CYIL vol. 8 (2017)

ONDŘEJ SVAČEK CYIL 8 ȍ2017Ȏ Upon examination, the ACH confirmed the first presumption of this article as it was persuaded that IHL does not contain a general rule that categorically excludes members of an armed group from protection against crimes committed by members of the same armed group. 58 It referred to GC I and GC II which protect hors de combat irrespective of their affiliation, used updated commentary to the GC I, and also rejected relevance of the Pilz and Motosuke cases. 59 As mentioned above, it is beyond any doubt that IHL affords even intra- party protection, unless the adversary aspect is explicitly required, but the ACH again failed to reason anyhow why the DPH requirement has simply disappeared completely. 60 The crucial question therefore remains how to solve the requirement of DPH (coming from the same party to the conflict) in the sense of extension of protection even to persons who are DPH. Definitively what is inapplicable is the principal interpretative guideline touching on all regulations applicable before the ICC: the human rights directive envisaged in Article 21(3) of the ICC Statute. In her comments to the PTCH’s decision, R. Grey argues that the PTCH missed the opportunity to explore the meaning of Article 21(3), she continues that not to hold rape against members of the same armed group being crime under Article 8(2)(e)(vi) would be discriminatory, i.e. contrary to human rights law, as the female gender would be affected more negatively than males by such a ruling. 61 Reference to Article 21(3) is nevertheless problematic because human rights cannot be used as a sole justification for expanding jurisdiction of the ICC and the broadening of the criminal responsibility. Simply, the principle of legality trumps Article 21(3) and limits its usage before the ICC. 62 Problematic would be even adoption of the PTCH’s position 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. 63 Part of the scholars’ presented opinion that raped and sexually enslaved child soldiers should be considered hors de combat, which would have denied their direct participation in hostilities. 64 This position is related to the PTCH’s approach and is therefore liable to similar problems. The last option how to extend protection would derive from the need to harmonize IAC and NIAC regulation. 65 The argument would work on the text of Article 75 AP I, which requires that “persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely”. As there is no limitation with respect to DPH, it might be asserted that regulation applicable in NIAC should be interpreted in the same manner. 60 The ACH reflected the Prosecutor’s position that CA3 provides for unqualified protection against inhumane treatment irrespective of a person’s affiliation, requiring only that the persons were taking no active part in hostilities at the material time – ibid . § 60. 61 GREY, Rosemary. Emerging Voices: Sexual Violence As War Crime: Controversial Issues in the International Criminal Court [online]. In: Opinio Juris. Available at: http://opiniojuris.org/2014/07/28/emerging-voices- sexual-violence-war-crime-controversial-issues-international-criminal-court/ [2017-06-16]. 62 Cf. SVAČEK, Ondřej, Human Rights before the International Criminal Court. Czech Yearbook of Public and Private International Law . 2014, vol. 5, pp. 334-335. 63 For reasons cf. supra . 64 RODENHÄUSER, T., supra , pp. 191-192; HELLER, K. J.: supra . 65 Tadić , ICTY, IT-94-1-AR72, ACH, 2nd October 1995, § 119. “What is inhumane, and consequently proscribed, in international wars cannot but be inhumane and inadmissible in civil strife.” 58 Ibid , § 63. 59 Cf. supra .

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