Treaties, States Parties and Commentaries
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Commentary of 1958 


Disciplinary penalties are aimed at repressing minor breaches such as offences against discipline or internment regulations. Since they are not designed to punish ordinary offences against the law, they must not be as serious as judicial punishments.
During the Second World War, an empirical system was adopted to ensure the keeping of discipline in camps for civilian internees. To [p.482] begin with, there was a tendency for the belligerents to subject internees to the same rules as prisoners of war by applying to them the "laws, regulations and orders in force in the armed forces of the Detaining Power" (1929 Convention, Article 45, paragraph 1 ). However, the subjection of civilians to military discipline soon proved a mistake and when the International Committee of the Red Cross, in a memorandum dated December 7, 1939, pointed out the anomaly of the situation, the belligerents agreed in general not to subject civilians to a military system of discipline. It would have been too much, however, to make them subject to the penalties of ordinary law for mere infractions of discipline in the internment camps. The detaining authorities therefore often entrusted the camp leaders with the task of seeing that the regulations were applied. In some countries, the civilian internees had
appointed several of their comrades to a "camp court". This court inflicted sentences for breaches of the regulations (attempts to escape, insubordination, failure to obey instructions concerning games of chance, trafficking in the food supplies distributed by relief societies). The punishments inflicted depended on the breach of regulations and ranged from 3 to 28 days in the cells, to a prohibition on receiving parcels, the suspension of walks for a certain time, the forbidding of correspondence or newspaper reading, etc. Surveillance was carried out, according to the country and the circumstances, by the army, the police or men chosen by the internees themselves. This empirical system gave rise to abuses and the Government Experts convened in 1947 by the International Committee of the Red Cross recommended the incorporation in the Convention of a clear and restrictive list of disciplinary punishments. That is the origin of this paragraph.
The authors of the Convention even reduced the penalties laid down in the Stockholm Draft, although this is not necessarily to the advantage of the internees. Fines, for example, which, according to the Draft, could not exceed 50 per cent of a month's allocation or wages, may now only be levied on wages. This means that internees who do not work cannot be punished in this manner and in its place other punishments, often more unpleasant, are inflicted on them.
The system of internment as provided for in the Convention is a minimum, but there is nothing to prevent the Detaining Power, so far as is compatible with its own security, from improving living conditions in places of internment. Whether the corresponding advantages are based on official regulations or on customs established under the personal responsibility of the camp commandant, it is certain that these privileges may be withdrawn as a disciplinary punishment without infringing the terms of the Convention.
[p.483] The duration of fatigues has been restricted and it has been specified that they may only consist of useful work on camp maintenance. Thus, every possibility has been removed of abuses arising through the use of disciplinary punishments as a pretext to obtain extra work free of charge from the internees in the interests of the Detaining Power.
By imprisonment must be understood the loss of liberty for disciplinary reasons as opposed to deprival of liberty as a statutory punishment. The severity of imprisonment, which by analogy with the Prisoners of War Convention is the severest disciplinary punishment which may be inflicted on internees (1), is restricted by Article 125 which provides, among other things, for the right to exercise and to stay in the open air for at least two hours daily as well as permission to read and write.
Do these various restrictive measures leave a camp commandant sufficient powers of deterrence to ensure camp discipline (2) ? This is not an idle question for if the disciplinary punishments provided for in the Convention proved ineffective, the detaining authorities might be induced to use other means of maintaining order and thus to act outside the limits of the Convention. Taken singly, these disciplinary punishments are not severe but there is nothing to prevent several being given together. The commandant thus has at his disposal a number of disciplinary punishments ranging up to as much as 30 days imprisonment in accordance with paragraph 3, during which internees could be subjected at the same time to fines, to the discontinuance of privileges granted over and above the provisions of the Convention, and to fatigue duties not exceeding two hours daily.


It is hard to see in what way the light punishments listed in the previous paragraph could possibly be made inhuman, brutal or dangerous for the health of the internees. This paragraph, however, contains supplementary guarantees; it reaffirms the humanitarian ideas contained in Articles 27 and 32 , and thus underlines the need never to lose sight of these essential principles. The restrictive list of disciplinary punishments is based on a wish to limit as far as possible the sufferings of the internees; but as, in the long run, the responsible authorities will always need to ensure that discipline is kept, it is important above all to be able to count on a wish on their part [p.484] to act, whatever the circumstances, in the humanitarian spirit which inspires the Convention.


The maximum duration mentioned in this paragraph is in line with the generally accepted practice in matters of discipline and it was contained in the 1929 Convention relative to the Treatment of Prisoners of War (Article 54, paragraph 2 ), as was the reference to several breaches of discipline whether connected or not. This maximum must not be exceeded where several offences have been committed "when the case is dealt with". If after this sentence and before or during his serving of it, the internee committed a further breach of regulations, he would be subject to a further penalty under the conditions laid down in paragraph 4 of Article 123 .

Notes: (1) [(1) p.483] By analogy with the 1929 Convention, Article

(2) [(2) p.483] See ' Remarks and Proposals, ' p. 58;