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Commentary - Art. 100. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #III. Judicial proceedings
    ARTICLE 100. -- ESSENTIAL RULES: II. DEATH PENALTY


    During the preparatory work for the 1949 Diplomatic Conference, the International Committee of the Red Cross had suggested that the death sentence should be abolished, or at least confined to certain crimes (1). This proposal was not approved by the majority of delegations, which pointed out the great differences existing in this field between national legislations, and the fact that a State which generally refuses to apply the death penalty may find it necessary to do so in time of war. In their opinion, it was therefore preferable to avoid weakening the Convention by inserting stipulations or details which some signatory States might have difficulty in accepting. It was none the less essential to preclude any arbitrary action in such an important matter.

    [p.474] PARAGRAPH 1. -- NOTIFICATION OF PRISONERS OF WAR AND
    PROTECTING POWERS

    Prisoners of war will be notified in accordance with the provisions of Article 41 , in order to carry out the maxim ' nemo jus ignorare censetur. '
    The Protecting Powers will also be informed and will thus be able to inform the Power on which the prisoners of war depend. The text states that this notification must be made "as soon as possible". It is obvious that this must be done immediately after capture, for it would be inconceivable -- and absolutely contrary to the spirit of the present Convention -- for prisoners to be informed of the consequences of their acts only after those acts had been committed. On the other hand, the Detaining Power is free to withhold any communication of this kind as long as it refrains from imposing the death penalty. In that case, the death sentence may be applied only in respect of acts committed after the notification was made.

    PARAGRAPH 2. -- RESERVATION: CONCURRENCE OF THE POWER UPON
    WHICH THE PRISONERS OF WAR DEPEND

    The present paragraph was inserted at the Stockholm Conference and adopted without amendment by the Diplomatic Conference of 1949. It requires the concurrence of the Power upon which prisoners of war depend before any other offences can be made punishable by the death penalty, after prisoners of war and the Protecting Powers have been notified pursuant to paragraph 1.
    This means in practice that the Detaining Power may not unilaterally amend its legislation in this matter once it has made the first notification unless it first obtains the concurrence of the Power on which the prisoners of war depend; it constitutes a guarantee for prisoners of war against lad hoc legislation enacted by the Detaining Power which could worsen their position.

    PARAGRAPH 3. -- EXTENUATING CIRCUMSTANCES

    This provision reiterates the extenuating circumstances mentioned in Article 87, paragraph 2 , to which a specific reference is made: since the accused is not a national of the Detaining Power, he is not bound to it by any duty of allegiance, and is in its power as the result of circumstances independent of his own will. These circumstances [p.475] must be expressly mentioned in court, in order to ensure a lenient attitude on the part of the judges. This will normally be done by the Attorney-General or by the President of the tribunal who must see to it that this imperative provision is respected. Otherwise, there would be grounds to appeal for the court's findings to be set aside.


    * (1) [(1) p.473] See ' Report on the Work of the Conference of
    Government Experts, ' p. 231;