Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 50 : Grave breaches
Text of the provision
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
Reservations or declarations
None
Contents

A. Introduction
2906  Article 50 is closely linked to Article 49. It contains an exhaustive list of offences bearing the most gravity, for which States undertake to provide effective penal sanctions and to either prosecute or extradite, regardless of their nationality, alleged offenders who are suspected of having committed one of these grave breaches against persons or property protected by the Convention.[1] Article 50 is common to the four Conventions. It is reproduced in identical terms in the Second Convention and contains additional grave breaches in the Third and Fourth Conventions.[2]
2907  As mentioned in the commentary on Article 49, 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 violations of human rights such as crimes against humanity and genocide. Grave breaches are part of the wider category of serious violations of international humanitarian law that States are called upon to suppress in both international and non-international armed conflicts.[3] They remain ‘segregated from other categories of war crimes’,[4] 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 conflicts.[5]
2908  States Parties have largely complied with the obligation contained in Article 49(1) to enact implementing legislation. However, they have not often followed through on the obligation to either prosecute or extradite perpetrators of the grave breaches listed in Article 50.[6]
2909  The first reported cases of national prosecutions for grave breaches took place in the 1990s, following the break-up of the former Yugoslavia, when German, Danish and Swiss courts prosecuted individuals mainly for grave breaches of the Third and Fourth Conventions.[7] Domestic prosecutions of grave breaches in countries where the crimes were committed have also been undertaken, for example in Bosnia and Herzegovina,[8] Cambodia,[9] Croatia[10] and Iraq.[11]
2910  The end of the Cold War, the creation of international courts and tribunals mandated to prosecute alleged perpetrators of war crimes, including grave breaches, and in particular the establishment in 1998 of the ICC, all acted as catalysts in the enforcement of the grave breaches regime.[12] The list of grave breaches of the 1949 Geneva Conventions was included in the Statutes of the ICTY, the ICC, the Special Panels for Serious Crimes in East Timor, the Supreme Iraqi Criminal Tribunal, the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Extraordinary African Chambers within the Courts of Senegal.[13] These international criminal courts have prosecuted a wide range of acts constituting grave breaches, creating a valuable body of case law interpreting these crimes.[14] The ICTY has breathed life into the grave breaches regime and brought clarity to many of its different aspects, ranging from the general requirements for its application to the specific underlying crimes.[15]
2911  After a long period of neglect, the need to prosecute grave breaches, among other international crimes, has taken on renewed importance today.[16]
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B. Historical background
2912  Early international instruments codifying the laws and customs of war did not contain detailed provisions on the individual criminal responsibility of alleged perpetrators or a list of war crimes.[17] The 1906 Geneva Convention was the first international treaty to deal with the repression of violations of the Convention, such as abuse of the emblem and acts of robbery and ill-treatment of the wounded and sick of the armed forces.[18] The Hague Regulations (1907) only provide for the responsibility of States to pay compensation in case of violations of the Conventions.[19]
2913  Noticeable progress was made in the 1929 Geneva Convention on the Wounded and Sick, with the inclusion of a more comprehensive chapter on the suppression of abuses, containing for the first time detailed provisions on the enforcement of the Convention. It 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 present Convention’ (emphasis added),[20] including misuse of the emblem.[21] Article 30 provided for the establishment of an enquiry procedure in case of alleged violations of the Convention.[22]
2914  The 1947 Conference of Government Experts took as a starting point for the drafting of the chapter on repression of abuses Articles 28, 29 and 30 of the 1929 Convention. It also included a new draft article calling for ‘[a]ny 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 called for ‘[t]he responsible persons [to] be liable to appropriate penalties’.[23]
2915  The 1948 International Conference of the Red Cross in Stockholm adopted two draft articles on penal sanctions, but they did not contain a list of offences to be punished.[24] The ICRC, having been requested to submit further proposals on this issue to the 1949 Diplomatic Conference, suggested an open-ended list of grave breaches, including ‘in particular those which cause death, great human suffering, or serious injury to body or health, those which constitute a grave denial of personal liberty or a derogation from the dignity due to the person, or involve extensive destruction of property, also breaches which by reason of their nature or persistence show a deliberate disregard of this Convention’.[25]
2916  The preparatory work does not reveal much of the content of the discussions which led to the elaboration of the list of grave breaches. Only a few points can be noted, beyond the fact that the list of grave breaches builds on the list of war crimes contained in Article 6(b) of the 1945 IMT Charter for Germany. The report on penal sanctions to the Joint Committee indicates that: ‘This category has been carefully defined, so as to avoid including acts which allow for various degrees of gravity and could not therefore be considered to be grave breaches if only committed in their less serious forms.’[26] States felt it necessary to establish what these grave breaches were to be able to ensure universality of treatment in their repression.[27] Furthermore, the list of grave breaches was meant to be a warning to possible offenders and to draw public attention to the crimes, the perpetrators of which were to be searched for in all States.[28] Subsequent practice by States Parties has shown that this list is considered an exhaustive enumeration of grave breaches under the Geneva Conventions,[29] even if nothing prevents States from widening the category of war crimes to include other serious violations of international humanitarian law in their national legislation.[30]
2917  During the 1949 Diplomatic Conference, there were a few proposals which were not accepted. First, there were lengthy discussions following two amendments proposed by the USSR to use the term ‘war crimes’ or ‘serious violations’ instead of ‘grave breaches’.[31] The Soviet proposals were rejected by the majority of delegations because ‘the word “crimes” had a different meaning in the national laws of different countries and because an act only becomes a crime when this act is made punishable by a penal law’.[32] Second, the Italian delegation suggested including in the list of grave breaches the imposition of collective penalties. The proposal was rejected because the collective penalties thus imposed could be of varying degrees of severity and ‘offences should not be inserted when they could be of varying degrees of gravity and would not be considered a grave breach if committed in their less serious form’.[33]
2918  The list of grave breaches is part of customary international law, particularly in the light of the universal ratification of the Geneva Conventions and the extensive State practice reflecting the definition of grave breaches.[34]
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C. General clarifications on the scope of grave breaches
2919  At the time of the adoption of Article 50, States did not pay much attention to the constitutive elements of grave breaches, leaving these issues to national legislators and prosecutors.[35] In the meantime, national case law and the judgments of international criminal courts and tribunals have shed light on these issues. They can serve as useful guidelines with regard to the standards States could apply when implementing Article 50 in their domestic legal system and prosecuting alleged offenders.
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1. Grave breaches are committed in the context of an international armed conflict.
2920  For an act to amount to a grave breach of the Geneva Conventions, it must be committed in the context of an international armed conflict.[36] It is not enough for an international armed conflict to have existed when the crime was committed; there must also be a sufficient link or nexus between the criminal act and the international armed conflict. The assessment of whether the acts of the alleged perpetrator were sufficiently connected with the armed conflict will be made a posteriori, but it must be made in an objective manner.[37]
2921  The existence of a nexus between the crime and the international armed conflict is central to the distinction between a grave breach and an ordinary crime. For example, a murder committed for purely personal reasons while an international armed conflict is occurring on the territory of a State cannot be said to have been committed in the context of or associated with the conflict, and therefore does not amount to the grave breach of wilful killing.[38]
2922  The nexus has been found to be established if proof of a close connection between the criminal act and the armed conflict as a whole can be shown. This connection does not necessarily imply a strict geographical or temporal coincidence between the acts of the accused and the armed conflict.[39] For example, the acts of the perpetrator need not be committed in the course of fighting or the takeover of a town.[40] A close connection between the acts of the perpetrator and the armed conflict can be shown even if substantial clashes were not occurring in the region at the time and in the place where the crimes were allegedly committed.[41] It is sufficient for the acts of the perpetrator to be closely related to the hostilities occurring in other parts of the territories controlled by the Parties to the conflict.[42]
2923  The ICTY Appeals Chamber took the view that the nexus requirement would be met if the grave breach was committed in ‘furtherance of or under the guise of the armed conflict’. It also held that:
The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.[43]
2924  Various factors have been taken into account by international courts and tribunals to establish that the acts of the accused were closely related to the armed conflict such as:
– the fact that the perpetrator was a combatant;
– the fact that the victim was a person protected under the Geneva Conventions or Additional Protocol I;
– the fact that the victim was a member of the armed forces of the opposing Party;
– the circumstances in which the crime was committed;
– the fact that the act may be said to serve the ultimate goal of a military campaign;
– the fact that the crime was committed with the assistance or with the connivance of the Parties to the conflict; and
– the fact that the crime was committed as part of or in the context of the perpetrator’s official duties.[44]
2925  There is no presumption that because an act is committed in time of international armed conflict, it necessarily constitutes a grave breach. International courts and tribunals have used the above factors in order to establish beyond a reasonable doubt that the perpetrators’ acts were closely related to an armed conflict. The elements of crimes for grave breaches adopted by the Preparatory Commission for the ICC contains a contextual element, which reads: ‘the conduct took place in the context of and was associated with an international armed conflict’ (emphasis added).[45] The drafters chose to use these two expressions cumulatively, on the understanding that ‘in the context of’ refers to the existence of an armed conflict in the country or area where the act was committed, and that ‘was associated with’ refers to the necessary nexus between the armed conflict and the perpetrator’s conduct.[46] The words ‘associated with’ also indicate that conduct which takes place after the cessation of active hostilities, but which is still associated with the conflict, can amount to a grave breach.[47]
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2. Grave breaches are committed against protected persons or property.
2926  To fall within the category of grave breaches, the prohibited acts must be committed against persons or property protected under the relevant Geneva Convention.[48]
2927  Under the First Convention, persons protected are listed in Article 13 (the wounded and sick), Article 15 (the dead), Article 24 (military medical and religious personnel), Article 25 (auxiliary medical personnel), Article 26 (personnel of aid societies) and Article 27 (medical personnel of societies of neutral countries).[49] However, if such persons commit acts harmful to the enemy, they lose their protection, at least for as long as they commit such acts.[50]
2928  The Geneva Conventions do not define the concept of protected property as such. They contain a list of objects which cannot be attacked, destroyed or appropriated, and which are therefore property protected under the Geneva Conventions. Under the First Convention, such property is listed in Articles 19, 33 and 34 (fixed medical establishments and mobile medical units), Article 20 (hospital ships) and Articles 35 and 36 (means of medical transport, including medical aircraft). If such property is used to commit acts harmful to the enemy,[51] it loses its protection for as long as it is so used.
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3. Potential perpetrators of grave breaches
2929  It is not necessary to be a member of the armed forces to commit grave breaches of the Geneva Conventions. Members of the armed forces and civilians alike can commit grave breaches in the context of an international armed conflict.
2930  In addition to members of the armed forces, other categories of persons, including civilian leaders and subordinate executives,[52] have been found guilty of committing grave breaches or other war crimes: members of government, including heads of State,[53] party officials and administrators,[54] industrialists and businessmen,[55] judges and prosecutors,[56] doctors and nurses,[57] and concentration-camp inmates with civilian status.[58]
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4. General comments on the mental element of grave breaches
2931  In all modern criminal-law systems, alleged perpetrators must fulfil two conditions to be held criminally responsible: (1) through their behaviour, they must have caused a certain event or state of affairs forbidden by criminal law (referred to as the material element, or actus reus); and (2) they must have had a defined state of mind in relation to causing the event or state of affairs (referred to as the mental element, or mens rea).[59]
2932  The Geneva Conventions are silent as to the requisite degree of mens rea attached to most grave breaches.[60] The Conventions oblige States to prosecute grave breaches domestically, but leave it to States Parties to determine the requisite mental element attached to them, unless specifically defined in Article 50. As those grave breaches have been integrated into domestic law, the standard mental element applicable in each legal system will apply to grave breaches when they are prosecuted at the national level. Depending on the legal system to which they belong, domestic courts place their own interpretation on notions such as intent, fault or negligence.[61]
2933  From the wording of Article 50 itself, two important points can be noted and should be implemented in national legislation. The use of the term ‘wilful’ indicates, at least for the crimes of killing and causing great suffering or serious injury to body or health, that either intentional or reckless conduct will engage the responsibility of the perpetrator.[62]
2934  Furthermore, any element of specific intent forming part of the crime in international humanitarian law must be proven before an accused person is found guilty of a grave breach in a national court. For instance, the grave breach of torture is a specific-intent crime. The prosecutor will have to prove that the alleged perpetrator not only intended to inflict severe pain or suffering on the victim, but that he specifically intended to inflict this for such purposes as obtaining information or a confession, punishing, intimidating or coercing the victim or a third person, or discriminating on any ground against the victim or a third person.[63]
2935  International criminal law provides guidance to domestic courts and prosecutors when they prosecute individuals for grave breaches pursuant to Articles 49 and 50 of the First Convention and have to decide on the mental element applicable to grave breaches. The following remarks on mental elements are meant to highlight the general state of international criminal law as applied thus far by international courts and tribunals. However, it is not easy to identify the various forms of mental element in international criminal law, and differences of interpretation or approach between international jurisdictions are also noted below.
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a. The mental element applicable to the material elements of the crimes
2936  In international criminal law, it is generally accepted that the material elements of an act and a mental element related to the perpetrator’s state of mind must coincide before a perpetrator can be convicted of a crime.[64] Perpetrators must intend to commit the relevant material elements of a particular offence before they can be found guilty of that offence. Cases of negligence do not usually support the conviction of alleged perpetrators in international criminal law.
2937  International courts and tribunals have not developed a uniform rule on the mental element applicable to all war crimes or grave breaches, but have tended instead to define the mental element for each crime on a case-by-case basis.[65] In a number of cases, the tribunals have found alleged offenders responsible for having committed a grave breach if they intended to commit the relevant material elements of the offence. They have used the words ‘intentionally’, ‘deliberately’ or ‘intentional’ interchangeably and applied them to the material element of the crime (in contrast to the elements of a crime expressing a circumstance or a consequence).[66] Furthermore international courts and tribunals have made a distinction between general intent and specific intent, recognizing that for certain grave breaches, such as torture, a specific intent or purpose must be proven before the perpetrator can be found guilty of the crime in question. Third, another form of culpability used by the international tribunals is the concept of indirect intent, also referred to as recklessness, or dolus eventualis.[67] This concept refers to a state of mind where ‘the person foresees that his action is likely to produce its prohibited consequences and nevertheless takes the risk of so acting’.[68] Under this form of culpability, the tribunals found that, for the grave breach of wilful killing, the perpetrator must intend to kill or to inflict serious injury, in reckless disregard of human life, or in the reasonable knowledge that such act or omission was likely to lead to death.[69] In other cases, the tribunals defined the concept of indirect intent in a slightly different way, seemingly raising the threshold necessary to fulfil the mental element when it required the perpetrator to be aware of the substantial likelihood that the result would occur.[70]
2938  The mental element attached to all international crimes has been defined in a uniform manner in Article 30 of the 1998 ICC Statute:
1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. …
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.[71]
2939  Intent and knowledge therefore apply to the material elements of each crime under the ICC Statute, both in terms of the conduct of the perpetrator and its consequences, unless otherwise provided elsewhere, such as in the definitions of the crimes themselves or in the ICC Elements of Crimes.[72] The drafting history of Article 30 suggests that the concept of recklessness was considered as a basis of international criminal responsibility but rejected by the drafters.[73] Most commentators agree that it is difficult to read the concept of recklessness into the definition of intent or knowledge in Article 30.[74] This position therefore contrasts with the interpretation of the mental element adopted by the international criminal tribunals. Article 30 appears to be stricter than international and domestic case law or domestic legislation, which often accept the concept of recklessness as regards the consequences of a perpetrator’s conduct.[75] The first judgment of the ICC affirms that the concepts of recklessness and dolus eventualis were deliberately excluded from the framework of the ICC Statute,[76] but it clarifies the content of the mental element that the Prosecutor must establish: perpetrators must mean to engage in a form of conduct, or be aware that if they engage in such conduct, a consequence will occur in the ordinary course of events.[77]
2940  Domestic and international courts routinely infer from the facts of the case and all circumstantial evidence whether or not perpetrators intended to commit the crime or were aware that their conduct was going to bring about a certain result.[78] The ICTY took the view that, while the necessary intent might be inferred from all the circumstances surrounding the infliction of harm to the protected person or property, it must be the only reasonable inference to be drawn from the evidence.[79]
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b. The mental element applicable to the existence and character of the armed conflict
2941  The question arises whether there is any mental element required for the other three distinct elements of grave breaches: the existence and character of an armed conflict, the nexus between the conflict and the conduct of the perpetrator, and the fact that the victim was a protected person or the property was protected under the Geneva Conventions.
2942  The Conventions are silent as to which mental element, if any, is attached to the existence and character of the armed conflict. The existence of an armed conflict, together with the nexus between the act of the accused and the armed conflict, are the factors distinguishing an ordinary crime from a grave breach. There is no requirement for the perpetrator to make a legal evaluation as to the character of the armed conflict, or to legally assess the existence of an armed conflict. Similarly, there is no requirement to prove that the perpetrator is aware of the facts that established the character of the conflict as international or non-international. Such a requirement would come close to asking the perpetrator to make a legal evaluation of the character of the conflict.
2943  It is important, however, that the perpetrator be aware of some factual circumstances establishing the existence of an armed conflict. In most instances, it would be so obvious that there was an armed conflict going on, and that the perpetrator knew it, that no particular proof as to such knowledge would be required. It is understood that if the prosecutor provides the necessary proof to establish the existence of the armed conflict and the nexus between the armed conflict and the acts of the perpetrator, he or she would not normally have to provide additional proof of the perpetrator’s knowledge of factual circumstances that establish the existence of an armed conflict. The latter will generally be a ‘by-product’ of the evidence required to prove the former. In the context of an international armed conflict, some factual circumstances establishing the existence of an armed conflict could be identified, such as the presence of foreign uniforms and foreign troops on the territory.
2944  One might think of certain forms of conduct, such as the use of certain weapons or ammunition, which could be illegal during an armed conflict but legal in other situations not amounting to an armed conflict. In those circumstances, it is important to require proof that the perpetrator was aware of the existence of the armed conflict before he or she is found guilty of a war crime.
2945  For a long time, the international criminal tribunals did not require proof of any knowledge by perpetrators of the existence and character of the conflict or the existence of a nexus between their acts and the armed conflict. They were treated as purely jurisdictional elements. In 2006, the ICTY Appeals Chamber reversed these findings in Naletilić and Martinović where it found that:
116. … the existence and international character of an armed conflict are both jurisdictional prerequisites … and substantive elements of crimes …
118. … the Prosecution has to show ‘that the accused knew that his crimes’ had a nexus to an international armed conflict, or at least that he had knowledge of the factual circumstances later bringing the Judges to the conclusion that the armed conflict was an international one.[80]
2946  It is interesting to note that some national courts have defined the common elements of grave breaches or war crimes in a manner similar to the ICTY.[81] Some courts have then proceeded to see whether those common elements were fulfilled in the case at hand, without requiring proof that the perpetrator was aware of the existence of the armed conflict, the nexus or the protected status of the victim.[82]
2947  When similar questions were discussed by the Preparatory Commission in charge of drafting the ICC Elements of Crimes, there were diverging views among delegations.[83] Under the ICC Statute, the following mental element was adopted for each crime: ‘The accused was aware of factual circumstances that established the existence of an armed conflict.’[84] The introduction to the section on Article 8 (War Crimes) in the Elements of Crimes attempts to clarify this mental element. First, the introduction makes it clear that perpetrators are not required to make a legal evaluation as to the existence of an armed conflict or its character as international or non-international. Second, the mental element must not be understood as requiring perpetrators to be aware of the facts that established the character of the conflict as international or non-international.[85] Third, it is not necessary for perpetrators to be aware of the full complexity of the facts determining the existence of an armed conflict. Perpetrators must simply know sufficient facts to be aware of the existence of an armed conflict.[86]
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c. The mental element applicable to the status of protected person or property
2948  The grave breaches listed in Article 50 are committed against persons or property protected under the First Geneva Convention. The question arises whether the alleged perpetrator needs to know that the person or property was protected under the Convention. The case law of the ICTY requires the prosecution to prove that the victims were protected persons or that the property was protected under the relevant Geneva Convention. However, the ICTY has not required any proof that the alleged perpetrator was aware of the protected status of the victim or the property.[87]
2949  Under the ICC Elements of Crimes, the alleged perpetrator needs to have been aware of the factual circumstances that established the status of protected person.[88] It is not necessary for the perpetrator to have known of the protected status of the person or property under the Geneva Conventions in legal terms, which would be a question of law; knowledge of the factual circumstances establishing such status is sufficient.[89]
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D. List of grave breaches
1. Wilful killing
2950  The prohibition of ‘murder’ first appears in Article 12 of the First Convention, as well as in common Article 3. There is no difference between the notion of ‘wilful killing’ and the notion of ‘murder’ as prohibited under Article 12 and common Article 3.[90] The elements of the crime of murder or wilful killing have been defined in the same way by international courts and tribunals, whether the events amount to a grave breach, a war crime or a crime against humanity.[91]
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a. Material element
2951  The material element of this grave breach is that the alleged perpetrator killed or caused the death of a protected person.
2952  The perpetrator’s conduct does not have to be the sole cause of the death of the protected person, but it must at minimum have contributed substantially thereto.[92]
2953  The notion of killing has been used interchangeably with causing death. Thus, this grave breach covers not only such acts as shooting a protected person to death, but also such conduct as reducing the food rations of protected persons, resulting in their starvation and ultimately their death.[93] Wilful killing is prohibited and amounts to a grave breach, irrespective of the motivation behind the act. ‘Mercy killings’ intended to put wounded combatants ‘out of their misery’ are prohibited.[94]
2954  The judgments of international courts and tribunals also make it clear that not only acts but also omissions which cause the death of protected persons, such as the wounded and sick or medical personnel, amount to the grave breach of wilful killing.[95] An example would be failing to take action by wilfully leaving the wounded and sick without medical assistance, which ultimately leads to their death.[96]
2955  In the case law of international courts and tribunals, there is no requirement that the body of the victim be recovered in order to prove death beyond a reasonable doubt.[97] The death of the victim may be established by circumstantial evidence, provided that the only reasonable inference that can be drawn from such evidence is that the victim is dead.[98] The circumstantial evidence used by international courts and tribunals has included such factors as proof of incidents of mistreatment directed against the individual; patterns of mistreatment, and disappearance of other individuals in the location at question; the time elapsed since the person disappeared; and the fact that there has been no contact by that person with others whom he or she would have been expected to contact, such as family members.[99]
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b. Mental element
2956  The 1949 Diplomatic Conference chose to indicate in Article 50 the state of mind required for the perpetrator to be found guilty of the grave breach of killing, namely, that it be ‘wilful’. As mentioned above in the general comments on the mental element, the traditional understanding of the word ‘wilful’ is that it covers both ‘intent’ and ‘recklessness’.[100]
2957  International courts and tribunals have found perpetrators guilty of the grave breach of wilful killing if they intended to kill or inflict serious bodily harm, knowing that such bodily harm is likely to cause the protected person’s death.[101] Some chambers have chosen to define the concept of ‘recklessness’ in a slightly different way by requiring that the act be committed ‘with the intent to kill the victim or wilfully causing serious bodily harm which the perpetrator should reasonably have known might lead to death’.[102] Other chambers have spoken of ‘indirect intent’, which ‘comprises the perpetrator’s knowledge that the death of the victim was the probable or likely consequence of his act or omission’.[103] Despite some variations in the way this mental element has been phrased, they have consistently understood ‘wilful’ to cover the concepts both of intent and of recklessness, or dolus eventualis.
2958  These jurisdictions have also consistently found that it is not sufficient to prove that the alleged perpetrator knew that his or her act might possibly cause death.[104] Furthermore, ordinary negligence has not been found to constitute ‘indirect intent’.[105]
2959  Lastly, as a separate matter, premeditation is not required as the mens rea for the grave breach of wilful killing.[106]
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2. Torture
2960  The prohibition of torture is contained in Article 12 of the First Convention, as well as in common Article 3.[107] Although the prohibition is well established in international humanitarian law, there is no definition of torture in the Geneva Conventions. The case law of international courts and tribunals and the elaboration of the ICC Elements of Crimes have clarified the constitutive elements of the grave breach of torture under international criminal law.[108]
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a. Material element
2961  The alleged perpetrator inflicted severe pain or suffering, whether physical or mental, upon one or more protected persons.
2962  The threshold of severe pain or suffering, be it physical or mental, is reflected consistently in the case law of international courts and tribunals.[109] Existing case law has not determined the absolute degree of pain required for an act to amount to torture.[110] It is difficult to articulate the exact threshold of suffering between lesser forms of inhuman treatment and an act amounting to torture. They have considered that only acts of substantial gravity may amount to torture, and lesser forms of mistreatment may constitute cruel or inhuman treatment.[111] Torture has been defined by those tribunals as severe pain or suffering, while cruel or inhuman treatment is generally defined as serious pain or suffering.[112] The other factor distinguishing torture from the grave breaches of inhuman treatment or wilfully causing great suffering or serious injury to body or health is that torture must be inflicted for a specific purpose.[113]
2963  In making the severity assessment, courts and tribunals have considered a whole series of factors, both objective – relating to the severity of the conduct – and subjective, relating to the particular situation of the victim.[114]
2964  The following objective factors, among others, have been taken into account: the nature and context of the infliction of pain, the premeditation and institutionalization of the ill-treatment, whether the mistreatment occurred over a prolonged period,[115] and the manner and method used.[116]
2965  The following subjective factors relating to the particular victim have been used by courts and tribunals when assessing the severity of the conduct: the physical condition of the victim, the physical or mental effect of the treatment on the victim, the victim’s state of health,[117] the position of inferiority of the victim, the victim’s age, the victim’s sex, and the social, cultural and religious background of the victim.[118]
2966  Some conduct which at first sight might not appear sufficiently serious to amount to torture could, because of its intensity, its duration or the manner in which it is implemented, amount to torture.[119] While in general allegations of torture must be considered on a case-by-case basis so as to determine whether, in the light of the acts committed and their context, severe physical or mental pain or suffering was inflicted,[120] there are some acts that may amount per se to torture, such as rape, if it is inflicted for one of the prohibited purposes.[121]
2967  The ICTY has also highlighted the fact that the act of torture does not need to cause a permanent injury[122] or a physical injury, as mental harm is a recognized form of torture.[123] Evidence of suffering need not even be visible after the commission of the crime.[124] Examples of mental suffering recognized by the international criminal tribunals as amounting to torture include being forced to watch severe mistreatment inflicted on a relative,[125] threats of death causing severe mental suffering,[126] and obliging victims to collect the dead bodies of other members of their ethnic group, in particular those of their neighbours and friends, in very difficult circumstances.[127]
2968  Examples of acts of torture can be found in the case law of the Second World War, where the International Military Tribunal for the Far East found that the most prevalent forms of torture systematically inflicted by Japanese soldiers upon Allied forces or civilians in occupied territories included ‘water treatment, burning, electric shocks, the knee spread, suspension, kneeling on sharp instruments and flogging’.[128] Numerous practices were prosecuted by the international criminal courts and tribunals and found to amount to the war crime or grave breach of torture, such as severe beatings, threats to shoot or kill, rape, deprivation of medical treatment, locking victims in isolation cells for a long period, interrogation of a victim under threat to his or her life, causing burn injuries, forcing victims to watch executions of others, forcing victims to bury the bodies of their neighbours and friends, and administering electric shocks.[129] It is important to note that not only an act but also an omission which inflicts severe pain or suffering on a victim can amount to the grave breach of torture.
2969  The ICTY has taken the view that, in case of doubt whether the act is sufficiently severe to amount to torture, this doubt should be interpreted in favour of the accused, who should be acquitted of torture, and, if the conditions of a lesser offence are met, be convicted of it.[130]
2970  Under international humanitarian law, the official status of the perpetrator does not constitute an element of the definition of the crime of torture or the grave breach of torture.[131] Even if some ICTY Chambers have held that ‘at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority-wielding entity’,[132] later case law by the Appeals Chamber has found that ‘the public official requirement is not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention’.[133] The official status of a perpetrator may constitute an aggravating factor in sentencing.[134]
2971  Lastly, it is important to note that the pain or suffering arising only from, inherent in or incidental to lawful sanctions falls neither within the primary prohibition of torture nor within the grave breach of torture.[135]
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b. Mental element
i. Torture is a specific intent crime.
2972  The alleged perpetrator inflicted the pain or suffering for such purposes as obtaining information or a confession, punishing, intimidating or coercing the victim or a third person, or discriminating, on any ground, against the victim or a third person.
2973  Severe pain or suffering inflicted on a protected person amounts to torture only if the perpetrator aims to attain a certain purpose. In the absence of such purpose, even severe infliction of pain would not amount to the grave breach of torture.[136] The severity of the suffering and the purpose element are the two factors that enable a distinction to be made between torture and inhuman treatment, or between torture and wilfully causing great suffering or serious injury to body or health.
2974  The use of the words ‘for such purposes as’ in this mental element indicates that the ‘listed purposes do not constitute an exhaustive list and should be regarded as merely representative’.[137] Those purposes form part of the definition of torture under Article 1 of the 1984 Convention against Torture, and have been used both in the ICC Elements of Crimes for the grave breach and the war crime of torture and, consistently, by the ICTY,[138] which took the view that this part of the definition of torture was reflected in customary international law.[139] This non-exhaustive list shows that the notion of purpose is quite broad.[140] Some trial chambers have found that ‘humiliation’, which they considered quite close to the concept of intimidation, was also one possible purpose of torture.[141]
2975  There is no requirement that severe pain or suffering be inflicted exclusively for one or more of the purposes mentioned. The prohibited purpose need not be the sole or the main purpose of the act or omission in question.[142] In the specific case of rape, the ICTY Appeals Chamber found it irrelevant that the perpetrator may have had a different motivation, if he acted with the requisite intent and for one of the prohibited purposes.[143] The Appeals Chamber held that:
[E]ven if the perpetrator’s motivation is entirely sexual, it does not follow that the perpetrator does not have the intent to commit an act of torture or that his conduct does not cause severe pain or suffering, whether physical or mental, since such pain or suffering is a likely and logical consequence of his conduct. … [T]he Appellants did intend to act in such a way as to cause severe pain or suffering … to their victims, in pursuance of one of the purposes prohibited by the definition of the crime of torture, in particular the purpose of discrimination.[144]
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ii. Other remarks on the mental element
2976  The infliction of severe pain or suffering must be intentional or deliberate. The case law from international courts and tribunals shows that negligent or reckless behaviour cannot form the basis for responsibility for torture.[145] Perpetrators must have intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether mental or physical, to their victims.[146] Furthermore, torture is considered to be a specific intent crime, as it must not only be committed deliberately but also for a specific purpose such as one of the prohibited purposes listed above.
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3. Inhuman treatment
a. Definition
2977  Inhuman treatment has been defined as ‘intentional treatment which does not conform with the fundamental principle of humanity, and forms the umbrella under which the remainder of the listed “grave breaches” in the Conventions fall’.[147] The obligation to treat persons protected under the Conventions humanely is apparent throughout the Geneva Conventions.[148] Therefore, humane treatment has been said to constitute the ‘cornerstone of all four Conventions’.[149]
2978  The Geneva Conventions do not specifically define inhuman treatment. The term covers treatment which ceases to be humane and therefore encompasses acts which violate the basic principle of humane treatment.[150] The term ‘inhuman’ is defined as ‘lacking positive human qualities; cruel and barbaric; without compassion for suffering’.[151] The word ‘treatment’ must be understood in its most general sense, as applying to all aspects of a person’s life. The requirement of humane treatment and the prohibition of certain acts incompatible with it have been found to be general and absolute in character. They are valid in all circumstances and at all times.[152]
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b. Material element
2979  The material element of this grave breach is that the perpetrator caused serious mental harm or physical injury to a protected person or carried out a serious attack on such person’s human dignity.
2980  The grave breach of inhuman treatment covers more than an attack on the physical integrity or health of the protected person. Insofar as the aim of the First Convention is to grant protection to the wounded and sick or to medical personnel and to preserve their human dignity, it can be argued that ‘inhuman treatment’ also includes the infliction of serious mental harm, as well as measures that seriously violate the human dignity of persons protected. The ICTY has consistently applied this material element to the grave breach of inhuman treatment.[153] However, when negotiating the ICC Elements of Crimes, States decided not to include conduct that constitutes ‘a serious attack on human dignity’. It was felt that the war crime of ‘outrages upon personal dignity in particular humiliating and degrading treatment’ would better cover a serious attack on human dignity.[154]
2981  Furthermore, as mentioned during the discussion of the grave breach of torture, inhuman treatment also covers serious mental or physical suffering which falls short of the threshold of severe mental or physical suffering required for the grave breach of torture.[155] To determine the seriousness of an act, and whether a particular act or omission amounts to inhuman treatment or torture, all the factual circumstances must be taken into account on a case-by-case basis.[156]
2982  There is no difference between the notion of ‘inhuman treatment’ committed in an international armed conflict and the notion of ‘cruel treatment’ prohibited under common Article 3. The elements of the crimes of inhuman and cruel treatment have been defined in the same way by international courts and tribunals. The sole distinction between these two offences stems from the nature of the victim in question: ‘cruel treatment’ is committed against persons protected under common Article 3, whereas ‘inhuman treatment’ is committed against persons protected under the Geneva Conventions during an international armed conflict.[157]
2983  Moreover, the grave breaches of inhuman treatment and wilfully causing great suffering or serious injury to body or health have also been defined in a very similar manner by those same bodies. There is a certain overlap between these two concepts. The main difference between them is that the grave breach of inhuman treatment also extends to acts constituting an attack on human dignity, which are not covered by the grave breach of wilfully causing great suffering or serious injury to body or health.
2984  Criminal tribunals have found that the following examples amounted to inhuman treatment: the forcible digging of trenches under dangerous conditions, or the use of prisoners of war or detainees as human shields,[158] beatings, inhuman living conditions in a detention centre,[159] attempted murder[160] sexual violence[161] or deliberately hiding the existence of detainees from ICRC representatives in order to cause severe mental suffering to the detainees.[162]
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c. Mental element
2985  Perpetrators must intend to commit the relevant material elements of the offence of inhumane treatment before they can be found guilty of that offence.[163] The general remarks on the mental element highlighted in section C.4.a apply here.
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4. Biological experiments
a. Definition
2986  The Geneva Conventions do not contain a definition of biological experiments. Article 12 of the First and Second Conventions prohibits ‘biological experiments’, whereas Article 13 of the Third Convention and Article 32 of the Fourth Convention prohibit ‘medical or scientific experiments’. The common provisions enumerating grave breaches in the four Conventions list ‘biological experiments’ as a grave breach. It is understood, however, that there is considerable overlap between these concepts.[164]
2987  Carrying out biological experiments on protected persons violates the injunction to treat those persons humanely. Not only did the 1949 Diplomatic Conference make torture and inhuman treatment grave breaches, but it decided to highlight biological experiments as one particularly serious kind of inhuman treatment or torture.[165] The Diplomatic Conference explicitly prohibited biological experiments ‘with a view to preventing a recurrence of the cruel experiments which had been made in concentration camps during the last war’.[166]
2988  During the Second World War, prisoners of war and other detainees were subjected by Nazi Germany to all kinds of inhuman medical procedures, which included testing the effect of high altitude on human beings, freezing experiments, seawater experiments, infections, surgical procedures, poison experiments, incendiary-bomb experiments, and forced sterilization.[167] Chinese, Korean and Russian prisoners of war were also used as subjects for medical research by the Imperial Japanese Army, which infected them with plague, cholera, epidemic haemorrhagic fever, tuberculosis, typhoid, tetanus, anthrax, typhus and dysentery, and used them for vivisections[168] and demonstrations of surgery techniques.[169]
2989  After the Second World War, 23 doctors and administrators were accused of war crimes involving medical experiments on prisoners of war and civilians before a US military tribunal at Nuremberg.[170] Seven of them were convicted and sentenced to death, nine were convicted and sentenced to prison terms, and seven were acquitted. The judgment outlined 10 basic principles to be observed while performing medical or biological experiments, in order to satisfy moral, ethical and legal principles.[171]
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b. Material elements
2990  The grave breach of biological experiments requires the cumulative presence of three material elements, namely:
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i. The perpetrator subjected one or more protected persons to a particular biological experiment.
2991  With respect to Article 50 of the First Convention, the prohibition of biological experiments prevents the wounded and sick, particularly when held in detention, from being used as ‘guinea pigs’ for biological experiments in any circumstances. In its ordinary meaning, the term ‘biological experiment’ refers to conduct the primary purpose of which is to study the effects, at that time unknown, of a product or situation (e.g. extreme cold or altitude) on the human body.
2992  The Medical Trial, subsequent legal developments[172] and State practice have made it clear that this prohibition is absolute, as a detained person cannot validly give consent to a particular biological experiment.[173] Consent is not a defence to this crime.[174]
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ii. The experiment seriously endangered the physical or mental health or integrity of such persons.
2993  Article 12 of the First Convention prohibits any attempts upon the lives of protected persons, or violence to their persons, including biological experiments. As for the closely related prohibition of medical or scientific experiments, Article 13 of the Third Convention specifies that ‘any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention’. There was therefore a clear willingness of States Parties to criminalize this offence when it caused the death or seriously endangered the health of protected persons. Article 11(4) of Additional Protocol I prohibits any medical or scientific experiments, but defines a grave breach as ‘[a]ny wilful act or omission which seriously endangers the physical or mental health or integrity of any person who is in the power of the Party other than the one on which he depends’. Under the ICC Elements of Crimes, the elements adopted for the grave breach of biological experiments follow the standard set out in Article 11(4) of Additional Protocol I and require, for the crime to be completed, that the experiment seriously endanger the physical or mental health or integrity of such persons.[175]
2994  In terms of the prohibition under international humanitarian law, a biological experiment is outlawed even if it does not cause the death or seriously endanger the health of the victim. However, for such an experiment to reach the threshold of a grave breach under Article 50, it must seriously endanger the health or integrity of the protected person. In this respect, the scope of the criminal responsibility for conducting biological experiments is more restricted than the scope of the prohibition on carrying out such experiments under international humanitarian law.
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iii. The experiment was neither justified by the medical, dental or hospital treatment of, nor carried out in, such person’s or persons’ interest.
2995  This requirement makes it clear that only those biological experiments conducted on protected persons that are justified by their medical, dental or hospital treatment and, more broadly, carried out in their interest, are not prohibited and therefore do not amount to a grave breach. Accordingly, this provision prohibits any medical procedure which is not indicated by the state of health of the protected person and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty.[176] In order to determine the generally accepted medical standards in this area, two documents prepared by the Council for International Organizations of Medical Sciences are of particular relevance: the International Ethical Guidelines for Epidemiological Studies and the International Ethical Guidelines for Biomedical Research Involving Human Subjects.[177]
2996  The prohibition of biological experiments does not prevent doctors in charge of wounded and sick persons from trying new therapeutic methods that are justified on medical grounds and dictated solely by a desire to improve the patients’ condition. Accordingly, patients can freely consent to drug trials aimed at improving their health, provided that they are offered in the same manner and under the same conditions as to ordinary citizens, including the armed forces of the Detaining Power. The drugs to be tested must be part of a therapeutic treatment for the protected person’s illness. The prohibition of biological experiments should not be understood as outlawing therapeutic or clinical research.[178] No negative consequences can arise for a protected person who refuses to participate in a trial. A recent formulation of medical ethics for the specific problem of biomedical research can be found in the World Medical Association’s Recommendations Guiding Physicians in Biomedical Research Involving Human Subjects.[179]
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c. Mental element
2997  Perpetrators must intend to commit the relevant material elements of the offence of biological experiments before they can be found guilty of that offence. The general remarks on the mental element highlighted in section C.4.a apply here.
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5. Wilfully causing great suffering or serious injury to body or health
2998  The grave breach of ‘causing great suffering or serious injury to body or health’ is meant to cover acts and omissions which, while not amounting to torture, affect the body or health of protected persons, including the wounded and sick, medical personnel and religious personnel. The prohibition on causing great suffering or serious injury to body or health is not found per se in any particular article of the Geneva Conventions, but it expresses the obligation to treat protected persons humanely and to respect their physical and mental integrity at all times. A great variety of forms of conduct can fall under this grave breach, which, unlike the grave breach of torture, need not be committed for any particular purpose.[180] To distinguish this grave breach from the grave breach of inhuman treatment, the ICTY explained that wilfully causing great suffering would not cover harm relating solely to the victim’s human dignity.[181] Examples of causing great suffering or serious injury to body or health could be the mutilation of the wounded,[182] their exposure to useless and unnecessary suffering,[183] or severe beatings or other severe forms of mistreatment of detainees.[184]
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a. Material element
2999  The material element of this grave breach is that the perpetrator caused great physical or mental suffering or serious injury to body or health, including the mental health, of a protected person.
3000  The conduct of the perpetrator, be it an act or an omission, must have caused great suffering or serious injury to body or health. The case law of international courts and tribunals has consistently reaffirmed that suffering, the first alternative of this grave breach, could be either physical or mental.[185] With regard to the second alternative, the causing of serious injury to body or health, some ICTY Trial Chambers, as well as the ICTY Appeals Chamber, have found that the term ‘health’ could include mental health.[186] States negotiating the ICC Elements of Crimes took the view, however, that it would be difficult to conceive of mental injury.[187] Under the ICC Elements of Crimes, the elements adopted for this grave breach therefore include the phrase ‘mental or physical’ only in relation to the suffering caused.
3001  The requisite level of suffering is defined as ‘great’ or ‘serious’. The ICTY Trial Chambers have used the ordinary meaning of these words to determine the requisite level of suffering:
The Oxford English Dictionary defines this word [‘serious’] as ‘not slight or negligible’. Similarly, the term ‘great’ is defined as ‘much above average in size, amount or intensity’. The Trial chamber therefore views these quantitative expressions as providing for the basic requirement that a particular act of mistreatment results in a requisite level of serious suffering or injury.[188]
3002  As mentioned earlier, for the grave breaches of torture and inhuman treatment, the assessment of the seriousness of the pain or suffering is relative and must take into account all relevant circumstances, including the nature of the act or omission, the context in which the crime occurred, its duration and repetition, the physical, mental and moral effects of the act on the victim, and the personal circumstances of the victim, including, age, sex and health.[189] Various international courts and tribunals have taken the view that ‘causing serious bodily or mental harm does not necessarily mean that the harm is permanent and irremediable’,[190] but it ‘must go beyond temporary unhappiness, embarrassment or humiliation. It must be harm that results in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.’[191]
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b. Mental element
3003  The grave breach set out in Article 50 reads: ‘wilfully causing great suffering or serious injury to body or health’. As mentioned earlier, the traditional understanding of the word ‘wilful’ in Article 50 is that it covers both ‘intent’ and ‘recklessness’.[192]
3004  The international courts and tribunals have taken this approach while determining the requisite mental element for this grave breach.[193] They have found that it is not sufficient to prove that the alleged perpetrator knew that his or her act might possibly cause such suffering or injury.[194] Ordinary negligence has not been found to be included in the understanding of the word ‘wilful’.[195]
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6. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly
a. Protected property
3005  The Geneva Conventions do not define the concept of protected property per se. They contain a list of objects which cannot be attacked, destroyed or appropriated. Under the First Convention, such property is listed in Articles 19, 33 and 34 (fixed medical establishments and mobile medical units), Article 20 (hospital ships) and Articles 35 and 36 (medical transports, including medical aircraft).
3006  The regime governing the destruction and appropriation of other public or private property is generally dealt with in provisions of the Hague Regulations and in Additional Protocol I.[196] Such acts do not amount to a grave breach under the First Convention.
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b. Material elements
3007  This grave breach requires the cumulative presence of three material elements.
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i. The alleged perpetrator unlawfully destroyed or appropriated certain protected property.
3008  The material element is phrased in the alternative form ‘the perpetrator destroyed or appropriated certain property’. The preparatory work for the Convention makes it clear that ‘appropriation of protected property’ was added as an additional and distinct grave breach, next to the destruction of ‘certain property’.[197]
3009  The destruction of protected property can take various forms: setting fire to it, attacking it or otherwise seriously damaging it. Examples of this grave breach under the First Convention would be the destruction of material and stores of mobile or fixed medical units[198] and the destruction of ambulances or fixed establishments and mobile medical units of the armed forces.[199] A partial destruction of property could fall within this grave breach if the partial destruction could be qualified as extensive destruction.
3010  The destruction of such protected property amounts to a grave breach if the destruction is unlawful under the specific standards pertaining to the primary obligations of international humanitarian law. For example, in the case of the destruction of material and stores of mobile or fixed medical units, any intentional destruction would be unlawful. The Convention provides for no exceptions.[200] In the case of the destruction of fixed medical establishments or mobile medical units, they may not be destroyed unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.[201] In those circumstances, their destruction would not be unlawful and would not amount to a grave breach under Article 50, assuming that other conditions on lawful attacks are complied with.
3011  The appropriation of protected property can take various forms, such as the taking, obtaining or withholding of property, theft, requisition, plunder, spoliation and pillage. There does not need to be a definite transfer of title of the property appropriated. Examples of this grave breach would be the unlawful appropriation of the real and personal property of aid societies pursuant to Article 34 of the First Convention.
3012  The appropriation would be unlawful if, pursuant to Article 34(2), there is no urgent necessity to take the property and if the welfare of the wounded and sick has not been ensured. Similarly, cases where the material of medical units is taken in disregard of the conditions laid down in Article 33(1)–(2) would amount to the grave breach of unlawful appropriation of protected property. Another example of unlawful appropriation would be the taking of medical transports, such as medical aircraft or ambulances, without complying with the requirements of Article 35 of the First Convention, i.e. without ensuring the care of the wounded and sick contained therein.
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ii. The destruction or appropriation was not justified by military necessity.
3013  As seen in the examples above, the fact that the destruction or appropriation might be justified by military necessity is built into most articles dealing with protected property under the First Convention.[202] A rule of armed conflict cannot be derogated from by invoking military necessity, unless this possibility is explicitly provided for in the rule in question and to the extent it is provided for. This, it may be said, also applies to the grave breach in question. Therefore, if a prohibition on destroying or appropriating a type of protected property does not provide for the exception of military necessity, its destruction or appropriation cannot be justified on the ground of military necessity.[203] For example, pursuant to Article 33(3) of the First Convention, the intentional destruction of material and stores of fixed and mobile medical units cannot be justified by military necessity.
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iii. The destruction or appropriation was extensive.
3014  Unlawful destruction or appropriation must be extensive for it to amount to a grave breach. An isolated act would not normally be enough to constitute a grave breach; however, in the light of the destructive power of certain weapons, the requirement that the destruction be extensive could possibly be met by a single act of destruction, such as the intentional bombing of a hospital.[204] The notion of ‘extensive’ will be evaluated in accordance with the facts of the case.[205]
3015  A partial destruction which might not qualify as an ‘extensive’ destruction or appropriation will not amount to this grave breach but can still be a serious violation of international humanitarian law.
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c. Mental element
3016  Article 50 requires that the destruction or appropriation be carried out wantonly. A wanton act means that the perpetrator acted ‘unreasonably or maliciously risking harm while being utterly indifferent to the consequences’.[206] The case law of the international criminal tribunals has not defined the term ‘wanton’ further. The tribunals have, however, taken the view that the perpetrator must have acted with intent or in reckless disregard of the likelihood of the property’s destruction or its appropriation.[207]
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Select bibliography
Badar, Mohamed Elewa, ‘Drawing the Boundaries of Mens Rea in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, International Criminal Law Review, Vol. 6, No. 3, 2006, pp. 313–348.
The Concept of Mens Rea in International Criminal Law: The Case for a Unified Approach, Bloomsbury Publishing, 2013.
Cassese, Antonio, International Criminal Law, 3rd edition, Oxford University Press, 2013.
Dautricourt, Joseph, ‘La protection pénale des conventions internationales humanitaires – La définition des infractions graves’, Revue de Droit Pénal et de Criminologie, 1955, pp. 1–55.
Dörmann, Knut, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003.
Dörmann, Knut, La Haye, Eve and von Hebel, Herman, ‘The Context of War Crimes’, in Roy S. Lee and Hakan Friman (eds), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 112–123.
Gross, Oren, ‘The Grave Breaches System and the Armed Conflict in the Former Yugoslavia’, Michigan Journal of International Law, Vol. 16, Spring 1995, pp. 783–829.
Henckaerts, Jean-Marie, ‘The Grave Breaches Regime as Customary International Law’, Journal of International Criminal Justice, Vol. 7, No. 4, Spring 2009, pp. 683–701.
Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, available at https://www.icrc.org/customary-ihl/eng/docs/v1.
Knuckey, Sarah, ‘Murder in Common Article 3’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 449–467.
Kreß, Claus, ‘War Crimes Committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice’, Israel Yearbook on Human Rights, Vol. 30, 2000, pp. 103–178.
La Haye, Eve, ‘The elaboration of elements for war crimes’, in Flavia Lattanzi and William A. Schabas (eds), Essays on the Rome Statute of the International Criminal Court, Vol. II, Il Sirente Publishers, Ripa di Fagnano Alto, 2004, pp. 305–331.
War Crimes in Internal Armed Conflicts, Cambridge University Press, 2008.
Mettraux, Guénaël, International Crimes and the Ad Hoc Tribunals, Oxford University Press, 2005.
Roberts, Ken, ‘The Contribution of the ICTY to the Grave Breaches Regime’, Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 743–761.
Werle, Gerhard and Jessberger, Florian, Principles of International Criminal Law, 3rd edition, Oxford University Press, 2014.

1 - For a full explanation of these obligations, see the commentary on Article 49.
2 - See Second Convention, Article 51; Third Convention, Article 130; and Fourth Convention, Article 147.
3 - 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.’
4 - Yves Sandoz, ‘The History of the Grave Breaches Regime’, Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 657–682, at 679.
5 - For a discussion of whether serious violations of international humanitarian law committed in non-international armed conflicts amount to grave breaches, see the commentary on Article 49, section G.
6 - Addressing the Sixth Committee of the UN General Assembly in 1993, the ICRC stated that it was regrettable that the system of universal penal jurisdiction had not been fully implemented by States and that, as a result, effective repression of war crimes had not become a reality.
7 - For examples of cases, see Denmark, Sarić case; Germany, Sokolović case; and Switzerland, Grabež case. On this point, see, in particular, James G. Stewart, ‘Introduction’, Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 653–654, at 654, and La Haye, 2008, pp. 243–253.
8 - See the work of the Human Rights Chamber of the Court of Bosnia and Herzegovina, http://www.sudbih.gov.ba/?jezik=e.
9 - See the work of the Extraordinary Chambers in the Courts of Cambodia (ECCC), http://www.eccc.gov.kh/en.
10 - For examples of domestic prosecutions in Croatia, see the ICRC’s National Implementation of IHL database, available at https://www.icrc.org/ihl-nat.
11 - For an overview of the work of the Supreme Iraqi Criminal Tribunal, see Michael A. Newton, ‘The Iraqi High Court: controversy and contributions’, International Review of the Red Cross, Vol. 88, No. 862, June 2006, pp. 399–425.
12 - The work of international human right bodies is also relevant and has been referred to in the commentaries below on certain grave breaches. It has not been possible, however, to include exhaustive references to all relevant human rights decisions or judgments.
13 - See ICTY Statute (1993), Article 2; ICC Statute (1998), Article 8(2)(b); UNTAET Regulation No. 2000/15, Section 6.1(a); Cambodia, Law on the Establishment of the ECCC, 2001, as amended, Article 6; Iraq, Law Establishing the Supreme Iraqi Criminal Tribunal, 2005, Article 13(a); and Statute of the Extraordinary African Chambers within the Courts of Senegal (2013), Article 7.1.
14 - On this issue, see, in particular, Roberts, pp. 743–761; Natalie Wagner, ‘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; Shane Darcy and Joseph Powderly (eds), Judicial Creativity at the International Criminal Tribunals, Oxford University Press, 2010. There has, however, been a tendency, in particular for prosecutors at the ICTY, to charge alleged perpetrators with war crimes rather than grave breaches, thereby dispensing with the need to first establish the existence of an international armed conflict, as well as the protected status of the person or property in question.
15 - See Roberts, p. 744: In particular, in affirming the requirement that grave breaches must be committed in an international armed conflict, the Tribunal has examined the conditions under which a conflict may be established to be international, has articulated the contours of a necessary nexus between this international armed conflict and the grave breaches and has offered a new definition of a ‘protected person’ that ensures that the grave breaches regime remains relevant in modern warfare.
16 - See, in particular, the initiative to end sexual violence in armed conflict led by the United Kingdom. In paragraph 4, the Declaration on Preventing Sexual Violence in Conflict, adopted in London on 11 April 2013, states: Ministers recalled that rape and other forms of serious sexual violence in armed conflict are war crimes and also constitute grave breaches of the Geneva Conventions and their first Protocol. States have an obligation to search for and prosecute (or hand over for trial) any individual alleged to have committed or ordered a grave breach regardless of nationality. See also Theo Rycroft, ‘Criminalization and Prosecution of Sexual Violence in Armed Conflict at the Domestic Level: Grave Breaches and Universal Jurisdiction’, in Vulnerabilities in Armed Conflicts: Selected Issues, Proceedings of the 14th Bruges Colloquium, 17–18 October 2013, College of Europe/ICRC, Collegium No. 44, Autumn 2014, pp. 73–82.
17 - For more details, see the commentary on Article 49, section B.1.
18 - See Geneva Convention (1906), Articles 27 and 28. See also Hague Convention (X) (1907), Article 21.
19 - See Hague Regulations (1907), Article 3, which contains a general provision dealing with the responsibility of States. A similar obligation is contained in Article 91 of Additional Protocol I.
20 - Geneva Convention on the Wounded and Sick (1929), Article 29(1). According to Article 29(2), 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.
21 - See Geneva Convention on the Wounded and Sick (1929), Article 28. For more details on abuse of the emblem, see the commentary on Article 53.
22 - For further details on the enquiry procedure, see the commentary on Article 52.
23 - See Report of the Conference of Government Experts of 1947, pp. 63–64 (Article 33).
24 - See Draft Conventions adopted by the 1948 Stockholm Conference, draft article 40, p. 25, which reads: The Contracting Parties shall be under the obligation to apprehend persons charged with acts contrary to the present Convention, regardless of their nationality. They shall furthermore, in obedience to their national legislation or to the conventions for the repression of acts that may be defined as war crimes, refer such persons for trial by their own courts, or if they so prefer, hand them over for trial to another Contracting Party’.
25 - See ICRC Remarks and Proposals on the 1948 Stockholm Draft, draft article 119(a), entitled ‘Grave violations’.
26 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 115.
27 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 370.
28 - Ibid. p. 371.
29 - For more details, see the commentary on Article 49, in particular paras 2820 and 2856–2857. Furthermore, the doctrine usually holds that the list of grave breaches is exhaustive; see Gross, p. 820, and Gerald I.A.D. Draper, ‘The Modern Pattern of War Criminality’, Israel Yearbook on Human Rights, Vol. 6, 1976, p. 28.
30 - Until the early 2000s, most States Parties implemented their obligations under Articles 49 and 50 of the First Convention by providing penal sanctions for the list of grave breaches contained in the four Geneva Conventions. Parties to the ICC have, since 1998, often enlarged the inventory of war crimes in their national legislation beyond the list of grave breaches.
31 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 116–117.
32 - Ibid. p. 116. Article 85(5) of Additional Protocol I adds the clarification that ‘grave breaches shall be regarded as war crimes’.
33 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 118.
34 - See Henckaerts, p. 690.
35 - See the commentary on Article 49, paras 2834–2836.
36 - For a discussion of whether the regime of grave breaches has been extended to non-international armed conflicts, see the commentary on Article 49, section G. For a discussion of the definition of an international armed conflict, see the commentary on common Article 2.
37 - For a study of the concept of the nexus between the acts of the accused and the armed conflict, see Mettraux, pp. 38–51.
38 - See ibid. pp. 38–39.
39 - See ibid. p. 40.
40 - ICTY, Delalić Trial Judgment, 1998, para. 193. In Brđanin, the ICTY Appeals Chamber found that ‘the Trial Chamber clearly established the existence of an international armed conflict and furthermore reasonably concluded that the rapes in Teslić, committed as they were during weapons searches, were committed in the context of an armed conflict and were not “individual domestic crimes” as suggested by Brđanin’; Brđanin Appeal Judgment, 2007, para. 256. See also ICTY, Prlić Trial Judgment, 2013, para. 109.
41 - See ICTY, Delalić Trial Judgment, 1998, para. 194, where the Trial Chamber takes the view that ‘there need not have been any actual armed hostilities’, and Tadić Trial Judgment, 1997, para. 573.
42 - See ICTY, Tadić Trial Judgment, 1997, para. 573; Kunarac Trial Judgment, 2001, para. 568; Prlić Trial Judgment, 2013, para. 109; and Stakić Appeal Judgment, 2006, para. 342.
43 - ICTY, Kunarac Appeal Judgment, 2002, para. 58. In this case, the Appeals Chamber was actually looking at a war crime under Article 3 of the 1993 ICTY Statute, and not at a grave breach of the Geneva Conventions. However, the same definition of the nexus is used by the ICTY under both Article 3 (war crimes) and Article 2 (grave breaches) of its Statute.
44 - See Mettraux, p. 46, referring to a number of cases, including ICTY, Kunarac Appeal Judgment, 2002, paras 58–59, and ICTR, Rutaganda Appeal Judgment, 2003, para. 577. For an application of the nexus requirement by national courts, see the Mpambara case in the Netherlands, where both the District Court and the Court of Appeal of The Hague discussed at length the existence of the nexus between the armed conflict and the acts of the accused.
45 - See ICC Elements of Crimes (2002), Article 8 (War crimes). For an application of these criteria, see ICC, Katanga Trial Judgment, 2014, para. 1176, and Bemba Trial Judgment, 2016, paras 142–144 and 664–666.
46 - For more details on these negotiations, see Dörmann, pp. 17–28; La Haye, 2004, pp. 310–311; and Kreß, pp. 125–127.
47 - This will be the case as long as international humanitarian law applies, for example in the case of a civilian internee or a prisoner of war who might be detained even after the cessation of active hostilities and who could be the victim of torture. The perpetrator could still be prosecuted for the grave breach of torture, as his or her behaviour can still be said to be associated with the armed conflict.
48 - For States party to this instrument, Additional Protocol I expands the list of protected persons who can be the subject of grave breaches under the Protocol, in particular in Articles 8, 11 and 85.
49 - See the commentaries on Articles 13, 15, 24, 25, 26 and 27.
50 - For details on the concept of ‘acts harmful to the enemy’ and a discussion of the conditions under which protection might be regained, see the commentary on Article 24, section F.
51 - For an interpretation of this concept, see the commentary on Article 21, section C.1 and in general the commentary on Article 22.
52 - Ordinary civilians have also been found guilty of war crimes, such as in United Kingdom, Military Court at Essen, Essen Lynching case, Judgment, 1945, in which civilians were convicted of killing or participating in the killing of three British prisoners of war.
53 - See e.g. the 2012 proceedings against Charles Taylor before the SCSL, arguably for acts committed during a non-international armed conflict, and the proceedings against Japanese members of government before the International Military Tribunal for the Far East, as reported in B.V.A. Röling and C.F. Rüter (eds), The Tokyo Judgement, Vol. I, APA University Press, Amsterdam, 1977, pp. 29–31.
54 - See e.g. the Wagner case in 1946 before the French Permanent Military Tribunal at Strasbourg, where the chief defendant was the head of the civil government of Alsace, and the others were high administrative officers of the Nazi Party and judicial officers; see also the Boškoski and Tarčulovski case before the ICTY, where Boškoski was at the time of the event minister of the interior of the former Yugoslav Republic of Macedonia, or the Šešelj case, where the accused was the president of the Serbian Radical Party.
55 - See, in particular, the Zyklon B case in 1946 before the UK Military Court in Hamburg, where two German industrialists were sentenced to death for having supplied Zyklon B poison gas to concentration camps. Other trials of industrialists include the 1947 Flick case, the 1947–48 I.G. Farben Trial and the 1948 Krupp case before the US Military Tribunal at Nuremberg.
56 - See e.g. the Altstötter case in 1947 before the US Military Tribunal at Nuremberg, in which Altstötter and the other defendants were former German judges, prosecutors or officials in the Reich Ministry of Justice, and the Wagner case in 1946 before the French Permanent Military Tribunal at Strasbourg, where the accused Huber was found guilty of complicity in the murder of 14 people on whom he had passed unjustified death sentences. See also Dörmann, p. 37.
57 - See, in particular, United States, Military Commission in Wiesbaden, Hadamar Trial, 1945.
58 - See, in particular, United Kingdom, Military Court at Lüneburg, Kramer case, Judgment, 1945.
59 - See ‘Paper prepared by the International Committee of the Red Cross relating to the mental element in the common law and civil law systems and to the concepts of mistake of fact and mistake of law in national and international law’, in Preparatory Commission for the International Criminal Court, Working Group on Elements of Crimes, UN Doc. PCNICC/1999/WGEC/INF/2/Add.4, 15 December 1999, p. 3.
60 - For some grave breaches, the mens rea is specified in Article 50, when it lists ‘wilful’ killing, ‘wilfully’ causing great suffering, or extensive destruction carried out ‘wantonly’.
61 - See Cassese, pp. 39–40.
62 - See Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 3474. The French version of the commentary uses the term ‘dol éventuel’ for ‘recklessness’. See the definition of this concept below.
63 - In the words of Cassese, p. 44: International rules may require a special intent (dolus specialis) for particular classes of crime. Such rules, in addition to providing for the intent to bring about a certain result by undertaking certain conduct (for example death by killing), may also require that the agent pursue a specific goal that goes beyond the result of his conduct.
64 - See Werle/Jessberger, para. 460.
65 - Ibid. para. 462. For a study of this issue, see Badar, 2006, pp. 313–348, and Badar, 2013.
66 - See, in particular, Badar, 2006, p. 347.
67 - Ibid. It should be noted that recklessness and dolus eventualis do not overlap entirely. Recklessness covers both dolus eventualis and certain cases of gross negligence under some civil-law systems.
68 - Cassese, pp. 45–46.
69 - See Werle/Jessberger, paras 464–465, as well as further details on the grave breach of wilful killing, paras 51–53.
70 - See e.g. ICTY, Kvočka Trial Judgment, 2001, para. 251; Blaškić Appeal Judgment, 2004, para. 42; Kordić and Čerkez Appeal Judgment, 2004, para. 30; and Galić Appeal Judgment, 2006, para. 152. See also Werle/Jessberger, para. 465, and ICTY, Prlić Trial Judgment, 2013, Vol. 5, Separate Opinion of Judge Trechsel: Recklessness, dolus eventualis, indirect intent, pp. 107–111.
71 - For a commentary on Article 30, see e.g. Werle/Jessberger, paras 467–497.
72 - This could be the case if, for example, the crimes in question include a certain threshold of mens rea in their definition, such as the words ‘wilful’ or ‘wanton’.
73 - See Preparatory Committee on the Establishment of an International Criminal Court, Working Group on General Principles of Criminal Law and Penalties, UN Doc. A/AC.249/1997/WG.2/CRP.4, 20 February 1997, as well as UN Doc A/CONF.183/DC/R.76.
74 - See Donald K. Piragoff and Darryl Robinson, ‘Article 30: Mental Element’, in Otto Triffterer and Kai Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary, 3rd edition, Hart Publishing, Oxford, 2016, pp. 1111–1124; Jens David Ohlin, ‘Searching for the Hinterman: In Praise of Subjective Theories of Imputation’, Journal of International Criminal Justice, Vol. 12, No. 2, 2014, pp. 325–343, at 333; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, 2010, p. 473; and Roger S. Clark, ‘Drafting a General Part to a Penal Code: Some Thoughts Inspired by the Negotiations on the Rome Statute of the International Criminal Court and by the Court’s First Substantive Law Discussion in the Lubanga Dyilo Confirmation Proceedings’, Criminal Law Forum, Vol. 19, No. 3–4, 2008, pp. 519–552.
75 - See Werle/Jessberger, para. 476.
76 - ICC, Lubanga Trial Judgment, 2012, para. 1011.
77 - For an illustration of this mens rea, see e.g. ICC, Lubanga Trial Judgment, 2012, para. 1013, in relation to the crime of conscripting, enlisting or using children under the age of 15 to participate actively in hostilities: The Chamber is of the view that the prosecution must establish, as regards the mental element, that: (i) the accused and at least one other perpetrator meant to conscript, enlist or use children under the age of 15 to participate actively in hostilities or they were aware that in implementing their common plan this consequence ‘will occur in the ordinary course of events’; and (ii) the accused was aware that he provided an essential contribution to the implementation of the common plan. This interpretation has been suggested by the majority of authors; see Werle/Jessberger, paras 476–479.
78 - See Cassese, p. 57.
79 - See Mettraux, p. 72, referring in particular to ICTY, Krnojelac Trial Judgment, 2002, para. 67, for the general standard of proof applied by the international criminal tribunals.
80 - ICTY, Naletilić and Martinović Appeal Judgment, 2006, paras 116 and 118. The Chamber went on to say: ‘The perpetrator only needs to be aware of factual circumstances on which the judge finally determines the existence of the armed conflict and the international (or internal) character thereof’ (para. 119). See also Prlić Trial Judgment, 2013, para. 109.
81 - See the case law of the Court of Bosnia and Herzegovina, for example Andrun case, Verdict, 2008, p. 14: The following general elements of the criminal offense of War Crimes against Civilians, which needed to be established, follow from the cited legal definition: • The act of the perpetrator must be committed in violation of the rules of international law, • The violation must take place in time of war, armed conflict or occupation, • The act of the perpetrator must be related to war, armed conflict or occupation, • The perpetrator must order or perpetrate the act.
82 - See ibid. pp. 14–18.
83 - For the historical background and a commentary on this issue as it pertains to the Elements of Crimes, see Dörmann, pp. 20–22; Dörmann/La Haye/von Hebel, pp. 120–124; and La Haye, 2008, pp. 111–115.
84 - The direct article (‘the’) before the term ‘factual circumstances’, was dropped in order to indicate that the perpetrator needs only to be aware of some factual circumstances and not all factual circumstances. See Dörmann, p. 21.
85 - This issue was discussed in a general way for all war crimes, including grave breaches. No particular requirement was adopted for grave breaches, e.g. that the accused should be aware of factual circumstances establishing the character of the armed conflict.
86 - The third clarification in the introduction states: ‘There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms “took place in the context of and was associated with”’; ICC Elements of Crimes (2002), p. 18. For an illustration of this requirement, see ICC, Bemba Trial Judgment, 2016, paras 145–147 and 667.
87 - See the following cases, where the ICTY Chambers concluded that the armed conflict amounted to an international armed conflict, and where the status of protected person or protected property was discussed: Tadić Trial Judgment, 1997, para. 578, and Appeal Judgment, 1999, paras 163–166; Kordić and Čerkez Trial Judgment, 2001, paras 147–160, and Appeal Judgment, 2004, paras 322–331; Delalić Trial Judgment, 1998, paras 244–277, and Appeal Judgment, 2001, paras 52–106; Blaškić Trial Judgment, 2000, paras 125–133, and Appeal Judgment, 2004, paras 167–182; Aleksovski Appeal Judgment, 2000, para. 151; Naletilić and Martinović Trial Judgment, 2003, paras 203–208; and Brđanin Trial Judgment, 2004, paras 125, 155 and 585. Badar believes that an accused charged for example with the ‘crime of wilful killing must be proved to have been aware of the fact that the victim was a protected person … in addition to the mental state required with regard to the result element’, p. 338.
88 - For an illustration of this requirement, see ICC, Katanga Trial Judgment, 2014, para. 900.
89 - It is also interesting to note that, in the 2002 ICC Elements of Crimes, footnotes were appended to the mental elements attached to certain war crimes involving protected status, pointing out that these elements recognized the interplay between Articles 30 and 32 of the 1998 ICC Statute. This emphasized the general rule that ignorance of the facts, if it negates the mental element required by the crime, may be an excuse, but that ignorance of the law, such as the definition of protected persons or property, is not a ground for excluding criminal responsibility. See ICC Elements of Crimes (2002), fns 32, 39, 40, 41 and 43.
90 - The ICTY took the view that ‘there can be no line drawn between “wilful killing” and “murder” which affects their content’; see ICTY, Delalić Trial Judgment, 1998, para. 422. For examples of convictions for the war crime of murder following the Second World War, see e.g. United Kingdom, Military Court at Almelo, Almelo Trial, Judgment, 1945; Military Court at Brunswick, Gerike case, Trial, 1946; Military Court at Lüneburg, Krammer case, Judgment, 1945, p. 126; and Military Court at Wuppertal, Rohde case, Judgment, 1946.
91 - For murder and wilful killing as a grave breach, see, in particular, ICTY, Orić Trial Judgment, 2006, para. 345, and Brđanin Trial Judgment, 2004, para. 380; and ICC, Katanga Trial Judgment, 2014, para. 789. For examples of murder as a war crime and murder as a crime against humanity, see ICTY, Delalić Trial Judgment, 1998, para. 422, and Appeal Judgment, 2001, para. 423; Stanišić and Župljanin Trial Judgment, 2013, para. 42; Tolimir Trial Judgment, 2012, para. 714; Popović Trial Judgment, 2010, para. 787; Lukić and Lukić Trial Judgment, 2009, para. 903; Milutinović Trial Judgment, 2009, para. 136; Martić Trial Judgment, 2007, para. 58; Blagojević and Jokić Trial Judgment, 2005, para. 556; ICC, Katanga Trial Judgment, 2014, paras 765–767; Bemba Trial Judgment, 2016, paras 91–97; and ECCC, Nuon and Khieu Trial Judgment, 2014, paras 412–413.
92 - For examples, see ICTY, Delalić Trial Judgment, 1998, para. 424; Kordić and Čerkez Trial Judgment, 2001, para. 229; Tolimir Trial Judgment, 2012, para. 715; Haradinaj Retrial Judgment, 2012, para. 427; Đorđević Trial Judgment, 2011, para. 1708; Popović Trial Judgment, 2010, para. 788; Lukić and Lukić Trial Judgment, 2009, para. 903; Milutinović Trial Judgment, 2009, para. 137; Orić Trial Judgment, 2006, para. 347; SCSL, Brima Trial Judgment, 2007, para. 689; and ECCC, Kaing Trial Judgment, 2010, para. 331. This principle was also applied by national courts, such as in the Andrun case, where the Court of Bosnia and Herzegovina found Andrun guilty of the crime of murder for having participated substantially in the murder of persons protected under the Geneva Conventions; see Andrun case, Verdict, 2008, pp. 23–26.
93 - See Silja Vöneky, ‘Implementation and Enforcement of International Humanitarian Law’, in Dieter Fleck (ed.) The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 647–700, at 671–672.
94 - See the commentary on Article 12, para. 1404.
95 - For a discussion of the material element of the crime of murder or wilful killing, see e.g. ICTY, Delić Trial Judgment, 2008, para. 46; Kordić and Čerkez Appeal Judgment, 2004, para. 36; Hadžihasanović Trial Judgment, 2006, para. 31; Galić Appeal Judgment, 2006, para. 147; Kvočka Appeal Judgment, 2005, para. 261; Halilović Trial Judgment, 2005, para. 35; Brđanin Trial Judgment, 2004, para. 381; Dragomir Milošević Appeal Judgment, 2009, para. 108; Mrkšić Trial Judgment, 2007, para. 486; Krajišnik Trial Judgment, 2006, para. 715; Limaj Trial Judgment, 2005, para. 241; Blagojević and Jokić Trial Judgment, 2005, para. 556; Perišić Trial Judgment, 2011, para. 102; Gotovina Trial Judgment, 2011, para. 1725; Đorđević Trial Judgment, 2011, para. 1708; Milutinović Trial Judgment, 2009, para. 137; Prlić Trial Judgment, 2013, paras 110–111; ICTR, Ndindiliyimana Trial Judgment, 2011, para. 6165; Nyiramasuhuko Trial Judgment, 2011, para. 6165; Nizeyimana Trial Judgment, 2012, para. 1552; Zigiranyirazo Trial Judgment, 2008, para. 442; ECCC, Kaing Trial Judgment, 2010, para. 331; SCSL, Sesay Trial Judgment, 2009, para. 142; Taylor Trial Judgment, 2012, para. 412; Brima Trial Judgment, 2007, para. 688; and Fofana and Kondewa Trial Judgment, 2007, para. 146.
96 - The ECCC found an accused guilty of the grave breach of wilful killing as detainees died ‘as the result of omissions known to be likely to lead to death and as a consequence of the conditions of detention imposed upon them’; Kaing Trial Judgment, 2010, para. 437.
97 - For examples, see ICTY, Krnojelac Trial Judgment, 2002, para. 326; Kvočka Appeal Judgment, 2005, para. 260; Đorđević Trial Judgment, 2011, para. 1708; Boškoski and Tarčulovski Trial Judgment, 2008, para. 305; Mrkšić Trial Judgment, 2007, para. 486; Limaj Trial Judgment, 2005, para. 241; and Brđanin Trial Judgment, 2004, para. 383.
98 - See, in particular, ICTY, Kvočka Appeal Judgment, 2005, para. 260; Lukić and Lukić Appeal Judgment, 2012, para. 149; Krnojelac Trial Judgment, 2002, paras 326–327; Tadić Trial Judgment, 1997, para. 240; Brđanin Trial Judgment, 2004, para. 385; Stanišić and Župljanin, Trial Judgment, 2013, para. 40; Tolimir Trial Judgment, 2012, para. 715; Perišić Trial Judgment, 2011, para. 103; Popović Trial Judgment, 2010, para. 789; Delić Trial Judgment, 2008, para. 47; Martić Trial Judgment, 2007, para. 59; Orić Trial Judgment, 2006, para. 347; Halilović Trial Judgment, 2005, para. 37; SCSL, Brima Trial Judgment, 2007, para. 689; ICC, Katanga Trial Judgment, 2014, para. 768; and ECCC, Nuon and Khieu Trial Judgment, 2014, para. 413.
99 - See ICTY, Krnojelac Trial Judgment, 2002, para. 327, citing, in fn. 857, a large number of human rights cases in the European Court of Human Rights, the Inter-American Court of Human Rights and national legal systems which use the same factors to infer that the victim is dead. See also SCSL, Brima Trial Judgment, 2007, para. 689, and ECCC, Kaing Trial Judgment, 2010, para. 332. Other factors have also been used, such as ‘the coincident or near-coincident time of death of other victims, the fact that the victims were present in an area where an armed attack was carried out … and the circumstances in which the victim was last seen, and the behaviour of soldiers in the vicinity, as well as towards other civilians, at the relevant time’; ICTY, Halilović Trial Judgment, 2005, para. 37. These factors were also referred to in ICTY, Martić Trial Judgment, 2007, fn. 112; Delić Trial Judgment, 2008, fn. 87; and Lukić and Lukić Trial Judgment, 2009, para. 904.
100 - See Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 3474. The French version of the commentary uses the term ‘dol éventuel’ for ‘recklessness’. See also ICTY, Blaškić Trial Judgment, 2000, para. 152, which affirms that ‘the mens rea constituting all the violations of Article 2 of the Statute includes both guilty intent and recklessness which may be likened to serious criminal negligence’. This view is also supported by various decisions emerging from the war crimes trials after the Second World War, such as United Kingdom, Military Court at Brunswick, Gerike case, Trial, 1946, p. 78, and Military Court at Helmstedt, Tyrolt case, Trial, 1946.
101 - See e.g. ICTY, Delalić Appeal Judgment, 2001, para. 422; Kordić and Čerkez Trial Judgment, 2001, paras 235–236, and Appeal Judgment, 2004, para. 36; Krnojelac Trial Judgment, 2002, para. 324; Blaškić Trial Judgment, 2000, para. 217; Vasiljević Trial Judgment, 2002, para. 205; Naletilić and Martinović Trial Judgment, 2003, para. 248; Tolimir Trial Judgment, 2012, para. 716; Perišić Trial Judgment, 2011, para. 102; Blagojević and Jokić Trial Judgment, 2005, para. 556; Brđanin Trial Judgment, 2004, para. 381; SCSL, Taylor Trial Judgment, 2012, para. 412; Sesay Trial Judgment, 2009, para. 142; Brima Trial Judgment, 2007, para. 688; Fofana and Kondewa Trial Judgment, 2007, para. 146; and ECCC, Kaing Trial Judgment, 2010, para. 333. In Galić, the ICTY Appeals Chamber held that the mens rea was fulfilled if the alleged perpetrator had the intent ‘(i) to kill, or (ii) to inflict serious injury, in reckless disregard of human life’ (Appeal Judgment, 2006, para. 147). For a similar definition, see also Kupreškić Trial Judgment, 2000, paras 560–561.
102 - ICTY, Kvočka Appeal Judgment, 2005, para. 261; Krstić Trial Judgment, 2001, para. 485; Stanišić and Župljanin Trial Judgment, 2013, para. 39; Gotovina Trial Judgment, 2011, para. 1725; Dragomir Milošević Appeal Judgment, 2009, para. 108; Krajišnik Trial Judgment, 2006, para. 715; Hadžihasanović Trial Judgment, 2006, para. 31; Halilović Trial Judgment, 2005, para. 35; Stanišić and Simatović Trial Judgment, 2013, para. 974; ICTR, Setako Appeal Judgment, 2011, para. 257; Nizeyimana Trial Judgment, 2012, para. 1552; and Karemera Appeal Judgment, 2014, para. 670. A similar reasoning emerges from the Second World War cases, where the responsibility of perpetrators was found to be engaged if, owing to their position or skills, they must have been aware of the facts and the likelihood of death; see e.g. United Kingdom, Military Court at Hamburg, Zyklon B case, Trial, 1947, and United States, Military Tribunal at Nuremberg, Von Leeb case, Trial, 1949.
103 - See e.g. ICTY, Mucić Trial Judgment, 1998, para. 435; Perišić Trial Judgment, 2011, para. 104; Delić Trial Judgment, 2008, para. 48; and Strugar Trial Judgment, 2005, para. 235.
104 - See e.g. ICTY, Martić Trial Judgment, 2007, para. 60: ‘The mens rea of murder is the intent to kill, including indirect intent, that is the knowledge that the death of the victim was a probable consequence of the act or omission. This Trial Chamber does not consider it to be sufficient that the perpetrator knew that death would be a possible consequence of his act or omission.’ See also Strugar Trial Judgment, 2005, para. 235: It is now settled that the mens rea is not confined to cases where the accused has a direct intent to kill or to cause serious bodily harm, but also extends to cases where the accused has what is often referred to as an indirect intent. While the precise expression of the appropriate indirect intent has varied between decisions, it has been confirmed by the Appeals Chamber that the awareness of a mere possibility that a crime will occur is not sufficient in the context of ordering under Article 7(1) of the Statute. For further examples, see ICTY, Limaj Trial Judgment, 2005, para. 241; Mrksić Trial Judgment, 2007, para. 486; Boškoski and Tarčulovski Trial Judgment, 2008, para. 305; and ICTR, Zigiranyirazo Trial Judgment, 2008, para. 442.
105 - See ICTY, Tolimir Trial Judgment, 2012, para. 715; Perišić Trial Judgment, 2011, para. 104; Đorđević Trial Judgment, 2011, para. 1708; Delić Trial Judgment, 2008, para. 48; Orić Trial Judgment, 2006, para. 348; and ICTR, Rukundo Trial Judgment, 2009, para. 579.
106 - See e.g. ICTY, Orić Trial Judgment, 2006, para. 348; Brđanin Trial Judgment, 2004, para. 386; Đorđević Appeal Judgment, 2014, paras 546–551; ICTR, Ndindiliyimana Trial Judgment, 2011, para. 2143; and SCSL, Brima Trial Judgment, 2007, para. 690.
107 - See the commentary on the prohibition of torture contained in Article 12, section F.2.c, and in common Article 3, section G.2.e. A violation of the prohibition of torture under common Article 3 does not, however, amount to the grave breach of torture.
108 - It is interesting to note that some national courts, while prosecuting individuals for the war crime or the grave breach of torture, have adopted a similar definition of torture. See Court of Bosnia and Herzegovina, Andrun case, Verdict, 2008, pp. 26–35, at 26: Based on the above-mentioned definition of ‘torture’ in times of armed conflict, the following elements stem: – torture must consist of the infliction, by act or commission, of severe pain, whether physical or mental; – this act or omission must be intentional; – it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person; – it must be linked to an armed conflict; – at least one of the persons involved in the torture must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority-wielding entity.
109 - At first, the International Criminal Tribunals took the view that the definition of torture in the 1984 Convention against Torture reflected customary international law for the purposes of international humanitarian law, and they defined the elements of the crime of torture accordingly; see ICTY, Delalić Trial Judgment, 1998, para. 494, and Furundžija Trial Judgment, 1998, para. 162. For the evolution of the position of the Tribunals, see below. See also the commentary on common Article 3, paras 279–289. For an academic commentary on this evolution, see Christoph Burchard, ‘Torture in the Jurisprudence of the Ad Hoc Tribunals: A Critical Assessment’, Journal of International Criminal Justice, Vol. 6, No. 2, 2008, pp. 159–182, or Elizabeth Santalla Vargas, ‘La múltiple faceta de la tortura y los “otros tratos” en la jurisprudencia de la Corte Interamericana de Derechos Humanos y de los Tribunales Penales Internacionales’, in Eduardo Ferrer Mac-Gregor and Alfonso Herrera García, Diálogo Jurisprudencial en Derechos Humanos: Entre Tribunales Constitucionales y Cortes Internacionales, Tirant lo Blanch, Mexico D.F., 2013, pp. 1317–1320.
110 - See ICTY, Naletilić and Martinović Appeal Judgment, 2006, para. 299.
111 - In contrast, under the 2002 ICC Elements of Crimes, the grave breaches of torture and inhuman treatment are defined in the same way, as the infliction of ‘severe physical or mental pain or suffering upon one or more persons’. The distinction between the two offences was found to be the specific purpose for which torture is inflicted on a protected person. ICC Elements of Crimes (2002), Article 8(2)(a)(ii)-1 and 8(2)(a)(ii)-2.
112 - Some authors have challenged the need to establish a hierarchy of suffering for torture and inhuman treatment; see the commentary on common Article 3, para. 630.
113 - On the mental element of the crime of torture, see paras 2971–2974.
114 - See ICTY, Kvočka Trial Judgment, 2001, para. 143.
115 - The ICTY Chambers have noted that, although the duration over which suffering is inflicted may affect the determination of whether it amounts to torture or to wilfully causing great suffering, no rigid time requirement is built into the definition of either crime. See Naletilić and Martinović Appeal Judgment, 2006, para. 300.
116 - See e.g. ICTY, Kvočka Trial Judgment, 2001, para. 143; Mrkšić Trial Judgment, 2007, para. 514; Krnojelac Trial Judgment, 2002, para. 182; Limaj Trial Judgment, 2005, para. 237; Haradinaj Retrial Judgment, 2012, para. 417; Naletilić and Martinović Appeal Judgment, 2006, para. 300; Brđanin Trial Judgment, 2004, para. 484; and Martić Trial Judgment, 2007, para. 75.
117 - Ibid.
118 - See, in particular, ICTY, Limaj Trial Judgment, 2005, para. 237; Martić Trial Judgment, 2007, para. 75; Mrkšić Trial Judgment, 2007, para. 514; and Brđanin Trial Judgment, 2004, para. 484.
119 - This could be the case for solitary confinement or the deliberate deprivation of food. See e.g. ICTY, Krnojelac Trial Judgment, 2002, para. 183: ‘Solitary confinement is not, in and of itself, a form of torture. However, in view of its strictness, its duration, and the object pursued, solitary confinement could cause great physical or mental suffering of the sort envisaged by this offence.’
120 - See ICTY, Naletilić and Martinović Appeal Judgment, 2006, para. 299; Brđanin Appeal Judgment, 2007, para. 251; and Martić Trial Judgment, 2007, para. 75.
121 - For more details, see the commentary on common Article 3, para. 703.
122 - See ICTY, Kvočka Trial Judgment, 2001, paras 148–149; Limaj Trial Judgment, 2005, para. 236; Haradinaj Retrial Judgment, 2012, para. 417; Mrkšić Trial Judgment, 2007, para. 514; and Brđanin Trial Judgment, 2004, para. 484.
123 - See e.g. ICTY, Kvočka Trial Judgment, 2001, paras 148–149; Limaj Trial Judgment, 2005, para. 236; Haradinaj Retrial Judgment, 2012, para. 417; and Mrkšić Trial Judgment, 2007, para. 514.
124 - For examples, see ICTY, Kunarac Appeal Judgment, 2002, para. 150; Brđanin Trial Judgment, 2004, para. 484; and Stanišić and Župljanin Trial Judgment, 2013, para. 48.
125 - See ICTY, Kvočka Trial Judgment, 2001, para. 149.
126 - See ICTY, Naletilić and Martinović Trial Judgment, 2003, paras 294–295.
127 - ICTY, Brđanin Trial Judgment, 2004, paras 508–511. The Tribunal found that the coercing of these Bosnian Muslim non-combatants to collect the bodies of other members of the ethnic group who had been unlawfully killed, particularly those of their neighbours and friends, and bury them, in the circumstances in which this took place, could not but cause severe pain and suffering. The Trial Chamber, by majority, also found that this was done in order to intimidate the victims.
128 - International Military Tribunal for the Far East, Case of the Major War Criminals, Judgment, 1948, para. 406.
129 - See e.g. Mucić Trial Judgment, 1998, paras 495–496 and 971–977; Naletilić and Martinović Trial Judgment, 2003, paras 350–352; Brđanin Trial Judgment, 2004, paras 492, 503–511 and 524; Martić Trial Judgment, 2007, para. 76.
130 - On these issues, see Mettraux, pp. 110–116, at 114, citing ICTY, Krnojelac Trial Judgment, 2002, para. 219.
131 - This is the case under Article 1 of the 1984 Convention against Torture.
132 - ICTY, Furundžija Appeal Judgment, 2000, para. 111, citing Furundžija Trial Judgment, 1998, para. 162.
133 - ICTY, Kunarac Appeal Judgment, 2002, para. 148. This finding was upheld in ICTY, Kvočka Appeal Judgment, 2005, para. 284; Limaj Trial Judgment, 2005, para. 240; Haradinaj Retrial Judgment, 2012, para. 419; Mrkšić Trial Judgment, 2007, para. 514; Brđanin Trial Judgment, 2004, para. 488; and Stanišić and Župljanin Trial Judgment, 2013, para. 49.
134 - Mettraux, p. 111, citing ICTY, Delalić Trial Judgment, 1998, para. 495.
135 - This issue has not been dealt with by the international criminal tribunals, but is included in the definition of torture in Article 1 of the 1984 Convention against Torture, Article 2(2) of the 1985 Inter-American Convention against Torture and Article 7(2)(e) of the 1998 ICC Statute. The last defines torture as a crime against humanity.
136 - See e.g. ICTY, Krnojelac Trial Judgment, 2002, para. 180; Haradinaj Retrial Judgment, 2012, para. 418; and Brđanin Trial Judgment, 2004, para. 486.
137 - ICTY, Delalić Trial Judgment, 1998, para. 470.
138 - For examples, see ICTY, Limaj Trial Judgment, 2005, para. 239; Mrkšić Trial Judgment, 2007, para. 515; Haradinaj Retrial Judgment, 2012, para. 418; Martić Trial Judgment, 2007, para. 77; and Brđanin Trial Judgment, 2004, para. 486.
139 - See ICTY, Kunarac Trial Judgment, 2001, para. 485; Delalić Trial Judgment, 1998, paras 470–472; and Krnojelac Trial Judgment, 2002, para. 185.
140 - See the commentary on common Article 3, paras 640–644.
141 - See ICTY, Furundžija Trial Judgment, 1998, para. 162, and Kvočka Trial Judgment, 2001, paras 131, 152 and 157. Other trial chambers did not follow suit in this regard; see e.g. ICTY, Krnojelac Trial Judgment, 2002, para. 186. See also Mettraux, p. 114.
142 - See, in particular, ICTY, Kvočka Trial Judgment, 2001, para. 153; Krnojelac Trial Judgment, 2002, para. 184; Kunarac Appeal Judgment, 2002, para. 155; Haradinaj Trial Judgment, 2008, para. 128, and Retrial Judgment, 2012, para. 418; Limaj Trial Judgment, 2005, para. 239; Martić Trial Judgment, 2007, para. 77; Mrkšić Trial Judgment, 2007, para. 515; and Brđanin Trial Judgment, 2004, para. 484.
143 - See ICTY, Kunarac Appeal Judgment, 2002, para. 153, reaffirmed in Limaj Trial Judgment, 2005, para. 238; see also Mrkšić Trial Judgment, 2007, para. 515.
144 - ICTY, Kunarac Appeal Judgment, 2002, para. 153.
145 - See e.g. ICTY, Krnojelac Trial Judgment, 2002, para. 184; Kunarac Trial Judgment, 2001, para. 497; Furundžija Trial Judgment, 1998, para. 162; and ICTR, Akayesu Trial Judgment, 1998, para. 594.
146 - See e.g. ICTY, Kunarac Appeal Judgment, 2002, para. 153; Mrkšić Trial Judgment, 2007, para. 515; Haradinaj Retrial Judgment, 2012, para. 418; and Limaj Trial Judgment, 2005, para. 238.
147 - ICTY, Delalić Trial Judgment, 1998, para. 543.
148 - See First Convention, Article 12; Second Convention, Article 12; Third Convention, Articles 13, 20 and 46; Fourth Convention, Articles 27 and 32; common Article 3; Additional Protocol I, Articles 10 and 75; and Additional Protocol II, Articles 4(1) and 7(2).
149 - ICTY, Delalić Trial Judgment, 1998, para. 532.
150 - In the First Convention, this principle is contained in Article 12. The obligation to treat people humanely is also included in common Article 3, but its violation does not amount to the grave breach of inhuman treatment as defined in Article 50.
151 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 731.
152 - See also the commentary on humane treatment in common Article 3, section F.1.b, and in Article 12, section F.1.a.
153 - See, in particular, ICTY, Delalić Trial Judgment, 1998, paras 516–544, and Appeal Judgment, 2001, para. 446; Naletilić and Martinović Trial Judgment, 2003, para. 236; Kordić and Čerkez Trial Judgment, 2001, para. 256, and Appeal Judgment, 2004, para. 39; Blaškić Trial Judgment, 2000, paras 154–155; and Prlić Trial Judgment, 2013, para. 113.
154 - See Dörmann, pp. 63–64.
155 - Under the ICC Elements of Crimes, inhuman treatment is defined as the infliction of ‘severe physical or mental pain or suffering upon one or more persons’. The main distinction between torture and inhuman treatment under the ICC Statute consists in the requirement that the pain or suffering be inflicted for a purpose if it is to amount to the grave breach of torture. ICC Elements of Crimes (2002), Article 8(2)(a)(ii)-1 and 8(2)(a)(ii)-2.
156 - As with respect to torture, similar objective and subjective factors have been used to determine the level of seriousness of the conduct and whether it amounts to inhuman treatment. For more details, see the discussion of the grave breach of torture in paras 58–61 and the commentary on cruel treatment in common Article 3, paras 262–273.
157 - See e.g. ICTY, Delalić Appeal Judgment, 2001, para. 426, and Trial Judgment, 1998, para. 442.
158 - See, in particular, ICTY Blaškić Trial Judgment, 2000, paras 713–716 and 738, and Prlić, Trial Judgment, 2013, para. 115.
159 - See e.g. ICTY Prlić Trial Judgment, 2013, paras 117–119.
160 - See e.g. ICTY, Orić Trial Judgment, 2006, para. 352. For other examples stemming from human rights case law, see ICTY, Delalić Trial Judgment, 1998, paras 534–541, and Dörmann, pp. 66–69.
161 - See ICTY, Prlić Trial Judgment, 2013, para. 116.
162 - See Court of Bosnia and Herzegovina, Andrun case, Verdict, 2008, p. 36: [T]he Accused deliberately and intentionally prevented the International Red Cross in its humanitarian mission in order to cause severe mental suffering to the detainees. The witness Enver Bojčić said that it was psychologically devastating for them and that they saw the act concerned as they were outside the law and that they could be killed by anyone. The perpetrator was found guilty of inhumane treatment.
163 - See e.g. ICTY Aleksovski Trial Judgment, 1999, para. 56, and Prlić Trial Judgment, 2013, para. 120.
164 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 381, where delegates discussed the choice of terms, and p. 191.
165 - Hence the text of Article 50, which reads: ‘… wilful killing, torture or inhuman treatment, including biological experiments’.
166 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 248.
167 - See United States, Military Tribunal at Nuremberg, The Medical Trial, Judgment, 1947.
168 - See Takashi Tsuchiya, ‘Why Japanese doctors performed human experiments in China in 1933–1945’, Eubios Journal of Asian and International Bioethics, Vol. 10, No. 6, November, 2000, pp. 179–180. See also The Economist, ‘Digging up Japan’s past: Deafening silence – An investigation into wartime atrocities, but the media keeps strangely quiet’, 24 February 2011.
169 - See Sheldon H. Harris, ‘Medical Experiments on POWs’, in Roy Gutman, David Rieff and Anthony Dworkin (eds), Crimes of War: What the Public Should Know, 2nd edition, W.W. Norton & Company, New York, 2007, pp. 287–288.
170 - See United States, Military Tribunal at Nuremberg, The Medical Trial, Judgment, 1947. There were also other trials dealing with this war crime; see e.g. Poland, Supreme National Tribunal, Hoess case, Trial Judgment, 1947, and United States, Military Tribunal at Nuremberg, Milch case, Trial, 1947.
171 - For a review of these principles, see Dörmann, pp. 73–74.
172 - See Article 11(2) of Additional Protocol I: ‘It is, in particular, prohibited to carry out on such persons, even with their consent … medical or scientific experiments.’
173 - See Henckaerts/Doswald-Beck, commentary on Rule 92, making reference to many international instruments and official statements, as well as case law, which refer to this prohibition without specifically mentioning a possible exception if the detained person consents to the procedure.
174 - This point is also made in footnote 46 to the 2002 ICC Elements of Crimes concerning the war crime of medical or scientific experiments under Article 8(2)(b)(x)-2 of the 1998 ICC Statute, which reads: ‘Consent is not a defence to this crime.’
175 - It is important to note that in the 2002 ICC Elements of Crimes as they pertain to the war crime of medical or scientific experiments, States used the threshold of Article 13 of the Third Convention, and required that the experiment should either cause death or seriously endanger the physical or mental health or integrity of a person or persons.
176 - This is borrowed from the wording of Article 11(1) of Additional Protocol I and fn. 46 to the 2002 ICC Elements of Crimes regarding the war crime of medical or scientific experiments.
177 - See Council for International Organizations of Medical Sciences, International Ethical Guidelines for Epidemiological Studies, Geneva, February 2008, and International Ethical Guidelines for Biomedical Research Involving Human Subjects, Geneva, 2002.
178 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 191: Biological experiments. The Committee discussed at great length whether these words required definition, and more particularly whether their scope ought not to be restricted by adding, for example: ‘not necessary for their medical treatment’. In reality, however, the world [sic] biological, in its generally accepted sense, does not apply to therapeutic treatment, whether medical or surgical.
179 - See Dörmann, pp. 236–239.
180 - See ICTY, Naletilić and Martinović Trial Judgment, 2003, para. 341; Delalić Trial Judgment, 1998, paras 442 and 508; Kordić and Čerkez Trial Judgment, 2001, para. 244; Blaškić Trial Judgment, 2000, para. 156; and ECCC, Kaing Trial Judgment, 2010, para. 453.
181 - See ICTY, Kordić and Čerkez Trial Judgment, 2001, para. 245. For the differences and similarities between inhuman treatment and wilfully causing great suffering, see para. 2982. There is a great deal of overlap between these two offences. The ICTY has held that “… all acts or omissions found to constitute torture or wilfully causing great suffering or serious injury to body or health would also constitute inhuman treatment”; Delalić Trial Judgment, 1998, para. 442.
182 - For more details on mutilation, see the commentary on common Article 3, section G.2.c.
183 - See Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 372.
184 - See e.g. ICTY, Delalić Trial Judgment, 1998, paras 1012–1018, where the accused was found guilty of the grave breach of causing great suffering or serious injury to body or health for having tied a victim to a roof beam, beaten him, struck him with a baseball bat, and poured gasoline on his trousers, setting them on fire and burning his legs.
185 - See ibid. paras 506–511, in particular para. 509. See also ECCC, Kaing Trial Judgment, 2010, paras 450–455.
186 - See ICTY, Blaškić Trial Judgment, 2000, para. 156; Delalić Appeal Judgment, 2001, para. 424; Kordić and Čerkez Trial Judgment, 2001, para. 245; and Naletilić and Martinović Trial Judgment, 2003, para. 339.
187 - See Dörmann, p. 76.
188 - ICTY, Delalić Trial Judgment, 1998, para. 510.
189 - Mettraux, p. 76. See ICTY, Krnojelac Trial Judgment, 2002, para. 131, and Delalić Trial Judgment, 1998, para. 536, citing European Court of Human Rights, A v. UK, Judgment, 1998, para. 20.
190 - ICTR, Akayesu Trial Judgment, 1998, para. 502. This statement was made in relation to the crime of genocide by causing serious bodily or mental harm to members of the group.
191 - ECCC, Kaing Trial Judgment, 2010, para. 454. See also ICTY, Krstić Trial Judgment, 2001, paras 511–513.
192 - See Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 3474. The French version of the commentary uses the term ‘dol éventuel’ for ‘recklessness’. See e.g. ICTY, Blaškić Trial Judgment, 2000, para. 152, which affirms that: ‘[T]he mens rea constituting all the violations of Article 2 of the Statute includes both guilty intent and recklessness which may be likened to serious criminal negligence.’ This view is also supported by various decisions emerging from the war crimes trials after the Second World War, such as the 1946 Gerike case before the UK Military Court at Brunswick and the 1946 Tyrolt case before the UK Military Court at Helmstedt.
193 - See ECCC, Kaing Trial Judgment, 2010, para. 454, and ICTY, Blaškić Trial Judgment, 2000, para. 152.
194 - See e.g. ICTY, Martić Trial Judgment, 2007, para. 60, and Strugar Trial Judgment, 2005, para. 235. For further details, see the commentary on wilful killing, para. 2957.
195 - For examples, see ICTY, Tolimir Trial Judgment, 2012, para. 716; Perišić Trial Judgment, 2011, para. 104; Đorđević Trial Judgment, 2011, para. 1708; Delić Trial Judgment, 2008, para. 48; Orić Trial Judgment, 2006, para. 348; and ICTR, Rukundo Trial Judgment, 2009, para. 579, mostly in relation to the interpretation of the word ‘wilful’ for the crime of wilful killing or murder.
196 - See, in particular, Hague Regulations (1907), Articles 23(g), 28, 46, 47 and 52–56, and Additional Protocol I, Articles 52–56.
197 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 117.
198 - See the commentary on Article 33, para. 2340. The obligation not to destroy the material of fixed and mobile medical establishments applies to the property of the enemy as well as to each Party’s own property.
199 - See Articles 19 and 35.
200 - See Article 33(3).
201 - See the commentary on Article 21, section C.1 and Article 22.
202 - For a study of the concept of military necessity, see Jean de Preux, ‘Article 35’, in Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, paras 1389–1397, and ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, by Nils Melzer, ICRC, Geneva, 2009, pp. 78–82. The ICTY has used the definition of military necessity contained in Article 14 of the 1863 Lieber Code as ‘the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.’ See Kordić and Čerkez Appeal Judgment, 2004, para. 686, and Prlić Trial Judgment, 2013, para. 168. The ICC also used Article 14 of the 1863 Lieber Code and noted that ‘only “imperative” reasons of military necessity, where the perpetrator has no other option in this regard, could justify acts of destruction which would otherwise be proscribed by this provision’; Katanga Trial Judgment, 2014, para. 894.
203 - See Jean de Preux, ‘Article 35’, in Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 1389.
204 - See ICTY, Brđanin Trial Judgment, 2004, para. 587; Naletilić and Martinović Trial Judgment, 2003, para. 576; and Prlić Trial Judgment, 2013, para. 126. See also Blaškić Trial Judgment, 2000, para. 157.
205 - See ICTY, Blaškić Trial Judgment, 2000, para. 157. It might be noted that the French translation of ‘extensive’ in Article 50 is ‘executées sur grande échelle’ (‘on a large scale’).
206 - Bryan A. Garner (ed.), Black’s Law Dictionary, 10th edition, Thomson Reuters, 2014, p. 1815. It goes on to say that ‘one acting wantonly may be creating no greater risk of harm, but he is not trying to avoid it and is indifferent to whether harm results or not. Wanton conduct has properly been characterized as “vicious” and rates extreme in the degree of culpability’; Black’s Law Dictionary citing Rollin M. Perkins and Ronald N. Boyce, Criminal Law, 3rd edition, 1982, pp. 879–880.
207 - See ICTY, Brđanin Trial Judgment, 2004, para. 589; Naletilić and Martinović Trial Judgment, 2003, para. 577(iv) and fn. 1440; Kordić and Čerkez Trial Judgment, 2001, para. 341(iii); and Prlić, Trial Judgment, 2013, paras 127 and 131. See also Badar, 2006, pp. 343–346.