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ONDŘEJ SVAČEK CYIL 8 ȍ2017Ȏ of the protection against such conduct.” 44 Back to the presumptions formulated above, while it is feasible to hold that some IHL norms provide intra-party protection, argumentation that this protection is extended even to DPH is going a step further and should be fully reasoned. 45 The reasons used by the TCH are unfortunately not very persuasive. The TCH supported its position by reference to the Martens clause. According to the Prosecutor, the TCH considered the Martens clause to ensure that its interpretation of Article 8 is consistent with the established framework of international law. 46 It matches to a line of international and domestic practice as summarized by Cassese who states that “the clause has implicitly or explicitly been used as a sort of general instruction concerning the interpretation of certain international rules.” 47 Nevertheless, the clause as such cannot be relied upon as having a norm-creating function; it cannot be used to “expand IHL not only beyond conventional law, but even beyond customary IHL.” 48 Another argument the TCH employed concerns the peremptory character of rape and enslavement. As pointed out by the Defence, ius cogens character of rape and enslavement was employed to defeat jurisdictional prerequisites of the Statute. 49 The ius cogens nature of these crimes obviously does not provide any support for establishment of the subject-matter jurisdiction. To take the ICJ as an comparison, with full awareness of the difference in object and purpose of the proceedings before the ICJ and the ICC, “the Court recall[ed] that the mere fact that rights and obligations erga omnes or peremptory norms of general international law ( jus cogens ) are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties.” 50 The ICJ ruled that its jurisdiction over the Genocide Convention cannot be established merely on the fact that genocide attained the status of ius cogens . Similarly, the ICC cannot exercise jurisdiction, e.g., over the war crime of intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated while committed in NIAC as there is no provision in the Statute that would correspond to Article 8(2)(b)(iv) applicable only during IAC – violation of the principle of proportionality is a crime under the ICC Statute only when committed in IAC and cannot be extended to NIAC. 51 This holds true despite the fact that in the Nuclear Weapons case, the ICJ described basic principles of IHL (including the principle of proportionality) as intransgressible, i.e. peremptory. 52 Even if the TCH’s reference to peremptory norms was not employed to defeat 44 Ntaganda , Decision, § 47. 45 Cf. Ntaganda , ICC-01/04-02/06-1794-Corr § 69, § 96. 46 Ntaganda , ICC-01/04-02/06-1794-Corr, § 55. 47 CASSESE, Antonio, The Martens Clause: Half a Loaf or Simply Pie in the Sky? European Journal of International Law . 2000, vol. 11, no. 1, p. 208. 48 HELLER, Kevin Jon, ICC Appeals Chamber Says A War Crime Does Not Have to Violate IHL [online]. In: Opinio Juris . Available at: http://opiniojuris.org/2017/06/15/icc-appeals-chamber-holds-a-war-crime-does-not- have-to-violate-ihl/#comments [2017-06-22]. 49 Ntaganda , ICC-01/04-02/06-1754, § 51. 50 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 52 . 51 SCHABAS, W., supra , p. 264. 52 Cf . the ILC’s Commentary on the DARS: “In the light of the description by ICJ of the basic rules of international humanitarian law applicable in armed conflict as “intransgressible” in character, it would also seem justified to treat these as peremptory.” Yearbook of the International Law Commission , 2001, vol. II, Part Two, p. 113, § 5.

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