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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
Commentary
of 1987
Penal prosecutions
[p.1395] Article 6
-- Penal prosecutions
[p.1396] General remarks
4597 The whole of Part II ' (Humane treatment) ' is aimed at ensuring respect for the elementary rights of the human person in
non-international armed conflicts. Judicial guarantees play a
particularly important role, since every human being is entitled to a
fair and regular trial, whatever the circumstances; (1) the
guarantees defined in this article refer to the two stages of the
procedure: preliminary investigation and trial. (2) Just like common
Article 3
, Protocol II leaves intact the right of the established
authorities to prosecute, try and convict members of the armed forces
and civilians who may have committed an offence related to the
[p.1397] armed conflict; however, such a situation often entails the
suspension of constitutional guarantees, the promulgation of special
laws and the creation of special jurisdictions. Article 6 lays down
some principles of universal application which every responsibly
organized body must, and can, respect. (3) It supplements and
develops common Article 3, paragraph 1, sub-paragraph (1)(d)
, which
prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples". This very general
rule required clarification to strengthen the prohibition of summary
justice and of convictions without trial, which it already covers.
Article 6 reiterates the principles contained in the Third and fourth
Conventions, (4) and for the rest is largely based on the
International Covenant on Civil and Political Rights, (5)
particularly Article 15, from which no derogation is permitted, even
in the case of a public emergency threatening the life of the nation.
In Protocol I, Article 75
' (Fundamental guarantees) ' contains rules
with the same tenor.
Historical background
4598 The ICRC draft originally contained two articles: ' Principles of penal law ' and ' Penal prosecutions. ' (6) During the preliminary
examination of those articles numerous amendments were submitted; a
proposal to combine the two provisions in a single article was put
forward, (7) and adopted as a starting point; this was the origin of
the present Article 6.
Analysis of the article
Paragraph 1 -- The scope of application
4599 This paragraph lays down the scope of application of the article by confining it to offences related to the armed conflict; these must
be criminal offences and not merely administrative or disciplinary
offences or procedures. ' Ratione personae, ' Article 6 is quite open
and applies equally to civilians and combatants who have fallen in
the power of the adverse party and who may be subject to penal
prosecutions.
[p.1398] Paragraph 2 -- The right to be tried by an independent and impartial court
' Opening sentence '
4600 The text repeats paragraph 1, sub-paragraph (1)(d) of common Article 3
, with a slight modification. The term "regularly
constituted court" is replaced by "a court offering the essential
guarantees of independence and impartiality". In fact, some experts
argued that it was unlikely that a court could be "regularly
constituted" under national law by an insurgent party. Bearing these
remarks in mind, the ICRC proposed an equivalent formula taken from
Article 84
of the Third Convention, (8) which was accepted without
opposition.
4601 This sentence reaffirms the principle that anyone accused of having committed an offence related to the conflict is entitled to a
fair trial. This right can only be effective if the judgment is given
by "a court offering the essential guarantees of independence and
impartiality". Sub-paragraphs (a)-(f) provide a list of such
essential guarantees; a indicated by the expression "in particular"
at the head of the list, it is illustrative, only enumerating
universally recognized standards.
' Sub-paragraph ' (a) -- ' Right to information and defence '
4602 The ICRC draft simply provided for "a procedure affording the accused the necessary rights and means of defence". (9) That formula
was clarified and developed following the proposal by a delegation,
on which the present text is based. (10) The rules laid down here are
very clear and do not give rise to any difficulties of
interpretation: the accused must be informed as quickly as possible
of the particulars of the offence alleged against him, and of his
rights, and he must be in a position to exercise them and be afforded
the rights and means of defence "before and during his trial", i.e.,
at every stage of the procedure. The right to be heard, and, if
necessary, the right to call on the services of an interpreter, the
right to call witnesses for the defence and produce evidence; these
constitute the essential rights and means of defence. (11)
' Sub-paragraph ' (b) -- ' The principle of individual responsibility '
4603 This sub-paragraph lays down the fundamental principle of individual responsibility; a corollary of this principle is that
there can be no collective penal responsibility for acts committed by
one or several members of a group. This principle is contained in
every national legislation. It is already epressed in
[p.1399] Article 33
of the fourth Convention, where it is more
elegantly worded as follows: "No protected person may be punished for
an offence he or she has not personally committed". (12) The wording
was modified to meet the requirement of uniformity between the texts
in the different languages and, in this particular case, with the
English terminology ("individual penal responsibility"). Article 75,
paragraph 4(b)
, of Protocol I, lays down the same principle.
' Sub-paragraph ' (c) -- ' The principle of non-retroactivity '
4604 This sub-paragraph sets out two aspects of the principle that penal law (13) should not be retroactively applied: ' nullum crimen
sine lege ' and ' nulla poena sine lege. ' The ICRC draft was
inspired by Articles 99
of the Third Convention, 67 of the fourth
Convention and 15, paragraph 1, of the Covenant. (14) The proposal to
adopt this wording was put forward in an amendment which served as a
basis for discussion. (15) There was a long debate, followed by a
vote in Committee resulting in a large majority. (16) The wording of
the Covenant was retained despite some problems of interpretation
owing to the specific context of non-international armed conflict.
This solution was adopted out of a concern to establish in Protocol
II fundamental guarantees for the protection of human beings, which
would be equivalent to those granted by the Covenant in the
provisions from which no derogation may be made, even in time of
public emergency threatening the life of the nation. (17) Article 15
of the Covenant is one of those articles. In fact, the relevance of
including the principle on non-retroactivity was never contested, but
the first sentence of the sub-paragraph, and in particular the words
"under national or international law", were not considered by
everyone to be very clear.
4605 The possible co-existence of two sorts of national legislation, namely, that of the State and that of the insurgents, makes the
concept of national law rather complicated in this context.
4606 The Conference followed the Covenant, though there was no real explanation given as regards the meaning to be attributed to the term
"national law", which appears in the French text though not in the
English text of this sub-paragraph (as the reference to "le droit
national ou international" in French has been abbreviated to "the
law" in English, the following comments apply more particularly to
the French text, although clearly "the law" referred to in the
English text does include national law). The interests of the accused
and good faith require that this should be interpreted in the light
of the initial ICRC proposal, i.e., that no one can be convicted for
an act, or for failing to act contrary to a duty to act, when such an
act or omission was not an offence at the time when it was committed.
[p.1400] 4607 The reference to international law is mainly intended to cover crimes against humanity. A breach of international law should not go
unpunished on the basis of the fact that the act or omission (failure
to act) concerned was not an offence under the national law at the
time it was committed. Some delegations suggested replacing the term
under national or international law" by "under the applicable law"
or even by "under applicable domestic or international law", (18) but
the majority finally considered that it was best to retain the
wording of the Covenant "in order to avoid being out of line".
' Sub-paragraph ' (d) -- ' The principle of the presumption of innocence '
4608 This sub-paragraph sets out the principle of the presumption of innocence, which is implicitly contained in Article 67
of the fourth
Convention. This refers to the "general principles of law". It is
also contained in Article 14, paragraph 2, of the Covenant. In
addition, it is laid down in Article 75
' (Fundamental guarantees), '
paragraph 4(d), of Protocol I.
' Sub-paragraph ' (e) -- ' The right of the accused to be present at his own trial '
4609 This sub-paragraph reiterates the principle laid down in Article 14, paragraph 3(d), of the Covenant. It is the result of a proposal
in the Working Group which recommended "everyone charged with an
offence shall have the right to be tried in his presence". (19) The
proposal was not adopted in this form because a number of delegations
argued that sentences in absentia are allowed. The right of the
accused to be present at his trial, which is established here, should
be understood as a right which the accused is free to exercise or
not.
' Sub-paragraph ' (f) -- ' The right not to be compelled to testify against oneself or to confess guilt '
4610 This sub-paragraph repeats Article 14, paragraph 3(g), of the Covenant. It was included as the result of a proposal made by the
Working Group. (20)
Paragraph 3 -- The right to be informed of judicial remedies and of the time-limits in which they must be exercised
4611 It was not considered realistic in view of the present state of national legislation in various countries to lay down a principle to
the effect that everyone has a right [p.1401] of appeal against
sentence pronounced upon him, i.e., to guarantee the availability of
such a right, as provided in the ICRC draft. (21) However, it is
clear that if such remedies do exist, not only should everyone have
the right to information about them and about the time-limits within
which they must be exercised, as explicitly provided in the text, but
in addition, no one should be denied the right to use such
remedies. (22)
4612 The term "judicial and other remedies" was originally adopted in English and, in order to maintain uniformity between the languages,
was translated into French as "droits de recours judiciaires et
autres". The word "autres" is superfluous in the French text since
the words "droit de recours" cover all the possible remedies.
However, in English the word "judicial" was not considered sufficient
to include all the different types of remedies existing in various
legal systems.
Paragraph 4 -- The prohibition on pronouncing the death sentence upon persons under eighteen years and on carrying it out on pregnant women
and mothers of young children
4613 The authorities retain the right to pronounce the death sentence in accordance with national legislation with one exception:
adolescents under the age of eighteen years at the time they
committed the offence; the death sentence may be pronounced but may
not be carried out on pregnant women or mothers of young children.
According to the experts who were consulted it would not have been
possible to impose a general prohibition on the death sentence as
such a decision would not have taken into account all the penal
systems in force. (23) Nevertheless, the ICRC expressed the wish that
the penalty should not be executed before the end of
hostilities. (24) This proposal, which was included in the draft,
reflected the experience that executions result in an escalation of
violence on both sides. Moreover, when hostilities have ceased,
passions die down and there is a possibility of amnesty.
Unfortunately, however modest the proposal, it did not gain a
consensus. On the other hand, the limitation laid down in this
paragraph was easily accepted in principle; it was inspired by
Article 68, paragraph 4
, of the fourth Convention, (25) and by
Article 6, paragraph 5, of the Covenant. The discussions were
essentially about two points; fixing the age limit, and extending the
rule in favour of pregnant women to cover also mothers of young
children.
4614 The age limit of eighteen years was adopted in order to harmonize with the Conventions and the Covenant, which also contain this age
limit. The proposal concerning mothers of young children was put
forward by a delegation. (26) The concept of "young children" as a
legal term remained vague. For this reason a [p.1402] vote was
requested on this point, and it was adopted by 37 votes to 2, with 9
abstentions. (27) In any event, the concept is wider than "new-born
babies" in the sense of Article 8
' (Terminology), ' sub-paragraph
(a), of Protocol I. It is up to the responsible authorities to reach
a judgment in good faith on what is meant by "young children". (28)
4615 The results of the vote suggest that the concept will be broadly interpreted, and that in such special cases the death penalty will
not be pronounced.
4616 In any case, Article 76
' (Protection of women), ' paragraph 3, of Protocol I, which has the same tenor, contains the recommendation
not to pronounce the death penalty on pregnant women and on mothers
having dependent infants and this recommendation should be considered
here.
Paragraph 5 -- Amnesty
4617 Amnesty is a matter within the competence of the authorities. It is an act by the legislative power which eliminates the consequences
of certain punishable offences, stops prosecutions and quashes
convictions. (29) Legally, a distinction is made between amnesty and
a free pardon. The latter is granted by the Head of State and puts an
end to the execution of the penalty, though in other respects the
effects of the conviction remain in being. This paragraph deals only
with amnesty, though this does not mean that free pardon is
deliberately excluded. The draft adopted in Committee provided, on
the one hand, that anyone convicted should have the right to seek a
free pardon or commutation of sentence, and on the other hand, that
amnesty, pardon or reprieve of a death sentence may be granted in all
cases. (30) That paragraph was not adopted in the end, in order to
keep the text simple. Some delegations considered that it was
unnecessary to include it because national legislation in all
countries provides for the possibility of a free pardon. (31)
4618 The object of this sub-paragraph is to encourage gestures of reconciliation which can contribute to reestablishing normal
relations in the life of a nation which has been divided.
' S.J. '
* (1) [(1) p.1396] See O.R. VIII, pp. 346-355, CDDH/I/SR.33, paras. 22-71; pp. 357-365, CDDH/I/SR.34;
(2) [(2) p.1396] The execution of penalties is not dealt with in this article -- with the exception of the execution of
the death penalty on pregnant women and mothers of young
children, which is prohibited by para. 4;
(3) [(3) p.1397] Dissident armed forces and organized armed groups within the meaning of Article 1 of the Protocol,
which are opposed to the government in power, must be able
to apply the Protocol. See supra, p. 1353;
(4) [(4) p.1397] See Arts. 86, 89-108 of the Third Convention and Arts. 64-78 of the Fourth Convention;
(5) [(5) p.1397] Hereinafter referred to as the Covenant;
(6) [(6) p.1397] Draft Arts. 9 and 10. It should be noted that the present heading of the article is incomplete, since it
mentions only penal prosecutions, while the provision also
lays down principles of penal law;
(7) [(7) p.1397] O.R. IV, pp. 35-36, CDDH/I/262;
(8) [(8) p.1398] See ' Commentary III, ' pp. 411-412 (Art. 84); pp. 484-492 (Art. 105);
(9) [(9) p.1398] See draft Art. 10, para. 1;
10) [(10) p.1398] See O.R. X, p. 145, CDDH/I/317/Rev.1. The amendment submitted during these deliberations is
mentioned, but the text is not published in the Official
Records as it was a working document;
(11) [(11) p.1398] See ' Commentary Drafts, ' p. 142;
(12) [(12) p.1399] ' Commentary IV, ' p. 224 (Art. 33);
(13) [(13) p.1399] The term "law" is used here in a broad sense, as lex encompasses custom. (14) See draft Art. 9,
para. 2;
(14) [(14) p.1399] See draft Art. 9, para. 2;
(15) [(15) p.1399] O R. IV pp. 35-36 CDDH/I/262;
(16) [(16) p.1399] O.R. X p. 130, CDDH/234/Rev.1, para. 87;
(17) [(17) p.1399] Covenant, Art. 4, paras. 1-2;
(18) [(18) p.1400] See O.R. X, p. 144, CDDH/I/317/Rev.2;
(19) [(19) p.1400] Ibid;
(20) [(20) p.1400] Ibid;
(21) [(21) p.1401] Draft Art. 10, para. 2;
(22) [(22) p.1401] This clarification was proposed in an amendment. It was not adopted apparently to avoid making the text too complicated. See O.R. IV, p. 33, CDDH/I/259;
(23) [(23) p.1401] See O.R. VIII, pp. 357-365, CDDH/I/SR.34, paras. 2 ff;
(24) [(24) p.1401] Draft Art. 10, para. 3;
(25) [(25) p.1401] See ' Commentary IV ', pp. 346-347 (Art. 68);
(26) [(26) p.1401] O.R. IV, p. 33, CDDH/I/259;
(27) [(27) p.1402] O.R. X, p. 131, CDDH/234/Rev.1, para. 90;
(28) [(28) p.1402] The Conventions provide some sort of guide in this respect by mentioning mothers of children under
seven years old (Art. 14, para. 1, Fourth Convention);
(29) [(29) p.1402] "Amnesty" is described as an act of oblivion, a general pardon of past offences by the ruling
authority (' Shorter Oxford English Dictionary ', 1978, p.
60). Its mode of operation and effect may obviously differ
from country to country. The French definition ("Amnistie:
acte du législateur qui a pour effet d'éteindre l'action
publique ou d'effacer une peine prévue pour une infraction
et, en conséquence, soit d'empêcher ou d'arrêter les
poursuites, soit d'effacer les condamnations."), as given
in the ' Grand Dictionnaire encyclopédique Larousse ',
Vol. I, 1982, p. 414, indicates that it is an act of the
legislative whereby the public prosecution of certain
offences is ended and the penalty thereon is cancelled, so
that no more prosecutions will be instituted, and those
already instituted will be discontinued and any
convictions for such offences will be quashed;
(30) [(30) p.1402] O.R. X, p. 133, CDDH/234/Rev.1, para. 95;
(31) [(31) p.1402] O.R. VII, pp. 94 and 96, CDDH/SR.50, para. 79 and 99;
GVALNWB2/ICRC
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