* I should like to express my thanks to Professors George Aldrich, Georges Abi-Saab, Antonio Cassese and Andreas Lowenfeld for their suggestions and, in particular, to Luigi Condorelli for his very important contribution.

¹ This applies even more to situations of lower-intensity internal strife. For a discussion of the norms applicable in noninternational armed conflicts and internal strife and the problem of characterizing conflicts, see generally Theodor Meron, On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 77 AJIL 589 (1983); Theodor Meron & Allan Rosas, A Declaration of Minimum Humanitarian Standards, 85 AJIL 375 (1991); Asbjørn Eide, Allan Rosas & Theodor Meron, Combating Lawlessness in Gray Zone Conflicts through Minimum Humanitarian Standards, 89 AJIL 215 (1995).

For descriptions of noninternational armed conflicts, see common Article 3 of the Geneva Conventions, infra note 2, and Article 1 of Additional Protocol II to the Geneva Conventions, infra note 20.

² Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention No. I), Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (Geneva Convention No. II), Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War (Geneva Convention No. III), Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention No. IV), Aug. 12, 1949, 6 UST 3516, 75 UNTS 287. See also Hague Convention on the Protection of Cultural Property, May 14, 1954, Art. 19(4), 249 UNTS 240; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 4, 1125 UNTS 3, reprinted in 16 ILM 1391 (1977) [hereinafter Protocol I].

³ See James C. O’Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 AJIL 639 (1993); Theodor Meron, War Crimes in Yugoslavia and the Development of International Law, 88 AJIL 78 (1994).

⁴ Theodor Meron, Rape as a Crime under International Humanitarian Law, 87 AJIL 424 (1993).

⁵ Theodor Meron, The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 122.

⁶ See James Crawford, The ILC Adopts a Statute for an International Criminal Court, 89 AJIL 404, 416 (1995).

⁷ UN Doc. S/RES/955, annex (1994) [hereinafter Rwanda Statute].

⁸ UN Doc. S/25704, annex (1993) [hereinafter Yugoslavia Statute]. Note, however, that the first annua report of the Yugoslav Tribunal states that the Tribunal is empowered to adjudicate cases of crimes committee in both interstate wars and internal strife. UN Doc. A/49/342-S/1994/1007, para. 19 (1994).

⁹ O’Brien, supra note 3, at 647; Meron, supra note 3, at 80–81.

¹⁰ SC Res. 995 (1994), UN Doc. S/RES/995, supra note 7, Art. 2.

¹¹ Dec. 9, 1948, 78 UNTS 277 [hereinafter Genocide Convention].

¹² Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 IC Rep. 15, 23 (Advisory Opinion of May 28), discussed in Theodor Meron, Human Rights and Humanitarian Norms as Customary Law 10–11 (1989).

¹³ For further discussion, see Meron, supra note 3, at 85.

¹⁴ Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808, UN Doc. S/25704, para. 47 (1993) [hereinafter Report of the Secretary-General].

¹⁵ “[W]hen committed in armed conflict, whether international or internal in character, and directed against any civilian population …” Id., para. 49; Yugoslavia Statute, supra note 8, Art. 5.

¹⁶ The Charter of the International Military Tribunal, 82 UNTS 280, Art. 6(c), defined crimes against humanity as crimes including “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal.” Article 3 of the Rwanda Statute defines crimes against humanity in accordance with paragraph 48 of the commentary to Article 5 of the Yugoslavia Statute (Report of the Secretary-General, supra note 14). The ILC’s commentary on Article 20 of the Draft Statute for an International Criminal Court reflects the same trend:

It is the understanding of the Commission that the definition of crimes against humanity encompasses inhumane acts of a very serious character involving widespread or systematic violations aimed at the civilian population in whole or part. The hallmarks of such crimes lie in their large-scale and systematic nature. The particular forms of unlawful act … are less crucial to the definition tha[n] the factors of scale and deliberate policy, as well as in their being targeted against the civilian population in whole or in part. … The term “directed against any civilian population” should be taken to refer to acts committed as part of a widespread and systematic attack against a civilian population on national, political, ethnic, racial or religious grounds. The particular acts referred to in the definition are acts deliberately committed as part of such an attack.

Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess., Supp. No. 10, at 76, UN Doc. A/49/10 (1994). The black-letter law of Article 20 tracks the definition of crimes against humanity that appears in the Yugoslavia Statute.

The Final Report of the Commission of Experts on Rwanda complicates the matter further by defining crimes against humanity as “gross violations of fundamental rules of humanitarian and human rights law committed by persons demonstrably linked to a party to the armed conflict, as part of an official policy based on discrimination against an identifiable group of persons, irrespective of war and the nationality of the victim.” UN Doc. S/1994/1405, annex, para. 135 (1994).

¹⁷ Rwanda Statute, supra note 7, Art. 3.

¹⁸ Meron, supra note 5, at 130; 15 Law Reports of Trials of War Criminals 135–36 (1949).

¹⁹ Genocide Convention, supra note 11, Art. 2. See also Rwanda Statute, supra note 7, Art. 2.

²⁰ Protocol Additional tp the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened far signature Dec. 12, 1977, 1125 UNTS 609, reprinted in 16 ILM at 1442 [hereinafter Protocol II].

²¹ Article 4 of the Rwanda Statute, supra note 7, reads:

The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to:

(a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

(b) Collective punishments;

(c) Taking of hostages;

(d) Acts of terrorism;

(e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

(f) Pillage;

(g) The passing of sentences and the carrying out of executions without previous judgement pro-nounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples;

(h) Threats to commit any of the foregoing acts.

²² UN Doc. S/1995/134, para. 12 (1995).

²³ One of the legal advisers of the International Committee of the Red Cross thus wrote: “IHL applicable to non-international armed conflicts does not provide for international penal responsibility of persons guilty of violations.” Denise Plattner, The Penal Repression of Violations of International Humanitarian Law Applicable in Non-international Armed Conflicts, 30 Int’l Rev. Red Cross 409, 414 (1990).

The chapter on execution of the Convention in each of the 1949 Geneva Conventions contains provisions on penal sanctions. For example, for the grave breaches provisions of the Fourth Geneva Convention, supra note 2, see Articles 129–30.

²⁴ Unpublished comments (Mar. 25, 1993).

²⁵ “[T]he content of customary law applicable to internal armed conflict is debatable. As a result, in general … the only offences committed in internal armed conflict for which universal jurisdiction exists are ‘crimes against humanity’ and genocide, which apply irrespective of the conflicts’ classification.” UN Doc. S/1994/674, annex, para. 42 (1994).

“[T]here does not appear to be a customary international law applicable to internal armed conflicts which includes the concept of war crimes.” Id., para. 52.

“It must be observed that the violations of the laws or customs of war referred to in article 3 of the statute of the International Tribunal [for the Former Yugoslavia] are offences when committed in international, but not in internal armed conflicts.” Id., para. 54.

²⁶ Report of the International Law Commission on the work of its forty-sixth session, supra note 16, at 78 (commentary to Art. 20).

²⁷ Id., commentary to annex, at 142.

²⁸ Id. at 145.

²⁹ Report of the International Law Commission on the work of its forty-sixth session, supra note 16, at 77–78.

³⁰ Id. at 44.

³¹ Id. at 66.

³² Id. at 71.

³³ Id.

³⁴ UN Doc. S/PV.3217, at 15 (May 25, 1993). The prosecution at the Yugoslavia Tribunal has followed this approach in treating forcible sexual intercourse as cruel treatment in violation of common Article 3(1)(a). See note 59 infra. The prosecution appears to believe that it may bring actions for violations of common Article 3 as if they were violations of the laws or customs of war. Thus, Indictment No. 1 against Nicolic (Nov. 7, 1994) states at paragraph 16.2 that Nicolic “violated the Laws or Customs of War, contrary to Article 3(1) (a) of the [Fourth] Geneva Convention” by participating in cruel treatment of certain victims. More generally, the indictment charges the accused with “[v]iolations of the Laws and Customs of War including those recognized by Article 3 of the Fourth Geneva Convention.” On common Article 3 in the Yugoslavia Statute, see also O’Brien, supra note 3, at 646.

³⁵ Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 114 (June 27).

³⁶ Office of the Chairman, Joint Chiefs of Staff, Memorandum for the DoD General Counsel, appendix (June 25, 1993) (unpublished, in the author’s files).

³⁷ Task Force of the ABA Section of International Law and Practice, Report on the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia 15 (1993).

³⁸ René Degni-Séqui, Report on the Situation of Human Rights in Rwanda, UN Doc. E/CN.4/1995/7, para. 54 (1994). See also infra text at notes 39–40.

³⁹ UN Doc. S/1994/1125, annex, paras. 90–93 (1994). Rwanda has been a party to Protocol II since 1984.

⁴⁰ Id., paras. 125–28.

⁴¹ Report of the Secretary-General, supra note 14, para. 34.

⁴² Military and Paramilitary Activities in and against Nicaragua, supra note 35, 1986 ICJ Rep. at 114. The Court also decided that the obligation of states under common Article 1 to respect and to ensure respect for the Geneva Conventions applies to common Article 3.

⁴³ G. I. A. D. Draper, The Modem Pattern of War Criminality, 6 Isr. Y.B. Hum. Rts. 9, 22 (1976).

⁴⁴ Yoram Dinstein, International Criminal Law, 20 Isr. L. Rev. 206, 221–22 (1985).

⁴⁵ Oct. 18, 1907, 36 Stat. 2277, 118 LNTS 343 [hereinafter Hague Convention No. IV].

⁴⁶ Opened for signature July 27, 1929, 47 Stat. 2021 (1932).

⁴⁷ See generally Nguyen Quoc Dinh, Droit International Public 621 (Patrick Daillier & Alain Pellet eds., 5th ed. 1994); Meron, supra note 12, at 208–15.

⁴⁸ United States v. von Leeb, 11 Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, at 462, 537, 539–40 (1948) (“The High Command Case”) [hereinafter Trials].

⁴⁹ Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, 1 Official Documents 223 (1947) [hereinafter Trial Documents].

⁵⁰ Cf. crimes of state in the meaning of Article 19 of the ILC’s draft articles on state responsibility (part one), adopted by the ILC on first reading. [1976] 2 Y.B. Int’l L. Comm’n, pt. 2, at 73, 95–96, UN Doc. A/CN.4/SER.A/1976/Add.1 (pt. 2). See generally Meron, supra note 12, at 208–15.

⁵¹ E.g., Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, Art. VII, 32 ILM 800, 810 (1993).

⁵² Hersch Lauterpacht, The Law of Nations and the Punishment of War Crimes, 21 Brit. Y.B. Int’l L. 58, 65 (1944). See also Lord Wright, War Crimes under International Lam, 62 L. Q. Rev. 40, 42 (1946). The Martens clause reads as follows:

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them [and annexed to the Convention], the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

Hague Convention No. IV, supra note 45, Preamble.

⁵³ Draper, supra note 43, at 18.

⁵⁴ United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War 34–35 (1948).

⁵⁵ Treaty of Peace with Germany, June 28, 1919, 2 Bevans 43, 11 Martens Nouveau Recueil (ser. 3) 323. See also Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Report Presented to the Preliminary Peace Conference, reprinted in 14 AJIL 95, 112–15 (1920) and Carnegie Endowment for International Peace, Division of International Law, Pamphlet No. 32, Violation of the Laws and Customs of War 16–19 (1919). The Commission recommended prosecuting all those guilty of offenses “against the laws and customs of war or the laws of humanity.” 14 AJIL at 117 (emphasis added).

⁵⁶ Supra note 46.

⁵⁷ 118 LNTS 303.

⁵⁸ Meron, supra note 12, at 37–41.

⁵⁹ As happened in the case of rape, see Meron, supra note 4, at 426–47 (concerning the readiness of the International Committee of the Red Cross and the U.S. Government to regard rape as a grave breach or war crime). It may be noted that the indictments presented by the Prosecutor against Meakić and others (Indictment No. 2, paras. 22.8–22.10 (Feb. 13, 1995)), and against Tadić and others (Indictment No. 3, paras. 4.2–4.4 (Feb. 13, 1995)) to the International Criminal Tribunal for the Former Yugoslavia treat “forcible sexual intercourse” as “cruel treatment” in violation of the laws or customs of war recognized by Article 3 of its Statute and common Article 3(1) (a) of the Geneva Conventions, and also as a grave breach of the Conventions of causing “great suffering” under Article 2(c) of its Statute. “Rape” is treated as a crime against humanity recognized by Article 5(g) of the Statute of the Tribunal.

⁶⁰ G. I. A. D. Draper, The Implementation and Enforcement of the Geneva Conventions of 1949 and of the Two Additional Protocols of 1977, 164 Recueil des Cours 1, 38 (1979 III).

⁶¹ Theodor Meron, Prisoners of War, Civilians and Diplomats in the Gulf Crisis, 85 AJIL 104, 106 (1991).

The Commentary on the Geneva Conventions of 12 August 1949: [No.] IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 593 (Oscar M. Uhler & Henri Coursier eds., 1958) observes that Article 146(2) of the Fourth Geneva Convention “does not exclude handing over the accused to an international criminal court whose competence has been recognized by the Contracting Parties.”

⁶² U.S. Dep’t of the Army, The Law of Land Warfare, para. 11 (Field Manual No. 27-10, 1956).

⁶¹ Id., para. 499. The British Military Manual states that “all other violations of the Conventions not amounting to ‘grave breaches’, are also war crimes.” UK War Office, The Law of War on Land, being Part III of the Manual of Military Law, para. 626 (1958).

⁶⁴ Regarding the exercise of jurisdiction over war crimes, see U.S. Dep’t of the Army, supra note 62, para. 505(d). Regarding the law to be applied, see id., para. 505(e). See also 10 U.S.C. §802(a) (9)–(10) (1988) (the following persons, among others, are subject to the U.C.M.J.: prisoners of war in custody of the armed forces and, in time of war, persons serving with or accompanying an armed force in the field). See also id. §818 (“General courts martial shall have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war.”). Although the U.S. authority under international law to prosecute violators is, in my view, clear, the U.S. statutory authority to prosecute is less so. See also infra note 81. The United States would typically not be interested in prosecuting alien violators of common Article 3 when the offenses occurred in civil wars in other countries.

⁶⁵ Federal Republic of Germany, Federal Ministry of Defence, Humanitarian Law in Armed Conflicts—Manual, para. 1209 (1992).

⁶⁶ Canadian Forces, Law of Armed Conflict Manual (Second Draft) at 18-5–18-6 (undated).

⁶⁷ Id. at 18-23.

⁶⁸ Report of the International Law Commission on the work of its forty-sixth session, supra note 16, at 112–13.

⁶⁹ Id. at 113–14.

⁷⁰ See Meron, supra note 5, at 127.

⁷¹ Opened for signature Dec. 16, 1966, 999 UNTS 171.

⁷² United Nations War Crimes Commission, supra note 54, at 232.

⁷³ Marc J. Bossuyt, Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights 331–32 (1987).

⁷⁴ 4 Trials, supra note 48, at 497 (1949). As Judge B. V. A. Röling put it, “The crime against humanity is new, not in the sense that those acts were formerly not criminal. … The newness is not the newness of the crime, but rather the newness of the competence to try it.” B. V. A. Roling, The Law of War and the National Jurisdiction Since 1945, 100 Recueil des Cours 325, 345–46 (1960 II).

⁷⁵ Trial Documents, supra note 49, at 220–21.

⁷⁶ Id. at 253.

⁷⁷ 11 Trials, supra note 48, at 534.

⁷⁸ United States v. List, id. at 759, 1239 (“The Hostage Case”).

⁷⁹ 4 id. at 597, 618.

⁸⁰ 15 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 28–48 (1949).

⁸¹ See Restatement (Third) of the Foreign Relations Law of the United States §402 (1987) [hereinafter Restatement]. See also Richard R. Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, 28 Brit. Y.B. Int’l L. 382, 391 (1951).

The U.S. Constitution grants Congress the power to define and punish offenses against the law of nations and permits it to make acts committed abroad crimes under U.S. law when this is permitted by international law. Andreas F. Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, 83 AJIL 880, 881–82 (1989). See also supra note 64 and infra note 121.

⁸² Dinstein, supra note 44, at 211–12; Baxter, supra note 81; 1 Oppenheim’s International Law 998 (Robert Jennings & Arthur Watts eds., 9th ed. 1992); Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2555, 2593–94 & n.91 (1991); M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law 510–27 (1992). See also Judgment of Oct. 6, 1983 (In re Barbie), Cass, crim., 1983 Gazette du Palais, Jur. 710.

In its comments on the establishment of an international criminal court, the United States emphasized that states have a continuing responsibility to prosecute those who commit crimes against humanity. UN Doc. A/ AC.244/1/Add.2, para. 23 (1995) [hereinafter U.S. Comments].

⁸³ Restatement, supra note 81, §404. Reporters’ Note 1 states that “[u]niversal jurisdiction to punish genocide is widely accepted as a principle of customary law.” See also A. R. Carnegie, Jurisdiction over Violations of the Laws and Customs of War, 39 Brit. Y.B. Int’l L. 402, 424 (1963); Jordan J. Paust, Congress and Genocide: They’re Not Going to Get Away with It, 11 Mich. J. Int’l L. 90, 92 & n.2 (1989).

In his separate opinion in the Genocide case before the International Court of Justice, Judge ad hoc Lauterpacht stated that the description of genocide as a crime under international law in Article 1 of the Convention was intended “to permit parties, within the domestic legislation that they adopt, to assume universal jurisdiction over the crime of genocide—that is to say, even when the acts have been committed outside their respective territories by persons who are not their nationals.” Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, 1993 ICJ Rep. 325, 443, para. 110 (Order of Sept. 13).

⁸⁴ The ILC’s Statute for an International Criminal Court allows any state party to the Genocide Convention to lodge a complaint with the Prosecutor alleging that a crime of genocide has been committed (Art. 25(1)). The court will have an inherent, or compulsory, jurisdiction over the crime of genocide (Art. 21(1)(a)). Although addressing international, not national, jurisdiction, these provisions appear to reflect the principle of universal concern for the punishment of the crime of genocide.

⁸⁵ Commentary on the Geneva Conventions of 12 August 1949: [No.] III Geneva Convention Relative to the Treatment of Prisoners of War 624 (Jean de Preux ed., 1960).

⁸⁶ Military and Paramilitary Activities in and against Nicaragua, supra note 35.

⁸⁷ 1986 ICJ Rep. at 114.

⁸⁸ On Article 1, see Luigi Condorelli & Laurence Boisson de Chazournes, Quelques remarques à propos de l’obligation des Etats de “respecter et faire respecter” le droit international humanitaire “en toutes circonstances,” in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet 17 (Christophe Swinarski ed., 1984). See also Protocol I, supra note 2, Arts. 1(1) and 89. Article 89 refers to the broader category of “serious violations” rather than to grave breaches, and appears to leave to each state the choice of means for complying with its obligations to act in situations of serious violations of the Conventions and the Protocol.

⁸⁹ Restatement, supra note 81, §404.

⁹⁰ Röling, supra note 74, at 342. Accord Howard S. Levie, Terrorism in War: The Law of War Crimes 192–93 (1993). Solf and Cummings observe that breaches of the Geneva Conventions are distinguishable from grave breaches by not being made subject to extradition, but they remain crimes under customary law and the perpetrators may be punished. Waldemar A. Solf & Edward R. Cummings, A Survey of Penal Sanctions under Protocollto the Geneva Conventions of August 12, 1949, 9 Case W. Res. J. Int’l L. 205, 217 (1977). Draper points out that

[t]he Conventions’ system of repression of breaches seems to assume that non-grave breaches are to be treated as war crimes for whose suppression States have a duty to take all measures necessary. Beyond that obligation, it is left to individual States to decide the mode of suppression. This might be by way of penal proceedings, judicial or disciplinary, or of administrative action.

Draper, supra note 43, at 45.

⁹¹ Röling, supra note 74, at 359.

⁹² Protocol I, supra note 2, Art. 90(2) (c) (i).

⁹³ International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 To the Geneva Conventions of 12 August 1949, at 1033 (Yves Sandoz, Christophe Swinarski & Bruno Zimmermann eds., 1987). States parties may, of course, “suppress any act or omission contrary to the provisions of these instruments [the Geneva Conventions and Protocol I]; furthermore they must impose penal sanctions on conduct defined by these same instruments as ‘grave breaches’.” Id. See also id. at 1012. The Commentary recognizes that, although the punishment of other than grave breaches is the responsibility of the power to which the perpetrators belong, “this does not detract from the right of States under customary law, as reaffirmed in the writings of a number of publicists, to punish serious violations of the laws of war under the principle of universal jurisdiction.” Id. at 1011. Contra Erich Kussbach, The International Humanitarian Fact-Finding Commission, 43 Int’l & Comp. L.Q. 174, 177 (1994) (who believes that only grave breaches of Protocol I involve individual criminal responsibility and that serious violations implicate state responsibility only). Mr. Di Bernardi (Italy) stated that national legislation which went beyond the grave breaches provisions could not be applied to armed forces of other states. 6 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), Official Records, Doc. CDDH/SR.44 (May 30, 1977), para. 76. A more persuasive view was expressed by Mr. Ullrich (German Democratic Republic), who stated that

the definition of grave breaches within the system of the Conventions and Protocol was a specific form of international co-operation in the prosecution of war crimes, but that it did not determine or limit the scope of war crimes. There were many other war crimes which were extremely grave violations of international law.

Id., para. 90.

⁹⁴ Restatement, supra note 81, §404; Oppenheim’s International Law, supra note 82, at 470.

⁹⁵ Draper, supra note 43, at 21. Compare G. Brand, The War Crimes Trials and the Laws of War, 26 Brit. Y.B. Int’l L. 414, 416 (1949).

⁹⁶ Röling, supra note 74, at 359–60. See also United Nations War Crimes Commission, supra note 54, at 30.

⁹⁷ Lauterpacht, supra note 52, at 64.

⁹⁸ Baxter, supra note 81, at 392 (footnotes omitted). Frits Kalshoven agrees that, in “customary international law, jurisdiction over war criminals is universal,” but points out that, in practice, it is limited to the belligerent parties. Frits Kalshoven, The Law of Warfare 119 (1973).

⁹⁹ 14 United Nations War Crimes Commission, supra note 80, at 15.

¹⁰⁰ Thomas Hetherington & William Chalmers, War Crimes: Report of the War Crimes Inquiry, 1989, Cmnd 744, at 45.

¹⁰¹ For other states’ war crimes legislation, see id. at 65–74.

¹⁰² Id. at 60.

¹⁰³ Id. at 72–73. See also L. C. Green, The German Federal Republic and the Exercise of Criminal Jurisdiction, 43 U. Toronto L.J. 207, 208 (1993). The Canadian law, in its most pertinent part, reads as follows:

every person who, either before or after the coming into force of this subsection, commits an act or omission outside Canada that constitutes a war crime or a crime against humanity and that, if committed in Canada, would constitute an offence against the laws of Canada in force at the time of the act or omission shall be deemed to commit that act or omission in Canada at that time if,

…

(b) at the time of the act or omission, Canada could, in conformity with international law, exercise jurisdiction over the person with respect to the act or omission on the basis of the person’s presence in Canada, and subsequent to the time of the act or omission the person is present in Canada.

[1987] 1 R.S.C. ch. 37.

Arnold Fradkin, who served as lead counsel for the prosecution in several Canadian war crimes cases, made this comment on the Canadian legislation:

A second subsection provides extraterritorial jurisdiction on the basis of the person’s presence in Canada where, at the time of the crime, Canada could have, in conformity with international law, exercised jurisdiction over the person with respect to the crime committed. This expresses what is known in international law as the “universal jurisdiction” concept. Certain crimes are committed not against a particular state but against the international community, and therefore any state in which the offender is located has the right to try the offender. … War crimes are crimes against humanity and should be subsumed under that same principle of universal jurisdiction.

Holocaust and Human Rights Law: The Fifth International Conference, 12 B.C. Third World L.J. 37, 48 (1992) (footnotes omitted).

¹⁰⁴ Bundesministerium für Landesverteidigung, Truppenführung, para. 52 (1965) (my translation).

¹⁰⁵ U.S. Dep’t of the Army, supra note 62, paras. 506–07.

¹⁰⁶ Supra note 81.

¹⁰⁷ Supra note 83.

¹⁰⁸ Report of the International Law Commission on the work of its forty-third session, [1991] 2 Y.B. Int’l L. Comm’n, pt. 2, at 104–05, UN Doc. A/CN.4/SER.A/1991/Add.1 (Pt. 2).

¹⁰⁹ May 14, 1954, 249 UNTS 240.

¹¹⁰ Id., Article 19(1) provides: “In the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property.”

¹¹¹ Id., Art. 28.

¹¹² June 17, 1925, 26 UST 571, 94 LNTS 65.

¹¹³ Apr. 10, 1972, Art. 1, 26 UST 583, 1015 UNTS 163.

¹¹⁴ Art. 1(1), 32 ILM 800 (1993). The Department of State’s Article-by-Article Analysis of the Convention, annexed to the President’s Letter of Transmittal to the Senate, points out that

the prohibition on the use of chemical weapons extends beyond solely their use in international armed conflicts, i.e. chemical weapons may not be used in any type of situation, including purely domestic conflicts, civil wars or state-sponsored terrorism. As such, this article closes a loophole in the Geneva Protocol of 1925, which covered only uses in war, i.e. international armed conflicts. Note that the phrase “never under any circumstances” reflects a similar phrase in Article I of the Biological Weapons Convention.

S. Treaty Doc. No. 21, 103d Cong., 1st Sess. 4 (1993). A recent commentary notes that the words “undertakes never under any circumstances” have a universal dimension, extend to all activities of state parties everywhere, and are independent of the character of the conflict, whether it is international armed conflict, nonintemational armed conflict, or civil strife. Walter Krutzsch & Ralf Trapp, a Commentary on the Chemical Weapons Convention 12–13 (1994).

¹¹⁵ Krutzsch & Trapp, supra note 114, at 109–15; S. Treaty Doc. No. 21, supra note 114, at 40–41.

¹¹⁶ Chairman’s Rolling Text, in Final Report of the Group of Governmental Experts to Prepare the Review Conference of the States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Doc. CCW/CONF.I/GE/23, Ann. 1 (1995) [hereinafter Final Report]. See generally The Arms Project of Human Rights Watch & Physicians for Human Rights, Landmines: a Deadly Legacy (1993).

Making Protocol II applicable in peacetime offers additional advantages. A key proposal accepted in principle by most of the delegations at the experts’ meetings would require that long-lived antipersonnel land mines be placed in marked and monitored areas protected to exclude civilians. Given the number of permanent, so-called barrier mine fields emplaced throughout the world, such a marking and monitoring requirement should apply at all times. Moreover, the proposal of the Netherlands to amend Protocol II to restrict the transfer of mines (Art. 6 ter) would make no sense if limited to times of armed conflict.

¹¹⁸ The Western “Alternative C” of Appendix I, Final Report, supra note 116, concerning compliance provides, in Article 12(4), as follows:

The provisions of the 1949 Geneva Conventions relating to measures for the repression of breaches and grave breaches shall apply to breaches and grave breaches of this Protocol during armed conflict. Each party to a conflict shall take all appropriate measures to prevent and suppress breaches of this Protocol Any act or omission occurring during armed conflict in violation of this Protocol, if committed wilfully or wantonly and causing death or serious injury to the civilian population shall be treated as a grave breach. A party to the conflict which violates the provisions of this Protocol shall, if the case demands, be liable to pay compensation, and shall be responsible for all acts committed by persons forming part of its armed forces. States parties and parties to a conflict shall require that commanders ensure that members of the armed forces under their command are aware of, and comply with, their obligations under this Protocol.

Another area that merits urgent attention is to extend to noninternational armed conflicts the international law prohibitions on environmental damage that are applicable to international wars.

¹¹⁹ Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain) (New Application), 1970 ICJ Rep. 3, 32 (Feb. 5).

¹²⁰ Yugoslavia Statute, supra note 8, Arts. 9–10; Rwanda Statute, supra note 7, Arts. 8–9; International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 [Yugoslavia Tribunal], Rules of Procedure and Evidence, UN Doc. IT/32/Rev.3 (Jan. 30, 1995); Yugoslavia Tribunal, Application [by the Prosecutor] for Deferral by the Federal Republic of Germany in the Matter of Dusco Tadić, Case No. 1 of 1994 (Nov. 8, 1994); Decision of the Trial Chamber in Case No. 1 of 1994, IT-94— 1 -D (Nov. 8, 1994); Yugoslavia Tribunal, Application by the Prosecutor for a Formal Request for Deferral by the Government of Bosnia and Herzegovina of Its Investigations and Criminal Proceedings in Respect of Radovan Karadzić, Ratko Mladic and Mico Stanisić (Apr. 21, 1995), Decision by the Trial Chamber in Case No. IT–95–5–D (May 16, 1995); and, concerning the Lasva River Valley Investigation, Decision by the Trial Chamber in Case No. IT–95–6–D (May 11, 1995).

Regarding the relations between national courts and the proposed international criminal court, see Report of the International Law Commission on the work of its forty-sixth session, supra note 16, at 129–38, Arts. 51–58.

The United States expressed the concern that the statute adopted by the ILC does not adequately reflect the principle that the jurisdiction of the proposed international tribunal should be complementary to the national criminal justice systems. U.S. Comments, supra note 82, paras. 6–14. The United States proposed that the state of nationality, or any other state actively exercising jurisdiction, should have preemptive rights of jurisdiction in relation to the proposed international tribunal. Id., para. 68.

¹²¹ Loi de 16 juin 1993 relative à la répression des infractions graves aux conventions Internationales de Genève du 12 août 1949 et aux protocoles I et II du 8 juin 1977, additionnels à ces conventions, Moniteur Belge, Aug. 5, 1993; Eric David, Principes de droit des conflits armés 556 (1994).

¹²² Other warrants involved the killing of Belgian peacekeepers, among others. Parquet de Bruxelles, Crimes de guerre au Rwanda, Press Communiqué No. 30.99.3959/94 (May 30, 1995) (in the author’s files).