Grave Breaches and Internal Armed Conflicts

Grave Breaches and Internal Armed Conflicts Lindsay Moir*

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

1. Introduction Historically, the regulation of armed conflict by international law tended to focus on those conflicts that were international in character. Prior to the adoption in 1949 of the Geneva Conventions, no conventional regulation of internal armed conflict existed; and even the Geneva Conventions themselves contain only one article ç common Article 3 ç that is concerned with internal armed conflicts.1 In the absence of any more detailed regulation, common Article 3 imposed an obligation on all parties to internal armed conflict to respect at least the most fundamental humanitarian principles of the *

Professor of International Law, Deputy Director of the McCoubrey Centre for International Law, The University of Hull. Thanks are due to the editors and reviewers for their insightful comments on an earlier draft. The usual disclaimer, of course, applies. [[email protected]] 1 For discussion of the background, drafting history and content of common Art. 3, see L. Moir, The Law of Internal Armed Conflict (Cambridge: Cambridge University Press, 2002), at 22^29, and at 58^67.

............................................................................ Journal of International Criminal Justice 7 (2009), 763^787 doi:10.1093/jicj/mqp050 ß Oxford University Press, 2009, All rights reserved. For permissions, please email: [email protected]

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Conventions. Thus, it has been referred to as constituting a ‘Convention in miniature’.2 Beyond its minimal provisions, however, the Conventions had been designed and adopted with the specific aim of regulating international armed conflicts. In light of this, and given that the grave breaches regime of the Geneva Conventions attaches only to certain violations (as outlined elsewhere in this volume, and not including common Article 3), it would seem prima facie that grave breaches had no relevance in the context of internal armed conflict. Even when the Conventions’ protection was expanded by the adoption of two Additional Protocols in 1977, the situation relating to internal armed conflicts altered only slightly. Granted, the inclusion of Article 1(4) in Additional Protocol I rendered what had previously been accepted as a category of internal armed conflict subject to the rules of international humanitarian law in their entirety.3 The result, however, was that interest in the adoption of a second protocol, concerned with the regulation of internal armed conflict more generally, dissipated. Only the intervention of Pakistan facilitated the adoption of a watered-down Additional Protocol II which, whilst serving to develop and supplement the provisions of common Article 3, applies only at a significantly higher threshold.4 And while Additional Protocol I had, in Articles 11 and 85, listed a number of further grave breaches applicable during international armed conflict, Additional Protocol II contained no similar enforcement provision. The situation therefore persisted whereby it was difficult to comprehend that the concept of grave breaches could have any role to play other than during international hostilities. That is not to say, however, that the concept of grave breaches has had no impact upon the rules regulating internal armed conflict. Indeed, it will be argued in the course of this article that the grave breaches regime of the Geneva Conventions, aimed at the effective enforcement of 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. Going beyond this position, it has also been argued with increasing frequency that the commission of grave breaches can ç or, at least, should ç now be accepted as equally possible during armed conflicts that are not international in character. This would have a significant impact upon the enforcement of the relevant rules against individual offenders at the domestic level. Despite a number of recent 2 J.S. Pictet, Commentary on the Geneva Conventions of 12 August 1949, Volume I (Geneva: International Committee of the Red Cross (ICRC), 1952), at 48. Indeed, by 1986 the International Court of Justice (ICJ) had further described the content of common Art. 3 as ‘rules which, in the Court’s opinion, reflect what the Court in 1949 called ‘‘elementary considerations of humanity’’’. See Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports (1986) 14, x218. 3 Namely, those 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’. 4 See discussion in Moir, supra note 1, at 89^96, and at 99^119.

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legal developments which may appear to support such a change in direction, however, the argument remains much more difficult to sustain.

2. Criminality of Violations of the Law of Internal Armed Conflict Inspired by the experiences of World War II, the grave breaches provisions of the Geneva Conventions were included partly to identify a number of specific acts or omissions as particularly serious violations of the laws of war, and partly to create concrete procedural obligations upon states in relation to the prosecution of those crimes; in particular, through the adoption of national legislation and the application of the aut dedere aut judicare principle as a means of providing states with universal jurisdiction over the most serious war crimes committed during international armed conflict. The main distinction between those violations characterized as grave breaches and other violations of the laws of war was, accordingly, to be seen in terms of their national enforcement. No similar obligation exists in relation to serious violations of common Article 3, or of Additional Protocol II. Indeed, neither makes any mention whatsoever of enforcement measures, of criminal responsibility, or of the imposition of penalties. Of course, it could be countered that the grave breaches provisions similarly fail to mention penalties for their breach (such as minimum custodial sentences), and yet the provisions ‘incontestibly establish a basis for the perpetrators’ individual criminal responsibility’.5 Nonetheless, as recently as 1990, commentators had still contended that the ‘international humanitarian law applicable to non-international armed conflict does not provide for individual penal responsibility’.6 During the course of establishing the ad hoc Criminal Tribunal for the former Yugoslavia (ICTY), the International Committee of the Red Cross (ICRC) and the United Nations Commission of Experts similarly asserted that war crimes were limited to international armed conflicts,7 whilst Article 4 of the International Criminal Tribunal for Rwanda (ICTR)’s 1994 Statute was said by the UN Secretary-General to constitute a provision which, ‘for the first time criminalises [violations of] common Article 3’.8 It was perhaps only to be expected, then, that in the first case to be heard by the ICTY it was submitted by the defence that international law did not provide for individual criminal responsibility for violations of the laws of internal 5 T. Meron, The Humanization of International Law (Leiden: Martinus Nijhoff, 2006), 102. 6 D. Plattner, ‘The Penal Repression of Violations of International Humanitarian Law Applicable in Non-international Armed Conflicts’, 278 International Review of the Red Cross (IRRC) (1990) 409^420, at 414. 7 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 May 1992, x52. 8 See Report of the Secretary-General Pursuant to Paragraph 5 of Security Council 955, UN Doc. S/1995/134, 13 February 1995, x12.

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armed conflict.9 To its credit, the Tribunal did not accept such a position, holding instead 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.10

As was subsequently confirmed by the ICTY in the C› elebic¤ i Case,‘[t]he fact that the Geneva Conventions themselves do not expressly mention that there shall be criminal liability for violations of common Article 3 clearly does not in itself, preclude such liability’.11 That such offences were not defined as grave breaches was not considered relevant by the ICTY, and yet it can undoubtedly be argued that the grave breaches regime played an influential role in the extension of individual criminal liability to internal armed conflict in two respects: first, in terms of the development of a body of customary rules applicable to internal armed conflict; and second, in terms of accepting that criminal responsibility should exist for the violation of those rules. Indeed, in arriving at its conclusion, the Tribunal drew special attention to the practice of Germany and Belgium, both of which (whether accurately or not) apparently characterized violations of common Article 3 as ‘grave breaches’ of international humanitarian law.12 A certain similarity in substantive content between the grave breaches regime and common Article 3 was evident. Indeed, an assessment of the specifically prohibited acts demonstrates congruence in significant areas, such as the prohibition of wilful killing and murder, of torture and inhuman treatment, the taking of hostages, and the protection of the rights to a fair trial and due process. Given that these activities were all punishable as grave breaches in the context of international armed conflict, it made little sense not also to render such acts criminal, and legally enforceable against individuals, in the context of internal armed conflict. As the ICTY Trial Chamber in Tadic¤ subsequently explained: ::: 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 9 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,Tadic¤ (IT-95-1), Appeals Chamber, 2 October 1995, x 128. 10 Ibid., at x134. Clearly, criminal responsibility was seen as attaching to a set of rules that were more extensive than those contained in common Art. 3 alone. 11 Judgment, Delalic¤ (IT-96-21), Trial Chamber, 16 November 1998, x 308. 12 Tadic¤ , supra note 9, at x131 (referring to the German Military Manual,‘which includes among the ‘‘grave breaches of international humanitarian law’’, ‘‘criminal offences’’ against persons protected by common Article 3’), and at x 132 (referring to Belgian Loi du 16 juin 1993 relative a' la repression des infractions graves aux Conventions internationales de Gene' ve du 12 aou“t 1949 et aux Protocoles I et II du 8 juin 1977, additionnels a' ces Conventions, providing that ‘Belgian courts have jurisdiction to adjudicate breaches of Additional Protocol II’ and that ‘A rticle 1 of this law provides that a series of ‘‘grave breaches’’ of the four Geneva Conventions and the two Additional Protocols ::: ‘‘constitute international law crimes’’ within the jurisdiction of Belgian criminal courts’).

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rule protecting important values’’ and which ‘‘must involve grave consequences for the victim’’.13

That is not to say that a complete identity exists between the two regimes. Some grave breaches find no place in the provisions of either common Article 3, or of Additional Protocol II (such as those offences relating to prisoners of war, a concept that was agreed to be inapplicable to internal armed conflicts).14 This is entirely understandable in light of the context in which the Geneva Conventions were adopted, and in which the notion of state sovereignty prevented the possibility of international action in situations deemed to be of domestic concern. As the ICTY outlined: States parties to the 1949 Geneva Conventions did not want to give other States jurisdiction over serious violations of international humanitarian law committed in their internal armed conflicts ç at least not the mandatory universal jurisdiction involved in the grave breaches system.15

The ICTY had previously accepted that such fears were, perhaps, understandable in the context of national enforcement, where ‘the action of a foreign court in trying an accused for grave breaches committed in a conflict internal to that nation’ might be viewed as an ‘unacceptable infringement of sovereignty’.16 It strongly denied, however, that such considerations applied to the activities of an international tribunal. In any case, neither the ICTY nor the ICTR sought to create a new category of grave breaches, capable of commission during internal armed conflict. Instead, they sought to recognize the fundamental objective of humanitarian protection through the successful enforcement of the Geneva Conventions in all possible circumstances, and to ensure that those acts which would have qualified as grave breaches if committed during international armed conflict were equally punishable when committed during an internal armed conflict. After all, ‘[t]he language of common Article 3 and the relevant provisions of Protocol II is clearly prohibitory; it addresses fundamental offenses such as murder and torture, which are prohibited in all States’.17 As such, their prima facie criminality could not seriously be questioned. This approach not only led to the conclusion that violations of common Article 3 and Additional Protocol II could represent war crimes, but also resulted in an acceptance that many of the other rules of international armed conflict must also be equally applicable to internal armed conflict ç and that

13 Opinion and Judgment, Tadic¤ (IT-95-1), Trial Chamber, 7 May 1997, x612. 14 One example would be compelling a prisoner of war to serve in the forces of the hostile power, as per GC III, Art. 130. 15 Tadic¤ , supra note 9, at x 80. 16 Decision on the Defence Motion on Jurisdiction, Tadic¤ (IT-95-1), Trial Chamber, 10 August 1995, x 52. 17 Meron, supra note 5, at 104.

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criminal responsibility could attach to their violation as well. As the Tribunal asked: Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted ‘only’ within the territory of a sovereign State? If international law, whilst of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight.18

Thus, from the inception of a system of grave breaches that was designed to secure effective enforcement of the most serious violations of the Geneva Conventions in the context of international hostilities, the realization had developed that equally serious violations could be committed in the course of internal armed conflict and, indeed, that there was no reason to limit the applicability of the rules of international armed conflict where they were equally relevant to internal conflicts. It had finally become ‘untenable to argue that the perpetrators of atrocities committed in non-international armed conflict should be shielded from international justice’;19 a view confirmed in 1998 by the Rome Statute of the International Criminal Court (ICC), which asserted the Court’s jurisdiction over war crimes committed in both types of armed conflict. The Rome Statute nonetheless maintains a strict separation between those rules that are applicable during international armed conflict, and those that are, in contrast, relevant to internal armed conflict. Thus, grave breaches are dealt with by Article 8(2)(a) of the Statute, and other serious violations of the laws and customs of war by Article 8(2)(b), whereas violations of common Article 3 are covered by Article 8(2)(c), and an extensive list of other serious violations of the laws and customs of internal armed conflict by Article 8(2)(e).20 This continuing distinction between international and internal armed conflict can perhaps most often be seen as a mere technicality without practical consequence. There is, after all, a significant degree of overlap in terms of the substantive legal rules applicable. Nonetheless, the continued imposition of such a ‘bifurcated structure’ is important, and may well lead to future complications for the Court. In short, as has been the case for the ICTY, the ICC is likely to have to make an initial determination as to the international or 18 Tadic¤ , supra note 9, at x 97. See also the discussion in L. Moir, ‘Towards the Unification of International Humanitarian Law?’, in R. Burchill, N.D. White and J. Morris (eds), International Conflict and Security Law: Essays in Memory of Hilaire McCoubrey (Cambridge: Cambridge University Press, 2005) 108^128. 19 Lawyers Committee for Human Rights, Establishing an International Criminal Court: Major Unresolved Issues in the Draft Statute (1998), available at http://www.iccnow.org/documents/ LCHRUnresolvedIssues.pdf (visited 14 July 2009), section 4. 20 Although there is not a complete identity between the provisions of Arts 8(2)(b) and (e), their relationship is certainly representative of, and consistent with, the erosion of a distinction between the regulation of international and internal armed conflict. See Moir, supra note 18.

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internal character of the particular armed conflict in question before any decision can then be made as to which Article(s) of the Statute are relevant for a prosecution ç even where the substance of the rules may be identical. As a result, ‘[i]t may be necessary to collect evidence and litigate on complex issues, such as the role of third States, when ultimately this has no bearing on the role and liability of the perpetrator’.21 This has certainly posed a number of difficulties for the ICTY. Thus, Aldrich contended in 1996 that the Tribunal’s refusal to characterize the situation in the former Yugoslavia as a single, international armed conflict: ::: complicates unnecessarily the further work of the Tribunal by suggesting that each prosecution will have to involve arguments and decisions as to the characterization of the armed conflict in which the alleged offences occurred and, if the finding is that the conflict is internal, then further arguments and decisions as to the consequences.22

It is to the difficulties involved in determining the nature of an armed conflict and proving the commission of grave breaches that we now turn.

3. Applicability of the Grave Breaches Regime to Internal Armed Conflict A. Through a Teleological Approach to the Geneva Conventions It will be recalled that the main distinction between grave breaches and other violations of humanitarian law lies in their domestic enforcement. Specific procedural obligations exist at the national level in relation to the investigation and prosecution of grave breaches of the Geneva Conventions, whilst no similar obligations attach to violations of common Article 3 or Additional Protocol II. Whether grave breaches can be committed in the context of an internal armed conflict, or whether violations of common Article 3 and Additional 21 R. Cryer, H. Friman, D. Robinson, E. Wilmshurst, An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2007), at 232. Cryer et al. go on to suggest that any future catalogue of war crimes should, instead, consolidate those provisions common to international and internal armed conflict, before providing a further (short) list of those crimes capable of commission only in international conflict. This would have no impact on the customary rules themselves, resulting only in ‘a clearer presentation of the existing legal situation’. To be fair, it must be remembered that the adoption of the ICC Statute was ‘an exercise in political feasibility, not progressive codification’. See M.C. Bassiouni, ‘The Normative Framework of International Humanitarian Law: Overlaps, Gaps, and Ambiguities’, in M.C. Bassiouni (ed.), International Criminal Law, Vol. I (3rd edn., Leiden: Martinus Nijhoff, 2008) 493^531, at 515. 22 See G.H. Aldrich,‘Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia’, 90 American Journal of International Law (AJIL) (1996) 64^69, at 68^69. As will be seen below, the ICTY largely sidestepped such difficulties by relying heavily on prosecutions under Art. 3 of its Statute, and involving violations of common Art. 3; an approach that ‘avoided the worst possible consequences’. See T. Meron, ‘Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout’, 92 AJIL (1998) 236^242, at 238.

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Protocol II can constitute grave breaches, is therefore an important question, with significant ramifications at the national level. The issue has been discussed in some detail by the ICTY which, as an international court, could perhaps be seen as effectively interpreting international humanitarian law in terms that are relevant for a wide variety of other conflicts, and not only for its own particular purposes. In light of this, the ICTY’s pronouncements as to the scope and content of the law are vitally important. They are certainly likely to carry substantial weight in domestic criminal proceedings, where national courts may well be required to interpret relevant national provisions ‘in accordance with the interpretation of equivalent international provisions, including that made by international criminal tribunals’.23 Unlike the ICTR, which was aimed specifically at internal armed conflict, and which (in the context of the laws of war) was granted jurisdiction only over violations of common Article 3 and Additional Protocol II,24 there was an apparent acceptance on the part of the Security Council that the situation in the former Yugoslavia involved both international and internal elements. At the very least, the Security Council seemed unwilling to classify the situation definitively as one thing or the other.25 The ICTY 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 the present debate, and provides: Article 2 ç Grave breaches of the Geneva Conventions of 1949 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 Convention: (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; 23 Cryer et al., supra note 21, at 64. 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’. 24 Art. 4 ICTRSt.; L.C. Green, The Contemporary Law of Armed Conflict (3rd edn., Manchester: Manchester University Press, 2008), at 361. The same applies to the Special Court for Sierra Leone, which is granted jurisdiction over violations of common Art. 3 and AP II by Art. 3 SCSLSt. ç although Art. 4 does also grant it jurisdiction over certain other serious violations of international humanitarian law (presumably held to be applicable to internal armed conflict as a matter of customary international law); namely, intentional attacks upon civilians, intentional attacks on humanitarian assistance or peacekeeping missions, and the conscription or use in hostilities of children under the age of 15. See SCSLSt. 25 See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, 3 May 1993, outlining at x 62 that, in adopting the ICTYSt. the Security Council had been exercising ‘no judgment as to the international or internal character of the conflict’.

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(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.

In addition to assessing the pivotal question of criminal responsibility for offences committed during internal armed conflict, the first case to be heard by the Tribunal also presented an opportunity to examine its jurisdictional framework. Dusko Tadic¤ had been accused of numerous crimes under the ICTY Statute, including grave breaches under Article 2.26 On 23 June 1995, the Defence filed a preliminary motion seeking the dismissal of all charges against him, based in part on the assertion that the Tribunal lacked subjectmatter jurisdiction. In particular, it was claimed that the application of Article 2 of the Statute was contingent upon the existence of an international armed conflict, and that none had existed at the relevant time or place.27 The Trial Chamber held, to the contrary, that, ‘internationality forms no jurisdictional criterion of the offences created by Article 2 of the Statute’:28 ::: 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.29

The Appeals Chamber disagreed.30 Finding 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,31 it instead held that grave breaches of the Geneva Conventions can only be committed in the context of international armed conflicts. The Trial Chamber’s suggestion that it was not applying the Geneva Conventions per se, but rather customary international law ç including those offences characterized as grave breaches, but unencumbered by the strict requirements of the Geneva Conventions, and thus applicable to internal armed conflict ç was dismissed.32 Although it agreed with the Trial Chamber’s finding that, ‘[t]he international armed conflict element generally attributed to the grave breaches provisions of the Geneva 26 27 28 29 30 31 32

See Initial Indictment, Tadic¤ (IT-95-1), 13 February 1995. Tadic¤ , supra note 16, at x 50. Ibid., at x 53. Ibid., at xx 50^51. See Tadic¤ , supra note 9. Ibid., at x 80. For a discussion of the parallel existence of treaty and customary international legal rules, see, e.g. Military and Paramilitary Activities in and Against Nicaragua, Jurisdiction and Admissibility, ICJ Reports (1984) 392, x73.

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Conventions is merely a function of the system of universal mandatory jurisdiction that those provisions create’,33 the Appeals Chamber determined that the Trial Chamber had misinterpreted the reference to the Geneva Conventions in Article 2 of the ICTY Statute, which 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’.34 Common Article 2 clearly articulates that the Conventions (apart from common Article 3) apply only to conflicts between High Contracting Parties.35 As already indicated, then, the relevant provisions of the Conventions only apply to persons or objects protected in the context of international armed conflict.36 Having stated the legal position, the Appeals Chamber nonetheless accepted that its decision ‘may appear not to be consonant with recent trends of both State practice and the whole doctrine of human rights’,37 i.e. towards an erosion of the traditional dichotomy between international and internal armed conflict. In particular, it noted ‘with satisfaction’ the amicus curiae brief submitted by the United States, which had claimed that,‘the ‘‘grave breaches’’ provisions of Article 2 of the International Tribunal Statute apply to conflicts of a non-international character as well as those of an international character’.38 Despite this ‘first indication of a possible change in opinio juris of States’,39 and a number of other developments ‘pointing in the same direction’,40 the Tribunal asserted that any change in the customary rules relating to the scope of grave breaches was yet to materialize. One particular member of the Appeals Chamber expressed a significant measure of dissatisfaction with the approach taken. To be sure, Judge Abi-Saab accepted in his Separate Opinion that, by finding grave breaches to be subsumed within ‘serious violations of the laws or customs of war’ (i.e. Article 3 of the Statute) where these were committed in the context of internal, rather 33 Tadic¤ , supra note 9, at x 80. 34 Ibid., at x 81. 35 Given virtually uniform acceptance of the Conventions, the requirement that the states involved in a conflict be High Contracting Parties is probably less important today, and the grave breaches provisions, in the same way as the Conventions as a whole, can probably be considered to represent customary rules. Nonetheless, common Art. 3 does indicate that the grave breaches regime was not initially aimed at non-parties and that, in order for a grave breach to be committed, the conflict must be between states; i.e. international in character. See R. Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge: Cambridge University Press, 2005), at 83. 36 See Introduction above. As the Appeals Chamber continued, supra note 9, at x 81, ‘By contrast, those provisions do not include persons or property coming within the purview of common Article 3’. 37 Tadic¤ , supra note 9, at x 83. 38 Ibid., discussing US Amicus Curiae Brief, at 35. 39 Ibid. 40 Ibid. The Chamber referred to similar provisions in the German Military Manual, the 1 October 1992 agreement between the parties to the conflict in Bosnia, and the judgment of the Danish High Court in Saric, discussed below.

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than international armed conflict, the Decision had served to underline the ‘modern trend recognizing the essential identity of the legal regime of violations of the two strands of the jus in bello’.41 Nonetheless, he found the Decision’s ‘‘‘division of labour’’ between the two Articles of the Statute ::: rather artificial’: Instead of reaching, as the Decision does, for the acts expressly mentioned in Article 2 via Article 3 when they are committed in the course of an internal armed conflict, I consider, on the basis of the material presented in the Decision itself, that a strong case can be made for the application of Article 2, even when the incriminated act takes place in an internal conflict.42

Drawing upon the undeniable growth in both state practice and opinio juris supporting the criminalization of offences contained within the grave breaches provisions (and indeed other serious violations of the laws of war), even when committed during internal armed conflict, he suggested that much of this practice and opinio juris expressly characterized such offences as grave breaches, and that this should not be seen as ‘a mere question of semantics, but of proper legal classification of this accumulated normative substance’.43 Accordingly: As a matter of treaty interpretation ç and assuming that the traditional reading of ‘grave breaches’ has been correct ç it can be said that this new normative substance has led to a new interpretation of the Conventions as a result of the ‘subsequent practice’ and opinio juris of the States parties: a teleological interpretation of the Conventions in the light of their object and purpose to the effect of including internal conflicts within the regime of ‘grave breaches’. The other possible rendering of the significance of the new normative substance is to consider it as establishing a new customary rule ancillary to the Conventions, whereby the regime of ‘grave breaches’ is extended to internal conflicts. But the first seems to me as the better approach. And under either, Article 2 of the Statute applies ç the same as Articles 3, 4 and 5 ç in both international and internal conflicts.44

Judge Abi-Saab’s arguments evidently failed to persuade the rest of the Chamber, and the ICTY has steadfastly maintained the position that Article 2 of its Statute, and hence the prosecution of grave breaches, require the existence of an international armed conflict ever since.45 As demonstrated below,46 this seems to be the safer approach. Clear state practice and opinio juris in support of the applicability of grave breaches to internal armed conflict remains 41 Separate Opinion of Judge Abi-Saab on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadic¤ (IT-95-1), Appeals Chamber, 2 October 1995, Section IV. 42 Ibid. 43 Ibid. 44 Ibid. 45 See, e.g. Judgment, Tadic¤ (IT-95-1), Appeals Chamber, 15 July 1999, x83; Judgment, Aleksovski (IT-95-14/1), Appeals Chamber, 24 March 2000, where the requirement that the conflict be international in character is implicit throughout the discussion at xx116^152; similarly, in Judgment, Delalic¤ (IT-96-21), Appeals Chamber, 20 February 2001, xx5^106; Judgment, Blas› kic¤ (IT-95-14), Appeals Chamber, 29 July 2004, xx167^182. 46 See Section 3B.

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relatively limited. Given that even less existed in 1995, Abi-Saab was probably guilty of overstating his case somewhat. Having said that, periodic statements in support of his position can be found both in the Tribunal’s subsequent jurisprudence, and in the relevant academic literature. Writing shortly after the Tadic¤ Appeal on Jurisdiction, for example, Meron argued that the ICTY’s approach could only be correct if, and/or to the extent that, the customary law content of grave breaches corresponds exactly to their conventional content, and that: While the conventional provisions on grave breaches involve the technical definition of protected persons and protected property, and the procedural obligations of prosecution or extradition, the appeals chamber should have devoted more attention to discussing the possibility that, divorced from some of their conventional and formal aspects, the core offenses listed in the grave breaches provisions may have an independent existence as a customary norm applicable also to violations of at least common Article 3.47

In 1998, the ICTY Trial Chamber in the C› elebic¤ i Case, taking due notice of the Tadic¤ Appeals Chamber’s recognition that a change in the customary scope of grave breaches may well be occurring, stated its view that, ‘the possibility that customary law has developed the provisions of the Geneva Conventions since 1949 to constitute an extension of the system of ‘‘grave breaches’’ to internal armed conflicts should be recognised’.48 Be that as it may, the statement certainly cannot be seen as amounting to an unequivocal acceptance of Judge Abi-Saab’s position and, significantly, the Chamber stopped short of putting such a view into practice. Whilst accepting that,‘in line with a more teleological interpretation ::: violations of common Article 3 ::: may fall more logically within Article 2 of the Statute’, it nonetheless decided to take a ‘more cautious approach’.49 Of course, having determined that the armed conflict in Bosnia and Herzegovina at the relevant time was international in character, a finding as to whether grave breaches could be committed during internal armed conflict was unnecessary.50 Similarly, in June of 1999, and following the Trial Chamber’s inability to agree on the applicability of Article 2 of the ICTY Statute to the Aleksovski Case,51 Judge Rodrigues issued a robust Dissenting Opinion, largely echoing the initial findings of the Tribunal in the Tadic¤ Decision on Jurisdiction.52 He insisted that it had already been established that an international armed conflict existed at all relevant times and places,53 but that Article 2 of the Statute did not require 47 T. Meron, ‘The Continuing Role of Custom in the Formation of International Humanitarian Law’, 90 AJIL (1996) 238^249, at 243. See also Aldrich, supra note 22, at 68. 48 Delalic¤ , supra note 11, at x 202. 49 Ibid., at x 317. 50 Ibid., at xx 234^235. 51 Judgment, Aleksovski (IT-95-14/1), Trial Chamber, 25 June 1999, x46. The majority believed that Art. 2 ICTYSt. was inapplicable on the basis that the Bosnian Muslims being held at Kaonik prison at the relevant time were not ‘protected persons’ within the meaning of Art. 4 of GC IV. 52 See supra notes 28 and 29, and accompanying text. 53 Dissenting Opinion of Judge Rodrigues, Presiding Judge of the Trial Chamber, Aleksovski, supra note 51, at x 27. Indeed, criticism of the Appeals Chamber’s approach in Tadic¤ centred as much

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the armed conflict in question to be international in any case. Rather, he argued that the Security Council had included Article 2 in the Statute without making any determination as to the character of the conflict. Accordingly, Article 2 must be considered to be ‘autonomous in relation to the Geneva Conventions from which it is inspired and, a fortiori, from the conditions required for them to apply’.54 Realistically, it must be accepted that neither the C› elebic¤ i Trial Chamber’s rather ambiguous acceptance of the ‘possibility’ that grave breaches can be committed during internal armed conflict, nor the single Dissenting Opinion of Judge Rodrigues, provide overwhelming support for the merits of Judge AbiSaab’s argument in Tadic¤ . Indeed, the attempts aimed at extending grave breaches to internal armed conflict are probably better seen as a judicial reaction to (or an attempt to avoid) the required characterization of the victims of grave breaches as ‘protected persons’ within the strict parameters of the Geneva Conventions ç a category that has been the subject of significant development through the jurisprudence of the ICTY.55 Thus, the position as stated in 1995 by the Tadic¤ Appeals Chamber, whilst it has attracted a level of criticism, could equally be seen as an accurate reflection of the requirements of the Geneva Conventions. ‘Protected persons’ under the 1949 Conventions, around whom the grave breaches regime is based, are defined as those in the hands of a party to the conflict of which they are not a national.56 Given the nature of internal armed conflicts, any similar notion is absent from the framework of common Article 3, which talks instead of persons ‘taking no active part in the hostilities’. In light of this, and whilst it may well be ‘difficult to justify, on grounds of logic, a different regime of criminal responsibility’ for any given act depending solely on the character of the conflict that it was committed during, ‘that is what States did in setting the threshold in common Article 2 of the Geneva Conventions as an [international] armed conflict’.57 It was accordingly held in

54 55 56

57

on its characterization of the conflict as it did on its application of the rules relating to grave breaches and protected status. See also, e.g. Aldrich, supra note 22, and Meron, supra note 22. Ibid., at x 32. See the more detailed discussion by K. Roberts, ‘The Contribution of the ICTY to the Grave Breaches Regime’, in this issue. See, e.g. Art. 4 GC IV: ‘Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals’. C. Warbrick and P. Rowe, ‘The International Criminal Tribunal for Yugoslavia: The Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the Tadic¤ Case’, 45 International and Comparative Law Quarterly (1996) 691^701, at 698. See also Public Prosecutor v. Oie Hee Koi [1968] 2 WLR 715 (PC), at 727^728, where it was stated by Lord Hodson that, ‘Convention [III] does not extend the protection given to prisoners of war to nationals of the detaining power ::: [nor to] persons who, though not nationals of, owe a duty of allegiance to the detaining power’. C. Greenwood, ‘International Humanitarian Law and the Tadic¤ Case’, 7 European Journal of International Law (EJIL) (1996) 265^283, at 276, agreed that, in light of the Tadic¤ Appeal on Jurisdiction, ‘It is difficult to escape the conclusion that, at least for the present, the concept of grave breaches ::: is confined to international armed conflicts’.

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the Tadic¤ Judgment of May 1997 that the accused could not be convicted of grave breaches under Article 2 of the ICTY Statute, since it was applicable only to acts committed against ‘protected persons’ in the context of the Geneva Conventions, and none of the victims, ‘all of whom were civilians, were at any relevant time in the hands of a party to the conflict of which they were not nationals’.58 In 1999, the Tadic¤ Appeal Judgment overturned the decision that grave breaches under Article 2 of the Statute were inapplicable to the proceedings, although this did not entail a finding that grave breaches could be committed during internal armed conflict.59 Rather, it was accomplished, at least partly, through the Tribunal’s determination that the conflict in question was actually international in character.60 Even then, however, the issue of whether the victims were ‘protected persons’ under the Geneva Conventions had to be addressed. The Appeals Chamber admitted that this depended prima facie on the question of nationality and that, in this case, the accused ‘arguably had the same nationality as the victims, that is, they were [all] nationals of Bosnia and Herzegovina’;61 hence the finding of the Trial Chamber. It was also noted, however, that even when the Geneva Conventions were being adopted in 1949, ‘the legal bond of nationality was not regarded as crucial’ for the determination of protected status, and that ‘allowance was made for special cases’.62 In the view of the Appeals Chamber: This legal approach, hinging on substantial relations more than on formal bonds, becomes all the more important in present-day international armed conflicts. While previously wars were primarily between well-established States, in modern inter-ethnic armed conflicts, ::: ethnicity rather than nationality may become the grounds for allegiance. Or, put another way, ethnicity may become determinative of national allegiance. Under these conditions, the requirement of nationality is even less adequate to define protected persons. In such conflicts, not only the text and the drafting history of the Convention, but also, and more importantly, the Convention’s object and purpose suggest that allegiance to a Party to the conflict and, correspondingly, control by this Party over persons in a given territory, may be regarded as the crucial test.63

58 59 60 61 62

Tadic¤ , supra note 13, at x 608. Tadic¤ , supra note 45. Ibid., at x162. Ibid., at x167. Such as those civilians in occupied territory who, ‘while having the nationality of the Party to the conflict in whose hands they find themselves, are refugees and thus no longer owe allegiance to this Party and no longer enjoy its diplomatic protection’. 63 Tadic¤ , supra note 45, at xx166 and 168. The same approach has been taken in subsequent cases. See also, e.g. Judgment, Blas› kic¤ (IT-95-14), Trial Chamber, 3 March 2000, xx124^133; Aleksovski, supra note 45, at xx147^152; Delalic¤ , supra note 45, at xx 52^106; Blas› kic¤ , supra note 45, at xx167^182. Indeed, in the Delalic¤ Judgment, it was asserted at x 53 that, ‘it is now settled ::: that in an international armed conflict victims may be considered as not being nationals of the party in whose hands they find themselves, even if, as a matter of national law, they were nationals of the same State as the persons by whom they are detained’. See also K. Kittichaisaree, International Criminal Law (Oxford: Oxford University Press, 2001), at 141.

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This approach was wholly consistent with that taken in November 1998 by the C› elebic¤ i Trial Chamber where, in assessing the status of the victims for the purposes of Geneva Convention IV, it was held that they were, indeed, ‘protected persons’ on the basis that they had been arrested and detained primarily due to their Bosnian Serb identity, and were regarded by the Bosnian authorities as ‘belonging to the opposing party in an armed conflict and as posing a threat to the Bosnian State’.64 The Tribunal continued: It would be incongruous with the whole concept of human rights, which protect individuals from the excesses of their own governments, to rigidly apply the nationality requirement of Article 4, that was apparently inserted to prevent interference in a State’s relations with its own nationals. Furthermore, the nature of the international armed conflict in Bosnia and Herzegovina reflects the complexity of many modern conflicts and not, perhaps, the paradigm envisaged in 1949.65

The end result of this body of ICTY jurisprudence is that: The nationality requirement ::: should be ascertained within the context of the object and purpose of humanitarian law, which ‘is directed to the protection of civilians to the maximum extent possible’. This in turn must be done within the context of the changing nature of the armed conflicts since 1945, and in particular of the development of conflicts based on ethnic or religious grounds.66

Although much of the ICTY discussion above was framed in terms of international armed conflict, once a more teleological approach is taken to the Geneva Conventions, and ‘protected’ status extended beyond the issue of nationality as strictly required by Article 4 of Convention IV, it does become difficult to justify the continuing inapplicability of such provisions to internal armed conflict. After all, once it is accepted that violations of the law entail criminal responsibility in any armed conflict, and that conflicts are increasingly internal, rather than international in character (or, at least, that the parties to an armed conflict can be differentiated along ethnic or religious, rather than national lines ç as is likely to be the case in most internal armed conflicts), the pre-existing reasons for limiting grave breaches to international armed conflict certainly seem to vanish. The distinction between grave breaches and violations of the laws of internal armed conflict seems similarly difficult to justify when approached from the perspective of the perpetrator of an offence, and in light of the substance of those violations classed as grave breaches.67 64 65 66 67

Delalic¤ , supra note 11, at x 265. Ibid., at x 266. Delalic¤ , supra note 45, at x 73. As Judge Rodrigues argued, ‘The characterisation of the conflict is not a consideration in the mind of a person ::: who is preparing to commit a crime which might be characterised as a grave breach of the Geneva Conventions. The person who perpetrated or ordered the perpetration of an act which constitutes a grave breach ::: was fully aware that he or she was perpetrating a crime, whether under the law of his or her own State of origin or the law of another State’: Supra note 53, at x 48.

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Taking a teleological approach, then, it would appear that violations of common Article 3 and the other laws and customs of internal armed conflict could indeed represent grave breaches. This position is not, however, free from difficulty, in that it requires Article 4 of Geneva Convention IV to be read in a way that is patently inconsistent with the language of the provision itself ç and for which there was precious little previous support. The rules on treaty interpretation, after all, require primary reliance upon the ‘ordinary meaning’ of the terms used, with resort to the object and purpose of an agreement tending to be seen as a means of confirming an interpretation.68 Even taking into account the changing nature of hostilities since 1949, the ordinary meaning of the nationality requirement in Article 4 seems clear. Indeed, it might have been preferable for the ICTY to have applied a broader, teleological interpretation to common Article 2 instead, thereby avoiding its requirement of hostilities between High Contracting Parties, i.e. international armed conflict ç an approach for which there has, at least, been a degree of support in state practice.69

B. Through the Development of a New Customary Rule It will be recalled, however, that Judge Abi-Saab indicated the teleological approach to the Geneva Conventions as being only one way in which the grave breaches regime could reach violations of the law committed during internal armed conflict, and that the other was through the formation of a new customary rule to that effect.70 In the Tadic¤ Appeal on Jurisdiction, the possibility that such a development might be occurring was recognized,71 whereas the C› elebic¤ i Trial Judgment appeared to recognize that it may already have taken place.72 Only by examining state practice and opinio juris can this question be disposed of. Perhaps the most significant example of such state practice was the adoption of the Rome Statute for the ICC. As outlined above, ICC jurisdiction over grave breaches is provided for in Article 8(2)(a) of the Statute, which follows the ICTY’s approach in requiring that they be committed during international 68 A statement of the general rules on treaty interpretation can be found in Art. 31 of the 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331. See also A. Aust, Modern Treaty Law and Practice (2nd edn., Cambridge: Cambridge University Press, 2007), at 234^235. 69 For recent evidence of such an approach, see, for example, United States Department of Defense Directive 2311.01E, 9 May 2006, providing in x 3.1 that the law of war ‘encompasses all international law for the conduct of hostilities binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party, and applicable customary international law’, and in x 4.1 that the law of war is to be complied with ‘during all armed conflicts, however such conflicts are characterized, and in all other military operations’. The policy is repeated in the Chairman of the Joint Chiefs of Staff Instruction (CJCSI 5810.01C) of 29 January 2008. 70 Supra note 44 and accompanying text. 71 Tadic¤ , supra note 9, at x 83. 72 Supra note 48.

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armed conflict.73 Whilst nothing in the ICC Statute explicitly states this to be a requirement, ‘the context suggests that this must necessarily be the case’,74 and the Elements of the Crime adopted by the Preparatory Commission expressly require that, ‘The conduct took place in the context of and was associated with an international armed conflict’.75 In a similar vein to Article 2 of the ICTY Statute, it is also provided in Article 8(2)(a) that the offences must be committed against ‘persons or property protected under the provisions of the relevant Geneva Convention’, although, in contrast to the ICTY Statute, it uses the terminology of ‘protected persons’ throughout.76 The broader view of the ICTY in this respect found no place in the Rome Statute itself, although an explanatory note to the Elements does indicate that,‘With respect to nationality, it is understood that the perpetrator needs only to know that the victim belonged to an adverse party to the conflict’.77 The Preparatory Commission was well aware of the ICTY developments in this area, and apparently decided against imposing greater constraints so that the Court would be free in the future to decide on whether or not to adopt the same approach.78 Perhaps more importantly, it will be recalled that the main purpose of the grave breaches regime was to provide a method for states to exercise universal jurisdiction over the most serious violations of the laws of war; and that concerns over interference in state sovereignty prompted the exclusion of crimes committed other than in the international context. Although squarely an exercise of Chapter VII powers, the adoption of Statutes for the ICTY and ICTR with primacy over national courts could also be seen as expressions of universal jurisdiction, in that ‘member states of the UN [were simply doing] together what each of them might have done singly’.79 Significantly, in both of these 73 It has been suggested that even treating grave breaches as a category of offences distinct from other violations of the laws and customs of war applicable to international armed conflict was ‘not consistent with the development of international humanitarian law’. See Y. Aksar, Implementing International Humanitarian Law (London: Routledge, 2004), at 136. 74 W.A. Schabas, An Introduction to the International Criminal Court (3rd edn., Cambridge: Cambridge University Press, 2007), at 120. 75 ICC, Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2 (2000). 76 Subparagraphs (v) and (vi) refer to offences against ‘a prisoner of war or other protected person’, whereas Art. 2 of the ICTY Statute refers in paragraphs (e), (f) and (g) to offences against ‘a prisoner of war or civilian’. Article 8(2)(a) of the ICC Statute also refers in subparagraphs (vii) and (viii) to the offences of unlawful deportation and taking of hostages in general terms, whilst the ICTY Statute also addresses both of these to acts against civilians. See ICTYSt., Art. 2(g) and (h). 77 Supra note 75. 78 K. Do«rmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (Cambridge: Cambridge University Press, 2002), at 29. It should be noted, however, that in the Elements of Crimes, the Introduction to Art. 8 states that they should be interpreted ‘within the established framework of the international law of armed conflict’. See P. Rowe, ‘War Crimes’, in D. McGoldrick, P. Rowe and E. Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (Oxford: Hart Publishing, 2004), 203^230, at 221. 79 See e.g. E. La Haye, War Crimes in Internal Armed Conflicts (Cambridge: Cambridge University Press, 2008), at 225, referring to Y. Dinstein, ‘The Universality Principle and War Crimes’ in M.N. Schmitt (ed.), International Law Studies: The Law of Military Operations, Lieber Amicorum Professor J. Grunawalt (Newport, Rhode Island: Naval War College, 1998) 17^37, at 27.

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Statutes, jurisdiction was aimed equally (or, in the case of the ICTR, exclusively) at those crimes committed during internal armed conflict. Nonetheless, states were not prepared to grant the ICC ‘universal jurisdiction’ or, more accurately, primacy, over any of the crimes set out in the Rome Statute; instead, a number of preconditions to the Court’s exercise of jurisdiction were provided in Article 12.80 Indeed, the 1994 Convention on the Safety of UN and Associated Personnel and the 1999 Second Protocol to the Hague Convention on Cultural Property are the only examples of international humanitarian law instruments adopted since the Statute of the ICTR that extend universal jurisdiction to those violations committed in the context of internal armed conflict. The former provides for the principle of aut dedere aut judicare in Article 14,81 and the latter in Article 16.82 International agreements accordingly demonstrate little in the way of a radical change in either state practice or opinio juris. Does the practice of individual states provide greater evidence of customary developments? Relying on the domestic laws of the Netherlands, Switzerland and Germany, Cassese has recently asserted that, ‘the contention is perhaps warranted that a customary rule [recognising that grave breaches can be perpetrated in internal armed conflict] has indeed emerged’.83 Whether this is true, however, remains open to question. The Dutch Wartime Criminal Offences Act 1952 certainly stated in Article 8 that the Courts had jurisdiction over all violations of the laws and customs of war, with universal jurisdiction over such violations asserted in Article 3, and the term ‘war’expressly defined in Article 1(3) to include internal armed conflicts. The relevant provisions were applied in the case of Knez› evic¤ , a Bosnian Serb accused of having committed violations of common Article 3 in Bosnia,84 where the Dutch Supreme Court held that the Wartime Offences Act 80 La Haye, ibid., at 226^227, suggests that this can probably best be seen as reflecting a degree of ‘mistrust and fear’ on the part of certain states with respect to the ICC, rather than any significant concern over the prosecution of war crimes per se ç even in the context of internal armed conflict. 81 1994 Convention on the Safety of United Nations and Associated Personnel, 34 International Legal Materials (ILM) (1995) 482. 82 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 38 ILM (1999) 769. A number of other instruments, aimed at the use of particular weapons, do contain provisions requiring parties to take measures, ‘including the imposition of penal sanctions, to prevent and suppress any activity prohibited ::: under this Convention undertaken by persons or on territory under its jurisdiction or control’, but this would seem to fall short of universal jurisdiction. See 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 32 ILM (1993) 800, Art. VII; 1996 Amended Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 35 ILM (1996) 1206, Art. 14; and 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 36 ILM (1997) 1507, Art. 9. 83 A. Cassese, International Criminal Law (2nd edn., Oxford: Oxford University Press, 2008), at 88. The relevant developments in state practice are outlined in note 9. 84 Netherlands Supreme Court Decision in the matter of the appeal against a decision of the Arnhem Court of Appeal, Military Chamber, dated 19 March 1997, in the penal case against Darko Knez› evic¤ , 11 November 1997, Criminal Court, No 3717 Decision, AB, available online at http://

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must be read in accordance with the government’s intention to comply with its international obligations under the Geneva Conventions. Knez› evic¤ was accordingly found guilty. No finding was made as to the character of the armed conflict in question, and so the case can be seen as confirming the ability of the Netherlands to exercise universal jurisdiction over violations of the laws of war in either international or internal armed conflict.85 All this demonstrates, however, is that the Netherlands has exercised universal jurisdiction over violations of common Article 3. To infer from this that those violations constitute grave breaches, or that grave breaches can be committed during internal armed conflict, goes too far. Indeed, a subsequent case relating to the internal armed conflict in Afghanistan between 1978 and 1982 held that nothing in the Geneva Conventions prevented the Netherlands from classing violations of common Article 3 as criminal offences, or indeed from extending universal jurisdiction over such offences, but that common Article 3 does not form part of the grave breaches regime per se.86 In Switzerland too, the Courts have jurisdiction over war crimes irrespective of the characterization of the armed conflict.87 In 1999, a former mayor of a Rwandan community was successfully prosecuted for war crimes in the context of violations of common Article 3 and Additional Protocol II,88 and, as Cassese indicates,89 an amendment to the Swiss Penal Code of 13 December 2002 now also provides for the exercise of jurisdiction over violations of the laws and customs of war committed during international and internal armed conflict. Section 1 of the German Code of Crimes Against International Law also applies the principle of universal jurisdiction to all international crimes, including war crimes.90 Yet further examples arise out of national prosecutions relating to the conflicts in the former Yugoslavia and Rwanda. Thus, the Belgian courts have successfully prosecuted a number of Rwandan nationals

85

86

87

88 89 90

www.icrc.org/ihlnat.nsf/ (visited 14 July 2009). See also La Haye, supra note 79, at 251^252; and S. Boelaert-Suominen, ‘Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for All Armed Conflicts?’, 5 Journal of Conflict and Security Law (JCSL) (2000) 63^103, at 94^95. See also Section 2 of the Netherlands International Crimes Act 2003, which provides for universal jurisdiction over any of the crimes contained within the ICC St. where the suspect is on Dutch territory. Nonetheless, the 2003 Act continues to treat grave breaches and violations of common Art. 3 separately, making no reference to grave breaches in the context of internal armed conflict. See G. Mettraux, ‘Dutch Courts’ Universal Jurisdiction over Violations of Common Article 3 qua War Crimes’, 4 Journal of International Criminal Justice (2006) 362^371; La Haye, supra note 79, at 252. See also the similar conduct of the Swiss Courts in the context of conflicts in Bosnia and Rwanda, La Haye, ibid., at 252^253. Art. 109 of the Swiss Military Penal Code. See Decision of Military Tribunal, Division 1, 18 April 1997, Lausanne, available online at http://www.icrc.org/ihlnat.nsf/ (visited 14 July 2009); La Haye, ibid.; Boelaert-Suominen, supra note 84, at 96. See La Haye, ibid., at 253. Supra note 83. See discussion in La Haye, supra note 79, at 249^251.

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for violations of common Article 3 and Additional Protocol II committed on Rwandan territory.91 Based on such state practice, the 2005 ICRC study on the customary laws of war asserts that there is a right to exercise jurisdiction over war crimes in national courts, and that this applies with respect to war crimes committed in internal, as well as international armed conflict.92 But such practice relates only to the exercise of universal jurisdiction. To draw any conclusions from this regarding the possible commission of grave breaches during internal armed conflict would conflate the two concepts dangerously. The existence of universal jurisdiction over a violation of common Article 3 does not transform it into a grave breach. In any case, other comprehensive studies of state practice have been carried out which appear to demonstrate that, whilst a growing number of states may assert universal jurisdiction over war crimes committed during internal armed conflict in their national criminal codes, or in national legislation implementing the Geneva Conventions or the ICC Statute, there would currently seem to be more states which have not taken such steps.93 Nor, indeed, has such practice been consistently supported by the activities of the UN Security Council or other UN bodies,94 although the UN Secretary-General did state in 2004 with respect to the protection of civilians in all situations of armed conflict, that those states on whose territory crimes against civilians are being committed ‘bear the foremost responsibility [for enforcing the Geneva Conventions], but [that] in the absence of timely and appropriate action by a state, the responsibility to respond falls to the international community’.95 91 See, e.g. Judgment of the Cour d’A ssises of Brussels, 8 June 2001, a decision confirmed by the Court of Cassation on 9 January 2002. For discussion, see La Haye, ibid., at 245; L. Reydams, Universal Jurisdiction (Oxford: Oxford University Press, 2003) at 109^112; and ‘National Implementation of International Humanitarian Law: Biannual Update on National Legislation and Case Law, January-June 2002’ 847 IRRC (2002) 701^712, at 709^710. Belgian law has subsequently changed, becoming much more restrictive. See discussion in La Haye, ibid., at 245^246. 92 J.-M. Henckaerts and L. Doswald Beck, Customary International Humanitarian Law,Vol. I: Rules (Cambridge: Cambridge University Press, 2005), at 604. 93 See, e.g., La Haye, supra note 79, at 228^235; Boelaert-Suominen, supra note 84, at 89^93. 94 La Haye, ibid., at 236^237. See, for example, Final Report of the Commission of Experts, supra note 7, stating at x 42 that, ‘the only offences committed in internal armed conflict for which universal jurisdiction exists are crimes against humanity and genocide for which it applies irrespective of the conflicts’ classification’. As La Haye also points out, at 237^239, when presented with the opportunity to address the question of universal jurisdiction over war crimes in internal armed conflict, the ICJ provided no answer. Instead, following agreement between the parties to limit their submissions accordingly, it addressed only the issue of immunity of the DRC minister of Foreign Affairs. See Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ Reports (2002) 3. 95 See Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, UN Doc. S/2004/431, 28 May 2004, x39. See also the Resolution on Universal Criminal Jurisdiction with regard to the Crime of Genocide, Crimes Against Humanity and War Crimes, 26 August 2005, which provides at x 3(a) that,‘Universal jurisdiction may be exercised over international crimes identified by international law as falling within that jurisdiction in matters such as genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions for the protection of war victims or other serious violations of

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More significant is that some (albeit limited) recent practice does point towards a possible acceptance that grave breaches can be committed during internal armed conflict. In 1994, for example, a Danish Court prosecuted a Bosnian Muslim for offences committed against detainees in a Croatian prison camp in Bosnia. Without determining whether the conflict was international or internal in character, the Court applied the grave breaches provisions of the Geneva Conventions.96 Debate nonetheless surrounds the significance of the judgment, which could be seen equally as implying either that the court considered the conflict to have been international in character, or that the court did not believe the nature of the armed conflict to be relevant.97 The UN Commission on Human Rights also stated in the context of the armed conflict in Sierra Leone that: ::: in any armed conflict, including an armed conflict not of an international character, the taking of hostages, wilful killing and torture or inhuman treatment of persons taking no active part in hostilities constitute grave breaches of international humanitarian law, and ::: all countries are under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches and to bring such persons, regardless of their nationality, before their own courts.98

Yet more striking is the attitude of the United States, which, it will be recalled, had submitted an amicus curiae brief to the ICTY in 1995 asserting that grave breaches under Article 2 of the Tribunal’s Statute could be committed during both international and internal armed conflicts.99 In 2006, the Military Commissions Act amended the United States Code so that Section 2441 of title 18 now provides for criminal jurisdiction over conduct ‘which constitutes a grave breach of common Article 3 ::: when committed in the context of and in association with an armed conflict not of an international character’.100 Grave breaches of common Article 3 are defined in subsection (d) as comprising: torture; cruel or inhuman treatment; performing biological experiments; murder; mutilation or maiming; intentionally causing serious bodily injury; rape; sexual assault or abuse; and the taking of hostages ç some of

96

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98 99 100

international humanitarian law committed in international or non-international armed conflict’. Available online at www.idi-iil.org/idiE/resolutionsE/2005_kra_03_en.pdf (visited 14 July 2009). Elsewhere in the resolution, the Institute takes a restrictive approach to the issue, stressing, for example, the primacy of the jurisdiction of states with significant links to the crime, the offender or victim. See discussion in La Haye, supra note 79, at 242^243. Prosecution v. Refik Saric, Eastern Division of the High Court, Third Chamber, 25 November 1994, available online at http://www.icrc.org/ihlnat.nsf/(visited 14 July 2009). See also discussion in La Haye, supra note 79, at 247; and Boelaert-Suominen, supra note 84, at 95^96. La Haye, ibid.; Boleart-Suominen, ibid. The ICTY did rely on this case as evidence of an emerging state practice in favour of abandoning the distinction between international and internal armed conflict for grave breaches. UN Commission on Human Rights Resolution 1999/1, 6 April 1999, x2. See supra note 38. Available online at uscode.house.gov/download/pls/18C118.txt (visited 14 July 2009), subsection (c)(3).

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which are not actually (or, at least, explicitly) contained within the terms of common Article 3.101 Despite these examples, whether a new customary law rule has materialized on the issue remains doubtful. In 2000, Boelaert-Suominen could find no state practice or opinio juris supporting an extension of the grave breaches regime to cover both categories of armed conflict, contending that, even in those cases ‘where national legislators or national courts have applied certain aspects ::: of the grave breaches regime to internal armed conflicts, they have proceeded cautiously and selectively’.102 La Haye, meanwhile, believes that, even in the more limited context of extending universal jurisdiction to violations of common Article 3, there is ‘a good amount of opinio juris’, but that state practice ‘may not yet be qualified as extensive or virtually uniform practice, giving rise to a customary law norm’.103 Any development in this regard would undoubtedly please Meron, who has argued that the ‘universality of jurisdiction does not depend on the nature of the conflict ::: but on the nature and gravity of the offence’.104 Indeed,‘just because the Geneva Conventions created the obligation of aut dedere aut judicare only with regard to grave breaches does not mean that other breaches of the Geneva Conventions may not be punished by any State party’.105 This is undoubtedly true. As indicated above, however, it does not mean that violations of common Article 3 can be considered grave breaches. Moreover, even if it is accepted that universal jurisdiction can, or should, include violations of common Article 3 and the other laws and customs relating to internal armed conflict, it is simply not the case that international law imposes an obligation upon states in this regard. Rather, as Cassese has explained, any newly developed customary rule confers only ‘the power to search for and bring to trial or extradite alleged authors of grave breaches committed in internal armed conflicts; the rule does not go so far as to impose upon states an obligation to seek out and try or extradite those alleged authors’ in the way that they are required to in the context of international armed conflicts.106 As Judge Ro«ling contended 50 years ago, ‘the distinction between ‘‘grave’’ and ‘‘other’’ violations might find its perfect explanation in the obligation to prosecute grave violators and the right to prosecute those who have committed other breaches’.107

101 Instead, acts such as biological experiments, rape and sexual assault are characterized by Art. 8(2)(e) ICCSt. as ‘other serious violations’ of the laws of internal armed conflict. 102 Boleaert-Suominen, supra note 84, at 102. 103 Although she suggests that this is no longer seen as contrary to state sovereignty, and is ‘about to crystallise’ into custom. See La Haye, supra note 79, at 255. 104 Meron, supra note 5, at 118. 105 Ibid., at 125. See also the terms of common Art. 1. 106 Cassese, supra note 83. See also Henckaerts and Doswald-Beck, supra note 92, at 606; Meron, supra note 5, at 126. 107 B.V.A. Ro«ling, ‘The Law of War and the National Jurisdiction since 1945’, 100 Rec des Cours (1960) 323^456, at 342. See also Meron, ibid., at 127, note 128, and the sources listed therein.

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4. Conclusions Clear differences exist between grave breaches in the context of the Geneva Conventions and other violations of the laws and customs of war, at least in terms of the duties and rights associated with their enforcement. States are under an obligation to extradite or prosecute those responsible for grave breaches, and universal jurisdiction is provided for on that basis. No similar requirement exists in relation to common Article 3 or to Additional Protocol II. Hence, ‘a normative gap exists with respect to the enforcement consequences that arise out of transgressions of these two regimes’.108 And yet, influenced by the grave breaches regime and its imposition of criminality for serious violations of the laws of war, international law has steadily developed towards a recognition of the fact that the majority of armed conflicts are now internal, rather than international in character, and that violations of the applicable law in such situations are equally serious. It is now settled that individual criminal responsibility also attaches to violations of common Article 3 and Additional Protocol II, alongside an expanded body of customary rules relevant to internal armed conflict, coinciding to a large extent with the rules regulating international hostilities. The traditional view nonetheless held that grave breaches could be committed only in a conflict that was international in character. It was probably not surprising, then, that, in an effort to improve the enforcement of the laws regulating internal armed conflict, commentators increasingly began to assert a need for ‘the existing definitions and systems of sanctions for war crimes and crimes against humanity in international armed conflicts [to] be used more consistently’.109 In adopting a teleological approach to Article 4 of Geneva Convention IV, the ICTY has determined that grave breaches can be committed against persons who are ‘protected’ on the basis of a having a different ethnicity, rather than a different nationality. Once this position is accepted, and given that there is considerable overlap between some of the acts prohibited as grave breaches and those acts prohibited by common Article 3, it becomes rather more difficult to deny the applicability of the grave breaches regime to internal armed conflict. Nonetheless, and even bearing in mind the sweeping re-characterization of Article 4 that the ICTY’s approach entails, the ICTY and the ICC Statute both continue to do so, persisting with the requirement that grave breaches be committed during an international armed conflict. At the level of international enforcement, discussion as to the commission of grave breaches during internal armed conflict is of ‘mainly theoretical interest’.110 It tends to present technical questions for prosecutors regarding which 108 Bassiouni, supra note 21, at 510. 109 F. Bouchet-Saulnier, The Practical Guide to Humanitarian Law (2nd edn., Lanham, Maryland: Rowman and Littlefield, 2007), 486. 110 W.A. Schabas, The UN International Criminal Tribunals (Cambridge: Cambridge University Press, 2006), 242. Given that the ICTY chose, instead, to redefine the notion of ‘protected person’, and that no conviction has relied upon Art. 2 ICTYSt. alone, Schabas is able to conclude, at 248, that the debates surrounding the scope of Art. 2 and the applicability of grave

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violations of the law to charge offenders with, rather than practical consequences as to the criminality of the acts per se. After all, the ICTY found that all serious violations of the laws of war not falling within Article 2 of its Statute were caught by Article 3 of its Statute in any case, whilst the Statute of the ICC explicitly grants the Court jurisdiction over violations of common Article 3, as well as numerous other violations of the laws and customs of war committed during internal armed conflict. It has therefore been argued that, as a result of the ICC’s jurisdictional reach, ‘the perceived need to apply the grave breach provisions to [internal] armed conflict is rendered otiose’.111 Of course, a number of key states are not parties to the Rome Statute. Nor does the ICC have primacy over national courts; it is able to exercise its jurisdiction only where even those states party are either unable or unwilling to genuinely investigate or prosecute the alleged offences. The effective prosecution of war crimes at the domestic level accordingly remains vitally important, and it is here that the characterization of an offence as a grave breach is more significant. A mandatory system of universal jurisdiction attaches to grave breaches.112 Indications point towards a growing acceptance that states may also extend universal jurisdiction to cover violations of the laws of internal armed conflict. As Meron has argued, ‘Once internal atrocities are recognized as international crimes and thus as matters of international concern, the right of third States to prosecute violators must be accepted’.113 Indeed, Bassiouni suggests that the ‘formal distinctions [between grave breaches and violations of common Article 3 and Additional Protocol II] and the gaps that exist in their scope, application, protection, and enforcement, are no longer tenable’,114 and points to a ‘notable trend among legal experts to consider such formalism as historically de¤ passe¤ and to consider the same enforcement consequences applicable to both legal regimes’.115 This seems bold. The extension of universal jurisdiction to include violations of the laws of internal armed conflict is not required by international law, and does not serve to transform such violations into grave breaches. Nor does an examination of state practice suggest that the picture is as clear as Bassiouni would suggest. Perhaps this is only to be expected. Meron, for example, is not surprised that, ‘on a subject of breaches to internal armed conflict ‘consumed a great deal of judicial energy, but added nothing to the effectiveness of the ICTY’. 111 Rowe, supra note 79, at 222. 112 See R. O’Keefe, ‘The Grave Breaches Regime and Universal Jurisdiction’, in this issue of the Journal. 113 Meron, supra note 5, at 137. 114 Bassiouni, supra note 21, at 510. 115 Ibid. In his view, scholars ‘agree that there should be no distinctions between ‘‘grave breaches’’ and ‘‘violations’’ of common Art. 3 Protocol II; they agree that both contain equally enforceable prohibitions carrying the same enforcement consequences. They do so at least in part because the overwhelming majority of post-World War II conflicts have been of a ‘‘non-international character’’, and because these conflicts have produced an overwhelming number of victims’.

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such great humanitarian importance, the practice of States lags behind opinio juris ::: Nevertheless, slowly but unmistakably, the practice of States is evolving’.116 For it do otherwise would be to ignore the underlying humanitarian purpose of both regimes; namely the protection of innocent victims to the greatest extent possible. And yet the evolution taking place is probably best seen as limited to the increased domestic criminalization of violations of the laws of internal armed conflict. There can be no doubt that this is a positive development, but it is not one that renders the offences in question grave breaches. 116 Meron, supra note 5, at 138.