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Commentary - Art. 130. Part VI : Execution of the convention #Section I : General provisions

    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. If repression of grave breaches was to be universal, it was necessary to determine what constituted them. There are, however, violations which would constitute minor offences or mere disciplinary faults and as such they could not be punished to the same degree. ' Protected persons ' are defined by Article 4 . The word "property" was introduced into this Article in error, having been included rightly in the corresponding Article (Article 147 ) of the Fourth Convention.

    A. ' Wilful killing '. -- "Wilful killing" would appear to cover faults of omission. Of course, the omission must have been wilful and intended to cause death. Persons who gave instructions for the food [p.627] rations of prisoners of war to be reduced to such a point that deficiency diseases causing death occurred would be held responsible. In the same way, any putting to death as a reprisal would certainly come within the definition of wilful killing, since reprisals are forbidden by Article 13 .
    On the other hand, cases in which prisoners of war are killed as a result of acts of war -- for example the bombardment of a hospital -- are perhaps in a different category; the question is left open.

    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. It is nevertheless important that practices which are authorized or tolerated by special legislation should not lead to any revival of judicial torture which was abolished a long time ago. If necessary, the national legislation should forbid any such practices (1).

    C. ' Inhuman treatment '. -- The Convention provides, in Article 13 , that prisoners of war 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 prisoners of war 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 prisoners of war off 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.

    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 [p.628] 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 in agreement with the provisions of Article 13 .

    E. ' Wilfully causing great suffering '. -- This refers to suffering inflicted as a punishment, in revenge or for some other motive, perhaps out of pure sadism, 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, it 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. ' Compelling a prisoner of war to serve in the forces of the hostile Power '. -- This is an offence sui generis. A French decree of August 8, 1944, treats this offence in the same way as illegal recruitment into the armed forces, which is covered by Article 92 of the French penal code. That procedure, however, scarcely seems satisfactory. Provisions of the penal codes punishing coercion could also be invoked, it would seem; but again the fact that coercion is exercised by the authorities puts rather a different complexion on the case (2).

    H. ' Wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention '. -- It is the Convention itself in many Articles which specifies the conditions in which prisoners of war may be tried before the courts. In other words, the breach mentioned here can be split into a number of different offences, for example: making a prisoner of war appear before an exceptional court without notifying the Protecting Power, without defending counsel, etc.

    [p.629] CONCLUSIONS

    1. The ratification of the Third Geneva Convention of 1949 will necessitate in the great majority of States the enactment of additional penal laws applicable to all offenders, whatever their nationality and whatever the place where the offence has been committed.

    2. It is desirable that this legislation should be in the form of a special law, defining the breaches and providing an adequate penalty for each.

    3. If it is impossible to enact such special legislation, it will be necessary to resort to a simpler system which would include as a minimum:

    (a) special clauses classing as offences with a definite penalty attached
    to each: torture; inhuman treatment; causing great suffering;
    compelling a prisoner of war to serve in the forces of a hostile
    Power; wilfully depriving a prisoner of war of the rights of fair and
    regular trial.

    (b) A general clause providing that other breaches of the Convention will
    be punished by an average sentence, for example imprisonment for from
    five to ten years, in so far as they do not constitute offences or
    crimes to which more severe penalties are attached in the ordinary or
    military penal codes. This general clause should also provide that
    minor offences can be dealt with through disciplinary measures.

    * (1) [(1) p.627] Article 17 expressly forbids the use of
    coercion during questioning;

    (2) [(1) p.628] It may be recalled that the Hague Regulations
    of 1907, in Article 23, forbid a belligerent to compel the
    nationals of a hostile party to take part in the
    operations of war directed against their own country, even
    if they were in the belligerent's service before the
    commencement of the war;