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Commentary - Art. 92. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #II. Disciplinary sanctions
    ARTICLE 92. -- ESCAPES: II. UNSUCCESSFUL ESCAPE


    GENERAL REMARKS

    Article 50 of the 1929 Convention provided that prisoners of war who were recaptured before having made good their escape would be liable only to disciplinary punishment (1). This wording, which was [p.449] taken from the Hague Regulations, was based on the idea that attempts to escape should be considered as a demonstration of patriotism and of the most honourable feelings (2); any such attempt may possibly be considered as a fresh act of hostility committed by a prisoner of war in his capacity as a member of the enemy armed forces (3), but not as a crime.
    In general, and except as indicated hereafter, this provision was respected during the Second World War (4).

    PARAGRAPH 1. -- ATTEMPTS TO ESCAPE

    The corresponding provision in the 1929 Convention referred to "escaped prisoners of war". The present text wisely refers to "a prisoner of war who attempts to escape" and mentions the possibility of repeated attempts together with a reference to the conditions for successful escape as defined in the preceding Article .
    It is easy to determine at what point an attempt to escape ends and becomes a successful escape, but much more difficult to determine when it actually begins. To escape is to elude the custody and authority of the Detaining Power, and an attempt to escape logically begins when any preparatory action is undertaken for that purpose. An attempt to escape may be considered as beginning when prisoners of war acquire tools, maps, or plans, or when they start to dig a tunnel or stock food supplies, etc. There is, however, an obvious difference between such preparations and the actual attempt to escape which is characterized by decisive action. In imposing disciplinary punishment, the Detaining Power must take this distinction into account (5).

    [p.450] PARAGRAPH 2. -- RECAPTURED PRISONERS OF WAR

    What is the meaning of the term "competent military authority"? An attempt to escape may be punished only by disciplinary measures and this authority is therefore that of the camp from which he escaped or on which his labour detachment depended. It is the authority responsible for the prisoner of war at the time of his escape and which, in any case of disciplinary offence, is qualified to award punishment. The present provision is designed to emphasize that in no case may a prisoner of war remain in the hands of the police.
    A prisoner may, however, also be brought to court because of offences committed during escape (Article 93 ), which may even be more serious than the escape itself. If such offences are committed with the sole intention of facilitating the escape and entail no violence against life or limb, they are liable to disciplinary punishment only (Article 93, paragraph 2 ); the prisoner of war must therefore be handed over immediately to the military authority on which he depended before attempting to escape, and to no one else.
    If, on the other hand, he is accused of more serious offences, he will be dealt with in accordance with the legislation in force in the armed forces of the Detaining Power (Article 82, paragraph 1 ).
    The expression "without delay" is imperative, and one may wonder whether the period which elapses between the moment when a prisoner of war is recaptured and that when he is handed over to the "competent military authority" is to be considered as confinement while awaiting hearing. In this connection, it should be noted that the present provision was originally included in Article 95 (confinement while awaiting hearing) and was only embodied in the present Article at a later stage. If the period which elapses between recapture and the handing over of a prisoner of war to the competent authority is not excessively long, it need not be taken into account; if, however, the handing over is delayed for any reason for which the prisoner himself is not responsible, the period which elapses must be considered as confinement while awaiting hearing.

    PARAGRAPH 3. -- SPECIAL SURVEILLANCE

    The Brussels Declaration, in Article 28 , already referred to the possibility of placing prisoners of war who had attempted to escape under stricter surveillance.
    [p.451] Article 48, paragraph 2 , of the 1929 Convention was in the main very similar to the present text (6). In the light of the experience of the Second World War, however, a reference to the health of prisoners of war was inserted, and it was specified that such surveillance must be undergone in a prisoner-of-war camp.
    During the First World War, some confusion arose in this connection because of the wording of Article 28 of the Brussels Declaration. That Article stated that prisoners of war were "liable to disciplinary punishment or subject to a stricter surveillance", without making sufficient distinction between the two. During the Second World War, however, the belligerents recognized that the special regime of surveillance should consist merely of stricter guard (7).
    During the preparatory work which preceded the 1949 Conference there was some discussion as to the advisability of specifying the measures permitted by way of special surveillance and of limiting its duration both in the case of a first attempt and for subsequent attempts, but no definite proposal was made. The discipline in some camps was so harsh, however, that the physical and mental health of the prisoners was affected. One must emphasize the principle that stricter surveillance must consist of a strengthening of the guard; it may never consist of any restriction placed on the rights of prisoners of war.
    As regards the safeguards referred to at the end of the present paragraph, special importance will be attached to the opportunity for the Protecting Powers to visit special camps as frequently as other prisoner-of-war camps. In this connection, the word "suppression" is perhaps too categorical and it would have been preferable to forbid not only the suppression of those safeguards but also any reduction in them.
    During the Second World War, the system of special surveillance was sometimes applied not only to prisoners of war who had attempted to escape, but also to prisoners of war who were suspected, rightly or wrongly, of intending to make such an attempt. In practice, this amounted to a system of political surveillance applied to certain persons because of their status or duties in their home country. The present paragraph definitely forbids any such measures and limits special surveillance to "prisoners of war punished as a result of an unsuccessful escape".
    [p.452] Despite the many protests which arose over abuses committed during the Second World War, this provision is a necessary evil; had it been deleted, the only result would probably have been that the Detaining Powers would be prompted to take other security measures in regard to prisoners of war who had attempted to escape which would no longer offer any safeguard to those prisoners.


    * (1) [(3) p.448] See below, p. 730;

    (2) [(1) p.449] See FREY, op. cit., p. 42;

    (3) [(2) p.449] See A. R. WERNER, op. cit., p. 326;

    (4) [(3) p.449] See BRETONNI RE, op. cit., pp. 343-346. The
    first draft of the 1929 Convention included an Article
    (Article 52), which made provision for simple escape and
    collective escape, with a punishment of a maximum of two
    weeks' confinement for the former and thirty days for the
    second; the time required tor return to the depôt and any
    period of confinement awaiting hearing were to be deducted
    from the punishment awarded. This provision gained
    considerable support but it was finally rejected by the
    1929 Diplomatic Conference;

    (5) [(4) p.449] At the Conference of Government Experts, the
    International Committee of the Red Cross had proposed that
    preparations which implied nothing more definite than an
    inclination to escape should not be liable to punishment;

    (6) [(1) p.451] See below, p. 730;

    (7) [(2) p.451] During the Second World War, the belligerents
    took special measures in regard to various categories of
    prisoners: "Sonderkompanien, Sonderlager,
    Sonderabteilungen" in the case of prisoners of war in
    Germany, and "special camps" in the Anglo-Saxon countries;
    the conditions prevailing under these special arrangements
    frequently did not conform to the requirements of the
    Convention;