Chapter31. Grave Breaches ofthe Geneva Conventions
MNA. Introduction 1B. Meaning and Application 10
I. The obligation to provide for effective penal sanctions 14a. The content of the obligation 14b. The question of the effectiveness of penal sanctions 19c. The persons against whom effective penalties must be established 25
II. The obligation to search for persons who have allegedly committed, or have ordered to be committed, a grave breach 33
III. The obligation to bring to court persons allegedly responsible for a grave breach 41
IV. The obligation to hand over to another state persons suspected of a grave breach 49
V. The question of jurisdictional link, including universal jurisdiction 56 VI. Judicial guarantees and the question of the status of prisoners of war 62
C. Relevance in Non-International Armed Conflicts 66D. Legal Consequences of a Violation 70E. Critical Assessment 74
Condorelli, L., Il sistema della repressione dei crimini di guerra nelle Convenzioni di Ginevra del 1949 e nel primo Protocollo addizionale del 1977, in L. Lamberti Zanardi and G. Venturini (eds), Crimini di guerra e competenza delle giurisdizioni nazionali (Milan: Giuffr, 1998) 23
Dautricourt, J.Y., La protection pnale des conventions internationales humanitairesune conception de la loi-type, 34 Revue de droit pnal et de criminologie (1953)191
Drmann, K. / Gei, R., The Implementation of Grave Breaches into Domestic Legal Orders, 7 JICJ (2009)703
Fleck, D., Shortcomings of the Grave Breaches Regime, 7 JICJ (2009)833W. Ferdinandusse, The Prosecution of Grave Breaches in National Courts, 7 JICJ (2009)703Henckaerts, J.-M., The Grave Breaches Regime as Customary International Law, 7 JICJ (2009) 683Kre, C., Reflections on the Iudicare Limb of the Grave Breaches Regime, 7 JICJ (2009)789Moir, L., Grave Breaches and Internal Armed Conflicts, 7 JICJ (2009)769OKeefe, R., The Grave Breaches Regime and Universal Jurisdiction, 7 JICJ (2009)811Pilloud, C., La protection pnale des Conventions internationales humanitaires, 35 IRRC 419 (1953)842Sandoz, Y., La rpression pnale dans le cadre des efforts du Comit international de la Croix-Rouge pour
mieux faire respecter le droit international humanitaire, in P.L. Lamberti Zanardi and G. Venturini (eds), Crimini di guerra e competenza delle giurisdizioni nazionali (Milano: Giuffr, 1998) 75
Sandoz, Y., The History of the Grave Breaches Regime, 7 JICJ (2009)657Stewart, J., The Future of the Grave Breaches Regime:Segregate, Assimilate or Abandon?, 7 JICJ
At the time of their adoption, the idea of introducing in the new Geneva Conventions provisions concerning the prosecution and punishment of individuals who violate the
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Conventions was controversial. In particular, the International Committee of the Red Cross (ICRC) did not consider the question of criminal punishment of alleged war crimi-nals as a priority.1 Arguably, this was because the ICRC had proved ineffective in prompt-ing the enforcement of the laws of war during the periods between wars,2 and on account of the traditional preference of the organization for private diplomacy as a means to induce belligerents to respect the rules of warfare.3 In addition, the ICRC had serious reservations about the war crimes trials that were spreading all over Europe at the end of the Second World War. For the ICRC, other objectives ought to predominate:the appeasement of the conflict between the Allied and the Axis Powers,4 humane treatment and fair trials for the Axis prisoners of war (POWs) accused of war crimes,5 and the protection of the German Red Cross and some of its top officials from the de-Nazification process.6
The insistence on the punishment of those responsible for war crimes by the Red Cross and Red Crescent Movement (as opposed to the ICRC at the time),7 and the increasing and unprecedented reality of prosecution of war criminals before national courts,8 pushed the ICRC to reconsider its stand. In a commentary presented to government experts in the sum-mer of 1946, the then chief of the ICRCs Legal Division, Claude Pilloud, noted that punish-ment for violations of the Conventions was an extremely interesting idea. He also added that
1 The Pictet Commentary GC I, at 358, refers to the ICRC as naturally reluctant to propose punitive meas-ures. See also M. Lewis, The Birth of the New Justice (Oxford:OUP, 2014), at 2389. Achapter of Lewiss book is dedicated to the historical analysis of the provisions criminalizing grave breaches in the GCs. As explained by the author, this analysis differs from previous studies in so far as it focuses on the diplomatic intervention of the ICRC for the protection of the accused war criminals, and uses the ICRC archives and other material not available to or consulted by previous scholars (at 2312). In the following pages, the present author relies heavily on the Lewis study and the sources quoted by him.
2 One such example was the failure by the ICRC to confront the Italian regime in connection with the bombing of Red Cross hospitals and the use of poison gas during Italys invasion of Ethiopia. See Lewis, above n 1, at237.
3 Ibid, at2378.4 Ibid, at 238, quoting the position taken by the ICRC legal analyst Beck within the ICRCs legal commis-
sion (transcript of the meeting of 17 April 1945, 9 am, No 6:AICRC, APV Jur 1, CR.211).5 For the ICRC, war crimes trials raised issues relating to the denial of POW status to those accused of war
crimes and the inadequate fair trial guarantees in special tribunals that were established to try such crimes, rather than questions respecting the enforcement of international humanitarian law through criminal pun-ishment. Ibid, at239.
6 Ibid, at 23940. Quoting the relevant transcripts and documents of the meetings of the ICRCs legal com-mission, Lewis underlines that the ICRC feared the dismantling of the German Red Cross, which had been completely Nazified in 1933, and criminal prosecution of its top officials, such as W.G. Hartmann, head of the Foreign Bureau of the German Red Cross, who acted as the main point of contact with the ICRC during the war. Apparently, Mr Hartmann and the German Red Cross did not defend the interests and principles of the Red Cross and Red Crescent Movement with respect to Jews and other non-Aryans deported by the Nazis to the Reich or detained in concentration camps. Mr Hartmann and other members of the German Red Cross were interned by the Allies in August 1945 and subsequently charged as delinquents of less importance (ibid, at240).
7 Ibid, at 241. According to the Report on the Work of the Preliminary Conference of National Red Cross Societies for the Studies of the Conventions and of Various Problems Relative to the Red Cross, Geneva July 26August 3, 1946 (Geneva, 1947), the Commission entrusted with the study of the revision of the Convention relative to the Treatment of Prisoners of War and the drafting of a Convention relative to civilians, endorsed the prin-ciple embodied in Art 26 of the Draft of the Belgian Red Cross and Art 8 of the proposals of the Jugoslav Red Cross on the question of sanctions, to the effect that violations of the treaty provisions should be considered as a war crime and be liable to the consequent penalties (at 934). The position of the ICRC delegation on this point was that the principle ha[d] already been introduced in [the ICRC] preliminary Draft Prisoner of War Convention in 1921, but had unfortunately not been approved by experts and Governments (ibid, at94).
8 As Draper aptly noted, [a] t no other time in history have such a large number of enemy personnel been brought to trial and punishment for acts of war criminality (G.I.A.D. Draper, The Implementation and Enforcement of Geneva Conventions and the Two Additional Protocols of 1977, 164 RCADI (1979-III) 1, at36).
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this was a solution that would very likely not only have the Convention relative to the treat-ment of prisoners of war as its object but also those concerning the treatment of the wounded and sick in armies in the field, as well as the Tenth and the Fourth Hague Conventions.9 Under Pilloud, the Legal Division of the ICRC thus became more open to the idea of includ-ing provisions on criminal punishment in the yet to be adopted new Conventions, although within the Division disagreement persisted on which violations had to be criminalized, and which judicial fora should deal with them.10
The process that finally led to the inclusion in the new Geneva Conventions of a set of crimes known as grave breaches (further complemented in 1977 by Additional Protocol (AP) I) was shaped by the respective agendas of the various actors involved.
After the Second World War the victorious states were mainly keen to maintain unfet-tered their sovereignty over the punishment of enemy war criminals. The United States (US) and the United Kingdom (UK) were therefore not at all enthusiastic with regard to the prospect of adding criminal provisions to the Conventions. They also disliked the idea of envisaging a system of repression based on the exercise of universal criminal jurisdiction by domestic courts, and they disliked even more the idea of a permanent international criminal court that could in future sit in judgment over their own nationals. Briefly, these Powers wanted to keep exclusive criminal jur