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Commentary - Art. 51. Chapter VIII : Repression of abuses and infractions
    ARTICLE 51. -- PENAL SANCTIONS: II. GRAVE BREACHES


    [p.267] The idea of defining grave breaches in the Convention itself must be laid to the credit of the experts convened in 1947 by the International Committee of the Red Cross, which envisaged that repression should be universal.

    A. ' Wilful killing '. -- "Wilful killing" also covers faults of omission, provided the omission was intended to cause death. In the same way, any putting to death as a reprisal also comes within the definition of wilful killing, since reprisals are forbidden by Article 47 . Wilful killing as referred to by the Convention might also be committed either against persons who have fallen into enemy hands, or against military personnel fighting with their own armed forces, as for instance in the case of the killing of shipwrecked persons.
    At the Nuremberg trials, Admiral Doenitz was accused of having given orders forbidding any attempt to rescue shipwrecked persons of enemy nationality (1). The International Military Tribunal found that it had not been established with sufficient certainty that Admiral Doenitz had given orders for the execution of shipwrecked persons, but held that his ambiguous orders were open to grave reproach (2).
    [p.268] Mention may also be made of the Greek vessel ' Peleus ' which was sunk in mid-Atlantic on March 13, 1944, by a German submarine which then opened fire on the crew who had taken to rafts. The accused were found guilty by a British tribunal and three of them were executed (3).
    The killing of shipwrecked persons therefore constitutes wilful killing as referred to in the Convention.
    As regards the fate of crews, the London Protocol of 1936 provides that a submarine commander may not sink a merchant vessel unless he is in a position to rescue the crew. The International Military Tribunal, at Nuremberg, found that Admiral Doenitz had violated the Protocol by giving orders contrary to that rule. The accused was, however, not charged on this count, since similar orders had been given to American and British submarines.

    B. ' Torture '. -- The word "torture" refers here especially to the infliction of suffering on a person in order to obtain from that person, or from another person, confessions or information. Since judicial torture was abolished at the end of the XVIIIth century, this notion has disappeared from national penal codes. It is to be deplored that in fact, usually under special legislation, resort is still sometimes had to this odious practice. If necessary, national legislation should be amended so as to forbid any such practices (4).

    C. ' Inhuman treatment '. -- The Convention provides, in Article 12 , that protected persons must always be treated with humanity. The sort of treatment covered here would therefore be whatever is contrary to that general rule. It could not mean, it seems, solely treatment constituting an attack on physical integrity or health; the aim of the Convention is certainly to grant protected persons who are in enemy hands a protection which will preserve their human dignity and prevent their being brought down to the level of animals. Certain measures, for example, which might cut off prisoners of war completely from the outside world and in particular from their families, or which would cause great injury to their human dignity, should be considered as inhuman treatment.

    [p.269] D. ' Biological experiments '. -- Biological experiments are injurious to body or health and as such are dealt with in most penal codes. The memory of the criminal practices of which certain prisoners were victim led to these acts being included in the list of grave breaches. The prohibition does not, however, deny a doctor the possibility of using new methods of treatment justified by medical reasons and based only on concern to improve the state of health of the patient. It must be possible to use new medicaments offered by science, provided that they are administered only for therapeutic purposes.
    This interpretation is fully consistent with the provisions of Article 12 .

    E. ' Wilfully causing great suffering '. -- This refers to suffering inflicted as a punishment, in revenge or for some other motive, perhaps out of pure cruelty, as apart from suffering which is the result of torture or biological experiments. In view of the fact that suffering in this case does not seem, to judge by the phrase which follows, to imply injury to body or health, it may be wondered if this is not a special offence not dealt with by national legislation. Since the Conventions do not specify that only physical suffering is meant, the provision can quite legitimately be held to cover moral suffering also.

    F. ' Serious injury to body or health '. -- This is a concept quite normally encountered in penal codes, which usually take as a criterion of seriousness the length of time the victim is incapacitated for work.

    G. ' Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and want-only. ' -- This definition covers, in particular, cases of destruction of hospital ships, rescue craft or medical installations, and medical aircraft, in violation of the corresponding Articles of the Convention (5). It also covers cases where medical equipment or transport are seized without the prescribed conditions being respected (6). [p.270] It will be for the courts to decide whether the conditions set forth by the above definition are fulfilled.
    The destruction of hospital ships or rescue craft will almost always lead to wilful killing, inhuman treatment, great suffering or serious injury for wounded, sick or shipwrecked persons and the crew of such vessels. A grave breach of the Convention will thus have been committed. The various trials for war crimes which were held at the end of the Second World War did not include any case where a person was accused of having caused the destruction of a hospital ship.


    * (1) [(1) p.267] According to statements made during another
    trial by an accused German, those orders forbade picking
    up persons from the sea, putting them in lifeboats,
    righting capsized lifeboats or giving food and water to
    shipwrecked persons. Only those who could give important
    information were to be rescued. (Trial of Karl-Heinz
    Moehle in: Law Reports of Trials of War Criminals, Vol.
    IX, p. 75.);

    (2) [(2) p.267] The commander of the Fifth Submarine Flotilla
    was, on the other hand, sentenced to a term of punishment
    by a British tribunal for having added comments to the
    orders of Admiral Doenitz. For instance, he had stated
    that the crew of a submarine which came across a raft on
    which were five enemy airmen should have destroyed it
    instead of leaving it to go on its way as had actually
    been done. He had also criticized the fact that, after
    sinking an enemy ship, a submarine had let the crew get
    away. (See ' Trial of Karl-Heinz Moehle, Law Reports of
    Trials of War Criminals, ' Vol. IX, p. 75 ff.);

    (3) [(1) p.268] See ' Law Reports of Trials of War
    Criminals, ' Vol. I, p. 1 ff.;

    (4) [(2) p.268] Article 17 of the Third Convention of 1949
    expressly forbids the use of coercion during the
    questioning of prisoners of war;

    (5) [(1) p.269] Articles 22, 23, 24. 25, 27, 28, 38 and 39;

    (6) [(2) p.269] See in particular Article 28;