Traditionally, the view has been that military personnel cannot commit war crimes against other military personnel fighting for the same side. This was the conclusion reached in a handful of cases following the Second World War and, more recently, by the Special Court for Sierra Leone (SCSL) in the RUF case. However, was the Trial Chamber of the SCSL correct in holding 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)?
Certainly, some key IHL treaty provisions only apply as regards members of opposing forces, the most obvious example being that only those persons who ‘have fallen into the power of the enemy’ qualify for prisoner of war status (Article 4A, Geneva Convention III). However, there are several important IHL treaty provisions which apply regardless of affiliation: the protections for the wounded, sick and shipwrecked granted in Geneva Conventions I and II apply to members ‘belonging to a Party to the conflict’ and in Additional Protocol I ‘to whichever Party they belong’. The fundamental guarantees granted in Article 75 of Additional Protocol I apply to ‘persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or this Protocol’. Common Article 3 of the Geneva Conventions applies to ‘persons taking no active part in hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’. The fundamental guarantees provided by Article 4(1) of Additional Protocol II apply to ‘all persons who do not take part or who have ceased to take part in hostilities’.
There is, therefore, a strong argument to be made that IHL imposes some obligations on a party to a conflict to protect members of non-opposing forces and, as a corollary to that, that violations of these obligations constitute war crimes.
A surprise awaits when one considers the provisions of the Statute of the International Criminal Court from the perspective of when the Court has jurisdiction over war crimes committed against members of non-opposing forces.
In international armed conflicts (IACs), Article 8(2)(a) of the Statute gives the Court jurisdiction over grave breaches of the Geneva Conventions. As members of non- opposing forces are not POWs under Geneva Convention III, or civilians under Geneva Convention IV, the only grave breach provisions which apply are grave breaches of Geneva Conventions I and II- if they are wounded, sick or shipwrecked at the time of the alleged offence.
Article 8(2)(b) of the Statute gives the Court jurisdiction over other serious violations of the laws and customs of war applicable in international armed conflicts (IACs). Some of these provisions apply only to enemy military personnel, such as Article 8(2)(b)(vi) ‘[k]illing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion’ and Article 8(2)(b)(xi), [k]illing or wounding treacherously individuals belonging to the hostile nation or army’. In fact, only three war crimes listed in Article 8(2)(b) appear to allow for the victims of the crime to be members of non-opposing forces- committing outrages upon personal dignity (Article 8(2)(b)(xxi)); crimes of sexual violence (Article 8(2)(b)(xxii)) and the recruitment and use of children under 15 to participate actively in hostilities (Article 8(2)(b)(xxvi)).
This means that in IACs the Court lacks jurisdiction over war crimes committed against members of non-opposing forces who have been detained- while such cases involving war crimes involving sexual violence, the recruitment and use of child soldiers and outrages upon personal dignity may be brought before it, the war crime of murdering a detained victim who was a member of a non-opposing force may not be.
In contrast, in non-international armed conflicts (NIACs) the ICC Statute gives the Court a wider scope in these types of cases. Under Article 8(2)(c) it has jurisdiction over serious violations of Common Article 3 of the Geneva Conventions. Thus, providing it can be shown that the alleged victim was taking no active part in hostilities at the time of the alleged crime – which arguably includes members of non-opposing forces who have been detained, as well as those who are wounded, sick or shipwrecked – the provision contains a wider variety of war crimes than those available to the Court in IACs, including ‘murder of all kinds’. In addition, the Court has jurisdiction over crimes of serious sexual violence (Article 8(2)(e)(vi)) and the recruitment and use of children under fifteen to participate actively in hostilities (Article 8(2)(e)(vii)) in NIACs.
Thus, in an unusual turn of affairs, the ICC Statute gives the Court jurisdiction over a wider range of war crimes in cases involving alleged victims who were members of non-opposing forces in NIACs than in IACs. This state of affairs is unsatisfactory. It is not unusual for atrocities to be perpetrated against members of non-opposing armed forces, sometimes in situations where the victims have shown real bravery – for example when military personnel are executed for refusing to obey an order to attack civilians. In such cases, the ICC should have a full range of options available to it, regardless of the affiliation of the victim.
This is an abbreviated version of a Brief prepared for the International Crimes Database.