Crimes Against Humanity: Directing
Attacks Against A Civilian Population
In international criminal law, to sustain a charge of crimes against humanity, the
Prosecution must prove, among other elements, that the perpetrator was involved in an
attack directed against a civilian population. In
Prosecutor v Fofana and Kondewa
Special Court for Sierra Leone found that the Prosecution failed to prove, beyond a
reasonable doubt, that the civilian population was the ‘primary object’ of the attack and
acquitted the accused on the counts of murder and other inhumane acts as crimes against
humanity. The Appeals Chamber accepted this view. However, it reversed Trial Chamber I
on the ground that the Prosecution evidence did establish that the civilian population had
been the primary, as opposed to incidental, target of the attack. The author suggests that
this is an error resulting from the undue jurisprudential pre-occupation with the meaning
of ‘primary’ in relation to the notion of attack against a civilian population. Instead, the
inquiry should focus on whether the civilian population was ‘intentionally’ targeted in the
attack, notwithstanding that it may not have been the primary object of the attack. He
submits that this approach would be consistent with the classic theory of
Of the Bars of Ontario and Nigeria (also called to the Bar of British Columbia). Head of Chambers,
International Criminal Tribunal for Rwanda; formerly Senior Prosecution Appeals Counsel, Special
Court for Sierra Leone; formerly Senior Legal Officer, International Criminal Tribunal for Rwanda;
formerly Senior Trial Attorney, International Criminal Tribunal for Rwanda.
©2008. The Africa Law Institute. All rights reserved. Cite as: 2
Afr. J. Legal Stud.
2 (2005) 118-129.
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