ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 125. Part III : Status and treatment of protected persons #Section IV : Regulations for the treatment of internees #Chapter IX : Penal and disciplinary sanctions
    ARTICLE 125. -- ESSENTIAL SAFEGUARDS


    [p.495] This Article has the advantage of laying down uniform regulations for the application of disciplinary punishments. In view of the divergences which may exist between the laws of various countries, this codification of the essential safeguards is of considerable importance.
    Moreover, the subject is not a new one. The 1929 Convention dealt with it in practically identical terms: Article 56, paragraph 4 , for the first paragraph, Article 58 , for the second paragraph and Article 57 for the third.

    PARAGRAPH 1. -- EXERCISE IN THE OPEN AIR

    This clause, which may be compared with paragraph 3 of Article 94 , is essential for the fitness and health of the internees. "Exercise" must be taken to mean at least the opportunity to walk, which means that a sufficiently large space must be put at the disposal of the detainees. It should be made quite clear, moreover, that exercise in the open air is a possibility offered to the internee; whether he takes advantage of it or not is according to his wishes. It would not be right, indeed, if, under the pretext of applying this rule, certain commandants of places of internment made the punishment more severe by compulsory exercise, keeping the internees in the full sun or the snow for two hours at a stretch as sometimes happened during the Second World War.

    PARAGRAPH 2. -- MEDICAL INSPECTIONS

    Article 91, paragraph 4 , provides that the internees "may not be prevented from presenting themselves to the medical authorities for examination". It does not, however, mention the frequency of the medical inspections. It was only logical to consider that the Detaining Power should arrange in every place of internment for a daily medical inspection and this paragraph makes this important point quite clear.
    This does not mean, however, that internees must necessarily be examined every day by the doctor. The guards will not be entitled [p.496] to forbid the internees to present themselves for daily medical examination; if the request to go on sick parade turns out to be groundless and upsets the maintenance of discipline, the offence may be considered as calling for disciplinary punishment by the commandant of the place of internment on the basis of the doctor's report.

    PARAGRAPH 3. -- CONFISCATION OF PARCELS AND REMITTANCES
    OF MONEY

    Permission to write and receive letters and to read lessens greatly the severity of detention. In addition to the uncomfortable nature of the premises, the main part of the punishment could therefore be a temporary withholding of remittances of money and parcels. The preliminary draft of the 1929 Convention mentioned restrictions on food and deprivation of alcohol and tobacco as a means of increasing punishments. This idea was not accepted but it seems that restrictions of that type, provided they do not harm the health of the internee, could be resorted to by the Detaining Power in cases of need, in order to give to disciplinary imprisonment the severity which is likely to encourage respect for discipline.
    The intervention of the Internee Committee, which may hand over to the infirmary the perishable goods contained in the parcels, was not mentioned in Article 57 of the 1929 Convention relative to the Treatment of Prisoners of War. This provision tends to strengthen the supervision by the Internee Committee of the distribution of relief parcels.

    PARAGRAPH 4. -- RESERVATION WITH REGARD TO CORRESPONDENCE
    AND VISITS

    This text is similar to the last sentence of paragraph 1 of Article 98 in the Third Convention which refers to Articles 76 and 126 of that Convention. Now these two Articles correspond to Articles 101 (complaints and petitions) and 143 (supervision by the Protecting Power) in the Fourth Geneva Convention. It may be wondered, therefore, whether Article 107 was not mentioned here in error for Article 101 . The Final Record of the Diplomatic Conference does not give any information on the subject, but merely states that no amendments or observations were submitted in regard to Article 115 (II-A, page 687) and quotes the opinion of the Rapporteur who says simply "the text remains as drafted at Stockholm" (II-A, page 843). Now the Stockholm text deals in effect with the Article on correspondence (Article 96 of the Draft), and not the Article reproducing the [p.497] substance of Article 101 , i.e. complaints and petitions (Article 90 of the Stockholm Draft). The confusion therefore, if confusion there is, is due to the Stockholm text. Whatever the truth
    of the matter, it seems that the right to make complaints and petitions is too important, particularly in the case of men undergoing disciplinary punishment, for the authors of the Geneva Convention to have intended to deprive internees of it, while giving prisoners of war the benefit of it. If that had been their wish, there would have been a discussion on the matter, as there was with regard to Article 121 , which does not contain the same details regarding internees as the corresponding Article concerning prisoners of war (Third Convention, Article 93, paragraph 1 ). Furthermore, the right to send or receive letters is expressly mentioned in paragraph 3 of this Article and so the reference to Article 107 has no meaning. Finally, if the principle is applied that the system of internment must be at least as favourable as the system for prisoners of war, we must include here among the essential safeguards, the right to make complaints and petitions in accordance with Article 101 .
    It may therefore be deduced that the last paragraph refers to Article 107 in error for Article 101 .