CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

BROTHERS AND SISTERS IN ARMS AS VICTIMS OF WAR CRIMES …

Conclusion The article was built on two presumptions: that the protective scope of IHL is not limited to adversaries as the beneficiaries of protection might be even members of one’s own armed forces; and that intra-party protection is excluded once the person is DPH. The latter aspect was not addressed adequately by the TCH and ACH, which raises doubt with respect to the compatibility of these decisions with the principle of legality. Although it has been argued that even the PTCH’s position has its shortcomings, for its consideration of DPH it might be taken as a point of departure. As there is a wide consensus on condemnation of raping and sexual enslavement, supported by the peremptory character of their prohibition, the solution would be in introducing bifurcated or hybrid status for child soldiers. This approach would not be perceived as a threat to the object and purpose of IHL and its effective operation. Raped and sexually enslaved child soldiers would be treated as protected persons and lawful target at the same time, depending on the perspective of either one’s own or opposing armed forces. The history of IHL has already shown that States are ready to accept even an extensive interpretation of IHL which is clearly contrary to the text of the conventions. Accordingly, in 1999 the ICTY’s ACH argued in the Tadić case that in order to qualify as a protected person under Article 4 of the GC IV, the question of whose national a victim is, as provided in the text, should not necessarily be decisive - ethnicity rather than nationality may become the grounds for allegiance. 66 Such an extensive and liberal interpretation could be employed even in relation to sexually misused child soldiers.

357

66 Tadić , ICTY, IT-94-1-A, ACH, 15th July 1999, § 166.