Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 85 : Offences committed before capture
Text of the provision
Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention.
Reservations or declarations
(a) High Contracting Parties for which a reservation is in force at the time of publication: Albania; Angola; Democratic People’s Republic of Korea; People’s Republic of China; Russian Federation and Viet Nam.[1] For the text and an analysis of these reservations, see section C.4.
(b) High Contracting Parties which previously had a reservation in force: Belarus (withdrawn 7 August 2001); Bulgaria (withdrawn 9 May 1994); Czechoslovakia (withdrawn 27 September 2001 by the Czech Republic and 5 June 2000 by Slovakia); German Democratic Republic (until reunification with the Federal Republic of Germany, 3 October 1990); Hungary (withdrawn 31 May 2000); Poland (withdrawn 22 September 2004); Romania (withdrawn 24 June 2002); and Ukraine (withdrawn 30 June 2006).[2]**
(c) Declarations: Australia, Barbados, New Zealand, United States of America and United Kingdom of Great Britain and Northern Ireland.[3]
** Country names at the time the reservation was made.
Contents

A. Introduction
3620  Article 85 belongs to the general provisions of the chapter on penal and disciplinary sanctions. According to the article, if prisoners of war are prosecuted for acts committed prior to capture, they retain the benefits of the Convention, even upon conviction. This constitutes a deliberate reversal of the practice established during the war crimes trials held at the end of the Second World War, where a captured combatant accused of having committed a war crime was considered to have forfeited the right to prisoner-of-war status and to the benefits of the 1929 Geneva Convention on Prisoners of War, including its judicial guarantees.
3621  Article 85 proved to be one of the most contentious articles during negotiations of the Third Convention.[4] Although States were unanimous that a Detaining Power may prosecute prisoners of war for offences committed before capture, opinions diverged as to the treatment to which a convicted prisoner should be entitled. A few States opposed the idea that a prisoner convicted of war crimes or crimes against humanity should have any benefits under the Convention, referring to the importance of deterring crimes and ensuring that an individual who violates the laws of war cannot invoke those same laws to their advantage.[5] The view that ultimately prevailed and is embodied in Article 85 favoured the protection, under the Convention, of prisoners of war convicted of war crimes or other offences committed prior to capture. This view does not imply impunity for such prisoners. Article 85 does not preclude punishment; it simply prescribes that any prosecution and punishment of prisoners of war must adhere to the provisions of the Convention and the minimum standards of humanity set out therein.
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B. Historical background
3622  Despite the brevity and apparent simplicity of Article 85, the drafting process was protracted and often difficult.[6] The main point of contention among States concerned what effect, if any, the prosecution and conviction of a prisoner for an offence allegedly committed before capture should have on the status and entitlements of that prisoner under the Convention.
3623  The 1929 Geneva Convention on Prisoners of War made no explicit reference to offences committed before capture. While it envisaged the prosecution and punishment of prisoners of war for acts of insubordination,[7] the absence of any mention of acts committed prior to capture made it plausible for States to argue that the 1929 Convention only applied to acts committed by prisoners during their captivity. A precedent to this effect was established by the judgment of the US Supreme Court in 1946 against the Japanese general, Tomoyuki Yamashita.[8] This interpretation of the 1929 Convention came to prevail among the Allied States in the war crimes trials that ensued,[9] in spite of repeated requests from the ICRC and accused prisoners that the judicial guarantees of that Convention be applied to these proceedings.[10] Many prisoners were tried not by courts-martial but by ad hoc military tribunals, military commissions and other specially established courts in accordance with special rules of procedure.[11]
3624  This experience underscored the vulnerability of prisoners accused of having committed an offence prior to capture. Regardless of whether an alleged offence was said to have taken place before or after capture, the protection needs of the prisoners were the same. Moreover, the ICRC considered it illogical and unjust to deprive those accused of crimes before capture of the benefits of the 1929 Convention, as this had the effect of prejudging their guilt before a trial had even taken place.[12] In addition, the assertion that there existed a rule of customary international law that would prevent offenders from invoking, for their protection, such a law was criticized as unfounded. It was pointed out that, in any event, this law could only be applied once the individual’s guilt had been proven.[13]
3625  At the Diplomatic Conference in 1949, delegations were unanimous that prisoners of war against whom proceedings had been brought for offences allegedly committed before capture should retain the benefits of the Convention until their guilt had been proven in court.[14] States disagreed, however, as to the treatment prisoners should receive if convicted. Certain States considered that prisoners sentenced for war crimes or crimes against humanity should no longer be subject to the Convention and should instead receive the same treatment as that accorded by the Detaining Power to criminals under its domestic law. In their view, persons convicted of such crimes had, by their conduct, placed themselves outside the protection of the Convention.[15]
3626  However, a majority of delegates at the Conference considered that prisoners who had been convicted of an offence committed prior to capture should continue to be entitled to the protection of the Convention.[16] It was argued that leaving these individuals only with the safeguards granted to convicted criminals under the laws of the Detaining Power would introduce too much uncertainty into the Convention, since the conditions of treatment in many countries were unknown.[17] It was, moreover, emphasized that the object and purpose of the Convention is to afford protection to prisoners of war, and the humanitarian rules it provides for convicted prisoners of war would in no way jeopardize the repression of war crimes.[18]
3627  Following long discussions, Article 85 was adopted by 27 votes to 8, with 3 abstentions.[19] The States that opposed the application of the Convention to prisoners convicted of war crimes or crimes against humanity entered a reservation to this effect when acceding to the Convention.[20] In turn, a few States made objections that these reservations were invalid.[21]
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C. Discussion
1. Prosecuted under the laws of the Detaining Power
a. Type of proceedings
3628  Article 85 employs the terms ‘prosecuted’ and ‘convicted’ which are ordinarily associated with criminal proceedings.[22] Detaining Powers may, however, decide to take disciplinary rather than judicial measures in respect of an offence allegedly committed before capture.[23] The provision clearly applies to criminal proceedings and, thus, a fortiori should also apply in the case of disciplinary proceedings.[24] This would also be supported by the fact that the provision appears in the section on general provisions applicable to both disciplinary sanctions and judicial proceedings.
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b. The laws of the Detaining Power
3629  The phrase ‘the laws of the Detaining Power’ must be understood as comprising both the domestic law of the Detaining Power and any rules of international law, whether customary or conventional, that may be applied to a prisoner of war by the competent authorities of the Detaining Power.[25] The argument that these words exclude crimes under international law is at odds with the drafting history of Article 85.[26] It was precisely the experience of the war crimes trials of the Second World War that informed the drafting of the present article, and it was the understanding that Article 85 would apply to prisoners convicted of war crimes and crimes against humanity that prompted certain States to enter reservations in this regard, and other States to declare these reservations as invalid under the Convention.
3630  The wording ‘under the laws of the Detaining Power’ also refers to the rules that govern penal jurisdiction. In practice, many of the offences or crimes committed by prisoners of war prior to capture will have been committed outside the national territory of the Detaining Power. The Detaining Power’s courts must therefore have the competence to institute proceedings in respect of acts committed outside the national territory. Such competence will depend on whether there is a proper basis for jurisdiction, such as pursuant to universal jurisdiction, passive personality or the protective principle.
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2. Acts committed prior to capture
3631  Article 85 prescribes that prisoners of war prosecuted for ‘acts committed prior to capture’ retain the benefits of the Convention. Prisoners of war prosecuted for acts committed after capture likewise retain the protection of humanitarian law; this was already accepted under the 1929 Convention.[27] The phrase ‘prior to capture’ includes acts committed before the person falls into the hands of the Detaining Power, whether by capture, surrender or upon acceptance of a transfer of a prisoner of war under Article 12(2).
3632  The word ‘acts’ in the phrase ‘acts committed prior to capture’ covers any conduct – act or omission – that constitutes an offence under the laws of the Detaining Power and alleged to have been committed prior to capture. This can include conduct classified as a crime under international law and conduct that amounts to an offence under the domestic law of the Detaining Power.[28]
3633  The terms of Article 85 do not limit the types of acts in respect of which a Detaining Power may prosecute a prisoner of war. However, Article 85 must be read in conjunction with other provisions of the Convention that restrict the authority of the Detaining Power to prosecute prisoners for acts committed prior to capture.[29] In addition, it should be noted that, under Article 31 of the Hague Regulations of 1907 and restated in Article 46(4) of Additional Protocol I, a spy who, after rejoining the army to which they belong, is subsequently captured by the enemy, must be treated as a prisoner of war and incurs no responsibility for their previous acts of espionage. This applies to espionage before the outbreak of hostilities as well as to that committed in the course of the armed conflict.
3634  The Detaining Power’s authority to prosecute prisoners of war for acts committed prior to capture is also circumscribed by the so-called ‘combatant’s immunity’ or ‘combatant’s privilege’. Prisoners of war who are combatants may not be prosecuted for lawful acts of war committed in the course of an armed conflict, even if their acts constitute a criminal offence under the domestic laws of the Detaining Power.[30] Acts shielded by combatant immunity, such as the injuring or killing of enemy combatants and the destruction of enemy property, constitute criminal offences in most, if not all, domestic legal systems. Yet, by virtue of this immunity, combatants may not be prosecuted for such lawful acts of war upon capture by the adversary. Prisoners of war having committed unlawful acts that constitute international crimes, such as war crimes, on the other hand, remain subject to prosecution.[31]
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3. The prisoner retains the benefits of the present Convention even if convicted
3635  Pursuant to Article 85, prisoners accused or convicted of having committed an offence prior to capture must enjoy all the safeguards that the Convention provides: notification of the Protecting Power, assistance by a qualified advocate or counsel, knowledge of the procedure to be followed, the right to call witnesses, the services of an interpreter, and so on. Article 85 is supplemented, for States that are party to Additional Protocol I, by Article 44(2) of the Protocol, which provides that although all combatants must comply with the rules of humanitarian law, violations of these rules may not deprive combatants of their right to prisoner-of-war status if they fall into the power of an adverse Party.
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a. Protection of accused prisoners of war
3636  Detaining Powers can experience practical difficulties when prosecuting prisoners for acts allegedly carried out before capture, while respecting the judicial guarantees set out in the Convention.[32] If hostilities are ongoing, an accused prisoner might not, for example, be able to obtain the documents and witness statements needed for an effective defence.[33] During the 1949 Diplomatic Conference, one delegation considered that trials relating to offences committed prior to capture should be postponed until after the cessation of hostilities, while two other delegations expressed the opposite view.[34]
3637  It is clear that if conducting a trial during hostilities will deny the accused prisoner a fair opportunity to produce evidence that might be available to disprove or reduce their responsibility, the trial must not proceed until the prisoner can conduct a proper defence. If the Detaining Power were to conduct a prosecution that deprives a prisoner of war of the rights of fair and regular trial, this could amount to a grave breach of the Convention.[35]
3638  Where a prisoner is accused of having committed a grave breach of the Conventions prior to capture, a Detaining Power may satisfy its obligation under Article 129 by extraditing the accused prisoner to another State or by handing over an accused person to an international criminal court or tribunal. A Detaining Power might also decide to transfer a prisoner of war accused of having committed an offence before capture if, for example, the Detaining Power lacks the resources to try the prisoner or because another State has a better claim to jurisdiction. Unless the transfer is to the State on which the prisoner depends (in which case Article 118 applies), Article 85 confirms that the transfer must comply with Article 12(2) and that the Detaining Power must act in relation to the prisoner in accordance with Article 12(3) where required by the article, even if the prisoner is convicted of an offence in the receiving country.
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b. Protection of convicted prisoners of war
3639  Article 85 makes clear that a prisoner of war found guilty of a pre-capture offence retains the benefits of the Convention. At the 1949 Diplomatic Conference, some delegations considered that such prisoners should not be entitled to all the benefits of the Convention but only to the provisions relating to the death penalty; the guarantee of a minimum standard of treatment in case of a prison sentence, including access to the Protecting Power; and the right of repatriation after having served the sentence.[36] Other delegations referred to additional benefits under the Convention, including the right to receive and send letters, and to receive relief parcels.[37] In the end, Article 85 simply provides that the prisoner retains ‘the benefits’ of the Convention, without qualifying this by reference to any specific provisions.
3640  In the Noriega case, a US district court accepted that prisoners of war convicted of an offence carried out before capture continue to be entitled to all of the general provisions of the Convention for as long as they remain in the custody of the Detaining Power.[38] Some benefits of the Convention might, however, be excluded by the nature of the penalty imposed.[39] For example, the general prohibition in Article 21(1) of holding prisoners of war in close confinement is expressly subject to the provisions on penal and disciplinary sanctions. Hence this prohibition would not be applicable to sentenced prisoners of war if members of the armed forces of the Detaining Power were sentenced to close confinement for the same offence, in accordance with Article 87.
3641  As for the Detaining Power’s obligation to repatriate prisoners of war once active hostilities have ceased, Article 119(5) provides that prisoners against whom criminal proceedings are pending may be detained until the end of such proceedings and, if necessary, until the completion of the punishment. The same applies to prisoners already convicted of an indictable offence. However, the obligation to repatriate is merely suspended and then reactivated once the criminal proceedings have come to an end or the punishment has been served. The protection granted to prisoners of war under Article 85 remains intact until the repatriation is completed.
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4. Reservations
3642  A few States entered reservations to Article 85 upon ratification of the Convention.[40] Although all worded slightly differently, the essence of these reservations is the same. Reflecting its proposed amendment to Article 85, the USSR’s reservation reads that it
does not consider itself bound by the obligation, which follows from Article 85, to extend the application of the Convention to prisoners of war who have been convicted under the law of the Detaining Power, in accordance with the principles of the Nuremberg trial, for war crimes and crimes against humanity, it being understood that persons convicted of such crimes must be subject to the conditions obtaining in the country in question for those who undergo their punishment.[41]
This reservation is still in force for Albania, Angola, China, the Democratic People’s Republic of Korea, the Russian Federation and Viet Nam.[42]
3643  In response to a request that the meaning to be accorded to this reservation be clarified, the USSR replied that
the reservation … signifies that prisoners of war who, under the law of the USSR, have been convicted of war crimes or crimes against humanity must be subject to the conditions obtaining in the USSR for all other persons undergoing punishment in execution of judgments by the courts. Once the sentence has become legally enforceable, persons in this category consequently do not enjoy the protection which the Convention affords. With regard to persons sentenced to be deprived of their liberty, the protection afforded by the Convention becomes applicable again only after the sentence has been served; thereafter, the persons concerned are entitled to repatriation in accordance with the conditions set forth in the Convention.[43]
This statement clarifies that the reservation only becomes applicable once the penalty against the prisoner has become enforceable, that is, once the final appeal has been exhausted.[44] A prisoner will therefore enjoy all the judicial guarantees that the Convention provides during their trial and, in particular, will have the assistance of the Protecting Power or a substitute or an impartial humanitarian organization that has agreed to perform a supervisory function. Moreover, the statement indicates that a prison sentence merely suspends the application of the Convention, which becomes applicable again once the punishment has been completed.[45]
3644  The mention in the reservation of the ‘principles of the Nuremberg trial’ presumably refers to the principles affirmed by the UN General Assembly in Resolution 95(1) of 1946 relating to the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the International Military Tribunal,[46] notably the concepts of war crimes and crimes against humanity as these were defined in the Charter and judgment.[47]
3645  In response to these reservations, Australia, Barbados, New Zealand, the United Kingdom and the United States made objections, stating that they do not regard the reservations as valid and will consider any application of them as constituting a breach of the Convention.[48] The reservations have not been applied in any recent international armed conflict. However, one such reservation was invoked during the Vietnam War in the 1960s to exclude application of the Convention to prisoners accused of having committed war crimes.[49]
3646  In any case, it should be recalled that the rights granted by the Convention to convicted prisoners of war represent only a minimum standard, and equivalent rights are to be found in most domestic legal systems. The specific guarantee of supervision by the Protecting Power (or an entity acting in its place) should, in the ICRC’s view, be made available to prisoners of war serving their sentences in countries that have entered a reservation to Article 85, as supervision of treatment while undergoing punishment seems necessary, even in the case of persons convicted of international crimes, especially if sentence is pronounced during hostilities.[50]
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Select bibliography
Cameron, Lindsey, ‘The use of private military and security companies in armed conflicts and certain peace operations: legal limits and responsibility’ (thesis), University of Geneva, 2013.
Carvin, Stephanie, ‘Caught in the Cold: International Humanitarian Law and Prisoners of War During the Cold War’, Journal of Conflict & Security Law, Vol. 11, No. 1, 2006, pp. 67–92.
Dinstein, Yoram, ‘Unlawful Combatancy’, Israel Yearbook on Human Rights, Vol. 32, 2002, pp. 247–270, at 250.
Esgain, Albert J. and Solf, Waldemar A., ‘The 1949 Geneva Convention Relative to the Treatment of Prisoners of War 1949: Its Principles, Innovations, and Deficiencies’, North Carolina Law Review, Vol. 41, No. 3, 1963, pp. 537–596.
Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.
Hingorani, Rup C., Prisoners of War, 2nd edition, Oceana Press, Dobbs Ferry, 1982.
ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, by Nils Melzer, ICRC, Geneva, 2009.
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.
Maia, Catherine, Kolb, Robert and Scalia, Damien, La Protection des Prisonniers de Guerre en Droit International Humanitaire, Bruylant, Brussels, 2015, pp. 371–417.
Meyer, Michael A., ‘Liability of Prisoners of War for Offences Committed Prior to Capture: The Astiz Affair’, International Law and Comparative Law Quarterly, Vol. 32, 1983, pp. 948–980.
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.
Solis, Gary D., The Law of Armed Conflict: International Humanitarian Law in War, 2nd edition, Cambridge University Press, 2016.

1 - United Nations Treaty Series, Vol. 75, pp. 420–421 (Albania); United Nations Treaty Series, Vol. 1372, p. 49 (Angola); United Nations Treaty Series, Vol. 260, pp. 442 (People’s Republic of China); United Nations Treaty Series, Vol. 278, p. 264 (Democratic People’s Republic of Korea); United Nations Treaty Series, Vol. 75, p. 460, and Vol. 1683, p. 229 (notification of continuation) (Russian Federation); and United Nations Treaty Series, Vol. 913, pp. 175–177, and Vol. 1028, pp. 438‒439 (notification of continuation) (Viet Nam).
2 - Switzerland, Federal Department of Foreign Affairs, Notification to the Governments of the States parties to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, 17 May 1994 (Bulgaria); Notification to the Governments of the States parties to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, 22 October 2001 (Czech Republic); United Nations Treaty Series, Vol. 2117, p. 305 (Slovakia); United Nations Treaty Series, Vol. 2117, p. 305 (Hungary); United Nations Treaty Series, Vol. 2283, p. 218 (Poland); United Nations Treaty Series, Vol. 2384, p. 219 (Ukraine).
3 - United Nations Treaty Series, Vol. 314, pp. 334–335 (Australia); United Nations Treaty Series, Vol. 653, p. 454 (Barbados); United Nations Treaty Series, Vol. 330, pp. 358–359 (New Zealand); United Nations Treaty Series, Vol. 213, p. 383 (United States); United Nations Treaty Series, Vol. 278, pp. 267–268 (United Kingdom).
4 - See Rowe, 2015, p. 1029.
5 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 320, 474 and 570–571, and Vol. II-B, pp. 303–308. These States entered reservations to the effect that prisoners of war convicted of war crimes or crimes against humanity would not be entitled to the protection of the Convention. For a discussion, see section C.4.
6 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 415.
7 - Geneva Convention on Prisoners of War (1929), Articles 45–67.
8 - United States, Supreme Court, Yamashita case, Judgment, 1946, p. 22; but see the Dissenting Opinion of Justice Rutledge, ibid. p. 76, arguing that under the majority interpretation, proceedings relating to disciplinary offences committed in captivity would be subjected to stronger procedural safeguards than those relating to war crimes committed before capture, which would make the 1929 Convention ‘strain at a gnat and swallow the camel’.
9 - See United States, Supreme Court, Yamashita case, Judgment, 1946, p. 38. However, in 1950, the French Supreme Court reversed the jurisprudence previously established by its criminal court, holding that prisoners of war could only be tried by the same courts and according to the same procedure as members of the armed forces of the Detaining Power, pursuant to Article 63 of the 1929 Convention, which applied absolutely, even if the prisoner was answerable for acts committed prior to capture. The 1960 ICRC Commentary notes that the practical effect of this decision was limited since by the time it was taken, most of the proceedings instituted against prisoners of war accused of war crimes had already been completed; Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 414.
10 - See ibid. p. 413, and Esgain/Solf, p. 575.
11 - See e.g. Esgain/Solf, p. 574.
12 - Report of the Conference of Government Experts of 1947, p. 206.
13 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 414–416.
14 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 570.
15 - See ibid. Vol. II-A, pp. 320, 474, 482 and 570–571, and Vol. II-B, pp. 303–305 and 308. This included the Soviet-bloc States.
16 - See ibid. Vol. II-A, pp. 320 and 571.
17 - Ibid. Vol. II-A, p. 390, and Vol. II-B, p. 306.
18 - Ibid. Vol. II-B, p. 311, and Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 415–416.
19 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 311.
20 - See ibid., Vol. I, pp. 342–355. For the text of the reservations and a discussion thereof, see section C.4 of this commentary.
21 - Australia, Barbados, New Zealand, the United States and the United Kingdom. For a discussion of these objections, see section C.4.
22 - ‘Prosecution’ is defined as ‘the prosecuting of someone in respect of a criminal charge’; Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1152. To ‘convict’ is to ‘declare to be guilty of a criminal offence by the verdict of a jury or the decision of a judge in a court of law’; ibid. p. 313.
23 - Pursuant to Article 82(1), Detaining Powers are ‘justified in taking judicial or disciplinary measures in respect of any offence committed by a prisoner of war’ against the applicable legislation. Article 83 requires disciplinary rather than judicial measures to be adopted ‘wherever possible’.
24 - According to the 1960 ICRC Commentary, ‘[t]his clearly refers only to judicial proceedings, and not to disciplinary procedures’; Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 416.
25 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 417–422; Rowe, 2015, p. 1030; Meyer, p. 960; and Esgain/Solf, p. 576.
26 - This argument is referred to in Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 416–417, and relies on the following considerations: (i) laws and customs of war are offences against international law and thus are not covered by Article 85; and (ii) Article 99 prohibits the trial of a prisoner of war for an act not prohibited ‘by the law of the Detaining Power or by international law’ (emphasis added), while Article 85 refers solely to ‘the laws of the Detaining Power’.
27 - See section B.
28 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 417–418; Rowe, 2015, p. 1030; and Meyer, p. 960. That Article 85 applies to prisoners prosecuted and convicted of domestic-law offences unrelated to the armed conflict, committed prior to capture, was confirmed by a US District Court in Noriega in 1990; United States, District Court for the Southern District of Florida, Noriega case, Judgment, 1990, p. 1526.
29 - Relevant provisions include Articles 82(2), 86, 91(2), 92(1), 93 and 99(1).
30 - See e.g. Dinstein, ‘Unlawful Combatancy’, Israel Yearbook on Human Rights, Vol. 32, 2002, pp. 247–270, at 250; Knut Dörmann, ‘The legal situation of “unlawful/unprivileged combatants”’, International Review of the Red Cross, Vol. 85, No. 849, March 2003, pp. 45–74, at 45–48; and Rowe, 2015, p. 1031. See also Introduction, para. 20, and the commentary on Article 5, para. 1114.
31 - See the commentary on Article 99(1), section C.2. See also Rosas, p. 305.
32 - See e.g. Rowe, 2014, p. 316, and 2015, p. 1031.
33 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 422, and Rowe, 2015, p. 1031.
34 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 319–320 (the United Kingdom supported the postponement, while France and the USSR were not in favour). See also Levie, p. 385.
35 - See Article 130.
36 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 389‒390 and 481 (this proposal was put forward by the United Kingdom, supported by France and the United States).
37 - Ibid. p. 482.
38 - The Court emphasized that this includes, as a minimum, all of the provisions of Section I, General Provisions of the Third Convention, and any articles relating to health, in addition to the present chapter on penal and disciplinary sanctions; United States, District Court for the Southern District of Florida, Noriega case, Post-Sentencing Recommendation, 1992, p. 802.
39 - See also the commentary on Article 108(1), section E, in particular para. 4217.
40 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, pp. 342–355.
41 - Ibid. pp. 355–356.
42 - See fn. 1.
43 - This text is reprinted in Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 424–425.
44 - Ibid. p. 425. See also the commentary on Article 108, para. 4202.
45 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 425.
46 - UN General Assembly, Res. 95(1), Affirmation of the Principles of International Law recognized by the Charter of the Nurnberg Tribunal, 11 December 1946.
47 - See IMT Charter for Germany (1945), Chapter II, Article 6, and International Military Tribunal for Germany, Case of the Major War Criminals, Judgment, 1946, Vol. 1, p. 11.
48 - See fn. 3. Some authors consider that these reservations are incompatible with the object and purpose of the Third Convention and undermine the unity of its conventional regime; see e.g. Maia/Kolb/Scalia, pp. 410–411.
49 - See e.g. Carvin, p. 82; Paul de La Pradelle, ‘Le Nord-Vietnam et les Conventions humanitaires de Genève’, Revue générale de droit international public, Vol. 75, 1971, pp. 313–332; and Martin D. Dupuis, John Q. Heywood and Michèle Y.F. Sarko (rapporteurs), ‘The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions’, American University Journal of International Law and Policy, Vol. 2, 1987, pp. 534–535. See also ICRC, Annual Report 1966, ICRC, Geneva, pp. 19–20; ICRC, Annual Report 1969, ICRC, Geneva, pp. 36–37; and Maia/Kolb/Scalia, pp. 408–409.
50 - See also Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 425.