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Commentary of 1987 
[p.973] Part V, Section II -- Repression of breaches of the Conventions and of this Protocol


3398 This Section supplements the articles of the Conventions relating to the repression of breaches, (1) while extending the application of that system of repression to breaches of the Protocol. It therefore seems necessary to review, in the following order: the system of repression laid down in the Conventions; "grave breaches" as defined by the Conventions; new elements and clarifications introduced by the Protocol; other elements contained in international criminal law. (2)

[p.974] 3399 In addition, as a proposal for a general article on reprisals had been submitted and discussed in the context of this Section, which was finally rejected, we will devote a special passage to that question.

The repression system of the Conventions

3400 In accordance with the relevant common article of the Conventions 49 /50 /129 / 146 ) the Contracting Parties undertake to:

a) enact any legislation necessary (3) for the repression of grave breaches defined by the Conventions; (4)
b) suppress all acts contrary to the Conventions other than grave breaches;
c) prosecute and try persons alleged to have committed, or to have ordered to be committed, any such grave breaches. It is also possible to hand such persons over for trial to another Contracting Party interested in prosecuting them.

[p.975] 3401 Thus the Conventions make a distinction between grave breaches and other breaches: any conduct (5) contrary to their provisions constitutes a breach; as for grave breaches, these are listed and individually defined.

3402 The Contracting Parties are obliged to "suppress" conduct contrary to their provisions other than grave breaches. The term "suppress" (in French: ' faire ' ' cesser, ' i.e., put an end to...) should be understood in a broad sense: literally of course this means putting an end to such conduct; depending on its gravity and the circumstances, (6) such conduct can and should lead to administrative, disciplinary or even penal sanctions -- in accordance with the general principle that every punishment should be proportional to the severity of the breach. (7)

3403 Grave breaches have two special aspects. One is the duty of the Contracting Parties to take any legislative measure necessary to establish adequate penal sanctions to be imposed on persons who have committed, or have ordered to be committed, any such breaches. The other is that such breaches are subject to universal jurisdiction. Each Contracting Party (8) must search for persons alleged to have committed, or to have ordered to be committed, any such grave breach. In accordance with the principle ' aut dedere aut judicare ' (9) it must either bring such persons regardless of their nationality, before its own courts, or, if it prefers, and in accordance with the provisions of its own legislation, it must hand them over for trial to another Contracting Party interested in prosecuting them, provided it has made out a ' prima facie ' case against them. Regardless of the rules contained in criminal law or the law relating to extradition of each Contracting Party, universal jurisdiction provides an alternative which should not leave any loophole. (10)

3404 The accused enjoy procedural guarantees and free defence which will ensure them a fair trial and which are at least equivalent to those laid down in Articles 105 ff of the Third Convention; they are entitled, in particular: to assume their defence, to be assisted by a qualified defence lawyer, to intervention by the [p.976] Protecting Power and to appeal against any sentence with a view to quashing or revising it or to the reopening of the trial.

Grave breaches as defined by the Conventions

3405 The following are acts which constitute grave breaches of the Conventions (respectively Arts. 50 /51 /130 /147 ): (11)

-- wilful killing;
-- torture or inhuman treatment, including biological experiments;
-- wilfully causing great suffering or serious injury to body orhealth;
-- extensive destruction and appropriation of property, notjustified by military necessity and carried out unlawfully and wantonly;
-- compelling a prisoner of war or a protected person under the Fourth Convention to serve in the forces of a hostile Power;
-- depriving a prisoner of war or a protected person under the Fourth Convention of the rights of fair and regular trial prescribed in the Conventions;
-- taking of hostages;
-- unlawful confinement of protected persons under the Fourth Convention;
-- unlawful deportation or transfer of protected persons under the Fourth Convention.

3406 In order to constitute grave breaches such acts must be committed against persons or property protected by the Conventions. Protected persons are:

-- the wounded and sick, and members of medical and religious personnel (First Convention);
-- the wounded, sick and shipwrecked, religious, medical and nursing personnel of hospital ships and their crew, medical and religious personnel of other ships (Second Convention);
-- prisoners of war (Third Convention);
-- civilians who, in case of conflict or occupation, find themselves in the hands of a Party to the conflict, or of an Occupying Power, of which they are not nationals (12) (Fourth Convention).

[p.977] 3407 Protected objects are:

-- hospitals, ambulances, medical equipment and vehicles (First Convention);
-- hospital ships, coastal rescue craft and coastal medical installations (Second Convention);
-- civilian hospitals and their equipment and in occupied territory movable or immovable property (Fourth Convention).

New elements and clarifications introduced by the protocol

3408 These may be summarized as follows:

-- the system of repression of the Conventions is supplemented, or clarified on certain points, by Articles 86 -91 of the Protocol;
-- the system of repression of the Conventions, as supplemented by the Protocol, applies to breaches of the Protocol (Article 85 -- ' Repression of breaches of this Protocol, ' paragraph 1);
-- acts described as grave breaches in the Conventions are grave breaches of the Protocol if they are committed against new categories of persons and objects protected under the Protocol (Article 85 -- ' Repression of breaches of this Protocol, ' paragraph 2);
-- the list of grave breaches is supplemented (Article 11 -- ' Protection of persons, ' paragraph 4, and Article 85 -- ' Repression of breaches of this Protocol, ' paragraphs 3 and 4);
-- judicial guarantees are set out in detail and the list is enlarged (Article 75 -- ' Fundamental guarantees, ' paragraph 4);
-- grave breaches of the Conventions and the Protocol are qualified as war crimes (Article 85 -- ' Repression of breaches of this Protocol, ' paragraph 5; Article 75 -- ' Fundamental guarantees, ' paragraph 7); this does not, however, affect the application of these instruments.

International criminal law

3409 On the one hand, penal provisions of international humanitarian law constitute only part of international humanitarian law; on the other hand, they constitute only part of international penal law applicable in case of armed conflict. Below we will first refer to the relevant treaties, other instruments and documents, and thereafter to some aspects of repression regarding which those materials give some enlightenment.

a) ' Treaties, instruments and documents '

-- ' Agreement for the prosecution and punishment of the Major War Criminals of the European Axis, establishing an International Military Tribunal, ' concluded [p.978] in London on 8 August 1945 between France, the United Kingdom, the United States, and the USSR; (13)
-- ' Charter of the International Military Tribunal ' (Nuremberg), annexed to the above Agreement;
-- ' Charter of the International Military Tribunal for the Trial of Major War Criminals in the Far East ' (Tokyo), 19 January 1946, which contains principles similar to those of the above-mentioned Charter; (14)
-- ' Convention on the Prevention and Punishment of the Crime of Genocide ' of 9 December 1948 (15)
-- Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal: ' in Resolutions 95 (I) of 11 December 1946 and 177 (II) of 21 November 1947 the United Nations General Assembly affirmed the Principles of International Law recognized by the Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal, and requested the International Law Commission to formulate these principles; this was to be done within or outside the context of a ' draft code of offences against the peace and the security of mankind, ' which the ILC was also requested to prepare. The formulation of the Principles and the first Draft Code were submitted to the General Assembly in 1950 and 1951 respectively. (16)
-- ' Convention for the Protection of Cultural property in the Event of Armed Conflict ' of 14 May 1954. (17)
-- Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity ' of 26 November 1968; (18)
-- ' Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity ' of 3 December 1973; (19)
-- in addition, mention should be made of the Convention against the taking of hostages and the one on torture, concluded under the auspices of the United [p.979] Nations, as well as the draft convention on terrorism which is being considered by the United Nations; (20)
-- finally, questions such as mutual assistance in judicial matters and extradition are also dealt with in treaties concluded in the context of regional organizations.

b) ' Elements contained in the above-mentioned materials '

' Relation to humanitarian law '

3410 Several of the instruments mentioned deal with breaches of humanitarian law, either in a general and descriptive way, or in a concrete and specific way. The Nuremberg Charter, the 1950 version of the Nuremberg Principles and the Draft Code (1954 version) all apply to violations of the laws and customs of war (the first two, with examples). The Convention on statutory limitations explicitly mentions "grave breaches" of the Geneva Conventions.

' Penal responsibility '

3411 Humanitarian law provides that those who have committed a grave breach and those who have ordered a grave breach to be committed must be punished (21) Thus the principal (offenders) as well as the secondary parties (joint offenders) are liable to punishment, i.e., those who have personally performed acts (including failure to act), which includes those who did abet or organize the crime. (22)

3412 It should be recalled that accessory accomplices are also punishable, i.e., anyone who has not taken part as a direct or principal actor in materially committing the breach, but who has helped the offender or joint offenders in preparing or perpetrating the breach and who has incidentally co-operated. (23)

3413 As formulated by the International Law Commission in 1950, the Nuremberg Principles lay down the responsibility of any persons committing war crimes and any accomplices, all of whom are considered guilty of crimes under international [p.980] law (Principles I, VI and VII). (24) The Convention on genocide covers, apart from those who have committed the crime of genocide, also those guilty of conspiracy to commit genocide, (25) those guilty of direct and public incitement to commit that crime, and those who are guilty of complicity (Article III ). The Convention on statutory limitations covers the same persons in similar terms, as well as representatives of the State who tolerated the commission of the defined crimes Article II ). (26)

' Attempt '

3414 Humanitarian law does not specify whether the attempt of a grave breach is also punishable, i.e., when the commission of the act in question has begun but has been suspended or has failed to have effect as a result of circumstances outside the control of the person who had begun committing the act. (27)

3415 The Nuremberg Principles do not refer to it in the formulation of 1950. (28) The Convention on genocide provides that the attempt is also punishable (Article III ). The Convention on statutory limitations applies only to crimes of which the material constitutive elements (i.e., the results) have been realized, except if there was conspiracy: no statutory limitation will apply to conspiracy to commit any of the defined crimes "irrespective of the degree of completion" of the crime (Article II ).

3416 At the present stage of development of the law we find that under the relevant treaties the attempt to commit a grave breach or a similar crime is not always subject either to universal jurisdiction or to penal suppression. However, the attempt will be subject to penal or disciplinary sanctions under national legislation whenever this is felt to be desirable.

' Mutual assistance in criminal matters and extradition '

3417 These questions will be treated in relation to Article 88 ' (Mutual assistance in criminal matters). ' (29)

[p.981] ' Statutory limitation '

3418 Humanitarian law does not specify whether the prosecution of persons suspected of having committed grave breaches and whether the execution of sentences pronounced on them can be frustrated by provisions of national law relating to statutory limitation. (30)

3419 Since the end of the Second World War many States and writers have considered that neither the prosecution nor the punishment of war crimes and crimes against humanity can be precluded by lapse of time; in any case many of them hold the view that the statutory limitation of such crimes cannot be invoked because international law, which punishes such crimes, does not mention statutory limitation, which is only an exception or derogation from the ordinary rules of law. (31)

3420 National legislation with regard to statutory limitation varies from country to country. Some do not have it at all, others apply it to all crimes, others still exempt war crimes and crimes against humanity from the rules of statutory limitation, or only exempt one of these categories.

3421 The limited number of Parties to the United Nations Convention on the Non-Applicability of Statutory Limitations (32) and the fact that the European Convention on the same subject is not yet in force, should not be seen in too negative a light. In fact, many of the countries which are not Parties to these conventions do not have statutory limitation or have restricted it in case of war crimes and crimes against humanity. (33)

3422 We may conclude that there is a general, though not universal recognition of the non-applicability of statutory limitations to such crimes and that the scope of the recognition varies, depending on the treaty or national legislation considered. (34)

[p.982] Reprisals

3423 Contrary to the wishes of a number of the delegations at the Diplomatic Conference, the Protocol does not contain a general provision on reprisals.

3424 Two competing proposals were submitted to this end: on the one hand, a prohibition of all reprisals against persons and objects protected under the Conventions and the Protocol; on the other hand, a prohibition subject to exceptions depending on conditions and methods. The simultaneous withdrawal of these two contradictory proposals at an advanced stage in the Conference confirmed the choice made in the draft, namely a series of separate prohibitions in various different articles. (35)

3425 In order to better understand the points of view which emerged at the Conference and the solution which was adopted, it is useful to give a brief historical summary. (36)

' Definition '

3426 Reprisals are stern measures taken by one State against another for the purpose of putting an end to breaches of the law of which it is the victim or to obtain reparation for them. Although such measures are in principle against the law, they are considered lawful by those who take them in the particular circumstances in which they are taken, i.e., in response to a breach committed by the adversary.

3427 In this particular context we do not intend to deal with reprisals in general, but only in the context of armed conflict, i.e., in ' jus in bello. ' In the law of armed conflicts, reprisals exercised by the belligerents can be defined as compulsory measures, derogating from the ordinary rules of such law, taken by a belligerent following unlawful acts to its detriment committed by another belligerent and which intend to compel the latter, by injuring it, to observe the law. (37)

3428 Reprisals have constituted the most important means of coercion available to States for a long time, particularly in the conduct of hostilities.

3429 They should not be confused with measures of retortion, which are also stern measures taken in response to another State's actions and designed to put an end to them, whether or not these actions were lawful, but with the difference that the measures used remain in conformity with the law.

3430 A distinction should also be made between reprisals and straightforward reciprocity, which implies identical conduct to that of the adversary, but without necessarily the concept of punishment in response to a violation. (38)

[p.983] 3431 Finally, a distinction should be made between reprisals and self-defence. The main difference between them is that in case of self-defence force is used to directly rebut an attack or counter some other form of prejudicial conduct, while reprisals are designed to force the adversary to change its conduct.

' The law up to 1929 ' (39)

3432 Various attempts to deal with reprisals in the context of the international law of armed conflict had been undertaken without ever reaching the stage of adopting treaty rules. Mention should be made of the draft submitted by Russia at the Brussels Conference of 1874, (40) and the Oxford Manual adopted by the Institute of International Law in 1880. (41) The Peace Conferences held in The Hague in 1899 and 1907, which adopted the two successive versions of the Convention Respecting the Laws and Customs of War on Land, did not go directly into the question of reprisals nor did they adopt any provision relating to this matter. (42)

3433 However, the idea persisted that reprisals should be prohibited, or at least that they should be subject to rules when it proved impossible to renounce them. In fact measures of reprisal are contrary to the principle that no one may be punished for an act that he has not personally committed; they constitute an inadequate means of restoring respect for the law, particularly in view of the counter-reprisals which they may provoke, and all this is likely to lead to a general escalation of the conflict.

3434 During the First World War, reprisals greatly worsened the fate of victims, and in 1916, in a notable appeal, the ICRC put forward the idea of prohibiting them totally against prisoners of war.

3435 Subsequently the Diplomatic Conference of 1929 supported the total prohibition of reprisals against prisoners of war. This constituted a considerable step forward in the development of humanitarian law.

' The 1949 Conventions '

3436 In 1949, the prohibition adopted in 1929 was extended to cover reprisals against all categories of persons and objects protected under the four Conventions. (43)

3437 from that time international law established the prohibition of reprisals against any military personnel or civilians protected under the Geneva Conventions; rights conferred by these instruments could no longer be annulled or diminished [p.984] as a result of breaches of which the protected persons were innocent whatever the original breach may have been. That the Conventions were able to prohibit reprisals was due to the fact that they provided other means of ensuring respect for the law, such as supervision and sanctions. (44)

3438 It should be noted at this point that the Hague Convention of 14 May 1954 for the Protection of Cultural Property in the Event of Armed Conflict prohibits any measures of reprisal against cultural property.

3439 However, the question was only resolved within the area indicated above. From the humanitarian point of view the crucial problem to be dealt with was the prohibition of reprisals against the civilian population in the conduct of hostilities.

' The Conference of Government Experts (1971-1972) '

3440 On the basis of documentation from the ICRC on this subject, (45) the ' first session ' of the Conference was divided into two tendencies.

3441 for some, reprisals should no longer be considered as a legitimate means of exacting the application of the law; as reprisals were among the most barbarous methods of the traditional laws of war, they should henceforth be deemed abolished, or at least be made subject to far-reaching restrictions to be defined in as precise a way as possible.

3442 for others reprisals undertaken by belligerents were still part of the law of armed conflict and represented a reasonably effective method in the conduct of hostilities.

3443 For its part the ICRC considered that the restrictions on reprisals imposed by the requirements of humanity in the conduct of hostilities should be forcefully reaffirmed. In this connection it mentioned the three principles of subsidiarity, proportionality and humanity.

3444 Finally, it was recalled that Resolution 2675 (XXV) of the United Nations General Assembly entitled "Basic Principles for the Protection of Civilian Populations in Armed Conflicts" confirms the prohibition of reprisals against the civilian population. (46)

3445 The proposals submitted by the ICRC to the ' second session ' of the Conference included provisions prohibiting attacks directed by way of reprisals against the civilian population, civilians or objects indispensable to the survival of the civilian population. Another article imposed in particular minimum conditions that would apply to reprisals when a belligerent believed that it had to resort to reprisals in a field where they are not prohibited by the law in force. (47)

[p.985] 3446 The views expressed were as divergent as during the first session. Some experts considered any new provision as unnecessary as reprisals were already prohibited. Others were in favour of provisions prohibiting reprisals against civilians and civilian objects and rules to which reprisals taken in the conduct of hostilities would be subject. Others still considered that reprisals should be made subject to general rules. (48)

' The Diplomatic Conference ' (49)

3447 During the Diplomatic Conference the same views emerged as during the Conference of Government Experts, and its work leaves a number of questions unanswered.

3448 Taking into account the opinions expressed by government experts, the ICRC had included, in its draft, provisions prohibiting reprisals against the wounded, sick and shipwrecked, the civilian population, civilians and objects indispensable to the survival of the civilian population. Contrary to the 1972 draft, it had not included provisions reaffirming certain rules regulating and restricting the right of Parties to the conflict to use reprisals not yet prohibited by the law in force in the conduct of hostilities: the ICRC had submitted to the view of the majority of experts. (50)

3449 Committees II and III adopted the prohibitions of reprisals in the draft, as well as new prohibitions, each in the Parts with which they were entrusted. (51) After some hesitation the General Committee of the Conference assigned Committee I with the task of examining the problem of reprisals as a whole, taking into account the work already carried out by Committees II and III. (52)

3450 It proved impossible to reconcile the different points of view. Some again confirmed that the use of reprisals, subject to certain exceptions, conditions and means, or, if possible, only the threat of such measures, were and should remain available as a response in the case of serious, manifest and deliberate violations: to deny this would be to benefit the Party violating the law to the detriment of [p.986] that respecting it. It was better to discuss a proposal on specific rules than to leave reprisals to the uncertain rules of customary law under which they are allowed. (53)

3451 Others considered that reprisals were already, or should be, prohibited in general, though it was not always clear from the statements whether this concerned reprisals against protected persons and objects -- to be defined -- or against all persons and objects; they did not consider reprisals to be an effective means of restoring respect for the law, but a mechanism which could serve as a pretext for the worst abuses, no matter what rules might be adopted. (54)

3452 Finally, some considered that it was not possible to introduce in humanitarian law a legal sanction of the laws of war which had always been considered to be incompatible with the principle of humanity; others still thought that the Conference was only competent to deal with reprisals exercised exclusively against protected persons or objects. (55)

' The law which has resulted from the Diplomatic Conference '

3453 As the conflicting proposals were withdrawn in a spirit of compromise because of the impossibility of reaching an agreement, the legal situation resulting from the adoption of the Protocol now remains to be determined.

3454-- Reprisals against persons and objects protected by the Conventions are prohibited. (56)

3455-- Reprisals against the persons and objects covered by the following provisions of the Protocol are prohibited:

-- Article 20 ' (Prohibition of reprisals) ' (persons and objects protected by Part II -- ' Wounded, sick and shipwrecked); '
-- Article 51 ' (Protection of the civilian population), ' paragraph 6;
-- Article 52 ' (General protection of civilian objects), ' paragraph 1;
-- Article 53 ' (Protection of cultural objects and places ofworship), ' subparagraph (c);
-- Article 54 ' (Protection of objects indispensable to thesurvival of the civilian population), ' paragraph 4;
-- Article 55 ' (Protection of the natural environment), ' paragraph 2;
-- Article 56 ' (Protection of works and installationscontaining dangerous forces), ' paragraph 4.

3456-- Some expressed the fear that by adopting provisions prohibiting reprisals in specific cases, some persons and objects might be overlooked. (57) In fact, apart [p.987] from these prohibitions, the Conventions and the Protocol incontestably prohibit any reprisals against any person who is not a combatant in the sense of Article 43 ' (Armed forces), ' (58) and against any object which is not a military objective.

3457-- There was one area in which the Conference did not wish to get involved and for which it did not want to lay down explicit rules, namely, the conduct of hostilities between combatants. Yet, the discussions about this have shown agreement on the following minimum restrictions, inspired by customary law and formulated in various ways during the ' travaux préparatoires: ' (59)

- ' subsidiarity: ' reprisals may only be taken in the case of imperative necessity when all other means have proved ineffective and after a specific, formal and prior warning has been given that such measures would be taken if the breach did not cease or if it recommenced, and the warning remained ineffective; such a decision can only be taken by the highest authorities of the Party to the conflict; the reprisals will end as soon as they have achieved their purpose, i.e., the cessation of the breach which provoked them;
-- ' proportionality: ' in deciding upon the way in which reprisals will be applied and upon their extent the utmost restraint must be exercised consistent with the purpose they are to serve, namely, to lead the adversary to respect the law; the degree of severity of the reprisals shall in no case exceed that of the breach committed by the enemy;
- ' humanity: ' in all cases Parties to the conflict must espect the laws of humanity and the dictates of the public conscience.

3458-- Unlawful reprisals do not render lawful the recourse to counter-reprisals by the adversary consisting of measures which are, even as a reprisal, prohibited.

3459-- The prohibition of reprisals cannot be suspended because of material violation of treaties of humanitarian law. This might be derived directly from the definition of reprisals, the ' raison d'être ' of the specific above-mentioned prohibitions. Any doubt which might arise from Article 60 of the Vienna Convention of 29 May 1969 (60) on the Law of Treaties, which provides for termination or suspension after a material breach of a treaty, is removed by the same article. Indeed this article states that its provisions are subject to specific treaty provisions applicable in the event of a breach (paragraph 4), in particular those relating to the protection of the human person in treaties of a humanitarian character, including provisions prohibiting reprisals (paragraph 5).

' B.Z. '

NOTES (1) [(1) p.973] First Convention, Arts. 49-54; Second Convention, Arts. 50-53; Third Convention, Arts 129-132; Fourth Convention, Arts. 146-149. In fact these articles also lay down a general duty and specific preventive measures, as does this Section. We will not deal here with Art. 51/50/131/148 common to the Conventions, nor with Art. 91 of the Protocol, which are not about the repression of breaches, but about responsibility of Contracting Parties with regard to reparation;

(2) [(2) p.973] In addition to ' Commentaries I-IV ' and works which are more particularly mentioned with regard to the specific provisions of this Section, we list below a limited selection of works, documents and articles on a)
international penal law, b) repression of war crimes and c) repression of breaches of humanitarian law, (subject a) also covers b) and c); subject b) also covers c):
a) ' International Penal Law ':S. Glaser, 'Int roduction à l'étude du droit international pénal ', Paris, 1954; id., ' Droit pénal international conventionnel ', Brussels, 1970; C. Lombois, ' Droit pénal international ', Paris, 1971.
b) ' Repression of war crimes ': International Law Commission, ' The Charter and Judgment of the Nürnberg Tribunal, History and Analysis ', Doc. A/CN.4/5, 3 March 1949; L. Oppenheim, op. cit., pp. 566-588 (paras. 251-257c); United Nations, ' Question of the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity ', Doc. E/CN.4/906, 15 February 1966; P. Mertens, ' L'imprescriptibilité des crimes de guerre et des crimes contre l'humanité ', Brussels, 1974; H.-H. Jescheck, "Nuremberg Trials", ' Encyclopaedia of Public International Law ', op. cit., Instalment 4, 1982, p. 50; id., "War Crimes", ibid., p. 294; G.I.A.D. Draper, "War, Laws of, Enforcement", ibid., p. 323; Ch. Rousseau, ' Le droit des conflits armés ', op. cit., pp. 170-187; F. Weiss, "Time Limits for the Prosecution of Crimes Against International Law", 53 BYIL, 1983, p. 163; United Nations General Assembly, ' Report of the International Law Commission on the work of its thirty-seventh session ', Official Records, 40th session, supplement No. 10 (A/40/10), 1985, paras. 11-101.
c) ' Repression of breaches of humanitarian law ': W.A. Solf and E.R. Cummings, "A Survey of Penal Sanctions Under Protocol I to the Geneva Conventions of August 12, 1949", 9 ' Case Western Reserve Journal of International Law ' 2, 1977, p. 205; M.C. Bassiouni, "Repression of Breaches of the Geneva Conventions under the Draft Additional Protocol to the Geneva Conventions of August 12, 1949", 8 ' Rutgers Camden Law Journal ' 2, 1977, p. 185; J. de Breucker, "La répression des infractions graves aux dispositions du premier Protocole additionnel aux quatre Conventions de Genève du 12 août 1949", XVI-4 ' RDPMDG ', 1977, p. 497; E.J. Roucounas, "Les infractions graves aux droits humanitaires (Article 85 du Protocole additionnel I aux Conventions de Genève)", 31 ' Revue Hellénique de droit international ' 3-4, 1978, p. 57; B.V.A. Röling, "Aspects of the Criminal Responsibility for Violations of the Laws of War", ' The New humanitarian Law of Armed Conflict ', op. cit., p. 199; Ph. Bretton, "La mise en oeuvre des Protocoles de Genève de 1977", op. cit.; G.I.A.D. Draper, "The Implementation and Enforcement...", op. cit.; "Incidences des dispositions pénales du Protocole I additionnel aux Conventions de Genève de 1949 sur le système judiciaire national", XXI-1-2-3-4 ' RDPMDG ', 1982, p. 415 (Summary in English, "Effects of the penal provisions of Protocol I additional to the Geneva Conventions of 1949 on the national legal system", p. 430) (Congress held at Lausanne in 1982); M. Aubert, "La répression des crimes de guerre dans le cadre des Conventions de Genève et du Protocole Additionnel I et l'entraide judiciaire accordée par la Suisse", 79 ' Revue suisse de jurisprudence ' 23, 1983, p. 368; J. Verhaegen,
"les nouveaux horizons du droit international pénal des conflits armés", ' Revue de droit pénal et de criminologie ', January 1985, p. 25;

(3) [(3) p.974] On this point, Cf. ' Commentaries I-IV ' (para. 1 of common Art. 49/50/129/146 and Art. 50/51/130/147); ICRC, ' Respect of the Geneva Conventions -- Measures taken to repress violations ' (Reports submitted by the ICRC to the XXth and XXIst International Conferences of the Red Cross), Vol. I (1965) and II (1969), reprinted in 1971; G. Levasseur and R. Merle, "L'état des législations internes au regard de l'application des obligations contenues dans lesconventions internationales de droit humanitaire", in Centre de droit international de l'Institut de sociologie de l'Université Libre de Bruxelles (Centre Henri Rolin), ' Droit humanitaire et conflits armés, Université Libre de Bruxelles, colloque des 28, 29 et 30 janvier 1970 ', Brussels, 1976, p. 217; H.-H. Jescheck, "War Crimes", op. cit., pp. 296-297; "Incidences des dispositions pénales...", op. cit.; M. Bothe, "The Role of National Law in the Implementation of International Humanitarian Law", in 'Stu dies and Essays in Honour of Jean Pictet ', op. cit., p. 301; J. Verhaegen, "Les nouveaux horizons...", op. cit., pp. 32-33;

(4) [(4) p.974] The general obligation to take all measures necessary for the execution of the Conventions and the Protocol is repeated in Art. 80 of the Protocol which is supplemented by Art. 84; reference should be made to commentary Art. 80, supra, p. 930, and in particular note 2 ("A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty");

(5) [(5) p.975] In fact the Conventions use the term "act", but taking into account the clarification given on this point by Article 86 of the Protocol, this should be understood to mean conduct, as it also covers failure to act (on these concepts, cf. commentary Art. 86, infra, p. 1005);

(6) [(6) p.975] On this subject, cf. commentary Art. 89 (considerations regarding the expression "serious violations"), infra, p. 1033;

(7) [(7) p.975] Cf., for example, ' Commentary III ', pp. 622 and 624-625 (Art. 129, paras. 1 and 3);

(8) [(8) p.975] On the scope of the expression "the High Contracting Parties", cf. commentary Preamble, supra, p. 25. Thus this also covers neutral States or States not Parties to the conflict (on these concepts, cf. commentary Art. 2, sub-para. (c), supra, p. 61); in this sense, cf. L. Oppenheim, op. cit., pp. 588-589 (para. 257c), note 4); H.-H. Jescheck, "War Crimes", op. cit., p. 297; for the opposite view: B.V.A. Röling, "Aspects of the Criminal Responsibility...", op. cit., p. 202;

(9) [(9) p.975] I.e., either hand over or bring to trial; the alternative expression is: ' aut dedere aut punire ' (either hand over or punish);

(10) [(10) p.975] The Conventions do not exclude handing over the accused to an international criminal court whose competence has been recognized by the Contracting Parties (' Commentary III ', p. 624 (Art. 129, para. 2)); in the same sense: B.V.A. Röling, "Aspects of the Criminal Responsibility...", op. cit., pp. 200-201; against: G.I.A.D. Draper, "The Implementation...", op. cit., pp. 38, 41-42 and "War...", op. cit., p. 325; for a more balanced view: W.A. Solf and E.R. Cummings, op. cit., p. 238 and note 146, consider that Article 102 of the Third Convention rules out the practice of ad hoc tribunals such as those created after the Second World War;

(11) [(11) p.976] This list, like that taken from Art. 85, paras. 2-4, of the Protocol, is not illustrative but exhaustive. This means that only the conduct included in the list is subject to universal jurisdiction under the Conventions and the Protocol. It does not mean that other breaches cannot also be subject to universal jurisdiction by reason of customary or treaty law (for examples, cf. W.A. Solf and E.R. Cummings, op. cit., p. 217 and note 63, and B.V.A. Röling, "Aspects of the Criminal Responsibility...", op. cit., p. 212). Nor does it prevent Contracting Parties from providing in their national legislation for the penal repression of yet other breaches; those, however, would only be punishable if committed by members of their own armed forces (O.R. VI, p. 292, CDDH/SR.44, para. 76; M. Bothe, K.J. Partsch, W.A. Solf, op. cit., p. 515, para. 2.10). See also commentary Art. 89, infra, pp. 1033-1034;

(12) [(12) p.976] Including nationals of neutral States or co-belligerent States under the conditions set out in Art. 4, para. 2, of the Fourth Convention. On the meaning of the word "neutral" in the Conventions, cf. commentary Art. 2, sub-para. (c), of the Protocol, supra, p. 61;

(13) [(13) p.978] Under its Article 5, 19 States subsequently became Parties to that agreement. For a list of these States, cf. International Law Commission, The Charter..., op. cit., p. 4; L. Oppenheim, op. cit., pp. 581-582 (para. 257 and note 3); D. Schindler and J. Toman, op. cit., p. 831;

(14) [(14) p.978] This similarity between the two Charters was noted, for example, in the second preambular paragraph of Resolution 95 (I) of the United Nations General Assembly;

(15) [(15) p.978] Resolution 260 A (III) of the United Nations General Assembly. As of 31 December 1984 95 States were Parties to the Convention;

(16) [(16) p.978] The whole question was subsequently deferred pending the adoption of a definition of aggression, which was given in 1974 (cf. commentary Preamble, supra, p. 28). The examination was taken up again by the General Assembly in 1978 and by the International Law Commission in 1982. The latest stage of developments on this question appears in United Nations, ' Report of the ILC on the work of its 37th session ', op. cit., paras. 11-37; the 1950 formulation of the Nuremberg Principles is contained in paragraph 45 and the 1954 version of the Draft Code in paragraph 18;

(17) [(17) p.978] The sanctions are prescribed in Article 28; on this Convention in general, cf. commentary Art. 53, supra, pp. 641-643;

(18) [(18) p.978] Resolution 2391 (XXIII) of the United Nations General Assembly; as of 31 December 1984 28 States were Parties to this Convention. There is also a European Convention on Non-applicability of Statutory Limitations to Crimes Against Humanity and War Crimes, adopted by the Council of Europe on 25 January 1974; the Convention was not yet in force as of 31 December 1984;

(19) [(19) p.978] These principles are included in Resolution 3074 (XXVIII) of the United Nations General Assembly;

(20) [(20) p.979] International Convention against the Taking of Hostages of 17 December 1979. As of 31 December 1984, 24 States were Parties to that Convention. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984. Three Conventions relating to the security of civil aviation were concluded within the International Civil Aviation Organization. All three are in force and also contain provisions on repression. The Conventions are the Tokyo Convention (1963), the Hague Convention (1970) and the Montreal Convention (1971);

(21) [(21) p.979] A proposed amendment to Article 85 of the Protocol had explicitly covered: "(a) complicity in grave breaches, (b) attempt to commit grave breaches, (c) direct incitement or conspiracy to commit grave breaches -- if they are committed" (O.R. III, p. 320, CDDH/I/304). This proposal was introduced by its sponsor and referred without discussion to the relevant Working Group and Sub-Group; it was not included in the drafts drawn up by these two groups (cf. O.R. IX, p. 57, CDDH/I/SR.46, para. 9; O.R. X, pp. 165-175, CDDH/I/GT/102/Rev.1; pp. 159-160, CDDH/I/324, paras. 1-7;

(22) [(22) p.979] G. Stefani, G. Levasseur, B. Bouloc, ' Droit pénal général ', 11th ed., Paris, 1980, pp. 242-245 (paras. 245-249). J.C. Smith, B. Hogan, ' Criminal Law ', London, 1983, pp. 118-121;

(23) [(23) p.979] G. Stefani, G. Levasseur, B. Bouloc, op. cit., pp. 250-251 (para. 254);

(24) [(24) p.980] Under the 1954 version of the Draft Code the person who commits the defined crimes is punishable, but also those guilty of conspiracy, direct incitement and complicity (Art. 2, para. 13). The further examination of that article has not yet been taken up by the International Law Commission (cf. United Nations, ' Report of the ILC on the work of its 37th session ', op. cit., paras. 31, 35, 43-51 and 101). On the concept of conspiracy, cf. the following note;

(25) [(25) p.980] The French text uses the words "participeraient à une entente", which corresponds to the English "conspire". The concept of conspiracy is based on Common Law; this crime is characterized by two constitutive elements: agreement and a common plan, and one or other of these elements or both must be unlawful (cf. C. Lombois, op. cit., p. 104 (para. 98) and pp. 113-114 (note 98)). The concept of a common plan or conspiracy ("plan concerté" or "complot" in the French text) applies for all crimes defined in the Charter of the Nuremberg International Military Tribunal (Art. 6); it only applies to crimes against peace in the 1950 formulation of the Principles (Principle VI); it applies for all crimes defined in the Draft Code of 1954 (the above-mentioned Art. 2, para. 13, regarding which, cf. remark supra, note 24, second sentence);

(26) [(26) p.980] On this aspect, cf. Art. 86 of the Protocol;

(27) [(27) p.980] G. Stefani, G. Levasseur, B. Bouloc, op. cit., p. 200 (para. 194). See also supra, note 21;

(28) [(28) p.980] The Draft Code of 1954 does include the attempt in the above-mentioned Article 2, paragraph 13, but the remark made supra, note 24, second sentence, also applies on this point;

(29) [(29) p.980] See infra, p. 1025;

(30) [(30) p.981] A period of limitation for crimes is the preclusion of penal proceedings by reason of lapse of time; the period varies depending on the offence committed. A period of limitation applicable to the penalty is the preclusion of the execution of sentence if it has not started within a certain period after the date of the sentence, or if it has been interrupted for a certain period (cf. G. Stefani, G. Levasseur, B. Bouloc, op. cit., pp. 112 (para. 96), 597-599 (para. 687));

(31) [(31) p.981] UN Doc. E/CN.4/906 referred to above note 2, para. 140. On the question of the non-applicability of statutory limitation to war crimes and crimes against humanity, reference may be made to this document as a whole; it reflects in detail the views of States and the writings on this subject;

(32) [(32) p.981] It should be noted that in its Resolution XII the XXIst International Conference of the Red Cross (Istanbul, 1969) requested "the Governments of all States to accede to this Convention which is now inseparable from the system designed to safeguard human rights";

(33) [(33) p.981] This is true even though, as one writer recently put it, the difference between the various solutions adopted is enormous (G. van den Wijngaert in "Incidences...", op. cit., p. 456);

(34) [(34) p.981] The European Convention is more restrictive than the United Nations Convention, as it applies to violations of the laws and customs of war, including grave breaches of the Geneva Conventions, only "when the specific violation under consideration is of a particularly grave character by reason either of its factual and intentional elements or of the extent of its foreseeable consequences" (Art. 1, para. 2 in fine);

(35) [(35) p.982] Art. 20; Art. 51, para. 6; Art. 52, para. 1; Art. 53, sub-para. (c); Art. 54, para. 4; Art. 55, para. 2; Art. 56, para. 4;

(36) [(36) p.982] For a list of references to the CDDH on a possible general provision, cf. the references ad Art. 89, infra, p. 1031;

(37) [(37) p.982] CE/2b, p. 49; definition based on one given in the first article of a resolution passed by the Institute of International Law entitled "Régime des représailles en temps de paix" (system of reprisals in time of peace) (' Annuaire IDI ', 1934, Vol. II, p. 708);

(38) [(38) p.982] On the inadmissibility of the principle of reciprocity in applying the Conventions and the Protocol, cf. commentary Art. 1, para. 1, supra, p. 37-38;

(39) [(39) p.983] For a detailed historical background, cf. F. Kalshoven, ' Belligerent Reprisals ', op. cit.;

(40) [(40) p.983] Excerpts of texts and discussion, ibid., pp. 46-51;

(41) [(41) p.983] Relevant materials and discussion, ibid., pp. 51-55. The Oxford Manual of 1880 stated: "In grave cases in which reprisals appear to be absolutely necessary, their nature and scope shall never exceed the measure of the infraction of the laws of war committed by the enemy." In addition, "they must conform in all cases to the laws of humanity and morality";

(42) [(42) p.983] F. Kalshoven, ' Belligerent Reprisals ', op. cit., pp. 56-66;

(43) [(43) p.983] Cf. respectively their Articles 46/47/13, para. 3/33, para. 3; for the list of protected persons and objects, cf. supra, pp. 976-977;

(44) [(44) p.984] ' Commentary IV ', p. 228 (Art. 33, para. 3);

(45) [(45) p.984] CE/2b, pp. 49-62;

(46) [(46) p.984] ' CE 1971, Report ', p. 111, paras. 573-577; for the text of Resolution 2675 (XXV), cf. introduction to Part IV, Section 1, supra, p. 588, note 17;

(47) [(47) p.984] For details on these proposals, cf. ' CE 1972, Report ', Vol. II, pp. 7 and 12 (drafts Arts. 45, para. 4; 48, para. 1; 74);

(48) [(48) p.985] Ibid., Vol. I, p. 149, para. 3.161; p. 151, paras. 3.177-3.178; pp. 190-191, paras. 4.134-4.139 and 4.141;

(49) [(49) p.985] For the Official Records of the CDDH, cf. supra, note 36. Articles which appeared after the CDDH, describing in detail the debates and their results, include S.E. Nahlik, "Le problème des représailles...", op. cit.; id., "Belligerent Reprisals as seen in the Light of the Diplomatic Conference on Humanitarian Law, Geneva 1974-1977", 42 ' Law and Contemporary Problems ' 2, 1978, p. 36; F. Kalshoven, "The Belligerent Reprisals in the Light of the 1977 Geneva Protocol", in ICRC, ' European Seminar on Humanitarian Law (Jagellonean University, Krakow ', 1979) Geneva, 1980, p. 30; G.H. Aldrich, "New Life for the Laws of War", 75 AJIL 4, 1981, p. 764, on pp. 781-782;

(50) [(50) p.985] 1973 draft, Art. 20; Art. 46, para 4; Arts. 48 and 66; ' Commentary Drafts ', pp. 29, 59, 62; 84-85 and 90 (ad these articles and Part V, Section I);

(51) [(51) p.985] Cf. the articles mentioned supra, note 35, and the commentary thereon for their historical background and scope;

(52) [(52) p.985] O.R. V, p. 375, CDDH/SR.31, paras. 20-23;

(53) [(53) p.986] Cf., e.g., O.R. IX, p. 59, CDDH/I/SR.46, paras. 21 and 24; pp. 64-65, paras. 46 and 49-51; p. 66, para. 54; p. 74, CDDH/I/SR.47, para. 38; pp. 77-78, paras. 48-49 and 51;

(54) [(54) p.986] Cf. e.g. ibid., p. 60, CDDH/I/SR.46, para. 28; pp. 61-62, paras. 36 and 39; p. 63, paras. 42-44; pp. 70-71, CDDH/I/SR.47, paras. 20-24; pp. 74-76, paras. 39-40 and 43-46;

(55) [(55) p.986] Cf. ibid., p. 78, CDDH/I/SR.47, para. 52; p. 80, para. 58;

(56) [(56) p.986] The same applies for property protected under the above-mentioned 1954 Hague Convention; for the list of persons and objects protected under the Conventions, cf. supra, pp. 976-977;

(57) [(57) p.986] Apart from those who had considered reprisals prohibited in all circumstances. cf. explicit statement O.R. IX, p. 452, CDDH/I /SR.73, Annex (Poland);

(58) [(58) p.987] Or any other person participating directly in hostilities, for the duration of such participation;

(59) [(59) p.987] Opposition to the proposed article actually only came from those who did not consider the conditions to be sufficiently strict, or who would have preferred a complete prohibition of reprisals;

(60) [(60) p.987] Article 60 is entitled "Termination or suspension of the operation of a treaty as a consequence of its breach";