CYIL vol. 8 (2017)

ONDŘEJ SVAČEK CYIL 8 ȍ2017Ȏ or unorganized direct participation in hostilities and become members of an organized armed group belonging to a party to the conflict, IHL deprives them of protection against direct attack for as long as they remain members of that group – they fulfill a continuous combat function. 35 Members of organized armed groups regain their target immunity and civilian status only once they affirmatively disengage from the armed group. In other words, the revolving door mechanism of protection starts to operate based on membership. 36 Child soldiers, members of the FPLC, thus carried out a continuous combat function and as such were directly participating in hostilities even in the time they were subjected to sexual crimes. 37 The PTCH’s position is especially problematic in relation to the crime of sexual enslavement which is of a continuous character 38 – this would mean that as long as child soldiers are sexually enslaved they would benefit from target immunity, despite the fact they would engage in acts clearly hostile to an opposing party. There is an irreconcilable contradiction in the PTCH’s approach. What would be the position of a child soldier, victim of sexual slavery, who would, for example, take part in a military raid against an opposing armed group? The solution would be bifurcated standard of protection: child soldiers would be protected in relation to one’s own armed forces but remain a lawful target for the adversary. The PTCH should have walked one step further and explicitly confirmed the hybrid standard of protection. Unfortunately, it failed to do so. The position of the TCH was significantly different. The Chamber began its jurisdictional analysis by interpretation of the ICC Statute itself. 39 The TCH observed that the Statute is first and foremost a multilateral treaty which acts as an international criminal code for its State Parties, there is, therefore, no need to resort to other sources (customary international law) unless the Statute explicitly requires it. This position is reasonable and corresponds with the hierarchy of law applicable before the ICC. 40 The Chamber defended the independent position of Article 8(2)(e)(vi), i.e. its separation from CA3, using a grammatical and systematic interpretation. This provision proscribes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence also constituting a serious violation of CA3 . Here, the crucial question pertains to understanding of special reference to CA3, which would trigger the need to consider the status requirement (beneficiaries of protection are persons who are not DPH 35 MELZER, Nils, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law . ICRC, 2009, p. 72. 36 Ibid , p. 70. 37 For similar argument cf . McDERMOTT, Yvonne, ICC extends war crimes of rape and sexual slavery to victims from same armed forces [online]. In: PhD Studies in Human Rights . Available at: http://humanrightsdoctorate. blogspot.cz/2017/01/icc-extends-war-crimes-of-rape-and.html [2017-06-12]. 38 Cf . Taylor , SCSL, 03-01-T-1283, TCH, 18th May 2012, § 118. 39 Cf. supra methodology on interpretation of law applicable before the ICC. 40 Uniqueness of the Rome Statute works also the other way round. According to Article 10, nothing in this Part ( i.e. Jurisdiction, Admissibility and Applicable Law) shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. If it would be accepted that criminalization of intra-organization violence during an armed conflict derives only from the Rome Statute and not from existing IHL, it would not be possible to transfer this concept beyond the borders of the law and practice of the ICC. The statement issued by the ICRC during the Rome Conference is expressive: “It is essential that the Statute of the Court indicates that it in no way affects existing international humanitarian law nor impede its development.” Cf. SCHABAS, William, The International Criminal Court: A Commentary of the Rome Statute . 2nd edition. Oxford: OUP, 2016, p. 335.

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