This article appears in the following Journal of International Criminal Justice issue: Special Issue The Grave Breaches Regime in the Geneva Conventions: A Reassessment SixtyYears On [View the issue table of contents]
The Contribution of the ICTY to the Grave Breaches Regime
*Senior Legal Officer, ICTY Appeals Chamber. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations. The author would like to thank Norman Farrell, Magda Karagiannakis, Catherine Marchi-Uhel, Gabriela Salgado Gómez and James Stewart for their assistance and comments on an earlier draft of this paper. [roberts.icty{at}un.org]
 |
Abstract |
|---|
This article considers the contribution of the International Criminal Tribunal for the former Yugoslavia (ICTY) to the grave breaches regime as the first body to systematically apply these provisions, and argues that the jurisprudence has breathed life into the regime. It has clarified when grave breaches may apply, through the elucidation of the ‘overall control’ test in establishing the internationality of a conflict; how the regime may be applied in a practice, through the operation of a nexus requirement; and who may benefit from the protection of the regime, through a modern interpretation of ‘protected person’. It is argued that the ICTY has significantly contributed to the definition of underlying grave breaches. With respect to torture, the contribution has been both with respect to the identification of comprised acts, such as rape and other abuses of a sexual nature, as well as in distinguishing the definition from that applied under the Torture Convention. Concerning unlawful confinement, the contribution has focused on interpreting the interaction of different provisions of Geneva Convention IV to bring the breach to life. Ironically, some of these positive contributions may have had the unintended consequence of reducing the role of grave breaches in the charging practices of the Prosecution.