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INGREDIENTS OF CRIMES AGAINST HUMANITY:

Section 8 (2) of the domesticated ICC Act N0 11 of 2010 states;


for the purposes of this Section, a crime against humanity is an act
specified in article 7 of the Statute.
Article 7(1) of the Rome Statue, reads;
For purpose of this Statute, Crimes Against Humanity means any of the
following acts when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack:
a)
b)
c)
d)
e)
f)
g)

h)

i)
j)
k)

Murder
Extermination
Enslavement
Deportation or forcible transfer of population,
Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of International law.
Torture
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable
gravity;
Persecution against any identifiable group or collectivity on political,
racial, national, ethinic, cultural , religious, gender as defined in
paragraph 3, or other grounds that are universally recognized as
impermissible under international law, in connection with any at
referred to in this paragraph or any crime within the jurisdiction of the
court;
Enforced disappearance of persons;
The crime of aparthied
Other inhuman acts of a similar character intentionally causing great
suffering, or serious injury or body or to mental or physical health.

THE ELEMENTS OF CRIMES AGAINST HUMANITY:


In Prosecutor VS Akayesu, TC, Judgment of September 2,1998 , para
578:
The chamber considered that Article 3 of the Statute of the Tribunal (ICTR)
confers on the chamber jurisdiction to prosecute persons for various
inhumane acts which constitute crimes against humanity.
The court categorised the essential elements as follows.

1. The act must be inhumane in nature and character, causing


great sufferring, or serious injury to body or to mental or
physical health.
2. The acts must be committed as part of a widespread or
systematic attack;
3. The act must be commited against members of the civilian
population;
4. The act must be committed on one or more discriminatory
grounds, namely, national, political, ethinic, racial or
religious grounds.

A. THE ACT MUST BE INHUMANE IN NATURE AND CHARACTER,


CAUSING GREAT SUFFERING, OR SERIOUS INJURY TO BODY OR
TO MENTAL OR PHYSICAL HEALTH (ELEMENT 1).
Akayesu,(Trial Chamber), September 2, 1998, para. 578: The act
must be inhumane in nature and character, causing great suffering, or
serious injury to body or to mental or physical health.
B. THE ACT MUST BE COMMITTED AS PART OF WIDESPREAD OR
SYSTEMATIC ATTACK.(ELEMENT 2).
In the Akayesu case, para 579, the chamber considered that it is
aprerequisite that the act must be committed as part of widespread or
systematic attack and not just arandom act of violence. The act can be part
of widespread or systematic attack and need not be part of both1.
Attack
Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001,
para. 410: To show crimes against humanity, one element is there must be
an attack.

1 In the original French version of the Statute, these requirements were worded
cumulatively: Dans le cedre dune adieux generalise et systematic thereby
significantly increasing the threashold for application of this provision. Since
customary international law requires only that the attack be widespread or
systematic, there are sufficient reasons to assume that the French versionb suffers
from an error in translation.

The attack has been defined2 as a course of conduct involving the


commission of acts of violence. The attack can precede, outlast, or continue
during the armed conflict, need not be a psrt of the conflict under customary
law.
Although the word attack may appear to connote the existence of an
armed conflict is not a requirement, and the two concepts are distinct and
independent.
Akayesu,(Trial Chamber), September 2, 1998, para. 581:
An attack is an unlawful act of the kind enumerated in Article 3(a) to (i) of
the Statute . . . . An attack may also be non violent in nature, like imposing a
system of apartheid . . . or exerting pressure on the population to act in a
particular manner.3
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 122:
The Chamber defined attack as the event in which the enumerated crimes
must form part, noting that within a single attack, there may exist a
combination of the enumerated crimes, for example murder, rape, and
deportation.
The acts of the accused must form part of the attack.
There must be some connection or nexus between the acts of the
perpetrator and the attack itself, but the specific acts with which the accused
is charged need not to be widespread and systematic4.
Tadic, (Appeals Chamber), July 15, 1999, para. 251 A nexus with the
accuseds acts is required . . . for the attack on any civilian population.
Tadic, (Appeals Chamber), July 15, 1999, para. 271 To convict an
accused of crimes against humanity, it must be proved that the crimes
were related to the attack on a civilian population (occurring during an
armed conflict). . . .
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para.
234: The acts of the accused must not be isolated but form part of the
2 Prosecutor vs Naleitic and Martinovic, Case No IT-98-34 Judgment, March 31,
2003 paragraph 233.
3 See also Rutaganda, (Trial Chamber)December 6, 1999 para 70
4 Prosecutor vs Kunarac et al, Case No. IT-96-23-T Judgment, february 22, 2001

attack. This means that the act, by its nature or consequence, must
objectively be a part of the attack.
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 33:
The nexus which is required is between the accuseds acts and the attack
on the civilian population.

Random acts or acts committed for personal reasons excluded:


Akayesu, (Trial Chamber), September 2, 1998, para. 578-579. The act
must be committed as part of a wide spread or systematic attack and not
just a random act of violence.
In Kunarac, Kovac and vukovic, (Trial Chamber), March 31, 2003,
Paragraph 427 It was stated the attack must be either widespread or
systematic, thereby excluding selected and random acts.5
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para.
122-123, n.28: The elements of the attack effectively exclude . . . acts
carried out for purely personal motives and those outside of a broader policy
or plan. Either of these conditions [widespread or systematic] will serve to
exclude isolated or random inhumane acts committed for purely personal
reasons.

Widespread or systematic not both.


For a crime against humanity to be committed, the words are disjunctive
rather than conjuctive. Thus, to prove a crime against humanity, it is
sufficient to prove the existence of either a widespread or a systematic
attack.6
Akayesu (Trial Chamber), September 2, 1998, para 579, n. 144: The
attack must contain one of the alternate conditions of being widespread or
systematic, not both, as in the French text of the Statute. Customary
international law requires only that the attack be either widespread or
systematic.
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para.
236: The attack must be either widespread or systematic in nature.
5 Prosecutor vs tadic, case IT-94-1-T opinion and Judgment, 7 may 1997, Par 648.
6 Prosecutor vs Blasvic , Case No IT-95-14-95-14-T, Judgment, March 3, 2000, para
201

Widespread:
The Prosecutor vs. Akayesu, Case No. ICTR -96-4-T-Judgement,
September 2, 1998 paragraph. 580. The Chamber stated that The
concept of widespreadmay be defined as massive, frequent, large scale
action, carried out collectively with considerable seriousness and directed
against a multipleicity of victims.7
Prosecutor vs Kordic et al, al, Case No IT-95-14/ 2-T, Judgment,
February 2001, paragraph 179. A widespread criminal offence may
involve the cumulative effect of aseries of inhuman acts or the singular
effect of an inhumane act of extraordinary maginitude.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para 123:
A widespread attack is one that is directed a gainst a multiplicity of
victims

Systematic
a) Whether plan or policy required.
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 pre-conceived plan or policy8.
Prosecutor vs Kordic et al, al, Case No IT-95-14/2-A, Judgment,
December 17,2004, Paragragh 94. The systematic character of a
crime against humanity refers to similar criminal conduct and the
improbabability of its random occurance.9
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para.
123: A systematic attack means an attack carried out pursuant to a
preconceived policy or plan.

7 Para 580 in Akayesu case


8 Prosecutor vs Akayesu( Trial Chamber),September 2, 1998,para 580
9 Prosecutor vs Kunarac et al, Case No IT-96-23/ 1-A. Judgment, June 12, 2002,
paragraph 94.

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002,


para. 98: Neither the attack nor the acts of the accused needs to be
supported by any form of policy or plan. To prove that the attack was
directed against a civilian population and that it was widespread or
systematic, which are legal elements of the crime, it is not necessary to
show that they were the result of the existence of a policy or plan. The
existence of a policy or plan may be evidentially relevant, but it is not a legal
element of the crime.
But see Blaskic, (Trial Chamber), March 3, 2000, para. 204: This plan
required for determining if an attack is systematic] . . . need not necessarily
be declared expressly or even stated clearly and precisely. It may be
surmmarised from the occurrence of a series of events, inter alia:
[a] the general historical circumstances and the overall political background
against which the criminal acts are set;
[b] the establishment and implementation of autonomous political structures
at any level of authority in a given territory;
[c] the general content of a political programme, as it appears in the writings
and speeches of its authors;
[d] media propaganda;
[e] the establishment and implementation of autonomous military structures;
[f] the mobilisation of armed forces;
[g] temporally and geographically repeated and co-ordinated military
offensives;
[h] links between the military hierarchy and the political structure and its
political programme;
[i] alterations to the ethnic composition of populations;
[j] discriminatory measures, whether administrative or other (banking
restrictions, laissez-passer,);
[k] the scale of the acts of violence perpetrated in particular, murders and
other physical acts of violence, rape, arbitrary imprisonment, deportations
and expulsions or the destruction of non-military property, in particular,
sacral sites.

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 124,
581:
For an act of mass victimisation to be a crime against humanity, it must
include a policy element.The requirements of widespread or systematic are
enough to exclude acts not committed as part of a broader policy or plan.
Additionally, the requirement that the attack must be committed against a
civilian population . . . demands some kind of plan and, the discriminatory
element of the attack is . . . only possible as a consequence of a policy.
But see Semanza, (Trial Chamber), May 15, 2003, para. 329:
Systematic describes the organized nature of the attack. The . . . ICTY
recently clarified that the existence of a policy or plan may be evidentially
relevant, in that it may be useful in establishing that the attack was directed
against a civilian population and that it was widespread or systematic, but
that the existence of such a plan is not a separate legal element of the
crime.

Application
Akayesu, (Trial Chamber), September 2, 1998, para. 173: The
widespread requirement was met, in part, because of the scale of the
events that took place. Around the country, a massive number of killings
took place within a very short time frame. Tutsi were clearly the target of the
attack. The systematic nature of the attack was evidenced by the
unusually large shipments of machetes into the country shortly before it
occurred; the structured manner in which the attack took place; the fact
that [t]eachers and intellectuals were targeted first; and the fact that
through the media and other propaganda, Hutu were encouraged
systematically to attack Tutsi.

C. THE ACT/ATTACK MUST BE COMMITTED AGAINST


MEMBERS OF THE CIVILIAN POPULATION (ELEMENT 3)
Article 7(2) of the Rome Statute, states;
For the purpose of paragraph 1:

(a) Attack directed against any civilian population means a course of


conduct involving the multiple commission of acts referred to in paragraph 1
against any civilian population, pursuant to or in furtherance of a State or
organizational policy to commit such attack;
In the ICTR case of Semanza, (Trial Chamber), May 15, 2003, Para 326,
stated;
A crime against humanity must have been committed as part of a
widespread or systematic attack against any civilian population on
discriminatory grounds. Although 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 discriminatory attack.
But see Akayesu, (Trial Chamber), September 2, 1998, para 578:
The act must be committed against members of the civilian population.
Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001,
para. 410: To show crimes against humanity, one element is there must be
an attack directed against any civilian population.

Directed against

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 235:
An attack is directed against a civilian population if the civilian
population is the primary object of the attack.
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002,
para. 90:
The expression directed against is an expression which specifies that in
the context of a crime against humanity the civilian population is the primary
object of the attack.
In order to determine whether the attack may be said to have been so
directed, the Trial Chamber will consider . . . 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 requirements of the laws of war.
Civilian defined

Akayesu, (Trial Chamber), September 2, 1998, para. 582:


Members of the civilian population are people who are not taking any
active part in the hostilities, including members of the armed forces who laid
down their arms and those persons placed hors de combat by sickness,
wounds, detention or any other cause.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para.
127-129: Because crimes against humanity may be committed inside or
outside the context of an armed conflict, the term civilian must be
understood within the context of war as well as relative peace.
Bagilishema, (Trial Chamber), June 7, 2001, para. 80: The
requirement 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 excludes single or isolated acts
which, although possibly constituting crimes under national penal legislation,
do not rise to the level of crimes against humanity.
must be predominantly civilian
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 180: A
population may be considered as civilian even if certain non-civilians are
present it must simply be predominantly civilian in nature.
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 235:
The presence of a number of non-civilians cannot refute the predominantly
civilian character of a population.
Jelisic,(Trial Chamber), December 14, 1999, para. 54: 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.
Akayesu, (Trial Chamber), September 2, 1998, para. 582: Where
there are certain individuals within the civilian population who do not come
within the definition of civilians, this does not deprive the population of its
civilian character.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para.
128: The targeted population must be predominantly civilian in nature but
the presence of certain non-civilians in their midst does not change the
character of that population.

Population
Semanza, (Trial Chamber), May 15, 2003, para. 330:
The term population does not require that crimes against humanity be
directed against the entire population of a geographic territory or area. The
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.
D. THE ATTACK MUST BE ON NATIONAL, POLITICAL, ETHNIC,
RACIAL OR RELIGIOUS GROUNDS (DISCRIMINATORY GROUNDS)
(ELEMENT 4).
Akayesu, (Trial Chamber), September 2, 1998, para. 578: The act
must be committed on one or more discriminatory grounds, namely,
national, political, ethnic, racial or religious grounds.
Semanza, (Trial Chamber), May 15, 2003, para. 331: Article 3 of the
ICTR Statute requires that the attack against the civilian population be
committed on national, political, ethnical, racial or religious grounds. Acts
committed against persons outside the discriminatory categories may
nevertheless form part of the attack where the act against the outsider
supports or furthers or is intended to support or further the attack on the
group discriminated against on one of the enumerated grounds.
It was further held, in Akayesu, (Trial Chamber), September 2, 1998,
para 580 that;
inhumane acts commited against persons not falling within any one of the
discriminatory categories could constitute crimes against humanity if the
perpetrators intention was to further his attacks on the group discriminated
against

C. MENTAL STATE (MENS REA) (ELEMENT 5)


Knowledge that the accuseds act is part of a widespread or
systematic attack on a civilian population
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para.
133-134: The perpetrator must knowingly commit crimes against humanity
in the sense that he must understand the overall context of his act . . . .
The accused must have acted with knowledge of the broader context of the

attack . . . . Part of what transforms an individuals 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.
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.
Niyitegeka, (Trial Chamber), May 16, 2003, para. 442:
The crime must be committed as part of a widespread or systematic attack
against a civilian population on national, political, ethnic, racial or religious
grounds. The Accused need not act with discriminatory intent, but he must
know that his act is part of this widespread or systematic attack.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para.
133-134: To be held liable, the perpetrator must have 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.

it is irrelevant whether the accused intended his


acts to be directed against the targeted population
or merely the victim
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002,
para. 103: It is . . . 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.

Blaskic, (Trial Chamber), March 3, 2000, para. 244:


T]o be judged guilty of crimes against humanity, except in the case of
persecution, [the perpetrator] [need] not have had the intent of targeting
civilians because of their race or their religious or political beliefs.

Blaskic, (Trial Chamber), March 3, 2000, para. 260: [F]or a widespread


or systematic attack and the resultant crimes murder, extermination,
enslavement, deportation, imprisonment, torture, rape or other inhumane
acts with the exception of persecution to be characterised as crimes
against humanity they need not have been perpetrated with the deliberate
intent to cause injury to a civilian population on the basis of specific
characteristics. [T]o be found guilty of such an offence, those responsible for
the attack need not necessarily have acted with a particular racial, national,
religious or political intent in mind.
UNDERLYING OFFENCES:
Article 7(1) of the Rome Statute of International Criminal Court sets out
various acts that constitute crimes against humanity, namely murder,
extermination, enslavement, deportation, imprisonment, torture rape,
percecution and other inhuman acts.
Paragraph 1(a) in the definition of crimes against humanity.
Acts when committed as apart of a wide spread or systematic attack directed
against any civilian population include;
(a) murder
Elements of murder under the International Criminal Court elements of
crimes include;
b) The perpetrator killed10one or more persons.
c) The conduct was committed as part of a wide spread or systematic
attack directed against a civilian population,
d) The perpetrator knew that the conduct was part of or intended the
conduct to be part of a widespread or systematic attack against a
civilian population.
he material elements for murder as acrime against humanity; the actus reus
of the crime is constituted by death resulting from an act or omission of the
accused or his surbordinate.
The mens rea is the intent to kill or cause grievious bodily harm or inflict
serious injury in the reasonable knowledge that the attack is likely to result in
death.
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 560:
10 The term killed is interchageable with the term caused death

The constituent elements of murder under Article 5(a) of the Statute . . .


comprise the death of the victim as a result of the acts or omissions of the
accused, where the conduct of the accused was a substantial cause of the
death of the victim. It can be said that the accused is guilty of murder if he
or she engaging in conduct which is unlawful, intended to kill another person
or to cause this person grievous bodily harm, and has caused the death of
that person.
Krstic, (Trial Chamber), August 2, 2001, para. 485: Murder has
consistently been defined . . . as the death of the victim resulting from an act
or omission of the accused committed with the intention to kill or to cause
serious bodily harm which he/she should reasonably have known might lead
to death.
Blaskic, (Trial Chamber) , March 3, 2000, para. 217: [T]he legal and
factual elements of the offence of murder are:
[a] the death of the victim;
[b] the death must have resulted from an act of the accused or his
subordinate;
[c] the accused or his subordinate must have been motivated by the intent
to kill the victim or to cause grievous bodily harm in the reasonable
knowledge that the attack was likely to result in death.
Jelisic, (Trial Chamber) , December 14, 1999, para. 35: Murder is
defined as homicide committed with the intention to cause death. The legal
ingredients of the offence as generally recognised in national law may be
characterised as follows:
[a] the victim is dead,
[b] as a result of an act of the accused,
[c] committed with the intention to cause death.
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 236:
In order for an accused to be found guilty of murder, the following elements
need to be proved: the death of the victim; that the death resulted from an
act or omission of the accused or his subordinate; that the accused or his
subordinate intended to kill the victim, or to cause grievous bodily harm or
inflict serious injury in the reasonable knowledge that the attack was likely to
result in death.