Contorting Common Article 3

Abstract

This short Essay describes the circularity of support between the ICRC and the Pre-Trial 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.' 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 imperative balance between military pragmatism and humanitarian imperatives that are 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.