ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 39. Part III : Captivity #Section II : Internment of prisoners of war #Chapter VI : Discipline
    ARTICLE 39. -- ADMINISTRATION; SALUTING


    PARAGRAPH 1. -- ADMINISTRATION AND RESPONSIBILITY
    FOR THE APPLICATION OF THE CONVENTION

    From the moment of capture, the order of hierarchy of the captured unit is disrupted and officers and other ranks are separated from one another. The first task of the Detaining Power must therefore be to organize discipline on a new basis.

    1. ' First sentence. -- Appointment of a responsible commander '

    The principle that a responsible commander should be appointed in each camp was already set forth in the 1929 Convention, Article 18, paragraph 1 : "Each prisoners-of-war camp shall be placed under the [p.240] authority of a responsible officer". The brevity of that text led to considerable abuse of the provision when disciplinary powers were delegated to non-commissioned officers and even to prisoners of war. The present Convention stipulates in Article 96 that disciplinary powers may be delegated only to an officer. The term "prisoner-of-war camp" refers not only to the central camp but also to all the labour detachments under its administration and in some cases authority might be delegated, outside the main camp, to an officer acting under the responsibility of the officer in command not only of the main camp but also of all its outlying units.

    2. ' Second sentence. -- Responsibility for applying the Convention '

    Under this clause the camp commander is personally responsible for the application of the Convention both in the main camp and in all its annexes. He would be held responsible for any breach of the Convention attributable to one or more of his subordinates.
    His personal responsibility is involved "under the direction of his Government". Any lack of adequate control on the part of the Government would certainly not relieve the camp commander of his obligations; but could he evade his responsibilities if his Government gave him orders contrary to the provisions of the Convention? In our view the answer must be in the negative. The camp commander is responsible not only towards his Government which has undertaken to respect and to ensure respect for the Convention, but also towards all the countries which are party to the Convention. This seems at least to be the significance of the French text of this provision ("sous le ' contrôle ' de son gouvernement"). The word "direction" in the English text seems slightly to lessen the individual responsibility of the camp commander.
    Be this as it may, the requirement that the camp commander must have in his possession a copy of the Convention (and not merely receive instructions from his Government which may or may not be in accordance with that instrument) emphasizes the nature of the responsibility which remains his in all circumstances (1).

    PARAGRAPH 2. -- SALUTE AND EXTERNAL MARKS OF RESPECT

    This provision requires prisoners of war to show the relevant external marks of respect to all officers; at the same time, it automatically [p.241] excludes from this privilege any representative of the Detaining Power who is not an officer or does not wear officer's uniform. Similarly, it excludes all non-commissioned officers, regardless of the laws and regulations of the Detaining Power (2).
    The present provision does not merely state to whom prisoners of war must give the salute and show external marks of respect; it also determines the form and conditions for doing so, by referring explicitly to the regulations applying in the armed forces to which the prisoners belong. This provision is likely to prevent any recurrence of incidents such as those which took place during the Second World War, when certain belligerents insisted on prisoners conforming to the regulations for saluting applicable in the armed forces of the Detaining Power (3).
    There is one more question, in this connection, which gave rise to some difficulty: that of officers of the Detaining Power returning the salute of prisoners of war. The Conference of Government Experts considered that this was a matter of courtesy and did not call for precise ruling (4).

    PARAGRAPH 3. -- SALUTING BY OFFICERS

    The 1929 Convention required officer prisoners of war to salute only officers of the Detaining Power who were their superiors or equals in rank. The Conference of Government Experts considered that the exchange of salutes between equal ranks was so much a matter of courtesy that the Convention could not enter into such matters of detail (5).
    During the Second World War, moreover, certain Powers insisted that officer prisoners of war should salute the camp commander, whatever his rank, and this gave rise to numerous discussions (6). The Conference of Government Experts, however, took the view that it was normal for prisoners to salute the camp commander, since he represented the Detaining Power, and a provision to that effect was included in the present paragraph.


    * (1) [(1) p.240] See below, pp. 622-623;

    (2) [(1) p.241] These questions sometimes gave rise to
    difficulties during the Second World War; see ' Report of
    the International Committee of the Red Cross on its
    activities during the Second World War ', vol. I, p. 250.
    See also BRETONNI RE, op. cit., pp. 141-142;

    (3) [(2) p.241] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War ', Vol. I, p. 250. See also BRETONNI RE, op. cit., p.
    141;

    (4) [(3) p.241] See ' Report on the Work of the Conference of
    Government Experts ', p. 152;

    (5) [(4) p.241] Ibid., p. 153;

    (6) [(5) p.241] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War ', Vol. I, p. 250;