Franỗoise J.Hampson
As for the Geneva Convention [sic], I think it should be done away with at once. It has never been adhered to and to solemnly lay down rules for war merely adds credence to the notion that killing is some sort of manly sport.
(Beryl Bainbridge, London Evening Standard, 21 February 1991)
INTRODUCTION
On 25 September 1990, following the occupation of Kuwait, the United Nations Security Council confirmed the liability of Iraq and individual Iraqis for grave breaches of Geneva Convention IV of 19491 and invited states to collect substantiated information about grave breaches and submit it to the Security Council.2 The claim of international law is that, irrespective of the lawfulness of the resort to armed force, during an armed conflict or military occupation rules of law regulate the conduct of parties to the conflict.3 The United Nations and its members were asserting that both individuals and the state could be held responsible in international law for the violation of those rules.
The origins of the idea are respectably ancient4 but the most famous recent example of proceedings based in violations of the laws of war are the Nuremberg and Tokyo War Crimes Trials.5 The court martial of Lieutenant William Calley for his part in the My Lai massacre suggests that what is at issue can properly be described as law, and not merely as victors’ justice masquerading as law.
This chapter will consider what is meant by ‘war crimes’ and who can be held legally responsible for such actions. Acts alleged to have been committed in three different situations will be considered, with a view to establishing whether they constitute war crimes. The first situation is the Iraqi occupation of Kuwait; the second, the action of the Iraqi forces during the course of hostilities between them and the coalition forces, and third, the actions of the coalition forces themselves. Finally, brief consideration will be given to the desirability and/or practicability of subjecting those accused to trial either by a domestic court or by an international tribunal, created for the purpose.
‘WAR CRIMES’
Article 6 (b) of the Nuremberg Charter defined war crimes as ‘violations of the laws or customs of war’.7 This distinguished war crimes in the strict sense of the term from other concepts such as crimes against humanity or crimes against peace. The latter were
included in the charges laid against some of the defendants in the Nuremberg Trial.8 Such charges can aptly only be laid against the political leadership of a state.9 This chapter will be concerned with war crimes only in the strict sense.
‘Violations of the laws and customs of war’ potentially cover a very wide range of different types of violations. At the lowest level, the commandant of a prisoner-of-war camp is technically in violation of Geneva Convention III if he fails to display a copy of the Convention in the language of the prisoners.10 Further up the scale is the use of a weapon that causes ‘unnecessary suffering or superfluous injury’ to a small number of enemy combatants, or an attack against a relatively insignificant military objective during which fifty civilians are killed. At the top of the scale would be a wilful attack on civilians or on a hospital. All these represent, or may represent, violations of the laws or customs of war, but are they ‘war crimes’?
It is necessary to distinguish between two discrete issues. The first is the definition of war crimes and the second is the consequences which flow from the characterization of an act as a war crime. It is submitted that, whilst all violations of the laws or customs of war are war crimes, the consequences vary depending on the type of war crime involved.
There are at least three different types of war crimes. There are first ‘grave breaches’ of the Geneva Conventions of 1949. Then there are ‘serious breaches’ of the Geneva Conventions and of other applicable laws and customs. Finally, there are minor breaches of the rules. These three groups are distinguished not merely by the quality of the action involved and the numbers affected, but by the legal consequences which flow from the actions.
‘Grave breaches’
This is a technical term applied to certain breaches of the Geneva Conventions of 1949 and Protocol I of 1977.11 It, therefore, does not apply to breaches of the Regulations annexed to Hague Convention IV of 1907, however serious the violation in terms of the suffering caused or the number affected, unless the action is also a ‘grave breach’ of the Geneva Conventions. It similarly does not apply to violations of other rules, whether found in treaties or customs.
The actions defined as ‘grave breaches’, in the four Conventions at least, have two things in common. They must be performed wilfully or, at the very least, intentionally and against the different groups of ‘protected person’ protected by each Convention. The actions can constitute a grave breach where only one person is affected by them, but the mental element required is likely to mean that the act forms part of a practice which, in turn, means it is likely to affect many people at one time or to be repeated. Article 11 (4) of Protocol I extends the concept by expressly applying both to certain wilful acts or omissions, while Article 85 includes conduct forming part of the hostilities.
The High Contracting Parties to the Geneva Conventions are under an obligation ‘to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed’ a grave breach of the Convention. They are also obliged ‘to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.’ It can hand over a suspect for trial by another party. In other words, there is no need for a connecting factor between the suspect and the country
in which he is made to stand trial. Furthermore, the state will be in breach of its obligations if it does not ensure that its courts have jurisdiction in such circumstances.12
‘Serious’ violations of the Geneva Conventions
As a term of art, the concept of a ‘serious violation of the Conventions or of… Protocol [I]’ is found in Article 90 of Protocol I of 1977, where the recently established International Fact-Finding Commission has jurisdiction to ‘enquire into any facts alleged to be a grave breach…or other serious violation’ of the Conventions or Protocol.13
The Geneva Conventions themselves divide breaches into ‘grave breaches’ and ‘all acts contrary to the provisions of the present Convention other than the grave breaches’
as defined.14 The obligation with regard to other breaches is merely that parties ‘shall take measures necessary for the suppression of all acts contrary to the provisions’ of the Conventions. Whilst this may include legislative provision enabling the state to punish alleged offenders, it is more clearly directed to preventive measures and to putting an end to conduct and activities which are contrary to the provisions of the Conventions. This suggests that the obligation is primarily concerned with the state’s actions in relation to those over whom it has control at the time, notably its own forces.
It has been suggested that ‘since the grave breach provisions encompass all the more serious war crimes, it seems likely that, in future, war crimes trials will be limited to grave breaches’.15 In the Gulf conflict, however, serious war crimes were committed which did not amount to grave breaches. If states wish to ensure that any party can punish such violations, it is necessary to define punishable war crimes more broadly than as
‘grave breaches’. It may nevertheless be thought inappropriate to institute criminal proceedings in relation to every violation of the laws or customs of war. In that case, some formulations such as ‘serious violations’ may need to be adopted, or Starke’s proposal that punishable violations should be limited to acts condemned by the common conscience of mankind by reason of their brutality, inhumanity or wanton disregard for property rights unrelated to reasonable military necessity.16
Other violations of the laws or customs of war
As seen above, High Contracting Parties are obliged to take measures necessary for the suppression of all acts contrary to the Geneva Conventions, even if they represent neither
‘grave breaches’ nor ‘serious violations’. The obligation is that of the state. The Conventions do not provide for an internationally recognized personal criminal responsibility in such cases. In implementation of its obligations, the state is likely to make such acts punishable under its criminal law, or subject to disciplinary proceedings or criminal sanctions under military law.
Similarly, the state is held responsible for breaches of other treaties dealing with belligerent rights. Under the 1907 Hague Convention IV, for example, ‘A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.’17 This is reinforced by the stipulation that ‘Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them.’18 State responsibility is tortious or delictual in character, not criminal.
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This suggests that any violation of the laws or customs of war may be a ‘war crime’, in the sense of an internationally recognized wrong. ‘Grave breaches’ of the Geneva Conventions and ‘serious violations’ of the laws or customs of war entail individual criminal responsibility and state responsibility for an international delict. Other violations of the laws or customs of war only entail state responsibility, but this is without prejudice to the right of the state to punish the individuals concerned if the action was in breach of national criminal or military law.19
It is necessary to mention briefly another feature of the law relating to individual criminal responsibility. An alleged ‘serious violation’ or ‘grave breach’ is usually claimed to have been carried out by a small group within the armed forces. Armed forces are characterized by their rigid command structures.20 Those alleged to have committed a
‘grave breach’ may claim that they were ordered to do so. Conversely, it may be argued that their commanders knew what was going on and did nothing to prevent it. These situations raise the following questions: is there a defence of ‘superior orders’? What is the scope of the obligation of a commander; in particular, is he criminally liable where either he knew of the commission of a grave breach and did nothing to prevent it or where he did not know but ought to have known of a likely commission of a grave breach?
Given the limitations of space, it is necessary to proceed by way of assertion, rather than discussion. The British position on the question of superior orders seems to have changed during the course of the Second World War.21 At the outset, it was recognized that superior orders could constitute a defence. By the end of that war and by the time the Nuremberg Tribunal was sitting, superior orders did not constitute a defence but might be relevant in mitigation of sentence. The individual is required not to obey orders which are patently illegal.22 That appears to be the current position.23
The question of command responsibility was a central issue in the Yamashita trial.24 On the basis of that case, it would appear that a commander is responsible for grave breaches of which he had knowledge or of which he ought to have had knowledge. The former may present problems of proof on the facts, but the latter also raises a variety of legal difficulties. It could be argued that a commander should only be responsible where the facts were of sufficient notoriety or involved breaches on such a scale that alleged ignorance of the violations must, in effect, have been wilful. At the other end of the spectrum, a commander could be held responsible for failing to institute effective mechanisms to prevent violations and to ensure that any possible breach was reported to him.
The provisions of the Geneva Conventions on criminal responsibility only require proceedings to be brought against those who commit grave breaches or who order their commission. Nevertheless, the obligation of states to ‘take measures necessary for the suppression of all acts contrary to the provisions’ of the Conventions and to disseminate the provisions of the Conventions, particularly in programmes of military instruction, and to ensure that those who, in war, will have ‘responsibilities in respect of protected persons’ are instructed as to the legal provisions, all suggest that there is an obligation to prevent violations. That requires the institution of effective mechanisms to enable a commander to take action where there is a risk of violations.25
The situation is clarified in Additional Protocol I. The treaty, which was not applicable during the Gulf War since neither Iraq nor the US or UK were formally parties to it,
makes it clear that responsibility can result from a failure to act. Under Article 86, superiors are not absolved from responsibility if
they knew, or had information which should have enabled them to conclude in the circumstances at the time [the subordinate] was committing or was was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.
Article 87 of the Protocol goes on to spell out the duty of commanders ‘to initiate such steps as are necessary to prevent violations and to initiate disciplinary or penal action in the case of alleged violations’. It is submitted that Protocol I is, in this respect, merely reiterating the essence of the requirements of customary international law, as reflected by the Yamashita Case26 and the investigation into the Sabra and Shatilla Camp Massacre21 and which is contained, by necessary implication, in the Geneva Conventions themselves.
It is now possible to examine the three situations which arose in the conflict in the Gulf, with a view to determining whether war crimes were committed and, if so, of what type.
THE IRAQI OCCUPATION OF KUWAIT
The Geneva Conventions became applicable between Iraq and Kuwait on 2 August 1990.28 It is submitted that the relevant provisions of Hague Convention IV also became applicable on that date by virtue of the de facto conflict and subsequent occupation.29
Protected persons
Most of the protection afforded by the Fourth Geneva Convention applies to ‘protected persons’. These are persons ‘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.’30 This definition means that Kuwaitis, foreigners and stateless Palestinians who were long-term residents of Kuwait were
‘protected persons’.
British citizens in Kuwait were ‘protected persons’.31 The British citizens in Kuwait at the time of the invasion included military personnel seconded for service with the Kuwaiti armed forces as military advisers.32 They were not part of the Kuwaiti armed forces. In those circumstances, and assuming that they did not take a direct part in any hostilities against Iraq, they would not qualify as prisoners of war:33 they would have to be treated as ‘civilians’ and protected persons under Geneva Convention IV. They were eventually allowed to return to the United Kingdom before the outbreak of hostilities.34
‘Protected persons’ deported to Iraq retained that status whilst in the power of that same belligerent. They could only lose that status by ceasing to be within its power, either by returning to their home state or by coming into the power of a different, non- belligerent, state.
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The status of British citizens who were at all times in Iraq is less clear. They became
‘protected persons’ upon the outbreak of hostilities on the night of 16/17 January 1991, but a question remains as to their status between 2 August 1990 and the outbreak of hostilities. Article 4 of the Fourth Geneva Convention goes on to provide that ‘nationals of a neutral State..shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.’
The United Kingdom did not break off diplomatic relations with Iraq until January 1991.
On the one hand, they could be said to have been nationals of a neutral state in the territory of a party to the conflict (not occupied territory) with which their home state had diplomatic relations.35 On the other hand, it could be argued that the United Kingdom did not have ‘normal’ diplomatic representation in Iraq in that period, or that the Convention became applicable once the United Kingdom was identified as a government ‘co- operating with the Government of Kuwait’.36
Under Geneva Convention IV, the most important provisions concerning protected persons include:
1 The right to humane treatment and protection from violence and of the honour of women (Article 27).
2 Protected persons may not be used to render areas immune from military operations (Article 28).
3 Protection from reprisals and from punishment for offences they have not personally committed (Article 33).
4 The taking of hostages is prohibited (Article 34).
5 Individual or mass forcible transfers and deportations of protected persons to the territory of the occupying power or to any other country are prohibited (Article 49).
6 The right to leave the territory of the power in whose hands they are (Article 35) or occupied territory (Article 48). The only restrictions on their right to leave are those which may be imposed if their departure would be contrary to the national interests of that power (Article 35) but, if so, there must be proper procedures and the restrictions cannot be exercised in an arbitrary manner.37
The prohibition of the taking of hostages in Geneva Convention IV is absolute. It has been argued that it was previously lawful, in certain limited circumstances, to take and kill hostages and reprisal prisoners in occupied territory.38 Article 34 of Geneva Convention IV was specifically designed to put an end to the practice of the two World Wars when hostages ‘were imprisoned, often put in solitary confinement, deported and in many cases executed without previous warning or trial’.39
In connection with the prohibition on using protected persons to render areas immune from military operations, Pictet explains that it was designed to prevent the belligerents from ‘compelling civilians to remain in places of strategic importance (such as railway stations, viaducts, dams, power stations or factories), or to accompany military convoys, or again, to serve as a protective screen for the fighting troops’.40
The taking of protected persons as hostages, and their unlawful confinement, are grave breaches of the Convention, as is wilfully causing death, injury or suffering to a protected person. Using them to render certain areas immune from military operations might be regarded as evidence of ‘wilfully’ causing any resultant harm. An order to perform an action which amounted to a grave breach might be regarded as patently illegal.