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Commentary - Art. 71. Part III : Status and treatment of protected persons #Section III : Occupied territories
    ARTICLE 71 -- PENAL PROCEDURE: I. GENERAL OBSERVATIONS (1)


    [p.353] The penal procedure laid down (Articles 71 to 78) is based on the same principles as in the Prisoners of War Convention; the safeguards provided apply to persons interned not only in occupied territory, but also, by analogy, in the territory of any Party to the conflict (Article 126 ).

    PARAGRAPH 1. -- REGULAR TRIAL

    The inclusion in the Convention of the express rule that no sentence may be pronounced by the competent courts of the Occupying Power except after "a regular trial" introduces into the law of war a fundamental notion of justice as it is understood in all civilized countries (2).
    The safeguards provided in the Articles dealing with penal legislation, which we have just discussed, and those prescribed elsewhere, particularly in Article 32 , which prohibits torture and all other forms of brutality, obviously represent conditions which must be fulfilled if a trial is to be regular; but there are other rules relating to penal procedure which are not expressly laid down in the Convention, but [p.354] must nevertheless be respected as they follow logically from its provisions. One is the principle that any accused person is presumed to be innocent until he is proved guilty. This essential rule remains fully valid in occupied territory.
    The idea of a regular trial is so important that it also finds expression, as has been seen, in Article 3 , which prohibits at all times and in all cases whatsoever "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples", and in Article 147 , where the fact of wilfully depriving a protected person of "the rights of fair and regular trial prescribed in the present Convention" is included among the grave breaches listed in that Article which call for the severest penalties.
    The safeguard is absolutely general. It applies to all accused persons, even those who are charged with having contravened the Geneva Conventions themselves (3).

    PARAGRAPH 2. -- CHARGE. INTERVENTION BY THE
    PROTECTING POWER

    1. ' First sentence: Charge and preliminary investigation '

    The nature and grounds for the charge must be notified to the accused without delay; the protected person accused must know the reasons for his arrest in time to prepare his defence. The notification must give full particulars in a language the person concerned can understand and in writing, in order to avoid the possibility of changes being made in the charge preferred.
    The accused is to be brought to trial as rapidly as possible. This provision is of the utmost importance in time of occupation when delays in the preliminary investigation may tend to prolong the period spent under arrest awaiting trial.

    2. ' Second and third sentences: Intervention by the Protecting Power '

    The competent judicial authority of the Occupying Power is bound to inform the Protecting Power whenever the charges may involve the death penalty or imprisonment for two years or more. The occupation authorities must make the notification automatically, without being asked to do so by the Protecting Power.
    [p.355] The Protecting Power may follow the case and also "any other proceedings" instituted by the Occupying Power against protected persons.
    "Any other proceedings" means cases of a less serious nature, involving less severe penalties, which the Occupying Power is not required to notify ' proprio motu ' to the Protecting Power. In such cases, however, the Protecting Power has the right to request particulars, but they are not furnished to it except at its express request.

    PARAGRAPH 3. -- NOTIFICATION TO THE PROTECTING POWER

    The third paragraph lays down a series of rules relating to the transmission and contents of the notifications which the occupying authorities have to send to the Protecting Power. It reproduces, ' mutatis mutandis ', the provisions of Article 104 of the Third Convention.
    In providing a minimum time limit of three weeks before the first hearing, the Conference wished to make sure that the Protecting Power would have time to study the case and to arrange to be represented at the court hearing, which it is entitled to attend under Article 74 .
    At the opening of the trial evidence must be produced to prove that the provisions of this Article have been complied with and in particular that formal notification has been made within the required time limit to the Protecting Power. If this has not been done, the hearing is to be adjourned. The particulars given in the notification to the Protecting Power must include exact details of the place of residence or detention of the accused. This last item is particularly useful, as under Article 76 the persons detained are entitled "to be visited by delegates of the Protecting Power and of the International Committee of the Red Cross".
    The fact that the list of particulars which are to be given in the notification to the Protecting Power is not limitative in character is clearly shown by the use of the words "shall include". The Occupying Power is therefore free to add further particulars in order to make easier the task of the representatives of the Protecting Power.
    By making a third Power responsible for supervising the scrupulous observance of the jurisdictional safeguards laid down by the Convention, the text provides protected persons with a valuable protection, which may well prevent a repetition of the abuses made possible during the Second World War through the anonymous character of the repressive measures in certain occupied territories.


    Notes: (1) [(1) p.352] For the background to this Article, see
    ' Final Record ', Vol. I, p. 123; Vol. II-A, pp. 674, 769,
    834; vol. II-B, pp. 150, 155, 438 Vol. III, p. 143;

    (2) [(1) p.353] See, in particular, the Universal Declaration
    of Human Rights, Paris, 10 December 1948, and the
    Convention for the Defence of Human Rights and Fundamental
    Freedoms, Rome, 4 November 1950;

    (3) [(1) p.354] See commentary on Article 146, para. 4;