Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 49 : Penal sanctions
Text of the provision*
(1) The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.
(2) Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a ‘prima facie’ case.
(3) Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.
(4) In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2818  In 1949, the system of repression contained in the Geneva Conventions (hereinafter referred to as ‘the grave breaches regime’) was a remarkable innovation in the law regulating international armed conflict. Article 49 is common to the four Conventions.[1]
2819  The obligations to enact legislation providing effective penal sanctions (paragraph 1) and to initiate the investigation and prosecution of alleged offenders suspected of having committed or ordered the commission of grave breaches, regardless of their nationality (paragraph 2) were designed to provide a watertight mechanism which would ensure the effective prosecution of alleged perpetrators of serious violations of the Conventions. Paragraph 3 complements this regime by calling on all States Parties to take any measures necessary for the suppression of all acts contrary to the Convention other than grave breaches. Paragraph 4 sets out the obligation to grant the accused a fair trial.
2820  In 1977, these common provisions were supplemented and clarified by a series of provisions set out in Additional Protocol I. For States party to that instrument, Additional Protocol I expands the list of grave breaches,[2] provides for the responsibility of individuals under other forms of responsibility,[3] and makes it clear that grave breaches form part of the category of war crimes.[4] The grave breaches regime also acted as a ‘blueprint for other treaties, ranging from the Torture to the Enforced Disappearances Conventions’.[5]
2821  Grave breaches of the Geneva Conventions today form part of a complex set of crimes under international law, consisting of serious violations of international humanitarian law often referred to as war crimes, as well as gross human rights violations, such as crimes against humanity and genocide. Grave breaches are part of the wider category of serious violations of humanitarian law that States are called upon to suppress in both international and non-international armed conflict.[6] They remain ‘segregated from other categories of war crimes’,[7] as the list of grave breaches contained in the Geneva Conventions and Additional Protocol I is a limitative one which is only applicable in international armed conflict.[8] Furthermore, the grave breaches regime imposes on States Parties the obligation to either prosecute or extradite alleged offenders, regardless of their nationality, as opposed to a right to do so recognized in international law in connection with alleged perpetrators of war crimes.[9]
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B. Historical background
2822  The following overview of the developments which led to the inclusion of Article 49 provides the essential background for understanding the way that the system of penal sanctions is designed in the Geneva Conventions.
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1. The system of repression up to 1949
2823  The punishment of individuals for serious violations of the laws and customs of war, often referred to as war crimes, is as old as the rules regulating warfare.[10] Sanctions for such violations have been an integral part of those rules and were seen as essential to ensuring compliance with this body of law by soldiers.[11] Individual responsibility for breaches of the laws and customs of war was recognized by many civilizations.[12] Similar principles formed part of the law of warfare in the European medieval period.[13] Prosecutions could be undertaken by the enemy into whose hands the alleged offender had fallen, or alternatively, by the military authorities of the alleged offender. The 1863 Lieber Code contains an elaborate set of rules on many aspects of the laws and customs of war and highlights the need to maintain discipline and the importance of taking action against violations of these rules.[14]
2824  Early codifications of the laws and customs of war did not, however, contain detailed provisions on the individual criminal responsibility of offenders.[15] The 1906 Geneva Convention was the first international treaty to contain two articles dealing with the repression of violations, such as the abuse of the emblem and other violations of the Convention, for example robbery and ill-treatment of the wounded and sick in the armies.[16] The Hague Conventions of 1899 and 1907 only provide for the responsibility of States Parties to pay damages in case of violations of the Conventions.[17] States were left free to punish, or not, acts committed by their own troops against the enemy, or again, acts committed by enemy troops, in violation of the laws and customs of war.[18]
2825  Widespread atrocities were committed during the First World War, in particular against civilians, such as indiscriminate bombings, rape, and the sinking of civilian boats and hospital ships, such as the Llandovery Castle.[19] These acts reinforced the belief that it was necessary to pursue justice in response to atrocities and that the system contained in existing international treaties was anything but satisfactory.[20] Towards the end of the war, the Allies established a Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, whose main task was to list the atrocities committed by the German forces and to create a coherent inventory of violations of the laws and customs of war.[21] On the basis of the facts it gathered, the Commission listed 32 violations of the laws and customs of war that warranted criminal punishment.[22] It suggested that war criminals should be tried before domestic courts, with the exception of four categories of defendants, who should be placed before an ad hoc tribunal.[23]
2826  For the first time in a major peace treaty, the 1919 Treaty of Versailles contained three articles establishing individual criminal responsibility under international law for violations of the laws and customs of war. Article 227 of the Treaty provided for the trial of the former Emperor of Germany, and Articles 228 and 229 recognized the ‘right of the Allied and Associated Powers to bring before military tribunals Germans accused of having committed acts in violation of the laws and customs of war’. Pursuant to Article 228 of this treaty, the Allies submitted a list of 896 alleged war criminals to the German authorities. The latter refused to turn them over, and in the end, the Supreme Court of the German Reich in Leipzig tried only 12 individuals. Nine were acquitted and three were found guilty.[24] Moreover, the German Emperor was never surrendered by the Dutch Government. As a result, only a few Germans accused of serious violations of the laws and customs of war were tried by the Allies in Europe during or after the First World War.[25] The Allies, on the other hand, were under no obligation under the Treaty of Versailles to try their own soldiers for similar violations. The prosecution of alleged war criminals, or its absence, was therefore characterized by the one-sidedness of a justice invoked by the Allies, which has been described as ‘a scandalous failure of justice’.[26]
2827  Noticeable progress was made in the 1929 Geneva Convention on the Wounded and Sick, as a more comprehensive chapter on the suppression of abuses was included, containing for the first time detailed provisions on the enforcement of the Convention. Article 29 of this Convention called on States Parties to propose to their legislatures, should their penal laws be inadequate, the necessary measures for the repression in time of war of any act contrary to the provisions of the Convention,[27] including misuse of the emblem.[28] Article 30 provided for the establishment of an enquiry mechanism in case of alleged violation of the Convention.[29]
2828  During the Second World War, numerous statements about the individual responsibility of alleged perpetrators who had violated the laws and customs of war were made by the Allies.[30] In 1942, the Allies decided to set up the UN Nations War Crimes Commission for the investigation of war crimes, affirming that:
[T]he Commission should proceed upon the footing that international law recognises the principle that a war crime is a violation of the laws and customs of war, and that no question can be raised as to the right of the United Nations to put on trial as a war criminal in respect of such violations any hostile offender who may fall into their hands.[31]
2829  At the end of the Second World War, these undertakings were fulfilled at the national level with 2,116 known military tribunal hearings conducted by Australia, Canada, China, France, Greece, the Netherlands, Norway, Poland, the United Kingdom and the United States up to 1949,[32] and at the international level with the creation of two International Military Tribunals. On 8 August 1945, France, the Soviet Union, the United Kingdom and the United States established the International Military Tribunal for Germany (IMT), based in Nuremberg.[33] The IMT tried 24 defendants for crimes against peace, war crimes[34] and crimes against humanity. Furthermore, it recognized a number of principles which came to form the basis of modern international criminal law.[35] In relation to war crimes, the IMT took the view that the laws of war contained in the Hague Conventions of 1907 reflected customary international law,[36] and it considered that it was ‘too well settled to admit of argument’ that the violations of the Hague Conventions of 1907 ‘constituted crimes for which the guilty individuals were punishable’.[37] By order of General Douglas MacArthur, the supreme commander for the Allied Powers, the International Military Tribunal for the Far East was established in January 1946 and prosecuted 25 Japanese superior officers, whose crimes had not been limited to a specific location.[38]
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2. The 1949 Geneva Conventions and their preparatory work
2830  The events of the Second World War convinced the ICRC that any future international convention on the laws and customs of war must necessarily include effective provisions on the repression of violations. This conviction was strengthened by the numerous appeals which it received to intervene on behalf of prisoners of war who were accused of war crimes and tried under ad hoc national legislation. Also, the ICRC could not remain indifferent to the argument that complete respect for the Conventions must be based on the imposition of effective penalties on those guilty of violating them.[39]
2831  A second Conference of Government Experts in 1947 took as a starting point for the drafting of the chapter on repression of abuses Articles 28, 29 and 30 of the 1929 Convention on the Wounded and Sick. It also included a new article calling for ‘any wilful violation of the present Convention, leading to the death of persons protected by its provisions, to grave ill-treatment of the said persons, or serious damage to hospital buildings and equipment’ to be ‘considered as a war crime’ and for ‘[t]he responsible persons to be liable to appropriate penalties’.[40]
2832  In 1948, the ICRC submitted to the International Conference of the Red Cross in Stockholm a draft article on penal sanctions, which called on States to search for persons charged with breaches of the Convention, and to refer them for trial to their own courts or hand them over for judgment to another State Party. The Conference included these new obligations in the draft text[41] and requested the ICRC to continue its work on the question and to submit proposals to a later Diplomatic Conference. In response, the ICRC invited four governmental experts to meet in Geneva at the beginning of December 1948. The outcome of this work was a set of four draft articles, to be included in each of the four Conventions, on the punishment of persons guilty of violating the provisions of the Conventions.[42]
2833  Since it had not been possible for the draft texts prepared by the ICRC to reach the governments until just before the opening of the Diplomatic Conference in 1949, certain delegations objected to their being taken as a basis for discussion.[43] The Dutch delegation, however, submitted them as its own, so that the draft texts came officially before the Conference.
2834  The four draft articles had a significant impact on the negotiations and the drafting of the common provisions on grave breaches, even if some suggestions were not adopted by the Diplomatic Conference.[44] First, according to Article 49(1) as ultimately adopted by the Conference, States Parties ‘undertake to enact legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed any of the grave breaches listed’ in the subsequent article. This is clearly an obligation put on States to enact effective penal sanctions and not merely an obligation to propose to the legislative assemblies, should their penal law be inadequate, implementing legislation, as it was in the 1929 Convention on the Wounded and Sick or in the Stockholm Draft. However, the suggestion by the ICRC and others that this task should be undertaken within two years, and that this should be communicated to the Swiss Federal Council, was not adopted,[45] with some delegations taking the view that the legislator could not be bound by a time limit.[46]
2835  Second, the adopted version of Article 49 extends the penal responsibility of the person committing a grave breach to whoever ordered the breach to be committed, a welcome improvement on the Stockholm Draft. However, the suggestion that other forms of responsibility should be included, and the concept of superior orders or other defences touched upon, was not followed by the Diplomatic Conference. It was felt that these questions should be left to the judges who would apply national law.[47]
2836  Third, the suggestion contained in the ICRC proposal to give the State holding an alleged perpetrator the option of surrendering the person to an international tribunal for prosecution was not accepted by the Diplomatic Conference. The Conference did not want to take a decision which might hamper the future development of international law. The report on penal sanctions, which was presented to the Joint Committee of the Conference, states: ‘[T]he Diplomatic Conference is not here to work out international penal law. Bodies far more competent than we are have tried to do it for years.’[48]
2837  Discussion also centred on the name to be given to these violations, with the Soviet Union suggesting that the word ‘crimes’ be used and not ‘grave breaches’.[49] A number of delegations were opposed to the word ‘crime’, ‘firstly because this word had a different meaning in the national laws of different countries and secondly because an act only becomes a crime when this act is made punishable by a penal law’.[50] In the end, the provision on judicial safeguards for the accused suggested by the ICRC was not adopted in its original form, as some safeguards were already included in the Third and Fourth Conventions.[51]
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C. Paragraph 1: The obligation to enact implementing legislation
1. Legislation providing effective penal sanctions
2838  According to Article 49(1), States Parties ‘undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches’ listed in Article 50. This is clearly an obligation for all States Parties, and not only for States party to an armed conflict. States Parties should fulfil this obligation without delay.[52] States should strive to have their implementing legislation in place when they deposit their instrument of ratification or accession. As the International Court of Justice noted in the Obligation to Prosecute or Extradite case, in relation to a similar obligation contained in the 1984 Convention against Torture:
This obligation, which has to be implemented by the State concerned as soon as it is bound by the Convention, has in particular a preventive and deterrent character, since by equipping themselves with the necessary legal tools to prosecute this type of offence, the States parties ensure that their legal systems will operate to that effect and commit themselves to co-ordinating their efforts to eliminate any risk of impunity.[53]
2839  The wording of Article 49 (‘to undertake to enact any legislation’) differs from that of Article 29 of the 1929 Geneva Convention on the Wounded and Sick, which only called on States to ‘propose to their legislatures should their penal laws be inadequate, the necessary measures for the repression in time of war of any act contrary to the provisions of the present Convention’.[54] The use of the term ‘undertake’ in Article 49 means that States Parties are under an unconditional obligation to enact any implementing legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed any of the grave breaches listed in Article 50. There is no doubt that this represents a clear and imperative measure for all States Parties, to be acted upon already in peacetime.[55]
2840  National legislation must provide effective penal sanctions in each State Party’s national judicial system. What are the characteristics of an effective penal sanction?[56]
2841  The implementing legislation ought to provide for penal sanctions that are appropriate and can be strictly applied. Penal sanctions, as opposed to disciplinary ones, will be issued by judicial institutions, be they military or civilian, and will usually lead to the imprisonment of the perpetrators, or to the imposition of fines. Because of their seriousness, imprisonment is widely recognized as a central element in punishing grave breaches and other serious violations of humanitarian law.[57]
2842  It is widely acknowledged that, to be effective, penal sanctions must be sufficiently dissuasive: they should stop ongoing violations of humanitarian law and prevent their repetition or the occurrence of new violations.[58] Sanctions should be imposed as quickly as possible after the act has been committed in order to have a significant deterrent effect. Another crucial aspect of a dissuasive sanction is that it ought to be foreseeable for persons who are likely to be involved in armed conflicts.[59] In order to play an effective preventive role, criminal provisions sanctioning serious violations of humanitarian law should be made public and disseminated appropriately.[60] Ultimately, the efficacy of sanctions and their dissuasive character depend on the degree to which the rule whose infringement is subject to sanctions has been internalized by the weapon bearers.
2843  Moreover, it is often thought that, to be effective, penal sanctions must also be applicable to all perpetrators without discrimination, irrespective of the Party to which they belong, in order to uphold the principle of equal application of the law and avoid the creation of a feeling of ‘victor’s justice’.[61] Furthermore, penal sanctions ought to respect the principle of individualization of the sentence and the principle of proportionality between the severity of the punishment and the gravity of the offence.[62]
2844  The choice of penalties rests with each State Party. Even though there will be no uniformity in the penalties applied by States Parties, the grave breaches regime aims for uniformity in sanctioning all grave breaches listed therein. Reliance on domestic criminal law inevitably implies that those crimes will be subject to the specificities of each criminal justice system.
2845  State practice, in particular in the last 20 years, has also shown that, to be able to provide effective penal sanctions for grave breaches and other serious violations of humanitarian law, it is often necessary to include in domestic legislation some general principles of international criminal law, particularly when they are at variance with the general principles of domestic criminal law.[63] For example, a statute of limitations[64] or the defence of superior orders[65] does not apply to grave breaches and other serious violations of humanitarian law. Furthermore, amnesties granted to persons who have participated in an armed conflict shall not extend to those who are suspected of having committed grave breaches or other serious violations of humanitarian law.[66]
2846  Apart from ensuring that the substance of the grave breaches listed in the Geneva Conventions is covered by national criminal legislation, the implementing legislation must also establish a jurisdictional basis for the prosecution of all grave breaches. As prescribed in paragraph 2 of Article 49, States Parties must be able to prosecute all persons who have committed or ordered the commission of grave breaches, regardless of their nationality. It is commonly accepted, therefore, that alongside the other bases of criminal jurisdiction, universal jurisdiction over grave breaches must be included in the implementing legislation.[67] It is imperative that States Parties implement legislation of universal reach.[68]
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2. The practical implementation of the obligation to enact legislation
2847  States Parties must ensure that their legislation prohibits and punishes grave breaches, regardless of the nationality of the perpetrator. The first step for every State Party is therefore to determine whether the state of national legislation requires the specific integration of these crimes. It will be necessary to assess whether national legislation already contains the relevant prohibitions and the jurisdictional basis to extend jurisdiction to grave breaches committed by any perpetrators, regardless of their nationality.[69] This task is certainly a complex one and requires a thorough study of the relevant domestic legal framework. Over the last 60 years, States Parties have chosen to implement these obligations in different ways, based on their respective legal systems, culture and legislative practice. The legislator has a number of available options.[70]
2848  The first option consists of applying the existing military or ordinary national criminal law. States Parties can take the view that their domestic criminal law already provides adequate provisions for the prosecution of grave breaches and therefore it is not necessary to introduce new crimes.[71] However, in many instances, the crimes under domestic law do not fully correspond to the criminal behaviour in armed conflict covered by the grave breaches.[72] Some specific grave breaches would not easily form part of domestic criminal law.[73] Furthermore, some objective elements of grave breaches, such as the nexus to the armed conflict or the status of protected persons, may not easily be captured by domestic crimes. Lastly, the penalties in existing law for domestic crimes might not be appropriate in the light of the seriousness of the war crimes or grave breaches in question.[74]
2849  The second option that has been chosen by some States Parties aims at criminalizing all serious violations of international humanitarian law at the national level by making a general reference to the relevant provisions of international humanitarian law, to international law in general, or to the laws and customs of war, and specifying a range of penalties.[75] This option has the advantage of being simple and straightforward: all breaches are made punishable by a simple reference to the relevant instrument or to customary law. No new national legislation is needed when the treaties are amended or new obligations arise for a State which becomes party to a new treaty. The main disadvantage of this method is that criminalization by a generic provision may prove insufficient in view of the principles of legality and specificity.[76] National judges will have the task of clarifying and interpreting the law in the light of the provisions of international law, leaving the judiciary with considerable room for interpretation.[77]
2850  The third option consists in providing in domestic law for specific crimes corresponding to the grave breaches contained in the Geneva Conventions. This can be achieved, for example, by transcribing into national law the full list of grave breaches with identical wording and laying down the range of penalties applying to each offence, or by separately redefining or rewriting in national law the description of the types of conduct constituting each breach.[78] Specific criminalization will better respect the principle of specificity, as the criminal conduct will be clearly defined and the sanction for such conduct made predictable. This option entails a major task for the legislator, as it involves extensive review of existing penal legislation, but lacks the flexibility needed to incorporate future developments in this field of law. This option has often been followed by the common-law countries which have incorporated the full list of grave breaches into their legislation.[79] Some countries have also chosen to adopt a comprehensive approach to the incorporation of international crimes into their national legislation, and to include not only the list of grave breaches, but also the list of war crimes contained in the ICC Statute[80] and other crimes reflected in customary or treaty law.[81]
2851  The fourth option consists in a mixed approach combining criminalization by a general provision with the explicit and specific criminalization of certain serious crimes.[82] This might be the best method in order to respect the principles of legality and specificity without the need to amend the legislation whenever the State becomes party to a new treaty. This method permits treaty obligations to be carried out fully and with due differentiation of the various crimes.
2852  A number of tools are at the disposal of States Parties to help them in their efforts to incorporate grave breaches and other war crimes into their domestic legal systems.[83]
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3. Forms of individual criminal responsibility and available defences
2853  States Parties need to ensure that national implementing legislation provides effective penal sanctions for persons who have committed grave breaches or have ordered their commission.[84] The text of Article 49 establishes the individual criminal responsibility of offenders under international law, but limits it to the person committing the crime and the person who ordered the crime, without mentioning other forms of individual responsibility or available defences. The preparatory work for the Convention makes it clear that the negotiators could not reach general agreement on other forms of individual criminal responsibility, such as complicity and command responsibility, or on certain grounds potentially excluding criminal responsibility, such as duress or the plea of superior orders. The position adopted by the Conference was that ‘[t]hese should be left to the judges who would apply the national laws’.[85]
2854  Practice has evolved since the adoption of the 1949 Geneva Conventions, and it is generally recognized today that individuals are not only criminally responsible for committing or ordering the commission of grave breaches and other serious violations of humanitarian law, but also for assisting in, facilitating or aiding and abetting the commission of such crimes.[86] They are also criminally responsible for planning or instigating their commission.[87]
2855  Commanders and other superiors can be held criminally responsible for grave breaches and other serious violations of humanitarian law committed pursuant to their orders.[88] They can also be held individually responsible for failing to take proper measures to prevent their subordinates from committing such violations, or, if already committed, for failing to punish the persons responsible.[89] It is essential for national law to provide for the effective sanctioning of commanders or superiors, if the system of repression is to be effective during armed conflict.[90] States Parties should therefore consider extending all those forms of criminal responsibility to grave breaches and other war crimes in their domestic legislation.
2856  At the 1949 Diplomatic Conference, defences available to alleged perpetrators of grave breaches were also omitted and were considered to be best regulated by domestic law. As practice on this issue has developed since 1949, legislators should consider including references to various grounds for excluding criminal responsibility, such as duress, that are open to alleged perpetrators of grave breaches.[91] Furthermore, it is widely accepted that obeying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act.[92] A corollary of this rule is that every combatant has a duty to disobey a manifestly unlawful order.[93] The fact that a war crime was committed as a result of superior orders has nevertheless been taken into account as a factor mitigating the punishment.[94]
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4. Critical assessment
2857  A first prerequisite for the grave breaches system to be effective is the enactment of penal sanctions under domestic law so that the domestic courts of States Parties can enforce the law. In 1965, the 20th International Conference of the Red Cross adopted a resolution appealing to governments ‘which have so far not done so to complete their legislation so as to ensure adequate penal sanctions for violations of these Conventions’.[95] By the following International Conference in 1969, the ICRC had received information on national implementing legislation for only 49 out of 122 States Parties.[96] Many common-law States enacted Geneva Conventions Acts, while a number of civil-law countries chose to amend their criminal codes, military manuals or military criminal codes.[97]
2858  The establishment of the ICC has had a profound effect on the approach of many States to national implementing legislation. The ICC Statute leaves the primary role in the effective prosecution of international crimes to national courts and emphasizes that the ICC must be complementary to national criminal jurisdictions. The ICC is only able to exercise jurisdiction when national jurisdictions are unable or unwilling to prosecute alleged perpetrators.[98] A State might not be able to undertake prosecutions effectively if it is not equipped with adequate legislation penalizing the crimes contained in the ICC Statute, including grave breaches of the Geneva Conventions. A significant number of States party to the Geneva Conventions and/or the ICC Statute have therefore looked at the content of their national legislation and often decided to adopt specific provisions to ensure that they are able to prosecute perpetrators of war crimes, including grave breaches of the Geneva Conventions.[99] At the time of writing, information on national implementing legislation can be found for more than 125 out of the 196 States Parties.[100]
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D. Paragraph 2: The obligation to search for and prosecute or extradite alleged offenders
2859  The 1949 Geneva Conventions were the first international treaties to put States Parties under an unconditional obligation to search for alleged perpetrators of grave breaches and to either prosecute before their own courts or extradite them, regardless of their nationality. This obligation can be referred to as primo prosequi, secundo dedere (first to prosecute, second to extradite). The Convention clearly puts the obligations to search, investigate and prosecute first, and this obligation exists independently of any extradition request.[101]
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1. The obligation to search for and prosecute alleged offenders regardless of their nationality
a. Search for and trial of alleged offenders
2860  The obligations to search for and prosecute alleged offenders imply that each State Party must provide in its national legislation for the mechanisms and procedures to ensure that it can actively search for alleged offenders, make a preliminary inquiry into the facts and, when so warranted, submit any such cases to the appropriate authorities for prosecution. It is important to note that in paragraphs 2 and 3 of Article 49, the drafters chose to use the words ‘each State party’, leaving no doubt that these obligations are not restricted to Parties to armed conflict, but apply to all States party to the Conventions.[102]
2861  The decision whether or not to prosecute an alleged perpetrator should be taken by competent authorities in line with national legal requirements. National laws regarding standards of suspicion or grounds for arrest and detention will apply. The wording of Article 49(2) – ‘bring such persons before its own courts’ – does not imply an absolute duty to prosecute or to punish. The competent authorities might conclude that there are not sufficient reasons to believe that the alleged perpetrator committed the grave breach or that there is simply not enough evidence available to secure a conviction.[103]
2862  The obligation to bring alleged offenders before national courts does mean, however, that if the competent authorities have collected sufficient evidence to bring a criminal charge, they cannot rely, for example, on national rules of prosecutorial discretion and decide not to press charges. In those circumstances, they must prosecute the case.[104] Any other conclusion would be at odds with the obligations contained in Article 49(2), as well as those contained in common Article 1 to respect and ensure respect for the Convention.
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b. Universal jurisdiction
2863  The obligations to search for and prosecute alleged offenders before a State’s own courts must be carried out ‘regardless of their nationality’. The effective implementation of these obligations requires that each State Party, as mentioned above, has previously extended the universality principle to the list of grave breaches in its national legislation. The universality principle, also referred to as universal jurisdiction, has been defined as ‘criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction’.[105]
2864  Prosecutions for grave breaches could of course be based on other accepted titles of jurisdiction, such as territoriality, active and passive personality or the protective principle. However, universal jurisdiction must also be provided for in national legislation, to ensure that any State Party, and not only States party to an armed conflict,[106] is able to exercise its jurisdiction over alleged offenders regardless of their nationality. The object and purpose of this paragraph is clearly to give all States Parties the means to prevent impunity and to deny safe haven to alleged perpetrators of grave breaches.
2865  The preparatory work for the Conventions makes it clear that the drafters intended to provide all States Parties with an additional basis of jurisdiction so that any State Party would be able to assert its jurisdiction over alleged perpetrators of grave breaches.[107] Subsequent practice has shown that States Parties undoubtedly understand Article 49 as providing for universal jurisdiction. More than 100 national laws have extended this form of jurisdiction to the list of grave breaches.[108]
2866  The obligation to search for and investigate implies activity on the part of the State authorities. The text of Article 49 does not require any link to the prosecuting State, such as a requirement that the alleged offender be present in the territory of the prosecuting State.[109] A literal interpretation of Article 49(2) could therefore imply that each State Party must search for and prosecute any alleged perpetrators the world over, regardless of their nationality. Such a literal interpretation has not been widely shared by States Parties in the last 60 years. The practice since 1949 shows that some States, while having extended the principle of universal jurisdiction to grave breaches, have made prosecution conditional on the presence, temporary or permanent, of the alleged offender in the territory of the State Party.[110] In practice, States Parties cannot effectively prosecute alleged perpetrators unless they were present in their territory or in places under their jurisdiction at some point in time. Another condition sometimes also found in domestic legislation is that of special prosecutorial discretion.[111] It might manifest itself in the need to obtain approval from the attorney-general or the director of public prosecutions before any proceedings based on universal jurisdiction can be started.[112]
2867  These requirements or procedures are helpful in avoiding actions that are not founded in law, but should not be used by States Parties to bring political considerations into play, or as a way of evading their duties to search for and either prosecute or extradite an alleged offender.[113] While States may attach conditions to the application of universal jurisdiction to grave breaches, such conditions must, in each context, be aimed at increasing the effectiveness and predictability of universal jurisdiction and not at unnecessarily restricting the possibility of prosecuting suspected offenders.[114]
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c. Time frame for the performance of the obligations
2868  Even if Article 49 does not contain a specific time frame for the performance of the obligations to investigate and either prosecute or extradite, it is implicit in the text that States Parties should act within a reasonable time and in a manner compatible with the object and purpose of the provision.[115] The object and purpose of the obligation to prosecute or extradite contained in Article 49 is to prevent alleged perpetrators from going unpunished by ensuring that they cannot find refuge in any State.[116] Therefore, as soon as a State Party realizes that a person who allegedly committed or ordered the commission of a grave breach is on its territory or under its jurisdiction, its duty is to ensure that such person is found and, when so warranted, either tried by domestic courts or extradited without delay.[117] Article 49(2) puts the onus on States Parties, first, to investigate the facts, and, when so warranted, to prosecute or extradite alleged perpetrators.
2869  It is interesting to note the similarities between Article 49(2) and Articles 6 and 7 of the 1984 Convention against Torture and the interpretation given by the International Court of Justice of the latter provisions in the Obligation to Prosecute or Extradite case. On the obligation to investigate, the Court found that Senegal had violated Article 6, as it had not immediately initiated a preliminary inquiry as soon as it had reasons to suspect that the alleged perpetrator, present on its territory, had committed acts of torture.[118]
2870  Similarly, on the obligation to prosecute contained in Article 7 of that Convention, the Court recalled Senegal’s duty to take all measures necessary for its implementation as soon as possible, in particular once the first complaint had been filed against the alleged perpetrator.[119]
2871  In addition, the obligations contained in Article 49(2) also imply that a State Party should take action when it is in a position to investigate and collect evidence, anticipating that either it itself at a later time or a third State, through legal assistance, might benefit from this evidence, even if an alleged perpetrator is not present on its territory or under its jurisdiction.[120] Lastly, the wording of Article 49(2) arguably allows for the issuance of an arrest warrant, even if the alleged perpetrator is not present on the territory of the issuing State,[121] and for trials in absentia, if permissible under domestic law.[122] This led the ICRC to conclude that ‘States may institute legal enquiries or proceedings even against persons outside their territory’.[123]
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d. Potential immunities from jurisdiction and prosecution
2872  The obligation to search for and prosecute alleged offenders applies to any person, whether a national or a foreigner, who is suspected of having committed or ordered the commission of a grave breach. The Convention and its preparatory work do not address the issue of immunities which certain persons, such as heads of State, could enjoy under international law and which could prevent a court from prosecuting or enforcing a sentence against an alleged foreign offender.[124] Official capacity, such as being a head of State or head of government, does not exempt a person from criminal responsibility for grave breaches, but may render such persons immune from proceedings before domestic courts on the basis of the existing state of international law.
2873  The practice of the International Court of Justice has shed some light on the current state of international law regarding immunities for certain public officials.[125] The Arrest Warrant case arose out of an international arrest warrant issued by a Belgian investigating magistrate against the then incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo (DRC).[126] Mr Yerodia was charged with inciting genocide, crimes against humanity and grave breaches of the Geneva Conventions and Protocols against Tutsi residents in Kinshasa. The DRC submitted that Belgium had violated customary and conventional international law by issuing an international arrest warrant against its official. The ICJ judgment did not touch upon the question of whether there is a right in international law to extend universal jurisdiction to these crimes,[127] but focused instead on the issue of the immunities of a minister for foreign affairs under international law.
2874  The International Court of Justice found that ministers for foreign affairs enjoy inviolability and full immunity from criminal jurisdiction throughout the duration of their tenure in office.[128] According to the Court, there is no exception in customary international law to this rule, even where the minister in question is suspected of having committed war crimes or crimes against humanity.[129] The Court held that:
[A]lthough various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs.[130]
The Court concluded that the circulation of the arrest warrant failed to respect the immunity of an incumbent minister for foreign affairs, and that in so doing Belgium had violated its international obligations towards the DRC.[131]
2875  The International Court of Justice emphasized that such immunity is not synonymous with impunity, as the territorial State can always prosecute its own foreign minister or choose to waive the latter’s immunity. Alternatively, an international court or tribunal which has jurisdiction may prosecute such alleged perpetrators. Lastly, once ministers cease to hold office, the Court found that they could be tried by a court of another State in respect of acts committed prior or subsequent to the period in office, as well as in respect of acts committed in a private capacity during that period.[132] The Court stopped short of establishing whether war crimes or crimes against humanity committed while in office can be considered private or official acts.
2876  Some of these findings have been criticized by academics and commentators for a variety of reasons.[133] Some ICJ judges have taken the view that the commission of grave breaches and other war crimes cannot be regarded as official acts, and therefore should not benefit from immunities when the person leaves office.[134] Other commentators as well as international and national courts, while recognizing both functional and personal immunities for heads of State in office, have taken the view that, once the person has left office, international law has evolved to recognize an exception to functional immunities for the commission of international crimes, including grave breaches of the Geneva Conventions.[135] In other words, once the person leaves office, he or she would become liable to prosecution for grave breaches committed before or during the time in office. This approach is in line with the object and purpose of the grave breaches regime contained in the Geneva Conventions.[136] Some national implementing laws specifically provide that immunities do not constitute a bar to the prosecution of State officials.[137]
2877  Immunities under national law, such as constitutional immunities, are not a bar to the prosecution by domestic courts of heads of State or heads of government. As the obligation to prosecute alleged perpetrators of grave breaches flows from an unequivocal international obligation, it would amount to a breach of this international treaty obligation if domestic courts were to allow constitutional immunities prevail.[138]
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2. The option to extradite alleged offenders
2878  Article 49(2) gives States that receive a request for extradition the option of not prosecuting offenders themselves but rather, if they prefer, handing them over to a requesting State Party for trial, provided that the said State Party has made out a prima facie case.
2879  The preparatory work for the Conventions shows that States made a conscious choice to use the term ‘handing over’ and refused to use the word ‘extradition’.[139] That choice was heavily influenced by the discussions that took place during the Second World War, notably during the work of the UN War Crimes Commission. States felt that, in the light of the failure to secure the surrender of war criminals after the First World War, it was essential to adopt an executive or administrative procedure, instead of a judicial one like extradition, to facilitate and expedite the trials of war criminals.[140] The Commission felt that ‘the machinery of extradition is a slow and cumbersome business, ill-suited to speedy retribution after a war’.[141] The 1949 Diplomatic Conference was conscious that it was adopting a treaty to regulate armed conflicts in the years to come, and so it settled on the wording ‘handing over,’ provided that the State Party in question has made out a prima facie case. This reflected a feeling that it was surely necessary to protect individuals against excessive or unjustified requests. The choice of the term ‘handing over’ in Article 49 and its historical significance seem, however, to have been overlooked by States Parties over the years, and the term used in national legislation and in the literature nowadays is ‘extradition’.
2880  Extradition is an option given to States Parties on whose territory the accused are or into whose hands they have fallen.[142] It relieves States Parties of the obligation to submit the case to their appropriate authorities for prosecution. In the absence of a request for extradition, the obligation to investigate and, if warranted, to prosecute alleged perpetrators of grave breaches is absolute.
2881  Extradition can be carried out in accordance with the provisions of each State Party’s legislation, provided that the requesting State has ‘made out a prima facie case’.[143] This obliges the requesting State to produce evidence showing that the charges against the accused are sufficient. It has also been defined as requiring ‘actual evidence that must be presented to the authorities that would allow them to form the opinion that the person sought would have been required to stand trial had the alleged conduct of the criminal offence occurred in the requested state’.[144] Most common-law countries apply this condition, requiring that some evidence or reasonable ground for the suspicion of guilt of the alleged offenders be provided by the requesting State before they can be extradited.[145] This is often referred to as the ‘probable cause’ or ‘prima facie’ test.[146] In most civil-law countries, however, judges do not generally require any proof of culpability of the offence charged, but only the establishment of the identity and nationality of the accused and the production of various documents, such as the arrest warrant. Many multilateral treaties that provide for extradition do not define the quantum of proof, but simply refer to the legal requirements under the national law of the requested State.[147] Recent practice in extradition treaties, both bilateral and multilateral, appears to apply less stringent evidentiary requirements in extradition proceedings,[148] leaving the Geneva Conventions as probably the only multilateral treaty with a strict prima facie requirement.[149]
2882  The purpose behind the imposition of the prima face condition[150] is not only to protect individuals against excessive or unjustified requests, but also to ensure that the penal proceedings envisaged will not be frustrated or reduced in scope as a result of transfer to another State Party.[151] In the light of the object and purpose of Article 49, as well as the obligations contained in Article 1 to respect and ensure respect for the Conventions, a request for extradition from a State whose aim might be to protect its own national, and conduct a sham trial that will lead to an acquittal, should be refused.
2883  To ensure that grave breaches will be prosecuted, States must make sure that their national law permits them to extradite and seek extradition of suspected offenders for these crimes. They must also ensure that the double criminality requirement[152] and the political offence exception[153] are not used to prevent extradition for these crimes.[154]
2884  Many national laws preclude the extradition of accused persons who are nationals of the country holding them.[155] In that case and other cases where extradition might be refused, the States detaining alleged perpetrators must bring them before their own courts. It should also be noted that extradition can take place as long as the principle of non-refoulement is complied with. For example, States are under an obligation not to extradite persons to another State where there are substantial grounds for believing that they might be subjected to torture.[156]
2885  There do not seem to have been many recorded cases of extradition for grave breaches. In the Ganić case, a senior Magistrates’ Court judge in the United Kingdom explored the existence of a prima facie case against an alleged perpetrator of grave breaches. He rejected this finding as two careful and thorough investigations had previously concluded that there was no sufficient evidence on which to bring charges against the alleged offender.[157] Ultimately his extradition was refused as the proceedings were found to be brought for political purposes and therefore amounted to an abuse of process.[158] In another instance, Cameroon accepted a request from the Government of Belgium to have Théoneste Bagosora extradited to Belgium to face prosecution for serious violations of the Geneva Conventions and Additional Protocols. The domestic court in Cameroon granted the request without requiring Belgium to provide evidence that the charges against Bagosora were sufficient.[159]
2886  The Geneva Conventions are silent as to the criteria that should be applied in the event that a State Party receives competing extradition requests for the same person and for the same conduct amounting to a grave breach. The requested State Party is therefore left to decide which request takes priority according to its national legislation. The Informal Expert Group on Effective Extradition Casework Practice recommends that States use a list of criteria which provide practical guidance to States on handling concurrent or competing requests for extradition.[160]
2887  Lastly, it is important to stress that the preparatory work for the Conventions does not exclude the possibility of a State Party handing over an accused person to an international criminal court or tribunal. It was a deliberate choice of the 1949 Diplomatic Conference not to preclude this possibility.[161] In the case of competing requests from a State and the ICC, Article 90 of the ICC Statute provides detailed rules.[162]
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3. Critical assessment
2888  On paper the grave breaches regime amounts to a watertight mechanism, which should have been an effective means of countering serious violations of the Conventions and the impunity of war criminals throughout the world. Grave breaches can be prosecuted on the basis of various titles of jurisdiction, such as territoriality, active and passive personality, the protective principle or universality.[163] States Parties have, however, made little use of this mechanism, which was ground-breaking at the time.[164] A Danish High Court case in 1994 is reported to be the first instance of national prosecution of perpetrators for grave breaches of the Geneva Conventions on the basis of universal jurisdiction.[165] This led many commentators to admit that, more than 40 years after the adoption of this innovative mechanism, prosecutions of grave breaches, in particular on the basis of universal jurisdiction, were almost unheard of.[166]
2889  As to the drafters’ stated objective of denying safe haven to alleged perpetrators of grave breaches, State practice shows a tendency to exercise universal jurisdiction over crimes under international law only rarely, priority often being given to States with a direct link to the crime.[167] At the time of writing, there seem to have been only 17 reported cases over the past 60 years where domestic courts or tribunals have exercised universal jurisdiction over alleged perpetrators of war crimes or grave breaches.[168]
2890  As mentioned above, as soon as a State Party realizes that a person alleged to have committed or ordered the commission of a grave breach is on its territory or under its jurisdiction, its duty is to ensure that such person is searched for, and, when found and so warranted, prosecuted without delay. The mandatory requirement contained in Article 49 to either prosecute or extradite is not as such well translated into domestic law; universal jurisdiction, along with other bases of jurisdiction, is often extended to grave breaches as a possible tool open to States, but the absolute obligation to either prosecute or extradite, as such, does not seem to be integrated into domestic law. It is not clear whether prosecutors or investigating magistrates know that they are under an obligation to investigate allegations of grave breaches.
2891  Each State Party must implement its obligations under Article 49 and establish within its domestic system the legal basis as well as the various procedures for national prosecutors to start investigating and ultimately prosecuting alleged perpetrators of grave breaches. Adequate domestic law in each country is essential to the effective exercise of universal jurisdiction under the grave breaches regime. States have encountered a number of challenges while implementing these obligations, in particular in relation to the extension of universal jurisdiction to grave breaches. Various legal, technical and practical challenges, as well as political ones, explain the relatively small body of State practice. The distance between the location of an event and the place of prosecution, and the difficulties of having access to victims and witnesses and securing a sufficient amount of probative evidence, are among the challenges encountered.
2892  For the system of national repression of grave breaches to function effectively, States must also be able to assist one another in connection with criminal proceedings for these offences.[169] The Geneva Conventions do not contain specific provisions on mutual legal assistance and cooperation. However, in 1973, the UN General Assembly called on States to ‘co-operate with each other … with a view to halting and preventing war crimes and crimes against humanity’ and to ‘assist each other in detecting, arresting and bringing to justice’ suspected offenders.[170] Pursuant to Additional Protocol I, ‘[t]he High Contracting Parties shall afford one another the greatest measure of assistance in connexion with criminal proceedings brought in respect of grave breaches’.[171] The law on international cooperation and assistance in criminal matters also developed greatly through the adoption of the ICTY, ICTR and ICC Statutes, which contain extensive provisions in this regard.[172] Today, the obligation to make every effort to cooperate, to the extent possible, in the investigation of war crimes and the prosecution of the suspects is part of customary international law.[173]
2893  More recently, some States have created special units at the domestic level for the prosecution of international crimes, a strategy which reinforces the efficiency of investigations and the likelihood of success of prosecutions.[174] Many States have also stressed the importance of adopting prosecutorial prioritization strategies in order to establish a strategic order in which war crimes and gross human rights violations are investigated and prosecuted at the domestic level.[175]
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E. Paragraph 3: Suppression of violations of the Convention other than grave breaches
2894  Pursuant to Article 49(3), each State Party ‘shall take measures necessary for the suppression of all acts contrary to the present Convention other than the grave breaches defined’ in Article 50.
2895  At first sight, it might seem that the French and English texts of Article 49(3) differ slightly, as the English term ‘suppression’ is translated as ‘faire cesser’ (put a stop to) in French. However, a closer look at the preparatory work shows that the word ‘repression/répression’ in both the English and French first drafts was changed to ‘suppression’ in the English version during the debates in the Joint Committee. The Report of the Joint Committee to the Plenary Assembly explains: ‘By using the word “suppression” in the English text, it was intended to signify that all necessary measures would be taken to prevent a recurrence of acts contrary to the Convention.’[176] The word ‘suppression’ was first translated as ‘redressement’ (‘correction’) in French before being changed to ‘faire cesser’: ‘prendra les mesures nécessaires pour faire cesser les actes contraires aux dispositions de la présente Convention’ (‘take measures necessary to put a stop to acts contrary to the provisions of the present Convention’) in the final French version of the paragraph.
2896  It is clear from the genesis of this provision that States Parties are therefore under an obligation to address all other violations of the Conventions, in addition to grave breaches. The use of the formulation ‘shall take measures necessary for the suppression of all acts contrary to the Convention’ implies that States Parties may take a wide range of measures to ensure that violations of the Conventions are stopped and measures taken to prevent their repetition.[177] It is a far-reaching provision. States Parties will determine the best way to fulfil these obligations, for example by instituting judicial or disciplinary proceedings for violations of the Conventions other than grave breaches, or by taking a range of administrative or other regulatory measures or issuing instructions to subordinates.[178] The measures chosen will depend on the gravity and the circumstances of the violation in question, in accordance with the general principle that every punishment should be proportional to the severity of the breach.[179]
2897  States Parties have implemented these obligations in a variety of ways. At first, most States Parties only extended criminal responsibility to the list of grave breaches as they appear in the Geneva Conventions.[180] Only a few States, such as Ireland, Nigeria and South Africa, chose to implement Article 49(3) by extending responsibility to all violations of the Convention.[181] State practice has evolved, in particular since the adoption of the ICC Statute. Nowadays, many States Parties have enacted criminal legislation punishing the commission of a list of war crimes, which goes well beyond the list of grave breaches.[182]
2898  States have also implemented the obligation to suppress all acts contrary to the Convention by widely disseminating the text of the Conventions, pursuant to Article 47, and adopting military regulations, administrative orders and other regulatory measures sanctioning violations of the Convention, thereby helping to prevent their recurrence. The proper implementation of other obligations under this Convention contributes to the effective implementation of the obligation to take all measures necessary to suppress violations of the Convention.[183] For example, once the occurrence of a violation has been established by an enquiry procedure set up under Article 52, States Parties must, in line with their obligations under Article 49(3), take a series of actions depending on the nature of the violation.[184]
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F. Paragraph 4: Safeguards of proper trial and defence
2899  Article 49(4) provides: ‘In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.’
2900  The experience of the ICRC in the years following the Second World War showed that certain safeguards of proper trial and defence are essential in all cases where persons are accused of war crimes or grave breaches. These safeguards are particularly necessary where the accused person is tried by a foreign court. Accordingly, the ICRC included a special article on the subject in the proposals which it submitted to the 1949 Diplomatic Conference. The Conference did not take up the suggestion, at any rate not at first. The French delegation, however, realizing the desirability of placing all accused persons on the same footing, whatever their individual status, proposed the present paragraph 4 during the discussions in the Joint Committee. The Joint Committee approved the French proposal, and it was adopted by the Conference without being modified in any way.[185]
2901  Grave breaches can be committed by civilians and combatants alike.[186] Both must benefit in all circumstances from the safeguards of proper trial and defence. The expression ‘safeguards of proper trial and defence’ must be understood to refer to the minimum judicial guarantees of fair trial and due process. Paragraph 4 provides that such safeguards may not be less favourable than those provided for in Article 105 and the following articles of the Third Convention. At a minimum, States Parties must apply the safeguards contained in these articles when conducting war crimes trials.[187]
2902  Since 1949, the list of judicial guarantees has evolved through the development of both humanitarian and human rights law.[188] Article 49(4) must be read in the light of the guarantees listed in Article 75(4) of Additional Protocol I, which are now recognized as part of customary international law.[189] The judicial guarantees which are generally recognized today as indispensable include:
– The obligation to inform the accused without delay of the nature and cause of the offence alleged;[190]
– The requirement that an accused have the necessary rights and means of defence;[191]
– The right not to be convicted of an offence except on the basis of individual penal responsibility;[192]
– The principle of nullum crimen, nulla poena sine lege (‘no crime or punishment without a law’) and the prohibition of a heavier penalty than that provided for at the time of the offence;[193]
– The right to be presumed innocent;[194]
– The right to be tried in one’s own presence;[195]
– The right not to be compelled to testify against oneself or to confess guilt;[196]
– The right to be advised of one’s judicial and other remedies and of the time-limits within which they may be exercised;[197]
– The right to present and examine witnesses;[198]
– The right to have the judgment pronounced publicly;[199]
– The right not to be prosecuted or punished more than once by the same Party for the same act or on the same charge (non bis in idem).[200]
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G. Applicability of the grave breaches regime in non-international armed conflicts
2903  The grave breaches regime amounts to a major building block in the foundation of international criminal law. Despite being restricted to international armed conflicts and having been largely inoperative for decades, it has acted as a catalyst in creating a more structurally coherent and comprehensive treaty regime governing war crimes. In this respect, the question has been raised as to the possible extension of this regime to non-international armed conflicts.
2904  The preparatory work for the Conventions shows that the issue of individual criminal responsibility for violations of common Article 3 was discussed only superficially.[201] A few States wished for common Article 3 to include the possibility for States to consider violations of this article as war crimes,[202] but most States clearly rejected this proposal. The majority view at the time was that, except for Article 3, the provisions of the four Geneva Conventions, including the grave breaches regime, were not applicable in non-international armed conflicts.[203] The study of the debates in 1949 on the grave breaches provisions shows that their application in non-international armed conflicts was not even envisaged.[204] Similarly, international criminal responsibility for violations of Additional Protocol II was never discussed or recognized as such during the 1974–1977 negotiations.[205]
2905  Even though the extension of the grave breaches regime to non-international armed conflicts was not envisaged in 1949, some authors and judicial pronouncements have argued for it.[206] However, it is difficult to conclude that such extension has materialized in customary international law in the light of the relative dearth of State practice and opinio juris supporting such extension.[207] The large majority of national implementing legislation has not extended the regime of grave breaches to non-international armed conflicts[208] and, during the negotiation of the ICC Statute, States, while elaborating the list of war crimes, maintained the dichotomy between international and non-international armed conflicts. In other words, the grave breaches regime, which obliges States to either prosecute or extradite accused persons, was not extended to war crimes committed in non-international armed conflicts. In practice, the non-applicability of the grave breaches regime to war crimes committed in non-international armed conflicts should not excessively hamper the enforcement of individual criminal responsibility in such conflicts, as a growing number of States have now equipped themselves with the means to exercise universal jurisdiction over such war crimes.[209] A number of national laws, in particular the ones enacted since the adoption of the ICC Statute, provide evidence for a right established in customary international law to extend universal jurisdiction to serious violations of international humanitarian law in non-international armed conflicts.[210]
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‘The History of the Grave Breaches Regime’, Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 657–682.
Sassòli, Marco, ‘Larrêt Yerodia: quelques remarques sur une affaire au point de collision entre les deux couches du droit international’, Revue générale de droit international public, Vol. 106, No. 4, 2002, pp. 791–817.
Segall, Anna, Punishing Violations of International Humanitarian Law at the National Level: A Guide for Common Law States – Drawing on the proceedings of a meeting of experts (Geneva, 11–13 November 1998), ICRC, Geneva, 2001.
Sluiter, Göran (ed.), ‘Symposium’, Journal of International Criminal Justice, Vol. 5, No. 1, March 2007, pp. 67–226.
UN Office on Drugs and Crime, Manual on Mutual Legal Assistance and Extradition, United Nations, New York, 2012.
UN Secretary-General, Report on the scope and application of the principle of universal jurisdiction, UN Doc. A/66/93, 20 June 2011.
UN War Crimes Commission, The History of the United Nations War Crimes Commission and the Development of the Laws of War, His Majesty’s Stationery Office, London, 1948.
van Elst, Richard, ‘Implementing Universal Jurisdiction over Grave Breaches of the Geneva Conventions’, Leiden Journal of International Law, Vol. 13, No. 4, December 2000, pp. 815–854.
van Steenberghe, Raphaël, ‘The Obligation to Extradite or Prosecute: Clarifying its Nature’, Journal of International Criminal Justice, Vol. 9, No. 5, 2011, pp. 1089–1116.
Wagner, Natalie, ‘The development of the grave breaches regime and of individual criminal responsibility by the International Criminal Tribunal for the former Yugoslavia’, International Review of the Red Cross, Vol. 85, No. 850, June 2003, pp. 351–383.
Wells, Donald A., War Crimes and Laws of War, 2nd edition, University Press of America, 1991.

1 - See Second Convention, Article 50; Third Convention, Article 129; and Fourth Convention, Article 146.
2 - See, in particular, Additional Protocol I, Articles 11 and 85.
3 - See, in particular, Additional Protocol I, Article 86(2) on command responsibility and Article 87 (Duty of commanders)
4 - See Additional Protocol I, Article 85(5). For further details, see Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 3408.
5 - James G. Stewart, ‘Introduction’, Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 653–655, at 654.
6 - See ICRC Study on Customary International Humanitarian Law (2005), Rule 158: ‘States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.’
7 - Sandoz, 2009, p. 679.
8 - For a discussion of whether serious violations of international humanitarian law committed in non-international armed conflict amount to grave breaches, see section G.
9 - For a full explanation of the obligation contained in Article 49(2), see section D.1.
10 - For an extensive historical background, see Green, 1996b; Cryer; and McCormack, 1997a. See also Draper; Green, 1996a; Wells, especially chapter 6, entitled ‘Prosecution for war crimes in history’, p. 91; Lauterpacht; McCormack, 1997b; Levie; Greppi, p. 531; and La Haye, pp. 104–107.
11 - For more details on this issue, see ICRC, The Roots of Behaviour in War: A Survey of the Literature, ICRC, Geneva, October 2004.
12 - Such as in Asia, where, according to the sixteenth-century code of Bushido, for example, ‘every soldier must report to the commander about prisoners of war … he shall be guilty of manslaughter if he kills them with his own hands’; see Sumio Adachi, ‘The Asian concept’, in International Dimensions of Humanitarian Law, Henry Dunant Institute, Geneva, 1988, p. 13.
13 - See, in particular, Green, 1996a, p. 278; Keen, p. 3; and Meron, 1998.
14 - On the role and impact of the Lieber Code, see Sandoz. See also Lieber Code (1863), Articles 44, 47 and 71.
15 - Neither the 1864 Geneva Convention nor the 1868 St Petersburg Declaration contains any provisions dealing with the repression of violations. After 1870, the then ICRC President Gustave Moynier, among others, was already calling for the establishment of an international tribunal for the repression of breaches of the 1864 Geneva Convention; see Gustave Moynier, Considérations sur la sanction pénale à donner à la Convention de Genève, Imprimerie F. Regamey, Lausanne, 1893. In 1895, the Institute of International Law adopted a resolution on this issue; see http://www.justitiaetpace.org/idiF/resolutionsF/1895_camb_03_fr.pdf. It is also interesting to note that the Oxford Manual adopted by the Institute in 1880 as a model for national military codes provides, in its Article 84, that ‘offenders against the laws of war are liable to the punishments specified in the penal law’. For a full review of early instruments dealing with the repression of violations of the laws and customs of war, see Graven p. 241; Bassiouni/Wise, p. 86; Sandoz, 1986, p. 209; Abi-Saab, p. 99; Levie, p. 96; Green, 1984, p. 3; and Wells, p. 68.
16 - See Geneva Convention (1906), Articles 27 and 28, and Hague Convention (X) (1907), Article 21.
17 - See Hague Regulations (1907), Article 3. A similar obligation is contained in Article 91 of Additional Protocol I.
18 - There are several cases where States asserted their right to punish individuals for violations of the laws of war. For example, in 1902 a private commission in the United States investigated the serious violations committed by US troops during the Philippine insurrection of 1899–1902. A number of soldiers were tried by US courts-martial. See McCormack, 1997b, p. 696, and Mettraux, 2003, p. 135.
19 - For an overview of this issue during the First World War, see Sandoz, 2009, pp. 665–673, citing in particular James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War, Greenwood Press, Westport, 1982, pp. 13–19.
20 - Interestingly, Sandoz, 2009, p. 666, notes that, at the beginning of the war, ‘there was reluctance to go too far and too quickly in the direction of international repression for fear that each side would use prosecutions as a basis for reprisals’.
21 - The Commission’s report was reproduced in the American Journal of International Law, Vol. 14, No. 1, 1920, pp. 95–126.
22 - For an analysis of this first list of war crimes, see Sandoz, 2009, pp. 667–669. It is important to note that this list cannot be considered a serious and systematic inventory of State practice, as it is driven mainly by facts and also omits numerous crimes committed by the Allies.
23 - Ibid. p. 670. The four categories of defendants is clarified in the Commission’s report, reproduced in the American Journal of International Law, Vol. 14, No. 1, 1920, pp. 121–122. The Commission’s proposal to create an ad hoc tribunal was contested by the US delegation, and consequently was not adopted in the 1919 Treaty of Versailles.
24 - These trials are referred to as the ‘Leipzig Trials’. See La Haye, p. 106, citing McCormack, 1997b, pp. 705–770; Levie, pp. 97–98; Wells, p. 70; Cryer, pp. 33–35; and Maogoto.
25 - During the conflict, there were also accounts of war crimes trials conducted by individual Allied States against German soldiers for violations of the laws of war, such as pillage, robbery, and murder of wounded soldiers on the battlefield. See McCormack, 1997a, p. 44.
26 - See Sandoz, 2009, p. 671.
27 - The High Contracting Parties had to notify the Swiss Federal Council of all provisions related to such repression no later than five years from the date of ratification of the Convention. Very few High Contracting Parties actually complied with this obligation.
28 - See Geneva Convention on the Wounded and Sick (1906), Article 28. For more detail on the abuse of the emblem, see the commentary on Article 53 of the First Convention.
29 - For further details on the enquiry mechanism, see the commentary on Article 52 of the First Convention.
30 - See the 1942 Declaration of St James establishing the UN War Crimes Commission and the 1943 Moscow Declaration concerning atrocities. On this issue, see Green, 1996a, p. 14; Cryer, pp. 36–37; and Maogoto, pp. 87–97.
31 - UN War Crimes Commission, The History of the United Nations War Crimes Commission and the Development of the Laws of War, p. 171.
32 - Wells, p. 74. The details for prosecuting Germans whose offences had taken place in a specific country were set down in the 1945 Allied Control Council Law No. 10. For a study of some of these trials held by the Nuremberg Military Tribunals, see Heller, pp. 203–230.
33 - See IMT Charter for Germany (1945), Article 1. Many legal and historical works have been written about this tribunal; see e.g. Eugene Davidson, The Trial of the Germans: An Account of the 22 Defendants before the International Military Tribunal at Nuremberg, Macmillan, New York, 1966; Bradley F. Smith, Reaching Judgment at Nuremberg, Basic Books, New York, 1977; William J. Bosch, Judgment on Nuremberg: American Attitudes toward the Major German War-Crime Trials, University of North Carolina Press, Chapel Hill, 1970; Annette Wieviorka (ed.), Les procès de Nuremberg et de Tokyo, Editions Complexes, Brussels, 1996; Maogoto, pp. 98–100; Ann Tusa and John Tusa, The Nuremberg Trial, reprinted edition, Cooper Square Press, New York, 2003; and George Ginsburgs and Vladimir N. Kudriavtsev (eds), The Nuremberg Trial and International Law, Martinus Nijhoff Publishers, Leiden, 1990. See also Meron, 2006.
34 - For the definition of war crimes, see IMT Charter for Germany (1945), Article 6(b).
35 - See the report of the International Law Commission, which formulated the 1950 Nuremberg Principles, Yearbook of the International Law Commission, Vol. II, 1950, p. 374.
36 - See IMT, Case of the Major War Criminals, Judgment, 1948, pp. 253–254.
37 - Ibid.
38 - Additional trials of persons whose crimes had been carried out in a specific country were conducted at the national level. See Wells, pp. 74–77; Cryer, pp. 42–48; Maogoto, pp. 100–106; Richard H. Minear, Victors’ Justice: The Tokyo War Crimes Trial, 1st edition, Princeton University Press, 1971; C. Hosoya et al. (eds), The Tokyo War Crimes Trial: An International Symposium, 1st edition, Kodansha America Inc., New York, 1986; and Yuki Tanaka, Tim McCormack and Gerry Simpson (eds), Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited, Martinus Nijhoff Publishers, Leiden, 2011.
39 - See Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 357. For a different analysis of the role and views of the ICRC, see Lewis, pp. 229–273.
40 - See Report of the Conference of Government Experts of 1947, pp. 63–64 (Article 33). For a thorough analysis of this meeting, see Lewis, pp. 243–248.
41 - Draft article 40, adopted by the 17th International Red Cross Conference in Stockholm, read as follows: 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. See Draft Conventions adopted by the 1948 Stockholm Conference, p. 25. The Conference also adopted draft article 39, which read: ‘Within a maximum period of two years, the governments of the High Contracting Parties shall, if their penal laws are inadequate, enact or propose to their legislative assemblies the measures required to make unlawful, in time of war, all acts contrary to the provisions of the present Convention.’ For an analysis of this meeting, see Lewis, pp. 253–257.
42 - These four draft articles were entitled ‘Legislative measures’, ‘Grave violations’, ‘Superior orders’ and ‘Safeguard’, respectively. For further details, see Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 358; Best, pp. 160–163; and ICRC Remarks and Proposals on the 1948 Stockholm Draft. See also Graven, pp. 248–250; Nebout, in particular pp. 17–22; de La Pradelle, pp. 251–255; and Lewis, pp. 257–262.
43 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 24.
44 - The text considered by the Diplomatic Conference was the Draft Conventions adopted by the 1948 Stockholm Conference. The ICRC’s four draft articles and other amendments submitted by different delegations were discussed by the Special Committee of the Joint Committee, as well as by the Joint Committee in charge of the common articles of the Conventions. For an analysis of the Conference’s deliberations on this issue, see Lewis, pp. 262–269, and de La Pradelle, pp. 255–264.
45 - This proposal was also supported by the Soviet Union. See Minutes of the Diplomatic Conference of Geneva of 1949, Mixed Commission, 16 July 1949, pp. 3–13, and de La Pradelle, p. 258.
46 - This view was expressed by the US delegate, who also stated that, ‘as far as his country was concerned, such a time limit was not acceptable’; Minutes of the Diplomatic Conference of Geneva of 1949, Mixed Commission, 16 July 1949, p. 7.
47 - See ibid. p. 6. Among the ICRC draft articles was one dealing with the concept of superior orders. On this point, see also Sandoz, 2009, p. 675.
48 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 115.
49 - The concept of ‘grave breaches’ appears for the first time in the ICRC’s draft article 40; see ICRC Remarks and Proposals on the 1948 Stockholm Draft, p. 18. On the Russian amendments, see de La Pradelle, pp. 258 and 260–261.
50 - See Minutes of the Diplomatic Conference of Geneva of 1949, Mixed Commission, 16 July 1949, p. 8.
51 - Ibid. p. 6. Paragraph 4 of Article 49 (judicial safeguards) was, however, included in the final version of the Conventions; see ibid. p. 11.
52 - This can also be read together with Article 80 of Additional Protocol I, which more generally requires High Contracting Parties and Parties to an armed conflict to take without delay all necessary measures for the execution of their obligations under the Conventions and the Protocol.
53 - ICJ, Obligation to Prosecute or Extradite case, Judgment, 2012, para. 75.
54 - The preparatory work for the 1949 Diplomatic Conference shows that the drafters wanted to move away from the 1929 wording. They borrowed the much stronger wording of Article 5 of the 1948 Genocide Convention, which lays down the obligation to enact legislation ‘to provide effective penalties’. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 115.
55 - On this point, see Dörmann/Geiss, p. 707. See also the commentary on common Article 1, para. 170, on the use of the term ‘undertake’. See further ICJ, Military and Paramilitary Activities in and against Nicaragua case, Merits, Judgment, 1986, para. 220, and Application of the Genocide Convention case, Merits, Judgment, 2007, para. 162.
56 - The ICRC conducted a process of consultations and exchanges on the role of ‘sanctions’. The discussion below summarizes the main findings of this process, which have been included in La Rosa, 2008. See also ICRC Advisory Service on International Humanitarian Law, 2014, National measures to repress violations of international humanitarian law (Civil law systems), Vol. I, pp. 61–66, and Vol. II, pp. 133–141.
57 - La Rosa, 2008, p. 244.
58 - Ibid. pp. 222 and 226.
59 - Ibid. p. 226.
60 - International humanitarian law needs to be integrated into the training and education of weapon bearers. See the commentary on Article 47.
61 - La Rosa, 2008, p. 227.
62 - For further details, see ibid. pp. 227–228 and 245. This is particularly important in order to avoid a general lack of comprehension and resentment among both the victims and the alleged perpetrators.
63 - On this point, see the comments made by States in ICRC, Preventing and repressing international crimes, Vol. I, p. 38. See also ICRC, National measures to repress violations of international humanitarian law (Civil law systems), pp. 150–151.
64 - See, in particular, ICRC Study on Customary International Humanitarian Law (2005), Rule 160 (and supporting practice pp. 614–618), and Article 29 of the 1998 ICC Statute, which provides that ‘the crimes within the jurisdiction of the Court shall not be subject to any statute of limitations’. It has been suggested in the literature that a national statute of limitations, which drastically reduces the time span for the institution of criminal proceedings, would preclude a State from effectively complying with its obligations under Article 49 of the Convention; see e.g. Kreß, p. 806.
65 - See in particular, ICRC Study on Customary International Humanitarian Law (2005), Rule 155, which provides that ‘obeying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act ordered’. This rule is spelled out in the 1993 ICTY Statute, the 1994 ICTR Statute, the 1998 ICC Statute, UNTAET Regulation No. 2000/15 and the 2002 SCSL Statute.
66 - In international armed conflict, the granting of amnesties or any other measures, precluding in effect any genuine investigation and prosecution, cannot extend to those suspected of having committed grave breaches, as this would violate the absolute obligations contained in Article 49 to investigate and, if appropriate, prosecute or extradite alleged offenders. See ECCC, Ieng Sary Decision on Ieng Sary’s Rule 89 Preliminary Objections, 2011, para. 39, where the Extraordinary Chambers stated: ‘As Cambodia is under an absolute obligation to ensure the prosecution or punishment of perpetrators of grave breaches of the 1949 Geneva Conventions, genocide and torture, the 1996 Royal Decree cannot relieve it of the duty to prosecute these crimes or constitute an obstacle thereto.’ Another question might arise as to whether an amnesty law adopted in one State Party would prevent other High Contracting Parties from exercising their jurisdiction over the alleged perpetrators and prosecuting them for grave breaches. Furthermore, human rights bodies have stated that amnesties are incompatible with the duty of States to investigate crimes under international law and violations of non-derogable human rights law; for more details, see Henckaerts/Doswald-Beck, commentary on Rule 159, pp. 612–614.
67 - For a definition of the concept of universal jurisdiction, see section D.1, para. 46.
68 - See Dörmann/Geiss, p. 709.
69 - In some monist countries, international humanitarian law does not need to be translated into national law and can be directly enforced by domestic courts, as the primacy of international law over national law is provided for in the constitution. See ICRC, Preventing and repressing international crimes, Vol. I, pp. 36–37, citing the examples of France and Hungary.
70 - For further details on the methods of incorporating international crimes into domestic law, see ICRC, The Domestic Implementation of International Humanitarian Law, chapter 3, and Preventing and repressing international crimes, Vol. I, pp. 29–39. See also Dörmann/Geiss, pp. 710–717, and Blazeby.
71 - The participants in the Third Universal Meeting of National Committees for the Implementation of International Humanitarian Law took the view that, in the light of its numerous drawbacks, this method should only be applied for a transitory period. See ICRC, Preventing and repressing international crimes, Vol. I, pp. 30–32. On the pros and cons of this option, see also Ferdinandusse, pp. 729–734.
72 - Also note that, under Article 10(2)(a) of the 1993 ICTY Statute and Article 9(2)(a) of the 1994 ICTR Statute, each Tribunal may still prosecute a person who has been tried before a national court for ‘acts constituting serious violations of international humanitarian law’ if the acts for which the person was tried were ‘categorized as an ordinary crime’. For these tribunals, prosecutions of these violations simply as ordinary crimes are not the same as prosecution under the material provisions of the respective Statute. On this point, see Dörmann/Geiss, p. 710. On the ICC’s interpretation of Article 20(3) of its Statute in the light of the ne bis in idem rule, see Gaddafi Judgment on the appeal of Libya against the decision of the Pre-Trial Chamber of 31 May 2013 on the Admissibility of the Case, 2014, in particular paras 60–84. See also ECCC, Ieng Sary Decision on Ieng Sary’s Rule 89 Preliminary Objections, 2011, paras 32–36.
73 - Some grave breaches are rather specific and uniquely related to armed conflict, such as the unlawful deportation or transfer of a protected person (Article 146 of the Fourth Convention) or compelling a protected person or a prisoner of war to serve in the forces of a hostile power (Article 129 of the Third Convention).
74 - On these issues, see also Dörmann/Geiss, pp. 709–710, and the conclusions of the Public Commission to Examine the Maritime Incident of 31 May 2010, Second Report – The Turkel Commission, February 2013. Reflecting on the content of Israeli criminal law, the Commission stated: In order to adhere to the requirements of international law to ‘enact legislation necessary to provide effective penal sanctions’ for those committing war crimes, the Commission is of the opinion that it is satisfactory to ‘translate’ the behavior amounting to a war crime into an existing offense in the domestic legislation, provided that it reflects the severity of the violation under international law. … The Ministry of Justice should initiate legislation wherever there is a deficiency regarding international prohibitions that do not have a ‘regular’ equivalent in the Israeli Penal Law, and rectify that deficiency through Israeli criminal legislation (p. 365).
75 - For examples of States Parties that have chosen this option, see ICRC, Preventing and repressing international crimes, Vol. I, p. 33.
76 - In accordance with the principle of legality, ‘[n]o one may be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time it was committed; nor may a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed’; ICRC Study on Customary International Humanitarian Law (2005), Rule 101. The principle of specificity requires that the definition of the proscribed act be sufficiently precise.
77 - For further details, see ICRC, Preventing and repressing international crimes, Vol. I, p. 33.
78 - For examples of States Parties that have chosen this option, see ibid. pp. 33–35.
79 - See e.g. United Kingdom, Geneva Conventions Act, 1957, as amended, which served as a model for the legislation of many other common-law countries. See also ICRC, National Implementation of IHL database, available at https://www.icrc.org/ihl-nat.
80 - Ibid. See, in particular, the legislation of Burundi, Cyprus, Denmark, Ireland, Kenya, New Zealand and South Africa, to cite but a few examples.
81 - Ibid. See e.g. the legislation of Australia, France, Germany, the Netherlands and Spain.
82 - For examples of States Parties that have chosen this option, see ICRC, Preventing and repressing international crimes, Vol. I, p. 36.
83 - Helpful starting points include the factsheets, ratification kits and reports on expert meetings produced by the ICRC or other institutions that have looked at the intricacies of implementing war crimes legislation at the domestic level. See e.g. ICRC, National measures to repress violations of international humanitarian law (Civil law systems), and Segall. Also useful are model laws, such as those contained in ICRC, Advisory Service on International Humanitarian Law, Model Law, Geneva Conventions (Consolidation) Act, Legislation for Common Law States on the 1949 Geneva Conventions and their 1977 and 2005 Additional Protocols, August 2008; the Revised Commonwealth Model Law on implementing the ICC Statute and related commentary, produced by the Commonwealth Secretariat; and the Arab Model Law Project on Crimes within ICC Jurisdiction. Databases containing the implementing legislation of many States Parties are invaluable tools enabling States to learn from one another’s experience. Three databases are particularly relevant. One is produced by the ICRC, at https://www.icrc.org/ihl-nat. Others are the documents compiled on the website of the Coalition for the International Criminal Court, at https://www.iccnow.org/?mod=documents, and a third database on the website of the ICC, at http://www.legal-tools.org/browse. Lastly, universal and regional meetings of national committees on international humanitarian law and similar bodies can also be instrumental in giving an impetus to States of the same region or legal tradition and encouraging them to implement their obligations under international humanitarian law as quickly as possible. For a full review of all relevant documents, see ICRC, Preventing and repressing international crimes, Vol. I, pp. 75–85.
84 - For an interpretation of the word ‘persons’ and a discussion of who can commit a grave breach, see the commentary on Article 50, section C.3.
85 - See Minutes of the Diplomatic Conference of Geneva of 1949, Mixed Commission, 16 July 1949, p. 6.
86 - As to the question of attempt, Article 25(3)(f) of the 1998 ICC Statute includes, among acts engaging individual criminal responsibility, attempts to commit grave breaches or war crimes. However, the 1945 Allied Control Council Law No. 10 did not recognize attempt as an act engaging criminal responsibility for war crimes. Similarly, the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity does not apply to attempted war crimes, nor do the Statutes of either the ICTY or the ICTR provide for this form of responsibility. Article 49, however, does not preclude States from subjecting such attempts to penal or disciplinary sanctions.
87 - On the forms of responsibility, see Henckaerts/Doswald-Beck, commentary on Rule 151, in particular p. 554. See also ICTY Statute (1993), Article 7; ICTR Statute (1994), Article 6; ICC Statute (1998), Article 25; and SCSL Statute (2002), Article 6. Lastly, it may be noted that both the ICTY and the ICTR have extended their jurisdiction to a particular form of criminal responsibility, namely responsibility as part of a joint criminal enterprise or common purpose. See, in particular, ICTY, Tadić Appeal Judgment, 1999, paras 195–226; Krnojelac Appeal Judgment, 2003, para. 30; and Vasiljević Appeal Judgment, 2004, paras 96–99. For more details, see, inter alia, Mettraux, 2005, pp. 287–293; Danner/Martinez; Sluiter; and Cassese.
88 - See Henckaerts/Doswald-Beck, Rule 152 and its commentary.
89 - For the contours of the concept of command responsibility, see ibid. Rule 153 and its commentary, pp. 558–563; Additional Protocol I, Articles 86(2) and 87; ICTY Statute (1993), Article 7(3); and ICC Statute (1998), Article 28;. The most important recent judicial decisions on command responsibility were taken by the ICTY: see Hadžihasanović Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 2003; Delalić Appeal Judgment, 2001, paras 222–241; Aleksovski Appeal Judgment, 2000, paras 72 and 76; Kunarac Trial Judgment, 2001, paras 394–399; Blaškić Appeal Judgment, 2004, paras 53–85; and Perišić Appeal Judgment, 2013, paras 86–120. See also ICTR, Bagilishema Appeal Judgment, 2002, paras 24–50, and Kajelijeli Trial Judgment, 2003, to name but a few. See also Mettraux, 2009.
90 - This is clearly recognized in Article 87 of Additional Protocol I.
91 - See the list of grounds excluding criminal responsibility in Article 31 of the 1998 ICC Statute. For the controversy surrounding the applicability of the ground of self-defence, as set forth in Article 31(1)(c) of the 1998 ICC Statute, to war crimes, see Eric David, Principes de droit des conflits armés, 5th edition, Bruylant, Brussels, 2012, paras 4.430–4.431 and 4.352.
92 - Henckaerts/Doswald-Beck, Rule 155 and commentary. This rule was already present in the IMT Charters for Germany and the Far East setting up the Nuremberg and Tokyo tribunals. It follows that a superior order cannot therefore relieve a person from criminal responsibility unless that person was under a legal obligation to obey orders from the government or the superior in question, did not know that the order was unlawful, and the order was not manifestly unlawful (Article 33 of the 1998 ICC Statute). On this issue, see also Article 7(4) of the 1993 ICTY Statute and Article 6(4) of the 1994 ICTR Statute.
93 - See Henckaerts/Doswald-Beck, Rule 154 and commentary.
94 - See e.g. ICTY, Erdemović Appeal Judgment, 1997, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 34, and Mrđa Sentencing Judgment, 2004, paras 65 and 67.
95 - See ICRC, Respect of the Geneva Conventions: Measures Taken to Repress Violations, Report prepared for the 21st International Conference of the Red Cross, Istanbul, 1969, pp. 1–2.
96 - Ibid. p. 3.
97 - For examples, see the ICRC’s National Implementation of IHL database, available at https://www.icrc.org/ihl-nat. For further details, see section C.2.
98 - See ICC Statute (1998), Articles 13, 14 and 17. For an interpretation of Article 17, see, in particular, ICC, Katanga Judgment on the Appeal against the Oral Decision on Admissibility, 2009, paras 58–86.
99 - Ironically, it must also be noted that the creation of international criminal tribunals and the establishment of the ICC represent ‘a modern reaction to the failure of States to prosecute’; Dörmann/Geiss, p. 705.
100 - See national legislation available in the ICRC’s National Implementation of IHL database, https://www.icrc.org/ihl-nat. See also ICRC, Preventing and repressing international crimes, Vol. II, pp. 53–122.
101 - See Henzelin, p. 353, as well as Van Elst, p. 819 and Van Steenberghe, p. 1113, who prefers the maxim ‘prosequi vel dedere’ (prosecute or surrender), p. 1114. See also the view expressed by the International Court of Justice in the Obligation to Prosecute or Extradite case, in relation to the 1984 Convention against Torture: ‘Article 7, paragraph 1, requires the State concerned to submit the case to its competent authorities for the purpose of prosecution, irrespective of the existence of a prior request for the extradition of the suspect. … Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State’; Obligation to Prosecute or Extradite case, Judgment, 2012, paras 94 and 95. An identical reasoning applies to Article 49 of the Geneva Convention, which is phrased in a similar way to Article 7 of the 1984 Convention against Torture.
102 - Debates during the 1949 Diplomatic Conference show that the participants rejected the Italian proposal to limit to Parties to an armed conflict the obligation to search for persons alleged to have committed any of the grave breaches and to bring them before domestic courts. The Dutch delegate stated that ‘each Contracting Party should be under this obligation, even if neutral in a conflict’; Minutes of the Diplomatic Conference of Geneva of 1949, Mixed Commission, 16 July 1949, p. 7.
103 - On this point, see e.g. Kreß, p. 801, and O’Keefe, p. 816.
104 - On this point, see e.g. Gaeta, p. 631.
105 - The Princeton Principles on Universal Jurisdiction, Princeton University, 2001, Principle 1. The African Union-European Union Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction used the following definition: ‘Universal criminal jurisdiction is the assertion by one state of its jurisdiction over crimes allegedly committed in the territory of another state by nationals of another state against nationals of another state where the crime alleged poses no direct threat to the vital interests of the state asserting jurisdiction.’ Council of the European Union, Report of the AU-EU Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction, Doc. 8672/09, Brussels, 15 April 2009, p. 3. For a discussion of the concept of universal jurisdiction, see in particular Bassiouni, pp. 81–157.
106 - During the 1949 Diplomatic Conference, the Dutch delegate stated that ‘each Contracting Party should be under this obligation, even if neutral in a conflict’. ‘The Chairman was of the opinion that a neutral State did not violate its neutrality by trying or handing over an accused, under an international obligation.’ Minutes of the Diplomatic Conference of Geneva of 1949, Mixed Commission, 16 July 1949, p. 7.
107 - The universality principle was clearly mentioned during the 1949 Diplomatic Conference in the discussion on Article 49(2): ‘[T]he principle of universality should be applied here. The Contracting Party in whose power the accused is, should either try him or hand him over to another Contracting Party.’ Ibid. See also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 364, where the UK delegate stated: If the High Contracting Parties carry out their obligations, under the first paragraph of this Article, to enact any legislation necessary to provide effective penal sanctions for persons committing … , etc., grave breaches of the Convention, it necessarily follows that they will be able to bring before their Courts any such persons. … [I]t is obvious that the Courts of such a State will have jurisdiction to try any person committing such an offence. See also de La Pradelle, pp. 258–259.
108 - See the ICRC’s National Implementation of IHL database, available at https://www.icrc.org/ihl-nat. See also UN Secretary-General, Report on the scope and application of the principle of universal jurisdiction, 2011, para. 134, and ICRC, Preventing and repressing international crimes, Vol. II, pp. 53–122.
109 - Some States, faithful to the wording of the Geneva Conventions, do not require the existence of any link between the alleged perpetrator and the prosecuting State, and allow prosecution of an alleged perpetrator who is not present on their territory. See ICRC, Preventing and repressing international crimes, Vol. I, p. 60, citing Austria, Canada, Germany, Italy and New Zealand as examples.
110 - The information collected by the ICRC shows that over 40 States require the presence, temporary or permanent, of the alleged offender on the territory of the prosecuting State before they can initiate prosecutions of alleged offenders for war crimes. See ibid. pp. 59–60. Examples of these States include Argentina, Bosnia and Herzegovina, Colombia, the Democratic Republic of the Congo, Denmark, Ethiopia, Ireland, the Netherlands, Samoa, Senegal, Spain and the United Kingdom. See also the ICRC’s National Implementation of IHL database, available at https://www.icrc.org/ihl-nat, and the ICRC’s contribution to the UN General Assembly’s debate on the scope of application of universal jurisdiction, in UN Secretary-General, Report on the scope and application of the principle of universal jurisdiction, 2011, para. 136; and La Rosa/Chavez Tafur. See also the practice compiled in this regard in Council of the European Union, Report of the AU-EU Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction, Doc. 8672/09, Brussels, 16 April 2009, paras 18 and 24. For a discussion of the requirement that the suspect be present before any proceedings can be started, see, in particular Lafontaine, pp. 1277–1286.
111 - See La Rosa/Chavez Tafur, pp. 36–37.
112 - Such a condition is sometimes included in the national legislation of common-law countries such as Australia, Botswana, Canada, Kenya, New Zealand, Samoa, Uganda and the United Kingdom, and has also been included in the Belgian Criminal Code.
113 - See Segall, pp. 81 and 129. It is interesting to note that, on 17 March 2014, the Spanish National Court refused to apply the new sections of the Organic Law 1/2014 on universal jurisdiction, which require inter alia the presence of the perpetrator on Spanish territory before universal jurisdiction can be extended to the case at hand. The High Court found that this new provision was in contradiction with the grave breaches provisions of the Geneva Conventions, obliging Spain as a High Contracting Party to prosecute the crime regardless of the perpetrators’ nationalities and wherever they may be. See High Court of Spain, Case No. 27/2007.
114 - See the ICRC’s contribution to the UN General Assembly’s debate on the scope and application of the principle of universal jurisdiction, in UN Secretary-General, Report on the scope and application of the principle of universal jurisdiction, 2011, paras 136–138, as well as ‘Information and observations on the scope of application of universal jurisdiction’, submitted by the ICRC pursuant to UN General Assembly Res. 65/33, 30 April 2013, p. 4. In this respect, note the decision of 25 July 2012 by the Swiss Federal Criminal Court, which, in relation to the possible extension of universal jurisdiction to a former Algerian minister of defence accused of war crimes, and the requirement under Swiss law that the accused be present on the territory when a criminal investigation is opened, states: [T]oo strict an interpretation of the requirement that the accused be present on Swiss territory would amount to letting the accused decide whether the proceedings should go ahead. This is not what the Swiss Parliament had in mind when it decided to change the law so that Switzerland could take part effectively in international efforts to punish human rights violations. Accordingly, it is sufficient that the appellant was present in Switzerland when he was questioned by the Office of the Attorney-General of Switzerland. The fact that he is no longer in Switzerland at present should not by itself hinder the investigation launched by the Office of the Attorney-General. [unofficial English translation] Switzerland, Federal Criminal Court, A. v. Ministère Public de la Confédération case, Judgment, 2012, para. 3.1.
115 - For a similar reasoning, see ICJ, Obligation to Prosecute or Extradite case, Judgment, 2012, para. 114.
116 - For a similar reasoning, see ibid. para. 120, and ILC, Report of the Working Group on the Obligation to extradite or prosecute (aut dedere aut judicare), UN doc. A/CN.4/L.829, 2013, para. 30.
117 - See the statement made by the ICRC before the UN General Assembly, 67th session, Sixth Committee, 18 October 2012.
118 - See ICJ, Obligation to Prosecute or Extradite case, Judgment, 2012, para. 88. According to the ICJ, ‘[t]he establishment of the facts at issue, which is an essential stage in that process, became imperative in the present case at least since the year 2000, when a complaint was filed in Senegal against Mr. Habré’; ibid. para. 86. The same reasoning is applicable to grave breaches under the Geneva Conventions.
119 - ICJ, ibid. para. 117.
120 - On this particular point, see Kreß, p. 801. This interpretation is also in line with the views of the Institute of International Law, which in 2005 stated: ‘Apart from acts of investigation and requests for extradition, the exercise of universal jurisdiction requires the presence of the alleged offender in the territory of the prosecuting State …’. Institute of International Law, Universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes, 17th Commission, Krakow, 2005, para. 3(b).
121 - The African Union Model National Law on Universal Jurisdiction over International Crimes is interesting as it makes the exercise of universal jurisdiction conditional only on the presence of the accused on the territory of the State at the time of commencement of the trial, therefore not excluding the possibility that States may launch investigations or pre-trial procedures in absentia. African Union Model National Law on Universal Jurisdiction over International Crimes, 2012, AU Doc. EX.CL/731(XXI)c, section 4.
122 - Judge ad hoc Van den Wyngaert stated in the Arrest Warrant case that ‘[t]here is no rule of conventional international law to the effect that universal jurisdiction in absentia is prohibited’; ICJ, Arrest Warrant case, Judgment, 2002, Dissenting Opinion of Judge ad hoc Van den Wyngaert, para. 54. See also the Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, para. 56. For a discussion of this issue, see O’Keefe, who concludes: ‘Given that the 1949 Geneva Conventions mandate, and a fortiori permit, the extension of national criminal jurisdiction over grave breaches on the basis of universality, the exercise of this jurisdiction, by means of the issuance of an arrest warrant or trial, in the absence of the accused is internationally lawful’ (p. 830). See also Rabinovitch: ‘[I]f it is unclear whether custom prohibits the exercise of in absentia jurisdiction, it is equally unclear whether or not it permits such an exercise. That said, State practice in recent years has increasingly supported the view that States may exercise universal jurisdiction in absentia if they so desire’ (p. 511).
123 - See UN Secretary-General, Report on the scope and application of the principle of universal jurisdiction, 2011, para. 124. For a critical view on the issue of the legality of trials in absentia in the light of human rights, see, for example, Chris Jenks and Eric Talbot Jensen, ‘All Human Rights are Equal, But Some are More Equal than Others: The Extraordinary Rendition of a Terror Suspect in Italy, the NATO SOFA, and Human Rights’, Harvard National Security Journal, Vol. 1, 2010, pp. 172–202. On the importance of respect for the right to a fair trial and on the issue of trials in absentia, see European Committee on Crime Problems, Committee of Experts on the Operation of European Conventions in the Penal Field, Judgments in Absentia, Secretariat Memorandum prepared by the Directorate of Legal Affairs, PC-OC (98) 7, 3 March 1998, and Elizabeth Herath, ‘Trials in Absentia: Jurisprudence and Commentary on the Judgment in Chief Prosecutor v. Abul Kalam Azad in the Bangladesh International Crimes Tribunal’, Harvard International Law Journal, Vol. 55, June 2014, online edition.
124 - It has been stated, in relation to the 1984 Convention against Torture, and referring to the broad immunity ratione materiae of potentially all State officials and former State officials, that ‘international law could not without absurdity require criminal jurisdiction to be assumed and exercised where the Torture Convention conditions were satisfied and, at the same time, require immunity to be granted to those properly charged’; Statement of Lord Bingham of Cornhill, with reference to the Pinochet case (Nos 1 and 3), in United Kingdom, House of Lords, Jones and others case, Judgment, 2006, para. 19.
125 - At the time of writing, this issue is also being discussed by the International Law Commission; on the topic of immunity of State officials from foreign criminal jurisdiction, see ILC, Report of the International Law Commission, Sixty-third session (26 April–3 June and 4 July–12 August 2011), UN Doc. A/66/10, 2011, paras 102–203, and Report of the International Law Commission, Sixty-fourth session (7 May–1 June and 2 July–3 August 2012), UN Doc. A/67/10, 2012, paras 82–139.
126 - ICJ, Arrest Warrant case, Judgment, 2002.
127 - Even if the judgment does not touch on the concept of universal jurisdiction, 10 judges commented on this issue in their separate or dissenting opinions. For an analysis of these opinions, see La Haye, pp. 238–241.
128 - ICJ, Arrest Warrant case, Judgment, 2002, para. 54.
129 - Ibid. para. 58.
130 - Ibid. para. 59.
131 - Ibid. para. 70.
132 - Ibid. para. 61.
133 - Among the many commentaries written about this decision, see: Malcom D. Evans and Chanaka Wickremasinghe, ‘Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Preliminary Objections and Merits, Judgment of 14 February 2002’, International and Comparative Law Quarterly, Vol. 52, No. 3, July 2003, pp. 775–781; Philippe Sands, ‘What is the ICJ for?’, Revue belge de droit international/Belgian Review of International Law, No. 1–2, 2002, pp. 537–545; Jean-Pierre Cot, ‘Éloge de l’indécision. La cour et la compétence universelle’, Revue belge de droit international/Belgian Review of International Law, No. 1–2, 2002, pp. 546–553; Jean Salmon, ‘Libres propos sur l’arrêt de la C.I.J. du 14 février 2002 dans l’affaire relative au mandat d’arrêt du 11 avril 2000 (R.D.C. C. Belgique)’, Revue belge de droit international/Belgian Review of International Law, No. 1–2, 2002, pp. 512–517; Alain Winants, ‘The Yerodia Ruling of the International Court of Justice and the 1993/1999 Belgian Law on Universal Jurisdiction’, Leiden Journal of International Law, Vol. 16, No. 3, September 2003, pp. 491–509; Maurice Kamto, ‘Une troublante “immunité totale” du ministre des affaires étrangères’, Revue belge de droit international/Belgian Review of International Law, No. 1–2, 2002, pp. 518–530; Sassòli, pp. 785–819; Jan Wouters and Leen De Smet, ‘The ICJ’s Judgment in the Case Concerning the Arrest Warrant of 11 April 2000: Some Critical Observations’, Yearbook of International Humanitarian Law, Vol. 4, 2001, pp. 373–388; Brems, pp. 935–939; M. Cherif Bassiouni, ‘Universal jurisdiction unrevisited: The International Court of Justice decision in Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)’, Palestine Yearbook of International Law, Vol. 12, No. 1, 2002, pp. 27–48; and Darryl Robinson, ‘The Impact of the Human Rights Accountability Movement on the International Law of Immunities’, Canadian Yearbook of International Law, Vol. 40, 2002, pp. 151–191. See also Antonio Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’, European Journal of International Law, Vol. 13, No. 4, 2002, pp. 853–875; Steffen Wirth, ‘Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium Case’, European Journal of International Law, Vol. 13, No. 4, 2002, pp. 877–893; Salvatore Zappalà, ‘Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case before the French Cour de Cassation’, European Journal of International Law, Vol. 12, No. 3, 2001, pp. 595–612; Kreß; Bing Jia, ‘The Immunity of State Officials for International Crimes Revisited’, Journal of International Criminal Justice, Vol. 10, No. 5, December 2012, pp. 1303–1321; and Dapo Akande and Sangeeta Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’, European Journal of International Law, Vol. 21, No. 4, 2011, pp. 815–852.
134 - See the Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, who state: ‘[T]hat immunity prevails only as long as the Minister is in office and continues to shield him or her after that time only for “official acts”. It is now increasingly claimed in the literature … that serious international crimes cannot be regarded as official acts.’ ICJ, Arrest Warrant case, Judgment, 2002, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, pp. 63–90. See also the Dissenting Opinion of Judge ad hoc van den Wyngaert, ibid. para. 36.
135 - In support of this finding, see e.g. Antonio Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’, European Journal of International Law, Vol. 13, No. 4, 2002, pp. 864–874; Steffen Wirth, ‘Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium Case’, European Journal of International Law, Vol. 13, No. 4, 2002, pp. 877–893; Jan Wouters and Leen De Smet, ‘The ICJ’s Judgment in the Case Concerning the Arrest Warrant of 11 April 2000: Some Critical Observations’, Yearbook of International Humanitarian Law, Vol. 4, 2001, pp. 373–388; Maurice Kamto, ‘Une troublante “immunité totale” du ministre des affaires étrangères’, Revue belge de droit international/Belgian Review of International Law, No. 1–2, 2002, pp. 518–530; Salvatore Zappalà, ‘Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case before the French Cour de Cassation’, European Journal of International Law, Vol. 12, No. 3, 2001, pp. 595–612; Sassòli, pp. 802–803; and Kreß, pp. 803–805, who concludes that ‘there is no right to immunity ratione materiae under current international law in cases of crimes under international law. Accordingly, no such legal bar to the prosecution of a grave breach exists’ (p. 805). For an overview of the reasoning on this issue in various sources, see Dapo Akande and Sangeeta Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’, European Journal of International Law, Vol. 21, No. 4, 2011, pp. 815–852, especially at 825–846. These authors reach a similar conclusion when they state: ‘[W]here extra-territorial jurisdiction exists in respect of an international crime and the rule providing for jurisdiction expressly contemplates prosecution of crimes committed in an official capacity, immunity ratione materiae cannot logically co-exist with such a conferment of jurisdiction’ (p. 843). See also the view of the ICTY Appeals Chamber in the Blaškić case: ‘Under these norms [of international criminal law prohibiting war crimes, crimes against humanity and genocide], those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity’; Blaškić Decision on the Issuance of the Subpoena Duces Tecum, 1997, para. 41. See Switzerland, Federal Criminal Court, A. v. Ministère Public de la Confédération case, Judgment, 2012, para. 5.4.3, where the Court had to decide whether a former minister of defence enjoyed immunity from prosecution before the Swiss courts for war crimes committed in Algeria. It took the position that: It would be both contradictory and meaningless to express, on the one hand, a desire to combat serious violations of fundamental humanitarian principles, while, on the other hand, accepting such a broad interpretation of the rules governing functional immunity (ratione materiae) for former dictators or officials that, as a result, no investigation could be launched ab initio. If that were the case, it would give rise to the difficult proposition that perpetrators of acts that violate fundamental values of international law could be protected by that very same body of law. Such a situation would be paradoxical and ultimately render Swiss criminal policy unenforceable in the vast majority of cases. That was not what was intended. It therefore follows in this case that the appellant may not invoke any form of ratione materiae immunity. [unofficial English translation] In civil proceedings, US courts have reached the same conclusion based on a reasoning more akin to the Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal in the Arrest Warrant case, finding that acts committed in violation of jus cogens norms cannot constitute official sovereign acts (see United States, US Court of Appeals for the Ninth Circuit, Siderman de Blake v. Republic of Argentina, Judgment, 1992, para. 718 (holding that ‘[i]nternational law does not recognize an act that violates jus cogens as a sovereign act’); see also United States, Court of Appeals for the Fourth Circuit, Yousuf v. Samantar, Judgment, 2012, pp. 21–22, in which the Court found that ‘under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity’.
136 - Some have argued that ‘[w]hen the Geneva Conventions and customary international law conferred universal jurisdiction in respect of those crimes, it cannot be supposed that immunity ratione materiae was left intact as that would have rendered the conferment of such jurisdiction particularly meaningless’; Dapo Akande and Sangeeta Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’, European Journal of International Law, Vol. 21, No. 4, 2011, pp. 815–852, at 844.
137 - In its ICC Act, 2002, South Africa chose not to extend immunity to heads of State or government before domestic courts for the crimes falling within the ICC’s jurisdiction. Under section 4(2)(a) of the Act, the fact that a person is or was a head of State or government, a member of a government or parliament, an elected representative or a government official ‘is neither (i) a defence to crime; nor (ii) a ground for any possible reduction of sentence once a person has been convicted of a crime’. See also Niger, Penal Code, 1961, as amended, Article 208(7).
138 - For a discussion of this issue, see Kreß, p. 805.
139 - In response to a proposal by the delegates of Italy and Monaco to replace the words ‘handing over’ by ‘extradition’, the Dutch delegate explained that ‘the use of the word “extradition” was less practicable because of the large variety of extradition laws and extradition treaties. The notion of “handing over” was a notion of customary international law in so far as it was extensively practised by States after the last war in connection with the activities of the UN War Crimes Commission’. See Minutes of the Diplomatic Conference of Geneva of 1949, Mixed Commission, 16 July 1949, p. 9 and Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 116–117.
140 - The UN War Crimes Commission negotiated a draft convention for the surrender of war criminals. The draft explanatory memorandum attached to it stated: The purpose in view is to make it certain that the United Nations will reciprocally transfer to one another, persons in their power who are wanted for trial as war criminals or quislings, or have already been convicted on such charges, and to secure this result in the simplest possible way, avoiding the complications and delays of normal extradition procedure, and, in particular, excluding the possibility of refusing surrender on the ground that the acts charged have the character of political offences. UN War Crimes Commission, The History of the United Nations War Crimes Commission and the Development of the Laws of War, p. 396; for a full overview, see pp. 392–399 and 102–104. The draft convention for the surrender of war criminals never came into being; see ibid. pp. 397–399.
141 - Ibid. p. 103.
142 - For a discussion of the interpretation of the concept of extradition in the Convention against Torture, see ICJ, Obligation to Prosecute or Extradite case, Judgment, 2012, paras 89–95, at 95: It follows that the choice between extradition or submission for prosecution, pursuant to the Convention, does not mean that the two alternatives are to be given the same weight. Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State. See also Henzelin, pp. 351–357, at 353; Kreß, pp. 796–800; and ILC, Final Report of the Working Group on the obligation to extradite or prosecute (aut dedere aut judicare), UN doc. A/CN.4/L.844, 5 June 2014, para. 25.
143 - The French text of Article 49 reads: ‘pour autant que cette Partie contractante ait retenu contre lesdites personnes des charges suffisantes’ (‘provided such High Contracting Party has made out a “prima facie” case’). During the 1949 Diplomatic Conference, the French delegate asked what was meant by a ‘prima facie case’. The Dutch and US delegates replied that ‘the State asking for the alleged perpetrator to be handed over had to provide statements which would satisfy the … Detaining Power that a finding of guilty on the charges against the accused was highly probable’. Minutes of the Diplomatic Conference of Geneva of 1949, p. 10.
144 - UN Office on Drugs and Crime, Manual on Mutual Legal Assistance and Extradition, p. 47.
145 - See Bedi, pp. 177–179, and Godinho, p. 512, where he states: Probable cause is a traditional requirement for extradition for common law countries. It is a protection against unjustified extradition, according to which the requested State engages in a review of the evidence provided by the requesting State in order to ascertain whether there are reasonable grounds to believe that the accused whose surrender is requested may have indeed committed the crime charged, thereby justifying the trial.
146 - For some examples of application of the prima facie test in common-law countries, see United States, District Court for the Southern District of Texas, Surrender of Elizaphan Ntakirutimana case, Order, 1997, and Sixth Circuit Court of Appeals, Demjanjuk case, Judgment, 1985. See also United Kingdom, High Court of Justice, Brown (Bajinja) and others case, Judgment, 2009.
147 - See e.g. Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970), Article 8(2)–(3); Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971), Article 8(2)–(3); Convention on Crimes against Internationally Protected Persons (1973), Article 8(1)–(2); International Convention against the Taking of Hostages (1979), Article 10; International Convention for the Suppression of Terrorist Bombings (1997); International Convention for the Suppression of the Financing of Terrorism (1999), Article 11(2)–(3); Article 9(2)–(3); UN Convention against Transnational Organized Crime (2000), Articles 7, 8 and 11; and UN Convention against Corruption (2003), Article 44(8)–(9).
148 - As an example of this trend, see the US-UK Extradition Treaty of 2003, where a request from the United States to the United Kingdom does not need to establish a prima facie case, but a request from the United Kingdom to the United States does. The UK Secretary of State for the Home Department stated that this new treaty reflects ‘best modern practice in extradition’ and ‘brings the evidential rules for requests from the United States into line with those for European countries’. See United Kingdom, House of Commons, Written ministerial statement by the Secretary of State for the Home Office, Hansard, 31 March 2003, Vol. 402, Written Ministerial Statements, cols 41WS–42WS.
149 - See e.g. ILC, Survey of multilateral conventions which may be of relevance for the work of the International Law Commission on the topic ‘The obligation to extradite or prosecute (aut dedere aut judicare)’, Study by the Secretariat, UN Doc. A/CN.4/630, particularly para. 141.
150 - The fulfilment of the prima facie condition at the extradition stage does not, however, preclude the possibility that the trial of the alleged perpetrator might lead to an acquittal.
151 - See Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 3567.
152 - This requirement, namely that the conduct incriminated shall constitute a crime in both the requested and the requesting States, is sometimes included in extradition arrangements.
153 - In accordance with this exception, extradition may be refused where the offence is of a political nature. See Article 1 of the Additional Protocol to the 1957 European Convention on Extradition, which provides that the list of grave breaches contained in common Articles 50, 51, 130 and 147 of the four 1949 Geneva Conventions, respectively, cannot be considered to amount to political offences, and be exempted from extradition on that basis.
154 - See Segall, p. 131, and ILC, Final Report of the Working Group on the obligation to extradite or prosecute (aut dedere aut judicare), UN doc. A/CN.4/L.844, 5 June 2014, para. 37, which states: ‘Whatever the conditions under domestic law or a treaty pertaining to extradition, they must not be applied in bad faith, with the effect of shielding an alleged offender from prosecution in or extradition to an appropriate criminal jurisdiction.’
155 - For some examples, see ICRC, Customary International Humanitarian Law, practice relating to Rule 161, section C, available at https://www.icrc.org/customary-ihl/eng/docs/v2_rul.
156 - This is contained for example in the Convention against Torture (1984), Article 3 and is a recognized principle of customary international law. For more details on this point, see the commentary on common Article 3, para. 709.
157 - United Kingdom, City of Westminster Magistrates’ Court, Ganić case, Judgment, 2010, paras 14–28 and 40.
158 - Ibid. paras 39–40.
159 - See Cameroon, Court of Appeal, Bagosora case, Judgment, 1996. Bagosora was arrested in Cameroon pursuant to a Belgian international arrest warrant. The offender was not transferred to Belgium for the purpose of prosecution, as Belgium deferred its case against Bagosora to the ICTR.
160 - See UN Office on Drugs and Crime, Report of the Informal Expert Working Group on Effective Extradition Casework Practice, Vienna, 2004, paras 122–126. Some of these criteria, to name but a few, are: the jurisdiction where the majority of the criminality occurred, or where the majority of the loss or damage was sustained; in cross-border crimes, the capacity of a jurisdiction to prosecute all offences; the location, attendance and protection of witnesses; the possibility for victims to participate in or follow the proceedings; and, for each jurisdiction, the extent to which there could be a just and fair trial. See also the similar criteria adopted in The Princeton Principles on Universal Jurisdiction, Princeton University, 2001, Principle 8.
161 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 115. See also Kreß, who believes that the establishment of the ICC demonstrates that States consider the surrender of a person to the Court as another valid form of freely choosing the appropriate forum under the grave breaches regime. See also ILC, Final Report of the Working Group on the obligation to extradite or prosecute (aut dedere aut judicare), UN doc. A/CN.4/L.844, 5 June 2014, para. 20, which states: ‘[T]he obligation to extradite or prosecute may be satisfied by a “third alternative”, which would consist of the State surrendering the alleged offender to a competent international criminal tribunal or a competent court whose jurisdiction the State concerned has recognized.’
162 - For further details on the mechanics of Article 90 of the 1998 ICC Statute, see e.g. Claus Kreß and Kimberly Prost, ‘Article 90: Competing Requests’, in Otto Triffterer and Kai Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary, 3rd edition, Hart Publishing, Oxford, 2016, pp. 2059–2067, and Julien Cazala, ‘Article 90 – Demandes concurrentes’, in Julian Fernandez and Xavier Pacreau (eds), Statut de Rome de la Cour pénale internationale, Commentaire article par article, Éditions A. Pedone, Paris, 2012, pp. 1849–1861.
163 - Domestic prosecutions of war crimes or grave breaches in countries where the crimes were committed have been undertaken in particular in the last twenty years, for example in Bosnia and Herzegovina, Cambodia, Croatia or Iraq. For more details, see the commentary on Article 50, para. 2908; La Haye, pp. 256–270, and Ferdinandusse.
164 - See, for example, the statement by the ICRC delegation to the UN before the Preparatory Committee for the Establishment of an International Criminal Court on 15 August 1997: ‘The obligation to prosecute alleged perpetrators of grave breaches of humanitarian law is often either ignored or inadequately fulfilled in practice.’
165 - See Denmark, High Court, Sarić case, Judgment, 1994. See also Maison.
166 - See Frits Kalshoven: ‘Since the entry into force of the Conventions, in October 1950, little action of this type was undertaken against suspects other than a state’s nationals, and even this rarely’ (Constraints on the Waging of War, 2nd edition, ICRC, Geneva, 1991, p. 77); Geoffrey Best: ‘This noble innovation has achieved nothing’ (Best, p. 396); and the ICRC’s report to the 1999 Council of Delegates, which states: ‘[T]his system of penal repression on the national level has only rarely been applied by States. Sandoz takes the view that ‘the reality was disappointing. Many States did not fulfil their obligation to enact the “legislation necessary to provide effective penal sanctions” and the system of universal jurisdiction was never applied in practice’ (Sandoz, 2009, p. 675). Dörmann and Geiss also speak of ‘the reluctance of domestic criminal justice systems to deal with grave breaches, the absence or insufficiency of national legislation in a considerable number of states and the remarkably modest corpus of domestic jurisprudence governing these offences’ (Dörmann/Geiss, pp. 704). See also Bothe, and Ferdinandusse, pp. 738–740.
167 - See the statement by the ICRC before the UN General Assembly, 67th session, Sixth Committee, 18 October 2012, and the statement by the ICRC before the UN General Assembly, 68th session, Sixth Committee, 15 October 2014.
168 - See ICRC, Preventing and repressing international crimes, Vol. II, pp. 123–131. The small number of prosecutions can also be explained by the fact that most armed conflicts in the world are of a non-international character, and thus do not trigger the grave breaches regime. See also Ferdinandusse, pp. 738–740, on the various reasons behind the lack of prosecutions for grave breaches.
169 - On these issues, see Segall, pp. 127–135, at 130.
170 - UN General Assembly, Res. 3074, Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, 3 December 1973, paras 3–4.
171 - Additional Protocol I, Article 88(1).
172 - See ICTY Statute (1993), Article 29; ICTR Statute (1994), Article 28; and ICC Statute (1998), Articles 86–102.
173 - ICRC Study on Customary International Humanitarian Law (2005), Rule 161.
174 - See ICRC, Preventing and repressing international crimes, Vol. I, pp. 57–58.
175 - See, in particular, on this issue, UN, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff, UN Doc. A/HRC/27/56, 27 August 2014.
176 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 133. For the discussions that took place in the Joint Committee, see Minutes of the Diplomatic Conference of Geneva of 1949, pp. 20–21.
177 - The word ‘suppress’ is generally defined as ‘putting a stop to’ a thing actually existing and as synonymous to prohibit or put down. See Bryan A. Garner (ed.), Black’s Law Dictionary, 10th edition, Thomson Reuters, 2014, p. 1669.
178 - Prosecuting alleged perpetrators or taking any other measures aimed at preventing or suppressing violations of the Convention are a way of implementing the obligations contained in Article 1 of the Convention. On this point, see ICTY, Tadić Decision on Defence Motion on Jurisdiction, 1995, para. 71.
179 - See Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 3402. See also Medlong, pp. 829–856.
180 - Many common law-countries initially chose not to extend individual criminal responsibility beyond the list of grave breaches: see e.g. Canada, Geneva Conventions Act, 1985, as amended; India, Geneva Conventions Act, 1960; Kenya, Geneva Conventions Act, 1968; Namibia, Geneva Conventions Act, 2003; Sri Lanka, Geneva Conventions Act, 2006; and United Kingdom, Geneva Conventions Act, 1957, as amended. See also the ICRC’s National Implementation of IHL database, available at https://www.icrc.org/ihl-nat.
181 - See Ireland, Geneva Conventions Act, 1962, as amended, which provides for the punishment of other violations, referred to as minor breaches, when committed in the Republic of Ireland or by an Irish citizen. Nigeria’s Geneva Conventions Act, 1960, permits the governor-general to provide that other breaches committed in Nigeria or by Nigerian citizens are liable to punishment; see the ICRC’s National Implementation of IHL database, available at https://www.icrc.org/ihl-nat. See also South Africa, Geneva Conventions Act, 2012, chapter 2, section 5(3), which provides: ‘Any person who within the Republic contravenes or fails to comply with a provision of the Conventions not covered by subsection (2), is guilty of an offence.’ The ICRC’s Model Geneva Conventions Act for common-law States includes a section 4 calling for the punishment of ‘any person, whatever his or her nationality, who … commits, or aids, abets or procures any other persons to commit, a breach of any of the Conventions or Protocols not covered by section 3’; see ICRC, Advisory Service on International Humanitarian Law, Model Law, Geneva Conventions (Consolidation) Act, Legislation for Common Law States on the 1949 Geneva Conventions and their 1977 and 2005 Additional Protocols, August 2008, p. 4.
182 - See e.g. Australia, ICC Act, 2002; Canada, Crimes Against Humanity and War Crimes Act, 2000, as amended; Finland, Penal Code, 1889, as amended, chapter 11; France, Penal Code, 1992, as amended; Switzerland, Penal Code, 1937, as amended, in particular Title Twelve on war crimes; and United Kingdom, ICC Act, 2001. All the aforementioned legislation can be found in the ICRC’s National Implementation of IHL database, available at https://www.icrc.org/ihl-nat.
183 - See, in particular, Article 52 on the enquiry procedure.
184 - On this issue, see the commentary on Article 52, section F, and Théo Boutruche, ‘Good offices, Conciliation and Enquiry’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 561–574, para. 21.
185 - For further details on the genesis of this provision, see Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 368–369.
186 - For further details, see the commentary on Article 50, section C.3.
187 - For a detailed discussion of the contents of these safeguards, see the commentaries on Articles 105–108 of the Third Convention.
188 - See, in particular, Additional Protocol I, Article 75(4); see also International Covenant on Civil and Political Rights (1966), Article 14; European Convention on Human Rights (1950), Article 6; American Convention on Human Rights (1969), Article 8; and African Charter on Human and Peoples’ Rights (1981), Article 7.
189 - See e.g. United States, Supreme Court, Hamdan case, Judgment, 2006, pp. 632–634. The Court looked to Article 75 of Additional Protocol I, noting that, even though the United States had not ratified the Protocol, the US Government had no objections to Article 75, which sets out many of the minimum requirements.
190 - See Third Convention, Article 105, and Additional Protocol I, Article 75(4)(a). See also International Covenant on Civil and Political Rights (1966), Article 14(3)(a); European Convention on Human Rights (1950), Article 6(3)(a); and American Convention on Human Rights (1969), Article 8(2)(b).
191 - See Third Convention, Article 105, and Additional Protocol I, Article 75(4)(a). See also International Covenant on Civil and Political Rights (1966), Article 14(3); European Convention on Human Rights (1950), Article 6(3); American Convention on Human Rights (1969), Article 8(2); and African Charter on Human and Peoples’ Rights (1981), Article 7(c).
192 - See Third Convention, Article 99, and Additional Protocol I, Article 75(4)(b).
193 - See Third Convention, Article 99, and Additional Protocol I, Article 75(4)(c). See also International Covenant on Civil and Political Rights (1966), Article 15; European Convention on Human Rights (1950), Article 7; American Convention on Human Rights (1969), Article 9; and African Charter on Human and Peoples’ Rights (1981), Article 7(2).
194 - See Additional Protocol I, Article 75(4)(d). See also International Covenant on Civil and Political Rights (1966), Article 14(2); European Convention on Human Rights (1950), Article 6(2); American Convention on Human Rights (1969), Article 8(2); and African Charter on Human and Peoples’ Rights (1981), Article 7(1)(b).
195 - See Additional Protocol I, Article 75(4)(e). See also International Covenant on Civil and Political Rights (1966), Article 14(3)(d). Persons can, however, renounce their right to be present during their own trial. For a critical view on the issue of the legality of trials in absentia in the light of human rights, see e.g. Chris Jenks and Eric Talbot Jensen, ‘All Human Rights are Equal, But Some are More Equal than Others: The Extraordinary Rendition of a Terror Suspect in Italy, the NATO SOFA, and Human Rights’, Harvard National Security Journal, Vol. 1, 2010, pp. 172–202, and other references provided in para. 54.
196 - See Additional Protocol I, Article 75(4)(f). See also International Covenant on Civil and Political Rights (1966), Article 14(3)(g); and American Convention on Human Rights (1969), Article 8(2)(g) and (3). This right is not explicitly stipulated in the 1950 European Convention on Human Rights, but it has been interpreted by the European Court of Human Rights as one of the elements of fair trial under Article 6(1); see e.g. Pishchalnikov v. Russia, Judgment, 2009, para. 71.
197 - See, in particular, Article 106 of the Third Convention, recognizing a right of appeal or petition from any sentence pronounced. See also Additional Protocol I, Article 75(4)(j). Human rights instruments guarantee a right to appeal; see International Covenant on Civil and Political Rights (1966), Article 14(5); Convention on the Rights of the Child (1989), Article 40(2)(b)(v); Protocol 7 to the European Convention on Human Rights (1984), Article 2(1); American Convention on Human Rights (1969), Article 8(2)(h); and African Charter on Human and Peoples’ Rights (1981), Article 7(1)(a). ‘The influence of human rights law on this issue is such that it can be argued that the right of appeal proper – and not only the right to be informed whether appeal is available – has become a basic component of fair trial rights in the context of armed conflict’ (Henckaerts/Doswald-Beck, commentary on Rule 100, pp. 369–370).
198 - See Third Convention, Article 105, and Additional Protocol I, Article 75(4)(g). See also International Covenant on Civil and Political Rights (1966), Article 14(3)(e); European Convention on Human Rights (1950), Article 6(3)(d); and American Convention on Human Rights (1969), Article 8(2)(f).
199 - See Third Convention, Article 107, and Additional Protocol I, Article 75(4)(i). See also International Covenant on Civil and Political Rights (1966), Article 14(1); European Convention on Human Rights (1950), Article 6(1); and American Convention on Human Rights (1969), Article 8(5).
200 - See Third Convention, Article 86; Fourth Convention, Article 117(3); and Additional Protocol I, Article 75(4)(h). See also International Covenant on Civil and Political Rights (1966), Article 14(7); Protocol 7 to the European Convention on Human Rights (1984), Article 4; and American Convention on Human Rights (1969), Article 8(4).
201 - See the commentary on common Article 3, para. 871.
202 - This was the view expressed by the Italian delegate; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 49.
203 - See the view expressed by the Rapporteur of the Special Committee: ‘The Special Committee voiced a definite opinion that the dispositions of the Conventions were, on principle, not applicable to civil war, and that only certain stipulations expressly mentioned would be applicable to such conflicts.’ Ibid. pp. 36–37.
204 - See e.g. the Fourth Report drawn up by the Special Committee of the Joint Committee, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 114–118, where it is made clear that the grave breaches regime is only applicable to the gravest violations in international conflict.
205 - See Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. VIII, p. 376, and La Haye, p. 133.
206 - See ICTY, Tadić Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, Separate Opinion of Judge Abi-Saab, 1995, as well as the judgment of the Trial Chamber in Delalić, where the Trial Chamber affirmed: In his Separate Opinion, however, Judge Abi-Saab opined that ‘a strong case can be made for the application of Article 2, even when the incriminated act takes place in an internal conflict’. The majority of the Appeals Chamber did indeed recognise that a change in the customary law scope of the ‘grave breaches regime’ in this direction may be occurring. This Trial Chamber is also of the view that the possibility that customary law has developed the provisions of the Geneva Conventions since 1949 to constitute an extension of the system of ‘grave breaches’ to internal armed conflicts should be recognised. Delalić Trial Judgment, 1998, para. 202. See also the Dissenting Opinion of Judge Rodrigues in Aleksovski Trial Judgment, 1999.
207 - See, for an exception, the position taken by the United States in its amicus curiae brief in the Tadić proceedings in 1995, asserting that grave breaches under Article 2 of the 1993 ICTY Statute could be committed during both international and non-international armed conflicts (cited in ICTY, Tadić Decision on the Defence Motion on Jurisdiction, 1995, para. 35). For a recent reaffirmation of this position, see United States, Law of War Manual, 2015, para. 18.9.3.2. For a study of this issue, see Moir; Boelaert-Suominen; and La Haye, pp. 253–256.
208 - For a study of national implementing legislation on this question, see La Haye, pp. 227–235.
209 - See the commentary on common Article 3, paras 877–880.
210 - See Henckaerts/Doswald-Beck, commentary on Rule 157, pp. 604–607. For a contrary view on the customary nature of this rule, see John B. Bellinger III and William J. Haynes II, ‘A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law’, International Review of the Red Cross, Vol. 89, No. 866, June 2007, pp. 443–471, and United States, Law of War Manual, 2015, para. 18.21.1; but see Jean-Marie Henckaerts, ‘Customary International Humanitarian Law: a response to US Comments’, International Review of the Red Cross, Vol. 89, No. 866, June 2007, pp. 473–488. For a discussion of the customary right to extend universal jurisdiction over war crimes committed in non-international armed conflicts, see La Haye, pp. 216–273.