CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ BROTHERS AND SISTERS IN ARMS AS VICTIMS OF WAR CRIMES … including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause are explicitly mentioned). The Chamber ruled that crimes of rape and sexual slavery exclude any link to CA3 as the reference concerns only other forms of sexual violence. According to theTCH, this understanding reached through grammatical interpretation is supported by the Elements of Crimes. 41 A second and more general reference, potentially opening a path to CA3, included in the chapeaux of Article 8(2)(e) according to which the ICC has jurisdiction over other serious violations of the laws and customs applicable in NIAC, within the established framework of international law , has been given only limited meaning. As the Chamber noted, the crime under Article 8(2)(e)(vi) would not be distinct from a crime which could be eventually charged under Article 8(2)(c) if the status requirement as envisaged by CA3 and Article 8(2)(c) would be demanded and found that the Defence’s proposed interpretation would render the operative clause other serious violations meaningless. 42 The TCH employed a well-established rule of treaty interpretation, namely the principle of effectivity ( ut res magis valeat quam pereat ). It seems the TCH VI opined that reference to the established framework of international law in the chapeaux of Article 8(2)(2)(e) should not be read as introducing new elements and restrictions derived from customary international law not expressly provided in the Statute or the Elements of Crimes. 43 The Chamber continued with ruling that statutory framework does not require the victims of the crimes contained in Article 8(2)(e)(vi) to be protected persons in the (limited) sense of CA3. Nevertheless, it then returned to the chapeaux of Article 8(2)(e) again and explored whether the status requirement derives from the established framework of international law, which is nothing but part of statutory framework! From this perspective, the ruling on inapplicability of status requirement made before analysis of outer international law, which is explicitly referred to in the Statute, was simply premature. In evaluation of the established framework of international law, the TCH started with reference to various provisions of IHL prohibiting rape and sexual slavery (most of them applicable in IAC). It then admitted and specified that “whilemost of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons ‘hors de combat’ in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope 41 Ntaganda , § 41-42. The Elements of Crimes for any other form of sexual violence contains an additional element, being that the conduct was of gravity comparable to that of a serious violation of CA3. By contrast, the Elements of Crimes for rape and sexual slavery as war crimes make no mention of such a requirement. Simply, the aim of the language as adopted was to set a certain gravity threshold and exclude lesser forms of sexual violence or harassment which would not amount to crimes of the most serious concern to the international community. The position that Article 8(2)(e)(vi) does not provide any requirement of victim status, as reasonable as it might be, is not generally accepted among scholars. One of the influential commentaries on the Rome Statute reads that “the formula, by using the word “also”, further confirms, if need existed, that the specific acts listed in Article 8 para. 2 (e) (vi) of the Statute, i.e. rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilization, all per se constitute serious violations of common article 3.” Cf . ZIMMERMANN, Andreas, Preliminary Remarks on para. 2 (c)-(f) and para. 3: War crimes committed in an armed conflict not of an international character. In: TRIFFTERER, Otto, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article . München: Beck/Hart, 2008, p. 496. 42 Ntaganda , ICC-01/04-02/06-1794-Corr, § 36. Status requirement is explicitly mentioned only in Article 8(2) (c) and Article 8(2)(a) of the Rome Statute. 43 Ibid , § 19. Cf. footnote 57.

353