CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ BROTHERS AND SISTERS IN ARMS AS VICTIMS OF WAR CRIMES … mostly in relation to crimes committed in NIAC. The article will analyze the position presented in scholarly literature and jurisprudence, both national and international. It will then discuss arguments contained in the conclusions of the PTCH II, TCH VI and ACH. The article uses traditional normative legal methodology that was elaborated in the previous practice of the ICC. 18 1.1 Scholars and Case Law The position of scholars on possible victims of war crimes is unsurprisingly divided, nevertheless opinion corresponding to the position advocated by the ICC prevails. The most referential authority presenting position of the Defence is A. Cassese. In his classical canon on ICL he argues that “an offence (theft, murder, rape, etc. ) committed by a combatant against another combatant belonging to the same belligerent ( e.g. the rape of a member of an army by a fellow officer or private), is not a war crime, although the armed conflict may have been the occasion for the offence.” 19 Other academic opinions are substantially less categorical. The position excluding application of IHL to relations within the armed groups has been challenged because “things are not quite as self-evident as this […] position suggests.” 20 In his analysis, J. K. Kleffner concludes that the current state of the law of NIAC does not support an exclusion from the entitlement of humane treatment of a person who does not participate in hostilities on the sole ground that he or she does not belong to the adverse party. 21 Applicability of CA3 to all civilians and even to one’s own armed force was confirmed in the current commentary to the GC I of 1949, prepared under the auspices of the ICRC. 22 A similar position can be found in another authoritative commentary to the GC 18 Cf . SVAČEK, Ondřej, Inherent/Implied Powers, Interpretation and Applicable Law – Brief Randezvous with the ICC. Czech Yearbook of Public and Private International Law . 2016, vol. 7, p. 345. The interpretation of the Statute, the peak of ‘beautiful pyramid’ of applicable law before the ICC, is governed by the Vienna Convention on the Law of Treaties (VCLT), specifically its Articles 31 and 32 which reflect customary international law. The various elements referred to in this provision – ordinary meaning, context, object, and purpose – must be applied together and simultaneously, rather than individually and in a hierarchical or chronological order. On the basis of the principle of good faith provided for in this provision, the general rule also comprises the principle of effectiveness, requiring dismissing of any interpretation of the applicable law that would result in disregarding or rendering any other of its provisions void. Only in the next step, where the statutory provisions do not resolve particular issue, the ICC may resort to treaty or customary law, as well as to general principles of law and relevant jurisprudence of other international courts and tribunals. This methodological approach is dictated both by external contextual interpretation of the Statute (Article 31(3)(c) of the VCLT) and hierarchy of law applicable before the ICC. In the next step, when the statutory provision still remains to be ambiguous or obscure, the ICC may resort to supplementary means of interpretation ( travaux préparatoires ) envisaged in Article 32 of the VCLT. Finally and importantly, the Rome Statute contains two principal interpretative guidelines all regulations applicable before the ICC must conform with: human rights directive (Article 21(3) of the Statute) and the principle of legality (Article 22 of the Statute) according to which a person shall not be criminally responsible under the Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the ICC. 19 CASSESE, Antonio, International Criminal Law . Oxford: OUP, 2003, p. 78. This particular opinion has been widely referred to in international judicial practice. 20 SIVAKUMARAN, Sandesh, The Law of Non-International Armed Conflict . Oxford: OUP, 2012, p. 247. 21 KLEFFNER, Jann K., Friend or Foe: On the Protective Reach of the Law of Armed Conflict. In: MATTHEE, Mariëlle, Armed Conflict and International Law in Search of the Human Face – Liber Amicorum in Memory of Avril McDonald . The Hague: T. M. C. Asser Press, 2013, p. 300. 22 The ICRC explains that “The fact that […] the abuse [is] committed by their own Party should not be a ground to deny such persons the protection of common Article 3. This is supported by the fundamental character of

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