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Open Access Crimes Against Humanity: Directing Attacks Against A Civilian Population

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Crimes Against Humanity: Directing Attacks Against A Civilian Population

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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.


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