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ePaper created 2015-11-10, 17:27:36 | version 1.33.00
REDACTED Page 57 of 190 promote or encourage such an attack against a civilian population. The footnote to the paragraph states “a policy, which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action”. Neither the Statute nor the elements of crimes offer any definition of the term “attack” or “state or organisational policy”. In the case The Prosecutor v. Katanga and Ngudjolo Chui, Pre-Trial Chamber I found that this requirement: [...] ensures that the attack, even if carried out over a large geographical area or directed against a large number of victims, must still be thoroughly organised and follow a regular pattern. It must also be conducted in furtherance of a common policy involving public or private resources. Such a policy may be made either by groups of persons who govern a specific territory or by any organisation with the capability to commit a widespread or systematic attack against a civilian population. The policy need not be explicitly defined by the organisational group. Indeed, an attack which is planned, directed or organised - as opposed to spontaneous or isolated acts of violence - will satisfy this criterion.205 In relation to the term “policy”, the criteria used by the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in the case against Tihomir Blaskic, were outlined in the ICTY Trial Chamber decision which held that the plan to commit an attack: [...] need not necessarily be declared expressly or even stated clearly and precisely. It may be surmised from the occurrence of a series of events, inter alia: • The general historical circumstances and the overall political background against which the criminal acts are set; • The establishment and implementation of autonomous political structures at any level of authority in a given territory; • The general content of a political programme, as it appears in the writings and speeches of its authors; • Media propaganda; • The establishment and implementation of autonomous military structures; the mobilisation of armed forces; • Temporally and geographically repeated and co-ordinated military offensives; • Links between the military hierarchy and the political structure and its political programme; 205 PRE-TRIAL CHAMBER I. (2008) ICC-01/04-01/07-717. para.396; See also: PRE-TRIAL CHAMBER II. (2009) ICC-01/05-01/08-424 para. 81; See also: ICTY. Prosecutor v. Tadic, Case No. IT- 94-1-T. Judgement. 7 May, 1997. para. 653; DIXON, R. and HALL, C. K. (2008) in O. Triffterer (ed.). Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article, 2 ed. (Munich etc.: C.H.Beck etc., 2008), p. 236.