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Penal Sanctions in Humanitarian Law
The System of Sanctions Established by the Geneva Conventions
The penal and disciplinary sanctions that can be imposed by a detaining power or by an occupying power in times of conflict are regulated by the judicial guarantees determined by humanitarian law. ▸ Judicial guarantees
The Geneva Conventions establish a specific system of penal sanctions to punish violations of international humanitarian law, whether committed by individuals, administrations, or organizations dependent on a government.
Violations of humanitarian law are acts carried out by combatants, acting either on orders or on their own volition. These violations occur where normal public order can no longer be guaranteed. Yet, in such situations force is used on behalf of commanding officers—or at least under the authority of these superiors. The rules balance the principle of authority against the principle of responsibility.
Humanitarian law establishes provisions for the prevention and punishment of grave breaches of its rules by establishing a chain of command where those responsible can be identified for each situation: responsibility of States, military commanders, and individual combatants.
- A party to a conflict may be held responsible for acts carried out by its members if it cannot prove that it took disciplinary measures against any of its soldiers who may have committed acts forbidden by humanitarian law on their own initiative.
- Combatants remain personally responsible for their acts, even if they acted on the order of a superior. In such a case, the superior will also be held accountable.
- Under the principle of universal jurisdiction, perpetrators of grave breaches of humanitarian law can be tried before any court of any country.
- States are not allowed to absolve themselves, or any other State, of their responsibilities to punish and demand reparations if grave breaches of the Geneva Conventions were committed by their nationals or in their name (GCI Art. 51, GCII Art. 52, GCIII Art. 131, and GCIV Art. 148).
According to humanitarian law, States undertake to respect and to ensure respect for humanitarian law by taking all necessary measures, whether legal, educational, judicial, or through repression (GCI–IV Art. 1). States Parties to the 1949 Geneva Conventions also jointly undertook to prosecute those responsible for grave breaches of humanitarian law, regardless of their nationality. This is the principle of universal jurisdiction.
Sanctions Imposed by International Tribunals
- Two ad hoc International Criminal Tribunals were set up in 1993 and 1994 to prosecute and sanction individuals accused of serious crimes (namely, violations of humanitarian law) committed in the former Yugoslavia and in Rwanda, respectively. They have issued numerous judgments establishing international judicial precedents that in turn have led to coherence between elements of war crimes, crimes against humanity, and grave breaches of the Geneva Conventions. This case law further spells out the conditions for and the content of individual criminal responsibility for these crimes, as well as the standard of evidence necessary to prove such violations.
- The Statute of the International Criminal Court (ICC) was adopted in Rome on 17 July 1998, as the result of a diplomatic conference organized under the aegis of the UN; it entered into force on 1 July 2002. Under certain conditions, it is responsible for prosecuting individuals accused of crimes of genocide, war crimes, crimes against humanity, and aggression. It has jurisdiction when States are unable or unwilling to carry out the investigation or prosecution on their own. It is therefore an institution based on a principle of complementarity to domestic judicial bodies in the area of prosecution of serious violations of international law. The work of the International Criminal Court helps to develop coherence in the interpretation of humanitarian law and harmonization of penal sanctions for serious violations of law—whether in the domestic or international arena.
▸ Amnesties ▸ Duty of commanders ▸ European Court of Human Rights ▸ Individual recourse ▸ International Criminal Court ▸ International Criminal Tribunals ▸ International Fact-Finding Commission ▸ Respect for international humanitarian law ▸ Responsibility ▸ Sanctions ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity (Section III)
For Additional Information: Dinstein, Yoram. The Conduct of Hostilities under the Law of International Armed Conflict . Cambridge: Cambridge University Press, 2004, esp. chap. 9.
Fernandez-Flores, José Luis. Repression of Breaches of the Law of War Committed by Individuals . Geneva: ICRC, 1996.
Graditzky, T. “Individual Criminal Responsibility for Violations of International Humanitarian Law Committed in Non-International Armed Conflict.” International Review of the Red Cross 322 (1998): 29–56.
Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds. Customary International Law . Vol. 1, The Rules . Cambridge: Cambridge University Press, 2005, part 6.
La Rosa, Anne-Marie, and Carolin Wuerzner. “Armed Groups, Sanctions and the Implementation of International Humanitarian Law.” International Review of the Red Cross 870 (June 2008): 327–41.
Pejic, Jelana. “Accountability for International Crimes: From Conjecture to Reality.” International Review of the Red Cross 84 (2002): 13–33.
Philippe, Xavier. “Sanctions for Violations of International Humanitarian Law: The Problem of the Division of Competences between National Authorities and between National and International Authorities.” International Review of the Red Cross 870 (June 2008): 359–70.
Schaff, Michael, and Nigel Rodley. “International Law Principles on Accountability.” In Post Conflict Justice , edited by Cherif Bassiouni, 89–99. Ardsley, NY: Transnational, 2002.
Somer, Jonathan. “Jungle Justice: Passing Sentences on the Equality of Belligerents in Non-international Armed Conflicts.” International Review of the Red Cross 867 (September 2007): 655–90.