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Commentary - Art. 129. Part VI : Execution of the convention #Section I : General provisions
    PENAL SANCTIONS
    (ARTICLES 129 TO 131)


    HISTORICAL BACKGROUND

    The Geneva Conventions form part of what are generally known as the laws and customs of war, violations of which are commonly called "war crimes".
    The punishment of breaches of the laws and customs of war is not new. Ever since the XVIIIth century there have been examples of the trial and punishment of offences of this nature; but such instances were few and far between and could hardly be said to form a body of precedent. Nor did the codification of the laws of war at The Hague in 1899 and 1907 result in the establishment of international rules in this particular connection.
    It is true that the Fourth Hague Convention of 1907 respecting the laws and customs of war on land had stipulated, in Article 3 , that a belligerent party which violated the provisions of the Regulations annexed to that Convention should be liable to pay compensation, and should be responsible for all acts committed by persons forming part of its armed forces. The responsibility thus imposed on the belligerent State was, however, purely pecuniary. States were left entirely free to punish or not acts committed by their own troops against the enemy, or again, acts committed by enemy troops, in violation of the laws and customs of war. In other words, repression depended solely on the existence or non-existence of national laws repressing the acts in question.
    When the First World War ended, however, this system was felt to be unsatisfactory, and provision was made in the Treaty of Versailles for punishing nationals of the conquered countries who had committed acts against the Allied troops which were contrary to the laws and customs of war. The Leipzig judgments were the sequel to those provisions.
    [p.618] It was chiefly during the Second World War and the years that followed that the problem of punishing war criminals arose. The numerous violations committed in the course of the war had made the question a burning one in which public opinion and the authorities in the different countries were intensely interested.
    The absence of international regulations and the meagre character of domestic legislation on the subject led the majority of States to promulgate special laws for the repression of crimes committed by the enemy against their civilian population ad troops. Although in most cases public opinion thought it natural and just that those convicted under this ad hoc legislation should be punished, there remains nevertheless a certain element of doubt as to whether the verdicts given were lawful or not. Furthermore, the various penal systems are not based on the same principles. In the Anglo-Saxon countries, the violation of a rule of international law, whether explicit or customary, and even if that rule does not make provision for penal sanctions, entitles national tribunals to pass sentence. In other countries, on the other hand, and in particular in the countries of the European Continent, penal law, if it is to be applicable, must include not only formal regulations but also provisions determining the nature and severity of the penalty. In these
    latter countries, the maxim ' nulla poena sine lege ' remains fully valid (1).

    THE 1949 CONVENTION AND THE WORK IN PREPARATION FOR IT

    The events of the Second World War convinced the International Committee of the Red Cross that any future international Convention on the laws and customs of war must necessarily include a separate chapter on the repression of violations of its provisions. This conviction was strengthened by the numerous appeals which it received for intervention on behalf of prisoners of war who were accused of war crimes and tried (as has been pointed out) in the absence of any appropriate legislation duly drawn up before the outbreak of hostilities. On the other hand, the International Committee could not remain indifferent to the argument that complete and loyal respect for the Conventions must be based on the application of effective penalties.
    Accordingly, the International Committee felt bound to draw the attention of the Conferences of Experts which met at Geneva in 1946 [p.619] and 1947 to this important issue. Those Conferences asked the Committee to make a more thorough study of the question.
    In 1948, the International Committee submitted the following draft article to the XVIIth International Red Cross Conference:

    "The legislation of the Contracting Parties shall prohibit all acts contrary to the stipulations of the present Convention.
    Each Contracting Party shall be under obligation to search for the persons alleged to be guilty of breaches of the present Convention, whatever their nationality, and in accordance with its own laws or with the conventions prohibiting acts that may be considered as war crimes, to indict such persons before its own tribunals, or to hand them over for judgment to another Contracting Party." (2)

    The proposed text was based on the principle ' aut dedere aut punire ', often used as the basis for extradition. In submitting its proposal to the Conference, the International Committee stated that its studies of the question of penalties were still incomplete. It proposed to pursue them, especially in view of the development of punishment for war crimes by a whole series of different countries and by the United Nations itself.
    The XVIIth International Conference requested the International Committee to continue its work on the question and submit the results to a later Conference.
    In response to this request, the International Committee invited four international experts to meet at Geneva at the beginning of December 1948, and made with them a thorough study of the question. The outcome was a draft of four new Articles to be included in each of the four Geneva Conventions, concerning the penalties applicable to persons guilty of violating the provisions of the Conventions (3).
    The experts recognized the necessity of punishing breaches of the Geneva Conventions and considered that each contracting State should be required to promulgate the necessary legislation within two years. In their opinion, universality of jurisdiction in cases of grave breaches would justify the hope that such offences would not remain unpunished. Moreover, the effect of the existence of orders from a superior or of an official law or regulation on the responsibility of the author of the offence committed was expressly provided for and stated. Lastly, the experts agreed that, despite the censure that such [p.620] acts occasioned, accused persons must have the full benefit of jurisdictional and procedural guarantees. The International Committee had had the opportunity of informing the experts of its own experience in this connection.
    At the Diplomatic Conference of 1949, the problem of penal sanctions was entrusted to the joint Committee appointed to consider the provisions common to the four Conventions. It had not been possible for the draft texts prepared by the International Committee of the Red Cross to reach the Governments until just before the opening of the Conference, and consequently certain delegations opposed their being taken as a basis for discussion. The Netherlands Delegation, however, submitted them as its own, so that they came officially before the Conference (4).



    ARTICLE 129. -- PENAL SANCTIONS: I. GENERAL OBSERVATIONS


    [p.621] PARAGRAPH 1. -- SPECIAL LEGISLATION

    It is desirable that States which have ratified the Convention or acceded to it should take without delay the necessary steps to fulfil their obligations under Article 129 (5). This task of implementing the Conventions in penal matters is certainly a complex one and will often require long and thorough study.
    For that reason, the International Committee, when the four Geneva Conventions of 1949 were adopted, expressed the wish to draw up a model law on which the national legislation in various countries could be based and which would also have the advantage of creating a certain uniformity of legislation (6).
    The present provision is one of those which must be put into effect in peace-time in anticipation of the situations listed in Article 2 . The [p.622] laws to be enacted on the basis of this paragraph should, in our opinion, fix the nature and duration of the punishment for each offence, on the principle of making the punishment fit the crime. It should not merely be left to the discretion of the judge (7).
    Paragraph 1 refers to Article 130 , which lists the breaches considered as grave. That list will be discussed in the commentary on Article 130 .
    The penal sanctions to be provided will be applicable to persons who have committed or ordered to be committed a grave breach of the Convention, thus establishing the joint responsibility of the author of an act and the man who ordered it to be done. It will be possible to prosecute them both as accomplices. There is no mention, however, of the responsibility which may be incurred by persons who do not intervene to prevent or to put an end to a breach of the Convention. In several cases of each type, the Allied courts brought in a verdict of guilty. In view of the Convention's silence on this point, it will have to be determined under national legislation either by the enactment of special provisions or by the application of the general clauses which may occur in the penal codes.
    In the proposals it submitted to the Diplomatic Conference on the basis of the advice of the experts it had consulted, the International Committee of the Red Cross had put forward a special Article dealing with the effect of having acted under superior orders on the guilt of a person who has committed a criminal offence. The Diplomatic Conference did not approve the proposal and it was left to national legislation to deal with the matter. Many military penal codes contain clauses on the subject, but there are some which do not. In any case, it is to be hoped that a person committing an offence under orders or in application of general instructions will be treated in the same manner, whether he is an enemy alien or a national of the country concerned. The International Law Commission of the United Nations, which considered the problem when it was drawing up its draft Code of Offences against the Peace and Security of Mankind, after long discussion first evolved the following principle: "The fact that a person charged with an offence defined in this Code
    acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was [p.623] in fact possible to him" (Report of the International Law Commission covering its Third Session). Later, on the basis of comments by Governments, the Commission changed this wording to provide that the accused would be responsible under international law only if, in the circumstances, it was possible for him to act contrary to superior orders.

    PARAGRAPH 2. -- SEARCH FOR AND PROSECUTION OF PERSONS
    WHO HAVE COMMITTED GRAVE BREACHES

    The obligation on each State to enact the legislation necessary implies that such legislation should extend to any person who has committed a grave breach, whether a national of that State or an enemy.
    The obligation on the High Contracting Parties to search for persons accused of having committed grave breaches imposes an active duty on them. As soon as a Contracting Party realizes that there is on its territory a person who has committed such a breach, its duty is to ensure that the person concerned is arrested and prosecuted with all despatch. The necessary police action should be taken spontaneously, therefore, and not merely in pursuance of a request from another State. The court proceedings should be carried out in a uniform manner, whatever the nationality of the accused. Nationals, friends, enemies, all should be subject to the same rules of procedure and judged by the same courts. There is therefore no question of setting up special tribunals to try War criminals of enemy nationality.
    Extradition is restricted by the domestic law of the country which detains the accused person. Indeed, a rider is deliberately added: "in accordance with the provisions of its own legislation". Moreover. a special condition is attached to extradition: the Contracting Party which requests the handing over of a accused person must make out a prima facie case against him. There is a similar clause in most of the national laws and international treaties concerning extradition. The exact interpretation of "prima facie case" will in general depend on national law but it may be stated as a general principle that it implies a case which in the country requested to extradite would involve prosecution before the courts.
    Most national laws and international treaties on the subject preclude the extradition of accused who are nationals of the State detaining them. In such cases, Article 129 quite clearly implies that the State detaining the accused person must bring him before its own courts.
    [p.624] Furthermore, this paragraph does not exclude handing over the accused to a international criminal court whose competence has been recognized by the Contracting Parties. On that point, the Diplomatic Conference specially wished to reserve the future position ad not impede the progress of international law (8).

    PARAGRAPH 3. -- SUPPRESSION OF OTHER BREACHES

    Article 130 defines the grave breaches of the Convention, but under the terms of this paragraph the Contracting Parties must also suppress all other "acts contrary to the provisions of the present Convention". The wording is not very precise. The expression "faire cesser" used in the French text may be interpreted in different ways. In the opinion of the International Committee, it covers everything which can be done by a State to avoid acts contrary to the Convention being committed or repeated. The Special Committee of the joint Committee had first of all proposed the wording "prendre les mesures nécessaires pour la suppression de". During the discussions in the joint Committee, the word "suppression" was kept in the English text, where as in the French text the word "redressement" was used. Finally, the Diplomatic Conference in plenary session adopted the wording "faire cesser" but kept the word "suppression" in the English text (9). However, there is no doubt that what is primarily meant is the repression of breaches other than the
    grave breaches listed, and only in the second place administrative measures to ensure respect for the provisions of the Convention.
    Other grave breaches of the same character as those listed in Article 130 can easily be imagined. This shows that all breaches of the Convention should be repressed by national legislation. The Contracting Parties which have taken measures to repress the various grave breaches of the Convention and have fixed an appropriate penalty in each case should at least insert in their legislation a general clause providing for the punishment of other breaches. Furthermore, under the terms of the present paragraph, the authorities of the [p.625] Contracting Parties should give all those subordinate to them instructions in conformity with the Convention and should institute judicial or disciplinary punishment for breaches of the Convention.

    PARAGRAPH 4. -- PROCEDURAL GUARANTEES

    The procedural guarantees listed in the Convention reproduce and develop those contained in the 1929 Convention (Articles 60 -67) (10).
    The intervention of the Protecting Power and its right to be present at the hearings and to ensure that the accused persons are properly defended were mentioned in that Convention. It is by virtue of those provisions that in the post-war years the International Committee of the Red Cross has been able, in the absence of Protecting Powers, to intervene in the case of many prisoners accused of war crimes. It has even been called upon sometimes to assist them in legal proceedings. Some countries, such as France, have given the Committee certain facilities for carrying out such activities. The experience gained has shown the need for persons accused of war crimes to have certain procedural guarantees and the right of free defence. These guarantees are needed in particular when the accused person is tried by an enemy court. For that reason, in the draft it submitted to the Diplomatic Conference, the International Committee suggested a special article to deal with the matter. At first the proposal met with some objections; many of the delegates thought that it should be left to the national legislation of each country to settle the point. It was pointed out, furthermore, that most of the accused tried by the enemy were prisoners of war and that, therefore, Article 85 would automatically give them the benefit of adequate guarantees in view of their prisoner-of-war status. The French Delegation, however, realizing the importance of applying the same system to all accused, whatever their personal status, proposed during the discussion held in the joint Committee that the present paragraph should be adopted. The joint Committee's approval was endorsed by the Conference (11).
    In referring to the rules contained in Article 105 and those following, the Diplomatic Conference took a wise decision. Rather than establish a new law, it preferred to refer back to an existing law, already tried and tested, which constitutes a real safeguard for the accused.
    [p.626] In connection with this paragraph, it may still be wondered whether persons accused of war crimes can and should be tried during hostilities. The International Committee of the Red Cross has pointed out on several occasions, notably before the meeting of Government Experts in Geneva in 1947, how difficult it is for an accused person who is to be tried by a military tribunal to prepare his defence during hostilities. How, indeed, could he bring proof which might lessen or even disprove his responsibility? Cases clear enough for verdict to be passed before the end of hostilities will doubtless remain an exception.

    * (1) [(1) p.618] Whatever one's views may be on the repressive
    action taken after the Second World War, it would have
    been preferable to base it on existing rules without being
    obliged to have recourse to retroactive measures;

    (2) [(1) p.619] See ' XVIIth International Conference of the
    Red Cross, Draft Revised or New Conventions for the
    Protection of War Victims, ' p. 134;

    (3) [(2) p.619] A brief statement on the considerations which
    led the International Committee to submit these draft
    Articles may be found in the booklet ' Remarks and
    Proposals, ' pp. 18-23;

    (4) [(1) p.620] Reference should be made here to the large
    amount of preparatory work which took place outside the
    Conference and for which Mr. Justice M. W. Mouton, a
    member of the Netherlands delegation, was mainly
    responsible. In this connection, see ' Final Record of the
    Diplomatic Conference of Geneva of 1949, ' Vol. III, p.
    42;

    (5) [(1) p.621] A number of States which have ratified this
    Convention have already fulfilled this obligation.
    Switzerland is an example where the Military Penal Code
    has been partially revised by the addition of a new
    general provision (Article 109), under which an offender
    against the provisions of the international Conventions
    relative to the waging of war or the protection of war
    victims will be punished for breaches of his military
    duties, unless more severe provisions of the Military
    Penal Code are applicable. Similarly, Yugoslavia has
    modified its Penal Code and adapted it to the new Geneva
    Conventions. A penal law dated February 27, 1951,
    introduces into the new Penal Code all the grave breaches
    defined in the Geneva Conventions. Article 125 covers war
    crimes committed against the civilian population; indeed,
    the list of punishable offences is considerably larger
    than that in Article 147 of the Fourth Convention. The
    Netherlands issued a series of laws on May 19, 1954, which
    embody in domestic criminal law the provisions of the four
    Geneva Conventions for the repression of breaches of the
    Conventions. Article 8 of the law punishes with
    imprisonment up to ten years those who are guilty of
    violations of the laws and customs of war; if there are
    aggravating circumstances, a sentence of as much as
    fifteen years' imprisonment may be imposed, or even, in
    certain cases, the death penalty or life imprisonment, or
    imprisonment for twenty years.
    The majority of the other countries which have
    ratified the Geneva Conventions should also adapt their
    penal legislation since it will be impossible in most
    cases to make do with the legislation already existing;

    (6) [(2) p.621] The Sixth International Congress of Penal Law,
    held at Rome in 1953, had on its agenda the repression
    through penal law of breaches of the international
    humanitarian Conventions. Reports were submitted to the
    Congress from various countries and a general report was
    presented by Mr. Claude Pilloud, Head of the Legal
    Department of the International Committee. The Congress
    laid the basis for what might become a model law for the
    repression of breaches of the Geneva Conventions (see
    ' Revue internationale de Droit penal, ' 1953, Nos. 1, 2
    and 3).
    Since then, work on drawing up a model law has been
    continued by the International Committee of the Red Cross
    and other bodies. As the discussions at the Sixth
    International Congress of Penal Law showed, it is above
    all in the definition of breaches that uniformity must be
    sought; the fixing of the sentence and the procedure to be
    followed are thought to be matters for national
    legislation in each country;

    (7) [(1) p.622] The Anglo-Saxon system, which was followed by
    the International Military Tribunal at Nuremberg and
    formed the basis of several national legislations after
    the Second World War, seems rather unsatisfactory. That
    system is illustrated by a statement in the
    "Oppenheim-Lauterpacht Manual" according to which all war
    crimes, whatever their seriousness, may be punished by the
    death penalty (6th edition, Volume II, p. 456);

    (8) [(1) p.624] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-B, pp. 114-115.
    The Netherlands considered it necessary to enact a special
    law on extradition for war crimes (Law No. 215 of May 19,
    1954), explicitly defining the conditions under which
    extradition may be requested and granted;

    (9) [(2) p.624] This word corresponds approximately to the
    French word "répression" (not to the French
    "suppression"). Thus the English and French texts are not
    in entire agreement;

    (10) [(1) p.625] See below, pp. 735-739;

    (11) [(2) p.625] With regard to the procedural guarantees
    afforded to prisoners of war by the present Convention,
    see Articles 87, 99, 101, 103, 105 and 106;