What is an Attack? : A Study on the Necessary Prerequisite in Crimes Against Humanity

Abstract: The purpose of this thesis is to determine the meaning of the necessary prerequisite attack in the international core crime crimes against humanity. Based on this, the thesis also aims to determine how a Swedish court should interpret the necessary prerequisite attack. Lastly, the thesis aims to assess the necessary prerequisite attack from an external gender perspective. Cases from the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court were analysed to fulfill this purpose. Two methods are applied: the doctrinal study and the gender perspective. Three incidents from the ongoing Russian invasion of Ukraine have been used to exemplify and discuss some of the theoretical aspects of this thesis. These are the extensive sexual violence against women, the mass executions of men in Bucha, and the forced deportation and illegal adoptions of Ukrainian children. The thesis shows that the necessary prerequisite attack consists of several elements, which all have to be present for the necessary prerequisite to be considered fulfilled. There must be an attack, the attack must be widespread or systematic, the attack must be directed against a civilian population and the perpetrator’s acts must constitute part of an attack that they are aware of and knowingly participates in. An attack no longer needs to occur within the context of an armed conflict or with discriminatory intent, except for the specific act of persecution. An element that appears required for a course of events to constitute an attack is that of a policy, though there is a lack of consensus on this matter. The international views of the necessary prerequisite attack differs, especially regarding the policy element, and the next question that has to be answered is therefore how a Swedish court should interpret the necessary prerequisite attack. Which case law or legal sources should they use, and why? The thesis argues that the Swedish International Crimes Act should be used first, and the Swedish preparatory work has clear indications to follow the International Criminal Courts case law. This means that it is likely that a Swedish court would apply the policy element. The thesis ends with an analysis of the necessary prerequisite attack and acts of sexual violence from a gender perspective. The thesis shows that there has been a positive development in the last 30 years in how acts of sexual violence are viewed and handled within the field of international criminal law.