2. [Mental element, specific] The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population

2.1. The perpetrator knew that the conduct was part of a widespread or systematic attack against a civilian population; OR

2.1.1. The perpetrator had knowledge of the attack

2.1.2. The perpetrator knew his acts were part of the attack

2.2. The perpetrator intended the conduct to be part of a widespread or systematic attack against a civilian population

2.2.1. Crime must be committed ''in an armed conflict'' (only for the ICTY)

2.3. Exculpatory evidence

2. [Mental element, specific] The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 45:

"45. Finally, the perpetrator of the crime must have knowledge of the attack on the civilian population and of the fact that his act is part of that attack. However, it is not necessary that the perpetrator be informed of the details of the attack, or that he approve its purpose or the goal behind it. Moreover, it is irrelevant whether the perpetrator participated in the attack for purely personal reasons, as such reasons are relevant only during consideration of the sentence to be handed down, as aggravating or extenuating circumstances. Lastly, discriminatory intent is not required for crimes against humanity, with the exception of the offences for which it is expressly stipulated, namely, the types of persecution contemplated in Article 5(h) of the Statute."

 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."

2.1. The perpetrator knew that the conduct was part of a widespread or systematic attack against a civilian population; OR

2.1.1. The perpetrator had knowledge of the attack

According to the Tadić Appeals Chamber:

"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 widespread or systematic crimes directed against a civilian population and that the accused must have known that his acts fit into such a pattern."[1]

According to the Kupreškić Trial Chamber:

"The determination of the elements comprising the mens rea of crimes against humanity has proved particularly difficult and controversial. Nevertheless, the requisite mens rea for crimes against humanity appears to be comprised by (1) the intent to commit the underlying offence, combined with (2) knowledge of the broader context in which that offence occurs."[2]

According to the Tadić Trial Chamber:

"Thus if the perpetrator has knowledge, either actual or constructive, that these acts were occurring on a widespread or systematic basis and does not commit his act for purely personal motives completely unrelated to the attack on the civilian population, that is sufficient to hold him liable for crimes against humanity. Therefore the perpetrator must know that there is an attack on the civilian population, know that his act fits in with the attack and the act must not be taken for purely personal reasons unrelated to the armed conflict."[3]

"In addition to [1] the intent to commit the underlying offence, the perpetrator needs to [2] know that there is an attack on the civilian population and [3] that his acts comprise part of the attack, or at least to take the risk that his act is part of the attack."[4]

The Krnojelac Trial Chamber held that:

"In addition to the intent to commit the underlying offence, the accused must know that there is an attack directed against the civilian population and he must know that his acts are part of that attack, or at least take the risk that they are part thereof. This, however, does not entail knowledge of the details of the attack. It is sufficient that, through his acts or the function which he willingly accepted, he knowingly took the risk of participating in the implementation of that attack."[5]

According to the Blaškić Trial Judgement:

"The accused need not have sought all the elements of the context in which his acts were perpetrated; it suffices that, through the functions he willingly accepted, he knowingly took the risk of participating in the implementation of that context."[6]

According to the Kunarac Appeal Chamber:

"Concerning the required mens rea for crimes against humanity, the Trial Chamber correctly held that the accused must have had the intent to commit the underlying offence or offences with which he is charged, and that he must have known 'that there is an attack on the civilian population and that his acts comprise part of that attack, or at least [that he took] the risk that his acts were part of the attack.' This requirement, as pointed out by the Trial Chamber, does not entail knowledge of the details of the attack.

"For criminal liability pursuant to Article 5 of the Statute, 'the motives of the accused for taking part in the attack are irrelevant and a crime against humanity may be committed for purely personal reasons.' Furthermore, the accused need not share the purpose or goal behind the attack. It is also irrelevant whether the accused intended his acts to be directed against the targeted population or merely against his victim. It is the attack, not the acts of the accused, which must be directed against the target population and the accused need only know that his acts are part thereof. At most, evidence that he committed the acts for purely personal reasons could be indicative of a rebuttable assumption that he was not aware that his acts were part of that attack."[7]

According to the Kunarac Appeals Chamber:

"The Prosecution does not need to prove that the accused chose his victims for their civilian status. [...] The Prosecution must show that the perpetrator could not reasonably have believed that the victim was a member of the armed forces."[8]

According to the Kunarac Trial Chamber:

"[...] the Statute protects civilians as opposed to members of the armed forces and other legitimate combatants, but the Prosecution does not need to prove that the accused chose his victims for their civilian status. However, and as a minimum, the perpetrator must have known or considered the possibility that the victim of his crime was a civilian. The Trial Chamber stresses that, in case of doubt as to whether a person is a civilian, that person shall be considered to be civilian. The Prosecution must show that the perpetrator could not reasonably have believed that the victim was a member of the armed forces."[9]

According to the Kunarac Appeal Judgement:

"[a]t most, evidence that [the accused] committed the acts for purely personal reasons could be indicative of a rebuttable assumption that he was not aware that his acts were part of that attack."[10]

"The Chamber is satisfied that the accused knew of the attack. In his function as commander of the KB, [the accused] was moving between Sovići, Doljani and Mostar and was present at all those locations at various times. There is no reasonable possibility that he could not have known about the situation of the Muslim civilian population in those areas. Moreover, the Chamber is satisfied that [the accused] wilfully pursued the goals of the attack against the Muslim civilian population in the area and thus, also knew that his acts fit into the pattern of the attack."[11]

ICTR

According to the Kayishema Trial Chamber:

"The perpetrator must knowingly commit crimes against humanity in the sense that he must understand the overall context of his act. The Defence for Ruzindana submitted that to be guilty of crimes against humanity the perpetrator must know that there is an attack on a civilian population and that his act is part of the attack. This issue has been addressed by the ICTY where it was stated that the accused must have acted with knowledge of the broader context of the attack; a view which conforms to the wording of the Statute of the International Criminal Court (ICC) Article 7.

"[...] Part of what transforms an individual's act(s) into a crime against humanity is the inclusion of the act within a greater dimension of criminal conduct; therefore an accused should be aware of this greater dimension in order to be culpable thereof. Accordingly, actual or constructive knowledge of the broader context of the attack, meaning that the accused must know that his act(s) is part of a widespread or systematic attack on a civilian population and pursuant to some kind of policy or plan, is necessary to satisfy the requisite mens rea element of the accused. This requirement further compliments the exclusion from crimes against humanity of isolated acts carried out for purely personal reasons."[12]

The Nizeyimana Trial Chamber stated:

"The Chamber recalls its findings that the killings occurred based on Nizeyimana's instructions and were committed with his express approval. His position as a high ranking officer within the ESO's hierarchy and his experience in the S2/S3 office charged with intelligence and training / operations are essential to understanding his role. These factors, along with his intimate knowledge of the neighborhood demonstrate that he held a supervisory role in this operation and was present to ensure its satisfactory completion. In this regard, his presence, in addition to the instructions he issued, amounted to significant and substantial tacit approval to the removal and subsequent murder operation."[13]

2.1.2. The perpetrator knew his acts were part of the attack

ICTR

In the Nzabonimama case theTrial Chamber stated:

"The Chamber has found that in May 1994, Nzabonimana distributed weapons at the Tambwe commune office, where he said the weapons were for protection and to ensure the security of the country from the enemy, meaning the Tutsis. It has not been proven, however, that the weapons distributed were used to kill Tutsis, as alleged by the Prosecution.

[...]

"[T]he Chamber finds that the Prosecution has not proven beyond a reasonable doubt that Nzabonimana is responsible for extermination as a crime against humanity with regard to this allegation."[14]

In the Nzabonimana case the Trial Chamber stated:

"[...] there was insufficient evidence to establish that Nzabonimana's words at Butare centre substantially contributed to any subsequent crime. For the same reasons, the Chamber finds that the Prosecution has not proven beyond a reasonable doubt that Nzabonimana is responsible for extermination as a crime against humanity with regard to this allegation."[15]

2.2. The perpetrator intended the conduct to be part of a widespread or systematic attack against a civilian population

2.3. Exculpatory evidence