Prosecution of War Crimes by Invading and Occupying Forces

Applicable Legislation and Competent Courts

in Journal of International Humanitarian Legal Studies
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The paper will consider prosecution of civilians protected under the Fourth Geneva Convention for war crimes, focusing on applicable legislation and competent courts. It will first focus on occupying forces looking at both the issue of applicable legislation and competent courts then shift its focus to invading forces. The paper will conclude by briefly recapping its findings and commenting on whether the same strike a proper balance between ensuring prosecution of war criminals and protection of protected civilians.

Prosecution of War Crimes by Invading and Occupying Forces

Applicable Legislation and Competent Courts

in Journal of International Humanitarian Legal Studies




 See M. Sassoli‘A plea in Defence of Pictet and the Inhabitants of Territories Under Invasion: the Case for the Applicability of the Fourth Convention During the Invasion Phase’ in ‘Is the Law of Occupation Applicable to the Invasion Phase?’ Debate with Marten Zwanenburg Michael Bothe and Marco Sassoli94 irrc 29 (2012) at 44–50; see also M. Sassoli et al. How does Law Protect in War? Cases Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law Vol. 1 (2011) at 211–212; J.S. Pictet (ed.) The Geneva Convention of 12 August 1949: Commentary (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958) at 60 (last accessed 16 August 2013) (Pictet Commentary).


 See Sassoli‘A Plea in Defence of Pictet’ 43–45; see also M. Sassoli et al. How does law protect in War?ibid. at 211–212.


 See Bantekas and Nashsupra note 22 at 141; see also Third us Restatementibid. at 232; see also Cryer ibid. at 44


 See Akehurstsupra note 25 at 146; See also Judgment Al Sadoon and Mufdhi vs The uk Application no. 61498/08 ecthr Chamber 2 March 2010 paras 110–112 at 48–49 where the uk government argued it could not continue detaining or transfer two Iraqi nationals from Iraq (in 2008) for war crimes trials in the uk without the consent of the Iraqi government as the same would violate sovereignty of Iraq. This position is in tandem with international law on exercise of enforcement jurisdiction. At the time the uk was not an in invading or occupying power in Iraq occupation having ended sometime in 2004 and its presence in Iraq at the time was with consent of the Iraqi government. Therefore ihl exceptions on the exercise of enforcement jurisdiction available to an occupying or invading force with regard to prosecution of war crimes (see infra 2 and 3)were not applicable at the time to the uk.


 See O’Keefesupra note 26 at 738–739; see also Cryer supra note 21 at 46–62.


 See Lotus casesupra note 25 at 23 30; see also Akehurst supra note 25 at 152.


 See Dinsteinsupra note 5 at 109.


 See O’Keefesupra note 26 at 742.


 See Akehurstsupra note 25 at 152.


 See Cryersupra note 21 at 49–51; see also Cassese et al. supra note 27 at 274 and 277.


 See O’Keefesupra note 26 at 745.


 See Blewittsupra note 67 at 301–324; see also Triggs supra note 67 at 123–149.


 See Amesaringhesupra note 66 at 244–248.


Bassiouni‘Universal Jurisdiction for International Crimes’supra note 54 at 168.


 See Cryersupra note 21 at 75.


Sassolisupra note 83 at 670.


 See for instancesupra note 3 at 28.


 See also Von Glahnsupra note 5 at 100–101; Sassoli supra note 83 at 674; Dinstein ibid. at 112–113; H.-P. Gasser ‘Protection of the Civilian Population’ in D. Fleck (ed.) The Handbook of International Humanitarian Law 237 (2009) at 288.


 See Sassolisupra note 83 at 675; see also Dinstein supra note 5 at 113.


 See Sassolisupra note 83 at 678; Von Glahn supra note 5 at 101; Gasser supra note 91 at 287.


 See Takahashisupra note 93 at 165.


 See Pictet Commentarysupra note 13 at 337.


 See Takahashisupra note 93 at 164–165.


Gassersupra note 91 at 304.


 See Sassolisupra note 83 at 668; see also Von Glahn supra note 5 at 94; Takahashi supra note 93 at 97.


SeeVon Glahnsupra note 5 at 31.


 See Dinsteinsupra note 5 at 131 where he notes the Israel Knesset has passed extra territorial legislation applicable to Israel settlers in occupied territory but such settlers are still subject to the jurisdictional powers of the military government. However where this legislation is enforced in occupied territory this would indeed be a violation of the general rule on extension of domestic legislation in occupied territory. See V. Tilley (ed.) Beyond Occupation: Apartheid Colonialism and International Law in the Occupied Palestinian Territories (2012) at 66–68; see also E. Benvenisti The International Law of Occupation (2012) at 228–233. See also Judgement Al Skeini and others Vs The uk Application no. 55721/07 ecthr Grand Chamber 7 July 2001 at para 119 where the uk government considered that its domestic criminal laws applied extra territorially to its nationals in occupied Iraq.


Von Glahnsupra note 5 at 95.


 See Benvenistisupra note 107 at 229. However exercise of extraterritorial adjudicative jurisdiction by such courts would only violate international law if the same is not pegged on accepted jurisdictional links in international law.


 See Dinsteinsupra note 65 at 21; see also W. Ferdinandusse ‘The Prosecution of Grave Breaches in National Courts’ 7 jicj 723 (2009) at 723–724; M. Sassoli ‘Humanitarian law and International Criminal Law’ in. A. Cassese (ed.) Oxford Companion to International Criminal Justice 111 (2009) at 112–113.


 See also Dormann and Geißsupra note 77 at 709.


 See Gassersupra note 91 at 304.


 See Pictet Commentarysupra note 13 at 350.


 See O Keefesupra note 112 at 823; see also H. Lauterpacht ‘The Law of Nations and the Punishment of War Crimes’ 21 byil 58 (1944) at 67.


 See G.I.A.D. Draper‘The Implementation and Enforcement of the Geneva Conventions of 1949 and the Additional Protocols of 1978’Recuiel des cours 9 (1979) at 38–39.


Von Glahnsupra note 5 at 116.


Krajisniksupra note 129 para. 304; see also Stakic supra note 129 para. 278.


Stakicsupra note 129 para. 279.


 See Drapersupra note 125 at 38.


 See also Baldreesupra note 126 at 131.


 See Von Glahnsupra note 5 at 107; see also Dinstein supra note 5 at 140.


 See Cassesesupra note 27 at 316.


 See Dinsteinsupra note 5 at 140–141; see also Von Glahn supra note 5 at 107; Cassesse ibid. at 316 (proposing the rule should apply to at least to international crimes except where a few conditions are met).


 See Dinsteinsupra note 65 at 316–317.


 See Lauterpachtsupra note 121 at 67; see also Draper supra note 125 at 31–36.


 See Drapersupra note 125 at 35–36.


Lauterpachtsupra note 121 at 67.


 See Drapersupra note 125 at 37.


 See also Drapersupra note 125 at 38 where he notes courts martial would be employed for trial only of PoWs where competent under domestic law.


 See Sassolisupra note 13 at 49.

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