[p.1395] Article 6 -- Penal prosecutions
[p.1396] General remarks
4597
The whole of Part II ' (Humane treatment) ' is aimed at ensuring respect
for the elementary rights of the human person in non-international armed conflicts. Judicial guarantees play a
particularly important role, since every human
being is entitled to a fair and regular trial,
whatever the circumstances; (1) the guarantees
defined in this article refer to the two stages of the procedure: preliminary investigation and trial. (2) Just like
common Article 3 , Protocol II leaves intact the right of the established
authorities to prosecute, try and convict
members of the armed forces and civilians who
may have committed an offence related to the [p.1397] armed conflict; however, such a situation often
entails the suspension of constitutional
guarantees, the promulgation of special laws and
the creation of special jurisdictions. Article 6 lays down some principles of universal application which every
responsibly organized body must, and can,
respect. (3) It supplements and develops common
Article 3, paragraph 1, sub-paragraph (1)(d) , which prohibits "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". This very
general rule required clarification to
strengthen the prohibition of summary justice
and of convictions without trial, which it already covers. Article 6 reiterates the principles contained in the Third
and fourth Conventions, (4) and for the rest is
largely based on the International Covenant on
Civil and Political Rights, (5) particularly
Article 15, from which no derogation is permitted, even in the case of a public emergency threatening the life of the
nation. In Protocol I, Article 75 ' (Fundamental guarantees) ' contains rules with the same tenor.
Historical background
4598 The
ICRC draft originally contained two articles: ' Principles of penal law
' and ' Penal prosecutions. ' (6) During the preliminary examination of those articles numerous amendments were
submitted; a proposal to combine the two
provisions in a single article was put forward,
(7) and adopted as a starting point; this was the origin of the present Article 6.
Analysis of the article
Paragraph 1 -- The scope of application
4599 This paragraph lays down the scope of application of the
article by confining it to offences related to the armed conflict; these
must be criminal offences and not merely
administrative or disciplinaryoffences or
procedures. ' Ratione personae, ' Article 6 is quite open and applies equally to civilians and combatants who have
fallen in the power of the adverse party and who
may be subject to penal prosecutions.
[p.1398]
Paragraph 2 -- The right to be tried by an independent and impartial
court
' Opening sentence
'
4600 The text repeats paragraph 1,
sub-paragraph (1)(d) of common Article 3 , with a slight modification. The term "regularly
constituted court" is replaced by "a court
offering the essential guarantees of
independence and impartiality". In fact, some experts argued that it was unlikely that a court could be "regularly
constituted" under national law by an insurgent
party. Bearing these remarks in mind, the ICRC
proposed an equivalent formula taken from Article 84 of the Third Convention, (8) which was accepted without
opposition.
4601
This sentence reaffirms the principle that anyone accused of having
committed an offence related to the conflict is entitled to a
fair trial. This right can only be effective if
the judgment is given by "a court offering the
essential guarantees of independence and impartiality". Sub-paragraphs (a)-(f) provide a list of such
essential guarantees; a indicated by the
expression "in particular" at the head of the
list, it is illustrative, only enumerating universally recognized standards.
' Sub-paragraph ' (a) -- ' Right to information and defence
'
4602 The ICRC draft simply provided for
"a procedure affording the accused the necessary rights and means of
defence". (9) That formula was clarified and
developed following the proposal by a delegation, on which the present text is based. (10) The rules laid down
here are very clear and do not give rise to any
difficulties of interpretation: the accused must
be informed as quickly as possible of the
particulars of the offence alleged against him, and of his rights, and he must be in a position to exercise them and be
afforded the rights and means of defence "before
and during his trial", i.e., at every stage of
the procedure. The right to be heard, and, if necessary, the right to call on the services of an
interpreter, the right to call witnesses for the
defence and produce evidence; these constitute
the essential rights and means of defence. (11)
' Sub-paragraph ' (b) -- ' The principle of individual
responsibility '
4603 This sub-paragraph
lays down the fundamental principle of individual responsibility; a
corollary of this principle is that there can be
no collective penal responsibility for acts committed by one or several members of a group. This principle is
contained in every national legislation. It is
already epressed in [p.1399] Article 33
of the fourth Convention, where it is more elegantly worded as follows: "No protected person may be
punished for an offence he or she has not
personally committed". (12) The wording was
modified to meet the requirement of uniformity between the texts
in the different languages and, in this
particular case, with the English terminology
("individual penal responsibility"). Article 75, paragraph 4(b) , of Protocol I, lays down the same
principle.
' Sub-paragraph ' (c) -- ' The
principle of non-retroactivity '
4604
This sub-paragraph sets out two aspects of the principle that penal law
(13) should not be retroactively applied: ' nullum crimen sine lege ' and ' nulla poena sine lege. ' The ICRC draft was
inspired by Articles 99 of the Third Convention, 67 of the fourth Convention and 15, paragraph 1, of the Covenant. (14) The
proposal to adopt this wording was put forward
in an amendment which served as a basis for
discussion. (15) There was a long debate, followed by a vote in Committee resulting in a large majority. (16) The
wording of the Covenant was retained despite
some problems of interpretation owing to the
specific context of non-international armed conflict. This solution was adopted out of a concern to establish in
Protocol II fundamental guarantees for the
protection of human beings, which would be
equivalent to those granted by the Covenant in the provisions from which no derogation may be made, even in time
of public emergency threatening the life of the
nation. (17) Article 15 of the Covenant is one
of those articles. In fact, the relevance of including the principle on non-retroactivity was never
contested, but the first sentence of the
sub-paragraph, and in particular the words "under national or international law", were not considered by
everyone to be very clear.
4605 The possible co-existence of two sorts of national
legislation, namely, that of the State and that of the insurgents, makes
the concept of national law rather complicated
in this context.
4606 The Conference
followed the Covenant, though there was no real explanation given as
regards the meaning to be attributed to the term "national law", which appears in the French text though not
in the English text of this sub-paragraph (as
the reference to "le droit national ou
international" in French has been abbreviated to "the law" in English, the following comments apply more
particularly to the French text, although
clearly "the law" referred to in the English
text does include national law). The interests of the accused
and good faith require that this should be
interpreted in the light of the initial ICRC
proposal, i.e., that no one can be convicted for an act, or for failing to act contrary to a duty to act, when
such an act or omission was not an offence at
the time when it was committed.
[p.1400]
4607 The reference to international law is mainly intended to cover
crimes against humanity. A breach of international law should not go
unpunished on the basis of the fact that the act
or omission (failure to act) concerned was not
an offence under the national law at the time it
was committed. Some delegations suggested replacing the term
under national or international law" by "under
the applicable law" or even by "under applicable
domestic or international law", (18) but the
majority finally considered that it was best to retain the wording of the Covenant "in order to avoid being out of
line".
' Sub-paragraph ' (d) -- ' The
principle of the presumption of innocence '
4608 This sub-paragraph sets out the principle of the
presumption of innocence, which is implicitly contained in Article 67
of the fourth Convention. This
refers to the "general principles of law". It is also contained in Article 14, paragraph 2, of the Covenant.
In addition, it is laid down in Article 75
' (Fundamental guarantees), ' paragraph 4(d), of Protocol I.
' Sub-paragraph ' (e) -- ' The right of the accused to be
present at his own trial '
4609 This
sub-paragraph reiterates the principle laid down in Article 14,
paragraph 3(d), of the Covenant. It is the result of a proposal
in the Working Group which recommended "everyone
charged with an offence shall have the right to
be tried in his presence". (19) The proposal was
not adopted in this form because a number of delegations argued that sentences in absentia are allowed. The right of
the accused to be present at his trial, which is
established here, should be understood as a
right which the accused is free to exercise or
not.
' Sub-paragraph ' (f) -- ' The right
not to be compelled to testify against oneself or to confess guilt
'
4610 This sub-paragraph repeats Article
14, paragraph 3(g), of the Covenant. It was included as the result of a
proposal made by the Working Group.
(20)
Paragraph 3 -- The right to be
informed of judicial remedies and of the time-limits in which they must
be exercised
4611 It was not considered
realistic in view of the present state of national legislation in
various countries to lay down a principle to the
effect that everyone has a right [p.1401] of appeal against sentence pronounced upon him, i.e., to guarantee the
availability of such a right, as provided in the
ICRC draft. (21) However, it is clear that if
such remedies do exist, not only should everyone have the right to information about them and about the time-limits
within which they must be exercised, as
explicitly provided in the text, but in
addition, no one should be denied the right to use such remedies. (22)
4612 The term
"judicial and other remedies" was originally adopted in English and, in
order to maintain uniformity between the languages, was translated into French as "droits de recours judiciaires
et autres". The word "autres" is superfluous in
the French text since the words "droit de
recours" cover all the possible remedies. However, in English the word "judicial" was not considered
sufficient to include all the different types of
remedies existing in various legal
systems.
Paragraph 4 -- The prohibition
on pronouncing the death sentence upon persons under eighteen years and
on carrying it out on pregnant women and mothers
of young children
4613 The authorities
retain the right to pronounce the death sentence in accordance with
national legislation with one exception: adolescents under the age of eighteen years at the time they
committed the offence; the death sentence may be
pronounced but may not be carried out on
pregnant women or mothers of young children. According to the experts who were consulted it would not have
been possible to impose a general prohibition on
the death sentence as such a decision would not
have taken into account all the penal systems in
force. (23) Nevertheless, the ICRC expressed the wish that the penalty should not be executed before the end of
hostilities. (24) This proposal, which was
included in the draft, reflected the experience
that executions result in an escalation of violence on both sides. Moreover, when hostilities have
ceased, passions die down and there is a
possibility of amnesty. Unfortunately, however
modest the proposal, it did not gain a consensus. On the other hand, the limitation laid down in
this paragraph was easily accepted in principle;
it was inspired by Article 68, paragraph 4
, of the fourth Convention, (25) and by Article 6, paragraph 5, of the Covenant. The discussions were
essentially about two points; fixing the age
limit, and extending the rule in favour of
pregnant women to cover also mothers of young children.
4614 The age limit
of eighteen years was adopted in order to harmonize with the Conventions
and the Covenant, which also contain this age limit. The proposal concerning mothers of young children was
put forward by a delegation. (26) The concept of
"young children" as a legal term remained vague.
For this reason a [p.1402] vote was requested on
this point, and it was adopted by 37 votes to 2, with 9 abstentions. (27) In any event, the concept is wider than
"new-born babies" in the sense of Article 8
' (Terminology), ' sub-paragraph (a), of Protocol I. It is up to the responsible authorities
to reach a judgment in good faith on what is
meant by "young children". (28)
4615 The
results of the vote suggest that the concept will be broadly
interpreted, and that in such special cases the death penalty will
not be pronounced.
4616 In any case, Article 76 ' (Protection of women), ' paragraph 3, of Protocol I, which
has the same tenor, contains the recommendation not to pronounce the death penalty on pregnant women and on
mothers having dependent infants and this
recommendation should be considered here.
Paragraph 5 --
Amnesty
4617 Amnesty is a matter within
the competence of the authorities. It is an act by the legislative power
which eliminates the consequences of certain
punishable offences, stops prosecutions and quashes convictions. (29) Legally, a distinction is made between
amnesty and a free pardon. The latter is granted
by the Head of State and puts an end to the
execution of the penalty, though in other respects the effects of the conviction remain in being. This paragraph
deals only with amnesty, though this does not
mean that free pardon is deliberately excluded.
The draft adopted in Committee provided, on the
one hand, that anyone convicted should have the right to seek a
free pardon or commutation of sentence, and on
the other hand, that amnesty, pardon or reprieve
of a death sentence may be granted in all cases.
(30) That paragraph was not adopted in the end, in order to keep the text simple. Some delegations considered that it was
unnecessary to include it because national
legislation in all countries provides for the
possibility of a free pardon. (31)
4618
The object of this sub-paragraph is to encourage gestures of
reconciliation which can contribute to reestablishing normal
relations in the life of a nation which has been
divided.
' S.J. '
* (1) [(1) p.1396] See O.R. VIII, pp. 346-355, CDDH/I/SR.33,
paras. 22-71; pp. 357-365, CDDH/I/SR.34;
(2) [(2) p.1396] The execution of penalties is not dealt with
in this article -- with the exception of the execution of the death penalty on pregnant women and mothers of young
children, which is prohibited by para.
4;
(3) [(3) p.1397] Dissident armed
forces and organized armed groups within the meaning of Article 1 of the
Protocol, which are opposed to the government in
power, must be able to apply the Protocol. See
supra, p. 1353;
(4) [(4) p.1397] See
Arts. 86, 89-108 of the Third Convention and Arts. 64-78 of the Fourth
Convention;
(5) [(5) p.1397] Hereinafter
referred to as the Covenant;
(6) [(6)
p.1397] Draft Arts. 9 and 10. It should be noted that the present
heading of the article is incomplete, since it mentions only penal prosecutions, while the provision also
lays down principles of penal
law;
(7) [(7) p.1397] O.R. IV, pp. 35-36,
CDDH/I/262;
(8) [(8) p.1398] See '
Commentary III, ' pp. 411-412 (Art. 84); pp. 484-492 (Art.
105);
(9) [(9) p.1398] See draft Art. 10,
para. 1;
10) [(10) p.1398] See O.R. X, p.
145, CDDH/I/317/Rev.1. The amendment submitted during these
deliberations is mentioned, but the text is not
published in the Official Records as it was a
working document;
(11) [(11) p.1398] See
' Commentary Drafts, ' p. 142;
(12) [(12)
p.1399] ' Commentary IV, ' p. 224 (Art. 33);
(13) [(13) p.1399] The term "law" is used here in a broad
sense, as lex encompasses custom. (14) See draft Art. 9, para. 2;
(14) [(14) p.1399]
See draft Art. 9, para. 2;
(15) [(15)
p.1399] O R. IV pp. 35-36 CDDH/I/262;
(16) [(16) p.1399] O.R. X p. 130, CDDH/234/Rev.1, para.
87;
(17) [(17) p.1399] Covenant, Art. 4,
paras. 1-2;
(18) [(18) p.1400] See O.R.
X, p. 144, CDDH/I/317/Rev.2;
(19) [(19)
p.1400] Ibid;
(20) [(20) p.1400]
Ibid;
(21) [(21) p.1401] Draft Art. 10,
para. 2;
(22) [(22) p.1401] This
clarification was proposed in an amendment. It was not adopted
apparently to avoid making the text too complicated. See O.R. IV, p. 33,
CDDH/I/259;
(23) [(23) p.1401] See O.R.
VIII, pp. 357-365, CDDH/I/SR.34, paras. 2 ff;
(24) [(24) p.1401] Draft Art. 10, para.
3;
(25) [(25) p.1401] See ' Commentary IV
', pp. 346-347 (Art. 68);
(26) [(26)
p.1401] O.R. IV, p. 33, CDDH/I/259;
(27)
[(27) p.1402] O.R. X, p. 131, CDDH/234/Rev.1, para.
90;
(28) [(28) p.1402] The Conventions
provide some sort of guide in this respect by mentioning mothers of
children under
seven years old (Art. 14,
para. 1, Fourth Convention);
(29) [(29)
p.1402] "Amnesty" is described as an act of oblivion, a general pardon
of past offences by the ruling authority ('
Shorter Oxford English Dictionary ', 1978, p. 60). Its mode of operation and effect may obviously differ
from country to country. The French definition
("Amnistie: acte du législateur qui a pour effet
d'éteindre l'action publique ou d'effacer une
peine prévue pour une infraction et, en
conséquence, soit d'empêcher ou d'arrêter les poursuites, soit d'effacer les condamnations."), as given
in the ' Grand Dictionnaire encyclopédique
Larousse ', Vol. I, 1982, p. 414, indicates that
it is an act of the legislative whereby the
public prosecution of certain offences is ended
and the penalty thereon is cancelled, so that no
more prosecutions will be instituted, and those already instituted will be discontinued and any convictions for such offences will be
quashed;
(30) [(30) p.1402] O.R. X, p.
133, CDDH/234/Rev.1, para. 95;
(31) [(31)
p.1402] O.R. VII, pp. 94 and 96, CDDH/SR.50, para. 79 and 99;
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