Traités, États parties et Commentaires
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Commentaire of 2016 
Article 51 : Responsibilities of the Contracting Parties
Text of the provision
No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.
Reservations or declarations
None
Contents

A. Introduction and historical background
3017  Article 51 clarifies the relationship between individual criminal responsibility for grave breaches of the Conventions and State responsibility for acts committed by the armed forces or persons acting under the authority or command of a State in respect of grave breaches. This article is common to the four Conventions.[1]
3018  It was an entirely new article which formed part neither of earlier conventions nor of draft versions of the 1949 Conventions discussed prior to the Diplomatic Conference.[2] It was inserted in all four Geneva Conventions on the proposal of the Italian delegation, which had previously endeavoured unsuccessfully to introduce the idea in Article 6 on special agreements. During the Diplomatic Conference, the Italian representative stated: ‘The State must be held responsible for offences committed by its nationals, and it would be illogical for individuals to be prosecuted while the State was able to evade its liability by means of agreements with another State.’[3] A number of delegations opposed the Italian proposal, such as the UK representative, who stated that ‘this amendment is going much too far in the direction of attempting to bind States in their future relations with one another, and particularly in their liberty to conclude a treaty of peace at the end of the war’.[4] The Joint Commission ultimately approved it by 18 votes to 16, with 3 abstentions.[5]
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B. Discussion
3019  Article 51 prevents States Parties from absolving themselves or any other State Party of any liability incurred by them or by another State Party in respect of the breaches referred to in Article 50. This sentence needs to be understood in the context of its adoption and its placement in the Geneva Conventions, in Chapter IX, entitled ‘Repression of abuses and infractions’. It is closely linked to Article 50, which spells out the grave breaches of the Conventions.
3020  First, the expression ‘any liability’[6] contained in Article 51 includes the responsibility of States Parties to search for, bring to trial or extradite alleged perpetrators of grave breaches contained in Article 49. Article 51 therefore aims to prevent a situation whereby States Parties, in future peace treaties or armistices, would absolve themselves or another State Party of this responsibility. The obligations under Article 49 being absolute, Article 51 means that any agreements negotiated by States Parties cannot affect the fulfilment of the obligations under Article 49.[7]
3021  Furthermore, Article 51 aims to prevent an alleged perpetrator of grave breaches from relying, at trial, on a provision of a peace treaty which, as part of war settlements, exonerates the State from its responsibility for violations under the Convention.[8] War reparations[9] are generally negotiated in peace settlements and must neither render impossible nor hinder the proper prosecution of alleged perpetrators.[10] Subsequent State practice shows that the adoption of detailed peace treaties did not prevent the prosecution of certain grave breaches or other war crimes,[11] and in that respect, one of the aims of Article 51 has therefore been achieved since 1949.
3022  Second, the expression ‘any liability’ contained in Article 51 recalls the responsibility of States Parties for grave breaches committed by their armed forces or persons acting under their authority or command, and the requirement for the responsible State to make full reparation for the loss or injury caused by grave breaches. This principle is also recognized in a number of treaties, including Article 3 of the 1907 Hague Convention (IV), Article 91 of Additional Protocol I and Article 38 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property.[12] In addition, it is contained in other texts, such as the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of IHL and has been recognized as part of customary international law.[13] This principle applies to all Parties to armed conflicts, vanquished and victors alike. Article 51 therefore aims to prevent the defeated Party from being compelled, in an armistice agreement or peace treaty, to abandon all claims due in respect of grave breaches committed by persons in the service of the victor. The preparatory work recalls that most States were of the view that Article 51 does not ‘cover special financial arrangements under which a State can finally liquidate a claim to damages by an agreed lump sum payment or a settlement in compensation’.[14] States are free to negotiate between themselves any financial settlements relating to the end of the armed conflict. However, Article 51 prevents a situation in which the vanquished would agree to waive claims against the victors in relation to the right to receive reparation in respect of the commission of grave breaches.[15]
3023  War reparations between belligerents have often been settled in peace treaties. It has been common practice for the victors to demand reparation from the vanquished without reciprocity.[16] Practice following the Second World War does not reveal that States carved out an exception for the commission of grave breaches;[17] in some instances the vanquished waived all claims to damages against the victors arising out of the armed conflict.[18]
3024  The practice in the last 50 years, however, has revealed a tendency for States party to an armed conflict not to absolve themselves of their liability in respect of the commission of grave breaches, particularly by establishing means or mechanisms for individuals to receive reparation arising out of violations of international law committed during armed conflict. They have taken the form of mixed claims commissions and quasi-judicial bodies established by the UN Security Council or by peace treaties.[19] The peace agreement of December 2000 between Ethiopia and Eritrea, for example, establishes an impartial claims commission charged with deciding all claims between the two governments and between private entities for loss, damages or injury related to the armed conflict and resulting from violations of international humanitarian law or other violations of international law.[20] An example of a quasi-judicial body established by the Security Council is the United Nations Compensation Commission, which is entrusted with adjudicating claims against Iraq for any direct loss, damage, including environmental damage, or injury to foreign governments, nationals and corporations as a result of Iraq’s invasion and occupation of Kuwait.[21]
3025  Article 51 recalls the responsibility of States for grave breaches committed by their armed forces or persons acting under their authority or command, a responsibility which leads to a duty to pay compensation, as spelled out in Article 3 of the 1907 Hague Regulations and Article 91 of Additional Protocol I. These articles are silent, however, as to who are the ultimate beneficiaries of reparations for violations of international humanitarian law. They do not indicate whether only States are recipients or also individuals, nor do they specify the means of enforcing this right. Much has been written about the existence of a right for individuals in international humanitarian law to receive reparation and the ways and means of enforcing such a right before domestic or international forums.[22] This debate, however, goes beyond a commentary on Article 51 of the First Convention, and is addressed in the commentary on Article 91 of Additional Protocol I, where it most directly fits.
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Select bibliography
Cameron, Lindsey and Chetail, Vincent, Privatizing War: Private Military and Security Companies under Public International Law, Cambridge University Press, 2013, pp. 539–570.
d’Argent, Pierre, Les réparations de guerre en droit international public. La responsabilité internationale des États à l’épreuve de la guerre, Bruylant, Brussels, 2002.
David, Eric, Principes de droit des conflits armés, 5th edition, Bruylant, Brussels, 2012.
Gillard, Emanuela-Chiara, ‘Reparation for violations of international humanitarian law’, International Review of the Red Cross, Vol. 85, No. 851, September 2003, pp. 529–553.
Kalshoven, Frits, ‘State Responsibility for Warlike Acts of The Armed Forces’, International and Comparative Law Quarterly, Vol. 40, 1991, pp. 827–848.
– expert opinion, ‘Article 3 of the Convention [IV] Respecting the Laws and Customs of War on Land, signed at The Hague, 18 October 1907’, in Hisakazu Fujita, Isomi Suzuki and Kantaro Nagano (eds), War and the Rights of Individuals: Renaissance of Individual Compensation, Nippon Hyoron-sha, Tokyo, 1999, p. 37.
Sassòli, Marco, ‘State responsibility for violations of international humanitarian law’, International Review of the Red Cross, Vol. 84, No. 846, June 2002, pp. 401–434.

1 - See Second Convention, Article 52; Third Convention, Article 131; and Fourth Convention, Article 148.
2 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 91 and 133, Minutes of the Diplomatic Conference of Geneva of 1949, Mixed Commission, 20 July 1949, pp. 1–15 and Paul de La Pradelle, La Conférence Diplomatique et les nouvelles Conventions de Genève du 12 août 1949, Les Éditions internationales, Paris, 1951, p. 259.
3 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 91.
4 - See Minutes of the Diplomatic Conference of Geneva of 1949, Mixed Commission, 20 July 1949, p. 12.
5 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 133.
6 - The term ‘liability’ means ‘the quality, state or condition of being legally obliged or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment’. It can be used interchangeably with ‘responsibility’ in this context. Bryan A. Garner (ed.), Black’s Law Dictionary, 10th edition, Thomson Reuters, 2014, p. 1053.
7 - See the report of the Joint Committee to the Plenary Assembly of the 1949 Diplomatic Conference, which states: ‘This provision was the only means of ensuring that the compulsory character of the prosecution, as proclaimed in the preceding Article, should continue in force.’ Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 133.
8 - It has been common practice in peace treaties for the victors to demand reparation from the vanquished without reciprocity. Peace treaties negotiated at the end of the Second World War between the Allies and Bulgaria, Finland, Hungary, Italy, Japan and Romania provide for the vanquished to waive any claims against the Allied or Associated Powers arising directly out of the war or out of actions taken because of the existence of a state of war in Europe after 1 September 1939. See e.g. Treaty of Peace between the Allied and Associated Powers and Bulgaria (1947), Article 28, or Treaty of Peace between the Allied and Associated Powers and Italy (1947), Article 76.
9 - Nowadays the concept of reparations has evolved and is understood broadly as covering ‘measures that seek to eliminate all the harmful consequences of a violation of rules of international law applicable in armed conflict and to re-establish the situation that would have existed if the violation had not occurred’. See e.g. the ILA’s Declaration of International Law Principles on Reparation for Victims of Armed Conflict, Resolution 2/2010, Article 1(1).
10 - In support of this interpretation, see the letter from the Dutch Minister for Foreign Affairs to the Parliament, dated 24 May 1991, reproduced in the Netherlands Yearbook of International Law, Vol. 23, 1992, pp. 379–382, at 381: The relevant waivers [i.e. contained in Articles 14(b) and 16 of the 1951 Peace Treaty for Japan] are not incompatible with Articles 51, 52, 131 and 138 of the First, Second, Third and Fourth Geneva Conventions of 1949. These articles determine that no Member State may discharge itself or any other Member State from any liability based on serious breaches of the Conventions, as defined in other Articles of the Geneva Conventions. Yet it appears from the legislative history of the four Articles mentioned above, that these Articles of the Geneva Conventions have only limited application, namely to prevent the criminal prosecution of persons who had committed war crimes from being hindered or even made impossible if the State of those persons were to be exonerated from responsibility for those crimes. Financial arrangements with global effects (so called ‘lump sums’) are not prohibited by all this, and moreover could be seen as constituting a way of expressing liability. Similarly, no prohibition can be inferred from other treaties of from public international law in general.
11 - The 1995 Dayton Accords, which ended the armed conflict in Bosnia and Herzegovina, provides amnesty for all crimes other than serious violations of international humanitarian law: ‘Any returning refugee or displaced person charged with a crime, other than a serious violation of international humanitarian law as defined in the Statute of the International Tribunal for the Former Yugoslavia since January 1, 1991 or a common crime unrelated to the conflict, shall upon return enjoy an amnesty.’ Agreement on Refugees and Displaced Persons annexed to the Dayton Accords (1995), Article VI. See also Article 7(3) of the Agreement on Normalization of Relations between Croatia and the Federal Republic of Yugoslavia (1996), which states: ‘The Contracting Parties shall declare general amnesty for all acts committed in connection with the armed conflicts, except for the gravest violations of humanitarian law having the nature of war crimes.’
12 - Article 3 of the 1907 Hague Convention (IV) reads: ‘A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.’ See the commentary on Article 91 of Additional Protocol I in Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, paras 3645–3661, for a detailed discussion on the principle of State responsibility for acts committed by its armed forces and the forms of compensation available. Article 38 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property states: ‘No provision in this Protocol relating to individual criminal responsibility shall affect the responsibility of States under international law, including the duty to provide reparation.’
13 - See ICRC Study on Customary International Humanitarian Law (2005), Rules 149 and 150, as well as Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of IHL (2005), Articles 2 and 3. See also Draft Articles on State Responsibility (2001), Article 31 (Reparation), which states: ‘The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.’
14 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 133.
15 - See also ICRC, Report on the Protection of War Victims, reproduced in International Review of the Red Cross, Vol. 75, No. 803, October 1993, pp. 391–445, section 4.3(3): ‘This provision [Article 51] … also implies that, irrespective of the outcome of an armed conflict, no decision or agreement can dispense a State from the responsibility to make reparation for damages caused to the victims of breaches of international humanitarian law.’
16 - See e.g. the following peace treaties, all of 10 February 1947: Treaty of Peace between the Allied and Associated Powers and Bulgaria (1947), Article 28; Treaty of Peace between the Allied and Associated Powers and Finland (1947), Article 29; Treaty of Peace between the Allied and Associated Powers and Hungary (1947), Article 32; Treaty of Peace between the Allied and Associated Powers and Italy (1947), Article 76; and Treaty of Peace between the Allied and Associated Powers and Romania (1947), Article 30. See also Peace Treaty for Japan (1951), Article 19, and Joint Declaration on Soviet-Japanese Relations (1956), Article 6. See also Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 3647.
17 - See, in this regard, d’Argent, p. 772, who states, in connection with claims arising out of the commission of grave breaches: ‘Nulle part, dans la pratique des renonciations, on ne trouve d’exceptions, expresse ou tacite, à leur portée s’agissant de ce type de créances.’ (‘Nowhere in the practice of waivers of claims of this type do we find exceptions, explicit or implicit, to their scope.’)
18 - See, in particular, Peace Treaty for Japan (1951), Article 19, and Joint Declaration on Soviet-Japanese Relations (1956), Article 6, whereby the Soviet Union and Japan agreed ‘to renounce all claims by either State, its institutions or citizens, against the other State, its institutions or citizens, which have arisen as a result of the war since 9 August 1945’. In 1956, both the Soviet Union and Japan were party to the 1949 Geneva Conventions and therefore bound to respect Article 51. However, the question arises whether Article 51 can be seen as applying retroactively to the events of the Second World War. Also note the position of Germany’s Federal Constitutional Court in the East German Expropriation case in 2004, in which the Court held that: In the Two-Plus-Four Talks, the Federal Republic of Germany impliedly waived any claims under the Hague Land Warfare Convention. … It is not in contradiction to this that each of the four Geneva Conventions of the year 1949 contains a provision depriving the states that are parties the right to release themselves or another from the responsibility for ‘serious violations’ of public international law … . In the practice of the law of war, however, this principle has not yet succeeded in establishing itself. Contrary to Article 51, the Court held that: ‘It cannot be concluded from the provisions of the Geneva Convention that the states are forbidden to waive claims under the Hague Land Warfare Convention in connection with entering into a peace treaty.’ Germany, Federal Constitutional Court, East German Expropriation case, Order, 2004, paras 110–114.
19 - For other examples, see the Agreement on Refugees and Displaced Persons annexed to the Dayton Peace Accords (1995), Articles I, VII, XI and XII, which established the Commission for Displaced Persons and Refugees to resolve real-property claims in Bosnia and Herzegovina. See also Article 24 of the 1994 Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, which provides for the establishment of a claims commission for the mutual settlement of all financial claims. A similar provision is contained in the 1978 Framework for Peace in the Middle East, Article C(4), and the 1979 Peace Treaty between Egypt and Israel, Article VIII. See also Gillard, pp. 539–540.
20 - Peace Agreement between Eritrea and Ethiopia (2000), Article 5.
21 - See UN Security Council, Res. 687, 3 April 1991, paras 16–19. The UN Compensation Commission has dealt with violations of international humanitarian law, as well as violations of the jus ad bellum principle and general public international law. For more details, see Christophe S. Gibson, Trevor M. Rajah and Timothy J. Feighery, War Reparations and the UN Compensation Commission: Designing Compensation After Conflict, Oxford University Press, 2015.
22 - For a summary of the various views, see Cameron, pp. 546–566; Gillard, pp. 536–545; d’Argent, pp. 774–808; and David, paras 4.41–4.56. See also ICJ, Jurisdictional Immunities of the State case, Judgment, 2012, and in particular the Dissenting Opinion of Judge Cançado Trindade, paras 63–72 and 240–287.