Treaties, States Parties and Commentaries
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Commentary of 1952 

The idea of including a definition of "grave breaches" in the actual text of the Convention came from the experts called in by the International Committee of the Red Cross in 1948. It was thought necessary to establish what these grave breaches were, in order to be able to ensure universality of treatment in their repression. Violations of certain of the detailed provisions of the Geneva Conventions might quite obviously be no more than offences of a minor or purely disciplinary nature, and there could be no question of providing for universal measures of repression in their case.
[p.371] It was also thought desirable -- as a warning to possible offenders -- to draw public attention to the list of infractions, the authors of which were to be searched for in all States. This idea was embodied in the draft of Article 40, which defined these grave violations in more or less general terms. (1)
The joint amendment (2) submitted to the Diplomatic Conference by a number of delegations, contained, for each Convention, a list in which the offences were defined more precisely. It was this text, with certain slight changes of form, that was in the end adopted by the Conference.
The actual expression "grave breaches" was discussed at considerable length. The USSR Delegation would have preferred the expression "grave crimes" (3) or "war crimes". The reason why the Conference preferred the words "grave breaches" was that it felt that, though such acts were described as crimes in the penal laws of almost all countries, it was nevertheless true that the word "crimes" had different legal meanings in different countries.
The ' persons protected ' by the Convention are the wounded and sick, as defined in Article 13 , and medical personnel and chaplains, as defined in Articles 24 to 26. The ' property protected ' by the Convention is defined in various Articles (in particular Articles 33 to 36).
As regards the list of "grave breaches" itself, it has already been pointed out (4) that it is not to be taken as exhaustive, although a large number of these offences would certainly appear to be covered.
' Wilful killing ' covers all cases in which the wounded or sick are put to death without any resistance on their part. It also covers any attempts on the life of medical personnel or chaplains, whether serving with their country's forces or when captured or retained by the enemy to care for prisoners.
In addition to the act of killing there may be cases of killing by failing to take action -- for example, by letting wounded persons die for want of the care which would have saved them, or by allowing protected persons to starve to death. The provision we are discussing covers such cases, provided the intentional character of the infraction is clearly established. [p.372] On the other hand it does not cover cases of mere negligence or of actual physical impossibility.
The expressions ' torture, inhuman treatment, ' and ' biological experiments ' are clear enough in themselves and need no detailed comment (5). It may be noted, however, that the text as originally drafted said "maltreatment"; it was thought better to replace this term by the more precise expression "inhuman treatment".
' Wilfully causing great suffering or serious injury to body or health. ' This phrase is intented to cover acts which, without amounting to "torture or inhuman treatment", are liable to affect the physique or health of wounded or sick persons, medical personnel or chaplains. We might take as an example the mutilation of the wounded or their exposure to useless and unnecessary suffering. The phrase duplicates to some extent the words which precede it.
' Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. ' This definition covers, in particular, cases of destruction of buildings or material belonging to enemy medical units, in violation, for example, of Article 33, paragraph 3 (6). It also covers cases where medical material or transport are seized without the prescribed conditions being respected. It should, incidentally, be noted that the plea of military necessity may not exceed the limits fixed by the definition of military necessity contained in Articles 33 to 36 (7). Article 50 cannot be invoked in justification of unfettered resort to destruction or appropriations which are prohibited elsewhere in the Convention.

* (1) [(1) p.371] See above, page 358;

(2) [(2) p.371] See above, page 360;

(3) [(3) p.371] Textually "heavy crimes";

(4) [(4) p.371] See above, page 367;

(5) [(1) p.372] On the meaning to be given to the words
biological experiments" see the comments on Article 12
(above, page 139);

(6) [(2) p.372] See above, page 276;

(7) [(3) p.372] See above, pages 271 to 293;