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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
Art. 123. Part III : Status and treatment of protected persons #Section IV : Regulations for the treatment of internees #Chapter IX : Penal and disciplinary sanctions
. -- COMPETENT AUTHORITIES. PROCEDURE
[p.490] PARAGRAPH 1. -- COMPETENCE OF THE COMMANDANT OF THE PLACE
By virtue of Article 99
, every place of internment must be put under the authority of a responsible officer chosen from the regular military forces or the regular civil administration of the Detaining Power. The officer must have in his possession a copy of the Convention and is responsible for its application. He must therefore issue all necessary regulations to achieve this end and disciplinary powers are vested primarily in him.
In very large places of internment, however, the need to place before the commandant every case involving disciplinary punishment would lead to delays and complications. The Government Experts had already noted this (1) and, at their suggestion, the Stockholm Draft included a provision that disciplinary powers could be delegated. This delegation of powers, authorized in the paragraph under discussion, does not however absolve the commandant from his own responsibility nor his duty of supervision. Since, under Article 99
, he is responsible for the application of the Convention, he assumes responsibility for any abuses of which his subordinates might become guilty in exercising the disciplinary power he has delegated to them.
The official or officer to whom this power is delegated must be in a position to assume it under the same conditions as the commandant. [p.491] forces or of the regular civil administration and must possess a text of the Convention.
The reservation concerning the competence of courts and higher authorities at the beginning of this paragraph is intended as a reminder of the fact that the competence of the responsible commandant, however extensive it may be, is neither universal nor without appeal. Indeed, it covers only cases not submitted to the courts. Now, the cases which are brought before them will not all call for judicial punishment. Certain cases examined with the leniency prescribed in Articles 118
may entail only disciplinary punishment. In such cases it is for the court to decide on the penalty. Furthermore, if the higher authority receiving complaints or petitions in accordance with Article 101
considers that the decisions of the camp commandant have gone beyond the limits laid down by the Convention, those decisions can be either rescinded or amended.
PARAGRAPH 2. -- DEFENCE OF THE INTERNEE
This text is an adaptation in behalf of internees of the provisions relating to prisoners of war (Third Convention, Article 96, paragraph 4
). These provisions, which were not included in the 1929 Convention, are intended to put a stop to arbitrary decisions resulting from the absence of common rules of disciplinary procedure in the various countries. Prisoners of war suffered from this arbitrary treatment too often during the Second World War (2). The authors of the Convention therefore decided that it was necessary to specify the procedural guarantees granted to civilian internees in regard to disciplinary punishments.
The first guarantee is that the accused 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 in accordance with Article 122
implies an interrogation of the accused, who will thus know precisely the offence of which he is charged.
The second guarantee is the right of the accused to defend himself. This right includes the hearing of defence witnesses and recourse to the services of a "qualified" interpreter. This implies that a professional interpreter should be appointed who offers every guarantee of impartiality. If a non-professional interpreter has to be used, he must be approved by the accused.
[p.492] The third guarantee is based on the announcement of the decision in the presence of the accused and of a member of the Internee Committee. The internee will thus be enabled to exercise directly or through the Internee Committee the right of complaint bestowed upon him by Article 101
. He will also have the benefit of any other form of appeal provided for in internment regulations but (unless, of course, the regulations provide otherwise) the making of a complaint would not have power to suspend application of the sentence.
PARAGRAPH 3. -- PERIOD BETWEEN THE AWARD OF PUNISHMENT
AND ITS EXECUTION
This provision emphasizes that a disciplinary offence must be punished quickly. After one month has elapsed, the penalty will become void and the internee cannot then be punished for the same offences. Sentence of imprisonment inflicted during a transfer may only be carried out on arrival or when normal conditions for the serving of such a sentence are present. This follows from the provisions of Articles 118
PARAGRAPH 4. -- PERIOD BETWEEN TWO PUNISHMENTS
This is a reproduction of paragraph 4 of Article 54
of the 1929 Convention, and the guarantee contained therein supplements the guarantee given in paragraph 3 of Article 119
, which prohibits any disciplinary confinement for more than thirty consecutive days. The reference here is to the possibility of a punishment incurred between the announcement and carrying out of one punishment or during or immediately after the carrying out of the punishment.
In all cases, if the punishment exceeds ten days, a period of three days must elapse before the internee can again be imprisoned. This is a period of respite imposed by humanitarian considerations.
PARAGRAPH 5. -- RECORD OF DISCIPLINARY PUNISHMENTS
This provision was not included in the 1929 Convention. It allows the higher authorities to check on the way the commandant 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 keeping of the record depends on national regulations. It should be stated, however, that the register should mention the exact names of those convicted, the nature and duration of the punishment, the date and place in which it was carried out, the motives for it, the [p.493] name of the authority which took the decision, and the signature of the commandant, since it is his personal duty to keep the register. Furthermore, the register should include a reference to the enquiry file, to facilitate thorough study of any possible complaints.
Notes: (1) [(1) p.490] See ' Report on the Work of the Conference of
Government Experts, ' pp. 220-221;
(2) [(1) p.491] See ' Report on the Work of the Conference of
Government Experts, ' pp. 215-216;