All Other Breaches: State Practice and the Geneva Conventions’ Nebulous Class of Less Discussed Prohibitions

With respect to the protections afforded by the Geneva Conventions, a great deal of ink has been spilled in recent years over the two-tiered system of tribunals employed by the United States in its prosecution of enemy combatants in the “war on terror.” Less discussed, though, is the wholly separate two-tiered system for sorting violators of the Geneva Conventions that emerges from the very text of those agreements. This stratification is a function of the Conventions’ distinction between those who commit “grave breaches” and those who merely commit “acts contrary to the provisions of the present convention” or “all other breaches,” which are also sometimes referred to as “simple breaches” or “minor violations.” Relatively little has been written regarding these minor breaches; they have typically been dismissed as “not important enough” to justify thorough treatment. Although the original Conventions are clear that High Contracting Parties are to “take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than . . . grave breaches,” no other mention of such other-than-grave breaches is made within their text. In his authoritative commentary on the Geneva Conventions, Jean Pictet—whom the International Committee of the Red Cross (ICRC) has called the “main architect of the Geneva Conventions” —posits that the duty to suppress all breaches of the Conventions requires High Contracting Parties to legislate enforcement mechanisms for suppressing simple breaches; nevertheless, states parties that have taken the extraordinary step of legislatively proscribing—let alone criminalizing— minor violations are rare enough that they remain notable exceptions from the mainstream of state practice.