THE APPLICABILITY OF THE WAR CRIMES AND GRAVE.PDF

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THE APPLICABILITY OF THE WAR CRIMES AND GRAVE
BREACHES REGIME TO NON-INTERNATIONAL ARMED
CONFLICTS: AN ANALYSIS
By
Augustine Nwabueze ESEAGWU
PG/LAW/0917388

1
CHAPTER ONE
THE CONCEPTS OF WAR CRIMES AND GRAVE BREACHES
1.1 Introduction
By the middle of the Nineteenth Century, States had already started
looking for a uniform standard of conventional behavior that would not only
bind individual participating states, but would act as a means of identifying and
adopting universal principles and rules to base a modern international
humanitarian legal standard. The first sets of treaties were brief and contained
no penal provisions and participant countries accepted their obligations as far as
it brooked no external interference.1
The first all-embracing code that sought to
penalize actions that went against the customs of international humanitarian law
was the Lieber Code;2
a ‘set of rules and definitions providing for the most
urgent cases, occurring under the Laws and Usages of War, and on which our
Articles of War are silent.’ The Code provided amongst other things, for those
in charge of administering the terms of martial law ‘to be strictly guided by the
principles of justice, honor, and humanity, virtues adorning a soldier even more
than other men, for the reason that he possesses the power of his arms against
the unarmed.’3
Other provisions of the Lieber Code though less developed than
1
The Declaration Respecting Maritime Law (Paris Declaration) 1856, 115 Parry 1, The Geneva
Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of
1864, 129 CIS 361 and the Declaration Renouncing the Use, in Time of War, of Explosive
Projectiles under 400gm weight St Petersburg Declaration) 1868. 129 CIS 361.
2
Instructions for the Government of Armies of the United States in the Field. General Order No.
100. 24 April 1863. Hereinafter referred to as ‘the Lieber Code’ or ‘The Code’ The Code was an
instruction manual signed by the then President of the United States, Abraham Lincoln to the
Union troops of the United States army during the American civil war. It set a basis of behavior
and conduct expected from the soldiers in wartime. It was named after the eminent German born
American jurist and philosopher, Francis Lieber, the principal author.
3
Ibid, Art. 4,

2
present jurisprudence, showed a strong nexus with modern provisions of
contemporary penal regimes.4
Other attempts at a penal regime include the Brussels Conference convened by
Czar Alexander II but never ratified,5
the attempt of the Institute of International
Law; the Oxford Manuals6
, the Hague Conferences,7
the Geneva Convention
1906.8
One common denominator of all these international treaties and
conventions (bar the Lieber Code that was a National law) was the absence of a
penal regime.
It was not till after the horrors of the two World Wars that Customary
and Treaty International Humanitarian Law recognized and set down the
benchmark for a Grave Breaches regime.9
Grave Breaches10
are the most
serious grave violations against persons protected by the Geneva Conventions.
4
Ibid Art. 16, (forbids the use of poison in any way, no cruelty, no maiming or wounding except
in fight, no torture to extort confession, no acts of perfidy and no acts of wanton devastation),
Art. 80, (which on torture, provided ‘that the modern law of war permits no longer the use of
any violence against prisoners in order to extort the desired information or to punish them for
having given false information), Art. 148, (prohibited Murder, by whatever authority), Art. 22,
(recognized that ‘the principle has been more and more acknowledged that the unarmed citizen
is to be spared in person, property and honor as much as the exigencies of war may admit) Art.
44, (maintained a ‘sacredness of domestic relations, and that all wanton violence committed
against persons in the invaded country, all destructions of property not commanded by the
authorized officers, all robbery, all pillage or sacking, even after taking a place by main force,
all rape wounding, maiming, or killing of such inhabitants are strictly forbidden’) and Art. 47,
(prohibited all ‘crimes punishable by all penal codes’)
5
The International Declaration Concerning the Laws and Customs of War, 1874
6
The Oxford Manuals, on the Laws of War on Land, 1880 and Laws of naval War Governing
Relationships Between Belligerents, 1913
7
The Hague Conventions of 1899 (Conventions II: Respecting the Laws and Customs of War on
Land, and it’s regulations concerning the Laws and Customs of War on Land 1899. 32 Stat
1803) and 1907 (Convention IV: Respecting the Laws and Customs of War on Land, 18
October 1907. 36 Stat 2277 i.e. Second Hague IV)
8
The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armies in the Field 1906. 202 CTS 144
9
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 8 July 1996
10
Grave breaches of the four Geneva Conventions and the Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of International
Armed Conflicts (Protocol I) 8 June 1977 (Hereinafter simply referred to as ‘grave breaches(s)’)

3
These grave breaches of the customs and laws of war as provided by the Geneva
Conventions did not in themselves provide for any criminal sanction or liability,
rather states are enjoined to enact penal laws and incorporate these customary
obligations into domestic legal regimes. These obligations included searching
for suspected contraveners, administering these penal laws upon them and/or
extraditing them to other states for trial.11
The Grave Breaches regime in the Geneva Conventions is a complex
mix of obscure12
regulations and rules that one has to interpret in order to
provide a framework within which to work. Traditionally, grave breaches are a
limited set of serious violations of the Geneva Conventions of 1949 that gave
rise to special obligations of the States Parties for the enactment and
enforcement of domestic criminal law.13
In addition, each of the Geneva
Conventions and the Additional Protocol I have expressly stated what amounts
to a grave breach of the conventions.14
The term, which originated from the
efforts of the Dutch delegation to the 1949 Diplomatic Conference,15
was
accepted for a variety of reasons. They were a more internationally acceptable
standard of apportioning criminal acts as the definition of the word ‘crime’ was
dynamic and varied from country to country, war crimes in itself were already
11
An example of such Domestic Legislation is the War Crimes Act, 1996 passed by the US
Senate.
12
G. A. I. D. Draper The Modern Pattern of War Criminality, in Yoram Dinstein. and Mala
Tabory. (eds), War Crimes in International Law (The Hague: Kluwer, 1999), 158-159.
13
Marko D. Oberg, ‘The Absorption Of Grave Breaches into War Crimes Law’. International
Review of The Red Cross, Vol. 91, No. 873, March 2009, 163
14
Art. 50, GC 1, Art.51, GCII, Art.130, GCIII, Art.147, GCIV, Arts. 11 and 85, API
15
The Diplomatic Conference for the Establishment of International Conventions for the
protection of War Victims, Geneva, 21 April-12 August 1949, Jean Pictet. Commentary IV,
Geneva Convention relative to the protection of Civilian Persons in time of War, ICRC, Geneva
1958, 585-587 and the Final Record Vol. II-A, pp 100. 157, 177-178, 184, 349, 527, 645, 647,
673-674, 716, 718, 822; Vol. 11-B pp 31-33, 85-87, 115-117, 132-133, 355-360, 363

4
considered as breaches of the conventions of war16
and because the 1949
Diplomatic Conference did not have a mandate to create international criminal
law.17
The promoter of the term was Captain Martinus Willem Mouton of the
Dutch delegation;18
he was of the view that the contracting parties were
obligated to use the grave breaches regime as a basis for the inclusion of certain
like provisions in their penal legislations.19
The grave breaches regime within the Geneva Conventions was
designed to have its provisions reduced to domestic penal legislations of
Member States and hence could not be seen or considered as an international
criminal code. They lacked the proper constituents of a true criminal law
repression system that could confer individual criminal culpability with factors
like a mens rea, mode of criminal liability, a defense, penalties for breach and
substantive rules of procedure thus making it pertinent, that the only reasonable
way was that it be ‘left to the judges who would apply the national laws.’20
Invariably, there arose a need for the conception of a separate body of
International laws to birth a new category of individual criminal culpability,
which would attach sanctions to breaches of the rules of international
humanitarian law. Without a doubt, a rule of international law is breached, when
a grave breach is committed or a war crime is perpetuated.
16
Oberg, Supra note 13
17
Jean Pictet. Commentary I, Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, p. 371. And Final
Record, above note 15, Vol. II-A, pp. 100, 157, 177–178, 184, 349, 527, 645, 647, 673–674,
716, 718, 822; Vol. II-B, pp. 31–33, 85–87, 115–117, 132–133, 355–360, 363.
18
Final Record, supra note 19, 107 and Pictet, supra note 17, 360; Pictet, supra note 15, 587.
19
Final Record. ibid, 87.
20
Final Record, above note 19, 115.

5
A war crime on the other hand, is an act or omission that violates
International Humanitarian Law and is criminalized under International Law.21
It carries individual criminal liability. The modern concept of War Crimes came
to prominence via the enactment of a charter to give legal backing to the
prosecution of people responsible for crimes committed during the Second
World War.22
Furthermore, other Statutes like that of the International Criminal
Court23
provide Jurisdiction over such crimes where they are “part of a plan or
policy or as part of a large-scale commission of such crimes.24
These criminal
offences include failures to adhere to conventional norms and standards of war.
1.2 Aim and Objective of Study
The rules governing the conduct of persons and high contracting actors
in an Armed Conflict of an International Character or International Armed
Conflict (IAC) are succinctly set out and codified in various international
conventions like the four Geneva Conventions of 1949, the different Hague
Conventions and other secondary sources like the San Remo Manuals etc.
However, armed conflict as we know it now has taken a new direction; most
especially with the ever changing geopolitical space, the birth of old foes and
the birth of new nationalist cum anti colonial fervor that swept the developing
countries in the late 1950s, most of the 1960s and the greater part of the 1970s.
Civil wars and proxy wars (internationalized armed conflicts) swept through the
21
Oberg, Supra note 13, 164
22
The Charter of the Nuremberg International Military Tribunal, 8 August 1945, 82 UNTS 280
23
Rome Statute of the International Criminal Court, Rome, 17 July 1998, 2187 UNTS 90
(hereinafter referred to as ‘Rome Statute’ or ‘The ICC Statute’
24
Art 8, Part II, Rome Statute.

6
developing countries as diverse interests fought for a foot hold utilizing proxies.
This new kind of warfare is characterized by an increased asymmetry of parties,
which in turn has shown a shift in the conventional reasoning behind the
contraction of hostilities.
The growth of Armed conflicts of a non international character25
all over
the developing world e.g. In Syria, Congo, Colombia, Mali, Afghanistan, Iraq
etc. has created the need for a new understanding of the rules and regulations
governing Non International conflicts particularly with regards to certain issues
that have arisen to the fore. These issues, though foreseen by the laws of war,
have become the basis for international concern especially due in large part to
the moral questions that they pose. These include the use of child soldiers, the
perpetuation of unlawful activities that may be considered as grave breaches,
the status of combatants in the non-international armed conflicts, the thresholds
within which the status of modern internal conflicts may change etc. It is very
clear from a perusal of the substantives legal regimes in place, that the greater
provisions of the general conventions concerning the Grave Breaches regime
has more or less been enacted with no apparent reference to internal armed
conflicts.26 27
This long essay examines the extent to which these laws have impacted
upon internal Armed Conflicts with particular reference to the occurrence of
25
The Articles 3 Common to the 4 Geneva Conventions of 1949
26
Knut Dormann, Elements of War Crimes under the Rome Statute of the International Criminal
Court. (Cambridge: Cambridge University Press, 2002), 128.
27
Article 8(2) of the ICC Statute and Christopher Greenwood, ‘International humanitarian law and
the Tadic case’, European Journal of International Law, Vol. 7, 1996, pp. 280–281.

7
acts that could be classified as Grave Breaches.28
The aim of this long essay is
to examine the application of the regime of grave breaches as provided and
prohibited by international law, most especially the four Geneva Conventions of
1948, on Conflicts of a non international character.
1.2.1 Methodology
The writer shall adopt an analytical standpoint in this long essay whilst
maintaining a broad and objective view. An attempt at reviewing relevant case
law will also be adopted by the writer in this long essay.
1.2.2 Findings
The Grave Breaches regime could be a catalyst for the growth of a more
coherent, comprehensive and basic international criminal law regime that
bestows penal sanctions on violators of the laws and customs of war through an
International Criminal Court with a universal jurisdiction over all kinds of war
crimes perpetuated in armed conflicts, whether international or non-
international. The distinction between both classes of warfare has made it
imperative to maintain the dichotomy between Grave Breaches and the War
Crimes regimes, creating operational problems for those tasked with
prosecuting perpetrators of grave breaches violations. This is evidenced by the
low turnover of cases determined at the ICC in comparison with the
International Criminal Court, Yugoslavia (ICTY), which has become a
reference point in the war crimes jurisprudence.
28
Neither the four Geneva Conventions nor Additional Protocol II of 1977 contains any
provisions relating to grave breaches in non international armed conflict. Sonja Boelaert-
Suominen, ‘Grave breaches, universal jurisdiction and international armed conflict: Is
customary law moving towards a uniform enforcement mechanism for all armed conflicts?’,
Journal of Conflict and Security Law, Vol. 5, 2000, pp. 63–103

8
This study shall strive to show the shortcomings of maintaining a status
quo that may be fast losing relevance save as a reference point in international
criminal jurisprudence.
1.2.3 Contribution to Knowledge
This study gives an insight into the contribution of the ICTY to
international jurisprudence and its attempt at bridging the procedural gaps
evident in the penal repression process of the grave breaches regime. The study
also provides an understanding of the shortcomings evident in the prevailing
dichotomy between the grave breaches and the war crimes regimes.
1.3 The Difference between War Crimes and Grave Breaches
The difference between the two regimes of war crimes and grave
breaches is found in their historical metamorphosis. Time and usage has blurred
the basic distinguishing factors that separated the contemporary usage of both
terms hence they are not the same concept. In tracing the initial intendment of
both regimes, it is pertinent to consider their literal basis before a holistic
distinction is attempted.
A ‘crime’ is “an act that the law makes punishable; the breach of a legal
duty treated as the subject matter of a criminal proceeding.”29
The underlying
premise is that all crimes stem from a breach of the law but not all breaches are
necessarily criminal in nature. Hence, generally, while a crime in itself entails a
29
Black’s Law Dictionary (8th
Ed, 2004)

9
consequence provided for and punishable by criminal law, a breach may have
legal consequences punishable or not punishable by criminal law.30
In providing a list of grave breaches, the Geneva Conventions failed to
provide any criminal liability for their contravention. Rather their violation was
considered heinous enough that Member States passed domestic penal
legislations to search for suspects, and judge them or hand them over to another
state for trial provided such a High Contracting Party has made out a prima
facie case 31
This practice over time has proved to be insufficient or rather
ineffective. ‘Grave breaches’ is a more internationally acceptable standard of
apportioning criminal acts as the definition of the word ‘crime’ was dynamic
and varied from country to country, war crimes in itself were already considered
as breaches of the conventions of war32
and because the 1949 Diplomatic
Conference did not have a mandate to create international criminal law.33
1.4 The Eventual Convergence of the Concepts of War Crimes and Grave
Breaches.
Since both the perpetuation of war crimes and grave breaches constitute
a breach of international humanitarian law and expose the perpetuator to
personal criminal liability, there has been a great deal of confusion amongst
students of international humanitarian law as to what constitutes either of this
two distinct regimes. This confusion is even evident in the usage of both terms
30
31
Articles 49/50/129/146 of the four Geneva Conventions.
32
33
Pictet, supra note 17, 371. And Final Record, supra note 19, Vol. II-A,100, 157, 177–178, 184,
349, 527, 645, 647, 673–674, 716, 718, 822; Vol. II-B, 31–33, 85–87, 115–117, 132–133, 355–
360, 363.

10
interchangeably.34
Contemporary practice tends to consider these two distinct
concepts as the same in usage. In fact, over the passage of time, the war crimes
concept has evolved itself into the more dynamic of the two due to certain
factors which include a lesser burden of proof, a better and modern procedural
regime, greater recognition among states and a perception that the crimes it
seeks to repress are considered with a great deal of infamy.35
At the Diplomatic
Conference on the draft Additional Protocols,36
there arose a debate as to
whether grave breaches could be described as war crimes,37
whereas some states
considered grave breaches to be a category of crimes38
whilst the others
‘emphasized the difference between the two.39
These multiple views culminated
in the provision of “without prejudice to the application of the Conventions and
of this Protocol, grave breaches of these instruments40
shall be regarded as war
crimes”.41
This provision notwithstanding, It is important to emphasize that the
34
The provision of Grave breaches as a particular type of war crime in Art. 1(a), the 1968 UN
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes
Against Humanity, and Article 1(2) of the 1974 European Convention on the same topic.
35
36
The Diplomatic Conference on the Reaffirmation and Development of International
Humanitarian Law Applicable to Armed Conflicts 1974-1977, Geneva.
37
Official Records of the Diplomatic Conference on the Reaffirmation and Development of
International Humanitarian Law applicable in Armed Conflicts, Geneva, 1974–1977, Vol. X, p.
127, CDDH/234/Rev.1, para 77
38
Ibid., Vol. VI, p. 283, CDDH/SR.44, para 18 (United Kingdom); Vol. VI, p. 293, CDDH/SR.44,
para 81, and Vol. IX, p. 317, CDDH/I/SR.64, para 69 (Poland); Vol. VI, p. 294, CDDH/SR.44,
paras 88, 90, and Vol. IX, p. 282, CDDH/I/SR.61, para 85 (East Germany); Vol. VI, pp. 298–
299, CDDH/SR.44 (Canada); Vol. VI, pp. 305–306, CDDH/SR.44, and Vol. IX, pp. 313–314,
CDDH/I/SR.64, para 49 (Yugoslavia).
39
Ibid, Vol. VI, p. 293, CDDH/SR.44, para 85, and Vol. IX, pp. 269–270, CDDH/I/SR.61, paras
4–5 (Indonesia); Vol. VI, p. 295, CDDH/SR.44, para 92 (Egypt); Vol. IX, p. 279,
CDDH/I/SR.61, para 62 (Switzerland); Vol. IX, p. 280, CDDH/I/SR.61, para 69 (Netherlands);
Vol. IX, p. 307, CDDH/I/SR.64, para 10 (Austria).
40
See note 10
41
Art. 85 (5) The Protocol Additional to the Geneva Conventions of 12th August 1949, and
relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
1125 UNTS 3

11
general language of the Additional Protocol I shows that not all breaches of the
Geneva Conventions (and its protocols), amounts to a grave breach.42
It is
important to make this distinction because grave breaches of the Geneva
Conventions and its Protocols involve unlawful acts carried out, in wartime,
upon victims that would otherwise appear as protected under International
Humanitarian Law.43
In addition, it is possible for a war crime to become a
grave breach due to certain additional criminal actions, otherwise, under the
conventions; such an act would not constitute a grave breach.44
In time, statutes
establishing international courts, tribunals and adhoc bodies have become the
reference point for the interpretation, definition and application of the penal
provisions of international humanitarian law on perpetuators of grave breaches
and war crimes.
By 1993, independent criminal tribunals had sought to criminalize grave
breaches in the international domain. The International Criminal Court45
also
listed grave breaches as a sub-category of war crimes but subjects both
categories of crimes under the same legal set of legal regulations,46
in effect,
conferring jurisdiction upon the court over a variety of war crimes including
grave breaches.
42
Ibid. Art. 1, Paragraph 1, “the provisions of the Conventions relating to the repression of
breaches and grave breaches, supplemented by these Section, shall apply to the repression of
breaches and grave breaches of this protocol.”
43
This class of victims include civilians, civilian objects, persons hors de combat e.g. prisoners of
war
44
Ibid, Art. 37 prohibits Perfidy, in other words, making it a war crime to carry out perfidious acts
against combatants. But when it involves the use of “the distinctive emblem of the red cross, red
crescent or red lion and sun or of other protective signs recognized by the Conventions or this
Protocol,” As provided in Art. 85 (3) of the Additional Protocol I, it becomes a grave breach.
45
Art. 8 (2) (a) of ICC Statute
46
Knut Doermann. Elements of War Crimes under the Rome Statute of the International Criminal
Court’Cambridge University Press, Cambridge, 2002, 128.

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1.5 The Material Applicability of Grave Breaches and War Crimes.
The grave breaches regime is provided for in the Geneva Conventions
and Additional Protocol I.47
The Articles 3 Common to the Four GCs which
provide the basis for armed conflicts not of an international character do not
have any grave breaches provisions, neither does the Additional Protocol II48
have any grave breaches provision. Both regimes have different scopes of
applications, as both have a dual role to play in the suppression of acts deemed
inimical to the customs and laws of international humanitarian law. However,
just like the blurry lines that crisscross their definitions, there would seem to be
a question as to probable zones of application. An example is the ICC Statute
that provides a substantive regime of grave breaches and war crimes whilst
making a distinction between what war crimes may be committed in an
International or non-international armed conflict.49
This blur is simply for the
reason that prosecutors of breaches of international humanitarian law in
tribunals prefer to replace substantive breach indictments with a war crime
charge that carries a lesser burden of proof and dispenses with the need to prove
an international armed conflict.50
Another major reason for the wide
applicability given to the war crimes regime is the fact that international armed
conflicts have become a rarity in the comity of nations. Rather, due to the
47
See note 10
48
The Protocol Additional to the Geneva Conventions of 12th August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. 1125
UNTS 609
49
Article 8(2)(b) of the ICC Statute provides for war crimes applicable in International armed
conflict while 8(2)(c) provides for serious violations of Article 3 common to the four Geneva
Conventions of August 12 1949; The Prosecutor v. Dusko Tadic aka. ‘Dule’, ICTY, Case No.
IT-94-1-A, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction (Appeals
Chamber), 2 October 1995, para 89
50
On 22 September 2008 in the ICTY, the Prosecution in the Radovan Karadzic case submitted an
amended indictment, which removed the count of grave breaches.

13
evolving of dynamic geo political considerations, non-international armed
conflicts or proxy wars51
are the majority and have become the benchmark issue
in law of armed conflict. It is thus easier to charge, prosecute and covict a
perpetrator of a breach of the laws and customs of international humanitarian
law as a war crime than as a substantive grave breach as prosecutors are wont to
do by charging acts that amount to grave breaches as domestic crimes and
violations of laws of war.52
A classical example of this is where a prosecuting
party in a case where a breach is in issue e.g. The Armed Activities case before
the International Court of Justice.53
The Congolese prosecution was faced with
proving that the Mouvement pour le Liberation de Congo (MLC) was under the
control of Ugandan government for the purposes of proving violations of grave
breaches (amongst other issues). The plethora of technicalities and applicable
burdens of proof made this task daunting. Especially when the concept of
overall control of the culpable party was irrelevant or had no bearing to the
eventual role and liability of the perpetrator where the moral culpability was
evident in war crimes such as murder and rape, which the MLC willfully carried
out.54
The Judges at the ICTY have been known to openly encourage the
replacement of grave breaches charges in order to reduce trial time that the
51
Ingrid Detter ‘The Law of War’ (2nd edn, Cambridge: Cambridge University Press, 2002), 40.
According to the author, ‘…most apparently, internal wars do, in fact, receive some kind of
outside support..’
52
Ward Ferdinandusse. Direct Application of International Criminal Law in National Courts (The
Hague: T.M.C. Asser Press, 2005).
53
Democratic Republic of the Congo v. Uganda. Armed Activities on the Territory of the Congo,
Judgment, ICJ Reports (2005), 160.
54
James Stewart ‘The Future of the Grave Breaches Regime: Segregate, Assimilate or Abandon?’
in 2009, 7, Journal of International Criminal Justice, 861

14
defense would have utilized to address on the international nature of an armed
conflict55
There is a fair bit of controversy about what sort of grave breach
violations may be considered as war crimes.56
Many argue that the
contemporary view of the war crimes regime is broader in scope than the grave
breach regime as most if not all international criminal tribunals have dispensed
with any limitations to applicability by including or widening of their
jurisdictional jurisprudence to incorporate a robust war crimes regime.
Irrespective of this modern notion of applying the war crimes regime to every
conflict, there still exist grave breaches that do not have a corresponding war
crime equivalent.57
Furthermore, the ICC has had to charge perpetuators for the
grave breach of willful killing and inhuman treatment as the actus reus of the
crimes concerned retain their relevance within the grave breach regime.58
In truth, all states around the world are party to the four Geneva
Conventions but not all are party to Protocol 1, which is in relation to
international armed conflicts. So the situation may arise that a state which is not
bound by the covenants of a particular treaty may argue or contend that the
jurisdiction of the said treaty do not extend to it. Now, it is convenient to revert
55
The Krnojelac Case (IT-97-24), 27 October 2000. Prosecution’s Motion to Withdraw Article 2
Counts
56
Writers like Yves Sandoz in his ‘Penal Aspects of International Humanitarian Law’ are of the
opinion that Art. 85 (5) of AP1 disclose a class of non-grave breaches, which are not war
crimes. See M. Cherif Bassiouni (ed) International Criminal Law, Transnational Publishers,
Ardsley, 1999, 408
57
Art. 8(2)(a)(viii) of the ICC Statute provides for the grave breach of ‘Taking Hostages’ but there
is no related crime provided in the list in Art. 8(2)(b)
58
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC Case No.ICC-01/04-
01/07, amended document containing the charges pursuant to Article 61(3)(a) of the Statute, 26
June 2008, Annex 1A.

15
to the general provisions of the grave breaches regime as provided by the four
Geneva conventions.
Geographically, the applicability of international humanitarian law
covers ‘the whole territory of the warring states’59
hence war crimes and grave
breaches can be inferred from the foregoing are applicable in both the territories
of the warring parties. Of great importance to this regime is the issue of the
temporal scope of the grave breach and war crimes regime. The ICTY Appeals
Chamber was of the opinion that international humanitarian law begins to apply
“from the initiation of …. armed conflicts and extends beyond the cessation of
hostilities until a general conclusion of peace is reached.”60
Whereas the grave
breaches regime applies from the “outset of a conflict or occupation as defined
in these instruments until, depending on the rule concerned, the general close of
military operations, termination of the occupation, or the final release,
repatriation or re establishment of protected persons in the hands of the
enemy”61
59
60
Tadic Case. See note 49, 70
61
Art. 5 of the First and Third, and Art.6 of the Fourth Geneva Convention and Arts. 3 and 75(6)
of AP I. this is irrespective of Art 6(3) of the Fourth Geneva Convention which does not affect
the applicability of the grave breaches regime

16
CHAPTER TWO
REVIEW OF EXISTING LITERATURE
2.1 Background to the Existing Legal Regime
The horrors of the two World Wars gave rapid rise to the need for a
generally accepted penal code to guard against the perpetuation of crimes
against protected persons and actions that are inimical to the customs of
international humanitarian law.1
The development of new norms often follows a
major humanitarian upheaval.2
During the First World War, the world saw
barbarous behavior of a new sort. This behavior was exemplified by a decline in
the shared values expected in ‘civilized states’3
as embodied in the atrocious
actions by military personnel on both sides. The first world war left ‘almost no
sanctuary of persons safe from violent assault’4
the employment of newly
discovered weapons of indiscriminate fatalities without recourse to
humanitarian concerns gave rise to increased concerns for respect of the grave
breaches regime. There were reports of grave violations and breaches of the
laws and customs of international humanitarian law on both sides of the divide.5
One of the first concrete actions of the allies in the achievement of the goal of
repression of the violations of the laws and customs of international
1
The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
2
Yves Sandoz, ‘The History of The Grave Breaches Regime.’ In 2009, 7, Journal of International
Criminal Justice, 665, 666
3
Ibid
4
James Willis, ‘Prologue to Nuremberg: The Politics of Punishing War Criminals of the First
World War’ Greenwood Press, 1982, West Port and London. 15-16 in Sandoz, Y. ibid 2, 665
5
Willis, ibid 13

17
humanitarian law was the establishment of ‘The Commission,’6
which presented
its final report at the Paris Peace conference of 29 March 1919.7
Its mandate
was to establish “the facts as to breaches of the laws and customs of war
committed by the forces of the German Empire and their allies on land, on sea,
and in the air, in the course of the recent war,” and drew up a list of violations
that warranted criminal punishment.8
The Commission proposed trying war
criminals in national courts with the exception of a certain category of war
crime perpetuators who were to be tried in an Adhoc high Tribunal. This
endeavor didn’t succeed for a variety of reasons amongst which were; the fact
that the Kaiser9
was never extradited by the Dutch, and the German delegates
viewed the treaty as an attempt by the victorious allies to force a brand of
‘victor’s justice’ upon them thus very few war criminals were therefore tried.
Moreover, certain Articles10
promoted by the American delegation were not
seriously implemented. The positives from this attempt was that for the first
time, a major international peace treaty had established the principle in
international law that war crimes punishment was a proper conclusion of peace,
6
The Commission on the Responsibility of the Authors of the War and on Enforcement of
Penalties, 1919 (hereinafter referred to as ‘the Commission’)
7
A meeting of the Allied victors to set the peace terms for the defeated Central Powers following
the armistices of 1918. It held in Paris in 1919. It gave birth to the ‘Paris Peace Treaties’, which
eventually reshaped the borders of Europe and created new countries. It culminated in the
Treaty of Versailles, 28 June 1919.
8
Supra Note 2, page 664; (1920) 14, American Journal of International Law (AJIL) 95
9
Wilhelm II. Friedrich Wilhelm Viktor Albert, 27 Jan. 1859 - 4 June 1941. Last German
Emperor and King of Prussia. After his abdication on 9 Nov. 1918, he went into exile to
Netherlands, which had remained neutral throughout the war. Art. 227 of the Treaty of
Versailles expressly provided for his prosecution for ‘a supreme offence against international
morality and the sanctity of treaties’ but Queen Wilhelmina refused to extradite him even after
appeals from the Allied Powers
10
Arts. 228, 229 and 230 of the Treaty of Versailles in note 7

18
that the termination of war did not bring a general amnesty as a matter of
course.11
The experiences of the First World War, where reservations12
by certain
power blocs based on geo political foundations, backed by hesitations led to the
establishment of institutions like the United Nations War Crimes Commission
in 1943. By 1949, four years after the adoption of the United Nations Charter,
there was a total revision of international humanitarian law. The ICRC13
championed this by drafting a body of laws with an eye on the experiences of
the Second World War and presented it via the Swiss government, which has
come to be known as the four Geneva Conventions, which recognized and
indeed introduced an Article 3 common to all four conventions that provided for
non-international armed conflicts. This is important due to the fact that it was
against the backdrop of an era where the 1948 Universal Declaration of Human
Rights had eroded to a large extent the taboo of ‘national sovereignty’, many
states still remained adamant about ceding too much of their internal affairs to
international scrutiny. In 1977, two additional protocols to the Geneva
Conventions were introduced. The first, Additional Protocol I,14
added more
grave breaches to supplement the list of original offences already contained in
the four Geneva Conventions15
and clarifies the fact that grave breaches of the
11
Willis, Supra note 4 in Sandoz, Supra note 2,671
12
There were discussions as to whether ‘aggression’ amounted to a war crime, if war crimes could
be committed against citizens of an allied nation, or even against one’s own citizens.
13
The International Committee of the Red Cross, established in 1863 (as the committee of five)
14
The Protocol Additional to the Geneva Conventions of 12th
August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. 1125 UNTS 3
15
Art. 11 and 85 provided for an additional list of grave breaches which confirmed the criminal
nature of violations contained in the Hague Regulations of 1899 and 1907 Regulations (See
Chapter 1, Note 10)

19
Geneva Conventions and its additional Protocols are a species of war crimes as
listed under the ICC statute16
that are so classified because of their ‘grave’
nature.17
The specific language of Additional Protocol I restricted its application
to International Armed conflicts18
and this led a delegate of the 1974-1977
Diplomatic Conference to maintain that “crimes against another person other
than the enemy could only be crimes against humanity and that this type of
crimes was not treated in the protocols”19
The establishment of various Adhoc international criminal tribunals
from 1995 led international humanitarian law to accept that serious violations of
its provisions could constitute a war crime, whether in international armed
conflicts or in non-international armed conflicts.20
The ICTY21
and ICTR22
both
had provisions23
that gave them jurisdiction to try offenders for violations of
16
Art. 8 (2) (a) of ICC Statute
17
Sandoz, supra note 2, 676
18
Art 11 of the Additional Protocol refers to “the protection not only of people who are in the
power of the adverse party, but also of those who are deprived liberty ‘as a result of the situation
referred to in Article 1…” also Paragraph 4 refers to violations with respect to “any person who
is the power of a party other than the one which he depends”
19
Official Records of the Diplomatic Conference on the Reaffirmation and Development of
International Humanitarian Law applicable in Armed Conflicts, Geneva, 1974–1977, Vol. X, p.
127, CDDH/234/Rev.1,77, CDDH/II/SR.99 in Sandoz, supra Note 2 page 677
20
Art. 20(f) International Law Commission of the United Nations, UN Doc. A/51/10 (1996)
21
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Law Committed in the Territory of the Former Yugoslavia since
1991 (commonly referred to as International Criminal Tribunal for the Former Yugoslavia,
ICTY) Security Council Resolution 827 of 25 May 1993. 32 ILM 1192
22
Statute of the International Criminal Tribunal for Rwanda (ICTR) (known in French as Tribunal
Penal International Pour Le Rwanda), Security Council Resolution 955(1944) of 8 November
1994. 33 ILM 1598
23
Under the ICTY Statute, Art. 3 gives the Tribunal powers to prosecute persons violating the
laws and customs of war including violations of the Articles 3 common to the Geneva
Conventions applicable to non-international armed conflicts. This was the decision taken by the
Appeals chamber in The Prosecutor v. Dusko Tadic aka. ‘Dule’, ICTY, Case No. IT-94-1-A,
Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2
October 1995; whereas in the case of the ICTR Statute, Art. 4 specifically grants the tribunal,

20
offences mentioned in the Geneva Conventions and Additional Protocol I in
Additional Protocol II and Common Article 3 conflicts. The establishment of an
International Criminal Court in 1998 by the Rome Statute24
followed this same
broad definition and application of the war crimes repression regime over
offences and violations that were conventionally covered by the grave breaches
regime.25
The International Law Commission26
in defining a war crime has also
considered this modern trend in the repression of violations of international
humanitarian law.27
Under international humanitarian law, states are enjoined to respect and
ensure the respect for the statutes of international law,28
and to undertake to
domesticate these provisions into local /municipal penal legislations29
, which
jurisdiction over violations of the provisions of Additional Protocol II and Common Art. 3
conflicts.
24
Rome Statute of the International Criminal Court, Rome, 17 July 1998, 2187 UNTS 90
(hereinafter referred to as ‘Rome Statute’ or ‘The ICC Statute’
25
See Art. 8 (2)(a),which defines war crimes as including grave breaches of the four Geneva
Conventions. (b) Covers war crimes that are applicable in international armed conflicts within
the established framework of international law, (c), (d) and (e) covers acts that are serious
violations in conflicts of a non-international character and even includes acts committed against
persons taking no active part in the hostilities.
26
Established by the United Nations General Assembly Res. 174 of 21 November 1947 pursuant
to Art. 13, Paragraph 1 of the UN Charter, for ‘the promotion of the progressive development of
international law and its codification’.
27
The Report of the International Law Commission on the work of its 48th
Session (6th
May to 26th
July 1996) Supp. No. 10, UN Doc. A/51/10/ (1996) in Sandoz, supra note 2. The ILC’s
incorporated a vast violation regime into its definition of a war crime. It included grave breaches
of the four Geneva Conventions, grave breaches listed in Art. 85 of Additional Protocol I,
violations of Art. 3, common to the four Geneva Conventions and Art. 4 of the Additional
Protocol II, all violations of the laws and customs of war and also, violations of Art. 35 and 55
of Additional Protocol I.
28
Art. 1 of the four Geneva Conventions of 1949 and Additional Protocol 1 and Articles
49/50/129/146 of the four Geneva Conventions respectively. (which all have common 1st
paragraphs
29
This is an essential obligation which extends to even peace time see Jean Pictet, Commentary
IV, Geneva Convention relative to the protection of Civilian Persons in time of War,
ICRC, Geneva 1958, 590.

21
sometimes even refer to relevant provisions of international statutes. This
reference may be either dynamic or static.30
An example of a country with a dynamic reference31
to customary
developments of the laws and customs of war included in a domestic and
municipal penal legislationis Canada. war crime means an act or omission
committed during an armed conflict that, at the time and in the place of its
commission, constitutes a war crime according to customary international law
or conventional international law applicable to armed conflicts, whether or not it
constitutes a contravention of the law in force at the time and in the place of its
commission.32
On the other hand, the Laws of England and Wales,33
carries static
references34
to the ICC Statute. Other examples of National legislations with
domestic references to international penal regimes are found in the Netherlands.
30
Knut Dormann and Robin Geiß', ‘The Implementation of Grave Breaches into Domestic Legal
Orders’ (2009) Vol. 7, Journal of International Criminal Justice, 703-721: Static references
merely refer to the relevant provisions of the Geneva Conventions and Additional Protocol I, or
in the case of a War Crime, to Art. 8 of the ICC Statute whereas a Dynamic reference more than
just refer to the laws and customs of war, but would also comprise of customary law
developments. Ibid, 711
31
It would appear that this open-ended provision would raise concerns as to an unbridled direct
application of customary international law to criminal prosecutions, which at their time of
commission had no penal qualifications. This is evident from the Latin maxim nullum crimen
sine praevia lege. In an attempt to address this issue, several national constitutions, and a
number of international instruments like the ICC statute, provide for a system in which crimes
and penalties are expressly set out in written law that shall only be applied to future cases. See
Art 7(1) European Convention on Human Rights, Art. 22 and 23 of the Rome Statute of the
International Criminal Court
32
Crimes against Humanity and War Crimes Act 2000, 24 June
2000,http://www.canlii.org/en/ca/laws/stat/sc-2000-c-24/latest/sc-2000-c-24.html accessed on
14 January 2013
33
http://.www.legislation.gov.uk/ukpga/2001/17/contents accessed on 14 January 2013
34
Sect. 50(1) “‘war crime means a war crime as defined in Article 8.2 [of the ICC Statute]” and
Art. 51(1). “It is an offence against the law of England and Wales for a person to commit
genocide, a crime against humanity or a war crime”

22
Under war crimes are understood acts, which constitute a violation of
the laws and usages of war committed in wartime by subjects of an
enemy power or by foreigners in the service of the enemy35
There are a vast number of states36
that do not see the need to implement
specific legislations to incorporate the grave breaches repression into their
domestic penal regimes.
2.2 Classes of Grave Breaches and War Crimes
Violations of International Humanitarian Law may be a grave breach of
the Geneva Conventions and Additional Protocol I (applicable only in
international armed conflicts) or a war crime (applicable in either an
international armed conflict or a non-international armed conflict). International
humanitarian law is the source of most war crimes law. This is also reflected in
customary international law. In this section, the grave breaches provisions of the
Geneva Conventions will be of relevance. In addition, a number of international
humanitarian law violations that have been criminalized37
under customary
international law will be considered.
This is the list of violations contained in the Geneva Conventions regime
GC138
“Art. 50. Grave breaches to which the preceding Article relates
shall be those involving any of the following acts, if committed
against persons or property protected by the Convention: wilful
killing, torture or inhuman treatment, including biological
35
Art. 1, Netherlands, the Definition of War Crimes Decree, 1946. In
http://.www.icrc.org/customary- ihl/eng/v2_cou_nl_rule156 accessed 7/1/2013
36
Dormann, and GeißÎ. Supra Note 30, page 714. Turkey, France, Israel and Austria
37
Art. 5(1)(c) of the Rome Statue of the International Criminal Court gives the ICC jurisdiction
over war crimes including the grave breaches of the Geneva Conventions.
38
The Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in

23
experiments, wilfully causing great suffering or serious injury to
body or health, and extensive destruction and appropriation of
property, not justified by military necessity and carried out
unlawfully and wantonly.”
GCII39
“Art 51. Grave breaches to which the preceding Article relates
body or health, and extensive destruction and appropriation of
property, not justified by military necessity and carried out
unlawfully and wantonly.
GCIII40
body or health, compelling a prisoner of war to serve in the
forces of the hostile Power, or wilfully depriving a prisoner of
war of the rights of fair and regular trial prescribed in this
Convention.”
39
The Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. 6 UST 3217, 75
UNTS 85
40
The Geneva Convention (III) Relative to the Treatment of Prisoners of War. Geneva, 12 August
1949. 6 UST 3316, 75 UNTS 135

24
GCIV41
body or health, unlawful deportation or transfer or unlawful
confinement of a protected person, compelling a protected person
to serve in the armed forces of a hostile power or willfully
depriving a protected person of the rights of fair and regular trial
prescribed in the present Convention, taking of hostages and
extensive destruction and appropriation of property, not justified
by military necessity and carried out unlawfully and wantonly.”
AP I42
“Art. 11. Any wilful act or omission which seriously endangers
the physical or mental health or integrity of any person who is in
the power of a Party other than the one on which he depends and
which either violates any of the prohibitions in paragraphs 1 and
2 or fails to comply with the requirements of paragraph 3 shall be
a grave breach of this Protocol.”
“Art. 85. (2) Acts described as grave breaches in the
Conventions are grave breaches of this Protocol if committed
against persons in the power of an adverse Party protected by
Articles 44, 45 and 73 of this Protocol, or against the wounded,
41
The Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War.
Geneva, 12 August 1949. 6 UST 3516, 75 UNTS 287
42
AP I, supra Note 14 (The Protocol Additional to the Geneva Conventions of 12th August 1949,
and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June
1977. 1125 UNTS 3

25
sick and shipwrecked of the adverse Party who are protected by
this Protocol, or against those medical or religious personnel,
medical units or medical transports which are under the control
of the adverse Party and are protected by this Protocol.
(3) In addition to the grave breaches defined in Article 11,
the following acts shall be regarded as grave breaches of this
Protocol, when committed wilfully, in violation of the relevant
provisions of this Protocol, and causing death or serious injury to
body or health:
(a) making the civilian population or individual civilians the
object of attack;
(b) launching an indiscriminate attack affecting the civilian
population or civilian objects in the knowledge that such attack
will cause excessive loss of life, injury to civilians or damage to
civilian objects, as defined in Article 57, paragraph 2(a)(iii);
(c) launching an attack against works or installations containing
dangerous forces in the knowledge that such attack will cause
excessive loss of life, injury to civilians or damage to civilian
objects, as defined in Article 57, paragraph 2(a)(iii);
(d) making non-defended localities and demilitarized zones the
object of attack:
(e) making a person the object of attack in the knowledge that he
is hors de combat;
(f) the perfidious use, in violation of Article 37, of the distinctive
emblem of the red cross, red crescent or red lion and sun or of

26
other protective signs recognized by the Conventions or this
Protocol.
(4.) In addition to the grave breaches defined in the preceding
paragraphs and in the Conventions, the following shall be
regarded as grave breaches of this Protocol, when committed
wilfully and in violation of the Conventions or the Protocol:
(a) the transfer by the Occupying Power of parts of its own
civilian population into the territory it occupies, or the
deportation or transfer of all or parts of the population of the
occupied territory within or outside this territory, in violation of
Article 49 of the Fourth Convention;
(b) unjustifiable delay in the repatriation of prisoners of war or
civilians;
(c) practices of apartheid and other inhuman and degrading
practices involving outrages upon personal dignity, based on
racial discrimination;
(d) making the clearly recognized historic monuments, works of
art or places of worship which constitute the cultural or spiritual
heritage of peoples and to which special protection has been
given by special arrangement, for example, within the framework
of a competent international organization, the object of attack,
causing as a result extensive destruction thereof, where there is
no evidence of the violation by the adverse Party of Article 53,
sub-paragraph (b), and when such historic monuments, works of

27
art and places of worship are not located in the immediate
proximity of military objectives;
(e) depriving a person protected by the Conventions or referred
to in paragraph 2 of this Article of the rights of fair and regular
trial.”
By their express definitions, the following offences are classified as a
grave breach by the Geneva Conventions and as such applicable in international
armed conflicts:
Wilful killing, inhuman treatment, willfully causing great suffering and
injury, extensive destruction of property, compelling military service with
hostile forces, deprivation of fair trial, deportation and enforced transfer.
The following, are offences committed against protected persons,
civilians, persons no longer taking active part in hostilities, persons detained or
interned for reasons related to the conflict, prisoners of war, protected persons
in occupied territory, the civilian population, individual persons not taking
direct part in hostilities or persons in general. They are classified as serious
violations and are applicable in international and non-international armed
conflicts. Jurisdiction over these violations is also found in laws establishing
adhoc criminal tribunals like the ICC:
Torture, taking of hostages, confinement of civilians, cruel treatment,
murder, violence to life and person, outrages upon personal dignity, rape,
wanton destruction, plunder and pillaging, seizure and destruction of protected
structures, unlawful attack on civilians, unlawful labor, and slavery, terrorizing
the civilian population, conscripting and enlisting child soldiers, mutilation,
sexual slavery, forced marriage and other gender based violence.

28
Under the ICC regime, there are four distinct categories of war crimes:
Firstly, it recognizes the grave breaches regime under the four Geneva
Conventions as elucidated above; secondly, it recognizes a class of violations of
laws and customs of war derived from various other sources;43
Thirdly, it also
introduces a category of serious violations of the Art. 3 common to the Geneva
Conventions, which applies to non-international, armed conflicts.44
The last
category is violations of the laws and customs applicable in armed conflicts not
of an international character. The ICC statute sourced this last category of
violations from sources45
unlike the other categories and they in fact mirror
those crimes applicable in international armed conflicts.
2.2 The Elements of a Grave Breach
As noted earlier, it is a settled fact of customary international law that
individual criminal responsibility is a direct effect of a violation of the
provisions of the grave breaches regime. Both the ICC and various adhoc
international criminal tribunals like the ICTY have jurisdiction to try these and
other violations of the laws and customs of war and have thus incorporated the
43
1. The Hague Convention IV Respecting the Laws and Customs of War on Land, 18 October
1907. 36 Stat 2277 , 2. AP I supra note 14, 3. The Hague Declaration (IV, 3) concerning
Expanding Bullets, 1899, and 4. The Protocol for the Prohibition of the Use of Asphyxiating,
Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva 17 June 1925
(Geneva Gas Protocol) R & G 157 240
44
These are prohibitions against acts like violence to life and person, in particular, murder of all
kinds, mutilations, cruel treatment and torture.
45
The Hague Regulations, 1907 (see Chapter 1, Note 10) and The Protocol Additional to the
Geneva Conventions of 12 August 1949, relating to the Protection of Victims of Non-
International Armed Conflicts (Protocol II), Geneva 8 August 1977. 1125 UNTS 3

29
grave breaches regime of the Geneva Conventions into their statutes authorizing
the prosecution of war criminals. The ICTY listed the grave breaches as:46
i. Willful killing
ii. Torture
iii. Inhuman treatment
iv. Biological experiments
v. Willfully causing great suffering
vi. Destruction and appropriation of property
vii. Compelling service in a hostile force
viii. Denial of fair trial
ix. Unlawful deportation and transfer
x. Unlawful confinement
xi. Taking of hostages
The ICTY has held that “an armed conflict exists whenever there is a
resort to armed force between states.” In addition, it held that “international
humanitarian law applies from the initiation of such armed conflicts and extends
beyond the cessation of hostilities until a general conclusion of peace is
reached; … until that moment, international humanitarian law continues to
apply in the whole territory of the warring states… whether or not actual combat
takes place there.”47
In addition, the assembly of states, parties to the Rome
Statute of the ICC adopted certain elements to be proven for individual grave
46
Art. 2, ICTY Statute
47
accessed on January 15, 2013, www.fafo.no/liabilities/part_II-3war-crim2.html

30
breaches48
. These elements49
are common to all of the grave breaches of the
Geneva Conventions and Additional Protocol I.
i. The victim(s) must qualify as protected persons under any or all
of the Geneva Conventions.
ii. The perpetuator was aware of the facts that established that
protected status of the victim(s).
iii. The conduct that established the violation or breach was carried
out or associated with an armed conflict of an international
character.
iv. The perpetuator was aware of the facts that established the
existence of an armed conflict.
The rules governing both forms of conflict are different and so also does
the standard of proof of these violations. This reality has reflected one major
problem of the grave breaches regime; Experts like Dieter Fleck50
have opined
that the Geneva Conventions have stressed the obligation of States to provide
penal laws and a repression regime for the various grave breaches in the
Conventions.51
In addition to that, there also existed a sort of Universal
Jurisdiction over these violations.52
Due to the shortcomings of the applicability
of the grave breaches regime, which affects whether or not a conflict was an
48
The International Criminal Court; Elements of Crimes, ICC-PIDSLT-03-002/11_Eng, 2011
49
(ii) and (iv) are mental elements and derived from Arts. 30 and 32 of the Rome Statute of the
ICC. (iv) also does not require any legal evaluation by the perpetuator, only an awareness that
an armed conflict had been established will suffice.
50
Dieter Fleck. ‘Shortcomings of the Grave Breaches Regime’ (2009) 7, Journal of International
Criminal Justice. 833-854 page 835
51
Art. 49 (1) GC I, Art.50 (1) GC II; Art.129 (1) GC III; Art. 146 (1) GC IV; see Jean Pictet (ed.),
The Geneva Conventions of 12 August 1949: Commentary (Geneva: ICRC, Vol. I 1952, Vol. II
1960, Vol. III 1960, Vol. IV 1958).
52
Art. 49 (2) GC I; Art. 50 (2) GC II; Art. 129 (2) GC III; Art. 146 (2) GC IV.

31
international armed conflict or a non-international armed conflict, International
Criminal Tribunals now assumed jurisdiction over not just a geographical
portion of the grave breaches regime, but over subject matters such as
jurisdiction over serious violations of international humanitarian law. These
includes grave breaches of the conventions, violations of the laws and customs
of was, genocide and crimes against humanity.53
2.3 The Elements of a War Crime under the Statutes of International Criminal
Tribunals
A violation must entail under international humanitarian law, an
individual criminal responsibility for the person breaching the rule. For the
purpose of emphasis, international criminal tribunals base their penal regimes
on the violations prohibited in the Grave Breaches provisions of the four
Geneva Conventions and Additional Protocol I (that may apply in international
armed conflict; common article 354
of the four Geneva Conventions; and other
serious violations of international humanitarian law that apply either in
international or non-international armed conflicts.
For emphasis, this paper will limit itself to the ICTR, the ICC and most
especially, the ICTY.
ICTY Statute, Article 2 contains the Grave Breaches of the Geneva
Conventions of 1949.
53
Arts. 2-5 of the ICTY Statute. No reference to AP I and II was made in the ICC Statute
54
Tadic, supra note 23, 102. The ICTY has held that Common Article 3 has set forth a minimum
standard applicable to a conflict, whether international or not and thus gives rise to criminal
responsibility.

32
“The International Tribunal shall have the power to prosecute persons
committing or ordering to be committed grave breaches of the Geneva
Conventions of 12 August 1949, namely the following acts against
persons or property protected under the provisions of the relevant
Geneva Conventions:
(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a
hostile power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair
and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a
civilian;
(h) taking civilians as hostages.”
ICTY Statute Article 3: Contains violations of the laws or customs of war
“The International Tribunal shall have the power to prosecute persons
violating the laws or customs of war. Such violations shall include, but
not be limited to:
(a) employment of poisonous weapons or other weapons calculated to
cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not
justified by military necessity;

33
(c) attack, or bombardment, by whatever means, of undefended towns,
villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions
dedicated to religion, charity and education, the arts and sciences,
historic monuments and works of art and science;
(e) plunder of public or private property.”
The ICTY statute has a residual effect in that it covers violations not
even listed in the statute establishing the court.55
The ICTR Statute also has a non-exhaustive list of crimes based on violations of
Common Article 3 and Additional Protocol II56
(this in itself a reflection of the
UN Security Council’s impression that the 1994 Rwandan genocide was within
the definition of a non-international armed conflict. The ICC has a wide
jurisdiction57
over Grave Breaches violations, serious violations of laws and
customs of international armed conflict, serious violations of common article 3
committed in a non-international armed conflict and serious violations of the
laws and customs of non-international armed conflict.
2.3.1 Special Elements
Under the ICTY, for a conduct to be considered as a war crime either
under Art. 2 or Art 3, the court must establish the following:
55
Offences under Art. 2 of the ICTY Statute can only be charged if the prosecution alleges an
international armed conflict whilst offences under Art. 3 can be charged regardless of the nature
of the conflict and also gives the ICTY jurisdiction over offences listed therein and not covered
by Arts. 2, 4 and 5
56
The Protocol Additional to the Geneva Conventions of 12th August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. 1125
UNTS 609; Art. 4, ICTR Statute
57
Art. 8, ICC Statute.

34
i. That the violation constitutes an infringement of the rules of
international humanitarian law.
ii. That the rule violated is a customary rule, if it is based on a treaty, then
all required conditions are met.
iii. That the violation is serious, constitutes a breach of a rule protecting
important values and involves grave consequences for the victims.
iv. The violation of the said rule entails, whether under customary or
conventional law, individual criminal responsibility of the person
breaching the rule.58
The following elements must be established for an offence to be subject to
the prosecution as a grave breach under Article 2 of the ICTY statute:
i. The existence of an armed conflict
ii. The armed conflict must be of an international character
iii. There must exist a nexus between the alleged violation and the armed
conflict in question.
iv. The victim(s) of the alleged crime(s) is/are “protected persons” under
the Geneva Conventions59
Offences under Article 3 of the ICTY Statute require a determination as
to whether a state of armed conflict existed at the time of the commission of the
alleged violation and the existence of a nexus between the alleged violations
and the armed conflict.60
For charges brought under Common Article 3 of the
58
Module 8, International Criminal Law & Practice Training Materials, International Criminal
Law Services, 8.2.5.www.wcjp.unicri.it/deliverables/docs/Module_8_War_crimes.pdf accessed
on the 25 January 2013
59
Radoslav Brdanin, Case No. IT-99-36-T, Trial Judgement, 121: Mladen Naletic et al., Case No.
IT-98-34-T, Trial Judgement, 31st
March 2003, 176
60
Vujan Popovic et al, Case No. IT-05-88-T, Trial Judgement, 739; Ante Gotovina et al., Case
No. IT-06-90-T, Trial Judgment 15 April 2011, 1673

35
Geneva Convention, the prosecution must show the victim(s) are not taking an
active part in the hostilities at the time of the alleged crime. In addition, that the
perpetrator knew or had reason to know that the victim(s) was not taking active
part in the hostilities at the time of the alleged violation.61
2.4 General Requirements for the Proof of War Crimes62
i. Armed Conflict: there must exist an armed conflict where and when the
alleged violations were committed.63
ii. Protected Persons:64
the victim(s) must be a protected person.
iii. Nexus65
: there must exist, a sufficient nexus between the criminal acts of
the perpetuator and armed conflict66
in question.
iv. Existing International Humanitarian Law: the alleged criminal act must
be a serious67
violation of the law and customs of IHL.
v. Gravity of the crime: the violation alleged must be of a serious nature to
involve grave consequences for the victim(s)
61
Popovic et al, ibid, 743, Gotovina et al, ibid, 1673, Ljube Boskoski, Case No. IT-04-82-T,
Appeal Judgment, 19 May 2010, 66
62
Tadic, supra note 23, 94
63
Ibid, 70, 75 and Art. 6, GCIV
64
Will be discussed in Chapter 3
65
Not all crimes during an armed conflict or state occupation are necessarily war crimes. There
has to be a close relationship between the crime in itself, and the particular armed conflict.
Tadic, supra note 23, 70. The ICC standard is that the conduct took place “in the context of and
associated with” the armed conflict. ICC
66
ICC Elements of Crimes, Art.8(2)(a)-1. The armed conflict in this case, does not need to have
caused the commission of the crime, the prosecution has to just prove that the conflict “played a
substantial part in the perpetuator’s ability to commit it, his decision to commit it, the manner in
which it was committed or the purpose for which it was committed” ICC Elements of Crimes,
Art. 8(2)(a)-1
67
Tadic, supra note 23, An IHL violation is serious if it constitutes a beach of a “rule protecting
important values, and the breach must involve grave consequences for the victim”

36
vi. Individual Criminal Responsibility:68
the violation must entail individual
criminal responsibility for the perpetuator allegedly breaching the rule
vii. Awareness: in most cases, it is necessary to prove that the perpetuator
was aware that an armed conflict existed.
Under the Rome Statute of the ICC, Art. 8 state that war crimes must be
committed “in the context of and associated with” an armed conflict. The
requirements for the proof of elements of a war crime under Art. 8 of the ICC
Statute are:69
i. The conduct took place in the context of and was associated with an
armed conflict (depending on the crime, either of an international or of
an non-international character)
ii. The perpetrator was aware of the factual circumstances that established
the existence of an armed conflict.
For crimes against protected persons, the following requirements have to be
met:
i. The victim or victims were protected under one or more of the Geneva
Conventions of 1949;
ii. The perpetrator was aware of the factual circumstances that established
protected status.
68
Ibid, 128-129
69
ICC Elements of Crimes, Supra note 126, 8(2)(a)(i)-5, Jean-Pierre Bemba Gombo, Case
No.ICC-01/05-01/08-424, Decision pursuant to Art. 61(7)(a) and (b) of the Rome Statute, Pre-
Trial Chambers, 15 June 2009, 238

37
A major difference between both violation requirements is that the ICTY
does not require the prosecution to prove that war crimes were committed as
“part of a plan, policy or large scale commission of such crimes.70
2.4.1 Specific Elements of Individual War Crimes71
This set of crimes are also considered as grave breaches under the
Geneva Conventions when their commission meets the criteria set out in the
seven general elements discussed above.
i. Willful Killing72
This grave breach of the Conventions and Additional Protocol I is the
same in meaning as the phrase “murder of all kinds” referred to in Art. 3
common to the four Geneva Conventions. They are synonymous and have the
same definitional elements.73
The elements are
a. The victim(s) is/are dead
b. An act or inaction of the perpetuator, or of a person(s) whose actions or
inactions, the perpetuator bears criminal responsibility, caused o
substantially contributed to the death
70
Robert Cryer. et al., An Introduction to International Criminal Law and Procedure 288 (2nd
ed.
2010) in International Criminal Law & Practice Training Materials, Supra note 58, paragraph
8.3
71
The ICTY’s Jurisprudence has developed considerably through the many judgments and case
law; it will provide the backdrop upon which these individual criminal elements will be drawn.
Reference shall be made to the limited case law from the ICC.
72
Art. 32, 147 GC IV, Art. 8(2)(a)(i) ICC Statute, Art.2(a) ICTY Statute, Art.8(2)(a) ICC
Elements of Statutes.
73
Prosecutor v Delalic et al, Case No. IT-96-21-T, Judgment (The Celebici Judgment), 16 Nov.
1998, 420-439

38
c. The act was carried out, or the inaction was committed with an intention
to kill or to inflict grievous bodily harm or injury with the reasonable
knowledge that the action or inaction was likely to cause death.
If the killing is to be charged as a grave breach, the ICTY appeals chamber has
held that the additional requirement that the victim(s) was a protected person at
the time of the killing must be proved.74
The Mens Rea content is that the
perpetrator “intended to cause grievous bodily injury which, as it is reasonable
to assume, he had to understand was likely to lead to death”75
ii. Torture76
This grave breach retains the same characteristics as torture under
Common Article 3.77
Its elements are:
a. The infliction, by act or omission, of severe pain or suffering, whether
physical or mental
b. The act or inaction must be intentional
c. The action or inaction must be aimed at obtaining information or
confession, or eliciting punishment, intimidation or coercion of the
74
Dario Kordic et al., Case No. IT-95-14/2-T, Trial Judgment, 38
75
Ibid 36
76
Art. 32, 147 GC IV, Art. 8(2)(a)(ii) ICC Statute, Art. 2(b) ICTY Statute
77
Celibici, supra note 73, 494

39
victim(s) or a third person; or aimed at discrimination, on any ground,
the victim(s) or a third person.78
d. There is also the inference that such an act or omission being committed
by, or at the instigation of or with the consent or acquiescence of, an
official or other person acting in an official capacity.79
The ICTY has also confirmed that discrimination on basis of gender
could be subsumed under the war crime of torture.80
Under the ICC regime, the elements of torture are:
a. That the perpetrator inflicted severe physical and mental pain or
suffering upon one or more persons
b. That the perpetrator inflicted the pain or suffering for such purposes as
obtaining; information or a confession, punishment, intimidation or
coercion or for any reason based on discrimination of any kind.81
iii. Inhumane Treatment or Cruel Treatment82
This is treatment is not humane.83
It is an intentional act or omission,
which causes serious mental harm or physical suffering or injury or constitutes a
serious attack on human dignity or if committed against a protected person.84
78
Ramush Haradinaj et al., Case No.IT-02-54-T, Trial Judgment, 3 April 2008, 290; Kunarac,
supra note 127, 142-148; Milan Martic, Case No. IT-95-11-A, Appeal Judgment, 8 Oct 2008,
78
79
Celibici, supra note 73, 494
80
Ibid, 941
81
Art. 8(2)(a)(iii)-1 ICC Elements of Crimes, ICC Statutes
82
Art. 119 and 147 GC IV; Art. 8(2)(a)(iii) ICC Statute, Art. 2(b) ICTY Statute

40
The amount of physical or mental suffering required to prove this crime is
lower than that required by a torture charge but on the same level with that
required for willfully causing great suffering or serious injury to body and
health.85
Inhumane and cruel treatment covers the following reprehensible practices:
a. The use of human shields86
b. The use of force labor87
c. Poor prison camp conditions and 88
d. Bombardment of a civilian town 89
Materially, the elements that make up both offences are the same,90
but
the distinguishing factor for the Common Article 3 alternative offense of cruel
treatment, is that the victim(s) is “a person taking no active part in hostilities” 91
83
Celibici, supra note 73, 515-520
84
Ibid, 426
85
Naletilic, see note 59, 246
86
Prosecution v Blaskic, Case no. IT-95-14, Judgment, 3 March 2000, 653, 669
87
Ibid 590-597
88
Fatmir Linaj, Case No. IT-03-66-T, trial Judgement, 30 Nov. 2005, 288-289
89
Pavel Strugar, Case No.IT-01-42-T, Appeal Judgement, 17 July 2008, 264, 268-272, 275-276
90
Naletilic, see note 59, 246; Naser Oric, Case No. IT-03-68-T, Trial Judgment, 30 June 2006,
350
91
Celebici, supra not 73, 424; Naletilic, ibid, 246

41
iv. Willfully Causing Great Suffering Or Serious Injury To Body92
The elements of this grave breach are:
a. The intentional act or omission that causes great mental or physical
suffering or serious injury to body or health, including mental health
b. The act or omission was committed against a protected person.93
The ICTY has defined suffering to include moral suffering, mental
suffering as well as physical suffering.94
The inclusion of the words “great” and
“serious” entail the requirement of a particular act of mistreatment that causes
suffering or injury of the desired level of seriousness. Serious harm involves the
causation of harm that goes beyond a temporary feeling of unhappiness,
embarrassment or humiliation.95
The harm complained about must be examined
by unique case by case analysis with an emphasis on prevailing circumstances96
,
such that it results in a grave long term disadvantage to the victim(s)’ ability to
lead a normal and constructive life97
The ICC elements98
are that the perpetrator caused great mental or physical pain
or suffering to, or serious injury to body or health of, one or more persons.
92
Art. 147, GC IV; Art.2(c), ICTY Statute; Art.8(2)(a)(iii) ICC Statute.
93
Naletilic, supra note 59, 339; Celebici supra note 73, 424, 507, 509
94
Celebici, ibid, 507, 509
95
Radoslav Krstic, Case No. IT-98-33-T, Trial Judgment, 2 Aug 2001, 513
96
Naletilic, supra note 59, 342-343
97
Krstic, supra note 95, 513.
98
Art. 8(2)(a)(iii) of the ICC Elements

42
v. Extensive Destruction and Appropriation of Property99
The commentary100
to the Geneva Conventions states that this violation
covers other different violations. Hence the violation of any property located in
an occupied territory protected by Art. 53101
will be charged with committing
this offence. The appropriation must not be an isolated incident, so must be
extensive to qualify as a grave breach.102
The ICTY, held that to “constitute a grave breach, the destruction
unjustified by military necessity must be extensive, unlawful and wanton.” And
further noted that the key word; ‘extensive’ should be “evaluated according to
the facts of the case – a single act, such as the destruction of a hospital, may
suffice to characterize an offence under this count”103
The ICC elements are that:104
a. The Perpetuator destroyed or appropriated certain property
b. The destruction or appropriation of the property was not justified by
military necessity
c. The destruction or appropriation of the property was extensive and
carried out wantonly
99
Art 33 (which provides for ‘pillage’), 53 (which prohibits destruction) and 147, GC IV; Art.
8(2)(a)(iv), ICC Statute; Art. 2(d), ICTY Statute.
100
Pictet, supra note 51, 601
101
GCIV which prohibits the destruction of real or personal property from destruction except same
is required by military necessity
102
Art 147, GCIV
103
Blaskic, Supra note 86, 157
104
Art. 8(2)(a)(iv), ICC Elements.

43
vi. Compelling A Prisoner of War (or a Civilian) to Serve in the Forces
of a Hostile Power105
This includes forcing one or more protected persons, actively or by
inferred threat, to take part in military operations against one’s own country or
forces, or otherwise serve in the forces of a universal power. 106
vii. Willfully Depriving a Prisoner of War or a Civilian of the Rights of
Fair And Regular Trial107
Pictet108
stated that the Geneva Convention establishes a number of
conditions under which protected persons may be tried in court. He noted that a
violation of these conditions would amount to denial of trial. The ICC element
is that the perpetrator deprived one or more persons of a fair and regular trial by
denying them judicial guarantees as defined by the fourth Geneva
Convention.109
viii. Unlawful Deportation110
The Additional Protocols111
also prohibit this grave breach of the
Geneva Conventions. Customary IHL and its related Treaties also prohibit
105
Art. 147, GCIV; Art.23, Hague Convention IV; Art.8(2)(a)(v), ICC Statute; Art. 2(e), ICTY
Statute
106
Art. 8(2)(a)(v)(1) and (2), ICC Elements.
107
Art. 64-75, 147 GCIV; Art. 8(2)(a)(vi) ICC Statute; Art. 2(f) ICTY Statute
108
Pictet, supra note 15, 600
109
Art. 8(2)(a)(vi), ICC Elements.
110
Art. 45, 49 and 147 GCIV; At. 8(2)(a)(vii), ICC Statute; Art. 2(g), ICTY Statute
111
Art. 85, AP I and Art. 77, AP II

44
unlawful112
forced movements within the context of armed conflicts of whatever
character.
For the displacement to be unlawful the victim(s) must have been
transported across a national border, while forcible transfer would entail a
displacement within a national territory,113
a motivation based on security needs
of the general population or military necessity notwithstanding. The mens rea
for the deportation is that the perpetrator intended to displace the victim(s)
across a national border or within the national border as the case may be,114
irrespective of the duration, the perpetrator intended the displacement to be.115
The ICC elements follow the trend above; that the perpetuator deported
or transferred one or more persons to another state or location.116
ix. Unlawful Confinement117
Confinement is considered unlawful when:118
a. There are no reasonable grounds to believe the detention was absolutely
necessary for security reasons.
I. Detention of civilians without reasonable grounds to believe that
it furnishes the security of the detaining power any benefit.
112
Art. 42 GC IV provided for lawful
113
Naletilic, supra note 59, 519-521
114
Ibid
115
Milomir Stakic, Case No. IT-97-24-A, Appeal Judgment, 22 March 2006, 317
116
Art. 8(2)(s)(vii), ICC Elements.
117
Art. 41-43, 78 and 147, GCIV; Art. 8(2)(a)(vii), ICC Statute; Art. 2(g), ICTY Statute
118
Kordic, supra note 74, 73; Celebici, supra note 73, 320-322, 330

45
II. The fact that a person is a national of or aligned with the national
of an enemy country does not make him a threat to peace and
security of the opposing state, hence not a valid basis for
detention.
III. To qualify as lawful confinement, there must be an assessment
that each civilian taken into detention posed a ‘particular risk’ to
the security of the detaining power.119
b. Where procedural safeguards set by the Geneva Conventions are not
complied with regarding detained civilians, even when their initial
detention may have been justified.
The Geneva Conventions120
provides that an appropriate forum must
reconsider such decisions with regards to detentions of this nature as soon as
possible. Such reasonable time being the minimum time necessary to make such
enquiries to determine whether the detainees posed a security risk upon grounds
of ‘definite suspicion’ as the type referred to in the Geneva Conventions.121
It is not necessary to establish a fore knowledge of initial unlawful
detention, because, the onus or obligation to afford procedural guarantees
applies to all detainees, whether they were initially lawfully detained or not.122
Where a person who has authority to release detainees knows that
persons in continued detention have a right to review of their
detention and that they have not been afforded that right, he has a
119
Celebici, ibid 73
120
Art 43, GCIV
121
Art 5, GCIV
122
Celebici, supra note 73; 327, 380

46
duty to release them. Therefore, failure by a person with such
authority to exercise the power to release detainees, whom he
knows have not been afforded the procedural rights to which they
are entitled, commits the offence of unlawful confinement of
civilians, even if he is not responsible himself for the failure to
have their procedural rights respected.123
The ICC elements are that perpetrator confined or continued to confine
one o more persons to a certain location124
x. Taking of Hostages125
The ICTY has defined ‘a hostage’ as “persons unlawfully126
deprived of
their freedom, often arbitrarily and sometimes under threat of death”127
. The
elements are that:
a. The detention must be unlawful
b. At the time of the supposed detention, the alleged censurable act was
perpetuated in order to obtain a concession or gain an advantage.128
The ICC elements are that
a. The perpetrator seized, detained or otherwise held hostage one or more
persons.
b. The perpetrator threatened to kill, injure or continue to detain such
person(s)
123
Ibid, 379
124
Art.8(2)(a)(vii), ICC Elements.
125
Art. 41-43, 78 and 147 GCIV; Art. 2(h), ICTY Statute; Art. 8(2)(a)(viii), ICC Statute
126
The issue of whether or not the term ‘unlawfully’ was decided in Radovan Karadzic, Case No.
IT-95-5/18-T, Decision on the Accused’s Application for Binding Order Pursuant to Rule 54
bis, 19 May 2012, 23-26. In Blaskic, Supra Note 166, 158; the ICTY stated that an example of a
lawful detention would be detention intended to protect the targeted civilians.
127
Blaskic, supra note 86, 158, 187
128
Ibid, 158

47
c. The perpetrator intended to compel a State, an international
organization, a natural person or a group of person to act or refrain from
acting as an explicit or implicit condition for the safety of or the release
of such person or persons. 129
129
Art. 8(2)(a)(viii) ICC Elements of Crime

48
CHAPTER THREE
APPLICABILITY OF THE GRAVE BREACHES REGIME TO INTERNAL
ARMED CONFLICTS.
3.1 Background to Applicability
In Tadicè, the ICTY affirmed the definition of a non-international armed
conflict1
whilst an international armed conflict usually refers to an inter-state
conflict. Common Article 2 of the 1949 Geneva Conventions states that:
In addition to the provisions which shall be implemented in
peace-time, the present Convention shall apply to all cases
of declared war or of any other armed conflict which may
arise between two or more of the High Contracting Parties,
even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or
total occupation2
of the territory of a High Contracting
Party, even if the said occupation meets with no armed
resistance.
The ICRC commentary on the provision explains that:
Any difference arising between two States and leading to
the intervention of members of the armed forces is an
armed conflict within the meaning of Article 2, even if one
of the Parties denies the existence of a state of war. It
makes no difference how long the conflict lasts, or how
much slaughter takes place. The respect due to the human
person as such is not measured by the number of victims.3
1
Re. Tadic, Case No. IT-94-1-AR72, Judgment, 15 July 1995, 70
2
Art. 1(4), AP I; conflicts shall also be qualified as international when they occur between a State
which is a party to the Protocol and an authority representing a people engaged in a struggle
"against colonial domination and foreign occupation and against the racist regimes in the
exercise of the right of peoples to self-determination"
3
Claude Pilloy, Yves Sandoz, Bruno Zimmermann, ICRC. Commentary on the Additional
Protocols: of 8 June 1977 to the Geneva Conventions of 12 August 1949. Martinus Nijhoff
Publishers, 1987 pp. 20–21

49
This state of affairs is due to one major reason; simply because, as
Moir aptly put it:
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 4
There was no conventional regulation of internal armed conflicts except
one article that was common to the four conventions.5
This is irrespective of the
fact that in 1977, two additional protocols expanded the scope of protection that
could be elicited from the Conventions. The situation affecting internal armed
conflicts was altered by the expansion of the provisions of the Conventions to
include a category of armed conflict that would be subject to the rules of
international humanitarian law.6
These new protocols even showed the lack of
comprehension of a concept of the grave breaches regimes, having any role to
play other than during international conflicts. For example, AP I7
had a list of
grave breaches to be repressed during international armed conflicts, AP II
contained no penal enforcement provisions.
In spite of the foregoing, it can be argued that “the grave breaches
regime of the Geneva Conventions aimed at the effective enforcement of
4
Lindsay Moir. ‘Grave Breaches and Internal Armed Conflicts’ (2009), 7, Journal of
International Criminal Justice, 763-787
5
Ibid, 763-764; Art. 3, which were common to the four Geneva Conventions, only imposed a
basic obligation on parties of the convention in an internal armed conflict to respect the most
fundamental humanitarian principles of the Conventions. In effect, making it a mini convention
of sorts.
6
Art. 1(4) AP I; armed conflicts ‘in which peoples are fighting against colonial domination and
alien occupation and against racist regimes in the exercise of their right of self-determination’.
7
Art. 11 and 85, AP I

50
international humanitarian law (and particularly with respect to the most serious
violations of the laws of war), has exerted significant influence on the
development of a legal system which also imposes criminal responsibility upon
individuals for the violation of the laws of internal armed conflict.”8
The
Criminalization of violations of the Geneva Conventions was encouraged via
the adoption and promotion of the principle of international law referred to as
aut dedere aut judicaire9
which created a universal jurisdiction over these
violations of the laws and customs of international humanitarian law. There are
no similar obligations in the text in relation to common article 3 or in additional
protocol II, either expressly or inferred, of enforcement measures or criminal
responsibility or imposition of penalties. Even the ICRC followed that trend
during the establishment of the ICTY,10
whilst the ICTR Statute of 1994 was
the first to have a provision that criminalized violations of common article 3.11
Modern jurisprudence now supports the position that even if
international humanitarian law does not expressly provide for individual
criminal liability for violations of common article 3, the inference of such
liability is acceptable to ground a criminal charge.12
The first case at the ICTY
witnessed a submission that international law did not provide for individual
8
Moir, supra note 4, 764
9
Stephen Hall. International Law, 2011, 3rd
Ed., Butterworths Tutorial Series, LexisNexis
Butterworths; The Obligation to Extradite or Prosecute is the legal obligation of States under
Public International Law, to prosecute persons who commit serious international crimes where
no other state has requested extradition. This obligation is irrespective of the extra territorial
nature of the crime and regardless of the fact that the perpetrator(s) and victim(s) may be of
alien nationality
10
Preliminary Remarks of the ICRC (25 March 1993), unpublished; Final Report of the
Commission of Experts Established Pursuant to Security Council Resolution 780, UN Doc.
S/1994/674, 27 May1992, 52
11
Art. 4, ICTR Statute.
12
Prosecutor v Delalic et al., Case No. IT-96-21-T, Judgment (The Celebici Judgment), 16 Nov.
1998, 308

51
criminal responsibility for violations of the laws of internal armed conflict. The
tribunal in overruling the submission, held that:
……. customary international law imposes criminal liability for
serious violations of common Article 3, as supplemented by other
general principles and rules on the protection of victims of internal
armed conflict, and for breaching certain fundamental principles
and rules regarding means and methods of combat in civil strife.13
…..each of the prohibitions in common Article 3 …..
constitute, as the [ICJ] put it, ‘‘elementary considerations
of humanity’’, the breach of which may be considered to be
a ‘‘breach of a rule protecting important values’’ and which
‘‘must involve grave consequences for the victim.14
The basis for state apathy to the universal jurisdiction of common article
3 violations was an ‘unacceptable infringement of sovereignty,’15
as states
parties to the 1949 conventions did not want to give other states jurisdiction
over serious violations of international humanitarian law committed in their
internal armed conflicts.16
In any case, The ICTY or ICTR have not sought to
create a new class of violations committed during internal armed conflicts.
Rather, they have strived to promote the fundamental objectives of
humanitarian law, not only through the enforcement of IHL, but by ensuring
that all acts which have qualified as grave breaches of the conventions, would
be equally punishable when committed during an internal armed conflict. The
language of common article 3 and additional protocol II clearly addresses and
13
The Prosecutor v. Dusko Tadic aka. ‘Dule’, ICTY, Case No. IT-94-1-A, Decision on the
Defense Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995;
128
14
Tadic, Opinion and Judgment (IT-95-1), Trial Chamber, 7 May 1997, 612
15
Tadic, supra note 13; 10 august 1995, 52
16
Ibid, 80

52
prohibits violations like torture and murder; both fundamental crimes in all
states.17
By the advent of the ICC in 1998, it had become untenable to argue that
perpetrators of violations punishable under international law in international
armed conflicts could not be punished for carrying out the same offences in an
internal armed conflict. The court criminalized war crime offences committed in
both types of armed conflicts, albeit even whilst maintaining a strict separation
between the rules obtainable in both regimes of penal repression.18
The ICTY’s pronouncements on the issue of the applicability of the
grave breaches regime in internal armed conflicts are very important because of
their contribution to domestic criminal jurisprudence and case law,19
in
addition, its enabling statute accordingly asserted the Tribunal’s jurisdiction
over grave breaches in Article 2, and over other violations of the laws or
customs of war in Article 3. Article 2 of the Statute is crucial to this chapter and
is reproduced in Chapter II, on pages 15-16.
The Locus Classicus that tested the jurisdictional framework of the ICTY
was Prosecutor v Dusko Tadic.20
Dusko Tadic had been accused of numerous
17
Theodore Meron. The Humanization of International Law. 2006, Martinus Nijhoff, Leiden, 102
in Moir, supra note 4; 767
18
Art. 8(2)(a) of the Statute, Grave breaches; Art. 8(2)(b), other serious violations of the laws and
customs of war; Art. 8(2)(c), violations of common Article 3; Art. 8(2)(e), contains an
extensive list of other serious violations of the laws and customs of internal armed conflict.
19
Robert Cryer. et al., An Introduction to International Criminal Law and Procedure 288 (2nd
ed.
2010) in Moir, supra note 4, 768; Most national courts be required to interpret relevant
provisions of municipal penal legislations in accordance with the interpretation of equivalent
international provisions, including those made by international criminal tribunals. Eg. Domestic
legislation in the UK, for example, requires national courts to ‘take into account decisions and
judgments of the ICC and any other relevant international jurisprudence’.
20
Tadic, Initial Indictment, IT-95-1, 13 February 1995

53
crimes by the Prosecutors under the ICTY Statute including grave breaches
violations under Article 2. On 23 June 1995, his Defence filed a preliminary
motion seeking for the dismissal of the charges against him, based in part on the
grounds that the Tribunal lacked subject matter jurisdiction to try him under
Article 2 of the statute. In particular, they claimed that the application of Article
2 of the Statute was contingent upon the existence ‘and proof’ of an
international armed conflict, as they contended that none had existed at the
relevant time or place.21
The Trial Chamber held, to the contrary, that,
‘‘internationality forms no jurisdictional criterion of the offences created by
Article 2 of the Statute.’’22
Finding further, the court held that:
…… nothing in the words of the Article expressly require its
existence; once one of the specified acts is allegedly committed
upon a protected person the power of the ... Tribunal to prosecute
arises if the spatial and temporal requirements of Article 1 are met.
…… there is no ground for treating Article 2 as in effect importing
into the Statute the whole of the terms of the Conventions,
including the reference in common Article 2 …. to international
conflicts. … Article 2 of the Statute is on its face, self-contained,
save in relation to the definition of protected persons and things. It
simply confers subject matter jurisdiction to prosecute what, if one
were concerned with the Conventions, would indeed be grave
breaches of those Conventions, but which are, in the present
context, simple enactments of the Statute.23
On Appeal, the Appeals Chamber disagreed,24
on the grounds that the
trial chamber’s reasoning was ‘based on a misconception of the grave breaches
provisions and the extent of their incorporation’ into the ICTY Statute.”25
It
21
Tadic, supra note 14, 50
22
Ibid, 53
23
Ibid, 50-51
24
Tadic, supra note 13, (IT-95-1), Appeals Chamber, 2 October 1995, 128.
25
Ibid, 80

54
further held that grave breaches of the Geneva Conventions could only be
committed in the context of international armed conflicts. The Appeal Chamber
also dismissed the Trial Chamber’s suggestion that it was not applying the
Geneva Conventions per se, but rather customary international law. More
importantly, the Appeals Chamber agreed with the Trial Chamber’s finding
that, ‘‘the international armed conflict element generally attributed to the grave
breaches provisions of the Geneva Conventions is merely a function of the
system of universal mandatory jurisdiction that those provisions create’’26
The Appeals Chamber explained that the Trial Chamber had
misinterpreted the reference to the Geneva Conventions in Article 2 of the
ICTY Statute. This reference was ‘clearly intended to indicate that the offences
listed under Article 2 can only be prosecuted when perpetrated against persons
or property regarded as ‘‘protected’’ by the Geneva Conventions under the strict
conditions set out by the Conventions themselves.’27
In their opinion, common
article 2 clearly states that the Conventions (apart from common Article 3)
apply only to conflicts between High Contracting Parties.
Ironically, the Appeals Chamber accepted that its decision ‘may appear
not to be consonant with recent trends of both State practice and the whole
doctrine of human rights’28
which is generally geared towards an erasure of the
traditional dichotomy between international and internal armed conflict.
Particularly, it noted ‘with satisfaction’ the amicus curiae brief submitted by the
United States, which had claimed that, “the ‘grave breaches’ provisions of
26
Ibid
27
Ibid, 81
28
Ibid, 83

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