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Commentary - Chapter VIII : Repression of abuses and infractions
    [p.261] CHAPTER VIII


    REPRESSION OF ABUSES AND INFRACTIONS

    PENAL SANCTIONS

    (ARTICLES 50 TO 52)

    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, which began first in the second half of the XIXth century, in particular at Geneva and The Hague, result in the establishment of international rule in this particular connection.
    In line with the Geneva Convention of 1906, however, the Tenth Hague Convention of 1907 contains a coherent group of rules for repressing any violations of its provisions (1).
    The other Hague Conventions of 1899 and 1907 made no great contribution in the matter of repressive measures. They contained a series of prohibitions, but did not require the Contracting Parties to enact the legislation necessary to punish violations. In other words, punishment depended on the existence or absence of national legislation for the punishment of the acts committed.
    At the end of the First World War, 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 [p.262] had committed against the Allied troops acts which were contrary to the laws and customs of war.
    It was chiefly during the Second World War and the years that followed that the problem of punishing war criminals arose and that the authorities of various countries were led to promulgate special laws for the repression of crimes committed by the enemy against their civilian population and troops.
    During the work in preparation for the 1949 Diplomatic Conference, the International Committee of the Red Cross drew the attention of the experts to the need to include a separate chapter on the repression of violations of the Convention. In 1948, it 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)."

    At the request of the XVIIth International Conference of the Red Cross, the International Committee continued its work on the question, and at the beginning of 1948 made a thorough study of the question with four international experts; the outcome was a new draft text (3).
    At the Diplomatic Conference of 1949, the problem of penal sanctions was entrusted to the joint Committee appointed to consider 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, and consequently certain [p.263] 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).


    * (1) [(1) p.261] For an account of the historical background of
    the corresponding provisions of the 1906 Convention, see
    ' Commentary I, ' pp. 351-357;

    (2) [(1) p.262] See XVIIth ' International Conference of the
    Red Cross, Draft Revised or New Conventions for the
    Protection of War Victims, ' p. 134;

    (3) [(2) p.262] 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.263] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. III. p. 42;