5. The Post-1945 Conventions: Punishment and Compensation

The various conventions concluded since 1949 contain far more on the punishment of violations than did their predecessors.

The 1948 Genocide Convention, Article VI, contains provisions for the trial, whether by national or international tribunals, of persons charged with offences under the Convention. However, these provisions are puny and inadequate when the treaty's full title (Convention on the Prevention and Punishment of the Crime of Genocide), and the scope and seriousness of the problem which it purports to tackle, are borne in mind. Article VIII breaks new ground in specifying that any contracting state "may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide

The 1949 Geneva Conventions introduce a special category of "grave breaches", and outline a system of penal sanctions for persons committing them. Convention IV defines grave breaches thus:

"Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly".

The immediately preceding article, which is common to all four 1949 Geneva Conventions, requires states parties to enact any necessary legislation to punish grave breaches of the conventions; and to search for people who have committed, or ordered, such breaches. States may also hand such suspected persons over for trial in another state, provided a prima facie case has been made out. States are also to take measures necessary for the suppression of breaches other than grave breaches. This article follows the well-trodden path of relying on states for enforcement, but it does contain significant new provisions in that regard. National courts, which are to have penal jurisdiction to implement the Conventions, are to have jurisdiction over all individuals, regardless of nationality, alleged to have committed grave breaches. This system has obvious, but inevitable, weaknesses. In practice, states not involved in a conflict have proved reluctant to fulfil the obligation to try suspected offenders. A related difficulty concerns extradition. If a state is unwilling to punish a war criminal residing in its territory, it may prove difficult for another state to secure extradition, as the provision in the common article of the conventions is purely permissive. The easy way out for any war criminal is still to go to a country which does not have the political desire to punish him or her, and does not have extradition agreements with those who do.

Overall, the punishment provisions of the 1949 Geneva Conventions have proved vulnerable to the familiar objection that governments are generally reluctant to prosecute their own servants for violations of the laws of war. Further, courts may be reluctant to act independently of the political stance of their respective governments. The punishment provisions of the 1949 Geneva Conventions are also open to the possible objection that they allow for trials to be held in wartime, when passions may be high and the evidence incomplete. Finally, some problems may arise from the fact that the penal provisions, by providing for action by the state, do not envisage legal actions by injured parties. This is in contrast with the rather different procedures in human rights law.

The payment of compensation, or reparations, has consistently been provided for in the laws of war as one means of making amends, and has often been practiced. This whole approach is very different from provisions for trials, as it involves for the most part taking action against the state as a whole, rather than against individuals; and it is often decided by political-diplomatic rather than judicial bodies. Compensation was mentioned, as noted above, in the 1907 Hague Convention IV, Article 3, the words of which were adapted only slightly in the 1977 Geneva Protocol I, which says: "A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces".

As far as non-international armed conflicts are concerned, the post 1945 international conventions that touch on this subject make hardly any provision for punishment or compensation. Common Article 3 of the 1949 Geneva Conventions, and the 1977 Geneva Protocol II, do establish some minimal rules regarding such conflicts, and states do have the right to punish breaches of those rules. Despite this, Denise Plattner was basically right to conclude in 1990: "The rules establishing international responsibility for violations of IHL applicable in non-international armed conflicts are yet to be made". Since then, the adoption by the UN Security Council of the Statute for the International Tribunal for Rwanda (which, in contrast to the tribunal on Yugoslavia, is predicated on the assumption that the conflict in Rwanda is non-international) provides some legal reinforcement to the claim that failure to observe certain basic humanitarian rules is an international offence even in civil wars.