We Need to Talk About Grave Breaches of the Geneva Conventions

[Andrew Clapham is Professor of International Law at the Geneva Graduate Institute and the author of “Human Rights: A Very Short Introduction and War“.]

The arrest warrants issued by the International Criminal Court (ICC) for Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova have generated a lot of talk about the absence of any obligation on Russia to comply due to Russia not being a party to the Statute of the ICC. In addition, we have seen a secondary debate about the personal immunity of a head of state from a non-party to the ICC Statute. Thirdly, the discussions around the various proposals for a tribunal to prosecute the crime of aggression have in turn often focused on the possibility of trying a sitting head of state from a state that objects to the creation of such a tribunal. Kevin Jon Heller has recently appealed to international lawyers not to get too distracted with these questions of personal immunity, on the grounds that the threat of an international tribunal prosecuting a sitting head of state is ‘largely academic’ as there is little chance that ‘such a tribunal would ever get its hands on one’. I think he is right to present this debate about sitting heads of state as a distraction. In fact, I think we could instead be looking at all those who shape and influence an aggression, and be thinking about complicity in aggression, including, as explained by Nikola Hajdin, the responsibility of individuals in the private sector.

In this piece, however, I wanted here to highlight a fourth issue arises in the wake of the arrest warrants issued by the ICC: the need to talk about the regime that is universally accepted by all states under the Geneva Conventions of 1949. This is the grave breaches regime for the prosecution or surrender of those alleged to have committed grave breaches of those Conventions. Russia is a party to these Conventions and to Additional Protocol I which defines further relevant grave breaches. The regime created obligations for every state whether or not they have signed up for the ICC Statute. Grave breaches of the Geneva Convention create crimes of universal obligation.

The ICC’s press release refers to the ‘the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation’.  Under Article 147 of the Fourth Geneva Convention 1949 it is a grave breach to unlawfully deport or transfer a protected person from occupied territory. Whether or not Russia is a party to the ICC Statute is irrelevant for the purposes of talking about the individual international criminal responsibility of Russians who are alleged to have committed this crime. Every state in the world is under an obligation (as set out in Article 146) ‘to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a “prima facie” case.’ Whether the allegation comes from the ICC, or someone else, all states have this treaty obligation to act on allegations. The updated ICRC Commentary (2020) to this provision in the Third Geneva Convention, however, states: ‘It is not clear whether prosecutors or investigating magistrates know that they are under an obligation to investigate allegations of grave breaches.’ (Para 5156). As pointed out by Revaz Tkemaladze the same updated Commentary explains that the drafters of the Geneva Conventions foresaw surrender to an international court under this provision. In fact, while some prosecutorial authorities may be unaware of the state’s obligations, the possibilities should not be limited to the immediate prospects of an arrest of someone present on the territory. The obligation to search for alleged perpetrators need not be limited graphically, as explained by Paola Gaeta in a Commentary to the 1949 Conventions: ‘if a state has sufficient information to believe that a person has committed a grave breach and has grounds to believe that this person is under the jurisdiction of another state, it can submit to the latter a request for surrender or extradition.’ (Para 39).

The press release refers to President Putin’s alleged responsibility for ‘for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute).’ These subordinates would seem also to be guilty of the grave breach of the Geneva Conventions and could be prosecuted in any state in the world. There is no reason to believe that they would be covered by any immunity, in particular as Russia is a state party to the Geneva Conventions which foresees such prosecutions by foreign states. Whether or not arrest warrants are forthcoming from the ICC, these subordinates are liable to arrest and prosecution everywhere that has the relevant legislation.

The point is that the war crime of transfer or deportation from occupied territory applies to everyone irrespective of whether their state has ratified the ICC Statute, and they can be tried in multiple states around the world, irrespective of whether those states are parties to the ICC Statute. The idea that anyone can avoid accountability for grave breaches by sticking to non-ICC states for one’s trips is fallacious when that person is alleged to have committed grave breaches of the Geneva Conventions.

Interestingly, earlier this year the United States adopted new legislation entitled the ‘Justice for Victims of War Crimes Act’ which now allows for prosecutions for grave breaches of the Geneva Conventions in the United States where there is no connection to the USA apart from the presence of the alleged perpetrator in the United States. President Biden signed this into law on 5 January 2023. The fact that neither the United States nor Russia are parties to the ICC makes no difference, the regime is the grave breaches regime of the 1949 Geneva Conventions, which has been accepted by every state. Indeed the United States defines the relevant war crimes in this context by reference to this regime Title 18 §2441(c)(1).  Other states, such as the UK or Uganda, have legislation simply entitled the ‘Geneva Conventions Act’ which operate in a similar way. These Acts predate the ICC and operate separately from it.

Importantly, the UK Geneva Conventions Act 1957 (as amended) includes the grave breaches in Additional Protocol I, which are applicable in the Ukraine-Russia conflict as both states have ratified this treaty. Such grave breaches include: wilfully launching an indiscriminate attack causing death or serious injury to body or health, 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, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Section 1A(b) of the Act and Articles 85(3)(b) and 57(2)(a)(iii) of the Protocol.

In the coming months and years more allegations will be made about war crimes in Ukraine. Whatever the nationality of the alleged perpetrator, every state in the world has an obligation either to investigate and prosecute or ‘hand such persons over’ (note not extradite) to another state. Rather than suggesting that only part of the world could or should react to the indictments, it is worth remembering that the particular war crimes mentioned in the indictment are crimes of universal jurisdiction. Future allegations, whether coming from the ICC or other sources, will most likely relate to grave breaches of the Geneva Conventions and Additional Protocol I. States around the world will have obligations to address these allegations. It’s time to talk about grave breaches.