ICRC databases on international humanitarian law
Treaties and Documents
1949 Conventions and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
Art. 146. Part IV : Execution of the convention #Section I : General provisions
1. ' Historical survey '
The Geneva Conventions form part of what are generally called the laws and customs of war, violations of which are commonly called "war crimes".
The punishment of infringements of the laws and customs of war is not completely new. During the XVIIIth and XIXth centuries some examples can be found of sentences punishing such infringements, but they were rare and did not form a body of precedent. The codification of the laws of war, which began in Geneva in 1864 and was continued in The Hague in 1899 and 1907, did not lead to the drawing up of international regulations on the punishment of war crimes.
Of course, the Fourth Hague Convention of 1907 concerning the Laws and Customs of War on Land stipulated, in Article 3
, that a belligerent Party which violated the provisions of the Regulations annexed to that Convention would, if the case demanded, be liable to pay compensation and would be responsible for all acts committed by persons forming part of its armed forces. The liability of the [p.584] belligerent State was, however, purely pecuniary. The various States were left entirely free to punish or not acts committed by their own troops against the enemy or by enemy troops in violation of the laws and customs of war. In other words, punishment depended solely on the existence or absence of national legislation for the punishment of the acts committed.
At the end of the First World War, however, the system hardly seemed satisfactory and the Versailles Treaty embodied provisions for the punishment of nationals of the vanquished countries who had committed against the Allied troops acts contrary to the laws and customs of war. The result of this provision in the Versailles Treaty and the Leipzig judgments arising from it are well known.
It was mainly during the Second World War and the years which followed it that the problem of punishing war criminals arose. The very numerous violations of the laws of war committed during the war had made the question an urgent one, which engaged the attention of public opinion and the authorities in the various countries.
The absence of any international regulation of this matter and the small number of national laws concerned with it led most States to pass special legislation to punish the war crimes committed by the enemy against their people and troops. Although in most cases public opinion considered it normal and fair to punish those who were condemned on the basis of these laws, there remained a certain feeling of uncertainty as to whether the verdicts given were lawful or not. Furthermore, the various penal systems are not based on the same principles. In the Anglo-Saxon countries in general, it seems that the existence of a rule of international law, whether in writing or merely customary, even if it does not include mention of penalties, enables the courts of the country to condemn those who have violated that rule, whereas in other countries, particularly on the Continent, penal law, if it is to be applicable, must include not only formal regulations but also provisions determining the nature and seriousness of the punishment. In these countries, the saying
' nulla poena sine lege ' remains fully valid.
Whatever the opinion held on the punishments inflicted after the Second World War, it would have been more satisfactory to be able to rely on already existing rules without having been obliged to have recourse to special measures.
2. ' The 1949 Convention and the preparatory work '
The events of the Second World War led the International Committee of the Red Cross to the conclusion that any international [p.585] convention dealing with laws and customs of war must necessarily include a chapter concerned with the punishment of violations of the Convention. Its opinion on that point was confirmed by the numerous requests for intervention it received on behalf of prisoners accused of war crimes who, as stated above, were tried under special legislation, since no laws for the punishment of war crimes had been drawn up in the ordinary way before the opening of hostilities. Moreover, the International Committee could not remain deaf to the arguments of those who claimed that complete and faithful application of the Conventions could only be founded on the infliction of effective punishment on those violating them.
The International Committee therefore, although it naturally had a dislike of suggesting measures of punishment, drew the attention of the conferences of experts held in Geneva in 1946 and 1947 to this important problem. The conferences recommended that the Committee should pursue its studies even more thoroughly.
In 1948, the International Committee presented to the XVIIth International Red Cross Conference the following draft Article (Article 40
of the First Convention):
"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."
That Article, therefore, provided that certain violations of the Convention would be considered as war crimes and defined the manner in which the guilty would be punished. The formula adopted was based on the principle ' aut dedere aut punire ', often used as the basis of extradition. When presenting this text to the Conference, the International Committee emphasized that its studies of the problem of punishment were still incomplete; it intended to pursue them particularly because of the development of punishment for war crimes by a considerable number of countries and the United Nations themselves.
The XVIIth Conference invited the International Committee to pursue its work in this sphere and to submit the results to a later Conference.
As a result of this invitation, the International Committee of the Red Cross, in December 1948, called to Geneva four international experts with whom the question was thoroughly examined. There resulted a draft of four new Articles to be incorporated in each of the [p.586] four Geneva Conventions, concerning the punishments to be inflicted on persons who had committed breaches of those Conventions (1).
On pages 18 to 23 of the Remarks and Proposals submitted b the International Committee of the Red Cross, for consideration b the Diplomatic Conference, will be found a short statement of the reasons which led the Committee to put forward this draft. The [p.587] experts consulted proclaimed the need to punish infractions of the Geneva Conventions. It is for that reason that each Contracting Party must promulgate the necessary legislation within two years; the carrying out of this obligation is verified automatically by the communication of the measures taken to the depositary State.
The universality of jurisdiction for grave breaches is some basis for the hope that they will not remain unpunished and the obligation to extradite ensures the universality of punishment. Furthermore, the influence of an order by a superior or of an official instruction on the responsibility of the author of the act committed is expressly provided for and stated. Finally, the experts agreed that persons accused must, despite the reprobation felt for such acts, have the full benefit of jurisdictional and procedural guarantees. The International Committee had had the opportunity of explaining to them its experiences in this domain.
At the 1949 Diplomatic Conference, the problem of the penalties to be prescribed for violation of the Conventions was entrusted for study to the joint Committee which had the task of considering all the provisions common to the four Conventions. The draft texts of the International Committee of the Red Cross were only delivered to Governments a very short time before the opening of the Conference, so that several delegations opposed their being taken as a basis of discussion. However, the Netherlands delegation adopted the proposals and placed them officially before the Conference. Consideration of them was adjourned for some weeks.
In the commentary on each of the new Articles, there will be occasion to refer to the discussions which led to their adoption. Worth special mention here is the great amount of preparatory work done outside the Conference and we wish to pay tribute to Mr. M. W. Mouton, a member of the Netherlands delegation, who was their main artisan. Finally, ten delegations put forward a joint text which, apart from a few drafting changes, was adopted by the Conference (2).
[p.588] 3. ' Outlook for the future '
The Brussels Conference for the Unification of Penal Law held in 1947 discussed the problem of the punishment of war crimes.
The General Assembly of the United Nations requested the International Law Commission to prepare a draft code of offences against the peace and security of mankind. This Code, the drafting of which was completed by the International Law Commission at its 1951 session, provides for the punishment of a number of offences among which (Article 2, II) are violations of the laws or customs of war.
It is significant that the International Law Commission based its work on the idea that such offences cause a certain difficulty in the relationships between peoples and may aggravate still further the dissensions which led to the state of war, thus making the re-establishment of peace more difficult.
The Commission, however, did not draw up a list of those violations of the laws and customs of war to be considered as war crimes. It considered, indeed, that the laws and customs of war were not precise enough to enable such a list to be made and preferred a general formula which could be adapted to developments in international law.
[p.589] The result of the International Law Commission's work is that therefore penal regulations, quite apart from those contained in the Geneva Conventions, may be put into force internationally for the punishment of breaches of those Conventions; enforcement will, therefore be ensured in two ways.
At its 1950 session the General Assembly of the United Nations bad also set up an Ad hoc Committee to work out a draft scheme for international penal jurisdiction. That Committee, which met in the summer of 1951, in the course of drawing up the draft statute for an international criminal court, discussed the type of offence which would fall within the competence of such a court. The wording adopted was very general but it was considered that among the offences within the court's competence breaches of the laws and customs of war should have their place.
This draft was again submitted to the General Assembly in 1952, which decided to set up yet another committee to examine the question again and to revise the draft. The committee met in 1953 and submitted the results of its labours to the 1954 Assembly, which adjourned consideration of the question until the session following that at which it will have examined the report of the new Ad hoc Committee working to define aggression.
There seems to be very little chance, because of the widespread opposition encountered, of the United Nations setting up an international criminal court in the near future.
. -- PENAL SANCTIONS: GENERAL OBSERVATIONS
[p.590] This Article is the cornerstone of the system used for the repression of breaches of the Convention. That system is based on three essential obligations laid upon each Contracting Party: to enact special legislation; to search for persons alleged to have committed breaches of the Convention; to bring such persons before its own courts or, if it prefers, to hand them over for trial to another High Contracting Party concerned.
The provision also refers to the list of grave breaches given in Article 147
and ends with the statement of the safeguards of proper trial and defence by which accused persons shall benefit.
PARAGRAPH 1. -- SPECIAL LEGISLATION
It is desirable that States which have ratified the Convention or acceded to it should take without delay the necessary steps to fulfil their obligations under Article 146 (3). This task of adapting penal law for the punishment of breaches of the Convention is certainly a complex one and will often require long and thorough study.
[p.591] For that reason, the International Committee, when the four Geneva Conventions of 1949 were adopted, expressed the wish to draw up a model law, on which the national legislation in various countries could be based and which would also have the advantage of creating a certain uniformity of legislation (4).
Generally speaking, the Geneva Conventions become applicable when one of the situations listed in Articles 2
occurs -- i.e. in case of war, occupation or civil war. However, Article 146 is one of those which must be put into effect in peace-time in anticipation of those situations. The laws to be enacted on the basis of this paragraph should, in our opinion, fix the nature and length of the punishment for each offence, on the principle of making the punishment fit the crime. It should not be left to the discretion of the judge (5).
Paragraph 1 refers to Article 147
, which lists the breaches considered as grave. The list will be discussed in the commentary on Article 147
According to Article 146, the penal sanctions to be provided will be applicable to persons who have committed or ordered to be committed a grave breach of the Convention, thus establishing the joint responsibility of the author of an act and the man who orders it to be done. It will be possible to prosecute them both as accomplices. There is no mention, however, of the responsibility which might be incurred by persons who do not intervene to prevent or to put an end to a breach of the Conventions. In several cases of this type the Allied courts brought in a verdict of guilty. In view of the Convention's silence on this point, it will have to be determined under municipal law either by the enactment of special provisions or by the [p.592] application of the general clauses which may occur in the penal codes.
In the proposals it submitted to the Diplomatic Conference on the basis of the advice of the experts it had consulted, the International Committee of the Red Cross had put forward a special Article dealing with the effect of having acted under superior orders on the guilt of a person who has committed a criminal offence. The Diplomatic Conference did not approve the Article and it was left to national legislation to deal with the matter. Many military penal codes contain clauses on the subject but there are some which do not. In any case, it is to be hoped that a person committing an offence under orders or in application of general instructions will be treated in the same manner, whether he is an enemy alien or a national of the country concerned. The International Law Commission of the United Nations, which considered the problem when it was drawing up its draft Code of Offences against the Peace and Security of Mankind, after long discussion first evolved the following principle: "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 under international law, provided a moral choice was in fact possible to him". (Report of the International Law Commission covering its Third Session.) Later, on the basis of comments by governments, the Commission changed this wording to provide that the accused would be responsible under international law only if, in the circumstances, it was possible for him to act contrary to superior orders.
The conclusions of the International Law Commission are very close to the proposals of the International Committee of the Red Cross, which had recommended that in assessing responsibility, it should be enquired whether the accused person could or not have reasonably been aware that he was taking part in a violation of the Convention. The International Law Commission preferred the concept of possible choice, which is much wider since it covers not only the cases where the accused has committed an offence but also those in which he acted under moral or physical coercion.
PARAGRAPH 2. -- SEARCH FOR AND PROSECUTION OF PERSONS WHO
HAVE COMMITTED GRAVE BREACHES
The obligation on each State to enact the legislation necessary implies that such legislation should extend to any person who has committed a grave breach, whether a national of that State or an enemy. The laws in a number of countries which already provide for [p.593] punishment of any breaches of the Geneva Conventions committed by their own nationals should be amended to cover this point.
The obligation on the High Contracting Parties to search for persons accused to have committed grave breaches imposes an active duty on them. As soon as a Contracting Party realizes that there is on its territory a person who has committed such a breach, its duty is to ensure that the person concerned is arrested and prosecuted with all speed. The necessary police action should be taken spontaneously, therefore, not merely in pursuance of a request from another State. The court proceedings should be carried out in a uniform manner whatever the nationality of the accused. Nationals, friends, enemies, all should be subject to the same rules of procedure and judged by the same courts. There is therefore no question of setting up special tribunals to try war criminals of enemy nationality.
Extradition is restricted by the municipal law of the country which detains the accused person. Indeed, a rider is deliberately added: "in accordance with the provisions of its own legislation". Moreover, a special condition is attached to extradition. The Contracting Party which requests the handing over of an accused person must make out a ' prima facie ' case against him. There is a similar clause in most of the national laws and international treaties concerning extradition. The exact interpretation of "' prima facie ' case" will in general depend on national law, but it may be stated as a general principle that it implies a case which, in the country requested to extradite, would involve prosecution before the courts.
Most national laws and international treaties on the subject refuse the extradition of accused who are nationals of the State detaining them. In such cases Article 146 quite clearly implies that the State detaining the accused person must bring him before its own courts.
Furthermore, this paragraph does not exclude handing over the accused to an international criminal court whose competence has been recognized by the Contracting Parties. On that point, the Diplomatic Conference specially wished to reserve the future position and not to raise obstacles to the progress of international law (6).
PARAGRAPH 3. -- SUPPRESSION OF OTHER BREACHES
defines the grave breaches of this Convention. However, under the terms of this paragraph, the Contracting Parties must [p.594] also suppress all other acts contrary to the provisions of this Convention. The wording is not very precise. The expression "faire cesser" used in the French text may be interpreted in different ways. In the opinion of the International Committee, it covers everything which can be done by a State to avoid acts contrary to the Convention being committed or repeated. The Special Committee of the joint Committee had first of all proposed the wording "prendre les mesures nécessaires pour la suppression de". During the discussions in the joint Committee, the word "suppression" was kept in the English text, whereas in the French text the word "redressement" was used. Finally, the Diplomatic Conference in plenary session adopted the wording "faire cesser" but kept the word "suppression" in the English text (7). However, there is no doubt that what is primarily meant is the repression of breaches other than the
grave breaches listed and only in the second place administrative measures to ensure respect for the provisions of the Convention.
Other grave breaches of the same character as those listed in Article 147
can easily be imagined. This was well understood when the Yugoslav Penal Code (Article 125) was adopted, since the following crimes were added to the list: forced change of nationality, forced conversion to another religion, forced prostitution, the use of intimidation and terrorization, collective punishments, illegal detention in a concentration camp, forced recruitment to the intelligence or administrative services of the Occupying Power, the starving of the population, the levying of illegal or excessive taxes or requisitions, the devaluation of the currency or the illegal issue of currency.
This shows that all breaches of the Convention should be repressed by national legislation. The Contracting Parties who have taken measures to repress the various grave breaches of the Convention and have fixed an appropriate penalty in each case should at least insert in their legislation a general clause providing for the punishment of other breaches. Furthermore, under the terms of this paragraph, the authorities of the Contracting Parties should give all those subordinate to them instructions in conformity with the Convention and should institute judicial or disciplinary punishment for breaches of the Convention.
[p.595] PARAGRAPH 4. -- PROCEDURAL GUARANTEES
The procedural guarantees listed in the Convention reproduce and develop those contained in the 1929 Prisoners of War Convention (Articles 60
The intervention of the Protecting Power and its right to be present at the hearings and to ensure that the accused persons are properly defended were mentioned in that Convention. It is by virtue of those provisions that in the post-war years the International Committee of the Red Cross has been able, in the absence of Protecting Powers, to intervene in cases of numerous prisoners accused of war crimes. It has even been called upon sometimes to assist them in legal proceedings. Some countries, such as France, have given the Committee certain facilities for carrying out such activities. The experience gained has shown the need for persons accused of war crimes to have the benefit in every case of certain procedural guarantees and the right of free defence. These guarantees are needed in particular when the accused person is tried by an enemy court. For that reason, in the draft it had submitted to the Diplomatic Conference, the International Committee had suggested a special Article to deal with the matter. At first the proposal met with
some objections; many of the delegates thought that it should be left to the national legislation of each country to settle the point. It was pointed out, furthermore, that most of the accused tried by the enemy are prisoners of war and that Article 85
of the Third Geneva Convention would automatically, therefore, give them the benefit of adequate guarantees in view of their prisoner-of-war status. The French delegation, however, realizing the importance of applying the same system to all accused whatever their personal status, proposed during the discussions held in the joint Committee that the present paragraph should be adopted. The joint Committee's approval was endorsed by the Conference.
A full analysis here of the procedural guarantees offered by the Third Geneva Convention would be out of place (8), but under it prisoners of war undergoing trial possess the following main rights: Article 87
says 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 Detaining Power who have committed the same acts. According to Article 99
, the accused shall have the opportunity to present their defence and the assistance of a qualified advocate or [p.596] counsel. Under Article 101
, if the death penalty is pronounced on a prisoner of war, the sentence must not be executed before the expiration of a period of at least six months. The time spent in custody awaiting trial is dealt with in Article 103
. Article 105
details the rights of the defence, and Article 106
states that the accused shall have the same right of appeal or petition as those open to members of the armed forces of the Detaining Power. Finally, and this is particularly important, accused persons in
the hands of the enemy must be allowed the benefit of assistance from the Protecting Power.
In referring to the rules drawn up for prisoners of war, the Diplomatic Conference took a wise decision. Rather than establish a new law it preferred to refer back to an existing law, already tried and tested, which constitutes a real safeguard for the accused.
In connection with this paragraph, it may still be wondered whether the person accused of war crimes can and should be tried during hostilities. The International Committee of the Red Cross has pointed out on several occasions, notably before the meeting of Government Experts in Geneva in 1947, how difficult it is for an accused person who is to be tried by a military tribunal to prepare his defence during hostilities. How, indeed, could he bring proof which might lessen or even disprove his responsibility? Cases clear enough for a verdict to be passed before the end of hostilities will doubtless remain an exception.
It seems to be a good rule, therefore, that the trial of a person accused of war crimes should not take place at a time when it is impossible for him to adduce proofs which could lessen his responsibility or disprove it.
Notes: (1) [(1) p.586] The following is the text of the Articles
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 violations. '
Without prejudice to the provisions of the foregoing
Article, grave breaches of 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 orders. '
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;
(2) [(1) p.587] The following is the text of this amendment in
the ' Final Record of the ' Diplomatic Conference of
Geneva of 1949, Vol. III, p. 42:
' Article A. ' -- "The High Contracting Parties, in
so far 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 [p.587] 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.
' Maritime 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.
' Prisoners of War Convention. ' The wilful killing,
torture or maltreatment, including biological experiments,
the wilful causing of great suffering or serious injury to
body or health, compelling a prisoner of war to serve in
the forces of the hostile power, or wilfully depriving the
prisoner of war of the rights of fair and regular trial
prescribed in this Convention.
' Civilians Convention. ' The wilful killing, torture
or maltreatment, including biological experiments, the
Wilful causing of great suffering or serious injury to
body or health, unlawful deportation or transfer or
unlawful confinement, compelling a protected person to
serve in the forces of a hostile power, or wilfully
depriving a protected person of the rights of fair and
regular trial prescribed in this Convention, the taking of
hostages and the extensive destruction of property, not
justified by military necessity and carried out unlawfully
(3) [(1) p.590] A number of States which have ratified this
Convention have already fulfilled this obligation.
Switzerland is an example where the Military Penal Code
has been partially revised by the addition of a new
general provision (Article 109), under which an offender
against the provisions of the international Conventions
relative to the waging of war or the protection of war
victims. will be punished for breach of his military
duties, unless more severe provisions of the Military
Penal Code are applicable. Similarly, Yugoslavia has
modified its Penal Code and adapted it to the new Geneva
Conventions. A penal law dated February 27, 1951
introduces into the new Penal Code all the grave breaches
defined in the Geneva Conventions. Article 125 covers war
crimes committed against the civilian population; indeed
the list of punishable offences is considerably larger
than that in Article 147 of the Fourth Convention. The
Netherlands issued a series of laws on May 19, 1954 which
embody in domestic criminal law the provisions of the four
Geneva Conventions for the repression of breaches of the
Conventions. Article 8 of the law punishes with
imprisonment up to 10 years those who are guilty of
violations of the laws and customs of war; if there are
aggravating circumstances a sentence of as much as 15
years imprisonment may be imposed or even, in certain
cases, the death penalty or life imprisonment or
imprisonment of 20 years.
The majority of the other countries which have
ratified the Geneva Conventions should also adapt their
penal legislation, since it will be impossible in most
cases to make do with the legislation already existing;
(4) [(1) p.591] The Sixth International Congress of Penal Law,
held in Rome in autumn 1953, had on its agenda the
repression through penal law of breaches of the
international humanitarian Conventions. Reports were
submitted to the Congress from various countries and a
general report was presented by Mr. Claude Pilloud,
Assistant Director and Head of the Legal Department of the
International Committee. The Congress laid the basis for
what might become a model law for the repression of
breaches of the Geneva Conventions (see ' Revue
internationale de Droit pénal, ' 1953, Nos. 1, 2 et 3).
Since then, work on drawing up a model law has been
continued by the International Committee of the Red Cross
and other bodies. As the discussions at the Sixth
International Congress of Penal Law showed, it is above
all in the definition of breaches that uniformity must be
sought; the fixing of the sentence and the procedure to be
followed are thought to be matters for municipal law in
(5) [(2) p.591] The Anglo-Saxon system, which was followed by
the International Tribunal at Nuremberg and which formed
the basis for several national legislations after the end
of the Second World War, seems to be rather
unsatisfactory. The system is illustrated by a statement
in the "Manuel Oppenheim-Lauterpacht" according to which
war crimes, whatever their seriousness, can be punished by
the death penalty (6th edition, Volume II, page 456);
(6) [(1) p.593] See ' Final Record, ' Vol. II-B, pp. 114-115.
The Netherlands considered it necessary to enact a special
law on extradition for war crimes (Law No. 215 of 19 May
1954), explicitly defining the conditions under which
extradition may be requested and granted;
(7) [(1) p.594] This word corresponds approximately to the
French word "répression" (but not to the French
"suppression"). Thus the English and French texts are not
in entire agreement;
(8) [(1) p.595] The International Committee of the Red Cross
intends to publish a commentary on this Convention also;