Treaties, States Parties and Commentaries
  • Print page
Commentary of 2020 
Article 97 : Execution of disciplinary punishment: Premises
Text of the provision*
(1) Prisoners of war shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.) to undergo disciplinary punishment therein.
(2) All premises in which disciplinary punishments are undergone shall conform to the sanitary requirements set forth in Article 25. A prisoner of war undergoing punishment shall be enabled to keep himself in a state of cleanliness, in conformity with Article 29.
(3) Officers and persons of equivalent status shall not be lodged in the same quarters as non-commissioned officers or men.
(4) Women prisoners of war undergoing disciplinary punishment shall be confined in separate quarters from male prisoners of war and shall be under the immediate supervision of women.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
3919  Article 97 is the first of two provisions regulating the execution of the disciplinary punishment of confinement. Although the heading of Article 97 is a general one, it is clear from the content of the rules it contains that Article 97 deals only with punishment by confinement, and not with the other disciplinary penalties listed in Article 89.[1] Whereas Article 97 sets out minimum standards primarily with regard to the premises in which prisoners of war may serve disciplinary confinement, Article 98 lays down minimum standards of treatment. Together, these provisions embody ‘the essential safeguards to be accorded to prisoners of war while serving disciplinary sentences’.[2]
3920  Under the Third Convention, the basic principle is that prisoners of war undergoing disciplinary sanctions ‘shall not be subjected to more severe treatment than that applied in respect of the same punishment to members of the armed forces of the Detaining Power of equivalent rank’.[3] Yet, rather than make protection entirely dependent on the standards of the Detaining Power, the drafters decided to specify a number of additional safeguards.[4] Article 97 prohibits the transfer of prisoners of war to penitentiary establishments to serve their punishment; it requires that prisoners of war be held in places conforming to the sanitary requirements set out in the Convention enabling individuals to keep themselves in a state of cleanliness; and it prescribes separate quarters for officers and for women prisoners of war. In addition, while undergoing confinement, women prisoners must be under the immediate supervision of women.
Back to top
B. Historical background
3921  In the nineteenth and early twentieth centuries, the execution of disciplinary punishments, including confinement, was regulated solely by the laws, regulations and orders applicable in the Detaining Power’s armed forces.[5] Experience during the First World War showed, however, that this approach provided insufficient protection and that international regulations governing the execution of disciplinary punishment were necessary.[6] Hence, the 1929 Geneva Convention on Prisoners of War included most of the protections that are now found in Article 97.[7] The two substantive innovations in the 1949 Convention – the references to Articles 25 and 29 regarding sanitary requirements and prisoners’ hygiene, and the specific protections for women prisoners of war undergoing disciplinary confinement – were suggested by the Sub-Committee on Penal Sanctions during the 1949 Diplomatic Conference and adopted by States without much debate.[8]
Back to top
C. Paragraph 1: Prohibition of transfer to penitentiary establishments
3922  Although domestic prisons and other correctional facilities may afford better material conditions than a place of confinement in a prisoner-of-war camp, Article 97(1) prohibits the transfer of prisoners of war to penitentiary establishments to undergo disciplinary punishment.[9] Article 97(1) does not specify where the disciplinary sentence must be served. However, Article 22(1) prohibits internment of prisoners in a penitentiary establishment, which includes the execution of a disciplinary penalty.[10] Article 97(1) does not prohibit the transfer of an offender from one prisoner-of-war camp to another, provided that the latter offers all the guarantees laid down by the Convention. This applies also to transfers from a labour camp to the main camp. Practice from several international armed conflicts since the Second World War shows that prisoners of war are typically placed in special facilities intended for confinement within the prisoner-of-war camp.
3923  The provision seeks to preserve prisoners’ military honour and dignity by not mixing them with common criminals. Consequently, it is also prohibited to transfer common criminals to facilities used for disciplinary confinement in prisoner-of-war camps.
Back to top
D. Paragraph 2: Sanitary requirements
3924  Article 97(2) provides basic norms to ensure that prisoners of war serve their disciplinary punishments in adequate hygienic conditions. The first sentence concerns the quarters in which prisoners are confined. It requires that all such premises conform to the sanitary requirements set forth in Article 25. This means that cellars, basements and other similar premises may not normally be used for disciplinary punishment, unless they afford the minimum standards required by the Convention. The second sentence prescribes that prisoners of war undergoing disciplinary punishment must be enabled to keep themselves in a state of cleanliness, in conformity with Article 29.[11] The present article is not only concerned with the provision of and access to sanitary installations, but also requires that prisoners be granted the necessary facilities and time to take care of their hygiene.[12]
3925  The references to the general standards of Articles 25 and 29, which apply to all prisoners of war, make clear that prisoners undergoing confinement should have the same facilities for their personal cleanliness as their fellow prisoners. Depriving prisoners undergoing disciplinary punishment of the fundamental rights guaranteed to all prisoners of war by the Convention cannot be considered as an inevitable consequence of their confinement, as it would amount to an additional punishment of a nature not permitted by Article 89.
3926  Providing premises and facilities to ensure adequate sanitary and hygienic conditions for prisoners of war undergoing disciplinary confinement can be a challenge for the Detaining Power. The sanitary conditions witnessed by the ICRC in conflicts since the Second World War have generally been poor, with frequent overcrowding and little or no possibility to wash.[13] However, limited resources or other obstacles cannot be an excuse for lowering the standards required by the Convention. Article 97(2) makes it clear that, if those standards cannot be met, camp commanders must resort to one of the other disciplinary punishments that are permissible under Article 89.
Back to top
E. Paragraph 3: Officers
3927  Article 97(3) provides that officers and persons of equivalent status must not be lodged in the same quarters as non-commissioned officers or rank and file. In combination with Article 98(2), this provision re-emphasizes the privileged treatment required for prisoners of war who are officers.[14]
3928  One of the essential prerogatives of officers and persons of equivalent status in all armed forces is to have accommodation separate from that of the other ranks, and this prerogative also applies in case of confinement. Officers frequently serve a punishment of confinement in their quarters, and if that is not possible, they must be assigned to premises which offer at least all the safeguards prescribed by the present article.
Back to top
F. Paragraph 4: Women
3929  Article 97(4) contains two cumulative and strict protections for women prisoners of war undergoing disciplinary punishment: first, they must be confined in separate quarters from men prisoners of war; and second, they must be under the immediate supervision of women.[15] This provision is consistent with the general principle that women must be treated with all the regard due to their sex, as well as according to the specific requirements that they must be provided with dormitories and sanitary facilities that are separate from men prisoners.[16] While this provision was newly inserted in 1949 in response to women joining the armed forces during the Second World War, it has increased significantly in importance as more and more women serve in the armed forces.
Back to top
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.
Kalshoven, Frits and Zegveld, Liesbeth, Constraints on the Waging of War: An Introduction to International Humanitarian Law, 4th edition, ICRC/Cambridge University Press, 2011, pp. 53–57.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 315–342.
– (ed.), Documents on Prisoners of War, International Law Studies, U.S. Naval War College, Vol. 60, 1979.

1 - This interpretation finds some support in the preparatory work for the Convention, where, with reference to a draft of paragraph 4, one delegate referred to the provision as regarding ‘the imprisonment of women prisoners of war’; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 494 (United Kingdom). The authors of the 1960 ICRC Commentary, who had participated in the 1949 Diplomatic Conference, had already accepted this interpretation; see Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 462.
2 - Statement by the delegate of the ICRC at the 1949 Diplomatic Conference; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 494.
3 - Article 88(1).
4 - In addition to Articles 97 and 98, the Third Convention contains the prohibition, in Article 87(3), of collective punishment for individual acts, corporal punishments, imprisonment in premises without daylight, and any form of torture or cruelty; the prohibition, in Article 89, of any disciplinary punishments that are inhuman, brutal or dangerous to the health of prisoners of war; and the imposition, in Article 90, of a maximum duration of 30 days for any punishment. See also Levie, p. 327.
5 - See e.g. Hague Regulations (1907), Article 8(1). See also Hague Regulations (1899), Article 8(1); Brussels Declaration (1874), Article 28(1); and Oxford Manual (1880), Article 62.
6 - The 10th International Conference of the Red Cross requested that (‘an international code of disciplinary and penal measures applicable to‘[u]n code international de mesures disciplinaires et pénales à appliquer aux prisonniers de guerre fera partie intégrante [d’une Convention Diplomatique sur les prisonniers de guerre, les déportés, les évacués et les réfugiés]’, prisoners of war be an integral part [of a Diplomatic Convention on prisoners of war, deportees, evacuees and refugees]’); 10th International Conference of the Red Cross, Geneva, 1921, Res. XV, Code des Prisonniers de Guerre, Déportés, Evacués et Refugiés. See also Patrick D. Pflaum, ‘A Matter of Discipline and Security: Prosecuting Serious Criminal Offenses Committed in U.S. Detention Facilities Abroad’, Military Law Review, Vol. 194, December 2007, pp. 66–131, at 73, and Georges Werner, Les prisonniers de guerre, Librairie Hachette, 1929, pp. 56–57.
7 - See Geneva Convention on Prisoners of War (1929), Articles 56(1)–(3) and 49.
8 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 307, 311 and 494–495.
9 - See Report of the Conference of Government Experts of 1947, p. 218. For a more general discussion of the prohibition of interning prisoners of war in penitentiary facilities, see the commentary on Article 22, section C.2. See also the commentary on Article 108, para. 4201, for prisoners of war sentenced for a criminal offence.
10 - See e.g. Japan, Act on the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations, 2004, Article 52(1). This differs from prisoners convicted after a judicial proceeding, who will serve their sentences in the same establishments as members of the armed forces; see Article 108 of the present Convention.
11 - References to Articles 25 and 29 were included in the draft convention during the 1949 Diplomatic Conference. Article 56(2) and (3) of the 1929 Geneva Convention on Prisoners of War required that punishment be served in establishments that ‘conform to the requirements of hygiene’ and that provide facilities enabling prisoners ‘to keep themselves in a state of cleanliness’. Government experts meeting in 1947 to review the 1929 Convention recommended specifying these provisions by reference to ‘certain essential guarantees, in particular concerning bedding and hygiene’; Report of the Conference of Government Experts of 1947, p. 218. The approach taken during the 1949 Diplomatic Conference was even broader.
12 - For a further discussion of the interpretation of Article 29, see the commentary on that article, section E.
13 - For an example gleaned from a public source, 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, para. 242, which found that quarters used for disciplinary confinement in Iran were overcrowded.
14 - This corresponds with the general rule on the treatment of officers set out in Article 44.
15 - This rule is also confirmed in several military manuals; see e.g. Regulations Governing the Penal Confinement of Prisoners of War of the United Nations Command, 20 October 1951, para. 5, reprinted in Levie, 1979, Document No. 120, pp. 610–614, at 612, and more recently, United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 191, para. 8.129, and United States, Law of War Manual, 2016, p. 622, para. 9.27.6.1. See Article 108(2) for the parallel provision on penal sanctions. With regard to ordinary penitentiary establishments, Rule 81 of the non-binding Mandela Rules (2015) specifies that women staff members must also ‘have the custody of the keys of all that part of the prison’ where women are held.
16 - See Articles 14(2) and 25(4).