Practice Relating to Rule 102. Individual Criminal Responsibility
Note: For practice concerning collective punishments, see Rule 103.
Geneva Convention IV
Article 33, first paragraph, of the 1949 Geneva Convention IV provides: “No protected person may be punished for an offence he or she has not personally committed.”
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 33, first para.
American Convention on Human Rights
Article 5(3) of the 1969 American Convention on Human Rights provides: “Punishment shall not be extended to any person other than the criminal.”
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 5(3).
This guarantee is non-derogable under Article 27(2).
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 27(2).
Additional Protocol I
Article 75(4)(b) of the 1977 Additional Protocol I provides: “No one shall be convicted of an offence except on the basis of individual penal responsibility.”
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 75(4)(b). Article 75 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 250.
Additional Protocol II
Article 6(2)(b) of the 1977 Additional Protocol II provides: “No one shall be convicted of an offence except on the basis of individual penal responsibility.”
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 6(2)(b). Article 6 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 97.
African Charter on Human and Peoples’ Rights
Article 7(2) of the 1981 African Charter on Human and Peoples’ Rights provides: “Punishment is personal and can be imposed only on the offender.”
African Charter on Human and Peoples’ Rights, adopted by the Eighteenth Ordinary Session of the OAU Assembly of Heads of State and Government, Nairobi, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev.5, Article 7(2).
ICC Statute
Article 25(2) of the 1998 ICC Statute, entitled “Individual criminal responsibility”, provides: “A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.”
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 25(2).
Cairo Declaration on Human Rights in Islam
Article 19(c) of the 1990 Cairo Declaration on Human Rights in Islam states: “Liability is in essence personal.”
Cairo Declaration on Human Rights in Islam, adopted at the 19th Session of the Islamic Conference of Foreign Ministers, Res. 49/19-P, Cairo, 5 August 1990, annexed to Letter dated 19 September 1990 from the permanent representative of Egypt to the UN addressed to the UN Secretary-General, UN Doc. A/45/421-S/21797, 20 September 1990, Article 19(c).
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I.
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 4.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.3 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I.
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.3.
ICTR Statute
Article 4 of the 1994 ICTR Statute grants the Tribunal jurisdiction over violations of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II.
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 4.
Argentina
Argentina’s Law of War Manual (1989) prohibits collective punishments and provides that this is a fundamental guarantee which applies in international and non-international armed conflicts.
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, §§ 3.25, 4.15, 4.29 and 7.04.
The manual further states that the “exclusion of collective responsibility for any sentence” is a fundamental guarantee in non-international armed conflicts.
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 7.10.
Canada
Canada’s LOAC Manual (1999) forbids collective punishment against prisoners of war, civilians in general and in occupied territories, whether in international or internal armed conflicts.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-7, § 61, p. 11-4, § 33, p. 11-8, § 63, p. 12-5, § 41(d) and p. 17-3, § 21(a).
The manual also provides that, in non-international armed conflict: “No accused persons shall be convicted of an offence except on the basis of individual penal responsibility.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 29(b).
Canada
Canada’s LOAC Manual (2001), in its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Provisions common to the territories of the parties to the conflict and to occupied territories”, states:
[The 1949 Geneva Convention IV] prohibits taking any measure, which will cause physical suffering to protected persons or will lead to their extermination … The following are expressly prohibited:
a. the punishment of a protected person for an offence not committed by that person.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1121.2.a.
In its chapter on non-international armed conflicts, the manual states: “As a minimum, accused persons: … b. shall not be convicted of an offence except on the basis of individual penal responsibility”.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.2.b.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders): “No one must be held responsible for an act he has not committed.”
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Fundamental Rules, § 5.
Colombia
Colombia’s Circular on Fundamental Rules of IHL (1992) provides: “Nobody can be considered as responsible for an act he has not committed.”
Colombia, Transcripción Normas Fundamentales del Derecho Humanitario Aplicables en los Conflictos Armados, Circular No. 033/DIPL-SERPO-526, Policía Nacional, Dirección General, Santafé de Bogotá, 14 May 1992, § 5.
France
France’s LOAC Summary Note (1992) provides: “No one shall be held responsible for an act he did not commit.”
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 3.1.
France
France’s LOAC Manual (2001) provides that one of the three main principles common to IHL and human rights is the principle of security, which guarantees to every human being the right not to be held responsible for an offence he or she did not commit.
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 52.
The manual further states: “No protected person may be punished for an offence he or she has not personally committed.”
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 74.
Madagascar
Madagascar’s Military Manual (1994) provides: “Nobody shall be held responsible for an act he/she did not commit.”
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, p. 91, Rule 5.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section entitled “Basic rules of international humanitarian law applicable in armed conflicts”, states: “Nobody can be held responsible for an act he has not committed.”
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 410.
Netherlands
The Military Manual (1993) of the Netherlands reproduces the prohibition of collective punishments found in Article 75 of the 1977 Additional Protocol I and Article 4 of the 1977 Additional Protocol II.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, pp. VIII-3 and XI-4; see also p. VII-2.
With respect to non-international armed conflict, the manual states: “Nobody may be condemned but on the basis of individual criminal responsibility.”
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. XI-52.
Netherlands
The Military Manual (2005) of the Netherlands states:
Every human being is entitled to personal safety.
Examples:
- No one may be held responsible for a deed he has not committed.
- Reprisals, collective punishments … are forbidden.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0224(f).
In its chapter on the protection of the civilian population, the manual states: “No protected person may be punished for an offence he has not personally committed.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0808.
New Zealand
New Zealand’s Military Manual (1992), referring to Articles 32–34 of the 1949 Geneva Convention IV, states: “The following are … prohibited: a. the punishment of a protected person for an offence not committed by him personally; b. collective penalties”.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1116(2)(a) and (b).
In a part entitled “Trial and Punishment: Restrictions and Guarantees”, the manual also states: “As a minimum: … no one shall be convicted of an offence except on the basis of individual criminal responsibility.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1815(2)(b).
Peru
Peru’s IHL Manual (2004) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including: “individual criminal responsibility”.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 32.n.(2).
Peru
Peru’s IHL and Human Rights Manual (2010) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including: “[i]ndividual criminal responsibility.”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 33(n)(2), p. 251.
Romania
Romania’s Soldiers’ Manual (1991) provides that captured combatants and civilians “shall not be held responsible for acts which they have not committed”.
Romania, Manualul Soldatului, Ghid de comportare în luptă, Asociaţia Română de Drept Umanitar (ARDU), 1991, p. 34.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
1.2 Reasons for compliance with LOAC [law of armed conflict] and basic principles thereof.
…
Fundamental Norms and Values (rules)
The fundamental norms/val[u]es which underlie the LOAC are:
…
- Civilians and captured combatants are entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed. …
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 13 and 17.
The manual also states:
2.4 Specifically Protected Persons and Objects:
a. Civilians
…
[1949] Geneva Convention IV articles 28 to 34 grant further protection to civilians. These articles determine the following:
…
- A protected person may not be punished for an offence that that person has not committed. Collective penalties, intimidation or terrorism, pillage and reprisals are prohibited.
…
Protection of protected persons entails the following:
…
- A protected person may not be punished for an offence that that person has not committed.
- Collective penalties, intimidation or terrorism, pillage and reprisals are prohibited against protected persons.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 112, 117 and 124.
Spain
Spain’s LOAC Manual (1996) stresses that “any collective punishment for individual acts” is prohibited.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 8.7.b.
Sweden
Sweden’s IHL Manual (1991) considers that the fundamental guarantees for persons in the power of one party to the conflict as contained in Article 75 of the 1977 Additional Protocol I are a part of customary international law.
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 19.
In a chapter on IHL rules during occupation, the manual refers to Article 33 of the 1949 Geneva Convention IV and states: “Protected persons may not be punished for actions they have not themselves performed. Collective punishment of a whole group is also prohibited.”
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 6.1.3, p. 122.
Switzerland
Switzerland’s Basic Military Manual (1987) states: “No one shall be punished for an act he did not personally commit.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 153.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states:
The Hague Rules forbid collective punishment, in the form of a general pecuniary or other penalty, of the population for acts of individuals for which the population as a whole cannot be regarded as jointly and severally responsible. It was formerly thought that the prohibition did not exclude reprisals against a locality or community for some act committed by its inhabitants or members who cannot be identified. However, the Civilian Convention, Art. 33 has prohibited collective penalties and has expressly adopted the principle that “no protected person may be punished for an offence he or she has not personally committed”.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 647; see also §§ 42 (civilians), 205 (prisoners of war) and 553 (occupied territory).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … no one shall be convicted of an offence except on the basis of individual penal responsibility.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its chapter on internal armed conflict, the manual further states: “Indispensable judicial guarantees include as a minimum … individual criminal responsibility (so that collective punishments would be unlawful).”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
United States of America
The US Field Manual (1956) reproduces Article 33 of the 1949 Geneva Convention IV.
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 272.
United States of America
The US Air Force Pamphlet (1976) refers to Article 33 of the 1949 Geneva Convention IV and states that “collective penalties (punishment of a protected person for offences which he has not personally committed)” are prohibited.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-4 (civilians).
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Burundi
Burundi’s Penal Code (2009), which includes a chapter on war crimes, states: “Criminal responsibility is individual: one may only be punished for his or her own acts”.
Burundi, Penal Code, 2009, Article 18.
Central African Republic
The Central African Republic’s Penal Code (2010), which contains a chapter on war crimes, states in its general provisions: “No one is criminally responsible but for his or her own acts.”
Central African Republic, Penal Code, 2010, Article 8.
Chile
Chile’s Code of Criminal Procedure (1906), as amended in 2007, states: “Criminal prosecution … shall only be directed against those personally responsible for the crime or negligent offences.”
Chile, Code of Criminal Procedure, 1906, as amended in 2007, Article 54.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Penal Code (2002) provides: “No one is criminally responsible but for his own acts.”
Democratic Republic of the Congo, Military Penal Code, 2002, Article 3.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark, Military Criminal Code
, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 33 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 75(4)(b), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 6(2)(b), are punishable offences.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Kyrgyzstan
Kyrgyzstan’s Criminal Code (1997) provides: “The Criminal Code is based upon the principles of … personal criminal responsibility.”
Kyrgyzstan, Criminal Code, 1997, Article 3(1).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions …is liable to imprisonment.
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Peru
Peru’s Military and Police Criminal Code (2010), which includes provisions on crimes under international humanitarian law, states in the Preliminary Title: “A punishment requires the proven culpability of the perpetrator.”
Peru, Military and Police Criminal Code, 2010, Article X.
Serbia
Serbia’s Criminal Code (2005) states: “Punishment and caution may be imposed only on an offender who is guilty of the committed criminal offence.”
Serbia, Criminal Code, 2005, Article 2.
South Africa
South Africa’s Implementation of the Geneva Conventions Act (2012) states: “A protected prisoner of war who is in the custody of the South African National Defence Force must be granted the protection of the [1949] Third [Geneva] Convention or the [1949] Fourth [Geneva] Convention, as the case may be.”
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 12(2).
The Act defines a “protected prisoner of war” as a “person protected by the Third Convention or a person who is protected as a prisoner of war under [the 1977 Additional] Protocol I”.
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 1.
Colombia
In 2007, in Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
Taking into account … the development of customary international humanitarian law applicable in internal armed conflicts, the Constitutional Court notes that the fundamental guarantees stemming from the principle of humanity, some of which have attained ius cogens status, … [include] the obligation to respect … the principle of … individual criminal responsibility.
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 112.
[footnote in original omitted]Democratic Republic of the Congo
In 2010, in the Barnaba Yonga Tshopena case, the Military Garrison Court of Ituri-Bunia convicted a leader of the Front for Patriotic Resistance in Ituri (FRPI) of several war crimes. The Court stated:
130 … [I]n principle, individual criminal liability is individual. However, some adjustments are needed for a better understanding of this principle. Indeed, some criminalize complicity and co-perpetration; others, in particular international criminal law and military criminal law, … provide that superiors can, in certain circumstances, be convicted for crimes committed by their subordinates.
…
132 … [I]n the present case, … the defendant … did not individually and materially commit the various war crimes for which he is charged, as the material perpetrators are formally identified as being Ngiti combatants of the FRPI militia. [H]e was the founder, moral authority and spiritual leader [of the FRPI] and, by right, the commander and leader of the FRPI, as well as the Messiah of the Lendu people. [A]s such, he is the highest moral authority and the supreme spiritual leader. De facto, he is considered by his FRPI peers as the supreme leader of the Ngiti combatants of this political-military movement. In this capacity, together with other commanders of this political-military movement, he organized, planned or encouraged in any way the successive attacks[.]
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, §§ 130 and 132.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
…
The accused’s position is stated to be that this Court has no jurisdiction to try him.
…
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
…
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
…
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
…
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
…
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
…
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
…
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
…
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
…
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
…
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
…
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
…
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
…
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
United States of America
In the Calley case in 1973, a US army officer was convicted of murder for killing South Vietnamese civilians. The US Army Court of Military Review dismissed the argument that the acts were lawful reprisals for illegal acts of the enemy and held: “Slaughtering many for the presumed delicts of a few is not a lawful response to the delicts … Reprisal by summary execution of the helpless is forbidden in the laws of land warfare.”
United States, Army Court of Military Review, Calley case, Judgment, 16 February 1973.
Chad
In 1997, in its initial report to the Committee on the Rights of the Child, Chad stated: “In the criminal sphere, articles 22–25 of the Constitution specify that … [n]o one may be held guilty of and prosecuted for an act he has not committed.”
Chad, Initial report to the Committee on the Rights of the Child, 24 July 1997, UN Doc. CRC/C/3/Add.50, submitted 14 January 1997, § 91.
Jordan
The Report on the Practice of Jordan states that Article 75 of the 1977 Additional Protocol I embodies customary law.
Report on the Practice of Jordan, 1997, Chapter 5.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include … Article 6 providing the rule on penal prosecutions due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions.
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 75.
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.4 [Increasing use] of anti-guerrilla tactics
…
Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions.
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.4, p. 15.
[footnotes in original omitted]United States of America
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].”
Report on US Practice, 1997, Chapter 5.3.
No data.
No data.
No data.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Mucić case in 1998, the ICTY Trial Chamber addressed the question of the legality of the confinement of civilians. It referred to Article 78 of the 1949 Geneva Convention IV and ruled:
Internment and assigned residence, whether in the occupying power’s national territory or in the occupied territory, are exceptional measures to be taken only after careful consideration of each individual case. Such measures are never to be taken on a collective basis.
ICTY, Mucić case, Judgment, 16 November 1998, § 578.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Krstić case in 2001, the ICTY Trial Chamber stated:
This defendant, like all others, deserves individualised consideration and can be convicted only if the evidence presented in court shows, beyond a reasonable doubt, that he is guilty of acts that constitute crimes covered by the [1993 ICTY Statute].
ICTY, Krstić case, Judgment, 2 August 2001, § 2.
International Criminal Tribunal for the former Yugoslavia
In its sentencing judgment in the Momir Nikolić case in 2003, the ICTY Trial Chamber stated: “[T]he Trial Chamber must remember that in this case, as in all cases before the Tribunal, it is called upon to determine a sentence for an individual, based on his particular conduct and circumstances.”
ICTY, Momir Nikolić case, Sentencing Judgment, 2 December 2003, § 83.
International Criminal Tribunal for the former Yugoslavia
In the Obrenović case before the ICTY in 2002, the accused, Dragan Obrenović, an officer in the Army of the Republika Srpska (VRS), was charged with complicity in genocide, crimes against humanity (murder, extermination, and persecutions on political, racial and religious grounds) and violations of the laws or customs of war (murder), for his alleged role in the events in the Srebrenica enclave in 1995.
ICTY, Obrenović case, Amended Joinder Indictment, 27 May 2002, §§ 34–59, Counts 1B, 2, 3, 4, 5.
Following a plea agreement jointly filed by the accused and the Prosecution, the accused pleaded guilty to the charge of persecutions. The Trial Chamber accepted the plea and dismissed the remaining charges.
ICTY, Obrenović case, Sentencing Judgment, 10 December 2003, §§ 10–11.
In the sentencing judgment, the Trial Chamber stated:
It is recalled that the basis of liability for crimes within the jurisdiction of the Tribunal is individual criminal responsibility. An accused shall be held liable for his actions and omissions – no more and no less. In crimes as massive as those committed following the fall of Srebrenica, the Trial Chamber finds that it must be particularly vigilant in ensuring that its consideration of the gravity of the offence focuses on those acts or omissions of the individual accused for which he is personally responsible.
ICTY, Obrenović case, Sentencing Judgment, 10 December 2003, § 78.
[emphasis in original]Special Court for Sierra Leone
In the Fofana and Kondewa case before the SCSL in 2004, the accused, senior members of the Civil Defence Forces (CDF), were charged with collective punishments as a violation of common Article 3 of the 1949 Geneva Conventions and of Additional Protocol II, punishable under Article 3(b) of the 2002 Statute of the Special Court for Sierra Leone.
SCSL, Fofana and Kondewa case, Indictment, 4 February 2004, § 28, Count 7.
In its judgment in 2007, the Trial Chamber stated:
[T]his Chamber takes a view that the prohibition of collective punishments in international humanitarian law is based on one of the most fundamental principles of domestic criminal law that is reflected in national systems around the world: the principle of individual responsibility. The principle of individual responsibility requires that, whether an accused be tried singly or jointly, a determination must be made as to the penal responsibility and appropriate punishment of each individual on trial.
SCSL, Fofana and Kondewa case, Judgment, 2 August 2007, §§ 178, footnote 222.
European Court of Human Rights
In its judgment in A.P., M.P. and T P. v. Switzerland in 1997, the European Court of Human Rights, accepting that, “whether or not the late Mr P. was actually guilty, the applicants were subjected to a penal sanction for tax evasion allegedly committed by him”, stated: “It is a fundamental rule of criminal law that criminal liability does not survive the person who has committed the criminal act.”
European Court of Human Rights, A.P., M.P. and T.P. v. Switzerland, Judgment, 29 August 1997, §§ 47–48.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “The conviction must be pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include … individual and not collective penal responsibility”.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 202(b).
ICRC
The ICRC Commentary on the Additional Protocols explains with regard to Article 6(2)(b) of the 1977 Additional Protocol II that:
This subparagraph lays down the fundamental principle of individual responsibility; a corollary of this principle is that there can be no collective penal responsibility for acts committed by one or several members of a group. This principle is contained in every national legislation. It is already expressed in Article 33 of the fourth Convention, where it is more elegantly worded as follows: “No protected person may be punished for an offence he or she has not personally committed” … The wording was modified to meet the requirement of uniformity between the texts in the different languages and, in this particular case, with the English terminology (“individual penal responsibility”). Article 75, paragraph 4 (b), of Protocol I, lays down the same principle.
According to the Commentary, this does not exclude cases of complicity or incitement, which are punishable offences in themselves and may lead to a conviction.
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 4603.
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, provides a list of the minimum judicial guarantees, including: “No one shall be convicted of an offence except on the basis of individual penal responsibility.”
Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 30 November–2 December 1990, Article 9(b), IRRC, No. 282, 1991, p. 334.
