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Commentary - Art. 49. Chapter IX : Repression of abuses and infractions
    ARTICLE 49 -- PENAL SANCTIONS -- GENERAL


    Article 49 lays the foundations of the system adopted for suppressing breaches of the Convention. The system is based on three fundamental obligations, which are laid on each Contracting Party -- namely, the obligation to enact special legislation on the subject, the obligation to search for any person accused of violation of the Convention, and the obligation to try such persons or, if the Contracting Party prefers, to hand them over for trial to another State concerned.
    The Article is completed by a reference to the list of "grave breaches" in Article 50 , and by a clause providing accused persons with safeguards of fair trial.

    [p.363] PARAGRAPH 1 -- SPECIAL LEGISLATION

    Paragraph 1 repeats the obligation laid on the Contracting States under Article 29 of the 1929 Convention , to promulgate suitable measures in the event of their own penal legislation being inadequate. The obligation has, however, been made considerably more imperative. The Contracting Parties are more strictly bound to enact the necessary legislation than in the past.
    Of the States which were the first to ratify the present Convention, two to our knowledge have already complied with the obligation embodied in this paragraph. The Swiss Military Penal Code has been partially revised to include, in addition to the clauses it already contained on the subject of violations of international law, a new general provision (Article 109), under which anyone violating the provisions of international Conventions concerning the conduct of war or the protection of war victims is to be punished as for a breach of military duty, save in so far as other more severe provisions of the Military Penal Code are applicable. This solution has the advantage of covering all breaches of the Convention though it would, perhaps, have been better to define the most serious breaches, and provide a specific penalty for each of them.
    Yugoslavia has also made changes in her Penal Code, adapting it to the new Geneva Conventions, A penal law of 27 February 1951 provides for the repression of war crimes against the wounded and sick (Article 126), for the repression of inhuman treatment of the wounded and sick (Article 131), and for the repression of abuses of the red cross emblem in the combat zone (Article 133). The Articles in question go into considerable detail and reproduce to a large extent the wording of Article 50 of the present Convention.
    It is desirable that States which have ratified or acceded to the Convention, should take steps without delay to give effect to the obligation incurred by them under Article 49. The arrangements to be made are undoubtedly complicated, and will take time. The International Committee of the Red Cross is therefore following the work of the International Association of Penal Law with considerable interest. The Association has placed the problem of penal sanctions in the case of international humanitarian Conventions on the agenda of the Sixth International Congress of Penal Law, which is to take place in Rome at the end [p.364] of 1952, and the International Committee of the Red Cross hopes that the discussions of this learned body will help the Committee to draft a model national law for the repression of violations of the Geneva Conventions, as it has already done in connection with the repression of abuses of the red cross emblem (1).
    In general the Geneva Conventions apply in the situations provided for in Articles 2 and 3 , that is to say, in case of war, occupation or civil war. But the provision which we are now considering is one which should be implemented in peacetime without waiting for the above situations to arise. The legislation enacted on the basis of this paragraph should, in our opinion, specify the nature and extent of the penalty for each infraction, taking into account the principle of due proportion between the severity of the punishment and the gravity of the offence. It will not be enough to leave it to the judge to fix the penalty. (2)
    Paragraph 1 refers to Article 50, which gives a list of infractions regarded as "grave breaches". This list will be considered in our comments on Article 50 .
    Under the provision which we are considering the penal sanctions which are to be provided are for persons committing grave breaches or ordering them to be committed. The joint responsibility of the author of an act and of the person ordering its commission is thus established. They are both liable to prosecution as accomplices. But there is no reference to the responsibility of those who fail to intervene, in order to prevent or suppress an infraction. In a number of such cases sentences of "guilty" have been passed by Allied courts. In view of the silence of the Convention it must be assumed that the matter is one which must be settled by national legislation, either by express provision or by applying the general provisions contained in the country's penal code.
    In the proposals which it drew up in consultation with experts and submitted to the Diplomatic Conference, the International Committee of the Red Cross had included a special Article dealing with the effect on the guilt of the author of a criminal act of his having acted in obedience to the orders of a superior or in pursuance of a general law or regulation [p.365] to which he was subject. The Diplomatic Conference did not pursue this idea, however, preferring to leave the solution of the problem to national legislation. A considerable number of military penal codes contain provisions dealing with the point, while others are silent. Whatever view is taken in the matter, it is to be hoped that the responsibility of the author of an offence committed in obedience to orders or in pursuance of a general law or regulation will be treated in the same way in the case of a national as in the case of an enemy. The International Law Commission of the United Nations, which studied the question when drawing up its Draft Code of Offences against the Peace and
    Security of Mankind, arrived after lengthy discussion, at the following formula: "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, provided a moral choice was in fact possible to him". (3)
    The conclusions of the International Law Commission tally closely with the proposals of the International Committee of the Red Cross. The latter had recommended that in assessing responsibility an effort should be made to determine whether the accused had, or had not, reasonable grounds to assume that he was committing a breach of the Convention. The International Law Commission preferred to make the criterion the possibility of moral choice -- a broader conception, since it covers not only cases where the accused has committed a legal offence, but also cases where he has acted under moral or physical constraint.

    PARAGRAPH 2 -- SEARCH FOR, AND PROSECUTION OF OFFENDERS

    The obligation imposed on the States to enact any necessary legislation implies the applicability of such legislation to any person, whether a national or an enemy, who commits a grave breach. This is a point on which a number of national laws which already penalize certain cases of violation by their nationals of the Geneva Convention, require to be supplemented.
    The obligation imposed on the Contracting Parties to search for persons accused of grave breaches of the Convention implies activity on their part. As soon as one of them is aware that a person on [p.366] its territory has committed such an offence, it is its duty to see that such person is arrested and prosecuted without delay. It is not, therefore, merely at the instance of a State that the necessary police searches should be undertaken: they should be undertaken automatically, and the proceedings before the courts should, moreover, be uniform in character, whatever the nationality of the accused. Nationals, friends and enemies should all be subject to the same rules of procedure, and should be judged by the same courts. The creation of special tribunals to try war criminals of enemy nationality is thus excluded.
    The obligation to extradite is limited by the national laws of the country in which the accused is, the Convention making an express reservation to that effect. Extradition is, moreover, to be subject to a special condition: the Contracting Party who requests that an accused person be handed over to it, must furnish evidence that the charges against the accused are "sufficient". We find a clause to that effect in most extradition laws and in the international treaties dealing with the subject. But what exactly is meant by "sufficient charges"? The answer will as a rule rest with national legislation; but in general it may be assumed to mean a case in which the facts would justify proceedings being taken in the country to which application is made for extradition. Legal authorities in the Anglo-Saxon countries speak in such cases of a "' prima facie ' case" being made out against the accused; and this term is used in the English text of the Article.
    Most laws and international treaties refuse to extradite accused persons who are nationals of the country holding them. In their case the spirit of Article 49 clearly demands that the State holding them should bring them before its own courts.
    At the same time there is nothing in the paragraph to exclude the handing over of the accused to an international penal tribunal, the competence of which is recognized by the Contracting Parties. On this point the Diplomatic Conference declined expressly to take any decision which might hamper future developments of international law. The Report dealing with the penal provisions, which was presented to the Joint Committee, may be quoted in this connection: "The Diplomatic Conference is not here", it says, "to work out international penal law. Bodies far more competent than we are have tried to do it for years". (4)

    [p.367] PARAGRAPH 3 -- REPRESSION OF OTHER INFRACTIONS

    Article 50 defines "grave breaches" of the present Convention. But Article 29 of the 1929 Convention called for the punishment of ' all ' acts contrary to the provisions of the Convention, and there could be no question of the Diplomatic Conference of 1949 not going as far as in 1929. Hence the present paragraph. Its form, it must be confessed, is not very precise. The expression "faire cesser", employed in the French text, is open to various interpretations. In our opinion it covers everything a State can do to prevent the commission, or the repetition, of acts contrary to the Convention. The Special Committee of the Joint Committee had at first proposed the wording "prendre les mesures nécessaires pour la suppression de" in the French text and the word "suppression" in the English text. In the course of the discussions in the Joint Committee the word "suppression" was left in the English text, with "redressement" as its equivalent in the French. In the end the Plenary Assembly of the Diplomatic Conference adopted the expression "faire cesser" for the
    French, again leaving "suppression" unchanged in the English. The English word "suppression" corresponds more or less exactly to the French word "répression" (though not to the French word "suppression"). The French and English texts do not therefore correspond exactly. There can, however, be no doubt that the primary purpose of the paragraph is the ' repression ' of infractions other than "grave breaches", and that the administrative measures which may be taken to ensure respect for the provisions of the Convention on the part of the armed forces and the civilian population are only a secondary consideration.
    Apart from the "grave breaches" enumerated in Article 50 , it is easy to think of other infractions which are also serious, such as the improper use of the red cross emblem in time of war. The Law Reports of Trials of War Criminals record the case of a combatant who was sentenced to six months' imprisonment for wrongful use of the red cross emblem in a combat zone. They also quote the case of a medical officer who was sentenced to 10 years imprisonment for mutilating the body of a dead soldier and leaving his corpse unburied. Other accused were actually condemned to death for acts of cannibalism committed on the persons of dead enemy soldiers (5).
    [p.368] It is thus clear that ' all ' breaches of the present Convention should be repressed by national legislation. At the very least, the Contracting Powers, having arranged for the repression of the various grave breaches and fixed an appropriate penalty for each, must include a general clause in their national legislative enactments, providing for the punishment of other breaches of the Convention. Furthermore, under the present paragraph the authorities of the Contracting Parties should issue instructions in accordance with the Convention to all their subordinates, and arrange for judicial or disciplinary proceedings to be taken in all cases of failure to comply with such instructions.
    In conclusion it may be noted that Article 54 is to some extent a duplication of the present paragraph, inasmuch as misuse of the emblem, for the repression of which Article 54 provides, is a breach of the Convention. The reason why the authors of the Convention nevertheless thought it necessary to keep Article 54 in addition to the present paragraph was that the repression of misuse of the red cross emblem is a traditional principle already embodied in the 1906 and 1929 Conventions. A whole body of legislation on the subject already exists in the different countries; and it was thought wisest not to introduce too many changes. Nevertheless, if a country were to recast its entire penal code, there would be nothing to prevent all infractions, including those in connection with the use of the emblem in peacetime, being dealt with in one and the same legislative enactment.

    PARAGRAPH 4 -- SAFEGUARDS OF PROPER TRIAL AND DEFENCE

    In the years which followed the War the International Committee of the Red Cross was concerned in various countries, in the absence of Protecting Powers,with the affairs of a number of prisoners accused of war crimes. The Committee has even on occasion been appealed to for legal assistance; and some countries, such as France, have granted it certain facilities for carrying out such work. The experience of the Committee in this connection has shown that certain safeguards of proper trial and defence are essential in all cases where persons are accused of war crimes. These safeguards are particularly necessary where the accused person is tried by an enemy court. Accordingly, the International Committee included a special Article on the subject in the [p.369] proposals which it submitted to the Diplomatic Conference. The Conference did not, however, take up the suggestion, at any rate at first. Many delegates thought the solution should be left to the national legislation of each country. It was also pointed out that most accused
    persons tried by their enemies would be prisoners of war, and would, as such, automatically enjoy adequate safeguards in view of the wording of Article 85 of the Third Convention. The French Delegation, however, realizing the desirability of placing all accused on the same footing, whatever their individual status, proposed the present additional paragraph in the course of the discussions in the Joint Committee. The Joint Committee approved the French proposal, and it was adopted by the Conference itself without being modified in any way.
    A complete analysis of the safeguards of fair trial embodied in the Third Geneva Convention (6) would be out of place here. But we may mention the principal rights which it accords to prisoners of war in case of judicial prosecution. Article 87 provides that prisoners of war may not be sentenced to any penalties except those provided for in respect of members of the armed forces of the country by which they are detained, who have committed the same acts. Under Article 99 the accused must have an opportunity to present his defence and the assistance of a qualified advocate or counsel. Article 101 provides that if the death penalty is pronounced on a prisoner of war, the sentence is not to be executed before the expiration of a waiting period of at least six months. The rules governing confinement while awaiting trial are laid down in Article 103 . Article 105 establishes in detail the rights of defence, and Article 106 accords prisoners the same rights of appeal as those enjoyed by members of the armed forces of the Detaining Power. Lastly -- and this a
    point of paramount importance -- accused persons in enemy hands are entitled to the assistance of the Protecting Power.
    The Diplomatic Conference acted wisely when it decided to refer to the rules already established for prisoners of war. It preferred not to make new law, but to refer instead to an existing body of law which had stood the test of time and would provide the accused with sure and certain safeguards.
    It may be asked in connection with this paragraph whether persons accused of war crimes can, or should, be brought to trial during hostilities. [p.370] The International Committee of the Red Cross has had occasion to point out more than once, for example to the Government Experts who met at Geneva in 1947, how difficult it is for an accused person on trial by an enemy court to prepare his defence while hostilities are still in progress. How is he to produce evidence attenuating, or even disproving, his responsibility? Cases sufficiently clear to allow of a verdict being brought before the end of the war will undoubtedly always be the exception (7).
    It would seem, therefore, that persons accused of war crimes should not, properly, be tried at a time when it is not possible for them to produce evidence attenuating or disproving their responsibility.


    * (1) [(1) p.364] See below, page 395;

    (2) [(2) p.364] We do not agree on this point with the
    Anglo-Saxon system, which was adopted by the international
    tribunal at Nuremberg and by a number of national
    legislatures after the Second World War. We cannot, for
    example, endorse the view put forward in
    Oppenheim-Lauterpacht that all war crimes, irrespective of
    their gravity, are punishable by death (6th edition, Vol.
    II, page 456);

    (3) [(1) p.365] Article 4 of the Draft Code. See Draft Report
    of the International Law Commission, covering its Third
    Session;

    (4) [(1) p.366] ' Final Record of the Diplomatic Conference of
    Geneva, 1949 ', Vol. II-B, page 115;

    (5) [(1) p.367] ' Law Reports of Trials of War Criminals ',
    Vol. XIII, pages 151-152;

    (6) [(1) p.369] The International Committee of the Red Cross
    also proposes to publish a Commentary on this latter
    Convention;

    (7) [(1) p.370] In certain instances during the Second World
    War, proceedings were taken against prisoners of war while
    hostilities were still in progress. The Japanese
    authorities, for example, prosecuted and convicted
    American airmen whom they accused of attacking other than
    military objectives. After the war the Japanese judges who
    sentenced the airmen, were themselves punished as war
    criminals by allied courts;