Treaties, States Parties and Commentaries
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Commentary of 1958 


The provision under which any sentence of imprisonment must be served in the occupied territory itself is based on the fundamental principle forbidding deportations laid down in Article 49 .
The recommendation that protected persons convicted should be separated from other detainees takes into account the fact which has often been emphasized (2), that persons guilty of offences against the penal [p.364] law of Occupying Powers have often acted for patriotic reasons and could not be considered as similar to ordinary criminals. The words "if possible", however, admit that exceptional cases may occur where for material or practical reasons such separation would not be practicable.
The conditions of food and hygiene of the detained persons must be sufficient to keep them in good health and will at least be equal to those obtaining in prisons in the occupied country, but the treatment given to protected persons in detention must take into account the principles of humanity and respect for human dignity in all places and all circumstances. Thus local conditions must not serve as a basis of comparison unless they conform to the requirements of humanity. That, in any case, follows from the general provisions of Article 27 .
The rules laid down in this paragraph are made more precise and extensive by the six following paragraphs, granting detained persons a number of rights and guarantees which must be respected in all circumstances and consequently incorporated in national legislation. What was said with regard to Article 5 , which allows of certain exceptions in individual cases, should be recalled here.


This paragraph (3) brings the law of war into conformity with a principle which finds acceptance in the penal legislation of all civilized States.
It should be recalled that Article 16 , which grants special protection to the wounded and sick, to invalids and to pregnant women, is general in scope. It is also applicable when those categories of person are detained.
Article 108 of the Third Convention contains an almost identical provision for the protection of prisoners of war.


This clause reaffirms the principles laid down in Articles 27 and 58 (respect for religious convictions and practices, rights of ministers of religion). It corresponds to Articles 33 and 34 of the Third Convention.


This provision should be compared with Article 27, paragraph 2 , which states that "women shall be especially protected against any [p.365] attack on their honour, in particular against rape, enforced prostitution or any form of indecent assault".
The obligation to give women separate quarters is also contained in Article 25 of the Third Convention.


The provisions laid down are based in particular on the guarantees contained in Article 50 .


The assistance of the Protecting Power, which may be given immediately the investigation begins and during the Court proceedings, is here extended to cover the period during which the sentence is served until the release of those detained.
In addition to their right to be visited by the representatives of the Protecting Power, those detained may also be visited by delegates of the International Committee of the Red Cross, who will have access to prison establishments on the same basis as the representatives of the Protecting Power.
The humanitarian activities of the International Committee are of particular importance when those detained have not the benefit of assistance from a Protecting Power to safeguard their interests and ensure that the provisions of the Convention are carried out (5).
The paragraph states that the right to be visited shall be "in accordance with the provisions of Article 143 ", an Article which lays down detailed regulations concerning the right of visit and envisages among other things, the possibility of visitors being able to converse with those detained without witnesses.


These provisions correspond to the rights laid down in Articles 59 and 62 (collective relief and individual relief) and represent a valuable guarantee for those detained, and one which may improve their lot.
One parcel per month is laid down as lower limit. It is recommended that the Occupying Power should allow a higher number of parcels in view of the exclusively humanitarian character of the relief. It should, however, be recalled that the allowing of relief parcels does not in any way mean that the Occupying Power is not called upon to [p.366] supply the minimum amount of food and attention mentioned in the first paragraph of this Article.
It should be added that the Diplomatic Conference did not consider it necessary to insert a provision specifically giving those detained the right to carry on correspondence with their families, since it was thought that the matter was already dealt with in Article 25 (6).

Notes: (1) [(1) p.363] For the origins of this Article, see ' Final
Record, ' Vol. I, p. 124; Vol. II-A, pp. 675, 771-772,
790, 835; Vol. II-B, p. 439;

(2) [(2) p.363] See in particular p. 342;

(3) [(1) p.364] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-B, p. 439;

(4) [(2) p.364] See ibid., Vol. II-A, p. 835;

(5) [(1) p.365] See Commentary on Article 11 (Substitutes for
Protecting Powers);

(6) [(1) p.366] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 771-772;