Title: “The fourth Geneva Convention forms an important contribution to written International law in the Humanitarian domain.
Abstract
The Geneva Conventions form part of what are generally called the laws and customs of war, violations of which are commonly called “war crimes”.
The punishment of infringements of the laws and customs of war is not completely new. During the XVIIIth and XIXth centuries some examples can be found of sentences punishing such infringements, but they were rare and did not form a body of precedent. The codification of the laws of war, which began in Geneva in 1864 and was continued in The Hague in 1899 and 1907, did not lead to the drawing up of international regulations on the punishment of war crimes.
INTRODUCTION
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians in a war zone, and outlaws the practice of total war. There are currently 194 countries party to the 1949 Geneva Conventions, including this and the other three treaties.
In 1993, the United Nations Security Council adopted a report from the Secretary-General and a Commission of Experts which concluded that the Geneva Conventions had passed into the body of customary international law, thus making them binding on non-signatories to the Conventions whenever they engage in armed conflicts. the Fourth Hague Convention of 1907 concerning the Laws and Customs of War on Land stipulated, in Article 3 that a belligerent Party which violated the provisions of the Regulations annexed to that Convention would, if the case demanded, be liable to pay compensation and would be responsible for all acts committed by persons forming part of its armed forces. The liability of the belligerent State was, however, purely pecuniary. The various States were left entirely free to punish or not acts committed by their own troops against the enemy or by enemy troops in violation of the laws and customs of war. In other words, punishment depended solely on the existence or absence of national legislation for the punishment of the acts committed.
At the end of the First World War, however, the system hardly seemed satisfactory and the Versailles Treaty embodied provisions for the punishment of nationals of the vanquished countries who had committed against the Allied troops acts contrary to the laws and customs of war. The result of this provision in the Versailles Treaty and the Leipzig judgments arising from it are well known.
It was mainly during the Second World War and the years which followed it that the problem of punishing war criminals arose. The very numerous violations of the laws of war committed during the war had made the question an urgent one, which engaged the attention of public opinion and the authorities in the various countries.
The absence of any international regulation of this matter and the small number of national laws concerned with it led most States to pass special legislation to punish the war crimes committed by the enemy against their people and troops. Although in most cases public opinion considered it normal and fair to punish those who were condemned on the basis of these laws, there remained a certain feeling of uncertainty as to whether the verdicts given were lawful or not. Furthermore, the various penal systems are not based on the same principles. In the Anglo-Saxon countries in general, it seems that the existence of a rule of international law, whether in writing or merely customary, even if it does not include mention of penalties, enables the courts of the country to condemn those who have violated that rule, whereas in other countries, particularly on the Continent, penal law, if it is to be applicable, must include not only formal regulations but also provisions determining the nature and seriousness of the punishment. In these countries, the saying
‘ nulla poena sine lege ‘ remains fully valid.
Whatever the opinion held on the punishments inflicted after the Second World War, it would have been more satisfactory to be able to rely on already existing rules without having been obliged to have recourse to special measures.
‘ The 1949 Convention and the preparatory work ‘
The events of the Second World War led the International Committee of the Red Cross to the conclusion that any international convention dealing with laws and customs of war must necessarily include a chapter concerned with the punishment of violations of the Convention. Its opinion on that point was confirmed by the numerous requests for intervention it received on behalf of prisoners accused of war crimes who, as stated above, were tried under special legislation, since no laws for the punishment of war crimes had been drawn up in the ordinary way before the opening of hostilities. Moreover, the International Committee could not remain deaf to the arguments of those who claimed that complete and faithful application of the Conventions could only be founded on the infliction of effective punishment on those violating them.
The International Committee therefore, although it naturally had a dislike of suggesting measures of punishment, drew the attention of the conferences of experts held in Geneva in 1946 and 1947 to this important problem. The conferences recommended that the Committee should pursue its studies even more thoroughly.
In 1948, the International Committee presented to the XVIIth International Red Cross Conference the following draft Article.
“The Contracting Parties shall be under the obligation to search
for persons charged with breaches of the present Convention, whatever
their nationality. They shall further, in accordance with their
national legislation or with the Conventions for the repression of
acts considered as war crimes, refer them for trial to their own
courts, or hand them over for judgment to another Contracting Party.”
That Article, therefore, provided that certain violations of the Convention would be considered as war crimes and defined the manner in which the guilty would be punished. The formula adopted was based on the principle ‘ aut dedere aut punire ‘, often used as the basis of extradition. When presenting this text to the Conference, the International Committee emphasized that its studies of the problem of punishment were still incomplete; it intended to pursue them particularly because of the development of punishment for war crimes by a considerable number of countries and the United Nations themselves.
PENAL SANCTIONS: GENERAL OBSERVATIONS
This Article is the cornerstone of the system used for the repression of breaches of the Convention. That system is based on three essential obligations laid upon each Contracting Party: to enact special legislation; to search for persons alleged to have committed breaches of the Convention; to bring such persons before its own courts or, if it prefers, to hand them over for trial to another High Contracting Party concerned.
The provision also refers to the list of grave breaches given in Article 147 and ends with the statement of the safeguards of proper trial and defence by which accused persons shall benefit.
SPECIAL LEGISLATION
It is desirable that States which have ratified the Convention or acceded to it should take without delay the necessary steps to fulfil their obligations under Article 146. This task of adapting penal law for the punishment of breaches of the Convention is certainly a complex one and will often require long and thorough study.
For that reason, the International Committee, when the four Geneva Conventions of 1949 were adopted, expressed the wish to draw up a model law, on which the national legislation in various countries could be based and which would also have the advantage of creating a certain uniformity of legislation.
Generally speaking, the Geneva Conventions become applicable when one of the situations listed in Articles 2 and 3 occurs — i.e. in case of war, occupation or civil war. However, Article 146 is one of those which must be put into effect in peace-time in anticipation of those situations. The laws to be enacted on the basis of this paragraph should, in our opinion, fix the nature and length of the punishment for each offence, on the principle of making the punishment fit the crime. It should not be left to the discretion of the judge
Paragraph 1 refers to Article 147 which lists the breaches considered as grave. The list will be discussed in the commentary on Article 147
According to Article 146, the penal sanctions to be provided will be applicable to persons who have committed or ordered to be committed a grave breach of the Convention, thus establishing the joint responsibility of the author of an act and the man who orders it to be done. It will be possible to prosecute them both as accomplices. There is no mention, however, of the responsibility which might be incurred by persons who do not intervene to prevent or to put an end to a breach of the Conventions. In several cases of this type the Allied courts brought in a verdict of guilty. In view of the Convention’s silence on this point, it will have to be determined under municipal law either by the enactment of special provisions or by the application of the general clauses which may occur in the penal codes.
In the proposals it submitted to the Diplomatic Conference on the basis of the advice of the experts it had consulted, the International Committee of the Red Cross had put forward a special Article dealing with the effect of having acted under superior orders on the guilt of a person who has committed a criminal offence. The Diplomatic Conference did not approve the Article and it was left to national legislation to deal with the matter. Many military penal codes contain clauses on the subject but there are some which do not. In any case, it is to be hoped that a person committing an offence under orders or in application of general instructions will be treated in the same manner, whether he is an enemy alien or a national of the country concerned. The International Law Commission of the United Nations, which considered the problem when it was drawing up its draft Code of Offences against the Peace and Security of Mankind, after long discussion first evolved the following principle: “The fact that a person charged with an offence defined in this Code
acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him”. (Report of the International Law Commission covering its Third Session.) Later, on the basis of comments by governments, the Commission changed this wording to provide that the accused would be responsible under international law only if, in the circumstances, it was possible for him to act contrary to superior orders.
The conclusions of the International Law Commission are very close to the proposals of the International Committee of the Red Cross, which had recommended that in assessing responsibility, it should be enquired whether the accused person could or not have reasonably been aware that he was taking part in a violation of the Convention. The International Law Commission preferred the concept of possible choice, which is much wider since it covers not only the cases where the accused has committed an offence but also those in which he acted under moral or physical coercion.
SEARCH FOR AND PROSECUTION OF PERSONS WHO
HAVE COMMITTED GRAVE BREACHES
The obligation on each State to enact the legislation necessary implies that such legislation should extend to any person who has committed a grave breach, whether a national of that State or an enemy. The laws in a number of countries which already provide for punishment of any breaches of the Geneva Conventions committed by their own nationals should be amended to cover this point.
The obligation on the High Contracting Parties to search for persons accused to have committed grave breaches imposes an active duty on them. As soon as a Contracting Party realizes that there is on its territory a person who has committed such a breach, its duty is to ensure that the person concerned is arrested and prosecuted with all speed. The necessary police action should be taken spontaneously, therefore, not merely in pursuance of a request from another State. The court proceedings should be carried out in a uniform manner whatever the nationality of the accused. Nationals, friends, enemies, all should be subject to the same rules of procedure and judged by the same courts. There is therefore no question of setting up special tribunals to try war criminals of enemy nationality.
Extradition is restricted by the municipal law of the country which detains the accused person. Indeed, a rider is deliberately added: “in accordance with the provisions of its own legislation”. Moreover, a special condition is attached to extradition. The Contracting Party which requests the handing over of an accused person must make out a ‘ prima facie ‘ case against him. There is a similar clause in most of the national laws and international treaties concerning extradition. The exact interpretation of “‘ prima facie ‘ case” will in general depend on national law, but it may be stated as a general principle that it implies a case which, in the country requested to extradite, would involve prosecution before the courts.
Most national laws and international treaties on the subject refuse the extradition of accused who are nationals of the State detaining them. In such cases Article 146 quite clearly implies that the State detaining the accused person must bring him before its own courts.
Furthermore, this paragraph does not exclude handing over the accused to an international criminal court whose competence has been recognized by the Contracting Parties. On that point, the Diplomatic Conference specially wished to reserve the future position and not to raise obstacles to the progress of international law .
PROCEDURAL GUARANTEES
The procedural guarantees listed in the Convention reproduce and develop those contained in the 1929 Prisoners of War Convention (Articles 60 -67).
The intervention of the Protecting Power and its right to be present at the hearings and to ensure that the accused persons are properly defended were mentioned in that Convention. It is by virtue of those provisions that in the post-war years the International Committee of the Red Cross has been able, in the absence of Protecting Powers, to intervene in cases of numerous prisoners accused of war crimes. It has even been called upon sometimes to assist them in legal proceedings. Some countries, such as France, have given the Committee certain facilities for carrying out such activities. The experience gained has shown the need for persons accused of war crimes to have the benefit in every case of certain procedural guarantees and the right of free defence. These guarantees are needed in particular when the accused person is tried by an enemy court. For that reason, in the draft it had submitted to the Diplomatic Conference, the International Committee had suggested a special Article to deal with the matter. At first the proposal met with
some objections; many of the delegates thought that it should be left to the national legislation of each country to settle the point. It was pointed out, furthermore, that most of the accused tried by the enemy are prisoners of war and that Article 85 of the Third Geneva Convention would automatically, therefore, give them the benefit of adequate guarantees in view of their prisoner-of-war status. The French delegation, however, realizing the importance of applying the same system to all accused whatever their personal status, proposed during the discussions held in the joint Committee that the present paragraph should be adopted. The joint Committee’s approval was endorsed by the Conference
Conclusion
This Article is the cornerstone of the system used for the repression of breaches of the Convention. That system is based on three essential obligations laid upon each Contracting Party: to enact special legislation; to search for persons alleged to have committed breaches of the Convention; to bring such persons before its own courts or, if it prefers, to hand them over for trial to another High Contracting Party concerned.
The provision also refers to the list of grave breaches given in Article 147 and ends with the statement of the safeguards of proper trial and defence by which accused persons shall benefit.
References
Book : Commercial Law and Industrial Law By Arun Kumar Sen
http://www.icrc.org/ihl.nsf/COM/380-600168
Wikipedia : http://en.wikipedia.org/wiki/4th_Geneva