Prosecuting International Crimes in Africa - PULP - University of ...

110 Chapter 4
population’. 76 The court stressed that for purposes of crimes against
humanity, ‘an attack constitutes “a course of conduct involving the
commission of acts”, which need not constitute a military attack’. 77 An
attack may precede, outlast, or continue during the armed conflict. The
SCSL has found that the term ‘widespread’ refers to the scale of the acts
perpetrated and to the number of victims and that the adjective ‘systematic’
implies ‘the organised nature of the acts of violence and the improbability
of their random occurrence’. 78 Widespread refers to the large-scale nature
of the attack and the number of victims involved. The mens rea of crimes
against humanity is ‘the knowledge that there is an attack on the civilian
population and that the acts of the accused person are part thereof’. The
prosecutor has to ‘show that the accused either knew or had reason to
know that his acts comprised part of the attack’. 79
The requirement for an attack to be directed against any civilian
population requires that ‘the civilian population be the primary rather than
an incidental target of the attack’. 80 Hence, the civilian population must be
the primary object of the attack and must be predominantly civilians. In
order to determine whether the attacks are systematically targeted against
a civilian population, the test used by the SCSL (as taken from the ICTY)
consists of the following aspects: the means and method used in the attack;
the status and number of victims; the discriminatory nature of attack; the
nature of the crimes; resistance against the attacks and assailants and the
extent of force used in the attack. 81 For purposes of crimes against
humanity, the term ‘civilian population’ has been interpreted to mean not
only civilians, but also ‘those who were members of a resistance movement
and former combatants – regardless of whether they wear uniforms or not
– but who were not 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’. 82
From the above, the emphasis is on the ‘specific situation of the victim’
at the time the crimes were committed. Hence, ‘the targeted population
must essentially be predominantly civilian in nature, although the presence
of a number of non-civilians in their midst does not change the character
of that population as civilian’. 83 The SCSL also defined ‘torture’ as a crime
against humanity and considered treatment that qualifies as ‘degrading
76
77
Prosecutor v Norman, Fofana and Kondewa Decision on Motions for Judgment of acquittal
pursuant to Rule 98, 21 October 2005 para 55; Prosecutor v Fofana and Kondewa paras
110-121.
Prosecutor v Norman, Fofana and Kondewa para 56.
78
79
80
81
As above, para 56.
Prosecutor v Fofana and Kondewa para 121.
Prosecutor v Norman, Fofana and Kondewa para 56.
Prosecutor v Norman, Fofana and Kondewa para 56 (citing Prosecutor v Kunarac Judgment of
82
83
the Appeals Chamber ICTY, 12 June 2002 para 90).
Prosecutor v Norman, Fofana and Kondewa para 58.
Prosecutor v Norman, Fofana and Kondewa para 59.