Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 104 : Notification of judicial proceedings
Text of the provision*
1. In any case in which the Detaining Power has decided to institute judicial proceedings against a prisoner of war, it shall notify the Protecting Power as soon as possible and at least three weeks before the opening of the trial. This period of three weeks shall run as from the day on which such notification reaches the Protecting Power at the address previously indicated by the latter to the Detaining Power.
2. The said notification shall contain the following information:
(1) surname and first names of the prisoner of war, his rank, his army, regimental, personal or serial number, his date of birth, and his profession or trade, if any;
(2) place of internment or confinement;
(3) specification of the charge or charges on which the prisoner of war is to be arraigned, giving the legal provisions applicable;
(4) designation of the court which will try the case, likewise the date and place fixed for the opening of the trial.
3. The same communication shall be made by the Detaining Power to the prisoners’ representative.
4. If no evidence is submitted, at the opening of a trial, that the notification referred to above was received by the Protecting Power, by the prisoner of war and by the prisoners’ representative concerned, at least three weeks before the opening of the trial, then the latter cannot take place and must be adjourned.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
4050  Article 104 describes a specific procedural step the Detaining Power is required to take before it may commence with the trial of any prisoner of war. Under its terms, the Detaining Power must submit a detailed notification of proceedings to the Protecting Power, containing the particulars of the accused prisoner of war, information concerning the place of their internment or confinement, the charges against them, and the time and place set for the trial. The prisoners’ representative and the accused prisoner of war must be similarly notified. If these three entities do not receive the notification at least three weeks before the opening of the trial, the trial cannot take place and must be adjourned. Article 104 is therefore a very important procedural guarantee for accused prisoners of war.
4051  The notification serves a number of purposes. It enables the Protecting Power to communicate the fact that judicial proceedings have been instituted against a prisoner of war to the Power on which the prisoner depends. It is also key to ensuring that the accused prisoner can avail themselves of legal assistance through the Protecting Power. Furthermore, the notification enables the Protecting Power, should it so desire, to plan for one of its representatives to be present at the trial, as provided for in Article 105(5).
4052  Given that the Parties to most international armed conflicts occurring since the adoption of the 1949 Conventions have not appointed Protecting Powers, the notification referred to in Article 104 may be made to the ICRC. Indeed, the organization has already acted in this capacity based on its right of humanitarian initiative enshrined in Article 9.[1]
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B. Historical background
4053  Article 104 can be traced back, and is similar in its essentials, to Article 60 of the 1929 Geneva Convention on Prisoners of War.[2] Experiences in the Second World War revealed certain ‘technical deficiencies’[3] inherent in Article 60. Immediately after the war, attempts were made to remedy these deficiencies.[4] A draft revised article was submitted to the 17th International Conference of the Red Cross in Stockholm in 1948.[5] At the Conference, in addition to some editorial changes, the final paragraph on adjournment of trial was added, as was the requirement to notify the prisoners’ representative.[6] The 1949 Diplomatic Conference continued the work to eliminate the main areas of confusion and to strengthen the provision.
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C. Paragraph 1: Notification of judicial proceedings
4054  Article 104 lays down a key procedural guarantee for prisoners of war facing trial. It requires the Detaining Power to notify the Protecting Power that judicial proceedings have been instituted against a prisoner of war. Its terms are clear: it applies to all cases that involve the trial of a prisoner of war, with no exceptions envisaged. The corresponding draft article of the 1929 Convention put forward by the ICRC included an exception, whereby the Protecting Power did not need to be notified if the penalty to be incurred by the accused did not exceed three months’ imprisonment.[7] Spain proposed deleting this element of the draft article,[8] a suggestion taken up by the 1929 Diplomatic Conference.[9] The language of the provision as revised and adopted in 1949 does not allow for any exceptions.
4055  The first sentence of Article 104 requires the Detaining Power to notify the Protecting Power, a specific instance of the application of Article 8, which provides that the Convention ‘shall be applied with the cooperation and under the scrutiny of the Protecting Powers’. Notification under Article 104 is meant primarily to provide the Protecting Power with relevant information in a timely manner so that it may act to safeguard the interests of the accused prisoner of war, as the Power on which the prisoner depends will, in many cases, be unable to do so.[10] The Protecting Power can ensure that the accused prisoner is able to access legal assistance to prepare their defence.[11] It may also exercise its prerogative under Article 105(5) to have a representative present at the trial, unless the security of the Detaining Power necessitates holding the trial in camera.[12] Indeed, the Protecting Power will not be in a position to carry out any of its functions under Article 105 if the Detaining Power either fails to make, or considerably delays making, the requisite notification.[13]
4056  According to the first sentence, notification must be made ‘as soon as possible’ after it has been decided that judicial proceedings will be instituted against a prisoner of war. It is possible that, in certain jurisdictions, some of the particulars required under Article 104(2) – in particular, the designation of the court and date for trial – are not yet known to the Detaining Power immediately after that decision is made. This point was discussed in the negotiations on the corresponding provision in the 1929 Convention. The Czechoslovak delegation highlighted a discordance between the draft text of Article 60 and Czechoslovak penal procedure.[14] It argued that ‘it was impossible, according to the penal code of their country, to state at the commencement of the inquiry the date fixed for the hearing, since the examining magistrate himself would not know it, nor whether the charges would be upheld or not. Consequently, the date of the hearing could only be known when the indictment was drafted.’[15] To remedy this, the delegation proposed an amendment to the draft article, which is the origin of the phrase ‘as soon as possible’ now found in Article 104.[16] This phrase therefore gives the Detaining Power the flexibility to submit an Article 104 notification once it is in possession of all the particulars required under paragraph 2 – even if this occurs after a decision to institute judicial proceedings against a prisoner of war has already been made – while emphasizing that the notification must be made promptly, without unnecessary delay. This does not necessarily mean that the Detaining Power has to wait to submit a notification until it is in possession of all the particulars mentioned. The provision must be interpreted to allow the notification to be made in stages. This is because, in some cases, the designation of the court or the fixing of the trial date could take several months, and if the Detaining Power were to wait until all the required information was available, the Protecting Power might face difficulties in performing its duties of supervision with respect to the prisoner of war concerned.
4057  Notwithstanding the above, the text of the first sentence also provides that at least three weeks must elapse between the notification and the opening of the trial. The text demonstrates an intention to allow the recipients of the notification sufficient time to prepare for judicial proceedings.
4058  The three-week time limit mentioned in Article 104 is related to the time periods mentioned in Article 105(2) and (3). It is precisely because Article 105(2) states that the Protecting Power must have at least one week to find a defence lawyer for the accused, and Article 105(3) that 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.[17] It should be recalled that according to a contemporary reading of Article 103, which covers pretrial investigations and confinement awaiting trial, the accused must have access to counsel prior to trial.[18]
4059  Three weeks is a minimum. The Detaining Power is obliged to notify the Protecting Power as soon as it has all the necessary information at its disposal, which may be well in advance of the trial date. In cases where the preparation of a defence is of particular importance, for example when the charges could lead to the imposition of the death penalty or of a lengthy prison sentence, it would be preferable to extend the time limit as, depending on the complexity of the case, it can take considerably longer for both the defence and the prosecution to prepare for a trial.[19] Through the ‘principle of assimilation’,[20] an accused prisoner of war would be subject to any time limits applicable to members of the armed forces of the Detaining Power who had committed a similar offence, provided that these comply with the provisions of Article 104(1) and 105(2) and (3).[21]
4060  The text of Article 60 of the 1929 Convention regarding the timing of notification of proceedings was confusing, and possibly contradictory,[22] since no time limit was mentioned in the first paragraph, while the three-week limit was only explicitly mentioned in reference to the ‘complementary notification’ contained in the third paragraph.[23] The 1949 text remedies this by clearly applying the three-week time limit to all aspects of the notification.
4061  Taken together, the elements of the first sentence seek to ensure that the Detaining Power has sufficient time to amass the particulars to be included in the notification and that prisoners of war who are to face trial benefit from legal assistance as early as possible. In absolutely all cases, the notification should reach its intended recipients (the Protecting Power, the prisoners’ representative and the accused prisoner of war)[24] at least three weeks before the opening of the trial.
4062  The second sentence of Article 104(1) was prompted by experiences during the Second World War, which showed that the previous iteration of the rule required clarification. Therefore, in order to eliminate delays resulting from the vagueness of the 1929 text, which sometimes prevented the Protecting Power from acting in time,[25] the drafters of the new convention in 1949 specified that the period of three weeks is to run from the day on which the notification is received by the representative of the Protecting Power, and not from the day on which it is despatched by the Detaining Power.[26] From the moment it agrees to represent a certain category of prisoners, the Protecting Power must therefore indicate an appropriate address so that the Detaining Power may comply with its obligations.[27]
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D. Paragraph 2: Contents of the notification
4063  Article 104(2) lists the four categories of information the Detaining Power is required to provide in its notification. First, the notification must contain detailed information enabling the identity of the accused prisoner to be firmly established. These particulars accord largely with the information a prisoner of war is required to provide when questioned following capture and are listed in Article 17(1): surname and first names, rank, date of birth, and army, regimental, personal or serial number. Article 104 also states that a reference should be made to the prisoner’s profession or trade, if any.
4064  Second, the notification must specify where the prisoner is being interned, or if confined awaiting trial, the location of confinement, in case the Protecting Power wishes to exercise individual supervision. The place where a prisoner of war is interned is normally known to their family and to the Central Tracing Agency, as this information is provided on the capture cards.[28] The Protecting Power would not, however, automatically be informed of this. Article 104 requires that information on the place of internment or confinement be included in the notification to facilitate the rapid provision of legal assistance.
4065  Third, the notification must specify the charge or charges, as well as the applicable legal provisions. This requirement should be distinguished from that contained in Article 105(4), whereby the prisoner of war and their defence counsel must be informed of the full particulars of the charges.[29] The language of this subparagraph accords with the 1929 version, which did not require the Detaining Power to include the full text of the charges in the notification either.[30] This information should enable the Protecting Power to verify that the relevant provisions of the Convention are complied with and to pay particular attention to ensuring compliance with Article 82, which provides that prisoners of war are subject to the laws, regulations and orders in force in the armed forces of the Detaining Power, except as provided in the present chapter.
4066  Lastly, the Detaining Power must inform the Protecting Power of the designation of the court that will try the case, as well as the location and date fixed for the trial. This provision is the same as that in the corresponding clause in the 1929 text, except that under the present Convention the compulsory period of three weeks applies not only to these particulars but to all the information that must be provided in the notification.[31] The purpose of including the court, location and timing of the trial in the notification is twofold. First, it allows the Protecting Power to look into whether the designated court, as well as the investigation preceding the trial, is independent and impartial.[32] If there are reasons to believe that this is not the case, the Protecting Power must ‘draw this to the attention of the detaining state’.[33] The independence and impartiality of the court constitute important elements of the right to a fair and regular trial. Under Article 130, wilfully depriving a prisoner of war of the rights of fair and regular trial is a grave breach of the Convention. As regards the designation of the court, Article 102 requires that the judicial authority pronouncing sentence on prisoners of war be the same as that for members of the armed forces of the Detaining Power. Second, the information enables the Protecting Power to send one of its representatives to the trial.
4067  The Detaining Power is free to provide additional information. This could include, for example, the list of qualified defence lawyers mentioned in Article 105.[34]
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E. Paragraph 3: Communication to the prisoners’ representative
4068  In addition to notifying the Protecting Power, Article 104(3) requires the Detaining Power to communicate the same information to the prisoners’ representative.[35] In this respect, the text of Article 104 differs from that of the corresponding provision in the 1929 Convention. The requirement was added as a result of experiences during the Second World War, which showed that prisoners’ representatives play a very useful role when judicial proceedings are brought against a prisoner of war, especially in the absence of a regular Protecting Power.[36] During the 1947 Conference of Government Experts, the ICRC therefore proposed that notification of proceedings should also be sent to the prisoners’ representative.[37] Although some delegations opposed this, as they considered it would ‘lay a fresh obligation’ on the Detaining Power,[38] this language was eventually introduced in the draft convention submitted to the 1948 Stockholm Conference and adopted in 1949.
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F. Paragraph 4: Adjournment of trial
4069  Article 104(4) provides that, for a trial against a prisoner of war to proceed, it must open with ‘evidence’ that the Protecting Power, the prisoners’ representative and the accused prisoner of war have received the requisite notification at least three weeks prior to the start of the trial. Should the Detaining Power fail to comply with this provision, the trial cannot take place and must be adjourned until the notification requirement is complied with. This element of the provision did not feature in the drafts submitted to the 1948 Stockholm Conference, but was added during that Conference by the representative of the United States.[39] In effect, the absence of notification serves as a procedural bar to the trial of the accused prisoner of war. The 1947 Conference of Government Experts recommended that ‘the evidence mentioned should be provided by the public prosecutor’.[40] However, failing this, and if the court does not do so of its own accord, defence counsel is entitled at the opening of the trial to ask for the evidence required.[41]
4070  Paragraph 4 is clear as to whom the notification should be addressed, i.e. the Protecting Power, the prisoners’ representative and the accused prisoner of war, who cannot effectively prepare the defence without the necessary information about the charges made and the date/place of trial.[42] Generally, therefore, publicizing the trial of a prisoner of war in newspapers or other media does not suffice. Notification must be made separately to each of the specified entities. Article 104 does not indicate the form in which the notification should be made, but it is recommended that this be done in writing and in a language that the recipients understand, as it is in the interest of the Detaining Power to despatch the notification in a form that can easily be produced as evidence.
4071  It appears from the text of Article 104 that timely notification to all the addressees mentioned is a strict condition for the opening of a trial. This raises the question whether, and if so how, this provision can be complied with when no Protecting Power or a substitute has been appointed, as has been the case in most international armed conflicts since the adoption of the Conventions in 1949.[43]
4072  The absence of a Protecting Power or substitute does not release the Detaining Power from its obligation to provide timely notification of proceedings pursuant to this provision. It has been argued that if notification to a Protecting Power is a necessary condition for proceeding with a trial and such notification has not been given, a trial may not proceed, and any judgments issuing from trials conducted in violation of this provision must be considered invalid.[44] To comply with this provision, therefore, Parties to an international armed conflict should endeavour to appoint a Protecting Power or a substitute, or should otherwise ensure that the notification required by Article 104 is provided to an impartial humanitarian organization, such as the ICRC, that can inform the Power on which the accused depends, as well as safeguard the interests of the individual facing trial.
4073  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.[45] More specifically, Article 104 notifications have been submitted to the ICRC,[46] and the organization has also made representations to Detaining Powers in instances where accused prisoners of war were set to face trial without the requisite notification having been made.
4074  The adjournment of trial mentioned in this paragraph could be read as applying only if the time limit for the notification is not met. However, logically, the opening of a trial would also have to be adjourned in cases where the full particulars required under Article 104(2) are not included in the notification.
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Select bibliography
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, 1976, 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 Introduction, section A.3.e, in particular paras 50–51, and the commentary on Article 9, para. 1316.
2 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 572. Article 60 of the 1929 Geneva Convention on Prisoners of War reads: At the commencement of a judicial hearing against a prisoner of war, the detaining Power shall notify the representative of the protecting Power as soon as possible, and in any case before the date fixed for the opening of the hearing. The said notification shall contain the following particulars: (a) Civil status and rank of the prisoner. (b) Place of residence or detention. (c) Statement of the charge or charges, and of the legal provisions applicable. If it is not possible in this notification to indicate particulars of the court which will try the case, the date of the opening of the hearing and the place where it will take place, these particulars shall be furnished to the representative of the protecting Power at a later date, but as soon as possible and in any case at least three weeks before the opening of the hearing.
3 - Report of the Conference of Government Experts of 1947, p. 222.
4 - Ibid. pp. 221–223.
5 - Draft Conventions submitted to the 1948 Stockholm Conference, p. 116.
6 - Draft Conventions adopted by the 1948 Stockholm Conference, p. 88.
7 - See Prisoners of War Code, draft article 67, p. 28.
8 - See Proposals and Observations of Governments on the 1929 Draft Convention on Prisoners of War, p. 37.
9 - See Minutes of the Sub-commission I (Legal and Criminal) of Commission II at the Diplomatic Conference of 1929, Meeting of 8 July 1929, p. 1.
10 - The rule in Article 104 predates Article 36 of the 1963 Vienna Convention on Consular Relations, according to which foreign nationals arrested, in prison, custody or detention may request that information about their situation be forwarded to the appropriate consular post of their home country. The State detaining them must inform them of their right to do so, and if exercised, must forward the relevant information, without delay, to the consular post concerned. Consular officers may visit or correspond with their national, as well as arrange for legal representation. Since consular relations between Parties to international armed conflicts may be interrupted, Protecting Powers or their substitutes are charged with fulfilling these functions.
11 - See the commentary on Article 105(2), section D.1.
12 - See the commentary on Article 105(5), section G.
13 - See the commentary on Article 105(2) and (3), sections D.1 and E.1.
14 - See Proceedings of the Geneva Diplomatic Conference of 1929, p. 496.
15 - See Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, p. 164. See also Proceedings of the Geneva Diplomatic Conference of 1929, pp. 496–497.
16 - While the Czechoslovak amendment was not taken up in its entirety, the drafters considered it important to add this particular phrase. See Proceedings of the Geneva Diplomatic Conference of 1929, pp. 496–497, particularly the comments of the German delegate and the rapporteur (an ICRC representative).
17 - See the commentary on Article 105, sections D.1 and E.1.
18 - See the commentary on Article 103, section C.1, in particular para. 4027. See also the commentary on Article 105, para. 4084, and Geneva Academy of International Humanitarian Law and Human Rights and ICRC, Guidelines on investigating violations of international humanitarian law: Law, policy, and good practice, prepared by Noam Lubell, Jelena Pejic and Claire Simmons, Geneva, September 2019, Guideline 11, para. 156.
19 - See Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, p. 165. In its submissions to the government experts, the ICRC noted that in such cases, ‘it might be advisable to extend the time mentioned … from three to six weeks’.
20 - 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.
21 - See also the commentary on Article 105, para. 4116.
22 - This was the conclusion reached by the 1947 Conference of Government Experts; see Report of the Conference of Government Experts of 1947, p. 222. See also Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, p. 165.
23 - Report of the Conference of Government Experts of 1947, p. 222.
24 - See paras 4069–4070 of this commentary.
25 - See Report of the Conference of Government Experts of 1947, p. 222, and Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, p. 165.
26 - Article 101 contains a similar requirement.
27 - See also Articles 101 and 107(3).
28 - See Article 70.
29 - See the commentary on Article 105, section F.
30 - The Czechoslovak amendment to the corresponding article in the 1929 Convention contained language that would have required the Detaining Power to furnish the Protecting Power with the entire ‘acte d’accusation’ (‘indictment’). In responding to this suggestion, the rapporteur (an ICRC representative) noted that it was not reasonable to expect this of the Detaining Power, stating: ‘Ceux d’entre vous qui savent ce qu’est un acte d’accusation dans certaines procédures redouteront peut-être de charger une Puissance détentrice d’envoyer un tel acte d’accusation et d’obliger la Puissance protectrice de le lire dans toute son étendue. Sur ce point, il serait préférable de garder l’expression du projet : un bref résumé de l’accusation et l’indication des dispositions légales applicables.’ (‘Those of you who know what an indictment can be in certain procedures will perhaps fear requiring a Detaining Power to send such an indictment and obliging the Protecting Power to read it in its entirety. On this point, it would be preferable to retain the wording of the draft: a brief summary of the charge and the statement of the legal provisions applicable.’) The text of the 1929 provision therefore only required a ‘statement of the charge or charges, and of the legal provisions applicable’.
31 - See para. 4060 of this commentary.
32 - Rowe, p. 323. On the independence and impartiality of courts, see the commentary on Article 84(2), section D.1. On the independence and impartiality of pretrial investigations, see the commentary on Article 103, para. 4027.
33 - Rowe, p. 323.
34 - See the commentary on Article 105(2), section D.1, in particular para. 4110.
35 - See the commentary on Article 80, para. 3509.
36 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 572.
37 - Report of the Conference of Government Experts of 1947, p. 222.
38 - Ibid. p. 223.
39 - Summary of Debates of the Sub-Commissions of the Legal Commission at the 1948 Stockholm Conference, p. 39.
40 - Report of the Conference of Government Experts of 1947, p. 222.
41 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 484.
42 - See the similar requirement in Article 105(4).
43 - On Protecting Powers, see Introduction, section A.3.e., and Article 8.
44 - South Africa, Supreme Court (Transvaal Division), Rex. v. Giuseppe and others, 1942, Judgment, pp. 139–140. With an eye on Article 60 of the 1929 Convention, the judge in this case stated: ‘[I]t is admitted that no notification [to the Protecting Power] as provided in [Article 60] has been sent and that there has been no legal representation. In the circumstances I think the “irregularity” is sufficient to warrant my setting aside the convictions and sentence.’ See also the argument of the defence in South Africa, Supreme Court (Cape Provincial Division), Petane case, Judgment, 1987, pp. 51–67. But see Rosas, p. 456 (noting that ‘the absence of a protecting power cannot constitute an absolute obstacle to trials against prisoners of war’).
45 - See Introduction, section A.3.e, in particular paras 50–51, and the commentary on Article 9, para. 1316. See also François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, p. 871.
46 - See e.g. ICRC, Annual Report 1970, ICRC, Geneva, p. 39.