CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ BROTHERS AND SISTERS IN ARMS AS VICTIMS OF WAR CRIMES … jurisdictional prerequisites but to interpret and substantiate statutory requirement contained in the chapeaux of Article 8(2)(e) in accordance with Article 31(3) of the VCLT, it would at the same time neglect crucial provisions of IHL applicable in NIAC ( i.e. CA3 and Article 4 AP II) which are for the purpose of external systematic interpretation no less important. Two other justifications used by the TCH are no more persuasive. The principle nullus commodum capere (potest) de sua iniuria propria was used only as an ad abundantiam argument. In the system of law applicable before the ICC, it is impossible to establish individual criminal responsibility on a mere legal principle. With respect to reference to the ICRC commentary (§ 547) which confirms that armed forces of a party to the conflict benefit from the application of CA3 by their own party, the TCH did not take into account the fact that according to the same commentary, CA3’s prohibitions apply only to persons taking no active part in hostilities (§ 545). 53 The same holds true for the last argument used by the TCH: overall rationale of IHL. Here, the primary question is whether teleological interpretation might take precedence over the clear and unequivocal wording of CA3 and Article 4 of the AP II which both exclude DPH from its protection. The TCH supported its position by reference to work of S. Sivakumaran who writes that “[s]exual violence is prohibited, whether against civilians, members of the armed forces, or the armed group”, 54 nevertheless in the previous paragraph of his text Sivakumaran states that individuals are protected by CA3 only if they are not taking direct part in hostilities. 55 It might be said that the TCH has a persuasively defended position, the first presumption of this article, that the protective scope of IHL is not limited to adversaries, i.e. beneficiaries of protection might be even members of one’s own armed forces, nevertheless it did not put forward any satisfactory justification for inclusion of DPH into the protective scope of IHL. It remains to be seen whether the issue was clarified by the ACH. The ACH found no error in the TCH’s finding that, based on the ordinary meaning, context and drafting history of Article 8(2)(b)(xxii) applicable in IAC and Article 8(2) (e)(vi) applicable in NIAC, the victims of the war crimes of rape and sexual slavery need not be protected persons in the (limited) sense of the grave breaches or CA3. 56 The crucial part of the judgment dealt with the expression used in the chapeaux , i.e. the established framework of international law. The ACH’s first enquiry was whether this expression permits the introduction of additional elements to the crimes listed in Article 8(2)(e); it replied in affirmative concluding that the formula “permits recourse to customary and conventional international law regardless of whether any lacuna exists, to ensure an interpretation of Article 8 of the Statute that is fully consistent with, in particular, international humanitarian law.” 57 The ACH therefore confirmed that customary and conventional IHL is part of statutory framework – the only reasonable conclusion would be that CA3 and AP II, as leading sources of IHL on NIAC, must be taken into account in application and interpretation of Article 8(2)(e). 53 Cf. HELLER, K. J., supra . Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949 . ICRC Commentary of 2016. Article 3: Conflicts Not of An International Character, § 545-547. 54 Sivakumaran, S., supra , p. 249. 55 Ibid , p. 248. 56 Ntaganda , Judgment, § 51. 57 Ibid , § 53.

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