Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 103 : Judicial investigations and confinement awaiting trial
Text of the provision*
(1) Judicial investigations relating to a prisoner of war shall be conducted as rapidly as circumstances permit and so that his trial shall take place as soon as possible. A prisoner of war shall not be confined while awaiting trial unless a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in the interests of national security. In no circumstances shall this confinement exceed three months.
(2) Any period spent by a prisoner of war in confinement awaiting trial shall be deducted from any sentence of imprisonment passed upon him and taken into account in fixing any penalty.
(3) The provisions of Articles 97 and 98 of this Chapter shall apply to a prisoner of war whilst in confinement awaiting trial.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
4019  Article 103 can be said to contain pretrial guarantees for prisoners of war who are suspected or accused of criminal offences. It addresses two pretrial situations: judicial investigations and confinement awaiting trial. Both terms require some clarification. First, the term ‘judicial investigation’ may suit civil-law jurisdictions better than common-law jurisdictions. This is because, in civil-law systems, a suspect may be charged at an early stage, with a subsequent, formal, judge-led investigation prior to those charges proceeding to trial. In common-law or adversarial legal systems, investigations are typically led by law enforcement (police) authorities, rather than judges, and involve only minimal or occasional judicial supervision. Furthermore, in common-law systems, charges are preferred towards the end of an investigation process, rather than at the beginning. The reference in Article 103 to ‘judicial investigations’ should not be taken to imply that it is only relevant in civil-law systems. The thrust of the provision, which must be applied whatever the legal system, is that investigations concerning persons suspected or accused of criminal offences must be conducted expeditiously, to allow trial to take place as soon as possible. Second, Article 103 employs the term ‘confinement awaiting trial’. While a variety of terms is used to describe this phenomenon, including ‘pretrial detention’, ‘detention on remand’ and ‘provisional detention’, this commentary will limit itself to the terms ‘confinement awaiting trial’ and ‘pretrial confinement’.[1]
4020  The present article provides that the confinement of prisoners of war awaiting trial is only permitted in two situations: if members of the Detaining Power’s own forces would themselves be subjected to the measure in relation to a similar offence, or if there exist compelling national security reasons to justify pretrial confinement in the case of an individual prisoner. Furthermore, the rule limits the application of the measure to a maximum duration of three months.
4021  Two principles of fair trial underlie the provision: the right of the accused to trial as soon as possible and their right to be presumed innocent until proven guilty.[2] Unlike previous iterations of the rule, Article 103 applies to all offences that may result in the pretrial confinement of a prisoner of war, irrespective of whether they are suspected to have been committed before or after capture, or whether they involve the commission of war crimes.[3]
4022  Although it is located in the section of the Convention dealing with judicial proceedings,[4] Article 103 itself is largely silent on actual procedure. Indeed, the drafters did not intend to establish a detailed code of penal procedure for prisoners of war.[5] However, this rule must be read together with both Article 82, which requires that the Detaining Power apply to prisoners of war the same rules and regulations that are applicable to members of its own armed forces, the so-called ‘principle of assimilation’, and Article 102, which requires that prisoners of war be subject to the same courts and same procedures as members of the Detaining Power’s own forces. Through the principle of assimilation, developments in international law since 1949, including human rights law, as far as they have been incorporated into the domestic legal system governing military personnel, will become applicable to prisoners of war, for example in terms of the relevant procedures for placement in and release from confinement awaiting trial.[6]
4023  While in pretrial confinement, prisoners of war must be treated in accordance with Articles 97 and 98 of the Convention, which are located in the section regulating disciplinary proceedings and punishments. The former governs the type and condition of the premises in which prisoners of war may undergo pretrial confinement, while the latter spells out further essential safeguards concerning their treatment while thus confined.
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B. Historical background
4024  The Hague Regulations of 1899 and 1907 contained no provisions on confinement awaiting trial but required the Detaining Power to make prisoners of war subject to the laws in force for members of its own armed forces.[7] This ‘principle of assimilation’ later found expression in Article 45 of the 1929 Geneva Convention on Prisoners of War and is currently enshrined in Article 82 of the present Convention. The principle of assimilation in penal and disciplinary matters is echoed in many of the specific rules of Chapter III, including Article 103.[8]
4025  Article 103 has its origins in the second and third paragraphs of Article 47 of the 1929 Convention.[9] Article 47 was criticized for its lack of detail, particularly regarding the length of time for which prisoners of war could be held in confinement pending judicial and/or disciplinary proceedings.[10] In addition, it was not considered as applying to offences committed before capture or to war crimes.[11] The instances of mistreatment of prisoners of war during the Second World War highlighted the gravity of these inadequacies.[12]
4026  A modified version of the 1929 provision, which introduced the three-month maximum limit for confinement awaiting trial, as well as the reference to rules of treatment while in confinement, was submitted to the 17th International Conference of the Red Cross in Stockholm in 1948.[13] Interestingly, the version of the provision that was ultimately adopted by the Conference contained no mention of any time limit for pretrial confinement.[14] The draft provision adopted by the Stockholm Conference, with some editorial changes introduced,[15] was debated by the Diplomatic Conference in 1949. That draft underwent significant modification as a result of an amendment introduced at the Conference by the United Kingdom,[16] before it was finally adopted.
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C. Paragraph 1: Judicial investigations and confinement awaiting trial
1. First sentence: Judicial investigations with a view to trial
4027  The first sentence of Article 103(1) makes reference to pretrial measures other than confinement awaiting trial and applies to all prisoners of war under judicial investigation, including those who do not face the prospect of pretrial confinement. The paragraph opens by mandating timely judicial investigations relating to prisoners of war, so that they may be tried as soon as possible. Based on Article 82, this sentence requires that judicial investigations concerning a prisoner of war be conducted in accordance with the laws, regulations and orders in force in the armed forces of the Detaining Power as far as questioning, the hearing of witnesses, examination by experts, competent investigative authority and similar matters are concerned.[17] As a result, certain procedural guarantees will apply during pretrial investigation and pretrial confinement of prisoners of war, insofar as these guarantees form part of the Detaining Power’s legislation.[18] Furthermore, the ICRC considers that the essential requirements of impartiality and independence mentioned in Article 84, the safeguards contained in Article 102, as well as the rights and means of defence which are the subject of Article 105, not only extend to trial but should also apply to pretrial investigations[19] and to the procedures for placement in pretrial confinement.[20] This is because there is substantive overlap between judicial guarantees in the pretrial and trial phases in domestic legal systems, as recognized in international law standards. For example, the right to adequate time and facilities to prepare a defence must be observed in all stages of a criminal process.[21] Similarly, it cannot be said that a person’s right to a lawyer, which is a key judicial guarantee, was respected if legal counsel was allowed only once a trial proper has begun.[22] This safeguard must be observed in all stages of criminal proceedings.
4028  According to the first sentence of Article 103(1), judicial investigations of prisoners of war are to be carried out ‘as rapidly as circumstances permit’. This wording reflects, on the one hand, the drafters’ intention to ensure that trials of suspected or accused prisoners of war can take place as soon as possible and, on the other hand, their understanding that, in some cases, judicial investigations may be complex and lengthy, including as a result of challenges directly related to the existence of an international armed conflict.[23] It is in the interests of a prisoner of war suspected or accused of committing a crime that investigations be conducted thoroughly and with the requisite care, while at the same time occurring at a pace that preserves both their right to be tried as soon as possible[24] and to be presumed innocent pending a final judgment to the contrary.[25] This provision has therefore been worded not to give any semblance of justification either for dilatory or for overly hasty investigations. It is particularly important in the case of prisoners of war who may be subjected to pretrial confinement, as it serves, together with the maximum time limit set out in the third sentence, to protect them from languishing for months in confinement on the pretext that investigations are under way/incomplete.
4029  The injunction that investigations must be conducted as rapidly as circumstances permit is followed by the words ‘and so that his trial shall take place as soon as possible’. This phrase highlights that the purpose of the investigations is to prepare for a trial, if the charges against the accused are upheld. It should be recalled that this provision is applicable irrespective of whether the accused is subject to confinement awaiting trial. The requirement that a prisoner of war be tried as soon as possible extends beyond the judicial investigations conducted in view of trial and includes the length of the trial itself. In this way, Article 103 is intimately connected with Article 84(2),[26] since the promptness of a trial process is one of the elements that must be taken into account in determining whether it can be considered fair.[27] The requirement serves the dual purpose of protecting the accused from prolonged uncertainty as to their fate, a consideration that is particularly acute where pretrial confinement is concerned, while at the same time serving the interests of justice.
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2. Second sentence: Exceptions to prohibition of confinement awaiting trial
4030  Under the Third Convention, prisoners of war may be subject to internment and their liberty of movement thereby restricted.[28] However, the Detaining Power is prohibited from holding prisoners of war in close confinement.[29] This general prohibition is subject to two exceptions: first, if the health of a prisoner of war requires them to be held in close confinement; and second, for reasons related to disciplinary or judicial sanctions.[30] Article 103 is therefore one of the exceptions to the general rule against close confinement of prisoners of war.
4031  The second sentence of Article 103 establishes a general prohibition of pretrial confinement of prisoners of war facing judicial proceedings and sets out two exceptions.
4032  The first exception permits pretrial confinement of a prisoner of war in cases where a member of the Detaining Power’s own forces accused of a similar crime would also face such confinement.[31] This exception is a specific application of the principle of assimilation as expressed in Article 82. However, it should be remembered that a prisoner of war is in a situation that is markedly different from that of a member of the Detaining Power’s own forces by virtue of the fact that the prisoner of war is interned. There is therefore a lower risk that they will flee during the course of investigations, which is one of the justifications for the adoption of this procedure in criminal proceedings.
4033  The second exception relates to the Detaining Power’s national security interests. During the 1949 Diplomatic Conference, a proposal was made to delete the national security exception envisaged by Article 103, but this was rejected.[32] Discussions at the Conference reveal that some States believed this exception to be of ‘minor importance’, while others voiced the belief that the words should be retained.[33] The phrase ‘in the interests of national security’ is very general, giving the Detaining Power a degree of discretion in the application of the measure.[34] Nonetheless, prisoners of war may only be subject to pretrial confinement if to do so would be ‘essential’ to the national security interests of the Detaining Power. The word ‘essential’ refers to reasons that are ‘absolutely necessary’ or ‘fundamental’ to the national security interests in question,[35] highlighting the very limited nature of the second exception. Additionally, the inherent security threat posed by prisoners of war is neutralized by virtue of their being subject to internment. Consequently, the relevant national security standard would require an additional threat beyond that person’s status as a member of the enemy armed forces. Moreover, the term ‘essential’ further implies that no lesser measure than confinement is available to neutralize the threat. The Detaining Power must therefore consider alternatives to confinement capable of neutralizing the relevant threat.
4034  The two situations foreseen in the second sentence indicate that pretrial confinement should not be employed as a general practice.
4035  Article 103 only provides for confinement awaiting trial and cannot be used to restrict the liberty of a prisoner of war on the basis that they present a security risk with no related criminal proceedings.[36]
4036  Although not among the grave breaches listed in Article 130, a violation of Article 103 could amount to the war crime of unlawful confinement under the 1998 ICC Statute.[37]
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3. Third sentence: Maximum limit of three months
4037  In the third sentence, Article 103(1) establishes a maximum time limit of three months, beyond which confinement awaiting trial is not permitted under any circumstances. This is evident from the wording of the provision both in English, ‘[i]n no circumstances’, and in French, ‘en aucun cas’. It is an important safeguard against abuses of the kind that occurred during the Second World War.[38] The limitation was absent from the corresponding provision in the 1929 Convention, but was introduced in the draft submitted to the Stockholm Conference in 1948.[39] However, it was omitted from the draft adopted in Stockholm as a result of a Canadian intervention.[40] Its reinsertion was strongly recommended at the 1949 Diplomatic Conference.[41]
4038  However, not all delegations were convinced that the three-month time limit should apply without exception. The United Kingdom’s amendment, which reintroduced the time limit,[42] contained language excluding its application in certain cases.[43] The United Kingdom was not alone in proposing an exception to the limit. Others at the Conference also took the view that certain circumstances may leave a Detaining Power unable to properly conduct the judicial investigations necessary to bring a prisoner of war to trial.[44] This may be the case if the alleged offence was committed on territory lying beyond a Detaining Power’s jurisdiction or control, or indeed if the alleged offence occurred prior to capture. In other cases, for example, where the alleged offences constitute crimes against humanity or genocide, investigations may be lengthy and complex.[45] The argument that the three-month period should not apply in certain cases therefore persisted on the grounds that, in such situations, it was more difficult to ensure a fair trial for prisoners of war during the armed conflict than after the end of hostilities.[46]
4039  Ultimately, the three-month maximum limit was upheld in all cases, even those in which the Detaining Power would find itself unable to secure the necessary evidence and witnesses to bring the case to trial, ‘in order to prevent prisoners of war being left in confinement indefinitely’[47] as a result of such inability, whether it be real or invoked.[48] In such a situation, the release of a prisoner of war from pretrial confinement ‘would not preclude [trial] at a later date’.[49] Such persons could also be transferred to other camps to prevent them from colluding with witnesses, or they could be transferred to another Power capable of amassing the requisite evidence to conduct a fair trial.[50]
4040  The language of the third sentence indicates that three months is a maximum limit, and pretrial confinement should, in principle, be shorter. Confinement must cease as soon as the charges are withdrawn or the reasons for subjecting the individual to the measure cease to exist (for example, there is no longer a risk that the prisoner will commit further offences or interfere with evidence, or the interests of national security that were the basis of a decision to place the prisoner in pretrial confinement are no longer applicable).[51] Under Article 119(5), provided criminal proceedings against a prisoner of war are pending, the Detaining Power may hold an individual in pretrial confinement for three months, even if all other prisoners of war are released and repatriated.[52]
4041  The fact that a prisoner of war may not be held in pretrial confinement for longer than three months does not mean that they should be liberated at the end of this period. They will simply continue to be interned as a prisoner of war without being subject to confinement. Lastly, with respect to the same offence/situation, Article 103 must be interpreted in good faith, and therefore would not permit a Detaining Power to subject a prisoner of war to repeated spells of pretrial confinement, each being shorter than three months.
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D. Paragraph 2: Deduction from sentence
4042  The time spent in confinement while awaiting trial must be deducted in full from the period of imprisonment to which the convicted person is sentenced.[53] The deduction of time spent in pretrial confinement from sentence and/or penalty is generally accepted practice.[54]
4043  The corresponding provision in the 1929 Convention provided for deduction of pretrial confinement from sentencing only where this was ‘permitted in the case of members of the national forces’.[55] This wording was not reproduced in the 1949 Convention, meaning that the requirement must apply in all cases of pretrial confinement of prisoners of war.
4044  Time spent in confinement awaiting trial is not only to be deducted from sentences of imprisonment but should also be taken into account if a penalty other than imprisonment is envisaged (e.g. a fine). The Swiss delegate to the 1949 Diplomatic Conference proposed deleting the words ‘and taken into account in fixing any penalty’.[56] The language was nonetheless retained.[57]
4045  Article 103(2) specifies that ‘any’ time spent in pretrial confinement in relation to that trial is to be deducted from the sentence/penalty imposed on a prisoner of war. Therefore, even periods of time spent in pretrial confinement prior to charges being preferred must be deducted from the sentence and/or penalty.
4046  It is also desirable that an accused person wrongly detained while awaiting trial, or whose confinement has been wrongly prolonged, obtain compensation.[58]
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E. Paragraph 3: Treatment
4047  The final paragraph of Article 103 includes a safeguard that was absent from the 1929 Convention by requiring that prisoners of war held in pretrial confinement be treated in accordance with Articles 97 and 98 of the Third Convention.[59]
4048  Article 97 prohibits the Detaining Power from transferring prisoners of war undergoing pretrial confinement to penitentiaries.[60] Furthermore, as pretrial confinement is a preventive and not a punitive measure,[61] prisoners of war who are thus confined and who have not yet been convicted of a crime should not be confined with convicted persons.
4049  Article 103 does not mention solitary confinement. During negotiations, the French delegate raised the question whether solitary confinement could be imposed in pretrial confinement,[62] but other delegates feared it would ‘encourage grave excesses’.[63] It was decided to leave it out.[64]
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Select bibliography
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, pp. 418–433 (‘poursuites judiciaires’).
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, pp. 453–457 (‘Penal and disciplinary sanctions’).
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.
Weissbrodt, David S., ‘International Fair Trial Guarantees’, in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict, Oxford University Press, 2014, pp. 410–440.

1 - It should be recalled that, generally, prisoners of war may not be held in close confinement; see the commentary on Article 21, section C.3.
2 - See Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. II, 17th meeting, pp. 71–72 (United States). On the presumption of innocence, see the commentary on Article 99, sections A and D.
3 - See section B. See also Rowe, 2014, pp. 314–315.
4 - ‘Judicial proceedings’ should be taken to include those proceedings in which a prisoner of war is charged with an offence for which a sentence of imprisonment or death is a punishment available to the court or tribunal hearing the offence, irrespective of whether the court or tribunal is technically exercising judicial power under the law of the Detaining Power or whether the offence is described as a criminal offence. See also the commentary on Article 82, para. 3573.
5 - Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, p. 161.
6 - See the commentary on Article 82, para. 3557, and Introduction, para. 34.
7 - Hague Regulations (1899), Article 8; Hague Regulations (1907), Article 8.
8 - 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.
9 - Article 47 of the 1929 Geneva Convention on Prisoners of War reads: [1] A statement of the facts in cases of acts constituting a breach of discipline, and particularly an attempt to escape, shall be drawn up in writing without delay. The period during which prisoners of war of whatever rank are detained in custody (pending the investigation of such offences) shall be reduced to a strict minimum. [2] The judicial proceedings against a prisoner of war shall be conducted as quickly as circumstances will allow. The period during which prisoners shall be detained in custody shall be as short as possible. [3] In all cases the period during which a prisoner is under arrest (awaiting punishment or trial) shall be deducted from the sentence, whether disciplinary or judicial, provided such deduction is permitted in the case of members of the national forces.
10 - See Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, p. 142: It is unfortunate that Sec. 1 and 2 of [Article 47 of the 1929 Convention] were not more clearly drafted. Very often, general provisions of this kind have but little practical value. As long as they do not mention a fixed period of time, they are liable to be interpreted in much too wide a manner. The Detaining Power nearly always succeeds in finding apparently valid reasons for delay. It is therefore to be hoped that a fixed time be stipulated, so as to obviate all possibility of interpreting these clauses in a manner unfavourable to PoW. See also Report of the Conference of Government Experts of 1947, pp. 208–209. In discussing the first paragraph of Article 47 of the 1929 Convention, which deals with preventive confinement pending disciplinary proceedings, the Second Commission stated, p. 208: ‘A general desire was expressed that this Article should be more clearly defined, to enhance its practical value.’ It would appear that the Second Commission held that the selfsame lack of clarity was also present as regards the second paragraph. The Commission justified its proposals to improve the second paragraph by referring to its arguments concerning the first paragraph.
11 - See Rowe, 2014, p. 314.
12 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 477.
13 - Draft Conventions submitted to the 1948 Stockholm Conference, draft article 93, pp. 115–116.
14 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 93, p. 88; See also Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. I, 14th meeting, p. 4.
15 - Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. II, 17th meeting, p. 68.
16 - For the text of the amendment by the United Kingdom, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. III, Annex 163, p. 83.
17 - Rowe, 2014, p. 330: ‘The detaining state will also need to ensure that the pre-trial questioning and treatment of a POW is subject to the same limitations and safeguards provided to members of the armed forces of that state.’ This reflects a correct reading of the law, insofar as domestic legislation governing a Detaining Power’s own armed forces does not fall below the standards of protection set down in the Convention. See also Introduction, para. 36, and the commentary on Article 82, para. 3577.
18 - Rowe, 2015, pp. 1034–1037, particularly paras 39–40 (although these primarily discuss fair disciplinary and trial proceedings, the analysis is relevant for investigations leading to trial and pretrial confinement). See also the commentary on Article 102, para. 4012.
19 - See Geneva Academy of International Humanitarian Law and Human Rights and ICRC, Guidelines on investigating violations of international humanitarian law: Law, policy, and good practice, prepared by Noam Lubell, Jelena Pejic and Claire Simmons, Geneva, September 2019, Guideline 11, paras 154–156.
20 - See the commentaries on Article 84, para. 3611 (fn. 27), on Article 102, para. 4012, and on Article 105, paras 4084 and 4100. See also Rowe, 2014, p. 322: ‘Not only must the court be independent and impartial from the chain of command; so also must the investigation into an alleged offence committed by a POW.’ Ibid. p. 330: ‘It seems reasonable to interpret the phrase “the same courts according to the same procedure” in Article 102 … as including pre-trial events that have an effect on court procedures. This is so, even though there is no specific requirement in the Convention to provide pre-trial legal advice during the investigation stage to a POW.’
21 - See also Additional Protocol I, Article 75(4)(a), and Additional Protocol II, Article 6(2)(a).
22 - See the commentary on Article 105, para. 4084.
23 - See Geneva Academy of International Humanitarian Law and Human Rights and ICRC, Guidelines on investigating violations of international humanitarian law: Law, policy, and good practice, prepared by Noam Lubell, Jelena Pejic and Claire Simmons, Geneva, September 2019, Guideline 8, para. 138.
24 - Ibid. Guideline 9, para. 144.
25 - Ibid. Guideline 11, para. 156. See also the commentary on Article 99(2), para. 3970.
26 - See the commentary on Article 84, para. 3619.
27 - See Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003, p. 105: ‘[T]he length of the trial may be considered in evaluating the fairness of the proceedings (for example, a very short trial may indicate that the accused did not have sufficient time to prepare an adequate defence).’ In a similar way, international human rights law requires that accused individuals be tried without undue delay. This guarantee relates not only to the opening of a trial following investigations, but also to the timeframe for its conclusion. See e.g. International Covenant on Civil and Political Rights (1966), Articles 9(3) and 14(3)(c); and UN Human Rights Committee, General Comment No. 35: Article 9 (Liberty and security of person), UN Doc. CCPR/C/GC/35, 16 December 2014, paras 31 and 37, and General Comment No. 32: Article 14 (Right to equality before courts and tribunals and to a fair trial), UN Doc. CCPR/C/GC/32, 23 August 2007, paras 22 and 35.
28 - See Article 21(1).
29 - Ibid.
30 - See the commentary on Article 21, section C.3. Although Article 21(1) refers specifically to ‘the provisions of the present Convention relative to penal and disciplinary sanctions’ (emphasis added), this must be interpreted to include confinement awaiting disciplinary hearing (Article 95) and confinement awaiting trial (Article 103), which are technically not sanctions.
31 - For example, the UN Human Rights Committee has specified that pretrial detention ‘must be based on an individualized determination that it is reasonable and necessary taking into account all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime’; General Comment No. 35: Article 9 (Liberty and security of person), UN Doc. CCPR/C/GC/35, 16 December 2014, para. 38.
32 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 317.
33 - Ibid.
34 - For a similar discussion on language pertaining to national security exceptions in the context of trials of prisoners of war, see Article 105, section G.
35 - See Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 488.
36 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 478: ‘[Pretrial confinement] may therefore only be applied when investigations have already been commenced regarding a prisoner of war, and there must therefore be a valid justification.’ See also Jean Graven, ‘Les conditions d’une réglementation satisfaisante de la détention préventive’, Revue internationale du droit pénal, Vol. 21, No. 2, 1950, pp. 189–207, at 191.
37 - See Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003, pp. 118–122.
38 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 477.
39 - Draft Conventions submitted to the 1948 Stockholm Conference, draft article 93, pp. 115–116.
40 - Summary of Debates of the Sub-Commissions of the Legal Commission at the 1948 Stockholm Conference, p. 39; Draft Conventions adopted by the 1948 Stockholm Conference, draft article 93, p. 88.
41 - Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. I, 14th meeting (Informal report by the sub-committee on penal and disciplinary sanctions), p. 4. See also Final Record of the Diplomatic Conference of Geneva of 1949, Vol II-A, pp. 290, 308 and 495.
42 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 509.
43 - For the text of the UK amendment, see ibid. Vol. III, Annex 163, p. 83. The UK representative, who agreed with the principle of a maximum time limit, expressed doubt that it should apply to all cases, particularly to those of prisoners of war who were to be tried for crimes committed before their capture. He believed the maximum limit could jeopardize the true interests of such prisoners as ‘it was impossible to secure a really fair trial during hostilities’; ibid. Vol. II-A, p. 496. See also ibid. pp. 509–510.
44 - See e.g. Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. II, 17th meeting, p. 70 (Netherlands). See also Rowe, 2014, p. 315.
45 - Rowe, 2014, p. 315.
46 - See also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 572: Certain Delegations would have preferred to retain the possibility of extending [the three-month limit] in the special case of prisoners indicted with offences against the laws and customs of war, arguing that it was more difficult to try these prisoners equitably in war time than after the end of hostilities. In reply, it was pointed out that by virtue of the principle according to which a prisoner shall be tried without delay and shall be considered innocent until he is proved guilty, he must be released if he has not been brought before a Court within three months. On the other hand, there was nothing in the Conventions to prevent prisoners coming up for trial at a later date; they may even be accommodated in other camps so as to avoid all possibilities of obtaining false witnesses.
47 - Ibid. p. 518.
48 - Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. II, 17th meeting, p. 68.
49 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 518. A particularly stirring argument in this regard was made by the US delegate; see Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. II, 17th meeting, p. 71–72, which reads, in part: If you cannot successfully bring him to trial within three months, then we suggest, to avoid all abuses, that you release him from confinement – because he is not a convicted criminal – and if, at some later date, you have enough evidence to bring him to trial, you may do so. This procedure in no way prejudices the Detaining Power’s right ultimately to bring him to trial when prepared. But we think, if you create a right in a Detaining Power to say, ‘You committed – or we think you committed – a war crime, we are going to keep you in jail and we are going to keep you indefinitely,’ you tear up this Convention, because it gives the right on a suspicion to deprive a man of the rights of the Convention during the period of the entire war. For that reason, the sub-committee, after laborious and conscientious consideration of this question, decided to put the limitation of three months on a prisoner awaiting trial.
50 - In situations in which a prisoner of war is transferred to another Power to face judicial proceedings, the Detaining Power must comply with Article 12, which requires the transferring State to assure itself of the willingness and ability of the receiving Power to apply the Convention. This includes the rules of the present Chapter on penal and disciplinary sanctions. Thus, a Detaining Power may not transfer a prisoner of war if ‘there is a real risk that any trial in the receiving State would be before a court (whether military or not) lacking the necessary independence and impartiality, or where the treatment of the POW would infringe GC [Geneva Convention] III and/or its human rights obligations’; Rowe, 2015, pp. 1036–1037.
51 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 479. See also para. 4032 of this commentary.
52 - See also Rowe, 2014, p. 315.
53 - For examples of military penal laws that provide for the deduction of time spent in confinement from the period of imprisonment, see Botswana, Geneva Conventions Act, 1970, Article 9; India, Geneva Conventions Act, 1960, Article 11(a); Malaysia, Geneva Conventions Act, 1962, as amended, Article 7(11); Uganda, Geneva Conventions Act, 1960, Article 6; and United Kingdom, Geneva Conventions Act, 1957, as amended, section 5(1). See, however, Russian Federation, Criminal Code, 1996, as amended, Article 72, paras 3, 3.1, 3.2, 3.3 and 3.4., which has different rates of deduction of pretrial confinement from the penalty imposed.
54 - Report of the Conference of Government Experts of 1947, p. 208. However, in discussions at the committee level at the 1949 Diplomatic Conference, the United Kingdom made a reservation to this paragraph, stating that it ‘was contrary to one of the basic principles of British law’; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 327.
55 - Geneva Convention on Prisoners of War (1929), Article 47. See also Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, p. 142.
56 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 317.
57 - Levie, p. 332 (fn. 82) has criticized this language, stating that it ‘is either redundant, or requires that the prisoner of war be given dual credit for pretrial confinement’. However, he does not seem to envisage the term ‘penalty’ as encompassing measures beyond imprisonment.
58 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 479.
59 - See the commentaries on Articles 97 and 98.
60 - See Article 97(1).
61 - See e.g. United States, Manual for Courts Martial, 2019, chapter III, Rule 304(f): Pretrial restraint is not punishment and shall not be used as such. No person who is restrained pending trial may be subjected to punishment or penalty for the offense which is the basis for that restraint. Prisoners being held for trial shall not be required to undergo punitive duty hours or training, perform punitive labor, or wear special uniforms prescribed only for post-trial prisoners. This rule does not prohibit minor punishment during pretrial confinement for infractions of the rules of the place of confinement.
62 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 496 and 508
63 - See ibid. p. 496 (United Kingdom).
64 - For a discussion of solitary confinement, see the commentary on Article 87, para. 3711.