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Commentary - Art. 108. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #III. Judicial proceedings
    ARTICLE 108. -- EXECUTION OF PENALTIES. PENAL REGULATIONS


    [p.501] The first sentence of paragraph 3 of this Article is an expanded version of Article 67 of the 1929 Convention (1); the rest of the Article is new.
    The Convention affords important safeguards to prisoners of war confined following a judicial sentence. Some of these safeguards result from general provisions applicable to all the conditions relating to internment, such as Article 13 (humane treatment), Article 14 (respect for the person of prisoners, special regard due to women), Article 16 (equality of treatment). Other provisions refer expressly to the execution of penalties and specifically prohibit cruelty, any attack on a prisoner's honour (Article 87 ), and discriminatory treatment (Article 88 ).

    PARAGRAPH 1. -- GENERAL CONDITIONS OF INTERNMENT

    1. ' First sentence. -- Assimilation to members of the armed forces
    of the Detaining Power '

    This provision should be compared with Article 88, paragraph 1 , which states that prisoners of war undergoing punishment must not receive more severe treatment than that applied in respect of the same punishment to members of the armed forces of the Detaining Power of equivalent rank. The best means of ensuring this is obviously for prisoners of war to serve their sentence in the same conditions and the same establishments as members of the armed forces of the Detaining Power.
    As has already been pointed out several times, however, the application of the principle of assimilation may be somewhat dangerous (especially as regards food, to which Article 26 above refers) when there is too great a difference between the customary practices in the armed forces of the Detaining Power and the minimum standard [p.502] applied in the armed forces to which the prisoner of war belongs, or when those practices do not conform to the requirements of humane treatment. With this in mind, the authors of the Convention provided additional safeguards which are contained in the second sentence of the present paragraph.
    Furthermore, the general safeguards referred to above will also override the principle of assimilation if the case arises.

    2. ' Second sentence. -- Conditions of health and humanity '

    The conditions of health and humanity must conform to the requirements laid down in the relevant Articles of the Convention.
    Article 87, paragraph 3 , expressly forbids "imprisonment in premises without daylight and, in general, any form of torture and cruelty". As regards conditions of health, reference should be made, as in Article 97 above, relating to the execution of disciplinary punishment, to Articles 25 and 29 of the Convention, which lay down minimum standards of accommodation for prisoners of war.

    PARAGRAPH 2. -- WOMEN PRISONERS OF WAR

    The conditions set forth in paragraph 1 are applicable a fortiori to women prisoners of war, pursuant to Article 88, paragraph 3 , which states: "In no case may a woman prisoner of war be ... treated whilst undergoing punishment more severely than a male member of the armed forces of the Detaining Power dealt with for a similar offence". Moreover, they may not be "treated whilst undergoing punishment more severely than a woman member of the armed forces of the Detaining Power dealt with for a similar offence" (Article 88, paragraph 2 ), but "with all the regard due to their sex" (Article 14, paragraph 2 ); in accordance with the latter provision, the present paragraph states that women prisoners of war must be confined in separate quarters and must be under the supervision of women. Article 97, paragraph 4 , which relates to the execution of disciplinary punishments, contains a similar provision. It should also be noted that the term "separate quarters" includes not only the installations referred to in Article 25 of the Convention, but also those mentioned in Article 29 .

    [p.503] PARAGRAPH 3. -- ESSENTIAL SAFEGUARDS

    As already seen in connection with Article 98 above, which relates to the execution of disciplinary punishment, disciplinary confinement does not involve any suppression of the principal safeguards afforded to prisoners of war by the present Convention, and the number of provisions rendered inapplicable by the fact of disciplinary confinement is therefore small (2).
    The same remarks are applicable to the case of judicial confinement, and reference should therefore be made to the commentary on Article 98 .

    1. ' First sentence. -- Reservation: Articles 78 and 126 '

    This clause, which states that prisoners of war retain the benefit of the provisions of Articles 78 and 126 , is similar to that contained in Article 89, paragraph 1 . Article 78 concerns the right to make complaints and requests; Article 126 relates to the right of scrutiny of the Protecting Power and the International Committee of the Red Cross. A prisoner of war undergoing confinement may therefore not be deprived either of the right of free expression, or of the right to get in touch at any time with the delegates and representatives of the two authorities mentioned, whatever the penitentiary System to which he is subjected.
    In fact, these Articles are among the provisions which are not rendered inapplicable by confinement. Because of their great importance, however, and also the experience gained during the Second World War, special reference was made to them. One should also refer to the commentary on Articles 78 and 126 .

    2. ' Second sentence. -- Correspondence, relief, health,
    spiritual assistance '

    A. ' Correspondence '. -- In accordance with Article 71 , prisoners of war must be allowed to send at least two letters and four cards monthly. No limit is specified as regards correspondence addressed to prisoners of war, and any such restrictions may only be imposed by the Power on which prisoners of war depend.
    [p.504] The present provision merely states that prisoners of war "shall be entitled to receive and despatch correspondence"; if restrictions are imposed on correspondence sent by a prisoner of war, the minimum of two letters and four cards monthly must still be respected. There is no restriction on correspondence received by prisoners of war, unless any such restrictions are applied to all the prisoners of war who depend on the same Power. The rules governing censorship and any temporary prohibition of correspondence are contained in Article 76, paragraphs 1 and 3 .

    B. ' Relief '. -- Prisoners of war undergoing confinement are entitled to receive at least one relief parcel monthly, but the size of the parcel is not specified; in this connection, one should refer to the parcels usually received by prisoners of war depending on the same Power (3). Parcels will be examined in accordance with Article 76, paragraph 2 . The Detaining Power is, of course, at liberty to allow a greater number of parcels to be distributed. In our opinion, any parcels addressed to prisoners of war which cannot be delivered to them should, by analogy, be disposed of in accordance with Article 98, paragraph 5 . It should be noted, however, that the Detaining Power is not entitled to withhold parcels from prisoners of war sentenced to a judicial punishment, whereas under Article 98 it may do so in the case of those undergoing a disciplinary punishment. The reason for this difference is that confinement as a disciplinary punishment may not exceed thirty days.

    C. ' Exercise in the open air '. -- This provision, which may be compared with Article 38 , is essential for the health of prisoners of war undergoing confinement. They must be able to walk and run, and a sufficiently large space must therefore be available to them. The provision states that they must be able to take "regular" exercise, whereas Article 98, paragraph 3 , states that prisoners of war undergoing confinement as a disciplinary punishment must be allowed to exercise "at least two hours daily".

    D. ' Medical attention '. -- Article 30, paragraph 4 , states: "Prisoners of war may not be prevented from presenting themselves to the medical authorities for examination". As a general rule, a daily medical inspection should be held in prisoner-of-war camps, and this requirement is expressly mentioned in Article 98, paragraph 4 , in [p.505] regard to prisoners of war undergoing confinement as a disciplinary punishment. It does not mean, however, that the doctor is obliged to receive them every day; he will decide what action to take on requests of prisoners of war undergoing confinement, in order to avoid abuse and to ensure the smooth operation of the medical service. Prisoners of war must, however, be able to present themselves for medical examination or to ask that the doctor should visit them. Furthermore, while undergoing confinement they must have the monthly medical inspections provided for in Article 31 .
    If need be, prisoners of war will be removed to hospital, as provided for in Article 98, paragraph 4 .

    E. ' Spiritual assistance '. -- Confinement must not prevent prisoners of war from freely exercising their religious duties (Article 34 ) within the limits fixed by the prison administration, or from receiving assistance from their chaplains (Article 35 ).

    3. ' Third sentence. -- Penalties '

    The Conference of Government Experts was of the opinion that penalties inflicted upon prisoners of war serving judicial sentences should be subject to the provisions of Article 89 (4). The International Committee thought it difficult to assimilate in all respects the penalties inflicted on prisoners of war detained in prison to the disciplinary punishment inflicted on prisoners of war in camps, and considered it preferable to mention Article 87, paragraph 3 (5); reference may be made to the commentary on that provision.


    * (1) [(1) p.501] See below, p. 739;

    (2) [(1) p.503] In this connection, it may be noted that under
    Article 67 of the 1929 Convention, prisoners of war
    sentenced to a penalty could not be deprived of the
    benefit of Article 42 of the same Convention (right of
    complaint);

    (3) [(1) p.504] See Article 72 above;

    (4) [(1) p.505] See ' Report on the Work of the Conference of
    Government Experts, ' p. 227;

    (5) [(2) p.505] See ' XVIIth International Red Cross
    Conference, Draft Revised or New Conventions for the
    Protection of War Victims, ' p. 118;