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”.
South Africa’s LOAC Teaching Manual (2008) states:
1.2 Reasons for compliance with LOAC [law of armed conflict] and basic principles thereof.
Fundamental Norms and Values (rules)
The fundamental norms/val[u]es which underlie the LOAC are:
- All persons who are captured or under the authority of an adverse party are entitled to, as a minimum, the protection and guarantees bestowed upon prisoners of war (POW).
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.
South Africa’s Implementation of the Geneva Conventions Act (2012) states: “A protected prisoner of war who is in the custody of the South African National Defence Force must be granted the protection of the  Third [Geneva] Convention or the  Fourth [Geneva] Convention, as the case may be.”
The Act defines a “protected prisoner of war” as a “person protected by the Third Convention or a person who is protected as a prisoner of war under [the 1977 Additional] Protocol I”.
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.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
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.