Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 106 : Appeals
Text of the provision
Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.
Reservations or declarations
None
Contents

A. Introduction
4141  Article 106 provides that prisoners of war facing judicial proceedings must benefit, in the same manner as the members of the armed forces of the Detaining Power, from the right of appeal or petition from any sentence pronounced against them. The right to appeal is an essential element of a fair judicial process and a regular facet of domestic penal legislation and rules.
4142  Although not mentioned in the text of Article 106 itself, deliberations at the 1949 Diplomatic Conference made clear that the rights and means of defence set out in Article 105 are fully applicable to proceedings on appeal. All the judicial guarantees applicable to a trial of first instance must remain applicable until a case has been definitively disposed of. These guarantees include, for example, the right to assistance by a fellow prisoner, the right to defence by a qualified advocate or counsel, the right to the calling of witnesses and, where necessary, the right to the services of a competent interpreter.[1]
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B. Historical background
4143  The right of prisoners of war to appeal sentences pronounced against them was first formulated in Article 64 of the 1929 Geneva Convention on Prisoners of War, which read: ‘Every prisoner of war shall have the right of appeal against any sentence against him in the same manner as persons belonging to the armed forces of the detaining Power.’
4144  The 1929 provision was brief and lacking in detail. It was considered inadequate by the ICRC, which had acquired considerable experience during the Second World War with regard to assistance to prisoners of war under prosecution, particularly in France. At the Conference of Government Experts in 1947, the organization stressed the advisability of specifying the procedures of appeal, which would be particularly useful to prisoners of war sentenced for offences committed before captivity; at the time of trial these persons are very often not in a position to adduce evidence in their favour.[2] The text adopted by the Diplomatic Conference in 1949 is clearer and more detailed than the corresponding provision in the 1929 Convention.
4145  At the Conference, some delegations suggested including in Article 106 a requirement for the Detaining Power to notify the Protecting Power of the accused’s right to appeal[3] and making explicit that the rights and means of defence specified in Article 105 were applicable in cases of appeal or petition.[4] The first proposal was accepted but incorporated into Article 107(1), while the second was rejected, it being understood that the provisions of Article 105 were fully applicable in the case of appeal or petition.[5]
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C. First sentence: Right of appeal or petition
1. Meaning of the terms ‘appeal’ and ‘petition’
4146  The English text of Article 106 refers to ‘the right of appeal or petition’. ‘Appeal’ means a ‘proceeding undertaken to have a decision reconsidered by a higher authority; esp., the submission of a lower court’s or agency’s decision to a higher court for review and possible reversal’.[6] A ‘petition’ is a ‘formal written request presented to a court or other official body’.[7]
4147  The French text of the provision speaks of ‘le droit … de recourir en appel, en cassation ou en révision’. The reason for the difference between the English and French texts is that, at the time of drafting, common-law legislation did not allow for appeals in military courts for penal matters.[8] Under such jurisdictions, before it became final, a sentence would need to be confirmed by the military high command, and ‘[a]s an alternative to appeal, [Article 106] recognises that a member of the armed forces, and therefore a [prisoner of war] convicted by a military court may have the right to petition military authorities to quash his conviction or reduce his sentence’.[9] The phrase ‘right of petition’ refers to this option, which would have been the only means available to a person convicted by a military court in the practice of several States in 1949.[10] The right to petition also appears as an alternative to the right to appeal in Article 105(3).[11] The term ‘petition’ does not appear in the text of Article 107, but the omission is probably due to an oversight.[12]
4148  It is possible that the Detaining Power’s domestic legislation provides for both a right of appeal and a right of petition for members of its own armed forces, or at least provides certain options to pursue one means of review or another. In such cases, a prisoner of war should be afforded the same rights/options. The elements in the phrase ‘appeal or petition’ should not be read as mutually exclusive to the extent that this is how the law would apply to a member of the Detaining Power’s armed forces.[13]
4149  Fair trial guarantees, including the guarantees of independence and impartiality mentioned in Article 84, and the rights and means of defence mentioned in Article 105, are equally applicable to proceedings on appeal.[14]
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2. Developments since 1949
4150  Article 106 provides that every prisoner of war facing criminal proceedings must benefit from the right of appeal or petition, in the same manner as the members of the armed forces of the Detaining Power, reflecting the ‘principle of assimilation’.[15] Given that Article 106 bases the right of appeal or petition on the domestic law of the Detaining Power, this would mean that there may be no substantive right of appeal to a higher tribunal, or of petition to a higher authority, if it is not provided for by such laws.
4151  It was common in 1949 for there to be no recourse to an appeals process in the case of decisions of military courts.[16] The reasoning for this was that ‘military justice, in the form of judgment and sentence, must be carried out promptly for the sake of preserving discipline and that the best judges of what that required were military officers and not civilian judges’.[17] In legal systems where a right to appeal the decision of military courts was granted, it was limited ‘to the judgment of the court and not to the sentence imposed’.[18] The situation was similar during the adoption of the Additional Protocols in 1977, with not enough States providing for a right of appeal in their legislation for the drafters to make of this right an absolute requirement.[19]
4152  While Article 106 does not provide a substantive right to appeal as such, it must be recognized that both national and international law on the right to appeal have developed significantly since 1949.[20] A majority of States now provide for the right to appeal in their military penal legislation.[21] With these considerations in mind, it is submitted that a substantive right of appeal is a fundamental procedural guarantee of international law that must be available to prisoners of war as well. The absence of such right could result in a prisoner of war being wrongfully convicted of a serious crime, possibly attracting a lengthy sentence, without the possibility of appellate review.[22]
4153  Whether an appeal should review the law or the facts de novo (‘anew’) is not dealt with by the Convention, but by the domestic law applicable to members of the armed forces of the Detaining Power.
4154  The English text of Article 106 refers to ‘the right of appeal or petition from any sentence pronounced’ (emphasis added), while the French text states that a prisoner of war may appeal any judgment made in the case against them (‘contre tout jugement rendu à son endroit’). There is no substantive difference between the two language versions, and the term ‘sentence’ must be interpreted to include judgments as well.[23] The use of the word ‘any’ indicates that the right of a prisoner of war to appeal or petition under Article 106 applies independently of the seriousness of the crime for which they are being tried or of the sentence pronounced upon them. It must be available for all criminal proceedings.[24]
4155  Article 106 makes no mention of the possibility for the prosecution to appeal sentences. This was discussed at the 1949 Diplomatic Conference, where some delegations were in favour of including the following sentence to take account of this possibility: ‘In no case may the sentence pronounced against a prisoner of war be made more severe on appeal or petition by the prosecution.’[25] It was ultimately decided to delete this sentence, however, lest it cause courts to pass maximum sentences in the first instance.[26] Since the Convention makes no ruling on this matter, it will be governed by domestic law, and the prosecution may therefore appeal or petition, provided the procedure followed is in accordance with the legislation of the Detaining Power.[27]
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3. Outcomes of the appeal
4156  The English text of Article 106 refers to three potential outcomes of an appeal: the quashing of a sentence; the revision of a sentence; and the reopening of a trial. This distinction is not present in the French text, which refers rather to three remedies available to the prisoner of war (‘de recourir en appel, en cassation ou en révision’). These linguistic differences have no substantive implications.
4157  The verb to ‘quash’ means to ‘reject as invalid, especially by legal procedure’.[28] The quashing of a judgment may result in the reopening of the trial.[29] The 1947 Conference of Government Experts recognized that the opportunity for a new trial would be particularly valuable for prisoners of war who at the time of the trial were not able to adduce proof in their favour, especially in respect of offences committed before capture.[30] However, and instead of a retrial by the first instance court, domestic law may also provide for higher instances to adjudicate the facts underlying the judgment, and render a new judicial determination leading to a conviction or acquittal.[31] To the extent that domestic law grants higher instance courts such jurisdiction over members of the armed forces of the Detaining Power, prisoners of war must equally benefit from this.[32]
4158  Article 106 makes no mention of applications for pardon or commutation of sentence, but here, too, the principle of assimilation is relevant. If such applications are open to members of the Detaining Power’s armed forces, they must be available to prisoners of war as well. Some authorities today interpret the term ‘petition’ in Article 106 to include application for various forms of clemency from the executive branch.[33] Post-Second World War practice indicates that such petitions have been made and granted.
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D. Second sentence: Notice of the right to appeal
4159  During the 1947 Conference of Government Experts, it was remarked that in some cases it might be necessary to ‘remind the POW expressly of his right of appeal’.[34] This is precisely what the second sentence of Article 106, which did not feature in the corresponding 1929 provision, aims to ensure.
4160  This provision supplements those in Article 104(2), subparagraph 3, Article 105(4) and Article 107(1). The first of these requires that the notification of proceedings mention the legal provisions applicable when a prisoner of war is facing trial. The second requires that the accused and their defence counsel receive ‘the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power’. In both cases, these documents will normally include the legal provisions applicable to appeal or petition. The third provision requires that, once a trial is complete, the accused, the prisoners’ representative and the Protecting Power be notified whether the prisoner ‘has the right of appeal with a view to the quashing of the sentence or the reopening of the trial’. The present clause nevertheless provides an additional, explicit safeguard leaving no room for doubt.
4161  The requirement that a prisoner of war be ‘fully informed’ of the right to appeal implies that communication of this right must include all the necessary information for appellate proceedings to be launched correctly and in a timely manner. In particular, the communication must include the relevant legal basis for the appeal and the requisite time limits. As with the communication required under Article 105(4), to be considered effective the communication of the right of appeal under Article 106 should be made in a language that the prisoner understands.
4162  The second sentence of Article 106 raises the question of the responsibilities of the Detaining Power in communicating the information relevant to the prisoner’s right to appeal. While it may be usual for defence counsel to inform the prisoner of this right, this does not relieve the Detaining Power of its responsibility to provide the notification required under Article 106. Although Article 107(1) requires the Detaining Power to inform the prisoners’ representative and the Protecting Power of a convicted prisoner of war’s right of appeal, the Convention does not oblige those entities to so inform the prisoner. This obligation is addressed to the Detaining Power.
4163  Article 106 also does not specify when notification of the right to appeal should be made. Nor does it provide for a minimum time limit for filing appeals. These issues are regulated by the law of the Detaining Power and are subject to the principle of assimilation.
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Select bibliography
Akhavan, Payam, ‘Judicial Guarantees’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 1215–1239.
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.
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’).
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 - On the rights and means of defence, see Article 105.
2 - Report of the Conference of Government Experts of 1947, p. 228.
3 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 317.
4 - Ibid. Vol. II-A, p. 515, and Vol. III, pp. 84–85.
5 - See ibid. Vol. II-A, pp. 515 and 521.
6 - Bryan A. Garner (ed.), Black’s Law Dictionary, 11th edition, Thomson Reuters, 2019, p. 121.
7 - Ibid. p. 1384.
8 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 493. See also United Kingdom, Report of the Army and Air Force Courts-Martial Committee 1946, Cmd. 7608, London, 1949, pp. 15 and 29.
9 - Rowe, 2014, p. 332.
10 - Ibid. fn. 75.
11 - See also the commentary on Article 105, section E.4, which refers to the difference in the French and English versions of the text, and Article 73 of the Fourth Convention, which states that ‘[w]here the laws applied by the Court make no provision for appeals, the convicted person shall have the right to petition against the finding and sentence to the competent authority of the Occupying Power’ (emphasis added).
12 - See the commentary on Article 107, para. 4171, fn. 9.
13 - See also Jelena Pejic, ‘Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence’, International Review of the Red Cross, Vol. 87, No. 858, June 2005, pp. 375–391, at 42: ‘Jurisprudence has also determined that if a domestic legal system provides for more than one instance of appeal, then the right to appeal refers to all the instances that exist.’
14 - See paras 4141 and 4145 of this commentary. See also the commentary on Article 105, para. 4125.
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 - See Rowe, 2014, p. 331, and 2015, p. 1036.
17 - Rowe, 2014, pp. 331–332.
18 - Ibid. p. 332.
19 - Article 75(4)(j) of Additional Protocol I provides that a convicted person ‘shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised’. The commentary on the Protocol suggests that the term ‘be advised’ takes account of the fact that there might not be a right of appeal to a higher instance under domestic law; Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 3121.
20 - Developments in international human rights law on the question of appeal to a higher tribunal are such that ‘it can be argued that the right of appeal proper – and not only the right to be informed whether appeal is available – has become a basic component of fair trial rights in the context of armed conflict’; Henckaerts/Doswald-Beck, commentary on Rule 100, pp. 369–370. See also Akhavan, p. 1235.
21 - Henckaerts/Doswald-Beck, commentary on Rule 100, p. 369: ‘The majority of States now have constitutions or legislation providing for the right to appeal, especially those adopted or amended since the adoption of the Additional Protocols.’ See e.g. Afghanistan, Military Criminal Procedure Code, 2010, Article 48; Algeria, Code of Military Justice, 1971, as amended, Article 180; Burkina Faso, Code of Military Justice, 1994, Article 93; Colombia, Constitution, 1991, as amended, Article 31; Côte d’Ivoire, Code of Military Penal Procedure, 1974, Articles 150 and 151; Estonia, Constitution, 1992, as amended, Article 24; Ethiopia, Constitution, 1994, Article 20(6); Georgia, Constitution, 1995, as amended, Article 42(1); Hungary, Constitution, 1949, as amended. Article 57(5); India, Army Act, 1950, as amended, Article 129; Kuwait, Constitution, 1962, Article 166; Russian Federation, Constitution, 1993, Articles 46(2) and (3) and 50(3); and United Kingdom, Armed Forces Act, 2006, as amended, Article 141, and Courts-Martial (Appeals) Act, 1968, Article 8. However, the military justice systems of a number of States still do not have full right of appeal for members of their own armed forces.
22 - It should be recalled that, according to Article 119(5), prisoners of war against whom criminal proceedings are pending or prisoners who have been convicted of an offence may be retained by the Detaining Power at the close of hostilities until the end of the proceedings or until they have served out the term of their sentence.
23 - See the commentary on Article 102, para. 4007. See also the commentary on Article 107, para. 4171.
24 - While the Convention does not make provision for the right to appeal in disciplinary cases, in certain circumstances the possibility of review may be required. See the commentary on Article 96, para. 3914.
25 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 515.
26 - Ibid. p. 516.
27 - For examples of domestic penal procedures that allow the prosecution to appeal or petition a judgment involving a member of the armed forces, see e.g. Afghanistan, Military Criminal Procedure Code, 2010, Article 48; Algeria, Code of Military Justice, 1971, as amended, Article 181; Burkina Faso, Code of Military Justice, 1994, Article 129; and Côte d’Ivoire, Code of Military Penal Procedure, 1974, Article 151.
28 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1176.
29 - Rowe, 2015, p. 1035, fn. 56: ‘It would appear that [the Third Geneva Convention] does not impose an obligation on the detaining state to provide machinery for the quashing of a conviction without holding a new trial. It may be, however, that the national law of that state so provides for members of its armed forces. Prisoners of war should be able to take advantage of this.’
30 - Report of the Conference of Government Experts of 1947, p. 228.
31 - See e.g. Austria, Criminal Procedure Code, 1975, as amended, section 288; Bosnia and Herzegovina, Criminal Procedure Code, 2003, as amended, Article 314; and Central African Republic, Code of Penal Procedure, 2010, Article 205.
32 - Rowe, 2015, p. 1035.
33 - Ibid. p. 1036.
34 - Preliminary Documents submitted by the ICRC to the 1947 Conference of Government Experts, p. 172.