War Crimes/Crimes against Humanity

There are several definitions of war crimes and crimes against humanity that refer to different systems of criminal punishment under national and international criminal law. International humanitarian law (IHL) has provided for an alternative system based on the universal jurisdiction of national courts to try perpetrators of serious violations of the Geneva Conventions.

At the international level, these crimes were gradually codified after the Second World War: in 1945 and 1946 in the statutes of the International Military Tribunals in Nuremberg and Tokyo established by the Allies; in 1949 in the grave breaches of the four Geneva Conventions; and in 1993 and 1994 in the statutes of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda.

The Rome Statute of the International Criminal Court (ICC), adopted in July 1998 and entered into force on July 1, 2002, plays an essential role in harmonizing the definition of these crimes at the national and international levels.

It creates a genuine, stable and permanent international criminal law, which includes a common international definition of crimes, rules of procedure and evidence for conducting investigations, and a permanent International Criminal Court to investigate, prosecute and try the perpetrators of these crimes. For the first time in international criminal law, it proposes a definition of war crimes applicable to situations of non-international armed conflict. However, this definition still differs in part from that of war crimes committed in international armed conflicts.

The ICC has jurisdiction under certain conditions to try the following international crimes: war crimes and crimes against humanity, genocide and, under certain other specific conditions, aggression. In June 2025, 125 States had ratified the Rome Statute and were members of the ICC .

However, the Rome Statute provides that the jurisdiction of the ICC is complementary to that of the national courts of States. Consequently, it does not remove the challenge of defining and punishing these crimes at the national level. Similarly, the 1949 Geneva Conventions, which define international humanitarian law (IHL) applicable in situations of armed conflict, have defined a list of grave breaches that constitute a specific category of war crimes, the punishment of which falls within the universal criminal jurisdiction of all national courts.

It is therefore important to understand the definitions around which the punishment of these crimes is structured in national criminal law (I), in international criminal law (II), and in the specific context of serious violations of international humanitarian law (III).

I. Definition and sanction under domestic legislation 

War crimes, crimes against humanity, and crimes of genocide are defined in, and punishable by, the criminal laws of each country, although the precise name given to such crimes and the elements that define them may vary according to each domestic law. Nonetheless, the ICC has contributed to harmonizing the domestic definitions of these crimes. However, attempting to punish such crimes through national legal venues has shown clear limits since, in practice, they are most often committed in the context of an armed conflict and frequently involve national armies and representatives of public authorities. The national judicial systems is often no longer be capable of independence or impartiality, nor will they have the necessary means to prosecute adequately.

Military laws— applicable to the armed forces in each country—establish codes of discipline and set up instruments to penalize acts that violate military regulations. These mechanisms are under the responsibility of the military or civilian judicial system in each country. They have a clear potential to maintain the internal discipline of the armed forces and respect for commanders’ orders. Their capacity to trigger responsibility for highest political and military authorities is often unrealistic in the short term.

In 1949, the Geneva Conventions broadened the jurisdiction of domestic courts to prosecute such crimes, even if committed in another country, by codifying the principle of universal jurisdiction into its provisions. This principle establishes that all states undertake to search for and prosecute the authors of certain serious crimes, including war crimes and crimes against humanity, even if the State has no significant links to the accused or to the acts committed. To be able to implement this form of jurisdiction, states must incorporate this concept into their national laws.

➔ Universal jurisdiction

In practice, therefore, the possibility of punishing war crimes and crimes against humanity rests on international judicial action and cooperation or on the creation of International Criminal Tribunals. To avoid complete impunity for these crimes, international law has established that they are not subject to usual statutory limitations. This means that there is no time limit within which these crimes must be judged and that criminal pursuits may always be initiated, even decades after the events, when the political or military context has evolved sufficiently to enable such prosecutions. 

➔ Impunity; Non-applicability of statutory limitations

II. Definition and sanction under international criminal law 

There are different definitions of crimes and international punishment mechanisms. The first ones have been set up along the time by ad hoc international criminal tribunals (1) such as the Tribunal of Nuremberg (1.a) and the two ad hoc international tribunal for former Yugoslavia and Rwanda (1.b). The Rome Statute creating the International Criminal Court in 1998 offers a consolidated definition of international crimes and permanent international prosecution body (2) The definition of grave breaches to the Geneva Conventions triggering prosecution under universal jurisdiction mechanisms partially differs from the one of war crimes and crimes against humanity set up by International Criminal Tribunals. It is hence presented apart (III).

1. The Ad Hoc International Criminal Tribunals

a. The International Military Tribunals of Nuremberg and Tokyo

War crimes and crimes against humanity committed during World War II were punished by the international military tribunals in Nuremberg and Tokyo. These two tribunals—set up on an ad hoc basis by the Allies on 8 August 1945 and 18 January 1946, respectively—judged members of the armed forces of the defeated countries who had committed crimes considered to be the most serious at the international level..

The Statute of the Nuremberg Tribunal makes a distinction between different kinds of international crimes: crimes against peace, war crimes, and crimes against humanity. Article 6 of the Statute defines these crimes in the following manner:

• Crimes against peace

These crimes are those aimed at the “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties.” Crimes against peace are not subject to any statute of limitations.

• War crimes

These crimes include:

• murder, ill treatment, or deportation as slave labour or for any other purpose, of the civilian population in occupied territory;
• murder or ill treatment of prisoners of war or persons on the seas;
• killing of hostages and plunder of public or private property;
• wanton destruction of cities, towns, or villages;
• devastation not justified by military necessity.
• War crimes are committed in times of war and are not subject to any statute of limitations.
• Crimes against humanity

These crimes cover the “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal.” This definition applies to crimes committed in times of war or in relation to war.

b. The Ad Hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda

Two ad hoc International Criminal Tribunals were set up in 1993 and 1994 by a binding decision of the Security Council of the UN to prosecute crimes committed in the former Yugoslavia and in Rwanda. Unlike the Nuremberg and Tokyo tribunals, these are civilian institutions. Their statutes adopted new definitions of war crimes and crimes against humanity, which include certain grave breaches of the 1949 Geneva Conventions.

Furthermore, in situations of non-international armed conflict, such as that in Rwanda and to some extend in former Yugoslavia, ad hoc tribunals have added to their definition of crimes violations of Article 3 common to the four Geneva Conventions and certain violations of their second Additional Protocol. They have thus enabled a significant step forward in broadening the scope of punishment for war crimes and serious violations of humanitarian law in the context of non-international armed conflicts.

The authority of these tribunals was limited by the ad hoc nature of these institutions, whose mandate was restricted to crimes committed in a specific territory and during a short period of time. However, they paved the way for the adoption of the Rome Treaty establishing a permanent international criminal court.

➔ International Criminal Tribunals

2. Definition and sanction of crimes by the International Criminal Court

The Rome Statute of the ICC was adopted in Rome on 17 July 1998 and entered into force on 1 July 2002, when the 60th State ratified the Statute. Following certain preconditions, the ICC is responsible for prosecuting individuals accused of crimes of genocide, war crimes, and crimes against humanity as well as perpetrators of crimes of aggression under certain additional conditions specific to this crime. The International Criminal Court has jurisdiction complementary to that of national courts. States retain the primary obligation to investigate and prosecute the perpetrators of the most serious crimes. The ICC only intervenes when States are unable or unwilling to prosecute these crimes, over which they retain primary jurisdiction.

➔Aggression ; International Criminal Court ; Penal sanctions in humanitarian law; Universal jurisdiction

a. The Definition of Crimes against Humanity: Article 7 of the Rome Statute

“Article 7 (1): For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

(2). For the purpose of paragraph 1:

(a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

(b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;

(c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;

(d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;

(e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, on a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

(f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;

(g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

(h) “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;

(i) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

(3). For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above. (Art. 7 of Rome Statute)

b. The Definition of War Crimes: Article 8 of the Rome Statute

Article 8 of the Rome Statute distinguishes between war crimes committed in international armed conflict (IAC) and in non-international armed conflict (NIAC). The definition of war crime in IAC is contained in article 8(2) (a) to (b). War crimes in NIAC are defined in article 8(2) (c) to (e ).

The Court has jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes. The Statute defines war crimes in the two types of conflict.

• War crimes perpetrated in International armed conflict (IAC)

According to the ICC Statute, “war crimes” perpetrated in an international armed conflict includes:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

• (i) Wilful killing;
• (ii) Torture or inhuman treatment, including biological experiments;
• (iii) Wilfully causing great suffering, or serious injury to body or health;
• (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
• (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
• (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
• (vii) Unlawful deportation or transfer or unlawful confinement;
• (viii) Taking of hostages.

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

• (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
• (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
• (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
• (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
• (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
• (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
• (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;
• (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
• (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
• (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
• (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;
• (xii) Declaring that no quarter will be given;
• (xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;
• (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;
• (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war;
• (xvi) Pillaging a town or place, even when taken by assault;
• (xvii) Employing poison or poisoned weapons;
• (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;
• (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in Articles 121 and 123;
• (xxi) Committing outrages on personal dignity, in particular humiliating and degrading treatment;
• (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7 [on crimes against humanity], paragraph 2(f), enforced sterilization, or any other form of sexual violence also a grave breach of the Geneva Conventions;
• (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
• (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
• (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

• (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

   

• War crimes committed in an armed conflict not of an international character: Article 8(2)(c) to (e).

According to the ICC Statute, “war crimes” committed in the context of a non- international armed conflict include:

“Article 8 (2).

(c) serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

• (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
• (ii) Committing outrages on personal dignity, in particular humiliating and degrading treatment;
• (iii) Taking of hostages;
• (iv) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

(d) Paragraph 2(c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

• (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
• (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
• (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the law of armed conflict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
• (v) Pillaging a town or place, even when taken by assault;
• (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
• (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;
• (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;
• (ix) Killing or wounding treacherously a combatant adversary;
• (x) Declaring that no quarter will be given;
• (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
• (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.

(f) Paragraph 2(e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. (Art. 8 of the Rome Statute).

It should be noted that in 2019, the Assembly of States Parties to the Rome Statutes adopted an amendment to the definition of war crimes applicable in NIAC. The new article (8)(2)(e)(xix) prohibits as a war crime in NIAC, the intentional use of starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including the willful impeding of relief supplies. However, this amendment is only applicable to States that have ratified it (20 states in June 2025)Despite the limited effect of this amendment in most NIAC, such practices may also be prosecuted under the definition of other war crimes such as inhumane treatment or crimes against humanity such as persecution or extermination, if they meet the criteria of the ICC definition of these crimes.

III. Definition and sanction of grave breaches of international humanitarian law 

The requirements of justice and the fight against impunity are the central elements of IHL, along with the protection of relief actions.

However, the drafters of the 1949 Geneva Conventions and the first Additional Protocol of 1977 did not use the term “war crimes.” IHL refers to general violations of its rules and to a specific category known as “grave breaches.” The category of "grave breaches" of the Geneva Conventions is the one that best covers the concept of war crimes, but it differs slightly from that of war crimes contained in the Statute of the International Criminal Court.

According to IHL, only serious violations can trigger the “principle of universal jurisdiction,” which allows for prosecution in any national court, without restrictions based on the nationality of the perpetrator or victim of the offense or the status of the territory where the crime was committed.

Yet, the definition of “graves breaches” and the principle of universal jurisdiction provided for by IHL apply only in situation of international armed conflicts (IACs) and not in non-international armed conflicts (NIACs). However, State practice is evolving toward including other war crimes, such as those included in the Statute of the ICC, into the universal jurisdiction mechanism.

Customary international humanitarian law (CIHL), on the other hand, provides a description of “serious violations” that constitute war crimes and are applicable in both IACs and NIACs (CIHL Rules 156 to 161). Rule 156 specifies that “serious violations of international humanitarian law constitute war crimes.” CIHL use the term “serious violations” to extend the definition of these crimes to situations of NIACs. Indeed, the IHL category of “grave breaches” does not apply as such to NIACs. All of these subtleties can be confusing and should be read carefully.

➔ Universal jurisdiction

1. Violations of International humanitarian Law

Violations are the transgressions of IHL that are not further defined in the definition of grave breaches (discussed later). IHL does not provide a detailed, comprehensive definition of these other violations, the punishment of which is left up to the competent national authorities. The punishment of these crimes is carried out by the normal judicial and disciplinary control mechanisms—in other words, civilian or military tribunals tribunals of the country concerned.

These violations may be the subject of amnesties within the framework of a national law adopted following an armed conflict. They benefit from a statute of limitations, unlike the war crimes and crimes against humanity defined by the ICC statute and the grave breaches of the Geneva Conventions for which there is no time limit for initiating proceedings. Violations must be examined in the context of a framework determining the scale of responsibility of national authorities, military commanders, and individuals. 

➔ Penal sanctions in humanitarian law; Responsibility

2. Grave Breaches of International humanitarian Law

The Geneva Conventions and Additional Protocol I of 1977, Relating to the Protection of Victims of International Armed Conflicts, clearly define a limited number of crimes that fall into the category of grave breaches. No statute of limitations can apply to these crimes, and IHL has established a specific system for penal sanctions.

The definition of these grave breaches varies depending on whether they were committed in international or non-international armed conflicts. The 1949 Geneva Conventions provide a first definition in the context of international armed conflicts (GCI Art. 50, GCII Art. 51, GCIII Art. 130 and GCIV Art. 147), which has been expanded and further detailed in Additional Protocol I (Art. 85).

a. Grave Breaches in International Armed Conflicts

The graves breaches were defined in Articles 146 and 147 of the four Geneva Conventions of 1949. They were supplemented by articles 11 and 85 of the first additional protocol of 1977.

• 1949 Geneva Conventions. Grave breaches are specific violations of the laws of armed conflict, which states are under the obligation to prevent and sanction (art.146). 
• Article 147 precise that they involve any of the following acts, if committed against persons or property protected by the four Geneva Conventions:
• wilful killing, torture, or inhuman treatment, including biological experiments;
• deliberately causing great suffering or serious injury to body or health;
• unlawfully deporting, transferring, or confining a protected person or taking hostages;
• compelling a person protected by the Conventions (whether civilian or prisoner of war) to serve in the forces of an enemy power;
• depriving a protected person of his or her right to a fair and regular trial, as established by IHL;
• causing extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

These acts are hence forbidden when carried out against:

• civilians, the sick, and wounded (GCIV Art. 147);
• prisoners of war (GCIII Art. 130);
• the wounded, sick, and shipwrecked members of armed forces at sea (GCII Art. 51); and
• the wounded and sick in armed forces in the field (GCI Art. 50).

• Additional Protocol I of 1977 (API Article 11 and 85).
• Article 85 state that: ”Acts described as grave breaches in the Conventions are grave breaches of Additional Protocol I if committed against:
• persons in the power of an adverse party protected by the Geneva Conventions and Additional Protocol I (as defined in API Arts. 44, 45 and 73) ;
• the wounded, sick, or shipwrecked of the adverse party;

• the medical or religious personnel, medical units, or medical transports that are under the control of the adverse party and are protected by Additional Protocol I (API Art. 85(2)).

  ➔ Protected persons

Furthermore, the following acts, in violation of Additional Protocol I, are considered grave breaches when they are committed wilfully and cause death or serious injury to body or health (API Art. 85(3)):

(a) making the civilian population or individual civilians the object of attack;

(b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects;

(c) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects;

(d) making non-defended localities and demilitarized zones the object of attack;

(e) making a person the object of attack in the knowledge that he is hors de combat;

(f) the perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol. 

➔ Attacks

The following acts are also regarded as grave breaches of IHL when committed wilfully and in violation of the Geneva Conventions or Additional Protocol I, even if they do not result in death or serious injury to body or health (API Art. 85(4))

(a) the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention;

(b) unjustifiable delay in the repatriation of prisoners of war or civilians;

(c) practices of apartheid and other inhuman and degrading practices involving outrages on personal dignity, based on racial discrimination;

(d) making the clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53(b), and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives;

(e) depriving a person protected by the Conventions of the rights of fair and regular trial.

• Article 11 provide that:

The physical or mental health and integrity of persons who are in the power of the adverse party—or who are interned, detained, or otherwise deprived of liberty—must not be endangered by any unjustified act or omission. Accordingly, it is prohibited to subject these persons to any medical procedure that is not indicated by their state of health and is inconsistent with generally accepted medical standards that normally would be applied under similar medical circumstances to nationals of the party conducting the procedure and who are not deprived of liberty (API Art. 11(1)). In particular, it is prohibited to carry out on such persons, even with their consent:

(a) physical mutilations;

(b) medical or scientific experiments;

(c) removal of tissue or organs for transplant, except where these acts are justified in conformity with generally accepted medical standards which would be applied under similar medical circumstances to nationals of the party conducting the procedure and who are in no way deprived of liberty (API Art. 11(2)).

Hence, any such wilful act or omission against a person under the control of a party other than the one on which he or she depends—which either violates any of the prohibitions enumerated above or fails to comply with the requirements governing such acts—is a grave breach of Additional Protocol I (API Art. 11(4)).

The only possible derogations that can be made from these prohibitions are “in the case of donations of blood for transfusion, or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement, and then only for therapeutic purposes, under conditions consistent with generally accepted medical standards and controls designed for the benefit of both the donor and the recipient” (API Art. 11(3)).

b. Grave Breaches or Serious Violations Applicable to Non-international Armed Conflicts

No definition of grave breaches to the Geneva Conventions was included in Additional Protocol II or referred explicitly to in Common Article 3, which relate to the protection of victims of non-international armed conflicts.

The question of which definition to apply and what punishment mechanisms are available in NIAC has remained a major problem for decades, fuelling impunity in an international context where NIAC accounted for the vast majority of armed conflicts.

This issue was resolved with the adoption in 1998 of the Rome Statute establishing the ICC, which includes acts committed in NIACs in its definition of war crimes. However, this development only applies to States that have ratified the Statute.

Meanwhile the Statutes and the jurisprudence of the two ad hoc international criminal tribunals have filled this void and prepare this move by developing their own definition of war crime and applying it to NIAC.

• In 1994, the Statute of the ad hoc International Criminal Tribunal for Rwanda establishes the Tribunal’s jurisdiction over crimes of genocide, war crimes, and crimes against humanity, as well as violations of Common Article 3 (explained above) to the four Geneva Conventions (also explained above) and of Additional Protocol II, which codifies the protection that must be provided for victims of internal conflicts.
• In 1998, the Statute of the ICC provided a detailed definition of the crimes committed in non-international armed conflicts over which it has jurisdiction (detailed above).
• The International Fact-Finding Commission, established pursuant to the Geneva Conventions (API Art. 90), has formally recognized its competence to investigate violations of Common Article 3 (which refers explicitly to non-international armed conflicts). Inquiries concerning such violations must follow the general conditions regulating the procedure and rules of request specific to the Commission.

Common Article 3 to the four Geneva Conventions forbids:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture;

(b) taking of hostages;

(c) outrages on personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (GCI–IV Common Art. 3)

This evolution was enshrined in the study on the rules of customary IHL published by the ICRC in 2005 (infra).

➔ Human rights; Individual recourse; Respect for international humanitarian law; Universal jurisdiction

c. Existing Structures for the Punishment of Grave Breaches

Several principles, definitions, and restrictions set the framework within which grave breaches can be punished.

• IHL forces states to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches (GIV Art. 146). It also limits the possibility of granting amnesties, whether in the context of negotiating peace accords or in any other circumstances. As mentioned, the Geneva Conventions provide that no state may absolve itself or any other state of any liability incurred with regard to violations of IHL (GCI Art. 51, GCII Art. 52, GCIII Art. 131 and GCIV Art. 148). 

  ➔ Amnesties

• Grave breaches are defined as war crimes (API Art. 85(5)). In certain cases, they may also be qualified as crimes against humanity. As such they are not subject to any statute of limitations, as per Article 1 of the International Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity adopted at the UN on 26 November 1968 as well as under Article 29 of the ICC Statute. The notion of non-applicability of statutory limitations to war crimes has become a norm of customary law. Indeed, Rule 160 of the 2005 ICRC customary IHL study states that “statutes of limitation may not apply to war crimes.” 

  ➔ Non-applicability of statutory limitations

• The principle of universal jurisdiction, touched on earlier in this entry, reflects the international obligation of all states parties to the Geneva Conventions to punish grave breaches of IHL. It represents a genuine system of collective security on a judicial level. States are under the obligation to search for persons suspected of having committed or ordered such grave breaches. In ratifying the Geneva Conventions, they have also undertaken to bring such persons, regardless of their nationality, before their own courts. States may also transfer such persons to another state party, provided that this state has already initiated proceedings and that the accused would face appropriate punishment. To this effect, a system of mutual assistance in criminal matters between states parties is established by the Geneva Conventions (GCI Art. 49; GCII Art. 50; GCIII Art. 129; GCIV Art. 146; API Arts. 86 and 88).

• Provisions for a system of inquiry aimed at establishing the existence of violations are set up by the Geneva Conventions (GCI Art. 52, GCII Art. 53, GCIII Art. 132 and GCIV Art. 149). Such inquiries may be carried out only with the agreement of the concerned parties to the conflict. 

• An International Fact-Finding Commission was created, as per Article 90 of Additional Protocol I. It is a permanent independent organ in charge of investigating possible grave breaches and serious violations of IHL. Article 90 is optional, meaning that the Commission may only act with regard to countries that have recognized its competence.

  ➔ International Humanitarian Fact-Finding Commission (IHFFC)