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ICC expands definition of war crimes to cover combatants in the same armed forces

Union of Congolese Patriots (UPC) child soldiers on the streets of Bunia in 2003 following a ceasefire with government. Reuters/Antony Njuguna

The international law of armed conflict seeks to protect civilians and those no longer taking part in hostilities from the worst effects of war. Serious violations of these laws covering armed conflict situations constitute war crimes. War crimes are a particular category of international crime, which can be tried by international criminal tribunals, like the International Criminal Court (ICC).

To date, the majority of war crimes prosecutions in international criminal tribunals have focused on crimes committed against civilians in armed conflicts. In last year’s Bemba judgment, for example, the ICC heard of a campaign of mass rape committed against civilians in the Central African Republic.

War crimes can also be committed against combatants, provided that they are no longer taking part in hostilities. Certain methods of warfare (such as the use of poisoned weapons) are also prohibited. The aim is to protect combatants on the battlefield.

The traditional assumption has been that war crimes against combatants can only be committed against soldiers from the other side of the armed conflict. The reasoning behind this interpretation was that crimes or human rights violations committed against one’s own armed forces were a matter for states themselves to deal with under their domestic criminal law or human rights law.

But the ICC passed down a decision earlier this month that extends protection under international criminal law to cover war crimes committed within armed forces. Its ruling accepts the argument that victims of crimes perpetrated by people on the same side of an armed conflict should be protected.

Breaking new ground

The ruling was preceded by a suggestion made by the International Committee of the Red Cross that perhaps war crimes could be committed against members of the same armed forces. An example it cited was the rape of one soldier by another in the same armed group. It argued that the fact that the crimes were committed by persons from their own side should not be reason to deny victims protection under the law of armed conflict.

The ICC agreed with this interpretation in its decision. It held that acts of rape and sexual slavery committed by members of a Congolese armed group against other members were war crimes within the jurisdiction of the ICC. The victims were principally girls forcibly recruited as child soldiers for the Union of Congolese Patriots and its military wing, the Patriotic Forces for the Liberation of Congo. The accused, Bosco Ntaganda, is former Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo.

This decision, in holding that rape and sexual slavery as war crimes could be committed against any person “irrespective of any legal status”, meant that the court could avoid determining the tricky issue of whether the victims were “members” of the armed forces. To do so would have meant recognising that those victims who also took direct part in hostilities lost their protection under the laws of armed conflict.

Brave new definition

The decision is likely to be hugely significant. Allegations of mistreatment against members of armed forces by fellow soldiers are not uncommon, as seen from the recent Deepcut Barracks inquest. In that inquest, there were repeated allegations of physical and sexual abuse. Following this recent ICC decision it would not be unreasonable to suggest that the allegations constitute not just domestic crimes, but international crimes as well.

Similarly, it is a war crime to deny the right to a fair trial. In the past, we might have expected that this relates only to prisoners of war or civilians detained by armed forces. But, following the ICC’s interpretation, it could be argued that it is also a war crime for an armed force to deny its own members a fair trial.

This could, for example, be pertinent in light of allegations that high profile former members of armed forces, such as Chelsea Manning, convicted for passing information to Wikileaks, were not given a fair trial by the courts martial that tried them.

The ICC’s expansive interpretation in this case could well be met with hostility from states, at a time that the ICC is facing increased pressure, including recent withdrawals from the court’s statute.

The ICC’s decision was clearly founded on the laudable aim of recognising the victimhood of young girls forcibly abducted and turned into child soldiers who were then subjected to rape and sexual slavery. But it might have been wise for the Court to have limited this interpretation to these particular war crimes and the particular circumstances of the Ntaganda case.

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