0 THE APPLICABILITY OF THE WAR CRIMES AND GRAVE BREACHES REGIME TO NON-INTERNATIONAL ARMED CONFLICTS: AN ANALYSIS By Augustine Nwabueze ESEAGWU PG/LAW/0917388
1. 0 THE APPLICABILITY OF THE WAR CRIMES AND GRAVE BREACHES
REGIME TO NON-INTERNATIONAL ARMED CONFLICTS: AN ANALYSIS By
Augustine Nwabueze ESEAGWU PG/LAW/0917388
2. 1 CHAPTER ONE THE CONCEPTS OF WAR CRIMES AND GRAVE BREACHES
1.1 Introduction By the middle of the Nineteenth Century, States
had already started looking for a uniform standard of conventional
behavior that would not only bind individual participating states,
but would act as a means of identifying and adopting universal
principles and rules to base a modern international humanitarian
legal standard. The first sets of treaties were brief and contained
no penal provisions and participant countries accepted their
obligations as far as it brooked no external interference.1 The
first all-embracing code that sought to penalize actions that went
against the customs of international humanitarian law was the
Lieber Code;2 a set of rules and definitions providing for the most
urgent cases, occurring under the Laws and Usages of War, and on
which our Articles of War are silent. The Code provided amongst
other things, for those in charge of administering the terms of
martial law to be strictly guided by the principles of justice,
honor, and humanity, virtues adorning a soldier even more than
other men, for the reason that he possesses the power of his arms
against the unarmed.3 Other provisions of the Lieber Code though
less developed than 1 The Declaration Respecting Maritime Law
(Paris Declaration) 1856, 115 Parry 1, The Geneva Convention for
the Amelioration of the Condition of the Wounded in Armies in the
Field of 1864, 129 CIS 361 and the Declaration Renouncing the Use,
in Time of War, of Explosive Projectiles under 400gm weight St
Petersburg Declaration) 1868. 129 CIS 361. 2 Instructions for the
Government of Armies of the United States in the Field. General
Order No. 100. 24 April 1863. Hereinafter referred to as the Lieber
Code or The Code The Code was an instruction manual signed by the
then President of the United States, Abraham Lincoln to the Union
troops of the United States army during the American civil war. It
set a basis of behavior and conduct expected from the soldiers in
wartime. It was named after the eminent German born American jurist
and philosopher, Francis Lieber, the principal author. 3 Ibid, Art.
4,
3. 2 present jurisprudence, showed a strong nexus with modern
provisions of contemporary penal regimes.4 Other attempts at a
penal regime include the Brussels Conference convened by Czar
Alexander II but never ratified,5 the attempt of the Institute of
International Law; the Oxford Manuals6 , the Hague Conferences,7
the Geneva Convention 1906.8 One common denominator of all these
international treaties and conventions (bar the Lieber Code that
was a National law) was the absence of a penal regime. It was not
till after the horrors of the two World Wars that Customary and
Treaty International Humanitarian Law recognized and set down the
benchmark for a Grave Breaches regime.9 Grave Breaches10 are the
most serious grave violations against persons protected by the
Geneva Conventions. 4 Ibid Art. 16, (forbids the use of poison in
any way, no cruelty, no maiming or wounding except in fight, no
torture to extort confession, no acts of perfidy and no acts of
wanton devastation), Art. 80, (which on torture, provided that the
modern law of war permits no longer the use of any violence against
prisoners in order to extort the desired information or to punish
them for having given false information), Art. 148, (prohibited
Murder, by whatever authority), Art. 22, (recognized that the
principle has been more and more acknowledged that the unarmed
citizen is to be spared in person, property and honor as much as
the exigencies of war may admit) Art. 44, (maintained a sacredness
of domestic relations, and that all wanton violence committed
against persons in the invaded country, all destructions of
property not commanded by the authorized officers, all robbery, all
pillage or sacking, even after taking a place by main force, all
rape wounding, maiming, or killing of such inhabitants are strictly
forbidden) and Art. 47, (prohibited all crimes punishable by all
penal codes) 5 The International Declaration Concerning the Laws
and Customs of War, 1874 6 The Oxford Manuals, on the Laws of War
on Land, 1880 and Laws of naval War Governing Relationships Between
Belligerents, 1913 7 The Hague Conventions of 1899 (Conventions II:
Respecting the Laws and Customs of War on Land, and its regulations
concerning the Laws and Customs of War on Land 1899. 32 Stat 1803)
and 1907 (Convention IV: Respecting the Laws and Customs of War on
Land, 18 October 1907. 36 Stat 2277 i.e. Second Hague IV) 8 The
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armies in the Field 1906. 202 CTS 144 9
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
ICJ Reports 8 July 1996 10 Grave breaches of the four Geneva
Conventions and the Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I) 8 June 1977 (Hereinafter
simply referred to as grave breaches(s))
4. 3 These grave breaches of the customs and laws of war as
provided by the Geneva Conventions did not in themselves provide
for any criminal sanction or liability, rather states are enjoined
to enact penal laws and incorporate these customary obligations
into domestic legal regimes. These obligations included searching
for suspected contraveners, administering these penal laws upon
them and/or extraditing them to other states for trial.11 The Grave
Breaches regime in the Geneva Conventions is a complex mix of
obscure12 regulations and rules that one has to interpret in order
to provide a framework within which to work. Traditionally, grave
breaches are a limited set of serious violations of the Geneva
Conventions of 1949 that gave rise to special obligations of the
States Parties for the enactment and enforcement of domestic
criminal law.13 In addition, each of the Geneva Conventions and the
Additional Protocol I have expressly stated what amounts to a grave
breach of the conventions.14 The term, which originated from the
efforts of the Dutch delegation to the 1949 Diplomatic
Conference,15 was accepted for a variety of reasons. They were a
more internationally acceptable standard of apportioning criminal
acts as the definition of the word crime was dynamic and varied
from country to country, war crimes in itself were already 11 An
example of such Domestic Legislation is the War Crimes Act, 1996
passed by the US Senate. 12 G. A. I. D. Draper The Modern Pattern
of War Criminality, in Yoram Dinstein. and Mala Tabory. (eds), War
Crimes in International Law (The Hague: Kluwer, 1999), 158-159. 13
Marko D. Oberg, The Absorption Of Grave Breaches into War Crimes
Law. International Review of The Red Cross, Vol. 91, No. 873, March
2009, 163 14 Art. 50, GC 1, Art.51, GCII, Art.130, GCIII, Art.147,
GCIV, Arts. 11 and 85, API 15 The Diplomatic Conference for the
Establishment of International Conventions for the protection of
War Victims, Geneva, 21 April-12 August 1949, Jean Pictet.
Commentary IV, Geneva Convention relative to the protection of
Civilian Persons in time of War, ICRC, Geneva 1958, 585-587 and the
Final Record Vol. II-A, pp 100. 157, 177-178, 184, 349, 527, 645,
647, 673-674, 716, 718, 822; Vol. 11-B pp 31-33, 85-87, 115-117,
132-133, 355-360, 363
5. 4 considered as breaches of the conventions of war16 and
because the 1949 Diplomatic Conference did not have a mandate to
create international criminal law.17 The promoter of the term was
Captain Martinus Willem Mouton of the Dutch delegation;18 he was of
the view that the contracting parties were obligated to use the
grave breaches regime as a basis for the inclusion of certain like
provisions in their penal legislations.19 The grave breaches regime
within the Geneva Conventions was designed to have its provisions
reduced to domestic penal legislations of Member States and hence
could not be seen or considered as an international criminal code.
They lacked the proper constituents of a true criminal law
repression system that could confer individual criminal culpability
with factors like a mens rea, mode of criminal liability, a
defense, penalties for breach and substantive rules of procedure
thus making it pertinent, that the only reasonable way was that it
be left to the judges who would apply the national laws.20
Invariably, there arose a need for the conception of a separate
body of International laws to birth a new category of individual
criminal culpability, which would attach sanctions to breaches of
the rules of international humanitarian law. Without a doubt, a
rule of international law is breached, when a grave breach is
committed or a war crime is perpetuated. 16 Oberg, Supra note 13 17
Jean Pictet. Commentary I, Geneva Convention for the Amelioration
of the Condition of the Wounded and Sick in Armed Forces in the
Field, ICRC, Geneva, 1952, p. 371. And Final Record, above note 15,
Vol. II-A, pp. 100, 157, 177178, 184, 349, 527, 645, 647, 673674,
716, 718, 822; Vol. II-B, pp. 3133, 8587, 115117, 132133, 355360,
363. 18 Final Record, supra note 19, 107 and Pictet, supra note 17,
360; Pictet, supra note 15, 587. 19 Final Record. ibid, 87. 20
Final Record, above note 19, 115.
6. 5 A war crime on the other hand, is an act or omission that
violates International Humanitarian Law and is criminalized under
International Law.21 It carries individual criminal liability. The
modern concept of War Crimes came to prominence via the enactment
of a charter to give legal backing to the prosecution of people
responsible for crimes committed during the Second World War.22
Furthermore, other Statutes like that of the International Criminal
Court23 provide Jurisdiction over such crimes where they are part
of a plan or policy or as part of a large-scale commission of such
crimes.24 These criminal offences include failures to adhere to
conventional norms and standards of war. 1.2 Aim and Objective of
Study The rules governing the conduct of persons and high
contracting actors in an Armed Conflict of an International
Character or International Armed Conflict (IAC) are succinctly set
out and codified in various international conventions like the four
Geneva Conventions of 1949, the different Hague Conventions and
other secondary sources like the San Remo Manuals etc. However,
armed conflict as we know it now has taken a new direction; most
especially with the ever changing geopolitical space, the birth of
old foes and the birth of new nationalist cum anti colonial fervor
that swept the developing countries in the late 1950s, most of the
1960s and the greater part of the 1970s. Civil wars and proxy wars
(internationalized armed conflicts) swept through the 21 Oberg,
Supra note 13, 164 22 The Charter of the Nuremberg International
Military Tribunal, 8 August 1945, 82 UNTS 280 23 Rome Statute of
the International Criminal Court, Rome, 17 July 1998, 2187 UNTS 90
(hereinafter referred to as Rome Statute or The ICC Statute 24 Art
8, Part II, Rome Statute.
7. 6 developing countries as diverse interests fought for a
foot hold utilizing proxies. This new kind of warfare is
characterized by an increased asymmetry of parties, which in turn
has shown a shift in the conventional reasoning behind the
contraction of hostilities. The growth of Armed conflicts of a non
international character25 all over the developing world e.g. In
Syria, Congo, Colombia, Mali, Afghanistan, Iraq etc. has created
the need for a new understanding of the rules and regulations
governing Non International conflicts particularly with regards to
certain issues that have arisen to the fore. These issues, though
foreseen by the laws of war, have become the basis for
international concern especially due in large part to the moral
questions that they pose. These include the use of child soldiers,
the perpetuation of unlawful activities that may be considered as
grave breaches, the status of combatants in the non-international
armed conflicts, the thresholds within which the status of modern
internal conflicts may change etc. It is very clear from a perusal
of the substantives legal regimes in place, that the greater
provisions of the general conventions concerning the Grave Breaches
regime has more or less been enacted with no apparent reference to
internal armed conflicts.26 27 This long essay examines the extent
to which these laws have impacted upon internal Armed Conflicts
with particular reference to the occurrence of 25 The Articles 3
Common to the 4 Geneva Conventions of 1949 26 Knut Dormann,
Elements of War Crimes under the Rome Statute of the International
Criminal Court. (Cambridge: Cambridge University Press, 2002), 128.
27 Article 8(2) of the ICC Statute and Christopher Greenwood,
International humanitarian law and the Tadic case, European Journal
of International Law, Vol. 7, 1996, pp. 280281.
8. 7 acts that could be classified as Grave Breaches.28 The aim
of this long essay is to examine the application of the regime of
grave breaches as provided and prohibited by international law,
most especially the four Geneva Conventions of 1948, on Conflicts
of a non international character. 1.2.1 Methodology The writer
shall adopt an analytical standpoint in this long essay whilst
maintaining a broad and objective view. An attempt at reviewing
relevant case law will also be adopted by the writer in this long
essay. 1.2.2 Findings The Grave Breaches regime could be a catalyst
for the growth of a more coherent, comprehensive and basic
international criminal law regime that bestows penal sanctions on
violators of the laws and customs of war through an International
Criminal Court with a universal jurisdiction over all kinds of war
crimes perpetuated in armed conflicts, whether international or
non- international. The distinction between both classes of warfare
has made it imperative to maintain the dichotomy between Grave
Breaches and the War Crimes regimes, creating operational problems
for those tasked with prosecuting perpetrators of grave breaches
violations. This is evidenced by the low turnover of cases
determined at the ICC in comparison with the International Criminal
Court, Yugoslavia (ICTY), which has become a reference point in the
war crimes jurisprudence. 28 Neither the four Geneva Conventions
nor Additional Protocol II of 1977 contains any provisions relating
to grave breaches in non international armed conflict. Sonja
Boelaert- Suominen, Grave breaches, universal jurisdiction and
international armed conflict: Is customary law moving towards a
uniform enforcement mechanism for all armed conflicts?, Journal of
Conflict and Security Law, Vol. 5, 2000, pp. 63103
9. 8 This study shall strive to show the shortcomings of
maintaining a status quo that may be fast losing relevance save as
a reference point in international criminal jurisprudence. 1.2.3
Contribution to Knowledge This study gives an insight into the
contribution of the ICTY to international jurisprudence and its
attempt at bridging the procedural gaps evident in the penal
repression process of the grave breaches regime. The study also
provides an understanding of the shortcomings evident in the
prevailing dichotomy between the grave breaches and the war crimes
regimes. 1.3 The Difference between War Crimes and Grave Breaches
The difference between the two regimes of war crimes and grave
breaches is found in their historical metamorphosis. Time and usage
has blurred the basic distinguishing factors that separated the
contemporary usage of both terms hence they are not the same
concept. In tracing the initial intendment of both regimes, it is
pertinent to consider their literal basis before a holistic
distinction is attempted. A crime is an act that the law makes
punishable; the breach of a legal duty treated as the subject
matter of a criminal proceeding.29 The underlying premise is that
all crimes stem from a breach of the law but not all breaches are
necessarily criminal in nature. Hence, generally, while a crime in
itself entails a 29 Blacks Law Dictionary (8th Ed, 2004)
10. 9 consequence provided for and punishable by criminal law,
a breach may have legal consequences punishable or not punishable
by criminal law.30 In providing a list of grave breaches, the
Geneva Conventions failed to provide any criminal liability for
their contravention. Rather their violation was considered heinous
enough that Member States passed domestic penal legislations to
search for suspects, and judge them or hand them over to another
state for trial provided such a High Contracting Party has made out
a prima facie case 31 This practice over time has proved to be
insufficient or rather ineffective. Grave breaches is a more
internationally acceptable standard of apportioning criminal acts
as the definition of the word crime was dynamic and varied from
country to country, war crimes in itself were already considered as
breaches of the conventions of war32 and because the 1949
Diplomatic Conference did not have a mandate to create
international criminal law.33 1.4 The Eventual Convergence of the
Concepts of War Crimes and Grave Breaches. Since both the
perpetuation of war crimes and grave breaches constitute a breach
of international humanitarian law and expose the perpetuator to
personal criminal liability, there has been a great deal of
confusion amongst students of international humanitarian law as to
what constitutes either of this two distinct regimes. This
confusion is even evident in the usage of both terms 30 Oberg,
Supra note 13, 164 31 Articles 49/50/129/146 of the four Geneva
Conventions. 32 Oberg, Supra note 13, 163 33 Pictet, supra note 17,
371. And Final Record, supra note 19, Vol. II-A,100, 157, 177178,
184, 349, 527, 645, 647, 673674, 716, 718, 822; Vol. II-B, 3133,
8587, 115117, 132133, 355 360, 363.
11. 10 interchangeably.34 Contemporary practice tends to
consider these two distinct concepts as the same in usage. In fact,
over the passage of time, the war crimes concept has evolved itself
into the more dynamic of the two due to certain factors which
include a lesser burden of proof, a better and modern procedural
regime, greater recognition among states and a perception that the
crimes it seeks to repress are considered with a great deal of
infamy.35 At the Diplomatic Conference on the draft Additional
Protocols,36 there arose a debate as to whether grave breaches
could be described as war crimes,37 whereas some states considered
grave breaches to be a category of crimes38 whilst the others
emphasized the difference between the two.39 These multiple views
culminated in the provision of without prejudice to the application
of the Conventions and of this Protocol, grave breaches of these
instruments40 shall be regarded as war crimes.41 This provision
notwithstanding, It is important to emphasize that the 34 The
provision of Grave breaches as a particular type of war crime in
Art. 1(a), the 1968 UN Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes Against Humanity,
and Article 1(2) of the 1974 European Convention on the same topic.
35 Oberg, Supra note 13, 164 36 The Diplomatic Conference on the
Reaffirmation and Development of International Humanitarian Law
Applicable to Armed Conflicts 1974-1977, Geneva. 37 Official
Records of the Diplomatic Conference on the Reaffirmation and
Development of International Humanitarian Law applicable in Armed
Conflicts, Geneva, 19741977, Vol. X, p. 127, CDDH/234/Rev.1, para
77 38 Ibid., Vol. VI, p. 283, CDDH/SR.44, para 18 (United Kingdom);
Vol. VI, p. 293, CDDH/SR.44, para 81, and Vol. IX, p. 317,
CDDH/I/SR.64, para 69 (Poland); Vol. VI, p. 294, CDDH/SR.44, paras
88, 90, and Vol. IX, p. 282, CDDH/I/SR.61, para 85 (East Germany);
Vol. VI, pp. 298 299, CDDH/SR.44 (Canada); Vol. VI, pp. 305306,
CDDH/SR.44, and Vol. IX, pp. 313314, CDDH/I/SR.64, para 49
(Yugoslavia). 39 Ibid, Vol. VI, p. 293, CDDH/SR.44, para 85, and
Vol. IX, pp. 269270, CDDH/I/SR.61, paras 45 (Indonesia); Vol. VI,
p. 295, CDDH/SR.44, para 92 (Egypt); Vol. IX, p. 279, CDDH/I/SR.61,
para 62 (Switzerland); Vol. IX, p. 280, CDDH/I/SR.61, para 69
(Netherlands); Vol. IX, p. 307, CDDH/I/SR.64, para 10 (Austria). 40
See note 10 41 Art. 85 (5) The Protocol Additional to the Geneva
Conventions of 12th August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I), 8 June 1977.
1125 UNTS 3
12. 11 general language of the Additional Protocol I shows that
not all breaches of the Geneva Conventions (and its protocols),
amounts to a grave breach.42 It is important to make this
distinction because grave breaches of the Geneva Conventions and
its Protocols involve unlawful acts carried out, in wartime, upon
victims that would otherwise appear as protected under
International Humanitarian Law.43 In addition, it is possible for a
war crime to become a grave breach due to certain additional
criminal actions, otherwise, under the conventions; such an act
would not constitute a grave breach.44 In time, statutes
establishing international courts, tribunals and adhoc bodies have
become the reference point for the interpretation, definition and
application of the penal provisions of international humanitarian
law on perpetuators of grave breaches and war crimes. By 1993,
independent criminal tribunals had sought to criminalize grave
breaches in the international domain. The International Criminal
Court45 also listed grave breaches as a sub-category of war crimes
but subjects both categories of crimes under the same legal set of
legal regulations,46 in effect, conferring jurisdiction upon the
court over a variety of war crimes including grave breaches. 42
Ibid. Art. 1, Paragraph 1, the provisions of the Conventions
relating to the repression of breaches and grave breaches,
supplemented by these Section, shall apply to the repression of
breaches and grave breaches of this protocol. 43 This class of
victims include civilians, civilian objects, persons hors de combat
e.g. prisoners of war 44 Ibid, Art. 37 prohibits Perfidy, in other
words, making it a war crime to carry out perfidious acts against
combatants. But when it involves the use of the distinctive emblem
of the red cross, red crescent or red lion and sun or of other
protective signs recognized by the Conventions or this Protocol, As
provided in Art. 85 (3) of the Additional Protocol I, it becomes a
grave breach. 45 Art. 8 (2) (a) of ICC Statute 46 Knut Doermann.
Elements of War Crimes under the Rome Statute of the International
Criminal CourtCambridge University Press, Cambridge, 2002,
128.
13. 12 1.5 The Material Applicability of Grave Breaches and War
Crimes. The grave breaches regime is provided for in the Geneva
Conventions and Additional Protocol I.47 The Articles 3 Common to
the Four GCs which provide the basis for armed conflicts not of an
international character do not have any grave breaches provisions,
neither does the Additional Protocol II48 have any grave breaches
provision. Both regimes have different scopes of applications, as
both have a dual role to play in the suppression of acts deemed
inimical to the customs and laws of international humanitarian law.
However, just like the blurry lines that crisscross their
definitions, there would seem to be a question as to probable zones
of application. An example is the ICC Statute that provides a
substantive regime of grave breaches and war crimes whilst making a
distinction between what war crimes may be committed in an
International or non-international armed conflict.49 This blur is
simply for the reason that prosecutors of breaches of international
humanitarian law in tribunals prefer to replace substantive breach
indictments with a war crime charge that carries a lesser burden of
proof and dispenses with the need to prove an international armed
conflict.50 Another major reason for the wide applicability given
to the war crimes regime is the fact that international armed
conflicts have become a rarity in the comity of nations. Rather,
due to the 47 See note 10 48 The Protocol Additional to the Geneva
Conventions of 12th August 1949, and relating to the Protection of
Victims of Non-International Armed Conflicts (Protocol II), 8 June
1977. 1125 UNTS 609 49 Article 8(2)(b) of the ICC Statute provides
for war crimes applicable in International armed conflict while
8(2)(c) provides for serious violations of Article 3 common to the
four Geneva Conventions of August 12 1949; The Prosecutor v. Dusko
Tadic aka. Dule, ICTY, Case No. IT-94-1-A, Decision on the Defense
Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber),
2 October 1995, para 89 50 On 22 September 2008 in the ICTY, the
Prosecution in the Radovan Karadzic case submitted an amended
indictment, which removed the count of grave breaches.
14. 13 evolving of dynamic geo political considerations,
non-international armed conflicts or proxy wars51 are the majority
and have become the benchmark issue in law of armed conflict. It is
thus easier to charge, prosecute and covict a perpetrator of a
breach of the laws and customs of international humanitarian law as
a war crime than as a substantive grave breach as prosecutors are
wont to do by charging acts that amount to grave breaches as
domestic crimes and violations of laws of war.52 A classical
example of this is where a prosecuting party in a case where a
breach is in issue e.g. The Armed Activities case before the
International Court of Justice.53 The Congolese prosecution was
faced with proving that the Mouvement pour le Liberation de Congo
(MLC) was under the control of Ugandan government for the purposes
of proving violations of grave breaches (amongst other issues). The
plethora of technicalities and applicable burdens of proof made
this task daunting. Especially when the concept of overall control
of the culpable party was irrelevant or had no bearing to the
eventual role and liability of the perpetrator where the moral
culpability was evident in war crimes such as murder and rape,
which the MLC willfully carried out.54 The Judges at the ICTY have
been known to openly encourage the replacement of grave breaches
charges in order to reduce trial time that the 51 Ingrid Detter The
Law of War (2nd edn, Cambridge: Cambridge University Press, 2002),
40. According to the author, most apparently, internal wars do, in
fact, receive some kind of outside support.. 52 Ward Ferdinandusse.
Direct Application of International Criminal Law in National Courts
(The Hague: T.M.C. Asser Press, 2005). 53 Democratic Republic of
the Congo v. Uganda. Armed Activities on the Territory of the
Congo, Judgment, ICJ Reports (2005), 160. 54 James Stewart The
Future of the Grave Breaches Regime: Segregate, Assimilate or
Abandon? in 2009, 7, Journal of International Criminal Justice,
861
15. 14 defense would have utilized to address on the
international nature of an armed conflict55 There is a fair bit of
controversy about what sort of grave breach violations may be
considered as war crimes.56 Many argue that the contemporary view
of the war crimes regime is broader in scope than the grave breach
regime as most if not all international criminal tribunals have
dispensed with any limitations to applicability by including or
widening of their jurisdictional jurisprudence to incorporate a
robust war crimes regime. Irrespective of this modern notion of
applying the war crimes regime to every conflict, there still exist
grave breaches that do not have a corresponding war crime
equivalent.57 Furthermore, the ICC has had to charge perpetuators
for the grave breach of willful killing and inhuman treatment as
the actus reus of the crimes concerned retain their relevance
within the grave breach regime.58 In truth, all states around the
world are party to the four Geneva Conventions but not all are
party to Protocol 1, which is in relation to international armed
conflicts. So the situation may arise that a state which is not
bound by the covenants of a particular treaty may argue or contend
that the jurisdiction of the said treaty do not extend to it. Now,
it is convenient to revert 55 The Krnojelac Case (IT-97-24), 27
October 2000. Prosecutions Motion to Withdraw Article 2 Counts 56
Writers like Yves Sandoz in his Penal Aspects of International
Humanitarian Law are of the opinion that Art. 85 (5) of AP1
disclose a class of non-grave breaches, which are not war crimes.
See M. Cherif Bassiouni (ed) International Criminal Law,
Transnational Publishers, Ardsley, 1999, 408 57 Art. 8(2)(a)(viii)
of the ICC Statute provides for the grave breach of Taking Hostages
but there is no related crime provided in the list in Art. 8(2)(b)
58 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC
Case No.ICC-01/04- 01/07, amended document containing the charges
pursuant to Article 61(3)(a) of the Statute, 26 June 2008, Annex
1A.
16. 15 to the general provisions of the grave breaches regime
as provided by the four Geneva conventions. Geographically, the
applicability of international humanitarian law covers the whole
territory of the warring states59 hence war crimes and grave
breaches can be inferred from the foregoing are applicable in both
the territories of the warring parties. Of great importance to this
regime is the issue of the temporal scope of the grave breach and
war crimes regime. The ICTY Appeals Chamber was of the opinion that
international humanitarian law begins to apply from the initiation
of . armed conflicts and extends beyond the cessation of
hostilities until a general conclusion of peace is reached.60
Whereas the grave breaches regime applies from the outset of a
conflict or occupation as defined in these instruments until,
depending on the rule concerned, the general close of military
operations, termination of the occupation, or the final release,
repatriation or re establishment of protected persons in the hands
of the enemy61 59 Oberg, Supra note 13, 175 60 Tadic Case. See note
49, 70 61 Art. 5 of the First and Third, and Art.6 of the Fourth
Geneva Convention and Arts. 3 and 75(6) of AP I. this is
irrespective of Art 6(3) of the Fourth Geneva Convention which does
not affect the applicability of the grave breaches regime
17. 16 CHAPTER TWO REVIEW OF EXISTING LITERATURE 2.1 Background
to the Existing Legal Regime The horrors of the two World Wars gave
rapid rise to the need for a generally accepted penal code to guard
against the perpetuation of crimes against protected persons and
actions that are inimical to the customs of international
humanitarian law.1 The development of new norms often follows a
major humanitarian upheaval.2 During the First World War, the world
saw barbarous behavior of a new sort. This behavior was exemplified
by a decline in the shared values expected in civilized states3 as
embodied in the atrocious actions by military personnel on both
sides. The first world war left almost no sanctuary of persons safe
from violent assault4 the employment of newly discovered weapons of
indiscriminate fatalities without recourse to humanitarian concerns
gave rise to increased concerns for respect of the grave breaches
regime. There were reports of grave violations and breaches of the
laws and customs of international humanitarian law on both sides of
the divide.5 One of the first concrete actions of the allies in the
achievement of the goal of repression of the violations of the laws
and customs of international 1 The Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armies in
the Field 1906. 202 CTS 144 2 Yves Sandoz, The History of The Grave
Breaches Regime. In 2009, 7, Journal of International Criminal
Justice, 665, 666 3 Ibid 4 James Willis, Prologue to Nuremberg: The
Politics of Punishing War Criminals of the First World War
Greenwood Press, 1982, West Port and London. 15-16 in Sandoz, Y.
ibid 2, 665 5 Willis, ibid 13
18. 17 humanitarian law was the establishment of The
Commission,6 which presented its final report at the Paris Peace
conference of 29 March 1919.7 Its mandate was to establish the
facts as to breaches of the laws and customs of war committed by
the forces of the German Empire and their allies on land, on sea,
and in the air, in the course of the recent war, and drew up a list
of violations that warranted criminal punishment.8 The Commission
proposed trying war criminals in national courts with the exception
of a certain category of war crime perpetuators who were to be
tried in an Adhoc high Tribunal. This endeavor didnt succeed for a
variety of reasons amongst which were; the fact that the Kaiser9
was never extradited by the Dutch, and the German delegates viewed
the treaty as an attempt by the victorious allies to force a brand
of victors justice upon them thus very few war criminals were
therefore tried. Moreover, certain Articles10 promoted by the
American delegation were not seriously implemented. The positives
from this attempt was that for the first time, a major
international peace treaty had established the principle in
international law that war crimes punishment was a proper
conclusion of peace, 6 The Commission on the Responsibility of the
Authors of the War and on Enforcement of Penalties, 1919
(hereinafter referred to as the Commission) 7 A meeting of the
Allied victors to set the peace terms for the defeated Central
Powers following the armistices of 1918. It held in Paris in 1919.
It gave birth to the Paris Peace Treaties, which eventually
reshaped the borders of Europe and created new countries. It
culminated in the Treaty of Versailles, 28 June 1919. 8 Supra Note
2, page 664; (1920) 14, American Journal of International Law
(AJIL) 95 9 Wilhelm II. Friedrich Wilhelm Viktor Albert, 27 Jan.
1859 - 4 June 1941. Last German Emperor and King of Prussia. After
his abdication on 9 Nov. 1918, he went into exile to Netherlands,
which had remained neutral throughout the war. Art. 227 of the
Treaty of Versailles expressly provided for his prosecution for a
supreme offence against international morality and the sanctity of
treaties but Queen Wilhelmina refused to extradite him even after
appeals from the Allied Powers 10 Arts. 228, 229 and 230 of the
Treaty of Versailles in note 7
19. 18 that the termination of war did not bring a general
amnesty as a matter of course.11 The experiences of the First World
War, where reservations12 by certain power blocs based on geo
political foundations, backed by hesitations led to the
establishment of institutions like the United Nations War Crimes
Commission in 1943. By 1949, four years after the adoption of the
United Nations Charter, there was a total revision of international
humanitarian law. The ICRC13 championed this by drafting a body of
laws with an eye on the experiences of the Second World War and
presented it via the Swiss government, which has come to be known
as the four Geneva Conventions, which recognized and indeed
introduced an Article 3 common to all four conventions that
provided for non-international armed conflicts. This is important
due to the fact that it was against the backdrop of an era where
the 1948 Universal Declaration of Human Rights had eroded to a
large extent the taboo of national sovereignty, many states still
remained adamant about ceding too much of their internal affairs to
international scrutiny. In 1977, two additional protocols to the
Geneva Conventions were introduced. The first, Additional Protocol
I,14 added more grave breaches to supplement the list of original
offences already contained in the four Geneva Conventions15 and
clarifies the fact that grave breaches of the 11 Willis, Supra note
4 in Sandoz, Supra note 2,671 12 There were discussions as to
whether aggression amounted to a war crime, if war crimes could be
committed against citizens of an allied nation, or even against
ones own citizens. 13 The International Committee of the Red Cross,
established in 1863 (as the committee of five) 14 The Protocol
Additional to the Geneva Conventions of 12th August 1949, and
relating to the Protection of Victims of International Armed
Conflicts (Protocol I), 8 June 1977. 1125 UNTS 3 15 Art. 11 and 85
provided for an additional list of grave breaches which confirmed
the criminal nature of violations contained in the Hague
Regulations of 1899 and 1907 Regulations (See Chapter 1, Note
10)
20. 19 Geneva Conventions and its additional Protocols are a
species of war crimes as listed under the ICC statute16 that are so
classified because of their grave nature.17 The specific language
of Additional Protocol I restricted its application to
International Armed conflicts18 and this led a delegate of the
1974-1977 Diplomatic Conference to maintain that crimes against
another person other than the enemy could only be crimes against
humanity and that this type of crimes was not treated in the
protocols19 The establishment of various Adhoc international
criminal tribunals from 1995 led international humanitarian law to
accept that serious violations of its provisions could constitute a
war crime, whether in international armed conflicts or in
non-international armed conflicts.20 The ICTY21 and ICTR22 both had
provisions23 that gave them jurisdiction to try offenders for
violations of 16 Art. 8 (2) (a) of ICC Statute 17 Sandoz, supra
note 2, 676 18 Art 11 of the Additional Protocol refers to the
protection not only of people who are in the power of the adverse
party, but also of those who are deprived liberty as a result of
the situation referred to in Article 1 also Paragraph 4 refers to
violations with respect to any person who is the power of a party
other than the one which he depends 19 Official Records of the
Diplomatic Conference on the Reaffirmation and Development of
International Humanitarian Law applicable in Armed Conflicts,
Geneva, 19741977, Vol. X, p. 127, CDDH/234/Rev.1,77, CDDH/II/SR.99
in Sandoz, supra Note 2 page 677 20 Art. 20(f) International Law
Commission of the United Nations, UN Doc. A/51/10 (1996) 21 Statute
of the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Law Committed
in the Territory of the Former Yugoslavia since 1991 (commonly
referred to as International Criminal Tribunal for the Former
Yugoslavia, ICTY) Security Council Resolution 827 of 25 May 1993.
32 ILM 1192 22 Statute of the International Criminal Tribunal for
Rwanda (ICTR) (known in French as Tribunal Penal International Pour
Le Rwanda), Security Council Resolution 955(1944) of 8 November
1994. 33 ILM 1598 23 Under the ICTY Statute, Art. 3 gives the
Tribunal powers to prosecute persons violating the laws and customs
of war including violations of the Articles 3 common to the Geneva
Conventions applicable to non-international armed conflicts. This
was the decision taken by the Appeals chamber in The Prosecutor v.
Dusko Tadic aka. Dule, ICTY, Case No. IT-94-1-A, Decision on the
Defense Motion for Interlocutory Appeal on Jurisdiction (Appeals
Chamber), 2 October 1995; whereas in the case of the ICTR Statute,
Art. 4 specifically grants the tribunal,
21. 20 offences mentioned in the Geneva Conventions and
Additional Protocol I in Additional Protocol II and Common Article
3 conflicts. The establishment of an International Criminal Court
in 1998 by the Rome Statute24 followed this same broad definition
and application of the war crimes repression regime over offences
and violations that were conventionally covered by the grave
breaches regime.25 The International Law Commission26 in defining a
war crime has also considered this modern trend in the repression
of violations of international humanitarian law.27 Under
international humanitarian law, states are enjoined to respect and
ensure the respect for the statutes of international law,28 and to
undertake to domesticate these provisions into local /municipal
penal legislations29 , which jurisdiction over violations of the
provisions of Additional Protocol II and Common Art. 3 conflicts.
24 Rome Statute of the International Criminal Court, Rome, 17 July
1998, 2187 UNTS 90 (hereinafter referred to as Rome Statute or The
ICC Statute 25 See Art. 8 (2)(a),which defines war crimes as
including grave breaches of the four Geneva Conventions. (b) Covers
war crimes that are applicable in international armed conflicts
within the established framework of international law, (c), (d) and
(e) covers acts that are serious violations in conflicts of a
non-international character and even includes acts committed
against persons taking no active part in the hostilities. 26
Established by the United Nations General Assembly Res. 174 of 21
November 1947 pursuant to Art. 13, Paragraph 1 of the UN Charter,
for the promotion of the progressive development of international
law and its codification. 27 The Report of the International Law
Commission on the work of its 48th Session (6th May to 26th July
1996) Supp. No. 10, UN Doc. A/51/10/ (1996) in Sandoz, supra note
2. The ILCs incorporated a vast violation regime into its
definition of a war crime. It included grave breaches of the four
Geneva Conventions, grave breaches listed in Art. 85 of Additional
Protocol I, violations of Art. 3, common to the four Geneva
Conventions and Art. 4 of the Additional Protocol II, all
violations of the laws and customs of war and also, violations of
Art. 35 and 55 of Additional Protocol I. 28 Art. 1 of the four
Geneva Conventions of 1949 and Additional Protocol 1 and Articles
49/50/129/146 of the four Geneva Conventions respectively. (which
all have common 1st paragraphs 29 This is an essential obligation
which extends to even peace time see Jean Pictet, Commentary IV,
Geneva Convention relative to the protection of Civilian Persons in
time of War, ICRC, Geneva 1958, 590.
22. 21 sometimes even refer to relevant provisions of
international statutes. This reference may be either dynamic or
static.30 An example of a country with a dynamic reference31 to
customary developments of the laws and customs of war included in a
domestic and municipal penal legislationis Canada. war crime means
an act or omission committed during an armed conflict that, at the
time and in the place of its commission, constitutes a war crime
according to customary international law or conventional
international law applicable to armed conflicts, whether or not it
constitutes a contravention of the law in force at the time and in
the place of its commission.32 On the other hand, the Laws of
England and Wales,33 carries static references34 to the ICC
Statute. Other examples of National legislations with domestic
references to international penal regimes are found in the
Netherlands. 30 Knut Dormann and Robin Gei', The Implementation of
Grave Breaches into Domestic Legal Orders (2009) Vol. 7, Journal of
International Criminal Justice, 703-721: Static references merely
refer to the relevant provisions of the Geneva Conventions and
Additional Protocol I, or in the case of a War Crime, to Art. 8 of
the ICC Statute whereas a Dynamic reference more than just refer to
the laws and customs of war, but would also comprise of customary
law developments. Ibid, 711 31 It would appear that this open-ended
provision would raise concerns as to an unbridled direct
application of customary international law to criminal
prosecutions, which at their time of commission had no penal
qualifications. This is evident from the Latin maxim nullum crimen
sine praevia lege. In an attempt to address this issue, several
national constitutions, and a number of international instruments
like the ICC statute, provide for a system in which crimes and
penalties are expressly set out in written law that shall only be
applied to future cases. See Art 7(1) European Convention on Human
Rights, Art. 22 and 23 of the Rome Statute of the International
Criminal Court 32 Crimes against Humanity and War Crimes Act 2000,
24 June
2000,http://www.canlii.org/en/ca/laws/stat/sc-2000-c-24/latest/sc-2000-c-24.html
accessed on 14 January 2013 33
http://.www.legislation.gov.uk/ukpga/2001/17/contents accessed on
14 January 2013 34 Sect. 50(1) war crime means a war crime as
defined in Article 8.2 [of the ICC Statute] and Art. 51(1). It is
an offence against the law of England and Wales for a person to
commit genocide, a crime against humanity or a war crime
23. 22 Under war crimes are understood acts, which constitute a
violation of the laws and usages of war committed in wartime by
subjects of an enemy power or by foreigners in the service of the
enemy35 There are a vast number of states36 that do not see the
need to implement specific legislations to incorporate the grave
breaches repression into their domestic penal regimes. 2.2 Classes
of Grave Breaches and War Crimes Violations of International
Humanitarian Law may be a grave breach of the Geneva Conventions
and Additional Protocol I (applicable only in international armed
conflicts) or a war crime (applicable in either an international
armed conflict or a non-international armed conflict).
International humanitarian law is the source of most war crimes
law. This is also reflected in customary international law. In this
section, the grave breaches provisions of the Geneva Conventions
will be of relevance. In addition, a number of international
humanitarian law violations that have been criminalized37 under
customary international law will be considered. This is the list of
violations contained in the Geneva Conventions regime GC138 Art.
50. Grave breaches to which the preceding Article relates shall be
those involving any of the following acts, if committed against
persons or property protected by the Convention: wilful killing,
torture or inhuman treatment, including biological 35 Art. 1,
Netherlands, the Definition of War Crimes Decree, 1946. In
http://.www.icrc.org/customary- ihl/eng/v2_cou_nl_rule156 accessed
7/1/2013 36 Dormann, and Gei. Supra Note 30, page 714. Turkey,
France, Israel and Austria 37 Art. 5(1)(c) of the Rome Statue of
the International Criminal Court gives the ICC jurisdiction over
war crimes including the grave breaches of the Geneva Conventions.
38 The Geneva Convention (I) for the Amelioration of the Condition
of the Wounded and Sick in Armies in the Field 1906. 202 CTS
144
24. 23 experiments, wilfully causing great suffering or serious
injury to body or health, and extensive destruction and
appropriation of property, not justified by military necessity and
carried out unlawfully and wantonly. GCII39 Art 51. Grave breaches
to which the preceding Article relates shall be those involving any
of the following acts, if committed against persons or property
protected by the Convention: wilful killing, torture or inhuman
treatment, including biological experiments, wilfully causing great
suffering or serious injury to body or health, and extensive
destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly. GCIII40
Art. 130. Grave breaches to which the preceding Article relates
shall be those involving any of the following acts, if committed
against persons or property protected by the Convention: wilful
killing, torture or inhuman treatment, including biological
experiments, wilfully causing great suffering or serious injury to
body or health, compelling a prisoner of war to serve in the forces
of the hostile Power, or wilfully depriving a prisoner of war of
the rights of fair and regular trial prescribed in this Convention.
39 The Geneva Convention (II) for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.
Geneva, 12 August 1949. 6 UST 3217, 75 UNTS 85 40 The Geneva
Convention (III) Relative to the Treatment of Prisoners of War.
Geneva, 12 August 1949. 6 UST 3316, 75 UNTS 135
25. 24 GCIV41 Art. 147. Grave breaches to which the preceding
Article relates shall be those involving any of the following acts,
if committed against persons or property protected by the
Convention: wilful killing, torture or inhuman treatment, including
biological experiments, wilfully causing great suffering or serious
injury to body or health, unlawful deportation or transfer or
unlawful confinement of a protected person, compelling a protected
person to serve in the armed forces of a hostile power or willfully
depriving a protected person of the rights of fair and regular
trial prescribed in the present Convention, taking of hostages and
extensive destruction and appropriation of property, not justified
by military necessity and carried out unlawfully and wantonly. AP
I42 Art. 11. Any wilful act or omission which seriously endangers
the physical or mental health or integrity of any person who is in
the power of a Party other than the one on which he depends and
which either violates any of the prohibitions in paragraphs 1 and 2
or fails to comply with the requirements of paragraph 3 shall be a
grave breach of this Protocol. Art. 85. (2) Acts described as grave
breaches in the Conventions are grave breaches of this Protocol if
committed against persons in the power of an adverse Party
protected by Articles 44, 45 and 73 of this Protocol, or against
the wounded, 41 The Geneva Convention (IV) relative to the
Protection of Civilian Persons in Time of War. Geneva, 12 August
1949. 6 UST 3516, 75 UNTS 287 42 AP I, supra Note 14 (The Protocol
Additional to the Geneva Conventions of 12th August 1949, and
relating to the Protection of Victims of International Armed
Conflicts (Protocol I), 8 June 1977. 1125 UNTS 3
26. 25 sick and shipwrecked of the adverse Party who are
protected by this Protocol, or against those medical or religious
personnel, medical units or medical transports which are under the
control of the adverse Party and are protected by this Protocol.
(3) In addition to the grave breaches defined in Article 11, the
following acts shall be regarded as grave breaches of this
Protocol, when committed wilfully, in violation of the relevant
provisions of this Protocol, and causing death or serious injury to
body or health: (a) making the civilian population or individual
civilians the object of attack; (b) launching an indiscriminate
attack affecting the civilian population or civilian objects in the
knowledge that such attack will cause excessive loss of life,
injury to civilians or damage to civilian objects, as defined in
Article 57, paragraph 2(a)(iii); (c) launching an attack against
works or installations containing dangerous forces in the knowledge
that such attack will cause excessive loss of life, injury to
civilians or damage to civilian objects, as defined in Article 57,
paragraph 2(a)(iii); (d) making non-defended localities and
demilitarized zones the object of attack: (e) making a person the
object of attack in the knowledge that he is hors de combat; (f)
the perfidious use, in violation of Article 37, of the distinctive
emblem of the red cross, red crescent or red lion and sun or
of
27. 26 other protective signs recognized by the Conventions or
this Protocol. (4.) In addition to the grave breaches defined in
the preceding paragraphs and in the Conventions, the following
shall be regarded as grave breaches of this Protocol, when
committed wilfully and in violation of the Conventions or the
Protocol: (a) the transfer by the Occupying Power of parts of its
own civilian population into the territory it occupies, or the
deportation or transfer of all or parts of the population of the
occupied territory within or outside this territory, in violation
of Article 49 of the Fourth Convention; (b) unjustifiable delay in
the repatriation of prisoners of war or civilians; (c) practices of
apartheid and other inhuman and degrading practices involving
outrages upon personal dignity, based on racial discrimination; (d)
making the clearly recognized historic monuments, works of art or
places of worship which constitute the cultural or spiritual
heritage of peoples and to which special protection has been given
by special arrangement, for example, within the framework of a
competent international organization, the object of attack, causing
as a result extensive destruction thereof, where there is no
evidence of the violation by the adverse Party of Article 53,
sub-paragraph (b), and when such historic monuments, works of
28. 27 art and places of worship are not located in the
immediate proximity of military objectives; (e) depriving a person
protected by the Conventions or referred to in paragraph 2 of this
Article of the rights of fair and regular trial. By their express
definitions, the following offences are classified as a grave
breach by the Geneva Conventions and as such applicable in
international armed conflicts: Wilful killing, inhuman treatment,
willfully causing great suffering and injury, extensive destruction
of property, compelling military service with hostile forces,
deprivation of fair trial, deportation and enforced transfer. The
following, are offences committed against protected persons,
civilians, persons no longer taking active part in hostilities,
persons detained or interned for reasons related to the conflict,
prisoners of war, protected persons in occupied territory, the
civilian population, individual persons not taking direct part in
hostilities or persons in general. They are classified as serious
violations and are applicable in international and
non-international armed conflicts. Jurisdiction over these
violations is also found in laws establishing adhoc criminal
tribunals like the ICC: Torture, taking of hostages, confinement of
civilians, cruel treatment, murder, violence to life and person,
outrages upon personal dignity, rape, wanton destruction, plunder
and pillaging, seizure and destruction of protected structures,
unlawful attack on civilians, unlawful labor, and slavery,
terrorizing the civilian population, conscripting and enlisting
child soldiers, mutilation, sexual slavery, forced marriage and
other gender based violence.
29. 28 Under the ICC regime, there are four distinct categories
of war crimes: Firstly, it recognizes the grave breaches regime
under the four Geneva Conventions as elucidated above; secondly, it
recognizes a class of violations of laws and customs of war derived
from various other sources;43 Thirdly, it also introduces a
category of serious violations of the Art. 3 common to the Geneva
Conventions, which applies to non-international, armed conflicts.44
The last category is violations of the laws and customs applicable
in armed conflicts not of an international character. The ICC
statute sourced this last category of violations from sources45
unlike the other categories and they in fact mirror those crimes
applicable in international armed conflicts. 2.2 The Elements of a
Grave Breach As noted earlier, it is a settled fact of customary
international law that individual criminal responsibility is a
direct effect of a violation of the provisions of the grave
breaches regime. Both the ICC and various adhoc international
criminal tribunals like the ICTY have jurisdiction to try these and
other violations of the laws and customs of war and have thus
incorporated the 43 1. The Hague Convention IV Respecting the Laws
and Customs of War on Land, 18 October 1907. 36 Stat 2277 , 2. AP I
supra note 14, 3. The Hague Declaration (IV, 3) concerning
Expanding Bullets, 1899, and 4. The Protocol for the Prohibition of
the Use of Asphyxiating, Poisonous or Other Gases, and of
Bacteriological Methods of Warfare, Geneva 17 June 1925 (Geneva Gas
Protocol) R & G 157 240 44 These are prohibitions against acts
like violence to life and person, in particular, murder of all
kinds, mutilations, cruel treatment and torture. 45 The Hague
Regulations, 1907 (see Chapter 1, Note 10) and The Protocol
Additional to the Geneva Conventions of 12 August 1949, relating to
the Protection of Victims of Non- International Armed Conflicts
(Protocol II), Geneva 8 August 1977. 1125 UNTS 3
30. 29 grave breaches regime of the Geneva Conventions into
their statutes authorizing the prosecution of war criminals. The
ICTY listed the grave breaches as:46 i. Willful killing ii. Torture
iii. Inhuman treatment iv. Biological experiments v. Willfully
causing great suffering vi. Destruction and appropriation of
property vii. Compelling service in a hostile force viii. Denial of
fair trial ix. Unlawful deportation and transfer x. Unlawful
confinement xi. Taking of hostages The ICTY has held that an armed
conflict exists whenever there is a resort to armed force between
states. In addition, it held that international humanitarian law
applies from the initiation of such armed conflicts and extends
beyond the cessation of hostilities until a general conclusion of
peace is reached; until that moment, international humanitarian law
continues to apply in the whole territory of the warring states
whether or not actual combat takes place there.47 In addition, the
assembly of states, parties to the Rome Statute of the ICC adopted
certain elements to be proven for individual grave 46 Art. 2, ICTY
Statute 47 accessed on January 15, 2013,
www.fafo.no/liabilities/part_II-3war-crim2.html
31. 30 breaches48 . These elements49 are common to all of the
grave breaches of the Geneva Conventions and Additional Protocol I.
i. The victim(s) must qualify as protected persons under any or all
of the Geneva Conventions. ii. The perpetuator was aware of the
facts that established that protected status of the victim(s). iii.
The conduct that established the violation or breach was carried
out or associated with an armed conflict of an international
character. iv. The perpetuator was aware of the facts that
established the existence of an armed conflict. The rules governing
both forms of conflict are different and so also does the standard
of proof of these violations. This reality has reflected one major
problem of the grave breaches regime; Experts like Dieter Fleck50
have opined that the Geneva Conventions have stressed the
obligation of States to provide penal laws and a repression regime
for the various grave breaches in the Conventions.51 In addition to
that, there also existed a sort of Universal Jurisdiction over
these violations.52 Due to the shortcomings of the applicability of
the grave breaches regime, which affects whether or not a conflict
was an 48 The International Criminal Court; Elements of Crimes,
ICC-PIDSLT-03-002/11_Eng, 2011 49 (ii) and (iv) are mental elements
and derived from Arts. 30 and 32 of the Rome Statute of the ICC.
(iv) also does not require any legal evaluation by the perpetuator,
only an awareness that an armed conflict had been established will
suffice. 50 Dieter Fleck. Shortcomings of the Grave Breaches Regime
(2009) 7, Journal of International Criminal Justice. 833-854 page
835 51 Art. 49 (1) GC I, Art.50 (1) GC II; Art.129 (1) GC III; Art.
146 (1) GC IV; see Jean Pictet (ed.), The Geneva Conventions of 12
August 1949: Commentary (Geneva: ICRC, Vol. I 1952, Vol. II 1960,
Vol. III 1960, Vol. IV 1958). 52 Art. 49 (2) GC I; Art. 50 (2) GC
II; Art. 129 (2) GC III; Art. 146 (2) GC IV.
32. 31 international armed conflict or a non-international
armed conflict, International Criminal Tribunals now assumed
jurisdiction over not just a geographical portion of the grave
breaches regime, but over subject matters such as jurisdiction over
serious violations of international humanitarian law. These
includes grave breaches of the conventions, violations of the laws
and customs of was, genocide and crimes against humanity.53 2.3 The
Elements of a War Crime under the Statutes of International
Criminal Tribunals A violation must entail under international
humanitarian law, an individual criminal responsibility for the
person breaching the rule. For the purpose of emphasis,
international criminal tribunals base their penal regimes on the
violations prohibited in the Grave Breaches provisions of the four
Geneva Conventions and Additional Protocol I (that may apply in
international armed conflict; common article 354 of the four Geneva
Conventions; and other serious violations of international
humanitarian law that apply either in international or
non-international armed conflicts. For emphasis, this paper will
limit itself to the ICTR, the ICC and most especially, the ICTY.
ICTY Statute, Article 2 contains the Grave Breaches of the Geneva
Conventions of 1949. 53 Arts. 2-5 of the ICTY Statute. No reference
to AP I and II was made in the ICC Statute 54 Tadic, supra note 23,
102. The ICTY has held that Common Article 3 has set forth a
minimum standard applicable to a conflict, whether international or
not and thus gives rise to criminal responsibility.
33. 32 The International Tribunal shall have the power to
prosecute persons committing or ordering to be committed grave
breaches of the Geneva Conventions of 12 August 1949, namely the
following acts against persons or property protected under the
provisions of the relevant Geneva Conventions: (a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or
health; (d) extensive destruction and appropriation of property,
not justified by military necessity and carried out unlawfully and
wantonly; (e) compelling a prisoner of war or a civilian to serve
in the forces of a hostile power; (f) wilfully depriving a prisoner
of war or a civilian of the rights of fair and regular trial; (g)
unlawful deportation or transfer or unlawful confinement of a
civilian; (h) taking civilians as hostages. ICTY Statute Article 3:
Contains violations of the laws or customs of war The International
Tribunal shall have the power to prosecute persons violating the
laws or customs of war. Such violations shall include, but not be
limited to: (a) employment of poisonous weapons or other weapons
calculated to cause unnecessary suffering; (b) wanton destruction
of cities, towns or villages, or devastation not justified by
military necessity;
34. 33 (c) attack, or bombardment, by whatever means, of
undefended towns, villages, dwellings, or buildings; (d) seizure
of, destruction or wilful damage done to institutions dedicated to
religion, charity and education, the arts and sciences, historic
monuments and works of art and science; (e) plunder of public or
private property. The ICTY statute has a residual effect in that it
covers violations not even listed in the statute establishing the
court.55 The ICTR Statute also has a non-exhaustive list of crimes
based on violations of Common Article 3 and Additional Protocol
II56 (this in itself a reflection of the UN Security Councils
impression that the 1994 Rwandan genocide was within the definition
of a non-international armed conflict. The ICC has a wide
jurisdiction57 over Grave Breaches violations, serious violations
of laws and customs of international armed conflict, serious
violations of common article 3 committed in a non-international
armed conflict and serious violations of the laws and customs of
non-international armed conflict. 2.3.1 Special Elements Under the
ICTY, for a conduct to be considered as a war crime either under
Art. 2 or Art 3, the court must establish the following: 55
Offences under Art. 2 of the ICTY Statute can only be charged if
the prosecution alleges an international armed conflict whilst
offences under Art. 3 can be charged regardless of the nature of
the conflict and also gives the ICTY jurisdiction over offences
listed therein and not covered by Arts. 2, 4 and 5 56 The Protocol
Additional to the Geneva Conventions of 12th August 1949, and
relating to the Protection of Victims of Non-International Armed
Conflicts (Protocol II), 8 June 1977. 1125 UNTS 609; Art. 4, ICTR
Statute 57 Art. 8, ICC Statute.
35. 34 i. That the violation constitutes an infringement of the
rules of international humanitarian law. ii. That the rule violated
is a customary rule, if it is based on a treaty, then all required
conditions are met. iii. That the violation is serious, constitutes
a breach of a rule protecting important values and involves grave
consequences for the victims. iv. The violation of the said rule
entails, whether under customary or conventional law, individual
criminal responsibility of the person breaching the rule.58 The
following elements must be established for an offence to be subject
to the prosecution as a grave breach under Article 2 of the ICTY
statute: i. The existence of an armed conflict ii. The armed
conflict must be of an international character iii. There must
exist a nexus between the alleged violation and the armed conflict
in question. iv. The victim(s) of the alleged crime(s) is/are
protected persons under the Geneva Conventions59 Offences under
Article 3 of the ICTY Statute require a determination as to whether
a state of armed conflict existed at the time of the commission of
the alleged violation and the existence of a nexus between the
alleged violations and the armed conflict.60 For charges brought
under Common Article 3 of the 58 Module 8, International Criminal
Law & Practice Training Materials, International Criminal Law
Services,
8.2.5.www.wcjp.unicri.it/deliverables/docs/Module_8_War_crimes.pdf
accessed on the 25 January 2013 59 Radoslav Brdanin, Case No.
IT-99-36-T, Trial Judgement, 121: Mladen Naletic et al., Case No.
IT-98-34-T, Trial Judgement, 31st March 2003, 176 60 Vujan Popovic
et al, Case No. IT-05-88-T, Trial Judgement, 739; Ante Gotovina et
al., Case No. IT-06-90-T, Trial Judgment 15 April 2011, 1673
36. 35 Geneva Convention, the prosecution must show the
victim(s) are not taking an active part in the hostilities at the
time of the alleged crime. In addition, that the perpetrator knew
or had reason to know that the victim(s) was not taking active part
in the hostilities at the time of the alleged violation.61 2.4
General Requirements for the Proof of War Crimes62 i. Armed
Conflict: there must exist an armed conflict where and when the
alleged violations were committed.63 ii. Protected Persons:64 the
victim(s) must be a protected person. iii. Nexus65 : there must
exist, a sufficient nexus between the criminal acts of the
perpetuator and armed conflict66 in question. iv. Existing
International Humanitarian Law: the alleged criminal act must be a
serious67 violation of the law and customs of IHL. v. Gravity of
the crime: the violation alleged must be of a serious nature to
involve grave consequences for the victim(s) 61 Popovic et al,
ibid, 743, Gotovina et al, ibid, 1673, Ljube Boskoski, Case No.
IT-04-82-T, Appeal Judgment, 19 May 2010, 66 62 Tadic, supra note
23, 94 63 Ibid, 70, 75 and Art. 6, GCIV 64 Will be discussed in
Chapter 3 65 Not all crimes during an armed conflict or state
occupation are necessarily war crimes. There has to be a close
relationship between the crime in itself, and the particular armed
conflict. Tadic, supra note 23, 70. The ICC standard is that the
conduct took place in the context of and associated with the armed
conflict. ICC 66 ICC Elements of Crimes, Art.8(2)(a)-1. The armed
conflict in this case, does not need to have caused the commission
of the crime, the prosecution has to just prove that the conflict
played a substantial part in the perpetuators ability to commit it,
his decision to commit it, the manner in which it was committed or
the purpose for which it was committed ICC Elements of Crimes, Art.
8(2)(a)-1 67 Tadic, supra note 23, An IHL violation is serious if
it constitutes a beach of a rule protecting important values, and
the breach must involve grave consequences for the victim
37. 36 vi. Individual Criminal Responsibility:68 the violation
must entail individual criminal responsibility for the perpetuator
allegedly breaching the rule vii. Awareness: in most cases, it is
necessary to prove that the perpetuator was aware that an armed
conflict existed. Under the Rome Statute of the ICC, Art. 8 state
that war crimes must be committed in the context of and associated
with an armed conflict. The requirements for the proof of elements
of a war crime under Art. 8 of the ICC Statute are:69 i. The
conduct took place in the context of and was associated with an
armed conflict (depending on the crime, either of an international
or of an non-international character) ii. The perpetrator was aware
of the factual circumstances that established the existence of an
armed conflict. For crimes against protected persons, the following
requirements have to be met: i. The victim or victims were
protected under one or more of the Geneva Conventions of 1949; ii.
The perpetrator was aware of the factual circumstances that
established protected status. 68 Ibid, 128-129 69 ICC Elements of
Crimes, Supra note 126, 8(2)(a)(i)-5, Jean-Pierre Bemba Gombo, Case
No.ICC-01/05-01/08-424, Decision pursuant to Art. 61(7)(a) and (b)
of the Rome Statute, Pre- Trial Chambers, 15 June 2009, 238
38. 37 A major difference between both violation requirements
is that the ICTY does not require the prosecution to prove that war
crimes were committed as part of a plan, policy or large scale
commission of such crimes.70 2.4.1 Specific Elements of Individual
War Crimes71 This set of crimes are also considered as grave
breaches under the Geneva Conventions when their commission meets
the criteria set out in the seven general elements discussed above.
i. Willful Killing72 This grave breach of the Conventions and
Additional Protocol I is the same in meaning as the phrase murder
of all kinds referred to in Art. 3 common to the four Geneva
Conventions. They are synonymous and have the same definitional
elements.73 The elements are a. The victim(s) is/are dead b. An act
or inaction of the perpetuator, or of a person(s) whose actions or
inactions, the perpetuator bears criminal responsibility, caused o
substantially contributed to the death 70 Robert Cryer. et al., An
Introduction to International Criminal Law and Procedure 288 (2nd
ed. 2010) in International Criminal Law & Practice Training
Materials, Supra note 58, paragraph 8.3 71 The ICTYs Jurisprudence
has developed considerably through the many judgments and case law;
it will provide the backdrop upon which these individual criminal
elements will be drawn. Reference shall be made to the limited case
law from the ICC. 72 Art. 32, 147 GC IV, Art. 8(2)(a)(i) ICC
Statute, Art.2(a) ICTY Statute, Art.8(2)(a) ICC Elements of
Statutes. 73 Prosecutor v Delalic et al, Case No. IT-96-21-T,
Judgment (The Celebici Judgment), 16 Nov. 1998, 420-439
39. 38 c. The act was carried out, or the inaction was
committed with an intention to kill or to inflict grievous bodily
harm or injury with the reasonable knowledge that the action or
inaction was likely to cause death. If the killing is to be charged
as a grave breach, the ICTY appeals chamber has held that the
additional requirement that the victim(s) was a protected person at
the time of the killing must be proved.74 The Mens Rea content is
that the perpetrator intended to cause grievous bodily injury
which, as it is reasonable to assume, he had to understand was
likely to lead to death75 ii. Torture76 This grave breach retains
the same characteristics as torture under Common Article 3.77 Its
elements are: a. The infliction, by act or omission, of severe pain
or suffering, whether physical or mental b. The act or inaction
must be intentional c. The action or inaction must be aimed at
obtaining information or confession, or eliciting punishment,
intimidation or coercion of the 74 Dario Kordic et al., Case No.
IT-95-14/2-T, Trial Judgment, 38 75 Ibid 36 76 Art. 32, 147 GC IV,
Art. 8(2)(a)(ii) ICC Statute, Art. 2(b) ICTY Statute 77 Celibici,
supra note 73, 494
40. 39 victim(s) or a third person; or aimed at discrimination,
on any ground, the victim(s) or a third person.78 d. There is also
the inference that such an act or omission being committed by, or
at the instigation of or with the consent or acquiescence of, an
official or other person acting in an official capacity.79 The ICTY
has also confirmed that discrimination on basis of gender could be
subsumed under the war crime of torture.80 Under the ICC regime,
the elements of torture are: a. That the perpetrator inflicted
severe physical and mental pain or suffering upon one or more
persons b. That the perpetrator inflicted the pain or suffering for
such purposes as obtaining; information or a confession,
punishment, intimidation or coercion or for any reason based on
discrimination of any kind.81 iii. Inhumane Treatment or Cruel
Treatment82 This is treatment is not humane.83 It is an intentional
act or omission, which causes serious mental harm or physical
suffering or injury or constitutes a serious attack on human
dignity or if committed against a protected person.84 78 Ramush
Haradinaj et al., Case No.IT-02-54-T, Trial Judgment, 3 April 2008,
290; Kunarac, supra note 127, 142-148; Milan Martic, Case No.
IT-95-11-A, Appeal Judgment, 8 Oct 2008, 78 79 Celibici, supra note
73, 494 80 Ibid, 941 81 Art. 8(2)(a)(iii)-1 ICC Elements of Crimes,
ICC Statutes 82 Art. 119 and 147 GC IV; Art. 8(2)(a)(iii) ICC
Statute, Art. 2(b) ICTY Statute
41. 40 The amount of physical or mental suffering required to
prove this crime is lower than that required by a torture charge
but on the same level with that required for willfully causing
great suffering or serious injury to body and health.85 Inhumane
and cruel treatment covers the following reprehensible practices:
a. The use of human shields86 b. The use of force labor87 c. Poor
prison camp conditions and 88 d. Bombardment of a civilian town 89
Materially, the elements that make up both offences are the same,90
but the distinguishing factor for the Common Article 3 alternative
offense of cruel treatment, is that the victim(s) is a person
taking no active part in hostilities 91 83 Celibici, supra note 73,
515-520 84 Ibid, 426 85 Naletilic, see note 59, 246 86 Prosecution
v Blaskic, Case no. IT-95-14, Judgment, 3 March 2000, 653, 669 87
Ibid 590-597 88 Fatmir Linaj, Case No. IT-03-66-T, trial Judgement,
30 Nov. 2005, 288-289 89 Pavel Strugar, Case No.IT-01-42-T, Appeal
Judgement, 17 July 2008, 264, 268-272, 275-276 90 Naletilic, see
note 59, 246; Naser Oric, Case No. IT-03-68-T, Trial Judgment, 30
June 2006, 350 91 Celebici, supra not 73, 424; Naletilic, ibid,
246
42. 41 iv. Willfully Causing Great Suffering Or Serious Injury
To Body92 The elements of this grave breach are: a. The intentional
act or omission that causes great mental or physical suffering or
serious injury to body or health, including mental health b. The
act or omission was committed against a protected person.93 The
ICTY has defined suffering to include moral suffering, mental
suffering as well as physical suffering.94 The inclusion of the
words great and serious entail the requirement of a particular act
of mistreatment that causes suffering or injury of the desired
level of seriousness. Serious harm involves the causation of harm
that goes beyond a temporary feeling of unhappiness, embarrassment
or humiliation.95 The harm complained about must be examined by
unique case by case analysis with an emphasis on prevailing
circumstances96 , such that it results in a grave long term
disadvantage to the victim(s) ability to lead a normal and
constructive life97 The ICC elements98 are that the perpetrator
caused great mental or physical pain or suffering to, or serious
injury to body or health of, one or more persons. 92 Art. 147, GC
IV; Art.2(c), ICTY Statute; Art.8(2)(a)(iii) ICC Statute. 93
Naletilic, supra note 59, 339; Celebici supra note 73, 424, 507,
509 94 Celebici, ibid, 507, 509 95 Radoslav Krstic, Case No.
IT-98-33-T, Trial Judgment, 2 Aug 2001, 513 96 Naletilic, supra
note 59, 342-343 97 Krstic, supra note 95, 513. 98 Art.
8(2)(a)(iii) of the ICC Elements
43. 42 v. Extensive Destruction and Appropriation of Property99
The commentary100 to the Geneva Conventions states that this
violation covers other different violations. Hence the violation of
any property located in an occupied territory protected by Art.
53101 will be charged with committing this offence. The
appropriation must not be an isolated incident, so must be
extensive to qualify as a grave breach.102 The ICTY, held that to
constitute a grave breach, the destruction unjustified by military
necessity must be extensive, unlawful and wanton. And further noted
that the key word; extensive should be evaluated according to the
facts of the case a single act, such as the destruction of a
hospital, may suffice to characterize an offence under this
count103 The ICC elements are that:104 a. The Perpetuator destroyed
or appropriated certain property b. The destruction or
appropriation of the property was not justified by military
necessity c. The destruction or appropriation of the property was
extensive and carried out wantonly 99 Art 33 (which provides for
pillage), 53 (which prohibits destruction) and 147, GC IV; Art.
8(2)(a)(iv), ICC Statute; Art. 2(d), ICTY Statute. 100 Pictet,
supra note 51, 601 101 GCIV which prohibits the destruction of real
or personal property from destruction except same is required by
military necessity 102 Art 147, GCIV 103 Blaskic, Supra note 86,
157 104 Art. 8(2)(a)(iv), ICC Elements.
44. 43 vi. Compelling A Prisoner of War (or a Civilian) to
Serve in the Forces of a Hostile Power105 This includes forcing one
or more protected persons, actively or by inferred threat, to take
part in military operations against ones own country or forces, or
otherwise serve in the forces of a universal power. 106 vii.
Willfully Depriving a Prisoner of War or a Civilian of the Rights
of Fair And Regular Trial107 Pictet108 stated that the Geneva
Convention establishes a number of conditions under which protected
persons may be tried in court. He noted that a violation of these
conditions would amount to denial of trial. The ICC element is that
the perpetrator deprived one or more persons of a fair and regular
trial by denying them judicial guarantees as defined by the fourth
Geneva Convention.109 viii. Unlawful Deportation110 The Additional
Protocols111 also prohibit this grave breach of the Geneva
Conventions. Customary IHL and its related Treaties also prohibit
105 Art. 147, GCIV; Art.23, Hague Convention IV; Art.8(2)(a)(v),
ICC Statute; Art. 2(e), ICTY Statute 106 Art. 8(2)(a)(v)(1) and
(2), ICC Elements. 107 Art. 64-75, 147 GCIV; Art. 8(2)(a)(vi) ICC
Statute; Art. 2(f) ICTY Statute 108 Pictet, supra note 15, 600 109
Art. 8(2)(a)(vi), ICC Elements. 110 Art. 45, 49 and 147 GCIV; At.
8(2)(a)(vii), ICC Statute; Art. 2(g), ICTY Statute 111 Art. 85, AP
I and Art. 77, AP II
45. 44 unlawful112 forced movements within the context of armed
conflicts of whatever character. For the displacement to be
unlawful the victim(s) must have been transported across a national
border, while forcible transfer would entail a displacement within
a national territory,113 a motivation based on security needs of
the general population or military necessity notwithstanding. The
mens rea for the deportation is that the perpetrator intended to
displace the victim(s) across a national border or within the
national border as the case may be,114 irrespective of the
duration, the perpetrator intended the displacement to be.115 The
ICC elements follow the trend above; that the perpetuator deported
or transferred one or more persons to another state or location.116
ix. Unlawful Confinement117 Confinement is considered unlawful
when:118 a. There are no reasonable grounds to believe the
detention was absolutely necessary for security reasons. I.
Detention of civilians without reasonable grounds to believe that
it furnishes the security of the detaining power any benefit. 112
Art. 42 GC IV provided for lawful 113 Naletilic, supra note 59,
519-521 114 Ibid 115 Milomir Stakic, Case No. IT-97-24-A, Appeal
Judgment, 22 March 2006, 317 116 Art. 8(2)(s)(vii), ICC Elements.
117 Art. 41-43, 78 and 147, GCIV; Art. 8(2)(a)(vii), ICC Statute;
Art. 2(g), ICTY Statute 118 Kordic, supra note 74, 73; Celebici,
supra note 73, 320-322, 330
46. 45 II. The fact that a person is a national of or aligned
with the national of an enemy country does not make him a threat to
peace and security of the opposing state, hence not a valid basis
for detention. III. To qualify as lawful confinement, there must be
an assessment that each civilian taken into detention posed a
particular risk to the security of the detaining power.119 b. Where
procedural safeguards set by the Geneva Conventions are not
complied with regarding detained civilians, even when their initial
detention may have been justified. The Geneva Conventions120
provides that an appropriate forum must reconsider such decisions
with regards to detentions of this nature as soon as possible. Such
reasonable time being the minimum time necessary to make such
enquiries to determine whether the detainees posed a security risk
upon grounds of definite suspicion as the type referred to in the
Geneva Conventions.121 It is not necessary to establish a fore
knowledge of initial unlawful detention, because, the onus or
obligation to afford procedural guarantees applies to all
detainees, whether they were initially lawfully detained or not.122
Where a person who has authority to release detainees knows that
persons in continued detention have a right to review of their
detention and that they have not been afforded that right, he has a
119 Celebici, ibid 73 120 Art 43, GCIV 121 Art 5, GCIV 122
Celebici, supra note 73; 327, 380
47. 46 duty to release them. Therefore, failure by a person
with such authority to exercise the power to release detainees,
whom he knows have not been afforded the procedural rights to which
they are entitled, commits the offence of unlawful confinement of
civilians, even if he is not responsible himself for the failure to
have their procedural rights respected.123 The ICC elements are
that perpetrator confined or continued to confine one o more
persons to a certain location124 x. Taking of Hostages125 The ICTY
has defined a hostage as persons unlawfully126 deprived of their
freedom, often arbitrarily and sometimes under threat of death127 .
The elements are that: a. The detention must be unlawful b. At the
time of the supposed detention, the alleged censurable act was
perpetuated in order to obtain a concession or gain an
advantage.128 The ICC elements are that a. The perpetrator seized,
detained or otherwise held hostage one or more persons. b. The
perpetrator threatened to kill, injure or continue to detain such
person(s) 123 Ibid, 379 124 Art.8(2)(a)(vii), ICC Elements. 125
Art. 41-43, 78 and 147 GCIV; Art. 2(h), ICTY Statute; Art.
8(2)(a)(viii), ICC Statute 126 The issue of whether or not the term
unlawfully was decided in Radovan Karadzic, Case No. IT-95-5/18-T,
Decision on the Accuseds Application for Binding Order Pursuant to
Rule 54 bis, 19 May 2012, 23-26. In Blaskic, Supra Note 166, 158;
the ICTY stated that an example of a lawful detention would be
detention intended to protect the targeted civilians. 127 Blaskic,
supra note 86, 158, 187 128 Ibid, 158
48. 47 c. The perpetrator intended to compel a State, an
international organization, a natural person or a group of person
to act or refrain from acting as an explicit or implicit condition
for the safety of or the release of such person or persons. 129 129
Art. 8(2)(a)(viii) ICC Elements of Crime
49. 48 CHAPTER THREE APPLICABILITY OF THE GRAVE BREACHES REGIME
TO INTERNAL ARMED CONFLICTS. 3.1 Background to Applicability In
Tadic, the ICTY affirmed the definition of a non-international
armed conflict1 whilst an international armed conflict usually
refers to an inter-state conflict. Common Article 2 of the 1949
Geneva Conventions states that: In addition to the provisions which
shall be implemented in peace-time, the present Convention shall
apply to all cases of declared war or of any other armed conflict
which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total
occupation2 of the territory of a High Contracting Party, even if
the said occupation meets with no armed resistance. The ICRC
commentary on the provision explains that: Any difference arising
between two States and leading to the intervention of members of
the armed forces is an armed conflict within the meaning of Article
2, even if one of the Parties denies the existence of a state of
war. It makes no difference how long the conflict lasts, or how
much slaughter takes place. The respect due to the human person as
such is not measured by the number of victims.3 1 Re. Tadic, Case
No. IT-94-1-AR72, Judgment, 15 July 1995, 70 2 Art. 1(4), AP I;
conflicts shall also be qualified as international when they occur
between a State which is a party to the Protocol and an authority
representing a people engaged in a struggle "against colonial
domination and foreign occupation and against the racist regimes in
the exercise of the right of peoples to self-determination" 3
Claude Pilloy, Yves Sandoz, Bruno Zimmermann, ICRC. Commentary on
the Additional Protocols: of 8 June 1977 to the Geneva Conventions
of 12 August 1949. Martinus Nijhoff Publishers, 1987 pp. 2021
50. 49 This state of affairs is due to one major reason; simply
because, as Moir aptly put it: International law has historically
been more concerned with the regulation of international, rather
than internal, armed conflict. As an integral part of this regime,
aimed specifically at the violation of particular rules relating to
international armed conflict, the grave breaches provisions of the
Geneva Conventions and Additional Protocol I have no apparent
relevance to internal armed conflict 4 There was no conventional
regulation of internal armed conflicts except one article that was
common to the four conventions.5 This is irrespective of the fact
that in 1977, two additional protocols expanded the scope of
protection that could be elicited from the Conventions. The
situation affecting internal armed conflicts was altered by the
expansion of the provisions of the Conventions to include a
category of armed conflict that would be subject to the rules of
international humanitarian law.6 These new protocols even showed
the lack of comprehension of a concept of the grave breaches
regimes, having any role to play other than during international
conflicts. For example, AP I7 had a list of grave breaches to be
repressed during international armed conflicts, AP II contained no
penal enforcement provisions. In spite of the foregoing, it can be
argued that the grave breaches regime of the Geneva Conventions
aimed at the effective enforcement of 4 Lindsay Moir. Grave
Breaches and Internal Armed Conflicts (2009), 7, Journal of
International Criminal Justice, 763-787 5 Ibid, 763-764; Art. 3,
which were common to the four Geneva Conventions, only imposed a
basic obligation on parties of the convention in an internal armed
conflict to respect the most fundamental humanitarian principles of
the Conventions. In effect, making it a mini convention of sorts. 6
Art. 1(4) AP I; armed conflicts in which peoples are fighting
against colonial domination and alien occupation and against racist
regimes in the exercise of their right of self-determination. 7
Art. 11 and 85, AP I
51. 50 international humanitarian law (and particularly with
respect to the most serious violations of the laws of war), has
exerted significant influence on the development of a legal system
which also imposes criminal responsibility upon individuals for the
violation of the laws of internal armed conflict.8 The
Criminalization of violations of the Geneva Conventions was
encouraged via the adoption and promotion of the principle of
international law referred to as aut dedere aut judicaire9 which
created a universal jurisdiction over these violations of the laws
and customs of international humanitarian law. There are no similar
obligations in the text in relation to common article 3 or in
additional protocol II, either expressly or inferred, of
enforcement measures or criminal responsibility or imposition of
penalties. Even the ICRC followed that trend during the
establishment of the ICTY,10 whilst the ICTR Statute of 1994 was
the first to have a provision that criminalized violations of
common article 3.11 Modern jurisprudence now supports the position
that even if international humanitarian law does not expressly
provide for individual criminal liability for violations of common
article 3, the inference of such liability is acceptable to ground
a criminal charge.12 The first case at the ICTY witnessed a
submission that international law did not provide for individual 8
Moir, supra note 4, 764 9 Stephen Hall. International Law, 2011,
3rd Ed., Butterworths Tutorial Series, LexisNexis Butterworths; The
Obligation to Extradite or Prosecute is the legal obligation of
States under Public International Law, to prosecute persons who
commit serious international crimes wh