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Commentary of 1960 


The principle of ' nullum crimen sine lege, ' which is a traditional principle of penal law, was added by the drafters of the Convention to the basic principles set forth in Article 61 of the 1929 Convention (now contained in paragraphs 2 and 3 of the present Article); it has been specified, however, in order to take Article 85 into account, that both the legislation of the Detaining Power and international law must be taken into consideration.
This provision should be compared with Article 11, paragraph 2, of the Universal Declaration of Human Rights, which states: "No one small be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed."
The phrase "international law, in force" is nevertheless vague. The Rapporteur of Committee II pointed out to the Plenary Assembly of the 1949 Conference that this referred only to "generally recognized provisions" (1). Does this refer to customary international law or to [p.471] international law as set forth in legal instruments? The French text seems to refer to the latter, since it states that in order for the act to be punishable, it must be "expressément réprimé" (expressly forbidden) by international law in force; on the other hand, the English text, which is also authentic, is more flexible ("no prisoner of war may be tried or sentenced for an act which is not forbidden...") and seems to permit the application of customary law (2).
In actual fact, since the codification of 1949, there are no customary rules which are not included either in the Hague Conventions or in the new Conventions. The points for which no provision is made are precisely those on which there is a lack of agreement (e.g. definition of military objectives, attitude to be adopted towards a pilot who escapes from his plane by parachute, wearing of uniforms of the enemy armed forces, etc.). Any customary rules which are not embodied in national legislation should therefore be applied only in accordance with instructions regularly given to national troops and which are therefore respected in the normal way by those troops.
On the other hand, the customary rules become fully applicable in the case of a prisoner whose country of origin, or the Power on which he depends, is not a party to the international instruments governing the laws of war.


In accordance with present-day concepts, an accused person may not be induced by coercion to make statements; he is always entitled to refuse to reply to any questions put to him, whether by police officials or by a magistrate or judge. The onus of proof is on the prosecution; the accused may simply abstain from making any statement, in accordance with the principle ' nemo tenetur edere contra se. '
The notion that the accused "owes" it to justice to tell the truth led to the institution of torture. Torture may, however, lead to results which are contrary to the law if, under the effect of exhaustion or pain, the accused is induced to make a statement which is untrue. In accordance with the Conventions, questioning must be carried out in normal conditions: not only is torture forbidden, but also the use of any chemical products designed to overcome a person's powers [p.472] of discernment, to influence or restrain free will, or to build up artificial impressions; hypnosis and narco-analysis are also forbidden. The same obviously applies to practices such as protracted questioning resulting in extreme exhaustion and nervous breakdown and carried out in such conditions that the accused is induced to admit anything at all in order to bring it to an end.


This provision is complemented by Article 105 below, which sets forth in detail the rights and means of defence.
This principle is also contained in the Universal Declaration of Human Rights of December 10, 1948 (Articles 10 and 11), as well as in the draft Covenant on Human Rights, Article 6 of which is based on certain safeguards considered as essential: the right to a fair and public hearing by an independent and impartial tribunal, during a trial at which the accused has all the guarantees necessary for his defence; the right to defend himself in person or through legal assistance, the latter to be given free if the accused has not sufficient means to pay for it.
In addition to the conditions set forth in paragraphs 1 and 2 of the present Article, the following guarantees are now considered as necessary for the accused:

(a) to be notified, in good time, in detail, and in a language which he
understands, of particulars of the charge brought against him (see
Articles 104 and 105, paragraph 4 );

(b) to have sufficient time to prepare his defence (Articles 104 and 105,
paragraphs 1, 2, 3 and 4 );

(c) to conduct his own defence or to obtain the assistance of an advocate
or counsel of his own choice or, if he is without the necessary
funds, to obtain free assistance by a counsel so appointed (Article
105, paragraphs 1 and 2 );

(d) to question or to have questions put to witnesses for the prosecution
in the presence of the accused and to question witnesses for the
defence, in the same way as witnesses for the prosecution are
questioned and in accordance with the normal rules of procedure
(accusatorial or inquisitorial) (see Article 105, paragraph 3 );

[p.473] (e) to have the services, free of charge, of an interpreter, if he does
not understand the language of the discussion or cannot express
himself in the language of the court (see Article 105, paragraph 1 ).

Lastly, the freedom of the counsel for the defence must be ensured; not only must he be able to communicate freely with the accused, to prepare the whole defence and to plead without restriction (Article 105, paragraph 3 ), but he must also be assured of suffering no prejudice of any kind, whether personal or professional, for having taken on the prisoner's defence. It goes without saying that the defence must be proper and must not offend the dignity of the court.

* (1) [(1) p.470] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 571. Only
Spain took a definite stand on the matter by making the
following reservation at the time of signature: "Under
international law in force, Spain understands she only
accepts that which arises from contractual sources or
which has been previously elaborated by organizations in
which she participates". ' Final Record, ' Vol. I, p. 346;

(2) [(1) p.471] See HINZ, ' Das Kriegsgefangenenrecht, '
Berlin-Frankfurt 1955, p. 155 ff; see also Article 85
above, pp. 414 and 416;