Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 88 : Execution of penalties
Text of the provision*
(1) Officers, non-commissioned officers and men who are prisoners of war undergoing a disciplinary or judicial punishment, shall not be subjected to more severe treatment than that applied in respect of the same punishment to members of the armed forces of the Detaining Power of equivalent rank.
(2) A woman prisoner of war shall not be awarded or sentenced to a punishment more severe, or treated whilst undergoing punishment more severely, than a woman member of the armed forces of the Detaining Power dealt with for a similar offence.
(3) In no case may a woman prisoner of war be awarded or sentenced to a punishment more severe, or treated whilst undergoing punishment more severely, than a male member of the armed forces of the Detaining Power dealt with for a similar offence.
(4) Prisoners of war who have served disciplinary or judicial sentences may not be treated differently from other prisoners of war.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
3717  Article 88 contains general rules applicable to the treatment of prisoners of war facing disciplinary or judicial punishment. It should be read together with Article 87, which is also general in scope and which states that the Detaining Power may only impose a penalty on prisoners of war if such penalty may also be imposed on members of its own armed forces for the same act. Article 87 further prohibits certain types of punishments, even if they exist for members of the Detaining Power’s armed forces. Article 88 must also be read together with Articles 97 and 98 (applicable to disciplinary punishments) and Article 108 (applicable to judicial punishments).
3718  The present provision seeks to ensure that prisoners of war undergoing punishment are not subjected to treatment more severe than that applied to members of the armed forces of the Detaining Power of equivalent rank. This is a specific application of the ‘principle of assimilation’ in disciplinary and penal matters.[1] Article 88 also features two provisions concerning the special protection owed to women prisoners of war. Lastly, the article provides that once a prisoner of war has served out their sentence, they may not be treated differently from their fellow prisoners.
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B. Historical background
3719  Article 88 brings together two distinct provisions of the 1929 Geneva Convention on Prisoners of War and two entirely new paragraphs. In its present form, it can be traced back to draft article 78 submitted to the 17th International Conference of the Red Cross in Stockholm in 1948, which was an amalgam of Articles 46(2) and 48(1) of the 1929 Convention and became the first and fourth paragraphs of Article 88. The provisions relating to women are new, having been added at the 1949 Diplomatic Conference.
3720  A decision was made to separate the provisions of Article 46 of the 1929 Convention, such that those that dealt with the nature and duration of penalties were contained in one provision (draft article 77), while those relating to treatment while undergoing punishment were moved to the following article (draft article 78).[2] As a result, Article 46(2) of the 1929 Convention became the basis of draft article 78(1) (the present Article 88(1)). The 1929 provision, however, applied only to disciplinary punishments, so, at the suggestion of the ICRC, the 1947 Conference of Government Experts expanded its scope of application to include judicial punishments.[3]
3721  The second rule in draft article 78 came from Article 48(1) of the 1929 Convention, which provided that prisoners of war who had undergone judicial or disciplinary punishment must not be treated differently from other prisoners.[4] This rule eventually became Article 88(4). The second and third paragraphs of Article 88, which relate to the treatment of women, were introduced at the 1949 Diplomatic Conference.[5] An ICRC proposal to include the same protection for adolescents as that granted to women was not retained as it was considered that this issue was sufficiently addressed in Article 16.[6]
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C. Paragraph 1: Assimilation according to rank
3722  Article 88(1) gives concrete expression to the principle of assimilation in the treatment of prisoners of war undergoing disciplinary or judicial punishment. The principle of assimilation is laid down in Article 82, which provides that prisoners of war are subject to the same ‘laws, regulations and orders in force in the armed forces of the Detaining Power’. It follows, therefore, that while undergoing disciplinary or judicial punishment, prisoners of war must be treated in the same manner as the Detaining Power’s own forces.
3723  The present provision is more specific, however, providing that prisoners of war undergoing punishment may not be treated more severely than members of the Detaining Power’s armed forces of equivalent rank. In this way, the provision is related to some other provisions that take into account the rank of prisoners.[7] The application of Article 88(1) is contingent on prisoners of war providing information about their rank at the time of capture, as provided for in Article 17(1). The application of Article 88 would also be affected by how well the Parties to the conflict comply with Article 43 concerning notification of ranks in use in their armed forces.
3724  Article 88(1) provides that the treatment of prisoners of war may not be ‘more severe’ than that applied in respect of the same punishment to members of the armed forces of the Detaining Power of equivalent rank. However, this does not preclude the Detaining Power from according them better treatment, as sometimes happened during the Second World War.[8] The same considerations apply with regard to paragraphs 2 and 3.
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D. Paragraphs 2 and 3: Treatment of women
1. Paragraph 2: Women prisoners of war
3725  Article 88(2) sets out two rules. The first would have been more appropriately placed in Article 87, since it provides that women prisoners of war may not be sentenced to punishments more severe than those applicable to women in the Detaining Power’s own armed forces. The second rule corresponds to the provision in Article 88(1), except that no mention is made of differing treatment according to rank. However, since Article 88(1) also applies to women prisoners of war, it follows that, in respect of the same punishment, women prisoners of war must also be treated no more severely than members of the Detaining Power’s armed forces of equivalent rank, provided the safeguard contained in Article 88(3) is observed.
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2. Paragraph 3: Minimum safeguards for women prisoners of war
3726  Like paragraph 2, the provision also sets out two rules. The first relates to Article 87 and prohibits awarding women prisoners of war a punishment more severe than would be awarded to men members of the armed forces of the Detaining Power for a similar offence. The second prohibits men prisoners from being treated more severely while undergoing punishment than men members of the armed forces of the Detaining Power. Paragraph 3 does not refer to rank, but as mentioned above, the provisions of Article 88(1) apply equally to women prisoners of war, so it follows that they must also be treated, in respect of the same punishment, no more severely than members of the Detaining Power’s armed forces of equivalent rank.
3727  Article 88(3) gives expression to the requirement in Article 14(2) that women ‘in all cases benefit by treatment as favourable as that granted to men’[9] and to the fundamental prohibition of adverse distinction based on sex under international humanitarian treaty and customary law.[10]
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3. General
3728  The provisions of Article 88(2) and 88(3) give expression to the general rule setting out the special protection of women contained in Article 14(2).[11] These two paragraphs were initially destined to be in a separate article, but this did not materialize. Instead, they were inserted in Article 88 during the 1949 Diplomatic Conference.[12]
3729  At the Conference, the United Kingdom proposed the inclusion of these two paragraphs.[13] Other delegations argued that it was not strictly necessary to make special provision for women, since Article 14 was sufficient in this regard.[14] For example, the French delegate stated that these two paragraphs ‘added nothing to the provisions of Article [14]’ and that ‘[o]ne might even admit that the repetition was useless’.[15] However, the United Kingdom noted that each section of the chapter on penal and disciplinary sanctions ‘should, as far as possible, be complete in itself’,[16] arguing that for this reason it was prudent to include explicit rules for the protection of women serving sentences in Article 88.[17] Similar additions were included in Article 97 (execution of disciplinary punishment: premises) and Article 108 (execution of judicial penalties).
3730  Also at the Conference, the ICRC suggested that all persons under 18 should benefit from the same safeguards as those accorded to women.[18] However, in this instance, the Conference decided that this was not necessary as ‘provision was made for the case of adolescents in Article [16]’.[19]
3731  The structure of paragraphs 2 and 3 suggest that the drafters assumed that generally, for the same offence, women in the armed forces of the Detaining Power were likely to be awarded lighter penalties and to be treated less severely than men in respect of the same offence. However, records of the discussions during the 1949 Diplomatic Conference show that consideration was given to experiences during the Second World War that had revealed that ‘it was urgently necessary to safeguard the position of women in the hands of Powers where their status was lower than that of men’.[20] By making provision for the prohibition of discrimination against women separate from the general obligation contained in Article 16 to ensure equality of treatment for all prisoners of war, the drafters acknowledged the specific risk of discrimination women face.[21] These records show that the drafters wished to stress that any discriminatory treatment of women prisoners of war is forbidden, irrespective of the legal standing that women otherwise have in the country of the Detaining Power.[22] This includes a prohibition on the Detaining Power discriminating against women prisoners of war based on the notion that captured women have violated cultural norms that run against women taking on combat roles in its own military forces.[23]
3732  Article 88(2) and (3) flesh out the prohibition of adverse distinction based on sex. Paragraph 2 seeks to ensure that women prisoners of war are treated in the same manner as women members of the Detaining Power’s armed forces. In situations where harsher penalties and treatment are envisioned for women than for men for the same offence, paragraph 3 provides a minimum safeguard, requiring that, for a similar offence, women ‘in no case’ be treated more severely than men members of the armed forces of the Detaining Power of equivalent rank.
3733  In assessing the severity of particular punishments and treatment, regard must be had to considerations such as the health, age, gender and background of the prisoner.[24]
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E. Paragraph 4: Treatment after execution of penalty
3734  Having served out the term of their sentence, a prisoner of war may not be penalized further. This accords with both the law and principles of equity. However, in view of the experience of the First World War, a specific provision to this effect was included in the 1929 Convention.[25] It now features as the final paragraph of Article 88. The provision requires that prisoners of war who have completed their sentences be treated in the same manner as other prisoners of war. They may not suffer discriminatory treatment as a result of having been subjected to punishment. This rule also follows from the obligation in Article 16 to treat all prisoners alike.
3735  There is one specific exception to this rule, however, in regard to prisoners of war who are recaptured after attempting to escape. In such cases, Article 92(3) provides that ‘prisoners of war punished as a result of an unsuccessful escape may be subjected to special surveillance’.[26] Such surveillance does not amount to a punitive or discriminatory measure but is warranted by the Detaining Power’s interest to prevent escapes.
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Select bibliography
Durham, Helen and O’Byrne, Katie, ‘The dialogue of difference: gender perspectives on international humanitarian law’, International Review of the Red Cross, Vol. 92, No. 877, March 2010, pp. 31–52.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978.

1 - 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.
2 - Draft Conventions submitted to the 1948 Stockholm Conference, pp. 106–107.
3 - Report of the Conference of Government Experts of 1947, p. 207.
4 - Draft Conventions submitted to the 1948 Stockholm Conference, pp. 107–108.
5 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 305.
6 - Ibid. p. 502.
7 - See e.g. Articles 39(2) and (3), 43, 44 and 45.
8 - Pictet (ed.), Commentary on the Third Convention, ICRC, 1960, pp. 433–434.
9 - See the commentary on Article 14, section D.3.
10 - See Article 16 and ICRC Study on Customary International Humanitarian Law (2005), Rule 88.
11 - See the commentary on Article 14, section D.
12 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 305 and 516.
13 - See ibid. Vol. II-A, pp. 305, 486, 489–490 and 516; Vol. III, p. 80 (Annex 150).
14 - See ibid. Vol. II-A, pp. 489–490.
15 - See ibid.
16 - See ibid. pp. 489.
17 - See ibid. pp. 486 and 489–490.
18 - See ibid. p. 502.
19 - See ibid.
20 - Ibid. p. 249 (United Kingdom).
21 - Ibid. pp. 248–249.
22 - Ibid.
23 - Charlotte Lindsey, Women facing war: ICRC study on the impact of armed conflict on women, ICRC, Geneva, 2001, p. 24.
24 - For a general discussion of the protection of different categories of prisoners with distinct needs, see Introduction, section A.3.b.
25 - Geneva Convention on Prisoners of War (1929), Article 48(1).
26 - For more details, see the commentary on Article 92, section E.