ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 97. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #II. Disciplinary sanctions
    ARTICLE 97. -- EXECUTION OF PUNISHMENT: I. PREMISES


    Although the heading is a general one, the present Article, like Article 98 , deals only with punishment by confinement, and not with the other disciplinary penalties listed in Article 89 .
    With the exception of the last paragraph which is new, this Article embodies the provisions of Article 56, paragraphs 1, 2 and 3 , and Article 49, paragraph 2 , of the 1929 Convention (1).

    PARAGRAPH 1. -- PROHIBITION OF ANY TRANSFER TO PENITENTIARY
    ESTABLISHMENTS

    It is indisputable -- and the Conference of Government Experts recognized this (2) -- that penitentiary establishments very often afford better material conditions than a place of confinement in a camp. In fact, prisoners of war who were not undergoing confinement have sometimes been accommodated in prisons.
    The delegates to the Conference nevertheless considered that, whatever the reason, it was an affront to military dignity to assimilate prisoners of war undergoing disciplinary punishment with ordinary criminals.
    [p.463] The same prohibition is applicable to the case of prisoners of war serving a judicial sentence in a military prison (Article 108, paragraph 1 ).
    Thus, although it is not actually specified that the sentence must be served in a prisoner-of-war camp, this is implicit in the fact that any transfer to a penitentiary establishment is forbidden. There is nothing, however, against transferring an offender from one camp to another, provided that the latter is a regular prisoner-of-war camp, offering all the guarantees laid down by the Convention. This also applies to transfer from a labour camp to the main camp.

    PARAGRAPH 2 -- PREMISES -- SANITARY REQUIREMENTS

    The obligation to carry out disciplinary punishments in prisoner-of-war camps almost invariably raises problems for the camp commander which are difficult of solution. The usual method is to set aside a hut or part of a hut for the purpose and to fit out a number of cells here. Too often, during the Second World War, cells designed for one or two prisoners were occupied by four or five at the same time (3).
    One solution to which camp commanders might have recourse would be to make more frequent use of the other penalties permissible under Article 89 rather than confinement.
    The first drawback of such overcrowding is the danger to health. It is quite clear that in such cases the provisions of Article 25 , which are nevertheless referred to expressly here, are not respected nor are they respected when cellars, basements and other similar premises are used for disciplinary punishment, since this is contrary to Article 87, paragraph 3 , which forbids imprisonment in premises without daylight.
    The sanitary requirements relate not only to the premises but also to the prisoners of war; during the Second World War, the conditions laid down by the 1929 Convention in this respect were not always properly observed (3). Reference should also be made to the commentary on Article 29 , and it should be emphasized that is no reason why prisoners undergoing imprisonment should not have the same facilities in regard to their personal cleanliness as other prisoners of [p.464] war. On the contrary, as the premises in which disciplinary punishments are served are often inadequate, the Detaining Power should pay special attention to the personal cleanliness of those detained there.

    PARAGRAPH 3. -- CONFINEMENT OF OFFICERS AND PERSONS OF
    EQUIVALENT STATUS

    This provision should be compared with Article 98, paragraph 2 , which safeguards the prerogatives of officers; these two clauses were contained in the same Article in the 1929 Convention. One of the essential prerogatives of officers and persons of equivalent status in all armed forces, except of course in exceptional cases, is to have accommodation separate from that of the other ranks; a fortiori, this must also apply in case of confinement. Officers frequently serve a punishment of confinement in their quarters, and if that is not possible they must be assigned to premises which offer at least all the safeguards stated in the present Article (4).

    PARAGRAPH 4. -- WOMEN PRISONERS OF WAR

    The present provision was inserted because during the Second World War a certain number of women were members of the armed forces; it may be compared with the other provisions of the Convention [p.465] relating to women (5). The Detaining Power is naturally free to treat women undergoing imprisonment less harshly than men, or to provide them with more comfortable accommodation. It must, however, respect in full the present provision which is designed to protect the honour and modesty of women prisoners of war.
    Reference should be made in particular to Article 25, paragraph 4 , which states that women prisoners of war must have separate dormitories and Article 29, paragraph 2 , which requires separate conveniences to be provided.


    * (1) [(1) p.462] See below, pp. 732-733;

    (2) [(2) p.462] See ' Report on the Work of the Conference of
    Government Experts, ' pp. 218-219;

    (3) [(1) p.463] See BRETONNI RE, op. cit., pp. 380-381;

    (4) [(1) p.464] In this connection, it may be useful to recall
    the text of Article 54 in the first draft of the 1929
    Convention: "The premises in which disciplinary sentences
    are undergone by officer prisoners of war shall conform to
    the requirements of hygiene, and shall be sufficiently
    large, dry, ventilated, heated during the cold season and
    have artificial lighting from twilight until 9 p.m. They
    shall be furnished with at least a bed, sheets, blankets,
    a table, a chair and a wash-basin."
    The latter conditions are those usually enjoyed by
    officers on active service.
    Article 57, which related to non-commissioned
    officers and other ranks, read as follows:
    "The premises in which disciplinary sentences are
    undergone by prisoners of war who are non-commissioned
    officers or men shall conform to the requirements of
    hygiene and shall be sufficiently light, dry, ventilated,
    and heated during the cold season.
    "They shall be furnished with a bunk consisting of a
    wooden board without a palliasse. The prisoner undergoing
    punishment shall, however, be provided with a palliasse
    for one night out of four. He shall be provided with a
    blanket, and if the temperature is below 7.5 degrees
    Centigrade he shall be given an additional blanket.
    Prisoners of war undergoing punishment shall retain their
    uniform, including greatcoat.";

    (5) [(1) p.465] See the commentary on Article 14, paragraph 2,
    above, and also that on Article 88, paragraphs 2 and 3;