The Future of the Grave Breaches Regime: Segregate, Assimilate or Abandon

James G. Stewart (ed) The Grave Breaches Regime in the Geneva Convention: A Reassessment Sixty Years On, Journal of International Criminal Justice, Vol. 7(4) 2009 (peer reviewed)

21 Pages Posted: 6 Jan 2016

See all articles by James Graham Stewart

James Graham Stewart

University of British Columbia (UBC), Faculty of Law

Date Written: June 1, 2009

Abstract

Grave breaches of the Geneva Conventions are one type of war crime. In this Article, I argue that the grave breaches regime has three possible futures. In the first, the regime remains segregated from other categories of war crimes in deference to the historical development of these crimes. This future, however, is one that will see a relatively dramatic decline in the use of grave breaches in practice, primarily because other offences cover the same acts more efficiently. In the second possible future, the grave breaches are entirely abandoned, but this eventuality seems both improbable and undesirable. Even though judicial pragmatism has diminished aspects of the grave breaches regime that were once unique, grave breaches still offer important features over and above all alternatives. The grave breaches regime is therefore unlikely to disappear entirely. A third possible future involves assimilating the grave breaches with other categories of war crimes, ideally through the promulgation of a more coherent treaty regime. In the short term, this proposition appears politically untenable, leaving judges to unify the stark disparities between grave breaches and other war crimes. A future that continues to adopt this course will nonetheless pose serious problems for the discipline in the years to come. Over the longer term, a treaty creating a more comprehensive code governing all war crimes is therefore inevitable.

Keywords: War Crimes, Grave Breaches, Geneva Conventions, International Criminal Law

Suggested Citation

Stewart, James Graham, The Future of the Grave Breaches Regime: Segregate, Assimilate or Abandon (June 1, 2009). James G. Stewart (ed) The Grave Breaches Regime in the Geneva Convention: A Reassessment Sixty Years On, Journal of International Criminal Justice, Vol. 7(4) 2009 (peer reviewed), Available at SSRN: https://ssrn.com/abstract=2710924 or http://dx.doi.org/10.2139/ssrn.2710924

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