Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 108 : Execution of judicial penalties: Premises and essential safeguards
Text of the provision*
(1) Sentences pronounced on prisoners of war after a conviction has become duly enforceable, shall be served in the same establishments and under the same conditions as in the case of members of the armed forces of the Detaining Power. These conditions shall in all cases conform to the requirements of health and humanity.
(2) A woman prisoner of war on whom such a sentence has been pronounced shall be confined in separate quarters and shall be under the supervision of women.
(3) In any case, prisoners of war sentenced to a penalty depriving them of their liberty shall retain the benefit of the provisions of Articles 78 and 126 of the present Convention. Furthermore, they shall be entitled to receive and despatch correspondence, to receive at least one relief parcel monthly, to take regular exercise in the open air, to have the medical care required by their state of health, and the spiritual assistance they may desire. Penalties to which they may be subjected shall be in accordance with the provisions of Article 87, third paragraph.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
4193  Article 108 contains rules on the treatment of prisoners of war who have been sentenced once judicial proceedings have definitively concluded. It requires that they serve their sentences in the same establishments and under the same conditions as members of the armed forces of the Detaining Power, while providing that these conditions must conform to the requirements of health and humanity. The article further lays down certain safeguards that must be afforded to convicted prisoners of war who are sentenced to a period of deprivation of liberty/imprisonment. It also contains an explicit rule relating to the protection of women prisoners of war in such circumstances: they must be confined in separate quarters and under the immediate supervision of women.
4194  Several rules in the section on general provisions in Chapter III are relevant to the interpretation of Article 108, as they also apply to the imposition of penalties and the execution of sentences. These include, in particular, Articles 87 and 88, which provide general guidance on penalties and their execution and which apply to both disciplinary and judicial proceedings.
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B. Historical background
4195  The essence of Article 108 finds its origins in Article 67 of the 1929 Geneva Convention on Prisoners of War. Article 67 simply referenced Article 42 of the same Convention, which provided that convicted prisoners of war retained the right to lodge complaints regarding the conditions of their captivity to the military authorities in whose hands they found themselves or to the representatives of the Protecting Power. However, the conditions in which such prisoners were held during the Second World War highlighted the need to enhance their protection by establishing additional minimum safeguards.[1]
4196  A revised version of Article 67 was presented to the 17th International Conference of the Red Cross in Stockholm in 1948.[2] The draft text introduced the ‘principle of assimilation’ in relation to the premises in and conditions under which sentences must be served, subjected such conditions to the requirements of hygiene and humanity and expanded on the safeguards benefiting prisoners of war deprived of their liberty.[3] Apart from minor changes in wording, the only substantive amendment made to the revised article at the Diplomatic Conference in 1949 was the insertion of a provision specifically addressing the protection of women prisoners of war.[4] Accordingly, Article 108 aims to ensure that convicted prisoners of war enjoy minimum safeguards applicable in all countries.[5]
4197  Article 67 of the 1929 Convention reflected a custom whereby persons convicted of offences against the laws and customs of war lost their prisoner-of-war status and, together with it, the benefits of the Convention.[6] The drafting history of Article 108 reveals significant disagreement between States on this point. Many argued that a convicted individual retains prisoner-of-war status and the protections of the Convention until they are released and repatriated, a position reflected in Article 85, which states that ‘[p]risoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention’. Conversely, a small group of States believed that the approach in the 1929 provision remained valid. These States made reservations to Article 85, applicable to crimes committed before capture.[7]
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C. Paragraph 1: General conditions for the serving of sentences
1. Penalties
4198  The drafters of the Convention attempted to structure Chapter III on penal and disciplinary sanctions in such a way that each of the separate sections within it would function as a self-contained unit.[8] Their aim was practical, to facilitate the task of camp administrators, who would need only to refer to one specific section of the chapter when sanctioning a prisoner of war for a disciplinary or judicial offence. In this, the drafters were not entirely successful, however, and Article 108 must therefore be read in conjunction with several rules in Chapter III, Section I, on general provisions, notably Articles 85, 87 and 88.
4199  The language of Article 108 indicates that it applies primarily to prisoners of war sentenced to imprisonment following judicial proceedings. However, it is important to recall that penalties other than imprisonment, such as fines, forfeiture of pay/allowances, fatigue duties and, in some countries, the death penalty, are available to the Detaining Power in relation to its own forces, and therefore prisoners of war could be sentenced to one of these penalties in lieu of or in addition to confinement. The discussion in the following sections applies, where relevant, also to penalties other than confinement.
4200  The drafting history of Article 108 clearly shows that it was intended to apply also to children taken as prisoners of war.[9] However, in the years since the adoption of the Geneva Conventions, international law has seen the development of a set of rules prohibiting the recruitment and use of children in hostilities.[10] Complying with these rules should ordinarily ensure that most children do not become prisoners of war.[11] Nevertheless, in the event that children, meaning persons under 18 years old, are held under the Third Convention, the ICRC holds the view that, based on other humanitarian law treaties, children are entitled to special respect and protection, including in the matter of disciplinary or judicial proceedings.[12] Given the intervening developments in law and practice, norms and standards of the child justice system should inform both sentencing decisions concerning children and their treatment once sentenced.[13] These include norms and standards recognizing that, in cases where a child prisoner of war has been unlawfully recruited by the armed forces of an opposing Party, they are a victim of a violation of international law and should be treated accordingly.[14]
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2. First sentence: The principle of assimilation in the execution of judicial sentences
4201  The first sentence of Article 108(1) is a specific application of the principle of assimilation in penal and disciplinary matters spelled out in Article 82.[15] Accordingly, convicted prisoners of war must serve their sentences in the same establishments and under the same conditions as members of the armed forces of the Detaining Power. Thus, prisoners of war undergoing judicial punishment may be transferred to penitentiaries designated for convicted military personnel belonging to the Detaining Power.[16] It should be recalled that as a result of the principle of assimilation, prisoners of war benefit indirectly from the relevant domestic legal framework, as informed by applicable international law, to the same extent as members of the Detaining Power’s armed forces.[17]
4202  Article 108 applies to sentences pronounced ‘after a conviction has become duly enforceable’ and refers to the ultimate conclusion of a trial, including after any appeals that may have been entered by the prisoner have been exhausted.[18]
4203  The requirement that convicted prisoners of war serve their sentences in the same establishments and under the same conditions as military offenders operates to protect prisoners of war from being subjected to harsher treatment and conditions than those imposed on the Detaining Power’s own personnel.[19] It also aims to avoid enemy personnel serving a sentence alongside ordinary criminal detainees of the same nationality as the Detaining Power. Imprisoning convicted prisoners of war in the same establishments as ordinary criminal detainees carries a high risk of the prisoners of war being subjected to various forms of discrimination, segregation and even physical assault because first, they are military personnel, and second, they belong to an enemy State. Accordingly, regardless of the type of facility in which a prisoner of war is incarcerated, the Detaining Power must be conscious that these factors may make the prisoners of war vulnerable to discrimination or violence. Where there is a reasonable expectation of such mistreatment by other inmates, the Detaining Power must take measures to prevent it.[20]
4204  Since 1949, however, the administration of military justice has undergone changes, including a trend towards the ‘civilianization’ of military justice.[21] Some States have given civilian courts either exclusive or joint jurisdiction over crimes committed by military personnel. In other instances, military personnel are detained in civilian prisons under domestic legislation even when sentenced by a military court.[22]
4205  States whose domestic legislation allows sentences pronounced against military personnel to be served in civilian establishments may face challenges in implementing Article 108 and other relevant provisions of the Third Convention, since civilian prison wardens may not be familiar with these and must be appropriately trained to comply with them. Such States must ensure that their legislation or regulations take into account the safeguards afforded by the Convention to prisoners of war serving sentences. The Detaining Power should also inform prisoners of war, in a language they understand, of their rights under Article 108 and other relevant rules of the Convention. The obligation that prisoners of war must serve sentences in the same establishments and under the same conditions as members of the armed forces of the Detaining Power applies equally to penalties that do not involve incarceration.
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3. Second sentence: Requirements of health and humanity
4206  The second sentence of Article 108(1) establishes a minimum threshold below which the treatment of sentenced prisoners of war and the conditions to which they may be subjected may never fall, irrespective of the conditions applicable to members of the Detaining Power’s own forces. This minimum dictates that the conditions under which prisoners of war serve their sentences must always ‘conform to the requirements of health and humanity’. To determine what is meant by the ‘requirements of health and humanity’, reference must be made to the articles of the Convention that were drafted to reflect those requirements. Furthermore, diversity factors such as gender, age and disability must be duly considered.[23]
4207  As regards the requirement of health, articles that regulate the minimum conditions of internment of prisoners of war include Article 29, which requires that ‘all sanitary measures necessary [be taken] to ensure the cleanliness and healthfulness of camps and to prevent epidemics’. Thus, prisoners of war serving sentences must have access to clean sanitary facilities[24] and the necessary installations, facilities and time for personal hygiene and laundry.[25] Other articles setting down minimum conditions for quarters,[26] food[27] and clothing[28] are likewise relevant to interpreting the requirement of health.
4208  The requirement of humanity is a reminder of the obligation of the Detaining Power to respect the principle of humane treatment of prisoners of war at all times, including when serving a sentence. Relevant rules of the Convention in this regard include Article 13, which provides for the humane treatment of all prisoners of war; Article 14, which establishes that all prisoners of war are ‘entitled in all circumstances to respect for their persons and their honour’ (emphasis added); Article 16, which requires that all prisoners of war be treated alike without any adverse distinction based on race, nationality, religious belief, political opinion or any similar criteria; and Article 87(3), which is specific to prisoners of war undergoing disciplinary or judicial punishment and which prohibits penalties that involve ‘corporal punishments, imprisonment in premises without daylight and, in general, any form of torture or cruelty’. Sentences involving forced labour deserve particular mention, since they may be available to members of the Detaining Power’s own forces. Prisoners of war may only be sentenced to the types of labour that would be in conformity with Articles 50 and 52. In the case of forced labour, particular attention must also be paid to conformity with the requirements of health as already described.
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D. Paragraph 2: Women prisoners serving judicial sentences
4209  The second paragraph of Article 108 was added to the draft provision by the United Kingdom at the 1949 Diplomatic Conference.[29] It is similar to Article 97(4), which is applicable to women undergoing disciplinary punishment.
4210  Both Article 108(2) and Article 97(4) are examples of the Convention making specific provision for the distinct needs of women prisoners of war.[30] The obligations contained in these articles flow from the general requirements in Article 14(1) and(2) to respect women’s persons and honour and to treat them with due regard to their sex,[31] which affirms the prohibition of sexual violence.[32] To ensure that account is taken of the specific needs of women prisoners of war sentenced to a period of confinement, and in particular to protect them from the risk of sexual and other violence, Article 108(2) requires that they be accommodated in separate quarters from men and placed under the immediate supervision of women.[33] The Detaining Power will still need to take measures to ensure that in all cases sentenced women prisoners are protected against sexual and other violence perpetrated by guards and fellow inmates. Exceptions to the requirement of separate quarters may be made in the case of members of the same family, who must be housed together.[34]
4211  In fulfilling its obligations under this paragraph, the Detaining Power must be attentive to the risk of isolation that may accompany segregation of convicted women prisoners of war where they only number a few. In all circumstances, the Detaining Power must be guided by the overarching obligations to ensure the humane treatment[35] and safety of the prisoners and to afford them living conditions that are not prejudicial to their health.[36]
4212  The phrase ‘separate quarters’ includes not only the installations referred to in Article 25 (accommodation), but also those mentioned in Article 29 (hygiene).[37] Women prisoners of war sentenced to a period of confinement must have regular and safe access to clean toilets and shower facilities and the provision free of charge of sufficient and suitable sanitary products and other basic hygiene items. In this regard, the Detaining Power needs to be mindful of the different effects that certain conditions may have on female and male prisoners of war, such as the non-provision of certain sanitary products or the lack of functioning sanitary facilities.[38]
4213  There are also rules in the Convention containing specific protections depending on the state of health of a prisoner of war. Article 26(1) dictates that rations for prisoners of war must be sufficient to keep them in good health and Article 30(2) requires that those whose condition necessitates special treatment receive the care they require. Accordingly, the additional accommodation, nutritional and health-care needs of sentenced women who may be pregnant or nursing must be taken into account.[39]
4214  Infants or very young children generally must be accommodated with their parents.[40] This requirement is also part of customary international law.[41] If the sentenced prisoner of war is a child, meaning a person under 18, they must be accommodated separately from adults, except where families are accommodated as a unit.[42] In all determinations concerning children, their best interest must be the primary consideration.[43]
4215  The requirement of separate quarters may also extend to other categories of persons with distinct needs or facing particular risks where not doing so would violate the obligation of humane treatment.
4216  In terms of sentencing women prisoners of war, reference must also be had to Article 88(2) and (3). These provisions translate the assimilation requirement of Article 108(1) so that it is specifically applicable to women prisoners. They operate to ensure that women prisoners are sentenced and treated after sentencing in a manner similar to women in the Detaining Power’s armed forces. However, even if they are subjected to harsher penalties and/or conditions than the men in the Detaining Power’s armed forces, Article 108(3) prohibits women prisoners of war from being treated more harshly than men in the Detaining Power’s armed forces.[44]
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E. Paragraph 3: Essential safeguards for prisoners of war sentenced to deprivation of liberty
1. First sentence: Right to submit complaints and requests and to supervision by the Protecting Powers and the ICRC
4217  Before commenting on the first sentence of Article 108(3), it must be recalled that the provisions of this article are not the only ones governing the protection of convicted prisoners of war who are serving a sentence. As described above, the principle of assimilation requires that convicted prisoners of war serve their sentences under the same conditions as members of the armed forces of the Detaining Power. Article 108(3) aims to ensure that a prisoner of war serving a sentence retains the specific benefits of the Convention, even if these are not available to similarly convicted members of the armed forces of the Detaining Power. The paragraph therefore indicates an upward exemption to the principle of assimilation in that it guarantees certain rights to convicted prisoners of war at all times, whether or not these are granted to members of the Detaining Power’s armed forces under domestic law. It should further be recalled that under Article 85, convicted prisoners of war retain the benefits of the Convention as a whole. Thus, the provisions of Article 108(3) do not stand alone and should not be interpreted as being the only protections applicable to prisoners serving a sentence.[45] Consequently, imprisonment does not involve any suppression of the principal safeguards afforded to prisoners of war by the present Convention. Moreover, according to Article 5(1), persons entitled to prisoner-of-war status retain this status until their final release and repatriation.[46] Lastly, reference must be made to Article 88(5), which provides that ‘[p]risoners of war who have served disciplinary or judicial sentences may not be treated differently from other prisoners of war’.
4218  This approach is supported by the phrase ‘in any case’ that opens Article 108(3) and entitles prisoners of war to the benefits of Articles 78 and 126. The former concerns the right of sentenced prisoners of war to submit complaints and requests to the detaining authorities and to the Protecting Power regarding their conditions of detention, and the latter relates to supervision by the Protecting Power and the ICRC. In this context, it bears reminding that the ICRC recommends that sentenced prisoners of war also benefit from visits by relief societies and other organizations dedicated to their interests, in accordance with the provisions of Article 125. A prisoner of war undergoing confinement may therefore not be deprived either of the right to complain or of the right to contact at any time the delegates and representatives of the Protecting Power or the ICRC, regardless of the type of penitentiary system in which they are held. The Detaining Power must therefore ensure that the supervisory staff of facilities accommodating convicted prisoners of war are instructed to forward complaints and requests from the prisoners and to facilitate the tasks of the Protecting Power and the ICRC.[47]
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2. Second sentence: Correspondence, relief, exercise, medical care and spiritual assistance
4219  In addition to the rights provided for in the first sentence, Article 108(3) enumerates the guarantees that must be afforded to convicted prisoners of war sentenced to confinement.
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a. Correspondence
4220  Article 108(3) provides a general right to send and receive correspondence without specifying any limits. Restrictions may, however, be permissible. Should they be imposed on correspondence sent by a prisoner of war, the minimum of two letters and four cards monthly set out in Article 71 must still be respected. No limit is specified as regards correspondence addressed to prisoners of war, and any such restrictions may only be imposed by the Power on which the prisoner of war depends. These requirements are particularly important for incarcerated prisoners of war, given their increased risk of isolation. As a result, great care should be taken before implementing any restrictions on sending and receiving correspondence. Moreover, the Detaining Power is required to provide access to materials to facilitate correspondence, such as paper and writing implements.[48]
4221  As discussed with respect to Article 71, the term ‘correspondence’ should be understood to encompass modern means of communication.[49] The Detaining Power should therefore consider the use of, for example, telephone and video calls, recorded messages and email.
4222  The rules governing censorship and any temporary prohibition of correspondence in Article 76(1) and (3) apply equally in this case.
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b. Relief parcels
4223  Prisoners of war serving a sentence of confinement are entitled to receive at least one (individual) relief parcel monthly. The Detaining Power may, at its discretion, allow the distribution of any additional parcels. The general principles applicable to relief parcels are set out in Article 72.
4224  Under Article 76(2), the Detaining Power may examine the contents of parcels addressed to prisoners of war. Should a parcel, or a particular item in the parcel, be of such a character as to prevent its delivery to the addressee, it should be dealt with in accordance with Article 98(5), which is the analogous provision applicable in cases of disciplinary confinement. Under that provision, the contents should, where possible, be ‘entrusted to the prisoners’ representative, who will hand over to the infirmary the perishable goods contained in such parcels’.
4225  Article 98(5) allows parcels to be withheld from prisoners of war undergoing a period of disciplinary confinement until the completion of the punishment. The reason for this is that confinement imposed as a disciplinary punishment may not exceed 30 days, after which a prisoner of war may retrieve their parcel. As this is not the case for prisoners of war covered by Article 108, the provision does not contain the rule on withholding parcels.
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c. Exercise
4226  Article 108 entitles imprisoned prisoners of war to take regular exercise in the open air. This provision is essential for the health of prisoners serving a sentence, and reference should be made to the relevant provisions of Article 38(2), which also deal with access to physical exercise and the outdoors.[50] At a minimum, prisoners of war should have the opportunity to walk and run, while detaining authorities are encouraged to provide other facilities such as gym and sporting equipment, including sufficient space for specific pursuits and sports, where practicable.
4227  Article 108 does not indicate a precise amount of time to be considered ‘regular’. Article 98 provides that prisoners undergoing disciplinary punishment must be allowed ‘to exercise and to stay in the open air at least two hours daily’ (emphasis added). It can therefore be argued that prisoners of war sentenced to confinement should also be allowed to exercise in the open air for two hours a day. However, Article 108 deals with criminal offenders, whereas Article 98 applies to disciplinary offenders, and it may not always be feasible to apply the same requirements to prisoners undergoing the two types of punishment. In all cases, however, the Detaining Power must provide regular outdoor exercise time at least equal to that provided to convicted members of its own armed forces.[51]
4228  Article 108(3) states that prisoners ‘shall be entitled’ to exercise in the open air. Thus, it is up to each prisoner of war to decide whether to take advantage of this right. The Detaining Power may not force a prisoner of war to exercise outdoors.
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d. Medical attention
4229  Prisoners of war undergoing imprisonment are entitled to receive the medical care required by their state of health. Guidance in this respect should be sought from Articles 30 and 31, which specify the range of measures the Detaining Power must take to keep prisoners of war in good health. The analogous provision in Article 98(4) entitles prisoners of war undergoing disciplinary confinement to present themselves at daily medical inspections, which as a general rule are required to take place in a prisoner-of-war camp.[52] Even if prisoners undergoing judicial confinement are serving their sentences outside a prisoner-of-war camp, they must be able to present themselves for medical examination or to ask to be visited by a doctor.[53] Furthermore, while serving a sentence, they must benefit from the monthly medical inspections provided for in Article 31.[54] Should it be required by their state of health, prisoners of war undergoing judicial confinement must be removed to the camp infirmary or to a hospital.[55] Moreover, any necessary medical attention and care must be provided to meet the specific needs of some categories of detainees, such as women.[56] In line with Articles 15 and 30(5), the costs of treatment fall to the Detaining Power.
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e. Spiritual assistance
4230  Prisoners of war serving a sentence are entitled to spiritual assistance. They must not be prevented from practising their religion or receiving assistance from religious ministers, within the limits fixed by the prison administration.[57]
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3. Third sentence: Penalties
4231  The 1947 Conference of Government Experts considered that penalties imposed on prisoners of war serving judicial sentences should be subject to the provisions of Article 98.[58] The ICRC thought it would be difficult to assimilate in all respects the penalties inflicted on prisoners of war detained in prisons to the disciplinary punishment inflicted on prisoners of war in camps, preferring rather to refer to Article 87(3).[59]
4232  Article 108 states that convicted prisoners of war may not be subjected to penalties contrary to Article 87(3), which provides that ‘[c]ollective punishment for individual acts, corporal punishments, imprisonment in premises without daylight and, in general, any form of torture or cruelty, are forbidden’.[60]
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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.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978.
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 - Bretonnière, pp. 430–442.
2 - Draft Conventions submitted to the 1948 Stockholm Conference, draft article 99, pp. 118–119.
3 - Ibid.
4 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 515.
5 - Ibid. p. 572. See also Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. II, 30th meeting, p. 53.
6 - See the commentary on Article 85. See also Bretonnière, p. 430 (noting that under Article 67 of the 1929 Convention, the provisions of Articles 42 and 53 were the only ones to regulate the situation of prisoners of war undergoing judicial punishment).
7 - See the commentary on Article 85, section C.4. See also Marco Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing, Cheltenham, 2019, p. 158.
8 - Report of the Conference of Government Experts of 1947, p. 201.
9 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 406; Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. III, 34th meeting, pp. 53–55.
10 - See Additional Protocol I, Article 77(2); ICRC Study on Customary International Humanitarian Law (2005), Rule 136 (recruitment of child soldiers) and Rule 137 (participation of child soldiers in hostilities); Convention on the Rights of the Child (1989), Article 38(3); African Charter on the Rights and Welfare of the Child (1990), Article 22(2); ILO Convention on the Worst Forms of Child Labour (1999), Articles 1 and 3; and Optional Protocol on the Involvement of Children in Armed Conflict (2000). Under Article 8(2)(b)(xxvi) of the 1998 ICC Statute, ‘conscripting or enlisting’ children into armed forces or groups constitutes a war crime in both international and non-international armed conflicts.
11 - There is a complex set of international rules applicable to the recruitment and use of children in hostilities. Under the 1977 Additional Protocols and the 1989 Convention on the Rights of the Child, the recruitment and use of children below 15 years is prohibited. Under the 2000 Optional Protocol on the Involvement of Children in Armed Conflict and the 1999 ILO Convention on the Worst Forms of Child Labour, the age limits for both forced and voluntary recruitment are raised. Under the 1990 African Charter on the Rights and Welfare of the Child, the age limit is raised to 18 in all circumstances. For a more complete discussion, see Sylvain Vité, ‘Protecting Children during Armed Conflict: International Humanitarian Law’, Human Rights and International Legal Discourse, Vol. 5, No. 1, 2011, pp. 14–39, in particular pp. 23–29. See also Rachel Harvey, Children and Armed Conflict: A Guide to International Humanitarian and Human Rights Law, International Bureau for Children’s Rights, Quebec, 2010, pp. 136–143.
12 - See Additional Protocol I, Article 77, and ICRC Study on Customary International Humanitarian Law (2005), Rule 135. See also the commentary on Article 16, para. 1755.
13 - See also the commentaries on Article 84, para. 3609, and on Article 102, section D. Examples of such norms and standards that may provide guidance include, at the international level: Convention on the Rights of the Child (1989), Article 40; UN Committee on the Rights of the Child, General comment No. 24 (2019) on children’s rights in the child justice system, UN Doc. CRC/C/GC/24, 18 September 2019; UN Guidelines for the Prevention of Juvenile Delinquency (1990); UN Rules for the Protection of Juveniles Deprived of Their Liberty (1990); Standard Minimum Rules for the Administration of Juvenile Justice (1985); and at the regional level: African Commission on Human and Peoples’ Rights, Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, 2014, Part 7, Guideline 31 (Children); Inter-American Commission on Human Rights, Juvenile Justice and Human Rights in the Americas, Doc. OEA/Ser.L/V/II., 13 July 2011; Guidelines of the Committee of Ministers of the Council of Europe on Child Friendly Justice (2010); Inter-American Court of Human Rights, Juridical Condition and Human Rights of the Child case, Advisory Opinion, 2002.
14 - See e.g. UN Committee on the Rights of the Child, General comment No. 24 (2019) on children’s rights in the child justice system, UN Doc. CRC/C/GC/24, 18 September 2019, para. 100; UN Security Council, Res. 2427, 9 July 2018, paras 21–22; UNICEF, Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (The Paris Principles), February 2007, paras 3.6 and 3.11; and Optional Protocol on the Involvement of Children in Armed Conflict (2000), Article 6(3).
15 - 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.
16 - It should be recalled that according to Article 97, prisoners of war serving disciplinary punishments may never be transferred to penitentiary establishments; see the commentary on Article 97, section C.
17 - See also Introduction, para. 34.
18 - On the right to appeal, see Article 106.
19 - See also Article 88(1), (2) and (3).
20 - Recall the prohibitions of adverse distinction contained in common Article 3 and in Article 16 of the present Convention, as well as in Article 75(1) of Additional Protocol I.
21 - Matthew Groves and Alison Duxbury, ‘The reform of military justice’, in Alison Duxbury and Matthew Groves (eds), Military Justice in the Modern Age, Cambridge University Press, 2016, pp. 1–12, at 4; U.C. Jha, ‘The reform of military justice in South Asia’, in ibid. pp. 178–195, at 185. For another example, see Morocco, Code of Military Justice, 1956, Article 4.
22 - See e.g. Australia, Defence Force Discipline Act, 1982, as amended, Article 3(1); France, Jurisdictional Procedures Law, 2011, Article 32; Morocco, Code of Military Justice, 1956, Article 140; Togo, Code of Military Justice, 2016, Article 120; and United States, Uniform Code of Military Justice, 1950, as amended, section 858, Article 58. See also Ann Lyon and Geoffrey Farmiloe, ‘The new British system of courts martial’, in Alison Duxbury and Matthew Groves (eds), Military Justice in the Modern Age, Cambridge University Press, 2016, pp. 159–177.
23 - For a general discussion of the protection of different categories of prisoners with distinct needs, see Introduction, section A.3.b.
24 - See Article 29(2). See also the non-binding Mandela Rules (2015), Rules 15 and 16.
25 - See the commentary on Article 29(3). See also the non-binding Mandela Rules (2015), Rule 18.
26 - Article 25. See also the non-binding Mandela Rules (2015), Rules 12–17.
27 - Article 26. See also the non-binding Mandela Rules (2015), Rule 22.
28 - Article 27. See also the non-binding Mandela Rules (2015), Rules 19–21.
29 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 498–499 and 515.
30 - See the commentaries on Article 14(2), section D, and on Article 16, section C.2.b. For a general discussion of the protection of different categories of prisoners of war with distinct needs, see Introduction, section A.3.b, and on women specifically, para. 24.
31 - Article 14(2) must be read together with Article 14(1); see the commentary on Article 14(2), para. 1681.
32 - See the commentary on Article 14(2), section D.2.
33 - This requirement is also found in Article 75(5) of Additional Protocol I and in Rule 119 of the ICRC 2005 Study on Customary International Humanitarian Law. The 2011 Rules for the Treatment of Women Prisoners also serve as a guide to ensuring that the safety, health and social concerns of women prisoners of war are taken into account.
34 - See ICRC Study on Customary International Humanitarian Law (2005), Rule 119.
35 - Article 13.
36 - Article 25(1).
37 - See also Additional Protocol I, Article 75(5), and ICRC Study on Customary International Humanitarian Law (2005), Rule 119, which refer to separate ‘quarters’ for women. In comparison, see Article 25(4), which requires women prisoners of war undergoing confinement to be held in separate ‘dormitories’.
38 - See also the commentary on Article 29, section E.
39 - See the commentaries on Article 14, para. 1685, on Article 16, section C.2.b, and on Article 26, para. 2113. See also Henckaerts/Doswald-Beck, commentary on Rule 134, p. 478, and Rules for the Treatment of Women Prisoners (2011), Rule 5.
40 - See also Articles 75(5) and 77(4) of Additional Protocol I, and the commentary on Article 16, para. 1755.
41 - See ICRC Study on Customary International Humanitarian Law (2005), Rules 119 and 120.
42 - See Additional Protocol I, Article 77(4), and ICRC Study on Customary International Humanitarian Law (2005), Rule 120. See also Convention on the Rights of the Child (1989), Article 37(c), which requires that every child deprived of liberty be separated from adults ‘unless it is considered in the child’s best interest not to do so’, and the non-binding Mandela Rules (2015), Rule 11.
43 - See Convention on the Rights of the Child (1989), Article 3.
44 - In imposing sentences, the rule in Article 76(3) of Additional Protocol I concerning the pronouncement and execution of the death penalty on pregnant women or on mothers with dependent infants must be kept in mind.
45 - In Noriega, the US Government argued that Article 108 (as well as Articles 78, 87 and 126, which are mentioned in Article 108(3)) is the only rule of the Convention applicable to convicted prisoners of war. The defence argued the contrary. For its part, the Court found that ‘judicial confinement serves to abrogate only those protections fundamentally inconsistent with incarceration’ and that ‘at a minimum, all of the Articles contained in Section I, General Provisions, should apply … as well as any provisions relating to health. By their own terms, Articles 82–88 (the General Provisions of the section of the Penal and Disciplinary Sanctions chapter) and 99–108 (Judicial Proceedings subsection) apply.’; see United States, District Court for the Southern District of Florida, Noriega case, Post-Sentencing Recommendation, 1992, p. 802.
46 - See also ibid. p. 795.
47 - See the commentary on Article 126, section C.5.
48 - For further details, see the commentary on Article 71.
49 - See the commentary on Article 71, para. 3186.
50 - See also UN Rules for the Protection of Juveniles Deprived of their Liberty (1990), Rule 47; SCSL Rules Governing the Detention of Persons (2003), Rule 54; ICTY Rules Governing the Detention of Persons (2005), Rules 27–28; European Prison Rules (2006), Rule 27.1; and the non-binding Mandela Rules (2015), Rule 23.
51 - In this context, it should be noted that international standards applicable to prison settings provide that detainees should have a minimum of one hour of suitable exercise in the open air daily if the weather permits; see the non-binding Mandela Rules (2015), Rule 23.1.
52 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 504–505.
53 - Ibid. p. 505.
54 - Ibid.
55 - Although not explicitly mentioned in Article 108, this requirement appears in Article 98(4) regulating disciplinary punishment. It can be read into the provision in Article 108 whereby a prisoner of war must receive ‘the medical care required by their state of health’.
56 - See e.g. the commentaries on Article 14(2), paras 1683–1685, on Article 15, para. 1730, and on Article 16, paras 1747, 1752 and 1761.
57 - On freedom to practise religion, see Article 34. On assistance from ministers of religion, see Articles 35–37.
58 - See Report of the Conference of Government Experts of 1947, p. 227.
59 - See Draft Conventions submitted to the 1948 Stockholm Conference, p. 119.
60 - See the commentary on Article 87, section E. On the issue of solitary confinement as a penalty, see the commentary on Article 87(3), para. 3711.