Fighting and Victimhood in International Criminal Law

Joanna Nicholson

• Publisher: Routledge
• Year: 2017
• eBook ISBN: 9781317210542
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The act of fighting or being a fighter has certain consequences in international law. The most obvious example can be found in international humanitarian law, where a distinction is drawn between fighters and civilians, with fighters being military objectives and civilians being protected from attack. Another example is from international human rights law, where it has been held that the particular characteristics of military life have to be taken into account when interpreting the human rights of members of state armed forces. This volume focuses on the field of international criminal law and asks the question: what relevance does fighting have to victimhood in international criminal law?

Among the topics which are explored are: how have international criminal courts and tribunals untangled lawful casualties of war from victims of war crimes? How have they determined who is a member of an organised armed group and who is not? What crimes can those who fight be victims of during hostilities? When does it become relevant in international criminal law that an alleged victim of a crime was a person hors de combat rather than a civilian? Can war crimes be committed against members of non-opposing forces? Can persons hors de combat be victims of crimes against humanity and genocide? What special considerations surround peacekeepers and child soldiers as victims of international crimes?

The author carries out an in-depth exploration of case law from international criminal courts and tribunals to assess how they have dealt with these questions. She concludes that the import of fighting upon victimhood in the context of international criminal law has not always been appreciated to the extent it should have been.

1 Introduction

‘Soldiers are not as other men.’¹ A divide has existed between those who fight and the rest of us since time immemorial,² and while the nature of this divide may change with the times, it endures nonetheless.³ During peacetime, this separation between military personnel and civilians manifests itself in various ways,⁴ but it is in times of conflict that the distinction becomes most apparent.

Differences between fighters and civilians emerge in a number of fields of international law. The most obvious example occurs in international humanitarian law (IHL), the foundations of which rest upon the premise that there is a distinction between combatants and civilians, with the former being liable to attack (unless hors de combat) and the latter being protected (unless directly participating in hostilities – DPH).⁵ However, differences exist in other areas too: in the field of human rights, for example, the European Court of Human Rights (ECtHR) has held that the interpretation and application of the European Convention on Human Rights (ECHR) can be different when being applied to members of state armed forces than when being applied to civilians;⁶ while in international criminal law (ICL), military personnel have been held to different standards of behaviour than their civilian counterparts. In the case of Erdemović, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) was required to consider whether the defence of duress was available to a soldier who had been forced to take part in a firing squad and kill innocent people. The soldier’s superior officer had threatened to shoot him if he refused to comply with the order to fire.⁷ Majority Judges McDonald and Vohrah stated:

we are of the view that soldiers or combatants are expected to exercise fortitude and a greater degree of resistance to a threat than civilians, at least when it is their own lives which are being threatened. Soldiers, by the very nature of their occupation, must have envisaged the possibility of violent death in pursuance of the cause for which they fight. The relevant question must therefore be framed in terms of what may be expected from the ordinary soldier in the situation of the Appellant.⁸

The majority held that ‘soldiers or combatants’ could not plead the defence of duress when innocents had been killed, leaving open the possibility that a civilian acting under similar conditions could rely on the defence.⁹ That an individual has been involved in the fighting, therefore has consequences in international law.

This book explores the nature of the divide between those involved in fighting and those who are not in a specific context, that of ICL. It asks what difference the act of fighting has to victimhood in ICL. When, and in what way, should an international criminal tribunal (ICT) take cognisance of the fact that an alleged victim had been involved in fighting? What consequences arise in ICL if an alleged victim had been fighting? Of what crimes can they and can they not be victims? These questions are analysed by reference to treaty law and decisions from ICTs, with particular emphasis upon cases from the International Criminal Court (ICC), the ICTY, the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL). It is not the intention of this book to provide a list of every international crime that can be committed against those involved in fighting, but rather to explore some of the more intriguing legal issues that can arise.

Atrocities against those who fight do not feature as prominently before ICTs today as they have done in the past. The majority of atrocities in contemporary armed conflicts are committed against civilians.¹⁰ Civilians are protected under international treaties and customary law, and international bodies and non-governmental organisations (NGOs) work tirelessly to promote their protection.¹¹ This emphasis is reflected in the cases appearing before ICTs, the majority of which concern civilian victims.¹² This is a relatively new development: the Leipzig trials held in the wake of the First World War predominately considered cases where combatants had been victims,¹³ reflecting the fact that most of the casualties in the war had been military rather than civilian. Military personnel were also prominent as victims in the trials held in the post-Second World War period, primarily as prisoners of war (POWs).

While relatively few contemporary ICL cases have considered crimes committed against those who fight, this does not mean that such incidents have not fallen under the jurisdiction of an ICT. In the Katanga case from the ICC, for example, there was credible evidence that atrocities had been committed against persons hors de combat,¹⁴ but no charges were brought concerning these potential crimes.¹⁵ Clearly, prosecutors must take many factors into account when determining which particular incidents to prosecute,¹⁶ and there were probably sound prosecutorial reasons for focusing on the civilian victims in that particular case. Nevertheless, one cannot help having the overall feeling that military personnel tend to be perceived as being the perpetrators of atrocities, rather than the victims of them.¹⁷

1.1 A note on terminology

Different categories of people can be involved in fighting during an armed conflict: members of state armed forces; members of organised armed groups; and civilians who DPH. For the purposes of this book, it has proved challenging to find a suitable uncontroversial collective term to encompass those who are involved in fighting.

One option is the term ‘combatant’. Combatant status is defined in treaty law and carries an entitlement to certain rights and privileges;¹⁸ yet the word ‘combatant’ is also frequently used in a generic sense to mean those who are involved in fighting, regardless of their legal status. Until the middle of the twentieth century, ‘combatant’ tended to be used to describe the conduct of a person, while the word ‘belligerent’ was used to describe status.¹⁹ From the 1950s onward, the term ‘belligerent’ fell out of favour as a means of describing status, and ‘combatant’ began to be used in its place. It is the sense of having a particular status that is currently used in IHL treaty law. Nevertheless, the term ‘combatant’ continues to be used in both senses: colloquially as a means to describe conduct, and legally as a means to describe status.²⁰ The tendency to use the term ‘combatant’ when referring to those who fight in general permeates legal literature and case law, yet, due to its specific meaning in treaty law, its use in a generic sense in a legal context can cause unnecessary confusion.²¹

Another possibility would be to distinguish between ‘lawful combatants’, i.e. those who have combatant status, and ‘unlawful combatants’, i.e. those who fight without having combatant status. This terminology came into vogue in the years following the attacks on the United States on 11 September 2001.²² The terms are unsatisfactory for several reasons: the term ‘lawful combatant’ is a tautology, as to be a combatant is to be a lawful fighter under IHL, in that only combatants have the right to DPH.²³ Furthermore, the terms are particularly confusing if used in the context of a non-international armed conflict (NIAC), where the concept of combatant status does not apply.²⁴ Indeed, one could potentially describe all of those who fight in a NIAC as ‘unlawful combatants’, but this too is unsatisfactory, as most states would not regard members of their own armed forces as being ‘unlawful combatants’.²⁵

A further choice would be to use the term ‘fighter’. Precedent exists for using the term in a legal context as a means of avoiding reference to the term ‘combatant’, with its corresponding legal implications. Most notably, the San Remo Manual makes use of ‘fighter’ in the context of NIACs,²⁶ but there are also increasing examples of ICTs using ‘fighter’ as an alternative to ‘combatant’ in their judgments.²⁷ Although the term has generally been used in the context of NIACs, it is also useful in the context of international armed conflicts (IACs), as not all of those who are fighting necessarily have combatant status. The term is not without its disadvantages, however. It is vague. Its use has been discounted by those involved in the drafting of IHL documents, as ‘fighter’ would be translated into ‘combatant’ in a number of other languages in any event.²⁸ In addition, including civilians who DPH on an intermittent basis within the term ‘fighters’ is not a particularly satisfactory solution.

The choice of a suitable term has therefore not been easy. Throughout the book, the term ‘combatant’ is principally used to describe those who qualify for combatant status under IHL. In the event that it is used in a generic sense, this will be made clear. Otherwise, the book refers to ‘those who fight’ or to ‘fighters’ to encompass anyone who is involved in the fighting, including members of state armed forces, members of dissident armed forces or other armed groups, and civilians who DPH. If only one type of fighter is being discussed, for example members of state armed forces, this will be made clear in the text.

1.2 Outline of the book

The book begins by exploring how ICTs have untangled victims of war crimes from lawful casualties of war. Chapter 2 explains that war crimes involving persons can be divided into two categories: one where the primary focus is on the status of the alleged victim as a civilian; and the other where the primary focus is on the victim’s conduct as not actively/directly participating in hostilities (APH/DPH). The chapter argues that this distinction between status and conduct has not always been fully appreciated or understood in ICL. It analyses how ICTs have addressed issues in relation to these two categories of crimes, and explores how ICTs have identified who was a victim of a war crime rather than a legitimate military target.

IHL prohibits certain means and methods of warfare from being used during armed conflicts and violation of these prohibitions are war crimes. Although combatants and other fighters are legitimate military targets unless hors de combat, they are also protected by some of these IHL provisions during hostilities. Chapter 3 discusses these war crimes and explores when the fact that an alleged victim had been involved in the fighting becomes relevant.

As soon as fighters become hors de combat they can be victims of many of the same crimes as civilians; however, s...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgments
• Abbreviations
• Table of cases and treaties
• 1. Introduction
• 2. Untangling victims of war crimes from lawful casualties of war
• 3. Fighting and war crimes involving prohibited means and methods of warfare
• 4. War crimes and persons hors de combat
• 5. Members of non-opposing forces as victims of war crimes
• 6. Child soldiers
• 7. Peacekeepers
• 8. Crimes against humanity, genocide and fighting
• 9. Conclusion
• Bibliography
• Index