Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 101 : Delay in execution of the death penalty
Text of the provision
If the death penalty is pronounced on a prisoner of war, the sentence shall not be executed before the expiration of a period of at least six months from the date when the Protecting Power receives, at an indicated address, the detailed communication provided for in Article 107.
Reservations or declarations
Uruguay[1]
Contents

A. Introduction
3992  Whereas Article 100 lays down the rules on pronouncing the death penalty, Article 101 regulates its execution.
3993  This provision is important because in some countries, when either martial law or the laws of armed conflict were applicable, punishment, including the death sentence, could be executed with very little delay.[2]
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B. Historical background
3994  Article 101 is based on Article 66 of the 1929 Geneva Convention on Prisoners of War, which provided that ‘[t]he sentence shall not be carried out before the expiration of a period of at least three months from the date of the receipt of this communication by the Protecting Power’.[3] At the Conference of Government Experts in 1947, however, the delegates agreed that the period should be prolonged to at least six months.[4] In addition, States subsequently decided not to specify the precise content of the communication but to include a reference to Article 107, which provides general rules on the notification of sentences.[5]
3995  No substantive changes to the draft provision were made during the 1949 Diplomatic Conference.
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C. Discussion
3996  Article 101 states that a death sentence may not be executed for a period of at least six months from the date the Protecting Power – or its substitute, in accordance with Article 10 of the Convention – receives the communication provided for in Article 107. Thus, the starting date of the moratorium is the date on which the communication is delivered to the address indicated by the Protecting Power for this purpose.[6] This may not be the date on which the sentence is pronounced but a later one.[7]
3997  The reference to Article 107 makes clear what information the communication must contain. When a court pronounces a death sentence, Article 107(2) requires the Detaining Power to communicate as soon as possible to the Protecting Power:
(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.
The article specifies that, in the case of a death sentence, the communication must be made even if the sentence was pronounced only in the first instance and may still be subject to appeal.
3998  While the Convention does not prescribe the form in which the communication must be made, the Detaining Power should take all the necessary precautions (registered letter, writ, proof of receipt, etc.) to ensure that the Protecting Power receives the communication.
3999  The six-month delay between the date the communication is received, and the execution grants the Protecting Power or its substitute, or possibly the Power of Origin, time to examine the communication it receives, and to intervene if, for example, the prisoner of war concerned did not enjoy all the guarantees of a fair and regular trial. It also enables the Protecting Power to make diplomatic representations to obtain a sentence other than the death penalty.
4000  According to the provision, the death penalty may not be executed before a six-month period from the time the Protecting Power receives detailed information on the judgment and sentence has expired. Compliance with this provision is a strict condition for the execution of a death sentence. This raises the question whether, and if so how, this provision can be complied with when no Protecting Power or a substitute has been appointed, as has been the case in most international armed conflicts since the adoption of the Conventions in 1949.[8]
4001  The absence of a Protecting Power or a substitute does not release the Detaining Power from its obligation under Article 101. To comply with this provision, therefore, Parties to an international armed conflict should endeavour to appoint a Protecting Power or a substitute, or should otherwise ensure that an impartial humanitarian organization, such as the ICRC, can inform the Power on which the accused depends, as well as safeguard the interests of the sentenced prisoner of war. While the ICRC is not explicitly mentioned as an alternative to the Protecting Power under Article 101, in practice, both prior to and since 1949, the ICRC, acting on its right of humanitarian initiative as enshrined in Article 9, has assisted States in the matter of judicial proceedings.[9] More specifically, the organization has acted in the interests of prisoners of war facing the death penalty.[10]
4002  Given that Article 130 lists ‘wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention’ as a grave breach of the Convention, denying prisoners of war the benefit of the essential guarantees set out in Article 101 may amount to a grave breach of this Convention.
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Select bibliography
Gasser, Hans-Peter, ‘Respect for fundamental judicial guarantees in time of armed conflict: The part played by ICRC delegates’, International Review of the Red Cross, Vol. 32, No. 287, March-April 1992, pp. 121–142.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 337–340.
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.
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.
Sassòli, Marco, ‘La peine de mort en droit international humanitaire et dans l’action du Comité international de la Croix-Rouge’, Revue internationale de droit pénal, Vol. 58, 1987, pp. 583–592.

1 - United Nations Treaty Series, Vol. 676, pp. 370–371: ‘With express reservations in respect of Articles 87, 100 and 101 of Geneva Convention III, and of Article 68 of Geneva Convention IV, in so far as they involve the imposition and execution of the death penalty.’
2 - See Proceedings of the Geneva Diplomatic Conference of 1929, p. 499, in particular the position of the representative of Czechoslovakia, supported by Japan, Poland and Romania.
3 - This three-month requirement also appeared prior to the 1929 Convention in an agreement on prisoners of war concluded between the United States and Germany during the First World War; see Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Article 81.
4 - Report of the Conference of Government Experts of 1947, p. 230.
5 - See Draft Conventions adopted by the 1948 Stockholm Conference, draft article 98, p. 90.
6 - See Article 107(3).
7 - The immediate execution of prisoners of war by military authorities upon a disciplinary order is therefore never lawful. The death penalty is not a permissible disciplinary punishment under Article 89 and, as such, may only be imposed according to the rules established here. For an example of practice in violation of the prior rule in Article 66 of the 1929 Convention, see United Kingdom, Military Court at Singapore, Ikegami case, Reference to Proceedings, 1947, p. 2.
8 - See the commentary on Article 8, section H.
9 - See Introduction, section A.3.e, in particular paras 50–51, and the commentary on Article 9, para. 1316. See also François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, p. 871.
10 - At the appeal of the Saigon government, for example, ICRC representatives requested that the Cambodian military authorities apply Article 101 to Vietnamese soldiers sentenced to death in connection with the war in Vietnam; ICRC, Annual Report 1965, ICRC, Geneva, p. 23.