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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.

Commentary - Art. 117. Part III : Status and treatment of protected persons #Section IV : Regulations for the treatment of internees #Chapter IX : Penal and disciplinary sanctions

ARTICLE 117

. -- GENERAL PROVISIONS. APPLICABLE

LEGISLATION

Articles 117

to 126 should be read together with Articles 64

to 78 which deal with penal legislation applicable to all protected persons on occupied territory.

When they are interned in occupied territory, internees obviously do not thereby lose the benefit of protection. Internees detained in the territory of a Party to the conflict are covered by Article 126

, which declares Articles 71

-76 applicable to them. These two parts of the Convention are therefore complementary and must not be considered separately.

PARAGRAPH 1. -- MAINTENANCE OF THE LEGISLATION IN FORCE

The idea of maintaining in force the penal laws of the country of internment corresponds, in the case of occupied countries, to the [p.477] principle laid down in Article 43

of the Hague Regulations that the laws in force in the country must be respected unless the occupant is absolutely prevented. The same principle is embodied in Article 64

of this Convention. The most humane decision, as far as internees or the inhabitants of an occupied territory are concerned, would certainly consist in considering them as subject to the same laws and the same courts as before the events. In fact, Article 115

, which deals with the facilities granted to internees in case of litigation, covers all legal proceedings "in any court" and thus postulates by implication that the regulations and procedures in force must be maintained, in both penal and civil cases.

Caution with regard to new situations not covered by the laws in force is quite understandable, however, and the Convention aims at settling such cases.

PARAGRAPH 2. -- DISCIPLINARY PUNISHMENTS

This provision reproduces word for word the text of paragraph 2 of Article 87

of the Third Convention. It was drawn up to restrict the effect of exceptional laws passed under pressure of circumstances. With particular regard to relations between prisoners of war and the women of the country of detention, certain States had taken very serious steps, going so far in some cases as to proclaim capital punishment as a means of enforcing the absolute prohibition of sexual intercourse. While leaving the Detaining Power the right to protect itself against the consequences of special and novel situations, there was a justified desire to limit the severity of repression. In such cases, the Detaining Power will only be able to inflict disciplinary punishments. These punishments are not those authorized under ordinary law, but those inflicted for infractions of the internment regulations. A restrictive list is given in Article 119

PARAGRAPH 3. -- "NON BIS IN IDEM"

This clause simply reproduces paragraph 3 of Article 52

of the 1929 Convention relative to the Treatment of Prisoners of War.

Worth noting, in this connection, is a comment made by one delegation to the Geneva Conference, to the effect that in penal law certain sentences can be reconsidered in the interest of the accused if fresh evidence comes to light, whereas severer punishment cannot be inflicted as a result of such evidence (1).

Notes: (1) [(1) p.477] See ' Final Record of the Diplomatic

Conference of Geneva of 1949, ' Vol. II-A, pp. 684-685;