Treaties, States Parties and Commentaries
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Commentary of 1958 


This paragraph gives protected persons condemned to death the right to appeal, a right granted by law in nearly all countries to those sentenced to death.
The right to petition for pardon or reprieve is of particular importance during a period of occupation, when so many factors combine to make the normal course of penal justice more difficult and to increase the risk of judicial errors.
[p.362] The Convention does not regulate the procedure for petitions, which is left to the discretion of the Occupying Power. National law generally reserves the right of granting pardon or reprieve to Parliament or an executive authority, usually the Head of State. In wartime, for persons condemned under the military penal code, the right of pardon or reprieve rests with the Commander-in-Chief.
Appeals for pardon or reprieve may be made in respect of sentences other than the death sentence, but it is only in regard to capital punishment that the Occupying Power is under an obligation, since only death is irrevocable.


The provision that there should be a six-month period of suspension of the death sentence after the final sentence has been communicated to the Protecting Power or after a refusal to grant a pardon or reprieve has been notified to that Power, is a final guarantee against a judgment based on the circumstances of the moment, too often affected by emotional considerations (2).
During this time the Protecting Power can make any representations to the Occupying Power it may deem expedient in behalf of the condemned person.


This principle is, however, subject to an important reservation. The six-month period of suspension of the death sentence may be reduced in circumstances of grave emergency involving an organized threat to the security of the Occupying Power. Mere agitation or threats would not be sufficient. The circumstances must be particularly serious and critical and the threat to which the Occupying Power or its forces are exposed must be "organized", i.e. it must result from the action of several persons acting in common accord. Furthermore, the execution of the person condemned must be really necessary for the repression of the disturbances, in that, for example, it deprives the rebellion of its leader and thus prevents the sacrifice of further human lives.
The strictly exceptional character of this reservation is shown by the fact that it can only be invoked "in individual cases" (3). The [p.363] Occupying Power could not, therefore, decree a general reduction in the period of suspension of the death sentence. It may only reduce that period in regard to certain persons, and furthermore it is obliged to advise the Protecting Power of such reduction in order to enable that Power to make representations to the occupation authorities concerned in "reasonable time".
Thus the Protecting Power, even in exceptional cases, will remain able to make representations before any sentence of death is carried out.

Notes: (1) [(1) p.361] For the origins of this Article, see ' Final
Record, ' Vol. I, p. 124; Vol. II-A, pp. 771, 835;

(2) [(1) p.362] Article 101 of the Third Convention also
stipulates that a period of six months shall elapse after
a prisoner of war has been sentenced to death before the
penalty is executed;

(3) [(2) p.362] "Dans certains cas précis" in the French text;