CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ BROTHERS AND SISTERS IN ARMS AS VICTIMS OF WAR CRIMES … armed group against another, such conduct remaining first and foremost the province of the criminal law of the State of the armed group concerned and human rights law. In our view, a different approach would constitute an inappropriate reconceptualisation of a fundamental principle of international humanitarian law.” 28 The SCSL was not prepared to embark on such an exercise. 29 Built on analysis of literature, case law and relevant legal framework, the basic presumption of the text presented have been formulated. The protective scope of IHL (and ICL) is not limited to adversaries, beneficiaries of protection might be even members of one’s own armed forces. 30 Nevertheless, the intra-party protection is excluded once the person is DPH. 31 The Rome Statute, respectively its Article 8(2)(e), must be interpreted in the light of the aforementioned considerations. 32 1.2 Arguments Raised before the ICC It is now possible to comment on arguments raised before the ICC in full detail. The matter has been addressed by three different chambers - despite reaching the same conclusion (the ICC has jurisdiction over rape and sexual slavery while committed among members of the same armed forces) the reasons put forward by the chambers are different. Starting with the PTCH, the main argument was 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. The PTCH associated Article 8(2)(e)(vi) with IHL. It is therefore crucial to consider the concept of DPH. 33 The ICRC distinguishes between unorganized civilians who lose their target immunity only during intervals of specific hostile act, including its preparation and return from the place of an attack. 34 On the other hand, where individuals go beyond spontaneous, sporadic, 28 Ibid , § 1453. 29 In evaluation of this case, the ACH noted that the SCSL decision is unpersuasive, not least because it is apparently based solely on an analysis of GC III which is obviously usable only in inter-party relations. This is nevertheless not a general rule to be applicable in IHL ( cf. infra ). Moreover, the SCSL speaks only about IAC. 30 Cf. Article 12 and Article 13 GC I and GC II, Article 10 AP I. Nevertheless, GC III and GC IV do require a certain type of relation - e.g. POW is defined as a person who has fallen into the power of the enemy (Article 4), protected persons under GC IV are defined as those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals (Article 4). Similarly with respect to war crimes, certain crimes do require victim to be member of adversary – cf. Article 8(2)(b)(x),(xi),(xiii) and Article 8(2)(e)(ix), (xi), (xii) of the Rome Statute. At the same time, some crimes do explicitly require perpetrator and victim to be members of the same armed force – Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the ICC Statute. 31 Enough is to repeat Kleffner’s opinion that 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 – cf. supra . Exclusion of DPH from the protective scope is explicitly provided in CA3 and Article 4 AP II. It is important to note that with respect to IAC, no limitation is provided in Article 75 AP I, the article on fundamental guarantees applicable in IAC. 32 The expression the established framework of international law in the chapeaux of Article 8(2)(e) as well as in the Introduction to the Elements of Crimes for Article 8 of the Statute, when read together with Article 21 of the Statute, requires the former to be interpreted in a manner that is consistent with international law, and international humanitarian law in particular [emphasis added]. Cf. Lubanga, ICC-01/04-01/06-3121-Red, ACH, 1st December 2014, § 322. 33 SVAČEK, Ondřej, K objasňování pojmu „přímá účast na nepřátelských akcích“. [On Clarification of Notion “Direct Participation on Hostilities”] Acta Universitatis Carolinae – Iuridica . 2009, vol. 56, issue 4, pp. 161-173. 34 Ibid , p. 167.

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