Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 107 : Notification of judgments and sentences
Text of the provision*
1. Any judgment and sentence pronounced upon a prisoner of war shall be immediately reported to the Protecting Power in the form of a summary communication, which shall also indicate whether he has the right of appeal with a view to the quashing of the sentence or the reopening of the trial. This communication shall likewise be sent to the prisoners’ representative concerned. It shall also be sent to the accused prisoner of war in a language he understands, if the sentence was not pronounced in his presence. The Detaining Power shall also immediately communicate to the Protecting Power the decision of the prisoner of war to use or to waive his right of appeal.
2. Furthermore, if a prisoner of war is finally convicted or if a sentence pronounced on a prisoner of war in the first instance is a death sentence, the Detaining Power shall as soon as possible address to the Protecting Power a detailed communication containing:
(1) the precise wording of the finding and sentence;
(2) a summarized report of any preliminary investigation and of the trial, emphasizing in particular the elements of the prosecution and the defence;
(3) notification, where applicable, of the establishment where the sentence will be served.
3. The communications provided for in the foregoing subparagraphs shall be sent to the Protecting Power at the address previously made known to the Detaining Power.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
4164  Article 107 requires that the Detaining Power submit to the Protecting Power two types of communication concerning any judgments and sentences pronounced on an accused prisoner of war. The first type is a summary communication to be despatched immediately following any judgment or sentence passed, even if it is not final. This communication must include a summary of the judgment and sentence and should indicate whether the prisoner has the right of appeal, as provided for in Article 106. The same communication must also be sent to the prisoners’ representative and the accused prisoner of war, if the latter was not present at the moment of sentencing. The second type is a more detailed communication that must be made in the event of a final conviction or if the death penalty has been pronounced, irrespective of the instance that pronounced it. The detailed communication must include the precise wording of the finding and sentence, a summarized report of any preliminary investigation and of the trial, and notification of the establishment where the sentence will be served.
4165  The two types of communications required by Article 107 are important procedural steps enabling the Protecting Power to carry out its role in supervising the application of the Convention, both during the trial of an accused prisoner of war and upon sentencing. The detailed communication is particularly crucial where the death sentence has been pronounced. Under Article 101, the death penalty may not be executed until at least six months have elapsed from the date when the Protecting Power receives the detailed communication provided for in Article 107(2).
4166  Given that Parties to most international armed conflicts occurring since the adoption of the 1949 Conventions have not appointed Protecting Powers, the communication referred to in Article 107 may be made to the ICRC. Indeed, the organization has already acted in this capacity based on its right of humanitarian initiative enshrined in Article 9.[1]
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B. Historical background
4167  Articles 65 and 66(1) of the 1929 Geneva Convention on Prisoners of War dealt with communication to the Protecting Power of a sentence passed against a prisoner of war. Article 65 required the Detaining Power to communicate such sentences ‘immediately’ to the Protecting Power. Under Article 66(1), a detailed communication had to be sent to the Protecting Power ‘as soon as possible’ where a death sentence had been pronounced.
4168  During the Second World War, the Parties interpreted these rules differently. Some of the differences touched on the type of judicial decisions that were to be the subject of the communication, for example whether communication was to be made only in the case of final judgments or also in the case of other judicial decisions, such as those arising from judicial investigation, decisions on motions or dismissal of charges. Others concerned the scope of the communication, for example whether it was to include only the wording of the judgment or also the grounds adduced.[2]
4169  At the Conference of Government Experts in 1947, delegations agreed unanimously that ‘the Protecting Power should receive the fullest possible information about the proceedings and the result of the trial’.[3] It is in the interest of the Protecting Power to be ‘informed as soon as possible of any judgment relating to PW (particularly in order to lodge an appeal within the given time-limit)’.[4] At the same time, there was general recognition that the Detaining Power may require a period of time before the full details of the judgment can be transmitted to the Protecting Power.[5] The government experts decided that, to accommodate both of these needs, provision should be made for two types of communication, one summary and the other detailed,[6] and sought to add clarity to the 1929 text as regards both types of communication.[7]
4170  The essential features of the procedure adopted at the Diplomatic Conference in 1949 are not very different from that in the 1929 Convention since both provide for two kinds of communication:
a. A summary communication in the case of all judgments and sentences;
b. A detailed communication, to be made
i. if the prisoner of war is finally convicted or,
ii. if a death sentence is pronounced irrespective of the instance.
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C. Paragraph 1: Summary communication
1. First sentence: Purpose, content and primary addressee of the communication
4171  The first sentence of Article 107(1) specifies that a summary communication of ‘any judgment and sentence pronounced upon a prisoner of war’ (emphasis added) must be transmitted to the Protecting Power.[8] This is an improvement on Article 65 of the 1929 Convention, which referred only to ‘sentences pronounced against prisoners of war’. The communication referred to in Article 107(1) must thus include a summary of the decision/judgment or sentence that is the subject of the communication. The summary communication must also include an indication of whether the prisoner concerned has the right to appeal with a view to the quashing of the sentence or the reopening of the trial.[9] This provision reinforces the right of appeal contained in Article 106, which requires the Detaining Power to inform the accused prisoner of war of that right and of the time limit within which the appeal must be lodged. For its part, Article 107(1) requires the Detaining Power to inform the Protecting Power and the prisoners’ representative of the accused’s right to appeal against a decision or sentence. Together, Articles 106 and 107 seek to ensure that accused prisoners of war are informed of their right to appeal and that the Protecting Power and prisoners’ representative are able to assist them in doing so. It should be recalled that the rights and means of defence mentioned in Article 105 apply to appeals.[10]
4172  The language concerning the right of appeal did not feature in the 1929 text and was inserted at the 1949 Diplomatic Conference at the suggestion of several delegations.[11] The wording of the French text (‘le droit de recourir en appel, en cassation ou en révision’) is identical to that in Article 106; the English text of Article 107(1), however, contains minor differences: ‘the right of appeal with a view to the quashing of the sentence or the reopening of the trial’, whereas Article 106 speaks of ‘the right of appeal or petition … with a view to the quashing or revising of the sentence or the reopening of the trial’ (emphasis added).
4173  According to the first sentence of Article 107(1), the summary communication must be despatched ‘immediately’ to the Protecting Power. Thus, the Protecting Power is to be notified as soon as a sentence or judgment involving an accused prisoner of war has been pronounced. This communication must be made even if the Protecting Power has representatives present during the proceedings. This interpretation is supported by the third sentence of Article 107(1), which requires that the Detaining Power provide the same summary communication to the prisoner of war, but only if the sentence was not pronounced in their presence.
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2. Second sentence: Communication to the prisoners’ representative
4174  In addition to the Protecting Power, the second sentence of Article 107(1) requires that the summary communication be made to the prisoners’ representative. This is a new requirement that was absent from the 1929 text. The provision was the result of a suggestion by a National Red Cross Society,[12] followed up by the ICRC and adopted by the 1949 Diplomatic Conference. In some camps during the Second World War, the prisoners’ representatives played an important role in providing legal assistance. Indeed, they may be better placed than the Protecting Power to give a prisoner of war advice regarding the right of appeal or petition.[13]
4175  Article 104(3) contains a similar requirement to notify the prisoners’ representative of judicial proceedings.
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3. Third sentence: Communication to the accused prisoner
4176  According to the third sentence of Article 107(1), if the sentence was not pronounced in the accused’s presence, the Detaining Power must also send them a copy of the summary communication. This requirement is intended to cover situations in which the Detaining Power’s legislation allows for sentences to be pronounced without the accused being present, rather than cases of contumacy.[14] However, the wording of this provision must not be taken to diminish the right of the accused to be present at their trial.[15]
4177  It is important to recall in this context that although in some domestic legal systems a sentence or judgment may be passed in the absence of the accused, the right to a public judgment is a judicial guarantee in international humanitarian law[16] and is enshrined in the law of many States.[17] Humanitarian law provides no exceptions to the requirement of a publicly pronounced judgment, although it does not explicitly require a ‘public’ trial.[18]
4178  Article 107 furthermore requires that the summary communication sent to the accused be in a language they understand. The prisoner is entitled to have full knowledge of the terms of any judgment and sentence, including the right to appeal it. This provision is similar to those contained in Articles 104 and 105(4).[19]
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4. Fourth sentence: Communication of the prisoner’s decision regarding the right of appeal
4179  The fourth sentence of Article 107(1) contains the final component of the summary communication and is the result of an amendment proposed by the delegation of the Netherlands at the 1949 Diplomatic Conference.[20] It specifies that the Detaining Power must include in the summary communication information concerning the decision of the prisoner of war to use or waive their right of appeal. If the prisoner makes a decision regarding this right immediately after the sentence is pronounced, this information should be included in the summary communication. Otherwise, a separate communication must be sent, since the communication indicating the judgment and sentence may not be delayed for any reason. As soon as the Protecting Power is informed of the prisoner’s decision to exercise their right of appeal, it will, if necessary, take the measures provided for in Article 105(2).
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D. Paragraph 2: Detailed communication
4180  Article 107(2) provides that a detailed communication must be addressed to the Protecting Power if a prisoner of war is finally convicted or is sentenced to death. The present provision is a marked improvement on Article 66(1) of the 1929 Convention in two respects. First, Article 66 made provision for a detailed communication only in the case of a death sentence. Second, whereas the 1929 text stated that the communication should set forth ‘in detail the nature and circumstances of the offence’, the present article is more explicit and specifies the contents of the communication, as will be seen below.
4181  The detailed communication is particularly important in cases where the death penalty is pronounced. Article 101 prohibits the execution of the death penalty until at least six months have elapsed from the date when the Protecting Power receives the notification under Article 107(2).[21] During this period, the Protecting Power may be able to take steps seeking to mitigate the sentence, either on behalf of the Power on which the prisoner depends or on its own standing.[22]
4182  At the 1949 Diplomatic Conference, certain delegations would have preferred that the detailed communication be sent as soon as a sentence on a prisoner of war was pronounced in a court of first instance. However, it was decided to retain this proposal only in the case of the death penalty, and that in all other cases it was preferable that the detailed communication be sent only when the whole proceedings, including any appeals, were concluded.[23]
4183  The requirement to send a detailed communication does not in any way relieve the Detaining Power of its obligation to send a summary communication to the Protecting Power. Therefore, where a final judgment has been rendered in the case of a prisoner of war, the Detaining Power must immediately despatch a summary communication to the Protecting Power, as provided for under paragraph 1, and follow this with the detailed communication ‘as soon as possible’ as per paragraph 2.
4184  Article 66(1) of the 1929 Convention specified that the communication regarding the judgment and sentence must be sent to the Protecting Power ‘for transmission to the Power in whose armed forces the prisoner served’. The drafters of the 1949 text considered that clause unnecessary. However, despite the omission, it is in line with the supervisory functions of the Protecting Power to forward this information to the Power on which the prisoner depends.
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1. Contents of the detailed communication
a. The precise wording of the finding and sentence
4185  The detailed communication must contain the precise wording of the finding and sentence. It thus differs from the summary communication required under paragraph 1, which requires only a summary of the finding/decision and sentence. The draft article adopted by the 17th International Conference of the Red Cross in Stockholm in 1948 referred to ‘the motives and wording of the judgment’.[24] During the Second World War, too often the Protecting Power had been notified of a judgment without any precise indication of the motives or reasoning behind it. As the representative of the ICRC pointed out at the 1949 Diplomatic Conference, knowledge of the motives is of great importance, especially in the case of the death sentence.[25] The words ‘motives and wording’ were subsequently replaced by the phrase ‘precise wording’, i.e. the full text, in accordance with the normal judicial procedure of many countries.[26]
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b. Summarized report of any preliminary investigation and of the trial, emphasizing in particular the elements of the prosecution and the defence
4186  To comply with this requirement, the Detaining Power must ensure it maintains records of preliminary investigations and compiles summaries of trials of prisoners of war. The text proposed by the government experts in 1947 referred to the judgment and the grounds adduced,[27] but the 1949 Diplomatic Conference decided to also take account of common-law procedure by referring instead to the elements of the prosecution and the defence.[28]
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c. Notification, where applicable, of the establishment where the sentence will be served
4187  The Protecting Power must be accurately informed of the place where the prisoner will serve their sentence since this Power is required to exercise supervision in accordance with Articles 108(3) and 126. Therefore, Article 107 requires that this information be included in the communication.
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E. Paragraph 3: Address to which the communications must be sent
4188  The final paragraph of Article 107 requires the Detaining Power to send the communications to the Protecting Power at an address the latter must provide when it agrees to perform the functions entrusted to it under the Conventions. This provision is similar to that contained in Article 104(1).[29]
4189  The address will normally be that of the representative of the Protecting Power who is accredited to the Detaining Power. The requirement concerning the indication of an address may seem superfluous since the Protecting Power has agencies and consulates which are well known. The reason for including this language is twofold. First, communications must be centralized at a single address, and second, during the Second World War some Protecting Powers were obliged, because of their extensive duties, to open a special office for the protection of foreign interests, which was sometimes completely separate from the building in which their regular diplomatic offices were situated.
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F. Absence of Protecting Powers
4190  Article 107 requires that communication of the finding and sentence be sent to the Protecting Power. This raises the question whether, and if so how, this provision may be complied with when no Protecting Power or substitute has been appointed, as has been the case in most international armed conflicts since the adoption of the Conventions in 1949.[30]
4191  The absence of a Protecting Power or a substitute does not diminish the obligation on the Detaining Power to make the summary and detailed communications required by this provision. To comply with this provision, Parties to an international armed conflict should endeavour to appoint a Protecting Power or a substitute. Failing this, they should ensure that the objective of involving a Protecting Power can still be achieved. To do so, they may invite an impartial humanitarian organization, such as the ICRC, to fulfil the same functions.[31] While the ICRC is not explicitly mentioned as an alternative to the Protecting Power under Article 107, it has, both prior to and since 1949, acting on its right of humanitarian initiative as enshrined in Article 9, assisted States in this regard.[32]
4192  Since Article 126 foresees a supervisory role for the ICRC, the organization must also be informed – irrespective of the presence/absence of a Protecting Power – of the establishment where the prisoner of war will serve their sentence so that it may carry out that role. This information should also be transmitted to the national information bureau and the Central Tracing Agency.[33]
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Select bibliography
Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, commentary on Rule 100, https://www.icrc.org/customary-ihl/eng/docs/v1_rul.
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, 1975, 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.

1 - See Introduction, section A.3.e, in particular paras 50–51, and the commentary on Article 9, para. 1316.
2 - Report of the Conference of Government Experts of 1947, p. 229. See also Maurice Bretonnière, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), Paris, 1949, p. 423.
3 - Report of the Conference of Government Experts of 1947, p. 229.
4 - Ibid.
5 - Ibid.
6 - Ibid.
7 - Ibid. pp. 228–230.
8 - For a brief discussion of the use of the terms ‘judgment’ and ‘sentence’ in different legal traditions, see the commentaries on Article 102, para. 4007, and Article 106, para. 4154.
9 - As noted in the commentary on Article 106, para. 4147, the omission of the words ‘or petition’ in the text of Article 107 is probably an oversight.
10 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 521. See the commentary on Article 106, paras 4145 and 4149. See also the commentary on Article 105, para. 4125.
11 - See also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 330, 519 and 524.
12 - See Report of the Conference of Government Experts of 1947, pp. 229–230. The Australian Red Cross had proposed that ‘[s]entences pronounced against prisoners of war shall be communicated immediately to the protecting Power, and to the men’s representative’; Reports and Documents submitted by National Societies to the Preliminary Conference of National Societies of 1946, Document B: Australian Red Cross Society, draft article 69, p. 20.
13 - On the duties of prisoners’ representatives, see Article 80. See also the commentaries on Article 77, para. 3374, and on Article 81(2), para. 3525.
14 - ‘Contumacy’ being defined as ‘contempt of court; the refusal of a person to follow a court’s order or direction’; Bryan A. Garner (ed.), Black’s Law Dictionary, 11th edition, Thomson Reuters, 2019, p. 418.
15 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 512. See also the commentaries on Article 99, para. 3977, and on Article 105, section C.1.e, and Henckaerts/Doswald-Beck, commentary on Rule 100, pp. 366–367.
16 - See Additional Protocol I, Article 75(4)(i). See also the commentary on Article 130, para. 5282. While the Geneva Conventions do not explicitly state it, this rule may nevertheless be implicit in Articles 84(2) and 105(5) of the Third Convention, Article 74(1) of the Fourth Convention and common Article 3(1)(d). See also Henckaerts/Doswald-Beck, commentary on Rule 100, pp. 368–369.
17 - See e.g. Belarus, Criminal Procedure Code, 1999, Article 15; Colombia, Constitution, 1991, as amended, Article 29; Ethiopia, Constitution, 1995, Article 20; Kuwait, Constitution, 1962, Article 165; Poland, Constitution, 1997, Article 45; Rwanda, Organic Law concerning the Transfer of Cases to Rwanda from the ICTR and from Other States, 2007, Article 13; Uganda, Criminal Procedure Code, 1950, section 38(1), and Trial on Indictments Act, 2008, as amended, section 85(1); and Zimbabwe, Constitution, 2013, as amended, Article 69.
18 - See Article 105(5), which deals with the right of the Protecting Power to attend trials, except where the trial is held ‘in camera in the interests of State security’.
19 - See the commentaries on Article 104, para. 4070, and on Article 105(4), section F, in particular para. 4130. See also the commentary on Article 105, para. 4097 (discussing the right to interpretation if deemed necessary by the prisoner of war).
20 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 330.
21 - See the commentary on Article 101, paras 3996–3997.
22 - Maia/Kolb/Scalia, p. 429.
23 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 572.
24 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 96, p. 89.
25 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 513.
26 - See ibid. p. 519.
27 - See Report of the Conference of Government Experts of 1947, p. 229.
28 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 572.
29 - See the commentary on Article 104, para. 4062.
30 - See the commentary on Article 8, section H.
31 - See Introduction, section A.1.e, in particular paras 50–51, and the commentary on Article 9, para. 1316.
32 - See ibid. and Rosas, pp. 455–456. For example, in 1970, in the absence of a Protecting Power, the authorities of the Republic of Vietnam notified the ICRC of indictments, trials and sentences of prisoners of war (i.e. the notifications required by Articles 104 and 107); see ICRC, Annual Report 1970, ICRC, Geneva, p. 39. In addition, during the 1980–1988 Iran-Iraq conflict, the ICRC noted that prisoners were tried and received harsh sentences without the organization being notified; see ‘External Activities’, International Review of the Red Cross, Vol. 24, No. 239, March–April 1984, pp. 102–119, at 114.
33 - See Articles 122–123.