Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 115 : Prisoners serving a sentence
Text of the provision*
(1) No prisoner of war on whom a disciplinary punishment has been imposed and who is eligible for repatriation or for accommodation in a neutral country, may be kept back on the plea that he has not undergone his punishment.
(2) Prisoners of war detained in connection with a judicial prosecution or conviction and who are designated for repatriation or accommodation in a neutral country, may benefit by such measures before the end of the proceedings or the completion of the punishment, if the Detaining Power consents.
(3) Parties to the conflict shall communicate to each other the names of those who will be detained until the end of the proceedings or the completion of the punishment.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
4392  Prisoners of war may be subjected to disciplinary or judicial proceedings and punishment in accordance with the relevant provisions of the Convention.[1] Article 115 deals with the cases of prisoners of war who, based on their medical condition, are eligible or designated for repatriation or accommodation in a neutral country during hostilities, but are undergoing such proceedings or punishments.
4393  Paragraph 1 establishes that not yet having undergone or completed a disciplinary punishment may not prevent eligible prisoners of war from being repatriated or accommodated in a neutral country. The situation is different for prisoners of war detained in connection with a judicial prosecution or conviction. Pursuant to paragraph 2, it is for the Detaining Power to decide whether they may be allowed to benefit from direct repatriation or accommodation in a neutral country before the end of the proceedings or the completion of the punishment. In other words, the obligation to repatriate, or seek accommodation in a neutral country, does not prevail over the right of the Detaining Power to keep prisoners of war detained for the duration of criminal proceedings against them, or until the end of their sentences once they have been convicted.
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B. Historical background
4394  The origins of Article 115 can be traced back to the First World War, during which States adopted agreements with rules on the same subject, distinguishing between disciplinary or judicial proceedings and punishment.[2] Subsequently, the 1919 Treaty of Versailles made a similar distinction between prisoners of war undergoing disciplinary punishment and those serving ‘sentence for offences other than those against discipline’. While the former were to be repatriated irrespective of whether they had completed their sentences, the latter could remain detained.[3]
4395  The same distinction between disciplinary and judicial proceedings was also included in Article 53 of the 1929 Geneva Convention on Prisoners of War.[4] During the Diplomatic Conference in 1949, it was suggested that a further distinction be made, with the creation of two categories of prisoners of war undergoing criminal proceedings. According to this proposal, paragraph 1 would include the provision that ‘prisoners of war prosecuted for an offence for which the maximum penalty is not more than ten years or sentenced to less than ten years shall similarly not be kept back’.[5] Paragraph 2 would deal with ‘other’ prisoners of war detained in connection with criminal proceedings or convictions, i.e. those detained for more serious crimes.[6] After considerable discussion and several rounds of voting, the proposal was rejected.[7]
4396  While the second paragraph of Article 53 of the 1929 Convention specified that prisoners of war undergoing criminal prosecution or serving sentence could be excluded from repatriation and kept detained, Article 115(2) of the present Convention makes express provision for their repatriation or accommodation in a neutral country, if the Detaining Power consents. This change was initiated by the Conference of Government Experts in 1947. The commission tasked with revising the 1929 Convention proposed that the prisoners of war concerned ‘shall nevertheless benefit by repatriation … if the [Detaining Power] consents’.[8] This formulation was also put forward at the 17th International Conference of the Red Cross in Stockholm in 1948 and adopted without much debate at the Diplomatic Conference the following year.[9]
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C. Paragraph 1: Prisoners of war undergoing disciplinary punishment
4397  Article 115(1) applies only to wounded and sick prisoners of war.[10] The Convention does not regulate the situation of prisoners of war who are not wounded or sick and who are subjected to disciplinary punishment while awaiting repatriation or internment in a neutral country pursuant to an agreement based on the second sentence of Article 109(2). However, as the purpose of that provision is to alleviate the potentially negative effects of long-term internment on the mental, and sometimes physical, health of prisoners of war, it may be argued that the same humanitarian considerations should apply to these prisoners as to the wounded and sick prisoners covered by Article 115(1). Therefore, if the Detaining Power has concluded a repatriation agreement with the Power on which the prisoners depend or an agreement with a neutral Power for the internment of the prisoners in that State, pursuant to Article 109(2), the execution of the agreement should not be delayed solely because one or more of the prisoners concerned are still undergoing disciplinary punishment. Nor should the prisoners undergoing disciplinary punishment be excluded from a specific repatriation/transfer operation and thus have to wait for a possible next one, which may not be for a considerable time.
4398  The fact that Article 115(1) does not permit wounded and sick prisoners of war to be kept back on the plea that they are undergoing disciplinary punishment means that they are placed on an equal footing with other wounded and sick prisoners of war who are not facing disciplinary punishment; they must also be examined by the mixed medical commission if they are so entitled under Article 113.[11] The commission will propose repatriation or accommodation in a neutral country if the prisoner falls into one of the categories listed in Article 110. The Detaining Power may also determine that the prisoner of war is eligible for repatriation without an examination by the mixed medical commission pursuant to Article 112(2).[12]
4399  The Detaining Power must carry out the decision of the mixed medical commission within three months of it being notified of such decision.[13] Given that the maximum duration of disciplinary confinement is 30 days,[14] this punishment will generally have been completed before that decision has to be carried out. However, within these three months, the Detaining Power may not delay repatriation or accommodation in a neutral country because of an ongoing disciplinary punishment: the decision must still be carried out as soon as possible, even if it means that the entire disciplinary punishment cannot be executed.[15]
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D. Paragraph 2: Prisoners of war detained in connection with a judicial prosecution or conviction
4400  Article 115(2) provides for the repatriation or accommodation in a neutral country during hostilities of prisoners of war detained in connection with a judicial prosecution or conviction, subject to the consent of the Detaining Power. As is the case for Article 115(1), this covers the wounded and sick prisoners of war referred to in Articles 109 and 110.
4401  The wording in paragraph 2, ‘detained in connection with a … conviction’, means that it applies only to convicted prisoners of war whose punishment entails detention and who are serving their sentences at that time. If they are no longer detained in connection with the proceedings, for example because they have been sentenced to pay a fine or because they have been given a suspended sentence, but are still interned as prisoners of war, they benefit from the same regime as other wounded and sick prisoners of war. Their direct repatriation if they are seriously wounded or sick, or their possible accommodation in a neutral country if they are less seriously wounded or sick, may not be rejected because of their conviction.
4402  The repatriation or accommodation in a neutral country of convicted and detained prisoners of war who are wounded or sick is conditioned on the consent of the Detaining Power. Accordingly, the Detaining Power may keep the prisoners of war detained for the duration of the judicial proceedings or until they have served their sentences.
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E. Paragraph 3: Notification
4403  Article 115(3) stipulates that Parties to a conflict must inform their adversaries that a wounded or sick prisoner of war will remain detained pending judicial proceedings or until the completion of the punishment. This provision is designed to ensure that prisoners of war who remain detained despite otherwise being designated for direct repatriation or accommodation in a neutral country can benefit from Articles 109 and 110 as soon as possible after their release from criminal detention.[16] The Power on which the prisoners of war depend can appeal to the Detaining Power on their behalf to have them repatriated or accommodated in a neutral country as soon as the trial ends or the sentence is completed. Furthermore, it helps eliminate any uncertainty as to the fate of a prisoner of war and enables their next of kin to be informed.
4404  Parties to a conflict may transmit this information to each other in one of several ways. First, pursuant to Article 122(5), they are required to notify the information bureau of any releases or repatriations. The information bureau, through the intermediary of the Central Tracing Agency and, where they exist, the Protecting Powers, will then forward this information to the Power on which the prisoners depend.[17] Second, the respective diplomatic services of the Parties to an armed conflict may exchange the relevant information directly. Lastly, if both options fail, the ICRC can offer to assist in implementing this provision.
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Select bibliography
Maia, Catherine, Kolb, Robert and Scalia, Damien, La Protection des Prisonniers de Guerre en Droit International Humanitaire, Bruylant, Brussels, 2015, pp. 495–496.

1 - For details, see Articles 82–108.
2 - Agreement between Austria-Hungary and Serbia concerning Prisoners of War and Civilian Internees (1918), Article IV; Agreement between France and Germany concerning Prisoners of War (1918), Article 18; and Agreement between Austria-Hungary and Italy concerning Prisoners of War and Civilians (1918), Articles 21–22.
3 - Treaty of Versailles (1919), Articles 218 and 219. Marking the end of the First World War, the Treaty of Versailles did not, however, apply during hostilities as Article 115 does.
4 - Article 53 appeared in the general provisions section of the chapter on penal sanctions. For consistency, the ICRC proposed moving it to its current section in the Third Convention. In the 1929 Convention, the provision on repatriation after hostilities of prisoners of war prosecuted or convicted also appeared in the section on repatriation at the end of hostilities and not in the section on penal sanctions. See Draft Conventions submitted to the 1948 Stockholm Conference, Remarks on draft article 105, p. 124.
5 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 336.
6 - Ibid.
7 - Ibid. pp. 448–449, and Vol. II-B, pp. 314–316, 324 and 343.
8 - Report of the Conference of Government Experts of 1947, p. 215.
9 - See Draft Conventions submitted to the 1948 Stockholm Conference, draft article 105, p. 123; Draft Conventions adopted by the 1948 Stockholm Conference, draft article 105, p. 93; and Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 293–294 and 448.
10 - The use of the word ‘accommodation’ rather than ‘internment’ indicates that it only covers wounded and sick prisoners of war. See the commentary on Article 109, para. 4279, for a further discussion of the difference between these terms. Article 53, para. 1, of the 1929 Geneva Convention on Prisoners of War only referred to direct repatriation. It was decided during the 1949 Diplomatic Conference to include the words ‘or for accommodation in a neutral country’ so that it would also cover the prisoners referred to in Article 110(2). See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 294, 335–336 and 447. See also Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 535.
11 - See also Maia/Kolb/Scalia, pp. 495–496. During the 1947 Conference of Government Experts, there was a proposal to make explicit reference to the mixed medical commissions by stating that such prisoners of war were to nevertheless benefit from repatriation ‘should this be considered necessary by the Mixed Medical Commission’. This reference was not included in the draft conventions submitted to the 1948 Stockholm Conference and was indeed not necessary as it was already covered by Articles 112 and 113. Those two articles provide the general framework for the examination of and decisions regarding wounded and sick prisoners of war by a mixed medical commission, which also applies to wounded and sick prisoners of war who are undergoing disciplinary punishment.
12 - An agreement adopted during the First World War provided that, for prisoners of war in this category, a due disciplinary punishment could not delay repatriation. See Agreement between Austria-Hungary and Italy concerning Prisoners of War and Civilians (1918), Article 22(3): ‘Dans les cas d’urgence visés à l’article 8, alinéa 2, une peine disciplinaire à subir par la personne rapatriable ne pourra pas retarder son rapatriement.’ (‘In the urgent cases referred to in Article 8, paragraph 2, a disciplinary punishment due to be undergone by a person eligible for repatriation cannot delay their repatriation.’)
13 - Annex II, Regulations concerning Mixed Medical Commissions, Article 12. For a more detailed discussion of the notification and implementation of decisions of mixed medical commissions, see the commentary on Article 112, section C.3.
14 - See Article 90(1).
15 - See the commentary on Article 112, para. 4365.
16 - With regard to prisoners of war whose medical condition has considerably improved in the meantime, or who have fully recovered, see also the commentary on Article 109, section C.1.b.
17 - Article 122(3).