The Prosecution of Grave Breaches in National Courts

The Prosecution of Grave Breaches in National Courts Ward Ferdinandusse*

Abstract This article surveys the prosecution of acts constituting grave breaches of the Geneva Conventions in national courts. In these national prosecutions, international criminal law is not always applied in a uniform manner. Acts constituting grave breaches are not only prosecuted as such, but are also charged as other international crimes (like crimes against humanity or genocide) or ordinary crimes, like murder. The author argues that a divergent national application of international criminal law is not necessarily problematic but can (within the limits posed by international law) be a useful and important motor for the development of the law. A survey of national case law demonstrates the potential of the grave breaches regime to ensure universality of punishment for these war crimes, and also reveals that the grave breaches regime has so far not lived up to its potential.

1. Introduction Sixty years ago, the drafters of the Geneva Conventions1 aimed for effective and global punishment of the set of war crimes defined as grave breaches by establishing universal jurisdiction in the form of a duty to prosecute or extradite for these crimes. War crimes such as wilful killing, torture, inhuman treatment, unlawful deportation and unlawful confinement would have to be

*

LLM, PhD and is a (war crimes) prosecutor with the National Division of the Dutch Department of Prosecutions. The references to cases and situations in this article are based solely on public reports and do not reflect the position of either the Dutch Department of Prosecutions or the author on the facts of these cases or situations. 1 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (‘First Geneva Convention’, hereinafter GC I); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949 (‘Second Geneva Convention’, hereinafter GC II); Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, (‘Third Geneva Convention’, hereinafter GC III); Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (‘Fourth Geneva Convention’, hereinafter GC IV).

............................................................................ Journal of International Criminal Justice 7 (2009), 723^741 doi:10.1093/jicj/mqp053 ß Oxford University Press, 2009, All rights reserved. For permissions, please email: [email protected]

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punished, at least when committed in international armed conflicts.2 As the Commentary to the Geneva Conventions stated, ‘[t]he universality of jurisdiction for grave breaches is some basis for the hope that they will not remain unpunished and the obligation to extradite ensures the universality of punishment.’3 With the adoption of Additional Protocol I in 1977, the grave breaches regime was expanded with a view to improving the effectiveness of the system.4 Yet, the grave breaches regime in the Geneva Conventions and Additional Protocol I has only partially lived up to its promise of ending impunity and ensuring universality of punishment. It has often been noted that prosecutions for grave breaches are scarce, and that impunity still appears to be the norm.5 Indeed, states only occasionally prosecute acts that might constitute grave breaches within the grave breaches regime. However, a thorough survey of the prosecution of acts constituting grave breaches in national courts must take into account the diverse nature of such prosecutions. Acts constituting grave breaches can be prosecuted as such, but can also be charged as other international crimes (like crimes against humanity or genocide) or ordinary crimes, like murder. This article will discuss each of these categories in turn. It will show how national law and international law interrelate in these prosecutions, noting in particular that a divergent national application of international criminal law is not necessarily problematic but can be a useful and important motor for the development of the law. In the end, a survey of national case law demonstrates the potential of the grave breaches regime to ensure universality of punishment for these war crimes, and also reveals that the grave breaches regime is yet to fulfil its potential.

2. Prosecutions as Grave Breaches Several states have prosecuted war crimes specifically charged as grave breaches. Some of these prosecutions took place on the basis of universal jurisdiction. In Denmark, a Bosnian asylum seeker was prosecuted and convicted in 1994 for grave breaches of the Third Geneva Convention and the Fourth Geneva Convention committed in July and August 1993 in the prison camp of Dretelj, situated in what is now the Republic of Bosnia and Herzegovina.6 2 Arts 49 and 50 GC I, Arts 50 and 51 GC II, Arts 129 and 130 GC III, Arts 146 and 147 GC IV. 3 J.S. Pictet (ed.), Commentary, The Geneva Conventions of 12 August 1949, Vol. IV (Geneva: International Committee of the Red Cross (ICRC), 1958), at 587. 4 See Art. 85 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (Additional Protocol I, hereinafter AP I). 5 See e.g. references in W.N. Ferdinandusse, Direct Application of International Criminal Law in National Courts (The Hague: T.M.C. Asser Press, 2006), at 91^99. 6 See Eastern Division of the Danish High Court (Third Chamber), Saric¤ , 25 November 1994, available at http://www.icrc.org/ihl-nat.nsf (visited 15 July 2009). The defendant’s complaint to

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The defendant had been recognized by other asylum seekers in Denmark as a former prisoner in the Dretelj camp who had joined the guards in mistreating and killing fellow prisoners. He was charged and convicted for having committed acts in the prison camp amounting to grievous bodily harm within the meaning of Section 245 of the Danish Penal Code and Articles 129 and 130 of the Third Geneva Convention and Articles 146 and 147 of the Fourth Geneva Convention. He was sentenced to 8 years’ imprisonment. The Court also ordered the defendant to be expelled from Denmark subsequent to having served his prison sentence. In Switzerland, a Bosnian Serb asylum seeker was prosecuted for mistreatment of detainees in the prison camps of Omarska and Keraterm in 1992. The defendant was charged with grave breaches of the Third Geneva Convention, the Fourth Geneva Convention and Additional Protocol I, as well as violations of Common Article 3 and Additional Protocol II.7 He was, however, acquitted on the facts. The court found the armed conflict at the time to be international in character, but concluded it remained doubtful whether the accused had actually been in the camps.8 Occasionally, states have prosecuted their own citizens on specific charges of grave breaches. In the United Kingdom, Corporal Payne was convicted for ‘inhuman treatment of a person protected under the provisions of the fourth Geneva Convention1949’.9 He had pled guilty to one count of inhuman treatment for the mistreatment of an Iraqi prisoner in Basra in British-occupied Iraq in 2003. Commentators have noted this made Corporal Payne ‘the first British soldier in history to be convicted of a war crime under international law’.10 Still, a survey of domestic prosecutions suggests that prosecutions of acts that constitute grave breaches on charges that explicitly reflect their character as grave breaches are few and far between. More frequently, acts amounting to grave breaches are prosecuted as other international or domestic offences.

3. Prosecutions of Acts Constituting Grave Breaches as Other International Crimes Grave breaches often overlap with other international crimes like genocide, crimes against humanity and torture. This presents prosecutors and civil

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the ECtHR that these proceedings had in various ways violated his right to a fair trial was declared inadmissible in 1999. See ECtHR, Saric¤ v. Denmark, Application No. 31913/96 (admissibility decision), 2 February 1999. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-international Armed Conflicts (8 June 1977) (Additional Protocol II, hereinafter AP II). See Swiss Military Tribunal, Division 1, Grabez, 18 April 1997, available at http://www.icrc.org/ ihl-nat.nsf (visited 15 July 2009). See N. Rasiah, ‘The Court-martial of Corporal Payne and Others and the Future Landscape of International Criminal Justice’, 7 Journal of International Criminal Justice (JICJ) (2009) 177^199. Ibid., at 178.

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parties (within relevant jurisdictions) with a choice as to how to frame their case. Sometimes, jurisdictional constraints limit the options available. Prior to 2003, for example, Dutch legislation provided universal jurisdiction for war crimes and torture, but not for genocide and crimes against humanity. Thus, there is only limited choice in The Netherlands when charging international crimes committed before 2003 on the basis of universal jurisdiction. The practical consequences of this limited choice are apparent in the recent case of Joseph Mpambara. Mr Mpambara was prosecuted and convicted for various crimes against Tutsis committed in the pre¤ fecture of Kibuye during the Rwandese genocide in 1994.11 Since Dutch courts lacked universal jurisdiction for genocide and crimes against humanity at the time, the prosecution charged him with war crimes and torture. The Hague District Court found the crimes lacked a nexus with the armed conflict and acquitted the defendant of war crimes,12 sentencing him to 20 years’ imprisonment for torture resulting in the death of some of the victims. In other cases, there may be a wider choice of international crimes capable of describing the same acts. Indeed, numerous grave breaches have been prosecuted as genocide or crimes against humanity. Different considerations can influence the ultimate content of the indictment. The choice to prosecute grave breaches as other international crimes may reflect the understanding that the crimes under consideration are more appropriately characterized as genocide, crimes against humanity or some other supranational offence than as a war crime. Indeed, it is generally accepted that an indictment should reflect the context and characteristics of the crime to the greatest extent possible. In principle it is desirable for an act of genocide to be prosecuted as genocide, rather than as another crime which does not reflect its genocidal nature. Some legal systems do not leave a choice in such a situation but require prosecutors to pursue the most serious charges applicable to the case.13 Thus, where a conviction for genocide seems possible, charges of genocide must be brought. However, to the extent that the legal system allows for choices to be made, considerations of efficiency may also come into play. As prosecutions of international crimes are generally characterized by a continuous pressure on time and resources, indictments are often influenced by practical constraints. Depending on the factual background of the crimes, the content of the case file, the national law governing the case and the precedents likely to be followed by the courts, it may be easier to prosecute a grave breach as another 11 The Hague District Court, Mpambara, 23 March 2009, available in Dutch at http://www.recht spraak.nl/ljn.asp?ljn¼BI2444 (visited 15 July 2009). 12 Compare with the markedly different approach to the nexus issue in the recent conviction of Munyaneza in Canada, where the Court without much discussion concluded comparable crimes did amount to war crimes. See Montreal Superior Court (Criminal Division), R. v. Munyaneza, 22 May 2009, 2009 QCCS 2201, available at http://www.jugements.qc.ca/ (visited 15 July 2009). 13 See L. Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford: Oxford University Press, 2003), at 100^101.

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international crime. For example, when the genocidal or persecutory aspect of the crime is obvious but its nexus to the armed conflict less so, it can be more efficient to charge genocide or crimes against humanity than war crimes.14 This can also be the case where crimes perpetrated within the same period or as part of the same conflict have already been successfully prosecuted as other international crimes, but not yet as grave breaches. Whatever the reason, practice shows quite a few prosecutions for genocide (e.g. in Germany15 and Austria16) or crimes against humanity (e.g. in Bosnia and Herzegovina17) involving acts that could have also constituted grave breaches. In Spain, an investigation is ongoing against seven Israeli officials alleged to have been involved in a 2002 air strike on the Al Daraj neighbourhood of Gaza City. This air strike killed 15 Palestinians, including a leading Hamas member and several children, and wounded many more. The civil parties who initiated the investigation alleged this bombing to constitute, inter alia, a grave breach of Additional Protocol I.18 On 29 January 2009, a Spanish judge ruled the civil parties had established a prima facie case of a crime against humanity which was to be investigated.19 While the ruling does not explain why the Court has labelled the case in this fashion, one explanation might be that Israel is not a party to Additional Protocol I. Perhaps the Court took this circumstance into account when deciding on the legal designation of the acts under investigation. Grave breaches also overlap with other war crimes. Wilful killing and torture, for example, not only amount to grave breaches but also to serious violations of humanitarian law (in particular Common Article 3 of the Geneva Conventions), punishable regardless of the character of the armed conflict in 14 See above the case of Mpambara, supra note 12. 15 See e.g. cases in Germany: Jorgic¤ (OLG Du«sseldorf, Jorgic¤ , 26 September 1997, 2 StE 8/96; Supreme Court (BGH), Jorgic¤ , 30 March 1999, 3 StR 215/98, in 19 NStZ (1999) 396-404; BGHSt 45, 64-91; Constitutional Court (BVerfG), Jorgic¤ , 12 December 2000, 2 BvR 1290/99, in 54 NJW 2001 1848-1853. For an overview of the proceedings in this case, see ECtHR, Jorgic v. Germany, 12 July 2007); Sokolovic¤ (OLG Du«sseldorf, Sokolovic¤ , 29 November 1999, 2 StE 6/97; BGH, Sokolovic¤ , 21 February 2001, 3 StR 372/00; BGHSt 46, 292-307; 54 NJW 2728-2732); Kusljic¤ (BayObLG, Kusljic¤ , 15 December 1999, 6 St 1/99; BGH, Kusljic¤ , 21 February 2001, 3 StR 244/00, in 54 NJW (2001) 2732-2734); Djajic¤ (Bavarian Higher Court (BayObLG), Djajic¤ , 23 May 1997, 3 St 20/06, in 51 NJW (1998) 392^395, also reported by C. Safferling, ‘International Decision: Public Prosecutor v. Djajic’, in 92 American Journal of International Law (1998) 528^532.) 16 Landesgericht Salzburg, Cvjetkovic, 31 May 1995. See Reydams 2003, supra note 14, at 99^101. See also R. van Elst, ‘Implementing Universal Jurisdiction over Grave Breaches of the Geneva Conventions’, 13 Leiden Journal of International Law (2000) 847. 17 Court of Bosnia and Herzegovina, Mejakic¤ et al., 30 May 2008, available at http://www.sudbih. gov.ba (visited 15 July 2009) (concerning, inter alia, torture in prison camps in the international armed conflict in Bosnia). 18 See English translation of the application at http://www.adh-geneva.ch/RULAC/pdf_state/ Court-Case-as-presented-1.pdf (visited 15 July 2009). For a recent commentary on the case, see S. Weill, ‘The Targeted Killing of Salah Shehadeh: From Gaza to Madrid’, 7 JICJ (2009) 617^632. 19 See ruling of the Spanish Audiencia Nacional of 29 January 2009, available at http://www.adhgeneva.ch/RULAC/pdf_state/Spain.pdf (visited 15 July 2009). English translation available at http://www.fidh.org/IMG/pdf/admission_order_propery_translated-1.pdf (visited 15 July 2009).

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which they are committed. Where national law allows it, prosecuting a grave breach as a serious violation of Common Article 3 can reduce the burden on the prosecution. This way, there is no need to establish the (international or non-international) character of the armed conflict, which can be a complex affair. It may also facilitate the finding that the victims were protected under international humanitarian law. Therefore, some grave breaches are prosecuted as violations of Common Article 3. A case in point is the prosecution of Lazarevic¤ and others before the Court of Bosnia and Herzegovina.20 The Criminal Code of Bosnia and Herzegovina contains several war crimes provisions which apply to all armed conflicts.21 Article 173, for example, proscribes certain war crimes against civilians and is applicable ‘in time of war, armed conflict or occupation’.22 The suspects in Lazarevic¤ and others case were members of the reserve police forces in the Bosnian town of Zvornik. Numerous witnesses accused them of maltreating prisoners in the early 1990s. The prosecution first indicted Lazarevic and others for violations of Article 173, specifying these allegations by referring both to Common Article 3 and Article 147 of the Fourth Geneva Conventions.23 It appears that such an indictment would require the Court to determine the applicability of Article 147 of the Fourth Geneva Convention and thus to establish the (international) character of the armed conflict in which the crimes were committed. The prosecution intended to establish the character of armed conflict by submitting motions to accept the facts pertaining to the character of the armed conflict as established by the International Criminal Tribunal for the former Yugoslavia (ICTY).24 Given that these motions, inter alia, relied on the facts established in Delalic¤ and others25 and the Tadic¤ Appeal judgment,26 it can be inferred that the prosecution sought to characterize the armed conflict in Bosnia at the time as international. The Court in the Lazarevic¤ and others case, however, refused to accept this as an established fact.27 The prosecution then filed a new motion to accept established facts, this time asking the Court to accept the finding of the ICTY in numerous cases that an armed conflict existed in Bosnia at the time (without seeking to characterize that armed conflict as international or non-international). This time, the Court agreed.28 Having established the existence of an armed conflict but not its international character, the prosecution subsequently withdrew the reference to Article 20 Court of Bosnia and Herzegovina, Lazarevic¤ et al., 29 September 2008, available at http:// www.sudbih.gov.ba (visited 15 July 2009). 21 See Criminal Code of Bosnia and Herzegovina, Chapter 17, available at http://www.iccnow.org/ documents/criminal-code-of-bih.pdf (visited 15 July 2009). 22 Art. 173(1): ‘Whoever in violation of rules of international law in time of war, armed conflict or occupation, orders or perpetrates any of the following acts :::’. 23 Lazarevic¤ et al., supra note 20, at 6^7. 24 Ibid., at 20^21. 25 Judgment, Delalic¤ and others (IT-96-21-T), Trial Chamber, 16 November 1998. 26 Judgment, Tadic¤ (IT-94-1-A), Appeals Chamber, 15 July 1999. 27 Lazarevic¤ et al., supra note 20, at 20^21. 28 Ibid., at 21^22.

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147 of the Fourth Geneva Convention from the indictment, leaving only Common Article 3 as the underlying source of international humanitarian law.29 This allowed the Court to note that neither Article 173 of the Criminal Code nor Common Article 3 required characterization of the armed conflict, since both provisions apply to all armed conflicts.30 Thus, the Court simply found that ‘at least from April 1992 to March 1993, there was an armed conflict between the forces of the Army of Bosnia and Herzegovina and the Army of the [Republika Serpska] in the area of the Municipality of Zvornik.’31 Had the Court accepted the international character of the armed conflict as established by the ICTY, the Prosecution would probably not have withdrawn the reference to Article 147 of the Fourth Geneva Convention from the indictment. In that case, the defendants would have been convicted for grave breaches rather than violations of Common Article 3. Thus, the case of Lazarevic¤ and others illustrates how practical considerations can cause grave breaches to be prosecuted as, for example, violations of Common Article 3. All in all, practice shows quite a few effective national prosecutions in which grave breaches were charged as other international crimes.

4. Prosecutions as Ordinary Crimes The Geneva Conventions require states to ‘enact any legislation necessary to provide effective penal sanctions for persons committing’ grave breaches.32 The conventions do not explicitly require such prosecutions to reflect the international nature of the crimes committed. More generally, international law allows states to prosecute international crimes on the basis of ordinary criminal law.33 In 2006, the ICTY found that ‘there is no rule, either in customary or in positive international law, which obligates States to prosecute acts which can be characterised as war crimes solely on the basis of international humanitarian law, completely setting aside any characterisations of their national criminal law.’34 It is also noteworthy that the complementarity regime of the International Criminal Court (ICC) appears to regard prosecutions of international crimes on the basis of ordinary criminal law as a sufficient response, which precludes the ICC from exercising jurisdiction.35 29 30 31 32 33 34 35

Ibid., at 7. Ibid., at 35^36. Ibid., at 37. Art. 49 GC I, Art. 50 GC II, Art. 129 GC II, Art. 146 GC IV. See Ferdinandusse, supra note 5, at 18^21. Judgment, Hadzihasanovic¤ (IT-01-47-T), Trial Chamber, 15 March 2006, x260. See J.K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford: Oxford University Press, 2008), at 119^123. But see M.M. El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (Leiden: Martinus Nijhoff, 2008), at 286^292 and idem, ‘The Principle of Complementarity: A New Machinery to Implement International Criminal Law’, 23 Michigan Journal of International Law (2002) 933^934.

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While prosecution of grave breaches on the basis of ordinary criminal law can be efficient, it is often not ideal. National provisions of general criminal law do not generally match all specific aspects of crimes under international humanitarian law.36 It may not be easy, for example, to find adequate provisions in national criminal codes for the prosecution of such grave breaches as wilfully depriving a prisoner of war of the rights of fair and regular trial (Article 130 of the Third Geneva Convention) or the perfidious use of protected signs like the Red Cross emblem (Article 85(3)(f) of Additional Protocol I). Negating as they do the specific war time context of the crimes, charges of ordinary crimes also tend to result in low sentences. The Commentary to the Geneva Conventions rightly foresaw ‘the enactment of additional penal laws applicable to all offenders’ as a logical corollary to the conventions and considered it ‘desirable that this legislation should be in the form of a special law, defining the breaches and providing an adequate penalty for each’.37 The Commentary also noted that ‘the 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.’38 Be that as it may, grave breaches can be, and often are prosecuted as ordinary crimes like murder and assault. Courts-martial proceedings for war crimes often do not reflect the international nature of the crimes. In the United States, Lieutenant Calley was convicted for his involvement in the infamous My Lai massacre in the Vietnam war on the basis of murder and assault, whereas he could have been charged with grave breaches of the Geneva Conventions.39 In 1996, a spokesman for the US Department of Defense noted that several members of the US Armed Forces had been prosecuted in courts-martial proceedings ‘for what amounted to grave breaches of the Geneva Conventions’ committed during military operations in Panama and Somalia.40 Likewise, defendants in more recent court-martial proceedings in the United States for crimes that arguably amounted to grave breaches committed in Iraq were charged with ordinary crimes, not war crimes.41 36 See R. Rissing-van Saan, ‘The German Federal Supreme Court and the Prosecution of International Crimes Committed in the Former Yugoslavia’, 3 JICJ (2005) 381, at 395^396 and Van Elst, supra note 17, at 828. 37 Pictet, supra note 3, Vol. III, at 629. 38 Ibid., Vol. IV, at 590. 39 See U.S. v. Calley, 46 C.M.R. 1131, 1138 (1973) (‘[A]ppellant was convicted by general court-martial of three specifications of premeditated murder and one of assault with intent to commit murder in violation of Articles 118 and 134, Uniform Code of Military Justice, 10 USC xx 918 and 934, respectively. ::: Although all charges could have been laid as war crimes, they were prosecuted under the UCMJ’). 40 See statement of John H. McNeill before the committee on the judiciary of the U.S. House of Representatives, 12 June 1996, available at http://judiciary.house.gov/legacy/636.htm (visited 15 July 2009) 41 See S.D. Murphy, ‘Contemporary Practice of the United States relating to International Law’, 98 AJIL (2004) 595, noting charges such as conspiracy, dereliction of duty, cruelty, maltreatment, assault and indecent acts for crimes of torture. See also http://192.156.19.109/lapa/ Iraq-Investigations.htm for an overview of charges and convictions in courts-martial proceedings concerning crimes committed, inter alia, in Fallujah and Haditha (visited 15 July 2009).

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Several defendants from the former Yugoslavia were charged in Germany not only with genocide, but also with ordinary crimes like murder.42 Of course, the fact that the Geneva Conventions and general international law do allow states to prosecute grave breaches on the basis of ordinary criminal law does not mean that any charge suffices to satisfy the requirements of the grave breaches regime as long as some kind of prosecution takes place. For the prosecution to be meaningful, the charges must correspond to the gravity of the crime, as this is an implicit requirement of the grave breaches regime. Also, the charges laid must entail ‘effective penal sanctions’ according to the terms of the Geneva Conventions themselves.43 Thus, some ordinary crimes will simply not do. A good example of a national grave breaches prosecution on the basis of ordinary criminal law which has been seriously criticized concerns the closerange non-fatal shooting of a blindfolded, handcuffed Palestinian demonstrator by an Israeli soldier in 2008.44 It has been noted in this journal that this constitutes a prima facie case of inhuman treatment as proscribed in Article 147 of the Fourth Geneva Convention.45 The soldier and officer involved were charged, however, with ‘conduct unbecoming an officer’.46 This offence focuses on the honour of the perpetrator rather than on the human dignity of the victim, and is typically attached to various forms of disorderly conduct. A conviction for conduct unbecoming an officer does not result in a criminal record, but is apparently of a disciplinary nature.47 The victim of the shooting has petitioned the Israeli High Court of Justice, demanding that the indictment be altered to reflect the gravity of the offence.48 After prolonged consideration,49 the High Court of Justice ordered the military advocate general to amend the charges.50 While it is unknown to this author if the grave breaches regime played a role in the decision of the High Court, one anticipates that conduct unbecoming an officer will be difficult to square with the obligation to ensure ‘effective penal sanctions’. Still, prosecutions of acts constituting grave breaches on charges of ordinary crimes should not automatically be dismissed as inadequate. Provided that the ordinary criminal law applied reflects the gravity of the crime, it can yield an efficient prosecution which leaves enough room for both the proceedings and the judgment to reflect the international background and context of the case. Where time, resources and expertise are limited, efficiency counts. 42 See cases mentioned above, supra note 16. 43 Art. 49 GC I, Art. 50 GC II, Art. 129 GC III, Art. 146 GC IV. 44 See for a thorough analysis of this case, O. Ben-Naftali and N. Zamir, ‘Whose ’Conduct Unbecoming’? The Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator’, 7 JICJ (2009) 155. 45 Ibid., 162^166. 46 Ibid., 158^159. 47 Ibid., 158. 48 Ibid., 158^159. 49 ‘High Court Split on Whether to Intervene in Ni’lin Shooting Indictment’, Jerusalem Post, 17 December 2008. 50 ‘Israel: Court Orders Stiffer Charges in Shooting’, New York Times, 1 July 2009.

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In the simplest terms, when confronted with multiple cases of grave breaches, it may be preferable to prosecute five cases as murder instead of one case as a grave breach, if that requires serious time and resources to prove the character of the armed conflict and the nexus between the crime and the armed conflict. Therefore, one can see how charging ordinary crimes is often more attractive than charging grave breaches. This is certainly the case where the very applicability of the grave breaches regime to the crimes at hand is a complex and contentious issue, as for example in the case of crimes committed by Belgian and Canadian forces in Somalia.51 Conversely, classifying crimes as grave breaches may be essential to defeat statutes of limitations or to assert universal jurisdiction. Thus, whether it is necessary or efficient to prosecute crimes as grave breaches or on other charges, can only be judged on a case by case basis. When grave breaches are charged as ordinary crimes, the Geneva Conventions can still play an important role. In some of the German cases where charges of murder and genocide were laid, the courts did take into account the grave breaches regime. Noting Germany’s international obligation to prosecute grave breaches was instrumental for the establishment of universal jurisdiction, even though the acts were prosecuted on charges other than grave breaches.52 Another interesting example is the case of Basson in South-Africa.53 Wouter Basson is a South African doctor who headed the country’s secret chemical and biological warfare project during the apartheid era. He was initially indicted and charged in 1999 for numerous ordinary crimes, including conspiracy to kill hundreds of members of the South West Africa People’s Organization (SWAPO) in Namibia in the 1980s. Basson had allegedly furnished cholera bacteria to poison the water supply of a SWAPO refugee camp. The court ruled Basson could not be prosecuted for crimes committed in Namibia, inter alia, because these crimes were committed outside SouthAfrica and were covered by a 1991 amnesty in Namibia. The court quashed the relevant charges on the grounds that they did not disclose an offence in South African law. In April 2002, at the end of a long trial, Basson was acquitted on all remaining counts. The prosecution appealed to the Supreme Court of Appeal, which in June 2003 refused to order a retrial. The state then petitioned the Constitutional Court, which on 10 March 2004 ruled that the quashing of the charges concerning crimes in Namibia raised issues of constitutional and international law.54 According to the Court, the alleged crimes in Namibia would possibly constitute war crimes which South Africa was obliged to prosecute. One of the judges referred to Article 146 and 147 of the Fourth Geneva Conventions, 51 See R. Murphy, UN Peacekeeping in Lebanon, Somalia and Kosovo: Operational and Legal Issues in Practice (Cambridge: Cambridge University Press, 2007), at 273^275. 52 See Rissing-van Saan, supra note 36, at 381 and Van Elst, supra note 16, at 829^830. 53 Reported in 7 Yearbook of International Humanitarian Law (YIHL) (2004) 588^590. 54 Constitutional Court of South-Africa, S. v. Basson, 10 March 2004, 2004 (6) BCLR 620 (CC), reported in 7 YIHL (2004) 588^590, available at http://www.saflii.org/za/cases/ZACC/2004/ 13.html (visited 15 July 2009).

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and concluded that the lack of attention paid by the Supreme Court of Appeal to South Africa’s international obligations as mandated by the Constitution raised a constitutional issue.55 After a full hearing, the Constitutional Court upheld the appeal, set aside the quashing of the charges and reinstated those charges.56 In doing so, the Constitutional Court held that it was unnecessary for the purposes of this case to investigate the precise characterization of the armed conflict in Namibia or the legal status of the area in which the combat took place, because there could be no doubt that the alleged crimes ‘grossly transgressed even the most minimal standards of international humanitarian law’.57 Rather than analysing whether or not the aut judicare, aut dedere obligation of the grave breaches regime applied, the Court pointed to ‘the international consensus on the normative desirability of prosecuting war criminals’58 as well as ‘the nature of the charges in the overall context of international law and South Africa’s international obligations’ (more generally).59 The ruling implied that Basson could still be prosecuted for these crimes. However, the Court refused to rule on the argument of the defence that a new trial would violate the double jeopardy rule, given the close relationship between the charges quashed and charges for which Basson was acquitted. On the one hand, this case demonstrates the potential of the grave breaches regime, even in trials where only ordinary crimes feature on the indictment. The quashing of the charges against Basson concerning conspiracy to commit crimes in Namibia was set aside by the Constitutional Court because of the international obligation to prosecute such crimes. It is notable that the Court in its 2005 judgment did not distinguish between the grave breaches regime and the international obligations regarding other war crimes, yet the grave breaches provisions from the Fourth Geneva Convention were mentioned explicitly in the 2004 ruling. On the other hand, these proceedings have not resulted in the actual prosecution of these crimes. After the judgment in 2005, the South African National Prosecuting Authority (NPA) announced that it would not institute renewed charges, concluding that doing so would raise double jeopardy issues.60 According to the NPA, the court in first instance had quashed the charges concerning crimes in Namibia, but acquitted Basson of a related conspiracy count. Thus, despite the Constitutional Court’s finding that international law demanded the prosecution of these crimes, Basson will not be tried after all. What remains is an on-going effort of the Health Professions Council of South Africa to have Basson barred from practising 55 Sachs J., xx117^123. 56 Constitutional Court of South-Africa, S. v. Basson, 2005 (12) BCLR 1192 (CC), 9 September 2005, available at http://www.saflii.org/za/cases/ZACC/2005/10.html (visited 15 July 2009), x263. 57 Ibid., x179. 58 Ibid., x183. 59 Ibid., x184. 60 ‘‘Relieved’ Basson eager to make a fresh start’, Pretoria News, 20 October 2005, available at http://www.pretorianews.co.za/index.php?fSectionId¼&fArticleId¼vn20051020063009437C 429672 (visited 15 July 2009).

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medicine.61 Given the gravity of the accusations, this can hardly be regarded as an effective penal sanction. Thus, the case of Basson demonstrates the potential of the grave breaches regime as a tool against impunity in domestic courts, but no more than that. Many national prosecutions of grave breaches on the basis of ordinary criminal law have been subjected to serious criticism regarding the charges laid, the manner in which the trials were conducted and the sanctions imposed. It should be noted, however, that trials which do reflect the character of the crimes as grave breaches are not necessarily exempt from such criticism. The courts-martial of seven British soldiers for what appeared to be the torture of several detainees resulting in the death of one of them, for example, resulted in one sentence of 12 months’ imprisonment.62 This appears to be a rather low sentence, despite the fact that the charge reflected that the victim was a protected person under the Fourth Geneva Convention. Thus, it cannot be concluded that prosecutions on charges of grave breaches are always more effective than prosecutions on the basis of ordinary criminal law.

5. The Relationship between National and International Law in Grave Breaches Prosecutions Now and then, domestic cases involving grave breaches apply law differently. This is not necessarily problematic, as long as the limits posed by international law are respected. Application of international criminal law in the domestic legal order can result in divergences between international rules and concepts and their adaptation in national law. Where such divergences are the result of a deliberate choice at the national level, there is not necessarily a problem. International law sets limits to the freedom of action of states, barring certain prosecutions (not all crimes may be prosecuted on the basis of universal jurisdiction) and demanding others (like those of grave breaches). But within these limits, and especially for their own territory and nationals, states are free to legislate and prosecute as they please. If states want to broaden the concept of genocide beyond the definition of the Genocide Convention, they are free to do so, and in fact, numerous states have done so by expanding the list of protected groups in their national laws.63 Likewise, states are in principle free to expand the list of acts classified as grave breaches, or to apply the grave breaches provisions to non-international as well as international armed conflicts. After all, the grave breaches regime stipulates only minimum requirements for prosecution and extradition and it does not provide an exhaustive 61 ‘Wouter Basson hearing postponed’, The Times, 24 November 2008, available at http://www.the times.co.za/News/Article.aspx?id¼891334 (visited 15 July 2009). 62 Rasiah, supra note 9, at 186^187. 63 Ferdinandusse, supra note 5, at 23^29.

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list of acts which may be prosecuted at the national level. The Commentary to the conventions recognized as much: Other grave breaches of the same character as those listed in Article 147 can easily be imagined. This was well understood when the Yugoslav Penal Code (Article 125) was adopted, since the following crimes were added to the list: forced change of nationality, forced conversion to another religion, forced prostitution, the use of intimidation and terrorization, collective punishments, illegal detention in a concentration camp, forced recruitment to the intelligence or administrative services of the Occupying Power, the starving of the population, the levying of illegal or excessive taxes or requisitions, the devaluation of the currency or the illegal issue of currency.64

If states did not have the option of adapting and expanding rules of international criminal and humanitarian law, they would be robbed of an important avenue to influence the development of that law: their contribution to state practice. In the Van Anraat case, which led to a conviction for grave breaches and other war crimes, a Dutch District Court took a markedly different view.65 The suspect had been charged with complicity in genocide and war crimes for supplying chemical weapons precursors to the Saddam Hussein regime in Iraq in the 1980s. The Court faced the question whether it should apply the Dutch standards of mens rea concerning complicity in genocide and war crimes or the (diverging) standards of international law. The Court noted that: [a] proper application of important rules of international criminal law by the national criminal court judge serves two purposes. In the first place he has to meet with the requirements and expectations of international criminal law regarding the penalization and prosecution of international crimes, which entails that liability under Dutch law should not fall short [of]66 liability under international law. Apart from that however, the Dutch judge must also respect the limits of liability according to international law. The court considers both elements to be of importance.67

The Court rejected the view forwarded by the prosecution that conventional notions of modes of liability in international law represent minimum obligations and therefore the Netherlands was allowed to go beyond those limits and exceed the bounds of international liability for its own nationals. The view of the Court deserves to be quoted in full: In the opinion of the court the prosecution service does not acknowledge the place of these conventions and crimes within an international system of standards of criminal law. 64 Pictet, supra note 3, Vol. IV, at 594. 65 District Court, The Hague, Van Anraat, 23 December 2005, available in Dutch at http:// www.rechtspraak (LJN: AU8685 (Dutch) and AX6406 (English)). See H.G. van der Wilt, ‘Genocide v. War Crimes in the Van Anraat Appeal’, 6 JICJ (2008) 557^567; idem, ‘Genocide, Complicity in Genocide and International v. Domestic Jurisdiction’, 4 JICJ (2006) 239^257 and W.N. Ferdinandusse, ‘The Dutch Experience’, in M. Cherif Bassiouni (ed.), International Criminal Law, Vol. III (3rd edn., Cambridge, MA: Cambridge University Press, 2008), at 392^394. 66 The official translation is ‘should not fall short as opposed to :::’, which appears to be a translation error. 67 Van Anraat, supra note 65, x 6.3.

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By assuming a larger liability under national law than customary under international law, in some cases based on national law a crime could be considered as an offense pertaining to international law, whereas the international community does not consider it as such. In this respect an important argument for the court concerning international crimes to give preference to the bounds of international liability instead of national liability, refers to universal jurisdiction connected with international crimes. Exceeding the liability limits of international criminal law, when a case is brought to trial under national law, could cancel the international basis for universal jurisdiction, while the latter can only be applied to practices that are indictable as criminal offenses under international law. In relation to this subject the prosecution argued that in the present proceedings there is no question of excessive jurisdiction from an international law point of view, seen that the accused is prosecuted based on the active nationality principle. The necessary consequence resulting from these considerations that, within the framework of starting proceedings against international crimes committed abroad, different standards of liability can be applied to Dutch nationals and foreign nationals, is considered by the court to be unacceptable, in any event when it concerns the crime of committing genocide.68

This view of the Court appears to require a rigid conformity to current standards of international criminal law, denying states even the freedom to depart from those standards for their own territory and nationals. In doing so, the Court disregards state practice, which shows many examples of national adjustment of international criminal and humanitarian law, which in turn can fuel a corresponding adjustment of international law. The European Court of Human Rights (ECtHR) was more on point when it reviewed the conviction in Germany of Jorgic¤ for genocide and murder committed in Bosnia^Herzegovina.69 Jorgic¤ headed a paramilitary unit in the Bosnian region of Doboj and was prosecuted for killings and other crimes which also amounted to grave breaches, all relating to the ethnic cleansing of that region. In convicting him of genocide, the German courts held that it was not necessary to prove that Jorgic¤ intended the physical destruction of the victim group but that intent to destroy the victim group as a social unit sufficed.70 Jorgic¤ challenged this interpretation of genocide as a violation of the principle of legality. Given the fact that the national courts’ interpretation of the crime of genocide could reasonably be regarded as consistent with the essence of that offence and could reasonably be foreseen by the applicant at the material time, the European Court found, ‘it was for the German courts to decide which interpretation of the crime of genocide under domestic law they wished to adopt.’71 In doing so, the ECtHR explicitly recognized that within the boundaries set by international law (e.g. international rules concerning mandatory prosecutions, the principle of legality and the limits of universal jurisdiction), states have the freedom to interpret and adapt international criminal law as they see fit. 68 69 70 71

Ibid. Jorgic¤ , supra note 15. ECtHR, Jorgic¤ v. Germany, Application No. 74613/01, 12 July 2007, xx 92^99. Ibid., x114.

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The Hague District Court, on the contrary, appears to envisage an ‘international system of standards of [international] criminal law’ which is uniform and static, except for changes introduced by treaty. This view ignores the fact that the Dutch legislature had already made the choice to apply different standards for Dutch nationals and foreign nationals, inter alia, by vesting active personality jurisdiction, but not universal jurisdiction over genocide (prior to 2003). To subscribe to this position and always require rigid conformity to current standards of international law, regardless of the mandatory or discretionary nature of those international rules, is to deny oneself influence on the development of international law and to rob international law of an important motor for that development. Needless to say, divergence between international law and its national application is more problematic where it stems from misunderstanding of the law rather than from a deliberate choice to adapt it within the limits posed by international law. For an outsider, however, it can be difficult to assess whether divergent application of international criminal law in the national legal order stems from a conscious adaptation or simply from an unintended erroneous reading of the law. A District Court in Kosovo in 2002 convicted a defendant for violations of Additional Protocol II (applicable to non-international armed conflicts) as well as Article 147 of the Fourth Geneva Convention (applicable to international armed conflicts).72 The case concerned crimes committed in Kosovo between September 1998 and 10 May 1999. The Supreme Court of Kosovo reversed the earlier decision, noting that Article 147 of the Fourth Geneva Convention was not applicable to the case. This may be a welcome correction of the District Court’s legal error but at the same time, the application of rules taken from Additional Protocol II and the grave breaches regime to the same crimes is well possible, either because the legislature has declared both sets of rules applicable to the same armed conflicts or because some of those rules are applied as an expression of customary international law or even because the crimes have been committed within the framework of both an international and a non-international armed conflict simultaneously. Indeed, a Swedish District Court in 2006 applied rules taken from Additional Protocol II and the Third and Fourth Geneva Conventions to the same set of crimes as an expression of applicable customary international law.73 The defendant in that case was a Swedish national who went to the Balkans in 1993 and served in a military unit of the Croatian Council of Defence (‘HVO’). He was arrested on 1 May 1995 in Mostar, Bosnia and Herzegovina, and later tried in Sweden for various crimes against civilians and prisoners of war committed in the vicinity of Mostar. The Swedish Court 72 Supreme Court of Kosovo,Vuckovic¤ , 15 July 2004, as reported in 7 YIHL (2004) 583^584. 73 District Court of Stockholm, Arklo«f, 18 December 2006, as reported in Oxford Reports on International Law in Domestic Courts (ILDC) (SE 2006) 633. See also M. Klamberg, ‘International Criminal Law in Swedish Courts: The Principle of Legality in the Arklo«v Case’, 9 International Criminal Law Review (2009) 395.

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found the crimes to have been committed in a non-international armed conflict. Interestingly, the Court not only applied Common Article 3 and Additional Protocol II, but also found the rules expressed in the grave breaches provisions of Article 130 of the Third Geneva Convention, Article 147 of the Fourth Geneva Convention and Article 85 of Additional Protocol I to be applicable to non-international armed conflicts as a matter of customary international law.74 The defendant was convicted on numerous counts, including unlawful confinement and torture. Since he was already serving a life sentence for other crimes, no additional sentence was imposed. In Belgium the grave breaches regime has been applied to the armed conflict in Rwanda in 1994, which has been widely recognized as a non-international armed conflict. In a Belgian prosecution of Rwandan war crimes committed during the1994 genocide in the pre¤ fecture of Kibungo, the Court in 2005 applied, inter alia, Article 50 of the Second Geneva Convention and Article 130 of the Third Geneva Convention.75 It has been asserted that ‘Belgium believes that the grave breaches aimed at by the Geneva Conventions and Additional Protocol I are also war crimes when committed in a non-international armed conflict.’76 If that is so, one cannot exclude the possibility that a Belgian Court mentions grave breaches provisions, as a source of norms which the legislature has made applicable to non-international armed conflicts. Still, as a Belgian commentator noted, it is ‘rather difficult to see what is the relationship, with the Rwandan conflict, of provisions applicable to international armed conflicts, maritime warfare [!] and prisoners of war :::.’77 As these examples show, care should be taken in the analysis of foreign judgments, since it is not always readily discernible whether a divergent application of international law is in error, or a deliberate adaptation on the national level.

6. Alleged Grave Breaches Left Unprosecuted Allegations of grave breaches left unprosecuted vastly outnumber actual prosecutions. It has been noted time and again that states do not live up to their obligations under the grave breaches regime.78 Some of these alleged grave breaches and the following lack of prosecutions are highly publicized, such as the 1999 NATO bombing of the (then) Federal Republic of Yugoslavia.79 74 xx 124^139, as reported in ILDC 633 (SE 2006). 75 Court of Assizes of Brussels, Nzabonimana and Ndashyikirwa, 29 June 2005, as reported in 8 YIHL (2005) 398^399. 76 J.-M. Henckaerts and L. Doswald-Beck (eds), Customary International Humanitarian Law, Vol. II: Practice (Cambridge: Cambridge University Press, 2005), at 3871. 77 Court of Assizes of Brussels, Nzabonimana and Ndashyikirwa, as reported in 8 YIHL (2005) 399. 78 Ferdinandusse, supra note 5. 79 See Amnesty International, ‘Collateral damage’ or unlawful killings? Violations of the Laws of War by NATO during Operation Allied Force, 5 June 2000, AI Index No. EUR/70/018/2000, at 9^11 and 24; ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia’, 13 June 2000 (leading to the

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Many other grave breaches go unprosecuted with less attention. Their existence can be discerned from media reports, reports of non-governmental organizations or other judicial proceedings. The ECtHR, for example, found Turkey to be responsible for human rights violations in Cyprus which appear to constitute grave breaches.80 Several possible explanations may be noted for the lack of prosecutions. First, it appears that for quite some time now, most armed conflicts in the world are of a non-international character.81 Non-international armed conflicts often give rise to serious and widespread war crimes, but do not trigger the grave breaches regime. They may nonetheless give rise to large scale prosecutions for war crimes and other international crimes, as the cases of Rwanda and Ethiopia demonstrate. This is especially the case when members of the defeated party are either captured or chased out of the country, which makes them more vulnerable to prosecution than members of an armed force who can stay in a country which supports their war effort. Indeed, it appears that the most systematic prosecutions for international crimes in armed conflicts in the last decades have been undertaken against regimes defeated in civil wars (Rwanda and Ethiopia). Prosecutions of war crimes against suspects residing in their own environment have been far from systematic, even in the case of serious international pressure (e.g. in the countries of the former Yugoslavia). Second, grave breaches prosecutions are more stigmatized and therefore politically controversial than domestic crimes. Indeed, the International Law Commission based its work on the Draft Code of Offences Against the Peace and Security of Mankind on ‘the idea that such offences cause a certain difficulty in the relationships between peoples and may aggravate still further the dissensions which led to the state of war.’82 The wider impact of war crimes prosecutions on international relations and tense situations on the ground often do not provide a stimulus to prosecute grave breaches. Some of this impact is alleviated by the immunity provided by international law to certain state officials, which may prevent grave breaches prosecutions from taking place. In 2004, for example, a judge in the United Kingdom declined to issue an arrest warrant for grave breaches as defined in Article 147 of the Fourth Geneva Convention against Israeli defence minister Shaoul Mofaz on the basis of the latter’s immunity. The application for the arrest warrant concerned decision of the Prosecutor of the ICTY not to investigate), available at http://www.un.org/icty/ pressreal/nato061300.htm (visited 9 June 2009); M. Bothe, ‘The Protection of the Civilian Population and NATO Bombing on Yugoslavia: Comments on a Report to the Prosecutor of the ICTY’, 12 European Journal of International Law (2001) 531^536 (criticizing the ICTY report) and Amnesty International Press release, ‘No justice for the victims of NATO bombings’, 23 April 2009. 80 ECtHR, Cyprus v. Turkey, Application No. 25781/94, 10 May 2001 (inter alia, finding Turkish violations of the right to life and the prohibition of inhuman or degrading treatment concerning persons in Turkish captivity during or after the military operations of 1974). 81 See e.g. 4 YIHL (2001) 258, noting that almost all of the major armed conflicts in that year were non-international. 82 Pictet, supra note 3, Vol. IV, at 588.

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Mofaz’s involvement in Israel’s policy of targeted killings. In his decision, the judge did note that ‘the extensive evidence of witnesses supplied to me, together with relevant reports ::: could certainly amount to ‘‘grave breaches’’.’83 Third, grave breaches prosecutions often are complex, time-consuming and expensive. In a world where judicial authorities are almost invariably overburdened and forced to prioritize, cases of grave breaches do not automatically receive the attention they deserve. Occasionally, the complexity of the law governing grave breaches is explicitly named as an obstructing factor in upholding the law. In the curious case of Ex parte Thring (2000), a British Court of Appeal held in no uncertain terms that the notion of an indiscriminate attack was too complicated for judicial review.84 One of the judges stated that the court faced what seems to me to be an almost insuperable problem. In order to determine whether an attack was indiscriminate within art 51 (5)(b) of the Geneva Convention85, it would be necessary to consider whether an attack or attacks might be expected to cause: ‘:::. incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’ This would involve a consideration of the military advantages concerned.86

Thus, the judge concluded, the court could not sensibly carry out an analysis of such military advantages or disadvantages. His colleague agreed, calling the courts ‘ill-equipped in these matters’ and concluding that: it would be necessary to go into what happened on the occasions upon which the Royal Air Force used either missiles or bombs. It would then be necessary for the court to have evidence about the ‘concrete and direct military advantage anticipated’; and, having had that, it would then be necessary for the court to exercise its judgment, as I read the paragraph, as to whether or not that advantage was excessive in relation to the incidental loss of civilian life, injury to civilians or damage to civilian objects, or a combination thereof. In my judgment, the resolution of such issues is not susceptible to judicial review.87

While this concerned a civil case regarding an injunction to carry out military operations in Iraq, the language broadly disqualifies the ability of the judiciary to judge the notion of an indiscriminate attack, which is a grave breach under Article 85 Additional Protocol I. One can imagine how such considerations in other cases can have a less visible but equally negative impact on the decision whether or not to pursue an investigation or prosecution of alleged grave breaches. 83 United Kingdom, Bow Street Magistrates’ Court, Application for Arrest Warrant Against General Shaul Mofaz (First instance), unreported, 12 February 2004, available at http://www.adhgeneva.ch/RULAC/pdf_state/Application-for-Arrest-Warrant-Against-General-Shaul-Mofaz.pdf (visited 15 July 2009). 84 United Kingdom, Court of Appeal (Civil Division), R. v. Secretary of State ex parte Thring, 20 July 2000, unreported, available at http://www.icrc.org/ihl-nat.nsf (visited 9 June 2009). 85 Sic, presumably the Court means AP I. 86 Ibid., Clarke LJ. 87 Ibid., Bennett J.

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All in all, universality of punishment for grave breaches is still more hope than reality.

7. Conclusion Practice shows that grave breaches have been prosecuted in national courts in very different ways. They have been charged as grave breaches, as other international crimes like genocide or crimes against humanity, or as ordinary crimes like murder or manslaughter. These prosecutions have led to serious sentences, to sentences that appear to be rather light and to acquittals. In some of these trials, the Geneva Conventions were not mentioned at all. In others, the grave breaches regime was analysed at length. These trials do show that the grave breaches regime can be an effective instrument in the fight against impunity for war crimes, when it is taken seriously by the states involved. Still, it appears that there are many more grave breaches left unprosecuted than actual prosecutions. The role of the ICC provides some incentive for states parties to take their obligations under the grave breaches regime more seriously in the future. Indeed, in numerous countries the example set by the ad hoc tribunals and the implementation of the ICC Statute have led to a notable increase in national prosecutions for international crimes, including grave breaches.88 It remains to be seen, however, whether the role of the ICC will move practice further in the direction of the universality of punishment intended by the drafters of the Geneva Conventions. 88 For a broad overview of recent prosecutions concerning international crimes, see J. Rikhof, ‘Fewer Places to Hide? The Impact of Domestic War Crimes Prosecutions on International Impunity’, 20 Criminal Law Forum (2009) 1.