Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.

[p. 435] ARTICLE 89 . -- GENERAL OBSERVATIONS: I. FORMS OF

PUNISHMENT

GENERAL REMARKS AND HISTORICAL BACKGROUND

1. ' Before the 1949 Conference '

Despite the very great divergences which inevitably exist between the systems of disciplinary sanctions of different countries, the first international agreements concerning the treatment of prisoners of war referred to national legislation; the Oxford Manual (Article 62 ) and the Hague Regulations (Article 8 ) merely stated that prisoners of war were to be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power.

Such a system obviously presents many disadvantages and is likely to result in different treatment for the same offence, in a world where conceptions were and still are divergent. During the First World War, the punishments imposed were sometimes cruel, amounting to reprisals rather than disciplinary measures.

In the first draft of the 1929 Convention, Article 50 contained a restrictive list of permitted punishments. The provision was not [p.436] approved, however, and the only limitation imposed by the 1929 Convention is indirect and is contained in Article 54 , which states: "Imprisonment is the most severe disciplinary punishment which may be inflicted on a prisoner of war". The notion of "imprisonment", which does not correspond to any particular form of disciplinary punishment provided under the military regulations of the various countries, must simply be taken in its general sense of disciplinary confinement as opposed to judicial confinement (1). It was sometimes difficult, however, to determine, when punishment was imposed, whether it was more or less severe than imprisonment; the only safeguard was in fact constituted by the fact that the duration of imprisonment could not exceed thirty days. Article 55 of the 1929 Convention expressly authorized the restrictions in regard to food "permitted in the armed forces of the Detaining Power", except as a collective measure (Article 11, paragraph 4 ). Conditions of work were not to be rendered more arduous by disciplinary measures (Article 32, paragraph 2 ), nor were letters or postcards to be withheld (Article 36, paragraph 1, last sentence ). With these reservations, prisoners of war remained subject to the laws, regulations and orders in force in the armed forces of the Detaining Power (Article 45 ), it being understood, however, that the military authorities were not to inflict on prisoners of war penalties other than those prescribed for the same acts by members of the armed forces of the Detaining Power (Article 46 ).

2. ' Preparatory work for the 1949 Conference '

When the text of a new Convention was being drawn up, the International Committee of the Red Cross proposed that a list of authorized disciplinary penalties should be drawn up. The suggestion was adopted first by the Conference of Government Experts and then by the 1949 Diplomatic Conference (2).

The Conference of Government Experts drafted a text listing six kinds of authorized disciplinary penalties: fines, restriction of supplementary privileges, fatigue duties, extra labour, disciplinary [p.437] drill and confinement. The XVIIth International Red Cross Conference nevertheless decided to delete from this list punishments involving extra labour and disciplinary drill, although all the requisite safeguards were provided, especially as regards duration (a maximum of two hours per day for thirty consecutive days) and the conditions of application (penalties which were brutal, inhuman or injurious to health were forbidden).

The 1949 Conference adopted the text as amended at Stockholm.

PARAGRAPH 1. -- APPLICABLE PUNISHMENTS

It is absolutely clear from the wording of the first sentence that the list contained in the present Article is an exclusive one, and no other disciplinary punishments may be applied to prisoners of war.

A. ' Fine. ' -- In accordance with Articles 60 and 62 , a prisoner of war will receive a monthly advance of pay equivalent to Sw. fr. 8.-- and working pay amounting to at least one quarter of one Swiss franc for a full working day. The total amount received each month by a prisoner of war would therefore be Sw. fr. 14.50 (for twenty-six working days), and the fine may be levied only on 50 per cent of that amount, that is to say, Sw. fr. 7.25 (3).

The fine may be levied on the advance of pay and not the working pay or vice versa, and only on the amount corresponding to a period of not more than thirty days. This maximum period is not actually stipulated in the case of punishments listed under paragraphs B, C and D below, yet Article 90 states that the duration of any single punishment may in no case exceed thirty days. This is an oversight in drafting.

B. ' Discontinuance of privileges. ' -- The Detaining Power remains at liberty, if it thinks fit, to treat prisoners of war in a more generous and favourable manner than the minimum standard laid down by the Convention. Those privileges may, however, be withdrawn at any time, particularly as a disciplinary punishment.

This sanction may take several forms (reduced tobacco ration, forbidding of walks outside the camp), but the most typical case is that of food restrictions. Unlike the 1929 Convention (Article 55 ), the present one does not make express provision for individual food [p.438] restrictions by way of disciplinary punishment. Article 26 , which concerns food, specifies that the food rations must be sufficient "to keep prisoners of war in good health and to prevent loss of weight or the development of nutritional deficiencies". Restrictions may not therefore be imposed by way of disciplinary punishment on the minimum amount of food required for this purpose. On the other hand, whatever is over and above the minimum may be restricted. To deny the Detaining Power this right would virtually discourage it from granting prisoners of war any treatment more favourable than the minimum standard, and that is obviously not the purpose of the Convention. It is therefore most important to determine as precisely as possible in each case the minimum

ration on which no restriction may be imposed. Such an assessment, which is an essential preliminary to any disciplinary measure of this kind, can only be made properly by the health service. It may be noted in passing that Article 26, paragraph 6 , expressly prohibits "collective disciplinary measures affecting food". Any such restriction must therefore be on an individual basis.

The same reasoning should be followed wherever disciplinary sanctions imposed in the form of a discontinuance of privileges affect clothing, or intellectual, educational and recreational pursuits, sports and games as referred to in Article 38 . The Detaining Power is required to encourage such activities and for their part, prisoners of war must by their attitude and behaviour encourage the Detaining Power to afford them the necessary facilities by not making the task of camp administration unduly difficult.

C. ' Fatigue duties. ' -- Fatigue duties are those which the men in a company usually take turns in performing, generally outside the normal working hours, because they are in the common interest; they are therefore limited to a maximum of two hours per day. Such duties may not, however, be considered as comprising any work for the benefit of the Detaining Power or which is not connected with the administration of the camp.

D. ' Confinement. ' -- This refers to disciplinary detention as opposed to judicial detention, and a distinction is generally made between open confinement and close arrest. The former takes place during the period outside hours of work -- that is to say from the return to camp to reveille -- and during the rest of the time the prisoner shares the life of his comrades. Since officers are not required to work, this form of confinement is not applicable to them. Close arrest consists [p.439] of uninterrupted detention. A distinction may also be made between room arrest (generally applicable to officers), confinement to barracks and detention in cells.

The Convention also includes various provisions which serve to guarantee the treatment to be accorded to prisoners of war undergoing confinement:

(a) premises: Article 87, paragraph 3 , Article 97 , Article 25 , Article

29 [ Link ] ;

(b) treatment: Article 87, paragraphs 3 and 4 , Article 88, paragraphs 1

to 4 , Article 98 ;

(c) treatment of women prisoners of war: Article 88, paragraphs 2 and 3 ,

Article 97, paragraph 4 ;

(d) treatment of officers: Article 87, paragraph 4 , Article 97, paragraph

3 [ Link ] , Article 98, paragraph 2 .

These various Articles should be taken in conjunction with the general statement in Article 82 that prisoners of war are to be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power. If the treatment applicable to the armed forces of the Detaining Power is below the minimum standard laid down by the Convention, the latter must prevail.

One may wonder, however -- and this was pointed out by several delegations at the Conference of Government Experts -- whether certain provisions of the Convention do not render confinement rather ineffective as a penalty (4). The fact that prisoners of war undergoing confinement may spend two hours out of doors each day and especially that they are allowed to read, in accordance with Article 98 , makes this penalty considerably less severe than confinement as applied in most national armed forces.

The question is an important one, for if the penalties provided under the Convention are ineffective, governments might be tempted to resort to coercive measures which are not provided under the Convention and prisoners of war would thus be deprived of the safeguards which the Convention is intended to afford them. Another question which has been raised is whether a Detaining Power whose legislation does not provide for one or more of the disciplinary punishments referred to in the present Article could nevertheless apply them, despite the rule contained in Article 87, paragraph 1 . The answer is in the affirmative. Article 89 establishes a disciplinary code in miniature [p.440] which in this regard replaces the legislation of the Detaining Power. If further corroboration is required, it will suffice to refer to the second punishment listed (discontinuance of privileges granted over and above the treatment provided for by the Convention); obviously, no national disciplinary code would or could make provision for this punishment in the case of its own

armed forces.

PARAGRAPH 2. -- RESERVATION WITH REGARD TO OFFICERS

Pursuant to Article 44, paragraph 2 , fatigue duties in camps for officer prisoners of war are performed by prisoners of war who are members of the other ranks in the same armed forces and who must therefore be assigned in sufficient numbers. Prisoners of war with a status equivalent to that of officers, such as officer cadets, will also be exempt from fatigue duties.

PARAGRAPH 3. -- GENERAL SAFEGUARDS

At first sight, the safeguards contained in the present paragraph may appear superfluous since the list of punishments permissible under the present Article is an exclusive one and does not include any measure which is inhuman, brutal, or dangerous to the health of prisoners of war. The paragraph was included because of certain abuses which occurred during the two world wars. It should also be noted that if the permitted punishments are strictly applied, they may in certain cases be unduly harsh. It may be brutal or dangerous to the health of a prisoner of war to oblige him to do two hours of fatigue duties when he is already tired out; this is also true of detention in cells of a prisoner of war who is sufficiently ill to warrant transfer to the infirmary (5).

Can the four punishments provided for by Article 89 be cumulated ? Can a prisoner of war be punished simultaneously by confinement and a fine? Certainly not if a single offence is involved, for Article 86 states categorically: "No prisoner of war may be punished more than once for the same act or on the same charge." It should also be noted that certain punishments are, in a way, automatically cumulative in the sense that confinement is automatically accompanied by a discontinuance of privileges, and fatigue duties are normally performed [p.441] during leisure hours. In certain armed forces, men sentenced to confinement sometimes receive no pay, and this amounts to the imposition of a fine. It can therefore be seen that the application of a single punishment has a cumulative effect, at least in the case of confinement and fatigue duties, which are the most current forms of punishment.

If judgment is given simultaneously on several offences, the Detaining Power can nevertheless inflict a punishment in respect of each offence committed. The only limitations which the Convention lays down are contained in Article 90, paragraph 2 , hereunder.

* (1) [(1) p.436] See ' Actes de la Conférence de 1929 ',

p. 493;

(2) [(2) p.436] By way of example, the various disciplinary

penalties imposed during the Second World War may be

recalled: punishment drill, handcuffing and pack-drill as

well as other less severe measures such as extra duties in

the camps, withholding of the cigarette ration, denial of

access to the canteen, confinement to barracks, kitchen

duties, etc. Prisoners who did not do the quota of work

required suffered pay reductions, had to do extra work or,

in serious cases, were obliged to do arduous work for

which they received no pay;

(3) [(1) p.437] See ' Final Record of the Diplomatic

Conference of Geneva of 1949 ', Vol. II-A, pp. 490 and

503;

(4) [(1) p.439] See ' Remarks and Proposals ', p. 58;

(5) [(1) p.440] Article 98, paragraph 4, provides special

safeguards in this case;