Treaties, States Parties and Commentaries
  • Print page
Commentary of 1960 


The present paragraph establishes the competence of military courts. It was considered that, despite the advantages which prisoners of war might possibly have derived from appearing before civil courts, since they are generally less severe than military courts, it was preferable to recognize the competence of the latter. In time of war, wide powers are conferred on courts-martial and it is they which consider infringements of the military laws and regulations to which prisoners of war are subject, pursuant to Article 82 . It therefore seemed appropriate to make this system the general rule.
An essential reservation is, however, contained in the second part of the present paragraph. In some countries, in particular the United Kingdom, by long-standing custom, civil tribunals alone are competent to deal with certain offences, whether or not committed by members of the armed forces to whom prisoners of war are assimilated.


This provision is intended to clarify and reinforce the principle of the normal jurisdiction of military courts as stated in the first paragraph, by indicating the relevant guarantees. It was no easy matter to find a text covering the various guarantees which were thus to be afforded to prisoners of war and in one simple sentence to make a general reference to them.
The first text drafted during the preparatory work merely referred to "the essential guarantees of independence and impartiality generally recognized", but the wording seemed very difficult to interpret in the absence of any international codification. In order to clarify the text, some delegations proposed the insertion of a specific reference to Article 105 . In the case of either a civilian or a military court, the guarantees specified in Article 105 below therefore represent the minimum conditions which must be fulfilled by any court called upon to try prisoners of war.