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Commentary - Repression of breaches of this Protocol
    [p.989] Article 85 -- Repression of breaches of this Protocol


    [p.991] General remarks

    3460 The draft of this article (Article 74) was modest: on the one hand, it made the provisions of the Conventions relating to the repression of breaches, supplemented by this Section, applicable to breaches of the Protocol; on the other hand, it designated any acts defined as grave breaches in the Conventions as grave breaches of the Protocol, if they were committed against the new categories of persons or objects protected under the Protocol. These two aims are the object of paragraphs 1 and 2 of the article adopted by the Conference.

    3461 In this way the draft Protocol increased the number of situations in which already defined acts would become grave breaches; it only added one new grave breach to the existing list. In fact, a separate draft article (Article 75) covered the perfidious use of protective signs or signals, which the Conference decided to include as paragraph 3(f) of Article 85 . The caution evident in these proposals was justified by the thought that the need to improve the effectiveness of the system laid down by the Conventions had priority.

    3462 Even before introducing draft Article 74 in Committee, the ICRC deemed it useful, particularly in the light of special expert consultations, to submit a new proposal, also containing a list of grave breaches of the Protocol. (1)

    3463 When they had been introduced in Committee, the drafts of this article and of that relating to the perfidious use of protective signs and signals were studied successively, together with the majority of the amendments relating to them, (2) by Sub-Working Group A and by Working Group A of Committee I.

    3464 The text drawn up by these two bodies was discussed and adopted, paragraph by paragraph and sub-paragraph by sub-paragraph in Committee, and then the article as a whole was adopted by consensus both in Committee I and in plenary. (3)

    3465 In general the delegations which expressed views on the article as adopted considered that it represented an important step forward towards an improved application of humanitarian law. The text was not perfect, but it was a satisfactory compromise.

    3466 Some regretted that certain breaches which were as grave as those listed in the article had not been included. (4) Others regretted that the lack of precision of [p.992] certain rules would make their introduction in national legislation, as well as their application, difficult and possibly not very uniform. (5)

    Paragraph 1

    3467 The system of repression in the Conventions is not to be replaced, but reinforced and developed by this Section (Articles 85 -91), so that it will in future apply to the repression of breaches of both the Protocol and the Conventions. (6)

    Paragraph 2

    3468 The qualification of grave breaches is extended to acts defined as such in the Conventions when they are committed against the following categories of persons and objects: (7)

    -- persons who have taken part in hostilities and have fallen into the power of an adverse Party within the meaning of Articles 44 ' (Combatants and prisoners of war) ' and 45 ' (Protection of persons who have taken part in hostilities): ' this definition is broader than that of prisoners of war in the Third Convention;
    -- refugees and stateless persons within the meaning of Article 73 ' (Refugees and stateless persons) ' (which makes them protected persons under the Fourth Convention);
    -- the wounded, sick and shipwrecked of the adverse Party: Article 8 ' (Terminology), ' sub-paragraphs (a) and (b) enlarges the corresponding categories as defined in the Conventions;
    -- medical or religious personnel, medical units and transports under the control of the adverse Party and protected by the Protocol: the same applies as for the wounded, sick and shipwrecked (cf. Article 8 -- ' Terminology, ' sub-paragraphs (c), (d), (e) and (g)). The expression "under the control of the adverse Party" is justified by the fact that such persons and objects may come, for example, from a non-belligerent State, an aid society recognized and authorized by such a State or even an impartial international humanitarian organization which makes them available to a Party to the conflict.

    3469 Several delegations would have preferred also to mention Article 75 ' (Fundamental guarantees), ' which applies to all persons "affected by a situation referred to in Article 1" in the power of a Party to the conflict who do not benefit [p.993] from more favourable treatment under the Conventions or the Protocol. They abandoned this idea in a spirit of compromise in the face of opposition from those who were afraid of extending the concept of grave breaches -- subject to universal jurisdiction -- to breaches committed by a Party to the conflict against its own nationals. (8)

    3470 One delegation pointed out that the reference to Article 45 ' (Protection of persons who have taken part in hostilities) ' only concerned persons whose status has not yet been established, but not those whose right to prisoner-of-war status has been rejected in the proper manner. (9) On this point there is no doubt that, on the one hand the above-mentioned article "protects" those whose status has not yet been established, while on the other hand, those who have been granted prisoner-of-war status are no longer in need of this article; the question is more difficult for those envisaged by that delegation. First, there are those covered by the article concerned in the first sentence of paragraph 3: they are actually referred to rather than protected by that provision, as it merely refers to Article 75 ' (Fundamental guarantees), ' which is applicable anyway, but was not included in the paragraph under consideration here. As regards persons covered by the second sentence, they are or are not protected by the Fourth Convention in accordance with the provisions of its Article 4 . If they are, they enjoy the protection offered by the penal provisions; if they are not, only Article 75 of the Protocol ' (Fundamental guarantees) ' applies, but subject to the limitations indicated above.

    Paragraph 3

    3471 The significance of the reminder in this paragraph of grave breaches defined in Article 11 ' (Protection of persons) ' will be explained below. Apart from this reminder, the paragraph deals with breaches related to the conduct of hostilities: hostile acts directed against protected persons or objects, or the effects of which exceed their legitimate objectives, and also the perfidious use of protective signs and signals. A grave breach belonging to the same category is defined in paragraph 4(b).

    3472 This category is that governed by the body of law traditionally known as the "Hague law", and it concerns qualified breaches of the provisions of Parts III and IV of the Protocol. Numerous fears were expressed that bringing this category under the system of repression of grave breaches would entail real danger: it would be much more difficult to define grave breaches "on the battlefield" and to try acts committed in the course of hostilities than to deal with acts committed [p.994] against persons or objects in the power of the enemy, as do the Geneva Conventions. (10) However, the Conference considered that it was essential to include in this article rules corresponding to those of Parts III and IV: the differences between the traditional field of the Conventions and that of the Hague law should not entail insurmountable difficulties, as shown by various precedents. (11)

    ' Opening sentence '

    3473 In order to list all the grave breaches of the Protocol in this article, a reference is included here to the breach defined in Article 11 ' (Protection of persons), ' paragraph 4. That breach has its own constitutive elements, slightly different from those laid down in the opening sentence of this paragraph for the subparagraphs that it introduces. (12)

    3474 Common constitutive elements applicable to all the sub-paragraphs of paragraph 3 are the following: (13)

    -- wilfully: the accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing the ("criminal intent" or "malice aforethought"); this encompasses the concepts of "wrongful intent" or "recklessness", viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences (14) (although failing to take the necessary precautions, particularly failing to seek precise information, constitutes culpable negligence punishable at least by disciplinary sanctions); (15) p.995]
    -- ' in violation of the relevant provision: ' in each of the sub-paragraphs this element refers to specific provisions of Parts III and IV, which we will indicate below in relation to each sub-paragraph. (16)
    -- ' causing death or serious injury to body or health: ' the effect must be such that, even if it does not cause death, it will affect people in a long-lasting or crucial manner, either as regards their physical integrity or their physical and mental health. (17)

    ' Sub-paragraph ' (a)

    3475 According to Article 49 ' (Definition of attacks and scope of application), ' paragraph 1, the term "attacks" means "acts of violence against the adversary, whether in offence or defence". As defined in Article 50 ' (Definition of civilians and civilian population), ' anyone who is not a combatant is a civilian (cf. the provisions referred to in that article); in case of doubt regarding the status of a person, that person is to be considered as a civilian. The prohibition on attacking the civilian population and civilians -- i.e., isolated civilians -- is explicitly laid down in Article 51 ' (Protection of the civilian population), ' paragraph 2 (18) All precautions must be taken with a view to sparing civilians, both in planning and in carrying out an attack (cf. Article 57 -- ' Precautions in attack). '

    3476 It is a grave breach under this sub-paragraph to make the civilian population or individual civilians, knowing their status, the object of attack when the attack is wilfully directed against them and when the consequences defined in the opening sentence follow.

    ' Sub-paragraph ' (b)

    3477 This sub-paragraph is based on the same provisions as the preceding subparagraph, and in addition on Article 52 ' (General protection of civilian objects), ' which defines and generally protects civilian objects. The attacks concerned here are not those directly aimed at the civilian population or individual civilians, but attacks affecting the incidentally; "indiscriminate attacks" are defined and prohibited by Article 51 ' (Protection of the civilian population), ' paragraphs 4 and 5.

    3478 The criterion of proportionality used in the same article, paragraph 5(b), to describe an example of such attacks, is defined here with reference to Article 57 ' (Precautions in attack); ' it weighs up "the concrete and direct military advantage anticipated" (paragraph 2(a)(iii)) and the obligation of "avoiding, and in any [p.996] event [...] minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects" (paragraph 2(a)(ii)).

    3479 This sub-paragraph 3(b), like sub-paragraph 3(c), adds the words "in the knowledge" to the common constitutive elements set out in the opening sentence: therefore there is only a grave breach if the person committing the act knew with certainty that the described results would ensue, and this would not cover recklessness.

    3480 It should also be noted that damage to objects, which is dealt with only to a limited extent in Article 147 of the Fourth Convention, is only mentioned in relation to the state of mind of the person committing the breach. The actual consequences defined by the opening sentence of the paragraph as constitutive elements of a breach, are death or serious injury to body or health in excess of what would be justified under the principle of proportionality.

    3481 A grave breach, according to this sub-paragraph, is an indiscriminate attack wilfully launched in the knowledge that its consequences will be excessive as described in this sub-paragraph, and which produces the effects described in the opening sentence to such an extent as to be in violation of the principle of proportionality. (19)

    ' Sub-paragraph ' (c)

    3482 In addition to the above-mentioned provisions, Article 56 ' (Protection of works and installations containing dangerous force), ' must be referred to here; it grants special protection to works and installations containing dangerous forces, namely, dams, dykes and nuclear electrical generating stations. (20) Even if they constitute military objectives they must not be made the object of attack if such attack may cause the release of forces contained therein, and consequent severe losses among the civilian population.

    3483 This special protection, which applies under the same conditions for military objectives located at or in the vicinity of such works, can only cease in strictly prescribed circumstances (paragraph 2). In that case the civilian population continues to enjoy the general protection to which it is entitled, including precautionary measures, and the attack must be conducted with special precautions (paragraph 3). (21)

    3484 The expressions "in the knowledge" and "excessive", as well as the reference to objects, have the same significance here as in sub-paragraph (b). Like subparagraph (b), this sub-paragraph represses attacks directed against military [p.997] objectives, but with incidental effects on the civilian population which are incompatible with the principle of proportionality. Consequently we are concerned here either with attacks against works or installations which are themselves military objectives or with attacks against military objectives located at or in the vicinity of such works, whether or not the special protection has ceased.

    3485 On the other hand, the principle of proportionality can not be invoked to justify incidental effects on the civilian population of an attack intentionally directed against a work or installation which does not constitute a military objective: such an attack would fall under sub-paragraph (a).

    3486 Under this sub-paragraph, it is a grave breach to wilfully launch an attack against the works or installations concerned, if these constitute a military objective, or against a military objective located at or in the vicinity of such works or installations, in the knowledge that this will have the above-mentioned excessive consequences, if the attack produces the effects described in the opening sentence to such an extent as to be in violation of the principle of proportionality. (22)

    ' Sub-paragraph ' (d)

    3487 Non-defended localities and demilitarized zones are defined in and governed by Articles 59 ' (Non-defended localities) ' and 60 ' (Demilitarized zones), ' respectively. We only recall that the former may be established by a unilateral declaration or by agreement, while the latter can only be established by an agreement between the Parties to the conflict. (23)

    3488 As long as it retains its status, a non-defended locality shall not be made the object of attack. As long as it retains its status, the Parties to the conflict cannot extend their military operations to a demilitarized zone if that is contrary to the provisions of the agreement by which it was established; however, the military operations which may be permitted by the agreement cannot in any case include attacks. If they lose their status pursuant to Article 59 ' (Non-defended localities) ' or 60 ' (Demilitarized zones), ' or pursuant to the agreements, the non-defended localities and demilitarized zones nevertheless continue to have the benefit of the other provisions of the Protocol and other relevant rules of international law (cf. paragraph 7 of both articles).

    3489 This sub-paragraph deals with zones which enjoy a special status; if they lose it, the rules of Part IV, Section I, and those of this Section relating to the distinction between combatants and military objectives, on the one hand, and the civilian population and civilian objects on the other hand, continue to apply.

    3490 Thus a grave breach as laid down in this sub-paragraph is an attack wilfully directed against a non-defended locality or demilitarized zone, if the attacker is aware of their status and if it produces the effects defined in the opening sentence.

    [p.998] ' Sub-paragraph ' (e)

    3491 Paragraph 1 of Article 41 ' (Safeguard of an enemy hors de combat) ' provides that "a person who is recognized or who, in the circumstances, should be recognized to be ' hors de combat ' shall not be made the object of attack"; paragraph 2 defines the concept "hors de combat". There is a breach of this rule not only when the attacker knows, but also when, in the circumstances, he should know that the person he is attacking is ' hors de combat. '

    3492 On the other hand, the sub-paragraph under consideration here requires that the attacker should actually know that the person is ' hors de combat, ' for there to be a grave breach. The words "in the knowledge", which exclude cases of negligence, are superfluous since the opening sentence lays down the criterion of intent, i.e., wilful act. (24) These words have a different meaning in sub-paragraphs (b) and (c), where they relate to knowledge of the material effects of the breach.

    3493 Thus a grave breach within the meaning of this sub-paragraph is committed when someone wilfully attacks a person he knows to be ' hors de combat, ' causing his death or serious injury to his body or health.

    ' Sub-paragraph ' (f)

    3494 Articles 53 and 54 of the First Convention prohibit abuse of the red cross, red crescent and red lion and sun (25) emblems and require that such abuse should be prevented and repressed. Nevertheless, the Conventions did not qualify their perfidious use as a grave breach. This omission is henceforth rectified.

    3495 The protective emblems and signs recognized by the Conventions and the Protocol are first of all those which they have established or provided themselves:

    -- red cross, red crescent (First Convention, Article 38 ; Protocol I, Annex I, Article 3 -- ' Shape and nature ');
    -- oblique red bands on a white ground (Fourth Convention, Annex I, Article 6 );
    -- blue triangle on an orange ground (Protocol I, Article 66 -- ' Identification, ' paragraph 4; Annex I, Article 15 -- ' International distinctive sign ');
    -- three bright orange circles (Protocol I, Article 56 -- ' Protection of works and installations containing dangerous forces, paragraph 7; ' Annex I, Article 16 -- ' International special sign ');
    -- signs agreed upon between Parties to the conflict (Protocol I, Article 59 -- ' Non-defended localities, ' paragraph 6; Article 60 -- ' Demilitarized zones, ' paragraph 5).

    3496 As Article 18 ' (Identification) ' places distinctive signals on the same footing as distinctive emblems as regards the repression of misuse, the distinctive signals laid down by the Protocol and used in accordance with the relevant provisions, should be added to this list Article 18 -- ' Identification, ' paragraph 5; Annex I, [p.999] Article 6 -- ' Light signal, ' Article 7 -- ' Radio signal, ' Article 8 -- ' Electronic identification ').

    3497 Next, Article 37 ' (Prohibition of perfidy) ' explicitly mentions the protected status of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict (26) (paragraph 1(d)).

    3498 Finally, paragraph 1 of Article 38 ' (Recognized emblems) ' prohibits the improper use of any emblems, signs or signals provided for by the Conventions or the Protocol, or of other internationally recognized protective emblems, signs or signals, including the flag of truce and the protective emblem of cultural property.

    3499 To summarize therefore, the perfidious use of emblems, signs or signals provided for by the Conventions or the Protocol, or of emblems, signs, signals or uniforms referred to in Articles 37 ' (Prohibition of perfidy) ' and 38 ' (Recognized emblems) ' of the Protocol, for the purpose of killing, injuring or capturing an adversary, constitutes a grave breach under this sub-paragraph if it leads to the results defined in the opening sentence. (27)

    Paragraph 4

    3500 Paragraph 3 deals with grave breaches "on the battlefield". Paragraph 4 defines a grave breach of this nature in its sub-paragraph (d); apart from this, it is concerned with acts prejudicial to the rights of persons in the power of the enemy, as is the case in the Conventions. Some of the breaches described, which incontestably involve the individual responsibility of those who have committed the acts, follow almost inevitably from policy decisions taken by a Party to the conflict, rather than from purely individual initiatives (sub-paragraphs (a), (b) and (c)).

    ' Opening sentence '

    3501 In contrast with paragraph 3, this paragraph does not lay down particular consequences as constitutive elements which the grave breaches it defines have in common. The opening phrase only states that the breaches must be committed wilfully and in violation of the Conventions or the Protocol, as the case may be.

    [p.1000] ' Sub-paragraph ' (a)

    3502 Article 49 of the Fourth Convention prohibits all forcible transfers, as well as deportations of protected persons from occupied territory (paragraph 1). (28) Only the security of the population of the occupied territory or imperative military reasons can justify total or partial evacuation of an occupied area; such evacuations may only take place within the bounds of the occupied territory, except when for material reasons this is impossible, and protected persons shall be transferred back to their homes as soon as hostilities in the area in question have ceased (paragraph 2). The Occupying Power may not deport or transfer parts of its own civilian population into the occupied territory (paragraph 6). The unlawful deportation or transfer of protected persons are among the grave breaches listed in Article 147 .

    3503 The part of the sub-paragraph dealing with the transfer or deportation of the population of the occupied territory is merely a repetition of Article 147 of the Fourth Convention, and Article 49 of that Convention, to which reference is made, continues to apply unchanged.

    3504 Thus the new element in this sub-paragraph concerns the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies: this practice, which was a breach, is now a grave breach because of the possible consequences for the population of the territory concerned from a humanitarian point of view.

    ' Sub-paragraph ' (b)

    3505 Two articles of the Third Convention lay down an obligation to repatriate prisoners of war. First, Article 109 : during hostilities the seriously wounded and seriously sick, unless it is against their will (cf. also Article 110 , paragraph 1). Secondly, Article 118 : all prisoners of war, without delay, after the cessation of active hostilities. (29)

    3506 As regards civilians, all protected persons under the Fourth Convention who find themselves in the territory of a Party to the conflict are entitled, in accordance with Article 35 of that Convention, to leave the territory at the outset of or during the conflict, unless their departure is contrary to the national interests of [p.1001] the State. Only reasons of that nature can justify a Party to the conflict retaining a protected person who wants to leave the territory and possibly placing him in assigned residence or interning him -- except in case of criminal proceedings or a sentence depriving him of his liberty. Restrictive measures will cease as soon as possible after the end of hostilities, though again an exception is made in case of criminal proceedings or sentences depriving those concerned of their liberty. (30)

    3507 Thus there is an essential difference between prisoners of war and civilians; prisoners of war must be repatriated, except for special cases; (31) civilians are entitled to leave enemy territory subject to certain restrictions, but neither they nor the State in whose territory they are, have an obligation in this respect.

    3508 The grave breach within the meaning of sub-paragraph 4(b) consists, in the case of prisoners of war, in failure to comply with Articles 109 or 118 of the Third Convention without valid and lawful reasons justifying the delay. (32)

    3509 With regard to civilians, the grave breach consists in delaying the departure of a foreign national who wants to leave the territory, in violation of Articles 35 or 134 of the Fourth Convention, without valid and lawful reasons justifying such delay.

    ' Sub-paragraph ' (c)

    3510 The policies and practices of ' apartheid ' have been referred to in a series of resolutions of the United Nations General Assembly. In particular, it adopted the International Convention on the Suppression and Punishment of the Crime of ' Apartheid ' (33) in its Resolution 3068 (XXVIII) of 30 November 1973. This declares that ' apartheid ' is a crime against humanity (Article I); (34) the same article declares that inhuman acts resulting from the policies and practices of ' apartheid ' and other similar policies and practices of racial segregation and discrimination, as defined in Article II, are crimes violating the principles of international law and constituting a serious threat to international peace and security.

    [p.1002] 3511 Article II defines inhuman acts covered by the term "crime of ' apartheid '" and committed for the purpose of establishing and maintaining domination by one racial group over any other racial group and systematically oppressing the latter. This term also covers similar policies and practices of racial segregation and discrimination.

    3512 In this sub-paragraph the Protocol only condemns practices, whether the practices of ' apartheid ' or any other inhuman and degrading practices; as far as the policies are concerned, they will remain exclusively within the domain of crimes against humanity.

    3513 Although the provisions of the Conventions and the Protocol never mention ' apartheid ' by name, they contain several articles explicitly prohibiting any adverse distinction founded on whatever criterion, including race. (35)

    3514 In addition, inhuman treatment is qualified as a grave breach by the relevant articles of the Conventions, and this concept of inhuman treatment encompasses outrages upon the human dignity of protected persons.

    3515 Finally, if we take into account that this sub-paragraph applies only in situations covered by Article 1 ' (General principles and scope of application), ' it must be concluded that the practices concerned were already grave breaches of the Conventions, whatever their motive; this is simply a special mention of reprehensible conduct for which the motive is particularly shocking.

    ' Sub-paragraph ' (d)

    3516 Article 53 of the Protocol ' (Protection of cultural objects and of places of worship) ' deals with the protection of cultural objects and places of worship without prejudice, as it says itself, to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and to other relevant rules of international law. That article prohibits committing any acts of hostility against those objects which constitute the cultural or spiritual heritage of peoples and using them in support of the military effort.

    3517 To qualify as a grave breach within the meaning of this sub-paragraph, the attack must have been committed wilfully in accordance with the opening sentence of the paragraph; (36) the objects must not have been used in support of the military effort (cf. Article 53 -- ' Protection of cultural objects and of places of worship, ' sub-paragraph (b)); special protection must have been given to the objects in question by special arrangement, for example, within the framework [p.1003] of a competent international organization; (37) the objects must not have been located in the immediate vicinity of military objectives; and the attack must have caused extensive destruction of the objects.

    ' Sub-paragraph ' (e)

    3518 Guarantees for a fair and regular trial are laid down in Articles 99 -108 of the Third Convention and 71 -75 and 126 of the Fourth Convention. Articles 130 and 147 of these Conventions, respectively, qualify as a grave breach the act of depriving a protected person of the rights of fair and regular trial prescribed in these Conventions.

    3519 At first sight paragraph 2 should have sufficed to make the above-mentioned penal provisions applicable to those mentioned in that paragraph; however, the object of this sub-paragraph is to ensure that the judicial guarantees laid down in Article 75 ' (Fundamental guarantees) ' are added to those of the Conventions insofar as they supplement or clarify the latter.

    3520 It is in this respect that the sub-paragraph under consideration here supplements the penal provisions of the Conventions.

    Paragraph 5

    3521 This paragraph, which was considered indispensable or self-evident by some delegations, seemed out of place or dangerous to others.

    3522 The former emphasized the need to confirm that there is only one concept of war crimes, whether the specific crimes are defined under the law of Geneva or The Hague and Nuremberg law. (38) Without denying that grave breaches of the Conventions and the Protocol are indeed war crimes, the latter preferred those instruments to stick to their own terminology in view of their purely humanitarian objectives. (39)

    3523 Finally the paragraph was adopted by consensus, despite some reservations, once a formula had been added which guaranteed the application of the Conventions and the Protocol. (40) The expression "without prejudice to" means [p.1004] that the affirmation contained in this paragraph will not affect the application of the Conventions and the Protocol. (41) In the French text the expression used is "sous réserve". (42)

    ' B.Z. '


    NOTES (1) [(1) p.991] O.R. III, p. 318, CDDH/210/Annex 2, p. 2;

    (2) [(2) p.991] Ibid., pp. 317-322, 324-327;

    (3) [(3) p.991] Respectively: O.R. IX, p. 277, CDDH/I/SR.61, para. 50; O.R. VI, p. 291, CDDH/SR.44, para. 72;

    (4) [(4) p.991] For example, the use of means of combat as listed in the proposals CDDH/I/347 and Rev.1 and CDDH/418 (O.R. III, p. 322). On the exhaustive character of the list of grave breaches, cf. introduction to this Section, supra, p. 976, note 11;

    (5) [(5) p.992] In general, we would refer, with regard to the drafting and scope of this article, to the following works quoted in the introduction to this Section (supra, p. 973, note 2): W.A. Solf and E.R. Cummings, op. cit., pp. 221-242; M.C. Bassiouni, "Repression of Breaches...", op. cit., pp. 199-201; J. de Breucker, "La répression des infractions graves...", op. cit.; E.J. Roucounas, op cit., pp. 65-133: B.V.A. Röling, "Aspects of the Criminal Responsibility...", op. cit., pp. 208-209; Ph. Bretton, "La mise en oeuvre des Protocoles de Genève de 1977", op. cit., pp. 405-411;

    (6) [(6) p.992] On the system of the Conventions, supplemented by the Protocol, cf. introduction to this Section, supra, pp. 974-976;

    (7) [(7) p.992] For a more detailed description we refer to the commentary on the provisions mentioned;

    (8) [(8) p.993] O.R. IX, p. 256, CDDH/I/SR.60, paras. 9-11; p. 283, CDDH/I/SR.61, para. 86. It should be noted that according to the commentary on that article, supra, pp. 866-870, other categories of persons may be protected by it. Finland's instrument of ratification, as a complement to a declaration on the categories of persons enjoying protection under Article 75, contains a declaration that "the provisions of Article 85 shall be interpreted to apply to nationals of neutral or other States not Parties to the conflict as they apply to those mentioned in paragraph 2";

    (9) [(9) p.993] O.R. IX, p. 280, CDDH/I/SR.61, para. 68. In the same sense, J. de Breucker, op. cit., p. 503; E.J. Roucounas, op. cit., p. 93;

    (10) [(10) p.994] See O.R. IX, p. 19 CDDH/I/SR.43, para. 17; pp. 35-36, CDD/I/SR.44, paras. 40-48;

    (11) [(11) p.994] ibid., p. 21, CDDH/I/SR.43, paras. 24 and 26; p. 25, para. 47; p. 28, CDDH/I/SR.44, para. 9; p.32,para.31;

    (12) [(12) p.994] Art. 11, para. 4, uses the phrase "seriously endangers" and not "causing [...] serious injury"; it should also be noted that, in contrast with this paragraph, it only covers breaches against persons ' in the power ' of a Party other than that to which they belong;

    (13) [(13) p.994] We use the noun or the verb "act" below for the sake of clarity, but in the light of Art. 86 this should be understood to mean "conduct". That article deals with repression of failures to act when there is a duty to act;

    (14) [(14) p.994] On the various concepts which are not all defined identically by national law, cf. For example, G. Stefani, G. Levasseur, B. Bouloc, op. cit., pp. 213-234 (paras. 211-239). As regards recklessness, see also supra, p. 159, note 15. On failure to act and on negligence, cf. also commentary Art. 86, infra, p. 1005;

    (15) [(15) p.994] It should be noted that Austria when it ratified the Protocol made a reservation with regard to Articles 85 and 86: "Pour juger toute décision prise par un commandant militaire, les articles 85 et 86 du Protocole I seront appliqués pour autant que les impératifs militaires, la possibilité raisonnable de les reconnaître et les informations effectivement disponibles au moment de la décision soient déterminants." ("In order to judge any decision taken by military commanders, Articles 85 and 86 of Protocol I will be applied with military imperatives, the reasonable possibility of recognising them and information actually available at the time of the decision, being decisive." (Translated by the ICRC));

    (16) [(16) p.995] For further details we refer also to the commentary on the provisions concerned;

    (17) [(17) p.995] Causing serious injury to body or health of persons protected under the Conventions is already qualified as a grave breach; cf. also supra, note 12, and commentary Art. 11, para. 4, supra, p. 158;

    (18) [(18) p.995] According to paragraph 3 of that article, a civilian who participates directly in hostilities would not be protected during such participation;

    (19) [(19) p.996] On the principles which determine the lawfulness of incidental civilian loss, and in particular the principle of proportionality, see commentary on Art. 51, supra, pp. 625-626; introduction to this Section, supra, p. 976, note 11; commentary on Art. 89, infra, p. 1033 (on the meaning of the phrase "serious violations"); see also J. Verhaegen, "Une interprétation inacceptable du principe de proportionnalité", XXI-1-2-3-4 RDPMDG, 1982, p. 329;

    (20) [(20) p.996] The list in Article 56 is exhaustive;

    (21) [(21) p.996] Paragraph 6 of that article urges Contracting Parties and Parties to the conflict to conclude further agreements to provide additional protection for such objects. Paragraph 7, which refers to Article 16 of Annex I, lays down a special sign for such works and installations;

    (22) [(22) p.997] The references contained in note 19 supra also apply to this sub-paragraph;

    (23) [(23) p.997] The Party in control of a non-defended locality or demilitarized zone must mark it, as far as possible, by such signs as may be agreed upon with the other Party (Art. 59, para. 6; Art. 60, para. 5);

    (24) [(24) p.998] In the same sense, E.J. Roucounas, op. cit., p. 107;

    (25) [(25) p.997] On this latter emblem, cf. Editors' note, supra;

    (26) [(26) p.999] On the expression "neutral and other States not Parties to the conflict", cf. commentary Art. 2, sub-para. (c), supra, p. 61;

    (27) [(27) p.999] However, cf. commentary Arts. 37 and 38, supra, pp. 439 and 459 respectively, for the case where the United Nations may be engaged in hostilities and its emblem is therefore no longer a protective emblem within the meaning of Article 37 and of this sub-paragraph;

    (28) [(28) p.1000] In fact, by using the word "nevertheless", paragraph 2, which is dealt with later, clearly shows that paragraph 1 also prohibits forcible transfers within occupied territory. On the basis of ' Commentary IV ', pp. 278-280 and 599 it may be concluded that such a forcible t ransfer was already a grave breach within the meaning of Article 147; W.A. Solf and E.R. Cummings, op. cit., pp. 232-233, hold this view; E.J. Roucounas, op. cit., p. 116, holds the opposite view;

    (29) [(29) p.1000] Subject, however, to Article 119, paragraph 5 (prisoners detained until the end of criminal proceedings or until the completion of punishment for an offence under criminal law). On the problems related to the application of Article 118 of the Third Convention, cf. inter alia, in addition to ' Commentary III ', pp. 540-553, Ch. Shields-Delessert, ' Release and Repatriation of Prisoners of War at the End of Active Hostilities ', Zurich, 1977; E.J. Roucounas, op. cit., pp. 117-119 (and other works referred to there); W.A. Solf and E.R. Cummings, op. cit., pp. 233-234 (and references there);

    (30) [(30) p.1001] Cf. in particular Fourth Convention, Arts. 35-37, 41-43, 46, 132-134. The last article is concerned with facilitating the return of internees to their last place of residence or with their repatriation after the end of hostilities or occupation;

    (31) [(31) p.1001] During hostilities, all seriously sick and wounded prisoners who are opposed to being repatriated (Third Convention, Article 109); after the end of active hostilities, prisoners who do not wish to be repatriated (each individual case requiring a thorough examination) (Third Convention, Art. 118); cf. supra, note 29. When ratifying the Protocol the Republic of Korea declared that the failure of a Detaining Power to repatriate prisoners if this accords with their clearly and freely expressed will is not a breach within the meaning of this paragraph;

    (32) [(32) p.1001] Only material reasons such as circumstances making transportation impossible or dangerous are acceptable. The intention to use prisoners of war or civilians in one's power as a means of applying pressure on the adversary, for example, is not acceptable;

    (33) [(33) p.1001] As of 31 December 1984 there were 79 States Parties to this Convention;

    (34) [(34) p.1001] This qualification was already contained in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. On that Convention, cf. introduction to this Section, supra, pp. 977 and 980;

    (35) [(35) p.1002] Arts. 12/12/16/13 and 27 of the Conventions; Arts. 9, 10, 69, 70 and 75 of the Protocol;

    (36) [(36) p.1002] The meaning of the term "clearly recognized" was not elucidated during the Conference and allows for two interpretations. For E.J. Roucounas, op. cit., p. 109, it is a question of identification; for J. de Breucker, op. cit., p. 505, it apparently means recognition of the right to protection. This ambiguity is probably not of great importance: in the first case it duplicates the requirement of intent, which implies that the attacker is aware of the status of what he is attacking; in the second case, the term seems to be just as superfluous, since a special arrangement is required anyway;

    (37) [(37) p.1003] Cf. commentary Art. 53, supra, p. 643, for further details on the special protection under the 1954 Convention and on the role of UNESCO in this respect. E.J. Roucounas, op. cit., pp. 113-114, thinks that the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage could also constitute a special arrangement within the meaning of this sub-paragraph (cf. also commentary Art. 53, supra, pp. 645-646);

    (38) [(38) p.1003] Cf. also introduction to this Section, supra, pp. 977-979;

    (39) [(39) p.1003] In favour: in particular, O.R. IX, p. 282, CDDH/I/SR.61, para. 85; pp. 313-314, CDDH/I/SR.64, para. 49; p. 317, para. 69; p. 319, para. 84; O.R. VI, p. 293, CDDH/SR.44, paras. 81-82; p. 294, para. 90; p. 306, id., Annex (Yugoslavia). Against: in particular, O.R. IX, p. 269, CDDH/I/SR.61, para. 4; p. 279, para. 62; p. 280, para. 69; p. 282, para. 84; p. 307, CDDH/I/SR.64, para. 10; p. 310, para. 29; O.R. VI, p. 293, CDDH/SR.44, para. 85;

    (40) [(40) p.1003] See O.R. IX, p. 280, CDDH/I/SR.61, para. 71;


    (41) [(41) p.1004] The same affirmation is contained in Art. 75, para. 7;

    (42) [(42) p.1004] The French text of Arts. 3 and 53 uses the term "sans préjudice" and the two terms have been used as equivalent in French. Cf. also Art. 16 of Protocol II;