CYIL vol. 8 (2017)

ONDŘEJ SVAČEK CYIL 8 ȍ2017Ȏ of 15 years in an armed group cannot be considered as determinative proof of direct/active participation in hostilities, considering that their presence in the armed group is specifically proscribed under international law in the first place” and continued “that those subject to rape and/or sexual enslavement cannot be considered to have taken active part in hostilities during the specific time when they were subject to acts of sexual nature, including rape, as defined in the relevant Elements of Crimes […] the sexual character of these crimes, which involve elements of force/coercion or the exercise of rights of ownership, logically preclude active participation in hostilities at the same time.” 7 The PTCH II concluded that since child soldiers were not actively participating in hostilities during acts of rapes and sexual enslavement they are protected by CA3 and, therefore, by Article 8(2)(e)(vi) of the ICC Statute. After a certain procedural fumble, 8 the issue arose before the TCH VI. The TCH circumvented the complicated question of DPH and held that not all war crimes need to be committed against protected persons. 9 Systematic and textual interpretation led the Chamber to conclude that statutory framework does not require the victims of the crimes of rape and sexual enslavement under Article 8(2)(e)(vi) to be protected persons in the (limited) sense of CA3, i.e. persons taking no active part in the hostilities. 10 According to the Chamber, rape and other forms of sexual violence have long been prohibited by the IHL. In support of this finding it referred to Martens clause. 11 The Chamber then used teleological argument and stressed that limiting the scope of protection in the manner proposed by the Defence is contrary to the (humanitarian) rationale of IHL, which aims to mitigate the suffering resulting from armed conflict. 12 The Chamber also referred to the updated ICRC commentary to the GC I, 13 ius cogens character of rape and slavery (enslavement), 14 and finally to the principle nullus commodum capere (potest) de sua iniuria propria . 15 At the time of the writing (May and June 2017), the issue was subject to appeal. 16 The judgment of the ACH was delivered on the 15 th of June 2017. 17 Intra-Organization Violence in IHL and ICL The aim of the article is to evaluate whether fellow combatants from the same armed forces as perpetrators are protected by the established legal framework of IHL and ICL, 8 On 1 September 2015, the Defence filed an application before the Chamber VI challenging the jurisdiction of the Court, the challenge was rejected on the basis that it was a matter to be addressed at trial. This decision was appealed by the Defence. In March 2016, the Appeals Chamber (ACH) ruled that the question of whether there are restrictions on the categories of persons who may be victims of the war crimes of rape and sexual slavery is an essential legal issue which is jurisdictional in nature, and remanded the matter to the Chamber to determine in accordance with Article 19 of the Statute. 9 Ntaganda , Decision, § 37. 1. 7 Ntaganda , ICC-01/04-02/06-309, 9th June 2014, §§ 78-79.

10 Ibid , § 44. 11 Ibid , § 47. 12 Ibid , § 48. 13 Ibid , § 50. 14 Ibid , § 51. 15 Ibid , § 53. 16 Ntaganda , ICC-01/04-02/06-1754, 26th January 2017.

17 The original aim of the article, i.e. prediction of the ACH’s decision, was modified due to the issuance of the final verdict. Ntaganda , ICC-01/04-02/06-1962, ACH, 15th June 2017. Hereafter referred to as Ntaganda , Judgment.

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