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Commentary - Penal prosecutions
    [p.1395] Article 6 -- Penal prosecutions

    [p.1396] General remarks

    4597 The whole of Part II ' (Humane treatment) ' is aimed at ensuring respect for the elementary rights of the human person in non-international armed conflicts. Judicial guarantees play a particularly important role, since every human being is entitled to a fair and regular trial, whatever the circumstances; (1) the guarantees defined in this article refer to the two stages of the procedure: preliminary investigation and trial. (2) Just like common Article 3 , Protocol II leaves intact the right of the established authorities to prosecute, try and convict members of the armed forces and civilians who may have committed an offence related to the [p.1397] armed conflict; however, such a situation often entails the suspension of constitutional guarantees, the promulgation of special laws and the creation of special jurisdictions. Article 6 lays down some principles of universal application which every responsibly organized body must, and can, respect. (3) It supplements and develops common Article 3, paragraph 1, sub-paragraph (1)(d) , which prohibits "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". This very general rule required clarification to strengthen the prohibition of summary justice and of convictions without trial, which it already covers. Article 6 reiterates the principles contained in the Third and fourth Conventions, (4) and for the rest is largely based on the International Covenant on Civil and Political Rights, (5) particularly Article 15, from which no derogation is permitted, even in the case of a public emergency threatening the life of the nation. In Protocol I, Article 75 ' (Fundamental guarantees) ' contains rules with the same tenor.

    Historical background

    4598 The ICRC draft originally contained two articles: ' Principles of penal law ' and ' Penal prosecutions. ' (6) During the preliminary examination of those articles numerous amendments were submitted; a proposal to combine the two provisions in a single article was put forward, (7) and adopted as a starting point; this was the origin of the present Article 6.

    Analysis of the article

    Paragraph 1 -- The scope of application

    4599 This paragraph lays down the scope of application of the article by confining it to offences related to the armed conflict; these must be criminal offences and not merely administrative or disciplinaryoffences or procedures. ' Ratione personae, ' Article 6 is quite open and applies equally to civilians and combatants who have fallen in the power of the adverse party and who may be subject to penal prosecutions.

    [p.1398] Paragraph 2 -- The right to be tried by an independent and impartial court

    ' Opening sentence '

    4600 The text repeats paragraph 1, sub-paragraph (1)(d) of common Article 3 , with a slight modification. The term "regularly constituted court" is replaced by "a court offering the essential guarantees of independence and impartiality". In fact, some experts argued that it was unlikely that a court could be "regularly constituted" under national law by an insurgent party. Bearing these remarks in mind, the ICRC proposed an equivalent formula taken from Article 84 of the Third Convention, (8) which was accepted without opposition.

    4601 This sentence reaffirms the principle that anyone accused of having committed an offence related to the conflict is entitled to a fair trial. This right can only be effective if the judgment is given by "a court offering the essential guarantees of independence and impartiality". Sub-paragraphs (a)-(f) provide a list of such essential guarantees; a indicated by the expression "in particular" at the head of the list, it is illustrative, only enumerating universally recognized standards.

    ' Sub-paragraph ' (a) -- ' Right to information and defence '

    4602 The ICRC draft simply provided for "a procedure affording the accused the necessary rights and means of defence". (9) That formula was clarified and developed following the proposal by a delegation, on which the present text is based. (10) The rules laid down here are very clear and do not give rise to any difficulties of interpretation: the accused must be informed as quickly as possible of the particulars of the offence alleged against him, and of his rights, and he must be in a position to exercise them and be afforded the rights and means of defence "before and during his trial", i.e., at every stage of the procedure. The right to be heard, and, if necessary, the right to call on the services of an interpreter, the right to call witnesses for the defence and produce evidence; these constitute the essential rights and means of defence. (11)

    ' Sub-paragraph ' (b) -- ' The principle of individual responsibility '

    4603 This sub-paragraph lays down the fundamental principle of individual responsibility; a corollary of this principle is that there can be no collective penal responsibility for acts committed by one or several members of a group. This principle is contained in every national legislation. It is already epressed in [p.1399] Article 33 of the fourth Convention, where it is more elegantly worded as follows: "No protected person may be punished for an offence he or she has not personally committed". (12) The wording was modified to meet the requirement of uniformity between the texts in the different languages and, in this particular case, with the English terminology ("individual penal responsibility"). Article 75, paragraph 4(b) , of Protocol I, lays down the same principle.

    ' Sub-paragraph ' (c) -- ' The principle of non-retroactivity '

    4604 This sub-paragraph sets out two aspects of the principle that penal law (13) should not be retroactively applied: ' nullum crimen sine lege ' and ' nulla poena sine lege. ' The ICRC draft was inspired by Articles 99 of the Third Convention, 67 of the fourth Convention and 15, paragraph 1, of the Covenant. (14) The proposal to adopt this wording was put forward in an amendment which served as a basis for discussion. (15) There was a long debate, followed by a vote in Committee resulting in a large majority. (16) The wording of the Covenant was retained despite some problems of interpretation owing to the specific context of non-international armed conflict. This solution was adopted out of a concern to establish in Protocol II fundamental guarantees for the protection of human beings, which would be equivalent to those granted by the Covenant in the provisions from which no derogation may be made, even in time of public emergency threatening the life of the nation. (17) Article 15 of the Covenant is one of those articles. In fact, the relevance of including the principle on non-retroactivity was never contested, but the first sentence of the sub-paragraph, and in particular the words "under national or international law", were not considered by everyone to be very clear.

    4605 The possible co-existence of two sorts of national legislation, namely, that of the State and that of the insurgents, makes the concept of national law rather complicated in this context.

    4606 The Conference followed the Covenant, though there was no real explanation given as regards the meaning to be attributed to the term "national law", which appears in the French text though not in the English text of this sub-paragraph (as the reference to "le droit national ou international" in French has been abbreviated to "the law" in English, the following comments apply more particularly to the French text, although clearly "the law" referred to in the English text does include national law). The interests of the accused and good faith require that this should be interpreted in the light of the initial ICRC proposal, i.e., that no one can be convicted for an act, or for failing to act contrary to a duty to act, when such an act or omission was not an offence at the time when it was committed.

    [p.1400] 4607 The reference to international law is mainly intended to cover crimes against humanity. A breach of international law should not go unpunished on the basis of the fact that the act or omission (failure to act) concerned was not an offence under the national law at the time it was committed. Some delegations suggested replacing the term under national or international law" by "under the applicable law" or even by "under applicable domestic or international law", (18) but the majority finally considered that it was best to retain the wording of the Covenant "in order to avoid being out of line".

    ' Sub-paragraph ' (d) -- ' The principle of the presumption of innocence '

    4608 This sub-paragraph sets out the principle of the presumption of innocence, which is implicitly contained in Article 67 of the fourth Convention. This refers to the "general principles of law". It is also contained in Article 14, paragraph 2, of the Covenant. In addition, it is laid down in Article 75 ' (Fundamental guarantees), ' paragraph 4(d), of Protocol I.

    ' Sub-paragraph ' (e) -- ' The right of the accused to be present at his own trial '

    4609 This sub-paragraph reiterates the principle laid down in Article 14, paragraph 3(d), of the Covenant. It is the result of a proposal in the Working Group which recommended "everyone charged with an offence shall have the right to be tried in his presence". (19) The proposal was not adopted in this form because a number of delegations argued that sentences in absentia are allowed. The right of the accused to be present at his trial, which is established here, should be understood as a right which the accused is free to exercise or not.

    ' Sub-paragraph ' (f) -- ' The right not to be compelled to testify against oneself or to confess guilt '

    4610 This sub-paragraph repeats Article 14, paragraph 3(g), of the Covenant. It was included as the result of a proposal made by the Working Group. (20)

    Paragraph 3 -- The right to be informed of judicial remedies and of the time-limits in which they must be exercised

    4611 It was not considered realistic in view of the present state of national legislation in various countries to lay down a principle to the effect that everyone has a right [p.1401] of appeal against sentence pronounced upon him, i.e., to guarantee the availability of such a right, as provided in the ICRC draft. (21) However, it is clear that if such remedies do exist, not only should everyone have the right to information about them and about the time-limits within which they must be exercised, as explicitly provided in the text, but in addition, no one should be denied the right to use such remedies. (22)

    4612 The term "judicial and other remedies" was originally adopted in English and, in order to maintain uniformity between the languages, was translated into French as "droits de recours judiciaires et autres". The word "autres" is superfluous in the French text since the words "droit de recours" cover all the possible remedies. However, in English the word "judicial" was not considered sufficient to include all the different types of remedies existing in various legal systems.

    Paragraph 4 -- The prohibition on pronouncing the death sentence upon persons under eighteen years and on carrying it out on pregnant women and mothers of young children

    4613 The authorities retain the right to pronounce the death sentence in accordance with national legislation with one exception: adolescents under the age of eighteen years at the time they committed the offence; the death sentence may be pronounced but may not be carried out on pregnant women or mothers of young children. According to the experts who were consulted it would not have been possible to impose a general prohibition on the death sentence as such a decision would not have taken into account all the penal systems in force. (23) Nevertheless, the ICRC expressed the wish that the penalty should not be executed before the end of hostilities. (24) This proposal, which was included in the draft, reflected the experience that executions result in an escalation of violence on both sides. Moreover, when hostilities have ceased, passions die down and there is a possibility of amnesty. Unfortunately, however modest the proposal, it did not gain a consensus. On the other hand, the limitation laid down in this paragraph was easily accepted in principle; it was inspired by Article 68, paragraph 4 , of the fourth Convention, (25) and by Article 6, paragraph 5, of the Covenant. The discussions were essentially about two points; fixing the age limit, and extending the rule in favour of pregnant women to cover also mothers of young children.

    4614 The age limit of eighteen years was adopted in order to harmonize with the Conventions and the Covenant, which also contain this age limit. The proposal concerning mothers of young children was put forward by a delegation. (26) The concept of "young children" as a legal term remained vague. For this reason a [p.1402] vote was requested on this point, and it was adopted by 37 votes to 2, with 9 abstentions. (27) In any event, the concept is wider than "new-born babies" in the sense of Article 8 ' (Terminology), ' sub-paragraph (a), of Protocol I. It is up to the responsible authorities to reach a judgment in good faith on what is meant by "young children". (28)

    4615 The results of the vote suggest that the concept will be broadly interpreted, and that in such special cases the death penalty will not be pronounced.

    4616 In any case, Article 76 ' (Protection of women), ' paragraph 3, of Protocol I, which has the same tenor, contains the recommendation not to pronounce the death penalty on pregnant women and on mothers having dependent infants and this recommendation should be considered here.

    Paragraph 5 -- Amnesty

    4617 Amnesty is a matter within the competence of the authorities. It is an act by the legislative power which eliminates the consequences of certain punishable offences, stops prosecutions and quashes convictions. (29) Legally, a distinction is made between amnesty and a free pardon. The latter is granted by the Head of State and puts an end to the execution of the penalty, though in other respects the effects of the conviction remain in being. This paragraph deals only with amnesty, though this does not mean that free pardon is deliberately excluded. The draft adopted in Committee provided, on the one hand, that anyone convicted should have the right to seek a free pardon or commutation of sentence, and on the other hand, that amnesty, pardon or reprieve of a death sentence may be granted in all cases. (30) That paragraph was not adopted in the end, in order to keep the text simple. Some delegations considered that it was unnecessary to include it because national legislation in all countries provides for the possibility of a free pardon. (31)

    4618 The object of this sub-paragraph is to encourage gestures of reconciliation which can contribute to reestablishing normal relations in the life of a nation which has been divided.

    ' S.J. '

    * (1) [(1) p.1396] See O.R. VIII, pp. 346-355, CDDH/I/SR.33, paras. 22-71; pp. 357-365, CDDH/I/SR.34;

    (2) [(2) p.1396] The execution of penalties is not dealt with in this article -- with the exception of the execution of the death penalty on pregnant women and mothers of young children, which is prohibited by para. 4;

    (3) [(3) p.1397] Dissident armed forces and organized armed groups within the meaning of Article 1 of the Protocol, which are opposed to the government in power, must be able to apply the Protocol. See supra, p. 1353;

    (4) [(4) p.1397] See Arts. 86, 89-108 of the Third Convention and Arts. 64-78 of the Fourth Convention;

    (5) [(5) p.1397] Hereinafter referred to as the Covenant;

    (6) [(6) p.1397] Draft Arts. 9 and 10. It should be noted that the present heading of the article is incomplete, since it mentions only penal prosecutions, while the provision also lays down principles of penal law;

    (7) [(7) p.1397] O.R. IV, pp. 35-36, CDDH/I/262;

    (8) [(8) p.1398] See ' Commentary III, ' pp. 411-412 (Art. 84); pp. 484-492 (Art. 105);

    (9) [(9) p.1398] See draft Art. 10, para. 1;

    10) [(10) p.1398] See O.R. X, p. 145, CDDH/I/317/Rev.1. The amendment submitted during these deliberations is mentioned, but the text is not published in the Official Records as it was a working document;

    (11) [(11) p.1398] See ' Commentary Drafts, ' p. 142;

    (12) [(12) p.1399] ' Commentary IV, ' p. 224 (Art. 33);

    (13) [(13) p.1399] The term "law" is used here in a broad sense, as lex encompasses custom. (14) See draft Art. 9, para. 2;

    (14) [(14) p.1399] See draft Art. 9, para. 2;

    (15) [(15) p.1399] O R. IV pp. 35-36 CDDH/I/262;

    (16) [(16) p.1399] O.R. X p. 130, CDDH/234/Rev.1, para. 87;

    (17) [(17) p.1399] Covenant, Art. 4, paras. 1-2;

    (18) [(18) p.1400] See O.R. X, p. 144, CDDH/I/317/Rev.2;

    (19) [(19) p.1400] Ibid;

    (20) [(20) p.1400] Ibid;

    (21) [(21) p.1401] Draft Art. 10, para. 2;

    (22) [(22) p.1401] This clarification was proposed in an amendment. It was not adopted apparently to avoid making the text too complicated. See O.R. IV, p. 33, CDDH/I/259;

    (23) [(23) p.1401] See O.R. VIII, pp. 357-365, CDDH/I/SR.34, paras. 2 ff;

    (24) [(24) p.1401] Draft Art. 10, para. 3;

    (25) [(25) p.1401] See ' Commentary IV ', pp. 346-347 (Art. 68);

    (26) [(26) p.1401] O.R. IV, p. 33, CDDH/I/259;

    (27) [(27) p.1402] O.R. X, p. 131, CDDH/234/Rev.1, para. 90;

    (28) [(28) p.1402] The Conventions provide some sort of guide in this respect by mentioning mothers of children under
    seven years old (Art. 14, para. 1, Fourth Convention);

    (29) [(29) p.1402] "Amnesty" is described as an act of oblivion, a general pardon of past offences by the ruling authority (' Shorter Oxford English Dictionary ', 1978, p. 60). Its mode of operation and effect may obviously differ from country to country. The French definition ("Amnistie: acte du législateur qui a pour effet d'éteindre l'action publique ou d'effacer une peine prévue pour une infraction et, en conséquence, soit d'empêcher ou d'arrêter les poursuites, soit d'effacer les condamnations."), as given in the ' Grand Dictionnaire encyclopédique Larousse ', Vol. I, 1982, p. 414, indicates that it is an act of the legislative whereby the public prosecution of certain offences is ended and the penalty thereon is cancelled, so that no more prosecutions will be instituted, and those already instituted will be discontinued and any convictions for such offences will be quashed;

    (30) [(30) p.1402] O.R. X, p. 133, CDDH/234/Rev.1, para. 95;

    (31) [(31) p.1402] O.R. VII, pp. 94 and 96, CDDH/SR.50, para. 79 and 99;