The History of the Grave Breaches Regime

The History of the Grave Breaches Regime Yves Sandoz*

Abstract Criminal punishment for violations of the laws of war date to the earliest formal codifications. In particular, the Lieber Code of 1863 contained a large number of references to criminal punishment, which ultimately influenced a large number of the subsequent treaties. This said, initial codifications of the laws and customs of war after Lieber but before the Geneva Conventions of 1949 made only scant reference to individual criminal liability. Nonetheless, the grave breaches regime emerged in 1949 as an important response to the sufferings of Second World War. The idea behind the regime was that certain offences were sufficiently grave to warrant explicit codifications as war crimes. The development of grave breaches was then continued in 1977, first by the inclusion of further offences within Additional Protocol I, then by inclusion of the grave breaches regime within the Statute of the International Criminal Court. As a general rule, this development has nonetheless involved developing rules to deal with the horrors of the past. Potentially, history will serve as a helpful guide for countering the numerous challenges that face grave breaches in the future.

1. Introduction Modern international humanitarian law starts in the middle of the nineteenth century,1 when states decided to adopt conventions with the ambition not only of binding the participating states, but also of identifying and adopting principles and rules of universal value.2 They first tried to attract as many states as possible to the process of negotiation, then left the treaties they had adopted open to signature or adhesion by any state, whether or not it had *

Member of the International Committee of the Red Cross (ICRC), Professor of International Humanitarian Law at the Geneva Academy of International Humanitarian Law and Human Rights and the University of Fribourg. 1 The 1856 Paris Declaration ‘appears to have been the first open-ended multilateral treaty’: A. Roberts and R. Guelff, Documents on the Laws of War (3rd edn., Oxford: Oxford University Press, 2000), at 5. 2 Even if we keep in mind that we were still in the heart of the colonial period and that a distinction was made between what were called the ‘civilized States’ and the rest of the world.

............................................................................ Journal of International Criminal Justice 7 (2009), 657^682 doi:10.1093/jicj/mqp060 ß Oxford University Press, 2009, All rights reserved. For permissions, please email: [email protected]

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participated in the negotiation. The first of these treaties were very brief. The 1856 Paris Declaration,3 the 1864 Geneva Convention4 and the 1868 San-Petersburg Declaration5 contained only a small number of articles, none of which addressed penal sanctions. In fact, the question of individual criminal liability was not discussed during the negotiation of those treaties. The state parties accepted obligations towards each other, but it was up to them, and to them alone, to see that they discharged those obligations. At the time, governments would not tolerate external interference in such matters. These initial three treaties each dealt with a specific topic within warfare. The first systematic codification of the laws of war appeared in a domestic code rather than international treaty. The ‘Instructions for the Government of Armies of the United States in the Field’, prepared by Professor Francis Lieber6 and promulgated by President Abraham Lincoln during the American Civil War had an appreciable influence on the development of war crimes. This article will commence by examining the Lieber Code as one of the initial predecessors to the grave breaches regime. Second, the article will examine the evolution of the notion of penal sanctions and of grave breaches since the promulgation of the Lieber Code until the adoption of the 1949 Geneva Conventions. The grave breaches regime in the Geneva Conventions, and its evolution afterwards, will form the third part of this article, before I conclude with some brief final remarks.

2. The Lieber Code A. Context and Preparatory Phase Francis Lieber is often thought of as an old professor, but he also lived an eventful and tumultuous life that had many dimensions.7 Military problems fascinated the old scholar, and during the first confused months after the outbreak of the American Civil War he turned his intellect to clarifying one hazy legal question after another. The most significant of these concerned the treatment of the foe on the battlefield. The enemy in this case were Confederate rebels, and according to the reasoning of many, they should 3 Paris Declaration Respecting Maritime Law (1856). This text (along with those following) are found, inter alia, in D. Schindler and J. Toman, The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and other Documents (4th rev. edn., Leiden: Martinus Nijhoff, 2004), at 1055^1058. 4 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (1864), in Schindler and Toman, supra note 3, at 365^368. 5 Saint-Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (1868), in Schindler and Toman, supra note 3, at 91^93. 6 The ‘Instructions for the Government of Armies of the United States in the Field’ were promulgated as General Orders Number 100 by President Lincoln on 24 April 1863: Schindler and Toman, supra note 3, at 3^20. 7 F.B. Freidel, Francis Lieber: Nineteenth-Century Liberal (Baton Rouge: Louisiana State University Press, 1947), at vii.

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simply have been prosecuted for treason. This would, of course, have resulted in the: unspeakable shambles of no-quarter war :::. The skilful Lieber delved into treatises on international law and came up with a formula. For humanitarian reasons, even in times of rebellion, the customary rules of warfare and treatment of prisoners should continue. Precedents proved this did not involve either the recognition of the rebels nor a foregoing of the right to try rebels for treason after the rebellion was crushed ::: . Since the dictum was sound international law and backed by a general humanitarian sentiment, it became the official viewpoint.8

This success, and the fact that for the average officer the laws of war ‘were no more than rhetorical expressions to justify one’s own conduct and damn the enemy’s’, encouraged Lieber in his desire to write ‘a little book on the Laws and Usages of War, affecting the Combatants, some 200 pages’.9 Fortunately for this enterprise, General Henry Wager Halleck had been appointed by President Lincoln as Commander in Chief of the Western Armies. Halleck was himself the author of a treatise on international law of which more than two thirds was devoted to the laws of war.10 Halleck and Lieber were also friends, which certainly encouraged Lieber in his efforts. Lieber therefore set about drafting a comprehensive ‘set of rules and definitions providing for the most urgent cases, occurring under the Laws and Usages of War, and on which our Articles of War are silent’. In terms of form, he was certain that ‘the President ought to issue such rules’. Eventually, Lieber received the President’s assent to prepare these rules in the framework of a military committee. He then ‘quickly prepared a draft code during the first few weeks of 1863’, drawing on various writings, including Heffter,11 Grotius, Bijnkershoek, Pufendorf and of course Halleck as precedents.12 He submitted the draft and received suggestions from General Hallek and a handful of others. After amendments, the ‘Instructions for the Government of Armies of the United States in the Field’ were approved by the President who ordered that it ‘be published for the information of all concerned’. It was not binding, but as General Halleck pointed out, it was ‘a statement of general principles which apply only in the absence of a special agreement and which could be tempered at the discretion of the President, the War Department or commanders in the field :::. In sum, General Order 100 was a logical outgrowth of the conflict, a guide for its conduct, and an interpretation of its meaning’.13 Lieber’s code dealt with numerous problems that are still at the heart of present debates: guerrilla warfare, the status of rebels, the applicability of the laws of war to internal armed conflicts and, particularly important for the present purposes, the importance of penal sanctions. We also see that Lieber’s sources 8 9 10 11 12 13

Ibid., at 320. Ibid., at 323^324 and fn. 16 Ibid., at 324. A.W. Heffter, Das Europa«ische Vo«lkerrecht der Gegenwart (3rd edn., Berlin: E.H. Schroeder, 1855). Freidel, supra note 7, and letter from Lieber to Halleck, 3 October 1863, also quoted by Freidel. Ibid., at 335.

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were still, apart from a few contemporary scholars, the well-known authors of the seventeenth and eighteenth centuries mentioned above. This demonstrates the influence of their writings, considered for the most part as an indication of the ‘laws and usages of war’ already mentioned in the 1806 Articles of War (which conclusively revised the military Code adopted first by the Continental Congress in 1775 and later amended in 1775 and 1786.) Those sources probably had a tangible influence on the conduct of armies, composition of courts-martial, and generally, the administration of military justice before the publication of the Lieber Code, leaving the influence of Lieber’s seminal code difficult to assess. Nonetheless, there is little doubt that the content of the Code inspired subsequent legal developments, as the following sections show.

B. Content Although a full analysis of the Lieber Code is beyond the scope of this article, a review of some specific characteristics is relevant. With respect to criminal jurisdiction, for example, the Lieber Code set out many details on the subject of martial law, which was ‘simply military authority exercised in accordance with the laws and usages of war’. According to the terms of the Code, martial law required those in charge of administering it ‘to be strictly guided by the principles of justice, honor, and humanity ç virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed’ (Article 4). In occupied territory the foreign armed force could substitute their own penal and civil laws, but ‘the commander of forces may proclaim that the administration of all civil and penal law shall continue either wholly or in part’ (Article 3). In fact, the ‘usual course’ of local civil and penal law could only be interrupted by order of the occupying military power (Article 6). The key principle of the Lieber Code is military necessity, which it described as ‘measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war’ (Article 14). The provisions protecting the civilian population in general were less well developed than they are today, with the idea that ‘the citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war’ (Article 21). Starvation is accepted as a legitimate mean of warfare (Article 17). Killing was accepted not only of all armed enemies, but of all other persons whose ‘destruction is incidentally unavoidable’ (Article 15). Prisoners of war ‘are liable for the infliction of retaliatory measures’ (Article 59). Hostages could even be taken (but only for a limited purpose, ‘as a pledge for the fulfilment of an agreement concluded by governments during the war’) (Article 54). Escape was not a war crime but ‘conspiracy for a general escape ::: may be vigorously punished’ (Article 77). Though there was no right to declare that there would be no quarter, it was nevertheless permitted for a commander to deny quarter ‘when

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his own salvation makes it impossible to cumber himself with prisoners’ (Article 60). The general idea defended by Lieber was that ‘the most vigorously wars are pursued, the better it is for humanity’. In other words, ‘sharp wars are brief’ (Article 29). Lieber nevertheless set some absolute limits, some acts for which even military necessity could not serve as an excuse. There must be no ‘cruelty (suffering for the sake of suffering or for revenge)’, no ‘maiming or wounding except in fight’, no ‘torture to extort confession’, no ‘use of poison in any way’, no ‘wanton devastation’, and no ‘acts of perfidy’ (Article 16). On the question of torture, Lieber insisted further that ‘the modern law of war permits no longer the use of any violence against prisoners in order to extort the desired information or to punish them for having given false information’ (Article 80). Murder was prohibited, in the sense that ‘the laws of war do not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, are outlaw :::. It abhors such outrage ::: made by whatever authority’ (Article 148). In spite of the fact that he viewed the suffering of the entire enemy population as justified, Lieber recognized that ‘the principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property and honor as much as the exigencies of war admit’ (Article 22). As for the direct contact with the population, there was a recognition of the ‘sacredness of domestic relations, and that all wanton violence committed against persons in the invaded country, all destructions of property not commanded by the authorized officers, all robbery, all pillage or sacking, even after taking a place by main force, all rape wounding, maiming or killing of such inhabitants are strictly forbidden’ (Article 44). Finally, Lieber also prohibited all ‘crimes punishable by all penal codes’ (Article 47). The Lieber Code frequently punished violations of these rules with penal sanctions ç the Code contains numerous references to the death penalty. The discipline of soldiers was perceived as being key to military success. But it was not only acts clearly contrary to the interest of an army (desertion, giving information to the enemy, refusal to obey legitimate superiors orders, etc.) which were severely criminally punished. Acts that might be perceived as committed in the short-term interests of an army (such as torturing prisoners to obtain information) were also criminal. Maintaining moral standards was deemed to be in the long-term interests of the army. In turn, this was perceived as a way to create a perception of integrity and legitimacy, which promoted chances that the defeated nation and population would accept conquest. As the Code emphasized, ‘[m]en who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God’ (Article 15 in fine). The Lieber Code stated that behind severe penalties lay ‘the principles of justice, honor and humanity’ (Article 4). A soldier must behave in the manner expected from a normal citizen indeed even better than a normal citizen. He was judged as a normal citizen for penal law crimes, such as rape, or injuring, or killing civilians. He could be sentenced to ‘the penalty of death or such

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other severe punishment as may seem adequate for the gravity of the offense’ (Article 44) and criminal acts punishable by penal codes are ‘not only punishable as at home, but in all cases in which death is not inflicted, the severe punishment shall be preferred’ (Article 47). But equally importantly, the very effectiveness of the army was at stake. Penalties were needed to maintain discipline in armies and their execution in some cases appears even more important than the demands of justice and strict rules of procedure. The military courts, for instance, were competent to give sentences of death in principle with the approval of the chief executive and of the chief commander ‘provided the urgency of the case does not require a speedy execution’ (Article 12). And a soldier who refused to obey a superior’s order to refrain from acts of wanton violence like those mentioned above ‘may be lawfully killed on the spot by such superior’ (Article 44). The treatment of spies is also interesting in this regard. Spies were not considered as criminal to the extent that they were not subject to criminal punishment for their espionage if they safely rejoined their army afterwards before being re-captured and recognized (Article 104). However, if captured in the course of spying, they had to be given a spectacular penalty to dissuade everyone from engaging in such activity. This was the only rule in the Code that prescribed ‘death by hanging by the neck’ (Article 88). In short, the Lieber Code highlights the importance of punishment in armies. Violations of the laws of war and unlawful acts committed against the enemy, in particular civilians, are severely punished on the basis of fundamental principles of human dignity, honour and chivalry. At the same time, however, a significant portion of the criminal offences enumerated also sought to maintain discipline and to motivate the troops.

3. Further Evolution of International Penal Sanctions and of Grave Breaches A. From the Lieber Code to the First World War The Lieber Code presupposed that the values of justice, honour, and humanity were inherent to all ‘civilized nations’. In this context, the risk that a commander might order, tolerate or cover up wrongful acts committed by his soldiers did not appear important. But the reality quickly proved quite different. The laws and customs of war were regularly flouted during the 1870^1871 Franco^Prussian War,14 and this failure sparked two kinds of reaction. The law’s detractors viewed it as confirming their conviction that it was ridiculous to try mitigating the suffering caused by war, which was cruel by nature and had to be without any restriction in order to be as brief as possible. On the 14 For a detailed description of the problem encountered in the application of the 1864 Geneva Convention during this war, see P. Boissier, From Solferino to Tsushima: History of the International Committee of the Red Cross (Geneva: Henry Dunant Institute, 1985).

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contrary, the supporters of international humanitarian law drew the conclusion that it was important to strengthen the provisions of that law in order to increase its effectiveness. In response, Gustave Moynier, one of the founders of the International Committee of the Red Cross (ICRC) and its longest-serving president (1864^1910), proposed international penal sanctions. In 1872 he even made a formal proposal ç alas, to no avail ç for the creation of an international criminal court.15 This, nonetheless, did not prevent a range of further important historical developments during the period.

1. The Brussels Conference of 1874 In 1874, Czar Alexander II of Russia convened an international conference held in Brussels in order to draft a comprehensive set of rules applicable in armed conflict on the model of the Lieber Code. The 15 European states invited to the event adopted an ‘International Declaration concerning the Laws and Customs of War’,16 but this declaration never entered into force since not all participating governments were prepared to accept it as a binding convention.17 The Declaration nevertheless remains a good instrument of reference if one is seeking some idea of the type of rules discussed at that time. In many respects, they were quite similar to those included in the Lieber Code. The idea of an international criminal court was not proposed, but a delegate to the conference named General Arnaudeau suggested that states be asked to coordinate their internal legislation so as to ensure equal punishment for those who violated the laws of war. This suggestion reflected a concern not only for stronger measures to ensure better implementation of adopted laws, but also for justice that transcended national borders. The proposal that national legislations be standardized may be considered a first step in the direction of a common definition of grave breaches. Unhappily, this was not mentioned in the declaration and apparently led to no other concrete action.

2. The Oxford Manuals of 1880 and 1913 A few years after states failed to adopt the Brussels Declaration as a treaty, the members of the Institute of International Law judged it important to give new impetus to the idea of a comprehensive code of the laws of war on land again modelled on the Lieber Code. The question of penal sanctions was not forgotten, but there were no new proposals. The Oxford Manual on the Laws of

15 See J.S. Pictet, Commmentary to the First 1949 Geneva Conventions (Geneva: ICRC, 1952), especially Chapter IX. 16 Project of an International Declaration Concerning the Laws and Customs of War, in Schindler and Toman, supra note 3, at 21^28. 17 Ibid., at 21.

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War on Land18 finally adopted by the Institute in 1880 proposed that those responsible for violating the laws of war be liable for punishment as provided for in criminal law. But no detail was provided elaborating on the nature of the offences or jurisdictions capable of trying these offences.19 In other words, the Oxford Manual acknowledged that internal penal sanctions were necessary but without reference either to standardization or to an international jurisdiction. And in 1913, when the second Manual was drawn up on the Laws of Naval War Governing Relations between Belligerents,20 no changes were made regarding these issues.

3. The Hague Conferences of 1899 and 1907 The numerous texts on the laws of war drawn up at the Hague Conferences of 1899 and 1907 make no further mention of criminal sanctions.21 However, Article 3 of the 1907 Convention regarding the Laws and Customs of War on Land stipulates that ‘a belligerent Party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.’22 This marks a return to the traditional view of relations between states as being confined to reparation for damages, and leaves to states the responsibility to stop and repress violations committed by members of their respective armed forces.

4. The 1906 Geneva Convention Although the texts adopted in The Hague in 1899 and 1907 did not provide for penal sanctions, one year before the second conference two articles on repressing violations were introduced in the new Geneva Convention (6 July 1906),23 which expanded on and replaced the 1864 Geneva Convention. 18 Oxford Session of 1880, The Laws of War on Land (Manual published by the Institute of International Law). 19 Art. 84 of the Manual. 20 Oxford Session of 1913, The Laws of Naval War Governing the Relations between Belligerents (Manual published by the Institute of International Law). 21 One school of thought holds, however, that the absence of penal provisions in the Hague Conventions is not the result of a political choice. For example, Louis Renault states with regard to penal sanctions: ‘So they weren’t thought of in 1899. In 1907 they could have been’, as they had been mentioned in the 1906 Geneva Convention, but ‘the matter of penal law, quite frankly, never came to mind’. See L. Renault, ‘Dans quelle mesure le droit pe¤nal peut-il s’appliquer, a' des faits de guerre contraires aux droits de gens’, Revue pe¤ nitentiaire et de droit pe¤ nal (1915), 416. However, this ‘lack of attention’ points to the fact that repression of violations for the sake of universal justice was not a concern at the time. 22 Convention Respecting the Laws and Customs of War on Land (Second Hague, IV), 18 October 1907, in Schindler and Toman, supra note 3, at 62. 23 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 6 July 1906, in Schindler and Toman, supra note 3, at 385^395.

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Those articles were, in fact, ‘injunctions’ to governments lacking the necessary legislation to take steps to prevent misuse of the Red Cross emblem in time of peace and war, and to repress in wartime those violations of the Convention considered to be most grave, i.e. individual acts of robbery, ill-treatment of the wounded and sick in armies in the field, and wrongful use of the Red Cross flag or armlet. Thus, the ‘international community’ had started to concern itself with the internal affairs of states in line with the proposal of General Arnaudeau at the 1873 Brussels Conference, albeit timidly and in the form of advice. It is also worth noting that this injunction was intended for the most grave violations of the Convention, thus paving the way for the distinction between breaches and grave breaches that would follow some years later.

B. The First World War and the 1919 Treaty of Versailles The decisive steps towards international sanctions and eventual international jurisdiction were taken during and after the First World War. As with many aspects of international law, the development of new norms often follows major humanitarian upheaval. What was particularly challenging about the First World War was that the barbarous behaviour that constituted war crimes turned out to occur in ‘civilized’ states as well. The decline of what was considered to be shared values of those ‘civilized’ states, the flagrant violation of the law not only by soldiers but also by the most senior authorities, and the lack of internal repression in response to those violations, were all good reason to reconsider the need to reinforce those values at the international level, in particular by means of penal sanctions. Indeed, large-scale atrocities were committed during the First World War, though this fact is nowadays somewhat obscured by the scale of barbarity reached during the Second World War. Rape, summary executions, indiscriminate bombing, sinking of civilian boats ç the First World War grew into a total war, leaving ‘almost no sanctuary of person safe from violent assault’.24 New technologies emerged, such as the U-boat, the Zeppelin and poison gas, and they were used without humanitarian concern, sometimes as reprisals. In addition, grave violations were not only reported, but also exaggerated to spur the population’s will to fight. On both sides, the war was presented as being waged between ‘civilization and barbarism’. In France the German Kaiser was referred to as ‘Guillaume le ravageur’ and in Great Britain as the ‘Butcher of Berlin’. All governments published reports of atrocities.25 Unsurprisingly, determination to punish war criminals gathered strength in the very first months of the war. As early as 2 December 1914, France set up a commission to investigate crimes committed by the enemy in violation of the 24 See J.F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (West Port and London: Greenwood Press, 1982), 15^16. 25 Ibid., 13.

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‘law of nations’. Great Britain issued a similar proclamation in September 1914, when it declared that: We may be far still from the final abolition of war, but we should not be far from the end of atrocities in war if those responsible for them in whatever rank had the risk before their eyes that they might have to suffer just penalties as common felons.26

Some even suggested shooting prisoners of war without trial. While this idea was not implemented, there was nevertheless a great deal of similar discussions, in particular about punishing the Zeppelin crews.27 There was a feeling that repression was needed, not only of massive violations of the law of war, but also of aggression itself. But there was also reluctance to go too far and too quickly in the direction of international repression, for fear that each side would use prosecutions as a basis for reprisals. The trial of three German soldiers for pillage in October 1914, for instance, was followed by the incarceration in Spandau of six French officers including the son of the French foreign minister. A spiral of retaliation followed. And when in 1917 French parliamentarians urged the prosecution of Germans for war crimes in the occupied regions, Rene¤ Viviani, the justice minister, dismissed the idea saying ‘one must first conquer before speaking of justice’. The escalation of violence against civilians during First World War, especially the deliberate sinking of the famous ocean liner Lusitania that killed 1198 civilians, increased the determination of the general population to find a way to punish these sorts of atrocities. In particular, the United States was determined to pursue justice in response to atrocities. Nevertheless, even repression after the war encountered some opposition. Professor Louis Renault, who had been a French delegate to the Hague Conferences of 1899 and 1907, ‘warned that attempt to require surrender of offenders through a peace treaty might fail’,28 doubting ‘that any government even if conquered, could consent to such a clause’. Others protested that ‘war crimes trials hav[e] never been in the past part of a major peace settlement’.29 Even a senior figure in the peace movement argued that ‘trials having the appearance of victor’s justice should be avoided’.30 There were also other reasons for foregoing the punishment of war crimes. The priority for US President Woodrow Wilson, as founder of the League of Nations, ‘was the future organization of permanent peace, not the punishment of individuals for past transgressions’.31 Wilson also had reservations about judging the crime of aggression. For him, aggression: was certainly a crime, but for which no sanction has been provided, because there is no legal precedent for it. We are founding today the regime of the League of Nations from 26 Reverend Arnold Page in The Times, 16 September 1914 (quoted by Willis, supra note 24), at 9. 27 Willis, supra note 24, at 16. 28 See ‘De l’application du droit pe¤nal aux faits de la guerre’, 40 Journal du droit international (1915) 313^315 (quoted in Willis, supra note 24, at14). 29 Willis, supra note 24, at 4. 30 Ibid., at 14. 31 Ibid., at 37.

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which will emerge the new rules and the new formulas of international law. But today, we are obliged to create the principle and the punishment.32

The question of prosecuting the Kaiser himself was also a matter of dispute. Napoleon was cited as a precedent but this was hardly convincing: ‘The victorious European powers issued a Declaration at Vienna declaring Napoleon an international outlaw ::: and he was displaced on the remote island of St. Helena ::: but Napoleon was never tried’.33 Finally, the Allies established a ‘Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties’ (hereafter the Commission) at the end of the war, which presented its final report to the preliminary peace conference on 29 March 1919.34 The Commission was assigned various tasks, not all of which are of interest to us here, but a significant portion of the Commission’s work focused on the prosecution of war crimes. The Commission’s precise mandate in this regard, was to establish ‘the facts as to breaches of the laws and customs of war committed by the forces of the German Empire and their Allies on land, on sea, and in the air, in the course of the recent war’.35 It appears from the report that identifying the relevant offences was not the object of abstract theoretical discussion ç the main objective was to list all the atrocities committed by the Germans and then to create a coherent catalogue of violations to the ‘laws and customs of war’. For the Commission, the priority was to establish facts, considering ‘a large number of documents’ in the process. The Commission’s report stated that the offences ‘constitute the most striking list of crimes that has ever been drawn up to the eternal shame of those who committed them’.36 For the Commission, whether a crime was international or not was not a question of great concern. The facts were so ‘numerous and so vouched for that they admit no doubt and cry for justice’.37 The Commission thought that there were good grounds for setting up a special body ‘to collect and classify all information for the purpose of preparing a complete list of charges’. The information already available enabled it to establish the following list of violations of the laws and customs of war that warranted criminal punishment:38 (1) (2) (3) (4)

Murders and massacres; systematic terrorism; Putting hostages to death; Torture of civilians; Deliberate starvation of civilians;

32 Proceedings of the Council of Four meeting, 1 April 1919. 33 M.R. Marrus, The Nuremberg War Crimes Trial, 1945^46: A Documented History (Boston-New-York: Bedford Books, 1997), at 2. 34 This report has been reproduced, together with the minority report drawn up by the US delegation, in 14 American Journal of International Law (AJIL) (1920) 95. 35 Ibid., at 115. 36 Ibid., at 114. 37 Ibid. 38 Ibid., at 114^115.

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(5) (6) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16) (17) (18) (19) (20) (21) (22) (23) (24) (25) (26) (27) (28) (29) (30) (31) (32)

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Rape; Abduction of girls and women for the purpose of enforced prostitution; Deportation of civilians; Internment of civilians under inhuman conditions; Forced labour of civilians in connection with the military operations of the enemy; Usurpation of sovereignty during military occupation; Compulsory enlistment of soldiers among the inhabitants; Attempt to denationalize the inhabitants of occupied territory; Pillage; Confiscation of property; Exaction of illegitimate or of exorbitant contributions and requisitions; Debasement of the currency, and issue of spurious currency; Imposition of collective penalties; Wanton devastation and destruction of property; Deliberate bombardment of undefended places; Wanton destruction of religious, charitable, educational and historic buildings and monuments; Destruction of merchant ship and passenger vessels without warning and without provision for the safety of passengers or crew; Destruction of fishing boats and of relief ships; Deliberate bombardment of hospitals; Attack on and destruction of hospital ships; Breach of other rules relating to the Red Cross; Use of deleterious and asphyxiating gases; Use of explosive or expanding bullets, and other inhuman appliances; Direction to give no quarters; Ill-treatment of wounded and prisoners of war; Employment of prisoners of war on unauthorized works; Misuse of flags of truce; and Poisoning of wells.

Importantly, the Commission drew attention to the fact that this list made no claim to be ‘complete and exhaustive’ and that ‘such additions can from time to time be made as may seem necessary’.39 It is curious to note, however, that there was no real discussion as to the classification of different acts as war crimes, and even the minority report of the US delegation does not view the simple drawing up of a list of war crimes as a problem, arguing that ‘the laws and customs of war are a standard certain, to be found in books of authority and in the practice of nations’.40 But as we have seen, the process of identifying war crimes was driven by facts first, after which legal labels were attributed to practices of specific concern. Consequently, although the list is somewhat interesting historically, it cannot be viewed as the result of a serious and 39 Ibid., at 115. 40 ‘Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Commission of Responsibilites’, AJIL (1920), supra note 34, 127, at 134.

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systematic work of scholarship carried out to show established doctrine or state practice. Moreover, the partial nature of this report undermines its precedential value. The numerous crimes committed by the Allies were simply not taken into consideration. Regarding responsibility for the war itself, the Commission simply concluded that: The war was carried on by the Central Empire together with their allies, Turkey and Bulgaria, by barbarous or illegitimate methods in violation of the established laws and customs of war and the elementary laws of humanity.41

A further point, however, is of particular interest. The Commission was prepared to determine the degree of responsibility assigned to particular members of the enemy forces for war crimes, including members of the general staffs and other political figures, however highly placed. On this point the Commission’s report is clear: In the hierarchy of persons in authority, there is no reason why rank, however exalted, should in any circumstances protect the holder of it from responsibility when that responsibility has been established before a properly constituted tribunal. This extends even to the ease of heads of states. An argument has been raised to the contrary based upon the alleged immunity, and in particular the alleged inviolability of a sovereign of state. But this privilege, where it is recognized, is one of practical expedience in municipal law, and is not fundamental. However, even if, in some countries, a sovereign is exempt from being prosecuted in a national court of his own country, the position from an international point of view is quite different.42

The Commission went on: If the immunity of a sovereign is claimed to extend beyond the limits above stated, it would involve laying down the principle that the greatest outrages against the laws and customs of war and the laws of humanity, if proved against him, could in no circumstances be punished. Such a conclusion would shock the conscience of civilized mankind :::. There is little doubt that the ex-Kaiser and others in high authority were cognizant of and could at least have mitigated the barbarities committed during the course of war.

The Commission thus recognized what is sometimes called ‘passive responsibility’, the failure to prevent violations when one is in position to do so, especially in a hierarchical chain of command. The grounds for prosecuting the Kaiser are all the more compelling if, as some sources argue, he in fact directly participated in certain decisions to act in clear violation of fundamental principles of the law of war.43 The Commission’s conclusions were therefore that ‘all persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to 41 Ibid. 42 Report, supra note 34, at 116. 43 Ibid., at 117.

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criminal prosecution’.44 This is naturally an important statement. However, it contains a word that greatly diminishes its impact ç ‘enemy’ ç since this implies a highly selective focus on only one side of the offending. Considering that assignment of responsibility for war crimes is possible only in the case of enemy heads of state, this statement is ad hoc and arguably too limited in scope to constitute an important precedent for the notion that immunities do not apply to a head of state. Some previous passages in the report take a more general stance, not limited to the particular case examined by the Commission, but these are in effect a type of obiter dictum. It is also clear from this report that the Commission drew a distinction between the jus ad bellum and the jus in bello aspects of war, and experienced certain difficulties with the former. The acts which provoked the world war and accompanied its inception were, according to the Commission, ‘not strictly war crimes’. Moreover, ‘by the reason of the purely optional character of the institutions at the Hague for the maintenance of peace ::: a war of aggression may not be considered as an act directly contrary to positive law’.45 The Commission ultimately concluded on the subject of jus ad bellum that specific treaties recognizing the neutrality of Belgium and Luxemburg had been violated, not simply that there had been aggression, which in itself was not clearly outlawed at the time. On the question of jurisdiction over these war crimes, the Commission proposed trying war criminals before national courts, with the exception of four categories which should be placed before an ad hoc high tribunal. The Commission’s proposition was contested by the US delegation in a minority report.46 The main points of divergence were subjects which are still today the object of controversy. The first issue was the concept of ‘passive responsibility’. The US representatives contested the idea that there was such a thing as ‘indirect responsibility for violations of the laws and customs of war committed after the outbreak of war and during its course’.47 The second issue was the punishment of ‘heads of enemy States, even though heads of states were not hitherto legally responsible for the atrocious acts committed by subordinate authorities’. For the authors of the minority report, ‘the laws and principle of humanity vary with the individual, which, if for no other reason, should exclude them from consideration in a court of justice, especially one charged with the administration of criminal law’.48 It is the country which is responsible for violations, the head of state having political responsibility only vis-a'-vis his country. A third point of disagreement was the concept of ‘crime against humanity’. The US representatives felt that this was no more than a moral notion and not sufficiently established in law to warrant penal sanctions. 44 45 46 47 48

Ibid. (italics in original). Ibid., at 118. US Memorandum, supra note 40, 127. Ibid., at 128. Ibid., at 134.

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A discussion took place on the basis of the two reports. In the end, Wilson himself drafted the three relevant articles of the treaty and he preserved ‘the essence of the American legal position, excluding an international tribunal, the laws of humanity, and negative criminality’.49 The provisions as drafted by Wilson were adopted without substantial amendment the next day and became Articles 228, 229 and 230 of the Versailles Treaty. The provisions were a major historical event.‘For the first time a major international peace treaty had established the principle in international law that war crimes punishment was a proper conclusion of peace, that the termination of war did not bring a general amnesty as a matter of course’.50 But the Treaty’s weakness was that it amounted to victor’s justice and the German delegates to the peace conference did not hesitate to point this out. Moreover, Articles 228, 229 and 230 of the Versailles Treaty were not seriously implemented. The Kaiser was not extradited by the Dutch government ç he died in the Netherlands in 1941 ç and the Germans, who were forced by the threat of a new military intervention to accept those Articles, did not respect them. The Allies did not even urge them to do so, fearing that their insistence might ‘provoke civil war in Germany or a new war between Germany and the Allies’.51 Very few war criminals were therefore tried, which the Times of London described as ‘a scandalous failure of justice’.52 Though this ‘first major effort to bring criminals to justice failed ::: the idea of an international criminal court and code ::: continued to exercise an influence in the quest for means to curb international violence’.53

C. World War II and the Nuremberg Tribunal The large-scale atrocities committed during the Second World War gave massive new impetus to the question of international repression of war crimes. Once again, different ideas were expressed. The first proposal, similar to that which arose after the First World War, was for summary executions. Some were of the opinion that there was no need for judicial procedure in response to such atrocities. In this context, Stalin made allusion to the possible massive killing of officers and technicians;54 Churchill was also sympathetic to the advice of some of his legal advisers who favoured the shooting of top

49 50 51 52

Willis, supra note 24, at 80. Ibid., at 85^86. Ibid., at 113. A demand was made to surrender 854 Germans but the right to try them was immediately conceded to the Germans (see Willis, supra note 24, at 113). Finally, the Germans agreed to try 45 and only 12 were brought to court. Six were convicted, one was immediately released and the others received very light sentences and several managed to escape from their prison (see Marrus, supra note 33, at 12). 53 Willis, supra note 24, at 113. 54 See Marrus, supra note 33, at 23.

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Nazi, one of them declaring that ‘the method by trial, conviction, and judicial sentence is quite inappropriate for notorious ringleaders as Hitler, Himmler, Go«ring, Goebbels and Ribbentrop’.55 In addition, a Memorandum for President Roosevelt mentioned that after the establishment of a list, ‘the persons identified shall be put to death forthwith by firing squads’.56 As was the case during the First World War, there were also statements by politicians on the importance of initiating prosecutions, but these were frequently accompanied by a degree of hesitation due to the fear of ‘German vengeance in the event of a too aggressive policy against war criminals’. Moreover, Great Britain and United States were uneasy ‘about working with the Soviets on this issue’.57 Nevertheless, the preference for judicial procedure prevailed. The Allies elected to create an international penal tribunal which was ultimately achieved by an institution they had created under the auspices of the League of Nations entitled the London International Assembly.58 Having chosen this method of criminal accountability, the states were anxious to avoid the failure of war crimes repression after the First World War. Consequently, the United Nations War Crimes Commission was set up in 1943 especially to avoid the lack of previous agreement and preparation that was thought to have been the fundamental mistake of Allies during the First World War’.59 Once the War Crimes Commission was created, it established three Committees. The third committee was legally focused and therefore placed in charge of dealing with the concept of war crimes. We cannot explore in detail the long and difficult discussions that took place, especially since the Commission’s report of December 1943 runs to 450 pages.60 Key elements of its work nonetheless warrant emphasis. As we saw in previous sections, the list of war crimes established by the ‘Commission of Responsibility’ in 1919 was not the result of an in-depth scientific investigation. Nevertheless, the Commission’s members adopted this list of crimes as the basis for their work. Discussion on war crimes focused on other issues, in particular whether aggression amounted to a war crime; and if war crimes could be committed against citizens of an allied state, or even against ones’ own citizens. Politicians realized that public opinion would not support moves to categorize the terrible crimes committed by the Germans as crimes perpetrated only against some specific categories of people, excluding Jews, Tziganes and homosexuals. This position again re-opened the debate on the issue of ‘crimes 55 Declaration of Lord Chancellor Sir John Simon on War Cabinet in September 1944 in the Records of the Prime Minister’s office on the treatment of major war criminals (PREM 4/100/ 10), National Archives at Kew, London. Also quoted in Marrus, supra note 33, at 23. 56 H. Morgenthau Jr., Memorandum for President Roosevelt, 5 September 1944. Also quoted by Marrus, supra note 33, at 23. 57 Marrus, supra note 33, at 20. 58 See History of the United Nations War Crimes Commission and the Development of the Law of War (compiled by the UN War Crimes Commission, 1948), 99 ff. 59 Willis, supra note 24, at 174. 60 London International Assembly, Reports on the Punishment of War Criminals (1963).

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against humanity’. The US delegates were always reluctant to consider crimes against humanity as a basis for penal sanctions, but this new situation changed their minds. In response to the genocidal policy of the Nazi regime, the choice was either to broaden the notion of war crimes or to introduce crimes against humanity. This latter option ultimately prevailed, the final result of those discussions being Article 6 of the Statute of the Nuremberg Tribunal, which included Crimes Against Peace, War Crimes and Crimes Against Humanity. The negative side of these developments were also numerous. Once again, the Nuremberg Tribunal was only an ad hoc tribunal, rather than a body that had universal jurisdiction. Likewise, the Tribunal’s work remained a form of ‘victor’s justice’, keeping in mind the great number of war crimes committed by the Allies through large-scale sexual violence or massive, indiscriminate bombings of cities. Substantively speaking, the war crimes in both situations were similar. If a comparison is made between the list of war crimes established by the Responsibility Commission in 1919 and the list in Article 6, we see that the latter is more concise and less detailed than the former, even if we take into account the fact that some crimes specified in the 1919 list have been inserted in the new list of ‘crimes against humanity’. In essence, however, there is no real substantial difference, highlighting a historical continuity in the development of war crimes that would also flow into the development of the grave breaches regime.

4. The Grave Breaches Regime in Positive International Law A. The 1949 Geneva Conventions In 1949, four years after the adoption of the United Nations (UN) Charter, states finally decided to engage in the negotiation of a total revision of the laws of war, or international humanitarian law. The renewed interest in the laws of war stemmed from doubt that the UN Charter’s goal of preventing wars could be guaranteed in the absence of a central military force. The ICRC therefore prepared a draft of a new body of international humanitarian law, taking into account the experiences of the Second World War and consultations with experts. The resulting draft was submitted by the Swiss Government to a diplomatic conference, which adopted the four different Conventions after long discussion and several amendments. Several articles were common to these four conventions, some of which addressed penal sanctions. The Geneva Conventions distinguish two categories of breaches of the Conventions. Some are qualified as ‘grave breaches’and are exhaustively enumerated in each of the Conventions. The others are not qualified or precisely identified. While grave breaches had to be criminally punished, state parties

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are only under an obligation to ensure that non-grave breaches cease. Though repression is the natural way to ensure that non-grave breaches are brought to an end, it is not the only means.61 By contrast, the Conventions impose punishments for the identified grave breaches and this is specified as being of international concern ç any state party to the Conventions is obliged to exercise universal jurisdiction over those responsible for these violations. In fact, a state party is also compelled to ‘search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts’. In addition, there is also the possibility 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’ (Articles 49, 50, 129 and 146 of the Geneva Conventions 1 through 4 respectively). The idea of grave breaches is perfectly logical and, as we have mentioned above, is inherent to a system of war crimes. The fact that civilian internees cannot buy tobacco or soap in a canteen ‘at prices not higher than local market prices’ (Article 87 of the Fourth Geneva Convention), for example, does not justify accusing the person in charge of the canteen of a war crime or bringing the affair before a supranational jurisdiction. Therefore, some legal concept had to differentiate violations of the Geneva Conventions that warranted criminal punishment from those that a state was simply required to end by potentially other mechanisms. As a special committee convened to consider penal sanctions during the negotiation process concluded: In order to allow for reluctance to include all breaches even trifling ones in penal legislation, we limited the obligation to enact legislation to grave breaches which no legislator would object to having included in the penal code, and left the Contracting Parties free to take their own measures for the repression of breaches which don’t come within the category defined as grave breaches.62

A further common article of the Geneva Conventions has important implications for criminal liability by 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 breaches referred to in the preceding article’ (Articles 51, 52, 131 and 148). The provision clearly encompassed grave breaches, and emphasizes the universal nature of these offences.

61 It is indeed by repressing (and, therefore, by providing for penal sanctions in national criminal law) that, generally, states can fulfil their obligation to suppress such acts. See C. Pilloud, ‘Les sanctions pe¤nales dans la premie're Convention de Gene've (blesse¤s et malades) du 12 aout 1949’, 400 Revue internationale de la Croix-Rouge (1952) 286^311. 62 Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II (Bern: Federal Political Department, 1949; reprinted Buffalo: W.S. Hein, 2005) [Section B, Fourth report drawn up by the Special Committee of the Joint Committee (Report on penal sanctions in case of violations of the Conventions), 12 July 1949.]

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The expression ‘war crime’ was proposed but refused, with the argument that it should be reserved for violations of the Hague Conventions. The rationale was apparently that the grave breaches regime should maintain a separate approach.63 Judicial safeguards, notions of complicity, attempts, duress, self-defence or the plea of superior orders were not included, since it was felt that these issues should be left to judges ‘who would apply the national laws’. The overriding philosophy was that the Diplomatic Conference was not there ‘to work out international penal law’.64 Nonetheless, it was clarified that universal jurisdiction applied for all parties to the Conventions ‘in whose power the accused is’ ç and not only those engaged in an armed conflict.65 As the commentary to the Conventions mentions, the obligation to enact penal legislation implies a duty to ‘fix the nature and duration of the punishment for each offence, on the principle of making the punishment fit the crime’.66 The duty to enact legislation also implied that this legislation involved universal jurisdiction for the grave breaches of the Conventions. Superficially, the provision represented a decisive step towards international justice and the beginnings of a universal fight against impunity for war crimes. But the reality was disappointing. Many states did not fulfil their obligation to enact the ‘legislation necessary to provide effective penal sanctions’67 and the system of universal jurisdiction was never applied in practice. One of the major innovations of the 1949 Geneva Conventions was the introduction of Article 3 common to the four Conventions on non-international armed conflicts. This innovation was congruent with the adoption of the 1948 Declaration of Human Rights and the recognition of the notion of crimes against humanity in the framework of the Nuremberg Tribunal. The ‘taboo’ of national sovereignty had been infringed. But states were still very cautious and fearful of ceding too much of their reserved domain. The obligation to punish grave breaches of the Conventions and their exposure to universal jurisdiction do not concern violations committed in internal armed conflict. The provision, in common Articles 50, 51, 130 and 147, that grave breaches have to be committed ‘against persons or property protected by the Convention’ has to be taken in the narrow sense of the notion of ‘protected persons or property’, which are those precisely defined by the Conventions as applicable to international armed conflicts.

63 64 65 66

Ibid. Ibid. Ibid. J. de Preux, Commentary on the Geneva Conventions of 12 August 1949, Vol. III, ed. by J.S. Pictet (Geneva: ICRC, 1960), at 622. 67 See Respect of the Geneva Conventions ç Measures taken to repress violations, ICRC Reports to the 20th and 21st International Conferences of the Red Cross (1965, 1969), based on a study undertaken by all National Red Cross Societies on the legislation in force in their countries.

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B. Additional Protocol I of 1977 Additional Protocol I of 8 June 1977 compliments the Geneva Conventions by adding new grave breaches without undermining the pre-existing offences. In particular, Articles 11 and 85 of Additional Protocol I adds numerous grave breaches to the list contained in the Geneva Conventions themselves, criminalizing violations of ‘Hague Law’ provisions which had not been included in the Geneva Conventions. In so doing, the process confirmed violations of various provisions of the 1899 and 1907 ‘Regulations respecting the laws and customs of war on Land’ as war crimes, many of which had been included in Article 6 of the Nuremberg Statute. Additional Protocol I also clarifies the fact that grave breaches of the Conventions and Additional Protocol I are war crimes (specified in Article 85(5)). This clarification was included despite strong opposition, in line with the refusal to use the expression ‘war crime’ in the Geneva Conventions, from states that expressed the fear that it would create confusion between international humanitarian law and criminal law.68 From this relationship established between grave breaches and war crimes one can also deduce, a contrario, that breaches not considered to be grave are not war crimes. In short, it should not be possible to speak, as one author did, of ‘minor war crimes’.69 Fundamentally, it is essential for the credibility of international criminal law to have a clear and exhaustive list of violations considered as war crimes. However, the list established by the Geneva Conventions and Additional Protocol I is not frozen once and for all. International criminal law must take into account societal evolution and the fact that some violations of customary international law which were not included in these treaties are nonetheless considered war crimes today. Despite its many advances, the 1974^1977 Diplomatic Conference could not overcome one major obstacle ç the recognition of the notion of war crimes in non-international armed conflicts. The main reason was similar to that used in 1949: A majority of states were reluctant to open the door to universal jurisdiction for the repression of crimes committed in such conflicts. They were afraid of what would be, in their minds, an unacceptable interference in their national sovereignty. This fear also appeared in the discussion about international armed conflict. Article 11 of Additional Protocol I, in particular, dealt with the protection not only of people who are in the power of the adverse party, but also of those who are deprived of liberty ‘as a result of the situation’ of international armed conflict. Deserters or traitors detained by their own government enter into this category. But paragraph 4 of Article 11 refers to war crimes as violations of this article with respect to ‘any person who is in the power of a Party other than the one on which he depends’.70 And this difference was effectively ‘justified as being a protection of the 68 Official records, supra note 62, CDDH/I/SR.61, xx 61, 62, 69 and 84 as well as CDDH/I/SR 64, x 10. 69 P. Boissier, ‘La re¤pression des petits crimes de guerre’, Revue internationale de droit pe¤ nal (1948) 293^309. 70 Our emphasis.

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national sovereignty’.71 Another example of this attitude is provided by Article 75 of Additional Protocol I, which enumerates the fundamental guarantees for all persons ‘who are in the Power of a Party to the conflict and who do not benefit of a more favorable treatment under the Conventions and under this Protocol ::: in so far they are affected by a situation’of international armed conflict. Those who were in favour of including violations of this article in the list of grave breaches ‘abandoned this idea in a spirit of compromise in the face of opposition from those who were afraid of extending the concept of grave breaches ^ subject to universal jurisdiction ç to breaches committed by a Party to the conflict against its own nationals’.72 This reluctance may be curious as the notion of a crime against humanity was accepted as an international crime and covered crimes of a state against its own nationals. But a great difference between war crimes and crimes against humanity is that the latter have to be committed on a ‘large scale’. Although this requirement was not specified in the Nuremberg Statute, reference is made to a policy of terror ‘certainly carried out on a vast scale’.73 This criterion can also be found in subsequent texts and is still present in the Rome Statute of the International Criminal Court. To be considered as crimes against humanity, the enumerated acts must be ‘part of a widespread or systematic attack directed against any civilian population’.74 It was difficult after the horrors committed by the Germans under the Nazi regime against some of their own citizens to contest the existence of crimes against humanity, but to include individual crimes committed by a government against its own citizens as war crimes would have been a step further. There was, therefore, no logical contradiction in the mind of those who did accept the notion of crime against humanity but refused the extension of war crimes to non-international armed conflicts, as specified by a delegate to the 1974^ 1977 Diplomatic Conference, who explained that: ‘::: crimes against another person than an enemy could only be crimes against humanity and that this type of crimes was not treated in the Protocols’.75

C. Further Developments In 1995, the notion that serious violations of international humanitarian law constitute war crimes, whether committed during international or noninternational armed conflicts, was finally accepted.76 The basis for this shift 71 Official Records, supra note 62, CDDH/II/SR.99. 72 Y. Sandoz, S. Swinarski and B. Zimmermann, Commentary on the Additional Protocols of 8 June 1977 (Geneva: ICRC and Nijhoff) 993, x 2469; Official Records, supra note 62, CDDH/I/SR 60, at 280 and xx 9^11, at 283; CDDH/I/SR.61, x 86. 73 Judgment of 1 October 1946, ‘International Military Tribunal Judgment and Sentence’, 41 AJIL (1947) 172, at 254. 74 Art. 7 ICCSt. 75 Official Records, supra note 62, CDDH/II/SR.99. 76 See the definition of war crimes by the International Law Commission of the United Nations, Art. 20(f) UN Doc. A/51/10 (1996).

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was compelling. That the same horrible crime committed in an armed conflict could be considered as a war crime or not depending on where the conflict was international or non-international in character was always difficult to accept. This abandonment of this arbitrary distinction can be attributed in large measure to the establishment of the ad hoc international criminal tribunals. Under Article 3 of the Statute of the International Criminal Tribunal for the former Yugoslavia, the Tribunal has the power to prosecute persons violating the laws and customs of war. This provision has been interpreted in the famous Appeals Chamber’s decision in the Tadic¤ case as including violations of Article 3 common to the four Geneva Conventions, Article 3 being said to be part of customary law and entailing criminal liability in case of serious violations of its provisions. As for the Statute of the International Criminal Tribunal for Rwanda, Article 4 specifically gives jurisdiction for violations of Additional Protocol II and common Article 3. At the same time, the Rome Statute of the International Criminal Court also reflects this broad definition of war crimes.77 In Article 8(2) it defines ‘war crimes’ as including a ‘grave breach of the Geneva Convention of 12 August 1949’, and then names those acts that are considered crimes against persons or property protected under the relevant Geneva Convention.78 Article 8(2)(b) considers as war crimes other acts that are ‘serious violations of the law and customs applicable in international armed conflict, within the established framework of international law.’ Finally, 8(2)(c), (d) and (e) list those acts that are ‘in the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of August 12, 1949, namely, any of the following acts committed against persons taking no active part in the hostilities’.79 It is also noteworthy that the International Law Commission (ILC) establishes a broad definition of war crimes that takes into account the most recent developments in the repression of violations of international humanitarian law.80 The definition of war crimes given by the ILC includes: Grave breaches of the four Geneva Conventions; grave breaches listed in Article 85 of Additional Protocol I; violations of Article 3 common to the Geneva Conventions and Article 4 of Additional Protocol II; violations of the laws and customs of war; and also violations of Articles 35 and 55 of Additional Protocol I.

77 See the Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (17 July 1998). Also see M. Cherif Bassiouni (ed.), Statute of the International Criminal Court: A Documentary History (Ardsley, NY: Transnational Publishers Inc., 1999). 78 Art. 8(2)(a) ICCSt. 79 Art. 8(2)(c), (d) and (e) ICCSt. For a further in-depth discussion on the ICC definition of war crimes, see M. Cherif Bassiouni, ‘The Normative Framework of International Humanitarian Law: Overlaps, Gaps and Ambiguities’, 8 Transnational Law and Contemporary Problems (1998) 199 and Appendix II. 80 Report of the International Law Commission on the work of its forty-eighth Session (6 May to 26 July 1996), Supp. No. 10, UN Doc. A/51/10 (1996).

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This prompts us to ask three questions. Are the war crimes listed in the Geneva Conventions and Additional Protocol I all covered by the Rome Statute? Are some violations not considered as grave breaches in the Conventions and Additional Protocol I defined as war crimes in the Rome Statute? And, have any acts previously considered to be war crimes been omitted from the Rome Statute? We shall briefly examine these three questions. Not all states are parties to the additional protocols and although some provisions of Additional Protocol I are a confirmation of existing customary law, some are considered as a development. Another difficulty is that some provisions which were considered as a development when adopted have since entered into international customary law. Therefore, on one hand, the negotiators of the Rome Statute refused to integrate some innovations from Additional Protocol I but, on the other hand, they criminalized other acts that had not even been identified as war crimes in the Geneva Conventions or the Additional Protocol. In comparison with Additional Protocol I, the Rome Statue contains many substantial differences. One important omission is the wilful and unjustifiable delay in the repatriation of prisoners of war and civilian internees. The Third Geneva Convention does not define this as a grave breach, whereas Additional Protocol I does, and this evolution was not considered as part of international customary law by the drafters of the Rome Statute. There are also quite a few differences between Additional Protocol I and the Rome Statute on provisions concerning the conduct of hostilities, in particular those concerning the attack of dangerous forces, the violation of the proportionality principle, and perfidy. The conclusion to be drawn from those differences is that some war crimes according to the Additional Protocol I are not war crimes according to the Rome Statute and international customary law, with the consequence that only those states that are party the Convention and linked to the perpetrator may enjoy universal jurisdiction over the crime. The Rome Statute extends the concept of war crimes to crimes committed in non-international armed conflicts, the list of which it sets out in Article 8(2)(c) and (d) of the Statute. The Statute achieves this by introducing new war crimes in non-international armed conflicts, not by extending the grave breaches regime to non-international conflicts by analogy. In other words, the grave breaches regime remains segregated from other categories of war crimes. Regarding international armed conflicts, the language of some crimes also seems to expand the list of grave breaches contained in the Geneva Conventions and Additional Protocol I. It is therefore useful to consider whether the change is purely semantic or if new breaches have indeed been added. Launching an attack with the knowledge that it ‘will cause widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’ is not defined as a war crime in Additional Protocol I. Its definition as such in the Rome Statute is a positive signal of the growing awareness of environmental problems, but it is no cause for jubilation. The rule, as set out in Additional Protocol I, is already vague and the Rome

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Statute considers only as war crimes attacks that are ‘clearly excessive in relation to the concrete and direct overall military advantage anticipated’. Therefore, if states appear to have demonstrated their concern for the protection of the natural environment, it is at very little cost. It would be very surprising if the International Criminal Court was able to indict anyone on this very vague basis in the coming years. Another novelty is the specific reference, in Article 8(2)(b)(iv), of intentional attacks ‘against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations :::’. Without really defining a new war crime, this article nevertheless usefully emphasizes the important problem of the protection of such personnel and objects, especially for peacekeeping missions and for non-governmental organizations (NGOs). Neither of these groups were specifically covered by war crimes beforehand, although the same acts would have been covered by war crimes such as attacks on civilian objects. Some crimes listed in the Rome Statute also develop provisions of the Geneva Conventions that were not modified by Additional Protocol I. For example, Article 8(2)(b)(xii) of the Rome Statute defines as a war crime ‘destroying or seizing the enemy’s property’. This is also considered a grave breach of Article 147 of the Fourth Geneva Convention, but is limited to ‘extensive destructions and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’, whereas in the Rome Statute the destruction or seizure of enemy property is considered a war crime ‘unless such destruction or seizure be imperatively demanded by the necessities of war’. Some crimes which were not even mentioned in the Geneva Conventions or Additional Protocol I are also included, such as Article 8(2)(b)(xxiv) of the Rome Statute, which makes it a war crime to declare‘abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party’. This provision is derived from Article 23(h) of the1907 Hague Regulations. Some provisions of the Rome Statute go into greater detail and clarify usefully the content of some crimes. Article 8(2)(b)(xxi) and (xxii), for instance, mention a number of acts ç outrages upon personal dignity, in particular humiliating and degrading treatment, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization ç that were only covered by the generic mention of ‘inhuman treatment’ in the Geneva Conventions (common Articles 50, 51, 130 and 147). They underscore certain specific and particularly odious forms of behaviour and help to clarify the meaning of ‘inhuman treatment’. It is the same for the starvation of the civilian populations, specifically forbidden by Article 54 of Additional Protocol I but not listed as a war crime in Article 85. Starvation could have been considered as covered by the ‘inhuman treatment clause’, but the specific mention of it at Article 8(2)(b)(xxv) of the Rome Statute put a very useful emphasis on this prohibition. Under the generic heading of ‘inhumane treatment’, the Rome Statute goes even further than previous provisions in criminalizing the use of ‘human shields’. It considers the mere fact of using civilians as human shields, with or without their consent, as a war crime in Article 8(2)(b)(xxiii). If such practice

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could be considered as covered as inhumane treatment for those who were forced to be human shields, it would have been difficult to invoke inhumane treatment for those doing it voluntarily. In this sense, the ICC definition of the crime is novel. Another important evolution is Article 8(2)(b)(xxvi), which mentions ‘conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities’. This was introduced as a violation by Article 77 of Additional Protocol I but not listed as a grave breach in Article 85. Finally, the Rome Statute provides a measure of clarity in respect of forbidden weapons, stipulating, in Article 8(2)(b)(xxviii) and (xix), that it is a war crime to employ poison or poisoned weapons, asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, or bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which do not entirely cover the core or that are pierced with incisions.

5. Final Remarks There were never armies without rules of discipline and criminal sanctions for those who violate the rules ç a system of rules and sanctions is inherent to the organization of any army, even groups of bandits have their own code. Of course, this system of rules was developed by states for their armies, but it has now transformed into a full system of international criminal justice for wartime crimes. Although, to a certain extent, some rules of this nature were observed since the beginning of humanity,81 they have been specially clarified and developed by scholars since the 17th century. The ‘laws and usages’ of war were more or less known and observed in the armies of sovereign states that developed in the Westphalian system. A hierarchy of these rules was quickly established, reflected at least initially in the penalties ascribed to various conduct. The death penalty was envisaged for the gravest violations whereas more minor offences were punished by a range of more minor sanctions. In this regard, a system of grave breaches is inherent to any penal system. The transformation of those ‘laws and usages’ of war into international rules contained in multilateral treaties started only in the middle of the 19th century. And two factors were decisive for the concept of ‘grave breaches’ in this regard ç the inclusion of rules on penal sanctions within treaties and an increasing willingness to define these rules with more and more specificity. 81 As Geoffrey Best mentioned,‘the idea of the control of war is as old as war itself’. But as he also wrote, no faith is to be placed in the strict observation of humanitarian rules: ‘It is a common place that under the hammer of war the best of men can be driven to behave in the worst of ways’ in idem, ‘The Restraint of War in Historical Perspective’ in A. Delissen and G. Tanya (eds), Humanitarian Law or Armed Conflicts: Challenges Ahead, Essays in Honour of F. Kalshoven (Dordrecht-Boston-London: Martinus Nijhoff, 1991) 3^27.

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The language used to describe these offences was initially very timid, starting with a reminder to states to sanction violations of the international humanitarian rules through the use of domestic law. A call to coordinate their penal legislation was then mentioned within international treaties, before references to a more elaborate notions of international justice, international tribunals, and universal jurisdiction. As soon as international justice was envisaged, a hierarchy of norms was again necessary: those who were in charge of establishing a list of international war crimes after the First and Second World Wars had of course to focus on the gravest breaches. Moreover, in introducing the system of universal jurisdiction within the Geneva Conventions, the states responsible for negotiating the Geneva Conventions could not proceed without selecting the limited number of grave breaches that justified criminal punishment ç international justice could not encumber itself with minor offences. The debate has and will continue to focus on the choice of grave breaches: this discussion will and has to remain open, depending on the evolution of the society. As for war crimes, the recurrent violence against women, the recruitment of child soldiers or the impact of war on our environment, should further influence the development of new norms. Likewise, we should not forget aggression and weapons of mass destruction, for which an exact reference and definition could not be finalized in the negotiations of the Rome Statue. On a more general level, we could ask ourselves if the emerging international justice is not focused more on the horrors committed in the 20th century ç with the crime of genocide, crimes against humanity and war crimes ç than on the challenges of 21st century, which will face new threats such as international networks of bandits involved in the trafficking of human beings, drugs and arms; failing states and high levels of corruption. Within this context, discussions of grave breaches have to be integrated into a broad debate on the role of justice in the search for peace and the establishment of a global international system adapted to the main global challenges of the 21st century.