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]
Introduction |
Introduction
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. [stewart{at}law.ubc.ca]
In August 1949, states congregated in Geneva signed a series of treaties that made explicit reference to individual criminal liability for violations of the laws of war.1 No treaty had done this before. The drafting process was plagued by the usual tensions. A large number of states resisted calling these new offences ‘crimes’ in an attempt to ensure that they did not bind themselves to treaty obligations that were inconsistent with their own domestic notions of criminal law.2 As a result, after much deliberation, delegates agreed to describe the new regime as ‘grave breaches’. The initial premise of this ‘grave breaches’ regime was that states would enact legislation implementing the offences within the national legal order, then seek out and prosecute those responsible ‘regardless of their nationality’.3 The regime was necessarily ambitious, for certainly the world could not afford to relive the catastrophic mistakes of the past. The slogan ‘never again’ permeated law. Along with the Genocide Convention and UN Charter, the grave breaches regime came to represent a cornerstone of a new world order formally committed to restraining the use of force, limiting the effects of warfare and holding war criminals liable for their misdeeds.
Sixty years since the signing of the Geneva Conventions, the grave breaches regime remains a key element within the architecture of modern international criminal law. Commentators were not always this positive. Immediately prior to the establishment of the International Criminal Tribunal for the former Yugoslavia, one author reflecting on the grave breaches regime declared that ‘this noble innovation has achieved nothing’.4 Happily, much has changed over the intervening years. As we are well aware, ad hoc international criminal tribunals have enforced a wide range of grave breaches in the past decade, creating a now robust jurisprudence interpreting these crimes. The rise of international criminal justice over the same period has also precipitated a new appetite for war crime prosecutions in national courts, and acted as a catalyst for a permanent institution capable of trying these crimes. Similarly, the grave breaches regime has acted as a blueprint for other treaties, ranging from the Torture to the Enforced Disappearances Conventions.5 All of these developments advance the ideas that originally animated the signing of the Geneva Conventions over half a century ago — grave breaches are now more influential, clearly defined, widely recognized and frequently enforced than ever before.
At the same time, the rapid rise of international criminal adjudication has also produced new and largely unanticipated complexities. The grave breaches regime, once championed as a ‘quantum leap’6 is today one part of a complex mosaic of law governing war crimes. Specifically, grave breaches exist alongside ‘violations of the laws and customs of war’ prosecuted at Nuremberg, violations of Common Article 3 and Additional Protocol II and war crimes defined in specific treaties, creating what Theodore Meron once described as ‘a crazy quilt of norms’.7 Shifts in the content of customary international law since the signing of the Geneva Conventions have also altered the content and function of the grave breaches regime. And perhaps most obviously, the advent of the ICC Statute promises to have monumental effects on procedural aspects of the grave breaches regime, especially those that compel the enactment of domestic legislation and prosecution. These structural changes also occur within a global political order that is only a vague remnant of the post-war context, where terrorism, asymmetrical warfare and non-international conflicts predominate. Needless to say, the need for a comprehensive review of the grave breaches regime in light of these developments, both positive and otherwise, is profound.
In this spirit, this special issue of the Journal marks the 60th anniversary of the grave breaches regime by inviting leading academics, practitioners and legal advisers to address individual components of this once revolutionary criminal regime. The papers are rich and varied. To begin, Yves Sandoz lays the groundwork for subsequent discussion by sketching the historical origins of the grave breaches regime. From there, Jean-Marie Henckaerts explains that the grave breaches regime is customary law, and that this has important contemporary consequences. Knut Dörmann and Robin Geiß explore a subject too infrequently broached, namely the nature of the obligation to enact domestic legislation governing grave breaches. Ward Ferdinandusse's piece then details the ever increasing role of the grave breaches regime in domestic courts, before Ken Roberts offers a unique insight into the ICTY's substantial contributions to developing and defining the regime. With a focus on non-international armed conflicts, Lindsay Moir contemplates the relationship between the grave breaches regime and civil wars. From there, Claus Kreß ably explores the contours of the obligation to exercise universal jurisdiction over these offences, while Roger O'Keefe's meticulous analysis confirms beyond all doubt that the grave breaches regime empowers states to exercise this jurisdiction. To conclude, Dieter Fleck identifies the various inadequacies of the grave breaches regime, before my own contribution synthesizes these analyses in a rough attempt to predict the role of grave breaches in years to come.
Our objectives are numerous and ambitious. In one sense, we hope that this issue will promote a greater understanding of the history of grave breaches and their relationship within other categories of war crimes in contemporary international criminal law. At the same time, this issue will act as a point of reference for practitioners engaged in fulfilling the obligation to prosecute war crimes, thereby furthering the aspirations that originally underpinned the grave breaches regime. With an eye to the future, a large portion of this issue also focuses on highlighting deficiencies, flaws and avenues for improvement. As will become apparent in the articles that follow, the grounds for critique are relatively broad, but one rebuke must surely guide our reading of these papers. As Professor Richard Baxter warned some decades ago, ‘there is a danger that the whole of the law of war ... is becoming too complex and too much a lawyer's providence’.8 Our overriding objectives, therefore, are to dispassionately reflect on the content of the grave breaches regime, to ask whether the regime is now meeting the initial aspirations of those congregated at Geneva, and to explore the extent to which we can re-imagine a simpler and more effective system governing war criminality in this our violent world.
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1 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (hereinafter ‘First Geneva Convention’, ‘GC I’), Arts 49–50; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949 (hereinafter ‘Second Geneva Convention’, ‘GC II’), Arts 50–51; Convention relative to the Treatment of Prisoners of War, 12 August 1949 (hereinafter ‘Third Geneva Convention’, ‘GC III’), Arts 129–130; Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (hereinafter ‘Fourth Geneva Convention’, ‘GC IV’), Arts 146–147.
2 See for instance, the statement by the US representative during the negotiations of the Geneva Conventions, insisting that ‘he could not accept the substitution of the word "crimes" for "grave breaches". It would be for the penal legislation of each nation to classify the breaches enumerated in the Conventions.’ Final Record of the Diplomatic Conference of Geneva, Vol. II-B, at 86 (USA).
3 A number of states stressed that offences described as grave breaches ‘will not be crimes until they are so made by domestic penal legislation’. Final Records of the Diplomatic Conference, Vol. II-B, at 356–357 (UK).
4 G. Best, War and Law Since 1945 (Oxford: Clarendon Press, 1994), 396.
5 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 5; Convention on the Safety of United Nations and Associated Personnel, Art. 10; Inter-American Convention on the Forced Disappearance of Persons, Art. 4 and Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict, Art. 16(1).
6 G. Abi-Saab, ‘The Concept of "War Crimes" ’, in S. Yee and W. Tieya (eds), International Law in the Post-Cold War World: Essays in Honour of Li Haopei (London: Routledge, 2001) 99, at 104.
7 T. Meron, ‘Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout’, 92 American Journal of International Law (1998) 236, at 238.
8 R.R. Baxter, ‘Humanitarian Law or Humanitarian Politics? The 1974 Diplomatic Conference on Humanitarian Law’, 16 Harvard Journal of International Law (1975) 1.
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