ICC Appeals Chamber Says A War Crime Does Not Have to Violate IHL

by Kevin Jon Heller

One of the most basic assumption of ICL is that an act cannot be a war crime unless it violates a rule of international humanitarian law (IHL). Article 6(b) of the London Charter criminalised “War Crimes: namely, violations of the laws or customs of war.” Article 3 of the ICTY Statute provides that “[t]he International Tribunal shall have the power to prosecute persons violating the laws or customs of war,” while Article 4 of the ICTR Statute provides that “[t]he International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977.” And Article 8 of the Rome Statute criminalises “[g]rave breaches of the Geneva Conventions of 12 August 1949”; “[o]ther serious violations of the laws and customs applicable in international armed conflict”; [i]n the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949″; and “[o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character.” In each and every case, war crimes are limited to violations of IHL.

No more. The Appeals Chamber (AC) at the ICC has just unanimously held in Ntaganda that a perpetrator can be convicted of a war crime even if his act does not violate IHL. That decision is not simply “unprecedented,” as the AC openly acknowledges. It is simply incorrect — as this post will demonstrate.

The judgement itself addresses allegations that Ntaganda is criminally responsible for two war crimes — rape and sexual slavery — involving children forcibly recruited into his organised armed group, the UPC/FPLC. Ntaganda challenged that allegation, arguing that “crimes committed by members of armed forces on members of the same armed force do not come within the jurisdiction of international humanitarian law nor within international criminal law.” The Trial Chamber (TC) disagreed, in a judgment ably discussed and critiqued by Yvonne McDermott. Ntaganda appealed, giving rise to this judgment. Here is the AC’s “key finding”:

2. Having regard to the established framework of international law, members of an armed force or group are not categorically excluded from protection against the war crimes of rape and sexual slavery under article 8 (2) (b) (xxii) and (2) (e) (vi) of the Statute when committed by members of the same armed force or group.

Before turning to the logic of the judgment, it is important to be very precise about the terms of my quarrel with the AC. I completely agree with the AC that there are situations in which a member of an armed force can, in fact, commit the war crime of rape or the war crime of sexual slavery against a member of the same armed force. As the AC rightly notes, although the Third and Fourth Geneva Conventions do not apply to acts committed by a combatant against someone from the same side of the conflict — whether by virtue of membership in that same armed force (GC III) or by nationality (GC IV) — the First and Second Geneva Conventions contain no such limitation:

59. In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea respectively, provide protection “in all circumstances […] without any adverse distinction founded on sex, race, nationality” and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.

Nothing in GC I or GC II suggests, however, that IHL protects all members of the armed forces against member-on-member violence. On the contrary, let’s take a look at the AC’s statement again, with the critical language in bold:

59. In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea respectively, provide protection “in all circumstances […] without any adverse distinction founded on sex, race, nationality” and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.

Under GC I and GC II, in other words, member-against-member violence violates IHL only if the victim is wounded, sick, or shipwrecked. If the victim is none of those things — if he or she is not hors de combat — that violence may well violate a state’s domestic criminal law, but it does not violate IHL.

If the AC had limited the scope of its judgment to rape and sexual slavery committed against child soldiers who were hors de combatdefined by the ICRC, in relevant part, as “anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness” — it would have been on firm ground. But that is not what it has done. On the contrary, the AC goes to great lengths to make clear that member-against-member rape and sexual slavery are war crimes even if the victim is an active combatant –– ie, one who is not hors de combat. Here is the relevant paragraph (emphasis mine):

64. With regard to the second issue – namely whether Status Requirements exist in international humanitarian law specifically for the war crimes of rape and sexual slavery – the Appeals Chamber observes that the prohibitions of rape and sexual slavery in armed conflict are without a doubt well established under international humanitarian law. As noted by the Trial Chamber, protection under international humanitarian law against such conduct generally “appear[s] in contexts protecting civilians and persons hors de combat in the power of a party to the conflict”. In this regard, the question arising before the Appeals Chamber is whether such explicit protection under international humanitarian law suggests any limits on who may be victims of such conduct. In the view of the Appeals Chamber, there is no conceivable reason for reaching such a conclusion.

Notice the bold language, because it’s critical — and wrong. IHL protection does not “generally” apply only to civilians and combatants hors de combat. On the contrary, each and every IHL convention applies only to those two categories of individuals. As we have seen, the AC itself acknowledges that limitation with regard to all four of the Geneva Conventions. It cites no other source of IHL, instead simply noting that the ICRC states in its new commentary to GC I “that Common Article 3 protects members of armed forces against violations committed by the armed force to which they belong.” But that statement is incomplete and misleading, because the ICRC makes unequivocally clear that CA3’s prohibitions apply only to individuals who are hors de combat:

518  Subparagraph (1) covers all ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’. The article does not expand on these notions and this part of the article did not give rise to much discussion at the 1949 Diplomatic Conference. The protection afforded under this subparagraph requires that the person be in the power of a Party to the conflict (see section E.4).
519  The protection of persons not or no longer participating in hostilities is at the heart of humanitarian law. The persons protected by common Article 3 are accordingly described by way of explicit delimitations: ‘persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’ (emphasis added). Parties to a non-international armed conflict are under the categorical obligation to treat these persons humanely, in all circumstances and without any adverse distinction.

The Trial Chamber’s judgment is no better. The TC rests its conclusion that member-against-member rape is a war crime even when the victim is an active combatant solely on two things: the Martens Clause and Art. 75 of the First Additional Protocol (AP I). Here is paragraph 47:

While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct. In this regard, the Chamber recalls the Martens clause, which mandates that in situations not covered by specific agreements, ‘civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’. The Chamber additionally notes that the fundamental guarantees provisions [in Art. 75] refer to acts that ‘are and shall remain prohibited at any time and in any place whatsoever’ and as such apply to, and protect, all persons in the power of a Party to the conflict.

I don’t have time to get into a detailed discussion of the Martens Clause. Suffice it say here that it is very unlikely that the Clause can ever be relied upon to expand IHL not only beyond conventional law, but even beyond customary IHL — and as the AC itself acknowledges (para. 60), there is literally zero state practice indicating that member-against-member mistreatment is a war crime even when the victim is an active combatant. Even Antonio Cassese, no stranger to judicial activism, dismisses this “norm-creating” reading of the Martens Clause as “radical.” As he says, “[s]urely the Clause does not envisage — nor has it brought about the birth of — two autonomous sources of international law, distinct from the customary process.”

As for Art. 75 of AP I, the Protocol’s “fundamental guarantees” provision, the TC’s position is deeply problematic. Here is n. 111:

Article 75 of Additional Protocol I refers to ‘a Party to the conflict’ (emphasis added) and therefore does not limit the fundamental guarantees to persons in the power of the opposing party.

The TC conveniently fails to note that Art. 75 applies only to international armed conflict — and that Art. 4 of AP II, the “fundamental guarantees” provision in the NIAC Protocol, is specifically limited to “persons who do not take a direct part or who have ceased to take part in hostilities” (ie, civilians and combatants hors de combat).

Given that conventional IHL uniformly requires the victim of member-against-member mistreatment to be hors de combat, on what basis does the AC hold that the status of the victim is irrelevant? The answer comes from this paragraph (emphasis mine):

65. The Appeals Chamber agrees with the Trial Chamber’s finding that “there is never a justification to engage in sexual violence against any person; irrespective of whether or not this person may be liable to be targeted and killed under international humanitarian law”. Accordingly, in the absence of any general rule excluding members of armed forces from protection against violations by members of the same armed force, there is no ground for assuming the existence of such a rule specifically for the crimes of rape or sexual slavery.

This is simply incorrect. To begin with, there is a specific rule excluding active combatants from the war crimes of rape and sexual slavery in member-against-member situations: namely, the rule that says violence in member-against-member situations violates IHL only when the victim is hors de combat. The AC’s judgment suggests that states not only had to specify that rule in the various IHL conventions, they also had to add: “oh, and by the way, this limit means that mistreating active combatants doesn’t violate IHL.” But that’s silly: the former implies the latter. After all, expressio unius est exclusio alterius is a basic rule of treaty interpretation.

But even if that was not the case, there would still be a general rule excluding active combatants from the war crimes of rape and sexual slavery in member-against-member situations: the rule that says a war crime must involve a violation of IHL. As noted at the beginning of this post, that is one of the most basic assumptions of IHL. Not all violations of IHL are war crimes, but all war crimes are violations of IHL. So the burden of proof was not on Ntaganda to show that rape and sexual slavery cannot be war crimes in member-against-member situations if the victim is an active combatant. The burden was on the prosecution to prove that such acts actually violate IHL. Because if they don’t — and they don’t, as we have seen — the Court has no jurisdiction whatsoever over Ntaganda’s acts, at least insofar as they are legally characterised as war crimes.

In the end, the AC’s decision in Ntaganda is little more than the latest iteration of the Court’s willingness to rely on teleological reasoning when the Rome Statute does not protect victims as much as the judges think it should. No one is in favour of raping and sexually enslaving child soldiers. But the solution isn’t to detach the law of war crimes from its moorings in IHL by holding — if only implicitly — that an act can be a war crime even if it does not violate IHL. To do so is not only legally indefensible, it risks delegitimising both the Court and the law of war crimes itself.
http://opiniojuris.org/2017/06/15/icc-appeals-chamber-holds-a-war-crime-does-not-have-to-violate-ihl/

32 Responses

  1. Interesting read! This is what happens when the Court defers to the lex ferenda. As you rightly pointed out, ‘[n]o one is in favour of raping and sexually enslaving child soldiers’ but this is what de lege lata appears to encourage and entrench. In the end, I find nothing wrong with the judicial activism of the AC. After all, the fight against impunity at the international level should not suffer in the hands of strict constructions.

  2. I don’t think this is an issue of “strict constructions.” It’s about the AC simply ignoring one of the basic requirements of the law of war crimes. I doubt that states ever imagined judges engaging in this level of activism — and a delegitimized court will be even worse for victims than one that applies a Rome Statute that doesn’t go as far as we might like.

  3. In my view, the interpretation of the Appeals Chamber on this point is a reasonable one and does not yet justify accusations of unduly judicial activism. Even the new ICRC Commentary cited in the post in fact supports the interpretation endorsed in the ruling. Just a few pages after the passage cited by Professor Heller, the Commentary expressly states:

    547  Another issue is whether armed forces of a Party to the conflict benefit from the application of common Article 3 by their own Party.[292] Examples would include members of armed forces who are tried for alleged crimes – such as war crimes or ordinary crimes in the context of the armed conflict – by their own Party and members of armed forces who are sexually or otherwise abused by their own Party.[293] The fact that the trial is undertaken or the abuse committed by their own Party should not be a ground to deny such persons the protection of common Article 3. This is supported by the fundamental character of common Article 3 which has been recognized as a ‘minimum yardstick’ in all armed conflicts and as a reflection of ‘elementary considerations of humanity’.[294]

    (What is more, footnote 293 actually cites to the Ntaganda decision on the confirmation of charges on this very issue. Link: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736C1C1257F7D004BA0EC)

    As recognized by the Commentary and elsewhere (the works of Sandesh Sivakumaran and Gloria Gaggioli come to mind), the key issue is the existence of a nexus with the armed conflict, rather than the status of the victim. Conduct of this kind – if it meets the nexus requirement – thus isn’t just morally repugnant, as correctly recognized in the post, but also a grave violation of Common Art 3, and as such a war crime.

  4. Kubo,

    Paragraph 547 is point 5 in subsection E of the ICRC’s discussion of CA3, the subsection that deals with “persons protected” by CA3. As I note in the post, point 1 of that discussion (as well as CA3 itself) explicitly limits the application of CA3 to individuals hors de combat and civilians. Paragraph 547 is thus clearly discussing members of the armed forces who are hors de combat, not members who are active combatants. Indeed, paragraph 520 in the same subsection explicitly states that the treatment of active combatants is outside the scope of CA3:

    520 Nevertheless, outside common Article 3, humanitarian law contains a number of provisions that benefit persons during the time they are actively participating in hostilities. These include the general prohibition on the use of means or methods of warfare that are of a nature to cause superfluous injury or unnecessary suffering, and prohibitions on specific means and methods of warfare.

    Paragraph 545, which is part of point 5 itself, also makes clear that CA3’s member-against-member applicability is limited to individuals who are hors de combat:

    545 The wording of common Article 3 indicates that it applies to all persons taking no active part in the hostilities, ‘without any adverse distinction’.[289] It contains no limitation requiring a person taking no active part in hostilities to be in the power of the enemy in order to be protected under the article.

  5. It’s also important to recognise that the ICRC Commentary refers to the PTC’s confirmation of charges decision, not to the Trial Chamber’s judgment. The PTC explicitly held — rightly or wrongly — that the victim child soldiers were hors de combat at the time of (actually, because of) their rape and sexual enslavement:

    79. Nonetheless, in the view of the Chamber, children under the age of 15 years lose the protection afforded by IHL only during their direct/active participation in hostilities. That said, the Chamber clarifies that those subject to rape and/or sexual enslavement cannot be considered to have taken active part in hostilities during the specific time when they were subject to acts of sexual nature, including rape, as defined in the relevant Elements of Crimes. The sexual character of these crimes, which involve elements of force/coercion or the exercise of rights of ownership, logically preclude active participation in hostilities at the same time.

    The ICRC’s citation thus supports instead of contradicts my argument.

  6. Kevin,

    Thank you for your reply. That is not my reading of the ICRC Commentary, especially given the references therein to Ntaganda and Katanga decisions (see also para. 569 of the 2017 Commentary to the Second Geneva Convention, which additionally cites a more recent Ntaganda decision). But I agree that perhaps this point could have been made more clearly in the text.

    In any event, to my mind, the correct statement of the law is at para. 60 of the judgment, where the Appeals Chamber endorsed the Prosecutor’s view that “Common Article 3 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”. Perhaps the AC’s decision to frame its inquiry as to whether “Status Requirements” exist or not can be blamed for a part of this confusion.

    However, I do not find it particularly controversial that a child victim of rape or sexual enslavement cannot have been “actively participating in hostilities” at the material time (even if s/he was a member of an organized armed group): one excludes the other, as already recognized in the Ntaganda decision on the confirmation of charges (at para. 79 [edit: I see you have now also quoted from this decision in a later comment – so perhaps we are in agreement after all?]). A recent piece by Tilman Rodenhäuser in the JICJ, with which I entirely agree, provides a more detailed reasoning on this point: https://doi.org/10.1093/jicj/mqw006 (at 187-192).

    Cheers,
    Kubo

  7. Dear Kevin, many thanks for this very informative post. Just some doubts: I am not sure if these children were all serving continuous combat functions. If not, where is the obstacle to qualify them as civilians not, or no more (surely not at the moment in which the rapes were committed) taking a direct part in the hostilities? Furthermore, and more generally, is there any other way than plainly considering forcibly recruited and then sexually enslaved children as ‘members of the armed group’? Can membership and combatant status be legally relevant to exclude protections even if resulting from events of earlier victimisation and from conducts both prohibited under customary IHL and punished as war crimes under ICL? The impression is that, in this case, we should admit that the legal framework basically “suggests” to armed groups that it is sufficient to enlist and conscript civilians, before inflicting suffering of all kinds, in order to go unpunished… I was wondering, therefore, if we need some degree of intent of the participation in the hostilities to hold it relevant in a criminal law domain, and if we can exclude this intent when the participation is forced. If principle of culpability and duress exist for the perpetrator, perhaps something similar should exist also for the victim’s status determination.

  8. Hi Luigi,

    Strong points. The TC made a similar argument at para 55, here:

    https://www.icc-cpi.int/CourtRecords/CR2017_00011.PDF#page=29

    I think the AC refers to it somewhere, in passing, but I can’t find the passage right now.

    All the best,

    Adil

  9. According to the logic of the AC decision, any act that may be punishable by the GCs as a war crime may also qualify as a war crime when committed by two active members of the same armed force, against each other. So if soldier A murders/rapes/tortures soldier B of the same brigade while they are both on active duty, for whatever reason, is that a war crime? In my reading, the AC decision opens the door to a full array of flawed interpretations and conflation of “war crimes” with domestic criminal law.

  10. Kubo,

    It’s not a confusion — the AC did not ultimately adopt the Prosecutor’s reasoning, as paragraph 64 makes unequivocally clear:

    With regard to the second issue – namely whether Status Requirements exist in international humanitarian law specifically for the war crimes of rape and sexual slavery – the Appeals Chamber observes that the prohibitions of rape and sexual slavery in armed conflict are without a doubt well established under international humanitarian law. As noted by the Trial Chamber, protection under international humanitarian law against such conduct generally “appear[s] in contexts protecting civilians and persons hors de combat in the power of a party to the conflict”. In this regard, the question arising before the Appeals Chamber is whether such explicit protection under international humanitarian law suggests any limits on who may be victims of such conduct. In the view of the Appeals Chamber, there is no conceivable reason for reaching such a conclusion.

    The reference to “Status Requirements” is critical, because the AC makes clear in para. 16 that not taking an active part in hostilities is precisely one of the status requirements that it does not believe applies to the war crimes of rape and sexual slavery:

    The principal issue arising in this appeal is whether the Trial Chamber erred in law when it held that victims of the war crimes of rape and sexual slavery listed in article 8(2)(b) and (e) do not have to be “protected persons” in the sense of the Geneva Conventions of 1949 (“Geneva Conventions”) or “[p]ersons taking no active part in the hostilities” in the sense of Common Article 3 to the 1949 Geneva Conventions (“Common Article 3”) (so-called “Status Requirements”).

    If you can find anything in the judgment that says the war crimes can only be committed against combatants while they are not taking an active part in hostilities — ie, individuals hors de combat — I’d appreciate the reference.

  11. Luigi,

    I think the AC should have gone the route of saying that CA3 protected these victims against rape and sexual enslavement because they were at best civilians who at times directly participated in hostilities. That would clearly have been defensible. I think it could even have said that although the victims were combatants instead of civilians, the detention involved in rape and sexual slavery meant that they were in fact hors de combat at the relevant time.

    The AC, however, did not go either route. Instead, it treated all the victims as combatants and said that the war crimes of rape and sexual slavery do not require the victim to be hors de combat. That is where it went wrong.

  12. In addition, this nexus requirement in para. 68 does not convince me. A full array of ordinary crimes can be perpetrated “in the context of and […] associated with an armed conflict”. How to differentiate between them? Not to speak about nullum crimen sine legem and the right to a fair trial… But I will stop now.

  13. Kinga,

    You are exactly right. By the AC’s logic, every rape that a US soldier commits in Afghanistan or Iraq involving another US soldier is not only a violation of the UCMJ, it is also a war crime, because it satisfies the nexus and there are no status requirements for grave breaches. That cannot be correct.

  14. Hi Kevin,

    In your view, why did the AC consider “the established framework of international law” as a potential source of offense elements, not apparent on the face of the Statute, but not “the laws and customs applicable in armed conflicts not of an international character”?

    Many thanks,

    Adil

  15. Many thanks, Adil and Kevin.

    Effectively para 53 of the TC decision refers to the “duty not to recognise situations created by certain serious breaches of international law”, qualifying this duty as a general principle. In this context, the situation created by the serious breach of IL is clearly the (forced) membership/combatant status of the victims, but this is precisely what the AC, on the contrary, recognises and validates (in contrast also to what the PTC II affirmed in paras 78 to 80 of the Confirmation Decision of June 2014: https://www.icc-cpi.int/CourtRecords/CR2014_04750.PDF).

    Strange that the new judgement doesn’t address this friction.

  16. Hi Luigi,

    Well, the AC does address the friction, though not in the way you or I would like. In para 69, the AC writes that

    The Appeals Chamber notes that Mr Ntaganda has raised a number of additional arguments seeking to counter arguments he expected the Prosecutor to make as to how the child soldiers’ membership in an armed group would not preclude a finding that they were nevertheless, at the relevant time, not actively participating in hostilities. These arguments, which are premised on the existence of Status Requirements for the war crimes of rape and sexual slavery, are moot in light of the Appeals Chamber’s above finding that such Status Requirements do not exist.

    Be well,

    Adil

  17. Paragraph 69, of course, supports my interpretation of the AC’s judgment — that the AC’s holding is not limited to child soldiers hors de combat.

  18. Hi Kevin,

    Correct. To me, the “big picture” takeaway is that the ICC will interpret the Statute according to VCLT rules, taking into account relevant rules of customary law, but departing from customary law if (they judge that) ordinary meaning, context, drafting history, etc, support such a departure.

    It’s a big win for the substantive reading of the Statute (ie, the Statute creates crimes) over the jurisdictional reading (ie, the Statute gives the Court jurisdiction over customary crimes), as the TC made explicit at para 35. Most unfortunate, in my view.

    Best,

    Adil

  19. The issue has been addressed by three different chambers (pre-trial, trial and appeal) in three different manners, with the same conclusion (the ICC has jurisdiction). In my view those who got it the most right are the pre-trial judges at the time of confirmation. They stated that a person is protected under IHL applicable to NIAC in so far as he/she does not take direct part in hostilities. As the crimes of rape and sexual slavery imply an element of coercion and control, those child soldiers could not take direct part in hostilities during the time of their victimization. The pre-trial bench, at least, took the stand on such a hot issue (direct participation and loss of protected status) by choosing one paradigm, the most protective one actually: assessing on a case by case basis whether or not those child soldiers were participating in hostilities, thus loosing protection. The opposite solution would be to say that as long as you are member of an armed group engaged in a NIAC, you lose immunity from attack, regardless of whether during the day, you load a mortar, cook, clean or are raped. This is certainly the easiest interpretation for States that fight rebels armed groups and the least protective for civilians who directly participate in hostilities on a non-continuous basis.

    The pre-trial chamber’s interpretation does not mean that if you take direct part in hostilities you can be raped at the commanders’ please. You can be shot at, you can be killed and you can certainly be prosecuted for the mere fact of taking up weapons, but you can’t be abused. But that rape is a crime under national law because even if it has a connection whatsoever with the NIAC, the victim was not a civilian who had laid down arms within the meaning of IHL. And IHL protects the latter, not just everybody. So the core of the matter, as I see it, is the status of these child soldiers at the time of the commission of the charged crimes, which clashes against the main argument of the Defence, namely that there exists a principle whereby IHL protects the civilians of the opposing party to the conflict, which is the classic pillar of IHL applicable to IAC, where you have a clearer distinction between the warring sides because States fight against each other. Therefore, the Defence, actually rather logically, argued that the IHL of IAC cannot be less protective than IHL of NIAC, the latter being more rudimentary by default, as NIACs are considered as internal affairs of sovereign States.

  20. Sebastiano,

    I completely agree. It’s a shame the AC didn’t go the PTC route — which meant that it adopted a principle that is so overbroad states will never accept it, much less armed groups.

  21. Kevin and Sebastiano,
    I am surprised you seem to favour the PTC’s route. The PTC’s approach only works for rape and does not take into account the continuous nature of the crime of sexual slavery and the current state of IHL.
    Regarding child soldiers being raped as not directly participating at the time may solve the Common Article 3 issue, but leaves unaddressed the sexual slavery charge. Sexual slavery is by definition a longer term or continuous crime. During the period of sexual slavery, the child soldiers may have been DPHing for certain periods. Being abused at night (as part of the sexual slavery) leaves open the possibility of fighting during the day. That is a different form of the DPH farmer by day, fighter by night debate. That debate shows another weakness of the PTC approach: even the present most moderate approach to DPH (being the ICRC’s continuous combat function approach) recognises that the DPHing of organised armed group members (with a combat function) does not cease at moments they do not fight. The Common Article 3 protection would then not kick in, not even during rape. The more radical membership approach is even more problematic when going down the PTC route.
    Although one could solve the DPH problem by considering the child soldiers to be (akin to) hors de combat at the time of rape, this would not solve the sexual slavery problem..
    More importantly, the PTC’s approach did not address the main contention of the Defence: that IHL (in its view) does not protect members of an armed force against crimes committed by members of that same force (see Rodenhauser’s excellent article, referred to above by Kubo).
    I am not saying that the AC’s route is ideal, but you have to read it in light of the decision it was reviewing. The TC carefully analysed the matter and appears to have done so in the way that is most true to IHL. Contrary to what Kevin claims, it provides far more support than just the Martens Clause and Article 75 of API. Even if it would only rely on Article 75, how is this problematic? It is an IHL treaty provision that is considered to be customary IHL.

  22. Contrary to Andrew’s comment, the TC does not cite anything other than the Martens Clause and Art. 75 for the criminality of member-against-member violence outside of the context of victims who are hors de combat. Readers are free to judge that for themselves; the relevant paragraph is 47.

    As for AP I, there is no question that Art. 75 is customary in international armed conflict. But it is difficult to argue that it is customary in non-international armed conflict, at least with regard to member-against-member violence, given that — as I point out in the post — the parallel provision in AP II is specifically limited to individuals hors de combat and civilians.

    With regard to Andrew’s comment about sexual slavery, his points are well taken. I was not trying to argue that the PTC’s approach was perfect. I was simply trying to convey that the AC could have followed either the PTC or the TC, but instead chose a much broader position that is impossible to defend.

  23. Adil, why do you consider a substantive reading of the Rome Statute unfortunate? Isn’t the result the same as with a jurisdictional reading? Namely, the ICC has jurisdiction over the crimes listed in the Statute? In addition, I do not read the last sentence of para. 35 of the TC decision as rejecting the jurisdictional reading. However, some war crimes actually seem not to have been customary crimes at the time of their inclusion into the Rome State (see this paper: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2742154 , which is actually written by an ICC person). If not customary at the time, the Rome Statute (and the subsequent domestication of the Statute) may actually have assisted in such conduct now being considered to qualify as a customary crimes.

    Kevin, in that same regard (see aforementioned paper), you say the AC was wrong because it found a violation of IHL to exist that was not explicitly mentioned in an IHL treaty, and would appear at odds with explicit language found in such a treaty. What about the war crime of attacking peacekeepers found in 8(2)(b)(iii) and e(iii). There is no prohibition of attacking peacekeepers in the Geneva Conventions of Additional Protocols (or another IHL treaty) and peacekeepers are soldiers, who on the basis of IHL are not protected. Is the Rome Statute itself saying that a war crime does not have to violate IHL (and not just, at least according to you, the AC)?

  24. Kevin, your response to my first comment only showed up after I had posted the second one. As regard Article 75, do I understand you correctly that if the AC had limited its judgment to international armed conflict and had not made the more general statement that also included non-international armed conflicts, you would agree? (It probably could not do so, however, due to the scope of contested decision)

    I agree that the AC would better have just followed the PTC or the TC (the latter being more correct in my view) instead of broadening the issues beyond what the appeal was about.
    As regards the basis for the TC decision, I read paras. 46-52 as all supporting the TC’s finding, not just para. 47. I understand the TC to more or less say the following:

    1) IHL protection can relate to members of the same force: see Geneva Conventions I, II and III);
    2) IHL protection can relate to combatants (and not just hors de combat or civilians): see the prohibition of perfidy and the prohibition to use weapons that may cause unnecessary suffering or superfluous injury;
    3) Rape and sexual slavery are prohibited by IHL and as jus cogens norms prohibited under international law generally;
    4) Rape and sexual slavery may never be employed, not against combatants or protected persons, and not against members of opposing forces and members of the same force.

    I purposely use the word “employed” in 4), because the TC basically appears to say that the use of rape and sexual slavery is a prohibited method of warfare, just as the use of certain weapons is. If it is a prohibited method of warfare, it doesn’t matter who the victims are (for the purposes of jurisdiction), since the method would be prohibited against anyone.

  25. Andrew,

    My point focused solely on member-against-member violence where the victim was not hors de combat. I have no issue with the general point about member-on-member violence — ie, your #1. The problem is that the TC cited nothing from IHL for the idea that protection extended to active combatants other than the Martens clause and Art. 75.

    I have no problem with viewing rape and sexual slavery as prohibited methods of warfare. But those prohibitions are explicitly between parties to a conflict, so I don’t think their existence helps the AC’s case. Moreover, as I note, the ICRC commentary explicitly cites such prohibitions in para 520 to illustrate protections that apply to active combatants as well as individuals who are hors de combat — contrasting that breadth with the limits of CA3.

    Finally, I don’t think the jus cogens status of rape and sexual slavery supports the AC’s point. That status does not license the AC to invent war crimes, especially as both rape and sexual slavery are both clearly illegal even in peacetime as crimes against humanity (and potentially as genocide.)

  26. Hi Andrew,

    Thanks for the paper, which I will read with interest.

    Indeed, my practical concerns with a pure substantive reading of the Statute mainly involve retroactive application in certain contexts, including UNSC referral.

    I have some theoretical concerns too, involving whether ICL is one legal system or many. For example, is there one crime of genocide, or is there one crime of genocide-under-the-ICTR-Statute, another crime of genocide-under-the-ICC-Statute, and so on. I hope that makes sense 🙂

    Yes, the two readings will yield the same results where the Statute codifies, crystallizes, or generates customary law (which I agree it does in some cases).

    Para 35 does say “first and foremost,” so you may be right that it does not reject the jurisdictional reading entirely.

    Be well,

    Adil

  27. Andrew,

    Your point about the war crime of attacking peacekeepers is a good one. To be clear, I am not saying — nor do I think I said — that all war crimes have to violate conventional IHL. I think it’s fine if a war crime is based on customary IHL.

    As for your specific point, I can easily see the AC interpreting the war crimes you mention in an unacceptably broad way. But I do not think that peacekeepers generally qualify as combatants; I agree with the ICRC that they are civilians insofar as they are not DPH-ing. (See here.) So I think intentionally attacking them does in fact violate customary IHL. (Members of peace-enforcing missions are obviously a more difficult issue.)

  28. Andrew and Adil,

    I think we need to separate two questions: (1) whether a war crime in the Rome Statute goes beyond the limits of the corresponding customary war crime; and (2) whether a war crime in the Rome Statute is not based on a violation of IHL. War crimes in the first category are generally acceptable, except in situations where the defendant is within the Court’s jurisdiction only because of a Security Council referral. (Marko Milanovic has also written intelligently about that issue.) War crimes in the second category, however, are never acceptable, because the law of war crimes is necessarily built on IHL.

  29. Hi Kevin,

    I basically agree (there are a few other exceptions). However, on the substantive reading (which, btw, is Marko’s terminology) the only connection between “war crimes” under the Statute and violations of IHL is the connection created by the Statute itself.

    Hence my earlier question:

    In your view, why did the AC consider “the established framework of international law” as a potential source of offense elements, not apparent on the face of the Statute, but not “the laws and customs applicable in armed conflicts not of an international character”?

    Adil

  30. Intuitively, I find it difficult to imagine a rape situation where the raped person could not be considered hors de combat. doesnt rape or sexual slavery require a form of control over the victim akin to detention, thus leading to hors de combat?

  31. That was the TC’s approach, and the AC could have adopted it. But the AC didn’t, holding that being hors de combat is irrelevant.

  32. As Andrew notes above, though, that approach does not work as well for sexual slavery.

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