Section L. Advising convicted persons of available remedies and of their time-limits
Geneva Convention III
Article 106 of the 1949 Geneva Convention III provides: “Every prisoner of war …shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.”
Geneva Convention IV
Article 73, first paragraph, of the 1949 Geneva Convention IV provides: “A convicted person …shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.”
Additional Protocol I
Article 75(4)(j) of the 1977 Additional Protocol I provides that, among other fundamental guarantees, “a convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised”.
Additional Protocol II
Article 6(3) of the 1977 Additional Protocol II provides: “A convicted person shall be advised of his judicial and other remedies and of the time-limits within which they may be exercised.”
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.3 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I.
Argentina’s Law of War Manual (1969) provides: “Any prisoner of war …shall be fully informed of his rights of recourse, as well as the required time limit to exercise them.”
The manual further states that the “proceedings shall foresee the right to appeal for the persons [placed in assigned residence or interned]”.
Argentina’s Law of War Manual (1989) states that, in occupied territory, any convicted person shall be informed of the means of recourse available and how to exercise them.
With respect to non-international armed conflict, the manual states that “information on the right to judicial appeals” is one of the fundamental guarantees.
Canada’s LOAC Manual (1999) provides that, in non-international armed conflicts, “accused persons shall be told, if convicted, of their judicial and other remedies and appellate procedures”.
Canada’s LOAC Manual (2001) states in its chapter on non-international armed conflicts: “As a minimum, accused persons: … g. shall be told, if convicted, of their judicial and other remedies and appellate procedures”.
The Military Manual (1993) of the Netherlands provides with respect to non-international armed conflicts: “A person who is convicted must be informed about the judicial remedies available to him.”
New Zealand’s Military Manual (1992) provides that prisoners charged with offences shall be informed “with details as to the right of appeal”.
The manual further states: “A convicted person shall be advised of the remedies and of the time limits within which they may be exercised.”
With respect to non-international armed conflicts, the manual provides: “A convicted person shall be told on conviction of his judicial and other remedies and appellate procedures.”
Peru’s IHL Manual (2004) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including “information on rights and time limits for appeals and other petitions”.
Peru’s IHL and Human Rights Manual (2010) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including: “[i]nformation on rights and time limits for appeals and other petitions”.
Spain’s LOAC Manual (1996) lists the “conditions and limits regarding proceedings” established by the law of war, inter alia
, “remedies and appeal” and “time limits”.
Spain’s LOAC Manual (2007) states that “appeals and petitions” and “time limits” are to apply to criminal proceedings in occupied territories.
Sweden’s IHL Manual (1991) considers that the fundamental guarantees for persons in the power of one party to the conflict as contained in Article 75 of the 1977 Additional Protocol I are a part of customary international law.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “Every prisoner of war …must be fully informed of this right [of appeal or petition] and also of any time limit for appeal or petition.”
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … a convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.
With regard to prisoners of war, the manual states: “Every prisoner of war must be given the same rights of petition and appeal against finding and sentence as members of the armed forces of the detaining power and must be fully informed of those rights and of any time limits.”
Lastly, in its discussion on the administration of criminal law in occupied territory, the manual states:
Although a convicted person has no specific right of appeal under the law of armed conflict, a right of appeal may exist under the law applied by the court. Even where that law makes no provision for appeal, the convicted person has a right to petition the competent authority of the occupying power in respect of finding and sentence. He must be fully informed of his rights of appeal and of any time limits within which he must present his appeal or petition.
Note. Numerous pieces of domestic legislation provide for the right of the convicted person to receive advice on judicial and other remedies available. These have not been listed here.
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Book 3: Procedure before the military jurisdiction
After having pronounced the judgement, the presiding judge, if applicable, advises the convicted person that he has the right to appeal the decision. He specifies the time limit.
Book 4: Specific procedures and various provisions
If the judgement has not been personally served, an objection can be received until the expiration of the limitation period of the penalty. If the convicted person presents himself or if he is arrested before the penalty has expired by limitation, he is without delay notified of the judgement.
The notification, under penalty of nullity, includes the note that he can, within five days in time of peace and within 24 hours in time of war, lodge objection against the judgement by declaration either at the time of its notification, or to the registry of the closest military jurisdiction, and that, after expiration of that time limit without objection having been lodged, the judgement will become definitive at the expiration of the time limits for demurring.
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 106 of the Geneva Convention III and Article 73 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 75(4)(j), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 6(3), are punishable offences.
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in …the Geneva Conventions of 12 August 1949 …[and in] the two additional protocols to these Conventions …is liable to imprisonment.
United States of America
The US Regulation for Trial by Military Commissions (2007), designed to facilitate the day-to-day functioning of US Military Commissions by implementing the provisions of the Military Commissions Act of 2006 and the Manual for Military Commissions, states:
APPELLATE RIGHTS ADVICE
Prior to adjournment, the defense counsel will inform the accused orally and in writing of:
1. The right to submit matters to the convening authority to consider before taking action;
2. The right to appellate review and the effect of waiver or withdrawal of such right;
3. The right to the advice and assistance of counsel in the exercise of the foregoing rights or any decision to waive them.
The Report on the Practice of Jordan states that Article 75 of the 1977 Additional Protocol I embodies customary law.
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include … Article 6 providing the rule on penal prosecutions due to the fact that these norms are reflected in Common Article 3 of the  Geneva Conventions.
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.4 [Increasing use] of anti-guerrilla tactics
Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the  Geneva Conventions.
[footnotes in original omitted]
Syrian Arab Republic
The Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers Article 75 of the 1977 Additional Protocol I to be part of customary international law.
United States of America
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris
of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].”
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
The conviction must be pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include … information on the right of appeal and other remedies and their time-limits.
The ICRC Commentary on the Additional Protocols explains the rationale behind the guarantee of Article 75(4)(j) of the 1977 Additional Protocol I as follows:
It was not considered realistic in view of the present state of national legislation in various countries to lay down a principle to the effect that everyone has a right of appeal against [the] sentence pronounced upon him, i.e., to guarantee the availability of such a right, as provided in the ICRC draft. However, it is clear that if such remedies do exist, not only should everyone have the right to information about them and about the time-limits within which they must be exercised, as explicitly provided in the text, but in addition, no one should be denied the right to use such remedies.