Can War Crimes Be Committed by Military Personnel Against Members of Non-Opposing Forces?
There is a commonly held view that international humanitarian law (IHL) exists to regulate the behaviour of adverse parties against each other during times of armed conflict, and that it does not concern itself with harm inflicted by one party to a conflict upon its own, or other non-opposing, forces. If a situation occurs where a crime is committed by a member of a military force against a member of a non-opposing military force, this is not a violation of IHL and consequently cannot constitute a war crime.
This Brief challenges the traditional position, arguing that several important IHL provisions protect those involved in an armed conflict regardless of their affiliation, and that breaches of these provisions constitute war crimes. It then considers the terms of the Statute of the International Criminal Court (ICC Statute) and explores when the International Criminal Court (ICC) has jurisdiction over such crimes, and whether its jurisdiction differs depending upon whether the conflict in question is classified as an international or a non-international armed conflict.