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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Art. 90. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #II. Disciplinary sanctions
. -- GENERAL OBSERVATIONS: II. DURATION OF
PARAGRAPH 1. -- RESTRICTION ON DURATION;
DEDUCTION OF PERIOD OF CONFINEMENT AWAITING HEARING
1. ' First sentence. -- Restriction on duration '
The maximum duration mentioned in this paragraph (thirty days) is in line with the standards adopted in matters of discipline by most national legislations. It was contained in the 1929 Convention (Article 54, paragraph 2
) (1), and obviously applies to all the punishments listed in Article 89
[p.442] 2. ' Second sentence. -- Deduction of period of confinement
awaiting hearing '
The problem of the period of confinement awaiting hearing does not often arise in connection with disciplinary matters, as the preliminary investigation is not usually lengthy. In fact, in most cases the accused is confined only after the punishment has been awarded.
The 1929 Convention made only a general reference to this question, in Article 47, paragraph 1
, which stated: "The period during which prisoners of war of whatever rank are detained in custody (pending the investigation of such offences) shall be reduced to a strict minimum". This wording was inadequate and during the Second World War the International Committee frequently had to make strong representations in order to ensure that the time spent in confinement while awaiting hearing as deducted from the punishment awarded (2).
If a prisoner of war is sentenced to a fine or to any penalty other than confinement, and if he has been in detention while awaiting hearing, the period of such detention must be duly taken into account when the punishment is awarded. In accordance with Article 95, paragraph 2
, the period spent in confinement while awaiting the disposal of a disciplinary offence may not exceed fourteen days. If, however, the prisoner of war concerned is accused of having committed an offence liable to a judicial penalty, the period of such confinement may be thirty days or even more. If the court finally awards only a disciplinary punishment, the accused must be freed immediately if the period of confinement while awaiting hearing amounted to thirty days or more (3).
PARAGRAPH 2. -- PUNISHMENT IN RESPECT OF SEVERAL OFFENCES
This provision reproduces the text of Article 54, paragraph 3
, of the 1929 Convention.
What if a prisoner of war commits a further offence between the awarding of punishment and its execution? If such a case is taken in the context of the present paragraph, the total punishment may not exceed thirty days; if, on the other hand, paragraph 4 of the present [p.443] Article is applied, the prisoner is liable to a further punishment of a maximum of thirty days' confinement. As has already been pointed out, however, in the case of several offences a prisoner of war may be awarded several punishments, each of thirty days. Because such a case is exceptional, the 1929 Conference did not consider it necessary to make express provision for it. In practice, disciplinary punishment is almost always carried out immediately after being awarded.
If the text is examined carefully, however, the present paragraph does not seem applicable to such a case. The text states: "... at the same time when he is awarded punishment" and at that time, the further offence has not yet been committed (4). The Detaining Power would therefore be entitled to award a further punishment, even if the maximum of thirty days'confinement has already been awarded for previous offences, on condition, as specified in paragraph 4 of the present Article, that a period of at least three days elapses between the execution of each of the punishments.
PARAGRAPH 3. -- EXECUTION OF THE PUNISHMENT
This provision was introduced by the Stockholm Conference and was inserted in the present Article by the 1949 Conference (5) in order to emphasize once more that any disciplinary offence must be punished without delay. After one month has elapsed, the punishment is therefore invalidated and the prisoner may not be punished again for the same acts or on the same count.
One may wonder why the Convention makes provision for a maximum period for the execution of a sentence but for no minimum period. The reason is that as a general rule there is no appeals procedure providing for any stay of execution in the case of disciplinary punishments. If the person convicted considers that he is the victim of an error, he may avail himself of the complaints procedure (Article 78
), but must begin to serve his sentence.
[p.444] PARAGRAPH 4. -- EXECUTION OF TWO CONSECUTIVE SENTENCES
This paragraph corresponds almost exactly to Article 54, paragraph 4
, of the 1929 Convention. A period of at least three days must elapse between the execution of any two punishments, and this provision is a corollary to paragraph 2 above, which ensures that a prisoner of war will not be detained for more than thirty days without a break. The present provision covers the case of a punishment awarded either after the first punishment was awarded and before it was executed, or during the execution of the punishment, or, lastly, immediately after execution of the first punishment. It should be noted that this time limit is not applicable only where the total of the punishments is thirty days; it must be respected even if the duration of confinement under one of the punishments is ten days, regardless of the duration of the other.
* (1) [(1) p.441] Article 54, paragraph 2: "The duration of any
single punishment shall not exceed thirty days";
(2) [(1) p.442] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War ', Vol. I, pp. 357 and 362;
(3) [(2) p.442] In this connection, reference should be made
to Article 95 (to Article 103 in the case of judicial
(4) [(1) p.443] This interpretation seems to be confirmed by
the statement of Mr. Werner, Rapporteur at the 1929
Conference: "If, for instance, an act was committed on
Monday, another one on Tuesday, and the hearing takes
place on Wednesday, punishments will not be awarded
separately, and there may only be a single penalty which
must not exceed thirty days; the only case in which the
possibility of consecutive punishments arises is therefore
that in which, before the completion of the first
punishment, a prisoner is awarded a further disciplinary
punishment, that is to say, if during punishment he
behaves very badly and incurs a further penalty". (' Actes
de la Conférence de 1929 ', p. 494.);
(5) [(2) p.443] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 305;