Treaties, States Parties and Commentaries
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Commentary of 1960 


1. ' First sentence. -- Principle of assimilation '

Prisoners of war are retained for military reasons and they remain military personnel. The authors of the Hague Regulations therefore deemed it natural and sufficient to make them subject to the same penal and disciplinary legislation as members of the armed forces of the Detaining Power, and liable to the same punishment for similar actions, except as otherwise provided by the special regulations applicable to escape.
The experience of the 1914-1918 war showed, however, that abuses might result from any strict assimilation of prisoners of war with the armed forces of the Detaining Power (1), and the authors of [p.407] the 1929 Convention endeavoured to lay down certain rules in order to ensure a more precise penal and disciplinary system for prisoners of war.
The penal code applicable to members of the armed forces is designed to maintain strength and unity, and it usually provides for very severe penalties. There is, however, no reason for treating prisoners of war so severely; they remain enemies whose patriotism must be respected, "so that certain acts, which may be offences on the part of military personnel engaged in serving their country, cannot be considered as such when committed by prisoners of war whose only link with the Detaining Power is that they are its captives" (2). Thus, an attempt to escape, for instance, cannot be considered in the same light as desertion, nor can unrest in a prisoner-of-war camp be assimilated to mutiny in the armed forces. It was suggested that prisoners of war might be subjected to the ordinary penal legislation of the Detaining Power, but serious disadvantages are involved in this solution, since they are military personnel (3). There can be no question of applying the legislation of the State of origin of the prisoners of war, since there is such
diversity between the various national legislations that the same offence would be liable to different punishments; moreover, one could not expect judges to be acquainted with all those various legislations.
The question therefore arose of establishing a penal code specially for prisoners of war and this was considered soon after the end of the First World War. The Xth International Conference of the Red Cross, held at Geneva in 1921, which had already studied the basic provisions for a Convention relative to the treatment of prisoners of war, made the following recommendation: "An international code of disciplinary and penal sanctions applicable to prisoners of war should be included in this Convention". The problems involved in the establishment of special legislation applicable in war-time were, however, so great that this wish could not be realized (4). It must be admitted that such a solution would have but little chance of acceptance. Bretonnière points [p.408] out that it is difficult to expect a State to accept limitations of its sovereignty in war-time, when the penal legislation regarding public order applicable on the territory of each State is generally reinforced (5). He also remarks that if such a solution were adopted, it
is to be feared that a decision by one belligerent not to conform to the rules, for reasons of national security, might automatically lead the other belligerents to adopt the same attitude, perhaps with very grave consequences.
As already noted, the authors of the 1919 Convention therefore supported the principle already stated in the Hague Regulations, subject to certain exceptions favourable to prisoners of war. These exceptions may be divided into four groups: general provisions, penal sanctions, disciplinary sanctions, escape. The Diplomatic Conference established the new system on similar lines (6).
It should also be noted that the principle of assimilation is expressly confirmed in the following provisions: in regard to the determination of penalties, Articles 87, paragraph 1 , and 88, paragraphs 2 and 3 ; in regard to the execution of penalties, Article 88, paragraphs 1, 2 and 3 ; in regard to procedure, Article 84 . Besides special and general exceptions, mention must also be made of the derogation expressly stated in the second paragraph of the present Article, covering acts which are punishable only when committed by a prisoner of war.
On the other hand, the second portion of the present sentence, which authorizes the Detaining Power to take judicial or disciplinary measures in respect of any offence committed by a prisoner of war against the laws, regulations and orders referred to, is merely a corollary and logical consequence to the first portion. The text was somewhat modified as compared with the corresponding provision in the 1929 Convention which made the application of sanctions subject to an "act of insubordination" on the part of prisoners of war. The Government Experts considered, however, that the term "insubordination" might give the impression that a prisoner of war owed some allegiance to the Detaining Power, which is inadmissible since a prisoner of war, in his capacity as a member of the armed forces, is bound only to his own country (7). Although the legislation [p.409] of the Detaining Power is applicable to him during his captivity, he remains subject to the military law of his State of origin, as a member of its armed forces. He may therefore be made
answerable before the courts of his country for his acts, and cannot plead in defence that national legislation is inapplicable because it is suspended by Article 82 (8).

2. ' Second sentence. -- Limitation of principle '

The text of this sentence is very similar to the corresponding provision in the 1929 Convention (Article 45, paragraph 3 ); it makes a reservation in the case of special provisions of the Convention, based first on humanitarian considerations and secondly, as has already been pointed out, on the fact that a distinction must be made between the status of prisoners of war and that of members of the armed forces. The provisions concerning escape, disciplinary and penal sanctions are commented upon under the corresponding Articles, below.
With regard to exceptions of a general nature, a distinction must be made between those relating to the assessment of punishment (general leniency clause, Article 83 ; leniency based on the argument of non-allegiance, Article 87, paragraph 2 ), those concerned with the prohibition of cruel or humiliating punishment (Article 87, paragraphs 3 and 4 ) and lastly those which concern the treatment of prisoners of war after sentence has been served (Article 88, paragraph 4 ).

PARAGRAPH 2. -- DEROGATION (Discriminatory legislation)

This provision, which governs the application to prisoners of war of laws, regulations and orders not applicable to members of the armed forces of the Detaining Power, is entirely new. It is based on the experience of the Second World War, when certain Powers adopted repressive measures in regard to prisoners of war, sometimes entailing very severe penalties, particularly in the case of relations between prisoners of war and the female population (9). Without depriving the
[p.410] Detaining Power of the right to establish laws, regulations and orders applicable only to prisoners of war, it was therefore necessary to limit that right because of the personal and relatively slight nature of such offences. Those liable to severe punishment were already covered by the laws and penal codes promulgated before the outbreak of hostilities (10).
The best solution was therefore to provide that infringements of laws, regulations or orders specially laid down for prisoners of war should entail disciplinary punishment only, and the present provision was drawn up in that sense.

* (1) [(1) p.406] See especially with regard to the First World
War, G. CAHEN-SALVADOR, op. cit., p. 80 ff., and, with
regard to the Second World War, ' Report of the
International Committee of the Red Cross on its activities
during the Second World War ', Vol. I, p. 352 ff.; as
regards the Far East, see ibid., p. 439 ff. See also
BRETONNI RE, op. cit., p. 280 ff.;

(2) [(1) p.407] A. R. WERNER, ' La Croix-Rouge et les
Conventions de Genève, Analyse et Synthèse juridiques ',
Geneva 1943, p. 317;

(3) [(2) p.407] In some countries -- for instance Great
Britain and India -- only certain offences of a purely
military nature (desertion, mutiny, insubordination, etc.)
are punishable under military legislation. For all other
offences, members of the armed forces are subject to the
ordinary penal legislation;

(4) [(3) p.407] See ' Revue internationale de la
Croix-Rouge ', 1923, pp. 770-778. The question recurs at
the present time still more acutely because of the
development of coalition organizations, which may raise
most difficult problems in time of war. (See above, the
commentary on Article 12.);

(5) [(1) p.408] See BRETONNI RE, op. cit., pp. 289-290;

(6) [(2) p.408] The delegates to the Conference of Government
Experts also considered that it would be very difficult to
set up a special penal code for prisoners of war, and
decided to amplify and make more specific the rules and
procedures already laid down in the 1929 text. See
' Report on the Work of the Conference of Government
Experts ', p. 203;

(7) [(3) p.408] See ' Report on the Work of the Conference of
Government Experts ', p. 204;

(8) [(1) p.409] See ' Report on the Work of the Conference of
Government Experts ', Report of the legal sub-commission
of the Second Commission, in connection with Chapter III,
p. 2;

(9) [(2) p.409] See BRETONNI RE, op. cit., pp. 283-284; see
also ' Report of the International Committee of the Red
Cross on its activities during the Second World War ',
Vol. I, p. 356; FREY, op. cit., p. 61 ff.;

(10) [(1) p.410] See ' Report on the Work of the Conference of
Government Experts, ' p. 205;