¹ This study was written as part of a general survey of breaches committed by States, international organizations or individuals. That survey proved too long for publication in full in the Review. We have therefore published only the part that concerns breaches by individuals.

² Bassiouni, Cherif, Derecho penal international, Proyecto de Código penal international, Tecnos, Madrid, 1984, pp. 60–61.Google Scholar

³ Spanish “classical” authors, and subsequently authors of other nationalities, did much to lay the foundations of what became the domestic system for the repression of such breaches.

⁴ See Plawski, Alexandre, who points out on p. 18 of his Etudes des principes fondamentaux du droit international penal, Librairie générale de droit et de jurisprudence, Paris, 1972 Google Scholar, that international penal law originated only in the nineteenth century and that previously any such ideas had been only tentatively explored.

⁵ E.g. Lieber, Francis, Instructions for the Government of Armies of the United States in the Field, of 24 04 1863 Google Scholar, ordering that soldiers guilty of breaches of the law of war should be prosecuted, whether they belonged to the United States armed forces or were enemy prisoners.

⁶ As was done in The Hague Conventions of 1899 and 1907.

⁷ See Antonio Quintano Ripollds ( Criminalidad de Guerra, Nueva Enciclopedia Jurídica Seix, Editorial Seix, Barcelona, 1954, vol. VI, p. 10)Google Scholar, who remarks that attempts to assign responsibility are rarely successful because of the dictum universitas delinquere non potest, and that if the State were the only entity answerable to the law but as a State could not commit an offence, and if an individual were not answerable to international law, both would enjoy impunity and anarchy would result.

⁸ As stated in Article 851 of the Spanish Field Service Regulations of 5 01 1882.Google Scholar

⁹ Articles 227, 228 and 229 of the Treaty of Versailles arraigned the Kaiser for “a supreme offence against international morality and the sanctity of treaties”.

¹⁰ Some of the accused were tried by German courts, which awarded only light sentences. Others were not handed over to foreign courts for trial. This contravened the spirit of the Treaty.

¹¹ On 13 January 1942 the governments of the Allied countries occupied by Germany drew up the “Declaration of St. James' Palace” for the punishment of war criminals, and on 1 November 1943 the Allies published the “Moscow Declaration” to the same effect.

¹² These tribunals were standardized by Kontrollratsgesetz No. 10 of 20 12 1945 Google Scholar, which followed the principles of the International Military Tribunal.

¹³ Although the War Crimes Commission was set up in London to order the handover of accused persons, there is no doubt that each country followed its own rules of procedure: Belgium on 20 July 1947, Holland on 10 July 1947, Norway on 4 May 1945, the United Kingdom on 14 June 1945, and France on 28 August 1944.

¹⁴ This Tribunal followed the London Charter, with a few amendments; thus the penal concept of “conspiracy” was dropped, the number of members of the tribunal was increased and its jurisdiction was extended to other individuals and territories.

¹⁵ Such as the tribunals set up to try the persons responsible for the murder on the Jaluit Atoll of three captive American airmen, and to try the Yamashita case (of failure to act to prevent the commission of war crimes).

¹⁶ It also included the concept of criminal “conspiracy” (an Anglo-American innovation later dropped) by providing in the last paragraph of Article 6 that “Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan”.

¹⁷ The first paragraph of Article 9 of the Charter reads: “At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.” See de Touzalin, H., “Réflexions à propos du délit d'appartenance sur un essai d'unification des règies de répression en matière d'infraction aux lois et coutumes de la guerre”, Revue de droit pénal militaire et de droit de la guerre, Brussels, IV–I, 1965, pp. 133ff.Google Scholar

¹⁸ The Nuremberg Tribunal gave judgment on 1 October 1946 and the Tokyo Tribunal on 12 November 1948. The remaining tribunals ceased to function in 1949, except for a few local ones whose activities continued.

¹⁹ The remaining instruments dealing with the general question of repression of breaches of international law committed by individuals are mentioned above.

²⁰ The Second Session (5 June to 29 July 1950) of the International Law Commission of the United Nations formulated the seven “Nurnberg Principles”, adopting practically the same definition of offences as the London Charter of 1945.

²¹ This Convention of 26 November 1968 also applies to crimes against humanity.

²² Each country has its own regulations and its own ways of applying international law. As a result, a particular offence may be classed as an offence, a crime or a misdemeanour in some national legislations, and simply ignored in others. Consequently some States apply severe penal sanctions, others minor penalties, and still others no penalties at all, and the accused person's fate will depend on where the offence was committed and on the country that has to try him. He may even prefer to be tried by a foreign court rather than by the courts of his own country.

²³ Various proposals have been put forward to remedy this state of affairs. The most modest is for a “model law” as a basis for governmental action. A rather more ambitious proposal is that there should be an “international law to cover criminal offences”. The most ambitious proposal is that an international court be empowered to try at least this kind of breach. But as Henri Bosly observes (in “Responsabilités des Etats Parties à un conflit et des individus quant 'application des règles de droit humanitaire”, Revue de droit pénal militaire et de droit de la guerre, XII–2, 1973, pp. 201ff)Google Scholar the first solution “has been sought for several years past”, the second is “unlikely in the foreseeable future”, and the third is at present impracticable because many States regard it as “an unacceptable limitation of national sovereignty”. Accordingly, at present only two kinds of courts can possibly try these breaches: national courts, and perhaps international courts set up ad hoc as and when armed conflicts break out. There is no doubt that in this as in many other situations the international community has gone as far as it can, given its present state of maturity.

²⁴ Previous ones are Articles 27 and 28 of the Geneva Convention of 6 July 1906 for the amelioration of the condition of the wounded and sick in armed forces in the field, Article 46, para. 2, of the Regulations respecting the laws and customs of war on land, annexed to The Hague Convention of 18 October 1907, and Articles 28 and 29 of the Geneva Convention of 27 July 1929 for the amelioration of the condition of the wounded and sick in armed forces in the field.

²⁵ The Conventions, but not Protocol I, are now binding on practically all States, and this has to be taken into account when considering the effects of international regulations mandatory for all States.

²⁶ “The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949”.

²⁷ Articles 105ff. of the Convention of 1949 relative to the treatment of prisoners of war refer to prisoners' rights and means of defence, appeals, notification of sentence and penal regulations.

²⁸ As stated in the Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ed. Sandoz, Yves, Swinarski, Christophe, Zimmermann, Bruno, ICRC, Martinus Nijhoff Publishers, Geneva, 1987, p. 992, para. 3467Google Scholar, “The system of repression in the Conventions is not to be replaced, but reinforced and developed … so that it will in the future apply to the repression of breaches of both the Protocol and the Conventions”.

²⁹ Raphaël, Barras, “Incidences des dispositions pénales du Protocol I additionnel aux Conventions de Genève de 1949 sur le système judiciaire national”, Revue de droit pénal militaire et de droit de la guerre, Vol. XXI, 1982, p. 416 Google Scholar, says that international provisions are “imperfect” and that national legislations “have necessarily to bridge this gap”.

³⁰ For example, the Société Internationale de Droit Militaire et de Droit de la Guerre has had great difficulty in eliciting national responses to its questionnaire on Criminalistic and criminological aspects of national repression of grave breaches of humanitarian law.

³¹ The International Committee of the Red Cross observes that ordinary penal legislation (i.e. the civilian and military penal codes) does not adequately ensure repression of breaches of the Geneva Conventions. See Respect of the Geneva Conventions — Measures taken to repress violations (Reports submitted to the International Committee of the Red Cross to the XXth and the XXIst International Conferences of the Red Cross), Geneva, 1971, vol. I, p. X.Google Scholar

³² Among these countries are the following. France, which let slip the opportunity of ratification offered by the reform of its Code of Military Justice. The projected reforms formally covered breaches of the law of war. Instead the French Government listed in its Code of Military Justice and in the recent General Disciplinary Regulations for the Armed Forces of 12 July 1982 certain offences and misdemeanours which are partly the same as the breaches mentioned in the Conventions and Protocol I. The French Government replied to the ICRC that “Many articles of the Penal Code and Code of Military Justice, although not specifically covering the breaches mentioned in the Geneva Conventions, ensure repression of the crimes and offences prohibited by the Conventions. The French Government accordingly considers that it has duly complied with the undertaking required by the Conventions”. Portugal, Article 87 of whose Code of Military Justice states in general terms and without specifically referring to the Geneva Conventions that any member of the armed forces “who has committed any act condemned by an international Convention to which the Portuguese Government has acceded” will be punished “unless such acts are essential to the success of military operations”. That proviso is evidently not in accordance with the spirit or the letter of the Geneva Conventions. The United States, which maintains that the penalties prescribed in its military and civil legislation adequately punish the breaches of the law of war specified in the Geneva Conventions. Under Articles 18 and 21 of the Uniform Code of Military Justice, war crimes committed by persons subject to that Code are punishable by military courts. Similarly, the United States government maintains that many grave breaches, if committed in the United States, are breaches of its domestic legislation and are therefore punishable by civil courts. The United States only punishes war crimes as such when these are committed by enemy nationals or persons in the service of the enemy. There is then no conflict with international law because the circumstances are covered by the country's own legal system. Japan, which maintains that since its Constitution condemns resort to war, citizens of Japan can obviously never be in the situation envisaged by the Conventions. It nevertheless also alleges that breaches of the Conventions are punishable under its criminal law. Other countries such as Iraq and South Africa.

³³ Among the countries that have shown by introducing Bills into Parliament that they intend to meet their commitment are the following. Belgium, which previously put forward a government Bill which was not approved, and subsequently presented another one comprising eleven articles in two chapters. The first of these lists and typifies grave breaches, and the second covers competence, procedure and the execution of penalties. That Bill, No. 577, was put before Parliament in its 1962–1963 session in compliance with the obligation undertaken when Belgium ratified the Geneva Conventions. It is a very comprehensive Bill which imposes severe penalties for breaches and even deals with exemption from penal responsibility. The Federal Republic of Germany, which although it declared in 1964 that all the breaches of the laws of armed conflicts mentioned in the Conventions are punishable under its ordinary criminal law, has put forward a government Bill relating to offences against the laws and customs of war. This Bill provides for special legislation supplementing ordinary criminal law, in some cases by broadening the definition of offences under ordinary law, and in others defining offences ex novo where there are no other means of punishing certain breaches. The penalties prescribed are comparatively moderate. Italy's position is different; it has not brought in any Bill. Its penal laws are insufficient to punish the breaches mentioned in the Geneva Conventions; the Italian wartime Code of Military Justice, dating from 1941, merely contains a number of provisions that whilst repressing acts contrary to the laws and customs of war make no provision for including the breaches specified in the Conventions. Part III, Chapter III of that Code, ambitiously entitled “Prohibited Acts of War”, is anything but comprehensive. Nevertheless Italy, which in 1986 ratified both Protocols although with reservations, has not put forward any Bill covering the breaches specified in the Conventions or Protocol I. Many other States are in this situation, which is regrettable, for even a heterogeneous system of organized repression is better than having no provisions at all to supplement international regulations.

³⁴ This category comprises a long list of countries, among them Spain, whose Military Penal Code of 1985, Articles 68–79, mention (in their own words) all the breaches specified in the Conventions; Switzerland, which has added the breaches specified in the Conventions to Articles 109ff of its Military Penal Code of 1950; Holland, whose Acts of 19 May 1954 and 10 July 1962 have adapted its provisions on war crimes to the provisions of the Geneva Conventions; the United Kingdom, whose Geneva Conventions Act of 1957 adapts its legislation to the Geneva Conventions of 1949, repressing the grave breaches specified therein and making rules affecting both the substance and procedure of its penal laws; Australia, in an Act of 1957 on the same lines as that of the United Kingdom; Canada, which has introduced regulations that are also on the same lines as those of the United Kingdom; Ireland, in an Act of 1962 on the British model; India, which complied with its undertaking in the same way in an Act of 1960; New Zealand, in a special Act of 1958 worded in much the same way as the British one; Uganda, in an Act of 1964; Malaysia, in an Act of 1962; Kenya, in an Act of 1968, and other countries that are members of the British Commonwealth. Much the same lines have been followed in Sweden, which carried out a reform of its legislation in 1964, when it introduced far-reaching regulations to comply with its undertaking; Norway, which has amended Article 108 of its Military Penal Code to prosecute persons committing any of the grave breaches mentioned in the Conventions; Denmark, Chapter 25 of whose Military Penal Code has been brought into line with the Conventions by rendering punishable all the breaches mentioned in the Conventions; and Yugoslavia, which has added to its Penal Code a series of provisions covering the breaches mentioned in the Conventions. A special case worthy of separate mention as one that most fully complies with the undertaking to introduce regulations supplementing those of international law is Ethiopia, whose Penal Code of 1957, drawn up by Professor Jean Graven of Switzerland, “boldly incorporates in the laws of the country, more systematically and completely than some other legislations have done since die Geneva Conventions of 1949, the whole new field of breaches of international law” by adding all the breaches specified in the Geneva Conventions to its Articles 282ff.

Many countries, therefore, have formally complied with their undertaking. But as Georges Levasseur and R. Merle (from whom we have borrowed heavily in drawing up the above classifications of countries) say in L'état des législations internes au regard des obligations contenues dans les Conventions Internationales de droit humanitaire. Centre de droit international de l'Université de Bruxelles, Brussels, 1970, p. 251 Google Scholar, the important thing is “to know whether the countries that have special legislation do in fact apply it effectively, and if so, how”. As they point out, it would be difficult to reach a reliable conclusion on this point, because of the lack of information, the ICRC's wholly justified discretion, and the evident unwillingness of the local authorities responsible to comment on violations of the law of war. It has not always been possible for the author to obtain the latest information on the legal situation in various countries, which may have changed since the time of writing.

³⁵ Those countries include the USSR, whose Penal Code of 1960 covers breaches committed by members of the armed forces who are prisoners of war, and offences committed against them. A similar practice was followed by Hungary, which punishes breaches committed against prisoners of war and certain breaches committed against the civilian population; and Czechoslovakia, whose law of 1961 provides sanctions for offences committed against prisoners of war, the wounded, sick and shipwrecked and the civilian population. In all these countries the special rules refer only to substance, i.e., the breach. No special rules having been adopted for procedure, the usual general rules, or special military rules, are applied.

³⁶ See The Geneva Conventions of 12 August 1949 — Commentary published under the editorship of Jean S. Pictet, ICRC, Geneva, 1962 Google Scholar, First Geneva Convention, p. 353 Google Scholar: “There is no unity of inspiration between the different systems. In the Anglo-Saxon countries it would appear that the existence of a rule of international law, whether explicit or customary, and whether it makes provision for penal sanctions or not, entitles national tribunals to pass sentence when the rule is violated. In the countries of the European continent, on the other hand, a penal law can only be applied if it embodies a normative rule, and further carries explicit provisions with regard to the nature and severity of the penalty. In these latter countries the maxim nulla pena sine lege has lost none of its force.

Whatever one's views may be on the repressive action taken after the Second World War, it will be agreed that it would have been more satisfactory, had it been possible to base it on existing rules without being obliged to have recourse to ad hoc measures.”

³⁷ To list all the acts regarded by the Conventions as “acts contrary” would be never-ending and would require examination of all the obligations imposed by the treaties.

Because of their special significance, we quote here Article 54 of the First Convention and the corresponding Article 45 of the Second Convention, both of which state that “The High Contracting Parties shall, if their legislation is not already adequate, take measures necessary for the prevention and repression at all times, of the abuses…” of the protective emblem of the Red Cross (even when used only for purposes of indication).

³⁸ Article 11, paras. 1 and 2, reads:

“1. The physical or mental health and integrity of persons who are in the power of the adverse Party or who are interned, detained or otherwise deprived of liberty as a result of a situation referred to in Article 1 shall not be endangered by any unjustified act or omission. Accordingly, it is prohibited to subject the persons described in this Article to any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty.

2. It is, in particular, prohibited to carry out on such persons, even with their consent:

a) physical mutilations;

b) medical or scientific experiments;

c) removal of tissue or organs for transplantation, except where these acts are justified in conformity with the conditions provided for in paragraph 1”.

³⁹ Article 11, para. 3, considers a number of commonsense exceptions to the above rules.

⁴⁰ See Additional Protocol I, Article 85.

⁴¹ Article 44 of the Protocol protects (and defines) combatants and prisoners of war. Article 45 protects persons who have taken part in hostilities, to whom it grants provisional prisoner-of-war status. Article 73 relates to refugees and stateless persons, specifying that they are protected persons.

⁴² Article 57 relates to precautions in attack and requires that an attack shall not be decided upon if it “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.

⁴³ Article 37 prohibits perfidy in general, including the feigning of protected status by the use of signs or emblems.

⁴⁴ Article 49 of the Fourth Convention prohibits individual or mass forcible transfers and deportations other than a total or partial evacuation necessary for the security of the population.

⁴⁵ Article 53 of the Protocol prohibits acts of hostility directed against historic monuments, works of art or places of worship. Its sub-paragraph (b) states that it is prohibited “to use such objects in support of the military effort”.

⁴⁶ What is meant by grave breaches being “regarded as” war crimes is not altogether clear. Perhaps the only reason for this provision is to avoid ambiguity by putting grave breaches of any kind on the same footing as war crimes and using the latter term to cover both.

⁴⁷ The regulations relating to repression in the law of war are inevitably on the lines of all punitive systems, which are based on a conditional proposition consisting of a supposition (delinquent conduct) and a consequence (its penal sanction). (See Devesa, J. M. Rodríguez: Derecho Penal Español, Parte General, Madrid, 1973, vol. I, p. 145)Google Scholar. It has accordingly been necessary to define certain kinds of behaviour that violate its legal rules, as the basis of the sanction.

⁴⁸ In the law of war, generally speaking, the victim of breaches may be an individual or a group, always provided that such individual or group forms part of one of the “categories” defined in the Conventions and Protocol I. It follows that the law of war does not protect all and sundry in a special way, but only persons who are “specially protected” because they are comprised in the said categories. This is no obstacle to the existence of general protection, which is also recognized by humanitarian law. In some cases, belonging to these categories makes no very great difference; but in others, for example where prisoners of war are concerned, inclusion in this category is all-important (see the Commentary on the Third Geneva Convention, Geneva, 1960, pp. 50ff).Google Scholar

⁴⁹ Here we come upon the difficulty which criminal law in general finds in constructing a concept of its own of what is called the “natural offence” (see Maggiore, Giuseppe: “Delitto naturale e delitto legale”, Riv. de Crim. e Diritto Crim., 1948)Google Scholar, and consequently the difficulty of constructing a separate concept of what might be called a “natural” grave breach.

⁵⁰ The Commentary on the First Geneva Convention, op. cit., p. 371 Google Scholar, states: “The actual expression ‘grave breaches’ was discussed at considerable length. The USSR Delegation would have preferred the expression ‘grave crimes’ or ‘war crimes’. The reason why the Conference preferred the words ‘grave breaches’ was that it felt that, though such acts were described as crimes in the penal laws of almost all countries, it was nevertheless true that the word ‘crimes’ had different legal meanings in different countries.”

⁵¹ As the Commentary on the Additional Protocols, op. cit., para. 3621, p. 1045 Google Scholar, explains, “virtually no distinction is made between grave breaches and serious violations in the text of the Conventions or the Protocol, which almost always refers to ‘grave breaches’”.

⁵² Article 85, para. 5, of Protocol I, which contains this term, was criticized. See the Commentary on the Additional Protocols, op. cit., paras. 3521 and 3522, p. 1003 Google Scholar: “This paragraph, which was considered indispensable or self-evident by some delegations, seemed out of place or dangerous to others. The former emphasized the need to confirm that there is only one concept of war crimes, whether the specific crimes are defined under the law of Geneva or The Hague and Nuremberg law. Without denying that grave breaches of the Conventions and the Protocol are indeed war crimes, the latter preferred those instruments to stick to their own terminology in view of their purely humanitarian objectives”.

⁵³ The Preamble of the Agreement of 8 August 1945 of the Quadripartite Commission for the prosecution of war crimes states that the four Governments are “acting in the interests of all the United Nations”.

Article 19 of the Draft Article on the responsibility of States, approved by the United Nations International Law Commission, states that the internationally unlawful event resulting from violation by a State of an international obligation so essential to the safeguard of fundamental interests of the international community that its violation is recognized as a crime by that community as a whole constitutes an international crime. The inference appears to be that an international crime is a violation of the interests of the international community, which are fundamental. This, in our opinion, is where war crimes should be placed. Furthermore, in legislation that recognizes a difference between “crime” and “offence”, “crime” means a more serious violation.

⁵⁴ The enumeration of grave breaches in Article 50 of the First Convention (and its corresponding articles in the other three Conventions) begins: “Grave breaches… shall be those involving any of the following acts” — “any” being rendered in the French version “l'un ou l'autre” and in the Spanish version “algunos”. The enumeration is therefore not exhaustive. The Commentary on the First Convention, op. cit., p. 367 Google Scholar, states that “apart from the ‘grave breaches’ enumerated in Article 50, it is easy to think of other infractions which are also serious, such as the improper use of the red cross emblem in time of war”.

⁵⁵ In our opinion, grave breaches are not only those explicitly enumerated but also those which may be inferred from the Conventions and from the Protocol (because it refers to the Conventions) or from other texts of customary or treaty law. The Commentary on the Protocols, op. cit., p. 976 Google Scholar, note 11, states: “This means that only the conduct included in the list (Article 85, sub-paragraphs 2–4 of the Protocol) is subject to universal jurisdiction under the Conventions and the Protocol. It does not mean that other breaches cannot also be subject to universal jurisdiction by reason of customary or treaty law”.

⁵⁶ “Violations of certain of the detailed provisions of the Geneva Conventions might quite obviously be no more than offences of a minor or purely disciplinary nature, and there could be no question of providing for universal measures of repression in their case”. ( Commentary on the First Convention, op. cit., p. 370).Google Scholar

⁵⁷ See Stanislaw E. Nahlik, “Le problème des sanctions en droit international humanitaire”, in Studies and essays on international humanitarian law and Red Cross principles, in honour of Jean Pictet, ICRC, Martinus Nijhoff Publishers, Geneva, The Hague, 1984, p. 477 Google Scholar, who states that it was intended to make such a list of breaches in the 1954 Convention on the protection of cultural property, and that “it only remains for some commentator to make it”.

⁵⁸ Article 86, para. 1, Protocol I.

⁵⁹ At least for the purposes of the competence of the International Fact-Finding Commission mentioned in Article 90, Protocol I, “Minor violations may become serious if they are repeated, and it is then up to the Commission to determine this” ( Commentary on the Protocols, op. cit., para. 3621, p. 1045). And, as stated above, a serious violation is a grave breach.Google Scholar

⁶⁰ The substance or penal aspect of sanctions for breaches necessarily has to follow the progression “offence — responsibility — penalty”. Clearly therefore, in order to comply with their obligation to enact legislation to punish breaches, States have to begin by designating the offence and, therefore, “typifying” it.

⁶¹ In principle, classification of States according to their attitude to typification of breaches is independent of the general classification according to their attitude to fulfilling their obligation; but these classifications of course overlap.

⁶² This group includes the following countries: very significantly, the United States, whose doctrine is that violations of the law of war committed by persons subject to the military law of the United States are usually violations of the Uniform Code of Military Justice and have therefore to be punished as offences contained in that Code. Violations of the law of war by persons not subject to military law, within the United States, are usually violations of Federal law or of State criminal law and must be prosecuted as offences covered by such law. The only offences prosecuted under international law are violations of the law of war committed by enemy nationals or persons serving the interests of an enemy State, in accordance with the old principle that “international law is part of the law of the land”. France, whose Code of Military Justice and Regulations for General Discipline of the Armed Forces establish prohibitions that in part coincide with international breaches. Articles 407ff of the French Code of Military Justice typify some offences in detail and Article 445 of that Code appears also to adopt a global typification. Barras, (op. cit., pp. 422–423)Google Scholar states that there is also still repression by analogy, basing this opinion on the Ordinance of 28 August 1944 relating to the repression of war crimes, which was only temporarily in force but could be used as a system of analogy if needed. The Federal Republic of Germany introduced a Bill which appears to be formulated independently of the typification of international breaches but has its own detailed system of typification. In many ways it goes further than the Conventions or even Protocol I in providing for the protection of individuals. Belgium also introduced a Bill which with regard to typification of offences follows more or less the same lines. There is however some doubt that it can form part of this group of countries, for it seems to follow the definitions of grave breaches used in the Conventions and Protocol more closely than the German Bill. Italy must also be included; its Military Penal Code of 1941 contains a series of precepts for the repression of offences against the laws and customs of war. These naturally bear no relation to international breaches.

⁶³ Many countries may be included in this group, but because of its significance in relation to typification of punishable war offences Ethiopia may be singled out. As stated above, its Penal Code was drawn up by Professor Jean Graven, and adopts in detail all the breaches of the Conventions but with its own typification or re-typification. Another is Spain, Articles 68 to 79 of whose recent Military Penal Code of 9 December 1985 contain a somewhat controversial re-typification of many internationally defined breaches, adding other offences and ending with a general provision relating to the other acts contrary to the prescriptions of the international Conventions ratified by Spain. Yugoslavia has similarly inserted into its Penal Code, in Articles 124ff, a series of offences practically the same as all those classed as grave breaches in the Conventions, but like Spain reformulating them. Holland, soon after ratifying the Geneva Conventions, enacted a new “Act on War Criminal Law”, modifying and supplementing its previous legislation and adapting it to the international texts by a general provision repressing violations of the laws and customs of war, and inserting into its ordinary Penal Code a series of specific provisions for the repression of certain violations. Finally, Norway's Military Penal Code gives a general typification and the civil Penal Code maintains specific typifications.

⁶⁴ The use of the word “renvoi” is acceptable only with reservations, because of its specific meaning in private international law. In any case, taking into account the reference of the international system to the domestic system of a State, and vice versa, one might speak of a “return renvoi”.

⁶⁵ There are many countries in this group: the United Kingdom, whose Geneva Conventions Act of 1957 punishes globally all the grave breaches enumerated in the Geneva Conventions and actually refers to the list of those breaches contained in each of those Conventions; Ireland, whose Act of 1962 follows the British model of general typification and as well as this reference to grave breaches contains other rules punishing “minor violations”; Denmark, Article 25 of whose Penal Code contains a global typification that refers to international regulations; Australia, whose Act of 1957 follows the British example; Canada, whose Act if worded in much the same way as the British one; India, New Zealand, Uganda, Kenya, Nigeria and Malaysia, that have more or less adopted the British example and approach; Brazil, Articles 400 to 408 of whose Military Penal Code adopted a system of global typification by reference to the breaches specified in the international texts; and Switzerland, where the Military Penal Code in force since 1968 adopts a general typification referring to the international Conventions on the conduct of war, undoubtedly because it considers that the typification in the Geneva Conventions is itself sufficiently clear.

The above list of countries is not exhaustive, any more than are the lists of countries adopting the other methods described above. Direct documentary sources are scanty, incomplete and unreliable, and some countries may therefore have been wrongly classified in the above groups.

⁶⁶ The need to typify any breach of the regulations when a penal sanction is to be imposed stems directly from the principle nullum crimen sine lege, which means that no offence is committed unless the law has previously stated that the action taken is an offence.

⁶⁷ Disregarding matters of theory which belong rather to any penal system, the three questions raised by the element of responsibility are: the persons who commit or take part in the offence, the degree of commission of the offence, and the extenuating circumstances or absence of civil responsibility. In certain cases (not considered here) there is civil as well as penal responsibility.

⁶⁸ The distinction between disciplinary and penal responsibility is a matter for each lawgiver to decide, to allow for the quantitative difference of the breach. We therefore refrain for the present from drawing any distinctions in international terms. In principle, all that is said of penal responsibility is applicable to disciplinary responsibility; more will be said on this later.

⁶⁹ Referring exclusively to the Conventions, as is only logical, the Commentary on the First Convention, op. cit., p. 364, reads: “The penal sanctions which are to be provided for are for persons committing grave breaches or ordering them to be committed. The joint responsibility of the author of an act and the person ordering its commission is thus established. They are both liable to prosecution as accomplices. … But there is no reference to the responsibility of those who fail to intervene, in order to prevent or suppress an infraction.” This is undoubtedly true in the Conventions and has therefore been corrected in Article 86, para. 2, of Additional Protocol I (quoted above), to which the Commentary on the Protocols, op. cit., para. 3540, p. 1011, refers as follows: “The recognition of the responsibility of superiors who, without any excuse, fail to prevent their subordinates from committing breaches of the law of armed conflict is therefore by no means new in treaty law. However, this principle was not specifically governed by provisions imposing penal sanctions”. It is clear from this that responsibility has been extended to include persons “tolerating” breaches of Protocol I and of the Conventions, taking into account the terms of Article 86, para. 2, of Protocol I.

⁷⁰ Article 6 of the Charter adopted the principle of individual responsibility for the commission of any of the war crimes it defined, in addition to the responsibility of the leaders, organizers, instigators and accomplices in the formulation or execution of a common plan or conspiracy to commit the said crimes, and in all acts performed by any persons in execution of such plans.

⁷¹ What the Commentary on the First Convention, op. cit., p. 365 says on the question of guilt for acts committed on the orders of a superior may be regarded as generally applicable: “The Diplomatic Conference did not pursue this idea, however, preferring to leave the solution of the problem to national legislation”.

⁷² At the Nuremberg and Tokyo trials the lawyers for the defence raised a number of objections to the requirement of penal responsibility, all of which were rejected as contrary to international law. These were (1) the principle nullum crimen sine lege, which was rejected by a broad interpretation of the law, to the effect that laws are not only written regulations but also customary laws; (2) that penal laws were not retroactive; this was also rejected for similar reasons, i.e., on the grounds that such crimes had already been recognized as such when they were committed; (3) the exculpatory circumstances that the acts were committed under orders from a superior, i.e., the defence of due obedience. This objection was overcome by enacting Article 8 of the Charter, providing that due obedience did not relieve the defendant of responsibility but was at most an extenuating circumstance; and (4) the objection of state of necessity, which was rejected because that excuse had never been accepted in international law and had been condemned by the civilized world.

⁷³ The Principles of international law recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal, adopted in 1950 by the United Nations International Law Commission, reject certain objections to the requirement of penal responsibility. Principle II states that “The fact that internal law does not impose a penalty for an act that constitutes a crime under international law does not relieve the persons who committed the act from responsibility under international law”. Principle III states that “The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law”. And Principle IV establishes that “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him”.

⁷⁴ The necessary documentation is hard to come by.

⁷⁵ This is the position of nearly all States, although it often poses difficult problems. A typical case is that of the United States, which applies its domestic law, military or civil, to punish persons guilty of breaches equivalent to breaches under international law; at present the defence of due obedience is contested. Another State in this position is France. France too applies its domestic law on the matter of responsibility, sometimes its civil laws and at other times its military rules, whichever apply to the acts committed contrary to the laws and customs of war.

⁷⁶ Some countries have introduced their own modifications of responsibility, among them Spain, which has restricted penal responsibility to members of the armed forces, and Portugal, which has done the same. This position is very much open to criticism, as persons who violate the laws and customs of war have to be tried for responsibilities that are hard to fit into other codes of punishment. The United Kingdom expressly establishes the responsibility of persons committing or taking part in, or acting as accomplices in or abettors of, breaches wherever committed (so rejecting its old territorial tradition); and Holland expressly assigns responsibility to a person giving an unlawful order.

Thorough examination of the texts (unfortunately not available) of other countries would probably lead to their inclusion in this list.

⁷⁷ Sweden, which has adopted the international rules on the penal responsibility of superiors for a breach committed by a subordinate, when the superior, although aware of it, did not repress it or did not prevent it if it had not yet taken place, and Norway, which assigns responsibility to persons committing breaches of the Conventions and to their accomplices, may be included in this group.

⁷⁸ As the Commentary on the Protocols, op. cit., p. 976 Google Scholar, Note 11, observes: “Nor does it prevent Contracting Parties from providing in their national legislation for the penal repression of yet other breaches; those, however, would only be punishable if committed by members of their own armed forces”. This was the position adopted by the Italian delegate to the Diplomatic Conference on Humanitarian Law of 1974–1977 (CDDH/SR.44).

⁷⁹ This only arises if States convert what international law regards as breaches other than grave breaches into offences or crimes. They can do this, and some of them have done it.

⁸⁰ The Commentary on the First Convention, op. cit., p. 364, observes that “The legislation enacted on the basis of this paragraph should, in our opinion, specify the nature and extent of the penalty for each infraction, taking into account the principle of due proportion between the severity of the punishment and the gravity of the offence.”

⁸¹ A penalty is a creation of the law. Therefore, technically, a penalty is only a penalty if national legislation regards it as such. There is no international concept of penalty. Therefore penalties inevitably differ widely from one national legislation to another. Furthermore, breaches of the law of war have special connotations in relation to ordinary offences in all national legislations. Probably, therefore, it is not appropriate to apply only ordinary penalties to persons guilty of such breaches. (See J. Y. Dautricourt, “La protection pénale des Conventions Internationales humanitaires”, Revue de droit penal et de criminologie, vol. 35, No. 9, June 1955).

⁸² Although we previously referred to this matter in connection with differences between States in typifying breaches, it may be as well to recall that different States impose vastly different penalties for the same act. International law has just not succeeded in improving on this.

⁸³ Article 69 of the Spanish Military Penal Code, for example, provides that any person guilty of an act of violence against an enemy who has surrendered or is defenceless shall be imprisoned for a period of not less than four months and not exceeding four years. If he causes serious injury the penalty is from five to 15 years' imprisonment; and if he causes death, from 15 to 25 years' imprisonment, or even the death penalty.

⁸⁴ The countries that might be described as “severe penalty countries” are: the United Kingdom, which, for example, punishes the wilful murder of a person protected by one of the Conventions with life imprisonment; Holland, whose penalties vary from ten years' imprisonment to death, according to the seriousness of the breach and its consequences; Australia, where the maximum penalty for the wilful murder of a person protected by any of the Conventions is life imprisonment or death; Canada, which in similar circumstances can pass a death sentence; Czechoslovakia, Hungary and the USSR, which may pass the death sentence in certain cases; Spain, as stated above; and many other countries which we are unable to list.

⁸⁵ In fixing penalties for breaches of the law of war, States are conditioned by their penal systems and especially by their immediate past. Cf. Levasseur, and Merle, , op. cit., p. 229 Google Scholar: “It is apparently difficult to insert penalties for breaches of humanitarian law into a national system of penalties in a way sufficiently in harmony with the context. Such insertions recall the recent past: the severity of penalties varies greatly from State to State according to whether a large number of its nationals have been victims or perpetrators of breaches”.

⁸⁶ In this group may be included Norway, where the maximum penalty in the Military Penal Code is four years' imprisonment but may undoubtedly be increased by applying special provisions; Denmark, where the maximum penalty is twelve years' imprisonment; Switzerland, where the term of imprisonment varies from three days to three years, and in serious cases from one year to twenty years; Thailand, which reports that its maximum penalty is seven years' imprisonment and, clearly, Germany, which has a Bill imposing a maximum penalty of ten years' imprisonment, which Levasseur, and Merle, : (op. cit., p. 230)Google Scholar call “astonishingly moderate”. Generally speaking, these penalties are lenient in comparison with those of other countries, but can in certain cases be heavy.

⁸⁷ Sweden, whose penalties for such breaches vary from two years' to life imprisonment; and Brazil, where they range from light to the death penalty. Spain (already referred to) might also be included; and — this classification being only approximate and somewhat capricious — so might some other countries.

⁸⁸ Again, it is distressing to see the great disparities in the penalties fixed, although the acts and their consequences are similar. Perhaps international law could not go any further; here too it seems that the thorny issue of national sovereignty is involved.

⁸⁹ On various occasions the United Nations has envisaged setting up an “international judicial organ” or “Criminal Chamber of the International Court of Justice” (see the UN Resolutions of 11 December 1946 (No. 95(1)), 9 December 1948, and 11 December 1957). This has not yet been set up and is unlikely to be established in the near future. The law of war therefore has to resort to national tribunals.

⁹⁰ The Commentary on the First Convention, op. cit., p. 366 Google Scholar, observes that “Proceedings before the courts should be uniform in character, whatever the nationality of the accused. Nationals, friends and enemies should all be subject to the same rules of procedure, and should be judged by the same courts”.

⁹¹ This group includes the United States, which in wartime has both kinds of courts and may set up other civil courts, Ireland, the Federal Republic of Germany, Spain, Belgium and Denmark.

⁹² As in the United Kingdom, which in wartime has military courts for military personnel and civil courts for civilians, although some civilians may be transferred to the competence of military courts, and Norway, whose practice is similar to that of the United Kingdom, military courts trying civilians in time of war for breaches committed in the theatre of war.

⁹³ For example, Switzerland, which in time of war and in the present context has only military courts, and Italy, where in time of war civilians accused of such breaches are tried by military courts.

⁹⁴ As stated above, because of the paucity of pertinent data we can present only a few examples, and these are disputed. This is also true of the competence of the courts, which will be examined below.

⁹⁵ This group comprises Switzerland, whose Military Penal Code declares that military jurisdiction is in all cases competent to try either military personnel or civilians; Turkey, Denmark, Belgium, by virtue of the Bill put before Parliament; France, which brings its military personnel, persons treated as French military personnel and, in the absence of any document assigning competence, civilian persons also, before military courts; Norway, Ireland, the United Kingdom, Canada, Brazil and the United States, which in time of war try military personnel in civilian courts if no military court is available.

⁹⁶ Denmark, the United States (unless special courts are set up), Ireland, Canada, the Federal Republic of Germany, and Brazil.

⁹⁷ The legal organization of many of the States referred to is more complex, but we have purposely simplified it because grave breaches can be committed only in time of war.

⁹⁸ See Protocol I, Article 75.

⁹⁹ The Commentary on the First Convention, op. cit., p. 366 Google Scholar, states: “It is not, therefore, merely at the instance of a State that the necessary police searches should be undertaken; they should be undertaken automatically.”

¹⁰⁰ For this, recourse may be had to what is known as mutual legal assistance, or to Interpol (the International Criminal Police Organization, ICPO) or on specific points to the Asistencia mutua judicial en materia penal.

¹⁰¹ This procedure is applicable both to breaches committed by States and breaches committed by individuals. Accordingly, our previous remarks referring to States in this connection also apply.

¹⁰² Cf. the Commentary on the First Convention, op. cit., p. 369 Google Scholar: “The Diplomatic Conference acted wisely when it decided to refer to the rules already established for prisoners of war. It preferred not to make new law, but to refer instead to an existing body of law which had stood the test of time and would provide the accused with sure and certain safeguards.” In our view it would perhaps have been preferable to adopt the contrary course of establishing the general safeguards in Article 49 of the First Convention (and the corresponding articles in the other Conventions) and referring to them in the Convention relative to prisoners of war.

¹⁰³ See the Commentary on the Protocols, op. cit., pp. 869–870.Google Scholar

¹⁰⁴ The meaning of “prima facie case” has been interpreted by doctrine. Thus the Commentary on the First Convention, op. cit., p. 366 Google Scholar, states: “But what exactly is meant by ‘sufficient charges’? The answer will as a rule rest with national legislation, but in general it may be assumed to mean a case in which the facts would justify proceedings being taken in the country to which application is made for extradition. Legal authorities in the Anglo-Saxon countries speak in such cases of prima facie case… and this term is used in the English text of the Article.”

¹⁰⁵ The immense majority of countries are in this group. They include Spain, Switzerland, Norway, Sweden (which follows the British model in typification but not in procedure), France, Italy, Portugal and many others.

¹⁰⁶ These include Holland, which institutes special courts and procedure, the United Kingdom, which in its Geneva Conventions Act of 1957 goes further in adopting procedure for trial than in the offences themselves, and deals with nearly all the procedural problems touched on by international law, Ireland, Canada, India, New Zealand (which exactly follow the British model as far as procedure is concerned), and other countries, mainly members of the Commonwealth.