101 resisted the attacks, other than instances of trying to escape.425 Multiple child witnesses testified that traffickers imprisoned, beat, and abducted them, and others reported witnessing traffickers rape girls.426 Based on the facts available, there are reasonable grounds to believe that the population targeted was civilian in nature. Pursuant to or in furtherance or a State or organizational policy Attacks must be committed “pursuant to or in furtherance of a State or organizational policy to commit such attack.”427 This requires showing that (a) the group that committed the attack qualifies as an organization, and (b) that it was operating under a set policy. The Group Constitutes an Organization Courts and scholars agree that non-state actors such as militias that control territory or people can satisfy the organizational element.428 Moreover, the ICTY has expressly acknowledged that an attack constituting a crime against humanity can emanate from “a terrorist group or organization.”429 That said, no international criminal tribunal has ever prosecuted a terrorist organization, such as AlQaeda, under international criminal law. Additionally, no international criminal tribunal has ever assessed whether a criminal network could qualify as an organization.430 Certain scholars argue that the organizational element should only apply to states and quasi-state entities, to the exclusion of criminal syndicates.431 However, limited scholarship has assessed the applicability of crimes against humanity and, in particular, the organizational element to transnational criminal organizations. Authors have applied the Rome Statute and ICC, ICTY, and ICTR case law to find that transnational criminal organizations, such as the Yakuza of Japan, MS-13 of El Salvador, and Los Zetos of Mexico, constitute an organization for purposes of crimes against humanity analysis.432 425 See, for example, Fortify Rights interview with #10, Kuala Lumpur, Malaysia, August 11, 2014; Fortify Rights interview with #26, Songkhla Province, Thailand, October 6, 2013. 426 Fortify Rights interview with #15, Kuala Lumpur, Malaysia, August 12, 2014; Fortify Rights interview with #23, Johor State, Malaysia, August 15, 2014; Fortify Rights internal report on human trafficking case, testimony of Muhammad Salim, trial monitoring notes, Rachada Criminal Court, Human Trafficking Division, Bangkok, May 10, 2016. 427 ICC, Elements of Crimes, art. 7. 428 See, for example, William A. Schabas, “Punishment of Non-State Actors in Non-International Armed Conflict,” Fordham International Law Journal, Vol. 26, 2003, p. 907, 922 (“It is now beyond any doubt that war crimes and crimes against humanity are punishable as crimes of international law when committed in non-international armed conflict. NonState actors, who may be members of guerrilla movements, armed bands, and even provisional governments, are subject to prosecution on this basis.”) 429 Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment, July 15, 1999, para. 653. 430 Schabas, “Punishment of Non-State Actors in Non-International Armed Conflict, p. 907, 929 (“Whether crimes against humanity also reach into the vast realm of crimes that are more than “random or isolated acts” committed by organized groups like Al-Qaeda, the Red Brigades, the Baader-Meinhof gang, the Irish Republican Army, the Ulster Volunteer Force, and for that matter--why not?--the Hell’s Angels, can hardly be considered to be settled as a matter of law.”) 431 See, for example, Claus Kress, “On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC,” Leiden Journal of International Law, 2010, p. 855, 871 (“contrary to a number of bold jurisprudential assertions since the Kunarac judgment, the customary definition of crimes against humanity includes the requirement of a policy by a state or a state-like organization and that Article 7(2)(a) of the Statute should also therefore be construed accordingly.”) 432 See, Jennifer M. Smith, “An International Hit Job: Prosecuting Organized Crime Acts as Crimes Against Humanity,” Georgetown Law Journal, 2009, p. 1111; Elissa Bookbinder, “Crimes Committed against Civilian Population by Transnational Criminal Organizations Should Be Considered Crimes against Humanity and Leaders Prosecuted by ICC,” Willamette Journal of International Law & Dispute Resolution, Vol. 23, 2016, p. 255.