Journal of International Criminal Justice - current issue

Introduction

Stewart, J. G. — Tue, 13 Oct 2009 23:44:04 PDT

The History of the Grave Breaches Regime

Sandoz, Y. — Tue, 13 Oct 2009 23:44:04 PDT

Criminal punishment for violations of the laws of war date to the earliest formal codifications. In particular, the Lieber Code of 1863 contained a large number of references to criminal punishment, which ultimately influenced a large number of the subsequent treaties. This said, initial codifications of the laws and customs of war after Lieber but before the Geneva Conventions of 1949 made only scant reference to individual criminal liability. Nonetheless, the grave breaches regime emerged in 1949 as an important response to the sufferings of Second World War. The idea behind the regime was that certain offences were sufficiently grave to warrant explicit codifications as war crimes. The development of grave breaches was then continued in 1977, first by the inclusion of further offences within Additional Protocol I, then by inclusion of the grave breaches regime within the Statute of the International Criminal Court. As a general rule, this development has nonetheless involved developing rules to deal with the horrors of the past. Potentially, history will serve as a helpful guide for countering the numerous challenges that face grave breaches in the future.

The Grave Breaches Regime as Customary International Law

Henckaerts, J.-M. — Tue, 13 Oct 2009 23:44:04 PDT

The Geneva Conventions were adopted 60 years ago. Today, they are universally ratified. Notwithstanding their universal adherence as treaty law, the customary nature of the provisions of the Geneva Conventions remains relevant. This article examines the claims that the Geneva Conventions, in general, are part of customary international law. Beyond this level of generality, it argues that the grave breaches regime is part of customary international law, including the definition of the grave breaches as well as the procedural rules governing grave breaches. The latter include the obligation to enact effective penal sanctions in domestic law and the obligation to search for and to try or extradite persons suspected of grave breaches on the basis of universal jurisdiction. The article argues that these rules are not simply ‘technical’ rules but are ‘fundamental to the respect of the human person and [humanity]’, a phrase used by the International Court of Justice when examining the customary nature of the Geneva Conventions.

The Implementation of Grave Breaches into Domestic Legal Orders

Dormann, K., Geiss, R. — Tue, 13 Oct 2009 23:44:04 PDT

States are required to implement grave breaches within their domestic criminal law. The obligation to enact legislation necessary to provide effective penal sanctions in relation to grave breaches lies at the heart of any meaningful prosecution of grave breaches of the Geneva Conventions. Knowing what is required of states and understanding the different models of implementation is essential. Yet, despite its importance, this specific obligation has led a somewhat shadowy existence, often neglected in state practice and academic research. It is against this background that the present contribution aims to bring into focus the scope and precise content of this somewhat ambiguously formulated obligation.

The Prosecution of Grave Breaches in National Courts

Ferdinandusse, W. — Tue, 13 Oct 2009 23:44:04 PDT

This article surveys the prosecution of acts constituting grave breaches of the Geneva Conventions in national courts. In these national prosecutions, international criminal law is not always applied in a uniform manner. Acts constituting grave breaches are not only prosecuted as such, but are also charged as other international crimes (like crimes against humanity or genocide) or ordinary crimes, like murder. The author argues that a divergent national application of international criminal law is not necessarily problematic but can (within the limits posed by international law) be a useful and important motor for the development of the law. A survey of national case law demonstrates the potential of the grave breaches regime to ensure universality of punishment for these war crimes, and also reveals that the grave breaches regime has so far not lived up to its potential.

The Contribution of the ICTY to the Grave Breaches Regime

Roberts, K. — Tue, 13 Oct 2009 23:44:04 PDT

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.

Grave Breaches and Internal Armed Conflicts

Moir, L. — Tue, 13 Oct 2009 23:44:05 PDT

International law has historically been more concerned with the regulation of international, rather than internal, armed conflict. As an integral part of this regime, aimed specifically at the violation of particular rules relating to international armed conflict, the grave breaches provisions of the Geneva Conventions and Additional Protocol I have no apparent relevance to internal armed conflict. This article argues that the concept of grave breaches has, nonetheless, impacted in a significant way upon both the substantive laws of internal armed conflict and their criminal enforcement against individuals. Whether the law has developed to a point where grave breaches can equally be committed during internal armed conflict, or where violations of the laws of internal armed conflict can be considered grave breaches such that the obligations to investigate those offences and to prosecute or extradite offenders now also apply — either through the adoption of a teleological approach to the Geneva Conventions, or else through the development of a new customary rule to that effect — is rather more dubious.

Reflections on the Iudicare Limb of the Grave Breaches Regime

Kress, C. — Tue, 13 Oct 2009 23:44:05 PDT

This article addresses the iudicare limb of the grave breaches regime. While the Hague formula of aut dedere aut iudicare must certainly be considered when construing the iudicare limb of the grave breaches regime, this article shows that the iudicare limb applicable to grave breaches is independent of other similar conceptions. Moreover, we see that there is no absolute duty to arrest, nor can there be an absolute duty to prosecute and to punish. What the iudicare limb in fact entails is a duty to investigate and, where so warranted, to prosecute and to convict. In some circumstances, immunities influence this obligation. There are, in addition, certain implications arising from the procedural safeguards implicit in the iudicare limb. Finally, this article concludes with a word of caution concerning amnesties in hybrid accountability systems, querying whether international practice might slowly come to accept a less categorical regime, as it does in the field of war crimes committed in non-international armed conflicts and crimes against humanity. This would perhaps better reflect the political complexities of the transition from armed conflict to peace.

The Grave Breaches Regime and Universal Jurisdiction

O'Keefe, R. — Tue, 13 Oct 2009 23:44:05 PDT

The mandating of universal jurisdiction by the grave breaches provisions of the 1949 Geneva Conventions was an innovation in relation to both the penal provisions of prior treaties and the prevailing understanding of the international legal basis for national jurisdiction over war crimes. Despite not having been relied on until the 1990s to ground national prosecutions on the basis of universality, the grave breaches provisions have exerted an influence on the development of both treaty-based and customary rules on universal jurisdiction. In some respects, however, this influence has been as an example of how not to draft jurisdictional provisions in international criminal law conventions.

Shortcomings of the Grave Breaches Regime

Fleck, D. — Tue, 13 Oct 2009 23:44:05 PDT

This contribution reviews shortcomings of the grave breaches system as they have evolved in recent jurisprudence and state practice. It first considers textual problems identified by the International Criminal Tribunal for the former Yugoslavia in this respect and evaluates the solutions applied by the Tribunal. Second, the article will assess shortcomings of law and practice related to the application of universal jurisdiction addressing the question of whether failures are political or legal. In the light of such shortcomings, the article will discuss the issue of universal jurisdiction over war crimes as a permissive rule of customary law. Finally, some conclusions are drawn, with a view to outlining some of the remaining problems for the prosecution of serious violations of international humanitarian law, and developing effective solutions.

The Future of the Grave Breaches Regime: Segregate, Assimilate or Abandon?

Stewart, J. G. — Tue, 13 Oct 2009 23:44:05 PDT

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.