Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 100 : Death penalty
Text of the provision
(1) Prisoners of war and the Protecting Powers shall be informed as soon as possible of the offences which are punishable by the death sentence under the laws of the Detaining Power.
(2) Other offences shall not thereafter be made punishable by the death penalty without the concurrence of the Power upon which the prisoners of war depend.
(3) The death sentence cannot be pronounced on a prisoner of war unless the attention of the court has, in accordance with Article 87, second paragraph, been particularly called to the fact that since the accused is not a national of the Detaining Power, he is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will.
Reservations or declarations
Uruguay[1]
Contents

A. Introduction
3979  The Third Convention does not prohibit the imposition of the death penalty on prisoners of war. However, if the laws of a Detaining Power in an international armed conflict provide for the death penalty for certain crimes, the Convention imposes strict limitations on its use in relation to prisoners of war. Furthermore, States’ obligations under Articles 100 and 101 must be read in light of other restrictions under international humanitarian law[2] and of possible international commitments to abolish the death penalty.[3] If a State has decided to renounce using the death penalty, it would not be able to rely on Article 100 to impose this sentence on prisoners of war.
3980  Under the Convention, the death penalty may be lawfully imposed and executed against prisoners of war only for offences punishable by death under domestic laws applicable to the Detaining Power’s own forces (Articles 87(1) and 100(1)). Moreover, the sentence must be pronounced in a fair and regular process (Articles 102–107); the court must take into consideration the prisoner of war’s particular situation vis-à-vis the Detaining Power (Article 100(3)); and the Protecting Power must be duly informed of the pronouncement of the death penalty six months prior to its execution (Article 101).
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B. Historical background
3981  The inclusion of Article 100 was new in 1949. Article 66 of the 1929 Geneva Convention on Prisoners of War contained only provisions regarding certain aspects of what is now regulated in Article 101. Previously, the imposition of the death penalty against prisoners of war was regulated by the principle that ‘[p]risoners of war shall be subject to the laws, regulations, and orders in force in the army of the State in whose power they are’.[4] Accordingly, the death penalty could be imposed under the same conditions as for members of a Power’s own forces.
3982  During the drafting of Article 100, the ICRC suggested that the death sentence should be abolished, or at least confined to certain crimes such as murder or rape.[5] The majority of States did not agree with this suggestion, however, arguing that it risked reducing the number of signatories to the Convention and might weaken the Convention if a number of States felt unable to observe it. Nonetheless, early in the negotiations, States agreed on important restrictions on the imposition of the death penalty, in particular to avoid it being arbitrarily imposed.[6]
3983  While paragraphs 1 and 3 originated at the 1947 Conference of Government Experts, paragraph 2 was added during the 17th International Conference of the Red Cross in Stockholm in 1948. No substantive changes to the draft provision were made during the 1949 Diplomatic Conference.
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C. Paragraph 1: Duty to inform as soon as possible of the offences which are punishable by the death sentence
3984  Article 100(1) provides that a Detaining Power must inform both the prisoners of war and the Protecting Powers – or a substitute – as soon as possible of the offences which are punishable by death under its laws. Such notification is a prerequisite for lawfully imposing the death sentence at a later stage. Offences for which prisoners of war may be sentenced to death are limited to those for which the same penalty is provided for in respect of members of the Detaining Power’s own armed forces.[7] This provision applies to crimes committed prior to capture as well as during captivity.[8]
3985  The Convention requires that prisoners of war and the Protecting Powers be informed of offences punishable by death ‘as soon as possible’. This means that prisoners of war need to be so informed as soon as practicable after capture. The purpose of furnishing this information is to enable the prisoners to clearly understand the consequences of committing a particular offence. One way of implementing this obligation is in accordance with Article 41(2), which requires the relevant domestic laws relating to the conduct of prisoners of war to be posted, in a language that the prisoners understand, in a place where all may read them.[9] Regarding acts committed while in captivity, this provision intends to avoid prisoners being informed of the consequences of their acts only after those acts have been committed. While the Detaining Power can only inform prisoners of war of the offences in question once they fall into its power, the Protecting Power, or its substitute, must be informed as soon as possible after the outbreak of the conflict, which may be before any prisoners are taken. It will then fall to the Protecting Power to inform the other Parties to the conflict which offences are punishable by death. Failure to furnish the information required by paragraph 1 to the prisoner of war and the Protecting Power will render the imposition of the death penalty unlawful.
3986  The obligation to inform not only the prisoners of war but also the Protecting Powers of offences which are punishable by the death sentence under the laws of the Detaining Power raises the question whether, and if so how, this provision may be complied with when no Protecting Power, or substitute, has been agreed upon.[10] In practice, Protecting Powers have been appointed in very few conflicts.[11] To comply with those rules that require supervision by a Protecting Power or a substitute, States should endeavour to appoint either a Protecting Power or a substitute. Failing this, they should ensure that the objective of involving a Protecting Power can still be achieved. To do so, they may invite an impartial humanitarian organization, such as the ICRC, to fulfil the same functions. In practice, both prior to and since 1949, the ICRC, acting on its right of humanitarian initiative as enshrined in Article 9, has assisted States in this regard.[12] Accordingly, it has been suggested that, with regard to judicial proceedings, ‘where there is no Protecting Power, the ICRC must be notified of such proceedings’.[13] While the ICRC is not explicitly mentioned as an alternative to the Protecting Power under Article 100, it would be able to inform the Power of on which the prisoner depends of the offences punishable by death under the laws of the Detaining Power.
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D. Paragraph 2: Extending the death penalty to additional offences
3987  Article 100(2) provides that, once the Protecting Powers, or a substitute, and the prisoners of war have been informed of the offences punishable by death, other offences may not thereafter be made punishable by the death sentence without the concurrence of the Power on which the prisoners depend. One objective of this provision is to protect prisoners of war against ad hoc legislation enacted by the Detaining Power, which could worsen their position. In addition, it prevents the Detaining Power from applying to prisoners of war laws applicable to its own forces that provide for the death sentence but of which the prisoners of war or the Protecting Power were unaware.
3988  This means that once a Party to an armed conflict has announced which offences are punishable by death – which is a prerequisite for lawfully imposing such sentences – it is barred from unilaterally amending its laws that apply to prisoners of war. It cannot add any further offences punishable by death if committed by prisoners of war, unless the Power on which the prisoners depend agrees to this change. It has been argued that such changes are ‘unlikely to be acceded to unless the latter state wishes to act in a similar way’.[14] This would also mean that if a State had previously announced that no offence is punishable by death, any subsequent changes to its legislation to include the death penalty for prisoners of war would require the adversary’s consent. In line with the principle of legality, any amendment of the Detaining Power’s laws to include the death penalty may not be applied retroactively.[15]
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E. Paragraph 3: Particular circumstances of prisoners of war
3989  Article 100(3) provides that unless the court’s attention has been drawn to the particular situation of the prisoner of war, the death sentence may not be pronounced. The provision reiterates the general requirement found in Article 87(2) that when a court is adjudicating cases of prisoners of war, its attention must be drawn to the fact that prisoners of war do not owe a duty of allegiance to the Detaining Power and that as a soldier, the individual has fallen into the hands of the Detaining Power ‘as the result of circumstances independent of his own will’. Thus, considerations that might persuade the court to abstain from imposing the death penalty must be brought to the court’s attention, even if this sentence is foreseen for the alleged crime.[16]
3990  In practice, potentially extenuating circumstances must be expressly brought to the attention of the court adjudicating the case. The Convention does not specify at what stage of the proceedings this should happen; however, it must be done explicitly and before the court decides upon the sentence. Otherwise, the court’s sentence would be invalid and the imposition of the death penalty unlawful.[17]
3991  Given that Article 130 lists ‘wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention’ as a grave breach of the Convention, denying prisoners of war the benefit of the essential rules set out in Article 100 may amount to a grave breach of this Convention.
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Select bibliography
Gasser, Hans-Peter, ‘Respect for fundamental judicial guarantees in time of armed conflict: The part played by ICRC delegates’, International Review of the Red Cross, Vol. 32, No. 287, March-April 1992, pp. 121–142.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 339–340.
Rosas, Allan, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts, Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 1976, reprinted 2005, pp. 453-457.
Rowe, Peter, ‘Penal or Disciplinary Proceedings Brought against a Prisoner of War’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 1025–1038.
Sassòli, Marco, ‘La peine de mort en droit international humanitaire et dans l’action du Comité international de la Croix-Rouge’, Revue internationale de droit pénal, Vol. 58, 1987, pp. 583–592.

1 - United Nations Treaty Series, Vol. 676, pp. 370–371: ‘With express reservations in respect of Articles 87, 100 and 101 of Geneva Convention III, and of Article 68 of Geneva Convention IV, in so far as they involve the imposition and execution of the death penalty.’
2 - See Article 76(3) of Additional Protocol I, which prohibits the pronouncement of the death penalty for offences related to the armed conflict on pregnant women or mothers with dependent infants, and Article 77(5) of Additional Protocol I, which prohibits the execution of the death penalty on persons who had not attained the age of 18 years at the time the offence was committed.
3 - Relevant international human rights law treaties include: Second Optional Protocol to the International Covenant on Civil and Political Rights (1989); Protocol to the American Convention on Human Rights to Abolish the Death Penalty (1990); and Protocol 13 to the European Convention on Human Rights (2002). The prohibition on imposing the death penalty on children, meaning anyone under 18 years of age, is set forth in the International Covenant on Civil and Political Rights (1966), Article 6(5); American Convention on Human Rights (1969), Article 4(5); and Convention on the Rights of the Child (1989), Article 37(a).
4 - Hague Regulations (1907), Article 8, para. 1. See also Hague Regulations (1899), Article 8, para. 1; Brussels Declaration (1874), Article 28, para. 1; and Oxford Manual (1880), Article 73.
5 - This suggestion received some support from States. Likewise, States such as Venezuela and Portugal emphasized that their legislation did not provide for the death penalty in any circumstances. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol II-A, pp. 310–311.
6 - See Report of the Conference of Government Experts of 1947, pp. 230–231. See also Summary of Debates of the Sub-Commissions of the Legal Commission at the 1948 Stockholm Conference, p. 38.
7 - Article 87(1).
8 - See Article 85.
9 - See the commentary on Article 41(2). See also Levie, p. 339.
10 - See also Rosas, pp. 455–457. On the procedure for appointing a Protecting Power or a substitute, see Articles 8 and 10.
11 - See the commentary on Article 8, section H.
12 - See Introduction, section A.1.e, in particular paras 50–51, and the commentary on Article 9, para. 1316.
13 - Gasser, pp. 124–125.
14 - See Rowe, p. 1033, fn. 40.
15 - See the commentary on Article 99(1), para. 3954. See also Additional Protocol I, Article 75(4)(c).
16 - As stated in Article 87(2), ‘[t]he said courts or authorities shall be at liberty to reduce the penalty provided for the violation of which the prisoner of war is accused, and shall therefore not be bound to apply the minimum penalty prescribed’. See the commentary on Article 87, section D.2.
17 - On the right to appeal, see Article 106.