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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- CHOICE OF DISCIPLINARY OR
Here there is some divergence between the English and French texts. The literal translation of the French version would be as follows: "In determining whether an offence committed by a prisoner of war must be punished by a judicial or a disciplinary penalty..." ("Lorsqu'il s'agira de savoir si une infraction commise par un prisonnier de guerre doit être punie disciplinairement ou judiciairement..."). The English text speaks of proceedings, whereas the French text speaks of punishment. The latter refers to an offence actually committed by a prisoner of war, while the English text mentions only the allegation of such an offence.
In both cases, however, a special procedure must be followed because the prisoner of war has no bond of allegiance vis-à-vis the Detaining Power and must therefore be treated with leniency when his case is considered.
Whether it is a matter of instituting proceedings or of imposing sanctions, a decision as to whether such proceedings or sanctions should be judicial or disciplinary in nature can be taken only after consideration of the "honourable motives" which prompted the prisoner of war to act in that manner.
[p.411] The result will therefore be the same whenever the offence is proved to have been committed. The difference between the two texts concerns only the existence of the offence; the important thing is that once the fact of the offence is established, disciplinary rather than judicial measures should be adopted because of the leniency which must be exercised. On this point, which is the essential part of the present Article, the two texts are in full agreement.
It had already been stated in Article 52
of the 1929 Convention that the competent authorities should "exercise the greatest leniency" in considering whether facts in connection with escape or attempted escape should be punished by disciplinary or by judicial measures.
The authors of the new Convention retained that provision in Article 93, paragraph 2
, but they decided to supplement it and to emphasize its general scope by inserting the present Article at the beginning of the Chapter relative to penal and disciplinary sanctions (1).
The Convention recommends that as regards the choice between penal and disciplinary sanctions, the latter should be adopted in preference "wherever possible". Because of his special status, and regardless of the two factors already referred to -- honourable motives and absence of any duty of allegiance -- a prisoner of war is subject more than anyone else to the influences which are generally recognized as extenuating circumstances: extreme distress, great temptation, anger or severe pain. This special situation justifies the "greatest leniency" which the Convention demands, especially since apart from the provisions contained in the present Chapter the prisoner of war is not subject to special legislation, but to "the laws, regulations and orders in force in the armed forces of the Detaining Power" (Article 82, paragraph 1
* (1) [(1) p.411] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 304 and