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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
[p.238] CHAPTER VI
' Discipline '
The prime purpose of measures of discipline is to ensure that the prisoner of war remains in the hands of the Detaining power, so that he can neither do any harm to that Power within the camp, nor by escaping be enabled to take up arms again. It must not be forgotten that his life has been spared only on condition that he is no longer a danger to the enemy.
It should also be realised, however, that the Detaining Power can carry out its duty to treat prisoners of war in accordance with the Convention only if it ensures that discipline is maintained in prisoner-of-war camps. And in fact disciplinary measures do assist the application of standards designed to improve the situation of the prisoners in the camp.
A considerable part of the Convention is therefore composed of Articles providing for the establishment or strengthening of discipline in prisoner-of-war camps: Article 21
(partial or complete release on parole or promise); Articles 39
to 42 (which are examined in this chapter); Articles 82
(penal and disciplinary sanctions); Articles 79
to 81 (prisoners' representatives). One may also refer to Articles 82
and 41, paragraph 2
, which relate to the laws, regulations and orders applicable to prisoners of war.
In considering the question of prisoners of war submitting to or even supporting the system of discipline established by the detaining State, a clear distinction must be made between the dual aspects of discipline.
To the extent that the Convention must be operative in the normal way, there is no doubt that prisoners of war are legally required to respect the rules set forth in it. This is indisputable if captivity is to be bearable for prisoners of war and they are to receive humane treatment. Otherwise, the Detaining power would have no alternative but to resort to force in order to overcome lack of co-operation on the part of the prisoners. It is therefore essential for the implementation of the Convention that prisoners of war should be subject to military discipline.
The same reasoning does not apply, however, as regards the principal aspect of detention, that is to say the Detaining Power's interest in keeping prisoners of war captive. There can be no question [p.239] of it being the duty of prisoners of war to remain in the hands of the enemy. Although an attempt to escape is punishable by disciplinary measures, one cannot consider it as being a breach of any duty on the part of prisoners of war to obey the Detaining Power (1).
* (1) [(1) p.239] The position of a prisoner of war in this
respect is expressly recognized by Article 87, paragraph
2, which instructs the courts or authorities of the
Detaining Power to "take into consideration, to the widest
extent possible, the fact that the accused, not being a
national of the Detaining Power, is not bound to it by any
duty of allegiance and that he is in its power as the
result of circumstances independent of his own will". See
JACCARD, ' Capture et captivité en cas de guerre
continentale ', thesis, Lausanne, 1922, pp. 103 ff.;