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Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
. -- PENAL SANCTIONS: I. GENERAL OBSERVATIONS
PARAGRAPH 1. -- SPECIAL LEGISLATION
The present provision must be put into effect in peace-time, in anticipation of the situations listed in Article 2
(1). The laws [p.264] enacted on the basis of this paragraph should, in our opinion, fix the nature and duration of the punishment for each offence, on the principle of making the punishment fit the crime (2).
In order to make easier the implementation of these provisions, and at the same time to create a certain uniformity of legislation, when the four Geneva Conventions were adopted the International Committee expressed the wish to draw up a model law on which the national legislation in the various countries could be based (3).
The sanctions to be provided will be applicable to persons who have committed or ordered to be committed a grave breach of the Convention; it will thus be possible to prosecute as accomplices both the author of an act and the co-author. There is no mention, however, of the responsibility which may be incurred by persons who do not intervene to prevent or put an end to a breach of the Convention. This is nevertheless an important question which will have to be determined under national legislation.
As regards the guilt of a person who has acted under superior orders, one may refer to the wording adopted by the International Law Commission of the United Nations, which might be taken as a basis for national legislation: "The fact that a person charged with an offence defined in this Code acted pursuant to orders of [p.265] 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".
PARAGRAPH 2. -- SEARCH FOR AND PROSECUTION OF PERSONS
WHO HAVE COMMITTED GRAVE BREACHES
A State must spontaneously institute a search for persons accused of having committed grave breaches, whatever the nationality of the person concerned; moreover, whether the accused are nationals or foreigners, allies or enemies, all must be subject to the same rules of procedure and must be judged by the same courts.
Extradition is restricted by the legislation of the country which detains the accused person and in addition the Contracting Party which requests the handing over of an accused person must make out a prima facie case against him. If the national legislation does not contain the relevant details, the term "prima facie case" should be interpreted as implying one which in the country requested to hand over would involve prosecution before the courts.
If handing over cannot take place because of the nationality of the accused, the State detaining him must bring him before its own courts (4).
PARAGRAPH 3. -- SUPPRESSION OF OTHER BREACHES
Apart from the grave breaches defined in Article 51
, the Contracting Parties must take measures necessary for the suppression of all other acts contrary to the Convention. The expression "' faire cesser" ' used in the French text is not very precise, but there seems no doubt that what is primarily meant is the repression of the incriminated acts, and only in the second place administrative measures to ensure respect for the provisions of the Conventions.
The Contracting Parties which have taken measures to repress the various grave breaches of the Convention and have fixed an [p.266] appropriate penalty in each case should therefore insert in their legislation a general clause providing for the punishment of other breaches.
PARAGRAPH 4. -- PROCEDURAL GUARANTEES
The procedural guarantees are those provided by the Convention relative to the Treatment of Prisoners of War (5), which are based in part upon the experience gained by the International Committee of the Red Cross during and after the Second World War. That experience showed the need for persons accused of war crimes to have certain procedural guarantees and the right of free defence. At the 1949 Diplomatic Conference, the French Delegation therefore proposed the present paragraph, which was based on a suggestion made earlier by the International Committee of the Red Cross and provides for the same system to be applied to all accused, whatever their personal status.
In referring to the rules contained in Article 105
and those following
of the Third Convention, the Diplomatic Conference took a wise decision. Rather than establish a new law, it referred 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 persons 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 verdict to be passed before the end of hostilities will doubtless remain an exception.
* (1) [(3) p.263] A number of States have already fulfilled this
obligation, including Yugoslavia, Switzerland, the
Netherlands, Thailand, Ethiopia, the United Kingdom,
Australia and New Zealand;
(2) [(1) p.264] Thus, in the United Kingdom, the Geneva
Conventions Act, 1957. provides that any grave breach such
as those defined in Article 51 below (First Convention,
Article 50; Third Convention. Article 130; Fourth
Convention, Article 147) which has brought about the death
of a protected person is punishable by life imprisonment;
in the case of a grave breach which has not brought about
the death of a person, the punishment is not to exceed
fourteen years' imprisonment;
(3) [(2) p.264] The Sixth International Congress of Penal Law,
held at Rome in the autumn of 1953, had on its agenda the
protection through penal law of the international
humanitarian Conventions. Reports were submitted to the
Congress from various countries and a general report was
presented by Mr. Claude PILLOUD, 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,
3 and 4).
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 national
legislation in each country.
In the course of the discussions, however, such
divergent opinions where expressed that there is little
hope of arriving at an overall solution for the time
(4) [(1) p.265] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-B, pp. 114-115.
The Netherlands considered it necessary to enact a special
law on handing over for war crimes (Law No. 215 of May 19,
(5) [(1) p.266] See ' Commentary III, ' pp. 625-626;