CYIL vol. 8 (2017)

ONDŘEJ SVAČEK CYIL 8 ȍ2017Ȏ according to which “no requirement, other than that the person concerned abstains from actively participating in hostilities, conditions the protection under Common Article 3.” 23 According to T. Rodenhäuser, despite the fact that “IHL developed traditionally as a body of law regulating primarily inter-party relationships, it also includes certain intra-party obligations. This includes fundamental humanitarian provisions under common Article 3 Geneva Conventions 1949.” 24 Some support of the argument that war crimes cannot be committed by one member of an armed group against another member of the same group derives from case law. A. Cassese refers to two older examples: Motosuke (1948) and Pilz (1950). 25 Practice of the international ad hoc tribunals brought more recent cases. In the Kvočka , one of the accused persons, Zoran Žigić, was convicted by the TCH for a violation of the laws and customs of war under Article 3 of the ICTY Statute. As a Serb guard at Karaterm camp he was found guilty of the murder of Drago Tokmadzić, a half-Serb police officer who had declared loyalty to the Serbian authorities. The Defence argued that the actus reus requirement of war crimes, namely commission against the opposite side in the conflict, was missing and the accused must be acquitted on this count. The ACH rejected this position and held that “the ethnic background of Drago Tokmadzić is in fact irrelevant to Žigić’s conviction of murder as a violation of the laws or customs of war. As he was detained in the camp, he belonged to the group of persons protected by the Common Article 3 of the Geneva Conventions.” 26 The SCSL came to a different conclusion. In the RUF case, the TCH held that “the law of armed conflict does not protect members of armed groups from acts of violence directed against them by their own forces.” 27 In the SCSL’s view, “the law of international armed conflict was never intended to criminalise acts of violence committed by one member of an common Article 3 which has been recognized as a ‘minimum yardstick’ in all armed conflicts and as a reflection of ‘elementary considerations of humanity’.” ICRC. Commentary to the First Geneva Convention of 1949 . ICRC 2016, § 547. 23 KLEFFNER, Jann K., The Beneficiaries of the Rights Stemming from Common Article 3. In: CLAPHAM, Andrew et al . The 1949 Geneva Conventions . Oxford: OUP, 2015, p. 436. 24 RODENHÄUSER, T., supra , p. 191. 25 CASSESE, A., supra , p. 78. Both cases were decided by Dutch courts. Hermann Pilz was a doctor in German army, he failed to provide medical treatment to a wounded person who later died. This wounded person was a member of a German armed forces. The Special Court of Cassation concluded that legal position, including protection, of members of one’s own armed forces is not a matter for international agreements, but for the domestic legislation. Cf. SLUITER, Göran. Pilz. In: CASSESE, Antonio, The Oxford Companion to International Criminal Justice . Oxford: OUP, 2009, p. 872. Susuki Motosuke was a Japanese officer who ordered among else shooting of a Dutch national (Barends), who nevertheless joined the Japanese forces. The court held that by joining the Japanese army, Barends had lost his nationality and killing by the Japanese forces was not considered a war crime. Cf . NILSSON, Jonas. Motosuke. In: CASSESE, Antonio, The Oxford Companion to International Criminal Justice . Oxford: OUP, 2009, p. 816. Relevance of these cases is nevertheless limited in the proceedings against Ntaganda as both these cases concern IAC. More importantly, given the unconditional nature of the protection guaranteed to the wounded and sick in the field as far back as 1864, the Pilz case appears to have been wrongly decided on this point. With respect to Motosuke , the ACH stressed that the finding was reached primarily because the intention after the Second World War had been to prosecute war crimes committed against Allied nationals. Cf. Ntaganda , Judgment, § 62. 26 Kvočka , ICTY, IT-98-30/1-A, ACH, 28th February 2005, § 561. Cf . Kleffner, J. K.: supra , pp. 299-300. 27 Sesay, Kallon and Gbao , SCSL, 04-15-T, TCH, 2 March 2009, § 1451. The case in its relevant part concerned killing of Charles Kayioko, Fonti Kanu and Foday Kallon. It was found that no one of these victims came from forces opposing the RUF.

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