Torturing and Raping ‘Brothers in Arms’: International Law and Intra-Party Violence

[Tilman Rodenhäuser is a PhD candidate at the Graduate Institute in Geneva. He worked with different international and non-governmental organizations on the implementation of international humanitarian and human rights law.]

It is uncontroversial that international law prohibits and criminalizes appalling crimes such as summary executions, torture, or rape and other forms of sexual violence. An understudied but increasingly relevant issue is to what extent these international law prohibitions also apply to intra-party violence, meaning if fighters commit such crimes against their brothers or sisters in arms. As I discuss in more detail elsewhere, this question has been raised – but not decided upon – in the ICC’s decision on the confirmation of charges in the Ntaganda case. In this case, Ntaganda is charged with the war crimes of rape and sexual slavery committed by members of the Forces Patriotiques pour la Liberation du Congo against child soldiers in their own ranks. If child soldiers were considered members of armed groups and not civilians, one result could be that violence against these children by their ‘own forces’ falls outside the scope of IHL (the status of child soldiers under IHL has recently been discussed here and here). Likewise, US president Obama reports that Daesh (IS, ISIL, ISIS) summarily executes defectors, and testimony of a German former Daesh member – who recently stood trial in Germany for membership in a terrorist group – confirms that Daesh has a intelligence unit torturing and executing dissidents or deserters in Daesh’s ranks. This post raises the question of whether intra-party violence by armed groups amounts to international human rights law (IHRL) and international humanitarian law (IHL) violations, and should be considered a war crime.

Intra-party violence under international human rights law

If state actors rape, torture, or summarily execute subordinates in their own armed forces, these acts normally constitute crimes under national law as well as IHRL violations. Likewise, similar acts by members of non-state armed groups violate national criminal law. However, it remains somewhat controversial to what extent they also violate IHRL. It is widely agreed that armed groups with quasi-state capacities, such as Daesh, have at least some human rights obligations (for example, the Committee against Torture condemned Daesh’s ‘severe human rights violations’ (para. 11), and UN Special Rapporteur Emmerson considers Daesh ‘bound under international law to respect core human rights obligations’ (para. 30)). In contrast, it is less clear whether at least some norms of IHRL also apply to armed groups that are not ‘state-like’. Some UN expert commissions argued that any non-state armed group must, at a minimum, respect peremptory human rights law obligations (for discussion, see here). Recognizing that armed groups acting beyond state control commit severe human rights violations and not only national crimes or moral wrongs would first be important to reaffirm fundamental rights of all human beings, including those in the hands of armed groups. Second, it may also have legal consequences. While at present regional human rights courts or UN treaty mechanisms do not have jurisdiction over non-state groups, if human rights violations such as torture or extrajudicial executions were considered ‘in violation of the law of nation’, they may fall under national civil or criminal jurisdiction in some states, such as the US Alien Tort Statute (for discussion on non-state actors under the ATS, see here). Yet, at present armed groups’ IHRL obligations remain debated, and condemnations by states in the UN Human Rights or Security Council, human rights experts, or non-governmental organizations are primarily politically significant.

Intra-party violence: an international crime?

While rape, torture, or arbitrary killings could, in certain circumstances, form part of crimes against humanity or genocide, it is difficult to see that intra-party violence alone constitutes an attack against a civilian population or be committed with the intend to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. In contrast, the mentioned acts arguably all violate article 3 common to the four Geneva Conventions and could amount to a war crime under article 8(2)(c) and/or (e) of the Rome Statute of the International Criminal Court.

The Special Court for Sierra Leone (SCSL) discussed the question of whether intra-party violence violates IHL and constitutes a war crime. In the Sesay case, the SCSL argued that ‘the law of armed conflict does not protect members of armed groups from acts of violence directed against them by their own forces’ (para. 1451) because IHL was never intended to criminalize intra-party violence (para. 1453). Prima facie, this approach seems convincing: most IHL rules were developed to regulate hostilities between opposing forces and to protect persons that do not or no longer participate in hostilities against a party to which they do not belong. Upon closer examination, however, Kleffner criticized the Court for ‘rather cursory reasoning’, and Sivakumaran suggested that ‘things are not quite as self-evident as the traditional position suggests’.

Indeed, in my view at least three arguments – especially if considered together – could be raised for arguing that intra-party violence could violate IHL and be prosecuted as a war crime.

First, IHL’s personal scope of application is not as clearly restricted to the relation between adversaries as one may think. Since its early codifications, IHL contains certain rules applicable amongst brothers in arms. Notably, the obligation to respect and to protect the wounded and sick under article 12 and 13 of the First Geneva Convention applies to all ‘[m]embers of the armed forces of a Party to the conflict’. As Pictet pointed out, this obligation applies to ‘friend or foe’. This interpretation is confirmed in article 10(1) of Additional Protocol I.

Second, in light of changing conflict patterns, overly strict textual interpretations should be avoided. As the ICTY has repeatedly argued, IHL should not only be interpreted in accordance with its text and drafting history, but its object and purpose must be considered. Based on this argument, the Tribunal famously suggested that a protected person under the Fourth Geneva Convention is not only defined by nationality but also by ‘allegiance’. More recently, in the Prlic case Trial Camber III applied a similar reasoning to conclude that members of the Croatian Defence Council, who were detained by their own forces because they were perceived as loyal to the enemy, were protected under IHL (paras 608-611).

Third, article 3 common to the four Geneva Conventions, which prohibits all above-mentioned acts, applies to persons who do not, or no longer, take an active part in hostilities. As Kleffner asserts in a recent commentary on the article: ‘No requirement, other than that the person concerned abstains from actively participating in hostilities, conditions the protection under Common Article 3.’ Indeed, the imperative that such persons ‘shall in all circumstance be treated humanely, without any adverse distinction’, suggests that any member of an armed force who is hors de combat falls under the article’s protective scope, no matter which force he or she belongs to. Under this provision, reasons for being hors de combat may include ‘sickness, wounds, detention, or any other cause’. In line with the plain meaning of being hors de combat, it is generally understood that persons only fall under this category if they no longer pose a threat to the adversary and harming them no longer provides a military advantage.

Returning to the cases of torture and summary executions of dissidents and deserters, or rape against child soldiers in an armed group’s own ranks, it can be argued that a person detained and ill-treated by his or her own forces is hors de combat. Likewise, at least during the act of rape, a child soldier is in the hands of the perpetrator and not posing a threat to anyone. As a result, these forms of intra-party arguably fall under the scope of Common Article 3 and could constitute war crimes.