Treaties, States Parties and Commentaries
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Commentary of 1958 


The principle that escape or attempt to escape may only be punished by disciplinary measures, even in the case of a second or subsequent offence, is laid down in the Hague Regulations of 1907 (Article 8, paragraphs 2 and 3 ).
Since a prisoner of war can be considered as morally bound to rejoin the army of which he was a member as soon as he has the opportunity, it would be unjust to treat escape or attempt to escape [p.485] as a crime. It is, however, a breach of the prisoner-of-war regulations and as such calls for disciplinary punishment.
The same reasoning may be followed with regard to the civilian internee. Doubtless he will not be subject in most cases to military obligations, which expressly bind him to rejoin the army of his country of origin, but there is between his country and himself a bond of moral solidarity which makes the patriotic gesture of escaping from the authority of the Detaining Power quite understandable. Furthermore, a wish to escape the severities of internment can be considered legitimate. It should be noted that the reference here is to internees "who are recaptured"; attempted escape, therefore, implies that the escape had actually begun and mere preparation for escape cannot be treated in the same way as escape itself, unless it involves a series of acts of a somewhat grave nature, such as the misappropriation of tools, maps and provisions, the making of a tunnel, etc. The Detaining Power, in applying the disciplinary punishment, must take into account these matters and, of course, repeated offences.


Article 48, paragraph 2 , of the 1929 Convention was in the main very similar to this one. During the Second World War, however, the system of discipline had been so harsh in some prisoner-of-war camps that the physical and mental health of the prisoners was affected. For that reason, the Diplomatic Conference wished, on behalf of civilian internees and of prisoners of war, to add to the provisions in force special mention of the health of the detainees and the obligation to make them carry out their punishment in the prisoner-of-war camps or places of internment themselves and not in prison.
It is therefore necessary to insist on the principle that any strengthening of surveillance must consist primarily of a strengthening of the guard and not in any restriction placed on the detainee's rights.
As for the guarantees mentioned at the end of the paragraph, special importance will be attached to the opportunity for the Protecting Powers to visit the internees and to the application of Articles 101 (complaints and petitions), 107 (correspondence) and 143 (supervision by the Protecting Power).
Can the Detaining Power apply the special surveillance system as it pleases? Such a system of political surveillance had been applied during the Second World War to certain persons because of their rank or their functions in the country of origin. There is no doubt [p.486] that the present paragraph forbids similar methods and limits the cases in which special surveillance can be enforced to those internees punished as a result of an escape or attempted escape. The paragraph refers, indeed, to the special system applicable to the internee ' after ' he has served his sentence. It is this which is underlined by the words "Article 118, paragraph 3 , notwithstanding". The text mentions no limit of duration to this exception. The special system, which is not a punishment but a measure of surveillance, may therefore be prolonged until the end of internment.


The punishment of accomplices in a breach of regulations is dealt with it in ordinary law by penal legislation. The particular case of escape or attempt to escape calls for a different rule. Since the breach of regulations itself may be punished only by a disciplinary sanction, it is logical to provide that the accomplice or accomplices shall themselves be subject only to disciplinary punishment.