II. Evolution of international criminal jurisdiction, individual responsibility and the definition
3. Overview of international obligations to repress war crimes
International humanitarian law and international criminal law include a variety of obligations on national repression. A common element of these obligations is that they direct states what to do but do not specify how they should do it. International treaties usually define an obligation to reach a certain result – the punishment of certain crimes –, which implies that states are bound to adopt internal legislation which satisfies this objective in any way they see fit138. This is obvious given considerations of state sovereignty139: such obligations usually
134 Ibid, p. 569.
135 Ibid, p. 569.
136 Ibid, p. 571.
137 Simpson (2007), pp. 56-57.
138 See Fichet-Boyle – Mossé, p. 879.
mean a self-restriction of sovereignty on the side of states, the way they comply with such obligations has to be left to them so that it conforms to their legal culture, legal system and principles. An account of these obligations follows, including an early analysis of possible difficulties in their application.
The obligation of states to repress violations of international humanitarian law is very clearly detailed in various treaties. The Geneva Conventions / Additional Protocols obligations are based on a three-pillar system140: obligation to repress or suppress grave breaches and the two elements of the aut dedere aut judicare principle: the obligation to search for persons having committed grave breaches and an obligation to try them or hand them over to another state.141 Contents of these elements have been further developed by customary law and by international treaties, such as the statutes of international tribunals or the Rome Statute of the International Criminal Court.
Specific aspects of the above mentioned measures have been also developed or overwritten by states and international treaties, both due to practical considerations and following an urge to make such measures more effective. Such developments have been particularly significant in two fields: one field is the increasing acceptance of the grave breaches regime for violations committed in non-international armed conflicts142, the other is in the field of interpretation and application of the aut dedere aut judicare principle143.
The three-pillar system of the Geneva Conventions and Additional Protocol I bases itself on the differentiation between serious violations (grave breaches) and other violations, and on a practical necessity to have these violations punished by any state. The treaties themselves list grave breaches that states are obliged to punish144. For other violations, there is simply an obligation to suppress them, leaving the method of such suppression to states, which may,
139 Ibid, p. 879.
140 Commentary to GC I, p. 362.
141 Common Article 1 of the Geneva Conventions and the obligation to „ensure respect” for the provisions of the Convention also oblige States, although on a more general basis, to eventually repress violations. See Varga Réka, Háborús bűncselekményekkel kapcsolatos eljárások nemzeti bíróságok előtt (War crimes procedures in front of domestic courts), in: Kirs Eszter (ed.), Egységesedés és széttagolódás a nemzetközi büntetőjogban, Studia Iuris Gentium Miskolcinensia – Tomus IV, Miskolc University – Bíbor Press (2009).
142 Although it cannot be clearly stated that this became customary law. See Lindsay Moir, Grave breaches and internal armed conflicts, in: 7/4 Journal of International Criminal Justice 2009, 763-787.
143 Developments regarding the universal jurisdiction principle will be discussed in detail in Chapters I. 4. and III. 1. (iv) of the present thesis.
144 Some authors derive the obligation for repression also from pacta sunt servanda. See Fichet-Boyle - Mossé, p. 871.
obviously, also include penal sanctions. The aut dedere aut judicare principle stems from the fear that perpetrators of serious offences would use conflicts between national jurisdictions to escape criminal liability and thus seeks to establish a global, universal solution.
In the understanding of the Geneva Conventions and Additional Protocol I, grave breaches are the most serious violations of the rules, committed in international armed conflicts; other violations committed in international armed conflicts and violations committed in non-international armed conflict are simply labeled as “violations”, “breaches” or “acts contrary”
to the Conventions/Protocols. The difference, as noted above, lies partly in the obligation of sanctioning.
In addition, as already noted above, Additional Protocol I introduces the term “war crimes”145 which mean grave breaches of the Conventions and Additional Protocol I. The relation between war crimes and grave breaches has often been confusing; except for the differentiation discussed above, the difference is also said to be that war crimes are crimes committed in war and criminalized in international law - in other instruments than the Geneva Conventions and Additional Protocols, such as the Charter of the Nuremberg International Military Tribunal or in customary law-, and grave breaches are terms introduced by the Geneva Conventions and Additional Protocol I146.
Another difference between war crimes and grave breaches is that war crimes entailed international criminal responsibility, while grave breaches didn’t, for the reason that the Geneva Conventions left it to states to punish these147 – this is partially why the aut dedere aut judicare principle was adopted. Although the war crimes regime seems to be more advancing148 to the detriment of the grave breaches regime, the undoubted advantage of the latter is the universal ratification of the Geneva Conventions as opposed to a much smaller number of parties to the ICC Rome Statute. However, war crimes and conditions of accountability in the Rome Statute are more articulate, elements of crimes are detailed, and with a growing number of case law of the ICC, important international jurisprudence will be
145 Article 85 para 5 Additional Protocol I: „Without prejudice to the application of the Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes.”.
146 See Marko Divac Öberg, The absorption of grave breaches into war crimes law, in: 873 International Review of the Red Cross (March 2009) 163-183, pp. 163-164.
147 Ibid, p. 165.
148 See James G. Stewart, The Future of the Grave Breaches Regime Segregate, Assimilate or Abandon?, in: 7/4 Journal of International Criminal Justice 2009, 855-877.
attached to it as an important secondary source: all in all, it is frequently observed that the war crimes regime is more effective.
Moreover, the regime separating violations committed in the context of international and non-international armed conflicts was partially overwritten by the Statutes of the ICTY and ICTR and the Rome Statute of the ICC, in that many violations committed in non-international armed conflicts were also regarded as war crimes. This came parallel with the practice of an emerging number of states which, in their penal legislation, penalized violations committed in non-international armed conflicts the same way as those committed in international armed conflicts. Thus, the difference between crimes committed in international or non-international armed conflicts seems to be diminishing and the term “war crimes” includes both kinds of violations.
Other humanitarian law treaties, such as Protocol II to the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict also define grave breaches with a similar penalizing obligation and the aut dedere aut judicare principle149 as present in the Geneva Conventions / Additional Protocol I. Thus, the obligations for penalizing certain acts come from a number of treaties which states have to observe.
Due to the underlying understanding of the grave breaches regime that it is the states that are responsible to carry out penal procedures, the Geneva Conventions and Additional Protocol I did not detail the method how such violations shall be included in their penal legislation150 nor did they give any guidance on the procedures themselves except for the requirement of fair trial guarantees151. The Commentary is also mainly silent on this issue, with only noting that legislation shall provide sanctions and it shall not be left to the judge to deal with these152. Most probably the difficulties in adopting proper legislation and ensuring effective procedures were not foreseen by the drafters of the Geneva Conventions. While many states seemingly complied with the obligations, it only turned out during procedures in the prosecutorial phase
149 See Deák Ildikó – Varga Réka, A kulturális javak fegyveres összeütközés esetén való védelméről szóló 1954.
évi Hágai Egyezmény és jegyzőkönyvei (The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and its Protocols), in: 52/3 Műemlékvédelem (2008) 198-209, p. 200.
150 See Gellér Balázs, A nemzetközi jog hatása a büntetőjogi felelősségre (Effects of international law on criminal responsibility), in: Bárd Károly, Gellér Balázs, Ligeti Katalin, Margitán Éva, Wiener A. Imre:
Büntetőjog Általános Rész, KJK-KERSZÖV (2003), p. 302 ff.
151 See common Article 3 to the Geneva Conventions or Article 75 of Additional Protocol I.
152 See Commentary to GC I, comments to Article 49, p. 363.
or during trials how difficult such a task can be. Hence, the word “effective” received particular significance, although not specifically analyzed in the Commentary: legislation merely adopted to demonstrate a state’s compliance with international law but not enabling effective penal procedures is obviously not enough. Although this statement may seem to be just too obvious, it was stunning to see during negotiations with governments on behalf of the ICRC how states carelessly satisfied themselves with the knowledge that legislation – any legislation - was in place without caring too much about their practical usefulness.
Customary law seemed to largely adopt the obligation to repress grave breaches, at least the ICRC Customary Law Study153 states so, to which no substantial opposition was formed - to this relevant part. The Study affirms that states have an obligation to “ensure respect” for international humanitarian law154, that serious violations of international humanitarian law constitute war crimes155 and that states must investigate war crimes and prosecute them156. The Study also has two specific rules as to the substance of prosecutions: states have a right to vest universal jurisdiction over war crimes157, and the non-application of statute of limitations158. Consequently, according to the Study, there is a customary obligation to repress war crimes, but not all aspects of the conventional obligations are reflected in customary law.