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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- PROCEDURE: II. COMPETENT AUTHORITIES AND
RIGHT OF DEFENCE
[p.458] This provision is based on Article 47, paragraph 1
, and Article 59
of the 1929 Convention (1).
As has already been seen, disciplinary power is vested in the system of hierarchy. The authority to give orders is accompanied by the right to sanction any failure to carry out those orders. But whereas authority may be exercised at various levels of the armed forces, this is not so as regards the power of compulsion which must be accompanied by adequate safeguards of impartiality. These safeguards consist of a proper determination of the facts, the designation of the competent authority, and the means of defence available to the accused.
PARAGRAPH 1 -- PROPER DETERMINATION OF THE FACTS
In order to make a proper determination, it is essential to investigate the facts immediately. The present paragraph therefore merely contains in another form, the idea which was previously expressed in Article 47, paragraph 1
, of the 1929 Convention concerning the immediate preparation of a statement of the facts of the case.
[p.459] The measures to be taken will include questioning of the accused, hearing of witnesses, on-the-spot investigations, etc., as prescribed by the authority qualified to award punishment. Where appropriate, however, certain preliminary measures may be taken by other persons, particularly in urgent cases and more especially by the person who discovered the offence and reported it.
PARAGRAPH 2. -- COMPETENT AUTHORITIES
This paragraph corresponds almost exactly to Article 59
of the 1929 Convention.
In accordance with Article 39
of the present Convention, every prisoner-of-war camp is under the immediate authority of a responsible commissioned officer belonging to the regular armed forces of the Detaining Power. This officer possesses a copy of the Convention and is responsible for its application. He must therefore take all necessary disciplinary measures to achieve this end.
It was, however, pointed out by some delegations to the Conference of Government Experts (2) that in very large camps, delays and complication arose from necessity of referring every case to the camp commander. They therefore proposed that disciplinary powers could be delegated to the officers in charge of the camp compounds, and this suggestion met with unanimous approval. The delegation of powers authorized in the present paragraph does not, however, absolve the camp commander from his responsibility or his duty of supervision. Since under Article 39
he is responsible for the application of the Convention, he is also responsible for any abuses of which his subordinates might be guilty in exercising disciplinary powers.
The officer to whom disciplinary powers are delegated assumes some of the prerogatives of the camp commander. He must therefore comply with the conditions laid down in Article 39
, that is to say he must be a member of the regular armed forces of the Detaining Power (3).
PARAGRAPH 3. -- PROHIBITION OF ANY DELEGATION
OF DISCIPLINARY POWERS TO PRISONERS OF WAR
It goes without saying that it is not for prisoners of war to pass judgment on the application, whether good or bad, of the regulations [p.460] laid down by the camp commander for the organization and maintenance of captivity. The question of the exercising of some disciplinary power by prisoners of war has, however, arisen in connection with offences committed by one prisoner against his fellow-prisoners (for instance, theft). During the Second World War, some camp commanders permitted disciplinary powers to be exercised in such cases by the prisoners' representatives or even by a tribunal composed of prisoners of war. This practice is now forbidden.
PARAGRAPH 4. -- THE RIGHT OF DEFENCE
The differences between national legislations as regards regulations for disciplinary proceedings are much greater than in the case of the regulations governing judicial proceedings. During the Second World War, the facilities for defence varied greatly, and prisoners of war were sometimes the victims of wholly arbitrary decisions. The Conference of Government Experts therefore decided that it was necessary to specify procedural guarantees in regard to the defence of prisoners of war which were not included in the 1929 text (4).
The first guarantee is that the prisoner must be given "precise information" regarding the charges against him; the words used indicate clearly that vague and general information is not enough. Moreover, the obligation to carry out an immediate investigation, as specified in paragraph 1, implies questioning the accused, who will thus know precisely the offence with which he is charged.
This information is the essential basis for exercising the right of defence, and express reference was therefore made to it.
The second guarantee is the right of the accused freely to express himself. This provision may be compared with Article 78
, which recognizes the right of prisoners of war to submit complaints; but whereas the right of defence is exercised before sentence is pronounced, the right of complaint becomes applicable only after judgment has been passed, for the purpose of a possible review.
The right of defence includes the hearing of witnesses and recourse to the services of a ' qualified ' interpreter. Article 105
below, which relates to the rights and means of defence of a prisoner of war in the event of judicial proceedings, provides in paragraph 1 that the accused may be assisted by a ' competent ' interpreter. The same distinction appears in the French text, and it seems to have been made deliberately [p.461] by the drafters of the Convention. A competent interpreter is one who is capable of making a correct appraisal; a qualified interpreter is an interpreter whose work is of a high standard. The difference seems slight, although, strictly speaking, "qualified" seems stronger than "competent". The distinction made in the text of the Convention therefore seems rather illogical, since in disciplinary matters any error by the defence can, at worst, only result in a punishment of thirty days' confinement. In the case of judicial proceedings, on the other hand, the prisoner of war may be liable to the death sentence and every precaution
must be taken to ensure his defence in the best possible conditions.
The third guarantee concerns the announcement of the decision to the accused prisoner of war and to the prisoners' representative (5). Thus the prisoner of war is not only informed of the decision, but can also avail himself of the right of complaint, either directly or through the intermediary of the prisoners' representative (Article 78, paragraph 2
), or of the right of appeal if it exists under the legislation of the Detaining Power (Article 82, paragraph 1
). The prisoners' representative will be able, if he thinks fit, to approach the military authorities or the Protecting Power direct (Article 79, paragraph 1
PARAGRAPH 5. -- RECORD OF DISCIPLINARY PUNISHMENTS
This provision was not included in the 1929 Convention, but it exists in most national legislations. It allows the higher authorities to check on the way in which the camp commander exercises his disciplinary powers and it is therefore absolutely essential. The Article also states that a check may be made by the Protecting Power.
The establishment and keeping of the record depends on national regulations. It may be assumed, however, that it should mention the exact names of those convicted, the date on which sentence was passed, the nature and duration of the punishment, the place in which it was carried out, the motives for it, as well as the name and signature of the person who awarded the punishment. Furthermore, the record should include a reference to the enquiry file, so that any possible complaints can be checked and investigated.
* (1) [(1) p.458] See below, p. 732;
(2) [(1) p.459] See ' Report on the Work of the Conference of
Government Experts, ' p. 220;
(3) [(2) p.459] See SCHEIDL, op. cit., pp. 463-464;
(4) [(1) p.460] See ' Report on the Work of the Conference of
Government Experts, ' p. 216;
(5) [(1) p.461] The 1949 Diplomatic Conference even considered
including the requirement that the decision should be
taken in the presence of those concerned. See ' Final
Record of the Diplomatic Conference of Geneva of 1949, '
Vol. II-A, p. 506;