Contorting Common Article 3: Reflections on the Revised Icrc Commentary

• Publication year: 2017
• Citation: Vol. 45 No. 3

CONTORTING COMMON ARTICLE 3: REFLECTIONS ON THE REVISED ICRC COMMENTARY

Michael A. Newton^*

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The International Committee of the Red Cross (ICRC) Revised Commentary on the First Geneva Convention issued in 2016 advances an understanding of Common Article 3 that is supported neither by its plain text nor its negotiating history. The ICRC Revised Commentary posits as an unquestioned aspect of lex lata that Common Article 3 encompasses crimes committed during non-international armed conflicts between members of the same fighting force. This extension represents a laudable humanitarian impulse, yet it appears for the first time in the Revised Commentary as a self-standing truism without regard to its potentially lamentable larger effects. The ICRC also embraces without caveat what appears to be an unseemly symbiosis with ongoing litigation in the International Criminal Court (ICC) case Prosecutor v. Bosco Ntaganda.

This short Essay describes the circularity of support between the ICRC and the Chambers of the ICC. Its successive sections describe the problematic potential of extending the substantive coverage of Common Article 3 to encompass members of the same armed group who commit criminal acts against one another.¹ In particular, the Revised Commentary fails to address the due process ramifications of an enlarged Common Article 3, even as the development of the text documented by the readily available negotiating record warrants an alternative understanding. Lastly, the ICRC position could indicate a radical shift in the very design of the field of international humanitarian law.² This Essay closes by restating the

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imperative balance between military pragmatism and humanitarian imperatives that is preserved by the careful blending of values within the laws and customs of warfare. While wholly appealing on humanitarian grounds, particularly on the facts presented in Ntaganda, the reconceived approach to Common Article 3 may well endanger the larger structure of international humanitarian law. The Revised ICRC Commentary omits any mention of these competing concerns.

Common Article 3 represents by all accounts one of the "most important Articles" of the 1949 Geneva Conventions.³ As such, it figures prominently in the modern jurisprudence.⁴ The ICRC Commentary of 2016 explains and strengthens the extant jurisprudential basis for applying Common Article 3 in admirable ways. The Revised ICRC Commentary does great service to the profession and public by providing a tour de force of the structure and law behind Common Article 3 as it has evolved since the 1952 publication of the classic Pictet Commentaries (also issued under ICRC auspices).⁵ In modern operations, the mandate for humane treatment to all persons is unquestionably established as one of the most important legal tenets restraining unfettered military discretion. The principle of humane treatment without adverse distinction is explicit on the face of Common Article 3 vis-à-vis civilians and persons who are not participating in the conflict, but flows through other norms to require fighters to "refrain from cruelties and perfidious acts also against fighters" during all armed conflicts.⁶

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Nevertheless, the normative structure of jus in bello exists to empower those in the vortex of armed conflicts to balance legitimate military needs whilst simultaneously achieving larger humanitarian imperatives. In the memorable framing of Yoram Dinstein, "every single norm" within the laws and customs of armed conflict operates as "a parallelogram of forces; it confronts an inveterate tension between the demands of military necessity and humanitarian considerations, working out a compromise formula."⁷

The Revised ICRC policy position extending⁸ the application of Common Article 3 to intra-party offenses committed by participants in the conflict contorts its meaning and clouds the larger normative framework of the jus in bello. To be clear, the ICRC Commentary asserts without support that normal domestic criminal law may be bypassed in favor of prosecution based on Common Article 3 during an armed conflict not of an international character when conduct proscribed by its substantive provisions has been committed by members of an armed group against victims fighting in the same military or para-military organization. No examples of state practice or jurisprudence support the ICRC assertion that the humanitarian protections embedded in Common Article 3 may be extended to such intra-force offenses. The ICRC simply cites to the ICC Prosecutor's position in charging Bosco Ntaganda as evidence that such an extension is warranted.⁹

Reliance on the ICC charging documents by the ICRC represents an aspirational statement of lex ferenda because it is divorced from tenets of established law and state practice. In fact, the ICC Prosecutor pointedly went out of her way during her public press conference in the case of Prosecutor v. Bosco Ntaganda to express her pride that the theory of the case by which the law of war encompasses "crimes committed against his own group" represents "an innovation that the Office of the Prosecutor will be

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bringing to international criminal justice."¹⁰ Until Ntaganda, the premise that "the laws of war applicable in internal armed conflicts bind members of armed forces and armed groups vis-à-vis their opponents who share the same nationality" was unchallenged in academia or extant case law.¹¹ Indeed, the ICRC website summarizes Common Article 3 by noting that it "requires humane treatment for all persons in enemy hands," because the text functions like "a mini-Convention within the Conventions as it contains the essential rules of the Geneva Conventions in a condensed format and makes them applicable to conflicts not of an international character."¹²

The text of the Revised 2016 Commentary does embed an odd duality in that it also reflects the conventional understanding of Common Article 3 by noting that non-state participants in conflicts "may be prosecuted under domestic law for their participation in hostilities, including for acts that are not unlawful under humanitarian law" articles of the Conventions.¹³ As any modern practitioner recognizes, the full range of applicable human rights treaties also protects various dimensions of humane treatment and remains fully binding during non-international armed conflicts.¹⁴ This in turn means that differing bodies of law, along with differing judicial enforcement mechanisms, operate alongside each other to provide remedies for impermissible inhumane treatment during armed conflicts.¹⁵

The universal practice since 1949 has been to treat participants in an armed conflict of a non-international character as remaining fully subject to the domestic criminal laws applicable either to their national jurisdictions or the state that would normally exercise territorially based criminal jurisdiction. In other words, the conventional and long-established framing is that Common Article 3 instantiates fundamental humanitarian protections to a defined set of victims caught in the midst of armed conflicts. The text plainly states that Common Article 3 prohibits acts "committed against persons taking no active part in the hostilities."¹⁶ It predates the development of human rights treaties, and is best understood in the modern era as a supplementary gap-filler that creates a seamless web of basic rights

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applicable to all armed conflicts. The core substantive protections that flow in the original text of the Geneva Conventions modify the concept of "persons taking no active part in hostilities" by referring to crimes committed "with respect to the above-mentioned persons."¹⁷ Thus, the concept of protecting persons "taking no active part in the hostilities" is the load-bearing pillar from which the humanitarian protections of Common Article 3 flow.

Despite this textual clarity, the Revised ICRC Commentary embarks upon an unsupported teleological theory to innovate a broader scope of Common Article 3. Relying solely on the Prosecutor's position in the charges filed in Ntaganda, the Revised Commentary posits without caveat that "armed forces of a Party to the conflict benefit from the application of common Article 3 by their own Party."¹⁸ It accordingly concludes that "[t]he 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."¹⁹ As a textual matter, this ICRC framing misstates the central dimension of Common Article 3, which is to provide core protections to civilians, persons rendered hors de combat for any reason, and all others "taking no active part in hostilities."²⁰ The only purported justification for this dramatic reformulation of Common Article 3 is the premise that distinguishing between civilians and active participants in an armed conflict not of an international character is complicated due to shared nationality of all participants. Hence, the text posits as a self-standing justification that "[l]imiting protection under common Article 3 to persons affiliated or perceived to be affiliated with the opposing Party is therefore difficult to reconcile with the protective purpose of common Article 3."²¹

The mutually reinforcing analysis between the ICRC and the ongoing litigation is clear upon closer examination. In filings that predated the release of the ICRC Commentary, the ICC Office of the Prosecutor argued in Ntaganda that the charges against an alleged perpetrator²² for the rape of

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child soldiers and the war crimes of sexual slavery against those same persons refers to "children under the age of 15 years of age who were members of the UPC/FPLC [using the titles of the insurgent non-state actor forces]" were warranted under Common Article 3.²³ The ICC Prosecutor amended the original charges against Ntaganda to include violations of Article...