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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
. -- GENERAL PROVISIONS. APPLICABLE
to 126 should be read together with Articles 64
to 78 which deal with penal legislation applicable to all protected persons on occupied territory.
When they are interned in occupied territory, internees obviously do not thereby lose the benefit of protection. Internees detained in the territory of a Party to the conflict are covered by Article 126
, which declares Articles 71
-76 applicable to them. These two parts of the Convention are therefore complementary and must not be considered separately.
PARAGRAPH 1. -- MAINTENANCE OF THE LEGISLATION IN FORCE
The idea of maintaining in force the penal laws of the country of internment corresponds, in the case of occupied countries, to the [p.477] principle laid down in Article 43
of the Hague Regulations that the laws in force in the country must be respected unless the occupant is absolutely prevented. The same principle is embodied in Article 64
of this Convention. The most humane decision, as far as internees or the inhabitants of an occupied territory are concerned, would certainly consist in considering them as subject to the same laws and the same courts as before the events. In fact, Article 115
, which deals with the facilities granted to internees in case of litigation, covers all legal proceedings "in any court" and thus postulates by implication that the regulations and procedures in force must be maintained, in both penal and civil cases.
Caution with regard to new situations not covered by the laws in force is quite understandable, however, and the Convention aims at settling such cases.
PARAGRAPH 2. -- DISCIPLINARY PUNISHMENTS
This provision reproduces word for word the text of paragraph 2 of Article 87
of the Third Convention. It was drawn up to restrict the effect of exceptional laws passed under pressure of circumstances. With particular regard to relations between prisoners of war and the women of the country of detention, certain States had taken very serious steps, going so far in some cases as to proclaim capital punishment as a means of enforcing the absolute prohibition of sexual intercourse. While leaving the Detaining Power the right to protect itself against the consequences of special and novel situations, there was a justified desire to limit the severity of repression. In such cases, the Detaining Power will only be able to inflict disciplinary punishments. These punishments are not those authorized under ordinary law, but those inflicted for infractions of the internment regulations. A restrictive list is given in Article 119
PARAGRAPH 3. -- "NON BIS IN IDEM"
This clause simply reproduces paragraph 3 of Article 52
of the 1929 Convention relative to the Treatment of Prisoners of War.
Worth noting, in this connection, is a comment made by one delegation to the Geneva Conference, to the effect that in penal law certain sentences can be reconsidered in the interest of the accused if fresh evidence comes to light, whereas severer punishment cannot be inflicted as a result of such evidence (1).
Notes: (1) [(1) p.477] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 684-685;