1 Crimes adjudicated before the International Criminal Tribunal for Rwanda, in contrast, concerned crimes committed pursuant to or in furtherance of a policy by the Rwandan government. Consequently, jurisprudence of the ICTR will not be examined in this article, even though the ICTR made some relevant statements. See particularly Prosecutor v. Kayishema et al., Judgment, Case No. ICTR-95-1-T, T.CH. II, 21 May 1999, at para. 126.

2 See, for example, Schabas, W., ‘State Policy as an Element of International Crimes’, (2007) 98 Journal of Criminal Law and Criminology 963Google Scholar; M. C. Bassiouni, The Legislative History of the International Criminal Court, (2005); Ambos, K. and Wirth, S., ‘The Current Law of Crimes Against Humanity: An Analysis of UNTAET Regulation 152000’, (2002) 13 Criminal Law Forum 1CrossRefGoogle Scholar.

3 Kress, C., ‘On the Outer Limits of Crimes Against Humanity: The Concept of Organization Within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision’, (2010) 23 LJIL 855CrossRefGoogle Scholar.

4 Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09, Pre-T. Ch. II, 31 March 2010, at para. 90.

5 Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (Judge Kaul, Dissenting Opinion), ICC-01/09, Pre-T. Ch. II, 31 March 2010; D. Robinson, ‘Essence of Crimes against Humanity Raised by Challenges at ICC’, (2011) EJILTalk!, available at <www.ejiltalk.org/essence-of-crimes-against-humanity-raised-by-challenges-at-acc>; Werle, G. and Burghardt, B., ‘Do Crimes Against Humanity Require the Participation of a State or a “State-like” Organization?’, (2012) 10 Journal of International Criminal Justice 1151CrossRefGoogle Scholar; See Kress, supra note 3; Jalloh, C. C., ‘Situation in the Republic of Kenya’, (2011) 105 AJIL 540CrossRefGoogle Scholar; Hansen, T. O., ‘The Policy Requirement in Crimes against Humanity: Lessons from and for the Case of Kenya’, (2011) 43 George Washington International Law Review 1Google Scholar; Sadat, L. N., ‘Crimes Against Humanity in the Modern Age’, (2012) 107 AJIL 334CrossRefGoogle Scholar; Jalloh, C. C., ‘What Makes Crimes Against Humanity Crimes Against Humanity?’, (2013) 28 AJIL 334Google Scholar.

6 See, e.g., Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc. S/25704 (1993), at Art. 5; Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/Res/955 (1994), at Art. 3; Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9; 37 ILM 1002 (1998), at Art 7.

7 Renzo, M., ‘Crimes Against Humanity and the Limits of International Criminal Law’, (2012) 31 Law and Philosophy 443, at 448CrossRefGoogle Scholar.

8 See, e.g., H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, (1994), at 269.

9 Luban, D., ‘A Theory of Crimes Against Humanity’, (2004) 29 Georgetown Law Faculty Publications and Other Works 85, at 109, 117Google Scholar.

10 Vernon, R., ‘What is Crime Against Humanity?’, (2002) 10 Journal of Political Philosophy 231, at 242CrossRefGoogle Scholar.

11 L. May, Crimes Against Humanity: A Normative Account (2005), at 88.

12 Ibid., at 92. This broader approach to potential perpetrators of CAH finds some support in May's normative account of CAH. He finds that for acts to amount to crimes against humanity ‘there is a third option (not properly part of the international harm principle) that can be met if the state whose subject allegedly committed the crime is either too weak to prosecute or ineffectual in doing so.’ Unfortunately, May explicitly excludes this aspect from his analysis and does not elaborate further on it.

13 See Vernon, supra note 10, at 243.

14 See Luban, supra note 9, at 108.

15 See May, supra note 11, at 88.

16 For example, in Sierra Leone members of the Armed Forces Revolutionary Council committed grave crimes with relatively limited resources and with no effective territorial control or state-like infrastructure. Prosecutor v. Brima et al., Judgment, Case No. SCSL-04–16-T, T. Ch., 20 June 2007, at paras. 226, 238.

17 On a study on group behaviour in armed groups see J. J. Frésard, Croix-Rouge, The Roots of Behaviour in War: A Survey of the Literature (2004), at 46–86. See also Kleffner, J. K., ‘The Collective Accountability of Organized Armed Groups for System Crimes’, in Nollkaemper, A. and van der Wilt, H. (eds.), System Criminality in International Law (2009), 238 at 244–5CrossRefGoogle Scholar.

18 See, e.g., United Nations Secretary General, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, (2005), at paras. 633–8.

19 As much as the principle of non-intervention protects victims of state violence against external intervention it will protect victims of non-state violence against external intervention unless the state invites a third party to intervene or the UN Security Council authorizes intervention.

20 See Luban, supra note 9, at 108.

21 Haque, A. A., ‘Group Violence and Group Vengeance: Toward a Retributivist Theory of International Criminal Law’, (2005) 9 Buffalo Criminal Law Review 273, at 303–4CrossRefGoogle Scholar.

22 Ibid., at 304.

23 See also Fisher, K. J., ‘The Distinct Character of International Crime: Theorizing the Domain’, (2009) 8 Contemporary Political Theory 44, at 60CrossRefGoogle Scholar.

24 The United States of America v. Otto Ohlendorf, et al. (Einsatzgruppen Case), United States Military Tribunal, Judgment, 10 April 1948, at 498 (emphasis added).

25 See, e.g., Regina v. Finta, Ontario Court of Appeal, Canada, Judgment, 24 March 1994; Fédération Nationale des Déportés et Internés Résistantes et Patriotes and Others v. Barbie, French Court de Cassation, Judgment, 20 December 1985.

26 International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind (with commentary) (1996), at Art. 18. See also International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind (with commentary) (1991), at Art. 21.

27 Prosecutor v. Tadić, Judgment, Case No. IT-94–1-T, T Ch., 7 May 1997, at para. 654.

28 Ibid.

29 Prosecutor v. Limaj et al., Judgment, Case No. IT-06–66-T, T Ch., 30 November 2005, at paras. 45–52.

30 Ibid., at para. 191.

31 Ibid.

32 This categorization serves the aim of structuring the requirements for groups to commit CAH. It is not strict, and the two criteria reinforce each other. See Prosecutor v. Blaskic, Judgment, Case No. IT-95–14-T, T. Ch., 3 March 2000, at para. 203.

33 Note that in the Limaj case the accused were not found guilty because the alleged attacks were not directed against a civilian population.

34 See Brima, supra note 16, at paras. 225–7.

35 Ibid., at para. 226.

36 Ibid., at paras. 176–7.

37 Two examples of such policies were ‘Operation Pay Yourself’ and ‘Operation Spare No Soul’, both brutally attacking the civilian population. Ibid., at para. 238.

38 Ibid., at paras. 210–26.

39 This term is borrowed from the recent article by Leila Sadat, supra note 5.

40 See, inter alia, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Jugement rendu en application de l’article 74 du Statut, ICC-01/04–01/07, Trial Chamber II, 7 Mars 2014, at para. 1117; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the confirmation of charges, ICC-01/04–01/07, Pre-Trial Ch. I, 30 November 2008, at para. 396; Kenya, supra note 4, at para. 90.

41 For a profound empirical research on cases of CAH before international tribunals including summaries of facts and main findings, see Sadat, supra note 5.

42 Katanga and Ngudjolo Chui, supra note 40, at para. 396; See also Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05–01/08, Pre-Trial Ch. II, 15 June 2009, at para. 81; Situation in the Republic of Cote d’Ivoire, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire, ICC-02/11, T. Ch.III, 3 October 2011, at para. 99.

43 Kenya, supra note 4, at para. 90 (emphasis added). In support of this view, the PTC cites an article by Di Fillipo in which he argues that ‘the associative element, and its inherently aggravating effect, could eventually be satisfied by purely private criminal organizations, thus not finding sufficient reasons for distinguishing the gravity of patterns of conduct directed by “territorial” entities or by private groups, given the latter's acquired capacity to infringe basic human values’. In fn. 84 the PTC also refers to other scholars in support of their interpretation, and in para. 91 to the ILC Draft Code of Crimes of 1991.

44 Kenya (Judge Kaul, Dissenting Opinion), supra note 5, at para. 53.

45 Cf. Blaskic, supra note 32, at para. 198; See also A. Cassese, International Criminal Law (2008), at 100; Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2008), at 168Google Scholar; M. M. deGuzman, ‘The Road from Rome: The Developing Law of Crimes against Humanity’, (2000) 22 Human Rights Quarterly 335, at 339.

46 See Kenya (Judge Kaul, Dissenting Opinion), supra note 5, at para. 66.

47 See Kress, supra note 3, at 873.

48 See Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (2012), at 150.

49 Robinson, supra note 5.

50 Sadat, supra note 5, at 377.

51 A detailed interpretation of Art. 7(2)(a) of the ICC Statute proving that it is not restricted to state-like entities is beyond the scope of this article. Such interpretations are provided, for example, by Werle and Burghardt, supra note 5; or Sadat, supra note 5, and by the ICC in Katanga, supra note 40, at paras. 1,117–23. The aim of this article is to go one step further and provide specific requirements that non-state entities must show to qualify as organizations under article Art. 7(2)(a) of the Rome Statute.

52 A list of indicators which are aimed to restrict organizations under Art. 7(2)(a) of the ICC Statute to state-like entities has been presented by Judge Kaul. It is, however, difficult to see why these suggested criteria necessarily assimilate non-state organizations to states; See Kenya (Judge Kaul, Dissenting Opinion), supra note 5, at para. 51.

53 See Katanga, supra note 40, at para. 1119.

54 These rules of treaty interpretation form part of customary international law. See Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment of 26 February 2007, [2007] ICJ Rep. 43, at 160.

55 See Kenya, supra note 4, at para. 93; See Kenya (Judge Kaul, Dissenting Opinion), supra note 5, at para. 51. Unfortunately, neither of them provided clear indications why a certain criterion was included. For example, instead of providing legal or conceptual arguments, the majority based its list on doctrine and Additional Protocol II to the Geneva Convention. Kress criticized a number of these criteria on the ground that they ‘do not appear to flow naturally from the general “capability criterion”’. Kress, supra note 3, at 857–8.

56 See Katanga, supra note 40, at para. 1,119 (translation by the author).

57 Ibid.

58 Ibid., at para. 1,118.

59 Ibid., at para. 1,120.

60 Ibid., at paras. 1,119–20; The Chamber made also clear that this interpretation is also in line with an interpretation of the organization requirement in the light of the object and purpose of the ICC. Statute; Ibid., at para. 1,122.

61 See Bemba, supra note 42, at para. 75. This understanding follows the Elements of Crimes, Preparatory Commission for the International Criminal Court, Elements of Crimes, PCNICC/2000/1/Add.2 (2000), at 5.

62 As Pre-Trial Chamber II explained in the Bemba case, an attack under Art. 7(2)(a) of the ICC Statute requires that ‘more than a few’ isolated crimes were committed; see Bemba, supra note 42, at para. 81. According to the ICTR, this element of scale is also found in the Bagilishema case where the Court found that ‘the ‘population’ element is intended to imply crimes of a collective nature and thus excludes single or isolated acts’. Prosecutor v. Bagilishema, Judgment, Case No: ICTR-95–1A-T, T. Ch., 7 June 2001, at para. 80; On the question of the scale of the attack, see also Robinson et al., Amicus Curiae Observations of Professors Robinson, deGuzman, Jalloh and Cryer, ICC-02/11–01/11, 9 October 2013, paras. 7–13.

63 A detailed analysis of the question whether a policy is indeed a legal element of CAH under customary international law goes beyond the scope of this article. The ‘policy question’ has been discussed in jurisprudence and doctrine, and the ad hoc tribunals finally dismissed the policy requirement from the legal definition of CAH under customary international law. Two important reference articles in doctrine are Schabas, W., ‘Crimes Against Humanity: The State Plan or Policy Element’, in Sadat, L. N. and Scharf, M. P. (eds.), The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni (2008), at 347CrossRefGoogle Scholar; Mettraux, G., ‘The Definition of Crimes against Humanity and the Question of a “Policy” Element’, in Sadat, L. N. (ed.), Forging a Convention for Crimes against Humanity (2011), at 142CrossRefGoogle Scholar; The most two most important references in jurisprudence are Tadić, supra note 28, at para. 653 and Prosecutor v. Kunarac et al., Judgment, Case No. IT-96–23 and IT-96–23/1-A, A. Ch., 12 June 2002, at para. 98. The ad hoc tribunals emphasized, however, that ‘[t]he existence of such a plan or policy may be important evidence that the attack against a civilian population was widespread or systematic’; See Prosecutor v. Mrksic et al., Judgment, Case No. IT-95–13/1-T, A Ch., 5 May 2009, at para. 225; Prosecutor v. Muhimana, Judgment, Case No. ICTR- 95–1B-T, T Ch., 28 April 2005, at para. 527.

64 As the Pre-Trial Chamber explained in the Ruto et al. case, a policy which ‘is merely political in nature and may not aim at committing an attack against the civilian population’ cannot be considered a policy under Art. 7(2)(a) of the ICC Statute. Prosecutor v. Ruto et al., Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11, 23 January 2012, at para. 213.

65 See K. Ambos, ‘Crimes Against Humanity and the International Criminal Court’, in Sadat, L. N. (ed.), Forging a Convention for Crimes against Humanity (2011), 279 at 286CrossRefGoogle Scholar.

66 Katanga, supra note 40, at para. 1,108 (translation by the author).

67 See ibid., at para. 1109; See also Kenya, supra note 4, at 87; Kenya (Judge Kaul, Dissenting Opinion), supra note 5, at para. 41, both providing references to ICTY and ICTR case law. For a detailed analysis of this question, see Robinson et al., supra note 62, paras 17–36.

68 See Oxford Dictionaries Online <http://oxforddictionaries.com> (last visited 15 April 2014).

69 In the Katanga case, the Chamber points out that assimilating the policy and the systematic attack requirements would be contrary to the wording of the statute. See Katanga, supra note 40, at paras. 1,111–13.

70 See Prosecutor v. Bosco Ntaganda, Decision on the Prosecutor's Application under Article 58, ICC-01/04–02/06,Pre-T. Ch.II, July 2012, at paras 27 and 31. See also Ruto et al., supra note 64, at para. 179–81.

71 See Elements of Crimes, supra note 61, at 5; See also Ruto et al., supra note 64, at para. 210.

72 See Elements of Crimes, supra note 61, at 5, fn. 6.

73 Ibid. This unclear drafting of the Elements of Crimes was due to a diplomatic compromise; see W. Rückert and G. Witschel, ‘Genocide and Crimes Against Humanity in the Elements of Crimes’, in Fischer, H., Kress, C. and Lüder, S. R. (eds.), International and National Prosecution of Crimes Under International Law: Current Developments (2004), 59 at 73Google Scholar.

74 For a similar conclusion, see Ambos, supra note 65, at 285.

75 See Elements of Crimes, supra note 61, at 5, fn. 6 (emphasis added).

76 See Ntaganda, supra note 70, at para. 24.

77 See Katanga, supra note 40, at para. 1,107, 1,112; See also D. Robinson, ‘Crimes Against Humanity, Reflections on State Sovereignty, Legal Precision and the Dictates of the Public Conscience’, in Lattanzi, F. and Schabas, W. (eds.), Essays on the Rome Statute of the International Criminal Court (1999), at 139Google Scholar; Robinson et al., supra note 62, para. 35.

78 See Elements of Crimes, supra note 61, at 5; See also Katanga, supra note 40, at para. 1,119.

79 Ibid., at para. 1,119.

80 Ibid., at para. 1,109; Ruto et al., supra note 64, at para. 219.

81 The Prosecutor v. Germain Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, ICC-01/04–01/07, Pre-T. Ch. I, 5 November 2007, at para. 33. This definition has been taken up in subsequent decisions, see Katanga, supra note 40, at para. 1,123; See Kenya, supra note 4, at paras. 95–6.

82 See Kenya, supra note 4, at paras 129–34; Katanga and Ngudjolo Chui, supra note 40, at paras. 408–11; Ntaganda, supra note 70, at para. 30.

83 Ibid., at para. 26.

84 See Ruto et al., supra note 64, at para. 200.

85 In this respect, the pattern in which systematic CAH are committed must distinguish these crimes from an accumulation of individual crimes of a large group of persons.

86 See, e.g., Katanga, supra note 40, at paras. 1,157–62; See Ntaganda, supra note 70, at para. 31.

87 See Ruto et al., supra note 64, at para. 197.

88 See Hansen, supra note 5; Sadat, supra note 5; Robinson et al., supra note 62, at para. 34.