f_0015750_13704 - Crimes Against Humanity Directing Attacks...

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Crimes Against Humanity: Directing Attacks Against A Civilian Population Chile Eboe-Osuji * ………………… Abstract 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 , the 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 mens rea in criminal law. 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. The African Journal of Legal Studies (“AJLS”) is a free peer-reviewed and interdisciplinary journal published by The Africa Law Institute (“ALawI”). ALawI’s mission is to engage in policy-oriented research that promotes human rights, good governance, democracy and the rule of law in Africa. The views expressed in the articles and other contributions to the AJLS are those of the authors only, not of our Editorial or Consultative Boards or ALawI. To download or comment on current articles, sign-up for future issues or submit a manuscript, please visit <http://www.africalawinstitute.org/ajls> or e- mail [email protected] AJLS is also available on CIAO Net, HeinOnline, Lexis-Nexis, ProQuest, Quicklaw and Westlaw. The journal welcomes books for review and inquiries from experts wishing to serve on our consultative board. E-mail Charles Chernor Jalloh, Founding Editor-in-Chief, at [email protected] .
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2 Afr. J. Leg. Stud. 2 (2008) 118-129 I. Introduction For a charge of crimes against humanity to succeed, the following five general elements are required to be proved: (i) there must have been an attack; (ii) the
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f_0015750_13704 - Crimes Against Humanity Directing Attacks...

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