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"[a]lthough according to the terms of Article 5 of the Statute of this Tribunal, the combatants in the traditional sense of the term cannot be victims of a crime against humanity, this does not apply to individuals who, at one particular point in time, carried out acts of resistance. As the Commission of Experts, established pursuant to Security Council resolution 780, noted, "it seems obvious that Article 5 applies first and foremost to civilians, meaning people who are not combatants. This, however, should not lead to any quick conclusions concerning people who at one particular point in time did bear arms. ... Information of the overall circumstances is relevant for the interpretation of the provision in a spirit consistent with its purpose." (Doc S/1994/674, para. 78). This conclusion is supported by case law, particularly the Barbie case. In that case the French Cour de Cassation said that "inhumane acts and persecution which, in the name of a State practising a policy of ideological hegemony, were committed systematically or collectively not only against individuals because of their membership in a racial or religious group but also against the adversaries of that policy whatever the form of the opposition" could be considered a crime against humanity. (Cass. Crim. 20 December 1985).

Crimes against humanity are to be distinguished from war crimes against individuals. In particular, they must be widespread or demonstrate a systematic character. However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity. As such, an individual committing a crime against a single victim or a limited number of victims might be recognised as guilty of a crime against humanity if his acts were part of the specific context identified above."

In its final Opinion and Judgment in the Tadic case, rendered on 7 May 1997⁷, Trial Chamber II largely agreed with these findings and added that a discriminatory intent is also a requirement for any crime against humanity. When considering the definition of "civilian", the Trial Chamber held that "a wide definition of civilian population ... is justified". Indeed, in the view of the Trial Chamber,

"the targeted population must be of a predominantly civilian nature. The presence of non-civilians in their midst does not change the character of the population."

Furthermore, "those actively involved in a resistance movement can qualify as victims of crimes against humanity."

The Trial Chamber further noted that,

6. Prosecutor v Mile Mrksic, Miroslav Radic, Veselin Sljivancanin, Review of the Indictment pursuant to Rule 61, 3 April 1996, IT-95-13-R61.
7. Opinion and Judgment, 7 May 1997, IT-94-1-T.