Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 90 : Duration of disciplinary punishment
Text of the provision*
(1) The duration of any single punishment shall in no case exceed thirty days. Any period of confinement awaiting the hearing of a disciplinary offence or the award of disciplinary punishment shall be deducted from an award pronounced against a prisoner of war.
(2) The maximum of thirty days provided above may not be exceeded, even if the prisoner of war is answerable for several acts at the same time when he is awarded punishment, whether such acts are related or not.
(3) The period between the pronouncing of an award of disciplinary punishment and its execution shall not exceed one month.
(4) When a prisoner of war is awarded a further disciplinary punishment, a period of at least three days shall elapse between the execution of any two of the punishments, if the duration of one of these is ten days or more.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
3764  Article 90 deals with the duration of disciplinary punishments and the timelines for their execution. It sets the maximum duration of any disciplinary punishment awarded under Article 89 at 30 days and specifies that this maximum also applies if a prisoner of war is sentenced at the same time for several disciplinary offences. The article further prescribes a maximum period of one month between the sentencing of a prisoner and the execution of the punishment and requires a minimum of three days between the execution of consecutive disciplinary punishments. Article 90 also provides that any period of confinement awaiting the hearing of a disciplinary offence or the award of disciplinary punishment must be deducted from the eventual punishment.
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B. Historical background
3765  Prior to the adoption of the 1929 Geneva Convention on Prisoners of War, apart from some bilateral treaties adopted during the First World War,[1] the degree of severity – including its duration – of a disciplinary punishment for prisoners of war was subject exclusively to ‘the laws, regulations, and orders in force in the army of the State in whose power they are’.[2] Article 54 of the 1929 Convention introduced a 30-day maximum for any single disciplinary punishment, as well as provisions essentially similar to paragraphs 2 and 4 of Article 90. However, this restriction proved insufficient.
3766  During the Second World War, the ICRC frequently had to make representations to ensure that the time a prisoner of war spent in confinement while awaiting a hearing was deducted from the punishment awarded.[3] The changes to Article 54 of the 1929 Convention – notably the obligation to take into account pre-hearing confinement under paragraph 1 and the new paragraph 3 – were introduced in the present article by the Sub-Committee on Penal Sanctions during the Diplomatic Conference in 1949.[4] The draft article was subsequently adopted by the plenary of the Diplomatic Conference without much discussion.[5]
3767  In conflicts since the Second World War, the ICRC has observed instances of non-compliance with aspects of Article 90.[6]
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C. Paragraph 1: Duration of a single punishment
1. Limit of 30 days
3768  The first sentence of Article 90(1) provides that the duration of any single punishment must in no case exceed 30 days. The term ‘any single punishment’ refers to all types of punishments listed in Article 89: fines, discontinuance of privileges, fatigue duties and confinement.[7]
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2. Confinement awaiting a hearing or disciplinary punishment
3769  The second sentence of Article 90(1) requires that any period of confinement awaiting the hearing of a disciplinary offence or the pronouncement of a disciplinary punishment must be deducted from the sentence that is ultimately handed down to a prisoner of war. This provision must be read together with Article 95(2), which specifies that ‘confinement awaiting the disposal of an offence against discipline shall be reduced to an absolute minimum and shall not exceed fourteen days’.
3770  The requirement to deduct from the period of confinement imposed on the prisoner any time spent in confinement prior to the award of the punishment is self-evident.[8] Any prior period of confinement must equally be taken into account if the prisoner is sentenced to another disciplinary punishment, such as fatigue duties or a fine.
3771  As disciplinary offences must be punished without delay, and as prisoners of war are generally not in a position to flee or to destroy evidence, the need for confinement awaiting hearing does not arise under normal circumstances in connection with disciplinary matters. If deemed necessary by the Detaining Power, confinement pending hearing can only be resorted to in accordance with the limitations set forth in Article 95.
3772  If a prisoner of war is accused of having committed an offence liable to a judicial penalty, the period of confinement awaiting trial may be up to three months.[9] If the court ultimately awards only a disciplinary punishment, the accused must be freed immediately, and no further punishment may be imposed, if the period of confinement awaiting hearing amounted to 30 days or more.
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D. Paragraph 2: Punishment for multiple offences
3773  Article 90(2) specifies that the maximum duration of 30 days may not be exceeded, even if the prisoner of war is answerable for several acts at the same time. This provision applies irrespective of whether the offences are related. Thus, if a prisoner has committed different offences and receives punishments for each of them, which are to be served concurrently, the period of time during which the prisoner can be subjected to disciplinary punishment may not exceed 30 days.[10]
3774  Reading Article 90(2) together with Article 90(4) indicates that this restriction applies to all offences that are committed until such time as punishment is awarded and that the Detaining Power is aware of. Article 90 does not permit trying offences one after another to circumvent the 30-day maximum. However, it seems not to apply to offences committed after the award has been pronounced, even if the prior punishment has not yet been executed. The Detaining Power would therefore be entitled to award a further punishment for any subsequent offence, even if the maximum of 30 days’ punishment had already been awarded for previous offences, on condition that the interruption period provided for in Article 90(4) is respected.
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E. Paragraph 3: Execution of punishment
3775  According to Article 90(3), the period between the pronouncement of a disciplinary punishment and its execution must not exceed one month. The purpose of this provision is to re-emphasize that any disciplinary offence must be punished without delay. If more than one month elapses but the award is still enforced, the Detaining Power would violate Article 90(3). Therefore, after one month the punishment is invalidated, and the prisoner may not be sanctioned again for the same act or on the same charge.[11]
3776  The Convention does not prescribe a minimum period of time between pronouncing an award of disciplinary punishment and its execution. The reason is that as a general rule the Third Convention does not provide for an appeals procedure requiring for any stay of implementation in the case of disciplinary punishment.[12] If punished persons consider that they are victims of an error, they may avail themselves of the complaints procedure provided for in Article 78 but must begin the punishment awarded. If, however, the laws or regulations applicable to the forces of the Detaining Power foresee administrative or judicial appeal mechanisms against disciplinary punishment, these will also need to be made available to prisoners of war.[13]
3777  The language of the article does not provide for exceptions. Nevertheless, it seems reasonable to accept limited delays in the execution of punishments when they are in the prisoner’s favour, for example, if their health prevents the immediate execution of the punishment, or if the prisoner submits a complaint under Article 78 or a request that the punishment be delayed until the complaint is heard.
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F. Paragraph 4: Punishment for subsequent offences
3778  Article 90(4) provides that if a prisoner of war is awarded a further disciplinary punishment, a period of at least three days must elapse between the execution of any two of the punishments, if the duration of one of these is ten days or more. As evident from the wording, ‘a further disciplinary punishment’, the present provision covers punishments awarded either after the first punishment was awarded and before it was executed, during the execution of the punishment or immediately after execution of the first punishment.[14] Together with Article 90(2), this provision ensures that a prisoner of war will not be confined for more than 30 days without a break.
3779  Article 90(4) applies whenever two subsequent disciplinary punishments are awarded and one of them is ten days or more. In this respect, it is more restrictive than the first two paragraphs of the article: while Article 90(1) and (2) permit a single disciplinary punishment of a maximum of 30 days, Article 90(4) would prohibit, for example, that a disciplinary punishment of five days be immediately succeeded by another disciplinary punishment of ten days.
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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, pp. 313–319 and 376–377.
Hingorani, Rup C., Prisoners of War, 2nd edition, Oceana Press, Dobbs Ferry, 1982.
Krähenmann, Sandra, ‘Protection of Prisoners in Armed Conflict’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 359–411, paras 728–729, at 403–404.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978.

1 - Agreement between France and Germany concerning Prisoners of War (1918), Articles 43 and 45(1); Agreement between Austria-Hungary and Italy concerning Prisoners of War and Civilians (1918), Articles 84(2), 85, 87(1) and 93(1); and Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Articles 82–83.
2 - Hague Regulations (1907), Article 8(1). See also Hague Regulations (1899), Article 8(1).
3 - This was despite the fact that Article 47(3) of the 1929 Convention required that ‘the period during which a prisoner is under arrest (awaiting punishment or trial) shall be deducted from the sentence, whether disciplinary or judicial, provided such deduction is permitted in the case of members of the national forces’. Article 47(1) required more generally that any pre-punishment confinement ‘shall be reduced to a strict minimum’. For examples of duration of pre-punishment confinement or of confinement as a disciplinary punishment during the Second World War, see Bretonnière, pp. 313–319 and 376–377, and United Kingdom, Military Court at Singapore, Hojo case, Abstract of evidence, 1946, p. 3.
4 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 305. The proposed changes were not discussed at the Conference of Government Experts in 1947 or by the 17th International Conference of the Red Cross in Stockholm in 1948.
5 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 490 and 504, and Vol. II-B, p. 180.
6 - See e.g. Maia/Kolb/Scalia, p. 411 (quoting ICRC Archives, B AG 214 223-001).
7 - As regards fines, the maximum duration of 30 days is reflected in the requirement in Article 89 that a fine be determined based on a prisoner’s advances of pay and working pay ‘during a period of not more than thirty days’.
8 - If the pre-punishment confinement was longer than the confinement awarded as punishment, the prisoner of war must be released immediately.
9 - Article 103(1).
10 - See also Levie, p. 329.
11 - Article 86.
12 - See Article 96.
13 - See Article 82(1), which sets out the principle of assimilation with regard to penal and disciplinary sanctions. For a general discussion of the principle of assimilation, see Introduction, section A.3.c.
14 - Any further punishment may only be awarded for an offence for which the prisoner of war has not been punished before (Article 86).