Introduction
Leniency derives from the Latin verb lenire, denoting to softening the pain and stress.Footnote 1 Historically, this word was often connected with the term clemency as, for example, Lucius Annaeus Seneca the Younger, the Roman philosopher, defined clementia as “the leniency of the more powerful party toward the weaker in the matter of setting penalties”.Footnote 2 The concept of clemency, associated with the attitudes of mercy and gentleness, “functioned primarily in military contexts, displayed on the battlefield by a Roman general toward a defected foreign enemy, or as a political tool used by royalty in the discretionary administration of justice”.Footnote 3
In the sphere of modern-day criminal law, the concept of leniency is still alive and the subject of debate. In using this term, criminal lawyers aim to distinguish between
crime treatment which, on the one hand, is based upon sentiment, emotion, and perhaps personal relationships existing between the offender and the person who deals with him, and on the other hand, treatment which is based upon considerations of the protection of society, the rehabilitation of the offender, his preparation for release and eventual reintegration into the social group as a self-supporting, self-respecting individual.Footnote 4
In the context of international humanitarian law (IHL), the term leniency first appeared in Article 52 of the 1929 Convention Relative to the Treatment of Prisoners of War (1929 Convention),Footnote 5 in particular in connection with facts related to “escape or attempted escape”. With the adoption of Article 83 of the Third Geneva Convention of 1949 (GC III),Footnote 6 the obligation to exercise the greatest leniency towards prisoners of war (PoWs) in regards to penal and disciplinary measures against them was reinforced.Footnote 7 Article 83, the second article of Chapter III on penal and disciplinary sanctions, provides that “[i]n deciding whether proceedings in respect of an offence alleged to have been committed by a prisoner of war shall be judicial or disciplinary, the Detaining Power shall ensure that the competent authorities exercise the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures”. Chapter III of the Convention, in addition to general rules that are applicable to any kind of proceedings, consists of specific rules regulating disciplinary procedures and sanctions, on the one hand, and those rules regulating penal proceedings and punishments, on the other hand.
As will be discussed in this paper, the drafters of GC III intentionally included the obligation to exercise leniency in a distinct article at the beginning of the Chapter on penal and disciplinary measures and emphasized that it “should apply to the whole Chapter”.Footnote 8 As the history of the negotiations demonstrates,Footnote 9 the drafters sought that the authorities or the courts of the Detaining Power apply the leniency considerations prior to the institution of any disciplinary or judicial proceedings against a PoW until its end which includes all the stages of pre-trial, trial and post-trial of PoWs, as reflected in Chapter III. This attitude, per se, reiterates that contrary to the mainstream approach among criminal lawyers,Footnote 10 the authors of GC III, as will be discussed in the “Historical background” part below, did not restrict the application of leniency merely to the consideration of the severity of punishments.
The obligation to exercise the greatest leniency towards PoWs brings into play considerations of humanity, morality and conscience in the treatment of PoWs. In this way, it may resemble, to some extent, the Martens clause which, by reference to laws of humanity and the requirements of the public conscience, bridges the gap between positive norms of international law relating to armed conflicts and natural law.Footnote 11 This resemblance, however, does not mean that the lack of leniency equals automatically inhumane treatment.
The obligation to exercise leniency toward PoWs does not necessarily result in predetermined answers; rather, it is an appeal to the Detaining Power as a sovereign State to treat PoWs less severely, by contemplating the fact that PoWs are in its hand because they honoured the same ethos as the Detaining Power's members of armed forces: upholding their duty of allegiance. It is for this reason that Article 87(2) states clearly that:
[w]hen fixing the penalty, the courts or authorities of the Detaining Power shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will …
Contrary to the principle of humanity and the Martens clause, the nature and scope of which are vastly discussed in the legal literature,Footnote 12 the obligation to exercise leniency did not generate any debate in the IHL domain. Even the 1960 International Committee of the Red Cross (ICRC) Commentary, which linked leniency to the “considerations of the ‘honourable motives’ which prompted the prisoner of war to act”Footnote 13 did not discuss the peculiarities of the implementation of leniency to the whole of Chapter III. Consequently, in interpreting Article 87(2) which provides the list of extenuating circumstances that should be considered in fixing the penalties against PoWs, the 1960 Commentary does not ascribe any independent place for “leniency”.Footnote 14 However, the ICRC updated Commentary on GC III (Commentary),Footnote 15 based on general practice,Footnote 16 and following the developments of international law, has brought the humanitarian considerations including the concepts of leniency and clemency, wherever possible, to the heart of its interpretations of the GC III provisions with respect to penal and disciplinary sanctions. On this basis, the Commentary on Article 87(2) emphasizes that considerations mentioned in this Article do not replace rather “complement the rule contained in Article 83 …”.Footnote 17 The Commentary furthermore states that Article 87 encourages detaining authorities “to exhibit as much leniency as possible in determining the penalty because of the special circumstances in which prisoners of war find themselves”.Footnote 18
With reference to the application of the leniency considerations to the whole provisions of Chapter III of GC III, this paper indulges in the obligation of exercising leniency regarding the laws and procedures that are applicable to disciplinary and judicial processes as well as fixing and enforcing sanctions against PoWs. In doing this, it first examines the origin of this rule based on the preparatory works of GC III. Subsequently, the paper develops its arguments about the effects of leniency considerations in each and every disciplinary or penal measure taken against PoWs by the Detaining Power. Moreover, it will be shown that the leniency considerations, as an appeal to the Detaining Power to treat PoWs less severely, has the potential to influence the interpretation of some other obligations under GC III. The ICRC updated Commentary on GC III, which expressly discusses leniency considerations as an independent obligation of conduct,Footnote 19 is placed at the core of the arguments of this research.
Historical background
The experience of the First World War revealed the deep inadequacy of the Hague ConventionsFootnote 20 in protecting PoWs in respect of punishments they might face.Footnote 21 As discussed by Wylie and Cameron, “the scale, duration and intensity of wartime captivity after 1914 gave rise to a conceptual shift in the way PoWs were perceived, transforming their status … to ‘humanitarian subjects’, whose treatment was based on an understanding of their humanitarian needs and rights”.Footnote 22 As a result, a great number of bilateral agreements on the subject were drafted by the opposing belligerents and entered into force in 1918 to compensate for these shortcomings.Footnote 23
These agreements constituted the first international efforts to regulate the treatment of PoWsFootnote 24 by confirming the existing approach of dividing offences that PoWs might commitFootnote 25 into two categories: disciplinary and criminal offences.Footnote 26 They also prohibited collective punishment,Footnote 27 and the use of cruel and unusual punishments against PoWs.Footnote 28 These agreements, while aiming to provide more protection for PoWs, were proved to be inadequate, first and foremost, because these agreements came into existence almost at the end of the war,Footnote 29 when atrocities had already been committed. Besides, they were based, using the words of the ICRC, on the principle of reciprocity than the principle of justice since the belligerents aimed to secure their own advantages rather than to serve the cause of humanity.Footnote 30
Considering these experiences, the 10th International Red Cross Conference of 1921 decided to address the insufficiency of the existing international conventions to afford the PoWs the necessary protection.Footnote 31 For this purpose, the Conference proposed sixteen main principles regarding the treatment of PoWs.Footnote 32 These principles were aimed to serve, among others, as the basis for an international code that would govern the judicial and disciplinary measures applicable to PoWs.Footnote 33 Among these principles, the Conference, emphasizing that the PoWs are entitled to all considerations that are due to every human being, stressed the general principle that any treatment of PoWs should be free of any hostility, and no restriction should be imposed on them unless it was absolutely necessary.Footnote 34
The ICRC, based on Resolution XV of the Conference,Footnote 35 established the so-called “Diplomatic Commission”, composed of five members to draft a convention.Footnote 36 This commission based its work mainly on the principles approved at the 10th Conference, Hague Convention IV, and the agreements that were signed between belligerent powers during the First World War.Footnote 37 The draft convention, consisting of 103 articles, was submitted for review to the 11th International Red Cross Conference.Footnote 38 In this draft, one chapter was devoted to the code of penal and disciplinary measures as requested by the 10th Conference, consisting of twenty-five articles. According to the ICRC, these provisions reflected the general principle that PoWs are subject to the laws, regulations and orders of the Detaining Power, and set limits on judicial and disciplinary measures by, for example, limiting the duration of disciplinary confinement,Footnote 39 prescribing PoWs’ defence rights, and providing for a special procedure in the issuance of the death sentence.Footnote 40 At the same time, two other works to develop international rules on treating PoWs were underway: one by the International Law AssociationFootnote 41 and the other by the Russian Red Cross.Footnote 42 These three works, which were developed independently, provided similar solutions for almost all the questions.Footnote 43 Yet, reference to the notion of exercising the greatest leniency was only mentioned in the draft articles prepared by the ICRC. The ICRC draft Article 49, which was later adopted as Article 52 of the 1929 Convention, had two paragraphs: the first requiring belligerents to consider the greatest leniency in determining whether an offence committed by a PoW should be punished disciplinarily or judicially, and the second, listing a few offences that should be faced only with disciplinary measures, such as minor disobedience, refusing to work without a legitimate reason, violating camp discipline and minor property offences.Footnote 44
The Proceedings of the 1929 Conference reveal that the delegates had no reservation or comment in regard to the inclusion of leniency in treating PoWs. The discussion, rather, was about the second paragraph, listing offences entailing only disciplinary measures.Footnote 45 In this regard, the delegation of Germany proposed to replace the second part of the draft provision with the following “[t]his will in particular be the case in the assessment of the facts which accompanied an escape”, while the delegation of Belgium proposed a third new paragraph that for the same act, no cumulative of penal and disciplinary measure can be applied.Footnote 46 This third paragraph was replaced later with the principle of non bis in idem,Footnote 47 which in the view of the delegates constituted a guarantee in the favour of PoWs.Footnote 48 With these changes, Article 52 was adopted by the Conference as follows:
Belligerents shall ensure that the competent authorities exercise the greatest leniency in considering the question whether an offence committed by a prisoner of war should be punished by disciplinary or by judicial measure.
This provision shall be observed in particular in appraising facts in connexion with escape or attempted escape.
A prisoner shall not be punished more than once for the same act or on the same charge.
During the Second World War, the 1929 Convention, “in spite of its imperfections, … acted as a deterrent on abuses and laid down an average treatment for prisoners of war which seems better, than that meted out to them during the War of 1914–1918”.Footnote 49 However, from thirty-five million military personnel in enemy hands between 1939 and 1945, approximately five million lost their lives by atrocities committed,Footnote 50 which demonstrated the need to strengthen the protection afforded to PoWs. In light of this, efforts were made to supplement the principles and rules laid down in the 1929 Convention.Footnote 51
For the revision of provisions on penal and disciplinary measures of the 1929 Convention, a special commission was formed under the 1949 Diplomatic Conference composed of delegates from the United States of America, France, the United Kingdom, the Union of Soviet Socialist Republics and the ICRC, to review draft provisions submitted by the 17th Red Cross Conference.Footnote 52 Contrary to the 1929 Convention which had one separate provision on attempted escape (Article 51), and one provision (Article 52) on the exercise of leniency, in general, and in appraising facts in connection with escape, in particular, the ICRC “thought it advisable to merge into one single Article the stipulations of the former Art. 51 and 52, with the exception of Section 3 of Art. 52 [non bis in idem]”.Footnote 53 As this formulation could give the impression that the exercise of leniency would be mainly applicable in regard to offences connected with escape,Footnote 54 the special commission recommended that leniency “should apply to the whole Chapter, and therefore reflected it in a new separate article”.Footnote 55 The importance of the general application of leniency was so obvious that during the discussion on the applicable law, the delegate of the United Kingdom requested its inclusion in the provision of applicable law by stating that:
Article 52 of the Convention of 1929 … was precisely an Article included in the “General Provisions” of Chapter III … it [is] logical to maintain this rule and to write in the same Article [on applicable law] the principles of the limitation of legislation and the leniency in appreciating the question whether a breach committed by a prisoner of war should involve a disciplinary or a judicial penalty.Footnote 56
In response, the ICRC delegates recommended not including the reference to leniency in that article because it should “be limited to ‘droit applicable’”.Footnote 57 Finally, Article 83 as a new article, titled “Choice of Disciplinary or Judicial Proceedings”, was adopted unanimously.Footnote 58 In this way, the exercise of the greatest leniency as a separate independent obligation of conductFootnote 59 entered into GC III, and its placement at the beginning of Chapter III as well as its formulation in a distinct article reinforces its application to the whole Chapter on penal and disciplinary sanctions.
The implications of the obligation to exercise the greatest leniency
The provisions of Chapter III of GC III prescribe the obligations of the Detaining Power with respect to disciplinary and criminal procedures as well as sanction measures taken against PoWs. These obligations are formulated to safeguard the life and wellbeing of accused and convicted PoWs. These provisions encompass general and specific protections applicable during pre-trial, trial and post-trial stages of judicial/disciplinary proceedings. In this regard, Article 83 has a special function since it also addresses an obligation of the detaining authorities before instituting any procedure. Having this in mind, in the first section, we briefly discuss the differences between judicial and disciplinary processes as well as the reasons why the latter should in general be preferred. In the next sections, the paper analyses the safeguards provided for PoWs during proceedings or under punishment and discusses how the obligation to exercise the greatest leniency will influence their interpretation and application. It will be argued that while most of the safeguards in Chapter III, as well as general obligations, like humane treatment, reflect the minimum standards, the leniency consideration in essence is an appeal to go further than this threshold.
General preference for disciplinary proceedings
GC III does not predetermine the choice of proceedings in all cases, yet for certain offencesFootnote 60 it provides that only disciplinary sanctions can be applied. For other offences, leniency considerations, as reflected in Article 83, call the Detaining Power to adopt disciplinary measures wherever possible. This formulation may suggest that the drafters of the Convention gave a general preference to disciplinary procedures.
Generally, it is accepted that it is the nature of the alleged offence that determines the choice of proceedings and, thus, as mentioned in the ICRC Commentary on Article 82, “disciplinary measures cover minor offences that can be imposed by a camp commander without a trial, whereas judicial measures are taken in response to more serious, criminal offences after trial proceedings”.Footnote 61 In this regard, it is important to note that the part of Article 83 addressing the choice of proceedings based on leniency considerations has a limited scope compared with Article 52 of the 1929 Convention,Footnote 62 because the former subjects the choice of disciplinary measures to “wherever possible”. However, this discretion granted to the Detaining Authority should be always be applied in a lenient way.Footnote 63 In other words, the adoption of disciplinary measures, in principle, seems to be possible except where the applicable law, in a specific manner, restricts the authorities from choosing measures other than judicial proceedings and sanctions.Footnote 64
Having said that, as will be discussed in the following sections, the rights and guarantees available for PoWs in disciplinary procedures compared with those provided for judicial proceedings are minimal.Footnote 65 This is why the Commentary argues that certain aspects of judicial proceedings could make them more lenient to an accused prisoner.Footnote 66 On this basis, the ICRC provides that in the implementation of the rule contained in Article 83 and to ensure the exercise of the greatest leniency, in each case the competent authorities of the Detaining Power will need to determine “whether judicial or disciplinary proceedings are more lenient”.Footnote 67 In other words, when the Convention does not specifically call for disciplinary punishments,Footnote 68 and it is obvious that judicial proceedings result in more respect for fair trial standards, the obligation to ensure the exercise of the greatest leniency may result in choosing the judicial proceedings. Of course, such a decision is only warranted when the imposable penal punishments foreseen under the domestic law are not more severe than the disciplinary measures prescribed under Article 89(1).
Applicable legal regime
GC III provides that PoWs shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power Footnote 69 until the captivity ends.Footnote 70 This provision, the so-called “principle of assimilation”, first appeared in the Hague Regulations of 1899 and 1907Footnote 71 and the 1929 Convention reconfirmed it.Footnote 72 This principle, as described in the Commentary, “seeks to avoid prisoners of war being placed in a less favourable position than members of the armed forces of the Detaining Power”.Footnote 73 Here, it is worth mentioning that the application of GC III is not limited only to nationals of the parties to the conflict; rather, it will be applied to all those who are members of one party's armed forces. The Commentary on Article 87 confirms this by interpreting the lack of duty of allegiance of PoWs as owing “fidelity and obedience not to the Detaining Power, but to their country of origin”.Footnote 74 In the ICRC view, the “country of origin” means the Power on which the prisoner “depends”, and not the Power of nationality.Footnote 75 This interpretation, despite the clear reference to nationality in Articles 87(2) and 100(3) of GC III, does not enumerate nationality as a factor for granting PoW status under Article 4 of GC III. The Commentary on Article 4, by using the term “clemency”, seems to apply the leniency considerations to expand the protective power of the Convention to PoWs with dual nationalityFootnote 76 or those who are nationals of the Detaining State.Footnote 77 The Commentary emphasizes that Articles 87 and 100 “encourage clemency in these circumstances, given that each Party to a conflict requires the allegiance of its armed forces and, therefore, prisoners of war should not be punished for their allegiance to the State on which they depend”.Footnote 78
The application of the principle of assimilation, as explained by the Commentary, “constitutes one, but not necessarily the governing, benchmark for determining the judicial and disciplinary treatment owed to prisoners of war”.Footnote 79 Hence, while any offence committed by a PoW shall be sanctioned by measures in accordance with the domestic laws, regulations and orders of the Detaining Power in force at the time of the offence was committed,Footnote 80 such application is not unconditional. As the second part of Article 82(1) stipulates, only proceedings or punishments that are compatible with the provisions of Chapter III of the Convention shall be allowed.Footnote 81 In other words, irrespective of whether the legal system of the Detaining Power can be categorized as monist or dualist,Footnote 82 in cases where domestic laws are not compatible with the requirements of this Chapter, the Detaining Power is requested to directly apply the provisions of the Convention.Footnote 83 This, however, does not mean that if domestic laws provide for more protection than what is accorded to PoWs under international law, the application of domestic law will be suspended. The provisions of GC III are aimed to ensure the international minimum standards of treatment of PoWs, acknowledging the fact that national laws may vary widely.Footnote 84 Thus, as explained by the ICRC, the last sentence of Article 82(1) “indicates an upward exemption to the principle of assimilation” so as to bar the application of domestic laws that fall below the minimum standards set by these provisions, “not if they go beyond them and provide for greater protection”.Footnote 85 Moreover, although the text of this Article only refers to the provisions of one Chapter, it cannot be read as releasing the Detaining Power of its general obligations under the other provisions of the Convention, and, first and foremost, the general obligation to treat PoWs humanly at all times under Article 13(1). In other words, the obligation to provide humane treatment at all times will prevail over the principle of assimilation if national legislation does not guarantee humane treatment of the Detaining Power's own forces. The Commentary emphasizes that the term “at all times” has to be read in an inclusive way in order to exclude any argument against this provision including any justification of acts or omissions inconsistent with the requirements of humane treatment.Footnote 86
Another point regarding the application of domestic laws is about laws enacted specifically for PoWs. Article 82 in its second paragraph contains an important limitation in enforcing the laws of the Detaining Power that are specifically enacted for PoWs. No similar provision existed in the 1929 Convention. The experience of the Second World War, when certain Detaining Powers enacted special legislation for PoWs and imposed heavy penalties for their violations, led the drafters to include this provision as a necessary safeguard.Footnote 87 Article 82(2) instructs the Detaining Power not to sanction the violation of these specifically designated regulations by penal punishments. In this way, Article 82(2), which is also derived from leniency considerations, in the words of the Commentary “goes further than the general leniency clause set out in Article 83, as it excludes the option of imposing penal sanctions for offences that can only be committed by prisoners of war”.Footnote 88
PoWs can also be prosecuted under the laws of the Detaining Power for the acts committed before their capture, but according to Article 85 they retain, even if convicted, the benefits of the Convention. Retaining the benefits of the Convention would mean that prior acts which were compatible with IHL,Footnote 89 such as targeting military objectives, cannot be prosecuted by the Detaining Power even if they are considered as a breach of its laws.Footnote 90 Moreover, apart from the rules of the national law, the benefits that are prescribed by GC III, such as the general rule of exercising leniency under Article 83 and the provision of Article 102, requiring the PoWs to be tried by the same courts and according to the same procedures of the armed forces of the Detaining Power, must also be applied when the Detaining Power is prosecuting PoWs for offences committed before their capture.Footnote 91
Article 85 should be read in conjunction with the principle of legality. This principle, first, prohibits the imposition of a penalty that was not foreseen at the time the crime was committed, as enshrined in Article 87(1), and second, it establishes that no one may be held responsible for a crime on account of an act or omission that did not constitute a criminal offence under domestic or international law, as expressed in Article 99(1). The reference to international law in Article 99(1) demonstrates that PoWs may be prosecuted for a crime even if the conduct in question was not prohibited under the domestic law of the Detaining Power at the time of the act.Footnote 92 However, the benefits of GC III, including the application of leniency considerations, in cases where PoWs are prosecuted or sentenced under international law for pre-capture offences will be retained.Footnote 93
The Convention does not address the case of disparities between domestic law and international law beyond the minimum provisions mentioned thereto. This may arise specially for the prosecution of international crimes. For example, if the domestic law of the Detaining Power criminalizes the recruitment of children under 18 years old, while the age limit under customary international law is 15 years old,Footnote 94 it will not be clear whether the rules of international law should prevail or the domestic law. The answer to this question is not straightforward but may be inferred from the application of the principle of legality. This principle requires that the laws in force be reasonably foreseeable to the accused at the time the act or omission took place.Footnote 95 Foreseeability of a crime for an accused would mean that the person must be able “to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”.Footnote 96 For these reasons, the Commentary, while emphasizing that Article 99(1) “does not provide an accused prisoner of war with a defence to plead ignorance of the law”,Footnote 97 considers it to be implicit in the principle of legality that such laws should be reasonably foreseeable to the accused PoW.Footnote 98 The Commentary does not elaborate what “reasonably foreseeable” means; however, it can be argued that if customary international law does not prohibit an act, it is difficult to say that the law of the Detaining Power providing for a different threshold than what is foreseen under international law is reasonably foreseeable to a PoW.
In practice, the prosecution of PoWs for prior offences may raise several legal and political challenges. For example, the trials of 195 Pakistani PoWs handed over by India to Bangladesh for acts of genocide and crimes against humanity were never held, as an agreement was reached between India, Pakistan and Bangladesh (through the Indian negotiator) for the release of accused PoWs for the future recognition of Bangladesh.Footnote 99 The other case concerns the captivity of Captain Alfredo Astiz during the Falkland Islands/Islas Malvinas conflict. While in the hands of the UK as a PoW, Astiz was charged by France and Sweden for the kidnapping and torture of hundreds of civilians, not at the time of the conflict but before the outbreak of hostilities.Footnote 100 The UK did not initiate any proceedings against him not only because the alleged conduct occurred outside the context of the battlefield, but also because “[t]he fact that Astiz was under British control solely because of his capture during armed conflict might lend support to the view that he should be dealt with more leniently”.Footnote 101 Thus, despite the request for his extradition, the UK repatriated him to Argentina.Footnote 102
Another well-known example is the case of Manuel Noriega who was detained as a PoW in 1990. He was charged with drug trafficking offences before the outbreak of armed conflict between the United States and Panama. The US court's explanation for the non-relevance of leniency considerations in the evaluation of his offences is revealing:
The humanitarian character of the Geneva Convention cannot be overemphasized, and weighs heavily against Defendants’ applications to the Court. GC III was enacted for the express purpose of protecting PoWs from abuse after capture by a detaining power. The essential principle of tendance liberale, pervasive throughout the Convention, promotes lenient treatment of PoWs on the basis that, not being a national of the detaining power, they are not bound to it by any duty of allegiance. Hence, the “honorable motives” which may have prompted his offending act must be recognized … That such motives are consistent with the conduct and laws of war is implicit in the principle. Here, the Government seeks to prosecute Defendants for alleged narcotics trafficking and other drug-related offences, activities which have no bearing on the conduct of battle or the defense of country. The fact that such alleged conduct is by nature wholly devoid of “honorable motives” renders tendance liberale inapposite to the case at bar.Footnote 103
Exercising leniency during the proceedings
GC III, as discussed above, regulates the proceedings against PoWs in two cumulative ways: the principle of assimilation, together with prescribing the minimum standards that should be applied independently of the laws and regulations of the Detaining Power. The principle of assimilation was integrated, inter alia, to overcome the need of establishing a detailed code of punitive procedures for PoWs.Footnote 104 Through this principle, developments in international law, including in human rights law, since the adoption of the Geneva Conventions will be applicable to the proceedings against PoWs.Footnote 105 With this in mind, this section reviews the rules in the Convention applicable to disciplinary and penal proceedings and the possible instances of the application of the obligation to exercise leniency.
The first provision regarding procedural issues can be found in Article 84, placed in the general provisions of the Chapter on judicial and disciplinary measures that establishes the competence of military courts for the trial of PoWs. This Article also permits PoWs trial in civilian courts only in accordance with the principle of assimilation, meaning only when such jurisdiction has been expressly granted to civilian courts to try the members of the armed forces of the Detaining Power for the same offence.Footnote 106 The presumption in favour of the competence of military courts for PoWs with combatant status can be explained by the fact that “the military courts of that State … possess the necessary expertise to deal with any alleged offence the prisoners might commit against … [military] laws”.Footnote 107 It can also be added that the military experience of the judges and their familiarity with military honours and loyalty may make the exercise of leniency even more possible. This is because a PoW is “subject more than anyone else to the influences which are generally recognized as extenuating circumstances: extreme distress, great temptation, anger or severe pain”,Footnote 108 and a judge with a military background may better understand the special situation of PoWs as prescribed by Article 87(2).
The provision of Article 84 has to be read together with Article 102, which expressly mentions that the courts and the procedures for PoWs should be the “same” as in the case of members of the armed forces of the Detaining Power.Footnote 109 The principle of assimilation in regard to the courts and procedures, like other provisions of the Convention, is subject to observing the minimum requirements set by GC III. In this regard, Article 84(2) prohibits, in absolute terms, the trial of PoWs in any court that does not comply with the requirements of independence and impartiality or proceeds under procedures that fail to afford the accused the rights and means of defence provided in Article 105. These requirements are aimed to ensure fair trial of PoWs. The requirement of independence refers, in particular, to procedures and qualifications for the appointment of judges, and the actual independence of the judiciary from political interferences.Footnote 110 The requirement of impartiality indicates that judges should be free of “personal bias or prejudice, nor harbour preconceptions” (the subjective element), and that the general appearance of the court is also seen impartial (the objective element).Footnote 111 While enacting effective and appropriate laws and regulations may ensure the independence and the objective impartiality of the courts even during the time of armed conflict, it is difficult for a national judge to be always free of any hostile feelings against an enemy combatant who will be judged by him/her. Here lies the value of ensuring general positive discrimination against PoWs by commending the exercise of the greatest leniency.
Article 100(3) regarding the issuance of the death sentence against PoWs should also be read and understood on the basis of the above consideration. This Article provides that unless the court's attention has been drawn to the particular situation of a PoW, the death sentence should not be pronounced. It is said that this Article, reiterating the provision found in Article 87(2), provides extenuating circumstances for the reduction of the punishment.Footnote 112 On this basis, it can be argued that the consideration of the particular situation of a PoW in issuing the death sentence can be also seen as a necessary element in ensuring the impartiality of the court.
In addition to the requirements of independence and impartiality, Article 84(2) also prohibits a trial process that takes place without respecting the rights and means necessary for an accused PoW to conduct a proper defence. These rights, as enumerated under Article 105, are the right to have an assistant, to have an advocate or counsel to defend, to call witnesses, to have the services of a competent interpreter, to be informed in due time about his/her rights, to be informed of the charges and other relevant documents, as well as supervision of the trial by the Protecting Power.Footnote 113
Although Article 105 is silent about its application to the appeal process, it is logical to assume that such guarantees and means of defence should be available as well during the appeal proceedings otherwise the process will be devoid of real meaning.Footnote 114 It is important to note that Article 106 provides that PoWs shall have the right of appeal or petition “in the same manner as the members of the armed forces of the Detaining Power”.Footnote 115 The Commentary, however, submits that the right to appeal is a substantive right and a fundamental procedural guarantee of international law that must be available to PoWs,Footnote 116 at all times irrespective of the domestic laws applicable to the members of the armed forces of the Detaining Power.
Furthermore, while Article 106 is silent about the application for pardon, in line with the principle of assimilation and the exercise of leniency towards PoWs, the Commentary reflects and endorses the State practice of interpreting the term “petition” in Article 106 as including application for various forms of clemency existing in the legal system of the Detaining Power.Footnote 117
The provisions of Article 84 regarding essential requirements of impartiality and independence, as well as the rights and means of defence and other safeguards,Footnote 118 not only extend to trial but should also apply to pre-trial investigations.Footnote 119 Therefore, although Article 103 does not entail any specific requirement regarding investigation except that it should be conducted rapidly, the minimum standards of fair trial as well as general obligations under the Convention, such as the principle of legality as well as leniency considerations, should be taken into account. Moreover, the prohibition of any form of moral or physical coercion upon PoWs in order to induce confession, as reflected in Article 99(2), should also be respected during the investigations both in judicial and disciplinary procedures.Footnote 120
GC III does not elaborate on how investigation in disciplinary procedures should be carried out. The ICRC commentaries consider such an investigation as “proper determination of facts”.Footnote 121 According to Article 96(4) the accused PoW should be provided with the opportunity of not only “defending himself” but also “explaining his conduct”. Assumably the latter goes beyond providing a legal defence; hence, it can be argued that the “proper determination of facts” may include the consideration of the special situation of the accused PoW that calls for a more lenient approach. This reading can be understood from Article 52(2) of the 1929 Convention which expressly calls for the exercise of leniency “in appraising facts in connexion with escape or attempted escape”.Footnote 122
Exercising leniency in sentencing and executing disciplinary and penal measures
Article 87(2) justifies the implementation of leniency considerations in fixing penalties. This justification derives from the fact that a PoW is not bound to the Detaining Power by any duty of allegiance. Moreover, this Article emphasizes that a PoW is in the hands of the Detaining Power against his/her independent will. As a result, the courts and competent authorities of the Detaining State are allowed to reduce the penalty for a particular violation or crime to less than the minimum punishment foreseen for members of their armed forces. Additionally, as discussed above, the Convention provides that the Detaining Power in implementing the principle of assimilation is not permitted to impose sanctions and penalties on PoWs in contrast with the provisions of the Convention including Article 13(1). In this section, the impact of leniency considerations in sentencing and executing penalties will be examined. Before doing so, it is important to recall that the domestic laws and regulations that differ from the provisions of GC III prevail whenever these regulations provide for greater protection.Footnote 123
General and specific provisions on penal and disciplinary sanctions
Article 87(3) lays down the most important general prohibitions in fixing and implementing the sanctions. This provision prohibits collective and corporal punishments, imprisonment in premises without daylight, and any form of torture or cruelty in relation to PoWs regardless of whether the punishment in question is penal or disciplinary. These prohibitions also apply regardless of the existence of such penalties in the domestic law of the Detaining Power.
The other important principle that applies to both penal and disciplinary punishments is the principle of non bis in idem or prohibition against double jeopardy for the same act or on the same charge pursuant to Article 86. As provided in Article 75(4)(h) of the 1977 Additional Protocol I as well as other international treaties,Footnote 124 the principle of non bis in idem applies to conviction or a final acquittal. It also bans the imposition of further penalty on a PoW who had already served the term of his/her sentence.Footnote 125 The principle of non bis in idem arguably is limited to multiple prosecutions by the “same Party” under “the same law and judicial procedure” of the same sovereign State, which seems to exclude any inter-State effect of that principle. But this may lead to numerous practical problems in the case of PoWs who may be subject to transfer to another belligerent or a neutral State.Footnote 126 Therefore, in the case of transfer, there is a high possibility that a convicted or acquitted PoW faces a new sentence for the same act. Following this consideration, “it has been argued that the non bis in idem rule should, in principle, apply to attempts by courts of different States to prosecute the same person for the same act, no less than it applies to such attempts by the courts of a single State”.Footnote 127 This argument, which in principle requires a State not to exercise its sovereign (judicial) power, is only justified by exercising the greatest leniency towards PoWs. In other words, it is only based on the leniency considerations that States can be requested not to exercise their sovereign power and adhere to non bis in idem in inter-State relations.
Specific provisions of GC III on penal and disciplinary sanctions in some cases, on the basis of leniency considerations, require the Detaining Power to punish a violation only through disciplinary measures.Footnote 128 This, in particular, includes those acts committed by PoWs that are not punishable if committed by a member of the armed forces of the Detaining Power,Footnote 129 or acts such as unsuccessful escape,Footnote 130 facilitating an escape,Footnote 131 aiding or abetting an escape,Footnote 132 and an attempt to escape.Footnote 133 These offences, as well as other disciplinary offences, are only punishable by the list of sanctions mentioned in Article 89. This Article provides an exhaustive list of possible disciplinary punishments. The ICRC Commentary describes this Article as an “important innovation [of] a limitative enumeration of the various forms of disciplinary punishments applicable to prisoners”.Footnote 134 This is because prior to 1949 and even todayFootnote 135 there exists a divergence in the systems of disciplinary sanctions imposable to armed forces of different States. This uncertainty on the concept and domain of disciplinary sanctions, as described by the 1960 Commentary, could present many disadvantages and “is likely to result in different treatment for the same offence, in a world where conceptions were and still are divergent”.Footnote 136 The possible disciplinary punishments are fine, discontinuance of privileges granted over and above the treatment provided for by GC III, fatigue duties and confinement. No other form of disciplinary punishment is permissible.
Article 90(1) limits the duration of any single disciplinary punishment to a maximum of thirty days which may not be exceeded, even if the PoW is accountable for several disciplinary offences at the time when he is awarded punishment, whether such acts are related or not.Footnote 137 Yet, Article 89 does not prohibit cumulating the listed sanctions for a single offence.Footnote 138 In any case, in accordance with Article 87(1), the Detaining Authority “would need to ensure that the chosen punishment corresponds in its severity to the punishment provided for in respect of members of its armed forces who have committed the same acts”.Footnote 139 Moreover, in accordance with Article 87(2), the Detaining Power shall exercise leniency to reduce the disciplinary measure to less than the penalties prescribed.
In GC III, the term “confinement” refers both to a type of permissible disciplinary sanction and a pre-hearing period of deprivation of liberty.Footnote 140 In principle, pre-hearing confinement either before disciplinary proceedings or criminal trial is not allowed,Footnote 141 unless a member of the armed forces of the Detaining Power would be so kept if he were accused of a similar offence.Footnote 142 The other exception is when the confinement is essential in the interests of camp order and discipline,Footnote 143 or when, in the case of judicial proceedings, the interests of the essential national security of the Detaining Power so requires.Footnote 144 In regard to the latter exception, the Commentary stipulates that in interpreting the exception in Article 95(1), confinement awaiting disciplinary hearing is limited only to “absolutely necessary” or “extremely important” cases.Footnote 145 Likewise, in the cases of pre-trial confinement pursuant to Article 103(1), bearing in mind that “the relevant national security standard would require an additional threat beyond that person's status as a member of the enemy armed forces”,Footnote 146 the Commentary states that the term “essential” should be interpreted in a very limited nature to only cover “reasons that are ‘absolutely necessary’ or ‘fundamental’ to the national security interests in question”.Footnote 147 The Commentary obliges the Detaining Power to consider alternatives and lesser measures than confinement capable of neutralizing the relevant threat.Footnote 148 Although the Commentary, following the silence of GC III, does not discuss any threshold of necessity for pre-hearing confinement carried out in accordance with the principle of assimilation (the first exception), observation of leniency considerations may justify adhering to the same criterion of necessity for the case of such pre-hearing confinement. This is because PoWs are already under the control of the Detaining Power and therefore the risk of escape is not high. Hence, it can be suggested that, based on leniency considerations, there should be other reasons than the mere permission of confinement under national laws to justify such confinement.
Capital punishment remains as one of the penal sanctions which may be imposed on PoWs, while in accordance with Article 100(3), the leniency considerations, as previously discussed,Footnote 149 may to some extent prevent the courts of the Detaining Power from pronouncing the death sentence.Footnote 150 In any case, pursuant to Article 101, the death sentence shall not be executed before the expiration of a period of at least six months from the date when the Protecting Power receives the detailed communication provided for in Article 107. The Commentary calls this provision a “strict condition for the execution of a death sentence”Footnote 151 and states that non-compliance will amount to a grave breach of the Convention,Footnote 152 even in the case of the absence of a Protecting Power or a substitute.Footnote 153
Protection of women and children PoWs
Due to the involvement of women in armed conflicts,Footnote 154 GC III also contains provisions that provide specific protection for women PoWs, in general, as well as those who are under sanction, in particular.Footnote 155 In addition to these specific protections, it is obvious that the general obligations of the Detaining Power in regard to the sanction regime of PoWs including the exercise of the greatest leniency will be applied to women PoWs as well.
Conversely, the Chapter on penal and disciplinary sanctions does not address directly the specific protection of children. The Commentary with reference to Articles 75(5) and 77(4) of the Additional Protocol I perceives that “infants or very young children generally must be accommodated with their parents”.Footnote 156 It further requires that if a PoW is under 18 years old, he/she must be separated from adults, except where families are accommodated as a unit.Footnote 157 The Commentary also refers to the 1989 Convention on the Rights of the Child,Footnote 158 and stipulates that the best interest of the child must be considered in all cases.Footnote 159 The ICRC holds the view that based on international law “children are entitled to special respect and protection, including in the matter of disciplinary or judicial proceedings”.Footnote 160 In particular, the juvenile justice system should govern any sentencing process against a child PoW. Furthermore, in the case of child soldiers recruited by one of the belligerents, in conformity with Article 87(2) and the obligation to exercise the greatest leniency, the fact that the child is actually a victim of the violation of international law and his/her participation in armed conflicts is in essence against his/her free will, has also to be considered.Footnote 161
These considerations may also advise the judge to exercise a lenient approach when the accused PoW perpetrated the crimes prior to capture during his/her childhood. For example, in the subsequent Nuremburg trials, the death sentences announced against German PoWs involving the shooting of surrendered prisoners at the Battle of the Bulge, known as Army cases, were commuted to life or to a period of years during the review process as most of these cases “involved privates or junior officers who had joined the army in their teens or early manhood and from youth had never known a life free from Nazi ideology”.Footnote 162
Repatriation of accused or convicted PoWs
Another reflection of the general obligation to exercise the greatest leniency in the execution of sanctions exists in the Chapter on the termination of captivity. Article 115(1) in line with leniency considerations indicates that not undergoing or non-completion of a disciplinary punishment does not deprive eligible wounded or sick PoWs from repatriation or from accommodation in a neutral country. The ICRC states that the purpose of this provision “is to alleviate the potentially negative effects of long-term internment on the mental, and sometimes physical, health of prisoners of war”.Footnote 163 Accordingly, it appears that the same considerations may justify exercising the greatest leniency with respect to those PoWs who are not wounded or sick but are subjected to disciplinary punishment while awaiting repatriation or internment in a neutral country pursuant to an agreement based on the second sentence of Article 109(2).
Article 115(2) contains the same regulation concerning eligible PoWs detained in connection with a criminal prosecution or conviction, with the difference that for their repatriation or accommodation in a neutral country the consent of the Detaining Power is required. Pursuant to this provision, the Detaining Power is allowed to keep the sick or wounded PoWs in its hands for the duration of the judicial proceedings or until they have served their penal sentences. However, it seems acceptable to argue that for a PoW who is detained in relation to the prosecution of a minor offence or, using the analogy with the disciplinary confinement, is convicted for less than one month's imprisonment, or only one month of his/her imprisonment has left to serve,Footnote 164 it is justified to request the Detaining Power to exercise the greatest leniency and not to prevent the repatriation or accommodation of these PoWs.Footnote 165
Concluding remarks
The obligation to exercise leniency towards PoWs is a continuation of the principle of humanity, which lies at the core of GC III. This paper, in light of the ICRC updated Commentary, demonstrates how the application of leniency considerations on the GC III provisions on disciplinary and judicial measures as a whole contributes to achieving the Convention's aims. While the principle of humanity sets the minimum standard of treatment, leniency is an appeal to go beyond this threshold. In the context of disciplinary and judicial measures, the greatest leniency that a Detaining Power is obliged to apply in adjudicating the offences committed by PoWs does not necessarily lead to solid outcomes. Yet, it requires the Detaining Power to interpret and implement its obligations under Chapter III in a way that is more favourable towards those PoWs who face allegations and sanctions.
