Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 39 : Administration. Saluting
Text of the provision*
(1) Every prisoner of war camp shall be put under the immediate authority of a responsible commissioned officer belonging to the regular armed forces of the Detaining Power. Such officer shall have in his possession a copy of the present Convention; he shall ensure that its provisions are known to the camp staff and the guard and shall be responsible, under the direction of his Government, for its application.
(2) Prisoners of war, with the exception of officers, must salute and show to all officers of the Detaining Power the external marks of respect provided for by the regulations applying in their own forces.
(3) Officer prisoners of war are bound to salute only officers of a higher rank of the Detaining Power: they must, however, salute the camp commander regardless of his rank.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2479  Article 39 is the first article of chapter VI of the Third Convention entitled ‘Discipline’. Maintaining order and discipline in prisoner-of-war camps is vital for the Detaining Power in fulfilling its duty to treat prisoners of war in accordance with the Convention.
2480  From the moment of capture, the order and hierarchy of the captured soldiers are disrupted; officers are likely to be separated from other ranks. One of the first tasks of the Detaining Power is, therefore, to organize discipline on this changed basis. Article 39 contains rules governing the administration of the camps and saluting between prisoners and officers of the Detaining Power.
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B. Paragraph 1: Administration and responsibility for the application of the Convention
1. First sentence: Appointment of a responsible commander
2481  Article 39(1) provides that the organization and management of every prisoner-of-war camp must be placed under the responsibility of a commissioned officer belonging to the regular armed forces of the Detaining Power.[1] Already in 1929, Article 18 of the Geneva Convention on Prisoners of War required that each prisoner-of-war camp be placed under the authority of a responsible officer. However, during the Second World War non-commissioned officers were sometimes designated by Detaining Powers to run such camps, in particular in the Far East.[2] In 1949, States wanted to make sure that only commissioned officers could be in charge of prisoner-of-war camps at all times.[3]
2482  The officer in question must be a member of the regular armed forces of the Detaining Power.[4] This will prevent camps from being commanded by members of paramilitary or even non-military organizations.[5] The 2008 Montreux Document on Private Military and Security Companies recalls this obligation:
Contracting States have an obligation not to contract PMSCs [private and military security companies] to carry out activities that international humanitarian law explicitly assigns to a State agent or authority, such as exercising the power of the responsible officer over prisoner-of-war camps or places of internment of civilians in accordance with the Geneva Conventions.[6]
2483  However, the reference to ‘regular armed forces’ in Article 39(1) might be problematic, as a literal application would prevent members of militias and volunteer corps that are under the overall control of and belong to a Party to a conflict within the meaning of Article 4A(2) from commanding a prisoner-of-war camp. It is a basic principle in all armed conflicts that Parties to a conflict must be able to capture and detain enemy forces. In the ICRC’s view, the reference to ‘regular armed forces’ in this paragraph should be interpreted to cover groups that are under the overall control of a Party to a conflict, in particular when the armed forces of a Party consist only of such groups.[7]
2484  Officers appointed by the Detaining Power will be responsible for prisoner-of-war camps, as well as any labour detachments or annexes administratively attached to the main camps.[8] In certain cases, it may be necessary to delegate that authority, outside the main camp, to an officer acting under the responsible commander. The camp commander will remain personally responsible for the application of the Convention both in the main camp and in all its annexes.[9]
2485  The text of Article 39(1) requires that prisoners of war be placed under the immediate authority of the responsible commissioned officer appointed by the Detaining Power. Negotiators included the word ‘immediate’ to stress that the commissioned officer placed in charge cannot escape responsibility or blame other staff members for alleged violations of the Convention.[10]
2486  Responsibility for maintaining camp order and discipline rests with the Detaining Power and cannot be delegated to certain prisoners of war.[11] Practice during the Second World War showed that where some prisoners were given disciplinary powers over fellow prisoners, it led to numerous abuses.[12]
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2. Second sentence: Responsibility for applying the Convention
2487  Each commissioned officer appointed by the Detaining Power to run a prisoner-of-war camp must have in their possession a copy of the Third Convention and be fully acquainted with its content. Article 39 makes the commissioned officer responsible for ensuring respect for the Convention, and that officer must therefore make sure that its provisions are known to camp staff, guards and all personnel under their responsibility. If the Convention is to be respected in the daily running of the camp, it is essential that the provisions of the Convention relevant to their areas of responsibility be known by the staff involved in the direct supervision of the lives and activities of prisoners of war.[13] It is assumed, therefore, that to give effect to Article 39 the Convention must be in an official language of the officer’s country, or at least a language the officer and all personnel understand.[14] The second sentence of Article 39(1) contains a specific application of the broader requirement contained in Article 127(2) that ‘[a]ny military or other authorities, who in time of war assume responsibilities in respect of prisoners of war, must possess the text of the Convention and be specially instructed as to its provisions.’
2488  Article 39(1) requires that the camp commander be personally responsible for the application of the Convention, under the direction of the government of the Detaining Power. From the preparatory work for the Convention, it can be seen that States considered this a fundamental principle. The camp commander may be held personally responsible for the proper implementation and application of the Convention, including any breach of the Convention attributable to one or more of their subordinates. They may be found criminally responsible for failing to take proper measures to prevent subordinates from committing war crimes or, if already committed, for failing to punish the persons responsible in accordance with the principle of command responsibility.[15] Furthermore, the camp commander may be held responsible for other more minor violations of the Convention, even if only, for example, through the imposition of administrative sanctions. It is the responsibility of the camp commander, therefore, to take all necessary measures, disciplinary or otherwise, to achieve a proper application of the Convention.[16]
2489  The words ‘under the direction of his Government’ were interpreted differently by various delegations during the 1949 Diplomatic Conference. Some wanted these words to be deleted, fearing that they could be seen as weakening the individual responsibility of the commander.[17] Others considered them essential to recall the responsibility of governments for the unlawful acts of their agents, which runs in parallel to the individual responsibility of the camp commander.[18] All agreed, however, that both responsibilities existed and that the Detaining Power’s responsibility in no way absolves individuals of responsibility for their own actions in respect of prisoners.[19] Both the individual commander and the Detaining Power remain fully responsible for the application of the Convention and, as a result, for any violations that might occur in a prisoner-of-war camp.[20] Any lack of adequate control on the part of the government would certainly not relieve the camp commander of their obligations.
2490  A camp commander will not evade responsibility if the government gave them orders contrary to the provisions of this Convention. [21] It is widely accepted that obeying a superior order does not relieve a subordinate of their responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act.[22]
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C. Paragraph 2: Saluting and external marks of respect
2491  Article 39(2) regulates the external marks of respect that prisoners of war, with the exception of officers, owe to all officers of the Detaining Power.[23] They must salute and show relevant external marks of respect to all officers of the Detaining Power, apart from representatives of the Detaining Power who are not officers and all non-commissioned officers.[24]
2492  The Detaining Power cannot impose on prisoners of war its own regulations, for example on saluting.[25] In some prisoner-of-war camps during the Second World War, attempts were made to do so.[26] However, the Convention clearly indicates that it is the law and regulations applicable in the forces to which the prisoners of war belong that will regulate the external marks of respect owed to officers of the Detaining Power. These may differ between individual armed services.[27]
2493  The text does not say whether or how officers of the Detaining Power are to return a prisoner’s salute.[28] However, ordinary military courtesy calls for a salute to be returned.[29]
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D. Paragraph 3: Saluting by officers
2494  Officer prisoners of war are required to salute the camp commander, regardless of their rank, as well as officers of the armed forces of the Detaining Power who are of a higher rank than them.[30] Article 18 of the 1929 Convention required prisoners of war to salute officers of the Detaining Power who were their superiors or equals in rank. The latter requirement was abandoned during the negotiations, as it was felt that the exchange of salutes between equal ranks was a matter of courtesy that the Convention did not need to regulate.[31]
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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.
– (ed.), Documents on Prisoners of War, International Law Studies, U.S. Naval War College, Vol. 60, 1979.

1 - The term ‘commissioned’ does not appear in the French version of the Convention. In English, ‘commissioned officer’ refers to an officer holding rank by commission, meaning one who has derived their authority from a commission issued by the head of State of the country in whose armed forces they serve.
2 - See Levie, p. 163; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 264; and Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 239–240.
3 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 264 (Australia).
4 - The term ‘regular armed forces’ includes members of reserve units when they have been incorporated into the regular armed forces through mobilization or other formal means.
5 - See United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 160, para. 8.44. The drafters of the Convention clearly wanted to prevent the kind of abuses that took place during the Second World War: German camps were sometimes commanded by members of the paramilitary SS or even the civilian Gestapo.
6 - Montreux Document on Private Military and Security Companies (2008), Part One, statement 2, p. 11.
7 - See also Article 43 of Additional Protocol I defining armed forces as ‘all organized armed forces, groups and units of a Party to a conflict which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party’.
8 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 240.
9 - See also the commentary on Article 96(2), para. 3904.
10 - See Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. I, 8th meeting, p. 6 (New Zealand).
11 - See also Article 96(2) and (3), which provides that ‘disciplinary punishment may be ordered only by an officer having disciplinary powers in his capacity as camp commander, or by a responsible officer who replaces him or to whom he has delegated his disciplinary powers’.
12 - See Bretonnière, pp. 138–140.
13 - See Levie, p. 165.
14 - See also the commentary on Article 128, para. 5075.
15 - For more details on the principle of command responsibility, see the commentary on Article 129, para. 5121. See also Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul, commentary on Rule 153, pp. 558–563.
16 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 459.
17 - See the position taken by the United Kingdom, the ICRC and New Zealand, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 264 and 401. See also Levie, p. 164.
18 - See e.g. the views expressed by the United States, Italy and Venezuela, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 264. See also the position of Canada, ibid. p. 401.
19 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 266–277, as well as the position of Canada and the United Kingdom, Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. I, 8th meeting, pp. 15 and 13, respectively.
20 - See Levie, p. 164. See also the wording of Article 12(1): ‘Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given [prisoners of war].’
21 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 240.
22 - See Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, commentary on Rule 155, pp. 565–567, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul. See also the commentary on Article 49 of the First Convention, para. 2856.
23 - External marks of respect will differ between armed forces, but it may be something as simple as not talking to an officer with your hands in your pockets.
24 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 240–241. For an example of a conflict in which officer prisoners of war were ordered to salute non-commissioned officers, see UN Security Council, Prisoners of war in Iran and Iraq: The report of a mission dispatched by the Secretary-General, January 1985, UN Doc. S/16962, 22 February 1985, para. 247.
25 - See e.g. United States, Army Regulation on Enemy Prisoners, Retained Personnel, Civilian Internees and Other Detainees, 1997, para. 3-6(c)(3), providing that prisoners of war ‘may salute in the way prescribed by the regulations in force in their own armies’.
26 - See Ibid. p. 241; Bretonnière, pp. 141–142; and Levie, pp. 171–172.
27 - For some examples, see Levie, p. 171.
28 - States decided not to regulate this matter in the Convention; see Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 241.
29 - Levie, pp. 170–171. See e.g. United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 161, para. 8.46 (‘Salutes should be returned.’), and United States, Army Regulation on Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, 1997, para. 3-6(d)(1) (‘U.S. military personnel will not be required to salute EPW [enemy prisoners of war] or assume the position of attention when addressing them; however, U.S. officers will return the salutes of EPW.’).
30 - A UN mission registered complaints by Iraqi officers in prisoner-of-war camps in Iran in 1985, some of whom alleged that they were ordered to salute non-commissioned officers, in violation of Article 39(3) of the Convention; see UN Security Council, Prisoners of War in Iran and Iraq: The report of a mission dispatched by the Secretary-General, January 1985, UN Doc. S/16962, 22 February 1985, para. 247.
31 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 241.