Originally, war crimes and grave breaches were distinct concepts in international law. War crimes were certain acts and omissions carried out in times of war and criminalized in international law. Grave breaches were a limited set of particularly 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. Over time, the line between the two concepts blurred and they began to compete with each other. In 1979, the eminent legal scholar G.I.A.D. Draper wrote, ‘The trial of individuals for war crimes has been largely superseded by the modern system of the penal repression of “grave breaches”’.Footnote 1 Thirty years later, the war crimes concept is the more dynamic of the two, to the point that one may wonder whether grave breaches will disappear from international law. The survival of grave breaches in law will depend in practice on whether they retain some advantage over war crimes. Possible advantages include a lesser burden of proof, a better procedural regime, greater recognition among states, or perception as a greater infamy. The fate of grave breaches will influence the shape of international criminal law. Meanwhile, it is useful for the legal practitioner to know the respective advantages and drawbacks of relying on one kind of rule or the other. By doing a comparative analysis of the grave breaches and war crimes regimes, this article will seek to fulfil that purpose while considering what role remains for grave breaches in international law. The first section examines how the ‘grave breach’ concept has gradually become increasingly similar to that of ‘war crime’. The second section outlines the present differences in their scopes of application. The third section contrasts their respective procedural regimes in contemporary international law.
The merging concepts of war crimes and grave breaches
While grave breaches and war crimes were originally of a fundamentally different nature, the passage of time has blurred the distinction between them.
The original difference between grave breaches and war crimes
It is difficult to define a ‘crime’, as its meaning varies in different legal systems. An acceptable summary definition is an act or omission that the law makes punishable.Footnote 2 A ‘breach’ is merely an act or omission that is contrary to a legal obligation. All crimes stem from breaches of the law, but not all breaches amount to crimes. While a crime necessarily entails consequences in criminal law, a breach may have legal consequences inside or outside criminal law. In international law, this difference applies to war crimes and grave breaches. War crimes, on the one hand, are acts and omissions that violate international humanitarian law and are criminalized in international criminal law.Footnote 3 War crimes rose to prominence as a result of the two world wars and the ensuing efforts to prosecute some of the people responsible for crimes committed then. Article 6 of the Charter of the Nuremberg International Military Tribunal of 8 August 1945 gave the Tribunal jurisdiction to try people who, acting in the interests of the European Axis countries, committed:
(b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
This jurisdictional provision reflected the existence of substantive crimes of international law. Grave breaches followed in the Geneva Conventions of 1949. Article 147 of the Fourth Geneva Convention lists the following acts considered to be grave breaches of that convention:
wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully 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.Footnote 4
The Geneva Conventions did not provide for any international criminal liability for grave breaches. Rather, grave breaches constituted a category of violations of those conventions considered so serious that states agreed to enact domestic penal legislation, search for suspects, and judge them or hand them over to another state for trial.Footnote 5 As for other – non-grave – breaches of the Geneva Conventions, the nature of their sanction in domestic law was left open to the States Parties.Footnote 6 These ‘other breaches’ are not a third category besides war crimes and grave breaches, they are merely the flipside of grave breaches within the Geneva Conventions. In general international law, they may amount to war crimes if they are serious enough.Footnote 7
Not much clarity can be derived from the Geneva Conventions or their travaux préparatoires on the relationship between grave breaches and war crimes. The term ‘grave breach’ appeared for the first time in a proposal by the Dutch delegation.Footnote 8 Despite Soviet-led efforts to use ‘crime’ instead, the term ‘grave breach’ was retained because the definition of ‘crime’ varied from one country to another, because war crimes were anyhow breaches of the laws of war, and because the 1949 Diplomatic Conference did not have a mandate to create international criminal law.Footnote 9 According to the main promoter of the grave breaches provisions at the Geneva Conference, Captain Mouton of the Dutch delegation,Footnote 10 ‘the aim was not to produce a penal code, but to make it obligatory for the Contracting Parties to include certain provisions in their own codes’.Footnote 11 The grave breaches provisions in the Geneva Conventions are indeed insufficiently detailed to work on their own as a criminal code, for they lack mens rea (although some grave breaches must be ‘wilful’), modes of liability (except commission and the ordering thereof), defences, penalties, rules of procedure, etc. Such indispensable parts of a proper criminal law were, in the absence of agreement among the delegations, ‘left to the judges who would apply the national laws’.Footnote 12 In 1977, Protocol I additional to the Geneva Conventions added some substance to the grave breaches regime, but the international treaty-based law on the topic still did not amount to an autonomous criminal code.Footnote 13
In order to understand the original distinction between grave breaches and war crimes, it is necessary to conceive of international and domestic law as separate bodies of law. Whether a grave breach or a war crime is committed, in both cases a rule of international law is breached. However, whereas a grave breach should entail criminal consequences in domestic law, a war crime entails criminal consequences in international law. In more technical terms, grave breaches are violations of certain primary rules of international humanitarian law with penal consequences in domestic law, while war crimes consist of secondary rules of international criminal law that attach criminal sanctions to breaches of primary rules of international humanitarian law. However, this distinction became blurred as the meaning of ‘grave breaches’ began to evolve.
Convergence of the concepts of war crimes and grave breaches
There has been a fair deal of conceptual confusion between grave breaches and war crimes. One source of this may be that both constitute breaches of international humanitarian law and lead to the individual criminal liability of their perpetrators. Indeed, the grave breaches provisions were inspired both by Article 5 of the Genocide Convention,Footnote 14 dealing with breaches, and Article 6(b) of the Nuremberg Statute,Footnote 15 dealing with crimes. This confusion spread to international treaties. Grave breaches are construed as a particular type of war crime in both Article 1(a) of 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.
In the mid-1970s, the relationship between war crimes and grave breaches was hotly debated at the Diplomatic Conference on the draft Additional Protocols, following a proposal to describe grave breaches as war crimes.Footnote 16 Some states considered grave breaches to be a category of war crimes,Footnote 17 while others emphasized the differences between the two.Footnote 18 Several delegations pointed out that if grave breaches were to be considered war crimes, they would need to be more precisely defined.Footnote 19 In the end, Article 85(5) of Protocol I came to provide that ‘grave breaches of [the Geneva Conventions and Protocol I] shall be regarded as war crimes’. By deciding that grave breaches constituted war crimes, the drafters gave the former a new additional meaning, providing them with criminal consequences in international law.Footnote 20
In 1993, the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) included grave breaches in Article 2, separating them from war crimes, which were covered in Article 3. This confirmed, in an instrument of international criminal law, that grave breaches had become international crimes. Yet the Statute did not provide crucial content such as mens rea requirements and defences, leaving these areas to be filled in by the case-law.
At the preparatory meetings for the Rome Conference on the International Criminal Court (ICC) it was widely accepted by 1996 ‘that the definition of violations of laws and customs applicable in armed conflict should encompass both grave breaches of the 1949 Geneva Conventions and other serious violations of the laws and customs of war.’Footnote 21 Several state representatives suggested war crimes provisions that would combine grave breaches and war crimes.Footnote 22 However, as the grave breaches provisions of the 1949 generation were easily identified and widely accepted, they were dealt with separately, quickly and painlessly, allowing the delegates to concentrate on other often more controversial crimes.Footnote 23 Indeed, the discussion focused on war crimes in Article 8(2)(b) rather than on grave breaches in Article 8(2)(a).Footnote 24 While the inclusion of the concept of war crimes in the ICC's jurisdiction was not controversial, specific war crimes and their definitions were.Footnote 25 The grave breaches provisions hailing from Protocol I were included in the section on war crimes rather than that on grave breaches – an oddity that was noticed and questioned at the conference.Footnote 26 This choice stemmed from the difference between the almost universal ratification of the Geneva Conventions and the smaller number of states that had accepted Protocol I.Footnote 27 The Rome Conference thus showed that the grave breaches provisions of the 1949 generation, those of the 1977 generation, and provisions relating to other war crimes enjoyed quite different levels of acceptance among states.
The ICC Statute, adopted in 1998, listed grave breaches as a category of war crimes under Article 8(2)(a). This confirmed, in an instrument of international criminal law, that grave breaches had become subsumed under war crimes. The transformation led to some strange results. Article 8(2)(a) defines criminal acts using wording that was not drafted for that purpose, since the grave breaches provisions were only guidelines for domestic criminal legislation.Footnote 28 Moreover, due to the different origins of the grave breaches provisions in Article 8(2)(a) and the war crimes provisions in the rest of Article 8, there is plenty of overlap between Articles 8(2)(a) and 8(2)(b).Footnote 29 Yet there is no logical or legal reason to separate the crimes in these articles, since the same rules in the ICC Statute apply to both types of crimes.Footnote 30 In any event, the ICC Statute provided the ICC with jurisdiction over a long list of war crimes drawn from customary law, including grave breaches. This illustrates how in recent years the concept of grave breaches has appeared in instruments of international criminal law rather than in international humanitarian law.Footnote 31
In contemporary international law, there are therefore two kinds of grave breaches. The original grave breaches provisions are jurisdictional and procedural. They govern how domestic legislative and law enforcement bodies should ensure that justice is done for certain breaches of international law. We will call these ‘procedural grave breaches’. The new grave breaches are substantive norms, and constitute a category of war crimes. They define behaviour that is considered to be criminal in international law. We will call these ‘substantive grave breaches’.
Do grave breaches have any autonomous scope of application compared with war crimes?
If a grave breach and a similar war crime have different scopes of application, there may be situations in which only one or the other applies. This could perpetuate their dual existence in international law. Procedural grave breaches are hemmed in by their conventional thresholds of applicability. All procedural grave breaches now have equivalent (though not always identical) substantive grave breaches in customary law.Footnote 32 The scope of the latter still depends on their treaty-based origins. Other war crimes are found exclusively in customary law.Footnote 33 This section will examine in general terms the respective scopes of substantive grave breaches and war crimes, reviewing their applicability to different types of armed conflict, their material, personal, geographical and temporal scopes, modes of liability and circumstances eliminating criminal liability. It will not cover procedural grave breaches, which are to be defined in domestic law and therefore lack content in international law beyond some general guidelines.
Types of armed conflict
It has been suggested that war crimes can only be committed during hostilities, while grave breaches can also be committed in their aftermath.Footnote 34 However, under the ICC Statute both substantive grave breaches and war crimes apply in international armed conflict, broadly defined to include occupation.Footnote 35 On the other hand, in contemporary international law, war crimes can be committed in both international and non-international armed conflict,Footnote 36 while grave breaches only apply to international armed conflict.Footnote 37 Article 1(4) of Protocol I extended the notion of international armed conflict to include wars of national liberation, thereby extending the scope of the 1977 generation of grave breaches. At the ICTY, substantive grave breaches have disappeared from indictments because they could generally be replaced by a war crime charge carrying a lesser burden of proof, in particular dispensing with the need to first establish the existence of an international armed conflict.Footnote 38 Also, unlike grave breaches, war crimes have come to apply to conflicts between organized armed groups.Footnote 39 Thus while grave breaches only apply to international armed conflict, war crimes extend further to non-international armed conflict, which in today's world covers the majority of armed conflicts. In this regard, it is thus always possible to charge an accused with a war crime rather than a substantive grave breach.
Material scope
Acts and omissions
Grave breaches cover a relatively limited set of violations of international humanitarian law, set out in the Geneva Conventions and expanded in Protocol I.Footnote 40 Some authors have argued that only violations of international humanitarian law amounting to grave breaches constitute war crimes.Footnote 41 This view wrongly bases individual criminal responsibility on jurisdictional provisions.Footnote 42 Yves Sandoz has argued that Article 85(5) of Protocol I shows that, a contrario, non-grave (‘other’) breaches are not war crimes.Footnote 43 However, while Article 85(5) provides that grave breaches are war crimes, it does not say what else is or is not a war crime. It is consistent with Article 85(5) to say that acts or omissions may qualify as war crimes even if they do not qualify as grave breaches. Indeed, this is the case, as reflected in Article 8 of the ICC Statute. G.I.A.D. Draper has argued that the fact that the Geneva Conventions allow for suppression of non-grave breaches implies that criminal sanctions may be used for this purpose, should the state so choose.Footnote 44 Of course, this does not necessarily mean that there are any such war crimes in international law, since the ‘other breaches’ provisions merely allow States Parties to enact domestic sanctions as they see fit.Footnote 45 Some authors have argued that the notion of war crimes is broader than that of grave breaches, although not so broad as to encompass all violations of international humanitarian law.Footnote 46 It is now clear that all serious violations of international humanitarian law amount to war crimes, which is therefore a broader category than grave breaches.Footnote 47 What is meant by ‘serious violations’? The expression appears in Articles 89–90 of Protocol I, and Article 90(2)(C)(i) appears to conceive of grave breaches as a sub-category of serious violations.Footnote 48 According to the ICTY Appeals Chamber, for a violation to be ‘serious’,
it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a ‘serious violation of international humanitarian law’.Footnote 49
This makes the material scope of war crimes fuzzier than the treaty-law definitions of grave breaches, which amounts to an advantage of the latter over the former.Footnote 50 However, not much remains of this advantage today, following the clarification of the material scope of war crimes in the jurisprudence of the ICTY, the long list of war crimes in Article 8(2)(b) of the ICC Statute, and the Elements of Crimes.
A comparison of the ICC Statute's Article 8(2)(a), on grave breaches, and Article 8(2)(b), on other war crimes, shows that there are factual situations to which both a grave breach and a war crime provision could apply. For instance, the grave breach of wilfully killing a prisoner of war in Article 8(2)(a)(i) is similar to the war crime of killing a combatant who has surrendered in Article 8(2)(b)(vi).Footnote 51 However, there are many factual situations constituting grave breaches that would not correspond to the definition of any other war crimes in the ICC Statute. For instance, the grave breach of taking hostages under Article 8(2)(a)(viii) is quite different from any war crime listed in Article 8(2)(b). The ICC Prosecution has filed charges based on the grave breaches of wilful killing and inhuman treatment, which were a better match for the alleged facts than any of the other war crimes provisions in the ICC Statute.Footnote 52 Consequently, as far as the actus reus of crimes is concerned, substantive grave breaches retain their relevance in comparison with other war crimes.
Mental state
Some grave breaches of the 1949 generation require that perpetration be ‘wilful’,Footnote 53 which is a less established legal term than ‘intent’, ‘criminal negligence’, etc. Protocol I applied the ‘wilful’ requirement to all new grave breaches.Footnote 54 At the Additional Protocols conference, the topic of mens rea for grave breaches was barely addressed.Footnote 55 This was in line with the original idea of leaving that matter to the domestic law of each state party to the Geneva Conventions.Footnote 56 The International Committee of the Red Cross (ICRC) has nevertheless posited that the term ‘wilful’ covers intentional and reckless conduct, but excludes negligence.Footnote 57 Certainly, with the adoption of Article 85(5) of Protocol I and the creation of substantive grave breaches, these had to have a mens rea in international law. Authors have disagreed on the interpretation of ‘wilful’.Footnote 58 The ICTY Appeals Chamber has adopted the above-mentioned position of the ICRC.Footnote 59
In customary international law, war crimes generally require intentional or reckless conduct.Footnote 60 Article 30 of the ICC Statute, which applies both to the grave breaches provisions in Article 8(2)(a) and the other war crimes provisions in Article 8(2)(b), requires intent, defined broadly to include awareness that a consequence will occur in the ordinary course of events, and knowledge, meaning ‘awareness that a circumstance exists or a consequence will occur in the ordinary course of events’. Notwithstanding the different terminology, this is hardly distinguishable from intent and recklessness.Footnote 61 Under Article 30(1), this general rule of mens rea defers to specific rules contained elsewhere. Some grave breaches provisions do indeed provide otherwise, requiring that conduct be ‘wilful’. At the ICC preparatory conference, there was a debate about whether ‘wilful’ had a broader meaning than the mens rea set forth in Article 30 of the ICC Statute, but the question remains for the case-law to answer.Footnote 62 This variation in terminology should not translate into real differences between the mens rea of war crimes and that of substantive grave breaches, as there is no clear textual or logical reason why they should be different. It is preferable not to create distinctions where none are needed.
At the ICC, there is an additional mental element to be proven for grave breaches compared with war crimes – the perpetrator's awareness of the factual circumstances that established the protected status of the victim or property.Footnote 63 Due to this additional mental element, substantive grave breaches carry a heavier burden of proof than other war crimes. Thus there is little reason to rely on substantive grave breaches rather than other war crimes as far as mens rea is concerned.
Personal scope
All states throughout the world are today party to the four Geneva Conventions, while 26 states are not party to Protocol I.Footnote 64 All states are UN members and as such bound by the ICTY and ICTR Statutes, adopted by the UN Security Council.Footnote 65 At 1 June 2008, 108 states were party to the ICC Statute.Footnote 66 Customary international criminal law and the jurisdictional provisions of the ICC Statute overlap to a great extent, even though the latter are occasionally narrower than the corresponding substantive rules.Footnote 67 Nevertheless, states that are not bound by the ICC Statute may contend that certain of its jurisdictional provisions do not reflect war crimes under customary law, in particular those inspired by Protocol I if they are not party to that convention either. Whether or not that argument would be correct in law, this is a practical reason to prefer relying on grave breaches of the 1949 generation, which are now an undisputed part of international law, rather than other less-established grave breaches or war crimes.
In terms of victims, all grave breaches are limited by the definitions of ‘protected persons’ and ‘protected property’ of their respective conventions.Footnote 68 Protocol I expanded the content of these categories, but stopped short of including the state party's own nationals among the protected persons.Footnote 69 The ICTY, on the other hand, has allowed protected status for victims who owe allegiance to, and are under the control of, an adverse party to the conflict, even if they share the same nationality as the perpetrators.Footnote 70 Whether the ICC will follow this broad interpretation remains for the case-law to decide.Footnote 71 The grave breaches provisions in the ICC Statute maintain the varying personal scopes of the original grave breaches provisions.Footnote 72 This translates into an additional element to be proven at the ICC for grave breaches compared with war crimes, namely that the injured person or property was protected under the Geneva Conventions.Footnote 73 In contemporary customary international law, the range of potential victims of war crimes is therefore broader than for substantive grave breaches.Footnote 74 Hence, where victims are concerned, it is always possible to charge an accused with a war crime rather than a substantive grave breach.
In terms of perpetrators, any physical person can carry out a war crime or a grave breach.Footnote 75 It is clear from the Geneva Conventions that a grave breach can only be perpetrated by someone from the other side in an armed conflict.Footnote 76 While there are no explicit provisions to confirm that the same holds true for war crimes in customary law, this must be the case, since international humanitarian law regulates the behaviour between opposing parties.Footnote 77 At the Additional Protocols conference, some concern was expressed that the possible perpetrators should be identified.Footnote 78 At the Rome Conference on the establishment of the ICC the issue was debated, but the idea of listing the potential perpetrators was abandoned.Footnote 79 Hence there are no differences between war crimes and grave breaches in terms of perpetrators.
Geographical scope
According to the ICTY Appeals Chamber, the application of international humanitarian law extends to ‘the whole territory of the warring States’.Footnote 80 This determines in principle the area in which war crimes may occur. The geographical scope of application of the Geneva Conventions covers, as can be seen for instance from Article 6(2) of the Fourth Geneva Convention and Article 3(b) of Protocol I, ‘the territory of Parties to the conflict’. This indicates in principle the geographical scope in which grave breaches may occur. While both war crimes and grave breaches can nevertheless, in certain circumstances, take place outside the territories of the opposing sides,Footnote 81 it is sufficient for our purposes to conclude that there is no difference between war crimes and grave breaches in terms of their geographical scope.
Temporal scope
As regards the time of the violation, the Geneva Conventions and Protocol I thereto apply 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.Footnote 82 Beyond this time, grave breaches are by definition excluded. As for war crimes, according to the ICTY Appeals Chamber international humanitarian law applies ‘from the initiation of […] armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached’.Footnote 83 This summary pronouncement should not be interpreted as differing in any significant way from the general rule laid down in the Geneva Conventions and Protocol I.Footnote 84 In other words, there are no general differences between war crimes and grave breaches in terms of their temporal application.
The situation is different as regards the time of applicability of the respective rules. Certain war crimes and grave breaches provisions may apply to the same acts insofar as both rules were in existence at the time the acts occurred. If they were not, that could create a significant difference between them. Indeed, the law of grave breaches and war crimes has not evolved in parallel. War crimes preceded grave breaches. The concept of war crime was introduced into multilateral international law in Article 228 of the 1919 Treaty of Versailles, but without a definition of these crimes.Footnote 85 In 1946, Article 5 of the Charter of the International Military Tribunal for the Far East took essentially the same approach, while Article 6 of the Charter of the Nuremberg International Military Tribunal provided a non-limitative list of war crimes but without further definition. Despite certain precursors,Footnote 86 the grave breaches provisions in the Geneva Conventions of 1949 were a novel idea.Footnote 87 They were supplemented in 1977 by Protocol I, and substantive grave breaches were created by virtue of Article 85(5) thereof. In 1993, Article 3 of the ICTY Statute featured a non-limitative list of war crimes that differed in part from that of Article 6 of the Nuremberg Charter. In 1998, the jurisdictional provisions of Article 8 of the ICC Statute reflected the minimum extent of the underlying customary crimes at the time.Footnote 88 Another major step was taken in 2005 with the publication of the ICRC's study on customary international humanitarian law, which also contained a section on war crimes in customary law.Footnote 89 Although theoretically it only laid out pre-existing law, in practice it greatly facilitated the practitioner's access to customary international criminal law. However, the study did not attempt to establish when these crimes appeared in customary law. All of this shows that certain acts or omissions committed at certain moments could qualify as war crimes but not grave breaches, or vice versa, due to the fact that only one of the two rules had evolved at that time. Above all, it shows the difficulty in establishing, for many points in time, whether a war crime or substantive grave breach existed in applicable law, given how hard it is to pinpoint when a customary rule comes into existence. In practice, the temporal scope is therefore unlikely to be a determining factor in deciding whether to charge an accused with a war crime or a substantive grave breach.
Modes of liability
The Geneva Conventions only provide for liability for the commission or ordering of procedural grave breaches.Footnote 90 Attempts were made to supplement these modes of liability in Protocol I.Footnote 91 Article 86 ended up introducing liability for failure to act when under a duty to do so, and superior liability for a failure to take all feasible measures to prevent or repress a breach committed by a subordinate if the superior knew or should have known about the breach. Modes of liability for war crimes, as developed by the ad hoc Tribunals (the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda) and further expanded upon in Article 25 of the ICC Statute, are much more comprehensive. At least since the ICC Statute, substantive grave breaches have the same modes of liability as other war crimes, as Article 25 applies equally to both. The current trend in international criminal law is therefore to make no distinctions between substantive grave breaches and other war crimes with regard to modes of liability.
Circumstances eliminating criminal liability
Circumstances eliminating criminal liability include justifications, excuses, amnesties, pardons, statutes of limitation, immunities, and the rule non bis in idem. There are no primary sources of international law suggesting any differences between grave breaches and war crimes in this regard, and there is no logical reason why there should be any. Notably, Articles 29 and 31–33 of the ICC Statute make no such distinctions. Consequently, there is no difference in international criminal law between grave breaches and war crimes when it comes to circumstances eliminating criminal liability.
As far as scope is concerned, there are thus few reasons to rely on grave breaches rather than war crimes. Substantive grave breaches cover some conduct not covered by other war crimes, but this is only relevant insofar as there are other differences in their respective legal regimes. Such differences do exist, but they favour war crimes. Only for substantive grave breaches must it be proven that the perpetrator knew that the victim belonged to an adverse party and that the injured person or property was protected under the Geneva Conventions. Grave breaches are also limited to international armed conflict, while many war crimes apply in other types of armed conflict as well. Substantive grave breaches of the 1949 generation have only one clear advantage, namely that the relevant provisions are accepted by, and clearly binding upon, all states. However, this has nothing to do with their origin as grave breaches, since several grave breaches of the 1977 generation remain highly controversial, while the qualification of many acts as war crimes is well accepted today. Procedural grave breaches are in many ways less fully formed in contemporary international law than substantive grave breaches and other war crimes, but this is because they are a mere skeleton to be fleshed out in domestic criminal law. Their procedural regime is, in comparison, well defined.
Does the procedural regime of grave breaches justify their maintenance?
The grave breaches procedural regime includes three basic obligations: (1) enact penal legislation; (2) search for suspects; and (3) judge them or hand them over for trial elsewhere.Footnote 92 Does the procedural regime applicable to war crimes fall significantly short of this? In order to answer this question, we will examine in turn the respective rules on legislation, investigation and adjudication of grave breaches and war crimes.
Legislate
Under common Article 49/50/129/146 of the four Geneva Conventions, States Parties ‘undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention’.Footnote 93 In contrast, there is a conspicuous absence in the ICC Statute of any provision obliging States Parties to enact domestic war crimes legislation corresponding to Article 8(2) of the Statute. However, if a state wishes to maintain jurisdiction over ‘its’ cases, it must avoid being deemed ‘unwilling or unable genuinely to carry out the investigation or prosecution’ by the ICC under Articles 17 and 18. To do so, it must incorporate the war crimes jurisdictional provisions of Article 8(2) in its own domestic legislation and make sure that it is able to effectively investigate and prosecute on this basis.Footnote 94 As a matter of law, there is a significant difference between the obligation to legislate for grave breaches and the option to do so for war crimes, although the state must at least provide active nationality and territorial jurisdiction for war crimes.Footnote 95 In practice, the perceived threat to the sovereignty of a state that the ICC might take over ‘its’ criminal cases appears to motivate states to enact war crimes legislation pursuant to the ICC Statute more fully than they were ever willing to enact grave breaches legislation pursuant to the Geneva Conventions and Protocol I thereto.Footnote 96 A state party to the ICC Statute would also need to include in its domestic legislation all the modes of liability contained in Article 25, which go well beyond the Geneva Conventions. Although Articles 17 and 18 do not explicitly require ‘effective penal sanctions’, this must be considered an implicit requirement in light of the object and purpose of the ICC Statute.Footnote 97 In practice, what prevents grave breaches from becoming redundant as far as criminal legislation is concerned is that significantly fewer states are party to the ICC Statute than to the Geneva Conventions and Protocol I.Footnote 98 Furthermore, some grave breaches of the 1977 generation are not, or not fully, included in the ICC's jurisdiction, so the corresponding legislative obligations in Protocol I remain relevant.Footnote 99 These discrepancies are likely to diminish over time as more states become party to the ICC Statute and the ICC's jurisdiction is expanded through revisions of its Statute.
Search and investigate
With regard to grave breaches, common Article 49/50/129/146 of the four Geneva Conventions provides that States Parties ‘shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches’.Footnote 100 With regard to war crimes, States party to the ICC Statute have, as seen above, a strong incentive to effectively investigate and prosecute.Footnote 101 In contemporary customary international law, ‘States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.’Footnote 102 Thus while customary law requires a criminal investigation into war crimes, the Geneva Conventions require a search for grave breaches suspects. This difference makes some sense in light of the different scopes of the two obligations. For war crimes, the obligation is potentially limited to active nationality and territorial jurisdiction (unless the state's law gives its courts jurisdiction on other bases too). The state exercising such jurisdiction will generally be an appropriate state for opening criminal investigations. By contrast, the procedural grave breaches regime extends the obligation to search to any state party, at least if and when the suspect is on its territory.Footnote 103 Not every state can, or should, open a criminal investigation, but it can keep a lookout for the suspect if he or she enters its territory. In this area, grave breaches therefore carry a broader but less demanding obligation than war crimes.
Judge or hand over
Common Article 49/50/129/146 of the four Geneva Conventions provides that states parties ‘shall bring [persons alleged to have committed, or to have ordered to be committed, grave breaches], regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.’Footnote 104 The state detaining a grave breaches suspect thus has a limited choice between either trying the suspect or handing him or her over to another state for the purpose of trial (aut dedere aut judicare). This system requires States Parties to incorporate universal jurisdiction over grave breaches in their domestic law.Footnote 105 In contemporary customary international law, ‘States have the right to vest universal jurisdiction in their national courts over war crimes’.Footnote 106 If a state has jurisdiction over a war crimes suspect, it must prosecute him or her.Footnote 107 Thus from the perspective of domestic criminal jurisdiction, grave breaches carry mandatory universal jurisdiction, while other war crimes carry permissive universal jurisdiction. This is a significant difference in theory, as a state must prosecute or hand over a person accused of a grave breach, while the state would be legally entitled under international law not to assert jurisdiction over war crime suspects other than on the basis of territoriality or active nationality. In practice, however, states have often failed to give themselves the necessary bases for jurisdiction over procedural grave breaches. Where an international court has jurisdiction, this difference between grave breaches and war crimes disappears.Footnote 108
Conclusion
These procedural differences between war crimes and grave breaches might in theory maintain the importance of the latter in international law. However, the procedural grave breaches system of the Geneva Conventions and Protocol I was barely put into practice until the 1990s, owing to huge practical, legal and/or political difficulties regarding handover and prosecution.Footnote 109 At the same time, there was also scant war crimes litigation beyond the aftermath of the Second World War.
Things changed with the adoption of the ICTY Statute in 1993. Grave breaches came to serve as a major building block of international criminal law at a time when people were grasping at straws to put this body of law together. Once grave breaches had fulfilled this purpose, they were abandoned in ICTY practice. However, substantive grave breaches are not defunct before international or mixed courts. The ICC Prosecution has recently filed charges that include counts based on grave breaches provisions in the ICC Statute.Footnote 110 Investigating judges of the Extraordinary Chambers in the Courts of Cambodia have recently charged Kaing Guek Eav (‘Duch’) with grave breaches rather than war crimes.Footnote 111
The ground swell initiated by the ICTY also revived the original intent of the grave breaches regime. For the first time, national courts heard cases based on grave breaches. Other charges brought before domestic courts were based on war crimes, which generally have a more practical legal regime. However, the idea that these courts could hear such cases with little or no link to the alleged crimes originated from the doctrine of universal jurisdiction over grave breaches.
Today, grave breaches provisions, at least those of the 1949 generation, remains privileged as tried and true black-letter law, compared with the nebulous customary law origins of war crimes. At the same time, this has arrested the development of the grave breaches laid down in the Geneva Conventions and Protocol I, whereas the more dynamic war crimes have evolved and adapted to new realities. With time, war crimes will no doubt become as well accepted in law as grave breaches. They will benefit from clear definitions, yet retain the advantage of adapting to the evolution of international customary law. Any comparative advantage of grave breaches will fade away. The real value of grave breaches may therefore be historical, as a stepping stone towards broader and better conceived rules governing war crimes. Grave breaches are becoming part of this war crimes regime, in the shape of substantive grave breaches. They will leave a lasting mark, which eventually the observer may only recognize if he or she knows what to look for.