A/HRC/21/50 and other cruel, inhuman and degrading treatment;20 and/or rape,21 and therefore their elements are not repeated here. 17. Widespread or systematic: Widespread has long been defined as encompassing ―the large scale nature of the attack, which should be massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims‖. 22 As such, the element of ―widespread‖ refers both to the large-scale nature of the attack and the number of resultant victims. The assessment is neither exclusively quantitative nor geographical, but must be carried out on the basis of the individual facts. Accordingly, a widespread attack may be the ―cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude‖.23 18. In contrast, the term ―systematic‖ refers to: the “organised nature of the acts of violence and the improbability of their random occurrence” (citations omitted). An attack‟s systematic nature can “often be expressed through patterns of crimes, in the sense of non-accidental repetition of similar criminal conduct on a regular basis”. The Chamber notes that the “systematic” element has been defined by the ICTR as (i) being thoroughly organised, (ii) following a regular pattern, (iii) on the basis of a common policy, and (iv) involving substantial public or private resources (citations omitted), whilst the ICTY has determined that the element requires (i) a political objective or plan, (ii) large-scale or continuous commission of crimes which are linked, (iii) use of significant public or private resources, and (iv) the implication of high-level political and/or military authorities. 24 19. It is important to note that crimes against humanity need not be both widespread and systematic. The test is disjunctive, and therefore reaching either element suffices. VI. Customary international law 20. Customary International Law is made up of norms of (inter)state behaviour that have developed over time and that have become binding among states in their international relations. Treaties are often the codification of CIL norms. CIL is an inseparable component of both IHL and IHRL. The relationship between those two legal regimes and CIL can be expressed in terms of specific crimes or violations, for example, those set out in the Rome Statute. CIL is identified by legal scholars, courts, military law experts, and, for example, the ICRC.25 CIL contains a number of core precepts such as distinction of civilians, prohibition on indiscriminate attacks, that feasible precautions are undertaken, the principle of humanity (no unnecessary suffering), and imperative military necessity. 20 21 22 23 24 25 See annex VIII. See annex IX. ICC Pre-Trial Chamber, 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-01/09-19, 31 March 2010, para. 95 (citations omitted). ICTY, Dusko Tadic Judgment, 7 May 1997, para. 648. ICC Pre-Trial Chamber, 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-01/09-19, 31 March 2010, para. 96. See for example the ICRC Study (supra fn 46). In that extensive study, the ICRC identified 161 customary international humanitarian legal norms. 49