#17209 - International Humanitarian Law Implementation And

Implementation and Accountability 2

Domestic Obligations under IHL 2

Additional Protocol I, Art. 82 2

Geneva Convention IV, Art. 146 2

Geneva Convention IV, Art. 147 2

Legal Advisor 2

Grave Breaches 2

International Human Rights Law 3

Co-application 3

Note on citations:

For treaties, I have used an abbreviation, followed by a period and the article number. Thus Geneva Convention IV, Article 42 becomes “GC4.42.” Article 2 Common to the Geneva Conventions becomes GC.CA2. The Hague Regulations are HR, and the Protocols Additional to the Geneva Conventions are AP1 & AP2.

Citations in the form “HB000” refer to section numbers in Fleck, The Handbook of International Humanitarian Law (3rd ed.).

I’ve also cited certain academic articles, commentaries and government documents:

ILA-Sydney refers to the International Law Association’s 2018 Sydney Conference Report on the Use of Force.

Sassòli refers to Marco Sassòli’s 2015 article “Combatants” in the Max Planck Encyclopedia of Public International Law.

DoD refers to the US Department of Defense Law of War Manual (Dec. 2016 Update).

ICRC guidance on civilians directly participating in hostilities refers to Nils Melzer (ICRC) Interpretive Guidance (2009).

Lubell refers to Noam Lubell, “Fragmented Wars: Multi-Territorial Military Operations Against Armed Groups” 93 International Legal Studies 215 (2017).

The High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject.

The High Contracting 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 defined in Art. 147.

Each High Contracting Party shall be under the obligation 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 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.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in Art. 147.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Art. 105.

Grave breaches to which Art. 146relates shall be those involving any of the following acts, if committed against persons or property protected by the present 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.

AP1.82: requires parties to conflict ‘ensure legal advisors are available, when necessary, to advice commanders.’

GC4.146: obliges states to enact any legislation necessary to provide effective penal sanctions for persons committing or ordering any of the grave breaches in GC4.147. Also obliges states to search for and try or extradite persons alleged, and to take all measures necessary for suppression of grave breaches.
- There is no grave breaches regime in NIACs, just the Rome Statute.
GC4.147: defines grave breaches to include willful killing, torturing, causing suffering, deporting, conscripting, unfairly trying, taking hostage protected persons; and extensive, wanton, unlawful destruction of property not justified by military necessity.
AP1.85: adds other grave breaches, including medical experimentation, attacking civilians, indiscriminately, attacking dangerous works, hors de combat, non-defended localities or demilitarized zones; perfidy, transfer and deportation, delaying repatriation, attacking cultural heritage.
AP1.86: commission of a grave breach by a subordinate does not absolve superiors from penalty if they knew or should have known ahead of time.
AP1.87: commanders have a duty to prevent and report breaches.

#17209 - International Humanitarian Law Implementation And Accountability - International Humanitarian Law / Law of Armed Conflict

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