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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- ESCAPES: III. CONNECTED OFFENCES
This Article was developed from Article 51
of the 1929 Convention (1).
Escape or attempt to escape is inevitably accompanied by certain acts which constitute breaches of the regulations of captivity, the laws and regulations in force in the armed forces of the Detaining Power, and even of ordinary law.
Although such breaches must obviously not be left unpunished, they should nevertheless be considered in the light of the honourable motive which inspired them.
This was realized in 1929, and Articles 51
of the 1929 Convention were especially intended to prevent any recurrence of the abuses committed during the First World War (2).
In general, and with only a few isolated exceptions, the 1929 rules were respected during the Second World War (3).
[p.453] PARAGRAPH 1. -- ATTEMPT TO ESCAPE NOT AN AGGRAVATING
The 1929 Convention referred to "crimes or offences against persons or property". The new text speaks only of "offence", and this term covers any breach of military laws and regulations or of ordinary law.
Reference has already been made above to the reasons why the drafters of the Convention specified that prisoners of war who attempt to escape are liable only to a disciplinary punishment. The present provision is based on the same considerations, and some authors have even maintained that the existence of extenuating circumstances should be recognized, except in particularly serious cases involving murder or assault and battery (4).
In practice, an impartial judge is required to take account of all the circumstances relating to the offence, and must not merely abstain from considering escape as an aggravating circumstance; should he think fit, he will recognize the existence of extenuating circumstances.
PARAGRAPH 2. -- 0FFENCES LIABLE TO
DISCIPLINARY PUNISHMENT ONLY
As the first phrase of this paragraph makes clear, this is simply a special instance of application of the general principle stated in Article 83
of the 1929 Convention (5) recommended that the competent authorities should exercise the greatest leniency in considering whether offences committed during an attempt to escape should be punished by judicial or by disciplinary measures, and the Stockholm Conference approved a similar text. The present wording is more detailed and is an improvement on the preceding versions. Furthermore, the list of offences which it contains is not an exhaustive one; any offences committed by prisoners of war "with the sole intention of facilitating their escape and which do not entail any violence against life or limb" will occasion disciplinary punishment only (6). This will apply if forgeries are used (counterfeit money, etc.) or in the [p.454] case of any hindrance of traffic, abandonment of military equipment, bribery, etc.
These considerations are based on the notion that offences committed in connection with an attempt to escape are devoid of criminal intent (7).
To what extent can the advantage afforded by the last paragraph of Article 91
be applied to offences committed in connection with escape? In other words, if a prisoner is recaptured after having successfully escaped on a previous occasion, can he be punished for offences committed in connection with that escape, and if so to what extent?
A distinction must be made between the offences referred to by paragraph 1 of the present Article, which are brought before the courts, and those to which paragraph 2 refers, which are punishable only by disciplinary measures. It seems reasonable that the advantage accruing from the fact of escape should also apply to offences in the latter category. Otherwise, the application of the last paragraph of Article 91
would be illusory (8).
It has rightly been pointed out that offences against public property may be of considerable scope, and that a prisoner's honourable motive in escaping does not fully justify offences which prejudice the interests of the community and in fact amount to acts of war (9).
Additional difficulties have sometimes arisen from the wearing of civilian clothing; during the Second World War, some Detaining Powers stated their intention of considering prisoners of war in civilian clothing as spies and no longer as prisoners of war (10). This matter is settled by the present provision: a prisoner of war retains that legal status until such time as he has made good his escape. It is absolutely forbidden for him to commit any belligerent act, to carry weapons, or to engage in armed resistance, otherwise he will be liable to be treated as a sniper or saboteur.
[p.455] PARAGRAPH 3. -- ACCOMPLICES
Since a prisoner of war who attempts to escape is liable only to disciplinary punishment those who aid or abet him must not be treated more severely.
At the 1929 Conference, some delegations maintained that accomplices should be exempt from any punishment, even disciplinary. This proposal was rightly rejected. Furthermore, the punishment of accomplices is consistent with the principles of penal law. Escape is an offence against the Detaining Power. The privilege of impunity which is granted to a prisoner of war who commits this offence is based solely on the fact that captivity is interrupted and this is not so in the case of accomplices.
* (1) [(1) p.452] See below, p. 731;
(2) [(2) p.452] See SCHEIDL, op. cit., p. 443;
(3) [(3) p.452] See BRETONNI RE, op. cit., pp. 368-372;
(4) [(1) p.453] See BRETONNI RE, op. cit., p. 367;
(5) [(2) p.453] See below, p. 731;
(6) [(3) p.453] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 491-492;
(7) [(1) p.454] See ' Report on the Work of the Conference of
Government Experts, ' p. 214;
(8) [(2) p.454] SCHEIDL is not of this opinion and considers
that such offences, unlike those actually committed during
captivity, remain punishable since they cannot be
attributed to the fact of captivity, and that the
legislation of the Detaining Power should therefore be
fully applicable (SCHEIDL, op. cit., p. 450). It should,
however, be noted that Scheidl's reasoning is based on
Article 51, paragraph 1, of the 1929 Convention, which
made no distinction between offences punishable by
disciplinary measures and those to which judicial
penalties are applicable. (See also FLORY, op. cit., p.
(9) [(3) p.454] Reference may also be made to FREY, op. cit.,
pp. 91-97, for some interesting facts concerning the
practices of various belligerent States during the Second
(10) [(4) p.454] See SCHEIDL, op. cit., pp. 451-452;