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Commentary - Art. 85. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #I. General provisions
    [p.413] ARTICLE 85. -- OFFENCES COMMITTED BEFORE CAPTURE


    HISTORICAL BACKGROUND

    The 1929 Convention contained no provision concerning the punishment of crimes or offences committed by prisoners of war prior to their capture. Although Articles 45 to 67 of that Convention do not specifically exclude such acts, it seems probable that the drafters actually had in mind only acts committed during captivity.
    At the end of the Second World War, this gap in the text of the 1929 Convention gave rise to much discussion until sentences were passed in most of the Allied countries. Among the prisoners of war who were nationals of the vanquished Powers were many persons who were accused of war crimes, and crimes against peace and humanity. During the ensuing trials, a number of the accused asked to be afforded the guarantees provided by the 1929 Convention in regard to judicial proceedings.
    The International Committee of the Red Cross, while refraining from giving any opinion on the exact status of captured military personnel accused of war crimes, requested that the guarantees afforded by Articles 45 to 67 should be applied to them for, in its view, those guarantees constituted only a minimum standard recognized by the majority of civilized nations. In almost every case the courts of the Allied countries rejected the requests of the accused. Thus, the United States Supreme Court rejected a request by General Yamashita of Japan on this point (in a judgment dated February 4, 1946) (1). Similarly in France, on July 24, 1946, the Supreme Court of Appeal rejected a petition by an accused German (2). In the Netherlands, in the Rauter case, the Special Court of Appeal gave a finding on January 12, 1949, which also rejected the arguments presented by the accused on this subject (3). A like finding was given in Italy by the Supreme Court of Appeal in the Wagner case (4).
    [p.414] Similar judgments were given in other countries, all based, generally speaking, on the following considerations:

    (a) it is a well-established rule of customary law that those who have
    violated the laws of war may not avail themselves of the protection
    which they afford. Captured members of enemy armed forces who have
    committed war crimes cannot therefore claim the status of prisoners
    of war;

    (b) the fact that the 1929 Convention made no mention of this matter
    shows that there was no intention of modifying the customary rules
    which already existed.

    In one country, however -- France -- this view was not maintained. On July 26, 1950, the French Supreme Court of Appeal, meeting in plenary session, gave a finding which reversed the jurisprudence previously established by its own Criminal Court. The Supreme Court of Appeal was actually called upon to settle the particular point of the composition of a military court which was to try a war criminal. In its finding, it held that a prisoner of war could only be tried by the same courts and according to the same procedure as members of the armed forces of the Detaining Power, pursuant to Article 63 of the Prisoners of War Convention of July 27, 1929, which applied absolutely, even if the prisoner was answerable for acts committed prior to his captivity. This decision was of little practical effect, however, since by the time it was taken most of the proceedings instituted against prisoners of war accused of war crimes had already been completed.
    The International Committee of the Red Cross followed with some concern the course of justice in the various countries where proceedings were instituted against prisoners of war in respect of offences committed prior to their capture. In its opinion, it was dangerous not to afford to the accused the guarantees provided by an international convention which, as has been seen above, do not exceed those accruing from the procedural laws of most States. The International Committee's concern was increased by the fact that, in most countries, proceedings against war criminals were based on special ad hoc legislation and not on the regular penal legislation of the countries concerned. Furthermore, it seemed illogical and unjust to prejudge the guilt of the accused, since they were deprived of the protection of the Convention before actually having been found guilty of war crimes. Even assuming that the rule of customary law which was cited actually [p.415] exists, it can only be applicable after a court has given its finding. For under modern law, the accused is
    presumed innocent until his guilt is proved.
    When the International Committee of the Red Cross undertook the revision of the 1929 Convention, it therefore gave immediate attention to introducing provisions which would afford certain guarantees to prisoners of war, even when accused of war crimes, and remove all ambiguity which had resulted from the earlier text.
    At the Conference of Government Experts, which met at Geneva in 1947, the International Committee proposed that prisoners of war accused of war crimes should continue to receive all the benefits of the Convention until their guilt was definitively proved. This suggestion received only limited support from the Commission of Experts, which merely suggested that prisoners of war should enjoy the benefits of the Convention until a prima facie case was made out against them and they were indicted of war crimes. In particular the Anglo-Saxon Powers were opposed to the maintenance of the benefits of the Convention until a court passed sentence.
    The International Committee did not, however, share the view expressed by the Commission of Experts, and in the draft revised Convention which it submitted to the XVIIth International Red Cross Conference at Stockholm, it again proposed that prisoners of war should continue to enjoy the benefits of the Convention until such time as they had actually been judged. At Stockholm, the delegations which had formerly opposed the maintenance of the benefits of the Convention until after conviction changed their opinion completely; they proposed -- and the Conference agreed -- that prisoners of war should continue to enjoy those benefits even after they had been judged. Article 85 was therefore submitted to the Diplomatic Conference in its present form.
    Discussion of the Article at the Diplomatic Conference was protracted and often difficult. Most of the opposition came from the USSR Delegation, which considered that prisoners of war convicted of war crimes or crimes against humanity should be deprived of the benefits of the Convention ' after conviction '. In other words, that Delegation wished to revert to the text submitted to the Stockholm Conference. The USSR Delegation considered that there was no reason why prisoners of war convicted of such crimes should not be treated in the same way as persons serving sentence for a criminal offence in the territory of the Detaining Power. Those in favour of the text as it now stands pointed out that the object of the Convention was to afford protection to prisoners of war; the few humanitarian rules [p.416] which it provided for convicted prisoners of war could not in any way jeopardize or hamper the repression of war crimes. This view was finally adopted by the Diplomatic Conference but, as will be seen later, the USSR and several other States entered a
    reservation in this connection when they ratified the Convention.
    During the discussion, several speakers pointed out that in many cases it would be inappropriate and even unjust to try prisoners of war accused of war crimes while hostilities were still in progress. Furthermore, in its report, the Committee which considered this Convention (5) emphasized that national legislation clearly defines that anyone who breaks the law remains, without prejudice to his punishment, under the benefit of such legislation. This reasoning seems fully justified, and one may well wonder on what basis the courts of the Allied countries declared the existence of a rule of customary law according to which a person who violates international law is not eligible for its benefits. For our part, this is merely an affirmation without corroboration. Moreover, as has already been stated, it could only be applied once the person concerned had been convicted.

    COMMENTARY ON THE ARTICLE

    1."... prosecuted under the laws of the Detaining Power..."

    This clearly refers only to judicial proceedings, and not to disciplinary procedures.
    The wording of this provision has given rise to some confusion. Certain authors have attempted to deduce that since violations of the laws and customs of war are offences against international law, they are not covered by the present Article; they have also pointed out that Article 99 refers expressly to international law, while the present Article mentions only the legislation of the Detaining Power.
    The foregoing comments on the historical background of the present Article show that this interpretation is contrary to the intentions of the drafters of the Convention. Moreover, it is contrary to the text of the Article. The term "laws of the Detaining Power" obviously covers not only that Power's ordinary penal legislation, but also the treaties to which it is a party. In many countries legislation must be enacted for the punishment of offences against a treaty. Thus, many States which have ratified the Geneva Conventions of 1949 have [p.417] promulgated penal legislation for their implementation. In other countries, treaties are part of the national legislation and must be respected, without any special legislation being necessary. This is the case of the United States of America, where according to the Constitution, treaties are part of the law of the land. It is therefore clear that the term "laws of the Detaining Power" must be construed as referring not only to national legislation but also to the provisions of treaties to which the State
    concerned is a party. Each State will have to determine whether, according to its constitution or basic legislation, special provisions are necessary to introduce treaties into national legislation so that penal proceedings can be instituted when required.
    Article 99 states that no prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed. Here the reference to international law is fully justified; the intention is to ensure that a Detaining Power cannot, in order to justify a conviction, cite a provision of international law which is disputed, not recognized or even vague. In those countries where international law is automatically part of the national legislation this restriction may be of great importance and it is an appropriate complement to Article 85.
    The reference to the laws of the Detaining Power does not seem absolutely necessary in the present Article; it would have been just as clear if it had merely mentioned prosecution for acts committed prior to capture. The wording -- "under the laws of the Detaining Power" -- seems, however, to have been chosen deliberately. Reference might have been made to "acts punishable under the laws of the Detaining Power". In adopting the text as it now stands, the intention seems to have been to refer to the rules which govern penal jurisdiction. In practice, many of the offences or crimes committed by prisoners of war prior to capture will have been committed outside the national territory of the Detaining Power. The legislation of this Power must therefore establish the competence of its courts to institute proceedings in respect of acts committed outside the national territory. This was probably the reason for the phrase "under the laws of the Detaining Power".

    2. "... acts committed prior to capture..."

    It is obvious that most of the acts committed prior to capture for which a prisoner of war may be tried are violations of the laws and [p.418] customs of war. At the same time, Article 85 does not exclude the possibility of prosecution in respect of other acts. Before attempting to define and classify such acts, it may be noted that international law specifically precludes prosecution in two cases:

    (a) Under Article 31 of the Hague Regulations of 1907, a spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, must be treated as a prisoner of war and incurs no responsibility for his previous acts of espionage. This applies to espionage before the outbreak of hostilities as well as to that committed in the course of the war;

    (b) Under Article 91 of the present Convention, prisoners of war who have succeeded in escaping and who are recaptured are not liable to any punishment in respect of their previous escape.

    The acts in respect of which proceedings may be instituted may be classified as follows:.

    A. ' Acts not connected with the state of war '. -- Such acts consist of violations of common law, which may have been committed either before or during the war -- frequently outside the national territory. Since in every country of the world, competence in penal matters is based on the criterion of territorial jurisdiction, there can only be a prosecution if the penal legislation provides for the punishment of offences committed outside the national frontiers. The penal legislation of many countries provides for the punishment of crimes and offences committed abroad against citizens and their possessions, as well as against the State itself.
    As may be seen, the Detaining Power will only have such competence in a very limited number of cases. As an example, one may suppose that A, a national of country X, has killed or wounded, on the territory of that Power, B who is a national of country Y, in whose hands A is a prisoner of war; furthermore, it would be necessary for A not to have been tried for that crime by country X, since in accordance with Article 86 , no prisoner of war may be punished more than once for the same act or on the same charge.
    In the case of offences against common law committed in national territory, it would be necessary either for the offender not to have been arrested on national territory or for the State not to have obtained an extradition order.
    As may be seen, proceedings in respect of offences against common law are extremely rare. The question is rather more delicate in the [p.419] case of offences against the interests of the Detaining Power, such as political offences, offences against the customs or financial regulations, and so forth.
    As far as political offences are concerned, there can be no question of trying a prisoner of war for an act or an attitude which is punishable under the laws of the Detaining Power but would not have been a matter for prosecution in his country of origin. Thus, for instance, it is inconceivable that a detaining State under whose laws it is a punishable offence to be a member of the Communist party or of an anti-Communist party, would prosecute a prisoner of war who in his own country is legally a member of the Communist party or of an anti-Communist party.
    Breaches of customs and fiscal regulations are normally only punishable in the country against which such offences are directed. Captivity is an accidental circumstance which is completely independent of the wishes of the prisoner of war, and it would therefore seem unjust if a prisoner of war could be tried in such conditions, since it is solely because of the war that he is in the hands of the only State which can punish him.
    Lastly, it may be said that, in general, acts not connected with the state of war may give rise to penal proceedings only if they are punishable under the laws of both the Detaining Power and the Power of origin. As a parallel, reference may be made to extradition agreements or to the customary rules concerning extradition. An act in respect of which there could be no extradition should not be punished by the Detaining Power. One may also examine whether prosecution would have been possible in the country of origin. If the answer is in the negative, the prisoner of war should not be tried by the Detaining Power.

    B. ' Acts connected with the state of war '. -- Three categories of acts may be considered:

    (a) ' Crimes against peace: ' In the context of the present Convention, only a war of aggression will be considered. In the draft Code of Offences against the Peace and Security of Mankind, the United Nations International Law Commission has defined this crime in the following terms: "Any act of aggression, including the employment by the authorities of a State of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation by a competent organ of the United Nations".
    [p.420] In the commentary accompanying this Article, the Commission stated:

    "The offence defined in this paragraph can be committed only by the authorities of a State. A criminal responsibility of private individuals under international law may, however, arise under the provisions of paragraph (12) of the present Article (which refers to conspiracy, incitement, attempts and complicity)." (6)

    To launch or wage a war of agression is obviously a crime which can be committed only by those who govern, that is to say by persons who directly influence the political direction of a State. It will be recalled that at Nuremberg the International Military Tribunal established as a criterion for the existence of this crime direct participation in a plan established with a view to an aggressive war, and that several of the accused were acquitted on this count because, although they held high office, they had had no influence on the decisions taken.
    At the trial of German generals who were members of the Military High Command, the United States Military Tribunal expressed the following view:

    "We are of the opinion that, as in ordinary criminal cases, so in the crime denominated aggressive war, the same elements must all be present to constitute criminality. There first must be actual knowledge that an aggressive war is intended and that if launched it will be an aggressive war. But mere knowledge is not sufficient to make participation even by high-ranking military officers in the war criminal. It requires in addition that the possessor of such knowledge, after he acquires it shall be in a position to shape or influence the policy that brings about its initiation or its continuance after initiation, either by furthering, or by hindering or preventing it. If he then does the former, he becomes criminally responsible; if he does the latter to the extent of his ability, then his action shows the lack of criminal intent with respect to such policy." (7)

    History, whether recent or more distant, does not record any case of a State launching an armed conflict with the declared intention of engaging in a war of aggression. On the contrary, the most categorical cases of aggression have been presented by their authors as obvious acts of justice or self-defence. In other words, most of the general public and the armed forces remain totally unaware of the true nature of a war.
    [p.421] Even supposing that the fact of aggression is clearly established, there can therefore be no question of instituting penal proceedings against a large number of prisoners of war or against certain categories of them. If the Detaining Power considered that it had reason to institute such proceedings, that could only be in exceptional cases, against prisoners of war who in their own country had a direct influence on the decisions which led to the launching of the war of aggression.
    This is not the appropriate place in which to attempt to define aggression. It may, however, be recalled that for some years past the General Assembly of the United Nations has been endeavouring to arrive at such a definition; and despite the efforts of two committees, composed of eminent jurists and politicians, it proved impossible to arrive at a formula acceptable even to a simple majority of Member States.

    (b) ' War crimes '. -- The International Law Commission has defined war crimes as: "Acts in violation of the laws or customs of war." (8)
    War crimes may be very varied in nature. ' The grave breaches of the Geneva Conventions enumerated in Articles 50 / 51 /130 /147 are the best known war crimes, ' but other violations of those Conventions or of other international agreements may also constitute war crimes. The following are a few examples: the use of poisoned weapons or prohibited weapons or missiles; the continuation of fighting after surrender; the mutilation of bodies; attacks on places which are not defended and are of no military significance; abuse of the parliamentary flag or attacks on members of parliament clearly identified as such; abuse or violation of the protective red cross emblem; the wearing of civilian clothing by members of the armed forces for purposes of disguise; the use of specially protected buildings for military purposes; the poisoning of springs and water courses; pillage and wanton destruction; compelling prisoners of war or civilians to do prohibited work; execution without trial of spies or persons who have committed hostile acts; violation of an armistice or
    capitulation agreement, etc.
    Violations of the laws and customs of war may vary greatly in importance. Some minor violations are dealt with by administrative measures or are merely punished by disciplinary penalties.
    For a long time, it was maintained in various military manuals that all violations of the laws and customs of war could be punished by death. This attitude has fortunately been abandoned. Thus, for [p.422] instance, the most recent version of the United States Military Manual, entitled "The Law of Land Warfare" (F.M. 27.10 published in 1956) provides in paragraph 508 that punishment for a violation of the laws of war must be proportionate to the gravity of the offence, and that the death penalty may be imposed for grave offences.
    Proceedings in respect of war crimes may not be brought against prisoners of war in conditions and at a time when any normal defence of the prisoners' interests is impossible. As long as hostilities continue, a prisoner of war accused of such offences will usually be unable to adduce the proof or evidence which might absolve him of responsibility or reduce that responsibility. It seems necessary that, except in special cases, prisoners of war accused of war crimes should not be tried until after the end of hostilities, that is to say when communications have been re-established between the belligerent countries and the prisoner is in a position to procure the necessary documents for his defence and to call witnesses.
    If prisoners of war were nevertheless tried while hostilities were still in progress, in conditions which would not afford them a proper defence, they would in fact be deprived of the regular trial to which they are entitled under Article 99 . A trial conducted in such circumstances could then constitute a grave breach of the Convention, as covered by Article 130 .

    (c) ' Crimes against humanity '. -- The International Law Commission gave the following definition: "Inhuman acts by the authorities of a State or by private individuals against any civilian population, such as murder, or extermination, or enslavement, or deportation, or persecutions on political, racial, religious or cultural grounds, when such acts are committed in execution of or in connection with other offences defined in this Article".
    The other offences defined in the Article in question are, in particular, acts of aggression and acts in violation of the laws or customs of war. The case under consideration is therefore that of acts committed in time of war but which are not violations of the laws or customs of war. A possible example would be that of a belligerent which engaged in the persecution of a section of its own population in war-time. Prisoners of war in the hands of the enemy might also be responsible for acts of this kind. It is unlikely, however, that under the penal legislation of the Detaining powers their courts would be competent to try such acts when committed outside the national territory, neither the victim nor the offender being nationals of the Detaining Power concerned.

    [p.423] 3. "... the benefits of the present Convention..."

    Prisoners of war prosecuted for acts committed prior to capture must enjoy all the safeguards which the Convention provides: notification of the Protecting Power, assistance by a qualified advocate or counsel, knowledge of the procedure to be followed, the right to call witnesses, the services of an interpreter, etc.

    4. "... even if convicted..."

    The rules contained in the Convention will apply to prisoners of war sentenced for acts committed prior to capture; thus for instance if they are sentenced to death, the time-limit specified in Article 101 must be respected; if they are sentenced to imprisonment, the provisions of Article 108 of the Convention must in particular be observed. They will serve their sentence under the same conditions as nationals of the Detaining Power, but at the same time they will enjoy certain rights under the Convention. They will be able to receive and send correspondence, receive relief parcels, submit complaints, be visited by representatives of the Protecting Power and the International Committee of the Red Cross, etc.
    This is where the present Article makes the most important innovation as compared with the corresponding provisions of the 1929 Convention.

    5. ' Reservations '

    Reservations in regard to Article 85 were made by the following States : Albania, Bulgaria, the Byelorussian Soviet Socialist Republic, the People's Republic of China, Czechoslovakia, the German Democratic Republic, Hungary, the Democratic People's Republic of Korea, Poland, Rumania, the Ukrainian Soviet Socialist Republic, the Union of Soviet Socialist Republics and the People's Republic of Vietnam.
    The content of these reservations is the same, although they vary slightly in form. The USSR reservation reads as follows:

    "The Union of Soviet Socialist Republics does not consider itself bound by the obligation, which follows from Article 85, to extend the application of the Convention to prisoners of war who have been convicted under the law of the Detaining Power, in accordance with the principles of the Nuremberg trial, for war crimes and crimes against humanity, it being understood that persons convicted of such crimes must be subject to the conditions obtaining in the country in question for those who undergo their punishment."

    [p.424] The reservation by Poland speaks of "the Nuremberg trials" while the Hungarian reservation refers to "the principles of Nuremberg". This reservation is rather important and calls for further comment. One may well wonder what is meant by "the principles of the Nuremberg trials". Reference has already been made to definitions of war crimes and crimes against humanity. Although those definitions were drawn up by the International Law Commission of the United Nations, however, they were not adopted by the General Assembly and are still under consideration. It may also be noted that the crimes to which the reservation refers do not include crimes against peace, although the latter are also covered by the Charter of the Nuremberg Tribunal and by its judgment. Any prisoners of war who were accused and sentenced in respect of crimes against peace -- to which reference has been made above -- would therefore, even after conviction, remain entitled to all the benefits provided by the Convention.
    Some States considered that the text of the USSR reservation did not indicate sufficiently clearly at what point the benefits of the Convention would be withdrawn from convicted prisoners of war; they also wanted to know of which benefits provided by the Convention prisoners of war would be deprived. These States approached the Swiss Federal Council, in its capacity as depositary of the Geneva Conventions, requesting that body to ask the USSR Government for the exact interpretation to be attached to the reservation. In reply, the Swiss Government received from the Ministry of Foreign Affairs of the USSR a note which was communicated to all the States which had signed the Geneva Conventions or were party to them. The English text of the note reads as follows:

    "As may be seen from the text, the reservation entered by the Soviet Union with regard to Article 85 of the 1949 Geneva Convention relative to the Treatment of Prisoners of War signifies that prisoners of war who, under the law of the USSR, have been convicted of war crimes or crimes against humanity must be subject to the conditions obtaining in the USSR for all other persons undergoing punishment in execution of judgments by the courts. Once the sentence has become legally enforceable, persons in this category consequently do not enjoy the protection which the Convention affords.
    With regard to persons sentenced to be deprived of their liberty, the protection afforded by the Convention becomes applicable again only after the sentence has been served; thereafter, the persons concerned are entitled to repatriation in accordance with the conditions set forth in the Convention.
    [p.425] Furthermore, account should be taken of the fact that the conditions applicable to all persons serving sentence under the legislation of the USSR correspond to all the requirements of humanity and hygiene and that corporal punishment is strictly forbidden by law. Moreover, in accordance with the regulations in force, the prison authorities are required to transmit immediately to the competent Soviet authorities, for further investigation, any complaints by convicted persons concerning their conviction and sentence or requests for a review of their case, as well as all other complaints.

    Moscow, May 26, 1955. "

    It is clear from this note that, as stated in the reservation itself, prisoners of war accused of war crimes or crimes against humanity will continue to enjoy the benefits of the Convention until such time as the penalty to which they have been sentenced becomes enforceable, that is to say until all courses of appeal have been exhausted. They will therefore enjoy all the judicial guarantees which the Convention provides during their trial and, in particular, will have the assistance of the Protecting Power. The Convention would once more be applicable to prisoners of war sentenced to confinement as soon as they have served their sentence. This clarification is very useful as the reservation had given rise to some doubt.
    The substance of the reservation corresponds to a tendency which became apparent during and after the Second World War and has been mentioned above. That being said, it is certain that the rights granted by the Convention to convicted prisoners of war represent only a minimum standard, and equivalent rights -- possibily in a slightly different form -- are to be found in the legislation of most civilized countries. The important factor introduced by the Convention is participation by a supervisory body -- the Protecting Power. Is it desirable that prisoners of war who have been convicted of war crimes or crimes against humanity should be left without any international supervision once they have finally been found guilty? The answer to this question is certainly in the negative. During the conflicts which have occurred since the Second World War, there have been a great many accusations of violations of the laws and customs of war; it is to be feared that accusations of this kind might be brought systematically against a great many members of the armed
    forces, or at least against certain categories of those forces. Supervision of the treatment of convicted prisoners of war therefore seems necessary, even in the case of war crimes or crimes against humanity, and especially when sentence is pronounced during the hostilities.

    [p.426] JURISPRUDENCE

    No judgments have been pronounced in relation to Article 85 since the entry into force of the Convention. During the Korean conflict, when the Convention was in fact only partially applicable, the belligerents did not continue the prosecution of prisoners of war accused of war crimes.
    The Italian Supreme Military Tribunal, however, has considered the scope of Article 85, in connection with an appeal by a German who had been convicted of acts committed during the Second World War (9). In defence, the accused submitted, inter alia, that his trial had not been conducted in accordance with the 1949 Convention. Without considering whether or not that Convention could apply to events which occurred before its entry into force, the Tribunal rejected the argument based on Article 85 for the following reasons:

    (1) -- Violations of the laws and customs of war are offences against international law and not against the legislation of the Detaining Power;

    (2) -- It is a rule of customary law that those who have violated the laws of war may not avail themselves of them;

    (3) -- The offences alleged to have been committed by the accused are violations of the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons. Article 146 of that Convention specifies, however, that the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Third Geneva Convention of 1949. The Tribunal therefore concluded that persons accused of grave breaches of the Fourth Convention do not have the status of prisoners of war.

    We have already commented above on the arguments adduced under (1) and (2) by the Italian Supreme Military Tribunal. Its conclusions can only be explained by the fact that it appears to have misunderstood the intentions of the drafters of the Convention and the discussions which took place at the Diplomatic Conference. Such an interpretation of Article 85 is clearly contrary to the facts and, moreover, if it were correct, the reservations entered by the USSR and other States would be incomprehensible.
    [p.427] With regard to the third argument, here again the Tribunal was apparently not familiar with the reasons for providing safeguards of proper trial and defence for persons accused of grave breaches of the Geneva Conventions. In fact, these safeguards were provided only for the case of accused persons who are not prisoners of war. In most cases, of course, the persons accused will be members of the armed forces who have fallen into the hands of the enemy, but it is also possible that grave breaches may have been committed by civilians or that the members of the armed forces who committed them may have been demobilized and subsequently arrested as civilians. The sole purpose of the common provision included in Articles 49 /50 /129 /146 is to afford to accused persons who are not prisoners of war safeguards similar to those accorded to prisoners. The judgment of the Italian Supreme Military Tribunal cannot therefore be considered as valid jurisprudence. There is no doubt that had the Tribunal been better informed and had at its disposal all
    the necessary documentation, it would have arrived at very different conclusions. This is also the opinion of Professor Roberto Ago, who is the author of a critical note which appeared with the text of the judgment in the ' Rivista di diritto internazionale. '


    * (1) [(1) p.413] See ' Law Reports of Trials of War
    Criminals, ' Vol. 4, p. 1 ff. One judge gave a dissenting
    opinion;

    (2) [(2) p.413] Ibid., Vol. 3, pp. 23, 42 and 50;

    (3) [(3) p.413] Ibid., Vol. 14, p. 116;

    (4) [(4) p.413] ' Giurisprudenza Completa della Corta Suprema
    di Cassazione Sez. Penale, ' 1950, III, p. 30 (October 28,
    1950);

    (5) [(1) p.416] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 570-571;

    (6) [(1) p.420] See ' Report of the International Law
    Commission covering the work of its third session, '
    United Nations, New York, 1951, p. 12;

    (7) [(2) p.420] ' Law Reports of Trials of War Criminals '
    Vol. XII p. 68;

    (8) [(1) p.421] ' Report of the International Law Commission
    covering the work of its third session, ' p. 13;

    (9) [(1) p.426] See KAPPLER ' Rivista di diritto
    internazionale, ' Vol. XXXVI, 1953, p. 193 ff.; Moreover, in accordance with the regulations in force, the prison authorities are required to transmit immediately to the competent Soviet authorities, for further investigation, any complaints by convicted persons concerning their conviction and sentence or requests for a review of their case, as well as all other complaints.

    Moscow, May 26, 1955. "

    It is clear from this note that, as stated in the reservation itself, prisoners of war accused of war crimes or crimes against humanity will continue to enjoy the benefits of the Convention until such time as the penalty to which they have been sentenced becomes enforceable, that is to say until all courses of appeal have been exhausted. They will therefore enjoy all the judicial guarantees which the Convention provides during their trial and, in particular, will have the assistance of the Protecting Power. The Convention would once more be applicable to prisoners of war sentenced to confinement as soon as they have served their sentence. This clarification is very useful as the reservation had given rise to some doubt.
    The substance of the reservation corresponds to a tendency which became apparent during and after the Second World War and has been mentioned above. That being said, it is certain that the rights granted by the Convention to convicted prisoners of war represent only a minimum standard, and equivalent rights -- possibily in a slightly different form -- are to be found in the legislation of most civilized countries. The important factor introduced by the Convention is participation by a supervisory body -- the Protecting Power. Is it desirable that prisoners of war who have been convicted of war crimes or crimes against humanity should be left without any international supervision once they have finally been found guilty? The answer to this question is certainly in the negative. During the conflicts which have occurred since the Second World War, there have been a great many accusations of violations of the laws and customs of war; it is to be feared that accusations of this kind might be brought systematically against a great many members of the armed
    forces, or at least against certain categories of those forces. Supervision of the treatment of convicted prisoners of war therefore seems necessary, even in the case of war crimes or crimes against humanity, and especially when sentence is pronounced during the hostilities.

    [p.426] JURISPRUDENCE

    No judgments have been pronounced in relation to Article 85 since the entry into force of the Convention. During the Korean conflict, when the Convention was in fact only partially applicable, the belligerents did not continue the prosecution of prisoners of war accused of war crimes.
    The Italian Supreme Military Tribunal, however, has considered the scope of Article 85, in connection with an appeal by a German who had been convicted of acts committed during the Second World War (9). In defence, the accused submitted, inter alia, that his trial had not been conducted in accordance with the 1949 Convention. Without considering whether or not that Convention could apply to events which occurred before its entry into force, the Tribunal rejected the argument based on Article 85 for the following reasons:

    (1) -- Violations of the laws and customs of war are offences against international law and not against the legislation of the Detaining Power;

    (2) -- It is a rule of customary law that those who have violated the laws of war may not avail themselves of them;

    (3) -- The offences alleged to have been committed by the accused are violations of the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons. Article 146 of that Convention specifies, however, that the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Third Geneva Convention of 1949. The Tribunal therefore concluded that persons accused of grave breaches of the Fourth Convention do not have the status of prisoners of war.

    We have already commented above on the arguments adduced under (1) and (2) by the Italian Supreme Military Tribunal. Its conclusions can only be explained by the fact that it appears to have misunderstood the intentions of the drafters of the Convention and the discussions which took place at the Diplomatic Conference. Such an interpretation of Article 85 is clearly contrary to the facts and, moreover, if it were correct, the reservations entered by the USSR and other States would be incomprehensible.
    [p.427] With regard to the third argument, here again the Tribunal was apparently not familiar with the reasons for providing safeguards of proper trial and defence for persons accused of grave breaches of the Geneva Conventions. In fact, these safeguards were provided only for the case of accused persons who are not prisoners of war. In most cases, of course, the persons accused will be members of the armed forces who have fallen into the hands of the enemy, but it is also possible that grave breaches may have been committed by civilians or that the members of the armed forces who committed them may have been demobilized and subsequently arrested as civilians. The sole purpose of the common provision included in Articles 49 /50 /129 /146 is to afford to accused persons who are not prisoners of war safeguards similar to those accorded to prisoners. The judgment of the Italian Supreme Military Tribunal cannot therefore be considered as valid jurisprudence. There is no doubt that had the Tribunal been better informed and had at its disposal all
    the necessary documentation, it would have arrived at very different conclusions. This is also the opinion of Professor Roberto Ago, who is the author of a critical note which appeared with the text of the judgment in the ' Rivista di diritto internazionale. '


    * (1) [(1) p.413] See ' Law Reports of Trials of War
    Criminals, ' Vol. 4, p. 1 ff. One judge gave a dissenting
    opinion;

    (2) [(2) p.413] Ibid., Vol. 3, pp. 23, 42 and 50;

    (3) [(3) p.413] Ibid., Vol. 14, p. 116;

    (4) [(4) p.413] ' Giurisprudenza Completa della Corta Suprema
    di Cassazione Sez. Penale, ' 1950, III, p. 30 (October 28,
    1950);

    (5) [(1) p.416] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 570-571;

    (6) [(1) p.420] See ' Report of the International Law
    Commission covering the work of its third session, '
    United Nations, New York, 1951, p. 12;

    (7) [(2) p.420] ' Law Reports of Trials of War Criminals '
    Vol. XII p. 68;

    (8) [(1) p.421] ' Report of the International Law Commission
    covering the work of its third session, ' p. 13;

    (9) [(1) p.426] See KAPPLER ' Rivista di diritto
    internazionale, ' Vol. XXXVI, 1953, p. 193 ff.;