ICRC databases on international humanitarian law
Treaties and Documents
1949 Conventions and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Art. 98. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #II. Disciplinary sanctions
. -- EXECUTION OF PUNISHMENT: II. ESSENTIAL
The contents of this Article are not new but were previously to be found in a number of provisions of the 1929 Convention (Article 49, paragraph 2
, and Articles 56
Strict rules are laid down as to the nature and duration of punishment, and the application of disciplinary power must also be regulated. [p.466] The fact that only the camp commander is authorized to exercise disciplinary power is already a safeguard, and one may assume that he will always bear in mind the fact that this is one of the most important responsibilities of a military commander (2).
PARAGRAPH 1. -- APPLICABILITY OF THE PROVISIONS
OF THE CONVENTION; EXCEPTIONS
Confinement may range from detention in cells to mere restrictions on liberty outside working hours (open confinement); confinement as a disciplinary punishment usually consists of continuous confinement during the whole duration of the punishment.
In general, the benefits of the Convention continue to apply, but some of them are obviously in contradiction with confinement. Prisoners of war undergoing confinement are entitled, under Article 27
, to retain their uniform, but it is customary to remove their shoe-laces, ties, and anything else which might enable them to attempt suicide in a fit of depression. It should also be noted that when, as in the case of parcels or premises, the Convention refers specifically to disciplinary confinement, the other provisions of the Convention are overridden.
In the event of air bombardment, a prisoner of war undergoing confinement will always be able to go to the shelters (Article 23
). Confinement prevents prisoners from going to the canteen, but it must not prevent them from acquiring necessary personal articles such as soap (Article 28
), and, like their fellow-prisoners, they will have a medical inspection once a month (Article 31
). They must be able freely to exercise their religious duties (Article 34
) and to receive the assistance of their chaplains (Article 35
), but a minister of religion serving a disciplinary sentence will obviously not be able to exercise his ministry (Article 36
). There can be no withdrawal of the right to be informed of the Convention and of regulations, orders, notices and publications (Article 41
). If a prisoner of war is under close arrest, he will obviously be unable to work and will therefore receive no working pay. He will, however, continue to receive the normal advances of pay.
In emergency cases, prisoners of war undergoing confinement must be enabled to draw up and transmit legal documents (Article 77
) [p.467] and also to take part in the election of prisoners' representatives (Article 79
). Wounded or sick prisoners of war undergoing confinement must be able to present themselves before the Mixed Medical Commissions (Article 113
Without considering this list as an exhaustive one, but taking into account the subsequent paragraphs of the present Article, it thus appears that confinement does render a limited number of provisions inapplicable.
An express reference is made to Articles 78
; the first relates to the right of complaint, and the second to the right of supervision of the Protecting Power and the International Committee of the Red Cross. Whatever the disciplinary system imposed on a prisoner of war undergoing confinement, he may therefore never be deprived either of the right freely to express himself, or of the right to be in touch at any time with delegates of the two bodies referred to.
In fact, these Articles are among the provisions which cannot be rendered inapplicable by the fact of confinement. Because of their very great importance, however, and of the experience gained in this connection during the Second World War, special reference was made to them (3).
PARAGRAPH 2. -- PREROGATIVES ATTACHING TO RANK
A. ' Officers '. -- Officers retain the right to wear the insignia of their rank (Article 44
). They may not be required to work (Article 49, paragraph 3
) or to provide their own service (Article 44, paragraph 2
), for that would amount to making them perform fatigue duties, which is forbidden under Article 89, paragraph 2
. In accordance with Article 97, paragraph 3
, officers will be lodged in quarters separate from those of non-commissioned officers and other ranks. These provisions were in the main observed during the Second World War (4).
B. ' Non-commissioned officers '. -- This refers mainly to the right not to be compelled to work, in accordance with Article 49, paragraph 2
. During the Second World War this provision was not respected (5).
[p.468] It will be noted that here, as in Article 44
, the English word "rank" corresponds to "grade" in French.
PARAGRAPH 3. -- EXERCISE IN THE OPEN AIR
This clause, which may be compared with Article 38
, is essential for the fitness and health of prisoners undergoing confinement, but it has been violated all too frequently (6). "Exercise" must be taken to mean the opportunity to walk and run, which implies that a sufficiently large space must be made available for this purpose.
PARAGRAPH 4. -- MEDICAL INSPECTIONS
Article 30, paragraph 4
, of the present Convention provides that "prisoners of war may not be prevented from presenting themselves to the medical authorities for examination"; one may assume that there will be daily medical inspections in prisoner-of-war camps; although this is not stated in Article 30
, it is mentioned in the present provision (7).
The guards are not entitled to forbid prisoners to attend daily medical inspections. This does not mean, however, that prisoners of war undergoing confinement must necessarily be received by the doctor every day. If a prisoner's request seems unjustified and likely to prejudice the efficient functioning of the medical service, it will be for the doctor to decide and to take the necessary measures on his own responsibility.
PARAGRAPH 5. -- READING, CORRESPONDENCE AND PARCELS
1. ' First sentence. -- Reading and correspondence '
Article 57, paragraph 1
, of the 1929 Convention was almost identical to the present text.
This provision has given rise to some considerations which have already been referred to. It is obvious that detention is likely to [p.469] lose much of its effectiveness as a punishment, particularly since disciplinary confinement is usually of short duration, by virtue of the fact that prisoners of war undergoing confinement are permitted not only to write at least two letters and four cards per month, as provided for in Article 71
, but also to read.
2. ' Second sentence. -- Parcels '
Article 57, paragraph 2
, of the 1929 Convention was similar in scope to the present text, since it also authorized the Detaining Power to withhold parcels addressed to prisoners of war undergoing confinement.
In accordance with Article 26
of the Convention, prisoners of war must be given adequate food to keep them in good health and to prevent loss of weight or the development of nutritional deficiencies. Those conditions, therefore, do not preclude restrictions on food in the case of men who are not working, subject of course to medical supervision; the present paragraph permits the withholding of all extra rations as well as alcohol and tobacco, of course. Such restrictions were not always applied during the Second World War (8).
The 1929 text authorized the Detaining Power to hand over either to the infirmary or to the camp kitchen undelivered parcels addressed to prisoners of war undergoing confinement when those parcels contained perishable foodstuffs; the present text states that such parcels may be handed over only to the infirmary, through the intermediary of the prisoners' representative. The Government Experts deliberately removed the possibility of such parcels being handed over to the camp kitchen (9).
* (1) [(2) p.465] See below, pp. 732, 733 and 739;
(2) [(1) p.466] In disciplinary matters, abuse can easily
occur, and in fact has occurred; it is perhaps for this
reason that the authors of the 1929 Convention as well as
those of the present Convention provided safeguards which
are, generally speaking, rather favourable to prisoners of
(3) [(1) p.467] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 494-495;
(4) [(3) p.467] See BRETONNI RE, op. cit. pp. 321-322. For his
part, SCHEIDL (op. cit., p. 414) deplores the fact that
the provisions of the 1929 Convention were more
restrictive than those contained in the Franco-German
agreement of March 15, 1918, Article 47;
(5) [(3) p.467] See BRETONNI RE, op. cit., pp. 321-322;
(6) [(1) p.468] See BRETONNI RE, op. cit., pp. 380-381;
(7) [(2) p.468] This requirement will help to prevent the many
abuses which occurred during the Second World War. See
' Report on the Work of the Conference of Government
Experts, ' p. 220; BRETONNI RE, op. cit., p. 384;
(8) [(1) p.469] See BRETONNI RE, op. cit. p. 382;
(9) [(2) p.469] See ' Report on the Work of the Conference of
Governments Experts ' p. 219;