Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 89 Forms of disciplinary punishment
Text of the provision*
(1) The disciplinary punishments applicable to prisoners of war are the following:
1) A fine which shall not exceed 50 per cent of the advances of pay and working pay which the prisoner of war would otherwise receive under the provisions of Articles 60 and 62 during a period of not more than thirty days.
2) Discontinuance of privileges granted over and above the treatment provided for by the present Convention.
3) Fatigue duties not exceeding two hours daily.
4) Confinement.
(2) The punishment referred to under 3) shall not be applied to officers.
(3) In no case shall disciplinary punishments be inhuman, brutal or dangerous to the health of prisoners of war.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
3736  Article 89 restricts disciplinary punishments applicable to prisoners of war to four types: fines, discontinuance of privileges, fatigue duties and confinement. It further prescribes that none of these punishments may be applied if it would be inhuman, brutal or dangerous to the health of the prisoner concerned. Despite these essential safeguards, in armed conflicts since 1949 the ICRC has encountered various forms of ill-treatment of prisoners of war undergoing disciplinary punishment.
3737  The Convention states that prisoners of war are subject to the laws, regulations and orders in force in the armed forces of the Detaining Power, including its disciplinary regime, except where these would conflict with any provision of the Convention.[1] Thus, while the Convention starts from the premise that prisoners of war are subject to the disciplinary regime of the enemy armed forces, it sets out clear boundaries regarding the type (Articles 87 and 89), duration (Article 90), procedure (Articles 95–96) and execution (Articles 97–98) of any disciplinary punishment.
3738  Despite the clear and unambiguous wording of these rules, ICRC experience shows that imposing disciplinary sanctions strictly within the limits of Article 89 can raise a number of issues. These include, in particular, the point at which a restriction of privileges turns into a deprivation of a prisoner’s fundamental rights; the types of tasks falling within the definition of fatigue duties; and the conditions and duration of confinement.
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B. Historical background
3739  In the nineteenth and early twentieth centuries, the basic principle of disciplinary sanctions was that ‘[p]risoners of war shall be subject to the laws, regulations, and orders in force in the armed forces of the State in whose power they are’.[2] Apart from some bilateral treaties concluded during the First World War,[3] international law did not provide specific restrictions on disciplinary sanctions. Prisoners of war were therefore generally subject to any disciplinary punishment prescribed for members of the armed forces of the Detaining Power. During the negotiations of the 1929 Geneva Convention on Prisoners of War, States did not agree on an exhaustive list of disciplinary sanctions[4] and retained the principle that the disciplinary rules applicable to the Detaining Power’s own forces would remain applicable to prisoners of war. However, they introduced a number of restrictions.[5]
3740  The fate of prisoners of war during the Second World War showed once again the great divergences which exist between the disciplinary systems of different countries.[6] Indeed, the ICRC found that some States applied disciplinary sanctions to their own forces which ‘were so severe as to be incomprehensible’ to the forces of other Powers.[7] Consequently, on the ICRC’s initiative, the Conference of Government Experts in 1947 suggested a text specifying which types of disciplinary sanctions would be permissible. The draft article that was subsequently discussed at the 17th International Conference of the Red Cross in Stockholm in 1948 contained six types of disciplinary penalties: fines, restriction of supplementary privileges, fatigue duties, extra labour, disciplinary drill and confinement.[8] The Stockholm Conference decided to delete ‘extra labour’ and ‘disciplinary drill’ from the list. During the Diplomatic Conference in 1949, States made no significant changes to the draft article. As a result, the Third Convention contains the ‘important innovation [of] a limitative enumeration of the various forms of disciplinary punishments applicable to prisoners’.[9]
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C. General remarks
3741  Several provisions of the Third Convention regulate disciplinary punishment for prisoners of war. Article 82(1) provides that as a general rule the Detaining Power may take disciplinary measures against prisoners of war only for offences defined in the laws, regulations and orders in force for members of its own armed forces. Similarly, Article 87(1) specifies that prisoners of war may not be sentenced to any penalties except those provided for in respect of members of the Detaining Power’s own forces who have committed the same acts. As a third element, Article 89 limits the types of disciplinary sanctions available to a Detaining Power to those listed in paragraph 1.
3742  In this respect, the opening sentence of Article 89 is clear: ‘The disciplinary punishments applicable to prisoners of war are the following …’. The list that follows is exhaustive, and no other disciplinary punishments may be imposed on prisoners of war.[10] This means that even if the laws and regulations of the Detaining Power allow for other types of disciplinary punishments for members of their own armed forces, these punishments cannot be applied to prisoners of war.[11] Similarly, the Detaining Power is not permitted to apply types of disciplinary punishments that are in force in the armed forces of the Power on which the prisoner depends unless they are in line with Article 89.
3743  If the laws and regulations of the Detaining Power provide only for disciplinary punishments that are different from those listed in Article 89, the Detaining Power could, depending on its domestic system, choose sanctions from the list in Article 89 to apply to the prisoners of war in its custody. In these cases, punishments would be based on Article 89 directly, meaning that the article would serve as ‘a disciplinary code in miniature’.[12] Importantly, in line with Article 87(1), the Detaining Power would need to ensure that the chosen punishment corresponds in its severity to the punishment provided for in respect of members of its armed forces who have committed the same acts.
3744  Article 89 does not explicitly exclude the possibility of cumulating the four listed punishments. Indeed, certain punishments are likely to be cumulated in the sense that confinement may automatically be accompanied by a discontinuance of certain privileges, and fatigue duties are normally performed during leisure hours. In certain armed forces, personnel sentenced to confinement receive no pay, which de facto amounts to the imposition of a fine. The logic of the Convention’s chapter on disciplinary sanctions suggests that if the Detaining Power’s disciplinary rules provide for a fine and fatigue duties as punishment for a single act, this is not prohibited by Article 89.[13] Similarly, if disciplinary sanctions are imposed simultaneously for several offences, the Detaining Power can impose a punishment in respect of each offence committed.[14]
3745  Pursuant to Article 90, the duration of any single punishment, or combination of punishments, under Article 89 may not exceed 30 days, even if the prisoner of war is answerable for several acts at the time of punishment and whether such acts are related or not.
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D. Paragraph 1: Forms of disciplinary punishments
1. Fines
3746  A fine refers to an amount of money that has to be paid or that is exacted as a penalty for violating a rule or law.[15] Article 89 allows prisoners of war to be penalized by forfeiting a part of their advance of pay and working pay.[16]
3747  The maximum amount of any permissible fine is set out in detail: a fine may not exceed 50 per cent of the advances of pay and working pay which the prisoner of war would otherwise receive under the provisions of Articles 60 and 62 during a period of not more than 30 days.[17] Thus, the basis for calculating the maximum fine permissible as a disciplinary sanction is the sum of a prisoner of war’s advances of pay and working pay covering a 30-day period. For example, under Articles 60 and 62, a prisoner of war ranking below sergeant receives a monthly advance of pay equivalent to 8 Swiss francs and working pay of no less than 0.25 Swiss francs for a full working day. The total amount received each month by the prisoner would therefore be 14.50 Swiss francs (for 26 working days). According to Article 89, the fine may not exceed 50 per cent of that amount, i.e. 7.25 Swiss francs.[18] To ensure that prisoners are not completely deprived of their salary, it is recommended that the fine should be levied either on the advance of pay or the working pay, but not on both at the same time.
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2. Discontinuance of privileges
3748  If the Detaining Power treats prisoners of war more favourably than the minimum standard laid down by the Convention, it may temporarily withdraw such privileges from individual prisoners as a disciplinary punishment.
3749  It is clear from the wording of Article 89 that the withdrawal of a privilege as part of a disciplinary punishment may never result in treatment that falls below the minimum standard prescribed in the Convention. Hence, the punishment may only be levied on privileges, i.e. treatment that has been granted ‘over and above’ what is required by the Convention. The basic rights enshrined in the Convention are not privileges but represent an essential and non-derogable minimum.
3750  To determine the permissible discontinuance of privileges, it is necessary to establish the minimum standard beyond which no restriction may be imposed for each relevant provision. For instance, if the Detaining Power intends to restrict the consumption of certain foods or access to leisure activities, the limit of the permissible punishment is determined by the respective provisions in the Third Convention on food, shelter or recreation. Thus, it would not be permissible to restrict food rations below an amount ‘sufficient in quantity, quality and variety to keep prisoners of war in good health and to prevent loss of weight or the development of nutritional deficiencies’ or to provide less than ‘sufficient drinking water’, as required by Article 26.[19] In contrast, the withdrawal of, for example, the right to use a swimming pool for ten days would be permissible.
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3. Fatigue duties
3751  Fatigue duties (or ‘fatigues’) mean ‘menial non-military tasks performed by a soldier’.[20] They do not refer to duties intended to lead to a state of fatigue.[21] Fatigue duties are those which members of a military unit usually take turns in performing, such as cleaning, and which are generally done outside the normal working hours because they are in the common interest. Assigning prisoners of war to clean toilet facilities has been used in practice as a form of fatigue duty. In contrast, practices such as requiring prisoners of war to hold a heavy stone for a certain time to tire them out are not permissible. Fatigue duties also may not comprise any work that is exclusively for the benefit of the Detaining Power or which is not connected with the administration of the camp. According to this provision, such duties may not exceed two hours per day as a disciplinary sanction.
3752  The draft convention discussed at the 1948 Stockholm Conference listed not only ‘fatigue duties’ but also ‘additional work of the same kind as the usual employment’ and ‘disciplinary drill’ as possible disciplinary punishments.[22] However, the Conference decided to delete the last two from the list, and States at the 1949 Diplomatic Conference rejected the suggestion of reinstating additional work.[23] This indicates that fatigue duties may not consist of all types of work as permitted under Article 50, and they cannot consist of disciplinary drill.[24] Examples of permissible fatigue duties include ‘extra-duty chores (beyond regular work hours and beyond normal duty-roster assignments)’, such as maintenance of the prisoner-of-war camp grounds, kitchen duties and similar tasks.[25] Fatigue duties may also include ‘digging, unloading cargo at the camp or carrying water to the camp’.[26] The conditions under which fatigue duties are performed must comply with the rules on working conditions set out in Article 51 and may not be ‘rendered more arduous’ for the disciplinary punishment.[27] In any case, under Article 89(3), fatigue duties may in no case be inhuman, brutal or dangerous to the health of the prisoner of war concerned.[28] This assessment must be made on an individual basis. Thus, a fatigue duty which may be permissible for one prisoner may not be for another, depending on their physical or mental condition.[29]
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4. Confinement
3753  As provided in Article 21(1), the Detaining Power may intern prisoners of war in a prisoner-of-war camp or other place of internment. However, within that perimeter, prisoners of war may not normally be held in confinement.[30] One exception to this rule, recognized under Article 21(1), is confinement as a disciplinary punishment based on Article 89. Under this article, ‘confinement’ signifies detention imposed by way of disciplinary proceedings.[31]
3754  Disciplinary confinement can take the form of open or close confinement. Open confinement refers to confinement outside of working hours, whereby the prisoner continues to share the life of their comrades during working hours. Since officers are not required to work, this form of confinement is not applicable to them. Close confinement consists of uninterrupted detention in a room, barrack or cell. A distinction may also be made between room arrest (generally applicable to officers), confinement to barracks and detention in a cell. In no case may any single disciplinary confinement of a prisoner exceed 30 days.[32] In practice, close confinement is a frequently used form of disciplinary punishment.
3755  The execution of confinement as a disciplinary punishment is further regulated in a number of other provisions:
– Article 97(1)–(2) prescribes that prisoners of war undergoing disciplinary punishment may not be transferred to penitentiary establishments and that premises in which disciplinary punishments are undergone must conform to the sanitary and hygienic requirements set forth in Articles 25 and 29. According to Article 87(3), prisoners of war may not be held in premises without daylight.
– Article 98 provides that prisoners undergoing confinement as a disciplinary measure continue to enjoy the right to file complaints or requests to the Detaining Power (Article 78); the right to exercise in the open air for at least two hours daily; the right to be present at the daily medical inspections; and the right to read, write, send and receive letters. The right of the Protecting Power or the ICRC to visit the premises in which the prisoners of war are held and to speak to them without witnesses (Article 126) remains equally valid.
– Prisoners of war subject to disciplinary measures may not be treated more severely than members of the armed forces of the Detaining Power of the same rank.[33]
– Women prisoners of war undergoing disciplinary punishment must be confined in separate quarters from men prisoners of war and must be under the immediate supervision of women.[34]
– Prisoners of war may not be deprived of their rank or of prerogatives attached to their rank.[35] Officers and persons of equivalent status may not be lodged in the same quarters as non-commissioned officers or men.[36]
3756  The Third Convention does not explicitly refer to solitary confinement, which is in practice a particularly severe form of close confinement.[37] Unlike close confinement, which can refer to detention in a single room, barrack or cell with other persons, solitary confinement is commonly understood as being held alone in a single cell for a very long period of the day without meaningful human contact.[38] It would appear that solitary confinement is becoming less and less accepted as a penalty in both law and practice.[39]
3757  Solitary confinement is prohibited under Article 89(3) if it amounts to inhuman or brutal treatment, or if it is dangerous to the prisoner of war’s physical or mental health.[40] Whether or not solitary confinement is inhuman, brutal or dangerous to health must be assessed on an individual basis. The safeguards listed above (para. 3755) also apply to solitary confinement.
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E. Paragraph 2: Disciplinary punishment of officers
3758  Article 89(2) states explicitly that fatigue duties may not be applied to officers. This reflects Article 44(1) and (2), which require that officers and prisoners of equivalent rank must be treated with the regard due to their rank and age, including exemption from fatigue duties.
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F. Paragraph 3: The prohibition of disciplinary punishments that are inhuman, brutal or dangerous to health
3759  The last paragraph of Article 89 contains a general safeguard clause that applies to the implementation of all disciplinary punishments listed in paragraph 1: they must in no case be inhuman, brutal or dangerous to the health of prisoners of war. The Geneva Conventions, including Article 13 of the Third Convention, do not provide definitions of the treatment that would be inhuman, brutal or dangerous to the health of prisoners of war.[41] Under Article 87(3), ‘corporal punishments, imprisonment in premises without daylight and, in general, any form of torture or cruelty’ are prohibited.[42] However, conduct prohibited under Article 89 goes beyond this list and necessitates a case-by-case assessment of each punishment, taking into account the needs, capacities, and perspectives of the individual prisoner.[43]
3760  Articles 89 and 87(3) explicitly prohibit corporal punishment or any other of the forms of ill-treatment they mention. Such punishments are reported to have occurred in several contexts since the Second World War.[44] Other practices observed by the ICRC, such as confining prisoners of war in inadequate premises or in unhygienic or unhealthy conditions in violation of Article 97(2), may also violate the prohibition of punishments that are dangerous to health.[45] Similarly, practices such as forcing prisoners to stand in the sun for prolonged periods or depriving them of protection against the cold where it is required can be inhuman and dangerous to health and are therefore prohibited.
3761  While the permitted punishments under Article 89 may not at first appear inhuman, brutal or dangerous to health, they may in certain cases be unduly harsh. It may be brutal or dangerous to the health of a prisoner of war to oblige them to do two hours of fatigue duties when they are already exhausted; this is also true of the detention in a cell of a prisoner who is seriously sick or requires specialized medical attention so as to warrant transfer to the camp infirmary or a military or civilian medical unit, as provided by Article 30. Thus, ensuring compliance with the current provision requires the Detaining Power to consider the individual circumstances of persons undergoing punishment, such as their gender, age and physical and mental health.[46] An increased risk to health might exist if the disciplinary punishment is applied to prisoners with mental health conditions or with physical impairments, prisoners under the age of 18 or pregnant prisoners.[47]
3762  The prohibition of inhuman, brutal or dangerous punishments further requires diligence on a continuing basis: while a certain type of punishment may initially be admissible for a certain individual, changes in that person’s state of health, for example, could render a continuation of the same punishment inhuman, brutal or dangerous to their health.[48]
3763  Lastly, pursuant to Article 13(1), any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner is prohibited and will be regarded as a serious breach of the Convention.[49]
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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. 375–379.
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, paras 728–729, at 403–404.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 315–342 (‘The punishment of prisoners of war’).
Maia, Catherine, Kolb, Robert and Scalia, Damien, La Protection des Prisonniers de Guerre en Droit International Humanitaire, Bruylant, Brussels, 2015.
Rowe, Peter, ‘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 - Article 82(1).
2 - Hague Regulations (1907), Article 8(1). See also Hague Regulations (1899), Article 8(1); Oxford Manual (1880), Article 73; and Brussels Declaration (1874), Article 28(1).
3 - Agreement between Austria-Hungary and Italy concerning Prisoners of War and Civilians (1918), Article 84; Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Article 74.
4 - The ICRC suggested such a list; see Code de Prisonniers de Guerre, Avant-projet de Convention élaboré par le Comité International de la Croix-Rouge, 1929, Article 50.
5 - Article 54 of the 1929 Geneva Convention on Prisoners of War provided that imprisonment of 30 days ‘is the most severe disciplinary punishment’; Article 46 prohibited corporal punishment, collective punishment and any form of cruelty; Article 36 stated that letters and postcards may ‘not be delayed or withheld for disciplinary motives’; and Article 32 prescribed that ‘[c]onditions of work shall not be rendered more arduous by disciplinary measures’.
6 - See Bretonnière, pp. 375 and 378–379; Maia/Kolb/Scalia, p. 414; and United Kingdom, Military Court at Singapore, Hojo case, Abstract of evidence, 1946, p. 3.
7 - ICRC, Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume II: The Central Agency for Prisoners of War, ICRC, Geneva, May 1948, pp. 439–440.
8 - See draft article 79 of the draft convention on prisoners of war submitted to the 17th International Conference of the Red Cross (Stockholm, 1948).
9 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 571.
10 - Two provisions in the Convention explicitly state that certain disciplinary measures, which are beyond those provided for in Article 89, are prohibited; see Articles 26(6) and 71(1).
11 - Levie, p. 326.
12 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 439–440.
13 - See also Rowe, p. 1033. However, the State may also take a more protective approach. For instance, under Japanese law ‘[m]ore than one category of disciplinary action shall not be executed for one act’; Japan, Act on the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations, 2004, Article 49(3).
14 - See, however, Article 86, which states that ‘no prisoner of war may be punished more than once for the same act or on the same charge’.
15 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 532.
16 - For a critique of fines as a form of disciplinary punishment, see Hingorani, p. 92.
17 - For further details on advances of pay and working pay, see the commentaries on Articles 60 and 62.
18 - These amounts would need to be adapted if the advance of pay or working pay is higher in light of the conversion rate applied. See the commentaries on Article 60, para. 2913, and on Article 62, para. 2955.
19 - For an example, see UN Security Council, Prisoners of war in Iran and Iraq: The report of a mission dispatched by the Secretary-General, January 1985, UN Doc. S/16962, 22 February 1985, paras 63, 176 and 244 (reporting that prisoners of war were punished by being confined without food or water).
20 - See Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 518.
21 - This understanding is corroborated by the French version of the Convention, which refers to ‘corvées’, meaning ‘work done in turns by certain members of a group’ which might be ‘unpleasant or tiresome’; Le Petit Larousse, Editions Larousse, 2007, p. 254.
22 - Draft Conventions submitted to the 1948 Stockholm Conference, draft article 79, p. 108.
23 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 225.
24 - No support for the idea that disciplinary drill may be imposed as a disciplinary punishment can be found in State military manuals. While the Eritrea-Ethiopia Claims Commission considered punishments such as ‘running, crawling and rolling on the ground’ to be of ‘questionable legality’ and was ‘doubtful’ whether such exercises ‘could properly be considered fatigue duties’, it did not make a clear finding on their unlawfulness; see Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, 2003, para. 81.
25 - Levie, p. 327. This view is also reflected in Denmark, Military Manual, 2016, p. 512, and United States, Law of War Manual, 2016, pp. 621–622, para. 9.27.5.
26 - See Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 2003, para. 81.
27 - Article 51(4). See e.g. United Kingdom, Manual of the Law of Armed Conflict, 2004, pp. 191–192, para. 8.129, and United States, Law of War Manual, 2016, pp. 621–622, para. 9.27.5, and p. 586, para. 9.19.3.
28 - See also Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 2003, para. 81.
29 - As pointed out by one delegate at the 1949 Diplomatic Conference, ‘[w]ith regard to extra fatigues, the physical condition of the prisoner was an important factor’, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 311. See also Krähenmann, p. 404: ‘The punishment of a prisoner of war by sentencing him to a permitted form of work can be inhumane if the prisoner is in no physical condition for it.’
30 - See the commentary on Article 21, para. 1934.
31 - In this Commentary on the Third Convention, detention imposed after judicial proceedings is referred to as ‘imprisonment’ and is discussed in the commentary on Article 108.
32 - Article 90.
33 - Article 88.
34 - Article 97(4). Regarding the requirement to confine prisoners in facilities according to their gender, see the commentary on Article 14, para. 1665 and particularly fn. 20.
35 - Article 98(2).
36 - Article 97(3).
37 - Arbitrary solitary confinement, as was the practice in some Japanese prisoner-of-war camps during the Second World War, is never permissible. See United Kingdom, Military Court at Singapore, Otsuka case, Details of Trial Records, 1946, p. 13. Today, Japan has set the maximum duration of solitary confinement for prisoners of war to 14 days; see Act on the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations, 2004, Article 51(2).
38 - This understanding is based on Rule 44 of the non-binding Mandela Rules (2015), which defines solitary confinement for the purposes of the Rules as ‘confinement of prisoners for 22 hours or more a day without meaningful human contact’.
39 - See also the commentary on Article 87, para. 3711.
40 - For a summary of human rights jurisprudence on when solitary confinement amounts to inhumane treatment, see Nigel S. Rodley and Matt Pollard, The Treatment of Prisoners under International Law, 3rd edition, Oxford University Press, 2009, pp. 402–407.
41 - For further details on inhuman treatment, see the commentaries on Article 3, section G.2.d (‘cruel treatment’), on Article 13, section C.1.a, and on Article 130, section D.3.
42 - ‘Corporal punishment’ and ‘torture and cruel, inhuman or degrading treatment’ are also prohibited under customary international humanitarian law; see ICRC Study on Customary International Humanitarian Law (2005), Rules 90 and 91.
43 - For a discussion of the protection of different categories of prisoners of war with distinct needs, see Introduction, section A.3.b.
44 - See e.g. UN Security Council, Prisoners of war in Iran and Iraq: The report of a mission dispatched by the Secretary-General, January 1985, UN Doc. S/16962, 22 February 1985, para. 124.
45 - See e.g. Maia/Kolb/Scalia, p. 411, and UN Security Council, Prisoners of war in Iran and Iraq: The report of a mission dispatched by the Secretary-General, January 1985, UN Doc. S/16962, 22 February 1985, para. 242.
46 - See Fourth Convention, Article 119: ‘Account shall be taken of the internee’s age, sex and state of health.’ The drafters included this specification in the Fourth Convention but not in the Third. The UK delegate at the 1949 Diplomatic Conference in Geneva argued that ‘the divergency in question was due to the differences which necessarily existed between prisoners of war and internees’; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 399. However, it seems difficult today to argue, for example, that the state of health of a prisoner of war should not be considered when determining whether punishment would be inhuman, brutal or dangerous to health. See also Denmark, Military Manual, 2016, p. 511, and Japan, Act on the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations, 2004, Article 50.
47 - The impact of disciplinary punishments, especially solitary confinement, may be extremely severe in particular for persons with mental health conditions where such measures may lead to an aggravation of an existing condition such that this would amount to cruel or inhuman treatment or punishment. See e.g. Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 490 (United Kingdom). See also the commentary on Article 30, paras 2241–2247. See, further, the non-binding Mandela Rules (2015), Rule 45(2).
48 - In the context of human rights law, Rule 46(2) of the non-binding Mandela Rules (2015) provides: ‘Health-care personnel shall report to the director, without delay, any adverse effect of disciplinary sanctions or other restrictive measures on the physical or mental health of a prisoner subjected to such sanctions or measures and shall advise the director if they consider it necessary to terminate or alter them for physical or mental health reasons.’
49 - For further details, see the commentary on Article 13, section C.2.