Article

Article 7(1)(b)
[47] (b) Extermination;

General Remarks
The crime against humanity of extermination essentially consists of the large scale killing of members of a civilian
population. It has been listed in all instruments concerning crimes against humanity since the Second World War [Hall,
2008, p.190].
Analysis
i. Definition
The crime against humanity of extermination is listed in Article 7(1)(b) of the Rome Statute. While Article 7(1)(b) does
not elaborate on the definition of extermination, Article 7(2)(b) clarifies that it includes the inteal infliction of conditions of
life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a
population. The Elements of Crimes provide further:
1. The perpetrator killed one or more persons, including by inflicting conditions of life calculated to bring about the
destruction of part of a population.
2. The conduct constituted, or took place as part of,10 a mass killing of members of a civilian population.
3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
4. 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.
5. The conduct could be committed by different methods of killing, either directly or indirectly.
6. The infliction of such conditions could include the deprivation of access to food and medicine.
7. The term “as part of” would include the initial conduct in a mass killing.
ii. Distinction between extermination and murder (both as crimes against humanity) and genocide
The only element that distinguishes murder as a crime against humanity from extermination as a crime against
humanity is the requirement for extermination that the killings occur on a mass scale [Prosecutor v Ntakirutimana and
Ntakirutimana, ICTR A. Ch., 13 December 2004, para. 542]. Murder as a crime against humanity does not contain a
materially distinct element from extermination as a crime against humanity; each involves killing within the context of a
widespread or systematic attack against the civilian population. Consequently, a conviction for murder as a crime
against humanity and a conviction for extermination as a crime against humanity, based on the same set of facts, are
impermissibly cumulative [Prosecutor v Ntakirutimana and Ntakirutimana, ICTR A. Ch., 13 December 2004, para.
542; Prosecutor v Lukić and Lukić, ICTY T. Ch. III, 20 June 2009, para. 1045]. While extermination differs from murder
because extermination concerns a large number of victims, extermination differs from genocide because extermination
covers situations in which a group of individuals who do not share any common characteristics are killed (whereas
genocide requires a demonstration of the specific intent to destroy a defined group sharing common characteristics)
[Hall, 2008, p.190].
iii. Requirements
In addition to the contextual elements required for all crimes against humanity set out in elements 3 and 4 of the above-
listed Elements of Crimes, the following needs to be proven:
a. Material elements
Elements 1 and 2 of the above-listed Elements of Crimes constitute the material elements of extermination.
The Elements of Crimes indicate that the killing may be carried out either directly or indirectly, which would include the
infliction of conditions of life calculated to bring about the destruction of part of a population as set out above. The only
ICC decision to date to address the crime of extermination in any detail is the first arrest warrant decision in the Al
Bashir case [Prosecutor v Al Bashir, ICC PT. Ch. I, Decision on the Prosecution's Application for a Warrant of Arrest
against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009]. Pre-Trial Chamber I found that there were
reasonable grounds to believe that the crime of extermination was committed through acts such as the killing of over a
thousand civilians in connection with an attack on a town [Prosecutor v Al Bashir, ICC PT. Ch. I, Decision on the
Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March
2009, para. 97]. The Prosecution also alleged that the systematic destruction of the means of survival of civilian
populations in Darfur constituted a form of extermination. However, Pre-Trial Chamber I did not explicitly refer to this
means of carrying out extermination when finding reasonable grounds to believe that the crime of extermination was
committed [Prosecutor v Al Bashir, ICC PT. Ch. I, Decision on the Prosecution's Application for a Warrant of Arrest
against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009, para. 91, 95-97].
In the second arrest warrant decision in the Al Bashir case, Pre-Trial Chamber I noted in passing that extermination
can be committed through the “infliction of certain conditions of life upon one or more persons” where those conditions
are “calculated to bring about the physical destruction of that group, in whole or in part” [Prosecutor v Al Bashir, ICC PT.
Ch. I, Second Decision on the Prosecution’s Application for a Warrant of Arrest for Omar Hassan Ahmad Al Bashir,
ICC-02/05-01/09-94, 12 July 2010, para. 33]. Pre-Trial Chamber I concluded (in relation to the genocide charge) that
that “one of the reasonable conclusions that can be drawn is that the acts of contamination of water pumps and forcible
transfer coupled by resettlement by member of other tribes, were committed in furtherance of the genocidal policy, and
that the conditions of life inflicted on the Fur, Masalit and Zaghawa groups were calculated to bring about the physical
destruction of a part of those ethnic groups”. [Prosecutor v Al Bashir, ICC PT. Ch. I, Second Decision on the
Prosecution’s Application for a Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-94, 12 July 2010,
para. 38]. It has been recognised at the ICTY and ICTR that the material elements of extermination includes “subjecting
a widespread number of people or systematically subjecting a number of people to conditions of living that would
inevitably lead to death” [Prosecutor v Stakić, ICTY A. Ch., 22 March 2006, para.259]; Prosecutor v Ntakirutimana and
Ntakirutimana, ICTR A. Ch., 13 December 2004, para. 522].
2. The conduct constituted, or took place as part of, a mass killing of members of a civilian population.
In the first arrest warrant decision in the Al Bashir case, Pre-Trial Chamber I repeated that the killings had to occur as
part of a mass killing of a civilian population and noted that this mirrors the jurisprudence of the ICTY and ICTR on
extermination [Prosecutor v Al Bashir, ICC PT. Ch. I, Decision on the Prosecution's Application for a Warrant of Arrest
against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, ICC-02/05-01/09-3, 4 March 2009], para. 96). The
Elements of Crimes clarify that the term “as part of” would include the initial conduct in a mass killing. Thus already the
first killings in a mass killing meet this requirement even though the requirement of a massive killing may not be
satisfied until subsequent killings are perpetrated [Schabas, 2010, p.159].
At the ICTY and ICTR, the jurisprudence concerning the material elements of extermination has focused on the
massiveness requirement, which “distinguishes the crime of extermination from the crime of murder”. [Prosecutor v
Lukić and Lukić, ICTY A. Ch., 4 December 2012, para 536; Prosecutor v Ntakirutimana and Ntakirutimana, ICTR A. Ch.,
13 December 2004, para. 542]. It is well established that the massiveness requirement does not suggest a strict
numerical approach with a minimum number of victims [Prosecutor v Lukić and Lukić, ICTY A. Ch., 4 December 2012,
para. 537]. While extermination as a crime against humanity has been found in relation to the killing of thousands of
victims, it has also been found in relation to fewer killings, including incidents of around 60 victims and less at the ICTY,
ICTR, and SCSL [see Prosecutor v Lukić and Lukić, ICTY A. Ch., 4 December 2012, para. 537]. The assessment of the
massiveness requirement is made on a case-by-case basis, taking into account the circumstances in which the killings
occurred. Relevant factors include, inter alia: the time and place of the killings; the selection of the victims and the
manner in which they were targeted; and whether the killings were aimed at the collective group rather than victims in
their individual capacity [Prosecutor v Lukić and Lukić, ICTY A. Ch., 4 December 2012, para. 538]. Where mass killings
are committed on an extremely large scale, far surpassing the threshold for extermination, this can be taken into
account as an aggravating factor in sentencing [Prosecutor v Ndindabahizi, ICTR A. Ch., 16 January 2007.para. 135].
It has been recognised that several killing incidents can be accumulated together to constitute extermination
[Prosecutor v Popović et al., ICTY T. Ch. II, 10 June 2010, para. 805 (holding that “in light of the temporal and
geographical proximity of the killings, the similarities between them and the organized and coordinated manner in which
the Bosnian Serb Forces conducted them, […] they formed part of a single operation.)”; Prosecutor v Tolimir, ICTY A.
Ch., 8 April 2015, para. 147)]. Killings that are not part of the same attack on a civilian population, and instead are
isolated acts, should not be accumulated together [Prosecutor v Tolimir, ICTY A. Ch., 8 April 2015, para. 150].
a. Mental elements
In the absence of a specific provision defining the mental requirements for extermination, Article 30 of the
Rome Statute applies. Accordingly, the material elements must be committed with intent and knowledge, as
defined in Article 30.
At the ICTY and ICTR it has been held that the mental elements of extermination require the intention to kill
on a large scale or to systematically subject a large number of people to conditions of living that would lead to
their deaths and that this intent reflects the material elements of the crime. The Appeals Chambers of the ICTY
and the ICTR have noted that there is no support in customary international law for the requirement of intent to
kill a certain threshold number of victims. This is consistent with the fact that there is no numerical threshold
established with respect to the material elements of extermination. [Prosecutor v Stakić, ICTY A. Ch., 22 March
2006, para. 260; Prosecutor v Ntakirutimana and Ntakirutimana, ICTR A. Ch., 13 December 2004, paras. 516,
522]. As noted above, in the Al Bashir case, Pre-Trial Chamber I noted in passing that where extermination is
committed through the “infliction of certain conditions of life upon one or more persons”, it is necessary to show
that those conditions were “calculated to bring about the physical destruction of that group, in whole or in part”.
[Prosecutor v Al Bashir, ICC PT. Ch. I, Second Decision on the Prosecution’s Application for a Warrant of
Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-94, 12 July 2010, para. 33].
Cross-references:
1. Articles 6; 7(1)(a); 7(2); 8(2)(a)(i); 8(2)(b)(xxv); 8(2)(c)(i);Rome Statute 30
2. Elements of Crimes
3. Elements Digest
4. Means of Proof Digest
Doctrine
1. Christopher K. Hall, "Article 7: Crimes Against Humanity, in Otto Trifterer (Ed.), Commentary on the
Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, C.H. Beck/Hart/Nomos,
München/Oxford/Baden-Baden, 2008, pp. 190-191, 237-243.
2. William Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University
Press, Oxford 2010, pp. 158-160.
Art. 7(1)(b) Crime against humanity of extermination
 1. The conduct was committed as part of a widespread or systematic attack against any civilian population.
 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
 3. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or
was conduct that could itself effect such destruction
 4. [Mental element for element 3] [Circumstance of context] The perpetrator was aware that the conduct took
place in the context of a manifest pattern of similar conduct directed against that group or was conduct that
could itself effect such destruction
 5. The perpetrator killed one or more persons, including by inflicting conditions of life calculated to bring about
the destruction of part of a population.
 6. The conduct constituted, or took place as part of, a mass killing of members of a civilian population.
 7.a. [Mental element for Element 5] [Conduct of killing]: The perpetrator meant to engage in killing of one or
more persons
 7.b.i. [Mental element for Element 5] [Consequence of killing] : The perpetrator meant to cause death; OR
 7.b.ii. [Mental element for Element 5] [Consequence of killing]: The perpetrator was aware that death sould
occur in the ordinary course of events
 8.c. [Mental element for Element 6] [Circumstance of mass killing of a civilian population]: The perpetrator was
aware that his/her conduct constituted, or took place as part of a mass killing of members of a civilian
population
Element:
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]
Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 35:
“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."
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 JCE 1716 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 detention 1724 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”,2226this 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."
"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."
"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 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]
"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]
"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]
"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]
"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]
"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."
2016 – Volume I of IV (TC), 24 March 2016, paras.471-472, 477:
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."
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:
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]
"[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]
"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
"[...] 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]
"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
"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.1612Thus, 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."
"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."
2016 – Volume I of IV (TC), 24 March 2016, paras.471-472, 478:
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."
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."
A, Judgement (AC), 11 February 2014, paras. 260, 262:
"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.”788Consequently, 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."
Element:
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
"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."
A, Judgement (AC), 11 February 2014, para. 260 :
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]
"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]
"[...] 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
Element:
ICTY
According to the Vasiljević Trial Chamber:
"[...] criminal responsibility for 'extermination' only attaches to those individuals responsible for a large number of
deaths, even if their part therein was remote or indirect. Responsibility for one or for a limited number of such killings
is insufficient."[1]
Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, para. 147:
''147. The actus reus of the crime of extermination may be established through an aggregation of separate
incidents.It is not required that the killings be on a vast scale in a concentrated location over a short period of
time. The ICTR Appeals Chamber has, on the other hand, stated that “[a]s a general matter, the element of killing on
a large scale cannot be satisfied by a collective consideration of distinct events committed in different locations, in
different circumstances, by different perpetrators, and over an extended period of time, i.e. a period of two months”.''
"483. The actus reus of extermination consists of “the act of killing on a large scale”. This involves “any act, omission
or combination thereof which contributes directly or indirectly to the killing of a large number of individuals”. In
determining what is sufficient for a finding that a large number of individuals were killed, the Tribunal’s jurisprudence
has consistently held that there is no minimum numerical threshold of victims that must be reached. Furthermore, it is
not necessary that the victims of extermination be precisely identified by name, and it suffices to establish that killings
occurred on a mass scale. An assessment of whether the element of “massiveness” has been met must be made on
a case by case basis, taking into account all the relevant factors. Relevant factors include, for example, the time and
place of the killings, the selection of the victims and the manner in which they were targeted, and whether the killings
were aimed at the collective group rather than victims in their individual capacity. There is no requirement to establish
that there was a “vast scheme of collective murder”."
"484. Trial Chambers have previously found that it was possible to establish extermination “on an accumulation of
separate and unrelated incidents, meaning on an aggregated basis”. The Appeals Chamber recently stated in Tolimir
that the actus reus of extermination “may be established through an aggregation of separate incidents”. The Chamber
notes that, in this formulation, the possibility of accumulating “unrelated” incidents was removed. The Tolimir Appeals
Chamber went on to state that for the purpose of aggregating separate incidents, it is not required that the killing be
on a vast scale in a concentrated location over a short period of time. However, even with respect to separate incidents,
the Appeals Chamber made it clear that killing incidents which did not form part of the same murder operation could
not be accumulated for the purposes of extermination. In assessing whether specific killing incidents formed part of
the same murder operation, the Tolimir Appeals Chamber also recalled that the ICTR Appeals Chamber stated that
“as a general matter, the element of killing on a large scale cannot be satisfied by a collective consideration of distinct
events committed in different prefectures, in different circumstances, by different perpetrators, and over an extended
period of time”."
ICTR
According to the Gatete Trial Chamber:
"[t]he crime of extermination requires proof that an accused participated in a widespread or systematic killing or in
subjecting a widespread number of people or systematically subjecting a number of people to conditions of living
that would inevitably lead to death."[2]
"[...] Extermination includes not only the implementation of mass killing or the creation of conditions of life that
leads to mass killing, but also the planning thereof. In this event, the Prosecutor must prove a nexus between the
planning and the actual killing.
"An actor may be guilty of extermination if he kills, or creates the conditions of life that kills, a single person
providing the actor is aware that his act(s) or omission(s) forms part of a mass killing event.86 For a single killing
to form part of extermination, the killing must actually form part of a mass killing event. An 'event' exists when the
(mass) killings have close proximity in time and place."[3]
According to the Rutaganda Trial Chamber:
"By its very nature, extermination is a crime which is directed against a group of individuals. Extermination differs
from murder in that it requires an element of mass destruction which is not a pre-requisite for murder."[4]
Element:
6. The conduct constituted, or took place as part of, a mass killing of members of a civilian population.
2016 – Volume I of IV (TC), 24 March 2016, paras. 483-484, 5613-5614:
"483. The actus reus of extermination consists of “the act of killing on a large scale”. This involves “any act, omission or
combination thereof which contributes directly or indirectly to the killing of a large number of individuals”. In determining
what is sufficient for a finding that a large number of individuals were killed, the Tribunal’s jurisprudence has consistently
held that there is no minimum numerical threshold of victims that must be reached. Furthermore, it is not necessary that
the victims of extermination be precisely identified by name, and it suffices to establish that killings occurred on a mass
scale. An assessment of whether the element of “massiveness” has been met must be made on a case by case basis,
taking into account all the relevant factors. Relevant factors include, for example, the time and place of the killings, the
selection of the victims and the manner in which they were targeted, and whether the killings were aimed at the collective
group rather than victims in their individual capacity. There is no requirement to establish that there was a “vast scheme
of collective murder”."
"484. Trial Chambers have previously found that it was possible to establish extermination “on an accumulation of
separate and unrelated incidents, meaning on an aggregated basis”. The Appeals Chamber recently stated in Tolimir that
the actus reus of extermination “may be established through an aggregation of separate incidents”. The Chamber notes
that, in this formulation, the possibility of accumulating “unrelated” incidents was removed. The Tolimir Appeals Chamber
went on to state that for the purpose of aggregating separate incidents, it is not required that the killing be on a vast scale
in a concentrated location over a short period of time. However, even with respect to separate incidents, the Appeals
Chamber made it clear that killing incidents which did not form part of the same murder operation could not be
accumulated for the purposes of extermination. In assessing whether specific killing incidents formed part of the same
murder operation, the Tolimir Appeals Chamber also recalled that the ICTR Appeals Chamber stated that “as a general
matter, the element of killing on a large scale cannot be satisfied by a collective consideration of distinct events committed
in different prefectures, in different circumstances, by different perpetrators, and over an extended period of time”."
"5613. Earlier in this Judgement, the Chamber recalled that there is no minimum threshold of victims for the purposes of
extermination; it still has to be satisfied that the killings occurred on a mass scale and needs to conduct a case-by-case
assessment in that regard."
"5614. Further, as previously noted, extermination may be established based on the accumulation of separate incidents.
However, it has been found that “as a general matter, the element of killing on a large scale cannot be satisfied by a
collective consideration of distinct events committed in different prefectures, in different circumstances, by different
perpetrators, and over an extended period of time”."
6.1.A mass killing occurred.
ICTY
As noted by ICTY Trial Chamber in The Prosecutor v. Radovan Karadžić:
"483. The actus reus of extermination consists of "the act of killing on a large scale". This involves "any act, omission or
combination thereof which contributes directly or indirectly to the killing of a large number of individuals". In determining
what is sufficient for a finding that a large number of individuals were killed, the Tribunal’s jurisprudence has
consistently held that there is no minimum numerical threshold of victims that must be reached. Furthermore, it is not
necessary that the victims of extermination be precisely identified by name, and it suffices to establish that killings
occurred on a mass scale. An assessment of whether the element of "massiveness" has been met must be made on a
case by case basis, taking into account all the relevant factors. Relevant factors include, for example, the time and
place of the killings, the selection of the victims and the manner in which they were targeted, and whether the killings
were aimed at the collective group rather than victims in their individual capacity. There is no requirement to establish
that there was a "vast scheme of collective murder".
484. Trial Chambers have previously found that it was possible to establish extermination "on an accumulation of
separate and unrelated incidents, meaning on an aggregated basis". The Appeals Chamber recently stated
in Tolimir that the actus reus of extermination "may be established through an aggregation of separate incidents". The
Chamber notes that, in this formulation, the possibility of accumulating "unrelated" incidents was removed.
The Tolimir Appeals Chamber went on to state that for the purpose of aggregating separate incidents, it is not required
that the killing be on a vast scale in a concentrated location over a short period of time. However, even with respect to
separate incidents, the Appeals Chamber made it clear that killing incidents which did not form part of the same murder
operation could not be accumulated for the purposes of extermination. In assessing whether specific killing incidents
formed part of the same murder operation, the Tolimir Appeals Chamber also recalled that the ICTR Appeals Chamber
stated that "as a general matter, the element of killing on a large scale cannot be satisfied by a collective consideration
of distinct events committed in different prefectures, in different circumstances, by different perpetrators, and over an
extended period of time"." [1]
According to the Stakić Trial Chamber:
"Extermination must form part of a widespread or systematic attack against a civilian population. An act amounting to
extermination, as explained by the Trial Chamber in Prosecutor v. Vasiljević, 'must be collective in nature rather than
directed towards singled out individuals. However, in contrast to genocide, the offender need not have intended to
destroy the group or part of the group to which the victims belong,' and it is not required that the victims share national,
ethnical, racial or religious characteristics. In this context it should be emphasised that the crime of extermination may
apply to situations where some members of a group are killed but others spared. It suffices that the victims be defined
by political affiliation, physical attributes or simply the fact that they happened to be in a certain geographical area.
Moreover, the victims may be defined in the negative, i.e. as not belonging to, not being affiliated with or not loyal to the
perpetrator or the group to which the perpetrator belongs."[2]
According to the Vasiljević Trial Chamber:
"It is also apparent from the material reviewed that it is not sufficient to establish extermination for the offender to have
intended to kill a large number of individuals, or to inflict grievous bodily harm, or to inflict serious injury, in the
reasonable knowledge that such act or omission was likely to cause death as in the case of murder. He must also have
known of the vast scheme of collective murder and have been willing to take part therein. As opposed to persecution
pursuant to Article 5(h) of the Statute, it need not be established that he acted on any discriminatory grounds. Also, the
ultimate reason or motives - political or ideological - for which the offender carried out the acts are not part of the
required mens rea and are, therefore, legally irrelevant."[3]
According to the Perišić Trial Chamber:
"The requirement of killings on a large scale does not suggest a numerical minimum, nor a precise identification of
certain named or described persons; it suffices to establish that killings occurred on a mass scale. An assessment of
whether this requirement has been met must be made on the basis of a case-by-case analysis of all relevant factors. It
is not necessary that a large number of killings occurred furing a single incident in a concentrated place over a short
period. It may also be found 'on an accumulation of separate and unrelated incidents, meaning on an aggregated basis'.
The Trial Chamber [also] notes that the elements of the crime of extermination neither require the existence of a 'vast
scheme of collective murder'."[4]
Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, para. 146:
''146. With regard to Tolimir’s argument that the killing of the three Zepa leaders was not part of the one murder
operation involving the mass killings of the men of Srebrenica, the Appeals Chamber recalls that the actus reus of the
crime of extermination is “the act of killing on a large scale” and the mens rea is the intention to kill on a large-scale. It
further recalls that the crime of extermination differs from murder in that it requires an element of massiveness, which is
not required for murder. The Appeals Chamber has clarified that: The assessment of “large scale” is made on a case-
by-case basis, taking into account the circumstances in which the killings occurred. Relevant factors include, inter alia:
the time and place of the killings; the selection of the victims and the manner in which they were targeted; and whether
the killings were aimed at the collective group rather than victims in their individual capacity.''
"2457. The Chamber has also had regard to each of the killing incidents identified above to determine whether they
amount to extermination. While the Chamber recalls that there is no minimum threshold of victims for the purposes of
extermination, it still has to be satisfied that the killings occurred on a mass scale and needs to conduct a case-by-case
assessment in that regard."
"2458. As previously noted, extermination may be established based on the accumulation of separate incidents. However,
it has been found that “as a general matter, the element of killing on a large scale cannot be satisfied by a collective
consideration of distinct events committed in different prefectures, in different circumstances, by different perpetrators,
and over an extended period of time”."
"2459. In this case, the Chamber noted that a large number of killing incidents charged in the Indictment with respect to
the Municipalities were committed in different locations, in different circumstances, and by different perpetrators over an
extended period of time. Having considered these factors, where the Chamber found that the incidents in question were
distinct, the Chamber assessed on a case-by-case basis whether each incident amounts to a mass scale killing for the
purposes of the actus reus of extermination. In making that assessment, the Chamber has had regard to the scale of
each of the killing incidents and the circumstances in which the killings occurred. The Chamber has done so where the
circumstances indicated that the killings were committed in geographically proximate locations, in similar circumstances,
over a relatively short period of time and were thus considered to be part of the same operation."
ICTR
In the Ndahimana Appeals Judgement, the Appeals Chamber held that:
"The Appeals Chamber also recalls that, with respect to extermination as a crime against humanity, "a particularly large
number of victims can be an aggravating circumstance in relation to the sentence for this crime if the extent of the
killings exceeds that required for extermination." The Appeals Chamber further recalls that extermination is the act of
killing on a "large scale", and that "large scale" does not suggest a strict numerical approach with a minimum number of
victims. While extermination as a crime against humanity has been found in relation to the killing of thousands of
persons, it has also been found in relation to fewer killings, such as the killings of approximately 60 individuals and
less."[5]
"The term 'mass', which may be understood to mean 'large scale,' does not command a numerical imperative but may
be determined on a case-by-case basis using a common sense approach. The actor need not act with a specific
individual(s) in mind."[6]
As to the Nizeyimana Trial Chamber:
"While there is no numerical threshold in establishing extermination, case law emphasises that the killings must occur
on a large or mass scale. The Chamber is not satisfied that the killing of the Ruhutinyanya family, the killing of Rosalie
Gicanda and others taken from her home, the killing of Remy Rwekaza and Beata Uwambaye as well as the attack on
Witness ZAV at the Gikongoro / Cyangugu and Kigali roads junction roadblock, the killing of Pierre Claver Karenzi at the
Hotel Faucon roadblock as well as the killing of persons taken from the Matabaro and Nyirinkwaya residences amount
to extermination. The evidence related to the number of deaths in each instance is too ambiguous and or too low to
establish killing on a large scale"[7]
According to the Bagosora and Nsengiyumva Appeals Chamber:
"[...] the Appeals Chamber considers that the Trial Chamber was unreasonable to conclude that the 'large scale'
requirement for extermination was satisfied based on a collective consideration of events committed in different
prefectures, in different circumstances, by different perpetrators, and over a period of two months. Each of the incidents
which formed the basis of Nsengiyumva's convictions presented distinct features and could not be said to constitute one
and the same incident. As such, they could not be considered to constitute one and the same crime sharing the same
actus reus."[8]
Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphone Nteziryayo, Joseph
Kanyabashi and Élie Ndayambaje, Case No. ICTR-98-42-A, Judgement (AC), 14 December 2015, paras. 2123,
3309:
"2123. The Appeals Chamber recalls that the actus reus of extermination is the act of killing on a large scale. This is
what distinguishes the crime of extermination from the crime of murder. The Appeals Chamber further recalls that “large
scale” does not suggest a strict numerical approach with a minimum number of victims. The assessment of “large scale”
is made on a case-by-case basis, taking into account the circumstances in which the killings occurred. Relevant factors
include, inter alia, the time and place of the killings, the selection of the victims and the manner in which they were
targeted, and whether the killings were aimed at the collective group rather than victims in their individual capacity."
"3309. With respect to the crime of extermination, the Appeals Chamber recalls that the actus reus of extermination is
the act of killing on a large scale. “Large scale” does not suggest a strict numerical approach with a minimum number of
victims. The assessment of “large scale” is made on a case-by-case basis, taking into account the circumstances in
which the killings occurred. Relevant factors include, inter alia, the time and place of the killings, the selection of the
victims and the manner in which they were targeted, and whether the killings were aimed at the collective group rather
than victims in their individual capacity."
6.2. The victims of the mass killing were members of a civilian population.
6.3. The perpetrator's conduct (that is, the killing of one or more persons) constituted or took place as part of the
mass killing.
ICTY
As noted by ICTY Appeals Chamber in The Prosecutor v. Tolimir Zdravko:
"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." [9]
The Krstić Trial Chamber held that:
"[t]he very term 'extermination' strongly suggests the commission of a massive crime, which in turn assumes a
substantial degree of preparation and organisation. It should be noted, though, that 'extermination' could also,
theoretically, be applied to the commission of a crime which is not 'widespread' but nonetheless consists in eradicating
an entire population, distinguishable by some characteristic(s) not covered by the Genocide Convention, but made up of
only a relatively small number of people. In other words, while extermination generally involves a large number of
victims, it may be constituted even where the number of victims is limited."[10]
According to the Stakić Trial Judgement,
"[N]o specific minimum number of victims is required. As the Trial Chamber in Vasiljević held, the lowest figure from the
Second World War cases to which the crime of extermination was applied was a total of 733 killings. The Chamber
added in a footnote however that it does not suggest, 'that a lower number of victims would disqualify that act as
'extermination' as a crime against humanity, nor does it suggest that such a threshold must necessarily be met.' In the
opinion of this Trial Chamber, an assessment of whether the element of massiveness has been reached depends on a
case-by-case analysis of all relevant factors."[11]
According to the Vasiljević Trial Judgement:
"[...] the act of extermination must be collective in nature rather than directed towards singled out individuals. However,
contrary to genocide, the offender need not have intended to destroy the group or part of the group to which the victims
belong."[12]
The Stakić Trial Chamber held that:
"This Trial Chamber does not find that the case-law provides support for the Defence submission that the killings must
occur on a vast scale in a concentrated place over a short period of time. Such a claim does not follow from the
requirement that the killings must be massive. [...] As the Trial Chamber in Krstić held, the massiveness of the crime
automatically assumes a substantial degree of preparation and organisation which may serve as an indicia for the
existence of a murderous 'scheme' or 'plan', but not, as proposed by the Defence, of a 'vast scheme of collective
murder' as a separate element of the crime."[13]
"The evidence shows that the proven killings, many of which independently would reach the requisite level of
massiveness for the purpose of an evaluation under Article 5(b) of the Statute, were aimed at the collective group of
targeted individuals and not at the victims in their individual capacity. This holds true for, inter alia, the massacre in
Room 3 of the Keraterm Camp, [...] the killings of a around 120 men who were called out in an organised fashion on 5
August in the Keraterm Camp [...] [and] the closely controlled and cold-blooded executions at Korićanske Stijene on
Mount Vlasić on 21 August 1992."[14]
ICTR
According to the Trial Chamber in Semanza:
"Extermination may be differentiated from murder in that it is directed against a population rather than individuals. The
material element of extermination is killing that constitutes or is part of a mass killing of members of a civilian
population. The scale of the killing required for extermination must be substantial. Responsibility for a single or a limited
number of killings is insufficient."[15]
The Kayishema Trial Judgement held that:
"An actor may be guilty of extermination if he kills, or creates the conditions of life that kills, a single person providing
the actor is aware that his act(s) or omission(s) forms part of a mass killing event. For a single killing to form part of
extermination, the killing must actually form part of a mass killing event. An 'event' exists when the (mass) killings have
close proximity in time and place."[16]
Element:
7.a. [Mental element for Element 5] [Conduct of killing]: The perpetrator meant to engage in killing of one or more
persons
ICTY
As noted by ICTY Trial Chamber in The Prosecutor v. Radovan Karadžić:
"485. The mens rea of extermination requires the intention that a large number of individuals be killed.
486. In line with jurisprudence on the actus reus, the mens rea of extermination similarly does not require the intent to
kill a certain threshold number of victims. Additionally, there is no requirement that the act of extermination be carried
out with the intent to destroy the group or part of the group to which the victims belong, or pursuant to a pre-existing
plan or policy." [1]
The Chamber in Stakić said:
"Turning now to the mental element, this Trial Chamber finds that the mens rea required for extermination is that the
perpetrator intends to kill persons on a massive scale or to create conditions of life that lead to the death of large
numbers of individuals. This includes the requirement that the perpetrator's mental state encompasses all objective
elements of the crime: the annihilation of a mass of people.
"Relying on the Judgement of the Trial Chamber in Prosecutor v. Kayishema, the Prosecution argues that an accused
can be held liable for his acts or omissions if they have been committed 'with intention, recklessness, or gross
negligence'. This Trial Chamber does not agree and finds that it would be incompatible with the character of the crime
of extermination and with the system and construction of Article 5 if recklessness or gross negligence sufficed to hold
an accused criminally responsible for such a crime. It therefore considers that the threshold for the mens rea cannot be
lower than the intent required for murder as a crime against humanity (i.e. dolus directus or dolus eventualis)."[2]
"The technical definition of dolus eventualis is the following: if the actor engages in life-endangering behaviour, his
killing becomes intentional if he 'reconciles himself' or 'makes peace' with the likelihood of death. Thus, if the killing is
committed with 'manifest indifference to the value of human life', even conduct of minimal risk can qualify as intentional
homicide. [...] The Trial Chamber emphasises that the concept of dolus eventualis does not include a standard of
negligence or gross negligence"[3]
"485. The mens rea of extermination requires the intention that a large number of individuals be killed."
"486. In line with jurisprudence on the actus reus, the mens rea of extermination similarly does not require the intent to
kill a certain threshold number of victims. Additionally, there is no requirement that the act of extermination be carried out
with the intent to destroy the group or part of the group to which the victims belong, or pursuant to a pre-existing plan or
policy."
ICTR
In Akayesu:
"The Chamber defines the essential elements of extermination as the following:
1. [...]
2. the act or omission was unlawful and intentional.
"5. [...]."[4]
"According to the Kayishema and Ruzindana Trial Judgement "[t]he act(s) or omission(s) may be done with intention,
recklessness, or gross negligence."[5]
Element:
7.b.i. [Mental element for Element 5] [Consequence of killing] : The perpetrator meant to cause death; OR
The Munyakazi Appeals Chamber stated that:
"The Trial Chamber established Munyakazi's intent to participate in the crimes based on his personal participation and
leadership role in attacks, which resulted in the death of thousands of mostly Tutsi civilians. The Appeals Chamber can
identify no error in this approach. The Appeals Chamber has held that an accused's intent in a crime may be inferred
from circumstantial evidence, including his active participation in an attack. Indeed, contrary to Munyakazi's suggestion,
'[t]he inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the
moment of commission the perpetrators possessed the necessary intent.' The lack of evidence concerning Munyakazi's
personal views about Tutsis does not undermine the reasonableness of the Trial Chamber's findings."[1]
policy."
Element:
7.b.ii. [Mental element for Element 5] [Consequence of killing]: The perpetrator was aware that death sould occur in
the ordinary course of events
policy."
Element:
8.c. [Mental element for Element 6] [Circumstance of mass killing of a civilian population]: The perpetrator was aware
that his/her conduct constituted, or took place as part of a mass killing of members of a civilian population
In Stakić, the Trial Chamber said:
"This Trial Chamber does not find that the case-law provides support for the Defence submission that the killings must
occur on a vast scale in a concentrated place over a short period. Such a claim does not follow from the requirement
that the killings must be massive. Nor does the Trial Chamber believe that a specific minimum number of victims is
required. As the Trial Chamber in Prosecutor v. Vasiljević held, the lowest figure from the Second World War cases to
which the crime of extermination was applied was a total of 733 killings. The Chamber added in a footnote however that
it does not suggest 'that a lower number of victims would disqualify that act as 'extermination' as a crime against
humanity, nor does it suggest that such a threshold must necessarily be met.' In the opinion of this Trial Chamber, an
assessment of whether the element of massiveness has been reached depends on a case-by-case analysis of all
relevant factors. As the Trial Chamber in Krstić held, the massiveness of the crime automatically assumes a substantial
degree of preparation and organisation which may serve as indicia for the existence of a murderous 'scheme' or 'plan',
but not, as proposed by the Defence, of a 'vast scheme of collective murder' as a separate element of crime."[1]
policy."

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Article 7(1)(b)

[47] (b) Extermination;

Art. 7(1)(b) Crime against humanity of extermination

1.3. Widespread or systematic character of the attack

1.3.1. The scale of the attack

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