ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 122. Part III : Status and treatment of protected persons #Section IV : Regulations for the treatment of internees #Chapter IX : Penal and disciplinary sanctions
    ARTICLE 122. -- INVESTIGATIONS, CONFINEMENT AWAITING
    HEARING


    PARAGRAPH 1. -- IMMEDIATE INVESTIGATION

    Escape or attempted escape, if connected offences are disregarded, constitute only an offence against discipline. While an investigation to establish the facts must always precede the infliction of a punishment, it will not in this case have the complicated character of a judicial enquiry. The principle of immediate investigation had already been laid down in the 1929 Convention relative to the Treatment of Prisoners of War (Article 47, paragraph 1 ).
    With regard to handing over the recaptured internee to the "competent" authorities, this text should be compared with paragraph 2 of Article 92 of the Third Convention, which provides that an escaped prisoner of war must be handed over to the competent military authorities. In both cases the competent authorities are those directly responsible for the person concerned before the escape -- i.e. either the camp commandant (or the commander of the labour detachment), or the commandant of the place of internment. In short, the competent authority is the authority entitled to inflict a disciplinary punishment on the internee. In the case of internees, the conditions under which disciplinary punishments can be inflicted are specified in paragraph 1 of Article 123 .

    [p.489] PARAGRAPH 2. -- CONFINEMENT AWAITING HEARING

    This text is the same as that of paragraph 2 of Article 95 of the Third Convention. This maximum of fourteen days' confinement awaiting hearing for disciplinary offences was laid down to prevent the abuses of which some prisoners of war had been victim. Whatever the circumstances, then, an internee accused of a disciplinary offence must be released after fourteen days' confinement if sentence has not yet been passed. This time, it should be noted, equals half the maximum sentence of imprisonment applicable. The release obviously does not prejudice the ultimate sentence but even if the internee is sentenced to the maximum, the days passed in confinement awaiting hearing will be deducted and so the remaining period of imprisonment will in no case exceed the time he has already spent in confinement.

    PARAGRAPH 3. -- PREMISES IN WHICH INTERNEES ARE CONFINED
    AWAITING HEARING

    Articles 124 and 125 deal with the premises to be used and the guarantees essential for those detained.
    This provision is not the same as the one covering prisoners of war (Third Convention, Article 95, paragraph 3 ). Its object is to prevent the repetition of the abuses committed during the Second World War, such as detention in special camps to which camp leaders and Protecting Powers were not admitted, the withdrawal of privileges and essential guarantees, etc. (1)
    This solution, moreover, is logical and conforms to the traditional procedure in penal matters. Deprivation of liberty while awaiting trial indeed takes place before the guilt of the accused has been established. Detention must not, therefore, be harsher for a man who is merely accused than for a guilty person.


    Notes: (1) [(1) p.489] See M. BRETONNI RE, op. cit. p. 313-314:
    ' Report on the Work of the Conference of Government
    Experts, ' pp. 208-209;