Treaties, States Parties and Commentaries
  • Print page
Commentary of 1958 

During the Second World War there were cases of prisoners of war being killed during disturbances which had led to the guards losing their composure. Some governments as a result even concluded agreements to make guards and sentinels more careful by threatening them with prosecution.
The experts consulted in 1947 by the International Committee of the Red Cross, decided to recommend the adoption of a special clause in the draft Conventions in order to protect the internees against this danger (1). Their solicitude for the internees' welfare even extended to cases of brawls between the detainees themselves or to any death or [p.509] serious injury suspect in origin. The Diplomatic Conference made no difficulty about adopting the provisions inserted in the Stockholm Draft at the suggestion of the experts (2).


This text obliges the Detaining Power to open an official enquiry in case of death or serious injury of unknown cause.
What is meant by "serious injury"? During the discussion of the corresponding text concerning prisoners of war, one delegation suggested that it should be made clear that what was referred to was a wound as a result of which a prisoner required in-patient treatment in a hospital or an infirmary (3). This definition was considered too rigid and was therefore not inserted in the Convention, but it could usefully be adopted in most cases.
As has already been stated, this text protects internees not only against the misuse of authority by agents of the Detaining Power (guards or sentinels) but also against violence from any other person, particularly their companions in internment. It therefore opens the way for the Detaining Power to repress disturbances which might arise in places of internment as a result of political or other divisions. The maintenance of order and the protection of the life and limb of the internees is thus dealt with at one and the same time.
An official enquiry will also be opened in the case of death from unknown causes. This may refer to an unexplained illness as well as to violent death.
In what should the enquiry consist? Since its object is to discover who was responsible with a view to punishing the crime, the victim must be very thoroughly examined, if necessary by an expert in forensic medicine, and all witnesses must be heard.


As soon as the enquiry is opened and before the results are even known, the Detaining Power must advise the Protecting Power to enable it to follow the enquiry and perhaps to ask for permission to be present at the cross-examination of witnesses. Among these, fellow-internees are not specially mentioned, as are fellow-prisoners in the corresponding provision of the Third Convention, but the [p.510] expression evidence of any witnesses obviously covers the other internees.
The Article does not oblige the Detaining Power to send the files on the case to the Protecting Power, although the latter should receive a circumstantial report concerning the results of the enquiry and it is stated that this report must contain the evidence of any witnesses.


If the enquiry leads to responsibility being laid at the door of one or more persons, whoever they may be, they must be prosecuted before a court of law. If they are nationals of the Detaining Power, that Power will not be able to exempt them from prosecution before its own civil or military courts. In the case of internees, they will be prosecuted in accordance with the laws in force in the territory where they happen to be (Article 117, paragraph 1 ).
Although it is not expressly stipulated, it is reasonable to suppose that the Detaining Power must inform the Protecting Power of the punishments inflicted on the guilty.

Notes: (1) [(2) p.508] See ' Report on the Work of the Conference of
Government Experts, ' p. 249;

(2) [(1) p.509] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 377;

(3) [(2) p.509] See ibid., Vol. II-A, p. 298;