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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
. -- GRAVE BREACHES
[p.597] The idea of defining grave breaches in the Convention itself must be laid to the credit of the experts convened in 1948 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. However, there are violations of certain detailed provisions of the Geneva Convention which would constitute minor offences or mere disciplinary faults which as such could not be punished to the same degree.
It was also thought advisable to draw up as a warning to possible offenders a clear list of crimes whose authors would be sought for in all countries. The idea had been stated in the draft of Article 40, which defined in a rather general way what was meant by grave breaches. A joint amendment submitted to the Diplomatic Conference by a number of delegations led to the inclusion in each Convention of a list of offences defined more exactly. It was that text which was finally adopted by the Conference with slight alterations (1).
' Protected persons ' are defined by Article 4
and ' protected property ' by various provisions of the Convention, including Articles 18
' Wilful killing. ' -- "Wilful killing" would appear to cover cases where death occurs through a fault of omission. Of course, the omission must have been wilful and there must have been an intention to cause death by it. It seems, therefore, that persons who gave instructions for the food rations of civilian internees to be reduced to such a point that deficiency diseases causing death occurred among the detainees 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 the Convention forbids reprisals against protected persons. The same applies to the execution of hostages.
On the other hand, cases in which protected persons are killed as a result of acts of war -- for example, the bombardment of a civilian hospital -- are more difficult to class as wilful killing: the question is left open.
[p.598] ' Torture. ' -- The word torture has different acceptations. It is used sometimes even in the sense of purely moral suffering, but in view of the other expressions which follow (i.e. inhuman treatment including biological experiments and suffering, etc.) it seems that it must be given here its, so to speak, legal meaning -- i.e., the infliction of suffering on a person to obtain from that person, or from another person, confessions or information. Looked at from this angle, torture is a concept which in general is not dealt with as such by national penal codes. It is more than a mere assault on the physical or moral integrity of a person. What is important is not so much the pain itself as the purpose behind its infliction. This, therefore, is a point which will require additional clauses in most national legislations; fortunately, judicial torture has disappeared from all civilized penal systems.
' Inhuman treatment. ' -- This idea is rather difficult to define. In general, the Convention provides, in Article 27
, that protected persons must always be treated with humanity. The sort of treatment covered by this Article, therefore, would be one which ceased to be humane. 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 civilians in enemy hands a protection which will preserve their human dignity and prevent them being brought down to the level of animals. That leads to the conclusion that by "inhuman treatment" the Convention does not mean only physical injury or injury to health. Certain measures, for example, which might cut the civilian internees off completely from the outside world and in particular from their families, or which caused grave injury to their human dignity, could conceivably be considered as inhuman treatment.
' Biological experiments. ' -- Biological experiments are certainly injuries to body or health and as such will be dealt with in most penal codes. It was the memory of the criminal practices of which certain prisoners were victim that led to these acts being included in the list of grave breaches. Only biological experiments are forbidden and the prohibition does not 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.
That interpretation is fully in agreement with the corresponding provisions of the other three Geneva Conventions, particularly the Third Convention (Article 13
), which is the most explicit and which states that no prisoner of war may be subjected to medical or scientific [p.599] experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.
' Wilfully causing great suffering. ' -- This refers to suffering inflicted without the ends in view for which torture is inflicted or biological experiments carried out. It would therefore be inflicted as a punishment, in revenge or for some other motive, perhaps out of pure sadism. 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.
' Serious injury to body or health. ' -- This is a concept quite normally encountered in penal codes, which usually use as a criterion of seriousness the length of time the victim is incapacitated for work.
' Unlawful deportation or transfer. ' -- This refers to breaches of the provisions of Articles 45
. The unhappy experiences of the Second World War have made it necessary to prohibit deportation completely in this Convention. In the same way, transfers are forbidden except in cases where the safety of the protected persons may make them absolutely necessary. Provisions doubtless do exist in the national penal codes which would enable these breaches to be punished by analogy: coercion or deprivation of personal liberty are quite common examples, but in this particular case the coercion is exercised by the authorities and it is not, therefore, easy to deal with it by analogy with offences against ordinary law. These breaches should therefore be the subject of special provisions.
' Unlawful confinement. ' -- Most national legal systems punish unlawful deprivation of liberty and this breach could therefore be dealt with as an offence against ordinary law. The offence, however, would probably be very difficult to prove. Indeed, the belligerent Powers can intern any enemy citizens or aliens on their territory if they consider it absolutely necessary for their security. In the same way, Occupying Powers can intern some of the inhabitants of the occupied territories. The illegal nature of confinement would therefore be very difficult to prove in view of the extended powers granted in this matter to States. Obviously, however, internment for no particular reason, especially in occupied territory, could come within the definition of this breach.
[p.600] ' Compelling a protected person to serve in the forces of a 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 the coercion is exercised by the authorities puts rather a different complexion on the case.
It should be recalled that the Fourth Hague Convention of 1907, in Article 23
, forbids a belligerent to compel the nationals of the 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.
' Wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention. ' -- National legislations contain hardly any provisions on this subject, although they do imply, of course, that a person must be tried according to the existing rules. At the most the penal codes provide for the punishment of magistrates who allow themselves to be turned aside from their duty for a monetary consideration or other form of bribery. The supervision exercised over the administration of justice in all countries makes it difficult, however, to conceive of a protected person being deprived of the right of fair and regular trial.
Working by analogy with municipal law is therefore scarcely possible, since it is the Convention itself in many Articles which specifies the conditions under which protected persons 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 protected person appear before an exceptional court, without notifying the Protecting Power, without defending counsel, etc. If such a breach has not been specially mentioned, it could be punished on the basis of a general clause covering all breaches of the Convention not listed by name.
' The taking of hostages. ' -- Hostages might be considered as persons illegally deprived of their liberty, a crime which most penal codes take cognizance of and punish. However, there is an additional feature, i.e. the threat either to prolong the hostage's detention or to put him to death. The taking of hostages should therefore be treated as a special offence. Certainly, the most serious crime would be to execute hostages which, as we have seen, constitutes wilful killing. However, the fact of taking hostages, by its arbitrary character, especially when accompanied by a threat of death, is in itself [p.601] a very serious crime; it causes in the hostage and among his family a mortal anguish which nothing can justify.
' The extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly '. -- These two phrases cover a number of very different offences:
(a) ' Destruction. ' -- The Fourth Convention forbids the destruction of civilian hospitals and their property or damage to ambulances or medical aircraft. Furthermore, the Occupying Power may not destroy in occupied territory (Article 53
) real or personal property except where such destruction is rendered absolutely necessary by military operations. On the other hand, the destruction of property on enemy territory is not covered by the provision. In other words, if an air force bombs factories in an enemy country, such destruction is not covered either by Article 53
or by Article 147. On the other hand, if the enemy Power occupies the territory where the factories are situated, it may not destroy them unless military operations make it absolutely necessary.
(b) ' Appropriation. ' -- To appropriate property, the enemy country must have it in its power by being in occupation of the territory where it is situated. It will be recalled, in this connection, that the requisitioning of civilian hospitals and their material and the requisitioning of foodstuffs is subject in occupied territory to a series of restrictive conditions.
To constitute a grave breach, such destruction and appropriation must be extensive: an isolated incident would not be enough (2).
Most national penal codes punish the unlawful destruction and appropriation of property. In the same way, most military penal codes punish pillage. However, it will be noted that the destruction and appropriation mentioned here are dependent on the necessities of war. Therefore, even if in the national codes there are definitions of what constitutes such necessities, it seems difficult to apply this idea without adaptation to an army or even to a State. It seems, therefore, that the appropriation and destruction mentioned in this Convention must be treated as a special offence.
1. The ratification of the Fourth Geneva Convention of 1949 will necessitate in a great majority of States the enactment of additional [p.602] 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; destruction and appropriation of property not justified by military necessity; compelling a protected person to serve in the forces of a hostile Power; wilfully depriving a protected person of the rights of fair and regular trial; unlawful deportation or transfer.
(b) a general clause providing that other breaches of the Convention will be punished by an average sentence, for example imprisonment 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.
Notes: (1) [(1) p.597] The very term "grave breaches" gave rise to
rather lengthy discussion. The delegate of the USSR would
have preferred the use of the word "serious crimes" or
"war crimes". Finally, the Conference showed its
preference for the expression "grave breaches" although
such breaches are called "crimes" in the penal legislation
of almost all countries; the choice of the words is
justified by the fact that "crime" has a different meaning
in different legislations;
(2) [(1) p.601] It might be concluded from a strict
interpretation of this provision that the bombing of a
single civilian hospital would not constitute a grave
breach, but this would be an inadmissible inference to
draw if the act were intentional;