Contextual elements

What are the contextual elements of crimes against humanity? 

  • The conduct (act) was committed (III) as part of a (II) widespread or systematic (I) attack directed against civilian population.  
  • (IV) The perpetrator knew that the conduct was part of or intended the conduct to be a part of a widespread or systematic attack against a civilian population.

While the Rome Statute defines an "attack directed against a civilian population" as "a course of conduct involving the multiple commission of of acts referred to in [Art.7] paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such an attack,' the requirement of the existance of a State or organisational policy is not included in the Ukrainian Criminal Code definition adopted in October 2024. 

These elements must be established and are what separate crimes against humanity from ordinary crimes. 

Contextual elements broken down:

I. There was an attack directed against civilian population.

  • Attack must include multiple commissions of acts amounting to CAH.
  • Random and isolated acts are insufficient. 
  • Civilians, i.e. non-combatants, must be the primary target of the attack. 

II. The attack was widespread or systematic.

  • Important: it is the 'attack' that must be proven to be widespread or systematic, and not individual underlying acts.
  • 'In other words, a single act of rape or murder may be a crime against humanity if it was committed as part of a widespread and systematic attack.' (Benchbook, para. 1163) 
  • Different types of underlying acts can together constitute an 'attack', e.g. a pattern of killings, sexual violence crimes, and forcible transfers. 

Widespread: not exclusively quantitative or geographical criteria, consider number of criminal acts, logistics and resources involved in the attack, the number of victims, temporal and geographical scope, alteration of the composition of the overall population, or the cumulative effect of the attack on the population (p.435).

Systematic: evidence may include an organized plan, existence of the pattern of criminal conduct, temporally and/or geographically repeated and coordinated attacks, involvement of authorities in the attack, adoption and the institutionalisation of discriminatory procedures against a civilian population, and the means and methods used during the attack.

III. The conduct was committed as part of the attack. 

  • This can be assessed based on whether the conduct is similar to other acts committed during that attack.2332 Consideration should be given to the characteristics, aims, nature and consequences of the acts concerned.2333 In other words, the act in question must not be isolated criminal conduct that “clearly differ[s]” from other constituent acts of the attack." (para. 1172)

IV. The perpetrator knew that the conduct was or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

  • Sufficient that the perpetrator knowingly participated in the attack; no need for the perpetrator to know all the details of the attack. Motive is irrelevant. (para.1174)

 

Read more:

- Benchbook, paras. 1155 - 1174.

- ICC Elements of Crimes, Article 7.

- International Criminal Law & Practice Training Materials, Crimes Against Humanity. 

- ULAG, Crimes against humanity: prospects for qualifying the consequences of the war in Ukraine (2025)