The Historical Development of Crimes against Humanity and Jurisprudence of the Rwanda, Former Yugoslavia, and Sierra Leone Tribunals
The Historical Development of Crimes against Humanity and Jurisprudence of the Rwanda, Former Yugoslavia, and Sierra Leone Tribunals
Abstract and Keywords
Chapter 8 analyses post-World War II jurisprudence, national jurisprudence, the International Law Commission’s work, and International Criminal Tribunal for Rwanda (ICTR), International Criminal Court for the former Yugoslavia (ICTY), and the Special Court for Sierra Leone (SCSL) jurisprudence regarding what types of non-state entities might be involved in crimes against humanity. It argues that while the Nuremberg Charter and post-World War II jurisprudence, including national jurisprudence, were focused on state crimes, state involvement has rarely been considered a legal element of crimes against humanity. This is also evident in the International Law Commission’s work. This chapter analyses how the three abovementioned international(ized) tribunals addressed the question of non-state entity involvement in crimes against humanity and argues that the ICTY and the SCSL did not limit entities behind crimes against humanity to abstract ‘state-like entities’, but primarily considered whether the group in question had the capacity to commit the crimes.
In international law, the notion ‘crimes against humanity’ emerged as a reaction to state crimes. Its first use dates back to 1915, when the governments of Great Britain, France, and Russia condemned Turkish massacres against the Armenian population in the Ottoman Empire as ‘crimes of Turkey against humanity and civilization’.1 After World War I, the idea underlying crimes against humanity (CAH) was included in the peace treaty with Turkey, the Treaty of Sevres, which envisaged prosecution of those ‘responsible for the massacres committed during the continuance of the state of war on territory which formed part of the Turkish Empire’.2 This phrase referred to large-scale crimes committed by Turkey against its citizens. However, the Treaty of Sevres never entered into force.3 No reference to CAH was included in the Treaty of Versailles.4 As an international crime, CAH were first codified in the (p.232) Charter of the International Military Tribunal (Nuremberg Charter) in 1945, which aimed to prosecute the ‘major war criminals of the European Axis countries’.5
This chapter analyses how CAH developed from when they were first codified in 1945 until their adjudication in the 1990s and early 2000s, focusing on whether the different definitions and interpretations of CAH were exclusively state-focused or also encompassed crimes by non-state actors.6
8.1 Crimes against Humanity in the Nuremberg Charter and in Post-World War II Jurisprudence
CAH were first codified in article 6(c) of the Nuremberg Charter.7 This article defined CAH as:
murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Owing to its historical context, and as stated in the article’s chapeau, the aim of the Nuremberg Tribunal was to prosecute persons ‘acting in the interests of the European Axis countries’.8 Thus, Schabas highlighted that the Tribunal’s jurisprudence over CAH was limited to offenders acting ‘in the interest of a state’.9 This conclusion is corroborated by the article’s requirement that CAH must be committed in ‘execution of or in connection with any crime within the jurisdiction of the Tribunal’.10 Crimes within the Tribunal’s jurisdiction were crimes against peace and (p.233) war crimes—two crimes that could only be committed with state involvement.11 This nexus requirement served primarily to protect states from prosecution for acts unrelated to World War II, which they would have considered infringements of the principle of non-intervention.12 The material definition of CAH under article 6(c) did not, however, foresee that only state actors could commit CAH. Neither did it explicitly require the involvement of the state. Essentially, article 6(c) defined CAH as certain odious crimes when ‘committed against any civilian population’.13 This wording is very broad and does not provide much information on which elements characterize CAH and who the possible perpetrators may be.
The International Military Tribunals’ judgment of 1946 remained vague on legal elements of CAH.14 Still, foreshadowing the core elements of CAH as later included in its various definitions, the Tribunal held that Germany’s ‘policy of terror was certainly carried out on a vast scale, and in many cases was organized and systematic’.15 More guidance on the question of which actors can commit CAH is found in the jurisprudence of the military tribunals established by the Allied powers in occupied Germany, which adjudicated cases under the Control Council Law No 10 (CCL10).16 Most cases focused on crimes committed by Nazi officials. Yet, the military tribunals also adjudicated crimes committed by different private actors, and expressed diverse views on the legal elements of CAH.
(p.234) In the Justice case against members of the Reich Ministry of Justice and the German judiciary, the United States Military Tribunal III expressed a state-centric view on CAH. It found that article 2(1)(c) CCL10:
provides for punishment of crimes committed against German nationals only where there is proof of conscious participation in systematic government organized or approved procedures amounting to atrocities and offenses of the kind specified in the act and committed against populations or amounting to persecutions on political, racial, or religious grounds.17
In the Tribunal’s view, ‘governmental participation is a material element of the crime against humanity. Only when official organs of sovereignty participated in atrocities and persecutions did those crimes assume international proportions.’18 Hence, the Tribunal stated in unequivocal terms that state involvement was a necessary requirement for CAH.
Yet, the Tribunal’s interpretation of CAH’s scope did not exclude crimes committed by non-state actors. In the Flick and the IG Farben cases, managers of private enterprises were charged with CAH inter alia for the ‘enslavement of concentration camp inmates, including German nationals’.19 Although the Tribunal did not find the industrials on trial responsible for designing the Third Reich’s slave-labour programme, the Tribunal decided that the use of slave labour in their private factories amounted to CAH.20 Likewise, in a number of cases against individuals who denounced Jews or political opponents to German authorities, tribunals found that private actors can commit CAH if acting in accordance with a state policy.21 Thus, already at an early stage in the history of CAH, tribunals held that CAH were not restricted to crimes of state officials but could also be committed by private individuals if following a state policy.
An even broader understanding of CAH was expressed in an obiter dictum in the Einsatztruppen case, in which US Military Tribunal II held:
Crimes against humanity are acts committed in the course of wholesale and systematic violation of life and liberty. It is to be observed that insofar as international jurisdiction is concerned, the concept of crimes against humanity does not apply to offenses for which the criminal code of any well-ordered state makes adequate provision. They can only come within the purview of this basic code of humanity because the state involved, owing to indifference, impotency or complicity, has been unable or has refused to halt the crimes and punish the criminals.22
(p.235) Contrary to the finding in the Justice case, in this case the tribunal did not consider active state involvement a condition sine qua non for the commission of CAH. Instead, it focused on two elements: first, the crimes must be large-scale and systematic; and second, the territorial state needs to be unable or unwilling to halt or prosecute them. This statement did not limit the potential perpetrators of CAH to state officials or persons acting in accordance with a state policy, but suggested that CAH can also be committed without direct state involvement.
In summary, the definition of CAH under the Nuremberg Charter and post-World War II jurisprudence focused on crimes committed by Nazi Germany and not on crimes by non-state entities. Still, jurisprudence by different military tribunals found that non-state actors can commit CAH pursuant to a state policy. Moreover, at least in the Justice case, the Tribunal left open the possibility that CAH could be committed without direct state involvement if the territorial state is unwilling or unable to halt and prosecute the crimes.23 Accordingly, in an attempt to define CAH following the Nuremberg case law, the United Nations War Crimes Commission held in 1948:
Isolated offences did not fall within the notion of crimes against humanity. As a rule systematic mass action, particularly if it was authoritative, was necessary to transform a common crime, punishable only under municipal law, into a crime against humanity, which thus became also the concern of international law.24
Following this definition, state action was not a material element of CAH.25 Instead, the decisive elements of CAH were that crimes be committed in a systematic manner and on a mass scale.
8.2 The International Law Commission’s Codification of Crimes against Humanity
In 1947, one of the first tasks states entrusted to the newly established International Law Commission (ILC) was to formulate the principles of international law recognized in the Nuremberg Charter and the 1946 judgment, and to prepare a ‘draft code of offences against the peace and security of mankind’.26 While in the (p.236) 1950s the ILC’s draft codes reflected closely the Nuremberg Charter’s definition of CAH, in the early 1990s the Commission adopted broader definitions of the crime.
8.2.1 The 1951 and 1954 drafts of the Code of Offences against the Peace and Security of Mankind
In the ‘Nuremberg Principles’27 of 1950 and in the first draft Code of Offences against the Peace and Security of Mankind of 1951, the ILC followed closely the Nuremberg Charter’s definition of CAH. In accordance with the Military Tribunals’ jurisprudence on non-state perpetrators of CAH as discussed above, article 2(10) of the 1951 draft Code stated that inhumane acts can be committed both by ‘the authorities of a State or by private individuals’, provided that the acts be connected to war crimes or crimes against peace.28 Three years later, the ILC did not include this nexus requirement in the 1954 draft Code. In order to differentiate ‘any inhuman act committed by a private individual’ from CAH, the ILC specified that CAH consist of ‘[i]nhuman acts … by the authorities of a State or by private individuals acting at the instigation or with the toleration of such authorities’.29 This suggests that non-state individuals can commit CAH for non-official purposes and not acting in accordance with a state policy, as long as the acts are condoned by the territorial state. Thus, passive state involvement would suffice. Still, at the time, some academic commentators criticized a definition of CAH that necessarily requires some state involvement for being inconsistent with other definitions of international crimes, because states had decided just a few years earlier not to require any state involvement for the crime of genocide.30
8.2.2 The 1991 and 1996 Draft Code of Crimes against the Peace and Security of Mankind
Owing to states’ disagreement on the definition of the crime of aggression, further work on a draft Code was postponed for almost three decades.31 When in 1991 the ILC adopted a revised Draft Code of Crimes, it no longer included an explicit provision on CAH, but termed the corresponding offence ‘systematic or mass violations of human rights’.32 Under article 21 of the 1991 Draft Code, any (p.237) individual could be charged for this crime if he or she committed certain ‘violations of human rights … in a systematic manner or on a mass-scale’. Some have argued that reference to ‘human rights violations’ suggests that ‘state involvement may have been viewed as a sine qua non’ for CAH.33 Yet, according to the ILC’s commentary, perpetrators of this crime were not limited to state actors.34 The commentary explained that ‘the article does not rule out the possibility that private individuals with de facto power or organized in criminal gangs or groups might also commit the kind of systematic or mass violations of human rights covered by the article’.35 Thus, in the ILC’s view, this crime could not be committed by isolated individuals, but required some kind of authority or group behind the underlying acts.36
Scholars criticized the 1991 draft for various reasons.37 However, it does not seem that states voiced major concerns with the formulation of CAH in the 1991 draft.38 Accordingly, five years later, the ILC included the essence of the 1991 Draft Code in article 18 of 1996 Draft Code of Crimes. This provision defined ‘crimes against humanity’ as certain crimes ‘when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group’. In its commentary, the ILC argued:
The instigation or direction of a Government or any organization or group, which may or may not be affiliated with a Government, gives the act its great dimension and makes it a crime against humanity imputable to private persons or agents of a State.39
As a result, the ILC did not limit CAH to crimes committed with active or passive state involvement. In the Commission’s view, certain heinous human rights violations could amount to CAH if committed in a widespread or systematic manner by any individual acting at the instigation or under the direction of a state or non-state collective entity.40 The ILC only excluded crimes committed by individuals acting on their ‘own initiative’ and according to their ‘own criminal plan’. The ILC did not (p.238) require the ‘organization or group’ behind CAH to have state-like characteristics. Instead, what seemed decisive is that the entity is able to instigate or direct large-scale or systematic crimes. While the ability to direct widespread or systematic crimes would, arguably, require some kind of command or control relationship between the group and the individual perpetrators, this is not the case if the group merely instigates the crimes.41
The ILC draft articles cannot, however, be taken as an authoritative restatement of positive international law.42 Still, the opinion of international law experts drafting definitions of international crimes at the request of the United Nations is significant.43 Therefore, international and national courts have referred to the ILC’s Draft Codes when establishing material elements of CAH.44 The ILC’s work has been especially important because state practice on the question of what constitutes CAH was very limited at the time.45 Relevant national CAH cases are discussed in Section 8.3 ‘The Need for State Involvement as Found in National Jurisprudence’.
8.3 The Need for State Involvement as Found in National Jurisprudence
In the period between the Nuremberg Trials and the establishment of the tribunals for the former Yugoslavia and Rwanda, national CAH trials prosecuted crimes committed by agents of Nazi Germany during World War II. For example, the Eichmann case before the District Court of Jerusalem in 1961 adjudicated crimes committed by a German state official. In this case, the Court did not (need to) consider whether state involvement was a requirement for the commission of CAH.46 In contrast, the Dutch Supreme Court in the Menten case, the Supreme Court of Canada in the Finta case, and French Courts in the Touvier and Barbie cases pronounced themselves on the question of whether state involvement was a material element of (p.239) CAH. As is seen in the following paragraphs, unlike the ILC, most national Courts suggested that state involvement was a material element of CAH.
In the Menten case, Menten—a Dutch member of Nazi Germany’s ‘Schutzstaffel’—was accused of war crimes and crimes against humanity, as defined in article 6(b) and (c) of the Nuremberg Charter, for killing Jews in Podhorodce.47 Found guilty of the alleged crimes, Menten appealed the Rotterdam District Court’s judgment by arguing inter alia that CAH must ‘form part of a system based on terror and/or constitute a link in a consciously pursued state policy’.48 On appeal, the Dutch Supreme Court held in 1981:
The concept of crimes against humanity also requires—although this is not expressed in so many words in the above definition—that the crimes in question form part of a system based on terror or constitute a link in a consciously pursued policy directed against particular groups of people.49
While the Supreme Court required a ‘system based on terror’ or policy behind CAH, it did not state that CAH must be committed pursuant to a state policy. Yet, this omission may also be coincidental because, in the Menten case, the existence of a terror system and a state policy was undisputed.
In the Finta case before the Supreme Court of Canada, Finta, a former member of the Hungarian Gendarmerie, faced allegations of CAH under section 7(3.76) of the Canadian Criminal Code.50 In 1994, the Supreme Court held that criminal acts as established in the definition of CAH must be ‘undertaken in pursuance of a policy of discrimination or persecution of an identifiable group or race’.51 Referring only to the opinion of Professor Bassiouni, the Court concluded that, at the time, ‘State action or policy’ were contextual elements required for the commission of CAH.52 In France, in the cases of the former head of Nazi Germany’s Gestapo in Lyon, Barbie, and a member of the Milice française which collaborated with Nazi Germany, Touvier, the French Court de Cassation had to interpret article 6(c) of the Nuremberg Charter. The highest French court defined CAH in 1985 as:
inhumane acts and the persecutions which, in the name of a State practicing a hegemonic political ideology, have been committed in a systematic fashion, not only against persons because (p.240) they belong to a racial or religious group, but also against the adversaries of this policy, whatever the form of their opposition.53
Thus, in the view of the French Court de Cassation, state involvement constituted a material element of CAH.
In summary, in all four cases the national courts required—more or less explicitly—state involvement for the commission of CAH. Different reasons may explain these conclusions, which divert at least from later ILC reports. First, the courts had to apply a definition of CAH as recognized in the 1940s. As seen above, at that time, CAH under the Nuremberg Charter were at least jurisdictionally limited to state crimes. Second, the courts were not concerned with the question of whether CAH could also be committed without state involvement: the Nazi state policy behind all crimes was uncontroversial.54 Still, the arguments or sources on which some Courts based their findings can be challenged: in the Finta case, the Canadian Court only cited one legal scholar as proof of a state policy requirement.55 Moreover, the French Court’s interpretation of article 6(c) of the Nuremberg Charter as requiring acts ‘in the name of a State practicing a hegemonic political ideology’ was without precedent in international jurisprudence.56 Thus, while this limited amount of national case law required state involvement for CAH committed in 1945, it reveals little about the state of customary international law at the time of the pronouncements.
As a result, in the first half of the twentieth century, state crimes shocked the conscience of humanity and required international judicial intervention. In 1945, the recognition as international crimes of acts committed by states against their own citizens was an equally courageous and controversial step in lifting the veil over state sovereignty.57 In the words of the British Chief Prosecutor Shawcross at the Nuremberg Tribunal, it signified that under international law, the state’s ‘omnipotence’ has limits and that the ‘individual human being … is not disentitled to the protection of mankind when the state tramples upon his rights in a manner which outrages the conscience of mankind’.58 Against this background and in the context of Nazi Germany’s crimes, the first codification of CAH and jurisprudence (p.241) on Nazi crimes concerned state crimes only. Following this historical development, some have argued that the purpose of an international criminalization of CAH ‘is to protect civilian populations against victimization by state agents in furtherance of or as part of a state policy’.59 Despite this state-centric focus during the immediate post-World War II period, others did challenge the exclusive concentration on state crimes. For example, the French Advocate General asked, in the Barbie case:
Are there not forces and organizations whose powers might be greater and whose actions might be more extensive than those of certain countries represented institutionally at the United Nations? Care is required because other methods of total abuse of the human condition could equal in horror, albeit from other aspects, those of which we have just spoken [i.e. crimes of states]. Certain forms of international terrorism are surely in the process of giving us just such an example.60
Indeed, between 1945 and the early 1990s, at least in the ILC’s view, the scope of CAH broadened and state involvement was abandoned as an element of CAH. The Commission argued instead that CAH require the instigation or direction of the underlying acts by either a state or a non-state group or organization. This progressive development of the law corresponds with changes in many societies since 1945, in which not only states but also non-state entities commit atrocities. The importance of including crimes committed under the direction or at the instigation of non-state actors was paramount in the prosecutions of different actors in the former Yugoslavia and Sierra Leone in the 1990s.
8.4 Crimes against Humanity by Non-State Armed Groups in the Jurisprudence of the Rwanda, Former Yugoslavia, and Sierra Leone Tribunals
The jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL) has contributed tremendously to the process of clarifying the definition of CAH under international law.61 While most crimes adjudicated by the ICTR were committed pursuant to a state policy, the ICTY and the SCSL had to decide cases in which members of non-state groups were charged with CAH. In these cases, the question of ‘the entity behind CAH’ became pertinent.
The ICTR Statute is mute on the question of whether CAH must be instigated or directed by a state or non-state entity. Article 3 of the ICTR Statute defines CAH as specific acts ‘when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’. The question of state involvement in the large-scale crimes committed between April and July 1994 in Rwanda is, however, uncontroversial. Early on, the ICTR found an anti-Tutsi policy designed by the Rwandan state pursuant to which crimes were committed.62 Yet, in the ICTR’s view, CAH would not necessarily require state involvement. For example, in the Akayesu case, the Tribunal argued that CAH require a policy ‘involving substantial public or private resources’ and that ‘[t]here was no requirement that this policy must be adopted formally as the policy of a state’.63 Likewise, in subsequent case law, the ICTR emphasized that while customary international law requires, arguably, a state policy behind CAH, state involvement is not required under the ICTR statute and ‘the Tribunal’s jurisdiction covers both State and non-State actors’.64 Accordingly, in the Kayishema and Ruzindana case, the Tribunal held:
As Prefect, Kayishema was a State actor. As a businessman Ruzindana was a non-State actor. To have jurisdiction over either of the accused, the Chamber must be satisfied that their actions were instigated or directed by a Government or by any organisation or group.65
As a result, in accordance with the ILC’s view, the ICTR did not restrict CAH to crimes committed pursuant to a state policy, but stated that non-state organizations or groups could be entities able to instigate or direct CAH under its statute as well as under customary international law.66
8.4.2 CAH committed by non-state armed groups in ICTY jurisprudence
Like the ICTR Statute, the ICTY Statute does not specify whether CAH require involvement of a state or non-state entity.67 Still, the Tribunal had to adjudicate crimes committed at the instigation or under the direction of states and non-state (p.243) entities. In the Yugoslavia context, the nature of the non-state entities behind alleged crimes varied. On the one hand, the Tribunal heard cases against members of entities exercising quasi-governmental powers, namely groups governing so-called ‘Serb Autonomous Regions’ proclaimed after the disintegration of the Federal Socialist Republic of Yugoslavia.68 On the other hand, at a later stage, the Tribunal also adjudicated cases against members of the Kosovo Liberation Army (KLA). The KLA did not consist of dissident armed forces and was not the effective territorial authority, but was characterized ‘as a guerrilla force engaged in limited combat with superior, conventional military forces’.69 Early on, the Tribunal held that although CAH ‘need not be related to a policy established at State level, in the conventional sense of the term, they cannot be the work of isolated individuals alone’.70 In the ICTY’s view, CAH require some sort of planning by a collective entity behind the crimes to distinguish them from more random and isolated crimes.71 Sections 184.108.40.206 ‘The dismissal of a state-involvement criterion in the Tadić case’ and 220.127.116.11 ‘Characteristics of entities behind CAH as found in the Limaj et al case’ examine which kind of armed groups the ICTY considered as entities behind CAH—first in the Tadić case, and then in the Limaj et al case.
18.104.22.168 The dismissal of a state-involvement criterion in the Tadić case
The ICTY’s initially rather swift finding that CAH require a policy behind the crimes but that such policy does not need to be a state policy was further developed in the Tadić case. Examining ‘the nature of the entity behind the policy’, a Trial Chamber argued that ‘the traditional conception was, in fact, not only that a policy must be present but that the policy must be that of a State, as it was the case in Nazi Germany’.72 Recognizing that customary international law can change over time, however, the Chamber held:
[T]he law in relation to crimes against humanity has developed to take into account forces which, although not those of the legitimate government, have de facto control over, or are able to move freely within, defined territory.73
Accordingly, in the Chamber’s view, CAH did not require involvement of a de jure state, but a policy distinguishing CAH from ‘isolated, random acts of individuals’74 (p.244) could also be that of a non-state entity. To support this finding, the Chamber mentioned that the prosecution argued—without objection from the defence—that CAH cannot only be committed on behalf of entities exercising control over territory but also ‘by a terrorist group or organization’.75
Accordingly, in the Tadić case, the Trial Chamber suggested different types of non-state groups as the possible ‘entity behind the policy’: first, groups exercising de facto control over territory; second, groups able to move freely within territory; and third, possibly terrorist groups or other organizations. The first type of non-state entity seemingly refers to groups exercising de facto control over territory in a state-like manner. In Ambos’s view, it encompasses entities exercising ‘the highest de facto authority in the given territory [which] can—within limits—control all other holders of power and all individuals’.76 For him, ‘it also seems to be clear that it must be in a position akin, or at least similar to, a state; that is, it must possess similar capacities of organization and force’.77 Indeed, this could be what the chamber had in mind when examining crimes committed on behalf of an entity governing a ‘Serb Autonomous Region’. However, equalling ‘de facto control over territory’ with being ‘state-like’ is a narrow interpretation, which can be challenged: in practice, de facto control over territory can hardly be equated with having a state-like degree of institutional organization.78 Contrary to a possibly high threshold of de facto territorial control, the ability of a group to move freely within a defined territory can be fulfilled by various non-state entities—even if they do not have sufficient capacity to control territory, or to act in a state-like manner. Effectively, this requirement is dependent on the strength of the territorial authority, meaning that a group with relatively low capacities can be able to move freely in a territory if the territorial authority is unable to intervene. Reference to terrorist groups or other organizations is even broader and may include a variety of non-state groups.
In sum, the ICTY held that under customary international law, CAH are not restricted to state crimes. The ICTY’s Tadić judgment could be read as following the ILC’s inclusion of ‘any organization or group’ as the possible entity behind CAH. Yet, as Kress points out, the ‘ratio decidendi of the 1997 Tadić decision is the assimilation of organizations with territorial control to states for the purpose of the policy requirement of crimes against humanity’.79 Indeed, the Chamber only explicitly pronounced itself on groups exercising de facto control over territory. At the same (p.245) time, by means of obiter dictum, the Tribunal left ‘open the possibility that other organizations might meet the test as well’.80 In a number of subsequent cases, the ICTY applied a test under which it required the entity behind CAH to exercise territorial control. For example, in the Kupreškić et al case, the tribunal found that a policy behind CAH can be state-sponsored, part of a governmental policy, or part of a policy by ‘an entity holding de facto authority over a territory’.81 The issue of what minimum requirements an entity behind CAH must fulfil and how to interpret the territorial control requirement came up again in the Limaj et al case with regard to crimes allegedly committed by members of the KLA.
22.214.171.124 Characteristics of entities behind CAH as found in the Limaj et al case
Contrary to earlier ICTY cases in which the Tribunal adjudicated crimes committed with the involvement of states or state-like entities, with regard to the Kosovo conflict the ICTY was confronted with alleged crimes committed with the involvement of a non-state entity that did not resemble a state. The KLA was an armed resistance group with limited internal organization, which had long operated underground and was only beginning to mount an open insurgency.82 While the ICTY considered the KLA sufficiently organized to be a party to a non-international armed conflict, it stressed that the conflict was ‘fluid in nature’, with territorial control changing between the parties.83 It characterized the KLA as ‘a non-state actor with extremely limited resources, personnel and organization’.84 The accused were charged with committing CAH in the form of ill-treatment, torture, and murder allegedly of detainees.85
While in the Tadić case the Tribunal examined ‘the nature of the entity behind the policy’, the ICTY Appeals Chamber had dismissed the policy requirement for CAH in the Kunarac case.86 Thus, in the Limaj et al case, the Chamber examined the question of the entity behind CAH as part of its discussion of whether an ‘attack on a civilian population’ existed.87 At the outset, the Tribunal reiterated its previous jurisprudence by stressing that the contextual element of CAH serves to ‘exclude single, random or limited acts from the domain of crimes against humanity’,88 meaning crimes that are ‘merely the workings of individuals acting pursuant to haphazard or individual design’.89 After finding that the KLA’s crimes were not widespread, the Chamber examined whether there was a policy behind them that could indicate a systematic character.90 The Chamber argued—referring (p.246) to the Tadić case—that ‘an organisational unit must demonstrate in order to have sufficient competence to formulate a policy [ … ] a level of de facto control over territory’.91 Considering the facts of the case, the tribunal concluded that the KLA’s ability to erect roadblocks, to develop civilian structures, and examples of command and control in its ranks indicated ‘increasing control over, and the ability to move within, much of Kosovo’.92
On the one hand, the Chamber reiterated the ‘de facto control over territory’ standard. On the other hand, in the Limaj et al case, this finding was significantly restricted in scope: first, the tribunal did not require territorial control as a general condition for the ability of non-state entities to commit CAH. Neither did it require such control for widespread crimes. Territorial control was only found to be a requirement for the ‘competence to formulate a policy’; and this policy was considered indicative of but not legally required for systematic attacks against a civilian population. Therefore, the Chamber’s reasoning suggests that systematic crimes without a policy, or widespread crimes, could amount to CAH even if the entity behind the crimes did not control any territory. Second, the Chamber did not seem to equate ‘de facto control over territory’ with being state-like. It considered the criterion met by proving that the KLA had some degree of de facto territorial control in a situation in which military engagements were fluid in nature, with ‘reversals of territorial acquisitions’.93 The KLA did not have state-like infrastructure at its disposal.
In addition, the tribunal’s reasoning for defining de facto territorial control as a requirement for ‘sufficient competence to formulate a policy’ can be questioned. Why should de facto territorial control be necessary in order to formulate a policy behind CAH, which serves primarily to exclude individual ordinary crimes from the scope of CAH?94 Likewise, to what extent are examples of command and control in the ranks of a group proof of territorial control? Rather, de facto control over, or the ability to move freely within, territory might enable a group to execute a policy and launch an attack reaching the required scale and organization of CAH. Command and control in the group’s ranks indicate the group’s ability to enforce a policy. Thus, territorial control and command-and-control structures appear to be attributes that might enable an entity to implement a large-scale or systematic attack, but it is unclear why territorial control should be a strict requirement for a group’s ability to formulate a policy behind CAH.95
(p.247) In fact, the Chamber’s line of argument could also suggest a different assessment of what kind of non-state groups may constitute an entity behind CAH. In order to prove an attack against a civilian population, the Chamber argued:
Due to structural factors and organisational and military capabilities, an ‘attack directed against a civilian population’ will most often be found to have occurred at the behest of a State. Being the locus of organised authority within a given territory, able to mobilise and direct military and civilian power, a sovereign State by its very nature possesses the attributes that permit it to organise and deliver an attack against a civilian population; it is States which can most easily and efficiently marshal the resources to launch an attack against a civilian population on a ‘widespread’ scale, or upon a ‘systematic’ basis.96
In this statement, the Chamber emphasized the state’s factual capabilities and not its legal powers as a territorial sovereign as key characteristics enabling the commission of CAH. This focus on an entity’s capabilities is further supported by the Chamber’s argument that criminal acts require ‘a level of organisational coherence and support of a magnitude sufficient to elevate them into the realm of crimes against humanity’.97
If the Chamber’s above portrayal of state capacities is considered crucial to an entity’s ability to commit CAH, the following elements can be deduced: the entity should be the ‘organised authority within a given territory’ with sufficient ‘organisational and military capabilities’ in order to ‘mobilise and direct military and civilian power’ and to ‘marshal the resources’ to launch a widespread or systematic attack against a civilian population.98 These criteria can be summarized as follows: first, the group must have sufficient capacity to organize a widespread or systematic attack; and second, it must have the power—arguably, including territorial control—and material resources to execute it.99 As a result, if a non-state entity is able to acquire enough resources to orchestrate crimes of sufficient scale and establishes an internal structure or degree of organization that enables it to implement a pattern of crimes going beyond isolated acts of individuals, this group seems sufficiently organized to be the entity behind CAH.
To sum up, while the ICTY repeatedly reiterated that CAH may not be committed by individuals pursuant to ‘haphazard or individual design’, it remains unclear from its case law under which conditions non-state entities can qualify as an (p.248) entity behind CAH. As long as the Tribunal considered the existence of a policy to be a material element of CAH, arguably it determined de facto territorial control to be a prerequisite for formulating a policy and therefore for committing CAH. However, in later case law, the Tribunal considered the policy element, and seemingly also the territorial control requirement, to be merely indicative of the systematic character of the crime. At least in the ICTY’s view, no policy element and no territorial control by the entity behind the crime would be required for widespread crimes. Thus, under ICTY jurisprudence, CAH cannot be limited to crimes committed with the involvement of entities exercising de facto territorial control. An alternative approach could be to focus on the entity’s capacity to organize and commit crimes with sufficient organizational coherence and magnitude to amount to an attack against a civilian population. This approach emphasizes the entity’s de facto capabilities that are immediately relevant for the commission of CAH.
8.4.3 The capacity-oriented approach in the SCSL’s jurisprudence
The question of which entities can commit CAH also emerged in cases before the SCSL.100 For example, in the Brima et al case, the accused were sergeants or staff sergeants of the Armed Forces Revolutionary Council (AFRC), a non-state armed group consisting of former members of Sierra Leone’s armed forces and party to a non-international armed conflict in Sierra Leone.101 During the indictment period, AFRC forces were first part of a military government, meaning that at that time their crimes were ‘state-sponsored’.102 During this period, AFRC and allied Revolutionary United Front forces controlled most of the country.103 This changed after AFRC forces came under military attack by multinational forces, had to withdraw from Sierra Leone’s capital Freetown, and lost governmental power. From there on, the AFRC was a non-state entity and ‘faced with the challenge of more limited resources and poorer organisational capacity’.104 Following withdrawal from Freetown, AFRC troops moved through Sierra Leone but no longer resembled a state army. According to the SCSL, their ‘organization and control remained minimal’.105 Without elaborating much on whether CAH require the involvement of specific kinds of entities, the Court found crimes committed during this period beyond reasonable doubt to be widespread and systematic.106 The SCSL established that even at that time the AFRC was able to implement policies or plans to attack civilians.107
(p.249) Despite the lack of detailed discussion, the SCSL’s conclusions suggest that CAH are not state crimes but can be committed with the involvement of non-state entities. The accused in the pertinent cases were members of armed groups party to a prolonged non-international armed conflict. Owing to the complete breakdown of law and order in many parts of the country, they were able to move freely within, and often controlled, large parts of the territory.108 Yet, the SCSL did not explicitly require control over territory or state-like features to find an armed group capable of committing a widespread or systematic attack against a civilian population. In the Brima et al case, the SCSL held that while ‘limited resources’ and ‘poorer organisational capacity’ may lead to ‘practical difficulties’ in proving the widespread or systematic nature of an attack, it does not preclude it.109 For the SCSL, the decisive requirements were that the armed groups had the capacity to commit widespread or systematic crimes, and that the attacks were directed against a civilian population.110 Thus, the SCSL followed a capacity-oriented approach, which was already hinted at in ICTY jurisprudence.
(1) A quote of the original note is found in Schwelb, ‘Crimes against Humanity’ (1946) 23 British Year Book of International Law 181. See also Cassese, Cassese’s International Criminal Law (3rd edn, OUP 2013) 84–85. The idea of ‘laws of humanity’ dates back to the St Petersburg Declaration of 1868 or earlier dates, and was first codified in the preamble to the 1907 Hague Convention Respecting the Laws and Customs of War on Land. See Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2nd edn, CH Beck 2008) 166; Paust, Bassiouni, and Scharf, International Criminal Law: Cases and Materials (4th edn, Carolina Academic Press 2012) 703; Schwelb, ‘Crimes against Humanity’ (above) 180.
(2) Article 230 Treaty of Sevres, concluded on 10 August 2020 between Allied Powers and the Ottoman Empire.
(4) Articles 227 and 228 of the Treaty of Versailles (concluded on 28 June 1919 between Allied Powers and Germany) included ‘supreme offence against international morality and the sanctity of treaties’ and ‘acts in violation of the laws and customs of war’. The treaty did not include reference to violations of the laws of humanity as recommended by the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties.
(6) For comprehensive but more general accounts of the history of CAH, see, eg, Bassiouni, Crimes against Humanity (n 3); International Law Commission, First Report on Crimes against Humanity, A/CN.4/680, paras 28–39; Werle and Jessberger, Principles of International Criminal Law (OUP 2014) 328–32; Ambos, Treatise on International Criminal Law (OUP 2013); Cassese, Cassese’s International Criminal Law (n 1) 84–90.
(7) A similar definition is found in article 5 of the International Military Tribunal for the Far East Charter. Yet, charges of crimes against humanity were not levelled at any suspect before the Tokyo Tribunal.
(8) Justice Jackson, who was involved in the negotiations of the Nuremberg Charter on behalf of the President of the United States of America, made this desire clear when he reported, ‘Our case against the major defendants is concerned with the Nazi master plan, not with individual barbarities and perversions which occurred independently of any central plan.’ Justice Jackson, Report to the President on Atrocities and War Crimes (1945), available at <http://avalon.law.yale.edu/imt/imt_jack01.asp> (accessed 25 November 2017).
(9) Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (OUP 2012) 128
(10) While the semicolon in the English text suggests that the nexus to other crimes only applies to persecution-type crimes, it has been convincingly argued that this was not how the drafting states intended to define it. The understanding that the nexus to other crimes applied to all crimes defined under article 6(c) was explicitly clarified in the Berlin Protocol of 6 October 1945. For detailed discussion, see Schwelb, ‘Crimes against Humanity’ (n 1) 192–95; Bassiouni, Crimes against Humanity (n 3) 121–26. See also International Military Tribunal (Nuremberg) Judgment, 1 October 1946, 468.
(11) Schabas, ‘State Policy as an Element of International Crimes’ (2007) 98 Journal of Criminal Law and Criminology 961
(12) Bassiouni, Crimes against Humanityn 3Ambos and Wirth, ‘The Current Law of Crimes against Humanity: An Analysis of UNTAET Regulation 152000’ (2002) 13 Criminal Law Forum 1–90, 5The United States of America v Josef Altstötter, et al (Justice case), Judgment, 4 December 1947,
(13) The clarification that the international criminalization of CAH is independent from the crime’s legality under domestic law does not add any substantive element to the definition of CAH either.
(14) Sadat, ‘The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again’ (1994) 32 Columbia Journal of Transnational Law 309–10
(15) International Military Tribunal (Nuremberg), Judgement, 1 October 1947, 468.
(16) Article 2(1)(c) CCL10 defined CAH as: ‘Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.’ Contrary to article 6(c) of the Nuremberg Charter, the definition of CAH in CCL10 did not require a nexus to other crimes in the definition of CAH. Nonetheless, as the Nuremberg Charter was an integral part of the CCL10, most jurisprudence based on CCL10 maintained the focus on crimes committed with a nexus to either war crimes or crimes against peace (see, eg, The United States of America v Carl Krauch, et al (IG Farben case), United States Military Tribunal, Judgment, 30 July 1948). For an exception, see The United States of America v Otto Ohlendorf, et al (Einsatzgruppen case), United States Military Tribunal, Judgment, 10 April 1948. Moreover, analysing German jurisprudence based on CCL10, Ambos and Wirth argue that German tribunals did not require a war nexus but some link to an authority in order to distinguish CAH from ordinary crimes. Ambos and Wirth, ‘The Current Law of Crimes against Humanity’ (n 12) 6.
(19) The United States of America v Friedrich Flick et al (Flick case), United States Military Tribunal, Judgment, 22 December 1947, 1193; The United States of America v Carl Krauch et al (IG Farben case) (n 16) 1166.
(23) Paust, ‘The International Criminal Court does not have Complete Jurisdiction over Customary Crimes against Humanity and War Crimes’ (2010) 43 John Marshall Law Review 686–87
(24) Commission des Crimes de Guerre des Nations Unies, History of the United Nations War Crimes Commission and the Development of the Laws of War (His Majesty’s Stationery Office 1948) 179
(25) State action could be read into the reference to ‘authoritative’ mass action. However, being ‘authoritative’ was not a strict criterion.
(26) United Nations General Assembly (UNGA), Formulation of the Principle Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, 21 November 1947, A/Res/177(II).
(27) International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal (United Nations 1950)
(28) International Law Commission, Draft Code of Offences against the Peace and Security of Mankind (United Nations 1951)
(29) UNGA, Draft Code of Offences against the Peace and Security of Mankind, 4 December 1954, A/Res/897(IX), article 2(11).
(30) Johnson, ‘The Draft Code of Offences against the Peace and Security of Mankind’ (1955) 4 International and Comparative Law Quarterly 465
(31) UNGA, 4 December 1954, A/Res/897(IX) (n 29). The ILC was only asked to resume its work on a draft code in 1981, see UNGA, Draft Code of Offences against the Peace and Security of Mankind, 10 December 1981, A/Res/36/774.
(32) International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind with Commentaries (United Nations 1991)
(34) However, the commentary admits that states, ‘in view of their official position, have far-reaching factual opportunity to commit the crimes covered by the draft article’. International Law Commission, Draft Code (n 32) para 5 on article 21.
(36) This point was emphasized by the ILC in its commentary on the 1996 Draft Articles. See International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind (with Commentary) (United Nations 1996) para 5 on article 18. See also Ambos, Treatise on International Criminal Law (n 6) 53.
(37) Bassiouni, Crimes against Humanityn 3Tomuschat, ‘Crimes against the Peace and the Security of Mankind and the Recalcitrant Third State’ in Dinstein and International Legal Colloquium on War (eds), War Crimes in International Law (M Nijhoff 1996) 49–50Schabas, Unimaginable Atrocitiesn 9
(38) Tadić, Judgment, 7 May 1997, Trial Chamber, IT-94-1-T, ICTY, para 665.
(40) As Jalloh argued, in the ILC’s view ‘the hallmarks of such offenses lie in their widespread or systematic nature’ and not in the nature of the perpetrators. Jalloh, ‘What Makes Crimes against Humanity Crimes against Humanity?’ (2013) 28 American University International Law Review 405.
(41) This argument is further developed in Section 9.2 ‘Different Organizational Capacities as Suggested in the Elements of Crimes and in ICC Jurisprudence’ below.
(42) The ILC’s mandate is to ‘initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification’. UNGA, Establishment of an International Law Commission, GA/Res/174(II), 21 November 1947.
(43) It must be noted, however, that the members of the ILC serve on the commission in a private capacity. International Law Commission, Observations of the International Law Commission on the Review of the Multilateral Treaty-Making Process, Submitted Pursuant to General Assembly Resolution 32/48 (United Nations 1979). In this respect, the ILC’s reports or opinions cannot be regarded as expressing an opinio juris.
(44) See, eg, Tadić, IT-94-1-T (n 38) paras 647–48; Sivakumar v Canada (Minister of Employment and Immigration), Canadian Federal Court, Judgment, 4 November 1993; Situation in the Rebublic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC, 30 March 2010, ICC-01/09, para 91.
(45) The limited amount of national case law from the period is discussed in Section 8.3 ‘The Need for State Involvement as Found in National Jurisprudence’.
(46) For a more detailed discussion of the case, see Paust, Bassiouni, and Scharf, International Criminal Law: Cases and Materials (n 1) 713–18.
(47) Public Prosecutor v Menten, District Court of Amsterdam, Judgment, 14 December 1977, International Law Reports, Vol 75, 332.
(48) Public Prosecutor v Menten, Dutch Supreme Court, Judgment, 13 January 1981, International Law Reports, Vol 75, 361.
(49) ibid, at 362–63.
(50) This law defined CAH as follows: ‘ “crime against humanity” means murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations’.
(51) Regina v Finta, Ontario Court of Appeal, Canada, Judgment, 24 March 1994, Supreme Court Reports, 814.
(52) ibid, at 823.
(53) Fédération Nationale des Déportés et Internés Résistantes et Patriotes and Others v Barbie, French Court de Cassation, Judgment, 20 December 1985, International Law Reports, Vol 78, 137 (emphasis added).
(54) While in the Touvier case a lower court held that Touvier, supporting the Vichy regime in France, did not act in the name of a state practising a hegemonic political ideology, the French Court de Cassation found that Touvier acted in the interest of the Nazi State. See Touvier, French Court de Cassation, Judgment, 27 November 1992, International Law Reports, Vol 100, 341.
(55) Mettraux, ‘The Definition of Crimes against Humanity and the Question of a “Policy” Element’ in Sadat (ed), Forging a Convention for Crimes against Humanity (CUP 2011) 166
(57) This is the case, even though in 1945 CAH were restricted to crimes linked to war crimes or crimes against peace. They did not include crimes without such nexus.
(60) Quote found in Paust, Bassiouni, and Scharf, International Criminal Law: Cases and Materials (n 1) 722.
(61) Mettraux, ‘Crimes against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda’ (2002) 43 Harvard International Law Journal 237–316Ambos and Wirth, ‘The Current Law of Crimes against Humanity’n 12Bassiouni, Crimes against Humanityn 3
(62) See Akayesu, Judgment, 2 September 1998, Trial Chamber, ICTR-96-4-T, ICTR, paras 93–111.
(63) ibid, at para 580.
(64) Kayishema et al, Judgment, 21 May 1999, Trial Chamber, ICTR-95-1-T, ICTR, para 126.
(65) ibid (emphasis added).
(66) In both judgments, the Tribunals referred explicitly to the ILC Draft Codes. See Akayesu, ICTR-96-4-T (n 62) n 145; Kayishema et al, ICTR-95-1-T (n 64) para 125. The Appeals Chamber of the two ad hoc tribunals explained with regard to the ICTY Statute that unless it is clear from the text of the Statute, its provisions ‘must be interpreted in light of, and in conformity with, customary international law’. Tadić, IT-94-1-A (n 38) para 287. The same finding applies to the interpretation of the ICTR Statute.
(67) Article 5 ICTY Statute defines CAH as certain crimes ‘when committed in armed conflict, whether international or internal in character, and directed against any civilian population’.
(69) Limaj et al, Judgment, 30 November 2005, Trial Chamber, IT-03-66-T, ICTY, para 195.
(70) Nikolić, Review of Indictment Pursuant to Rule 61 of the Rules of Proceedure and Evidence, 20 October 1993, Trial Chamber, IT-94-2-R61, ICTY, para 26.
(71) Robinson, ‘Crimes against Humanity: A Better Policy on “Policy” ’ in The Law and Practice of the International Criminal Court (OUP 2014) 705–31, 708Tadić
(74) ibid, at para 653.
(75) ibid, at para 654. The Tribunal found that this assertion reflected recent statements on CAH, and cited, inter alia, the ILC Draft Code of Crimes of 1991 (n 32) and 1996 (n 36), as well as a case before a United States Court of Appeal. Tadić, IT-94-1-T (n 38), at para 655.
(78) See discussion on the Limaj case below. Practice examples of armed groups exercising control over territory without being state-like are discussed in Section 6.4 ‘Human Rights Obligations of Groups Exercising De Facto Control over Territory and Population’.
(79) Kress, ‘On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision’ (2010) 23 Leiden Journal of International Law 869.
(80) Robinson, ‘Defining Crimes against Humanity at the Rome Conference’ (1999) 93 American Journal of International Law 43–57, 50Kress, ‘On the Outer Limits of Crimes against Humanity’n 79
(81) Kupreškić et al, Judgment, 14 January 2000, Trial Chamber, IT-95-16-T, ICTY, para 552.
(83) ibid, at para 195.
(84) ibid, at para 191.
(85) ibid, at para 229.
(86) Kunarac et al, IT-96-23& IT-96-23/1-A, para 98.
(88) ibid, at para 194.
(89) ibid, at para 212.
(90) The Chamber underlined that a policy is ‘most often’ found where there is ‘significant State action and where formal channels of command can be discerned’. ibid.
(91) ibid, at para 213.
(92) See ibid, at para 214.
(94) ibid, at para 212. Note that a policy was not regarded as a legal element of CAH but as ‘an important indication that the acts in question are not merely the workings of individuals acting pursuant to haphazard or individual design, but instead have a level of organisational coherence and support of a magnitude sufficient to elevate them into the realm of crimes against humanity’.
(95) Concretely, from the Chamber’s reasoning it is unclear why territorial control would be a prerequisite for the KLA’s policy to ‘target those individuals thought to be collaborating with the Serbian forces’. ibid, at para 216.
(96) ibid, at para 191 (emphasis added). Cassese notes with regard to this statement that it is ‘acceptable to the extent that it is intended merely to reflect what happens in practice, not as the formulation of a legal requirement (plainly, a widespread or systematic attack on the population can be carried out by non-state groups or paramilitary units with the acquiescence of state authorities or in circumstances where such authorities lack the effective power to put an end to such attacks)’. Cassese, International Criminal Law (n 5) 101.
(98) ibid, at para 191.
(99) This categorization serves the aim of structuring the requirements for groups to commit CAH. It is not strict, meaning that it should not be understood in a way that the widespread commission of a crime is not also related to the organized nature of the perpetrators; or, that the systematic commission of CAH does not also depend on the capacity and the resources of the perpetrators (see Blaškić, Judgment, 3 March 2000, IT-95-14-T, ICTY, para 203).
(100) The definition of CAH in the SCSL Statute did not indicate whether CAH require involvement of a state or non-state entity.
(101) See Brima et al, SCSL-04-16-T, paras 249–53. See ibid.
(102) ibid, at para 225.
(104) ibid, at para 266.
(105) ibid, at paras 176–77.
(106) ibid, at para 224.
(107) Two examples of such policies were ‘Operation Pay Yourself’ and ‘Operation Spare No Soul’, both brutally attacking the civilian population. ibid, at para 238.
(108) ibid, at para 237.While the Revolutionary United Front (RUF) and the AFRC controlled large parts of the territory, the activities of the so-called ‘Civil Defence Forces’ were more restricted to territory under their control.
(110) ibid, at paras 210–26. This strict focus on a disjunctive widespread or systematic test is also found in the Fofana and Condewa case concerning another non-state armed group. In this case, the SCSL satisfied itself that the crimes committed were widespread and so did not investigate any other elements regarding the nature of the group behind the crimes. However, in this case, no substantial investigation was required because the alleged crimes were not directed against a civilian population and therefore were not CAH. See Fofana and Kondewa Judgment, 9 October 2007, Trial Chamber, SCSL-04-14-T, SCSL, paras 692–93; Taylor, Judgment, 18 May 2012, SCSL-01-01-T, SCSL, para 558.