Hostname: page-component-cd9895bd7-lnqnp Total loading time: 0 Render date: 2024-12-25T06:52:04.688Z Has data issue: false hasContentIssue false
  • English
  • Français

The obligation to exercise “leniency” in penal and disciplinary measures against prisoners of war in light of the ICRC updated Commentary on the Third Geneva Convention

Published online by Cambridge University Press:  28 March 2022

Katayoun Hosseinnejad  and
Pouria Askary
Get access Rights & Permissions [Opens in a new window]

Abstract

This paper explores how the general obligation of the Detaining Power to exercise the greatest leniency towards prisoners of war may be used in interpreting the provisions of the Third Geneva Convention of 1949 (GC III) related to the sanction regime to fulfil the obligation of humane treatment and to preserve the persons and honour of prisoners of war. The International Committee of the Red Cross updated Commentary on GC III is placed at the core of the arguments of this research.

Keywords

detaining powerdisciplinary sanctionshumanityleniencypenal punishmentsprisoners of war
Type
Selected articles
Information
International Review of the Red Cross , Volume 104 , Issue 919: Selected Articles , April 2022 , pp. 1121 - 1147
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the ICRC.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Merriam-Webster, “Lenient”, in Merriam-Webster.com Dictionary, available at: https://www.merriam-webster.com/dictionary/lenient (all internet references were accessed in March 2022).

2 Lucius Annaeus Seneca, Of Clemency (De Clementia), at 2.3.1., cited in Susanna Morton Braund, “The Anger of Tyrants and the Forgiveness of Kings”, in Charles L. Griswold and David Konstan (eds), Ancient Forgiveness: Classical, Judaic, and Christian, Cambridge University Press, Cambridge, 2012, p. 89.

3 Jennifer M. Sandoval, A Psychological Inquiry into the Meaning and Concept of Forgiveness, Routledge, Abingdon, 2017, p. 28.

4 Miller, Justin, “Philosophy of Leniency in Crime Treatment”, Journal of Criminal Law and Criminology, Vol. 32, No. 4, 1942, p. 389Google Scholar. See, also, Duus-Otterström, Göran, “Why Retributivists Should Endorse Leniency in Punishment”, Law and Philosophy, Vol. 32, No. 4, 2013CrossRefGoogle Scholar.

5 Convention Relative to the Treatment of Prisoners of War, Geneva, 27 July 1929, 118 LNTS 343 (entered into force 19 June 1931) (1929 Convention).

6 Geneva Convention (III) Relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III).

7 It is noteworthy that Article 121 of the Fourth Geneva Convention also provides that: “The Parties to the conflict shall ensure that the competent authorities exercise leniency in deciding whether punishment inflicted for an offence shall be of a disciplinary or judicial nature, especially in respect of acts committed in connection with an escape, whether successful or not.” Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950).

8 Final Record of the Diplomatic Conference of Geneva of 1949, Federal Political Department, Bern (1949 Diplomatic Conference), Vol. II-A, p. 304.

9 See the “Historical background” part below.

10 See, for example, Nigel Walker, Aggravation, Mitigation and Mercy in English Criminal Justice, Blackstone Press, London, 1999, in particular pp. 219–30 where the author makes the distinction between mercy and leniency.

11 Ticehurst, Rupert, “The Martens Clause and the Laws of Armed Conflict”, International Review of the Red Cross, Vol. 37, No. 317, 1997, p. 133CrossRefGoogle Scholar.

12 See, for example, Pustogarov, Vladimir V., “The Martens Clause in International Law”, Journal of the History of International Law, Vol. 1, No. 2, 1999CrossRefGoogle Scholar; Meron, Theodor, “The Martens Clause, Principles of Humanity, and Dictates of Public Conscience”, American Journal of International Law, Vol. 94, No. 1, 2000Google Scholar.

13 Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 3: Geneva Convention Relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960 (1960 Commentary), commentary on Art. 83, p. 410.

14 Ibid., commentary on Art. 87, pp. 430–1. These elements under Article 87 are “the absence of any duty of allegiance, and the fact that the prisoner is in the hands of the Detaining Power as the result of circumstances independent of his own will”.

15 ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War (Commentaries on the 1949 Geneva Conventions). Cambridge University Press, Cambridge, 2021 (Commentary).

16 Arman, Jemma, Henckaerts, Jean-Marie, Hiemstra, Heleen and Krotiuk, Kvitoslava, “The Updated ICRC Commentary on the Third Geneva Convention: A New Tool to Protect Prisoners of War in the Twenty-First Century”, International Review of the Red Cross, Vol. 102, No. 913, 2020, p. 391CrossRefGoogle Scholar.

17 Commentary, above note 15, on Art. 87, paras 3662 and 3682.

18 Ibid., para. 3662.

19 Ibid., commentary on Art. 83, para. 3588.

20 Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land. The Hague, 29 July 1899 (entered into force 4 September 1900); and Regulation of Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land. The Hague, 18 October 1907 (entered into force 26 January 1910), (Hague Conventions).

21 Levie, Howard S., “Penal Sanctions for Maltreatment of Prisoners of War”, American Journal of International Law, Vol. 56, No. 2, 1962, p. 437CrossRefGoogle Scholar.

22 Neville Wylie and Lindsey Cameron, “The Impact of World War I on the Law Governing the Treatment of Prisoners of War and the Making of a Humanitarian Subject”, European Journal of International Law, Vol. 29, No. 4, 2018, p. 1327.

23 Levie, Howard S., “Enforcing the Third Geneva Convention on the Humanitarian Treatment of Prisoners of War”, United States Air Force Academy Journal of Legal Studies, Vol. 7, No. 37, 1997, p. 459Google Scholar. Available at: https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1475&context=ils.

24 Le code du prisonnier de guerre. Rapport présenté par le Comité international à la Xme Conférence, Revue Internationale de la Croix-Rouge et Bulletin, No. 26, 1921, p. 104.

25 The first international announcement of such a distinction can be found in Article 28 of the Project of an International Declaration Concerning the Laws and Customs of War of 27 August 1874 expressing that “Prisoners of war are subject to the laws and regulations in force in the army in whose power they are. Arms may be used, after summoning, against a prisoner of war attempting to escape. If recaptured he is liable to disciplinary punishment or subject to a stricter surveillance.” “Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874”, in Dietrich Schindler and Jiri Toman, The Laws of Armed Conflicts, Martinus Nijhoff Publishers, Dordrecht, 1988, pp. 22–34.

26 William Evans Sherlock Flory, Prisoners of War: A Study in the Development of International Law, American Council on Public Affairs, Washington, DC, 1942, p. 91.

27 See, for example, Article XLIX of the Agreement between the British and German Governments Concerning Combatant Prisoners of War and Civilians (The Hague, 14 July 1918), and Article 84 of the Agreement between the United States of America and Germany Concerning Prisoners of War, Sanitary Personnel, and Civilians (Berne, 11 November 1918), in Howard S. Levie, “Documents on Prisoners of War”, International Law Studies, Vol. 60, pp. 110 and 131, respectively.

28 Agreement between the United States of America and Germany, Ibid., Arts 74–5, pp. 128–9.

29 Le code du prisonnier de guerre, above note 24, p. 104.

30 Ibid., p. 105.

31 Compte Rendu, Dixième Conférence Internationale de la Croix Rouge, Geneva, 30 March to 7 April 1921, p. 12.

32 These principles were enumerated in Resolution XV, No. 1 adopted by the 10th Conference. Ibid., pp. 218–20.

33 The relevant part of Resolution XV, No. 1 reads as follows: “Un code international de mesures disciplinaires et pénales à appliquer aux prisonniers de guerre fera partie intégrante de cette Convention.” Ibid., p. 218.

34 Resolution XV, No. 1, para. 3. Ibid.

35 Resolution XV, No. 2, ibid., pp. 220–1.

36 The names of the members are M. le Dr Ferrière, président, MM. P. Des Gouttes, Edmond Boissier, P. Logoz and G. Werner. Rapport sur la réalisation de la résolution XV de la Xème Conférence internationale de la Croix-Rouge, suivi d'un Avant-projet de Convention relative au traitement des prisonniers de guerre (ICRC Report to 11th Red Cross Conference), p. 2.

37 These agreements include agreement between Turkey, Britain and France of 28 December 1917 and 23 March 1918; France and Germany of 26 April 1918; Austria and Serbia of 1 June 1918; Germany and Great Britain of 14 July 1918; Austria–Hungry and Italy of 21 September 1918, and Germany and the United States of 11 November 1918. Ibid., p. 3.

38 Ibid., p. 2.

39 Ibid., p. 11.

40 Ibid., p. 12.

41 The International Law Association in its 30th Conference, held in the Hague in 1921, adopted twenty-three articles as its proposal for international regulations on treatment of PoWs. See Reglements internationaux proposes par l'lnternational Law Association pour le traitement des prisonniers de guerre, in Aubert, Théodore, “La XXXme Conférence de l'International Law Association”, Revue International de la Croix-Rouge, Vol. 3, No. 35, 1921, pp. 1087–93Google Scholar.

42 This code was presented to the 11th International Conference. The code provided eight principles including the obligation to treat PoWs with human dignity; see Société Russe de la Croix-Rouge, “Rapport sur l'activité de la Société Russe de la Croix-Rouge du 1er août 1922 au 1er août 1923”, pp. 10–11, available at: https://library.icrc.org/library/docs/CI/CI_1923_043_FRE_050_RU_Ra.pdf.

43 ICRC Report to 11th Red Cross Conference, above note 36, p. 4.

44 Art. 49. “Les belligérants veilleront à ce que les Autorités compétentes usent de la plus grande indulgence dans l'appréciation de la question de savoir si une infraction commise par un prisonnier de guerre doit être punie disciplinairement ou judiciairement. Ne seront, en particulier, passibles que de peines disciplinaires les prisonniers coupables d'insubordination légère, de refus de travailler sans motif légitime, de contraventions à la discipline du camp et de délits de peu de gravité contre la propriété." Ibid., p. 27.

45 Actes de la Conférence diplomatique convoquée par le Conseil fédéral suisse pour la révision de la Convention du 6 juillet 1906 pour l'amélioration du sort des blessés et malades dans les armées en campagne et pour l'élaboration d'une convention relative au traitement des prisonniers de guerre et réunie à Genève du 1er au 27 juillet 1929, C. Deuxième commission (Code des prisonniers de guerre): séances 6, p. 491.

46 Premier sous-commission (juridique et pénale) de la Deuxième commission (Code des prisonniers de guerre), séance du lundi 8 juillet à 16h.30, ibid., pp. 24 and 27.

47 Ibid., p. 491.

48 Ibid.

49 Conférence préliminaire des Sociétés nationales de la Croix-Rouge pour l'étude des Conventions et de divers problèmes ayant trait à la Croix-Rouge, Genève, 26 juillet au 3 août 1946 : documentation fournie par le Comité international de la Croix-Rouge, Vol. II. Convention Relative to Prisoners of War, ICRC, 1946, p. 2.

50 MacKenzie, S. P., “The Treatment of Prisoners of War in World War II”, Journal of Modern History, Vol. 66, No. 3, 1994, p. 487CrossRefGoogle Scholar. MacKenzie explains that during the war the treatment of the PoWs, depending on the nationality of both captive and captor and the period of the war, could range from strict adherence to the terms of the 1929 Convention to severe brutality such as subjecting the Black colonial troops from Senegal captured in 1940 to spurious medical research into racial differences. Ibid., p. 504.

51 Conférence préliminaire des Sociétés nationales de la Croix-Rouge, above note 49, p. 2.

52 1949 Diplomatic Conference, above note 8, Vol. II, p. 303.

53 The records do not contain the reasons why the ICRC found such a formulation advisable. See ICRC, Draft Revised or New Conventions for the Protection of War Victims Established by the International Committee of the Red Cross with the Assistance of Government Experts, National Red Cross Societies and Other Humanitarian Associations, ICRC, May 1948 (ICRC Draft to the 17th International Red Cross), pp. 110–11.

54 Article 83 of the draft convention, adopted by the 17th International Red Cross Conference in Stockholm of August 1948 to be submitted to 1949 Diplomatic Conference, read as follows: “Escape, or attempt to escape, even if it is a repeated offence, shall not be deemed an aggravating circumstance… Belligerents shall see that the responsible authorities exercise the greatest leniency in deciding whether an infraction committed by a prisoner of war shall be punished by disciplinary or judicial measures, particularly in respect of acts committed in connexion with the escape, whether successful or not …” In Revised and new Draft Conventions for the protection of war victims: texts approved and amended by the XVIIth international Red Cross Conference, Revision of the Convention Concluded at Geneva on July 27, 1929, Relative to the Treatment of Prisoners of War, ICRC, 1948, p. 85 (emphasis added).

55 1949 Diplomatic Conference, above note 8, Vol. II, p. 304.

56 Ibid., p. 484.

57 Ibid.

58 Ibid., p. 500.

59 Commentary, above note 15, on Art. 83, para. 3588.

60 For example, Article 82(2) instructs the Detaining Power to assure that sanctioning the violations of the rules which are enacted to ensure the order in the camp are only through disciplinary measures. Also, Articles 92 and 93 on unsuccessful escape and connected offences. Examples of other offences that are not listed explicitly in the Convention, especially under Article 93(2), but that may equally give rise to disciplinary sanctions only, are the use of forgeries (e.g. counterfeit money), violations of traffic regulations, the abandonment of military equipment, or bribery, as long as they are committed with the sole intent of facilitating the escape. Commentary, above note 15, on Art. 93, para. 3862.

61 Ibid., commentary on Art. 82, para. 3573. According to Article 96(2), disciplinary punishments may be imposed by superior military authorities, the camp commander, a responsible officer according to the established rules, an officer to whom the camp commander has delegated such a power, or in some occasions, by courts.

62 Article 52 did not refer to “proceedings”; rather it used the phrase “punished by disciplinary or by judicial measure”. In this regard it is important to note that the French version of Article 52 used the phrase “être punis disciplinariement ou judiciarement” which is exactly the same as the French version of the first part of Article 83 addressing the exercise of leniency in deciding the kind of “proceedings”. The two ICRC commentaries emphasize that both English and French versions must be interpreted as requiring leniency in the case of both proceedings and punishments. Commentary, above note 15, on Art. 83, para. 3593; 1960 Commentary, above note 13, on Art. 83, p. 410. Thus, it can be argued that Article 52 of the 1929 Convention by using the term “measure” addressed both proceedings and sentences. See, also, military manuals of different countries, for example, Rule 9.26.2, Leniency in Favor of Disciplinary Rather Than Judicial Proceedings, U.S. Department of Defense Law of War Manual, 2015, p. 617; Rule 8.116, UK Manual of the Law of Armed Conflict (JSP 383), 2013, p. 187.

63 It is noteworthy that the principle of in dubio pro reo, known in the common law doctrine as the “rule of lenity”, also directs courts to construe ambiguities in favour of criminal defendants. See, for example, Zachary Price, “The Rule of Lenity as a Rule of Structure”, Fordham Law Review , Vol. 72, No. 4, 2004, p. 885.

64 An example can be the case of mandatory sentencing provided by law for a specific crime limiting the discretion of competent authorities. For further details, see Anthony Gray, “Mandatory Sentencing Around the World and the Need for Reform”, New Criminal Law Review: An International and Interdisciplinary Journal, Vol. 20, No. 3, 2017.

65 In the same vein, while Article 15 of the U.S. Uniform Code of Military Justice authorizes the commander to opt for non-judicial punishment, a soldier can refuse it and instead demand trial by court-martial. U.S. Congress, 1958, United States Code: Uniform Code of Military Justice, 10 U.S.C. §§ 801–940.

66 Commentary, above note 15, on Art. 83, para. 3594.

67 Ibid., para. 3595.

68 For example, GC III, Arts 82(2) and 93(2).

69 GC III, Art. 82(1) (emphasis added).

70 Sandra Krähenmann, “Protection of Prisoners in Armed Conflict”, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 4th ed., Oxford University Press, Oxford, 2021, p. 439.

71 Hague Conventions, Art. 8.

72 1929 Convention, Art. 45(1).

73 Commentary, above note 15, on Art. 82, para. 3565.

74 Ibid., commentary on Art. 87, para. 3679.

75 Ibid., commentary on Art. 4, para. 971.

76 Ibid., para. 973.

77 For a detailed historical analysis of this phenomenon, see Arnold Krammer, Prisoners of War: A Reference Handbook (Contemporary Military, Strategic, and Security Issues), Greenwood Publishing Group, Westport, CT, 2008, pp. 9–11.

78 Commentary, above note 15, on Art. 4, para. 971 (emphasis added). The Commentary elaborates further that “granting prisoner of war status to a State's own nationals does not exclude the possibility of prosecuting such individuals for treason, meaning that there is no need to deny such status in order to punish this or similar acts”. Ibid., para. 972. See, also, Howard S. Levie, Preliminary Problems, in “Prisoners of War in International Armed Conflict”, International Law Studies, Vol. 59, 1978, p. 76.

79 Commentary, above note 15, on Art. 82, para. 3577.

80 GC III, Art. 82(1).

81 For example, in the defence doctrine of Australia, it is provided that “The types of disciplinary punishments available are set out in G.[C] III. The duration of any punishment cannot exceed 30 days.” Australian Defence Force, Australian Defence Doctrine Publication 06.4 (ADDP 06.4): Law of Armed Conflict, para. 10.52, 10–12.

82 For further discussion, see Philip Allott, “The Emerging Universal Legal System”, in Janne E. Nijman and André Nollkaemper (eds), New Perspectives on the Divide between National and International Law, Oxford University Press, Oxford, 2007.

83 Whenever the laws and regulations of the Detaining Power do not provide disciplinary sanctions compatible with Article 89, the detaining authority is required to directly apply this Article and choose disciplinary sanctions from its list. Commentary, above note 15, on Art. 89, para. 3743.

84 For further discussion, see ibid., on Art. 82, para. 3575.

85 Ibid., para. 3577.

86 Ibid., commentary on Art. 13, para. 1580. In the same vein, the Human Rights Committee confirmed that the principle of humane treatment applies to all times and situations and is a non-derogable obligation. General Comment No. 29: States of Emergency (Article 4), UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001 (General Comment 29), para. 13(a). Other international obligations of the Detaining State, including those under applicable human rights treaties, have to be also taken into account. See Daragh Murray, “Prisoners of War and Internment”, in Daragh Murray (author), Elizabeth Wilmshurstin, Francoise Hampson, Charles Garraway, Noam Lubell and Dapo Akande (eds), Practitioners' Guide to Human Rights Law in Armed Conflict, Oxford University Press, Oxford, 2016. For a detailed analysis of the influence of human rights obligations on military disciplinary process, see Peter Rowe, “Human Rights and the Disciplinary Process”, in P. Rowe, The Impact of Human Rights Law on Armed Forces, Cambridge University Press, Cambridge, 2005.

87 Commentary, above note 15, on Art. 82, para. 3579.

88 Ibid., para. 3581.

89 Commentary refers to this category as “combatant immunity” or “combatant privilege”. Ibid., commentary on Art. 85, para. 3634.

90 See, also, Peter Rowe, “The Trial of Prisoners of War by Military Courts in Modern Armed Conflicts”, in C. Harvey, J. Summers and N. White (eds), Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe, Cambridge University Press, Cambridge, 2014, p. 326.

91 This emphasis is important since at the time of the adoption of GC III, practice existed to deprive PoWs from the benefits of the Convention for offences committed “before” becoming a PoW. See 1960 Commentary, above note 13, on Art. 85, p. 423. See also the Yamashita case in which the US Supreme Court held that the corresponding provision to Article 102 in the 1929 Convention about “same court”, “same procedure” was not applicable to those accused of war crimes because the Article was directed “for an offense committed while a prisoner of war, and not for a violation of the law of war committed while a combatant”. Yamashita case, 317 U.S. 1; 66 S. 340, Judgment, 4 February 1946, para. 4(b), p. 20. Levie argues that in adopting Article 85, the drafters aimed to depart from the finding in the Yamashita case. H. S. Levie, above note 23, pp. 463–4. The implications of GC III, Art. 102 are discussed in the “Exercising leniency during the proceedings” section.

92 Commentary, above note 15, on Art. 99, para. 3959.

93 See H. S. Levie, above note 23, pp. 464–5; Commentary, above note 15, on Art. 85, para. 3629. The review of the historical context of Article 85 shows that one of the underlying reasons for its adoption was to ensure the continued application of the Convention for those prosecuted and convicted for international law crimes. During the Second World War, and in the absence of any explicit reference on the subject in the 1929 Convention, many national courts prosecuting PoWs for alleged war crimes on the basis of international law had announced “[i]t is a recognised rule that a person accused of having committed war crimes is not entitled to the rights in connection with his trial laid down for the benefit of prisoners of war by … Convention of 1929.” United Nations War Crimes Commission, Law Reports of Trials of War Criminals, 1947–1949, London, 1948, Vol. III, p. 50. The French Court of Appeal in 1946, as a corollary to this rule, held that Robert Wagner, the German head of government of Alsace, was not entitled to the rights provided for a PoW under French Law. See Trial of Robert Wagner, in ibid. The same considerations led the following States to formulate reservations to exclude PoWs convicted for war crimes and crimes against humanity from the scope of Article 85: Angola, China, the Democratic People's Republic of Korea, the Russian Federation and Vietnam. See Commentary, above note 15, paras 3642–6.

94 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docindex/v1_rul_rule136 Rule 136, Recruitment of Child Soldiers.

95 International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Milan Milutinović, Nikola Šainović & Dragoljub Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanic's Motion Challenging Jurisdiction – Joint Criminal Enterprise (Appeals Chamber), 21 May 2003, para. 37.

96 European Court of Human Rights, Cantoni v. France, Application No. 17862/91, Judgment (Grand Chamber), 15 November 1996, para. 35. See also International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility (Appeals Chamber), 16 July 2003, para. 35. For further discussion, see Alexandre Skander Galand, “Article 13 (b) vs Principle of Legality”, in A. S. Galand, UN Security Council Referrals to the International Criminal Court, Brill, Leiden, The Netherlands, 2019, p. 144.

97 Commentary, above note 15, on Art. 99, para. 3963.

98 Ibid., para. 3962.

99 Pakistan even filed a dispute at the International Court of Justice which was later discontinued. See International Court of Justice, Trial of Pakistani Prisoners of War, Order of 15 December 1973, ICJ Reports 1973, p. 347. For further discussion, see Donald N. Zillman, “Prisoners in the Bangladesh War: Humanitarian Concerns and Political Demands”, The International Lawyer, Vol. 8, No. 1, 1974.

100 Michael A. Meyer, “Liability of Prisoners of War for Offences Committed Prior to Capture: The Astiz Affair”, International and Comparative Law Quarterly, Vol. 32, No. 4, 1983, pp. 952–3.

101 Ibid., p. 963.

102 Ibid., p. 954.

103 United States v. Noriega, 746 F. Supp. 1506 (S.D. Fla. 1990), Opinion: Omnibus Order, William M. Hoeveler, United States District Judge, No. 88-79-CR, 8 June 1990, at 1529.

104 Commentary, above note 15, on Art. 103, para. 4022.

105 See, for example, General Comment 29 stating that “fundamental principles of fair trial” may never be derogated from (above note 86, paras 11 and 16); also, General Comment no. 35 of the Human Rights Committee stating that the “procedural guarantees protecting liberty of person may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights”. Human Rights Committee, General Comment No. 35. Article 9 (Liberty and Security of Person), UN Doc. CCPR/C/GC/35, 16 December 2014, para. 67.

106 Commentary, above note 15, on Art. 84, para. 3596. For example, in 1996, amendments were made to the Guatemalan Military Code limiting the jurisdiction of military tribunals to strictly military offences, and granting the ordinary courts jurisdiction over ordinary offences committed by military personnel. Military Code (Decree No. 214 - 1878/09/15. Last amendment: Decree No. 41-96 - 1996/07/10), Art. 1. See also principle 4 of the draft principles governing the administration of justice through military tribunals in the Report submitted by the Special Rapporteur, Emmanuel Decaux, Administration of Justice, Rule of Law and Democracy, Issue of the Administration of Justice Through Military Tribunals, UN Doc. E/CN.4/Sub.2/2005/9, 16 June 2005.

107 Commentary, above note 15, on Art. 84, para. 3600.

108 1960 Commentary, above note 13, on Art. 83, p. 411.

109 By using the term “same court”, the Convention bans the establishment of an ad hoc court only to try PoWs, which, in the ICRC view, is “an essential safeguard against arbitrary action by the Detaining Power”. Commentary, above note 15, on Art. 102, para. 4010. Similarly, the term “same procedure” means that a special procedure may not be set up for PoWs depriving them of the rights and means of defence enjoyed by the members of the Detaining Power's own forces. Ibid., commentary on Art. 84, para. 3617. The use of the generic term “same procedure” in this Article cannot be only limited to the sentencing stage of judicial proceedings. In the ICRC view, for the purpose of application of the principle of assimilation, “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”. Ibid., commentary on Art. 102, para. 4012. This would consequently bring into play the applicable human rights law during the investigation process. The application of the principle of fair trial to the proceedings as a whole, and not only the trial, is endorsed in Human Rights Committee, General Comment No. 32, Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32, 23 August 2007 (General Comment 32). See, also, European Court of Human Rights, Negulescu v. Romani, Application no. 11230/12, Judgment, 16 February 2021, paras 39–42.

110 General Comment 32, ibid., para. 19. See, also, Mechanism for International Criminal Tribunals, Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Order to the Government of the Republic of Turkey for the Release of Judge Aydin Sefa Akay (Appeals Chamber), 31 January 2017, para. 11.

111 General Comment 32, above note 109, para. 21. See also International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Anto Furundžija, Case No. IT-95-17/1, Appeal Judgment (Appeals Chamber), 21 July 2000, para. 189.

112 1960 Commentary, above note 13, on Art. 100, p. 474; and Commentary, above note 15, on Art. 100, para. 3990.

113 This Article, however, is silent about the presence of the PoW at one's own trial. Yet, Article 99(3), in enumerating the general principles applicable to judicial procedure, commends that no PoW can be convicted “without having had an opportunity to present his defence…”, which suggests that the presence of the accused in the trial is necessary. Commentary, above note 15, on Art. 99, para. 3977, and on Art. 105, para. 4101.

114 Ibid., commentary on Art. 106, paras 4142 and 4149

115 Not all the countries at the time of the adoption of GC III had foreseen the right of appeal for their armed forces; for example, see Canadian Law Concerning Trials of War Criminals by Military Courts, 31 August 1946, in United Nations War Crimes Commission, Law Reports of Trials of War Criminals, 1947–1949, London, 1948, Vol. IV, p. 130. Emphasis added.

116 Commentary, above note 15, on Art. 106, para. 4152. GC III does not encompass any explicit right to appeal from disciplinary measures. Yet, Article 96(5) stipulates that a record of disciplinary punishments shall be maintained for the inspection by representatives of the Protecting Power. Reviewing how the camp commanders exercise their disciplinary powers is, therefore, an essential tool of oversight of the administration of PoW camps.

117 Ibid., commentary on Art. 106, para. 4158.

118 Other safeguards are the conditions of validity set in Article 102 of GC III. See, also, Noam Lubell, Jelena Pejic and Claire Simmons, “Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy, and Good Practice”, Geneva Academy of International Humanitarian Law and Human Rights and ICRC, Geneva, September 2019, Guideline 11, paras 154–6.

119 Commentary, above note 15, on Art. 103, para. 4027.

120 According to the ICRC, the coercion in the context of Article 99(2) differs from the notion of torture since, among others, “the conduct constituting coercion does not necessarily need to cause pain or suffering to meet the required threshold of severity for it to constitute torture”. Ibid., commentary on Art. 99, para. 3972.

121 Ibid., commentary on Art. 96, para. 3898; 1960 Commentary, above note 13, on Art. 96, p. 458. GC III, Articles 95 and 96 provide the minimum standards of due process by limiting the instances of PoWs’ confinement awaiting hearing, prescribing an immediate investigation, designating the competent authority and enumerating the means of defence available to the accused.

122 GC III further enumerates certain rights of the accused during the disciplinary procedures such as the right to receive information regarding the alleged offence, and the opportunity to defend, including by calling witnesses, as well as having recourse to an interpreter. GC III, Art. 96(4) (emphasis added).

123 Commentary, above note 15, on Art. 82, para. 3577. See also the “Applicable legal regime” section.

124 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978). For other treaties see, for example, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, Vol. 999, p. 171 (entered into force 23 March 1976), Art. 14(7); Protocol 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 22 November 1984, ETS 117 (entered into force 1 November 1988), Art. 4; Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998 (entered into force 1 July 2002), Art. 20.

125 GC III, Art. 88(4). This provision which bans any form of discriminatory treatment with PoWs who have completed their sentences is rooted in Article 16 of GC III. Such a reading, in accordance with the Commentary, “accords with both the law and principles of equity”. Commentary, above note 15, on Art. 88, para. 3734.

126 GC III, Art. 12(2).

127 Commentary, above note 15, on Art. 86, para. 3659. See, also, Christine Van den Wyngaert and Guy Stessens, “The International Non Bis In Idem Principle: Resolving Some of the Unanswered Questions”, International and Comparative Law Quarterly, Vol. 48, No. 4, 1999.

128 According to Article 96(2), disciplinary punishments may be imposed by superior military authorities, the camp commander, a responsible officer according to the established rules, an officer to whom the camp commander has delegated such a power, or on some occasions, by courts.

129 GC III, Art. 82(2).

130 GC III, Art. 92(1). In the case of successful escape when the person is recaptured, pursuant to Article 91(2), he/she should benefit from the privilege of impunity and shall not be liable to any punishment in respect of the previous escape. In this respect, the Commentary argues that “it seems reasonable to consider that the privilege of immunity also applies to [connected] offences which would otherwise occasion disciplinary sanctions”. Commentary, above note 15, on Art. 93, para. 3865. See, for example, Magistrate's Court of the County of Renfrew, Ontario, Canada Rex v. Krebs, Case No. 780 CAN. C.C. 279, 1943, concerning a German PoW interned in Canada, who during his escape, broke into a cabin to get food, articles of civilian clothing, and a weapon. The court held that, since these acts were done in an attempt to facilitate his escape, therefore, he committed no crime.

131 GC III, Art. 93(2).

132 “Aiding and abetting” is not defined in the Geneva Conventions or any other international treaty. Nonetheless, the leniency considerations require the Detaining Power to interpret the term in a narrow way. Commentary, above note 15, on Art. 93, para. 3870.

133 GC III, Art. 93(3). The Commentary also argues that in the case of aiding and abetting of an escape and connected crimes, if “the prisoners who aided or abetted did not know, or could not foresee, that the escapee would commit such offences […] they should be subject to disciplinary punishment only for aiding or abetting the escape or escape attempt”. Commentary, above note 15, on Art. 93, para. 3871.

134 Commentary, ibid. on Art. 89, para. 3740.

135 Peter Rowe, “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, Oxford, 2015, p. 1026.

136 1960 Commentary, above note 13, on Art. 89, p. 435.

137 GC III, Art. 90(2).

138 Commentary, above note 15, on Art. 89, para. 3744.

139 Ibid., para. 3743.

140 Internment of PoWs under Article 21 of GC III is different from confinement. “Internment has a preventive, not a punitive, purpose, contrary to the detention of prisoners of war for disciplinary or penal reasons.” Ibid., commentary on Art. 21, para. 1919. See, also, Anne Quintin, “The Authority to Intern Prisoners of War in International Armed Conflict”, in A. Quintin, The Nature of International Humanitarian Law, A Permissive or Restrictive Regime?, Elgar, Cheltenham, 2020.

141 GC III, Arts 95(1) and 103(1).

142 Ibid.

143 GC III, Art. 95(1).

144 GC III, Art. 103(1).

145 Commentary, above note 15, on Art. 95, para. 3889.

146 Ibid., commentary on Art. 103, para. 4033.

147 Ibid.

148 Ibid.

149 See the “Exercising leniency during the proceedings” section.

150 From eighty-nine States that have ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, only Azerbaijan, Brazil, Chile, El Salvador and Greece have formulated reservations in accordance with Article 2 for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. To see the content of their reservations, see United Nations Treaty Collections, Depository, Chapter IV, 12, available at: https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4 (status at January 2022).

151 Commentary, above note 15, on Art. 101, para. 4000.

152 Ibid., para. 4002.

153 Ibid., para. 4001. The Commentary highlights that in such a case the ICRC acts in the interests of PoWs facing the death penalty. Ibid. For further discussion on the discharge of the humanitarian duties of the Protecting Power by the ICRC, see Gasser, Hans-Peter, “Respect for Fundamental Judicial Guarantees in Time of Armed Conflict: The Part Played by ICRC Delegates”, International Review of the Red Cross, Vol. 32, No. 287, 1992, pp. 131–2CrossRefGoogle Scholar. See, also, Levie, Howard S., “Prisoners of War and the Protecting Power”, American Journal of International Law, Vol. 55, No. 2, 1961CrossRefGoogle Scholar.

154 See William Paul Skelton and Nadine Khouzam Skelton, “Women as Prisoners of War”, Military Medicine, Vol. 160, No. 11, 1995; Noelle Quenivet, “Special Rules on Women”, in A. Clapham, P. Gaeta and M. Sassoli (eds), above note 135.

155 For example, Article 88(2) stipulates that a woman PoW shall not be awarded or sentenced to a punishment more severe, or treated whilst undergoing punishment more severely, than the female members of the armed forces of the Detaining Power dealt with for a similar offence. In any case, the punishment of women PoWs cannot be more severe than male members of the armed forces of the Detaining Power for a similar offence. GC III, Art. 88(3). Article 97(4) requires that women PoWs undergoing disciplinary punishment shall be confined in separate quarters from men and shall be under the immediate supervision of women. Similarly, Article 108(2) stipulates the same in the case of criminal conviction. The Convention does not consist of any provision to protect lesbian, gay, bisexual and transgender (LGBT) PoWs. However, the Commentary, in an implicit way, requires that “the requirement of separate quarters may also extend to other categories of persons with distinct needs or facing particular risks where not doing so would violate the obligation of humane treatment”. Commentary, above note 15, on Art. 108, para. 4215. For further analysis on the subject, see Jason A. Brown and Valerie Jenness, “LGBT People in Prison: Management Strategies, Human Rights Violations, and Political Mobilization”, in Oxford Research Encyclopedia of Criminology and Criminal Justice, Oxford University Press, Oxford, 2020, available at: https://oxfordre.com/criminology/view/10.1093/acrefore/9780190264079.001.0001/acrefore-9780190264079-e-647?rskey=GhpWvQ&result=18.

156 Commentary, above note 15, on Art. 108, para. 4214. Article 76(3) of Additional Protocol I provides that “[t]o the maximum extent feasible, the Parties to the conflict shall endeavour to avoid the pronouncement of the death penalty on pregnant women or mothers having dependent infants, for an offence related to the armed conflict. The death penalty for such offences shall not be executed on such women.” In the same vein Article 6(5) of the International Covenant on Civil and Political Rights provides that “sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women”.

157 Commentary, ibid.

158 Convention on the Rights of the Child, UN Doc. E/CN.4/RES/1990/74, 7 March 1990 (entered into force 2 September 1990).

159 Commentary, above note 15, on Art. 108, para. 4214.

160 Ibid., para. 4200.

161 Ibid. Notably, Trial Chamber IX of the International Criminal Court, in the Dominic Ongwen Case, took into account Ongwen's personal history for issuing his sentence including the fact that “he himself had in the past been a victim of the same crime, having been abducted as a child and integrated as a fighter”, International Criminal Court, The Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Sentence (Trial Chamber IX), 6 May 2021, paras 370 and 373. For a comprehensive discussion on the protection of children in armed conflict, see Shaheed Fatima, Protecting Children in Armed Conflict, Hart Publishing, Oxford, 2018.

162 Shattuck, Henry L., “The Interim Mixed Parole and Clemency Board”, Proceedings of the Massachusetts Historical Society, Third Series, Vol. 76, 1964, p. 77Google Scholar. Other factors considered, in the words of General Thomas T. Handy, were: “First, the offenses are associated with a confused, fluid and desperate combat action, a least attempt to turn the tide of Allied successes and to reestablish a more favorable tactical position for the German Army. The crimes are definitely distinguishable from the more deliberate killings in concentration camps. Moreover, these prisoners were of comparatively lower rank and … they were neither shown to be the ones who initiated, nor, as far as we know, advocated the idea of creating a wave of frightfulness …” Ibid.

163 Commentary, above note 15, on Art. 115, para. 4397.

164 The one-month period is the maximum length of disciplinary confinement allowed under Article 90(1). On the basis of analogy, this duration was applied in the current discussion.

165 See the discussion on Article 155(2) in the 1960 Commentary, above note 13, p. 536.