Guest Post: Is the Execution of Collaborators a War Crime under the Rome Statute? (Part II)

[Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway and the author of Judges, Law and War; the Judicial Development of International Humanitarian Law (Cambridge, 2014). This is the second part of a two-part series. The first post can be found here.]

Following on from the first part of this essay, which introduced the consideration given by the United Nations Commission of Inquiry into the 2014 Gaza Conflict to the ill-treatment and execution of Palestinians alleged to have collaborated with Israel, this second part looks at the practice in light of the war crimes provisions of the Rome Statute of the International Criminal Court.

Grave Breaches of the 1949 Geneva Conventions

Not all of the war crimes provisions of the Rome Statute are defined in relation the adverse party, particularly those applying in non-international armed conflicts, although this at times implicit, most notably with regard to grave breaches of the 1949 Geneva Conventions. Grave breaches under Article 8 of the Rome Statute can only arise if committed against persons protected by those treaties – under the Fourth Geneva Convention, protected persons are considered to be those who find themselves in the hands of a party to the conflict or Occupying Power of which they are not nationals. The ICTY famously sought to dilute this nationality requirement in Tadić by emphasising allegiance, and the ICC’s Elements of Crimes can be considered to partially reflect this approach when they state that in relation to the grave breach of wilful killing, a perpetrator need only know that “the victim belonged to an adverse party to the conflict”. The Pre-Trial Chamber in Lubanga applied the Tadić approach to nationality, albeit in the context of interpreting “national armed forces” in the context of recruiting child soldiers, rather than protected persons under the Fourth Geneva Convention.

The Commission of Inquiry on the 2014 Gaza Conflict concurred with prevailing international opinion that Gaza remains occupied territory and that the laws of occupation, including the Fourth Geneva Convention, continue to apply. But Palestinians detained by the authorities in Gaza would generally not be considered as protected persons under the Fourth Geneva Convention, as they do not belong to an adverse party to the conflict. Those that collaborate with Israel could be considered to have somehow switched sides and changed their allegiance. Would their actions have to have amounted to direct participation in hostilities, such as by relaying the location of Hamas fighters or weapons, or would more minor forms of collaboration suffice, such as relaying messages or money? Treating cooperation with an opposing force as a switching of allegiance could lead to the absurd situation where protected person status might arise for those that voluntarily engaged in collaboration, but not those coerced into doing so. Assessing this on an individual basis would be extremely difficult given the secrecy surrounding these practices.

The Gaza Commission noted in a footnote the overlap and distinction between war crimes in international armed conflict and non-international armed conflicts under Article 8 of the Rome Statute, but it did not apply the distinctions in any great detail in its analysis. It refrained from classifying the hostilities between Israel and Palestinian armed groups as amounting to either an international or non-international armed conflict, claiming that there is “very little substantive difference” in the customary international law applicable to both when it comes to the rules governing conduct of hostilities. Debate exists as to the status of the hostilities between Israel and Palestinian armed groups – the ICC Prosecutor has previously considered the situation in Gaza “within the framework of an international armed conflict”. Perhaps the strictures of the grave breaches regime might be softened by reference to the protections of Article 75 of Additional Protocol I, which insists on humane treatment and fair trial rights for any person in the power of a party to the conflict. The Court has said that it will only apply “the established principles of the international law of armed conflict” as referred to in Article 21, where there is a lacuna in the Statute, Elements of Crimes or Rules.

Common Article 3 War Crimes

The Gaza Commission used Common Article 3 in assessing the lawfulness of the treatment of civilians and those hors de combat by Palestinian armed groups. The “protected person” conundrum under grave breaches does not arise for war crimes based on Common Article 3 as set out in Article 8(2)(c) of the Rome Statute, but such crimes must have occurred in an armed conflict “not of an international character”. It is unlikely that an armed conflict can be said to have existed at the time between Palestinian armed groups and the Palestinian Authority forces, even though some of the executions and cases of ill-treatment observed by the Commission “were directed against persons who had links with Fatah and the Palestinian authorities’ security forces and may have been acts of revenge”. If the hostilities between Israeli forces and Palestinian armed groups were classified as a non-international armed conflict, it might still be asked if the law of war crimes extends to the ill-treatment by either party of their own civilians. Neither Common Article 3 nor Additional Protocol II make such a distinction, setting out fundamental guarantees for those who do not or who have ceased to take part in hostilities. Perhaps the notable broadening of the law of non-international armed conflict, and the attendant expansion of the concept of war crimes beyond international armed conflicts, challenges this idea that war crimes can only be committed against the opposing side (or sides) during a conflict. For a non-international armed conflict confined to the territory of a State, surely all civilians formally belong to the same overall power, even if some may profess allegiance or fall under the control of one or other parties to the armed conflict within that State.

Nevertheless, the war crimes provisions of the Rome Statute related to non-international armed conflict include some references to combatants and the property of “an adversary”. It is a war crime to physically mutilate persons “who are in the power of another party to the conflict”. When assessing the requirement that there be a nexus between an armed conflict and the alleged conduct, an ICC Pre-Trial Chamber cited amongst possible factors “the fact that the victim is a member of the opposing party”. This is not an absolute requirement though, and it has been cited in jurisprudence of both the Special Court for Sierra Leone and the ICTY where the tribunals found that the ill-treatment and killing of suspected or perceived collaborators were war crimes committed in internal armed conflicts. The Commission of Inquiry on Syria has described as unlawful killings the numerous deaths of suspected collaborators at the hands of various parties to the conflict.

The abuses perpetrated against alleged Palestinian collaborators are against civilians who are accused having provided information, often under coercion, to the Israeli authorities. The Gaza Commission did not take issue with the trial and punishment of those killed, but rather that they were executed summarily or before legal proceedings against them had been completed. The death penalty itself was not at issue. The link to the armed conflict referred to by the Commission, but not specified, may have been the provision of information to the opposing side. What then of those civilians merely labeled as collaborators, but who may have been tortured and killed as a matter of revenge or the settling of political scores? In the past, many Palestinians accused of involvement in prostitution or drug-dealing were also killed as collaborators. The ICTY has noted that “[n]ot all unlawful acts occurring during an armed conflict are subject to international humanitarian law”. Would the occurrence of such crimes during a military occupation, albeit not by the forces of the occupying power, mean that they are sufficiently “in the context of and was associated with” an armed conflict (albeit of an international nature)? If these killings by Palestinian armed groups qualify as war crimes, then so too might the torture and ill-treatment of Palestinian detainees at the hands of the Palestinian Authority. A key issue is determining at what point criminal acts by Palestinian armed groups against Palestinian civilians become war crimes, over which an international tribunal can potentially exercise jurisdiction.

Extra-judicial executions are undoubtedly criminal acts, which violate both human rights law and the fundamental guarantees of international humanitarian law as set out in Common Article 3. They can also amount to war crimes under customary international law and the Rome Statute of the International Criminal Court, although the two are perhaps not coterminous. The extra-judicial execution of alleged Palestinian collaborators by Palestinian armed forces and the context in which they occur raise difficult legal questions which the Gaza Commission overlooked. Such questions may eventually come to be addressed by the International Criminal Court itself.