Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 105 : Rights and means of defence
Text of the provision*
(1) The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial.
(2) Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or counsel, and shall have at least one week at its disposal for the purpose. The Detaining Power shall deliver to the said Power, on request, a list of persons qualified to present the defence. Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power, the Detaining Power shall appoint a competent advocate or counsel to conduct the defence.
(3) The advocate or counsel conducting the defence on behalf of the prisoner of war shall have at his disposal a period of two weeks at least before the opening of the trial, as well as the necessary facilities to prepare the defence of the accused. He may, in particular, freely visit the accused and interview him in private. He may also confer with any witnesses for the defence, including prisoners of war. He shall have the benefit of these facilities until the term of appeal or petition has expired.
(4) Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well as the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power, shall be communicated to the accused prisoner of war in a language which he understands, and in good time before the opening of the trial. The same communication in the same circumstances shall be made to the advocate or counsel conducting the defence on behalf of the prisoner of war.
(5) The representatives of the Protecting Power shall be entitled to attend the trial of the case, unless, exceptionally, this is held in camera in the interest of State security. In such a case the Detaining Power shall advise the Protecting Power accordingly.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
4075  Article 105 lays down the rights and means of defence of a prisoner of war facing trial. Together with the ensemble of provisions in the section on judicial proceedings (Articles 99–108), it sets out the fair trial guarantees that an accused prisoner of war must benefit from.[1] There is substantive overlap between the judicial guarantees applicable at the trial and pretrial phases, and reference must accordingly be made especially to Articles 103 and 104 and their commentaries.
4076  According to Article 130, wilfully depriving a prisoner of war of the right to a fair and regular trial is a grave breach of the Third Convention.[2]
4077  By virtue of the ‘principle of assimilation’,[3] which requires that accused prisoners of war be subject to the same laws, regulations and orders in force in the armed forces of the Detaining Power, prisoners of war benefit indirectly from the relevant domestic legal framework, as informed by applicable international law, to the same extent as members of the Detaining Power’s armed forces. Matters on which international law is silent, including, for example, concerning the appropriate standard of proof, are dealt with by the relevant domestic legislation, provided that the latter does not conflict with the other rules of the Convention. As specified in Article 82(1), ‘no proceedings or punishments contrary to the provisions of this Chapter shall be allowed’. Furthermore, Article 84(2) provides that ‘a prisoner of war [may not] be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105’.
4078  The second and fifth paragraphs of Article 105 foresee two important roles for the Protecting Power. Given that the Parties to most international armed conflicts occurring since the adoption of the 1949 Conventions have not appointed Protecting Powers, these functions may be performed by the ICRC. Indeed, the organization has already acted in this capacity based on its right of humanitarian initiative enshrined in Article 9.[4]
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B. Historical background
4079  Article 105 has its origins in Articles 61 and 62 of the 1929 Geneva Convention on Prisoners of War.[5] The principle set forth in the first sentence of Article 61(1) of the 1929 Convention, that no prisoner of war may be sentenced without an opportunity to defend themselves, is not reproduced explicitly in Article 105,[6] but nevertheless forms the basis of all of the rules contained in the article. The third and fourth paragraphs of Article 105 are not found in the 1929 Convention.
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C. Paragraph 1: Rights of assistance and defence
1. First sentence: Rights to assistance, legal representation, the calling of witnesses and interpretation at trial
4080  The first sentence of Article 105(1) sets out the rights that an accused prisoner of war must enjoy if tried. These include the right to receive assistance from a fellow prisoner, the right to defence by qualified counsel, the right to call witnesses and the right to a competent interpreter.
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a. The right to assistance by a fellow prisoner
4081  The 1929 Convention did not make provision for the accused to receive assistance from a fellow prisoner. During the Second World War, however, this became common practice, significantly benefiting the accused. The Conference of Government Experts convened in 1947 to review the Convention recommended adding this right to the first paragraph of the revised text.[7]
4082  The provision specifies that the accused is entitled to ‘assistance’ by a fellow prisoner. Although undefined, this term must be differentiated from ‘defence’. The latter must be provided by a qualified advocate or legal counsel as specified later in the same sentence.[8] Indeed, the legislation of some countries may not permit a fellow prisoner to have audience in a military court.[9] The term ‘assistance’ is to be interpreted broadly to encompass a variety of activities that would help a prisoner of war against whom proceedings have been instituted. Such activities could include, for example, serving as an intermediary between the accused and their advocate or counsel, assisting in the proceedings or providing the accused with interpretation services.[10]
4083  The Convention does not provide details about the identity or qualifications of the prisoner who may assist the accused at trial. However, these have often been members of the legal service established by the prisoners’ representative.[11] As such, the assistant may be familiar with the laws in force in the armed forces of the Detaining Power.
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b. The right to a qualified advocate or counsel
4084  A prisoner of war may in no case be tried without the assistance of legal counsel, be it one of their choice or one appointed to them. If the prisoner does not appoint a qualified advocate or counsel, the text makes it clear that either the Protecting Power or the Detaining Power must ensure they have one, regardless of the severity of the alleged crime or the potential punishment. The second right enumerated in Article 105(1) is to a defence by a qualified legal professional.[12] This right is referred to earlier in the Convention, in Article 99(3),[13] and it is important to recall that although Article 105 deals with trial, the right to counsel applies from the commencement of an investigation, and not just to the trial phase.[14]
4085  Integral to the ability to mount an effective defence is the accused’s trust in their legal representative, hence the right to an advocate or counsel of one’s own choice.[15] The ICRC’s experience of visiting prisoners of war in international armed conflicts since the Second World War has shown that prisoners may encounter considerable difficulties securing the counsel of their choice where the laws of the detaining State impose requirements relating to the defence counsel’s nationality or membership of its bar or, in the case of military courts, its armed forces.[16] The Detaining Power should therefore strive as far as possible to accommodate the accused prisoner’s choice of counsel, even if this means easing some of those requirements.[17]
4086  The right to the assistance of a lawyer of one’s choosing is recognized as a fundamental guarantee in customary international humanitarian law.[18] The customary rule is somewhat broader in scope, as it includes the right to defend oneself. Article 105 does not make provision for self-representation, as a prisoner of war is unlikely to have sufficient command of the judicial system of the Detaining Power to present a credible defence on their own behalf.[19] Should a prisoner of war fail to avail themselves of the entitlement to choose their own counsel, Article 105(2) authorizes the Protecting Power – and eventually also the Detaining Power – to appoint competent defence counsel on the prisoner’s behalf.
4087  The English text refers to the right to defence by ‘a qualified advocate or counsel’. In the legal sphere, the term ‘advocate’ refers to ‘[s]omeone who assists, defends, pleads or prosecutes for another’.[20]‘Counsel’ or ‘counsellor’ refers to ‘[o]ne or more lawyers who, having the authority to do so, give advice about legal matters; esp., a courtroom advocate’.[21]
4088  The inclusion of both ‘advocate’ and ‘counsel’ in the English text does not seem to have material relevance beyond signalling that in different legal traditions a variety of terms such as ‘barrister’, ‘attorney’, ‘lawyer’, ‘advocate’ and ‘counsel’ may be used to describe professionals qualified to represent or defend clients before a court of law. The French text, which refers only to ‘un avocat qualifié’, accords with this view.
4089  The advocate or counsel must be ‘qualified’ and therefore officially entitled to address the court and to represent and defend clients in the course of legal proceedings before the courts of the State trying the accused prisoner, for otherwise they would be unable to conduct a proper defence of their client. The language therefore excludes amateur jurists, as they would not have sufficient knowledge of domestic legislation or judicial practice and procedure.
4090  Since defence counsel must be ‘qualified’, they will usually be a national or resident of the Detaining Power. However, this need not be the case. The chosen counsel must simply be authorized to practise before the court which is to try the prisoner of war. The 1947 Conference of Government Experts considered that the question whether a prisoner of war could be represented by an advocate resident abroad was dependent on domestic legislation.[22] Prisoners of war have sometimes been authorized by the Detaining Power to choose an advocate among their fellow prisoners, but it should be borne in mind that the disadvantages of this solution could outweigh the advantages, especially since an advocate who is a prisoner of war would not normally be sufficiently familiar with the procedures in force in the courts of the Detaining Power. Furthermore, as a prisoner of war, such an advocate may not be able to exercise the prerogatives enjoyed by their counterparts who are not interned and may not benefit from the full respect and consideration of the courts of the Detaining Power. This is in addition to some of the likely practical difficulties that an interned prisoner advocate might be expected to encounter in the arrangement of the defence, including securing and accessing witnesses, collecting evidence and liaising with the prosecutors and court officials.
4091  A key concern that may arise in connection with the appointment of defence counsel, particularly – but not solely – when this is done by the Detaining Power, relates to the ability of the legal practitioner to perform their role according to the required standards of the legal profession. Article 105(2) requires that the Detaining Power appoint a ‘competent advocate or counsel’. This term should be interpreted to include not only the individual’s professional qualifications, but also the competent execution of their functions. If the individual appointed to serve as defence counsel acts in a manner that is prejudicial to the interests of the accused, for example by undermining the defence of the accused or otherwise acting in bad faith, they cannot be said to be competently executing their functions, despite being qualified as a lawyer. Should defence counsel fail to be competent in the sense just described, the defendant’s chances of a fair trial will be jeopardized, and they should have an avenue to request the appointment of new counsel.
4092  In the ICRC’s experience, the question has arisen whether the right to defence entails the right to one’s own legal counsel, or whether the obligation incumbent on the Detaining Power is satisfied where a group of accused prisoners of war share one or a team of advocates. Where there is a conflict of interest within the group of accused prisoners, and its members are to testify against one another during the proceedings, representation by the same legal team would be problematic. Article 105 provides each prisoner of war with the right to be represented by separate counsel, ensuring their effective defence at trial. In exceptional circumstances, a single defence lawyer acting for a group of prisoners of war could nonetheless be acceptable, provided this does not in any way prejudice their defence.
4093  Article 105 is silent as to who should cover the costs of the defence of a prisoner of war facing trial. This issue was the subject of lengthy discussion at the 1947 Conference of Government Experts as well as at the 1949 Diplomatic Conference. While some delegations felt it was a very important question, others considered it only a secondary matter, arguing that the 1929 Convention made no reference to the subject, yet this had never given rise to any complaints.[23] One view is that the costs of defence fall to the Power on which the accused depends, through the intermediary of the Protecting Power, which would pay and be reimbursed by the former. Indeed, this point was made by the ICRC at the 1949 Diplomatic Conference.[24] If the Power on which the accused depends has temporarily no government, the Protecting Power could bear the cost and recover it later, when a government is re-established.[25] The Diplomatic Conference ultimately decided not to make provision for the costs of defence, preferring instead to simply recall what is already laid out in Article 99(3)[26] that ‘[n]o prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel’, as it was considered that the Protecting Power should normally bear such costs when the counsel was chosen by it or by the prisoner, and be reimbursed. For lawyers selected by the Detaining Power, the view seemed to be that the said Power would assume the costs of defence.[27] On the basis of the foregoing, it may be argued that accused prisoners of war are not obliged to pay for their defence, the costs of which should be borne by either the Detaining Power, the Protecting Power or the Power on which they depend, or a combination of the three.[28] The costs of defence are not limited to the representation of the accused and the presentation of their case at trial, but may extend to, for example, the costs of interpretation services.[29]
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c. The right to call witnesses
4094  An accused prisoner of war, and by extension, the advocate or counsel acting on their behalf, is entitled to call witnesses, including for example other prisoners of war, camp guards and medical or forensic experts, who may give testimony in the prisoner’s defence.[30] While the accused has a right to call witnesses, based on the principle of assimilation, rules on the admissibility of any type of evidence, including witness statements and testimony, are primarily regulated by domestic law.
4095  If on trial for a crime committed prior to capture, it may be difficult for a prisoner of war to effectively benefit from the right to call witnesses. The accused ‘will find it virtually impossible to secure the attendance of a member of his own armed forces, who has not become a [prisoner of war], as a witness to guilt/innocence or to character’.[31] Consideration must be given to making effective the right of the accused to call witnesses, including, for example, by the admission of ‘evidence to be given by video or by written statement’,[32] or through the use of communications technology that would allow such witnesses to participate in proceedings directly from a remote location.[33]
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d. The right to the services of a competent interpreter
4096  Accused prisoners of war may not have knowledge of the language in which the judicial proceedings take place. The authorities placing prisoners of war on trial may not be familiar with the language the accused would use to defend themselves. To enable prisoners of war to participate fully and effectively in the hearings and to defend themselves, Article 105 provides that they are entitled to the services of a competent interpreter.[34]
4097  This provision is one of several in the Convention that seek to ensure that prisoners of war understand the rules, orders and procedures to which they may be subject.[35] However, it is up to the accused prisoner of war to decide whether interpretation services are required. The Detaining Power is only under the obligation to provide interpretation services if the prisoner deems them necessary. This contrasts with the provisions of Articles 104, 105(4) and 107(1), which require the Detaining Power to make the relevant communications in a language the prisoner of war understands, irrespective of whether the prisoner requests translation/interpretation.[36]
4098  The word ‘competent’ is used to denote an interpreter who not only knows the two relevant languages – that of the prisoner and that of the Detaining Power – but is also familiar with legal terminology and accustomed to acting as an interpreter during judicial proceedings.[37] A review of several post-Second World War conflicts suggests that the services of an interpreter have often been made available to accused prisoners of war. That these interpreters have been ‘competent’ in the sense required by this provision has not always been beyond doubt. The ICRC has observed instances in which the interpreter’s knowledge of the languages in question was limited, and vital information was left out as a result. By resorting, at times, to a third language that the judge and prosecutor had a better grasp of than the prisoners, the accused were put at a disadvantage.
4099  An accused prisoner may choose to have recourse to the services of a fellow prisoner for interpretation, provided that the individual appointed is ‘competent’ within the meaning of the provision and enjoys the confidence of the court. Interpretation services provided by a fellow prisoner undoubtedly come within the meaning of ‘assistance’ discussed in subsection (a).
4100  The right to the assistance of an interpreter, like that to access to a lawyer, does not come into play only at trial. The entitlement to such assistance would exist ‘from the time when [the prisoner] was indicted until the end of the trial, and not just during preliminary investigation and the hearing in court’.[38]
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e. Presence at trial
4101  The Third Convention does not address the right to be present at one’s trial. However, this judicial guarantee is considered today to be integral to the right to defend oneself. This is evidenced by the fact that presence at trial is included in the list of guarantees under Article 75(4) of Additional Protocol I.[39] Presence at trial enables the defendant to both hear and challenge the prosecution’s case and to present a defence. The wording of the first sentence of Article 105(1) suggests that the prisoner of war will be tried in their own presence.[40]
4102  In practical terms, the right of an accused to be present at trial imposes a duty on the authorities to notify them (and defence counsel), in sufficient time, of the date and location of the trial, and not to improperly exclude the accused from trial. The right to be tried in one’s presence may be temporarily restricted if the accused disrupts the court proceedings to such an extent that the court deems it impractical for the trial to continue with them present.
4103  While the domestic legislation of some States allows for trials in absentia, these cannot be justified for prisoners of war, who are in the custody of the Detaining Power and whose presence at trial can therefore be ensured.
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2. Second sentence: Notification of rights
4104  The second sentence of Article 105(1) lays down the Detaining Power’s obligation to advise accused prisoners of war of their rights under that paragraph prior to the opening of the trial. This obligation is more specific than that contained in Article 41(1), which states that the text of the Convention must be posted in every camp. As Article 41(1) itself envisages, there may be circumstances in which a prisoner of war is unable to access the copy of the Convention posted in the camp, for example if they are undergoing pretrial confinement subject to the provisions of Article 103. Under Article 41(1), any prisoner who does not have access to a copy of the posted Convention has the right to receive a copy upon request. Article 105(1), however, obliges the Detaining Power to inform accused prisoners of war of their rights under Article 105(1) in their own language or in a language which they understand irrespective of whether or not they are able to access a copy of the Convention. This notification is without prejudice to any other advice the Detaining Power may be required to provide the accused with, including under its domestic legislation.
4105  The obligation in Article 105(1) builds on that in Article 104, which requires that certain particulars, including the charges on which a prisoner of war is to be tried and the designation of the date and place of trial, be communicated to the Protecting Power, the prisoners’ representative and the accused prisoner of war. The notification to the accused required by the second sentence of Article 105(1) goes beyond this and is crucial as it advises accused prisoners of certain specific rights necessary for the preparation of their defence.[41]
4106  The provision requires that the accused be notified ‘in due time before the trial’. To interpret this phrase, it is useful to refer to the language of Article 104, which requires that notification be provided ‘as soon as possible and at least three weeks before the opening of the trial’.[42] The Convention provides the absolute strict minimum, and domestic legislation may provide for a longer period, depending on a variety of factors, including in particular the complexity of the case. Sufficient time to prepare the defence is also part of the overall fairness of a trial in the sense of Article 130.
4107  This provision applies in all cases, even if the accused confesses during an investigation prior to trial (an eventuality that highlights the importance of access to a lawyer in pretrial proceedings).[43] Failure to comply constitutes a violation of Article 105.
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D. Paragraph 2: Instructions in the event the accused fails to appoint counsel
1. First and second sentences: Role of the Protecting Power
4108  Owing to the central importance of access to counsel prior to and during trial, Article 105(2) provides instructions for cases in which the accused prisoner of war fails, for whatever reason, to make a choice of defence counsel. In such cases, it falls first to the Protecting Power to ensure that the accused benefits from qualified legal representation. This Power must therefore make enquiries on this matter as soon as it receives the notification for which provision is made in Article 104.
4109  The first sentence requires that the Protecting Power be accorded at least one week to secure a defence lawyer for the accused. The language of the provision makes clear that one week refers to the minimum amount of time to be accorded for this purpose, although it is not clear from what point this minimum should be calculated. The one-week period cannot simply be said to begin at the moment the Protecting Power receives the Article 104 notification. Rather, the Protecting Power should be allowed sufficient time to make the necessary inquiries, and the minimum period of one week should run from the moment it has ascertained that the accused prisoner of war has failed to appoint defence counsel for themselves.
4110  To facilitate the task of the Protecting Power in fulfilling the duty placed on it by the previous sentence, the second sentence of Article 105(2) requires the Detaining Power to furnish a list of qualified defence lawyers to the Protecting Power if the latter so requests, and thus, implicitly, to maintain such a list.[44] This list could be communicated to the Protecting Power at the same time as the notification required under Article 104, even without the Protecting Power asking for one.[45] For the list to be useful, it should contain more than just the names of qualified lawyers. Ideally, it would include additional information that would assist the Protecting Power in appointing a lawyer for the accused, such as the professional qualifications and affiliations, legal specializations, foreign language competence and contact information of those listed.
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2. Third sentence: Appointment of defence counsel by the Detaining Power
4111  Unlike several other provisions in the Convention which foresee a role for the Protecting Power, Article 105 is particular in that it contains specific instructions on how to proceed if the Protecting Power is unable to carry out its prescribed role. The third sentence of Article 105(2) dictates that in the event that neither the prisoner of war nor the Protecting Power select an advocate to defend the accused, the Detaining Power must itself appoint one.
4112  Under Article 105, the Detaining Power’s obligation to appoint defence counsel comes into play only when both the accused prisoner of war and the Protecting Power fail to appoint such counsel. Post-Second World War practice seems to indicate, however, that the Detaining Power generally appoints legal counsel for an accused prisoner of war. Such appointments do not always seem to be preceded by a failure on the part of either the accused prisoner or the Protecting Power (or a humanitarian organization acting de facto in its place) to select defence counsel. If foreign counsel is appointed by the Detaining Power, the requirements of qualification and competence referred to above must be met.[46]
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E. Paragraph 3: Rights of defence counsel
4113  During the Second World War, advocates were quite frequently informed too late and were sometimes even unable to arrive in court on time.[47] Article 105(3) therefore seeks to ensure that the advocate or counsel has sufficient time and the necessary conditions to prepare the defence. This is an essential aspect of ‘equality of arms’: both the defence and the prosecution must have an equal opportunity to prepare for and present their cases, which is an important element of a fair trial.
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1. First sentence: Time and necessary facilities to prepare the defence
4114  The first sentence of Article 105(3) requires that defence counsel have a minimum of two weeks before the opening of the trial to prepare their case. This constitutes an essential judicial guarantee, as was highlighted in 1947 by the government experts, who underlined the importance of specifying a minimum time limit in the Convention.[48]
4115  The time periods mentioned in Article 105(2) and (3) are related to each other and to the requirement of notification contained in Article 104. Indeed, one gives rise to the other. It is precisely because under paragraph 2 the Protecting Power must have at least one week to find a defence lawyer for the accused, and under paragraph 3 defence counsel must have at least two weeks to prepare the defence, that Article 104 requires notification of proceedings to be provided to the Protecting Power at least three weeks before the opening of the trial. As already mentioned, the list of advocates from which a prisoner’s advocate or counsel may be chosen should, ideally, independent of a request, reach the Protecting Power at the same time as the Article 104 notification.[49]
4116  The phrase ‘at least’ indicates that the two weeks referred to represent an absolute minimum, which the Parties may choose to exceed. The overall fairness of a trial needs to be assessed taking into account adequate time to prepare the defence. Through the principle of assimilation, an accused prisoner of war would be subject to any time limits that would be applicable in cases concerning members of the armed forces of the Detaining Power who have committed a similar offence, provided that the provisions of Article 104(1) and 105(2) and (3) are complied with.[50]
4117  In addition to sufficient time, the last part of the first sentence of Article 105(3) notes that counsel must have the ‘necessary facilities’ to prepare the defence. This addition was the result of an ICRC proposal made at the 1947 Conference of Government Experts.[51] The subsequent sentence refers to a set of facilities that defence counsel must enjoy, but as the phrase ‘in particular’ indicates, the list is not exhaustive and represents merely a minimum. Should counsel present a reasonable request for additional facilities, the Detaining Power should grant these.[52]
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2. Second sentence: Right to interview the accused in private
4118  The second sentence of Article 105(3) specifies the right of defence counsel to freely visit and interview the accused. The language of the provision indicates that visits to and interviews with the accused are at the discretion of the lawyer conducting the defence, and not of the Detaining Power. Visits must be made possible when the advocate or counsel requires it or the accused requests it.
4119  Meetings between the accused and defence counsel are crucial to allowing the latter to properly exercise their functions and to mount an effective defence. In particular, the first encounter between defence counsel and an accused prisoner should not be unduly delayed. In this connection, it should be recalled that the accused’s right to prompt access to legal assistance comes into play well before trial, including during investigations preceding trial and pretrial confinement.[53] In accordance with the domestic legislation of many States, during the preparatory investigations the accused may only be questioned in the presence of defence counsel.
4120  The language of the provision requires that counsel be able to visit the accused ‘freely’, indicating that such visits cannot be arbitrarily limited and demonstrating again that the frequency of the visits is at the discretion of counsel and the accused.
4121  Interviews between defence counsel and the accused must be held ‘in private’. To ensure privacy and take account of camp security requirements, the interviews may take place within sight of camp authorities, but always out of earshot. Furthermore, they should take place in confidentiality, and without delay or censorship, for if accused persons are not at liberty to confer with their defence lawyer in confidence, they may withhold information, thus prejudicing their defence. The requirement of privacy applies to both in-person contact and written correspondence.
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3. Third sentence: Right to confer with witnesses for the defence
4122  The third sentence of Article 105(3) states that counsel may also confer with any witnesses for the defence, including other prisoners of war. The language of the provision indicates that visits to and interviews with witnesses are at the discretion of the lawyer conducting the defence, and not the Detaining Power. Visits must be made possible when the advocate or counsel requires it.
4123  This right was the subject of some discussion at the 1949 Diplomatic Conference. Some delegations remarked that their domestic legislation only permitted defence counsel to interview witnesses in the ‘presence of the examining magistrate or his representative’.[54] After discussion, the text was amended to reflect this.[55] The text now makes clear that private interviews are only a requirement for visits to the accused, while visits to witnesses may be supervised by other persons, if required by the legislation of the Detaining Power.
4124  The text specifies that defence counsel may confer with prisoners of war cited as witnesses for the defence. During the Second World War, there were many cases in which defence counsel lacked the necessary permits to visit prisoners of war in camps, which hampered the counsel’s work.[56]
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4. Fourth sentence: Temporal scope of rights of defence counsel
4125  A prisoner of war has, under Article 106, the right to appeal a judgment or sentence in the same manner as members of the Detaining Power’s own armed forces. The final sentence of Article 105(3) establishes that the advocate or counsel must enjoy the previously mentioned ‘necessary facilities’ until the term of appeal or petition has expired. The English text refers both to ‘appeal’ and ‘petition’, while the French text reads ‘l’expiration des délais de recours. Both formulations indicate that the benefits of the facilities must continue until all the terms for appealing or revising a judgment have expired.[57] This was made clear at the 1947 Conference of Government Experts.[58]
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F. Paragraph 4: Communication of the charges and relevant documents
4126  Article 105(4) requires that the prisoner of war, as well as the defence counsel or advocate, be informed of the particulars of the charges and other relevant documents. The 1929 Convention contained no such provision, which was introduced at the 1947 Conference of Government Experts.[59] This communication is crucial to ensuring that the accused prisoner and their counsel can prepare an adequate defence.[60]
4127  The communication referred to in Article 105(4) is quite separate from that referred to in Article 104(4). The latter states that the prisoner of war concerned must receive a copy of the notification sent to the Protecting Power, which need only contain a specification of the charge or charges on which the accused is to be arraigned, and the legal provisions applicable.[61] The former communication goes beyond this, referring to two sets of documents that must be communicated to the accused prisoner of war and their counsel: first, the ‘[p]articulars of the charge or charges’ (emphasis added) and second, ‘the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power’.
4128  With regard to the first set, Article 105(4) requires communication of the full text of the charges, comprising the specific legal accusations.[62] It must therefore go beyond a mere listing of the charges and provide a greater level of detail than provided for under Article 104, with references to the legal provisions that have been violated, as well as the reason(s) for the indictment of the prisoner. In other words, it should contain not only the exact legal description of the offence, but also the facts underlying it, as the information included in the communication must be sufficient to allow the preparation of an adequate defence.
4129  The second set of documents, i.e. the information generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power, is important for the ‘equality of arms’ and for ensuring access by the prisoner to comprehensive material relevant to the trial. In addition, this aspect of the provision reflects the principle of assimilation, as an accused prisoner of war must receive the same documents as members of the armed forces of the Detaining Power would have received if they had been indicted for the same offence.
4130  The aforementioned information must be communicated to the prisoner of war in a language they understand. While this procedural guarantee is generally considered to be part of the accused’s right under Article 105(1) to the services of an interpreter if they do not speak or understand the language of the court, the wording of the provision makes clear that the authorities are required to translate the indictment and any other relevant documents into a language the accused understands, irrespective of whether the prisoner has chosen to use the services of a competent interpreter. As for the form of the communication, it must be made in writing.[63]
4131  Article 105(4) also states that the communication must take place ‘in good time before the opening of the trial’ (in French, ‘assez tôt avant l’ouverture des débats’). If possible, the relevant documents should be transmitted at the same time as the notification referred to in Article 104, i.e. at least three weeks before the opening of the trial, since it may be on the basis of these documents that the accused or their legal assistant selects an advocate or counsel. At a minimum, however, this communication must be made two weeks before the opening of the trial, to afford the advocate or counsel the requisite period in which to prepare the defence.
4132  The second sentence of Article 105(4) confirms that the prisoner’s counsel must receive the same communication in the same circumstances as the prisoner. Obviously, the communication cannot be made before the advocate or counsel is nominated but must take place at least two weeks before the opening of the trial.
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G. Paragraph 5: Supervision of trial
4133  In the text of the 1929 Convention and during the 1947 Conference of Government Experts, it was stated that the hearing could be ‘kept secret’ as an exception ‘in the interests of the safety of the State’.[64] The current text now includes the words ‘in camera (in French ‘à huis clos’). The language adopted in 1949 indicates the privacy of the proceedings but seeks to avoid the term ‘secret’, which might be interpreted as a hidden trial, which would be contrary to the purpose of this provision.[65]
4134  To supervise application of the rules in the Convention and to guarantee fair trial, Article 105(5) obliges the Detaining Power to allow representatives of the Protecting Power to attend the trials of prisoners of war. At the 1947 Conference of Government Experts, the ICRC proposed that such representatives be themselves granted the right to ensure the defence of the prisoners of war under their care.[66] This system would have allowed prisoners of war to be defended by nationals of neutral countries.[67] It was pointed out, however, that on the whole the national advocates of the Detaining Power had been conscientious in the discharge of their professional duties on behalf of prisoners of war during the Second World War; the government experts therefore concluded that although prisoners of war should still be permitted to choose a representative of the Protecting Power to defend them, it was unnecessary to specify it in the Convention.[68] Thus, the present paragraph merely authorizes representatives of the Protecting Power to attend the trial, which gives them every opportunity to intervene if they find that the Convention is not being complied with.
4135  The Protecting Power is entitled – but not obliged – to be present at the trials of prisoners of war. By having representatives present at trial, the Protecting Power has the opportunity to ensure that it is conducted by an independent and impartial body,[69] that the prisoner of war is subject to the same rules, regulations and procedures as members of the Detaining Power’s own forces,[70] and that the rules of the Convention relating to trial and sentencing are complied with.[71] If this is not the case, the Protecting Power has a duty to draw this to the attention of the Detaining Power.[72] To make effective the Protecting Power’s right to attend the trial, the Detaining Power must notify the former of the date and location, as provided for under Article 104(2).
4136  Article 105(5) foresees an important exception to the right of the Protecting Power to be present at trial. If demanded by the ‘interest of State security’, the trial may be held in camera.[73] As indicated by the use of the word ‘exceptionally’, extraordinary circumstances must exist for the Detaining Power to lawfully exclude the Protecting Power from the trial as such. The Detaining Power will be responsible for ensuring that this rule is applied only in exceptional cases; if this prerogative were to be abused, trials could in practice be removed from the supervision of the Protecting Power without any valid reason.
4137  This is one of several instances in the Conventions that involve an exception to a general rule on the basis of the security considerations of the Detaining Power.[74] Participants at the 1947 Conference of Government Experts recognized the danger inherent in this restriction. However, they considered that the clause answered an ‘undoubted need’ and that a Detaining Power would have recourse to it only in ‘rare cases’. [75] The second sentence of Article 105(5) establishes that the Detaining Power must advise the Protecting Power when the circumstances justify holding the trial in camera. In the interest of supervision, the Protecting Power must therefore be informed of such decision by the Detaining Power, and ideally in sufficient detail to enable the former to challenge the reasoning provided, if it deems appropriate.[76] The article does not elaborate on how much of the trial may be held in camera. States should ensure that access is denied only to those segments of the trial in relation to which this would be justified by the interests of State security (for example, a specific witness testimony or part of it).
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H. Absence of Protecting Powers
4138  Article 105 foresees two roles for the Protecting Power. First, under paragraph 2, the Protecting Power is charged with finding the accused suitable defence counsel if they have not nominated counsel of their own choice, as indicated in paragraph 1. Second, under paragraph 5, representatives of the Protecting Power are entitled to attend trials of prisoners of war. The question arises as to how these provisions may be complied with when no Protecting Power or substitute has been appointed, as has been the case in most international armed conflicts since the adoption of the Conventions in 1949.[77]
4139  The absence of a Protecting Power or a substitute does not release the Detaining Power from its obligations under Article 105. To comply with this provision, therefore, Parties to an international armed conflict should endeavour to appoint either a Protecting Power or a substitute. Failing this, they should ensure that the functions ascribed to the Protecting Power can be performed by an impartial humanitarian organization, such as the ICRC, in order to safeguard the interests of the individual facing trial.
4140  In practice, both prior to and since 1949, the ICRC, acting on its right of humanitarian initiative as enshrined in Article 9, has assisted States in this respect.[78] More specifically, the organization has offered its services with regard to the appointment of qualified defence counsel for accused prisoners of war. Furthermore, ICRC delegates have been allowed to attend the trial, or at least parts of such trials.[79] However, in one such conflict, ICRC delegates were invited to attend only the pronouncement of the judgment, while the accused had been brought before the judge several times before that. Limited access such as this is contrary to the spirit of the provision.
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Select bibliography
Gasser, Hans-Peter, ‘Respect for fundamental judicial guarantees in time of armed conflict: The part played by ICRC delegates’, International Review of the Red Cross, Vol. 32, No. 287, March-April 1992, pp. 121–142.
Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, commentary on Rule 100, https://www.icrc.org/customary-ihl/eng/docs/v1_rul.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 315–342 (‘The punishment of prisoners of war’).
Rosas, Allan, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts, Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 1975, reprinted 2005, pp. 453–457 (‘Penal and disciplinary sanctions’).
Rowe, Peter, ‘The trial of prisoners of war by military courts in modern armed conflicts’, in Caroline Harvey, James Summers and Nigel D. White (eds), Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe, Cambridge University Press, 2014, pp. 313–336.

1 - See also ICRC Study on Customary International Humanitarian Law (2005), Rule 100. Article 75(4) of Additional Protocol I also sets out the fundamental fair trial guarantees, with subparagraph (a) reflecting the provisions of Article 105. In the context of international and regional human rights law, see International Covenant on Civil and Political Rights (1966), Article 14(3); European Convention on Human Rights (1950), Article 6(3); American Convention on Human Rights (1969), Article 8(2); African Charter on Human and Peoples’ Rights (1981), Article 7(1); Universal Declaration of Human Rights (1948), Article 11; Cairo Declaration on Human Rights in Islam (1990), Article 19(e); and EU Charter of Fundamental Rights (2000), Article 48(2). The UN Human Rights Committee has stated that the right of an accused to necessary rights and means of defence can never be dispensed with; see General Comment No. 29: Article 4: Derogations during a State of Emergency, UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 16.
2 - Article 130. See also Rowe, pp. 323–325.
3 - For a general discussion of the principle of assimilation, see Introduction, section A.3.c. For the principle of assimilation in penal and disciplinary matters specifically, see the commentary on Article 82(1), section C.
4 - See Introduction, section A.3.e, in particular paras 50–51, and the commentary on Article 9, para. 1316.
5 - For examples of the application of these provisions during the Second World War, see Maurice Bretonnière, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), Paris, 1949, pp. 391–415.
6 - However, it is reflected in an earlier provision, Article 99(3).
7 - See Report of the Conference of Government Experts of 1947, p. 224.
8 - Ibid.
9 - See Rowe, p. 330, fn. 67, who refers to the example of the United Kingdom, Prisoner of War (Discipline) Regulations, 1958, Article 26(1). See also United Kingdom, Armed Forces Act, 2006, as amended, section 23.
10 - Provided, of course, that the fellow prisoner of war is ‘competent’ to do so. For a discussion of the right to the services of a competent interpreter, see section C.1.d.
11 - See e.g. Ferdinand Charon, De la condition du prisonnier de guerre français en Allemagne au regard du droit privé (thesis presented to the Faculty of Law of the University of Paris), 1946, pp. 90–93. See also the commentaries on Article 77, para. 3374, and on Article 81(2), para. 3525.
12 - For its part, Article 75(4) of Additional Protocol I enumerates certain ‘generally recognized principles of regular judicial procedure’, the first of which is set out in subparagraph (a): ‘the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence’. Although Article 75(4)(a) does not explicitly mention the right to a defence lawyer, this right is encompassed in the phrase ‘all necessary rights and means of defence’; see Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 3096.
13 - The language of Article 99(3) notes that the prisoner must ‘have an opportunity to present his defence’ and refers to the ‘assistance of a qualified advocate or counsel’ (emphasis added). Article 62 of the 1929 Convention, the precursor of Article 105, also referred to the right of the accused to be assisted by qualified counsel, but the 1947 Conference of Government Experts recommended the use of the word ‘defended’ instead.
14 - See the commentary on Article 103, para. 4027. See also the commentary on Article 104, para. 4058.
15 - See also Canada, LOAC Manual, 2001, para. 1232(3); Denmark, Military Manual, 2016, p. 510; Netherlands, Military Manual, 2005, para. 0747; New Zealand, Military Manual, 2010, Vol. 1, para. 2.5.13(d); and United States, Law of War Manual, 2016, p. 627, para. 9.28.4.2.
16 - See also Rowe, p. 329.
17 - In this respect, it should be noted that Nuremberg defendants were granted German counsel of their choice, even if the counsel had an affiliation with the National Socialist Party; see Kevin J. Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law, Oxford University Press, 2011, p. 163.
18 - Henckaerts/Doswald-Beck, commentary on Rule 100, pp. 360–361. The right to defence by counsel of one’s own choosing is also recognized in international criminal law; see ICC Statute (1998), Article 67(1); ICTY Statute (1993), Article 21(4); ICTR Statute (1994), Article 20(4); and SCSL Statute (2002), Article 17(4). It is furthermore recognized in international human rights law: see International Covenant on Civil and Political Rights (1966), Article 14(3)(d); European Convention on Human Rights (1950), Article 6(3)(c); American Convention on Human Rights (1969), Article 8(2)(d); and African Charter on Human and Peoples’ Rights (1981), Article 7(1)(c).
19 - In addition, Article 99(3) prohibits the conviction of a prisoner of war without the assistance of a qualified advocate or counsel. Furthermore, it should be recalled that Article 7 prevents prisoners of war from renouncing any of the rights that the Convention secures to them, including the right to qualified legal defence.
20 - Bryan A. Garner (ed.), Black’s Law Dictionary, 11th edition, Thomson Reuters, 2019, p. 68.
21 - Ibid. pp. 439–440.
22 - Report of the Conference of Government Experts of 1947, p. 225.
23 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 513.
24 - Ibid. p. 498.
25 - Ibid. p. 511. This text was meant to become paragraph 5 of Article 105, but it was eventually rejected; ibid. pp. 513–514, and 519.
26 - Ibid. p. 513–514.
27 - Ibid. p. 572.
28 - In some cases, the Detaining Power’s legislation may already make provision for the costs of legal representation of prisoners of war before military tribunals, but this does not of itself mean that there is an obligation on the Detaining Power to cover those costs under international law. For examples of domestic penal laws that provide that the costs of legal assistance assigned to accused prisoners of war are covered by the State, see Botswana, Geneva Conventions Act, 1970, Article 5(4); Malaysia, Geneva Conventions Act, 1962, as amended, Article 5(4); Uganda, Geneva Conventions Act, 1964, Article 4; and United Kingdom, Geneva Conventions Act, 1957, as amended, section 3(5). See also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 498 (United States).
29 - See section C.1.d.
30 - See Henckaerts/Doswald-Beck, commentary on Rule 100, pp. 364–365. See also Additional Protocol I, Article 75(4)(g). See also Canada, LOAC Manual, 2001, para. 1232(3); Netherlands, Military Manual, 2005, para. 0747; Peru, IHL and Human Rights Manual, 2010, p. 51; Turkey, LOAC Manual, 2001, p. 108; and United States, Law of War Manual, 2016, pp. 626–627, para. 9.28.4.2.
31 - Rowe, p. 329.
32 - Ibid. However, as noted by Rowe, ‘the admissibility of hearsay evidence where a video and a written statement are not made at the time of the trial itself and where the maker of any statement cannot be cross-examined’ is a matter for domestic law.
33 - Such technology would allow for the cross-examination of witnesses, as opposed to the video and written statements referred to in fn. 32 above.
34 - See also Henckaerts/Doswald-Beck, commentary on Rule 100, pp. 365–366.
35 - See e.g. Articles 41(2), 105(4) and 107.
36 - See section F, in particular para. 4130, of this commentary, as well as the commentaries on Article 104, para. 4070, and on Article 107, para. 4178. Although Article 104 does not explicitly state that the notification must be sent to the accused prisoner of war in a language they understand, this must be the case as a result of Article 41(2).
37 - Article 96(4) requires that prisoners of war facing disciplinary proceedings have recourse to the services of a ‘qualified’ interpreter, should they so require. Despite the difference in wording, the substance of both obligations is the same. See the commentary on Article 96, para. 3912.
38 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 406.
39 - See Additional Protocol I, Article 75(4)(e). See also commentary on Article 130, para. 5282. See also Henckaerts/Doswald-Beck, commentary on Rule 100, pp. 366–367.
40 - This presumption is also a feature of Article 99(3); see the commentary on that article, para. 3977. In the context of discussions on Article 107, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 512.
41 - See the commentary on Article 104, para. 4065.
42 - See section E.1. See also the commentary on Article 104, section C.1.
43 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 406.
44 - See e.g. New Zealand, Military Manual, 2010, Vol. 1, para. 2.5.13(d), stating that ‘[t]he Registrar of the Court Martial will provide the Protecting Power with contact details for the Armed Forces Defence Counsel Panel, from which that Power may appoint counsel for the PW if the PW does not do so’. See also Article 6 of Additional Protocol I and the commentary on that article in Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, paras 238–263.
45 - See the commentary on Article 104(2), para. 4067.
46 - See section C.1.b. See also Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, p. 167: As regards foreign advocates, the latter might not be sufficiently familiar with the rules of procedure of the Detaining Power, or with the language employed during the hearing. These provisions do not prevent PoW being assisted by foreign counsel, but the law of the land may not allow such counsel, and this is not contrary to the Convention. It has been noted that some States, e.g. Botswana, allow foreign lawyers to practise in their courts on account of their being short-staffed in certain areas. See Botswana Daily News, ‘Botswana has 45 practicing foreign lawyers’ (online article), 5 July 2016.
47 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 490.
48 - Report of the Conference of Government Experts of 1947, pp. 225–226.
49 - See section D.1.
50 - See the commentary on Article 104, para. 4059.
51 - Report of the Conference of Government Experts of 1947, p. 103.
52 - What constitutes ‘necessary facilities’ cannot be assessed in the abstract but will depend on the circumstances of the particular case; ICTY, Krajišnik Appeal Judgment, 2009, para. 80. This is also reflected in domestic legislation; see e.g. Bolivia, Code of Military Procedure Code, 1976, Article 5; Bosnia and Herzegovina, Criminal Procedure Code, 2003, as amended, Article 50(1); and Colombia, Military Criminal Code, 2010, Article 285. In the context of human rights law, see UN Human Rights Committee, General Comment No. 32: Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32, 23 August 2007, paras 32 and 33.
53 - See the commentary on Article 103, para. 4027.
54 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 497.
55 - Ibid. p. 512.
56 - See Report of the Conference of Government Experts of 1947, p. 226.
57 - See the commentary on Article 106, paras 4142, 4145 and 4149. See also the Dutch amendment: ‘He shall have the benefit of these facilities until the term of appeal, or revision has expired.’; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. III, p. 87, and Levie, p. 338, fn. 110.
58 - Report of the Conference of Government Experts of 1947, pp. 225–226.
59 - Ibid.
60 - A similar obligation can be found in Article 75(4)(a) of Additional Protocol I, which establishes that ‘the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him’. See also Article 71 of the Fourth Convention and Article 6(2)(a) of Additional Protocol II.
61 - Article 104(4) requires that the notification sent to the Protecting Power be sent also to the accused and the prisoners’ representative. The particulars of the notification are spelled out in Article 104(2), which in subparagraph 3 requires ‘the specification of the charge or charges on which the prisoner of war is to be arraigned, giving the legal provisions applicable’.
62 - In this sense, the US military manual states that ‘[p]articulars of the charge or charges on which the POW is to be arraigned, as well as the documents that are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power, shall be communicated to the accused POW in a language that he or she understands, and in good time before the opening of the trial’; Law of War Manual, 2016, p. 627, para. 9.28.4.4. See also Ireland, Geneva Conventions Act, 1962, as amended, Article 75(4)(a), and United Kingdom, Joint Doctrine Captured Persons, 2015, p. 10-24, para. 1041(a).
63 - See Levie, p. 334, fn. 89: ‘[I]n the overall context of these provisions, it is clear that this particular communicating must be done in writing.’
64 - See Geneva Convention on Prisoners of War (1929), Article 62, and Report of the Conference of Government Experts of 1947, p. 226.
65 - See also the second sentence of this clause regarding the need to notify the Protecting Power of the proceedings and the reason for the closed trial.
66 - Report of the Conference of Government Experts of 1947, p. 226.
67 - Ibid.
68 - Ibid.
69 - See Article 84(2). See also Rowe, p. 323: ‘[I]t must be the case that the protecting power has an implied obligation to ensure that the military court, before which a POW is to be tried (along with the investigation preceding it), are conducted by independent and impartial bodies.’
70 - See Articles 82(1) and 84(1).
71 - See Articles 82–88 and 99–108.
72 - Rowe, p. 323.
73 - A similar rule providing for a public hearing but with the possibility of carrying out part or all of the proceedings in camera is to be found in Article 74(1) of the Fourth Convention. Several military manuals also contain such a rule; see e.g. Canada, LOAC Manual, 2001, para. 1232.2; Pakistan, Military Manual, 1987, p. 35; and United Kingdom, Military Manual, 1958, para. 229. The statutes of several international criminal courts and tribunals also provide for a public hearing but with the possibility of carrying out part or all of the proceedings in camera; see ICC Statute (1998), Articles 64(7) and 68(2); ICTY Statute (1993), Article 20(4); ICTR Statute (1994), Article 19(4); and SCSL Statute (2002), Article 17(2). However, in the case of these statutes, the exceptions envisaged are not made in the interests of State security but rather to take into account the interests of the accused. For a similar discussion of language pertaining to national security exceptions in the context of confinement awaiting trial, see the commentary on Article 103, section C.2.
74 - Article 8(3) provides that representatives of Protecting Powers must take into account the imperative necessities of security of the State wherein they carry out their duties. See also First Convention, Article 8(3); Second Convention, Article 8(3); and Fourth Convention, Articles 9(3), 42(1), 74(1) and 78(1).
75 - Report of the Conference of Government Experts of 1947, p. 226.
76 - See United Kingdom, Military Manual, 1958, para. 229.
77 - See the commentary on Article 8, section H.
78 - See Introduction, section A.1.e, in particular paras 50–51, and the commentary on Article 9, para. 1316.
79 - See e.g. ICRC, Annual Report 1970, ICRC, Geneva, p. 39, and Annual Report 1987, ICRC, Geneva, p. 77.