Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 98 : Execution of disciplinary punishment: Essential safeguards
Text of the provision*
(1) A prisoner of war undergoing confinement as a disciplinary punishment, shall continue to enjoy the benefits of the provisions of this Convention except in so far as these are necessarily rendered inapplicable by the mere fact that he is confined. In no case may he be deprived of the benefits of the provisions of Articles 78 and 126.
(2) A prisoner of war awarded disciplinary punishment may not be deprived of the prerogatives attached to his rank.
(3) Prisoners of war awarded disciplinary punishment shall be allowed to exercise and to stay in the open air at least two hours daily.
(4) They shall be allowed, on their request, to be present at the daily medical inspections. They shall receive the attention which their state of health requires and, if necessary, shall be removed to the camp infirmary or to a hospital.
(5) They shall have permission to read and write, likewise to send and receive letters. Parcels and remittances of money however, may be withheld from them until the completion of the punishment; they shall meanwhile be entrusted to the prisoners’ representative, who will hand over to the infirmary the perishable goods contained in such parcels.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
3930  Article 98 sets out minimum standards for the treatment of prisoners of war undergoing disciplinary confinement. In combination with Article 97, which lays down minimum standards regarding the premises in which prisoners may be confined, Article 98 provides ‘the essential safeguards to be accorded to prisoners of war while serving disciplinary sentences’.[1] While the first paragraph of Article 98 refers explicitly to prisoners of war undergoing confinement, the other paragraphs refer more generally to all forms of disciplinary punishment. It can be assumed, however, that these provisions were also included primarily regarding confinement, given the increased vulnerability of prisoners of war in such circumstances.[2]
3931  The core principle of Article 98 is set out in its first sentence: prisoners of war undergoing confinement as a disciplinary punishment must continue to enjoy all the benefits of the Third Convention except for those provisions that are necessarily rendered inapplicable by the fact of confinement. As the camp commander will be the one to determine which benefits of the Convention ‘are necessarily rendered inapplicable’, States decided to specify certain explicit safeguards that must always be accorded to prisoners undergoing disciplinary confinement. Importantly, the safeguards set out in Article 98 do not in any way suggest that other provisions of the Convention may necessarily or more easily be inapplicable in the event of disciplinary punishment. Lastly, reference must also be made to Article 88(5), which provides that ‘[p]risoners of war who have served disciplinary or judicial sentences may not be treated differently from other prisoners of war’.
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B. Historical background
3932  In the nineteenth and early twentieth centuries, the conditions for disciplinary confinement of prisoners of war were governed by the laws, regulations and orders applicable in the Detaining Power’s armed forces.[3] During the First World War, however, this principle provided insufficient protection.[4] As a result, the essence of most of Article 98 can already be found in the 1929 Geneva Convention on Prisoners of War.[5] Following the Second World War, it was suggested that these protections, until then scattered in five articles of the 1929 Convention, should be grouped in one article.[6] The general principle governing the treatment of prisoners of war undergoing confinement in the first sentence of Article 98(1) was added at the suggestion of the Sub-Committee on Penal Sanctions during the 1949 Diplomatic Conference and adopted by States without much debate.[7]
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C. Paragraph 1: Continuing entitlement to the basic benefits of the Third Convention
3933  The first sentence of Article 98(1) provides that the benefits of the Convention, except those that are necessarily rendered inapplicable by the mere fact of confinement, continue to apply to prisoners of war during disciplinary confinement. This basic principle underlines the fact that the list of permissible disciplinary punishments under the Third Convention is exhaustive, and that the restriction of benefits granted to prisoners of war other than those laid down in Article 89 is not permitted as disciplinary punishment.
3934  Some benefits provided for in the Convention may necessarily be rendered inapplicable by the circumstances of confinement. For example, confinement prevents prisoners from going to the canteen but must not prevent them from acquiring essential personal articles such as soap in accordance with Article 28. In addition, the Detaining Power may not exclude confined prisoners from monthly medical inspections.[8] Confined prisoners must continue to enjoy complete latitude in the exercise of their religious duties and to receive the assistance of their chaplains.[9] That said, a balance must be struck between the constraints of confinement and the attendance of religious services. A minister of religion serving a disciplinary sentence will normally not, however, be able to exercise their ministry. While a confined person may not be allowed to participate in certain recreational activities provided for under Article 38, such as sports and games among prisoners,[10] activities such as reading or studying should not be restricted.[11] If prisoners of war are under close confinement, they will generally be unable to work and will therefore often receive no working pay. They will, however, continue to receive the normal advances of pay.[12]
3935  It is important to note that confinement would not render other provisions wholly or partly inapplicable vis-à-vis the confined person. For instance, in the event of air bombardment, a prisoner of war undergoing confinement must, like other prisoners, have access to shelters to the same extent as the local civilian population.[13] The right to be informed of the text of the Third Convention and of regulations, orders, notices and publications relating to the conduct of prisoners of war cannot be withdrawn.[14] In emergency cases, prisoners of war undergoing confinement must be enabled to draw up and transmit legal documents[15] and to take part in the election of prisoners’ representatives.[16] Furthermore, wounded or sick prisoners of war undergoing confinement must be able to present themselves for examination by the mixed medical commissions.[17] These examples are not exhaustive.
3936  The second sentence of Article 98(1) provides that prisoners of war may in no case be deprived of the benefits of the provisions of Articles 78 and 126. Article 78 gives prisoners the right to make requests to the military authorities in whose power they are regarding the conditions of captivity. Article 126 sets down the right of the Protecting Power or the ICRC to interview prisoners of war confidentially and to visit the premises in which they are held. These two provisions are particularly important because they enable prisoners of war to report possible violations of the Third Convention so that commanders or the Protecting Power/ICRC are made aware of their situation.[18]
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D. Paragraph 2: Prerogatives attached to rank
3937  Article 89 prescribes which disciplinary punishments are applicable to prisoners of war. The second paragraph of that provision takes rank into consideration; while ‘fatigue duties not exceeding two hours daily’ is generally a permissible disciplinary punishment, it may not be applied to officers. Article 98(2) further prescribes that prisoners of war awarded disciplinary punishment may not be deprived of the prerogatives attached to their rank. This provision reflects the general principle that officers and prisoners of equivalent status must be treated with the regard due to their rank.[19] In the context of disciplinary confinement, this means that officers retain the right to wear the insignia of their rank.[20] Further, they may in no circumstances be compelled to work[21] or be deprived of the privilege of having prisoners of lower rank assigned to them as service personnel to assist them with daily tasks.[22] In accordance with Article 97(3), officers must be lodged in quarters separate from those of non-commissioned officers or other ranks.
3938  With respect to non-commissioned officers, Article 98(2) refers mainly to the right not to be compelled to do any work other than supervisory work, in accordance with Article 49(2).
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E. Paragraph 3: Access to the open air
3939  Article 98(3) states in unambiguous terms that prisoners of war awarded disciplinary punishment must be allowed to exercise and to stay in the open air at least two hours daily. This clause, which may be compared with Article 38(2), is essential for prisoners’ fitness and health. It applies irrespective of the type of disciplinary punishment, including all forms of confinement.[23]
3940  The term ‘exercise’ means ‘activities carried out for the sake of health and fitness’, such as team sports, running and walking.[24] Sufficient open spaces must thus be made available for this purpose.[25]
3941  Article 98(3) states that prisoners ‘shall be allowed’ to exercise. Each prisoner of war may therefore decide whether to exercise. The Detaining Power cannot force a prisoner of war to exercise outdoors, which would amount to a punishment not provided for under Article 89.
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F. Paragraph 4: Medical attention
3942  The first sentence of Article 98(4) states that prisoners of war awarded disciplinary punishment must be allowed, on their request, to attend daily medical inspections. This wording suggests that prisoner-of-war camps will afford daily medical inspections, although this is not stated in Article 30, and Article 31 only requires medical inspections ‘at least once a month’. Read together with the second sentence of Article 98(4), which requires that prisoners of war receive the attention which their state of health requires, this is best understood as meaning that prisoners of war must be allowed to see medical personnel as required by their state of health. While there should be a daily opportunity to ask to see the doctor, this does not necessarily mean that prisoners of war awarded disciplinary punishment must be seen by the doctor every day. Importantly, guards may not forbid prisoners from attending daily medical inspections. If a doctor can determine without seeing the prisoner that the latter’s request is unjustified and likely to prejudice the efficient functioning of the medical service, they may decide not to see the prisoner and to take the necessary measures at their own responsibility. Nonetheless, what attention a prisoner’s state of health requires must be assessed objectively, as required under Article 30.[26] This may include transfer from the camp infirmary to a hospital, even if the prisoner is undergoing disciplinary punishment.
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G. Paragraph 5: Correspondence
3943  Article 98(5) regulates the external correspondence of prisoners of war undergoing confinement, both in terms of written correspondence and receipt of parcels and remittances. The provision requires that prisoners of war be able to read, write, send and receive letters. The number of letters is not regulated, however. Hence, the amount of correspondence should be determined in accordance with Article 71, which provides that prisoners of war must be allowed to send no less than two letters and four cards monthly. As this provision cannot be regarded as being necessarily inapplicable by the mere fact of confinement, it cannot be restricted as a form of disciplinary punishment.
3944  The second sentence of Article 98(5) allows parcels and remittances for prisoners of war undergoing disciplinary confinement to be withheld until the completion of their punishment. Money and goods destined for the prisoner must instead be entrusted to the prisoners’ representative until they can be handed over to the addressee.
3945  If parcels contain foodstuffs that would perish before the end of the addressee’s punishment, Article 57 of the 1929 Convention permitted the Detaining Power to hand them over either to the infirmary or to the camp kitchen. The present text states that such parcels may be handed over only to the infirmary, through the intermediary of the prisoners’ representative. The government experts deliberately suggested removing the possibility of such parcels being handed over to the camp kitchen.[27]
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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.
Kalshoven, Frits and Zegveld, Liesbeth, Constraints on the Waging of War: An Introduction to International Humanitarian Law, 4th edition, ICRC/Cambridge University Press, 2011, pp. 53–57.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 315–342.

1 - Statement by the delegate of the ICRC at the 1949 Diplomatic Conference; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 494.
2 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 462 and 466. According to that Commentary, p. 466, it was perhaps owing to the particular vulnerability of prisoners undergoing disciplinary punishment that ‘the authors of the 1929 Convention as well as those of the present Convention provided safeguards which are, generally speaking, rather favourable to prisoners of war’.
3 - See e.g. Hague Regulations (1907), Article 8(1). See also Hague Regulations (1899), Article 8(1); Brussels Declaration (1874), Article 28(1); and Oxford Manual (1880), Article 62.
4 - The 10th International Conference of the Red Cross requested that ‘[u]n code international de mesures disciplinaires et pénales à appliquer aux prisonniers de guerre fera partie intégrante [d’une Convention Diplomatique sur les prisonniers de guerre, les déportés, les évacués et les réfugiés] (‘an international code of disciplinary and penal measures applicable to prisoners of war be an integral part [of a Diplomatic Convention on prisoners of war, deportees, evacuees and refugees]’); 10th International Conference of the Red Cross, Geneva, 1921, Res. XV, Code des Prisonniers de Guerre, Déportés, Evacués et Refugiés. See also Patrick D. Pflaum, ‘A Matter of Discipline and Security: Prosecuting Serious Criminal Offenses Committed in U.S. Detention Facilities Abroad’, Military Law Review, Vol. 194, December 2007, pp. 66–131, at 73, and Georges Werner, Les prisonniers de guerre, Librairie Hachette, 1929, pp. 56–57.
5 - See Geneva Convention on Prisoners of War (1929), Articles 49(2), 56(4), 57, 58 and 67.
6 - Draft Conventions submitted to the 1948 Stockholm Conference, p. 114.
7 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 307, 311 and 494–495.
8 - Article 31.
9 - Articles 34 and 35.
10 - However, prisoners of war do have a right to time in the open air and physical exercise; see section E.
11 - See e.g. Japan, Act on the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations, 2004, Article 49(6)(iv).
12 - Article 60.
13 - Article 23.
14 - Article 41.
15 - Article 77.
16 - Article 79.
17 - Article 113.
18 - For more details regarding these rights, see the commentaries on Articles 78 and 126.
19 - Article 44(1).
20 - Article 87(4).
21 - Article 49(3).
22 - Article 44(2). The prerogatives of prisoners of war who are officers are functional, though. Therefore – in particular when the disciplinary punishment is confinement and officers may no longer be in charge of the daily tasks for which they received assistance – the absence of service personnel assigned to the officer would not entail a revocation of prerogatives.
23 - See the commentary on Article 89(1).
24 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 498.
25 - See also Article 38(2).
26 - Article 58 of the 1929 Geneva Convention on Prisoners of War required that prisoners of war undergoing confinement ‘receive such attention as the medical officers may consider necessary (emphasis added). However, the 1947 Conference of Government Experts suggested changing this standard to its current form, explaining: ‘[Prisoners of war] serving disciplinary sentences have too often been deprived of proper treatment. The Commission wished, by the above wording, to make both the [Detaining Power] and the camp doctor responsible for giving adequate attention.’ Report of the Conference of Government Experts of 1947, p. 220.
27 - Ibid. p. 219.