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Commentary of 2020 
Article 99 : Judicial procedure: General principles
Text of the provision*
(1) No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.
(2) No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.
(3) No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
Spain (withdrawn 5 January 1979)[1]
Contents

A. Introduction
3946  Article 99 forms part of the chapter on penal and disciplinary sanctions and is the first article in the section on judicial proceedings, setting out ‘general principles’ for judicial proceedings against prisoners of war. These general principles oblige Detaining Powers to observe certain fundamental guarantees when exercising their judicial authority over prisoners of war.
3947  Article 99 is formulated in terms of absolute prohibitions. These proscriptions, which seek to ensure the proper administration of justice, are essential to ensure respect for the basic rights of prisoners of war, since ‘every human being is entitled to a fair and regular trial, whatever the circumstances’.[2] Wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in the Convention constitutes a grave breach under Article 130.[3]
3948  The first general principle set out in Article 99 emphasizes that there can be no crime, and no punishment, without pre-existing law. This is commonly known as the ‘principle of legality’ and is a principle of penal law that safeguards against arbitrary and abusive action by the State. Article 99(1) applies this principle to the trial and sentencing of prisoners, while Article 87(1) applies it to penalties.
3949  The second general principle articulated in Article 99 proscribes the use of coercion, be it moral or physical, to compel a prisoner of war to confess guilt. This principle is related to the presumption of innocence in criminal proceedings and to the prohibition of torture and other forms of ill-treatment under international humanitarian law.[4]
3950  The final general principle laid down in Article 99 also relates to the presumption of innocence and prohibits the conviction of prisoners of war without having afforded them the opportunity to present their defence and to benefit from the assistance of a qualified advocate or counsel. Article 99 is related to Article 105, which spells out what those rights and means of defence entail.
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B. Historical background
3951  The 1929 Geneva Convention on Prisoners of War did not aim to include either a penal code or penal procedure code but rather to lay down certain basic principles.[5] Article 61 of the 1929 Convention provided that ‘[n]o prisoner of war shall be sentenced without being given the opportunity to defend himself’ and that ‘[n]o prisoner of war shall be compelled to admit that he is guilty of the offence of which he is accused’. Building on Article 61 of the 1929 Convention, the Diplomatic Conference in 1949 deemed it necessary to add the principle of legality to the text of Article 99, as a basic element of fair trial.[6]
3952  These provisions notwithstanding, during the Second World War many prisoners of war were sentenced without a fair trial, illustrating the adage that justice is ‘the first casualty in war crime trials’.[7] At the end of that war, several judges and prosecutors became defendants in their own trials and were found guilty of having denied prisoners of war a fair trial.[8]
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C. Paragraph 1: The principle of legality
1. No crime or punishment without law
3953  Together with Article 87(1), Article 99(1) reflects the principle of legality as it relates to criminal proceedings against prisoners of war. This principle is twofold. First, it establishes that no one may be held responsible for a crime on account of an act or omission that did not constitute a criminal offence under domestic or international law at the time of its commission (nullum crimen sine lege). Second, it prohibits the imposition of a penalty that was not foreseen at the time the crime was committed (nulla poena sine lege). In the case of prisoners of war, the first part of this principle is codified in Article 99, while the second part is included in Article 87(1).[9]
3954  The principle of legality set out in Article 99(1) aims at limiting the risk of arbitrary and abusive action by the Detaining Power. In a narrow sense, the principle signifies that a person’s guilt may only be determined on the basis of criminal laws that were in force when the act was committed. That is, there can be no crime, and no punishment, without a law classifying the conduct in question as criminal and punishable, and such law may not be applied retroactively.[10] This is a constitutional principle in most domestic legal systems.[11] In a broader sense, the principle of legality requires that the definition of a crime be strictly construed and not extended by analogy.[12]
3955  A violation of the principle of legality may amount to the grave breach of depriving a prisoner of war of ‘the rights of fair and regular trail’ prescribed in the Convention.[13]
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2. The law of the Detaining Power or international law, ‘in force’
3956  Article 99(1) prohibits the trial or sentencing of prisoners of war for an act that was not forbidden by either the law of the Detaining Power or by international law in force at the time it was committed.
3957  The words ‘of the Detaining Power’ were inserted in the draft submitted to the 17th International Conference of the Red Cross in Stockholm in 1948 to provide clarity as to the law that is to be applied.[14] This is consistent with the ‘principle of assimilation’, as articulated in Article 82(1), according to which prisoners of war are subject to the laws, regulations and orders in force in the armed forces of the Detaining Power.[15]
3958  Prisoners of war may be tried for crimes committed not only during captivity but also before capture.[16] In practice, many of the criminal offences committed by prisoners of war prior to capture will have occurred outside the national territory of the Detaining Power. With respect to the prosecution of acts or omissions that precede capture, the need for a contemporaneous legal basis prevents the Detaining Power from relying on its domestic law, if that law was not applicable to the prisoner of war at the time of the act or omission in question.[17]
3959  The reference to international law in Article 99(1) makes clear that a prisoner of war may be prosecuted for an international crime even if the conduct in question was not prohibited under the domestic law of the Detaining Power at the time of the act.[18] This reference to international law is often called the ‘Nuremberg clause’, which provides that ‘[t]he fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law’.[19] This clause is not an exception to the principle of legality but rather an extension of that principle to international legal norms, thereby also protecting prisoners of war against the retroactive application of international criminal norms.
3960  The reference to ‘international law’ in paragraph 1 comprises both treaty and customary international law.[20] With respect to treaty law, international jurisprudence indicates that the Detaining Power may invoke treaty provisions that are (a) unquestionably binding on the Parties concerned (the Detaining Power and the Power on which a prisoner depends) at the time of the alleged offence and (b) not in conflict with or derogating from peremptory norms of international law.[21] Since international law is in part customary, it also follows that Article 99(1) permits reliance on this source of law.[22] However, to respect the principle of legality the customary rule invoked must be clear and unambiguous.[23]
3961  National courts typically apply domestic law in criminal proceedings. In many countries, courts may only apply provisions of international law if they have been incorporated into domestic law by a legislative act.[24] Since the entry into force of the 1949 Geneva Conventions, this has at times resulted in impediments to the prosecution at domestic level of war crimes.[25] It is in States’ own interest to adopt, before the outbreak of an armed conflict, the necessary legislation for the repression of crimes punishable under international law. They can thereby avoid constitutional challenges to the retroactive application of domestic penal laws amended during or following an armed conflict to allow for the prosecution of predating international crimes.[26]
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3. Reasonably foreseeable and accessible
3962  The principle of legality requires that the law in force be reasonably foreseeable to the accused at the time the act or omission took place. The tribunal in Altstötter in 1947 explained that foreseeability requires proof before conviction that the accused ‘knew or should have known that he would be subject to punishment if caught’.[27] The ICTY Appeals Chamber has clarified that the accused ‘must be able to appreciate that the conduct is criminal in the sense generally understood, without reference to any specific provision’.[28]
3963  It must be emphasized that Article 99(1) does not provide an accused prisoner of war with a defence to plead ignorance of the law. The principle of legality does not require that the prisoner subjectively knew the content of the law proscribing the act or omission in question but merely that the law was reasonably foreseeable and accessible to the accused at the time of the act or omission.[29]
3964  Moreover, the principle of legality does not preclude courts from gradually clarifying the rules of criminal liability through judicial interpretation, provided that ‘a court refrains from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification’.[30] As noted by the ECCC Trial Chamber in Kaing:
The legality principle does not prevent the chamber from determining an issue through a process of interpretation and clarification of the elements of a particular offence. Nor does it prevent the chamber from relying on appropriate decisions which interpret particular ingredients of an offence.[31]
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D. Paragraph 2: Prohibition of moral or physical coercion
3965  Article 99(2) prohibits any form of moral or physical coercion of a prisoner of war for the purpose of inducing an admission of guilt of the alleged offence. Already in 1863 the Lieber Code prohibited ‘torture to extort a confession’ and stated more broadly that ‘the modern law of war permits no longer the use of any violence against prisoners in order to extort the desired information or to punish them for having given false information’.[32] Article 61 of the 1929 Geneva Convention on Prisoners of War provided that no prisoner of war may be compelled to admit that they are guilty of the offence of which they are accused.
3966  Although several cases of forced confessions of prisoners of war were brought to the attention of the Conference of Government Experts in 1947, delegations considered that ‘the text of this article could scarcely be more precise’.[33] The prohibition on coercing a person to confess guilt is a generally recognized prohibition under international law, also set forth in the Additional Protocols[34] and in the statutes and rules of procedure of international criminal courts and tribunals.[35]
3967  Article 99(2) prohibits the use of ‘coercion’ to induce a confession. It does not prohibit the Detaining Power from questioning prisoners of war with a view to ascertaining the facts in relation to an alleged crime. In its ordinary meaning, ‘coerce’ means to ‘persuade (an unwilling person) to do something by using force or threats’.[36] The decisive factor in determining whether coercion has or is occurring is whether the method used deprives or impairs the ability of the prisoner to exercise free will and autonomy.[37] Such methods may comprise both acts and omissions. For example, intentionally withholding required medical treatment or intentionally withholding sleep, food or water to extract a confession from a prisoner would be prohibited under Article 99(2).[38] Moreover, coercion need not cause physical harm but could be aimed at breaking a prisoner’s mental resistance. This might involve, for instance, forcing prisoners to engage in tasks that amount to humiliating or degrading treatment, demanding they act against their belief systems or threatening harm or humiliation to someone close to them.
3968  In assessing whether an interrogation method is lawful, it is important to take into account the known individual circumstances of the prisoner of war, including the environment, physical or mental condition of the prisoner, cultural beliefs and sensitivity, gender, age, social, cultural, religious or political background, or past experiences.[39] In addition, the totality of the treatment the prisoner of war has received since capture, and not just during interrogation, needs to be considered.[40]
3969  Article 99(2) should be read alongside the broader provision in Article 17(4), which states that ‘[n]o physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever’. Article 99(2) can be seen as a specific application of that provision to the use of coercion to induce a confession in relation to judicial proceedings. Both articles reflect the general principle set out in Article 13(1) that prisoners of war must at all times be treated humanely. This imposes a continuous duty on the Detaining Power to respect and protect the inherent human dignity of prisoners of war, including during criminal investigation and trial.[41]
3970  The principle articulated in Article 99(2) is a corollary of the presumption of innocence, which prescribes that anyone accused of a criminal offence is presumed innocent until proven guilty according to the law. This means that the burden of proof lies on the prosecution and that, in case of doubt, the accused may not be found guilty.[42] This judicial guarantee implies that suspects are protected against being forced to incriminate themselves (the ‘privilege against self-incrimination’). Consequently, no one accused of a criminal offence may be compelled to testify against themselves or to otherwise confess guilt.[43] The presumption of innocence has moreover been construed by international criminal courts and tribunals as entailing an accused’s right to remain silent. In Katanga, for example, the ICC Trial Chamber observed that, ‘[i]n practice, the right not to be compelled to testify against oneself … seeks to ensure that confessions obtained under duress or by coercion or subterfuge cannot be used at trial in disregard of the expressed will of the accused to remain silent’.[44]
3971  The prohibition on using coercion to induce a confession is related to the prohibition of torture and of other forms of ill-treatment under international humanitarian law. Torture and other forms of ill-treatment may also amount to ‘moral or physical coercion’ in the sense of Article 99(2) if employed to induce a confession from a prisoner of war.[45] Indeed, one of the recognized purposes which can render the infliction of severe physical or mental pain or suffering ‘torture’ is to obtain information or a confession from a protected person.[46] International tribunals have held that, in certain circumstances, deliberate acts that consist in threats or inflicting mental suffering or harm with the aim of obtaining information or a confession from the victim may also constitute torture.[47]
3972  However, coercion in the context of Article 99(2) differs from the notion of torture in two respects. First, the conduct amounting to coercion must be for the specific purpose of persuading someone to confess guilt. While this may be one of the purposes constitutive of torture, torture may also be carried out for other purposes.[48] Second, the conduct constituting coercion does not necessarily need to cause pain or suffering to meet the required threshold of severity for it to constitute torture.[49]
3973  States may take a number of practical measures to implement the prohibition in Article 99(2). Questioning should be conducted only by qualified personnel and be subject to strong control mechanisms and oversight to ensure that it does not violate the prohibitions of torture, cruel, inhuman and degrading treatment and any form of coercion. To prevent violations, interrogation sessions should not take place unless recording methods (audio and/or video) are in operation.[50] Another important measure, which also follows from paragraph 3, is ensuring the availability of legal counsel at all stages of criminal proceedings.[51]
3974  States can furthermore reduce the incentive to resort to coercion by prescribing that convictions cannot be based solely on a confession by the accused. ICRC experience of visiting prisoners of war in international armed conflicts has shown a heightened risk of coerced confessions where there is heavy or exclusive reliance on confessions as evidence in the courts of the Detaining Power.
3975  A related safeguard is having in place procedural rules that exclude involuntary statements and other evidence obtained through coercion. Although the exclusion of evidence obtained by coercion is not expressly provided for in Article 99(2), the prohibition on using coercion to induce a confession implies that the information gathered in violation of this rule may not be used as evidence before a court.[52]
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E. Paragraph 3: Right of defence and of the assistance of a qualified advocate or counsel
3976  The first part of Article 99(3) lays down the general principle that no prisoner of war may be convicted without having had an opportunity to present their defence.
3977  Beyond articulating the general principle, Article 99(3) does not specify what having an opportunity to present one’s defence entails. The wording of the provision suggests that the accused is present at their own trial.[53] In addition, the provision must be read together with the other rules in the chapter, in particular Article 105, which details the rights and means of defence that an accused prisoner of war must be granted. According to Article 84(2), a prisoner of war may in no circumstances whatsoever be tried by a court the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.
3978  The second part of Article 99(3) specifies the accused prisoner’s right to ‘the assistance of a qualified advocate or counsel’. The services of a qualified legal professional are also referred to in Article 105(1), which provides that a prisoner of war is entitled to ‘defence by a qualified advocate or counsel’ (emphasis added). Article 62 of the 1929 Convention, the precursor of Article 105, also referred to the right of the accused to be ‘assisted’ by qualified counsel, but the 1947 Conference of Government Experts recommended the use of the word ‘defended’ instead. The phrase ‘a qualified advocate or counsel’ is dealt with in greater detail in the commentary on Article 105.[54]
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Select bibliography
Doswald-Beck, Louise, Human Rights in Times of Conflict and Terrorism, Oxford University Press, 2011.
Gallant, Kenneth S., The Principle of Legality in International and Comparative Criminal Law, Cambridge University Press, 2008.
Gardner, Edith Rose, ‘Coerced Confessions of Prisoners of War’, George Washington Law Review, Vol. 24, 1956, pp. 528–563.
Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, https://www.icrc.org/customary-ihl/eng/docs/v1_rul.
Hingorani, Rup C., Prisoners of War, 2nd edition, Oceana Press, Dobbs Ferry, 1982.
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.
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.
– ‘Penal or Disciplinary Proceedings Brought against a Prisoner of War’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 1025–1038.

1 - For the text of this reservation, see fn. 20. See United Nations Treaty Series, Vol. 1138, p. 424.
2 - Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 4597.
3 - See also ICC Statute (1998), Article 8(2)(a)(vi), and ICTY Statute (1993), Article 2(f).
4 - See Articles 3(1)(1)(a) and (c), 13(1) and 17(4). See also Additional Protocol I, Article 75(2) and (4)(d).
5 - Report of the Conference of Government Experts of 1947, pp. 157–161.
6 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 571.
7 - Hingorani, p. 96.
8 - See e.g. United States Military Commission, Isayama case, Judgment, 1946, and Sawada case, Judgment, 1946. See also Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Sources and Commentary, Cambridge University Press, 2002, pp. 101–104.
9 - Provisions to the same effect are also found in the Fourth Convention and in the Additional Protocols of 1977. See Fourth Convention, Articles 67–68; Additional Protocol I, Article 75(4)(c); Additional Protocol II, Article 6(2)(c). See also ICRC Study on Customary International Humanitarian Law (2005), Rule 101. In the context of human rights, see International Covenant on Civil and Political Rights (1966), Article 15; European Convention on Human Rights (1950), Article 7; American Convention on Human Rights (1969), Article 9; African Charter on Human and Peoples’ Rights (1981), Article 7; and Arab Charter on Human Rights (2004), Article 15. This principle is considered non-derogable by most human rights treaties; see International Covenant on Civil and Political Rights (1966), Article 4(2); European Convention on Human Rights (1950), Article 15(2); American Convention on Human Rights (1969), Article 27(2); and Arab Charter on Human Rights (2004), Article 4(2).
10 - See e.g. ICC Statute (1998), Article 22(1), and ICC, Lubanga Decision on the Confirmation of Charges, 2007, paras 302–303.
11 - See e.g. Afghanistan, Constitution, 2004, Article 27; Argentina, Constitution, 1853, as amended, Articles 18 and 19; Bangladesh, Constitution, 1972, Article 35(1); Bolivia, Constitution, 2009, Articles 116 and 123; Brazil, Constitution, 1988, as amended, Article 5(XXXIX) and (XL); Burundi, Constitution, 2005, Articles 39 and 41; Canada, Constitution Act, 1982, Article 11(g) and (i); Central African Republic, Constitution, 2004, Article 3; Colombia, Constitution, 1991, as amended, Article 29; Czech Republic, Charter of Fundamental Rights and Basic Freedoms, 1992, as amended, Article 40(6); Democratic Republic of the Congo, Constitution, 2005, as amended, Article 17; Eritrea, Constitution, 1997, Article 17(2); France, Declaration of the Rights of Man and the Citizen, 1789, Article 8; Gambia, Constitution, 1997, as amended, Article 24(5); Georgia, Constitution, 1995, as amended, Article 42(5); Germany, Basic Law, 1949, as amended, Article 103(2); Ghana, Constitution, 1992, as amended, Articles 19(5), (6) and (11) and 107; India, Constitution, 1950, as amended, Article 20(1); Islamic Republic of Iran, Constitution, 1979, as amended, Article 169; Israel, Penal Law, 1977, paras 1–6; Japan, Constitution, 1947, Article 39; Kenya, Constitution, 1963, as amended, Article 50(2)(n) and (p); Malaysia, Constitution, 1957, as amended, Article 7(1); Mexico, Constitution, 1917, Article 14; New Zealand, Bill of Rights Act, 1990, Article 26(1); Nigeria, Constitution, 1987, Article 36(8) and (12); Pakistan, Constitution, 1973, Article 12; Palestine, Basic Law, 2002, as amended, Article 15; Peru, Constitution, 1993, Article 2(24)(a) and (d); Philippines, Constitution, 1987, Article III(22); Republic of Korea, Constitution, 1948, as revised, Article 13(1); Russian Federation, Constitution, 1993, Article 54; Rwanda, Constitution, 2003, Articles 18 and 20; Sierra Leone, Constitution, 1991, Article 23(7), (8) and (10); South Africa, Constitution, 1997, Article 35(3)(l) and (n); Spain, Constitution, 1978, Article 9(3); Syrian Arabic Republic, Constitution, 2012, Article 52; Turkey, Constitution, 1982, Article 38; Uganda, Constitution, 1995, Article 28(7) and (8); Ukraine, Constitution, 1996, Article 58; United Kingdom, Human Rights Act, 1998, Schedule 1, Part 1, Article 7; and United States, Constitution, 1787, as amended, Article I, paras 9 and 10, and Amendment XIV(1).
12 - See PCIJ, Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City case, Advisory Opinion, 1935, p. 51; ICC Statute (1998), Article 22(2); and ICC, Lubanga Decision on the Confirmation of Charges, 2007, paras 302–303. See also Inter-American Court of Human Rights, Castillo Petruzzi and others v. Peru, Judgment, 1999, para. 121.
13 - For more details, see the commentary on Article 130, section D.7. See also ECCC, Kaing Trial Judgment, 2010, para. 459.
14 - Draft Conventions submitted to the 1948 Stockholm Conference, pp. 114–115; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 308. See also Howard S. Levie, Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, p. 318.
15 - 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.
16 - See Article 85.
17 - See Gallant, pp. 208–209.
18 - See e.g. United States, Military Tribunal at Nuremberg, Altstötter case, 1947, paras 57 and 62.
19 - Nuremberg Principles (1950), Principle II. See e.g. European Court of Human Rights, Kononov v. Latvia, Judgment, 2010, paras 213, 228 and 237, in which the Grand Chamber found that the conviction of the defendant for war crimes pursuant to Latvia’s 1961 Criminal Code in respect of acts committed in 1944 did not violate the principle of legality since the conviction was in accordance with international law in force in 1944.
20 - Spain entered a reservation on this point to the effect that ‘[u]nder “International Law in force” (Article 99) Spain understands she only accepts that which arises from contractual sources or which has been previously elaborated by organizations in which she participates’; see United Nations Treaty Series, Vol. 75, p. 432. This reservation was withdrawn on 5 January 1979; see United Nations Treaty Series, Vol. 1138, p. 424.
21 - See ECCC, Kaing Trial Judgment, 2010, para. 33, and ICTY, Tadić Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 1995, para. 143.
22 - See e.g. ECCC, Kaing Judgment, 2010, para. 30. See also Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 3104.
23 - UN Secretary-General, Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), UN Doc. S/25704, 3 May 1993, para. 34.
This report, which relates to the establishment of the ICTY, emphasized, for example, that there needed to be certainty as to the applicable law and thus that the tribunal should apply the rules of humanitarian law that ‘beyond any doubt [formed] part of customary international law’.
24 - Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 3103; Gallant, pp. 261–262. On the options available to a national legislator in this regard, see the commentary on Article 129, section C.2.
25 - Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 3103. See also Gallant, p. 398.
26 - Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 3105. See e.g. Norway, Misrad case, Judgment, 2010, in which the Norwegian Supreme Court held that the retroactive application of new penal provisions on war crimes and crimes against humanity constituted a violation of the Constitution and could not be permitted.
27 - United States, Military Tribunal at Nuremberg, Altstötter case, Judgment, 1947, para. 71.
28 - ICTY, Hadžihasanović Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 2003, para. 34. See also European Court of Human Rights, Kononov v. Latvia, Judgment, 2010, para. 238: [H]aving regard to the flagrantly unlawful nature of the ill-treatment and killing of the nine villagers … , even the most cursory reflection by the applicant[] would have indicated that, at the very least, the impugned acts risked being counter to the laws and customs of war as understood at that time and, notably, risked constituting war crimes for which, as commander, he could be held individually and criminally accountable.
29 - See also Article 41(2). On the requirement of accessibility, see e.g. ICTY, Hadžihasanović Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 2003, para. 34, and ECCC, Kaing Trial Judgment, 2010, paras 294 and 406.
30 - ICTY, Milutinović Decision on Motion Challenging Jurisdiction – Joint Criminal Enterprise, 2003, para. 38. See also ICTY, Aleksovski Appeal Judgement, 2000, paras 126–127. In the context of human rights, see e.g. European Court of Human Rights, S.W. v. UK, Judgment, 1995, para. 3713.
31 - ECCC, Kaing Trial Judgment, 2010, para. 34.
32 - Lieber Code (1863), Articles 16 and 80.
33 - Report of the Conference of Government Experts of 1947, pp. 157–161.
34 - Additional Protocol I, Article 75(4)(f); Additional Protocol II, Article 6(2)(f).
35 - ICC Statute (1998), Articles 55(1)(a) and 67(1)(g); ICTY Statute (1993), Article 21(4)(g); ICTR Statute (1994), Article 20(4)(g); SCSL Statute (2002), Article 17(4)(g). In the context of human rights, see Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr., 22 October 2002, paras 245–247.
36 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 278. See also Netherlands, Military Manual, 2005, para. 0717 (‘Coercion may mean the exercise of power, by violence or otherwise, which forces someone to do something.’)
37 - See United States, Intelligence Interrogation Handbook, 1992, p. 1-8, which defines coercion as ‘actions designed to unlawfully induce another to compel an act against one’s will’. See also Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), Principle 21(2): ‘No detained person while being interrogated shall be subject to violence, threats or methods of interrogation which impair his capacity of decision or his judgment.’
38 - On denying medical care or threatening or implying denial of other rights guaranteed by the Conventions, see United States, Intelligence Interrogation Handbook, 1992, p. 1-8, and Human Intelligence Collector Operations, 2006, para. 5.77. On the prohibition of the so-called ‘five techniques’ (stress positions, hooding, subjection to noise, deprivation of sleep and rest, and deprivation of food and water), see United Kingdom, Joint Doctrine Captured Persons, 2015, p. 2-12, para. 218.
39 - See also the commentary on Article 3, paras 655 and 670–671, and Maia/Kolb/Scalia, p. 161.
40 - See also the commentary on Article 3, paras 655 and 672.
41 - See the commentary on Article 13, section C.1.
42 - Doswald-Beck, p. 345.
43 - Furthermore, as discussed in section E, prisoners of war accused of an offence must be afforded the opportunity to present their defence.
44 - ICC, Katanga Trial Judgment, 2014, para. 1529. See also ICTY Statute (1993), Article 21(4)(g); ICTR Statute (1994), Article 20(4)(g); ICC Statute (1998), Article 67(1)(g).
45 - ICC Elements of Crimes (2002), Element 2 of Article 8(2)(a)(ii) and (c)(i).
46 - See the commentaries on Article 3, para. 663, and on Article 17, para. 1823. See also Convention against Torture (1984), Article 1(1), and ICTY, Kunarac Trial Judgment, 2001, para. 497.
47 - See e.g. ICTY, Naletilić and Martinović Trial Judgment, 2003, para. 368, and Kvočka Trial Judgment, 2001, para. 149; and ICTR, Akayesu Trial Judgment, 1998, para. 681. See also Inter-American Court of Human Rights, Cantoral Benavides v. Peru, Judgment, 2000, paras 100–104; Maritza Urrutia v. Guatemala, Judgment, 2003, para. 93; Tibi v. Ecuador, Judgment, 2004, para. 146; and Miguel Castro-Castro Prison v. Peru, Judgment, 2006, para. 317.
48 - See the commentaries on Article 3, para. 663, and on Article 17, para. 1823. See also Convention against Torture (1984), Article 1, which gives the following additional examples: punishing, intimidating or coercing the victim or a third person and discriminating, on any ground, against the victim or a third person.
49 - On the threshold of pain or suffering required for torture, see the commentary on Article 3, paras 665–675.
50 - See also the commentary on Article 17, para. 1831, and Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 76, in which the Commission concluded that ‘Eritrea either failed to train its interrogators in the relevant legal restraints or to make it clear that they are imperative. Consequently, Eritrea is liable for permitting such coercive interrogation.’ In the context of international criminal law, see e.g. Rules of Procedure and Evidence of the International Criminal Court (2002), Rule 112; ICTY Rules of Procedure and Evidence (2009), Rules 42(A)(3) and 43, pp. 33–34; and ICTY, Halilović Decision on Interlocutory Appeal, 2005, para. 41.
51 - See also the commentary on Article 103, para. 4027.
52 - See Convention against Torture (1984), Article 15. Where domestic law prohibits the use of evidence obtained through torture, such rule also applies to the trial of a prisoner of war pursuant to Article 82. See e.g. Denmark, Military Manual, 2016, pp. 521–522; New Zealand, Military Manual, 2019, Vol. 4, p. 12-67, para. 12.12.14; and United States, Law of War Manual, 2016, p. 624, para. 9.28.3. In the context of international criminal law, see e.g. ICC Statute (1998), Articles 55(1)(b) and 69(7), and Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (2007), Rule 21(3). In the context of human rights, see Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975), Article 12; UN Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992, para. 12; and European Court of Human Rights, Othman (Abu Qatada) v. UK, Judgment, 2012, para. 264.
53 - This presumption is also a feature of Article 105(1); see the commentary on Article 105, section C.1.e.
54 - See the commentary on Article 105, section C.1.b.