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Commentary - Art. 104. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #III. Judicial proceedings
    ARTICLE 104. -- PROCEDURE: III. NOTIFICATION OF PROCEEDINGS


    When the Regulations concerning the Laws and Customs of War on Land, annexed to the Fourth Hague Convention of 1907, were drawn up, no specific clauses were included providing legal assistance to prisoners of war under prosecution. Article 8 of those Regulations merely stated: "Prisoners of war shall be subject to the laws, regulations [p.481] and orders in force in the army of the State in whose power they are". Legal assistance is, however, of vital necessity for prisoners of war liable to penalties, and even to the death sentence, under enemy jurisdiction.
    During the First World War, a purely conservative agreement was signed by the belligerents -- France and Germany -- at Berne on August 30, 1916; it provided that as from September 1, 1916, the execution of sentences passed against prisoners of war during captivity by military tribunals in France or Germany in respect of offences committed prior to that date should be suspended until the conclusion of peace.
    In 1929, the Diplomatic Conference convened at Geneva established the right for prisoners of war to choose counsel and nominate an interpreter, and laid down for their benefit, in accordance with the principles of the Hague Regulations, the same rules of judicial competence, procedure and appeals as for members of the armed forces of the Detaining Power. The supervision of these stipulations rests entirely with the Protecting Power, which must be given due notice of the judicial proceedings, in order that it may follow the case, unless exceptional circumstances oblige them to be held ' in camera, ' in the interest of the State.
    Although the duty of the Protecting Power is to guarantee legal assistance to prisoners of war, it acts in these circumstances as the mandatory of the Power in whose armed forces the prisoner of war served, and which is, ultimately, responsible for defending members of its own forces. Since a state of war prevents it from taking action through its own diplomatic representatives, it has recourse either to a neutral Power, which agrees to act on its behalf, or, if there is none, to the intermediary of a humanitarian organization (1).
    At the Conference of Government Experts, however, it was pointed out that Article 60 of the 1929 Convention contained certain technical deficiencies which had been remarked during the Second World War by all who had had to apply that Convention (2).

    [p.482] PARAGRAPH 1. -- THE PRINCIPLE OF NOTIFICATION

    As has already been stated, this is an instance of application of Article 8 , which provides for the co-operation of the Protecting Power in the application of the Convention. In accordance with the present paragraph, whenever the Detaining Power decides to institute proceedings against a prisoner of war, it must, at least three weeks before the opening of the trial, notify the Protecting Power, the prisoners, representative, and the accused prisoner of war, pursuant to paragraph 4 as will be seen below. This period of three weeks is a minimum and the notification should actually be made "as soon as possible". Furthermore, no exceptions are permitted. In order to eliminate delay which resulted from the vagueness of the 1929 text and sometimes prevented the Protecting Power from acting in time, the drafters of the new Convention also specified that the period of three weeks is to run as from the day on which the notification is received by the representative of the Protecting Power, and not as from the day on which it is despatched.
    Article 101 contains a similar provision. From the moment when it agrees to represent a certain category of prisoners, the Protecting Power must therefore give an appropriate address.

    PARAGRAPH 2. -- CONTENTS OF THE NOTIFICATION

    The text of the 1929 Convention concerning the contents of the notification has also been supplemented and clarified. It must contain the following information:

    (1) The same data as was specified in Article 17, paragraph 1 , of the
    present Convention which a prisoner of war is required to give when
    questioned following capture, i.e. surname and first names, rank,
    date of birth, and army, regimental, personal or serial number. The
    present provision also states that a reference should be made to the
    prisoner's profession or trade, if any, in order to prevent confusion
    of identity wherever possible.

    (2) The place of internment of the prisoner of war is normally known to
    his family and the Central Prisoners of War Agency, thanks to the
    capture card filled in and sent in accordance with Article 70 , a
    fresh card being sent upon each transfer. The Protecting Power,
    however, is not automatically informed of this. This also applies to
    the place of confinement, since the prisoner is [p.483] protected by
    the safeguards in Articles 108 and 126 which afford him the same
    benefits, under the scrutiny of the Protecting Power.

    The Protecting Power is, however, required to exercise individual supervision in any case of judicial proceedings, and must therefore be accurately informed of the place of internment or confinement of the prisoner of war to whom assistance is to be given.

    (3) Thirdly, the notification must specify the charge or charges made
    against the prisoner of war, as well as the legal provisions
    applicable. This text corresponds to the 1929 version, which did not
    require the Detaining Power to include in the notification the full
    text of the charge or charges (3). This information will enable the
    Protecting Power to check that the relevant provisions of the
    Convention are respected (and in particular Article 82 which provides
    that prisoners of war are subject to the laws, regulations and orders
    in force in the armed forces of the Detaining Power, to the exclusion
    of all others, except as provided in the present Chapter).

    (4) Lastly, the notification must designate the court which will try the
    case, and also the date and place fixed for the opening of the trial.
    This provision is the same as the corresponding clause in the 1929
    text; under the present Convention, however, the compulsory period of
    three weeks now applies not only to this provision but to all the
    points referred to. As regards the designation of the court, one
    should bear in mind the provisions of Article 102 , which requires
    that the judicial authority pronouncing sentence on prisoners of war
    must be the same as in the case of members of the armed forces of the
    Detaining Power.

    PARAGRAPH 3. -- NOTIFICATION OF THE PRISONERS REPRESENTATIVE

    In the Second World War it became apparent that the prisoners, representative can play a very useful rôle whenever judicial proceedings are brought against prisoners of war of certain nationalities, especially when they have no regular Protecting Power (4). The International Committee of the Red Cross therefore proposed at the [p.484] Conference of Government Experts that a similar notification should be sent to the prisoners' representative.
    As has already been mentioned in connection with Article 80, paragraph 1 , during the Second World War the prisoners' representatives in some prisoner-of-war camps set up legal advice services. These services were most helpful, particularly as regards assistance to prisoners of war against whom judicial proceedings had been instituted.

    PARAGRAPH 4. -- SANCTION

    If the stipulations of the preceding paragraphs have not been observed, the hearing must be adjourned; this is the logical conclusion of these provisions, which are mandatory. The text does not merely state that the trial must be adjourned, but goes so far as to specify that before the trial can be opened, evidence must be submitted that the notification was made in accordance with the time-limit laid down. The present paragraph contains an additional requirement not included in the previous paragraphs: it must also be shown that the notification was received by the prisoner of war concerned. This question of proof is very important and it will be in the interest of the Detaining Power to despatch the notification in a form which will easily enable it to adduce the evidence required. In accordance with Article 41, paragraph 2 , the notification should furthermore be made in a language which the prisoner of war concerned understands. Evidence of the notification may be in the form of either a verbal statement by the persons concerned or their
    representatives, or a written statement; but if the court does not do so of its own accord the defence counsel is entitled at the opening of the trial to ask for the evidence required.


    * (1) [(1) p.481] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, p. 352 ff. See also, with regard to the
    rôle of the Protecting Power, Article 8 above;

    (2) [(2) p.481] In the first place, paragraphs 1 and 3 of
    Article 60 were contradictory, for the complementary
    notification mentioned in paragraph 3 had to be supplied
    to the Protecting Power at least three weeks prior to the
    opening of the hearing, whereas no time-limit was fixed
    for the notification of proceedings containing all
    necessary particulars mentioned in paragraph 1. It was
    also noted that certain other points should be clarified;
    these will be referred to later. See ' Report on the Work
    of the Conference of Government Experts, ' pp. 222-223;

    (3) [(1) p.483] See ' Actes de la Conférence de 1929, '
    p. 497;

    (4) [(2) p.483] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, p. 572;