Thematic index Alphabetical index

Judicial Guarantees

Judicial guarantees are among the fundamental rights accorded to individuals under the international conventions regulating humanitarian law and human rights. The aim of judicial guarantees is to ensure that

  • no individual accused of a crime is convicted without having had a chance to defend him- or herself in a fair trial, and
  • all persons are given the opportunity to contest or file a complaint against a measure or action that is prejudicial to them or jeopardizes their safety. There is no point in giving rights to individuals if the victims of violations cannot see justice done and obtain reparation for the injury incurred.

The specific due process rights that are guaranteed differ in times of peace and times of conflict.

International humanitarian law applies only in situations of international and non-international armed conflict, and the content of judicial guarantees varies depending on the nature of the conflict. In situations of conflict, the State remains subject to the respect for judicial guarantees provided by human rights conventions (subject to authorized derogations) toward its own citizens but also toward foreign territories and individuals under its effective control, notably in cases of detention or military occupation.

In situations of detention or internment, disciplinary measures can have dangerous consequences on the health and physical integrity of individuals. Judicial guarantees provided by humanitarian law protect individuals against unfair criminal or disciplinary measures.

II. Due Process Rights Established in Human Rights Conventions

The International Covenant on Civil and Political Rights (ICCPR), adopted 16 December 1966 by the General Assembly of the UN (GA Resolution 2200 A, XXI), sets out certain judicial guarantees from which no derogation is permitted. This means that these rights must be protected in all circumstances, including in times of conflict and during internal disturbances and tensions.

The provisions of the ICCPR are reflected, almost verbatim, in two regional conventions: the American Convention on Human Rights (ACHR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

1. Inalienable Due Process Rights

The judicial guarantees from which no derogation is permitted under the ICCPR are in its Articles 6, 15, and 16. These are as follows:

  • The recognition that all persons have legal personality—in other words, they must be recognized as a person before the law. This means that a State may not limit a person’s right to defend his or her rights in a system of justice (Art. 16 of ICCPR, Art. 3 of ACHR).
  • The principle of non-retroactivity of punishment (freedom from ex post facto laws, or nullum crimen sine lege ). This means that, under both national and international law, no one can be held guilty of a criminal offense on account of an act or omission that did not constitute a crime when it was committed (Art. 15.1 of ICCPR, Art. 9 of ACHR, and Art. 7.1 of ECHR).
  • Following the same reasoning, a heavier penalty may not be imposed than the one that was applicable at the time the act was committed. However, if a new provision has been adopted into law for the imposition of a lighter penalty, the offender must benefit from it (Art. 15.1 of ICCPR, Art. 9 of ACHR, and Art. 7.1 of ECHR)

These are the same guarantees that are protected during situations of armed conflict by the Geneva Conventions. However, in the case of detention or internment, disciplinary measures may have dangerous consequences for the physical and mental health of an individual. Judicial guarantees protect individuals from unfair sentencing to penal sanctions. To protect detained or interned individuals, humanitarian law requires that judicial guarantees also be applied to disciplinary measures taken in such circumstances, for which it specifies certain precise guarantees (infra II).

➔ Fundamental guarantees ; Non-retroactivity

Furthermore, the ICCPR regulates, in a non-derogable manner, the application of the death penalty (Arts. 6.2–6.6). It restricts this penalty to only the most serious crimes and prohibits it for persons under the age of eighteen and pregnant women. These provisions are reflected in the ACHR (Arts. 4.2–4.6), which goes one step further and prohibits States from reestablishing the death penalty once it has been abolished (Art. 4.3).

2. A Fair and Impartial Trial

In all circumstances, including conflicts, no human being may be deprived of liberty, convicted, or punished outside the framework established by laws. This is part of the fundamental judicial guarantees applicable in all countries.

International law establishes precise rules to protect the right to a fair trial, for all individuals, in all circumstances. Within that framework, there are specific sets of norms that regulate the judicial guarantees provided in times of peace or of conflict, for civilians or combatants. The rules reflect the general principles adopted by domestic courts and have been translated into customary law.

The right to a fair trial rests on the following principles:

  • the right to be judged by an impartial court established by law;
  • the right to be judged on the basis of legislation enacted according to law and in force at the time of the events;
  • the right to be informed of the nature and cause of the charges;
  • the right to be judged for acts for which the accused is personally responsible; and
  • the right to defend oneself, meaning at the very least having the opportunity to have one’s defense heard.

Article 14 of the ICCPR details the rules that guarantee a fair and impartial hearing. These are now the recognized norms by which to regulate international judicial proceedings. However, the provisions of this article are not included in the list of inalienable rights. In situations of internal disturbances or tensions, certain rights can be limited by laws of exception. Nonetheless, this system of derogations may lead to the absurd result that those judicial guarantees would not apply in situations of internal disturbances and tensions but they would apply in situations of armed conflict. Indeed, the judicial guarantees applicable in international or non-international armed conflict provided for by the 1977 Additional Protocols are very close to those contained in human rights conventions.

The rules are as follows:

  1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. . . .
  2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.
  3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
  4. To be informed promptly and in detail, in a language which he understands, of the nature and cause of the charge against him;
  5. To have adequate time and facilities for the preparation of his defence, and to communicate with counsel of his own choosing;
  6. To be tried without undue delay;
  7. To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing . . . or to have legal assistance assigned to him. . . .
  8. To examine, or have examined, the witnesses against him, and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
  9. To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
  10. Not to be compelled to testify against him/herself or to confess guilt.
  11. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation [see below for further details].
  12. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
  13. When a person has been convicted of a criminal offence by a final judgment and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law. . . .
  14. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. (Art. 14 of ICCPR)

The rules guaranteeing a fair and impartial trial are also reflected in similar terms in the ACHR (Art. 8) and ECHR (Art. 6).

Specific Guarantees Provided for Children

Beyond Article 14 of the ICCPR, specific judicial guarantees provided for children were developed and clarified by various UN legal instruments.

The UN Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), adopted by General Assembly resolution 40/33 of 29 November 1985, apply to juvenile offenders without distinction of any kind (Art. 2.1). The Beijing Rules recommend to fix the minimum age of criminal responsibility, specifying that the beginning of that age shall not be fixed at too low an age level (Art. 4.1). They advocate for new means to be used to reach efficient protection and reeducation of children. They also stress the importance of community support services and mediation as means to deal, where appropriate, with juvenile offenders without resorting to formal trial by the competent authority (Art. 11). In addition, the UN aims to strengthen protection rules before the competent authority: juvenile justice shall be conceived as an integral part of the national development process of each country, within a comprehensive framework of social justice for all juveniles, thus, at the same time, contributing to the protection of the young and the maintenance of a peaceful order in society (Art. 1.4). Finally, the Beijing Rules stress the need for alternative measures to avoid detention in the interest of the well-being of the juvenile (Art. 11.1). ➔ Children ;Detention

The general guidelines developed by the Beijing Rules were further detailed in the Convention on the Rights of the Child of 20 November 1989. Article 40 of the Convention addresses a number of recommendations to States Parties regarding their way of dealing with juvenile offenders: the treatment of these latter shall be directed to the development of their dignity, of respect for human rights and fundamental freedoms. Their age, together with their necessary reintegration into society shall also be taken into consideration. Finally, only conducts prohibited at the time they were committed should be punished. The Convention provides juvenile offenders with various safeguards, including to be presumed innocent until proven guilty according to law; to have one’s matter determined without delay by a competent, independent, and impartial authority or judicial body in a fair hearing according to law; and not to be compelled to give testimony or to confess guilt, among others.

Two Optional Protocols to the Convention were adopted on 25 May 2000 to enhance the protection of children from involvement in armed conflict and from sexual exploitation. ▸ Children

In line with the Beijing Rules, the UN adopted two major documents in 1990: the Riyadh Guidelines and the Havana Rules.

The Riyadh Guidelines (adopted by GA Resolution 45/112 of 14 December 1990) set forth the UN guidelines for the prevention of juvenile delinquency. They stress the importance of family, the community, and education and set forth various provisions on social assistance, legislation, and administration of juvenile justice.

The Havana Rules (adopted by GA resolution 45/113 of 14 December 1990) are intended to establish minimum standards accepted by the UN for the protection of juveniles deprived of their liberty. They set forth the fundamental principle that deprivation of liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases. Following the definition of a juvenile as every person under the age of eighteen, the Havana Rules review the various aspects and conditions of their detention, including preparation for their return to society.

3. Judicial Guarantees of Humanitarian Law

In times of armed conflict, the normal functioning of a system of justice may be severely hindered. The rules for controlling public order and the applicable criminal laws may be modified in different ways for a territory that is occupied or one that is not, and for various categories of persons. Humanitarian law therefore establishes the minimum judicial guarantees that must be provided in such circumstances, paying particular heed to the protection of persons deprived of liberty or populations in occupied territories. These include provisions protecting a person’s guarantees in cases in which disciplinary measures are adopted.

The failure to respect the fundamental judicial guarantees applicable in times of international and non-international conflict is considered a war crime by the ICC (Art. 8.2.c.iv of the Rome Statute).

In international armed conflict, the fact of willfully depriving a prisoner of war or a protected person of his or her right to a fair and regular trial is a grave breach of IHL (GCIII Art. 130, GCIV Art. 147) and constitutes a war crime under the Statute of the ICC (Art. 8.2.a.vi). As such, these crimes may be judged by the national courts of any State, even if the State has no significant links to the accused or to the acts committed, under the principle of universal jurisdiction.

➔ Universal jurisdiction ; War crimes/Crimes against humanity

As will be explained below, specific minimum standards are established for both international and non-international armed conflicts. These minimum guarantees are complemented in situations of increased risk or for particularly vulnerable persons such as prisoners of war, persons deprived of liberty, populations in occupied territories, and children.

Judicial Guarantees Applicable to All Persons in Times of Armed Conflict

Most due process rights protected by humanitarian law remain applicable in both international and non-international armed conflict. There are certain differences, however.

4. Inalienable Rights

The three inalienable due process rights established by international human rights conventions (explained above) are reflected in specific humanitarian law provisions and therefore remain applicable in times of armed conflict.

  • The recognition that all persons have legal personality: This means that individuals must always have access to a system of justice to defend their rights. Internees and prisoners of war, for instance, must always retain their “full civil capacity” and be able to exercise the rights this capacity confers on them (GCIII Art. 14, GCIV Art. 80). The ability to challenge individual detention in front of a court is one of the most fundamental rights, known as the right to habeas corpus . 

    ➔ Detention ; Fundamental guarantees

  • The principle of non-retroactivity of criminal laws and punishment: In humanitarian as in human rights law, no one may be prosecuted for an act or omission that did not constitute a criminal offense under the national or international law to which it was subject at the time it was committed (GCIII Art. 99; GCIV Arts. 65, 67; API Art. 75; and APII Art. 6).
  • A heavier penalty may not be imposed than the one that was applicable at the time the act was committed. However, if a new law was adopted after the act was committed that provides for the imposition of a lighter penalty, the offender must benefit from it.

5. Judicial Guarantees in All Situations of Armed Conflict

The Geneva Conventions and their Additional Protocols have also set out certain specific judicial guarantees that must be applied broadly in all types of armed conflict. These are established in the following:

  • Common Article 3 of the Geneva Conventions
  • Article 75.4 of Additional Protocol I and Article 6 of Additional Protocol II

These articles list the details of such “judicial guarantees which are recognized as indispensable by civilized peoples” (GCI–IV Common Art. 3). They concern the prosecution and punishment of criminal offenses that are related to the armed conflict and that are applicable to persons who are not, or are no longer, taking part in hostilities.

The two 1977 Additional Protocols have developed in almost identical terms the rules contained in Common Article 3, notably regarding the right to a fair trial. This specific wording is intended to take into account the specificities of non-international armed conflicts (Additional Protocol II). Additional Protocol I provides supplementary guarantees in times of international armed conflict.

Judicial Guarantees Applicable in All Situations of Armed Conflict

  • “The following acts are and shall remain prohibited at any time and in any place whatsoever with respect to persons taking no active part in the hostilities . . . : the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” (GCI–IV Common Art. 3.1.d).

Those fundamental guarantees, contained in Common Article 3, are now recognized as mandatory rules of customary law. This means that they apply at all times and with respect to all individuals who are under the authority of the adverse party, including members of non-state armed groups or terrorists groups which are not signatories to international conventions. These guarantees also apply in situations that do not amount to an international or a non-international armed conflict in addition to relevant human rights guarantees. The customary character of these guarantees has been reaffirmed by international courts and by the U.S. Supreme Court. ➔ Customary international law ; Fundamental guarantees

  • “No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
    1. the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defense;
    2. no one shall be convicted of an offence except on the basis of individual penal responsibility;
    3. no one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
    4. anyone charged with an offence is presumed innocent until proved guilty according to law;
    5. anyone charged with an offence shall have the right to be tried in his presence;
    6. no one shall be compelled to testify against himself or to confess guilt” (API Art. 75.4, APII Art. 6.2).
  • “A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised” (API Art. 75.4.j, APII Art. 6.3).

  • Judicial guarantees are also provided for in the study on the rules of customary international humanitarian law published by the ICRC in 2005 (customary IHL study). Most of these rules are applicable in both international and non-international armed conflicts. They represent minimum guarantees that apply to all parties to the conflict, without prejudice of their other obligations under the Geneva Conventions or the 1977 Additional Protocols:

    ° Rule 99: Arbitrary deprivation of liberty is prohibited. States or non-state armed groups that apply this rule must apply strict procedural guarantees.

    ° Rule 100: No one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees.

    ° Rule 101: No one may be accused or convicted of a criminal offence on account of any act or omission that did not constitute a criminal offence under national or international law at the time it was committed; nor may a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed.

    ° Rule 102: No one may be convicted of an offence except on the basis of individual criminal responsibility.

    ° Rule 103: Collective punishments are prohibited.

Additional Guarantees Applicable in Certain Situations of Armed Conflict

In the case of an international armed conflict, Additional Protocol I guarantees additional due process rights. Some of these are also implicitly valid in internal armed conflicts:

  • In international armed conflict, anyone charged with an offense “has the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him” (API Art. 75.4.g). This is reflected in the rights of the accused in non-international armed conflict, in which he or she has the right to be informed without delay of the particulars of the alleged offense and must be accorded all necessary rights and means of defense before and during the trial (APII Art. 6.2.a).
  • No one may be prosecuted or punished by the same party for an offense for which he or she has already been finally convicted or acquitted under the same law and judicial procedure (API Art. 75.4.h). This is a firmly established principle of criminal law, known as protection from double jeopardy (or ne bis in idem ) and is one of the main due process guarantees identified in the ICCPR (Art. 14.7, quoted earlier). This guarantee is reflected in the Statutes of the ICTY (Art. 10), the ICTR (Art. 9), and the ICC (Art. 20) and is therefore applicable in any internal armed conflict covered by these tribunals.
  • Anyone prosecuted for an offense has the right to have the judgment pronounced publicly (API Art. 75.4.i).
  • In international armed conflict, the fact of willfully depriving a prisoner of war or a protected person of his or her right to a fair and regular trial is a grave breach of IHL (GCIII Art. 130, GCIV Art. 147) and constitutes a war crime under the Statute of the ICC (Art. 8.2.a.vi). As such, these crimes may be judged by the national courts of any State, even if the State has no significant links to the accused or to the acts committed, under the principle of universal jurisdiction.

Additional Guarantees Applicable in Non-international Armed Conflict

Additional Protocol II provides measures for persons deprived of their liberty and prosecuted for reasons related to the conflict (APII Arts. 5, 6). Those measures aim at restricting the legal asymmetry that exists in non-international armed conflicts. Those provisions are particularly important for members of non-state armed groups who are considered criminals in the eyes of their domestic law because of their participation in the hostilities. Indeed, humanitarian law does not recognize combatant status for members of such groups, nor the rights attached thereto, for example, prisoner-of-war status. Article 6 of Additional Protocol II elaborates on the judicial guarantees mentioned in Common Article 3, notably the right to a fair trial (also provided by Rule 100 of customary international humanitarian law). Article 6 supersedes contrary provisions contained in domestic law.

Contrary to what was stated in Common Article 3 and Additional Protocol I, Additional Protocol II modifies the wording of judicial and detention guarantees so that detention/internment and sentences pronounced by non-state armed groups are not considered arbitrary, even if they may be considered as such under domestic law.

Article 6 of Additional Protocol II specifies that no sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. Indeed, this new wording departs from the requirement that the court be “regularly” constituted, as provided for international armed conflict. This change shows the intention to compel non-state armed groups to respect these guarantees for their own detention or trial activities.

Additional Protocol II recommends that authorities grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained (Art. 6.5). This recommendation only concerns the domestic criminal offense of taking part in the hostilities for members of non-state armed groups and does not apply to war crimes.

➔ Amnesties

Specific Judicial Guarantees Provided by Humanitarian Law for Certain Categories of Persons

International humanitarian law establishes provisions to protect the due process rights of certain specific categories of persons. These guarantees are meant to be applied in times of international armed conflict, but they can serve as a framework when working in other types of conflicts.

These judicial guarantees—derived mainly from the Geneva Conventions—concern prisoners of war, internees, civilians in occupied territories, women, and children.

III. Prisoners of War (Third Geneva Convention)

Articles 82 to 107 provide the rules for penal and disciplinary sanctions that may be applied to prisoners of war.

  • A prisoner of war shall be subject to the laws of the detaining power and its military tribunals. However, no proceedings or punishments contrary to the provisions of the Third Geneva Convention shall be allowed. If a prisoner of war is prosecuted for an act that would not normally be considered punishable by the detaining power, any resulting punishment may only be disciplinary, not penal (GCIII Art. 82).
  • The detaining power shall adopt disciplinary rather than judicial measures, wherever possible (GCIII Art. 83).
  • A court that tries a prisoner of war shall offer the essential guarantees of independence and impartiality and shall ensure that the procedure provides the accused with the rights and means of defense provided for in Article 105 (GCIII Art. 84).
  • Even if convicted, prisoners of war prosecuted for acts committed prior to capture shall remain under the protection of the Third Geneva Convention (which mainly establishes that the right to file complaints, and the rules regulating penal and disciplinary sanction, may never be infringed on, as established by Arts. 78–126) (GCIII Arts. 85, 98).
  • No prisoner of war may be punished more than once for the same act or on the same charge (GCIII Art. 86).
  • Prisoners of war may not be sentenced to any penalties except those provided for members of the armed forces of the detaining power who have committed the same acts. The courts or authorities shall be at liberty to reduce the penalty prescribed and may even go below the minimal provision, given that the accused, not being a national of the detaining power, is not bound to it by any duty of allegiance (GCIII Art. 87).
  • Collective punishment for individual acts, corporal punishments, imprisonment in premises without daylight, and, in general, any form of torture or cruelty are forbidden (GCIII Art. 87).
  • A prisoner of war undergoing a disciplinary or judicial punishment shall not be subjected to more severe treatment than that applied to members of the armed forces of the detaining power of equivalent rank undergoing the same punishment. In particular, a woman prisoner of war shall not be sentenced to punishment more severe or undergo punishment in worse conditions than a woman member of the armed forces of the detaining power punished for a similar offense. Prisoners of war who have served disciplinary or judicial sentences shall not be treated differently from other internees (GCIII Art. 88).
  • The scale of applicable disciplinary punishments is clearly established by the Convention. Among other things, fatigue duties (military chores) may not exceed two hours per day and may not be applied to officers. In no case shall disciplinary punishments be inhuman, brutal, or dangerous to the health of prisoners of war (GCIII Art. 89).
  • In no case shall the duration of any single punishment exceed thirty days, even if the prisoner is answerable for several acts at the same time. If a prisoner of war is later sentenced to further disciplinary punishment, a period of at least three days shall separate the execution of the two punishments (GCIII Art. 90).
  • Attempting to escape, or aiding and abetting an escape, even if it is a repeated offense, shall occasion disciplinary punishment only (GCIII Arts. 92, 93).
  • If a prisoner escapes, or is recaptured after an escape, the detaining power will notify the power on which the prisoner depends, in the manner defined in Article 122 of the Convention (GCIII Art. 94).
  • A prisoner of war accused of a disciplinary infraction shall not be kept in confinement pending the hearing. In no case shall this confinement exceed fourteen days (GCIII Art. 95).
  • Acts that constitute offenses against discipline shall be investigated immediately. The accused shall be given precise information regarding the offenses of which he or she is accused, and given an opportunity of explaining his or her conduct and of defending him- or herself. The prisoner shall be permitted to call witnesses and to have recourse to the services of a qualified interpreter. A record of disciplinary punishments shall be maintained by the camp commander and shall be open to inspection by representatives of the protecting power. The power to order disciplinary punishment may in no case be delegated to or exercised by a prisoner of war (GCIII Art. 96).
  • In no case shall prisoners of war be transferred to penitentiary establishments to undergo their disciplinary punishment. All premises in which disciplinary punishments are undergone shall conform to the sanitary requirements that are established for the living conditions of prisoners of war (GCIII Art. 25). Separate disciplinary premises shall be provided for officers and persons of equivalent status, for non-commissioned officers or troops, as well as for women who must be under the immediate supervision of women (GCIII Art. 97).
  • Prisoners of war undergoing disciplinary punishment shall continue to enjoy the protection of the Third Geneva Convention. They shall be allowed to be present at the daily medical inspections and to receive the necessary medical attention, to exercise and stay in the open air at least two hours per day, to read and write, and to send and receive letters (GCIII Art. 98).
  • No prisoner of war may be tried or sentenced for an act that was not forbidden by the law of the detaining power or by international law at the time the said act was committed. No moral or physical coercion may be exerted on a prisoner of war in order to induce him or her to admit guilt. No prisoner of war may be convicted without having had an opportunity to present his or her defense (GCIII Art. 99).
  • Prisoners of war and the protecting powers shall be informed as soon as possible of the offenses that are punishable by the death sentence under the laws of the detaining power. Before pronouncing a death sentence, the court must take into consideration the fact that the accused, not being a national of the detaining power, is not bound to it by any duty of allegiance (GCIII Art. 100).
  • If the death penalty is pronounced on a prisoner of war, the sentence shall not be executed before at least six months after the date at which the protecting power was informed of this decision (GCIII Art. 101).
  • A sentence is valid only if it was pronounced by the same courts, and according to the same procedure, as in the case of members of the armed forces of the detaining power (GCIII Art. 102).
  • During periods of confinement awaiting trial, prisoners of war will benefit from the same rights and guarantees as those applicable to prisoners of war carrying out a disciplinary punishment (GCIII Art. 103).
  • The protecting power must be notified following precise rules every time judicial proceedings are begun against a prisoner of war; otherwise, the proceedings may have to be adjourned (GCIII Art. 104).
  • The prisoner of war is entitled to a qualified advocate or counsel, who will have at least two weeks to prepare for the trial. Particulars of the charges shall be communicated to the accused and his or her advocate, in a language that he or she understands, and in good time before the opening of the trial. Representatives of the protecting power may attend the trial (GCIII Art. 105).
  • Every prisoner of war has the right of appeal, petition, or revision of any sentence (GCIII Art. 106).
  • Any judgment and sentence pronounced shall be immediately reported to the protecting power (GCIII Art. 107).

  • Sentences shall be served in the same establishments and under the same conditions as provided for members of the armed forces of the detaining power (GCIII Art. 108).

    ➔ Prisoners of war

Internees (Fourth Geneva Convention, Articles 42, 43, 78, and 117–126)

  • A civilian may only be interned or placed in assigned residence by the detaining power when security concerns make it “absolutely necessary.” The interned person must be able to appeal such a decision, and the detaining power must create an appropriate court or administrative board for the specific purpose of reconsidering such decisions as quickly as possible (GCIV Arts. 42, 43, and 78). This court or administrative board shall give consideration to these cases periodically, at least twice each year (GCIV Art. 43).
  • Articles 117 to 126 establish the judicial guarantees governing the rules for penal and disciplinary sanctions for acts committed by interned persons during their internment.
  • Internees are subject to the laws of the territory on which they find themselves. If these laws establish that a given act is punishable when committed by an interned person—but not when committed by someone who is not—any resulting punishment may only be disciplinary, not penal (GCIV Art. 117).
  • In passing sentences, the courts must take into account the fact that the defendant is not a national of the detaining power. They are free to reduce the penalty prescribed, and may even go below the minimal provision. Internees who have served a sentence shall not be treated differently from other internees. The duration of preventive detention undergone by an internee shall be deducted from any disciplinary or judicial penalty involving confinement to which he or she may be sentenced. The appropriate Internee Committees shall be informed of all judicial proceedings instituted against internees (GCIV Art. 118).
  • Article 119 lists and limits the disciplinary punishments applicable to internees: the measures may in no case be inhuman, brutal, or dangerous for the health of internees; they must take into account the internee’s age, sex, and state of health; the duration of any single punishment may not exceed thirty consecutive days, even if the internee is answerable for several breaches of discipline (GCIV Art. 119).
  • Escape or attempted escape shall be liable only to disciplinary punishment, even if it is a repeated offense. Furthermore, it shall not be deemed an aggravating circumstance if an internee is being prosecuted for other offenses (GCIV Arts. 120, 121).
  • For all internees, confinement awaiting trial shall not exceed fourteen days and shall be deducted from the final sentence (GCIV Art. 122).
  • Only the commandant of the place of internment, or a responsible officer or official to whom the commandant has delegated the appropriate disciplinary powers, may order disciplinary punishment. The commandant must maintain a record of disciplinary punishments that will be open to inspection by representatives of the protecting power (GCIV Art. 123).
  • Internees shall not, in any case, undergo disciplinary punishment in penitentiary establishments (prisons, penitentiaries, convict prisons, etc.). The premises in which such punishments are undergone must be in conformity with sanitary requirements. Internees shall in particular be provided with adequate bedding and will be able to wash themselves. Women internees undergoing disciplinary punishment shall be confined in separate quarters from males and be under the immediate supervision of women (GCIV Art. 124).

  • Internees undergoing disciplinary punishment shall be allowed to exercise and to stay in the open air at least two hours each day. They shall be allowed, at their request, to be present at the daily medical inspections and to receive the necessary medical attention. They shall have permission to read and write, likewise to send and receive letters (GCIV Art. 125).

    ➔ Detention ; Internment

Humanitarian law establishes a similar level of guarantees to regulate penal as well as disciplinary sanctions for acts committed by persons deprived of liberty for reasons related to a conflict.

Civilian Persons in Occupied Territories (Fourth Geneva Convention, Articles 47, 54, 64, and 66–75)

  • The occupying power may subject the population of the occupied territory to provisions that it considers essential to ensure its own security and to “maintain the orderly government of the territory.” To this effect, it may repeal or suspend the penal laws of the occupied territory that were in force. However, the new provisions shall have no retroactive effects and shall not come into force until they have been published and brought to the knowledge of the inhabitants in their own language (GCIV Arts. 64, 65).
  • Furthermore, the occupying power cannot, in any case or in any manner, whether by passing laws or adopting regulations, deprive the persons in the occupied territory of the protection of the Fourth Geneva Convention (GCIV Art. 47).
  • It is also forbidden to alter the status of public officials or judges in the occupied territories, or to sanction them in any way, or to take any measures of coercion or pressure against them, if they abstain from fulfilling their functions for reasons of conscience (GCIV Art. 54). They can still be requisitioned, however, in conformity with Article 51.
  • In case a civilian in an occupied territory commits a breach of the penal provisions adopted by the occupying power, the latter may hand over the accused to its own military courts, to make up for the insufficiencies of local courts. However, in these cases, Article 66 requires that the military courts be “properly constituted and non-political.” Furthermore, such courts must sit in the occupied country. They must take into consideration the fact that the accused is not a national of the occupying power, may apply only those provisions of law that were applicable prior to the offense, and must respect the principle that the penalty shall be proportional to the offense (GCIV Art. 67).
  • A protected person may only be sentenced to the death penalty in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the occupying power, or of intentional offenses that caused the death of one or more persons. The death penalty may only be applied if such offenses were already punishable by death under the law of the territory in force before the occupation began. In any case, the death penalty may not be pronounced against a protected person who was under eighteen years of age at the time of the offense (GCIV Art. 68).
  • In all cases, the duration of the period during which an accused civilian was under arrest awaiting trial or punishment shall be deducted from any prison sentence (GCIV Art. 69).
  • Protected persons shall not be arrested, prosecuted, or convicted by the occupying power for acts committed or for opinions expressed before the occupation. An exception is made in the case of breaches of the laws and customs of war. Nationals of the occupying power, who, before the outbreak of hostilities, sought refuge in the territory of the occupied State, shall not be arrested, prosecuted, convicted, or deported from the occupied territory, unless they committed offenses after the outbreak of hostilities. They may also be arrested for ordinary criminal offenses committed before the outbreak of hostilities and which would have justified extradition in time of peace (GCIV Art. 70).
  • Sentences shall only be pronounced by the competent courts of the occupying power and only after a regular trial. Furthermore, the protecting power may request to be notified of the key elements concerning the trial and shall have the right to attend the trial (GCIV Arts. 71, 74).
  • Accused persons shall have the right to present evidence necessary for their defense and to be assisted by a qualified advocate or counsel (GCIV Art. 72). They shall also have the right of appeal (GCIV Art. 73).

  • Persons condemned to death always have the right of petition for pardon or reprieve. No death sentence may be executed until at least six months after the date at which the protecting power was informed of the final judgment (GCIV Art. 75).

    ➔ Occupied territory ; Protecting powers

IV. Women and Children

📖 Bibliography

  • Gasser, Hans-Peter. “Respect for Fundamental Judicial Guarantees in Time of Armed Conflict—the Part Played by ICRC Delegates.” International Review of the Red Cross 287 (March–April 1992): 121–43.
  • Hampson, Françoise J. “The Relationship between International Humanitarian Law and Human Rights Law from the Perspective of a Human Rights Treaty Body.” International Review of the Red Cross 871 (September 2008): 549–627.
  • Inter-American Court of Human Rights. “Judicial Guarantees in States of Emergency (Art. 27(2), 25 and 8 of the American Convention on Human Rights),” Advisory Opinion OC-9/87, October 6, 1987, Inter-Am. Ct. H. R. (Ser. A) No. 9 (1987).
  • Lawyers Committee for Human Rights. What Is a Fair Trial? A Basic Guide to Legal Standards and Practice . 2001. Available at http://www.justiceinitiative.org/db/resource2/fs/?file_id=13775.
  • Olivier, Clémentine. “Revisiting General Comment No. 29 of the Human Rights Committee: About Fair Trial Rights and Derogations in Times of Public Emergency.” Leiden Journal of International Law 17, no. 2 (2004): 405–19.
  • Olivier, Clémentine, and William A. Schabas. “What Criminal Procedure Should Govern Terrorist Offenses: Ordinary or Special Rules?” In Terrorism, Victims and International Criminal Responsibility , edited by G. Doucet, 81–95. Paris: SOS-Terrorism/SOS-Attentats, 2003.
  • Pejic, Jelena. “The Protective Scope of Common Article 3: More Than Meets the Eye.” International Review of the Red Cross 881 (March 2011): 189–225.