Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 95 : Disciplinary procedure: Confinement awaiting hearing
Text of the provision*
(1) A prisoner of war accused of an offence against discipline shall not be kept in confinement pending the hearing unless a member of the armed forces of the Detaining Power would be so kept if he were accused of a similar offence, or if it is essential in the interests of camp order and discipline.
(2) Any period spent by a prisoner of war in confinement awaiting the disposal of an offence against discipline shall be reduced to an absolute minimum and shall not exceed fourteen days.
(3) The provisions of Articles 97 and 98 of this Chapter shall apply to prisoners of war who are in confinement awaiting the disposal of offences against discipline.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
3883  Article 95 deals with confinement of prisoners of war who are awaiting a hearing and is the first of two provisions regulating the procedure for imposing disciplinary punishment. Where such confinement is permissible, Article 95 provides that it must be kept to an absolute minimum and last no longer than 14 days. It further requires that prisoners be afforded the same minimum standards of treatment and conditions of confinement as for any other disciplinary confinement. The reason for this restrictive framework is that the offences punishable by disciplinary measures are of a relatively minor character.[1]
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B. Historical background
3884  In the nineteenth and early twentieth centuries, disciplinary punishment of prisoners of war, including confinement awaiting hearing, was regulated solely by the laws, regulations and orders applicable in the Detaining Power’s armed forces.[2] The treatment of prisoners of war during the First World War revealed, however, that this approach provided insufficient protection.[3] Thus, among other important provisions on disciplinary confinement, Article 47(1) of the 1929 Geneva Convention on Prisoners of War included the requirement that any confinement awaiting hearing ‘be reduced to a strict minimum’.[4]
3885  Following numerous abuses of the rules on pre-hearing confinement of prisoners during the Second World War,[5] government experts meeting in 1947 to review the 1929 Convention proposed that a maximum period of confinement awaiting hearing be specified and that ‘a clear and detailed stipulation’ on the treatment of prisoners of war in pre-hearing confinement be inserted.[6] This proposal was taken up in the draft conventions submitted to the 17th International Conference of the Red Cross in Stockholm in 1948, which contained an article that included the provisions in Article 95(2) and (3).[7] During the Diplomatic Conference in 1949, the first paragraph of Article 95 was added by the Sub-Committee on Penal Sanctions, after which States adopted the entire provision.[8]
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C. Paragraph 1: Prohibition of confinement awaiting hearing
3886  Article 95(1) contains a general prohibition on confinement of prisoners of war who are accused of an offence against discipline and who are awaiting a hearing, allowing for two exceptions only. Establishing such a prohibition was considered the best way to avoid any recurrence of the abuses experienced during the Second World War.
3887  The two alternative exceptions to the prohibition are: 1) where pre-hearing confinement would also be applied to members of the Detaining Power’s armed forces accused of a similar offence; and 2) where confinement awaiting hearing is essential in the interests of camp order and discipline.
3888  The first exception reflects the principle of assimilation.[9] Based on this exception, the Detaining Power may only keep prisoners of war in confinement pending hearing if members of its own armed forces would be so kept if they were accused of a similar offence. However, this is subject to the proviso in paragraph 2 that the confinement be kept to an absolute minimum. This means that it is not necessarily permitted to confine prisoners of war prior to the hearing for the same duration as that foreseen for members of the armed forces of the Detaining Power.
3889  The second exception that confinement be ‘essential in the interests of camp order and discipline’ has, however, been criticized because, if interpreted broadly, it ‘opens the door for improprieties on the part of … the Detaining Power’.[10] To make the general prohibition of pre-hearing confinement meaningful, the definition of what is ‘essential in the interests of camp order and discipline’ must thus be interpreted narrowly.[11] The requirement that it is ‘essential in the interests of camp order and discipline’ indicates that confinement awaiting hearing may only be resorted to if this is ‘absolutely necessary’ or ‘extremely important’.[12]
3890  Irrespective of whether pre-hearing confinement is based on the principle of assimilation or on the maintenance of camp order and discipline, it must comply with all other protections guaranteed by the Convention.
3891  In international armed conflicts since the Second World War, the ICRC has repeatedly witnessed prisoners of war being placed in confinement immediately following an allegation of an offence. When such confinement is followed neither by an investigation nor by an official award of punishment, as was the case in the instances encountered by the ICRC, it must be regarded as the actual punishment (in disregard of the procedure laid down in Article 96), rather than confinement awaiting hearing dealt with in Article 95.
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D. Paragraph 2: Maximum duration of confinement awaiting hearing
3892  Article 95(2) prescribes that confinement of prisoners of war awaiting a hearing on an alleged disciplinary offence must be reduced to an absolute minimum and may not exceed 14 days.[13] This provision corresponds with Article 96(1), which requires that acts that constitute offences against discipline be investigated immediately. Such an investigation is likely to be less complex than a judicial process, and any significant delay between the time the offence is discovered and the awarding of punishment will generally not be justified.
3893  The wording of Article 95(2) is evidence that States desired greater protection for prisoners of war under pre-hearing confinement than provided for in the 1929 Convention: while the earlier Convention required that pre-hearing confinement be ‘reduced to a strict minimum’,[14] Article 95(2) introduces stronger wording, whereby any such period must be reduced to an ‘absolute minimum’. In other words, confinement awaiting hearing – if permitted at all – must be as short as possible. Additionally, States prescribed a 14-day maximum for any such confinement, which cannot be exceeded under any circumstances. This time limit is just under half the maximum sentence of confinement applicable, and any period spent in pre-hearing confinement must be deducted from the eventual award.[15] The restriction ensures that, even in cases where pre-hearing confinement is followed by confinement as a disciplinary sanction, the maximum duration of confinement can never exceed 30 days. It would follow from this logic that if a disciplinary punishment other than confinement is applied, the prisoner of war’s pre-hearing confinement should be taken into consideration when the disciplinary punishment is set.
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E. Paragraph 3: Standards of treatment during confinement
3894  Article 95(3) prescribes that prisoners of war undergoing confinement awaiting a hearing must be treated in accordance with Articles 97 and 98. These articles set down essential guarantees regarding the premises in which a prisoner of war may be held awaiting hearing and minimum standards of treatment and conditions of confinement. States decided to apply the same standards of treatment to prisoners of war awaiting disciplinary hearing as those applied to prisoners of war undergoing disciplinary confinement, in order to prevent the recurrence of the abuses committed during the Second World War. In those cases, prisoners undergoing pre-hearing confinement were held in special camps to which prisoners’ representatives and Protecting Powers had no access and where essential privileges and guarantees were suppressed.[16]
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Select bibliography
Bretonnière, Maurice, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), Paris, 1949, pp. 313–319.
Harvey, Alton H., ‘The Maintenance of Control over Prisoners of War’, Military Law and the Law of War Review, Vol. 2, 1963, pp. 127–148.
Hingorani, Rup C., Prisoners of War, 2nd edition, Oceana Press, Dobbs Ferry, 1982.
Krähenmann, Sandra, ‘Protection of Prisoners in Armed Conflict’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 359–411.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 315–342.

1 - Harvey, p. 142.
2 - See Hague Regulations (1907), Article 8(1). See also Hague Regulations (1899), Article 8(1); Brussels Declaration (1874), Article 28(1); and Oxford Manual (1880), Article 62.
3 - The 10th International Conference of the Red Cross requested that ‘[u]n code international de mesures disciplinaires et pénales à appliquer aux prisonniers de guerre fera partie intégrante [d’une Convention Diplomatique sur les prisonniers de guerre, les déportés, les évacués et les réfugiés]’ (‘an international code of disciplinary and penal measures applicable to prisoners of war be an integral part [of a Diplomatic Convention on prisoners of war, deportees, evacuees and refugees]’); 10th International Conference of the Red Cross, Geneva, 1921, Res. XV, Code des Prisonniers de Guerre, Déportés, Evacués et Refugiés. See also Patrick D. Pflaum, ‘A Matter of Discipline and Security: Prosecuting Serious Criminal Offenses Committed in U.S. Detention Facilities Abroad’, Military Law Review, Vol. 194, December 2007, pp. 66–131, at 73, and Georges Werner, Les prisonniers de guerre, Librairie Hachette, 1929, pp. 56–57.
4 - See also Geneva Convention on Prisoners of War (1929), Articles 56 and 49.
5 - See e.g. Bretonnière, pp. 313–314. For French prisoners of war in the hands of Germany during the Second World War, pre-hearing confinement was sometimes extended indefinitely during disciplinary or judicial proceedings.
6 - Report of the Conference of Government Experts of 1947, p. 208.
7 - While the government experts proposed that the standards of treatment be laid down in Article 95(3), the ICRC suggested a simple reference to the standards defined for the treatment of any prisoner of war undergoing disciplinary confinement. The latter approach was eventually adopted. See Draft Conventions submitted to the 1948 Stockholm Conference, pp. 111–112.
8 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 306, 311 and 493.
9 - 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.
10 - Levie, pp. 325–326. Levie also made the point that only very few cases exist where confinement awaiting hearing would be essential in the interests of camp order and discipline but would not be foreseen for members of the armed forces of the Detaining Power or trigger judicial proceedings. Thus, he finds that ‘there was no need for this exception’. The possibility of interpreting this exception broadly was highlighted by the French delegation during the 1949 Diplomatic Conference; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 493.
11 - This is also clear from the French text, which refers to ‘les intérêts supérieurs du maintien de l’ordre et de la discipline dans le camp’ (‘the higher interests of camp order and discipline’).
12 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 488.
13 - The wording of the provision refers to ‘confinement awaiting the disposal of an offence against discipline’. This must be understood simply as confinement awaiting hearing, pre-hearing confinement or, in accordance with the French text, preventive confinement.
14 - Geneva Convention on Prisoners of War (1929), Article 47, para. 1.
15 - Article 90(1).
16 - See e.g. Report of the Conference of Government Experts of 1947, p. 208.