite knowledge in order for the offence to constitute a crime against humanity.⁷⁷⁷"

"274. The Prosecution responds that none of the errors alleged by Pavkovic has an impact on his conviction and that therefore his arguments should be summarily dismissed.⁷⁷⁸"

"275. In relation to the crimes committed in Prizren, Celina, Bela Crkva/Bellacërka, Mala Krusa/Krusha e Vogël, Suva Reka/Suhareka, Srbica/Skenderaj, Kosovska Mitrovica/Mitrovica, Vucitrn/Vushtrria, Gnjilane/Gjilan, Kotlina/Kotllina, Kaćanik/Kaçanik town, and Dubrava/Lisnaja, the Trial Chamber found that either the principal perpetrators “or those at whose behest they were acting” were aware that they were acting as part of a larger attack against the Kosovo Albanian population.⁷⁷⁹ The Trial Chamber identified those involved in the commission of the crimes with respect to each location, by reference to their membership in the MUP and/or VJ forces.⁷⁸⁰ The Appeals Chamber understands these references to encompass both the principal perpetrators and those on the ground who were commanding them during the operations,⁷⁸¹ i.e. individuals at a higher level in the chains of command of the VJ and MUP forces, who were used by the members of the JCE to carry out the crimes charged in the Indictment.⁷⁸² The Appeals Chamber finds such identification to be sufficient for the purpose of establishing that crimes against humanity had been committed in those locations.⁷⁸³ Given that the members of the respective forces on the ground were acting in a concerted manner, it sufficed that the Trial Chamber found beyond reasonable doubt that either the principal perpetrators or those on the ground at whose behest they were acting, i.e. who were commanding them during the operations, were aware that their acts comprised part of a larger attack against the Kosovo Albanian population in the region. Pavković’s arguments in this regard are therefore dismissed.⁷⁸⁴"

"276. The Trial Chamber found Pavkovic responsible for committing, through participation in a JCE, crimes against humanity perpetrated in various locations throughout Kosovo.⁷⁸⁵ In defining the relationship between the accused and other persons who were involved in the commission of the crimes, the Trial Chamber referred to the “intermediary perpetrator” as follows: [W]here there is a person involved in the crime who is between the physical perpetrator and the accused in the chain of command, he has been termed an “intermediary perpetrator”, in order to distinguish with precision the different relationships between all the relevant players in respect of their individual criminal responsibility.⁷⁸⁶"

"277. When setting out the general requirements of crimes against humanity under Article 5 of the Statute, the Trial Chamber held that “if the non-accused physical perpetrator is not aware of the context of his crimes, but his superior or an intermediary perpetrator is, these crimes would still constitute crimes against humanity, provided the other general requirements of crimes against humanity are satisfied as well.”⁷⁸⁷ It further held that “for an underlying offence to be categorised as a crime against humanity on the basis of an individual’s knowledge of the context in which it occurs, the relationship between the individual and the commission of an offence must be sufficiently direct or proximate.”⁷⁸⁸ Consequently, the Trial Chamber concluded that an underlying offence may constitute a crime against humanity even if the principal perpetrator lacks knowledge that his conduct is part of a widespread or systematic attack against the civilian population, provided that the “intermediary perpetrator” who is “the planner, orderer or instigator of that conduct, or member of the joint criminal enterprise knows that it forms part of the attack.”⁷⁸⁹ The Trial Chamber emphasised that this conclusion was only relevant to the question of whether a crime against humanity had been committed and that it should not be confused with the question of whether the accused bore criminal responsibility for such a crime.⁷⁹⁰"

"278. Pavkovic argues that the Trial Chamber erred in law: (i) in finding that an “intermediary perpetrator” could satisfy the mens rea chapeau requirement of Article 5 of the Statute, even where the principal perpetrator and the accused lacked knowledge that the act comprised part of an attack against the civilian population; and (ii) by including within the category of intermediary perpetrators any JCE member with knowledge that the crime comprises part of an attack against the civilian population.⁷⁹¹"

"279. In response, the Prosecution argues that none of the alleged errors has an impact on Pavkovic’s convictions and therefore his arguments should be summarily dismissed.⁷⁹²"

"280. At the outset, the Appeals Chamber notes that to the extent that Pavkovic interprets the Trial Chamber’s finding as suggesting that the mens rea of the “intermediary perpetrator” could substitute that of the accused,⁷⁹³ his argument is without merit. The Trial Chamber found that a principal or intermediary perpetrator could satisfy the mens rea chapeau requirement of Article 5 of the Statute in the context of determining whether a crime against humanity had been committed at all; not in the context of determining whether the accused bore individual criminal responsibility for the crime.⁷⁹⁴ The Trial Chamber’s definition of the “intermediary perpetrator” was merely designed to describe the complex interaction between different actors involved in the commission of a crime."

"281. As to Pavkovic’s argument that the Trial Chamber erred in law in finding that an “intermediary perpetrator” could satisfy the mens rea chapeau requirement of Article 5 of the Statute, the Appeals Chamber observes that Pavkovic has failed to point to any crime for which the Trial Chamber found that only an “intermediary perpetrator”, as opposed to the accused, fulfilled the mens rea chapeau requirement of Article 5. The Appeals Chamber recalls in this context the Trial Chamber’s finding that Pavkovic was a member of a JCE, the common purpose of which was to be achieved through a widespread and systematic campaign of violence and terror against the Kosovo Albanian civilian population.⁷⁹⁵ The Trial Chamber thus found that, as a JCE member, Pavkovic had the requisite mens rea for crimes against humanity at the time of their commission. The Appeals Chamber therefore considers that Pavkovic has not shown how his challenges to the Trial Chamber’s finding that an “intermediary perpetrator” could satisfy the mens rea chapeau requirement of Article 5 of the Statute would invalidate his conviction. Accordingly, Pavkovic’s submissions in this regard are dismissed."