Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 87 : Penalties
Text of the provision*
(1) Prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.
(2) When fixing the penalty, the courts or authorities of the Detaining Power shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, 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. The 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.
(3) Collective punishment for individual acts, corporal punishments, imprisonment in premises without daylight and, in general, any form of torture or cruelty, are forbidden.
(4) No prisoner of war may be deprived of his rank by the Detaining Power, or prevented from wearing his badges.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
Uruguay[1]
Contents

A. Introduction
3660  Article 87 deals with the type of penalties that can be imposed on prisoners of war during their captivity. It reflects the principle of assimilation between prisoners of war and members of the armed forces of the Detaining Power.[2] Prisoners of war may only be sentenced to a given penalty if that penalty is also foreseen for members of the armed forces of the Detaining Power who have committed the same act.
3661  Article 87 contributes to respect for the principle of legality in relation to proceedings against prisoners of war. It gives expression to one of the two main components of this principle, namely the prohibition on imposing a penalty that was not provided for under national or international law at the time the offence was committed (nulla poena sine lege). In that sense, it should be read together with Articles 82 and 99: the former deals with the legal framework governing offences committed by prisoners of war, while the latter embodies the second component of the principle of legality, namely that prisoners of war may not be tried or sentenced for an act which was not prohibited by the law of the Detaining Power or by international law at the time the act was committed (nullum crimen sine lege).
3662  In addition to the general rule on possible penalties, Article 87 provides a series of elaborations and exceptions to it. First, it establishes criteria that must be taken into consideration by the courts and authorities of the Detaining Power when fixing a penalty. It even allows for a penalty to be reduced below the minimum prescribed in the laws, regulations or orders in force in the armed forces of the Detaining Power. It thus complements the rule contained in Article 83, which requires the greatest leniency in the choice between disciplinary and judicial proceedings. Most notably, Article 87 encourages judges and other relevant authorities, including military authorities, to exhibit as much leniency as possible in determining the penalty because of the special circumstances in which prisoners of war find themselves.
3663  Furthermore, Article 87 strictly prohibits certain types of punishment, namely collective and corporal punishments, imprisonment in premises without daylight, and any form of torture or cruelty in relation to prisoners of war, regardless of the provisions on penalties that may be contained in the domestic law of the Detaining Power. These prohibitions are today part of customary international humanitarian law.[3] Article 87 also forbids depriving prisoners of war of their rank or preventing them from wearing their badges.
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B. Historical background
3664  Most of the bilateral agreements concerning prisoners of war concluded between belligerents during the First World War prohibited collective punishment.[4] However, only one contained a provision regulating the penalties that could be imposed.[5] Experience from that war showed that it was necessary to elaborate on what penalties could and could not be imposed in order to protect prisoners of war from arbitrary action and unduly severe punishments.[6] The 1929 Geneva Convention on Prisoners of War was designed to fill this gap for the first time.[7] The first paragraph of Article 46 of the Convention set down, albeit with some minor differences in wording,[8] the principle that the penalties that can be imposed on prisoners of war should be equivalent to those applicable to members of the armed forces of the Detaining Power. Likewise, the absolute prohibitions of the third and fourth paragraphs of what is now Article 87 were already reflected in the 1929 Convention.[9] These included the rule outlawing collective punishments, arguably one of the most important innovations of the whole treaty. Only the second paragraph of Article 87, which deals with the obligation to heed certain considerations when fixing the penalty, was a completely new element in 1949.
3665  The preparatory work of the 1929 Convention shows that neither Article 46 (dealing with the principle of assimilation), nor the first sentence of Article 49 (dealing with the prohibition of depriving prisoners of war of their rank) gave rise to any major controversy and were adopted almost without debate.[10]
3666  At the Conference of Government Experts in 1947, the ICRC pointed out that the protections afforded by the first paragraph of Article 46 of the 1929 Convention were ‘unsatisfactory’.[11] During the Second World War, this provision had led to the prosecution of prisoners of war by special courts of the Detaining Power, which were ‘usually unfavourable to defendants’.[12] A number of delegates suggested that the new Convention should include certain minimum rules of procedure to ensure that prisoners of war were not again subjected to such ‘unfavourable’ punishments.[13] In addition, Conference participants proposed completing the first paragraph of Article 49 of the 1929 Convention (dealing with the obligation to respect prisoners’ rank) with a reference to the right of prisoners of war to wear their badges of rank.[14] The draft submitted by the ICRC to the 17th International Conference of the Red Cross in Stockholm in 1948 incorporated both of these elements.[15] Thus, Article 87(2) introduced a series of considerations that the Detaining Power must heed when fixing a penalty. Furthermore, it was decided that courts or authorities in charge of sentencing a prisoner of war should be allowed to reduce the penalty beyond the minimum established in national legislation.[16]
3667  The Diplomatic Conference in 1949 approved the article on the imposition of penalties on prisoners of war without much debate.[17]
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C. Paragraph 1: Permitted penalties for prisoners of war
3668  Article 87(1) extends the principle of assimilation to the imposition of penalties. Accordingly, the Detaining Power may only impose a penalty on a prisoner of war if that penalty can also be imposed on members of its own armed forces for the same act.
3669  A similar logic is applied elsewhere in the Convention, in particular in Article 102, dealing with the competence of courts and the valid procedures for pronouncing a sentence; Article 106, which grants prisoners of war the same right of appeal or petition as members of the armed forces of the Detaining Power; and Article 108, which provides that sentences must be served in the same establishments and under the same conditions as the Detaining Power’s own forces.
3670  The purpose of Article 87(1) is to protect prisoners of war against unduly harsh sentences and arbitrary actions. It complements Articles 82 and 99, the former of which provides that prisoners of war are subject to the laws, regulations and orders in force in the armed forces of the Detaining Power, while the latter states that ‘[n]o prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law’. Article 99 does not deal with any specific penalty, nor does it provide specific criteria for imposing a sentence, as this is left to the domestic law of the Detaining Power. However, the array of guarantees contained in Articles 84–108, the present article included, set out the legal framework and particular safeguards that prisoners of war must be accorded if they are subject to disciplinary or penal sanctions including, in the latter case, for grave breaches of the Geneva Conventions.[18]
3671  Article 87(1) applies to ‘military authorities and courts of the Detaining Power’. This formulation was chosen already in 1929 to ensure that the provision would apply not only to military courts, but also to civilian ones.[19] Indeed, omitting civilian courts from the scope of this obligation would have introduced a loophole in the protections afforded by the Convention. This is because Article 84 provides that, as a general rule, prisoners of war must be tried by military courts, but accepts the competence of civilian courts as long as these are also in charge of prosecuting members of the armed forces of the Detaining Power for the particular offence. If civilian courts exercise this competence, Article 87 must also come into play.
3672  This means that the proceedings against prisoners of war may be judicial, in which case they would take place either through court-martials or civilian criminal courts, or disciplinary, which may fall under the authority of non-judicial bodies, the camp commander or another relevant officer, in accordance with Article 96(2).[20] It has been observed, however, that the current wording would not provide sufficient protection against penalties imposed by other authorities, other than military and judicial ones, for instance by administrative authorities.[21]
3673  A penalty is defined as a ‘punishment imposed on a wrongdoer, usu[ally] in the form of imprisonment or fine; esp[ecially], a sum of money exacted as punishment for either a wrong to the State or a civil wrong (as distinguished from compensation for the injured party’s loss)’.[22] The term ‘penalty’ often relates to criminal offences.[23] However, a penalty can encompass many different types of punishment, including disciplinary ones. It appears from the preparatory work and the placement of this article in Section I of Chapter III, that the word penalty in Article 87, in particular, covers not only criminal, but also disciplinary sanctions.[24]
3674  Article 87(1) provides that the Detaining Power can only impose a penalty upon prisoners of war when such penalty is also provided for in respect of members of its armed forces who have committed the same acts. As per Article 82(1), the acts or omissions justifying the penalty must be in violations of the laws, regulations or orders in force in the armed forces of the Detaining Power. This may also comprise war crimes, including grave breaches of the 1949 Geneva Conventions. Such acts might be committed either after the person is captured by the Detaining Power or, in accordance with Article 85, prior to the capture itself.
3675  There are certain practical limits to the principle of assimilation as far as offences and penalties are concerned. Some offences, such as desertion, aiding the enemy and treason, [25] may only be committed by members of the armed forces of the Detaining Power, but not by prisoners of war.[26] Such offences can only be committed by those who owe allegiance to the Detaining Power – a precondition that in most cases excludes prisoners of war.[27] Penalties such as dishonourable discharge or dismissal may be available for members of the Detaining Power’s own forces but not for prisoners of war. On the other hand, there may also be acts that are only punishable when committed by prisoners of war.[28] Furthermore, certain offences that are envisageable for prisoners of war simply cannot be committed – or cannot be committed in the same manner – by members of the armed forces of the Detaining Power, such as attempting to escape from a prisoner-of-war camp.[29] Finally, certain acts constitute different offences, or offences of varying gravity, according to whether they are committed by military personnel or by prisoners of war.[30] For example, refusing to obey orders may be an act of disobedience for an active member of the armed forces and as such may be severely punished, but would not be so for a prisoner of war.
3676  Together with Article 99(1), Article 87(1) reflects the obligation to respect the principle of legality vis-à-vis prisoners of war. One of the consequences of this principle is that the military authorities and courts of the Detaining Power must not impose on prisoners of war a penalty that is more severe than that which a member of its armed forces would expect to receive for the same act.[31] Deciding whether or not a penalty is actually more severe is not an issue when dealing with the same types of penalties.[32] However, comparing penalties of a different nature – such as a prison sentence and a fine – can present greater difficulties.[33] In such circumstances, only a case-by-case analysis of the penalty imposed can determine whether the Detaining Power has complied with Article 87.[34]
3677  The principle of legality has moreover been interpreted as prohibiting the imposition of a heavier penalty than was applicable at the time the offence was committed. This is expressly provided for in the Additional Protocols and is moreover reflected in customary international humanitarian law.[35] The Additional Protocols further require that if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender must benefit thereby.[36]
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D. Paragraph 2: Considerations when fixing the penalty
3678  Article 87(2) lays down a series of factors that courts and authorities of the Detaining Power must take into account when fixing a penalty. In particular, they must keep in mind that prisoners of war, not being nationals of the Detaining Power, do not owe it allegiance and are under its control for reasons independent of their own will. Accordingly, Article 87(2) grants the relevant authorities discretion in determining the penalty, specifying that it can be reduced below the minimum sentencing threshold established by domestic law.
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1. First sentence: Mitigating elements regarding penalties for prisoners of war
3679  The courts or military authorities of the Detaining Power have an obligation to take into consideration the fact that prisoners of war do not owe allegiance to the Detaining Power. In its ordinary meaning, the term allegiance can be defined as ‘[a] citizen’s or subject’s obligation of fidelity and obedience to the government or sovereign in return for the benefits of the protection of the state’.[37] Prisoners of war owe fidelity and obedience not to the Detaining Power, but to their country of origin.[38] It has been recognized that prisoners of war remain in the service of their own country even when they are captured and that they ‘merely accept the inevitable temporary disciplinary control by the captor-enemy’.[39] Article 100 adopts a similar approach to that of Article 87(2) when it calls on courts to take into consideration the absence of allegiance on the part of prisoners of war where the death penalty is involved.
3680  Article 87(2) requires the courts or authorities, when fixing the penalty, to take into account that the accused is in the hands of the Detaining Power owing to circumstances independent of their own will. As a possible consequence of captivity, prisoners of war may feel under pressure to act in a particular way, and their judgement may be impaired owing to the anxiety generated by their internment. Indeed, after prolonged captivity a prisoner of war may be in a state of ‘deep distress’, both moral and physical.[40] States have recognized this as an exculpatory claim in their military manuals, some of which explicitly mention that ‘depression brought on by captivity’ cannot be regarded as self-induced and should be taken into account when imposing a penalty.[41]
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2. Second sentence: Discretion to fix a penalty below the legal minimum
3681  The last sentence of Article 87(2) allows the courts and authorities of the Detaining Power to reduce the penalty established for a particular violation regardless of the one that would normally be applicable according to its own laws. As a result, the penalty ultimately imposed on a prisoner of war may be less than the minimum foreseen for members of the armed forces of the Detaining Power.[42]
3682  The latitude provided should be read in conjunction with the first part of the paragraph, in which courts and authorities are encouraged to take into consideration, to the widest extent possible, certain mitigating elements. The application of Article 87(2) should also be linked to Article 83, which requires the authorities to ‘exercise the greatest lenience’ and to opt, wherever possible, for disciplinary rather than judicial measures.
3683  The possibility of reducing the penalty provided for under the domestic legislation of the Detaining Power refers to disciplinary as well as penal sanctions. It requires the High Contracting Parties to bring their legislation on this point into conformity with the Convention.[43]
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E. Paragraph 3: Prohibited forms of punishment
1. General
3684  Article 87(3) expressly prohibits collective and corporal punishments, imprisonment in premises without daylight and any form of torture or cruelty. Even if the rules in force in the territory of the Detaining Power allow for any such punishment to be imposed on its own armed forces, prisoners of war would be protected against it by virtue of this provision. It introduces an absolute prohibition with regard to these types of sanctions regardless of whether the punishment in question is judicial or disciplinary.
3685  The ban specified in this paragraph could place prisoners of war in a privileged position in relation to members of the armed forces of the Detaining Power. It has been justified since 1929, however, because of the abuses committed during the First World War.[44]
3686  The ending of the paragraph (‘and, in general, any form of torture or cruelty’) indicates that the specific punishments included (collective and corporal punishments, as well as imprisonment in premises without daylight) are but examples of acts that would amount to torture or cruelty, depending on the specific circumstances of the case. Article 87(3) thus reinforces the obligation laid out in Article 13 to treat prisoners of war humanely at all times. As far as disciplinary punishment is concerned, Article 87(3) is also related to Article 89(3), which provides that disciplinary punishment must not be inhuman, brutal or dangerous to the health of prisoners of war.
3687  In addition, in assessing the severity of particular punishments and treatment, regard must be had to considerations such as the health, age, gender and background of the prisoner.[45]
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2. Collective punishment
3688  The prohibition of collective punishment in humanitarian law has its origins in Article 46 of the 1929 Geneva Convention on Prisoners of War.[46] It aimed at curbing the generalized abuses committed during the First World War, when camp commanders were all too frequently tempted to inflict collective punishments for acts committed by individuals, and were sometimes motivated by a spirit of vengeance.[47] The prohibition contained in Article 46 of the 1929 Convention is now reflected in Article 87(3) of the present Convention.[48]
3689  Humanitarian law treaties prohibiting collective punishment do not provide a definition of this concept. Collective punishment is defined as ‘[a] penalty inflicted on a group of persons without regard to individual responsibility for the conduct giving rise to the penalty’.[49] In the context of the Third Convention, a punishment can only affect those prisoners of war who have committed an offence and no others. This implies that if the author of a particular violation cannot be determined, it must be accepted that the violation will remain unpunished. The contrary would defy ‘one of the fundamental guarantees of humane treatment’.[50]
3690  To violate the prohibition of collective punishment, the measure taken by the Detaining Power need not be unlawful.[51] This means that even lawful sanctions, such as revoking privileges that go beyond the entitlements laid down in the Third Convention, would become unlawful if they are imposed on persons or entire groups for acts they have not committed. Collective disciplinary measures affecting food are specifically prohibited under the Convention.[52]
3691  Not every measure with a negative impact on the prisoners of war as a whole can be considered a collective punishment. An example would be if the Detaining Power is compelled to ration the distribution of reading or writing materials owing to problems in the supply chain. It is not only the consequences of the measure that will determine the existence of a collective punishment, but – as mentioned further below – the intention of the Detaining Power to sanction a group of prisoners of war for acts that they have not committed.
3692  During the 1949 Diplomatic Conference, an exception was proposed whereby ‘collective punishment is permitted where the offence is not entirely limited to a particular individual and other prisoners of war are implicated by connivance or otherwise’.[53] The amendment was unanimously rejected, as it could have undermined the absolute prohibition of collective punishment without any additional advantage. Existing modes of liability, such as aiding and abetting or conspiring to commit a crime, should be deemed broad enough to cover the types of participation that the exception seemingly sought to cover.
3693  To violate the prohibition of collective punishment, the act in question must also have a punitive aim or purpose. A punitive purpose can be said to exist not only when the punishment is motivated by the desire to sanction prisoners of war collectively, but also, more generally, when it seeks to harass, intimidate or exert pressure on the group as a whole. In that sense, certain administrative measures with a non-punitive purpose (e.g. imposing a curfew after a crime has been committed or suspending, limiting or adjusting certain activities while security or safety measures are reviewed) might have a collective impact, but would not necessarily be prohibited.
3694  Collective punishment is not a grave breach of any of the Geneva Conventions or their Additional Protocols. Nor is it included as a war crime in the 1998 ICC Statute. During the 1949 Diplomatic Conference, the delegates of Italy and the Soviet Union were in favour of inserting collective punishment in the list of grave breaches of the Fourth Convention.[54] The proposal was rejected on the grounds that offences of potentially ‘varying degrees of gravity’ should not be included in the list of grave breaches.[55]
3695  Despite this, collective punishment has been considered a war crime in many different instances. Both the Commission on Responsibility set up after the First World War and the Military Tribunal of Rome in the Priebke case – in which a former SS captain stood trial for crimes committed during the Second World War – have taken the view that carrying out collective punishments during an armed conflict can amount to a war crime.[56] Collective punishments are also listed as serious violations of humanitarian law in Article 4(b) of the 1994 ICTR Statute and in Article 3(b) of the 2002 SCSL Statute.[57]
3696  The SCSL has convicted persons of the war crime of collective punishment.[58] In these cases, collective punishments were allegedly imposed because the population failed to support a particular faction or reportedly supported another.[59] Although the elements of the war crime of collective punishment evolved over the course of the different cases,[60] in the end the SCSL Appeals Chamber proposed the following two elements:
(i) the indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible; and
(ii) the specific intent of the perpetrator to punish collectively.[61]
More recently, in Kaing, the ECCC found the accused guilty of the grave breach of depriving prisoners of war of their right to a fair and regular trial, including by violating the rights of the victims to be protected from collective penalty.[62]
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3. Corporal punishments
3697  The prohibition of corporal punishment is enshrined in Article 87(3) of the Third Convention and Article 32(2) of the Fourth Convention.[63]
3698  Humanitarian law treaties prohibiting corporal punishment do not provide a definition of this concept. Corporal punishment is defined as ‘[p]hysical punishment; punishment that is inflicted on the body’.[64] The intensity of the sanction or the level of suffering that it might cause are irrelevant.[65] What matters is that the attempt upon physical integrity is carried out with the purpose of punishing a person.[66]
3699  Although it would be impossible to provide a comprehensive list of corporal punishments, the prohibition would cover acts such as branding, blinding, mutilation, amputation, the use of the pillory and the stocks, stoning, burning and quartering, strangulation, eye-gouging, flogging and, in general, any form of beating.[67]
3700  It is submitted that the prohibition of corporal punishments includes not only the fact of carrying them out, but also the act of sentencing an individual to this type of sanction, even if it is never implemented.
3701  The 1994 ICTR Statute and the 2002 SCSL Statute list corporal punishment as a war crime in non-international armed conflict.[68] It is not explicitly mentioned in the 1993 ICTY Statute or in the 1998 ICC Statute. Although corporal punishment is not included as such among the grave breaches in Article 130 of the Third Convention, inflicting it on a prisoner of war could be covered by other grave breaches depending on the circumstances of the case. It could be encompassed in the grave breach of torture or inhuman treatment, as well as under the grave breach of wilfully causing great suffering or serious injury to body or health.
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4. Imprisonment without daylight
3702  Article 87(3) also prohibits punishing prisoners of war by confining them in premises without daylight. This provision should be read in conjunction with Articles 97 and 108, which require the Detaining Power to ensure that premises in which a punishment takes place conform to the requirements of health and humanity, including the sanitary requirements of Article 25.
3703  Unlike other provisions of the Geneva Conventions, Article 87(3) specifically refers to ‘daylight’, and not just to any type of light.[69]
3704  Natural light is vital to maintaining physical and mental health. Because of the potentially negative health impact, prisoners of war should not be deprived of it.[70] In the framework of its work on behalf of persons deprived of their liberty, including prisoners of war, the ICRC stresses that light is a ‘basic need’.[71] It generally recommends that windows in places of detention are at least one-tenth of the cell’s total surface, to allow for adequate lighting and renewal of air.[72] Lighting, both natural during daytime and artificial after dusk should be sufficient to enable them to read and work without injury to eyesight. Furthermore, as a consequence of Article 25, which requires the Detaining Power to provide prisoners with adequate lighting, ‘in particular between dusk and lights out’, all prisoners must be able to distinguish between night and day, even when they are undergoing punishment.
3705  Given that paragraph 3 concludes by referring to ‘in general, any form of torture or cruelty’, it can be inferred that the prohibition of imprisonment without daylight may amount to cruelty, or torture depending on the circumstances of the case.[73]
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5. Any form of torture or cruelty
a. Torture
3706  Although the prohibition of torture is well established in international humanitarian law, there is no definition of torture in the Geneva Conventions.[74] The first definition in international treaty law is set forth in Article 1(1) of the 1984 Convention against Torture. This definition includes the requirement that torture be committed ‘by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. It must be recalled, however, that humanitarian law does not require official involvement in an act of torture.[75]
3707  The ICTY defines torture for the purposes of humanitarian law as the intentional infliction, by act or omission, of severe pain or suffering, whether physical or mental, for such purposes as to obtain information or a confession, to punish, intimidate or coerce the victim or a third person, or to discriminate, on any ground, against the victim or a third person.[76] In the context of Article 87(3), the absolute prohibition of torture is linked to the specific purpose of punishing a prisoner of war.
3708  The difference between torture and cruel treatment is that for torture there is a higher threshold of pain or suffering, which must be ‘severe’ rather than ‘serious’, and the infliction of pain or suffering must be the result of a specific purpose or motivation. To assess the severity of pain or suffering, the individual circumstances of each case – both in terms of the objective elements related to the severity of the harm and the subjective elements related to the condition of the victim – need to be considered.[77]
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b. Cruelty
3709  The Third Convention does not define the term ‘cruelty’, which may be deemed to correspond to the notion of ‘cruel treatment’.[78] The ICTY has clarified that
cruel treatment is treatment which causes serious mental or physical suffering or constitutes a serious attack upon human dignity, which is equivalent to the offence of inhuman treatment in the framework of the grave breaches provisions of the Geneva Conventions.[79]
Hence, the Tribunal does not differentiate between ‘cruel treatment’, as prohibited by common Article 3 and Article 87(3), and ‘inhuman treatment’ as a grave breach of the Geneva Conventions.[80] The 2002 ICC Elements of Crimes follows the same approach. Thus, the terms ‘cruel’ and ‘inhuman’ can be used interchangeably in relation to treatment.[81]
3710  To qualify as cruel (or inhuman) treatment, an act – and, in the context of Article 87(3), any punishment – must cause physical or mental suffering of a serious nature. Unlike torture, no specific purpose is required for cruel treatment. As far as the seriousness of the mental or physical suffering is concerned, this is a question of fact to be determined on a case-by-case basis.[82] The assessment of the seriousness of the pain or suffering is relative and must take into account all relevant circumstances, including the nature of the act or omission, the context in which the crime occurred, its duration and repetition, the physical, mental and moral effects of the act on the victim, and the personal circumstances of the victim, including, age, sex and health.[83]
3711  Some conduct which at first might not appear to be cruel treatment could in fact amount to such depending on the circumstances. This could be the case for solitary confinement, for example, which is a particularly severe form of close confinement in practice.[84] Unlike close confinement, which can refer to detention in a single room, back or cell with other persons,[85] solitary confinement is commonly understood as being held alone in a single cell for a very long period of the day without meaningful human contact.[86] It would appear that solitary confinement is becoming less and less accepted as a penalty in both law and practice.[87]
3712  The suffering caused by the cruel treatment does not need to be lasting, as long as it is ‘real and serious’.[88] But the fact that a treatment has long-term effects may be relevant to establishing the seriousness of the act.[89] In addition, as indicated by the definition of cruel treatment, the suffering need not be physical. Mental suffering in itself can be of such a serious nature as to qualify as cruel treatment.[90]
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F. Paragraph 4: Respect for rank and badges
3713  Article 49(1) of the 1929 Geneva Convention on Prisoners of War already forbade the Detaining Power from depriving prisoners of war of their rank. This provision had become necessary as a result of experiences in the First World War, when military tribunals repeatedly sentenced officer prisoners to be stripped of their rank. Such decisions were without legal foundation since the Detaining Power has no authority to intervene in a matter which is within the sole competence of the State on which the prisoner depends. Degradation was nevertheless an important matter, since those who were deprived of their rank were also deprived of the prerogatives to which it entitled them.[91]
3714  The 1947 Conference of Government Experts expanded the 1929 text by inserting a provision according to which the Detaining Power may not prevent prisoners of war from wearing the badges of their rank.
3715  The prohibition of degradation as a punishment needs to be seen in the light of Article 18(3), which provides that badges of rank and nationality cannot be taken away from prisoners of war, and of Article 40, which permits the wearing not only of badges of rank and nationality, but also of decorations.[92] During the Second World War, the ICRC had to intervene to prevent badges of rank and decorations from being taken away from prisoners of war.[93] In some cases, it had to intercede to prevent uniforms being taken from officer prisoners or to request that prisoners of war be permitted to wear their badges of rank and decorations on new clothing provided by the Detaining Power to replace shabby uniforms.[94]
3716  Article 87(4) contributes to the protection of the honour of prisoners of war, as well as their civil capacity.[95] It also reinforces the obligation to treat officers and prisoners of equivalent rank with due regard to their rank, as laid down in Article 44. In addition, it protects them from ‘more severe treatment than that applied in respect of the same punishment to members of the armed forces of the Detaining Power of equivalent rank’. However, badges may be withdrawn for security reasons, for example if they are considered sharp enough to be used as a weapon.[96]
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Select bibliography
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Bretonnière, Maurice, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), Paris, 1949.
Condé, H. Victor, ‘Collective Punishment’, in H. Victor Condé (ed.), Encyclopedia of Human Rights in the United States, Grey House Publishing, New York, 2011, pp. 40–41.
Darcy, Shane, ‘Prosecuting the War Crime of Collective Punishment: Is It Time to Amend the Rome Statute?’, Journal of International Criminal Justice, Vol. 8, No. 1, February 2010, pp. 29–51.
Doswald-Beck, Louise, Human Rights in Times of Conflict and Terrorism, Oxford University Press, 2011.
Droege, Cordula, ‘“In truth the leitmotiv”: the prohibition of torture and other forms of ill-treatment in international humanitarian law’, International Review of the Red Cross, Vol. 89, No. 867, September 2007, pp. 515–541.
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Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978.
Maia, Catherine, Kolb, Robert and Scalia, Damian, La Protection des Prisonniers de Guerre en Droit International Humanitaire, Bruylant, Brussels, 2015.
Nowak, Manfred, U.N. Covenant on Civil and Political Rights, CCPR Commentary, 2nd revised edition, N.P. Engel, Kehl am Rhein, 2005.
Rabbat, Paul and Mehring, Sigrid, ‘Collective Punishment’, version of November 2015, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com.
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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 - For a general discussion of the principle of assimilation, see Introduction, section A.3.c. For the principle of assimilation in penal and disciplinary matters specifically, see the commentary on Article 82(1), section C.
3 - See ICRC Study on Customary International Humanitarian Law (2005), Rules 90, 91 and 103.
4 - Agreement between France and Germany concerning Prisoners of War (1918), Article 44; Agreement between Austria-Hungary and Italy concerning Prisoners of War and Civilians (1918), Article 86; Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Article 84.
5 - Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Article 72.
6 - Emily Crawford, The Treatment of Combatants and Insurgents under the Law of Armed Conflict, Oxford University Press, 2010, p. 63.
7 - Ibid.
8 - Whereas the 1929 provision referred to ‘members of the national forces’ (‘des militaires des armées nationales’ in its authentic French version), the 1949 provision talks of ‘members of the armed forces of the said Power’ (‘des membres des forces armées de cette Puissance’). It should also be noted that the English text of the 1929 provision refers to ‘similar acts by members of the national forces’, whereas its 1949 counterpart talks of ‘armed forces of the said Power who have committed the same acts’ (emphasis added to both quotes). However, this seems to be a problem of translation, since the authentic French text of the 1929 treaty clearly refers to the ‘same acts’: ‘… d’autres peines que celles qui sont prévues pour les mêmes faits à l’égard des militaires des armées nationales’ (emphasis added).
9 - See Geneva Convention on Prisoners of War (1929), Article 46, paras 3 and 4, and Article 49, first sentence. Nonetheless, two aspects were not included in 1929, namely the explicit reference to the notion of torture and the ban on preventing prisoners of war from wearing their badges.
10 - Proceedings of the Geneva Diplomatic Conference of 1929, pp. 488–489.
11 - Report of the Conference of Government Experts of 1947, p. 206.
12 - Ibid. pp. 206–207.
13 - Ibid. p. 207.
14 - Ibid. p. 210.
15 - Draft Conventions submitted to the 1948 Stockholm Conference, pp. 106–107.
16 - Ibid. p. 107.
17 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 180 and 312.
18 - See also Vöneky, pp. 664–666, para. 1410(5)–(6).
19 - Thanks to the reiteration of the definite article, the equally authentic French wording is even more straightforward when it comes to making this distinction: ‘les autorités militaires et les tribunaux de la Puissance détentrice’ (‘the military authorities and the courts of the Detaining Power’).
20 - See also Green, p. 237.
21 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 429, and Maia/Kolb/Scalia, pp. 379–381.
22 - Bryan A. Garner (ed.), Black’s Law Dictionary, 11th edition, Thomson Reuters, 2019, p. 1368.
23 - Ibid. See also Nowak, p. 363.
24 - This is also the approach implicitly adopted by Vöneky, p. 661, para. 1410.
25 - Black’s Law Dictionary defines treason as ‘[t]he offense of attempting to overthrow the government of the state to which one owes allegiance’; Bryan A. Garner (ed.), Black’s Law Dictionary, 11th edition, Thomson Reuters, 2019, p. 1806. See also United States, Treason Code, 1948, as amended, Title 18, Part I, chapter 115, section 2381: ‘Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.’ Some military manuals have explicitly acknowledged this fact: see e.g. Sri Lanka, Military Manual, 2003, para. 1665: ‘The applicability of the Military Law of the detaining power is to be interpreted sensibly since a prisoner of war owes no duty of allegiance to the detaining power. Offences such as mutiny, desertion and aiding the enemy would not be applicable.’
26 - See e.g. Maurice Bretonnière, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), Paris, 1949, p. 279.
27 - See also the commentary on Article 82, paras 3560 and 3575, and on Article 83, para. 3589. An exception might involve cases where the Detaining Power finds combatants who share its nationality among prisoners of war. For a discussion of the role of nationality in the granting of prisoner-of-war status and the different views that exist on this issue, see the commentary on Article 4, section C.2.
28 - Pursuant to Article 82(2), prisoners may only face disciplinary punishment for such acts. See also Krähenmann, para. 727(2), p. 402.
29 - For specific rules on punishment in case of escape and attempted escape, see Articles 91–93.
30 - Maia/Kolb/Scalia, pp. 379–380.
31 - ICRC Study on Customary International Humanitarian Law (2005), Rule 101. See also Additional Protocol I, Article 75(4)(c), second sentence, and Additional Protocol II, Article 6(2)(c), second sentence.
32 - Nowak, p. 364.
33 - Ibid.
34 - Ibid.
35 - Additional Protocol I, Article 75(4)(c); Additional Protocol II, Article 6(2)(c); ICRC Study on Customary International Humanitarian Law (2005), Rule 101. It is also provided for in international human rights law: Universal Declaration of Human Rights (1948), Article 11(2); International Covenant on Civil and Political Rights (1966), Article 15(1); European Convention on Human Rights (1950), Article 7(1); and American Convention on Human Rights (1969), Article 9.
36 - Additional Protocol I, Article 75(4)(c); Additional Protocol II, Article 6(2)(c). Analogous provisions can be found in the International Covenant on Civil and Political Rights (1966), Article 15(1), and the American Convention on Human Rights (1969), Article 9.
37 - Bryan A. Garner (ed.), Black’s Law Dictionary, 11th edition, Thomson Reuters, 2019, p. 94.
38 - An exception might involve cases where the Detaining Power finds combatants who share its nationality among prisoners of war. For a discussion of the role of nationality in the granting of prisoner-of-war status and the different views that exist on this issue, see the commentary on Article 4, section C.2.
39 - United States, Army Board of Review, Batchelor case, Judgment, 1955, p. 452.
40 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 431.
41 - United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 189, para. 8.122; United States, Law of War Manual, 2016, p. 618–619, para. 9.26.6.
42 - Green, p. 238.
43 - For a discussion of this point, see Levie, pp. 323–324.
44 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 431–432.
45 - See also the commentary on Article 88, para. 3733. For a general discussion of the protection of different categories of prisoners with distinct needs, see Introduction, section A.3.b.
46 - On the application of the provision during the Second World War, see Bretonnière, pp. 308–311.
47 - Maia/Kolb/Scalia, p. 380.
48 - The same prohibition is also included in Article 75(2)(d) of Additional Protocol I and in Article 4(2)(b) of Additional Protocol II. It is also part of customary international law; see ICRC Study on Customary International Humanitarian Law (2005), Rule 103.
49 - Bryan A. Garner (ed.), Black’s Law Dictionary, 11th edition, Thomson Reuters, 2019, p. 331. See also Rabbat/Mehring, paras 1–2, and Condé, p. 27.
50 - SCSL, Fofana and Kondewa Appeal Judgment, 2008, para. 222.
51 - William A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, Cambridge University Press, 2006, p. 279.
52 - Article 26.
53 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 501–502 (India).
54 - Ibid. Vol. II-B, p. 118.
55 - Ibid. See also the commentary on Article 50 of the First Convention, para. 2917.
56 - Report of the Commission on Responsibility (1919), p. 159, and Italy, Military Tribunal of Rome, Priebke Trial Judgment, 1996. See also ICRC Study on Customary International Humanitarian Law (2005), Rule 103.
57 - The International Law Commission included collective punishment in its list of war crimes constituting a crime against the peace and security of mankind, when committed in a systematic manner or on a large scale; see ILC Draft Code of Crimes against the Peace and Security of Mankind (1996), Article 20(f)(ii).
58 - SCSL, Fofana and Kondewa Trial Judgment, 2007, p. 290, Count 7; Sesay Trial Judgment, 2009, p. 684, Count 2; Brima Trial Judgment, 2007, para. 2113, Count 2.
59 - SCSL, Koroma Indictment, 2003, para. 32, Count 2; Taylor Indictment, 2003, para. 32, Count 2; Norman, Fofana and Kondeiva Indictment, 2004, para. 28, Count 7; Sesay Amended Consolidated Indictment, 2004, para. 42; Brima Further Amended Consolidated Indictment, 2005, para. 41. See also Darcy, p. 41.
60 - Ibid. pp. 40–46.
61 - SCSL, Fofana and Kondewa Appeal Judgment, 2008, paras 223–224.
62 - See ECCC, Kaing Trial Judgment, 2010, paras 458–463.
63 - It is equally recognized as a fundamental guarantee for civilians and persons hors de combat by both Article 75(2)(a)(iii) of Additional Protocol I and Article 4(2)(a) of Additional Protocol II. Corporal punishment is also prohibited under customary international law; see ICRC Study on Customary International Humanitarian Law (2005), Rule 91.
64 - See Bryan A. Garner (ed.), Black’s Law Dictionary, 11th edition, Thomson Reuters, 2019, p. 1490.
65 - The absolute nature of the prohibition of corporal punishment is clear in the authentic French version of Article 87, which refers to ‘toute peine corporelle’ (‘any corporal punishment’) (emphasis added).
66 - See paras 3706–3708 of this commentary.
67 - See e.g. Manfred Nowak, Interim Report of the Special Rapporteur of the Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment, submitted in accordance with Assembly resolution 59/182, UN Doc. A/60/316, 30 August 2005, paras 18 and 21.
68 - ICTR Statute (1994), Article 4(a); SCSL Statute (2002), Article 3.
69 - This is also true of the equally authentic French version of Article 87(3), which refers to ‘la lumière du jour’.
70 - At the same time, prisoners should not be confined either in constant darkness or in constant artificial light.
71 - ICRC, Health Care in Detention: A Practical Guide, ICRC, Geneva, May 2015, p. 15. See also ICRC, Towards Humane Prisons: A Principled and Participatory Approach to Prison Planning and Design, ICRC, Geneva, April 2018, p. 37.
72 - ICRC, Water, Sanitation, Hygiene and Habitat in Prisons: Supplementary Guidance, ICRC, Geneva, April 2012, p. 37.
73 - Article 118(2) of the Fourth Convention also forbids imprisonment in premises without daylight ‘and, in general, all forms of cruelty without exception’. In this case, the drafters did not include an explicit reference to torture.
74 - For more details on the notion of torture, see the commentaries on Article 3, section G.2.d, and on Article 130, section D.2.
75 - See the commentary on Article 3, paras 662 and 681.
76 - The ICTY initially listed the purposes in a closed list: see Kunarac Trial Judgment, 2001, para. 497. At the time, the Trial Chamber was satisfied that these purposes had become part of customary international law and it did not need to look into other possible purposes for the particular case on trial; see ibid. para. 485. The ICTY subsequently recognized that the list of purposes was not exclusive: see e.g. Brđanin Trial Judgment, 2004, para. 487; Limaj Trial Judgment, 2005, para. 235; and Mrkšić Trial Judgment, 2007, para. 513.
77 - See ICTY, Kvočka Trial Judgment, 2001, para. 143, and Brđanin Trial Judgment, 2004, para. 483.
78 - For more details on the notion of cruel treatment, see the commentary on Article 3, paras 651–659, and on the notion of inhuman treatment, see the commentary on Article 130, section D.3.
79 - ICTY, Delalić Trial Judgment, 1998, para. 551. See also Naletilić and Martinović Trial Judgment, 2003, para. 246; Kordić and Čerkez Trial Judgment, 2001, para. 256; Blaškić Trial Judgment, 2000, paras 154–155; Limaj Trial Judgment, 2005, para. 231; Orić Trial Judgment, 2006, para. 351; Haradinaj Trial Judgment, 2008, para. 126; Mrkšić Trial Judgment, 2007, para. 514; Lukić and Lukić Trial Judgment, 2009, para. 957; and Tolimir Trial Judgment, 2012, para. 853. The ICRC policy of 9 June 2011 on torture and cruel, inhuman or degrading treatment inflicted on persons deprived of their liberty follows the same definition; see International Review of the Red Cross, Vol. 93, No. 882, June 2011, pp. 547–562.
80 - See ICTY, Delalić Trial Judgment, 1998, paras 550–552 (‘cruel treatment is treatment that is inhuman’); see also Kordić and Čerkez Trial Judgment, 2001, para. 265, and Blaškić Trial Judgment, 2000, para. 186.
81 - See also the commentary on Article 3, para. 653.
82 - ICTY, Limaj Trial Judgment, 2005, para. 232, confirmed in Orić Trial Judgment, 2006, para. 352; Mrkšić Trial Judgment, 2007, para. 517; Lukić and Lukić Trial Judgment, 2009, para. 957; and Tolimir Trial Judgment, 2012, para. 854.
83 - See also the commentary on Article 3, para. 655.
84 - Solitary confinement may also amount to torture. See e.g. ICTY, Krnojelac Trial Judgment, 2002, para. 183: ‘Solitary confinement is not, in and of itself, a form of torture. However, in view of its strictness, its duration, and the object pursued, solitary confinement could cause great physical or mental suffering of the sort envisaged by this offence.’
85 - For details on close confinement, see the commentaries on Article 21, section C.3, and on Article 89, para. 3754.
86 - This understanding is based on Rule 44 of the non-binding Mandela Rules (2015), which defines solitary confinement for the purpose of the Rules as ‘confinement of prisoners for 22 hours or more a day without meaningful human contact’.
87 - See the non-binding Mandela Rules (2015), Rules 43 and 45, prohibiting, in particular, indefinite and prolonged solitary confinement. In addition to defining what constitutes solitary confinement for the purposes of the Rules, they specify what categories of persons may not be subjected to this penalty.
88 - ICTY, Krnojelac Trial Judgment, 2002, para. 131. See also Martić Trial Judgment, 2007, para. 80, and Lukić and Lukić Trial Judgment, 2009, para. 957.
89 - See ICTY, Vasiljević Trial Judgment, 2002, para. 235.
90 - See e.g. ICTY, Naletilić and Martinović Trial Judgment, 2003, para. 369; Inter-American Court of Human Rights, Loayza Tamayo v. Peru, Judgment, 1997, para. 57; European Court of Human Rights, Ireland v. UK, Judgment, 1978, para. 167; and UN Committee against Torture, Consideration of reports submitted by States Parties under Article 19 of the Convention: United States of America, UN Doc. CAT/C/USA/CO/2, 25 July 2006, para. 13.
91 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 432.
92 - Both Articles 18 and 40 mention decorations alongside badges of rank and nationality, whereas Article 87(4) does not.
93 - ICRC, Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume I: General Activities, ICRC, Geneva, May 1948, pp. 250–251.
94 - Ibid. p. 251.
95 - See Article 14(1). See also Green, p. 229.
96 - See the commentaries on Article 18, sections C and E, and on Article 40, para. 2496.