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ePaper created 2015-11-10, 17:27:36 | version 1.33.00
REDACTED Page 24 of 190 Article 7(2)(a) of the Statute further indicates that: '[a]ttack 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. These encompass five contextual elements for crimes against humanity: (i) an attack directed against any civilian population, (ii) a State or organizational policy, (iii) the widespread or systematic nature of the attack, (iv) a nexus between the individual act and the attack, and (v) knowledge of the attack. In light of the nature of the current stage of the request to open a preliminary examination, the mental element under article 30(3) of the Statute will be addressed by outlining the role of the individuals who are clearly implicated at the highest level of the GoV. a)An attack directed against any civilian population The attack consists of a course of conduct involving the multiple commission of acts referred to in article 7(1). The term is not restricted to a military attack, but refers to a campaign or operation carried out against the civilian population. The term “directed against any civilian population” requires showing that the attacks were directed against the civilian population as a whole and not against randomly selected individuals. It is not necessary for the potential civilian victims of a crime under article 7 of the Statute to constitute a group distinguished by nationality, ethnicity or other distinguishing features. Such a distinction is only necessary for a finding of persecution pursuant to article 7(1)(h).46 46 In the Katanga and Ngudjolo case, Pre-Trial Chamber I observed “as opposed to war crimes which are provided for in article 8 of the Statute, the term ‘civilian population’ within the meaning of article 7 of the Statute affords rights and protections to ‘any civilian population’ regardless of their nationality, ethnicity or other distinguishing feature” PRE-TRIAL CHAMBER I. (2008) ICC-01/04-01/07-717 (Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui). International Criminal Court. [Online] 30 September Available from: http://www.icc-cpi.int/iccdocs/doc/doc571253.pdf [Accessed 27 October, 2015] para.399. In the Bemba case, Pre-Trial Chamber II similarly observed that “the potential civilian victims under article 7 of the Statute could be of any nationality, ethnicity or other distinguishing features”; PRE-TRIAL CHAMBER II. (2009) ICC-01/05-01/08-424 (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo). International Criminal Court. [Online] 15 June. Available from: http://www.icc-cpi.int/iccdocs/doc/doc699541.pdf [Accessed 27 October, 2015] para.76. However, in the Situation in Kenya, Pre-Trial Chamber II ruled “the potential civilian victims of a crime under article 7 of the Statute are groups distinguished by nationality, ethnicity or other distinguishing features”; PRE-TRIAL CHAMBER II. (2010) ICC-01/09- 19-Corr (Situation in the Republic 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). International Criminal Court. [Online] 31 March. Available from: http://www.icc-cpi.int/iccdocs/doc/doc854562.pdf [Accessed 27 October, 2015] para. 81