Treaties, States Parties and Commentaries
  • Print page
Commentary of 1960 

During the Second World War there were a considerable number of cases of violent death of prisoners of war and some of the Governments concerned then agreed on special procedures to punish the guilty persons. It was particularly desirable to render sentries less hasty by the threat of penalties. The Conference of Government Experts agreed with a proposal to insert a provision to this effect in the Convention (1), and it was subsequently accepted without difficulty by the 1949 Diplomatic Conference (2).
The Conference already contains a large number of provisions to safeguard prisoners of war and prohibiting any attack on their physical integrity or their health. The purpose of the present Article is therefore not to reiterate a general rule such as that contained in Article 13 , which requires the Detaining Power to treat prisoners of war humanely, but to punish any attack on the physical integrity of prisoners of war, whoever the guilty person may be. It therefore concerns not [p.570] only relations between prisoners of war and the Detaining Power but also those between prisoners of war themselves.


What is meant by "serious injury"? At the 1949 Diplomatic Conference one delegation suggested that it should be made clear that the term referred to an injury "as a result of which the prisoner requires in-patient treatment in a hospital or infirmary"; this definition was not approved, however (3), and it might indeed have made the application of the Article too rigid. An injury may be not at all serious and nevertheless require treatment in the infirmary. Furthermore, it would have been dangerous to make the opening of an enquiry depend on whether or not the patient had been admitted to hospital for treatment. The two things must remain quite separate.
Prisoners of war must be protected not only against the deeds of representatives of the Detaining Power (guards or sentries), but also against violence by civilians of any nationality and by fellow-prisoners. The present Article therefore enables the Detaining Power to repress any disturbances which might arise in the camps for political or other reasons, not only in order to maintain order and discipline, but also to protect the life and limb of those who would be endangered.
An enquiry will also be opened in any case of death from unknown causes. This may refer to illness as well as to violent death. There is no reference to injuries since the injured person can as a rule determine the cause of the injury. This may not always be the case, however, and in that event an enquiry may also be opened to determine the guilty person or persons.
What should the enquiry comprise? Its object is to establish the circumstances of death and discover who was responsible. The victim must therefore be thoroughly examined, if necessary by an expert in forensic medicine and all witnesses must be heard as well as the person who made the attack, if any. The enquiry will generally be conducted by the camp authorities. The term "official enquiry" may, however, also refer to action by a superior authority with specialized responsibilities, that is to say the military judicial authorities, who will institute an investigation similar to that which is customary in cases occurring in the national armed forces. This procedure is all the more desirable since the responsibility of the military command may well be involved.


The present paragraph provides that once the enquiry is completed, the Protecting Power must receive "a communication on this subject". The wording is brief and does not imply that the relevant files must be sent to the Protecting Power. It seems proper, however, that the communication should not merely consist of a statement that the enquiry has been held; it should also indicate the authority which conducted it, together with the date, circumstances, and should include a detailed report on the findings. The evidence given by other prisoners of war should also be communicated.
On the basis of this report, the Protecting Power will notify the Power of origin of the victims and will also ensure that the person or persons responsible are prosecuted (paragraph 3). In addition, it will make representations to the Detaining Power if it considers that the enquiry was not sufficiently thorough or that the conclusions reached require further comment.


If the persons responsible are not prisoners of war, the Detaining Power will apply its domestic legislation to them. If they are prisoners of war, the laws in force in the armed forces of the Detaining Power will be applicable, pursuant to Article 82, paragraph 1 (4).

* (1) [(2) p.569] See ' Report on the Work of the Conference of
Government Experts ', p. 249;

(2) [(3) p.569] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 400;

(3) [(1) p.570] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 298;

(4) [(1) p.571] For further comments reference should be made
to the commentary on Article 82 and following;