Treaties, States Parties and Commentaries
  • Print page
Commentary of 1958 


When escaping, an internee may be led to commit certain offences, for instance actual or constructive burglary, stealing clothes or money or even killing or wounding in self-defence. How should these offences be punished?
Since they are offences against ordinary law, it might be thought that judicial penalties are required under the general principles proclaimed in Article 117 , but in view of the fact that they are connected with escape and have only been committed because of it, [p.487] it may be considered that the judge should be called upon to decide whether they should be punished as offences against the law or as breaches of discipline.
Above all it was important to settle the point that escape does not constitute an aggravating circumstance, since any possibility of it being considered as such would have run counter to the aim of using to the full in favour of the accused the absence of intent to commit an offence and the honourable motive which led to escape. Of course, if one or several premeditated murders were committed during an attempt to escape, it could not be argued that there was no intention to commit an offence and ordinary law would apply in accordance with Article 117 .


Article 52 of the 1929 Convention had already stated that the competent authorities should exercise the "greatest leniency" in considering whether an offence committed by a prisoner of war should be punished by disciplinary or by judicial measures. The spirit of the Article left no doubt as to the intentions of the authors of the Convention, but practical experience showed that it needed amplification. For that reason, Article 93 of the Third Convention states that "offences committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb, such as offences against public property, theft without intention of self-enrichment, the drawing up or use of false papers, the wearing of civilian clothing, shall occasion disciplinary punishment only". A similar text to cover internees had been included in the Stockholm Draft, but the Diplomatic Conference rejected it. The discussions showed that there was a wish to reserve to the Detaining Power the right to punish
offences against public property by judicial penalty if they amounted to serious sabotage. Doubtless, it would have been easy to specify "minor offences against public property" as the International Committee of the Red Cross suggested; but the Conference preferred to retain the general wording of the 1929 text. One delegation pointed out that by trying to protect the internees too much, there was a risk of harming them, because the Detaining Power would seek to protect itself through stricter surveillance, thus making the conditions of internment more harsh (1).
Whatever the truth of the matter, the solution adopted in the case of prisoners of war throws light on the meaning of this paragraph. [p.488] It must be considered that whenever connected offences are not serious, they may only be punished as breaches of discipline. If there is any doubt, the authorities should give the accused the benefit of it.

Notes: (1) [(1) p.487] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 687;