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Commentary - Art. 68. Part III : Status and treatment of protected persons #Section III : Occupied territories
    ARTICLE 68. -- PENAL LEGISLATION: V. PENALTIES.
    DEATH PENALTY (1)


    [p.343] PARAGRAPH 1. -- PENALTIES INVOLVING LOSS OF LIBERTY

    1. ' Offences '

    Paragraph 1 deals with offences the consequences of which are not serious for the Occupying Power. Such offences are only punishable by "simple" imprisonment or internment, while those which have serious consequences for the Occupying Power may be punished by penalties of much greater severity, even the death penalty, subject to the conditions laid down in the three following paragraphs.
    The minor offences must have been "solely" intended to harm the Occupying Power. The inclusion of the word "solely" excludes acts which harm the Occupying Power indirectly (2).

    2. ' Sanctions '

    Internment is a preventive administrative measure and cannot be considered a penal sanction. It is nevertheless mentioned here under the same head as simple imprisonment, because the authors of the Convention wished to make it possible for the military courts of the Occupying Power to give persons guilty of minor offences the [p.344] benefit of the conditions of internment provided for in Articles 79 et sqq. The provision was a humane one and was intended to draw a distinction between such offenders and common criminals.
    As several delegations at the Geneva Conference pointed out, "simple" imprisonment was intended to mean imprisonment "of the least severe kind". It will be seen, incidentally, in the comments on Article 76 , that protected persons must always "if possible, be separated from other detainees", that is from common criminals. The application of the paragraph under discussion provides a special opportunity for carrying out this recommendation.
    It should be noted that internment and imprisonment are only mentioned as maximum penalties, and less severe penalties still, such as placing under arrest or fines, may be applied in the case of persons accused of minor offences.

    PARAGRAPH 2. -- DEATH PENALTY (3)

    1. ' Offences '

    In the Commentary on Article 5 , it was noted that the Convention does not define the meaning of "espionage" (4) or "sabotage". It is only "serious" acts of sabotage that are referred to here. This qualification was added by the Diplomatic Conference in view of the tendency of belligerents to interpret "sabotage" in a very broad sense. The destruction of an air base, or of a line of communication of strategic importance, is a serious act of sabotage; on the other hand individual acts such as stoppage of work or refusing to obey orders when carrying out some imposed task cannot be punished by the Occupying Power as acts of sabotage, in spite of the damage they may cause it.
    In view of the difficulty of defining, a priori, acts which may be described as serious acts of sabotage, it will be for the courts to make a decision in each individual case, objectively weighing all the circumstances.
    The words "intentional offences which have caused the death of one or more persons" provide a clear indication of the difference between the serious offences under consideration and the offences referred to in paragraph 1, whose characteristic feature is, in fact, that they do not involve anyone's death.

    [p.345] 2. ' Reservation in regard to local legislation '

    Use of the death penalty, which may only be imposed for three types of offence, espionage, serious sabotage, and intentional homicide, is subject to a condition: namely, that the death penalty was provided for similar cases under the law in force before the occupation began.
    It was this clause, introduced by the XVIIth International Red Cross Conference, which caused the greatest conflict of opinion at the Diplomatic Conference in 1949 when the law of occupation was under discussion.
    Those who opposed the reservation argued that it would create an inequality of treatment between the populations of different occupied territories, according to whether capital punishment already existed in a territory or not. They claimed that it would in any case be possible for the defeated side to promulgate a law or decree abolishing the death penalty at the last moment before their territory was occupied, thus depriving the Occupying Power of a most effective means of repression at a time when reprisals against individuals and the taking of hostages were forbidden. Those in favour of this most important safeguard, however, reminded the Conference of the crimes perpetrated under the cover of penal jurisdiction in certain occupied countries during the Second World War. They dwelt on the fact that patriotic agitation was ethically correct and that patriots guilty of offences which were punishable by death must not be hastily and irrevocably condemned. In their opinion this reservation in regard to national legislation would represent a
    valuable victory for the forces of humanity.
    The clause in question was finally adopted after every aspect of the question had been discussed in detail and at great length; but when the Conventions were signed several delegations made express reservations in regard to this point (5).
    The Convention does not indicate the penalties which may be inflicted on persons guilty of serious offences for which the law of the country does not provide for the death penalty; the courts will be completely free to decide the matter, having at their disposal the [p.346] penalties recognized by the legislation in force (long terms of imprisonment, solitary confinement, penal servitude) (6).
    It should be pointed out that the words "law of the occupied territory in force before the occupation began" should be taken to mean the positive penal law of that territory as it existed at the time the occupation began, within the meaning of Articles 2 and 6 of the Convention. The expression includes wartime law, both when such provisions enter into force automatically on the outbreak of war and when special legislation has been promulgated by the government of the occupied territory. As is known, military penal codes sometimes contain Articles which are applicable only in wartime, or prescribe penalties of greater severity for certain offences when they are committed in wartime.

    PARAGRAPH 3. -- SPECIAL CONDITION

    This clause may be compared with the provision in Article 67 which lays down that the courts of the occupying authorities are to "take into consideration the fact that the accused is not a national of the Occupying Power". Consideration must, in fact, be given to the particular position in which the protected person finds himself. He is not a national of the Occupying Power, but on the contrary the inhabitant of a country which is suffering as a result of its invasion and occupation by its enemies. The judge should take these extenuating circumstances into account and reduce the penalty accordingly.
    The words "duty of allegiance" constitute an acknowledgment of the fundamental principle according to which the occupation does not sever the bond existing between the inhabitants and the conquered State. Protected persons must nevertheless obey legitimate orders issued by the Occupying Power (7).
    This provision is also to be found in Articles 87 and 100 of the Third Convention and in Article 118 of the present Convention.

    PARAGRAPH 4. -- AGE LIMIT

    This clause originated in a proposal made at the XVIIth International Red Cross Conference by the International Union for Child [p.347] Welfare (8). It makes eighteen years the absolute age limit below which the death penalty may not be inflicted, even if all the other conditions which make that penalty applicable are present.
    The clause corresponds to similar provisions in the penal codes of many countries, and is based on the idea that a person who has not reached the age of eighteen years is not fully capable of sound judgment, does not always realize the significance of his actions and often acts under the influence of others, if not under constraint.


    Notes: (1) [(2) p.342] For the discussions leading to the adoption of
    this Article, see ' Final Record, ' Vol. I, p. 123; Vol.
    II-A, pp. 673, 765-768, 788, 810, 833, 858; Vol. II-B, pp.
    195, 424; Vol. III, pp. 140-141;

    (2) [(1) p.343] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 765-768;

    (3) [(1) p.344] See ' Final Record of the Democratic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 765-768;

    (4) [(2) p.344] For a definition of espionage, see p. 57;

    (5) [(1) p.345] One was the delegation of the United States,
    which signed the following reservation: "The United States
    reserve the right to impose the death penalty in
    accordance with the provisions of Article 68, paragraph 2,
    without regard to whether the offences referred to therein
    are punishable by death under the law of the occupied
    territory at the time the occupation begins."
    Similar reservations were made by the United Kingdom,
    Canada, New Zealand and the Netherlands. (See ' Final
    Record, ' Vol. I, pp. 346, 349, 352-353.);

    (6) [(1) p.346] Deportation cannot be inflicted, however,
    since Article 76 lays down that protected persons must
    serve their sentence in occupied territory;

    (7) [(2) p.346] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 673-674;

    (8) [(1) p.347] See ' Summary of the debates of the
    Sub-Commissions of the Legal Commission ', p. 79;