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Commentary - Chapter IX : Repression of abuses and infractions
    [p.351] CHAPTER IX


    REPRESSION OF ABUSES AND INFRACTIONS

    This Chapter, consisting of six Articles, contains important new matter in addition to earlier provisions. Articles 49 , 50 and 51 , which prescribe penal sanctions for breaches of the Convention, are almost entirely new. They have been incorporated in the same form in all four Geneva Conventions of 1949.
    Article 52 deals with the procedure for enquiries into alleged violations of the Convention; it corresponds to Article 30 of the 1929 Convention . Articles 53 and 54 deal with the misuse of the distinctive emblem of the Geneva Convention; they already figured, in a simpler form, in the Conventions of 1906 and 1929.
    Before discussing Articles 49 , 50 and 51 individually, it is necessary to make some general observations and describe the developments of law and fact which have led to their insertion in the Geneva Conventions. In view of the importance of the subject and the novel character of the provisions, a fair amount of space has been devoted to this general survey.

    PENAL SANCTIONS

    (ARTICLES 49 TO 51)

    1. ' General '

    The Geneva Convention forms part of what are generally known as the laws and customs of war, breaches of which are commonly called "war crimes". We do not propose to give here a historical record of this vast subject, which has for years engaged the attention of jurists [p.352] and courts of law in many countries. The numerous publications which have appeared on the subject, especially since 1944, have had sufficient circulation among the public to make any further reproduction of their contents superfluous.
    The idea of repressing breaches of the laws and customs of war is not altogether new. The 18th and 19th centuries both afford 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 constitute a corpus of case law. Nor did the codifications of the laws of war, first at Geneva in 1864, and later at The Hague in 1899 and in 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 the Convention should, if the case demanded, be liable to pay compensation, and should be responsible for all acts committed by persons forming part of its armed forces. But the responsibility thus imposed on the belligerent State was purely pecuniary. States were left completely 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 anything but satisfactory, 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 sequel to this provision and the decisions of the Leipzig Court are matters of public knowledge.
    When the Convention relative to the treatment of prisoners of war was adopted in 1929, the question of the repression of violations of that Convention was again passed over in silence, and 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.
    [p.353] The absence of international legislation and the meagre character of internal legislation on the subject led the majority of States to promulgate special laws for the repression of war crimes committed by the enemy against the civilian population and troops of the legislators. Although in most cases public opinion thought it natural and just that those convicted under this lad hoc legislation should be punished, there remained nevertheless a certain element of doubt as to the regularity of the sentences passed. There is, moreover, no unity of inspiration between the different penal systems. In the Anglo-Saxon countries it would appear that the existence of a rule of international law, whether explicit or customary, and whether it makes provision for penal sanctions or not, entitles national tribunals to pass sentence when the rule is violated. In the countries of the European continent, on the other hand, a penal law can only be applied if it embodies a normative rule, and further carries explicit provisions with regard to the nature
    and severity of the penalty. In these latter countries the maxim ' nulla poena sine lege ' has lost none of its force.
    Whatever one's views may be on the repressive action taken after the Second World War, it will be agreed that it would have been more satisfactory, had it been possible to base it on existing rules without being obliged to have recourse to lad hoc measures.

    2. ' The system adopted in the First Geneva Convention '

    In the history of the laws and customs of war the Geneva Convention was the first instrument to incorporate a coherent system of rules for the repression of violations of its provisions. It is true that the 1864 Convention was silent on the subject. The Government representatives who met in Geneva had no doubt failed to foresee the possibility of such violations occurring, since they rejected a clause in the draft, which was designed to repress certain infractions; the clause, it is true, was much too narrow in scope. (1) After the war of 1870, however, Gustave Moynier, the President of the International Committee of the Red Cross, suggested the establishment of an international jurisdiction for the [p.354] prevention and repression of breaches of the Geneva Convention. Reverting to these suggestions and developing them some years later (2), he proposed that the desired reform should be introduced in two distinct stages. The first step would be to fix the nature and scale of the penalties for violations of the different Articles of the Convention. In the second stage an acceptable judicial organ was to be selected, in spite of the unusual character which it would certainly be necessary to impart to it.
    On the first point Moynier, noting the opposition which his proposal to promulgate an international law had encountered, proposed that a model law should at least be adopted. He defended his attitude as follows:

    "... By leaving each State completely free to draft its own penal legislation independently -- that is to say to determine the acts to be considered as infractions and the manner in which their authors are to be dealt with -- we forfeit the principal advantage which an international law would have afforded -- namely, the assurance that every ill-intentioned individual will know in advance the risk he is incurring by defying the Convention. His punishment will depend on the hazards of the war. It is possible that the offender will be judged by his nationals; for if they know of his offence, they are bound to convict him and impose the penalty for which their own legislation provides. But on the other hand, he may be captured by the enemy who has been the victim of his offence, and being then subject to the jurisdiction of the enemy's courts and liable to the penalties which the enemy's laws imposes, may, perhaps, be dealt with either more or less harshly than he would have been by his compatriots. This regrettable consequence of capture would be
    mitigated if a model law were prepared by competent persons and submitted unofficially to the various Governments with an invitation to adopt it in so far as it is not inconsistent with the principles which they profess. Complete uniformity could not be expected; but something approaching it might be attained."

    On the second point what Moynier had in view was neutral jurisdictions responsible for investigating breaches and deciding questions of guilt; it should, he suggested, be left to national courts to pass sentence and inflict penalties. Moynier's study of the question concludes with the draft of a proposed Convention.
    In 1895 the problem was discussed at a meeting at Cambridge of the Institute of International Law. The idea of an international penal law was rejected, but the proposal for an international Convention under which each State would undertake to enact penal legislation for the [p.355] repression of breaches of the Geneva Convention, was adopted. The idea of a model law was also approved; it was to be drawn up by the Institute of International Law to serve as a guide to national legislators.
    There was, however, no agreement on the subject of the international jurisdiction advocated by Moynier. The discussion led rather to the idea of a body to control the execution of the Convention, and to note violations; the name of the International Committee of the Red Cross was put forward in this connection. The idea, which was to reappear in 1929 (3), is not relevant here, and we shall not, therefore, trace its subsequent development.
    When the Geneva Convention was revised in 1906, the problem of the repression of breaches of the Convention was once more raised, and was referred to in the ' questionnaire ' attached to the invitation issued by the Federal Council. After an interesting discussion (4), a large majority voted for the inclusion in the Convention of a provision requiring the Contracting States to enact legislation for the repression of breaches. The Fourth Committee adopted a text providing for the repression of all breaches without distinction; but in the Drafting Committee's Final Report this text was replaced by Article 28, which only provides for the repression of two particular cases of violation -- namely, (1) individual acts of pillage and ill-treatment of the wounded and sick of armed forces, and (2) abuse of the Red Cross flag or armlet, which is to be punished as an unlawful use of military insignia. The difference, the Final Report explains, is to prevent misunderstandings, but is only a difference... of form!
    The Hague Conventions of 1899 and 1907 did not mark any appreciable progress in the matter of repression. They contain a number of prohibitions; but they do not impose on the Contracting States any obligation to promulgate penal ordinances for the repression of infractions. The most that they do in this connection is to provide, in Article 1 of the Fourth Convention (respecting the laws and customs of war on land), that the contracting Powers are to give their armed land forces instructions which are in conformity with the annexed Regulations. This provision implies that, if instructions have in fact been given to the [p.356] armed forces, infringements must at least involve disciplinary penalties. But it is clear that such a formula cannot cover cases in which the offences have been committed under orders given or general instructions issued; nor can it extend to acts committed by the enemy (5). The Tenth Hague Convention of 1907 (for the adaptation to maritime warfare of the principles of the Geneva Convention) has provisions (in Article 21 ) similar to those of the 1906 Convention.
    In general the invitation in the 1906 Convention to promulgate penal provisions for the repression of two major breaches of the said Convention, met with very little response. In 1929 the Swiss Federal Council, in its capacity as depositary of the Convention, had only received two penal laws, promulgated by Norway and the Netherlands respectively. A number of military penal codes, however, which had been revised in the interval, contained clauses repressing abuse of the red cross emblem in wartime as an unlawful use of military insignia, as well as acts of pillage and ill-treatment of the wounded and sick of armed forces. A provision of the Swiss Military Penal Code of 1927 (Chapter VI) might be quoted in this connection; and reference might also be made to the Rumanian Law of 17 May 1913, which punishes not only unlawful use of the red cross emblem and acts of pillage and ill-treatment of the wounded, but also offences against medical personnel. In the same way, the law concerning military offences, promulgated by the USSR on 27 July 1927, deals with the matter very fully, and a Cuban Decree of 15 August 1910 expressly penalizes these infractions. (6)
    In 1929, when the revision of Article 28 of the Geneva Convention came up for discussion, the idea of providing for the repression of all breaches of the Convention and not merely of the two specified in 1906, was again put forward. The draft of the International Committee of the Red Cross added at the end of Article 28 of the 1906 Convention the following words: "and in general all acts contrary to the provisions of the Convention". In the course of the discussion the United States Delegate proposed an amendment to Article 28 , which reproduced the sense of the Committee's text -- though in a different form. The American [p.357] amendment was preferred; and it became Article 29 of the 1929 Convention . (7)
    The States party to the 1929 Convention do not seem, however, to have done any more than in 1906 to give effect to the obligation to promulgate penal provisions for the repression of ' all ' breaches of the Convention, clear and imperative as the text of Article 29 was. The failure on the part of certain States to comply with the Article, and to promulgate laws for the repression of all infractions, was no fault of the Convention itself.
    It may further be noted that the Commission on Responsibilities appointed by the Allies on the morrow of their victories in 1918 drew up a list of the violations of the laws and customs of war which called for repression. This list was taken by the War Crimes Commission of the United Nations as a working basis. The list includes murders and massacres, pillage, deliberate bombing of hospitals, violation of other rules relating to the red cross, and ill-treatment of the wounded. It is thus clear that the Commission on Responsibilities meant to cover the most serious breaches of the 1906 Convention, and the list undoubtedly influenced the authors of the 1929 Convention when they drew up Article 29 .

    3. ' 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) under legislation ad hoc, in the absence of any appropriate legislation duly drawn up before the outbreak of hostilities. On the other hand, the Committee could not remain indifferent to the argument that complete and loyal respect for the Conventions must be based on the imposition of effective penalties on those guilty of violating them.
    Accordingly the International Committee, though naturally reluctant to propose punitive measures, drew the attention of the Conferences of [p.358] Experts which met at Geneva in 1946 and 1947, to this important issue. The Conferences asked the Committee to make a more thorough study of the question.
    In 1948 the International Committee submitted the following draft Article (Article 40) to the XVIIth International Red Cross Conference:

    "The Contracting Parties shall be under the obligation to search for persons charged with breaches of the present Convention, whatever their nationality. They shall further, in accordance with their national legislation or with the Conventions for the repression of acts considered as war crimes, refer them for trial to their own courts, or hand them over for judgment to another Contracting Party."

    The proposed Article provided, therefore, that certain violations of the Convention were to be considered as war crimes, and laid down the manner in which those guilty were to be punished. The text was based on the principle ' aut dedere aut punire ', the validity of which is often admitted in cases of extradition. In submitting its proposal to the Conference, the International Committee had stated that it did not regard its study of the question of penalties as having been completed. It proposed to enquire further into the question, in view especially of the development given to the repression of war crimes by a whole series of different countries and by the United Nations themselves.
    The XVIIth International Conference requested the International Committee to continue its work on the question, and submit proposals to a later Conference.
    In response to this request the International Committee invited four Government 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 Conventions, on the penalties applicable to persons guilty of violating the provisions of the Conventions. (8)
    [p.359] The booklet ' Remarks and Proposals submitted by the International Committee of the Red Cross ', specially prepared for the Diplomatic Conference of 1949, contains (on pages 18-23) a brief statement of the reasons which led the Committee to submit these draft Articles. The experts agreed that breaches of the Geneva Conventions must not be allowed to go unpunished. Each Contracting State was therefore required to promulgate the necessary legislation within two years, the implementation of this obligation being automatically controlled by a provision requiring the communication of the measures taken to the depositary State (Switzerland).
    The universality of jurisdiction in cases of grave violation justifies the hope that such offences will not be left unpunished; and the obligation [p.360] to extradite will help to make their repression general. 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 is, moreover, considered and defined. Furthermore, the experts agreed that, in spite of the censure that such acts occasion, accused persons were entitled to safeguards of proper trial and defence. The International Committee had had an opportunity of informing the experts of its own experience in this connection.
    At the Diplomatic Conference of 1949 the problem of the provision of penal sanctions for violation of the Conventions was entrusted to the so-called Joint Committee appointed to consider all the provisions common to all 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, with the result that certain delegations objected to 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 nevertheless, their consideration merely being postponed for some weeks.
    In the comments which follow on each of the new Articles we shall have occasion to recall the discussions which led to their adoption. Reference need only be made here to the large amount of preparatory work which took place outside the Conference; a special tribute is due to Judge N.W. Mouton, a member of the Netherlands Delegation, who was mainly responsible for it. In the end ten delegations submitted a joint text which was, with certain minor changes, adopted by the Conference. (9)

    [p.361] 4. ' Future prospects '

    The Congress for the Unification of Penal Law, which met at Brussels in 1947, considered the problem of the punishment of war crimes.
    The United Nations for their part instructed the International Law Commission to prepare a draft code of offences against the peace and security of mankind. This code, the text of which was completed by the International Law Commission at its 1951 Session, provides for the repression of a series of offences, including (Article 2, sub-paragraph 11) acts in violation of the laws or customs of war.
    It is significant that the International Law Commission based its labours on the view that such violations are bound to mar the relations existing between peoples, and are liable to aggravate still further the disagreements which have led to war, thus rendering the reestablishment of peace more difficult.
    The Commission did not, however, draw up a list of the violations of the laws and customs of war which should be regarded as war crimes, because it did not consider that the laws and customs of war were sufficiently clearly defined to allow of any such list. It preferred a general form of wording which could be adapted to the development of international law.
    The work of the Commission shows that there is a possibility of developing, side by side with the Geneva Conventions, international penal regulations for the repression of breaches of the said Conventions. The punishment of such breaches would thus be doubly ensured.
    In addition to the work of the International Jaw Commission, the General Assembly of the United Nations at its 1950 Session appointed a special Committee to draw up a scheme for the establishment of an international criminal court. The Committee met in the summer of 1951, drew up draft statutes for an International Criminal Court and [p.362] discussed the question of the type of offence with which the Court should deal. The wording adopted was very general; but breaches of the laws and customs of war were to be included within the jurisdiction of the Court.


    * (1) [(1) p.353] Article 10 of the draft Convention was worded
    as follows: "Persons without the right to wear the armlet,
    who assume it for the purpose of committing acts of
    espionage, shall be punished with the full rigour of
    military law". A similar proposal was made to the
    Diplomatic Conference of 1868, which considered the
    revision of the Geneva Convention, but it was again
    rejected;

    (2) [(1) p.354] See G. MOYNIER, ' Considérations sur la
    sanction pénale à donner à la Convention de Genève ',
    Geneva, 1893;

    (3) [(1) p.355] See Paul DES GOUTTES, ' Commentaire de la
    Convention de Genève du 27 juillet 1929 ', Geneva, 1930,
    page 212;

    (4) [(2) p.355] ' Actes de la Conférence de révision réunie à
    Genève en 1906 ', Geneva, 1906 pages 158-200;

    (5) [(1) p.356] The Regulations of 1907 (Article 23 (f))
    forbids the improper use of the distinctive badges of the
    Geneva Convention;

    (6) [(2) p.356] See ' Recueil de textes relatifs à
    l'application de la Convention de Genève et à l'action des
    Sociétés nationales dans les Etats parties à cette
    Convention, ' Geneva, 1934;

    (7) [(1) p.357] See ' Actes de la Conférence diplomatique de
    Genève de 1929 ', pages 332-336;

    (8) [(1) p.358] The text of the four Articles was as follows:

    I. ' Legislative measures '

    The High Contracting Parties undertake to incorporate
    the present Convention as part of their national law, to
    ensure the prosecution of any act contrary to its
    provisions, and to enact provisions for the repression, by
    criminal penalties or appropriate disciplinary measures,
    of any breach of the Convention.
    Within two years after the ratification of this
    Convention, the High Contracting Parties undertake to
    communicate to the Swiss Federal Council, for transmission
    to all signatory or adhering States, the laws and other
    measures adopted in pursuance of this Article.

    II. ' Grave violation '

    Without prejudice to the provisions of the foregoing
    Article, grave breaches o the Convention shall be punished
    as crimes against the law of nations by the tribunals of
    any of the High Contracting Parties or by any
    international jurisdiction, the competence of which has
    been recognized by them. Grave breaches shall include in
    particular those which cause death, great human suffering,
    or serious injury to body or health, those which
    constitute a grave denial of personal liberty or a
    derogation from the dignity due to the person, or involve
    extensive destruction of property, also breaches which by
    reason of their nature or persistence show a deliberate
    disregard of this Convention.
    Each High Contracting Party shall in conformity with
    the foregoing Article enact suitable provisions for the
    extradition of any person accused of a grave breach of
    this Convention, whom the said High Contracting Party does
    not bring before its own tribunals.

    III. ' Superior order '

    The fact that the accused acted in obedience to the
    orders of a superior or in pursuance of a law or
    regulation shall not constitute a valid defence, if the
    prosecution can show that in view of the circumstances the
    accused had reasonable grounds to assume that he was
    committing a breach of this Convention. In such a case the
    punishment may nevertheless be mitigated or remitted, if
    the circumstances justify.
    Full responsibility shall attach to the person giving
    the order, even if in giving it he was acting in his
    official capacity as a servant of the State.

    IV. ' Safeguards '

    The High Contracting Parties undertake not to subject
    any person accused of a breach of this Convention,
    whatever his nationality, to any tribunal of extraordinary
    jurisdiction. They also agree that they will not apply any
    penalty or repressive measure which is more severe than
    those which are applied to their own nationals or which is
    contrary to the general principles of law and humanity.
    They shall grant any person accused all rights of defence
    and appeal recognized by common law.
    The safeguards of proper trial and defence shall not
    in any case be less favourable than those provided by
    Article 95 and the following Articles of the Convention
    relative to the Treatment of Prisoners of War.
    Safeguards of a similar nature shall apply if the
    accused is charged before any international jurisdiction;

    (9) [(1) p.360] The text of this amendment, as given in the
    ' Final Record of the Diplomatic Conference of Geneva,
    1949 ', Vol. III, page 42, is as follows:

    ' Article A. ' "The High Contracting Parties, insofar
    as this Convention cannot be otherwise implemented,
    undertake to enact in accordance with their respective
    Constitutions, legislation to provide effective penalties
    for persons committing or ordering to be committed any of
    the grave breaches defined in the following Article.

    "Each Contracting Party shall be under the obligation
    to search for persons alleged to have committed or to have
    ordered to be committed any of the above mentioned grave
    breaches and shall, regardless of their nationality, bring
    before its own courts all persons committing or ordering
    to be committed such grave breaches, or if it prefers, and
    provided that a ' prima facie ' case has been made out by
    another High Contracting Party concerned, hand them over
    for trial to such Contracting Party.

    "Each High Contracting Party shall take measures
    necessary for the repression of all acts contrary to the
    provisions of the present Convention other than the above
    mentioned grave breaches."

    ' Article B. ' "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:

    ' Wounded and Sick Convention '

    "the wilful killing, torture or maltreatment,
    including biological experiments, the wilful causing of
    great suffering or serious injury to body or health, and
    the extensive destruction of property, not justified by
    military necessity and carried out unlawfully and
    wantonly.";