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Commentary - Art. 105. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #III. Judicial proceedings
    ARTICLE 105. -- PROCEDURE: IV. RIGHTS AND MEANS OF DEFENCE


    [p.485] The provisions concerning rights and means of defence for the accused reproduce the main features of Articles 61 and 62 of the 1929 Convention with the additional obligation for the Detaining Power to provide the accused with an advocate or counsel if neither he nor the Protecting Power has chosen one. It was finally decided not to lay down specific regulations governing the expenses of defence, as it was considered that the Protecting Power should normally bear such costs when the defence counsel was chosen by it or by the prisoner, and that the question did not arise in the case of a lawyer selected by the Detaining Power. The provisions of the present Article are fully applicable in the case of appeals as provided for in Article 106 (1).

    [p.486] PARAGRAPH 1. -- RIGHTS OF THE PRISONER OF WAR

    1.' First sentence. -- Right to have an assistant, an advocate or
    counsel and an interpreter '

    The present paragraph provides any prisoner of war against whom proceedings are instituted with three possible means of assistance:

    (a) the right to be assisted by one of his fellow-prisoners;

    (b) the right to be defended by an advocate or counsel;

    (c) the right to have the services of a competent interpreter.

    A. ' The right to be assisted by a fellow-prisoner '. -- The 1929 Convention did not refer to the right of a prisoner of war against whom proceedings are instituted to be assisted by a fellow-prisoner; during the Second World War, however, this became common practice (2). One must differentiate between this "assistance" and "defence" strictly speaking, and in fact the text makes the distinction by specifying that the prisoner of war concerned is entitled to "assistance" by one of his prisoner-comrades and to "defence" by a qualified advocate (3).
    The fellow-prisoner in question may be a member of the legal service established by the prisoners' representative who is familiar with the laws in force in the armed forces of the Detaining Power. He will intervene in the proceedings for establishing the facts of the case and may serve as an intermediary between the prisoner and his advocate or counsel.

    B. ' The right to defence by an advocate '. -- The advocate can call witnesses; he is officially entitled to address the court; in addition, he has a knowledge of judicial practice and procedure which an amateur jurist, however competent, does not usually have.
    The advocate may be freely chosen by the prisoner of war. The question was put whether a prisoner of war might select one resident abroad. The Conference of Government Experts considered that this was dependent on national legislation. In practice, prisoners [p.487] of war mostly rely on the Protecting Power for the choice of counsel (4), and the latter will usually be a national of the Detaining Power. Prisoners of war have sometimes been authorized by the Detaining Power to choose an advocate among their fellow-prisoners, but in practice the disadvantages of this solution outweigh its advantages, especially since an advocate who is a prisoner of war is not sufficiently familiar with the procedure in force in the courts of the Detaining Power.

    C. ' The right to have the services of a competent interpreter '. -- The right of an accused prisoner of war to have the services of a competent interpreter "if he deems necessary" automatically results from the rights of defence if the language currently used in the detaining country is unfamiliar or unknown to the prisoner of war. In this connection, it should be noted that it is for the prisoner himself to judge whether he needs an interpreter. The word "competent" denotes an interpreter who not only knows the two necessary languages -- that of the prisoner of war and that of the detaining country -- but also is familiar with legal terminology and accustomed to acting as an interpreter during judicial proceedings. This interpreter must be supplied by the Detaining Power; if the prisoner of war prefers to have the services of one of his fellow-prisoners with the necessary qualifications, he may do so (5), provided that the person appointed also enjoys the confidence of the court.

    2. ' Second sentence. -- Notification of the prisoner of war '

    In accordance with the present provision, the Detaining Power must advise the prisoner of war of his rights.
    This obligation for the Detaining Power is broader in scope than Article 41, paragraph 1 , which states that the text of the Convention must be posted in every camp. A prisoner of war undergoing confinement is unable to refer to this source of information, and he must therefore be provided with the text of the present paragraph, in his own language or in a language which he understands. The Convention does not state at exactly what moment this information must be [p.488] given, merely saying that prisoners of war must be advised "in due time". It is our opinion that here one may refer to Article 104 and state that this information must be given as soon as possible and, at the latest, at the same time as the notification provided under that Article, that is to say at least three weeks before the opening of the trial.

    PARAGRAPH 2. -- ROLE OF THE PROTECTING POWER

    1. ' First and second sentences. -- Choice of an advocate or counsel by
    the Protecting Power '

    If the prisoner of war does not choose an advocate or counsel, the Protecting Power must automatically intervene; it must therefore make enquiries on this matter as soon as it receives the notification for which provision is made in Article 104 The criteria governing its choice will naturally be based exclusively on the interest of the prisoner of war. A period of one week is provided for this purpose (6).
    For the assistance of the Protecting Power, the Convention states that the Detaining Power must provide it with a list of persons qualified [p.489] to present the prisoner's defence. This list should be sent at the same time as the notification for which provision is made in Article 104 .

    2. ' Third sentence. -- Appointment of an advocate or counsel '

    In the event that neither the prisoner of war nor the Protecting Power selects an advocate, the Detaining Power must appoint one. This solution will also apply if a prisoner of war fails to make a choice and there is no Protecting Power or substitute for one.
    Here the question of the cost of defence arises, which was the subject of lengthy discussion at the Conference of Government Experts as well as at the 1949 Diplomatic Conference. If the Protecting Power has not received any funds to pay for the defence of the prisoner and he is unable to pay for it himself, as was frequently the case during the Second World War, he must not be left without any defence. The Conference of Government Experts considered, however, that the general provisions, and in particular Article 99, paragraph 3 , afforded adequate protection. The matter was again discussed at the 1949 Diplomatic Conference (7).
    While some delegations considered that the question was a very important one, others thought that it was only a secondary matter since although the 1929 Convention made no reference to the subject, no complaints had ever been made.
    The International Committee of the Red Cross pointed out that it was generally the country of origin which reimbursed the cost of defence to the Protecting Power. In a case where the country of origin had for the time being no Government, the Protecting Power could bear the cost and recover it later from the country of origin, when a Government was re-established there.
    It was finally decided to adopt a text providing for the application of the principle stated in Article 99, paragraph 3 (8).

    [p.490] PARAGRAPH 3. -- RIGHTS OF DEFENDING COUNSEL

    A. ' Minimum period of two weeks '. -- This minimum period corresponds to the rules already set forth in Articles 104 and 105. Article 104 states that the notification of proceedings must reach the Protecting Power at least three weeks before the opening of the trial. One may suppose that the list of advocates from which the prisoner's defending advocate or counsel is to be chosen should reach the Protecting Power at the same time. In our view, the phrase "in due time" should be taken in this sense, since in accordance with paragraph 2 of the present Article, the Protecting Power must have at least one week for choosing an advocate or counsel. Thus the defending advocate or counsel has at least two weeks in which to prepare the defence.
    The Conference of Government Experts realized the need to specify these various time-limits. Experience has shown that quite frequently advocates were informed too late and were sometimes even unable to arrive at court in time. The periods specified are a minimum.

    B. ' Right to interview the accused in private '. -- This is an essential prerogative; such visits must be possible whenever the advocate or counsel thinks fit or the accused so requests. In this connection, it should be borne in mind that in accordance with most national legislations, during the preparatory investigations the accused is never required to reply to questioning in the absence of his advocate or counsel.

    C. ' Right of the defending advocate or counsel to confer with witnesses for the defence '. -- This right was the subject of some discussion at the Diplomatic Conference. Certain legislations only permit such interviews in the presence of the examining magistrate or his representative, and account was therefore taken of this in the final text (9). It is specified that the defending counsel or advocate may confer with prisoners of war cited as witnesses for the defence; during the Second World War, in many cases the lack of necessary permits for visiting prisoners of war in camp and interviewing witnesses hampered the advocate in his work; the new text puts this situation right (10).
    [p.491] The enumeration of facilities under A, B and C above is in no way exhaustive and the Detaining Power may grant others; those listed in the present paragraph represent the minimum standard.

    PARAGRAPH 4. -- COMMUNICATION OF THE CHARGE OR CHARGES
    AND RELEVANT DOCUMENTS

    This provision is new and was introduced at the Conference of Government Experts (11). The documents to be communicated will include the applicable legal provisions and must be communicated to the accused prisoner of war "in a language which he understands"; in this connection, reference should be made to the commentary on Article 41 above.
    This communication is quite separate from that referred to in Article 104, paragraph 4 , which states that the prisoner of war concerned must receive a copy of the notification sent to the Protecting Power. The latter notification need only contain a specification of the charge or charges on which the prisoner of war is to be arraigned, while under the present paragraph the full text must be communicated.
    The Convention specifies no time-limit and merely states that the accused prisoner of war must receive these documents "in good time before the opening of the trial". If possible, they should be transmitted at the same time as the notification referred to in Article 104 , that is to say three weeks before the opening of the trial, since it is on the basis of these documents that the accused or his legal assistant will select an advocate or counsel. At the latest, this communication must be made two weeks before the opening of the trial, in order to afford the advocate or counsel the requisite period in which to prepare the defence.
    The second sentence of the present paragraph states that the same communication must be made to the defending advocate or counsel "in the same circumstances"; obviously, it cannot be made before the advocate or consul is nominated, but must be made at least two weeks before the opening of the trial.

    PARAGRAPH 5. -- RIGHT OF THE PROTECTING POWER
    TO ATTEND THE TRIAL

    At the Conference of Government Experts, the International Committee of the Red Cross had proposed that representatives of [p.492] the Protecting Power should be granted the right to ensure themselves the defence of prisoners of war under their care. This system would have allowed prisoners of war to be defended by nationals of neutral countries who would no doubt enjoy greater moral authority. It was pointed out, however, that on the whole the national advocates had been conscientious in the discharge of their professional duties on behalf of prisoners of war during the Second World War; the Government Experts therefore concluded that though prisoners of war should still be permitted to choose a representative of the Protecting Power to defend them, it was unnecessary to stipulate it in the Convention (12). Thus the present paragraph merely authorizes representatives of the Protecting Power to attend the trial, which gives them every opportunity to intervene if they find that the Convention is not being respected. An important exception
    is made to this rule, however, if "in the interest of State security" the trial is held ' in camera. '
    This is not the first instance in which the Convention makes a reservation with regard to the security requirements of the Detaining Power. Another example is to be found in Article 8 , which relates to the rôle and duties of the Protecting Power.
    The present clause is therefore an implementing provision for the more general clause contained in the last sentence of Article 8, paragraph 4 ; moreover, it corresponds to national legislation which always provides for hearings ' in camera ' when necessary for reasons of security. The Detaining Power will be responsible for ensuring that this rule is applied only in exceptional cases; if abusive use were made of it, trials would be removed from the supervision of the Protecting Power without any valid reason.


    * (1) [(1) p.485] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, p. 514;

    (2) [(2) p.486] Certain laws of military procedure made
    express provision for it;

    (3) [(2) p.486] See ' Report on the Work of the Conference of
    Government Experts, ' p. 224;

    (4) [(1) p.487] See ' Report on the Work of the Conference of
    Government Experts, ' p. 225. National legislation usually
    subjects the right to defend a third party before the
    courts to several conditions which a foreigner cannot
    fulfil until after a considerable time has elapsed;

    (5) [(2) p.487] This undoubtedly comes within the meaning of
    "assistance" as referred to in the first line of the
    paragraph;

    (6) [(1) p.488] It may be useful to recall the principles
    adopted by the Sixth International Congress on Penal Law,
    held at Rome in 1953:
    "1. As soon as the accused is remanded by a
    magistrate and at the first questioning regarding
    identity, he must before making any statement be warned by
    the judge that he is entitled not to reply unless an
    advocate or counsel is present. Every accused person
    questioned on the charge is therefore entitled to
    assistance by counsel. In case of indigence, arrangements
    must be made for him to have a defence counsel.
    2. The investigation procedures must be so regulated as
    to ensure the right of inspection by the accused or his
    counsel whenever the former is required to submit to
    questioning. The exercise of this right is of particular
    interest in regard to expert investigations and enquiries
    concerning the character of the accused. It should be
    noted that investigation is merely a preparatory phase and
    that the accused will be able freely to defend himself
    before the court of justice, if the case is sent on to the
    latter.
    3. In each State, and taking into account its procedural
    system, the investigation procedure should be so organized
    as to give as much scope as possible to the right to
    cross-examine.
    4. An accused person is not obliged, and a fortiori
    cannot be compelled, to reply to questions put to him. He
    may adapt his attitude to his own interest and
    convenience, without prejudice to the rights of the
    defence.
    5. The accused may not be subjected to any artificial
    procedure, violence or pressure in order to induce him to
    confess. Confession is not the purpose of the
    investigation, for confession is not a proof in law.
    Moreover, confessions may always be retracted and the
    judge appraises them independently, having before him all
    the relevant facts and elements of proof.";

    (7) [(1) p.489] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 497-498. In
    particular, the following text was proposed: "The cost of
    defence shall be charged to the Power upon which the
    prisoner depends. Where that Power has no longer an
    effective Government, or where, in exceptional cases,
    effective communication with that Power cannot be
    established, the Detaining Power shall meet the necessary
    cost of defence of that prisoner of war by qualified
    counsel".
    It was intended that this text should become
    paragraph 5 of Article 105, but it was eventually
    rejected.
    See ' Final Record, ' Vol. II-A, p. 511;

    (8) [(2) p.489] Ibid., pp. 513-514;

    (9) [(1) p.490] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 497 and
    511-512;

    (10) [(2) p.490] See ' Report on the Work of the Conference of
    Government Experts, ' p. 226;

    (11) [(1) p.491] See ' Report on the Work of the Conference of
    Government Experts, ' p. 225;

    (12) [(1) p.492] See ' Report on the Work of the Conference of
    Government Experts, ' p. 226;