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Commentary - Art. 87. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #I. General provisions
    [p.428] ARTICLE 87. -- PENALTIES


    PARAGRAPH 1. -- CHOICE OF PENALTIES

    This provision is identical to Article 46, paragraph 1 , of the 1929 Convention. The experience of the First World War showed that this clarification was necessary in order to protect prisoners of war from arbitrary action and unduly severe penalties (1).
    There are, however, two objections to the application of the above principle. In the first place, as has been seen in connection with Article 82, paragraph 2 , prisoners may be prosecuted and punished for acts which are not punishable when committed by members of the armed forces of the Detaining Power (2). Furthermore, certain acts constitute different offences, or offences of varying gravity, according to whether they are committed by military personnel or by prisoners of war. For example, refusal to obey orders may be an act of cowardice for an active member of the armed forces and as such would be [p.429] severely punished, but would not be so for a prisoner of war. In other words, the term "same acts" is not absolutely accurate; not only must the acts be the same, but they must also be of the same significance under the law. Conversely, it must be pointed out that as the status of prisoners of war is not the same as that of members of the armed forces of the Detaining Power, certain offences cannot be committed by prisoners of war (3).
    Secondly, the present paragraph as it stands does not suffice to protect prisoners of war against sentences by authorities other than the military authorities and courts, for instance by administrative authorities who might sentence them to internment in a concentration camp. The Government Experts were aware of this danger, and in order to overcome it they proposed that certain minimum rules of procedure should be laid down which the Detaining Power would have to observe. The Conference supported this suggestion (4). The rules of procedure in question are to be found in Article 84 as well as in Articles 95 and 96 as regards disciplinary sanctions, and in Articles 102 and following with regard to judicial proceedings.
    It should also be borne in mind that this assimilation is only applicable subject to the provisions of the present Chapter of the Convention, and in particular paragraph 2 of the present Article, as well as Article 88 . The signatories are therefore required to bring their penal legislation and military regulations into conformity with these texts. There can be no question of sentencing a prisoner of war to corporal punishment, confinement in a dark place, or to a disciplinary punishment not permitted under Article 89 , even if such punishments may legally be imposed on nationals of the Detaining Power.

    PARAGRAPH 2. -- REDUCTION AND FIXING OF PENALTY

    It is customary in penal, civil or military codes, to leave the judge wide discretion in determining the penalty awarded to each individual case. His rôle is, so to speak, to "particularize" the legal penalty. He must fix the penalty according to the guilt of the offender and in his appraisal must also take into account the latter's motives, previous record and personal circumstances (5).
    [p.430] The provisions of military penal codes in regard to any reduction of penalties obviously apply to prisoners of war in the same way as to any other person subject to military jurisdiction. The drafters of the Convention nevertheless considered that if, from the penal and judicial point of view, prisoners of war were merely assimilated to members of the armed forces of the Detaining Power, due account would not be taken of two criteria on the basis of which "subjective" guilt can be assessed. They therefore inserted these criteria in paragraph 2, authorizing the judge to reduce the penalty even below the minimum prescribed by law.

    1. ' First sentence. -- Conditions for reduction '

    The first sentence of the present paragraph, which is in the imperative form, instructs the military authorities and courts to take into consideration "to the widest extent possible" two special factors:

    (a) the absence of any duty of allegiance, since the prisoner is not a
    "national" of the Detaining Power;

    (b) the fact that the prisoner is in the hands of the Detaining Power as
    the result of circumstances independent of his own will.

    A. ' The absence of any duty of allegiance '. -- The absence of any duty of allegiance may in the first place mitigate the "guilt with intent" of a prisoner of war who has broken the law of the Detaining Power. Some penal codes nowadays take into account the possibility of a judicial error (6), and the old saying "error juris nocet" is destroyed by part of the present-day doctrine, which acknowledges the existence of extenuating circumstances where the offender had reason to believe himself entitled to act as he did (7).
    That may be the case where the prisoner of war believed that he should or could act as he did because, in the first place, he owes no allegiance to the Detaining Power, and secondly, he continues -- despite the fact that he is in captivity -- to owe allegiance to the Power in whose armed forces he served prior to his capture.
    [p.431] This involves consideration of the motives for the act committed, and the judge must therefore make an appraisal of them. If the motive is "honourable" the existence of extenuating circumstances must be recognized. Similarly, an analogy may be drawn between the feeling of allegiance towards his own country which may have inspired the prisoner to commit the act in question, and provisions of national legislation permitting a reduction of the penalty where the accused acted under the influence of a person to whom he owes obedience and on whom he depends (8).

    B. ' Compulsion '. -- The second factor which the Convention requires the judge to take into account when fixing the penalty is the fact that the accused is in the territory of the Detaining Power as the result of circumstances independent of his own will. This is important because it may have serious consequences on the accused's mental state which may be assimilated to certain extenuating circumstances recognized in penal legislation. Thus, anger or violent pain are recognized in penal law as extenuating circumstances when they are the result of unfair provocation or an undeserved insult. Similarly, after prolonged captivity a prisoner of war may be in a state of "deep distress", both moral and physical (9).

    2. ' Second sentence. -- Fixing of the penalty '

    The provision that the authorities of the Detaining Power "shall be at liberty" to reduce the penalty provided under its national legislation refers to disciplinary as well as penal sanctions, and requires the signatory States to bring their legislation on this point into conformity with the Convention (10).

    PARAGRAPH 3. -- PROHIBITION OF COLLECTIVE AND
    CORPORAL PUNISHMENTS

    Collective punishment was first prohibited by the 1929 Convention (11); this became necessary because of the serious abuses which [p.432] occurred during the First World War (12). Camp commanders are all too frequently tempted to inflict collective punishments, which strike at the innocent, rather than endeavour to discover the guilty persons. Worse still, this type of repression was sometimes motivated by a spirit of vengeance, and during the First World War the belligerents were obliged to conclude special agreements in order to ensure respect for the principles of humanity and justice in this regard (13).
    The prohibition of corporal punishment sometimes places prisoners of war in a privileged position as compared with members of the armed forces of the Detaining Power. It has been justified since 1929, however, because of the abuses committed during the First World War (14).
    The prohibition of any form of cruelty should be compared with Article 89, paragraph 3 , and with the general principle, stated in Article 13 , that prisoners of war must at all times be humanely treated. Similarly, the requirement that prisoners of war may not be imprisoned in premises without daylight should be read in conjunction with Articles 97 and 108 . The lighting must be sufficient to enable them to read and write without difficulty.

    PARAGRAPH 4. -- PROHIBITION OF DEGRADATION

    Article 49, paragraph 1 , of the 1929 Convention already forbade the Detaining Power to deprive any prisoner of war of his rank. This provision had become necessary as a result of the experience of the First World War, when on many occasions military tribunals sentenced officer prisoners of war to be deprived of their rank. Scheidl (15) rightly points out that such a decision is without foundation from the legal point of view, since the Detaining Power has absolutely no authority to intervene in a matter which is within the sole competence of the national legislation of the country on which the prisoner depends. Degradation was nevertheless an important matter, since those who were deprived of their rank were also deprived of the prerogatives to which it entitled them.
    [p.433] The Conference of Government Experts expanded the 1929 text by inserting a provision that the Detaining Power may not prevent prisoners of war from wearing the badges of their rank; this may be compared with Article 18, paragraph 3 , and Article 40 (16).


    * (1) [(1) p.428] See SCHEIDL, op. cit., p. 437;

    (2) [(2) p.428] The most typical example is that of special
    regulations prohibiting relations between prisoners of war
    and the women of the detaining country;

    (3) [(1) p.429] See FREY, op. cit., p. 56;

    (4) [(2) p.429] See ' Report on the Work of the Conference of
    Government Experts, ' p. 207;

    (5) [(3) p.429] See Swiss Military Penal Code, L. II,
    Provisions regarding disciplinary offences, Article 181,
    paragraph 2: "The penalty shall be chosen and assessed in
    accordance with the guilt of the offender. Account shall
    be taken of the motives and the character of the offender,
    of his general conduct during military service, and also
    of the gravity of the offence from the point of view of
    the interests of the service";

    (6) [(1) p.430] See Swiss Military Penal Code, Article 17:
    "Where a person who has committed a crime or offence had
    reason to believe himself entitled to act as he did, the
    penalty may be freely reduced by the judge (Article 47).
    The judge may also exonerate the accused from any
    penalty";

    (7) [(2) p.430] See Paul LOGOZ, ' Commentaire du Code pénal
    suisse, ' Neuchâtel, Paris, 1939, pp. 77-78; FREY, op.
    cit., p. 56; see also SCHEIDL, op. cit., pp. 430-431;

    (8) [(1) p.431] See Swiss Military Penal Code, Article 45;

    (9) [(2) p.431] See Paul LOGOZ, op. cit., p. 278;

    (10) [(3) p.431] Thus a new Article has been inserted into the
    Swiss Military Penal Code (Article 215), reading as
    follows: "In the case of crimes and offences committed by
    foreigners who have not violated any duty of allegiance
    towards Switzerland, the judge shall not be bound by the
    minimum penalties laid down by law";

    (11) [(4) p.431] See ' Actes de la Conférence de 1929, 'p. 488;

    (12) [(1) p.432] See SCHEIDL, op. cit., pp. 438-439;

    (13) [(2) p.432] Ibid., p. 438;

    (14) [(3) p.432] Ibid., p. 438. Nevertheless, this principle
    does not always seem to have been observed between 1939
    and 1945. See BRETONNI RE, op. cit., pp. 307-308;

    (15) [(4) p.432] See SCHEIDL, op. cit., pp. 441-442;

    (16) [(1) p.433] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, pp. 250-251;