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Commentary - Art. 118. Part III : Status and treatment of protected persons #Section IV : Regulations for the treatment of internees #Chapter IX : Penal and disciplinary sanctions
    [p.478] ARTICLE 118. -- PENALTIES


    PARAGRAPH 1. -- EXTENUATING CIRCUMSTANCES

    This paragraph is the only part of the Article which aroused any discussion during the preparatory work. Drawn up by the International Committee of the Red Cross on the same basis as the corresponding text applying to prisoners of war (Third Convention, Article 87, paragraph 2 ), it met with opposition from those who considered the situation of civilian internees as being very different in this respect from that of prisoners of war. They pointed out that internees, in general, lived and worked in the territory of the Detaining Power, drawing their livelihood and that of their family from it. These factors laid upon them a certain obligation of loyalty towards that power, although they were not, in the full meaning of the term, its nationals. It was pointed out, furthermore, that the freedom given to the courts or the authorities to vary the length of sentence was contrary to several national legal systems which would have to be amended if this principle were upheld (1). Despite these objections, the Geneva Conference adopted the same rules with regard to
    internees as with regard to [p.479] prisoners of war, as the International Committee of the Red Cross had suggested.
    This generous decision was based on the principle, already stated several times, that internees should not be treated less favourably than prisoners of war. Moreover, despite some valid objections, the fact of being an internee can certainly diminish the guilt of an offender. In general, penal codes all agree that the judge shall determine the sentence according to the degree of guilt of the offender and taking into account his motives, antecedents and personal situation (2). The application of this legal idea led naturally to acceptance of the notion that extenuating circumstances may be pleaded in favour of internees, such as, among others, the desire to serve the interests of their country of origin (an honourable motive) which can be taken into consideration in order to reduce the punishment (3). While the expression of favourable opinions regarding enemy interests can be prohibited by a State in the case of its own nationals, it could not, without being excessively severe, be as strict with regard to persons who were not its nationals. A
    foreign civilian internee must not, in any case, be prosecuted and punished in the same way as a national of the country of internment. Internment is a means by which a Detaining State can guard its own security, and is damaging enough to the internees by itself without an attempt being made to add to their burdens.
    The authors of the Convention went very far in their anxiety to make allowances for the internees' situation. In penal law, when an Act leaves the judge free to reduce the punishment, he is nevertheless obliged to abide by a legal minimum punishment for each type of offence; the Convention, on the contrary, provides that the judges and authorities shall be free not only to reduce the punishment for an offence but even to award less than the minimum sentence for the particular category of infraction (4).

    PARAGRAPH 2. -- PROHIBITION OF CRUEL TREATMENT

    This provision reproduces almost in its entirety the third paragraph of Article 46 of the 1929 Convention relative to the Treatment of Prisoners of War. Articles 76 , 124 and 125 of this Convention also [p.480] prohibit the imprisonment of internees in premises without daylight. It should be understood that the light must be sufficient to enable the detainee to see the things around him clearly and to enable him to read and write without difficulty.
    The prohibition of any form of cruelty is a very general provision which we have already met with in Article 32 and which will be found again in Article 119 which deals specially with disciplinary punishments.

    PARAGRAPH 3. -- RETURN TO NORMAL CONDITIONS OF
    INTERNMENT

    When they have undergone their punishment, whether by order of court or as a disciplinary measure, internees must go back completely to the conditions in which they were living before their punishment. This attitude is compulsory for the Detaining Power as a result of the system already accepted for prisoners of war under Article 48, paragraph 1 , of the 1929 Convention reproduced textually here.
    The case of internees again detained after attempted escape must be excepted, however, and paragraph 2 of Article 120 expressly states that in such cases Article 118 is not applicable.

    PARAGRAPH 4. -- THE DEDUCTION OF DETENTION WHILE
    AWAITING TRIAL FROM SENTENCES OF IMPRISONMENT

    This again is a provision in the interests of the accused. The penal codes in general leave this matter to the judgment of the magistrate. The Convention has gone further by insisting that in all cases detention while awaiting trial shall be deducted from any disciplinary or judicial penalty involving confinement. This is a confirmation of the principle stated in Article 69 .

    PARAGRAPH 5. -- INFORMING THE INTERNEE COMMITTEES

    This provision enables the Internee Committees to play their part as internees' representatives in a most important particular, since punishments are involved. Moreover, action by the Internee Committee may be necessary to ensure, where applicable, that Article 101 is observed, providing for the transmission of complaints and requests from internees to the Protecting Power. Indeed, no reference was made to Article 101 in Article 125 , which deals with the essential safeguards in cases of disciplinary punishment, nor to Article 76 , which applies to judicial penalties, and a doubt may have arisen in [p.481] this respect (5). Furthermore, the Internee Committees have the task, under Article 102 , of representing the internees with the authorities of the Detaining Power itself. When informed of judicial proceedings taken against internees, they may also make sure that such proceedings are properly carried out and that the accused are assured of judicial guarantees even without having to forward a request to the Protecting Power.


    Notes: (1) [(2) p.478] See ' Remarks and Proposals, ' p. 82;

    (2) [(1) p.479] See particularly the Swiss Penal Code
    (Articles 63 and 64);

    (3) [(2) p.479] It is in the same spirit that in occupied
    territory those who commit some offences are interned and
    not imprisoned. See the commentary on Article 68 of this
    Convention;

    (4) [(3) p.479] Several systems of legislation have been
    modified already to take this provision into account. This
    has been the case particularly with Switzerland and
    Yugoslavia;

    (5) [(1) p.481] This doubt does not exist with regard to
    prisoners of war, since Article 108 expressly reserves
    their right to put forward complaints or requests during
    the time of imprisonment;