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Chapter 31. Grave Breaches of the 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

Select Bibliography

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: Giuffrè, 1998) 23

Dautricourt, J.Y., ‘La protection pénale des conventions internationales humanitaires—une conception de la loi-type’, 34 Revue de droit pénal et de criminologie (1953) 191

Dörmann, K. / Geiβ, 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) 683Kreβ, 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) 769O’Keefe, R., ‘The Grave Breaches Regime and Universal Jurisdiction’, 7 JICJ (2009) 811Pilloud, C., ‘La protection pénale des Conventions internationales humanitaires’, 35 IRRC 419 (1953) 842Sandoz, Y., ‘La répression pénale dans le cadre des efforts du Comité 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: Giuffrè, 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

(2009) 855

A. Introduction

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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Ensuring Compliance with the Conventions616

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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 ICRC’s 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 238–9. A chapter of Lewis’s 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 231–2). 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 Italy’s invasion of Ethiopia. See Lewis, above n 1, at 237.

3 Ibid, at 237–8.4 Ibid, at 238, quoting the position taken by the ICRC legal analyst Beck within the ICRC’s legal commis-

sion (transcript of the meeting of 17 April 1945, 9 am, No 6: AICRC, A PV 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, at 239.

6 Ibid, at 239–40. Quoting the relevant transcripts and documents of the meetings of the ICRC’s 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, at 240).

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 26–August 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 93–4). 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, at 94).

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, at 36).

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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 jurisdiction over individuals accused of having committed war crimes against their own nationals (or the nationals of their allies), since they considered that the most appropriate forum to deal with this form of criminality was the one of the victim state.11 After all, war crimes trials that were unfolding at the time were proving to be ‘effective’, both in terms of knowledge by the judges of the applicable substantive and procedural rules, and in terms of the articulation of favourable political and historical narratives of the war by the victorious states.

On the other hand, the liberated countries presumably were driven by the desire to ensure the legitimacy of the prosecution and punishment of war crimes committed in their territories during occupation.12 Given the lack of any applicable national criminal legisla-tion on war crimes, they had passed ad hoc rules.13 The trials were therefore criticized for

9 See Lewis, above n 1, at 241, quoting a note by Pilloud, July 1946, AICRC, CR. 240-6, at 9 (translation from French by Lewis). This interesting idea, however, should not have been developed up to a point where potential signatory states would consider ratification of the Conventions no longer acceptable. In the intro-duction to the materials sent to the government experts in preparation for the Conference of 14–26 April 1947, Pilloud thus insisted on the need to take the military requirements and the interests of the states into account. Ibid, at 241–2, quoting the introduction by Pilloud, 13 November 1946, AICRC, CR. 240-5. Lewis, however, reports that Ms Marguerite Frick-Cramer (who at that time had already left the ICRC) was originally sup-portive of the idea of criminal punishment for those who violate the laws of war, but then reversed her position.

10 The ICRC Legal Division therefore approached a Swiss criminal lawyer Ernst Hafter, who raised two very interesting questions. First, which court (military or ordinary) should have competence to prosecute a POW who was accused of having committed crimes before his capture. Secondly, what punishment should be imposed on a convicted POW for crimes committed against the Detaining Power. Ibid, at 242–3.

11 See, e.g., the positions expressed by the US and the UK delegations in the first Commission of the Conference of Government Experts held in Geneva in 1947: ICRC, Conférence d’Experts Gouvernementaux pour l’ étude des Conventions protégeant les victimes de la guerre. Genève, 14–16 avril 1947. Procès-verbaux de la Commission I. Révision de la Convention de Genève de 1929 pour l’amélioration du sort des blessés dans les armées en campagne et les dispositions connexes (1947), vol II (2).

12 For an analysis of the trials conducted in the European ‘liberated’ countries, see J. Elster, Closing the Books: Transitional Justice in Historical Perspective (New York: CUP, 2004), at 57–60.

13 See, e.g., the French Order of 28 August 1944 (Ordonnance du 28 août relative à la répression des crimes de guerre, Journal Officiel de la République Française, 30 August 1944, at 780, also available at <http://www .legifrance.gouv.fr/>); the Norwegian Law of 13 December 1946 (No 14) on the Punishment of Foreign

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relying upon retroactive criminal legislation, in contradiction to the principle of strict legality in criminal matters prescribed in their constitutions.14 In addition, defences such as obedience to superior orders, although available to their own nationals accused of hav-ing collaborated with the Occupying Power, were expressly ruled out in the war crimes trials against enemy nationals.15 Arguably, the ‘liberated’ countries therefore believed that the inclusion in the new Conventions of criminal provisions for the punishment of war crimes constituted a ‘recognition’ that they were in fact acting at least in conformity with international law.

Against this background, prominent international lawyers involved in the drafting pro-cess of the grave breaches provisions instead favoured a strong internationalist approach. The four experts invited by the ICRC to prepare the text of the common provisions of the Geneva Conventions for the final Diplomatic Conference agreed on a scheme that reflected their international approach.16 First, they agreed upon a list of offences that con-tracting states would have the obligation to criminalize in their national legal orders, and required states to report within a given time frame to the Swiss Federal Government on the measures adopted. Secondly, they framed the obligation for each contracting state to repress these offences, and envisaged the possibility for an international criminal tribunal to exercise jurisdiction. Their draft also included an obligation for the contracting par-ties to establish the necessary rules for extraditing the persons accused of a grave breach in cases where they would not be brought before their national courts. In addition, the draft ruled out the defence of obedience to superior orders (but the prosecution would be required to prove that the accused could reasonably have realized that he was participating in the commission of a violation of the Conventions). At the same time, the draft clearly proclaimed the responsibility of those who had given the illegal orders, even if they were acting in the exercise of an official state function. Lastly, the draft included an obligation for the contracting states not to bring those accused of grave breaches before any special jurisdiction, and to ensure the application of procedures and rules that were neither less favourable than those applied to their own nationals, nor contrary to general principles of law or humanity. In particular, contracting states were obliged to ensure to the accused the right to all ordinary means of defence.

The ICRC, after its initial scepticism, turned to supporting the idea of including in the Conventions a set of provisions on criminal punishment for those responsible for viola-tions of the Conventions. It was Jean Pictet, Director-Delegate of the ICRC, who appar-ently gave the decisive push in this direction. In a note to the Legal Division, he expressed his views on the need to include the obligation for each contracting state to punish, or surrender to another contracting party, individuals responsible for those violations of the

War Criminals, in Law Reports of Trials of War Criminals (London: HMSO, 1948), vol III, at 81; the Dutch Extraordinary Penal Law Decree of 22 December 1943, ibid, at 100.

14 In this respect, the Pictet Commentary, in the introductory remarks to the comments on the grave breaches provisions, laconically observes: ‘Whatever one’s views may be on the repressive action taken after the Second World War, it will be agreed that it would have been more satisfactory, had it been possible to base it on existing rules without being obliged to have recourse to ad hoc measures’ (Pictet Commentary GC I, at 353).

15 See, e.g., the analysis of the ICRC Delegate Pierre Boissier, written in 1948, on the possible legal basis for future war crimes trials, where he noted that while French collaborators could avail themselves of the defence of obedience to superior orders, the same defence was not available to Germans based on Art 3 of the French Order of 28 August 1944. (See P. Boissier, ‘La répression conventionnelle des crimes de guerre’, 23 March 1948, AICRC, G.7 IX-2, quoted by Lewis, above n 1, at 250, fn 87.)

16 For the draft provisions of the Committee of Experts, see Pictet Commentary GC I, at 358, fn 8.

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Conventions which were to be considered war crimes.17 As stated earlier, however, the cru-cial matter for the ICRC was the treatment of POWs accused of war crimes. Indeed, the US was implementing a policy in occupied Germany that created serious concerns at the ICRC. For the US, German POWs accused of war crimes and crimes against humanity were ordinary criminals. Apparently, the US was releasing some POWs, only to immedi-ately re-arrest them as ‘civilians’ on the basis of war crimes and crimes against humanity charges. Other countries considered that the captured combatants accused of war crimes and crimes against humanity were not entitled to POW status. During the entire drafting process of the criminal provisions in the Geneva Conventions, the ICRC was therefore adamant in maintaining that in no circumstance whatsoever should criminal prosecution for war crimes constitute an ‘excuse’ for stripping away the accused’s protection concomi-tant to their status as POWs, or for denying those persons fair trial guarantees.18 As for the possibility of a future international criminal court, the ICRC was more inclined to think of such a court as a ‘court of appeals’ to which persons condemned at the national level might resort.19 In no way did the ICRC advocate that it should be involved in criminal prosecutions, since it considered the need to protect its image of impartiality as the over-riding concern.20

The provisions on criminal punishment for certain violations of the Conventions adopted by the Diplomatic Conference in 1949 reflect a compromise between these dif-ferent goals and agendas. On the one hand, their revolutionary character is apparent. Contracting states obligated themselves to adopt ‘any legislation necessary to provide effective penal sanctions’21 for those responsible for committing, or ordering to be com-mitted, any of the grave breaches listed. In addition, for the first time, the obligation to search for, bring before their own courts, or surrender to another contracting party those allegedly responsible for a grave breach was inserted in a treaty concerning the laws of warfare.22 This represented a clear success for all those advocating a strong commitment in the fight against impunity of future war criminals, as well as an implicit recognition of the legitimacy of prosecutions before national courts carried out thus far. In addition, the obligation to ensure to the accused persons all the ‘safeguards of proper trial and defence’ (at the very least those prescribed in the Conventions themselves) was clearly spelt out. This was to reassure the ICRC that, in the future, war crimes trials would not cast any doubt on the fairness of the proceedings. For POWs, other provisions of the

17 See J. Pictet, ‘Note à Mlles et MM. les membres du Bureau et de la Commission juridique’, 23 October 1947, Art 33, at 5, AICRC, CR. 240-4, quoted by Lewis, above n 1, at 249, fn 86.

18 See in this respect Lewis, above n 1, at 246. It is telling that at the Government Experts Conference, the ICRC stated that although it condemned unequivocally ‘crimes against principles it is in itself anxious to safeguard’, ‘[it] has been taught by experience that the facts constituting war crimes can be more easily circum-scribed than exactly defined’. It therefore observed that ‘there is a certain risk of arbitrary action, especially in cases where to be accused of such a crime is sufficient to deprive a man of [prisoner of war] status’. See ICRC, Report of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims (Geneva, April 14–26, 1947), at 205–6.

19 This was the proposal advanced by Pierre Boissier, above n 15, and supported by the ICRC: see Repression des violations des Conventions humanitaires, Rapport du Comité international, No 20, 5 June 1948, AICRC, CRI 25.10.

20 Ibid, where the ICRC states that ‘the principal goal of the ICRC is to come to the aid of the war victims and ensure full application of the humanitarian conventions, but it’s not for it to intervene in any way whatso-ever so that the guilty will be punished’. (Quoted by Lewis, above n 1, at 252.)

21 Art 49 GC I; Art 50 GC II; Art 129 GC III; Art 146 GC IV.22 See Art 50 GC I; Art 51GC II; Art 130 GC III; and Art 147 GC IV. Previous agreements did not provide

a similar obligation. See Pictet Commentary GC I, at 351–8.

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relevant Convention complemented this obligation. In particular, to avoid the ‘use’ of war crimes trials to deny the status of POW to captured enemy combatants, a specific provision (Article 85) was inserted in Geneva Convention (GC) III, providing that POWs prosecuted by the Detaining Power for acts committed before capture, retain, even if convicted, all the benefits of the Convention.

This ‘revolution’, however, did not override all the concerns relating to the protection of state sovereignty. The attempt to incorporate a reference to the exercise of criminal juris-diction by an international criminal court failed. In the Geneva Conventions, criminal repression for breaches rests in the hands of national jurisdictions. In addition, the obliga-tion to surrender to another contracting party persons accused of having committed, or having ordered to be committed, a grave breach was subject to the provisions of national legislation, and to the existence of a prima facie case being made by the requesting party. The Geneva Conventions therefore do not constitute in and of themselves a basis for extra-dition procedures or other forms of surrender. At the same time, assessing whether the requesting High Contracting Party has made a prima facie case is a task left to the com-petent authorities of the custodial state. Finally, the proposals to rule out the defence of acting on superior orders, and to spell out that those giving illegal orders were criminally responsible even though acting in the exercise of an official function, did not find their place in the provisions on grave breaches.23 Similarly, the proposal to oblige contracting states to report to the Swiss Government on the measures adopted to criminalize the grave breaches as offences in national legislation was ultimately defeated.24

B. Meaning and Application

Before examining in more detail the scope and content of the provisions of the Geneva Conventions on grave breaches, it is fitting to summarize them briefly.

The provisions in question are common to the four Geneva Conventions. They are mainly identical in content, the only difference being the list of acts amounting to grave breaches (Article 50 GC I; Article 51 GC II; Article 130 GC III; Article 147 GC IV). Each Convention proclaims that grave breaches are ‘those involving any of the following

23 See Final Record, vol II-B, Fourth Report drawn up by the Special Committee of the Joint Committee, 12 July 1949, at 115, where it is reported—without further information—that it was not possible to reach general agreement ‘regarding the notions of complicity, attempted violation, duress or legitimate defence or the plea “by orders of a superior”’ and that ‘these notions should [have been] left to the judges who [would have applied] the national laws’. The failure to include in the GCs a provision ruling out—at least, in certain circumstances—the defence of superior orders for charges of grave breaches, is often referred to as an argu-ment to prove the lack of sufficient opinio juris to support the existence of a customary rule precluding the availability of this defence. On the question of superior orders as a possible defence to charges of war crimes, see Y. Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law (Leiden: Sijthoff, 1965), in particular at 223 ff, where the author discusses the issue in light of the preparatory work of the GCs. The attempt to include such a provision failed again at the time of the adoption of AP I. The present author argues instead that there are sufficient grounds to assert the existence of a rule of customary international law (CIL) proscribing the acceptance by a court of a defence of having obeyed an order to commit an act that constitutes a war crime. In the ICC Statute, obedience to superior orders may constitute a defence to a charge of a war crime in specific circumstances (Art 33 ICC Statute) (but not to a charge of crimes against humanity or genocide). See P. Gaeta, ‘The Defence of Obedience to Superior Orders: The Statute of the International Criminal Court versus Customary International Law’, 10 EJIL (1999) 172. Contra, C. Garraway, ‘Superior Orders and the International Criminal Court: Justice Delivered or Justice Denied’, 81 IRRC 836 (1999) 785. On the avail-ability of the defence of having acted in official capacity, see MN 43–48.

24 Final Record, vol II-B, at 116.

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acts, if committed against persons or objects protected’ by the relevant Convention, namely: ‘wilful killing’, ‘torture or inhuman treatment, including biological experiments’, ‘wilfully causing great suffering or serious injury to body or health’. To this common list, each Convention adds other acts. Geneva Conventions I, II, and IV also list ‘extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’. Geneva Conventions III and IV also include ‘compelling’ a protected person ‘to serve in the forces of the hostile Power’, and ‘wilfully depriving’ a pro-tected person ‘of the rights of fair and regular trial prescribed’ in the relevant Convention. The acts of ‘unlawful deportation or transfer or unlawful confinement of a protected person’ and ‘taking of hostages’ appear only in the list set out in GC IV.

The obligations undertaken by contracting parties in respect of the aforementioned grave breaches are the same in each Convention (Article 49 GC I; Article 50 GC II; Article 129 GC III; Article 146 GC IV).25 First, there is the obligation ‘to enact any legis-lation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches’. Secondly, there is the obligation ‘to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches’, and ‘[to] bring such persons, regardless of their nationality, before [their] own courts’. A contracting party has the possibility, ‘if it prefers, and in accordance with the provisions of its own legislation, [to] hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case’. However, the Conventions also specify that ‘[i] n all circumstances, the accused persons shall benefit by safeguards of proper trial and defence’, and set as a minimum the guarantees ‘provided by Article 105 and those following of the [Third] Geneva Convention’.

Each of these obligations will now be examined in turn.

I. The obligation to provide for effective penal sanctions

a. The content of the obligationOn a literal interpretation, states parties to the Geneva Conventions are not obliged to criminalize acts amounting to grave breaches as such. The Conventions merely require them ‘to enact any legislation necessary to provide for effective penal sanctions’ for per-sons responsible for a grave breach. In other words, to the extent that ‘effective penal sanc-tions’ are envisaged, the obligation is complied with, regardless of the characterization in the internal legal order of the offence as ‘a grave breach of the Geneva Convention’.26 This might help to explain why the majority of states have not yet criminalized acts amounting

25 This list is complemented by the grave breaches mentioned in Arts 11 and 85 AP I, and the latter Article expressly declares that grave breaches are to be regarded as ‘war crimes’. This addition finally clarified the confusion that existed for some time after the adoption of the GCs between grave breaches and war crimes: see M.D. Öberg, ‘The Absorption of Grave Breaches into War Crimes Law’, 91 IRRC 873 (2009) 163, at 167.

26 See G.I.A.D. Draper, ‘The Geneva Conventions of 1949’, 114 RCADI (1965-I) 63, at 156, who notes that ‘[i] f the acts called “grave breaches” are already subject to effective penal sanctions under the existing penal law of the State concerned its obligation under this article will have been discharged’. He also adds, however, that ‘[s]uch is not likely to be the case when one considers the wide nature of the acts prohibited and the class of per-sons, namely “protected persons”, who are the potential victims of such acts’. See also, more recently, C. Kreβ, ‘Reflections on the Iudicare Limb of the Grave Breaches Regime’, 7 JICJ (2009) 789, at 795, who also observes that the practice of states does not reveal an opinio juris communis to this effect; and W. Ferdinandusse, ‘The Prosecution of Grave Breaches in National Courts’, 7 JICJ (2009) 723, at 729.

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to grave breaches expressly,27 and why some states maintain that ordinary offences in their criminal codes are applicable to the acts described in the Conventions as grave breaches.28

Following the Pictet Commentary,29 not all commentators are comfortable with this position.30 For instance, some authors have argued that—whatever the intention of the parties at the time of its adoption—it is doubtful that the aforementioned obligation ‘could (still) be interpreted in a way as to leave states [a] far-ranging discretion’. According to these authors, a strict interpretation—whereby when effective penal sanctions are already provided for in the existing domestic criminal legislation, there is no obligation to adopt specific criminal rules on grave breaches—would ultimately ‘defy the very object and purpose’ of the provisions on grave breaches.31 The reason being that contracting par-ties are clearly obligated to ensure punishment of grave breaches under universal criminal jurisdiction, which in turn requires states to ‘implement legislation that is universal’.32 Moreover, the authors in question argue that some grave breaches are so specific to situ-ations occurring in warfare that it is unlikely that ordinary criminal legislation would be applicable to them. One example is that of the grave breach of ‘unlawful transfer’ of a protected person under Article 147 GC IV, which would require, in most cases, specific criminal legislation as a means to ensure an ‘effective penal sanction’.33 Lastly, and more generally, they argue that ordinary criminal offences ‘do not reflect the particular war nexus that is inherent in the grave breaches’.34 Other commentators propound a similar argument. In particular, they underline that grave breaches are crimes under international law: recourse to charging ordinary offences in order to repress grave breaches might have adverse effects when one has to consider certain defences (for instance acting on superior orders).35

These arguments, however, are not entirely convincing. First, one may note that national criminal law might already provide for universal criminal jurisdiction over ordi-nary criminal offences, including those applicable to acts amounting to grave breaches. Admittedly, when this is not the case, it would prove more expedient to enact legislation criminalizing grave breaches as such and providing for universal criminal jurisdiction over them. Theoretically, however, it is possible for a state to opt for a different course of action, namely to extend the territorial reach of ordinary offences relevant to grave breaches without creating new criminal offences under the title of ‘grave breaches’. The present author is therefore not convinced that the ‘the very object and purpose’ of the grave

27 According to a study based on the information of the Advisory Service of the ICRC, only 35 states have penalized all grave breaches as such, while additional 38 states have penalized most or some grave breaches as such. See R. van Elst, ‘Implementing Universal Jurisdiction over Grave Breaches of the Geneva Conventions’, 13 LJIL (2000) 815, at 825.

28 For a reference to these countries, see van Elst, above n 27, at 825; and K. Dörmann and R. Geiβ, ‘The Implementation of Grave Breaches into Domestic Legal Orders’, 7 JICJ (2009) 703, at 713–14, with relevant references.

29 Pictet Commentary GC I, at 363.30 See Dörmann and Geiβ, above n 28, at 706–10; van Elst, above n 27, at 828.31 Dörmann and Geiβ, above n 28, at 708.32 Ibid, at 709. See also van Elst, above n 27, at 828.33 Dörmann and Geiβ, above n 28, at 709. Another example is that of the wilful deprivation of the rights

of fair and regular trial to a protected person under the terms of Art 130 GC III and Art 147 GC IV: see van Elst, above n 27, at 828.

34 Dörmann and Geiβ, above n 28, at 710; see also at 713–15, where the authors argue that ordinary crimi-nal provisions are intrinsically unable to reflect the ‘specific injustice’ of the grave breaches.

35 See van Elst, above n 27, at 828, and additional reference provided by that author in fn 58.

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breaches provisions in the Geneva Conventions would be defeated by leaving contracting states a wider margin of discretion in this respect.

Secondly, it is true that ordinary criminal law may not cover all of the acts amounting to grave breaches of the Geneva Conventions; such acts, however, are very few. In any case, it would be only with respect to these acts that the need for an ad hoc criminalization would arise, so the obligation to provide for an effective penalty does not really imply an obliga-tion to pass ad hoc criminal legislation for all acts amounting to grave breaches.

The third argument, namely that ordinary criminal offences fail to capture the ‘inter-national nature’ of the crime (with the ensuing consequences36), raises a more general issue, which is related to what has to be described as a subjective belief concerning what the function and purpose are of the rules of international law comprising so-called inter-national criminal law (ICL). For those who conceive of ICL as a jus commune to all states (meaning that individuals responsible for given acts shall be subject to the same criminal law, irrespective of the court before which they stand trial), the fragmentation of ICL through the application of domestic criminal offences will certainly appear inadequate or disturbing. This vision does not reflect—at least as of today—the reality of international society, whose primary subjects exhibit as their main distinguishing trait jurisdictional power over individuals, including in criminal matters. International criminal law has already achieved important objectives, such as imposing on states, through treaties, the obligation to punish certain acts which are illegal under international law. It has also gone so far as to make some acts ‘directly’ criminalized under international law, thus there is no breach of the principle of legality as laid down in human rights treaties when national courts punish such crimes, even in the absence of applicable domestic legislation at the time of the commission of the act.37 To contend that ICL also imposes on states the duty to adopt at the national level an ad hoc set of identical criminal offences with the same nomen juris and legal ingredients as those found in the treaty, in the absence of an express treaty obligation in this regard, seems, at present, unwarranted.38 Plainly, the enactment by states of ad hoc provisions on grave breaches would be preferable in order to enhance

36 See P. Gaeta, ‘International Criminalization of Prohibited Conduct’, in A. Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford: OUP, 2009) 63, at 70–3.

37 In fact, the so-called principle of legality, which provides that an individual cannot be punished for conduct that was not criminal under the legal system of the forum state when it was carried out, is fully satis-fied if the criminality of such conduct was instead provided for by a principle or rule of international law. See Art 15(2) ICCPR. See also Art 7(2) ECHR, as well as Art 10 of the Draft Code of Crimes against the Peace and Security of Mankind, adopted by the ILC, reprinted in report of the ILC on the work of its 43rd session, 29 April–19 July 1991, UN Doc A/46/10, 1991. Furthermore, international criminal courts and tribunals have consistently held that a court may enter convictions for a crime where it is satisfied that the offence (or the relevant mode of liability) was proscribed under CIL at the time of its commission. See, e.g., ICTY, The Prosecutor v Tihomir Blaškić, Appeals Chamber Judgment, IT-95-14-A, 29 July 2004, para 85 (holding same with respect to failure to punish subordinates); ICTY, The Prosecutor v Milan Milutinović Ojdanić et al, Appeals Chamber Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction, IT-99-37-AR72, 21 May 2003, para 30 (same with respect to the joint criminal enterprise mode of individual criminal responsibil-ity); SCSL, The Prosecutor v Sam Hinga Norman, Appeals Chamber Decision on Preliminary Motion based on Lack of Jurisdiction, SCSL-2004-14-AR72(E), 31 May 2004, paras 38, 53 (same with respect to the war crime of child recruitment).

38 Arguably, an example of an express treaty provision imposing on contracting states the obligation to criminalize and punish a crime as defined in the relevant treaty is Art 5 of the Genocide Convention, accord-ing to which ‘[t] he Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article 3’ (emphasis added).

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the objective of bringing to justice those criminally responsible for a grave breach. This would facilitate judicial cooperation, including in the matter of surrender of the suspect to another jurisdiction. It would nonetheless not be correct to transform a desirable result into a legal requirement that does not find support in the relevant provisions of the Geneva Conventions.

b. The question of the effectiveness of penal sanctionsRegardless of whether contracting states decide to pass ad hoc criminal legislation on grave breaches or to rely on their ordinary criminal law, the Geneva Conventions expressly establish that national law shall provide ‘effective penal sanctions’ for persons allegedly responsible for a grave breach. At first sight, this wording might be read as requiring that persons found responsible for having committed a grave breach actually have a real penalty inflicted on them. The French text, however, states that contracting parties shall enact national legislation necessary ‘pour fixer les sanctions pénales adéquates à appliquer’ to per-sons responsible for a grave breach. The clear meaning here is that the penalty must be that ‘most appropriate’ for the illegal act. Arguably, this interpretation is the one that best recon-ciles the two texts. It seems also to be the one suggested in the Pictet Commentary, which explains that ‘the legislation enacted on the basis of this paragraph should […] specify the nature and extent of the penalty for each infraction, taking into account the principle of due proportion between the severity of the punishment and the gravity of the offence’.39

In light of the great variation of legislative policy with regard to criminal sanctions, the penalty which an individual offender will actually face for a grave breach will depend on the state that tries him or her after capture. This outcome might again appear disturb-ing to those who would wish to see a system of international criminal justice for war crimes and other crimes under international law that relies upon a body of identical appli-cable domestic criminal rules. Nonetheless, disparity in applicable criminal penalties is the unavoidable consequence of a system of criminal repression founded on concurrent national criminal jurisdictions, as each state has its own system and policies for criminal punishment.

Difficulties arise when it comes to assessing whether the penalty is ‘effective’ with respect to the criminal act. Generally, this assessment depends on the weight one puts on one or the other traditional functions assigned to the punishment of crimes, namely retribution, protection, incapacitation, deterrence (general and special), and rehabilita-tion. Domestic legal systems might be more inclined to consider one of these objectives as predominant, which in turn will lead to ranges of ‘effective’ penalties that could vary remarkably with respect to comparable criminal offences in other states. Suffice it to refer here to the divide between the US, where retribution has a prominent place, and European countries, where instead there is greater concern for rehabilitation.40 Looking for an objec-tive yardstick against which to evaluate the ‘effectiveness’ of a criminal sanction will thus be a difficult, if not an impossible, mission.

39 Pictet Commentary GC I, at 363. At the 1947 Government Experts Conference, the Commission deal-ing with the revision of the Wounded and Sick Convention proposed a definition of war crimes as violations of the Convention for which ‘[t] he responsible person shall be liable to appropriate penalties’ (Art 33 (new)) (emphasis added), in ICRC, Report of the Work of the Conference of Government Expert for the Study of the Conventions for the Protection of War Victims (Geneva, April 14–26, 1947), at 63.

40 See J.D. Ohlin, ‘Towards a Unique Theory of International Criminal Sentencing’, Cornell Law Faculty Publications, Paper 23 (2009) 373, at 376–82, also for additional references.

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As for grave breaches, and more generally crimes in violation of international law, the lack of clarity as to the specific functions and purposes of ICL further complicates the matter. For instance, there are those who argue that the significance of repression of inter-national crimes lies more in the narrative of holding the trial than in the punishment of the offender.41 Others think otherwise, and contend that the primary purpose of criminal punishment for international crimes must be retribution and deterrence,42 which in turn calls for greater punishment in light of the particular gravity of such crimes.43

Unfortunately, even the creation and practice of the modern international criminal courts do not help to shed much light on the matter. Their constitutive instruments con-cerning penalties and sentencing contain only very generic guidelines;44 this is combined with the absence of a robust and coherent vision from the judges as to what sort of system of penalties and sentencing policy ought to be adopted.45

As things stand, one has to accept some degree of flexibility in assessing whether a penal sanction is ‘effective’ with respect to an act amounting to a grave breach. This flex-ibility, however, does not allow for any lapses of good faith by relevant state authorities in the selection of domestic charges against persons responsible for grave breaches, or for choosing an appropriate penalty in the sentencing phase. Practices that reveal a leni-ent attitude by the judicial authorities vis-à-vis their own nationals responsible for grave breaches (often members of the military)—both in terms of charging and sentencing—do not in fact fulfil the obligation to provide for effective penal sanctions clearly spelt out in the relevant provisions of the Geneva Conventions.46

c. The persons against whom effective penalties must be establishedEffective penal sanctions must be directed against ‘persons committing’ or those ‘ordering to be committed’ a grave breach. The exact scope and content of these expressions is again left to the determination of national jurisdictions, which may therefore turn to their own

41 See in this respect D. Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (Oxford: OUP, 2010) 569, at 574–7. On the so-called expressive function of international criminal law, see M. Drumbl, ‘Collective Violence and Individual Punishment: The Criminality of Mass Atrocity’, 99 Northwestern University Law Review (2005) 539.

42 Ohlin, above n 40, at 382–92.43 According to Harmon and Gaynor, in the context of international crimes, ‘[e] xtremely lenient sentences

should, in general, be avoided; a slap on the wrist of the offender, is a slap in the face of victims’: see M.B. Harmon and F. Gaynor, ‘Ordinary Sentences for Extraordinary Crimes’, 5 JICJ (2007) 683, at 711. For strong arguments in support of retribution as the primary purpose of international criminal punishment, see Ohlin, above n 40, at 382–8.

44 The drafters of statutes of various international criminal courts created so far could not agree upon a scale of penalties for the crimes under the jurisdiction of those courts, due to the widely divergent views on the mat-ter. The judges of international criminal courts therefore enjoy great discretion in the sentencing phase, subject only to specific express limitations. For instance, Art 24(1) of the Statute of the ICTY provides that penal-ties must be limited to imprisonment and that, in determining the terms of imprisonment, the Tribunal shall have recourse to the ‘general practice regarding prison sentences in the courts of the former Yugoslavia’. This last provision, however, was held to be non-mandatory by the Tribunal in several cases (see A. Cassese and P. Gaeta, Cassese’s International Criminal Law (3rd edn, Oxford: OUP, 2013), at 36). See also, though referring to prison sentences in Rwanda, Art 23 ICTR Statute. As for the Statute of the ICC, Art 77 merely envisages the harsh-est penalty of imprisonment for a maximum of 30 years, while also providing for the possibility of life imprison-ment ‘when justified by the extreme gravity of the crime and the individual circumstances of the convicted person’.

45 Ohlin, above n 40, at 392 ff. On the sentencing practice of the ICTY and ICTR, see D. Scalia, Du principe de légalité des peines en droit international pénal (Brussels: Bruylant, 2011), esp at 185–224, as well as S. D’Ascoli, Sentencing in International Criminal Law (Oxford: Hart Publishing, 2011), esp at 109–262.

46 Ferdinandusse, above n 26, at 730–2.

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principles and rules on individual criminal responsibility. The main significance of this specification in the common provisions on grave breaches lies, as the Pictet Commentary aptly points out, in the assertion that ‘[t] he joint responsibility of the author of an act and of the person ordering its commission is […] established’.47

Analysing the case law of the ad hoc international criminal tribunals for the for-mer Yugoslavia and Rwanda, one might contend that customary international law (CIL) contains rules on ‘commission’ and ‘ordering’ as modes of international criminal liability applicable to international crimes, including grave breaches of the Geneva Conventions. For instance, the International Criminal Tribunal for the for-mer Yugoslavia (ICTY) has asserted that, under CIL, commission can also comprise a ‘joint criminal enterprise’ in three different forms.48 The International Criminal Court (ICC) has instead developed the theory of co-perpetratorship, when interpret-ing Article 25(3)(a) of the ICC Statute referring to the commission of a crime jointly with another person.49 The ICTY and the International Criminal Tribunal for Rwanda (ICTR) have also spelt out the legal requirements of ‘ordering’ as a mode of criminal liability.50 One might wonder to what extent these alleged rules of CIL on commis-sion and ordering are binding upon states and must therefore be applied by national courts exercising their criminal jurisdiction over acts constituting grave breaches of the Geneva Conventions.51

In this regard, the better view appears to be the one that advocates that these modes of liability are not a ‘constitutive’ component of international criminalization, and that national legal systems therefore do not have to implement them.52 In practice, this means that, although one can find a customary definition, states are at liberty to continue to apply their own rules and principles on commission and ordering. Here again, it is clear that we are confronted with the idea that ICL is based upon the pluralism of domestic criminal systems,53 although the latter are at liberty to rely on rules formed at the interna-tional level should they consider this necessary or desirable.

If one shares the view set out above (MN 18), and since contracting states are not obliged to apply the customary rules on the forms of criminal liability expressly men-tioned in the grave breaches provisions of the Geneva Conventions (namely, according to Articles 49/50/129/146, committing and ordering the commission of a grave breach), they are a fortiori at liberty to rely on their domestic legal rules for other modes of liability, such as aiding and abetting, instigation, and so on. These modes of liability have a purely ‘inter-nal’ pedigree, and it is therefore unlikely that a lacuna with respect to rules on principals and accessories in criminal offences will exist in domestic legal orders.

47 Pictet Commentary GC I, at 363.48 See, e.g., ICTY, The Prosecutor v Duško Tadić, Appeals Chamber Judgment, IT-94-1-A, 15 July 1999,

para 220.49 See, e.g., ICC, The Prosecutor v Thomas Lubanga, Decision on the confirmation of charges,

ICC-01/04-01/06, 29 January 2007, paras 330–40.50 See, e.g., ICTR, The Prosecutor v Laurent Semanza, Appeals Chamber Judgment, ICTR-97-20-A, 20

May 2005, paras 360–1; ICTY, The Prosecutor v Dario Kordić and Mario Čerkez, Appeals Chamber Judgment, IT-95-14/2-A, 17 December 2004, paras 28–30.

51 On the modes of criminal liability at the international criminal courts, see generally Cassese and Gaeta, above n 44, at 161–206.

52 E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: OUP, 2012), at 11–12.53 See amplius A.K.A. Greenwald, ‘The Pluralism of International Criminal Law’, 86 Indiana Law Journal

(2011) 1063.

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Criminal liability in the form of ‘commission by omission’ (or ‘indirect omission’) deserves a particular mention, since it is a mode of liability which is not accepted by all domestic legal systems (see Chapter 36 of this volume, MN 25–27 and 30). In this regard, the Pictet Commentary notes that in the common provisions on grave breaches, ‘there is no reference to the responsibility of those who fail to intervene, in order to prevent or suppress an infraction’, although ‘[i] n a number of such cases sentences of “guilty” have been passed by Allied courts’. It considers, however, that ‘[i]n view of the silence of the Convention it must be assumed that the matter is one which must be settled by national legislation, either by express provision or by applying the general provisions contained in the country’s penal code’.54

Two developments might have affected the conclusion put forward in the Pictet Commentary. The first is the express reference in Article 86 AP I to the obligation of the High Contracting Parties and the Parties to the conflict to ‘repress grave breaches […] of the Conventions and of [the] Protocol which result from a failure to act when under a duty to do so’. The second is the assertion in the case law of international criminal courts, most notably that of the ICTY, of the existence of CIL on ‘commission by omission’.55 One might therefore argue that this form of responsibility for the repression of grave breaches is ‘imposed’ on states that are parties to the Geneva Conventions and AP I. However, one might note that Article 86 AP I does not expressly require the criminalization ‘of the failure to act when under a duty to do so’.56 In addition, as for the alleged development of a rule of CIL on commission by omission, one could again argue that it is available to states that wish to apply or implement it, but they are free to do otherwise.

Criminal responsibility for international crimes in the form of command/superior responsi-bility also warrants specific attention. This doctrine—which originates from the non-criminal rules of responsible military command—was relevant in some (controversial) leading cases after the Second World War.57 However, it was only with the establishment of the first ‘mod-ern’ international criminal tribunals (the ICTY and the ICTR) that this doctrine developed significantly, eventually finding its way into the ICC Statute.58 In other words, here we face a theory of criminal liability that seems to have a purely ‘international’ origin.59

54 Pictet Commentary GC I, at 364.55 See, e.g., ICTY, Tadić, above n 48, para 188; ICTR, The Prosecutor v André Ntagerura et al, Trial

Chamber Judgment, ICTR-99-46-T, 25 February 2004, para 659; The Prosecutor v André Ntagerura et al, Appeals Chamber Judgment, ICTR-99-46-T, 7 July 2006, paras 334, 370.

56 The ICRC Commentary APs for Art 86 AP I is ambiguous as regards the obligation to criminalize omis-sion liability. It recognizes that it is for contracting states to establish under their domestic legal orders who has to carry out the duties established in the rules of IHL. It adds (at 1010, para 3538), ‘It is self-evident, when a Detaining Power tries a prisoner belonging to the adverse Party, that the “duty to act” of the accused must be interpreted in the light of the powers and duties attributed to him under his own national legislation.’ At the same time, it seems to consider that this provision implies the obligation to enact legislation to provide for effec-tive penal sanctions (because of the reference to the obligation to repress but not the obligation to search for, bring to courts, or surrender persons as specified in the system of grave breaches of the Geneva Conventions).

57 Among these cases, the most well-known is Yamashita, US Supreme Court, 327 US 1, 4 February 1946. See generally Cassese and Gaeta, above n 44, at 182–4. See also G. Mettraux, The Law of Command Responsibility (Oxford: OUP, 2009), at 3–21.

58 See, e.g., ICTY, The Prosecutor v Enver Hadžihasanović et al, Appeals Chamber Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, IT-01-47-AR72, 16 July 2003, para 17; Art 28 ICC Statute.

59 See G. Werle, Principles of International Criminal Law, para 368, at 128, who describes superior respon-sibility for international crimes as ‘an original creation of international criminal law’.

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As is well known, under this doctrine, a person who wields hierarchical authority over a group of persons and exercises effective control over them, could, in certain circum-stances, be held criminally responsible for failing to prevent and/or punish crimes com-mitted by those subordinates. Controversy surrounds the question of whether superior responsibility is a form of vicarious liability for crimes committed by subordinates, or a separate offence committed by the superior who is derelict in his or her supervisory duties, or both (Chapter 36, MN 31, of this volume). Be that as it may, it is a fact that—as envis-aged at the international level—superior responsibility is almost unknown to domestic criminal systems. It is only in the wake of the adoption of the ICC Statute that some state parties have felt it necessary to adopt rules to incorporate this type of responsibility at the national level, although in some cases they have expressly construed it as a separate offence of negligence. It seems premature to contend that states have the obligation (rather than the mere right) under CIL to provide for national rules incorporating the doctrine of superior responsibility for international crimes.60 The national legislation enacted so far appears more as a choice by states parties to implement the ICC Statute in their domestic systems, rather than the expression of an opinio juris relevant to the existence of a rule of CIL obliging them to do so.

II. The obligation to search for persons who have allegedly committed, or have ordered to be committed, a grave breach

Unlike other treaty provisions relevant to the exercise of criminal jurisdiction, those con-tained in the Geneva Conventions oblige contracting parties ‘to search for’ persons who have allegedly committed, or have ordered to be committed, a grave breach. The provision thus imposes an obligation to carry out an activity (to search for) that implicitly secures the arrest of these persons in order to ‘bring them before their own courts’, as further required by the same provision.61

Questions arise as to which authorities of the state should carry out this activity. On a strict literal reading, the obligation is imposed on the ‘High Contracting Parties’, which have to bring suspects (once found) before their own courts; this requirement appears to put the burden on the executive authorities and would exclude the intervention of the judiciary.62 However, this reading unduly restricts the scope of the provision, since this interpretation starts from the (wrong) assumption that the bearer of duties and obliga-tions in international law is the executive branch of the state. More convincing is the thesis according to which, as is the case with international law in general, the obligation is incumbent on states as such, which will then have to discharge it on the basis of their respective legal orders. Therefore, if a domestic legal system provides that the judicial

60 The principle of command and superior responsibility for international crimes (and above all war crimes) is, however, said to be clearly established in CIL: see ICRC CIHL Study, Rule 153. Importantly, as mentioned in Ch 36, MN 31–32, of this volume, Art 87 AP I does not expressly require contracting states to provide for the criminal liability of military commanders in the form of command responsibility but merely provides a right for them to do so.

61 Pictet Commentary GC I states (at 365): ‘The obligation imposed on the Contracting Parties to search for persons accused of grave breaches of the Conventions implies activity on their part.’

62 See R. Maison, ‘Les premiers cas d’application des dispositions pénales des Conventions de Genève par les juridictions internes’, 6 EJIL (1995) 260, at 266–8, who stresses that this interpretation must be rejected on the basis of a correct understanding of the system of criminal repression of grave breaches enshrined in the Geneva Conventions.

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authorities are competent to start investigations to identify and bring to justice persons allegedly responsible for a crime, nothing in the Geneva Conventions justifies stripping away their competence.63

Another question is whether a state should start the activity of ‘searching for’ someone only once it has information concerning the presence of the suspect on its territory. In this respect, the Pictet Commentary reads ‘as soon as [a contracting party] is aware that a person on its territory has committed [a grave breach], it is its duty to see that such person is arrested and prosecuted without delay’.64 If one follows this view, contracting states are not obliged to carry out any search if the suspected person is not allegedly on the terri-tory of the state. In practice, this means that those (including the victims) who turn to the relevant state authorities to report the commission of a grave breach will at the same time have to present credible information that the alleged perpetrator can be found on the territory of the state. However, nothing in the wording of the provision allows for such a restriction. On the contrary, the obligation is framed in very broad terms and appears not to be subject to any restriction or condition.65

This question arose in the context of the proceedings brought by five Bosnian citizens, all residing in France, before the French judicial authorities, against unknown persons for acts amounting to, inter alia, grave breaches of the Geneva Conventions and alleg-edly committed against them in 1992 during the armed conflict in Bosnia-Herzegovina (the Javor et al case). While the investigating judge ( juge d’ instruction) found the Court was entitled to exercise its jurisdiction over such a case,66 the Criminal Chamber of the Paris Court of Appeal reversed the decision, arguing that the grave breaches provisions were not self-executing in the French legal system.67 The Court of Cassation confirmed this view.68 It clarified that although the legislation implementing the Statute of the ICTY (adopted after the decision of the Court of Appeal)69 was applicable, as there was no information regarding the presence of the suspects on French territory (required by the legislation in question), the French judicial authorities lacked jurisdiction over the case.70

The French Court of Cassation based its decision, inter alia, on the jurisdictional requirement of the presence of suspected persons on French territory, expressly set out in Article 1 of the applicable national legislation. Interestingly, the reference to the alleged non self-executing character of the obligation ‘to search for’ under the grave breaches pro-visions, in the decisions denying jurisdiction in Javor, implies that for the French courts this obligation—as set out in the grave breaches provisions—does not require the alleged

63 Ibid, at 266–8. 64 Pictet Commentary GC I, at 366–7.65 This is the view advocated by B. Stern, ‘A propos de la competence universelle’, in E. Yakpo and

T. Boumedra (eds), Liber Amicorum Judge Mohammed Bedjaoui (The Hague: Kluwer, 1999) 735, at 747–8. See also Maison, above n 62, at 268–73; M. Henzelin, Le principe de l’universalité en droit pénal international (Basel/Brussels: Helbing & Lichtenhahn/Bruylant, 2000), at 354, para 1113.

66 The text of the decision is available (in French) at <http://competenceuniverselle.files.wordpress .com/2011/07/jugement-tgi-6-mai-1994-javor.pdf>.

67 The text of the decision is available (in French) at <http://competenceuniverselle.files.wordpress .com/2011/07/arret-ca-24-novembre-1994-javor.pdf>.

68 Court of Cassation, Criminal Chamber, decision 26 March 1996. The decision is available (in French) at <http://competenceuniverselle.files.wordpress.com/2011/07/cass-26-mars-1996-javor1.pdf>.

69 Law 2 January 1995, available (in French) at <http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000532676>.

70 See decision of the Court of Cassation, above n 68.

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presence of the suspect on national territory.71 Simply put, this obligation was deemed incapable of having direct effect in the French legal system so as to establish jurisdiction over the alleged offences that had been committed against the Bosnian victims.

Arguably, the non self-executing character of the obligation to search for persons sus-pected of grave breaches stemmed—in the case at issue—from the fact that the crimes were committed abroad by foreigners and against foreigners. Had the allegations of grave breaches been brought against French nationals, or had they been related to facts occurring on French territory, one might wonder what the conclusions of the French courts would have been. In other words, one should distinguish between, on the one hand, the obliga-tion to search for those suspected of grave breaches, and, on the other hand, the jurisdic-tional competence that may be necessary to prosecute any such suspect. We shall discuss in greater detail below (MN 56–61) the issue of the various grounds for jurisdiction with respect to grave breaches. Suffice it here to note that states that assert jurisdiction based on the principles of territoriality or active nationality do not usually request the presence of the alleged offender on the territory of the state for the purposes of judicial investigation and prosecution. The presence requirement is instead often demanded by states in order to acquire jurisdiction where the allegation is that offences have been committed abroad by foreigners and against foreigners. Such states are looking for a jurisdictional link in order to allow them to exercise criminal jurisdiction based on the principle of universality.

The obligation to search for persons allegedly responsible for grave breaches is also not limited ‘geographically’. This clearly does not mean that in order to comply with such an obligation, the state can exercise jurisdictional acts in the territory of other states without their consent.72 However, if a state has sufficient information to believe that a person has committed a grave breach and has grounds to believe that this person is under the juris-diction of another state, it can submit to the latter a request for surrender or extradition.

Arguably, the ‘obligation to search for’ alleged violators, enshrined in the grave breaches provision, does not imply an obligation for contracting parties to carry out investigations to uncover the commission of a grave breach.73 In other words, it is necessary that an alle-gation is made that a grave breach has been committed in order to trigger this obligation, even if the identity of the person responsible is unknown. This obligation is supplemented by other provisions of AP I, however, which reasserts the obligation of contracting parties to investigate (all) breaches of the Conventions as well as those listed in the Protocol.74

71 In the words of the Criminal Chamber of the Paris Court of Appeal, the provisions on grave breaches ‘revêtent un caractère trop général pour créer directement des règles de compétence extraterritoriale en matière pénale, lesquelles doivent nécessairement être rédigées de manière détaillée et précise’. (See above n 67.)

72 A state is, however, also obligated to search for persons responsible for grave breaches in the territories where it is exercising its jurisdiction in conformity with international law (see in this regard L. Condorelli, ‘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: Giuffrè, 1998) 23, at 33–4).

73 See in this vein M.N. Schmitt, ‘Investigating Violations of International Law in Armed Conflict’, 2 Harvard National Security Journal (2011) 31, at 39.

74 Ibid, esp 40–3. In particular, one should mention Art 87(1) AP I, whereby military commanders must ‘report to competent authorities breaches of the Conventions and of [the] Protocol’ by ‘members of the armed forces under their command and other persons under their control’. See also Art 87(3) AP I, that establishes the obligation of the High Contracting Parties and parties to the conflict to ‘require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of [the] Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or [the] Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof ’. Art 90 AP I also establishes the ‘International Fact-Finding Commission’. Unfortunately,

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III. The obligation to bring to court persons allegedly responsible for a grave breach

Contracting parties to the Geneva Conventions are obliged to exercise their adjudicatory jurisdiction in respect to persons allegedly responsible for a grave breach. The wording of the relevant provision could not be clearer, since it provides that they have to bring those persons before their own courts. In this respect, the grave breaches provisions dif-fer from other treaties containing provisions for the repression of international crimes. For instance, under the terms of the 1984 UN Convention against Torture, a state party on whose territory an alleged torturer is found must, if it does not extradite that person, ‘submit the case to its competent authorities for the purpose of prosecution’ (Article 7(1)). This is the so-called ‘Hague formula’, enshrined in Article 7 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft. This formula does not imply an obligation to prosecute but leaves room for the exercise of prosecutorial discretion, if this is possible under the domestic legal system.75 For grave breaches, this option seems to be unavailable.76 To put it differently, the obligation under the grave breaches regime, to bring persons suspected of grave breaches before the courts of the state, means that these persons must stand trial if the prosecutorial authorities have collected sufficient evidence to bring a criminal charge. If suf-ficient evidence is gathered, the prosecutor cannot rely on the national rules on prosecutorial discretion and must prosecute the case.77 It will then be for the courts to assess the criminal responsibility of the accused, in accordance with the minimum procedural guarantees pro-vided for in GC III (and supplemented by Article 75(4) AP I)). On the other hand, contrary to what the Pictet Commentary seems to suggest,78 the obligation of the High Contracting Parties to bring persons allegedly responsible for a grave breach before their own courts does not involve a duty to arrest the person suspected or accused of having committed a grave breach. The custodial state will thus have to follow its national rules on pre-trial detention and detention during trial.79

the Commission has so far remained a ‘paper entity’ (the expression is used by O. Ben Naftali and R. Peled, ‘How Much Secrecy Does Warfare Need’, in A. Bianchi and A. Peters (eds), Transparency in International Law (Cambridge: CUP, 2013) 321, at 354. According to some commentators, an obligation to investigate ser-ious violations of IHL is included in the obligation to ensure respect for IHL, contained in CA 1. According to the same commentators, other norms of IHL and IHRL would constitute the legal basis for the obligation to investigate violations of IHL. (See A. Cohen and Y. Shani, ‘Beyond the Grave Breaches Regime: The Duty to Investigate Alleged Violations of International Law Governing Armed Conflicts’, The Hebrew University of Jerusalem—International Law Forum, Research Paper N 02-12, January 2011.) For the obligation to suppress all the breaches of the GCs not listed as grave breaches, see Ch 36 of this volume, MN 10–12.

75 See G. Guillaume, ‘La Convention de la Haye du 16 décembre 1970 pour la répression de la capture illicite d’aéronefs’, 16 AFDI (1970) 35, at 50. See also, in respect to the 1984 Convention against Torture, the Judgment of the ICJ issued on 20 July 2012 in the Questions Relating to the Obligation to Prosecute or Extradite case (Belgium v Senegal), para 90. Under the Hague formula, the prosecuting authorities should take their deci-sion in the same manner as ‘in the case of any ordinary offence of serious nature under the law of that State’.

76 See Kreβ, above n 26, at 802–3.77 According to Kreβ, above n 26, at 802–3, prosecutorial discretion is allowed concerning the decision

whether to take investigative steps as regards an alleged grave breach in the absence of the suspected offender. He argues that these measures ‘fall outside the grave breaches regime and states are thus under no obligation to take such measures’. He seems therefore to take the view that under the GCs, it is a jurisdictional requirement that there be allegations concerning a person suspected of a grave breach who is actually present in the territory of the state. See, however, the discussion above, at MN 35–38. See also further MN 56–61. One might note that prosecutorial discretion over allegations of grave breaches is possible at the ICC (see Art 53 ICC Statute, regulating its exercise by the ICC Prosecutor).

78 MN 35. 79 See Kreβ, above n 26, at 800–1.

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Arguably, the obligation at stake affects the freedom of states to enact national measures of amnesty or other measures of pardon covering acts involving grave breaches. These measures, if actually applied by the state concerned,80 are unlikely to square with the duty to imple-ment, in good faith, the said obligation.81 The same might be said for provisions on amnesties eventually included in peace treaties, to the extent that such provisions cover and are actually applied to acts involving grave breaches.82 Neither national measures on amnesty or pardon, nor provisions on amnesty in agreements concluded by belligerents, can bind third states;83 in neither case can third states rely on such agreements to claim that they obviate the need for compliance with the obligation to search for and bring to court persons responsible for grave breaches.

More difficult is the question of the relationship between the obligation under discus-sion and the rules of CIL on immunities shielding some classes of state officials, or those who act on behalf of the state, from foreign criminal jurisdiction (respectively, so-called immunities ratione personae and immunities ratione materiae). The Geneva Conventions do not contain express provisions on the matter. One might therefore be tempted to con-tend that the obligation to punish persons responsible for grave breaches necessarily implies a derogation from the rules of CIL on immunities from foreign criminal jurisdiction. The International Court of Justice (ICJ) has taken a different stand, however. In the Arrest Warrant case, the Court noted that the obligation of prosecution or extradition contained in various international conventions for the prevention and punishment of certain serious crimes, ‘in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs’. According to the Court, ‘[t] hese remain opposable before the courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions’.84

80 If the measures of amnesty or pardon eventually issued in a country remain a dead letter or are disre-garded by the competent authorities, the existence of such measures could not be considered an act contrary to the grave breaches provisions.

81 See R. Kolb, ‘The Exercise of Criminal Jurisdiction over International Terrorists’, in A. Bianchi (ed), Enforcing International Law Norms against Terrorism (Oxford: Hart Publishing, 2004) 227, at 264. In dis-cussing the scope of the obligation to repress the acts described in the so-called anti-terrorism conventions, he argues that it would run contrary to the obligation to implement a treaty in good faith to enact amnesty laws or to grant pardon for such acts. Only in limited and exceptional circumstances would such measures be admissible. His argument is applicable, a fortiori, to the grave breaches provisions, given the even broader content of the obligation to repress these breaches. For a critical discussion of the wider debate on the ‘legality’ under CIL of amnesty laws covering acts amounting to international crimes, see W.A. Schabas, Unimaginable Atrocities (Oxford: OUP, 2012), at 173–98.

82 According to P. D’Argent, Arts 51/52/131/148, providing that ‘[n] o High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of [grave breaches]’, implies that the High Contracting Parties cannot enter agreements providing for an amnesty. See P. D’Argent, ‘Réconciliation, impunité, amnistie: quel droit pour quels mots?’, 11 La Revue Nouvelle (2003) 30, at 33–4. See also P. D’Argent, Les réparations de guerre en droit international public (Brussels: Bruylant, 2003), at 771–4, with references to the travaux préparatoires.

83 On the irrelevance of amnesty laws of a foreign state for national prosecution, see, e.g., the decision of the ECtHR in Ely Ould Dah v France, Decision on admissibility, 17 March 2009, at 18.

84 ICJ, Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Judgment 14 February 2002, para 59. Interestingly, the case involved the arrest warrant issued by the Belgian competent authorities against the then acting Minister of Foreign Affairs of the Democratic Republic of Congo, inter alia, for charges that the Belgian Law applicable at the time considered to be ‘grave breaches of the Geneva Conventions’. It is regrettable that the ICJ did not clarify the matter further, and failed to explain what would be the effective scope of the obligation to punish grave breaches should the rules on international immunities before foreign courts apply without exceptions in relation to persons suspected of committing or ordering the commission of a grave breach.

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Since the case before the Court concerned immunities ratione personae, one might contend that this statement does not concern the other category of international immuni-ties, namely those that protect an individual from foreign criminal jurisdiction for acts performed in an official capacity (immunities ratione materiae).85 Nonetheless, the matter seems far from being settled. In the context of his work on the ‘Immunity of State officials from foreign criminal jurisdiction’, the then Special Rapporteur of the International Law Commission (ILC), Roman Kolodkin, argued that there are no sufficient elements in international practice to identify an exception to the rule on immunities rationae materiae in relation to international crimes.86 With respect to the punishment of war crimes, in his view, the war crimes trials that took place after the Second World War were specific to the historical situation and do not constitute evidence of an exception to the rule on immuni-ties in other contexts.87 At the same time, he asserted that—regardless of the nature of the crime—these immunities do not apply in relation to offences perpetrated in the territory of the state exercising jurisdiction and in connection with activities performed in that state without its consent.88 He also noted, however, that ‘the issue of criminal prosecution and immunity of military personnel for crimes perpetrated during military conflict in the ter-ritory of a State exercising jurisdiction would seem to be governed primarily by humani-tarian law’. Therefore, being a special case, the issue ‘should not be considered within the framework of this topic’.89 The stand taken by the Special Rapporteur sparked a lively debate within the ILC, with some members taking the view that one cannot interpret silence on the question of immunities in treaties concerning repression of international crimes as an implicit recognition that immunity applies in all cases involving the crimes that these treaties cover. Such an interpretation would render these treaties meaningless.90

85 However, in a subsequent paragraph of the Judgment, the ICJ seems to consider that the international rules on immunities ratione materiae would also remain applicable in the case of charges of international crimes: ibid, para 61. In this paragraph, the Court clarified that ‘the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances’. Among these circumstances, the Court mentioned the case when ‘a person ceases to hold the office of Minister for Foreign Affairs’, since in this case ‘he or she will no longer enjoy all of the immuni-ties accorded by international law in other States’. According to the Court, ‘Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity’ (emphasis added). In this way the Court seems to imply that acts amounting to international crimes, if committed in ‘an official capacity’, would still be covered by the international rules on immunities ratione materiae before national jurisdictions (unless one considers that international crimes can never be considered acts committed in an official capacity). For a critical analysis of this obiter dictum of the Court, see A. Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’, 13 EJIL (2002) 853. The view according to which immunities ratione materiae are not applicable in cases concerning international crimes is advocated, inter alia, in Art III of the Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crime, adopted by the Institut de droit international at the Naples Session (2009), which provides that ‘No immunity from jurisdiction other than personal immunity in accordance with international law applies with regard to international crimes.’

86 Second report on immunity of State officials from foreign criminal jurisdiction, 10 June 2010, A/CN.4/631.

87 Ibid, para 69. 88 Ibid, paras 84–5 89 Ibid, para 86.90 For a summary, see Report of the International Law Commission, General Assembly Official Records,

66th session, Supplement No 10 (A/66/10), at 222–4, § 121–31. One might argue the same with respect to the so-called immunities ratione personae. However, immunities ratione personae are ‘temporary’, protecting the person from foreign jurisdiction only until such time as that person holds a particular post (e.g., head of state or government, minister for foreign affairs, head of diplomatic mission), and in addition are limited to

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Admittedly, it is unfortunate that the formula adopted in the Charter of the Nuremberg Tribunal, which highlights the ‘irrelevance of the official capacity’ of the defendant, is absent from the Geneva Conventions.91 The draft of the Expert Committee convened by the ICRC for the drafting of the common provisions did contain such a rule.92 It is unclear why the Final Diplomatic Conference dropped it. The matter must therefore be regulated in light of the content of the rules of CIL, and it is to be hoped that the work of the ILC will shed some light on this question.

The present author is convinced that the doctrine of immunities ratione materiae is profoundly at odds with the notion that individuals are directly responsible under inter-national law for a certain class of international crimes, a class which certainly includes grave breaches of the Geneva Conventions. Asserting the applicability of the rules on immunities ratione materiae for grave breaches and other international crimes would mean shielding from criminal responsibility those who have abused their official capacity and committed acts that the international community considers criminal in nature, and therefore as deserving no protection under international law.93 It would also mean that only those who had acted in a private capacity could be held accountable before the courts of a foreign state, although when it comes to grave breaches, and other war crimes, the great majority of these offences are committed by members of the belligerent armed forces and other state officials.

The alleged applicability of the doctrine of immunities ratione materiae for interna-tional crimes under CIL will also have an impact on the jurisdiction of the ICC. It would mean that Article 27 of the ICC Statute, which enshrines the principle of the irrelevance of official capacity for the purpose of criminal responsibility under the ICC Statute, and the inapplicability of immunities under international law before the Court, derogates from CIL and has legal force only on the basis of the treaty. As such, it would therefore be opposable only to states that are parties to the ICC Statute. The result would be that states

a specific class of state officials. The risk of impunity connected to the applicability of these immunities in respect of the crimes at stake is therefore not as great as in the case of the applicability, without exceptions, of immunities ratione materiae. These latter immunities do not come to an end (at least not until the state on behalf of which the individual has acted continues to exist). Should they apply to shield from foreign jurisdic-tions the individuals accused of an international crime, it would never be possible for a foreign court to exercise jurisdiction over such individuals, unless the state for which they have acted waives the immunity. On the question of the applicability of the international rules on personal immunities with respect to the exercise of national jurisdiction over international crimes, and the possible exceptions that might be envisaged de lege ferenda, see P. Gaeta, ‘Immunity of States and State Officials: A Major Stumbling Block to Judicial Scrutiny?’, in A. Cassese (ed), Realizing Utopia. The Future of International Law (Oxford: OUP, 2012) 227, at 233–5.

91 See Art 7 of the Charter of the Nuremberg Tribunal.92 See Art III para 2 of the draft common articles prepared by the ICRC Expert Committee, reported in

Pictet Commentary GC I, at 359, fn 1, whereby ‘Full responsibility shall attach to the person giving the order, even if in giving it he was acting in his official capacity as a servant of the State.’

93 See in this regard the stand taken by the Swiss Federal Tribunal in A v Ministère Public de la Confédération, Decision of 25 July 2012, BB.2011.140, concerning the alleged immunities ratione materiae of the former Algerian Minister of Defence, Khaled Nezzar, in respect of charges concerning war crimes and crimes against humanity, where it noted (at 5.4.3): ‘[I] l serait à la fois contradictoire et vain si, d’un côté, on affirmait vouloir lutter contre ces violations graves aux valeurs fondamentales de l’humanité, et, d’un autre côté, l’on admet-tait une interprétation large des règles de l’immunité fonctionnelle (ratione materiae) pouvant bénéficier aux anciens potentats ou officiels dont le résultat concret empêcherait, ab initio, toute ouverture d’enquête. S’il en était ainsi, il deviendrait difficile d’admettre qu’une conduite qui lèse les valeurs fondamentales de l’ordre juridique international puisse être protégée par des règles de ce même ordre juridique.’ The text of the decision is available (in French) at <http://bstger.weblaw.ch/cache/pub/cache.faces?file=20120725_BB_2011_140 .htm&ul=fr>.

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not parties to the ICC could invoke before the Court the immunity ratione materiae of individuals (usually their own nationals) accused of grave breaches (and eventually other crimes under the jurisdiction of the Court).94

The present author is also convinced, however, that the issue of the applicability of immunities ratione materiae in relation to international crimes is inextricably linked with the issue of the exercise of criminal jurisdiction based on the universality principle. As the Kolodkin report indicates, there is less resistance to accepting the idea of the unavail-ability of these immunities when crimes have been committed in the territory of the state exercising jurisdiction (and when the territorial state has not consented to the exercise of official functions by the foreign state officials on its territory).95 The concern is that those who have acted in an official capacity must be protected against the risks of abuse in the exercise of universal jurisdiction. According to the present author, these risks are exagger-ated and are put forward precisely to shield from liability those who, while performing official functions, have committed crimes under international law. Ultimately, to take these concerns about abuse into account would mean seriously undermining the system of repression of international crimes, the development of which has benefitted immensely from the adoption of the grave breaches provisions.

IV. The obligation to hand over to another state persons suspected of a grave breach

A High Contracting Party, ‘in accordance with the provisions of its own legislation’, can opt to hand over for trial to another High Contracting Party persons allegedly responsible for a grave breach, if that other High Contracting Party ‘has made out a prima facie case’. The system of repression of grave breaches thus relies upon the so-called principle of aut dedere aut judicare (one must either surrender or judge the individual) to ensure that those responsible will not escape criminal responsibility.

Among the different ways in which international provisions have incorporated the principle aut dedere aut judicare, the one envisaged for the repression of grave breaches makes the surrender (dedere) limb an option that will relieve the state that has custody of the suspect from the obligation to judge ( judicare) him or her.96 This also implies that the existence of a request to surrender has no bearing on the scope of the obligation of the state that receives an allegation of a grave breach. In other words, the obligation to search for and to bring before the national courts persons allegedly responsible for a grave breache must be complied with, even in the absence of a request for surrender by another contracting party. It is only in the case of surrender to another contracting party that the custodial state is relieved of its obligation to bring that person before its own national courts for trial.97

94 See P. Gaeta, ‘Ratione Materiae Immunities of Former Heads of State and International Crimes: The Hissène Habré Case’, 1 JICJ (2003) 186, at 192–4.

95 See also para 61 of the ICJ Judgment in the Arrest Warrant case, above n 84, and quoted above n 85.96 See Henzelin, above n 65, at 353. In this sense, see also the Joint Separate Opinion of Judges Higgins,

Kooijmans, and Buergenthal appended to the Judgment of the ICJ in the Arrest Warrant case (above n 84), para 30. This is the interpretation propounded by the ICJ in relation to the aut dedere aut judicare rule enshrined in Art 7 CAT, the wording of which reproduces the Hague Formula, which, to a greater extent than the grave breaches provisions, may be more susceptible to the interpretation requiring the treatment of the dedere and the judicare limbs as alternative obligations. See ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, 20 July 2012, paras 94–5.

97 See Henzelin, above n 65, at 353. See also the ICJ in Belgium v Senegal, above n 96, para 94.

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That surrender to another state is conditional upon the two requirements mentioned above—that the requesting state has a prima facie case and that the surrender is based on national legislation—clearly weakens the system of repression. As one commentator has aptly pointed out, a contracting state may well ‘decline to try a person for lack of evidence in its possession’, and at the same time decline ‘to hand over the accused to a state which has such evidence’.98 The national legislation may in fact consider the offence in question a political offence, which is usually an exception to extradition in relevant treaties.99 In addition, it may lay down other obstacles to extradition, such as a ban on the extradition of nationals. The Geneva Conventions do not oblige the High Contracting Parties to amend their legislation on extradition. Article 88 AP I, which complements the system of repression of grave breaches of the Geneva Conventions, does not redress this situa-tion. Although it requires contracting parties ‘to afford one another the greatest measure of assistance’ and to ‘cooperate in the matter of extradition’, this is to be in accordance with the system originally envisaged in the Conventions which subjects surrender to any restrictions that might apply in the national legislation of the requested state.100

As in the case of the express reference to the irrelevance of official capacity for the pur-poses of prosecution, the original draft by the Expert Committee convened by the ICRC before the Diplomatic Conference was more demanding than the eventual Conventions with respect to requiring extradition. The draft contained the obligation for contracting parties to ‘enact suitable provisions for the extradition of any person accused of a grave breach’ and made no mention of requests for extradition being handled in accordance with national law.101 Arguably, here again we are confronted with an eventual compro-mise, reached at the Diplomatic Conference, to design grave breaches provisions that would be more acceptable to the powerful states.

One might wonder whether the state, having the custody of a person allegedly respon-sible for a grave breach, could be relieved from its obligation to bring this person before its own courts if it opted to surrender the suspect to a competent international criminal court. The Pictet Commentary envisages this possibility, where it asserts that the ‘handing over of the accused to an international penal tribunal, the competence of which is recog-nized by the Contracting Parties’, is not excluded by the provision at stake.102 Similarly, and more recently, in the context of its work on the Obligation to Extradite or Prosecute, the ILC has referred to this alternative as a means to comply with its aut dedere aut judicare obligation.103 However, it has pointed out that this would be possible unless ‘a different

98 See Draper, above n 26, at 159.99 It should be noted that the Genocide Convention rules out the possibility for contracting states to

consider acts of genocide as ‘political crimes’ for the purpose of extradition. See on this issue R. Roth, ‘The Extradition of Genocidaires’, in P. Gaeta (ed) The UN Genocide Convention. A Commentary (Oxford: OUP, 2009) 278, at 282–6. In an obiter dictum, the ICTY Trial Chamber in Furundžija asserted that, considering the jus cogens status of the prohibition of torture, it cannot be considered as a political offence in the context of extradition (The Prosecutor v Anto Furundžija, Trial Chamber Judgment, IT-95-17/1-T, 10 December 1998, para 157). To the extent that the prohibition of grave breaches has a jus cogens character and one accepts this view, one could argue that the political offence clause should not bar the extradition of persons suspected of a grave breach.

100 See ICRC Commentary APs, Art 88 AP I, at 1027, para 3568.101 Art II para 2 of the Articles proposed by the Expert Committee, reported in Pictet Commentary GC I,

at 359, in the text of fn 1.102 Ibid, at 366.103 ILC, Report of the Working Group on the Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare),

22 July 2013, A/CN.4/L. 829, at 15, paras 33–4.

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intention appears from the treaty or is otherwise established’, as provided for in Article 28 of the Vienna Convention on the Law of Treaties.104

Does a state party to the Geneva Conventions fulfil its obligation to judge, or hand over the accused, if it surrenders a person allegedly responsible for a grave breach to the ICC? Answering this question in the affirmative is not as simple as it may appear at first sight. Setting aside the preliminary question of whether the correct application of the complementarity principle allows a contracting state not to discharge its primary duty to prosecute the crimes listed in the ICC Statute by surrendering the accused to the ICC,105 one should take into account the following issues. First, the possibility of introducing into the system of repression of grave breaches a clause similar to the one provided in Article VI of the Genocide Convention, concerning trial by an international penal tribunal of competent jurisdiction, was discussed at the Final Diplomatic Conference but was in the end rejected.106 This was another ‘concession’ to those states calling for more consideration to be given to state sovereignty in the approach to the punishment of individuals respon-sible for violations of the Geneva Conventions. Secondly, as the Pictet Commentary also underlines, and following the example of the Genocide Convention, an international criminal tribunal to which the suspect is surrendered ‘shall be competent with respect to those Contracting Parties which shall have accepted its jurisdiction’. This requirement may thus bind parties to the Geneva Conventions that are also parties to the ICC Statute. When this is not the case, and the person suspected of a grave breach is a national of a state not party to the ICC Statute but a party to the Geneva Conventions, the alternative of surrendering this person to the ICC may not be available to the custodial state without implying a breach of its obligations under the Geneva Conventions. The state of nation-ality of the alleged offender might indeed claim that it has not accepted the jurisdiction of the ICC, and request the custodial state to comply strictly with its obligations under the Geneva Conventions. Things may be different if the jurisdiction of the ICC is trig-gered by the Security Council acting under Chapter VII of the United Nations Charter. According to one commentator, in cases of referrals by the Security Council, the jurisdic-tion of the ICC would stem from the resolution of the Security Council—binding on all members of the United Nations—and not from the ICC Statute.107 The present author, however, does not share this view. The ICC Statute establishes an international organiza-tion governed—as all international organizations—by the so-called principle of special-ity. The ICC can therefore exercise only the powers and competences that its states parties have delegated to it, expressly or implicitly. In addition, the relevant provisions of the ICC Statute clearly provide that the referral of a situation to the Court by the Security Council constitutes one of the conditions for the exercise of the Court’s criminal jurisdiction, but it does not constitute the source of its jurisdiction. The referral by the Security Council of a situation in which crimes are committed on the territory or by a national of a state not party to the ICC Statute is no exception.108

104 Ibid, at 34.105 See para 6 of the Preamble to the ICC Statute, whereby ‘it is the duty of every State to exercise its crimi-

nal jurisdiction over those responsible for international crimes’.106 See Final Record, vol II-B, at 132.107 D. Akande, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s

Immunities’, 7 JICJ (2009) 333, esp at 341.108 Art 1 ICC Statute clearly states that the Court ‘shall have the power to exercise its jurisdiction over

persons for the most serious crimes of international concern, as referred to in this Statute’, and that the ‘jurisdiction and functioning of the Court shall be governed by the provisions of this Statute’. Arts 5 to 8

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Be that as it may, the issue can certainly be framed differently for cases of surrender to the ICTY. The latter is an ad hoc judicial body created by the Security Council and endowed with authority which stems from binding decisions of the Security Council. All members of the UN are expected to accept the jurisdiction of this Tribunal and to comply with its requests for surrender that, under Article 103 of the UN Charter, prevail over any other international obligations of UN member states, including the obligation to judge or surrender as stipulated in the grave breaches provision.109 Arguably, therefore, states that have surrendered persons suspected of a grave breach to the ICTY cannot be considered responsible for a violation of the aut dedere aut judicare principle as framed in the Geneva Conventions.

V. The question of jurisdictional link, including universal jurisdictionCarrying out the obligations to search for, bring to court, or hand over, necessarily requires that the relevant state has criminal jurisdiction over grave breaches. The scope of the jurisdictional authority of contracting states over grave breaches is therefore crucial, and yet the Geneva Conventions do not expressly regulate the matter. The conventional wisdom, however, is that the Geneva Conventions establish a system of ‘mandatory uni-versal jurisdiction’ over grave breaches. This expression is used to state two things at the same time: that contracting states are obliged to establish criminal jurisdiction based on the so-called universality principle; and, secondly, that they are obliged to exercise such jurisdiction to comply with the obligations to search for, bring to court, or hand over the suspect to another contracting state.

The grave breaches provisions do not define the universality principle in clear-cut terms. If one takes into account the incipit of the provisions (‘Each High Contracting Party shall be under the obligation to search for’) as well as the preparatory works as a supplementary means of interpretation, the logical conclusion is that the aforementioned obligations must be complied with regardless of the existence of any link with the crime or the alleged

define the crimes over which the Court ‘shall have jurisdiction’, while Art 12 sets forth the ‘pre-conditions to the exercise of the jurisdiction of the Court’. The latter provision establishes that the Court ‘may exercise its jurisdiction’—in the case of a referral by a state party or by virtue of a proprio motu investigation by the Office of the Prosecutor—if crimes are committed in the territory or by a national of a state party, or of a state that has accepted the ad hoc jurisdiction of the Court. Thus, this provision sets out a requirement for the Court to exercise its jurisdiction and not a requirement for the Court to acquire jurisdiction. This distinction is crucial. According to the first reading, the jurisdiction of the Court exists independently of where or by whom crimes are committed, and in that sense it is ‘universal’. Such ‘universal’ jurisdiction cannot be exercised so long as the state has not accepted the jurisdiction of the Court either by becoming a party to the ICC Statute or on an ad hoc basis. However, this impediment disappears when the Security Council refers a situation to the Court. Thus, the ‘universal’ jurisdiction of the Court may be exercised by virtue of a Security Council referral, which operates to ‘remove’ a condition on the exercise—but is not the source—of the ICC’s jurisdiction. On the ‘universal’ jurisdiction of the ICC, see, e.g., L.N. Sadat and R. Carden, ‘The New International Court: An Uneasy Revolution’, 88 Georgetown Law Journal (1999-2000) 381, at 407.

109 Interestingly, in finding that Serbia had violated its obligation under Art VI of the Genocide Convention in the Bosnian Genocide case because it failed to surrender General Mladić to the ICTY, the ICTY relied on the fact that Serbia had signed the Dayton Agreement—and was therefore obliged to cooperate with the Tribunal—rather than on the binding nature of requests by the ICTY under the UN Charter (see Judgment, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro), 26 February 2007, paras 439–50. The Court might have done so because of the uncertainty over several questions surrounding the UN membership status of the former Federal Republic of Yugoslavia.

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offender.110 Necessarily, therefore, contracting states are obliged to vest their competent authorities with such broad jurisdictional criminal reach.111

The main bone of contention is how broad universal criminal jurisdiction should be under the grave breaches system.112 According to one view, once there is an allegation of a grave breach, the relevant contracting state should take the necessary steps to identify and locate the alleged offender, regardless of whether there is credible information that he or she is present on the territory under its jurisdiction. This interpretation is supported by the textual interpretation of the grave breaches provisions that ‘do not logically pre-suppose the presence of the offender’.113 Universal criminal jurisdiction will therefore be mandatory in what has been referred to as its ‘pure’ form. Under another view, the man-datory universal jurisdiction over grave breaches will be triggered only by the presence of the suspect on the territory of the state. This view is supported by reference to the Pictet Commentary114 and finds some support in international case law.115 In addition, the pres-ence of the suspect on the territory of the state would be a necessary precondition for the meaningful exercise of the obligation to search for the suspect, as well as for the obligation to bring the suspect before the courts of the state or, in the alternative, to hand him or her over to another contracting state.116

Both views are partially correct. As already observed above (MN 35), the grave breaches provisions do not subject the obligation ‘to search for’ the suspect to the precondition that the suspect is present on the territory of the state. At the same time, to conceive of there being a mandatory obligation to exercise universal criminal jurisdiction without the sus-pect’s ever having entered the territory of the state seems to be not only excessive,117 but also contrary to the practice of states, which tend to establish some form of a ‘link’ with the crime (including the presence of the suspect on the territory) in order to acquire or trigger universal criminal jurisdiction, including over grave breaches.118

To resolve this apparent contradiction, we should observe that the grave breaches provisions cannot be interpreted as merely imposing a system of mandatory universal jurisdiction. On the contrary, they establish a system of mandatory exercise of criminal jurisdiction not only for states with no direct connection to the grave breach (neutral states), but also for the belligerents. Compliance with the mandatory exercise of criminal

110 In this regard and for the necessary references to the preparatory works, see also R. O’Keefe, ‘The Grave Breaches Regime and Universal Jurisdiction’, 7 JICJ (2009) 811, at 813–15.

111 Yet some judges of the ICJ have contested this view, and have denied that the grave breaches provisions have any impact whatsoever on the jurisdictional reach of contracting states, without, however, adducing any convincing arguments in support (ibid, at 817).

112 For a discussion of this issue, see ibid, at 825–30.113 See the Dissenting Opinion of Judge van den Wyngaert in the Arrest Warrant case, above n 84, para 54.114 Above n 64 and relevant accompanying text.115 See Separate Opinion of Judge Guillaume in the Arrest Warrant case, above n 84, who considers that

the 1949 GCs do not expressly regulate questions concerning the scope of national jurisdiction over grave breaches (Separate Opinion, at 39) and asserts (ibid, at 40) that ‘Universal jurisdiction in absentia is unknown to international conventional law.’

116 The present author has already put forward these arguments elsewhere: see P. Gaeta, ‘National Prosecution of International Crimes: International Rules on Ground of Jurisdiction’, in Studi in onore di Gaetano Arangio-Ruiz (Naples: Editoriale Scientifica, 2004) 1923, at 1936–7.

117 See Cassese and Gaeta, above n 44, at 279–80.118 An overview of the national legislation on universal jurisdiction is available in a study prepared by

Amnesty International, Universal Jurisdiction: A Preliminary Survey of the Legislation around the World, avail-able at <http://www.amnesty.org/fr/library/asset/IOR53/004/2011/en/d997366e-65bf-4d80-9022-fcb8fe 284c9d/ior530042011en.pdf>.

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jurisdiction requires neutral states to act on the basis of the universality principle, while belligerent states will likely possess criminal jurisdiction for the violations of the laws of warfare under the principles of the territoriality of the offence and/or the nationality of the perpetrators or of the victim (i.e., respectively, the so-called active and passive personality principles).119

Seen from this perspective, it is therefore not surprising that the presence of the accused on the territory of the forum state is not mentioned in the grave breaches pro-vision as a condition for the exercise of criminal jurisdiction. To include this would have meant providing a requirement, which is usually absent in national legislation, for criminal jurisdiction based on the territoriality and the active and passive nationality principles. This would have run counter to the main objective pursued by the adoption of the grave breaches provisions, namely to ensure the punishment of those responsible for violations of the Conventions. At the same time, the silence on the presence require-ment does not necessarily mean that the drafters of the Conventions were envisaging a mandatory system of universal jurisdiction in its pure form. After all, such a system had never been envisaged in any prior treaty, neither is it found in any subsequent treaty dealing with criminal matters. On the contrary, states have shown a clear preference for the adoption of the principle of universal jurisdiction in the form of the forum dep-rehensionis. This does not mean that the ‘voluntary’ exercise of universal jurisdiction in its pure form is necessarily ‘illegal’ under CIL, including with respect to allegations of grave breaches. It is doubtful, however, that such exercise is mandatory under the terms of the Geneva Conventions.

VI. Judicial guarantees and the question of the status of prisoners of war

Ensuring due process to persons accused of grave breaches was the predominant concern of the ICRC during the whole process of preparation and drafting of the grave breaches provisions. It was a concern dictated by irregularities in the war crimes trials conducted by the courts of the victor states against enemy nationals after the Second World War,120 and by the fear of political use being made of criminal proceedings.121 Apparently, as long

119 Common law countries usually consider that the so-called principle of passive personality, which justi-fies the assertion and exercise of criminal jurisdiction by the state of nationality of the victim of a crime com-mitted abroad by a foreigner, is not admissible under CIL. The well-known case in the US is Cutting (see J.B. Moore, A Digest of International Law (Washington, DC: Government Printing Office, 1906), at 232–40). For a thorough analysis of the controversy surrounding this principle of jurisdiction, see G.R. Watson, ‘The Passive Personality Principle’, 28 Texas International Law Journal (1993) 14. However, with respect to the repression of war crimes, acts of terrorism and, more generally, crimes committed because of the specific nationality of the victim, the assertion of criminal jurisdiction based on the passive personality principle is uncontested (and has been progressively accepted in national legislations) even by those countries tradition-ally opposed to it. See amplius, also for the necessary reference, P. Gaeta, ‘Il principio di nazionalità passive nella repressione dei crimini internazionali da parte delle giurisdizioni interne’, in G. Venturini and S. Bariatti (eds), Studi in onore di Fausto Pocar (Milan: Giuffrè, 2009), vol I, at 325.

120 The trial of Japanese General Yamashita (above n 57) is a case in point; he sparked a lively debate—in the US and elsewhere—concerning respect for due process by the US military court which tried him in the Philippines. See Pictet Commentary GC III, at 413, also for the reference to other cases. On the wider debate concerning the use of military commissions by the US for the trial of ‘unprivileged enemy belligerents’, see, inter alia, D. Weissbrodt, ‘International Fair Trial Guarantees’, in A. Clapham and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford: OUP, 2013) 410, at 428–39.

121 See Lewis, above n 1.

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as the grave breaches provisions obliged the forum state to comply with fair trial guaran-tees for the defendant, the ICRC was ready to make concessions at the Final Diplomatic Conference on other aspects contained in the draft of the Expert Committee.122

The Expert Committee had drafted a specific provision listing the safeguards that con-tracting states had to guarantee to ‘any person accused of a breach’ of the Conventions, including where that person was charged before an international jurisdiction.123 It was not easy to have this proposal accepted by the Diplomatic Conference, in particular because some delegations (such as those of the Soviet Union and Hungary) considered that persons accused of war crimes had to be treated as normal criminal suspects.124 A proposal by the French delegation was eventually adopted,125 and became the cur-rent provision on judicial guarantees for those persons accused of any breach of the Conventions and not only grave breaches.126 These guarantees are indicated to be, as a minimum, those enshrined in Articles 105 to 108 GC III, namely: the rights and means of defence; ‘the right of appeal or petition from any sentence’ pronounced upon the accused; the right to receive ‘notification of findings and sentence’, in a language the accused under-stands, if the sentence was not pronounced in his or her presence; and a series of rights con-nected to the execution of the sentence (for instance, the right to serve the sentence in the same establishments and under the same conditions as in the case of members of the armed forces of the Detaining Power, and in any case in conditions that ‘shall in all cases conform to the requirements of health and humanity’).127 The Diplomatic Conference therefore did not include the other safeguards included in the draft of the Expert Committee, such as the pro-hibition against subjecting an accused person to ‘any tribunal of extraordinary jurisdiction’, or against imposing penalties or repressive measures more severe than those applied to the contracting states’ own nationals or contrary ‘to the general principles of law and humanity’. Nonetheless, the list of guarantees that shall be afforded to persons accused of a grave breach of the Geneva Conventions and AP I has been expanded by virtue of Article 75 AP I.128 In addition, the guarantees that are expressly indicated by the relevant provisions to the benefit of persons accused of grave breaches constitute only a ‘minimum standard’ of treatment. As the ICRC correctly emphasizes, they ‘do not in any way prevent more favourable treatment from being granted in accordance with other provisions of the Geneva Conventions and Additional Protocol I’.129

One specific aspect concerns the applicability of the status of POWs to those accused and convicted of a grave breach. Article 85 GC III expressly states that POWs ‘prosecuted under the laws of the Detaining Power for acts committed prior to capture, shall retain, even if convicted, the benefits’ of the Convention. The question whether this provision applies to captured enemy combatants who are accused of war crimes is of course crucial. One author

122 Ibid, at 263, quoting a statement by Pilloud, who told Graven that ‘[the ICRC] vigorously desire[s] that the four elaborated articles will be accepted without change by the Diplomatic Conference, but it may be necessary jeter du lest [i.e. to throw out the ballast]’.

123 Pictet Commentary GC I, at 359, in the text of fn 1.124 See Lewis, above n 1, at 265, also for the necessary reference.125 Pictet Commentary GC I, at 369.126 The GCs also provide that the contracting parties shall ‘take measures necessary for the suppression of

all acts’ contrary to the Conventions ‘other than the grave breaches’. See Ch 36 of this volume, MN 10.127 For a more detailed discussion of these guarantees, see Ch 59 of this volume.128 See Ch 59 of this volume.129 See ICRC, Advisory Service on International Humanitarian Law, ‘Judicial Guarantees and Safeguards’,

available at <https://www.icrc.org/en/download/file/1089/judicial-garantee-icrc-eng.pdf>.

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has forcefully argued that it does not.130 In addition, some states have entered reservations to this provision for the purpose of denying the status of POW to persons accused or convicted of war crimes. These reservations (known as the ‘communist reservations’ since they were first formulated—although with different wording131—by the Soviet Union and other states of the Communist Bloc) caused great concern at the ICRC,132 and sparked lively debate when they were actually invoked in relation to some armed conflicts.133

Arguably, these reservations are contrary to the object and purpose of the Convention.134 It is also clear that—at least as regards those formulated also to cover persons accused of war crimes—their application could be considered incompatible with Article 5 paragraph 2 GC III, which provides that in case of doubt as to whether a person is entitled to the sta-tus of POW, he or she must enjoy the protection of the Convention until his or her status is determined by a competent tribunal.

C. Relevance in Non-International Armed Conflicts

As one commentator has pointed out, one of ‘the most important shortcomings of the grave breaches regime is that its rules have been designed for international armed conflicts only’.135 This does not mean that violations of the rules of IHL applicable to non-international armed conflict (NIAC), including violations of Common Article 3, do not entail individual criminal responsibility under international law. On the con-trary, after the landmark ICTY decision in Tadić, this is now widely accepted. From a substantive point of view, therefore, most of the acts that constitute grave breaches of the Geneva Conventions would likewise be punishable in the context of NIAC as serious violations of Common Article 3, or as other war crimes. (See Chapter 36 of this volume, MN 22.)

The inapplicability of the grave breaches provisions means instead that the obligations of contracting states examined so far are confined to international armed conflicts (IACs). In the matter of criminal repression, contracting states would thus retain more freedom of action with regard to violations of rules of IHL committed in NIACs.

130 See S. Glaser, ‘La protection internationale des prisonniers de guerre et la responsabilité pour les crimes de guerre’, 8 Revue de droit pénal et de criminologie (1950–51) 897, who considers that the status of POW can-not be invoked either during the criminal proceedings or after conviction (at 903).

131 While the Soviet Union and other communist countries referred, in their reservation, to POWs who had been convicted (the Soviet Union gave assurances that the reservation would therefore not alter the effect of Art 85 GC III until ‘the sentence has become legally enforceable’; see Pictet Commentary GC III, at 424), other countries formulated their reservation differently. For instance, the reservation formulated by the Democratic Republic of Vietnam reads: ‘The Democratic Republic of Vietnam declares that prisoners of war tried and convicted of war crimes or crimes against humanity, in accordance with the principles laid down by the Nuremberg Judicial Tribunal, shall not benefit from the provisions of the present Convention as is specified in Article 85’ (emphasis added). The same reservation was entered by the Provisional Revolutionary Government of the Republic of South Viet-Nam. As has been noted, if the word ‘and’ is read disjunctively then the reserving countries could ‘circumvent’ the obligations of GC III ‘simply by indicting a prisoner of war for war crimes’: see ‘The Geneva Convention and the Treatment of Prisoners of War in Vietnam’, 80 Harvard Law Review (1967) 851, at 862.

132 See Pictet Commentary GC III, at 423–7.133 This was the case in the context of the Vietnam War; for reference, ‘The Geneva Convention and the

Treatment of Prisoners of War in Vietnam’, above n 131.134 The issue would then arise of the consequences of the invalidity of the reservation, if this is considered

contrary to the object and purpose of GC III.135 D. Fleck, ‘Shortcomings of the Grave Breaches Regime’, 7 JICJ (2009) 833, at 837.

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The contention that the system of grave breaches of the Geneva Conventions is appli-cable only to breaches of the Conventions committed in IAC is mainly based on a textual interpretation of the relevant provisions.136 In defining grave breaches, each Convention does in fact expressly require that such breaches involve any of the listed acts ‘if commit-ted against persons or property protected by the Conventions’. This wording certainly covers ‘protected persons and objects’, as defined by each Convention to identify those for whose sake the rules of the Geneva Conventions were adopted and who are therefore eligible, under the Conventions themselves, for a particular legal status.137 However, it does not seem possible to argue that the notion of ‘persons or property protected by the Conventions’ also covers the beneficiaries of the protection afforded by Common Article 3, at least not if this provision is applied in the context of a NIAC—as its express wording requires. The traditional wisdom, at the time of the adoption of the Conventions and for a long time thereafter, was that war crimes were only a matter for IACs.138 In addition, should the expression ‘protected persons’ also be used to refer to the categories of persons mentioned in Common Article 3 in the context of NIACs, the result would necessarily be that all other provisions of the Conventions that refer to ‘protected persons’ would likewise need to be deemed applicable to the persons protected by Common Article 3 in NIACs. Certainly, it would not be logical to contend that, in relation to the provisions on grave breaches alone, the expression ‘protected persons’ acquires a wider meaning that is precluded for all the other provisions of the Conventions using the same expression. The Geneva Conventions themselves clarify what is meant by ‘protected persons or property’ within each Convention.139 The traditional reading of these provisions is that they refer only to persons and property in the context of IACs, and not also to persons protected by Common Article 3 in the context of NIACs. Lastly, while AP I has expanded the catego-ries of persons and property to be protected by the Geneva Conventions, as well as the types of conduct that can constitute a grave breach, there is no reference to ‘grave breaches’ in AP II, applicable to certain categories of NIACs.140 This is an additional element that points at the ‘exclusive’ nature of the grave breaches regime for war crimes committed against protected persons and objects in IACs, and as defined by the Geneva Conventions and AP I.

It would be also unconvincing to argue that since grave breaches are war crimes under CIL,141 the provisions on grave breaches of the Geneva Conventions are applicable both to IAC and NIAC. The existence of rules of CIL that criminalize acts corresponding to grave breaches does not imply that the requirement that these acts are committed against

136 See, in this respect, the stand taken by the ICTY, The Prosecutor v Duško Tadić, Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para 83. See, however, the Separate Opinion of Judge Abi-Saab, asserting the applicability of the grave breaches provisions to NIACs under CIL. On this point, also for additional reference to ICTY case law, see L. Moir, ‘Grave Breaches and Internal Armed Conflicts’, 7 JICJ (2009) 763, at 769–75.

137 Art 13 GC I; Art 13 GC II; Art 4 GC III; Art 4 GC IV. The notion of ‘protected persons and property’ has been expanded by Arts 8, 44, and 45 AP I.

138 See D. Plattner ‘The Penal Repression of Violations of International Humanitarian Law Applicable in Non International Armed Conflicts’, 30 IRRC 278 (1990) 409. This was also the position of the ICRC at least until 1993: Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, UN Doc S/1994/674, 27 May 1992, para 52.

139 Above n 137.140 See in this respect Y. Sandoz, ‘The History of Grave Breaches Regime’, 7 IJICJ (2009) 657, at 676–7.141 On criminalization of acts amounting to grave breaches under CIL, see J.-M. Henckaerts, ‘The Grave

Breaches Regime as Customary International Law’, 7 JICJ (2009) 683, at 685–92.

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protected persons or property is no longer in force. Similarly, the criminalization of grave breaches under CIL does not perforce imply that the obligations that states have crafted in the Geneva Conventions for the repression and punishment of grave breaches in the context of an IAC give rise to corresponding rules under CIL.142

D. Legal Consequences of a Violation

Every violation of a rule of international law entails the international responsibility of the state that has committed it. Violations of obligations incumbent upon parties to the Geneva Conventions under the grave breaches system are no exception. The ordinary consequences of an internationally wrongful act, as codified by the ILC in the Articles on State Responsibility, will therefore follow violations of such obligations.

The obligations forming the system of repression of grave breaches, however, belong to a specific category of international rules. Constituting a means of enforcement in the form of positive actions that contracting states must take ‘to ensure respect for’ the Conventions ‘in all circumstances’, it is unlikely that their infringement will injure another state, in particular neutral states. Although this does not preclude the latter from invoking the responsibility of another state party for a violation of its obligations under the grave breaches regime, the lack of a material interest in claiming such a responsibility will make such a possibility an infrequent occurrence in practice.

In abstract terms, things are different for belligerent parties. Lack of compliance with the system of criminal repression of grave breaches—at least by the enemy—may well directly affect their interests and push them to claim a violation of the pertinent rules of the Geneva Conventions. However, these are also infrequent occurrences in international practice. Even in the context of the Armed Activity case before the ICJ, the Democratic Republic of Congo—while claiming the failure by Uganda to comply, inter alia, with its obligations under Article 146 GC IV—did not request the Court to pronounce upon the violations by Uganda of its obligation to prosecute persons responsible for a grave breach.143

Clearly, the above remarks do not apply to violations of the obligation to ensure to those accused of breaches of the Conventions the minimum guarantees set forth in Article 105 GC III and the Articles that follow. When available and applicable, belligerents will also be bound by the various guarantees that human rights treaties provide in order to ensure respect for the right to fair trial for persons charged with a breach of the Geneva Conventions.

E. Critical Assessment

The compromise reached at the Diplomatic Conference with regard to grave breaches did not ensure great success for the system of their criminal repression. In the course of more than 60 years since their adoption, the Geneva Conventions have reached universality of ratification, but only a small percentage of contracting states have implemented the

142 For a discussion of the matter, ibid, at 693–700.143 For the necessary reference, see T. Ingadottir, ‘The ICJ Armed Activity Case—Reflections on States’

Obligation to Investigate and Prosecute Individuals for Serious Human Rights Violations and Grave Breaches of the Geneva Conventions’, 78 NJIL (2010) 581.

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obligation to criminalize grave breaches and to adopt the principle of universal criminal jurisdiction for their repression.144 This explains, at least in part, why the system has lain dormant for decades and remains so today.145

At the same time, states not involved in armed conflicts where grave breaches are com-mitted do not seem to take seriously into account their obligations to search for, prosecute, or surrender to another contracting party those suspected of being responsible for these breaches. For instance, some states prefer to expel persons suspected of being criminally responsible for a grave breach (and more generally a war crime) rather than bring them before their own courts.146 As for the belligerents themselves, when they opt for prosecu-tion, which is not always the case, they may be inclined to bring charges of ordinary criminal offences, even when there is the potential for prosecution of a grave breach. This might not be a concern in and of itself, at least not if one takes the view that the Geneva Conventions do not impose the duty to prosecute on the basis of a formal ‘grave breach’ charge. Concern arises, however, if a national prosecution under an ‘ordinary’ criminal charge does not entail an ‘effective penal sanction’ as expressly required by the relevant provisions of the Conventions. Concerns also arise when a criminal charge is formally one of a grave breach, but the penalty imposed on those found guilty does not reflect the seriousness of the crime.147

When the UN Security Council established the first ‘modern’ international crimi-nal tribunal, the ICTY, one might have hoped that it would inject fresh blood into the system of repression of grave breaches, since the ICTY’s material jurisdiction expressly covered this class of offence.148 Unfortunately, the contribution of the ICTY to the grave breaches regime has focused mainly on its general elements. For instance, the ICTY has pronounced on whether the support of a third state to an armed group turns a prima facie NIAC into an IAC, thus clarifying an aspect of the contextual element of grave breaches. In addition, for ‘inter-ethnic’ IAC it has relied on ‘allegiance’ (rather than nationality) for the identification of protected persons, and therefore expanded the category of potential victims of a grave breach.

But when it comes to the particular legal ingredients of offences amounting to grave breaches, the ICTY case law has been scant. This is certainly due to the fact that the Prosecutor has brought comparatively fewer charges of grave breaches than other charges. If the data collected by the present author are correct, of the 161 indictees, the Prosecutor charged only 31 with a grave breach (namely, less than 20 per cent of the total num-ber). Of those, only 23 were tried (less than 15 per cent); while as regards the remaining indictees, they either died while being held in custody or before being transferred to the Tribunal, or the indictment was withdrawn. These figures do not necessarily mean that the Prosecutor had no evidence that acts amounting to grave breaches had actually been

144 See van Elst, above n 27.145 The first criminal prosecution by a national jurisdiction on a charge of a grave breach under univer-

sal jurisdiction dates back to 1994, over 40 years after the adoption of the GCs: see The Prosecutor v Refik Sarić, Eastern Division of the Danish High Court, Decision, 25 November 1994, English version available at <http://tinyurl.com/p9qokr3>.

146 See, e.g., the statement by the Director General of the Department of Citizenship and Immigration, B. Sheppit, before a Parliamentary Committee of Canada, who declared: ‘[W] e don’t really care how we go about it […] [I]f, for example, we can remove somebody because they don’t have a visa, we don’t really care that we don’t class them as a war criminal.’ (Quote in van Elst, above n 27, at 843 and accompanying reference in fn 103).

147 See Ferdinandusse, above n 26. 148 See Art 2 ICTY Statute.

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committed during the armed conflict. However, a successful charge of a grave breach requires—among other things—proof of the existence of an IAC and the protected status of the victim. By contrast, these two criteria are not necessary for charges of war crimes under another provision of the ICTY Statute, namely Article 3, concerning ‘violations of the laws and customs of war’ other than grave breaches. Since in the Tadić decision on jurisdiction the Appeals Chamber asserted that these violations also comprise serious vio-lations of Common Article 3 of the Geneva Conventions and of customary IHL applica-ble both to NIACs and IACs,149 the Prosecutor has shown a preference for relying on this provision for charges of war crimes rather than on charges of grave breaches.150 Arguably, since charges under Article 3 of the ICTY Statute apply to any type of armed conflict, and regardless of the ‘protected status’ of the victim under the relevant Geneva Conventions, reliance on this provision was the easiest way for the Prosecutor to cover the brutality of acts committed by belligerents during the armed conflict.

The classification of the armed conflict as international in some areas of the former Yugoslavia by the ICTY, on the basis of the so-called ‘overall control’ test by a third state over the armed groups fighting a prima facie internal armed conflict, therefore made little difference when it came to drawing up the charges. Ironically, although the ICTY ‘expanded’ the notion of IAC, the category of war crimes that can be committed only in IACs was under-used by the Prosecutor, who preferred the more all-embracing category of war crimes.

It remains to be seen whether war crimes cases at the ICC will reverse the pattern fol-lowed by the ICTY and bring new life, at least at the international level, to the system of repression of grave breaches.

Paola Gaeta

149 ICTY, Tadić, above n 136, paras 128–36.150 On the ‘disincentives’ for the Prosecutor to rely upon Art 2 ICTY Statute (concerning grave breaches)

rather than on Art 3 (concerning the broader category of violations of the laws and customs of war), see J. Stewart, ‘The Future of the Grave Breaches Regime: Segregate, Assimilate or Abandon?’, 7 JICJ (2009) 855, at 860–3.

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