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Chapter 31.  Grave Breaches of the Geneva Conventions
A. Introduction 
B. Meaning and Application 
I. The obligation to provide for effective penal sanctions 

a. The content of the obligation 
b. The question of the effectiveness of penal sanctions 
c. The persons against whom effective penalties must be established 

II. The obligation to search for persons who have allegedly committed,
or have ordered to be committed, a grave breach 
III. The obligation to bring to court persons allegedly responsible for a
grave breach 
I V. The obligation to hand over to another state persons suspected of a
grave breach 
V. The question of jurisdictional link, including universal jurisdiction 
V I. Judicial guarantees and the question of the status of prisoners of war 
C. Relevance in Non-International Armed Conflicts 
D. Legal Consequences of a Violation 
E. Critical Assessment 

MN
1
10
14
14
19
25
33
41
49
56
62
66
70
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) 833
W. Ferdinandusse, ‘The Prosecution of Grave Breaches in National Courts’, 7 JICJ (2009) 703
Henckaerts, J.-M., ‘The Grave Breaches Regime as Customary International Law’, 7 JICJ (2009) 683
Kreβ, C., ‘Reflections on the Iudicare Limb of the Grave Breaches Regime’, 7 JICJ (2009) 789
Moir, L., ‘Grave Breaches and Internal Armed Conflicts’, 7 JICJ (2009) 769
O’Keefe, R., ‘The Grave Breaches Regime and Universal Jurisdiction’, 7 JICJ (2009) 811
Pilloud, C., ‘La protection pénale des Conventions internationales humanitaires’, 35 IRRC 419 (1953) 842
Sandoz, 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) 657
Stewart, 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 1
provisions concerning the prosecution and punishment of individuals who violate the
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Conventions was controversial. In particular, the International Committee of the Red
Cross (ICRC) did not consider the question of criminal punishment of alleged war criminals as a priority.1 Arguably, this was because the ICRC had proved ineffective in prompting 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
2
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 summer of 1946, the then chief of the ICRC’s Legal Division, Claude Pilloud, noted that punishment 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 measures’. 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 commission (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 punishment. Ibid, at 239.
6
  Ibid, at 239–40. Quoting the relevant transcripts and documents of the meetings of the ICRC’s legal commission, 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 treatment 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 including 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 3
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- 4
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 5
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 legislation 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 introduction 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 supportive 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 having 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.
6
Against this background, prominent international lawyers involved in the drafting process 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 contracting 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 parties 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.
7
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 violations of the Conventions. It was Jean Pictet, Director-Delegate of the ICRC, who apparently 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 crucial 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 immediately 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 concomitant 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 overriding concern.20
The provisions on criminal punishment for certain violations of the Conventions 8
adopted by the Diplomatic Conference in 1949 reflect a compromise between these different 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 committed, 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 circumscribed 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 whatsoever 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.
9
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 jurisdiction by an international criminal court failed. In the Geneva Conventions, criminal
repression for breaches rests in the hands of national jurisdictions. In addition, the obligation 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 extradition 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 competent 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
10 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.
11
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 argument 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 availability 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 protected 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 12
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 legislation 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.
13

I. The obligation to provide for effective penal sanctions
a. The content of the obligation
On a literal interpretation, states parties to the Geneva Conventions are not obliged to 14
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 persons responsible for a grave breach. In other words, to the extent that ‘effective penal sanctions’ 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 persons, 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
15
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 parties 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 situations 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
16
These arguments, however, are not entirely convincing. First, one may note that
national criminal law might already provide for universal criminal jurisdiction over ordinary 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 criminal 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 17
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 obligation 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- 18
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 international 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 satisfied 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 responsibility); 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, according 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 sanctions
19 Regardless 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 persons 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 reconciles 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
20
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 disturbing 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 applicable 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.
21
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 rehabilitation. 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 objective 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 dealing 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 22
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 international 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 23
courts do not help to shed much light on the matter. Their constitutive instruments concerning 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 24
penal sanction is ‘effective’ with respect to an act amounting to a grave breach. This flexibility, 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 lenient 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 established
Effective penal sanctions must be directed against ‘persons committing’ or those ‘ordering 25
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 matter. 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 penalties 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 harshest penalty of imprisonment for a maximum of 30 years, while also providing for the possibility of life imprisonment ‘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
26
Analysing the case law of the ad hoc international criminal tribunals for the former 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 former 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 interpreting 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 commission 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
27
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 international level should they consider this necessary or desirable.
28
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 mentioned 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 ‘internal’ 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.

  Pictet Commentary GC I, at 363.
  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.
47

48

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Criminal liability in the form of ‘commission by omission’ (or ‘indirect omission’) 29
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 30
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- 31
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 ‘modern’ 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

  Pictet Commentary GC I, at 364.
  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 omission 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 effective 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 responsibility for international crimes as ‘an original creation of international criminal law’.
54
55

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32

Ensuring Compliance with the Conventions

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 circumstances, be held criminally responsible for failing to prevent and/or punish crimes committed 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 envisaged 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
33 Unlike other treaty provisions relevant to the exercise of criminal jurisdiction, those contained 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
34
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 obligations 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 35
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 territory 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, 36
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 allegedly 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 37
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 provisions, 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

64
  Ibid, at 266–8.
  Pictet Commentary GC I, at 366–7.
  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=JORF
TEXT000000532676>.
70
  See decision of the Court of Cassation, above n 68.
63
65

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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.
38
Arguably, the non self-executing character of the obligation to search for persons suspected 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 obligation to search for those suspected of grave breaches, and, on the other hand, the jurisdictional 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.
39
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 jurisdiction of another state, it can submit to the latter a request for surrender or extradition.
40
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 allegation 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 41
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 differ 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 sufficient 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 provided 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 serious 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 decision 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
79
 MN 35.
  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 implement, 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.
43
More difficult is the question of the relationship between the obligation under discussion 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 contend 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

42

80
  If the measures of amnesty or pardon eventually issued in a country remain a dead letter or are disregarded 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 discussing 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 44
contend that this statement does not concern the other category of international immunities, 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 immunities 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 territory of a State exercising jurisdiction would seem to be governed primarily by humanitarian 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 immunities 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
88
89
  Ibid, para 69.
  Ibid, paras 84–5
  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.
46
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 international 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.
47
The alleged applicability of the doctrine of immunities ratione materiae for international 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
45

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 jurisdictions 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.
  See Art 7 of the Charter of the Nuremberg Tribunal.
  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 admettait 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>.
91

92

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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 48
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 unavailability 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 exaggerated 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 49
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 50
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 situation. 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
52
As in the case of the express reference to the irrelevance of official capacity for the purposes 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.
53
One might wonder whether the state, having the custody of a person allegedly responsible 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 recognized 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
51

  See Draper, above n 26, at 159.
  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.
98

99

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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 54
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 responsible 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 nationality 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 triggered 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 jurisdiction 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 organization governed—as all international organizations—by the so-called principle of speciality. 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
 Ibid, at 34.
  See para 6 of the Preamble to the ICC Statute, whereby ‘it is the duty of every State to exercise its criminal 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
104
105

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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 jurisdiction
56 Carrying 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 universal 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.
57
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.
 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.
109

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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 58
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 presuppose 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 mandatory 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 presence 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 59
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 suspect’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 60
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, available 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
61
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 provision 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 requirement 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 deprehensionis. 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
62 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 justifies the assertion and exercise of criminal jurisdiction by the state of nationality of the victim of a crime committed 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 traditionally 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 guarantees 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- 63
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 current 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 understands, if the sentence was not pronounced in his or her presence; and a series of rights connected 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 prohibition 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 64
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
65
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 status 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
66 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 contrary, 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.)
67
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 cannot 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- 68
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 committed 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 categories 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 69
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
70 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.
71
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.
72
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
73
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
74 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
  For a discussion of the matter, ibid, at 693–700.
  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.
142
143

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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- 75
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 prosecution, 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- 76
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 77
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 number). 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
  See van Elst, above n 27.
  The first criminal prosecution by a national jurisdiction on a charge of a grave breach under universal 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
148
  See Ferdinandusse, above n 26.
  See Art 2 ICTY Statute.
144
145

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Ensuring Compliance with the Conventions

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 violations of Common Article 3 of the Geneva Conventions and of customary IHL applicable 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.
78
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.
79
It remains to be seen whether war crimes cases at the ICC will reverse the pattern followed by the ICTY and bring new life, at least at the international level, to the system of
repression of grave breaches.

Paola Gaeta

 ICTY, Tadić, above n 136, paras 128–36.
  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.
149
150

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