Treaties, States Parties and Commentaries
Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- PROCEDURE: I. CONFINEMENT AWAITING HEARING
[p.456] GENERAL REMARKS
The corresponding provision in the 1929 Convention was contained in Article 47, paragraph 1
The offences punishable by disciplinary measures are of a minor character, either because the offence itself is of no great importance, or because there is no criminal intent on the part of the offender. No disciplinary punishment may be awarded without a preliminary investigation (Article 96, paragraph 1
), but that investigation will never be as complicated as a judicial enquiry, and in general there is no justification for any great delay between the time when the offence is discovered and the awarding of punishment. It is therefore seldom necessary to confine a prisoner of war awaiting hearing.
This rule is recognized by most national legislations, especially that of the Anglo-Saxon countries on which the present provisions were largely based (2).
PARAGRAPH 1. -- PROHIBITION OF CONFINEMENT
AWAITING HEARING AND EXCEPTIONS THERETO
As a general rule, it is forbidden to keep a prisoner of war accused of a disciplinary offence in confinement pending the hearing, and any exception to this rule must be substantiated. This is the novel feature of the principle stated here. The best way of avoiding any recurrence of previous abuse regarding confinement while awaiting hearing (3) [p.457] is obviously to forbid it. This prohibition is justified moreover by the considerations already stated, subject to certain specified reservations; most national legislations do not make provision for confinement while awaiting hearing in disciplinary matters.
With regard to the needs of "the interests of camp order and discipline", this reference must be interpreted in a restrictive way if the prohibition is to be truly valid, for it presupposes that it is impossible to award punishment immediately, either because special circumstances make the investigation particularly difficult, or because there is no competent authority to conduct the hearing.
PARAGRAPH 2. -- MAXIMUM DURATION
The wording of Article 47, paragraph 1
, of the 1929 Convention was rather vague and gave rise to much abuse; the drafters of the new Convention therefore decided to specify that, whatever the circumstances, a prisoner of war accused of a disciplinary offence must be released after fourteen days confinement. This time equals half the maximum sentence of imprisonment applicable. The release obviously does not prejudice the ultimate findings, provided the time spent in confinement awaiting hearing is deducted in accordance with Article 90
PARAGRAPH 3. -- SAFEGUARDS
This provision is also new and is intended to prevent any recurrence of certain abuses committed during the Second World War (detention in special camps to which prisoners' representatives and Protecting Powers had no access, suppression of essential privileges and guarantees, etc.) (4).
* (1) [(1) p.456] See below, p. 731;
(2) [(2) p.456] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 505;
(3) [(3) p.456] See FREY, op. cit., p. 109 ff.; BRETONNI RE,
op. cit., pp. 313-314;
(4) [(1) p.457] See BRETONNI RE, op. cit., pp. 313-314;
' Report on the Work of the Conference of Government
Experts, ' p. 208;