A/HRC/44/60 combatants, and in all situations. Breaching this customary prohibition, according to the ICRC, would be a “serious violation” of international humanitarian law.44 31. The ICRC commentary on the prohibition against collective punishment found in Additional Protocol 1 establishes that its protection is to be given a large and liberal application. This is consistent with the purpose of humanitarian law to provide a wide protection to civilian populations throughout a range of vulnerable circumstances occasioned by conflict and alien rule: The concept of collective punishment must be understood in the broadest sense: it covers not only legal sanctions but also sanctions and harassment of any sort, administrative, by police action or otherwise.45 32. The Fourth Geneva Convention does not provide a definition for collective punishment. However, the 1958 ICRC Commentary states that collective punishment is: Punishment which has been rendered without regard to due process of law and is imposed on persons who themselves have not committed the acts for which they are punished.46 33. More recently, the Appeals Chamber of the Special Court for Sierra Leone has usefully established the elements of the crime of collective punishment in 2008 as: (a.) The indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible; and (b.) The specific intent of the perpetrator to punish collectively. 47 34. With respect to international criminal law, collective punishment does not appear as part of the definition of “war crimes” set out in the 1998 Rome Statute. However, both the Statute of the International Criminal Tribunal for Rwanda48 and the Statute of the Special Court for Sierra Leone49 included collective punishment as part of their definitions of war crimes. Earlier, in 1991, the International Law Commission had stated that collective punishment should be designated as an “exceptionally serious war crime”.50 Legal scholars have argued that collective punishment has already been established as a war crime in customary international law, and should be formally recognized as such in the Rome Statute.51 35. International human rights law does not expressly prohibit collective punishment in any of its treaties or conventions. However, collective punishment likely breaches universally accepted human rights such as equality before and under the law, the rights to life, dignity, a fair trial, liberty, freedom of movement, health, property, the security of the person, adequate shelter, and an adequate standard of living. 44 45 46 47 48 49 50 51 J-M Henckaerts et al, Customary International Humanitarian Law (Cambridge University Press, 2005), Vol. 1, pp. 372-375, 586-7, 602-3. Y. Sandoz et al, (eds.) Commentary on the Additional Protocols, (ICRC, 1987) para. 3055. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/1a13044f3bbb5b8ec12563fb0066f226/36bd41 f14e2b3809c 12563cd0042bca9. The Prosecutor v. Fofana and Kondewa, Appeal Chamber Judgement, Special Court for Sierra Leone, SCSL-04-14-A 28 May 2008, para. 224, quoted in Darcy, “The Prohibition of Collective Punishment”, in A. Clapham et al (eds.) The 1949 Geneva Conventions: A Commentary (OUP, 2015), at 1168. https://legal.un.org/avl/pdf/ha/ictr_EF.pdf, Article 4(b). http://www.rscsl.org/Documents/scsl-statute.pdf, Article 3(b). https://legal.un.org/ilc/publications/yearbooks/english/ilc_1991_v2_p2.pdf, Article 22, pp. 104-5. Darcy, supra, note 38 and 47E. Pothelet, “The ICC and Israel: Prosecuting the Punitive Demolition of Palestinian Homes”, OpinioJuris (22 March 2018). 9