ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ______

Penal Repression: Punishing War Crimes

International humanitarian law sets out detailed rules aimed at protecting the victims of armed conflict and restricting the means and methods of warfare. It also establishes mechanisms to ensure that these rules are respected. In particular, humanitarian law holds individuals responsible for violations of humanitarian law which they commit, or order others to commit. It requires that those responsible for serious violations should be prosecuted and punished as criminals. The most serious violations of humanitarian law are termed war crimes.

War crimes and the Geneva courts or to hand them over for trial in breaches. It must prosecute such Conventions another State. persons or extradite them for trial in another State; Many of the rules relating to In general, a State's criminal law only international armed conflict are set out applies to acts committed within its Ÿ Third, a State must require its in the four Geneva Conventions of territory or by its own nationals. military commanders to prevent, 1949 and the first Additional Protocol However international humanitarian suppress, and take action against of 1977. States are obliged to law goes further. It requires States to those under their control who suppress all violations of these search for and punish all those who commit grave breaches; instruments. There are however have committed grave breaches specific obligations relating to certain regardless of the nationality of the Ÿ Fourth, States should assist serious violations called grave perpetrator or where the crime was each other in connection with breaches. committed. This principle, called criminal proceedings relating to universal jurisdiction, is a key element grave breaches. Grave breaches represent some of in ensuring the effective repression of the most serious violations of grave breaches. States are required to fulfil these international humanitarian law. They obligations in times of peace as much are specific acts listed in the Geneva International humanitarian law as in time of armed conflict. In order Conventions and Protocol I, including requires State to take the following to be effective the above measures wilful killing, torture or inhuman specific action in relation to grave must be adopted before grave treatment, and wilfully causing great breaches: breaches have the opportunity to injury. A full list of grave breaches is occur. set out in the attached table. Grave Ÿ First, a State must enact national breaches are regarded as war legislation prohibiting and All violations of humanitarian law crimes. punishing grave breaches -either must be suppressed adopting a separate law or by Grave breaches must be punished amending existing laws. Such States must ensure compliance with legislation must cover all all provisions of humanitarian law The Conventions and Protocol make persons, regardless of nationality, including those applicable to non- clear that grave breaches must be committing grave breaches or international armed conflict and those punished. However they do not ordering them to be committed regulating the use of weapons. For themselves set out specific penalties and including instances where example, the Mines Protocol to the nor do they create a tribunal to try violations result from a failure to 1980 Conventional Weapons offenders. Instead they expressly act when under a legal duty to do Convention requires States to impose require States to enact criminal so. It must cover acts committed penal sanctions against those killing legislation to punish those responsible both within and outside the or injuring civilians in violation of the for grave breaches. States are also territory of the State. Protocol. States must ensure required to search for persons compliance with rules arising under accused of grave breaches, and Ÿ Second, a State must search for customary international law, as well either to bring them before their own and prosecute those alleged to as those set out in international be responsible for grave agreements. States must take whatever tribunals to try certain crimes major step forward in efforts to measures are necessary to prevent committed within the territory of the prevent and punish serious and suppress all violations thereof. former Yugoslavia and in connection violations of international Such measures may include military with the events in Rwanda, including humanitarian law. As the Statute of regulations, administrative orders violations of international the ICC states in its preamble, and other regulatory measures. humanitarian law. Moreover, a however, it is the duty of every State However criminal legislation is the permanent International Criminal to exercise its criminal jurisdiction most appropriate and effective Court (ICC) competent to try the over those responsible for means of dealing with all serious serious violations of international international crimes , including war violations of international humanitarian law that constitute war crimes. States will therefore have to humanitarian law. A number of crimes was set up in 1998 under the enact appropriate national criminal States have already enacted Rome Statute. legislation, take steps to facilitate criminal law to punish violations of inter-State judicial cooperation and the provisions of Common Article 3 “Mixed” courts such as the Special also work together with international of the Geneva Conventions and Court for Sierra Leone have also jurisdictions. Only by effective action Additional Protocol II which apply to been established in recent years. at the national level will it be non-international armed conflict. Such courts comprise elements of possible to ensure full respect for both international and domestic international humanitarian law. International and national jurisdiction. tribunals 01/2004 These measures supplement the The United Nations Security Council repressive mechanisms provided for has established two international under international law and are a

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GRAVES BREACHES SPECIFIED IN THE 1949 GENEVA CONVENTIONS AND IN ADDITIONAL PROTOCOL I OF 1977

Grave breaches specified in the four Grave breaches specified in the third Grave breaches specified in the 1949 Geneva Conventions. and fourth 1949 Geneva Conventions. fourth 1949 Geneva Convention. (Art. 50, 51, 130, 147 respectively) (Art. 130 and 147 respectively) (Art. 147)

- wilful killing; - compelling a prisoner of war or a - unlawful deportation or transfer; protected civilian to serve in the - torture or inhuman treatment; armed forces of the hostile Power; - unlawful confinement of a protected person; - biological experiments; - wilfully depriving a prisoner of war or a protected person of the rights of - taking of hostages. - wilfully causing great suffering; fair and regular trial prescribed in the Conventions. - causing serious injury to body or health;

- extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly

(this provision is not included in Art. 130 third Geneva Convention).

Grave breaches specified in the Additional Protocol I of 1977 (Art. 11 and Art. 85)

- Seriously endangering, by any wilful and unjustified - making a person the object of an attack in the act or omission, physical or mental health and knowledge that he is hors de combat; integrity of persons who are in the power of the adverse Party or who are interned, detained or - the perfidious use of the distinctive emblem of the red otherwise deprived of liberty as a result of an armed cross and red crescent or other protective signs; conflict, in particular physical mutilations, medical or scientific experiments, removal of tissue or organs for - When committed wilfully and in violation of the transplantation which is not indicated by the state of Conventions and the Protocol: health of the person concerned or not consistent with generally accepted medical standards which would - the transfer by the occupying power of parts of its be applied under similar medical circumstances to own civilian population into the territory it occupies, or persons who are nationals of the Party conducting the deportation or transfer of all or parts of the the procedure and in no way deprived of liberty; population of the occupied territory within or outside this territory; - When committed wilfully and if they cause death or serious injury to body and health: - unjustifiable delay in the repatriation of prisoners of war or civilians; - making the civilian population or individual civilians the object of attack; - practices of apartheid and other inhuman and degrading practices involving outrages upon personal - launching an indiscriminate attack affecting the dignity, based on racial discrimination; civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, - attacking clearly recognised historic monuments, injury to civilians or damage to civilian objects; works of art or places of worship which constitute the cultural or spiritual heritage of people and to which - launching an attack against works or installations special protection has been given, causing as a result containing dangerous forces in the knowledge that extensive destruction thereof when such objects are such attack will cause excessive loss of life, injury to not located in the immediate proximity of military civilians or damage civilian objects; objectives or used by the adverse party in support of its military effort; - making non-defended localities and demilitarised zones the object of attack; - depriving a person protected by the Conventions or by Protocol I of the rights of fair and regular trial.