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 Future of the Grave Breaches Regime
Segregate, Assimilate or Abandon?
*Assistant Professor, University of British Columbia; formerly Appeals Counsel, Office of the Prosecutor, International Criminal Tribunal for the former Yugoslavia; Chair, Editorial Committee of this Journal. Kind thanks to Nicole Barrett, Antonio Cassese, Robin Geiss, Simon Meisenberg, Yasmin Naqvi and Sandy Sivakumaran for invaluable critique of an earlier draft. Errors remain entirely my own.
 |
Abstract |
|---|
The future of the grave breaches regime is impossible to predict with any degree of accuracy — the grave breaches regime has developed in terms that those who negotiated the Geneva Conventions did not foresee, and we are no better situated to guess how the coming decades will unfold. Nonetheless, three possible futures are plausible. In the first, the grave breaches regime may remain segregated from other categories of war crimes in deference to the historical development of these crimes. This future, however, is one that will see a relatively dramatic decline in the use of grave breaches in practice, primarily because other offences cover the same acts more efficiently. In the second possible future, the grave breaches are entirely abandoned, but this eventuality seems both improbable and undesirable. Even though judicial pragmatism has diminished aspects of the grave breaches regime that were once unique, grave breaches still offer important features over and above all alternatives. The grave breaches regime is therefore unlikely to disappear entirely. A third possible future involves assimilating the grave breaches with other categories of war crimes, ideally through the promulgation of a more coherent treaty regime. In the short term, this proposition appears politically untenable, leaving judges to unify the stark disparities between grave breaches and other war crimes. A future that continues to adopt this course will nonetheless pose serious problems for the discipline in the years to come.