“Attacks” against Hospitals and Cultural Property: Broad in Time, Broad in Substance

On behalf of the Public International Law and Policy Group (PILPG), we recently filed an amicus curiae brief with the International Criminal Court (ICC) in the appellate case of Bosco Ntaganda. In this post, we will briefly discuss the main arguments we raised in the brief.[1]

The General Meaning of the Terms “Attack,” “Act of Hostility,” and “Ratissage Operation”

While not limited to a single meaning in international law, “attack” is defined in Article 49(1) of Additional Protocol I (API) as “acts of violence against the adversary, whether in offence or in defence.” The same definition applies to non-international armed conflicts. It is traditionally understood that “attacks” occur during the “conduct of hostilities,” or the period of armed conflict during which “combat action” (the “methods and means of warfare”) takes place.

However, the meaning of “attack” is broader in the context of hospitals and cultural property and must account for the conduct of hostilities and its aftermath. This would include a ratissage operation—taken here to mean a series of acts committed outside the conduct of hostilities that may include the abduction, assault, or killing of civilians and the ransacking or looting of residential, commercial, or public property.

Protections for cultural property in international humanitarian law (IHL) are often defined by reference to “act(s) of hostility,” rather than by the term “attack.” An “act of hostility” is broader in temporal and substantive scope than an “attack.” It is limited neither by the adversarial element nor the ordinary association with the conduct of hostilities, and thus includes ratissage operations.

The Temporal Element of the Term “Attack” under Article 8(2)(e)(iv)

There are four compelling reasons to support an interpretation of “attack” under Article 8(2)(e)(iv) that extends beyond the conduct of hostilities and includes ratissage operations.

First, the “established framework of international law” clause—which shapes the meaning of all subparagraphs in Article 8(2)(e)—protects hospitals and cultural property well beyond the hostilities phase of armed conflict. Under IHL, such properties are protected “at all times” and against all “act[s] of hostility,” meaning all substantially detrimental “act[s] arising from the conflict.” The drafters of Additional Protocol II (APII) were especially concerned to prevent retaliatory action taken against hospitals or cultural property during post-hostilities ratissage operations, as illustrated by an earlier version of Article 16 stating that such properties “must not be made the object of reprisals.” This same concern is reflected in the final language of Article 16. The Article broadly protects cultural property against “acts of hostility,” as opposed to the narrower protection against “attacks” granted to other forms of property in APII.

Second, a textualist study of the origins of Article 8(2)(e)(iv) and a review of the relevant drafting history lead to the conclusion that “attack” was intended to include ratissage operations. The language of Article 8(2)(e)(iv) is sourced largely from two provisions of the 1907 Hague Regulations: Article 27—which applies during “sieges and bombardments”—and Article 56—which applies during occupation. While some have contended that Article 8(2)(e)(iv) is based solely upon Article 27, an ICRC analysis presented by several State delegations to the Preparatory Commission in 1999 lists Article 56 as a source for the provision as well.

Even if it is accepted, arguendo, that Article 56 was “dropped” from the negotiations of Rome Statute Article 8(2)(e)(iv), the term “attack” nonetheless extends further in time, based on a close reading of the language of Article 27 alone. In fact, “sieges” and “bombardments” are each subclasses of the umbrella category of “attacks.” The shift from “sieges and bombardments” in Article 27 to “attacks” in Article 8(2)(e)(iv) thus represents a conscious choice to expand the scope of protection beyond the conduct of hostilities. This interpretation is also bolstered by the conceptual similarity between “sieges” and ratissage operations, both of which connote continuous action in areas where hostile forces have assumed elements of effective control not necessarily amounting to an occupation.

Third, the object and purpose of the Rome Statute supports an interpretation of “attack(s)” in Article 8(2)(e)(iv) that includes ratissage operations, even if the same term is interpreted otherwise elsewhere in the Statute. The Court’s adoption of the API Article 49(1) definition of “attack” with respect to other provisions of the Statute need not determine its approach to the specific instance of Article 8(2)(e)(iv). The Statute features many terms with contextually variant meanings, such as “torture,” “conduct,” and “jurisdiction.” When competing interpretations exist, the principle of effectiveness counsels the selection of the one that best fulfils the treaty’s object and purpose. In this case, that would be to safeguard the international-law protections for hospitals and cultural property.

Fourth, a broader conception of “attack” is required in order to avoid leaving a chronological gap in IHL protections for hospitals and cultural property during the transitional phase of conflict (during which ratissage operations frequently occur) between the conclusion of the conduct of hostilities and the formal onset of occupation. According to the International Criminal Tribunal for the former Yugoslavia, protections for property under occupation—unlike similar protections for individuals—generally do not take effect until “the authority of the occupying power has been actually established.”

A narrow construction of the 1907 Hague Regulations would therefore leave a puzzling disjuncture in the scope of its protections. Cultural property would be protected under Article 27 during sieges and bombardments and under Article 56 during occupation, but arguably not during intermediary ratissage operations. The Rome Statute drafters’ observed preoccupation with hospitals and cultural property—along with the heightened protections they enjoy in IHL vis a vis other classes of property—suggests that this gap should not be permitted to persist under Article 8(2)(e)(iv).

The Term “Attack” in Article 8(2)(e)(iv) Includes Acts of Pillaging and Destruction  

There are three significant grounds that support recognizing that the substantive scope of “attack” under Article 8(2)(e)(iv) includes pillaging and destruction.

First, reading “attack” to include pillaging and destruction comports with the object and purpose of the Rome Statute and the established framework of international law. The drafting history of Article 8(2)(e)(iv) of the Rome Statute is replete with evidence of the drafters’ intention to incorporate the heightened protections accorded to hospitals and cultural property under the 1907 Hague Regulations and the 1954 Hague Convention. The IHL prohibition of vandalism and demolition of cultural property—which applies during non-international armed conflict under customary law—forms an integral part of this protective regime. Other tribunals, such as the ICTY, have also recognized this.

Second, pillaging of cultural property as an “attack” under Article 8(2)(e)(iv) is categorically distinct from the crimes of pillaging and destruction of civilian objects under Articles 8(2)(e)(v) and 8(2)(e)(xii) and therefore recognized as lex specialis. In contrast to Articles 8(2)(e)(v) and (xii), Article 8(2)(e)(iv) captures a different sort of injury. The Court in Al Mahdi (Reparations Order) described this injury as a “moral harm” in light of its effect on the human community at large. In order to give effect to this “communal dimension” inherent to cultural property, therefore, a wide reading of Article 8(2)(e)(iv) that includes pillaging and destruction should be adopted.

Third, an expansive reading of “attack” is compatible with an evolutionary interpretation of international law. With the advent of cyber-attacks, there is increasing support for the view that attacks do not require violent physical effects, provided they cause or intend to cause loss of functionality. The ICRC has found that disabling communication functions of critical infrastructure or cutting off electricity supply from a hospital would qualify as “attacks.” Analogously, acts that substantially inhibit hospitals and cultural property from performing their societal functions—such as pillaging and destruction—can qualify as “attacks.”

In conclusion, the term “attacks” under Article 8(2)(e)(iv) of the Rome Statute includes ratissage operations, as well as acts of destruction and pillaging. This broad interpretation of Article 8(2)(e)(iv) is consistent with the established framework of IHL and necessary in the context of protecting hospitals and cultural property.

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Eian Katz is Counsel and Program Manager at the Public International Law and Policy Group.

Milena Sterio is The Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law at the Cleveland-Marshall College of Law and Co-Coordinator for Global Justice Partnerships at the Public International Law and Policy Group.

Jonathan Worboys is a Barrister and Senior Peace Fellow at the Public International Law and Policy Group.

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Footnotes

[1] We thank Professor Paul R. Williams, Dean Michael P. Scharf, Professor, Dr. Brianne McGonigle Leyh, Dr. Julie Fraser, Raghavi Viswanath, Nicole Carle, Alexandra Koch, Isabela Karibjanian, and Olivia Wang for their invaluable work on the brief.