Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 102 : Judicial procedure: Conditions for validity of sentence
Text of the provision
A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed.
Reservations or declarations
None
Contents

A. Introduction
4003  Article 102 belongs to the section on judicial proceedings in the chapter on penal and disciplinary sanctions. It lays down the rule that a prisoner of war may be sentenced only by the same courts according to the same procedure as in the case of members of the Detaining Power’s own forces, thus reflecting the ‘principle of assimilation’.[1] This principle, which employs the rules and standards in force in the armed forces of the Detaining Power as the point of reference for determining the treatment owed to prisoners of war, runs through the Convention as a whole and underpins several provisions of the present chapter.[2] The principle seeks to ensure that prisoners of war benefit at a minimum from the safeguards afforded to members of the Detaining Power’s own forces.
4004  The principle of assimilation, however, does not operate in a vacuum.[3] While a necessary condition, parity of treatment in matters of judicial procedure and forums is not necessarily sufficient for compliance with Article 102. Since domestic penal processes and courts vary from one country to the next and might fall short of international standards of justice and fair trial, Article 102 adds the critical proviso that the other rules of the present chapter must also be observed. In order to comply with Article 102, States should ensure that the courts that prosecute members of their own armed forces offer the essential guarantees of independence and impartiality, and that the legislation applicable to members of their own forces provides the minimum guarantees set out in Articles 82–108.[4] If any of these provisions are disregarded in the prosecution of a prisoner of war, there may be grounds for appeal, pursuant to Article 106.
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B. Historical background
4005  The Hague Regulations of 1899 and 1907 codified the rule that prisoners of war are subject to the laws in force in the army of the detaining State.[5] Article 63 of the 1929 Geneva Convention on Prisoners of War added to this the provision that sentences for penal offences may only be imposed ‘by the same tribunals and in accordance with the same procedure as in the case of persons belonging to the armed forces of the detaining Power’. This provision was interpreted as covering only offences committed after capture.[6] For war crimes and other crimes committed prior to capture, the effect was that prisoners of war could be tried by a different court applying different procedural rules than those for members of the armed forces of the Detaining Power.[7]
4006  Article 85 of the Third Convention makes it clear that prisoners of war tried by the Detaining Power for crimes committed prior to capture retain the protection of the Convention, including application of the present article. Furthermore, Article 102 expands on Article 63 of the 1929 Convention by requiring, in addition to equal treatment, observance of the other provisions in this chapter.
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C. Discussion
1. Validly sentenced
4007  For the ‘sentencing’ of a prisoner of war to be valid, the conditions of Article 102 must be met. The term ‘sentence’ generally conveys two meanings: ‘the judgment that a court formally pronounces after finding a criminal defendant guilty’ and ‘the punishment imposed on a criminal wrongdoer’.[8] Here, as in Article 106, the term ‘sentence’ is used to reflect the ‘decision’ or ‘finding’ of the court as to the guilt or innocence of the accused, as well as the punishment imposed, if any.[9] The equally authentic French text of both Article 102 and Article 106 uses the term ‘jugement’. This can be explained on the basis that in civil-law systems, the finding of guilt and the sentence imposed are generally contained in one single judgment, whereas in countries with a common-law system, a separate sentencing judgment may follow a guilty verdict. If a prisoner of war is convicted without due respect for the terms of Article 102, both the conviction and any penalty imposed on the basis of that conviction will therefore be invalid. If the finding of guilt is pronounced in accordance with Article 102 and the legal system of the Detaining Power requires a separate judgment for the sentencing of the accused, the latter must likewise be pronounced in accordance with the conditions of Article 102 for the punishment to be valid. Furthermore, according to Article 130, wilfully depriving a prisoner of war of the rights of fair and regular trial is a grave breach of the Third Convention.[10]
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2. Same courts and same procedure
4008  The first requirement of Article 102 is that prisoners of war must be subject to the same courts and same procedure as members of the armed forces of the Detaining Power. The condition of ‘same courts’ means that a sentence may be passed on a prisoner of war only by courts that have competence and jurisdiction to try a member of the armed forces of the Detaining Power for the same offence.[11] This excludes the trial of prisoners of war in courts set up by their fellow prisoners.[12]
4009  This provision should be read alongside Article 84(1), which provides for the trial of prisoners of war by a military court, unless the existing laws of the detaining State expressly permit civilian courts to try a member of its own forces for the same offence.[13] Whatever arrangement is in place for members of the armed forces of the Detaining Power must also apply to prisoners of war subsequently charged with an offence by the Detaining Power.[14]
4010  The requirement that prisoners of war be tried by the same courts furthermore implies that no court may be established solely to render judgment against a prisoner of war. This is an essential safeguard against arbitrary action by the Detaining Power.
4011  Article 102 further requires the Detaining Power to apply the ‘same procedure’ to prisoners of war as would be applicable to members of its own armed forces. For example, where the procedural rules governing the trial of a member of the armed forces of the detaining State prohibit exclusion of the accused from the proceedings for reasons other than their disruptive behaviour or voluntary absence, a provision permitting the exclusion of an accused prisoner of war from trial for other reasons would violate the requirement of ‘same procedure’ in Article 102. So would denying the accused access to evidence that would have to be disclosed in proceedings against a member of the armed forces of the Detaining Power. However, as will be seen below, should procedures applicable to the Detaining Power’s own forces fall short of the minimum standards laid out in the chapter on penal and disciplinary sanctions, the latter must prevail.
4012  The requirement that the ‘same procedure’ apply to prisoners of war is not limited to the sentencing stage of judicial proceedings. To ensure that prisoners of war are not placed in an inferior position to members of the armed forces of the Detaining Power, procedural rights under domestic law that are available to one’s own forces during and prior to trial must also be afforded to prisoners of war. [15] The availability of such safeguards during the investigation, as well as during the trial itself, can clearly affect the prisoner’s ability to conduct an effective defence and can influence sentencing.
4013  The principle of assimilation must apply until the case has been definitively disposed of, on completion of the final appeal against the sentence imposed.[16]
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3. Observing the provisions of the present chapter
4014  The principle of equal treatment of prisoners of war and members of the forces of the Detaining Power in judicial matters offers a minimum, but relative guarantee for the treatment of prisoners of war. Courts and penal procedure differ from one country to the next and may not always satisfy international standards of justice and fair trial.[17] The second part of the sentence in Article 102 supplements the principle of assimilation by requiring respect for the provisions of the Convention relating to judicial proceedings. In any case of discrepancy where domestic law standards are lower than those of the Convention, the latter’s provisions on judicial guarantees must prevail.[18] Where domestic law provides protections above the minimum guarantees of the Convention, the principle of assimilation will result in the higher, national, standard taking precedence.[19]
4015  The ‘provisions of the present chapter’ include the requirement that the court trying the prisoner of war offer the essential guarantees of independence and impartiality.[20] They also include, for example: the right not to be prosecuted or punished more than once for the same act or on the same charge;[21] the prohibition on using coercion to induce a confession and of retroactive application of criminal laws;[22] and the entitlement to the rights and means of defence set down in Article 105.
4016  The requirement to treat prisoners of war on a par with members of the armed forces of the Detaining Power while complying with the other provisions of the present chapter may entail the revision of domestic laws to ensure that the courts and procedure applicable to members of the Detaining Power’s own forces offer the judicial guarantees to which prisoners of war are entitled under the Convention.[23] Prisoners of war may also be made subject to special legislation that provides for the same judicial rights and benefits as are granted to members of the armed forces of the Detaining Power, as well as any additional safeguards set out in this chapter.[24] The latter option, however, carries the risk of discrepancies emerging between the treatment of prisoners of war and members of the armed forces of the Detaining Power, if the law applicable to the latter is subsequently altered to include additional judicial guarantees without corresponding amendments to the special law for prisoners of war.[25]
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D. Particular categories of prisoners of war
4017  The requirement that the Detaining Power try prisoners of war using the same courts and same procedures as in the case of its own armed forces seems to assume that all prisoners of war are military personnel. However, for certain categories of prisoners of war, in particular ‘civilian’ prisoners of war,[26] and children, the appropriateness of these courts and procedures is not beyond doubt.[27] There may be constitutional or other limits in place that bar the trial of civilian persons by military court. The specific application of military law to civilian prisoners of war will therefore differ according to national legal systems.[28]
4018  There may be additional challenges in the case of children taken as prisoners of war. In the ICRC’s view, norms and standards of the child justice system should inform a decision with regard to the judicial forum and process for minors.[29] These include norms and standards recognizing that, in cases where a child prisoner of war has been unlawfully recruited by the armed forces of an opposing Party, that child is a victim of a violation of international law and should be treated accordingly.[30]
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Select bibliography
Doswald-Beck, Louise, Human Rights in Times of Conflict and Terrorism, Oxford University Press, 2011.
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.
Rowe, Peter, ‘The trial of prisoners of war by military courts in modern armed conflicts’, in Caroline Harvey, James Summers and Nigel D. White (eds), Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe, Cambridge University Press, 2014, pp. 313–336.
– ‘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.

1 - 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.
2 - For examples of rules that reflect the principle of assimilation, see Introduction, para. 32.
3 - See Introduction, para. 36.
4 - See Rowe, 2014, pp. 313–314 and 335.
5 - Hague Regulations (1899), Article 8; Hague Regulations (1907), Article 8.
6 - Rowe, 2014, p. 314. See also the commentary on Article 85, section B; United States Reports, Cases adjudged in the Supreme Court at October term 1944 and October term 1945, United States Government Printing Office, Washington, D.C., 1946, Vol. 326, pp. 21–23; and Rosas, p. 368.
7 - See United States, Military Commission, Yamashita case, Judgment, 1946, p. 78, and Supreme Court, Eisentrager case, Judgment, 1950. See also Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal, Oxford University Press, 2008, pp. 45–46.
8 - Bryan A. Garner (ed.), Black’s Law Dictionary, 11th edition, Thomson Reuters, 2019, p. 1636.
9 - See the commentary on Article 106, para. 4154. See also the commentary on Article 107, para. 4171.
10 - See the commentary on Article 130, section D.7. See also Rowe, p. 324.
11 - Report of the Conference of Government Experts of 1947, pp. 206–207.
12 - See Howard S. Levie, Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, p. 336.
13 - For a specific discussion of the term ‘expressly permit’, see the commentary on Article 84, section C, in particular para. 3601.
14 - Rowe, 2014, pp. 318–319.
15 - See e.g. Rowe, 2014, p. 330. See also the commentary on Article 103, section C.1.
16 - See the commentary on Article 106, paras 4142 and 4145. For the case of a prisoner of war being convicted and sentenced to punishment, see Article 108.
17 - In particular, in situations in which a prisoner of war is transferred to another Power to face judicial proceedings, the Detaining Power must comply with Article 12, which requires the transferring State to assure itself of the willingness and ability of the receiving Power to apply the Convention. This includes the rules of the present chapter on penal and disciplinary sanctions. Thus, a Detaining Power may not transfer a prisoner of war if ‘there is a real risk that any trial in the receiving State would be before a court (whether military or not) lacking the necessary independence and impartiality, or where the treatment of the POW would infringe [the Third Geneva Convention] and/or its human rights obligations’; Rowe, 2015, pp. 1036–1037.
18 - See the commentary on Article 82, section C.2.
19 - See ibid.
20 - Article 84(2).
21 - Article 86.
22 - Article 99.
23 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 476; Rowe, 2014, pp. 313–314 and 335.
24 - See Rowe, 2014, p. 326.
25 - Ibid. pp. 326–327.
26 - See the commentary on Article 4, section H.1.
27 - See also the commentaries on Article 16, para. 1755, on Article 82, para. 3567, and on Article 84, paras 3608–3609. The UN Committee on the Rights of the Child has expressed concerns over children being tried by military courts; see General comment No. 24 (2019) on children’s rights in the child justice system, UN Doc. CRC/C/GC/24, 18 September 2019, para. 96.
28 - It should be noted that human rights bodies have expressed reservations over civilians being tried by military courts, although they have not addressed the specific issue of civilian prisoners of war. See the commentary on Article 3, para. 718.
29 - Examples of such norms and standards that may provide guidance include, at the international level: Convention on the Rights of the Child (1989), Article 40; UN Committee on the Rights of the Child, General comment No. 24 (2019) on children’s rights in the child justice system, UN Doc. CRC/C/GC/24, 18 September 2019; UN Guidelines for the Prevention of Juvenile Delinquency (1990); UN Rules for the Protection of Juveniles Deprived of Their Liberty (1990); Standard Minimum Rules for the Administration of Juvenile Justice (1985); and at the regional level: African Commission on Human and Peoples’ Rights, Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, 2014, Part 7, Guideline 31 (Children); Inter-American Commission on Human Rights, Juvenile Justice and Human Rights in the Americas, Doc. OEA/Ser.L/V/II., 13 July 2011; Guidelines of the Committee of Ministers of the Council of Europe on Child Friendly Justice (2010); Inter-American Court of Human Rights, Juridical Condition and Human Rights of the Child case, Advisory Opinion, 2002.
30 - See e.g. UN Committee on the Rights of the Child, General comment No. 24 (2019) on children’s rights in the child justice system, UN Doc. CRC/C/GC/24, 18 September 2019, para. 100; UN Security Council, Res. 2427, 9 July 2018, paras 21–22; UNICEF, Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (The Paris Principles), February 2007, paras 3.6 and 3.11; and Optional Protocol on the Involvement of Children in Armed Conflict (2000), Article 6(3).