Article 54 aims to clarify the responsibilities of the Detaining Power andthe Power on which the prisoners of war depend when prisoners sustainaccidents in connection with work or when they contract a disease in thecourse or in consequence of their work. In addition, paragraph 1 recallsthat prisoners of war need to be paid for their work in accordance with theprovisions of Article 62.

The Detaining Power is responsible for providing free of charge for themaintenance and the medical attention of prisoners of war. A related rightis the possibility for the Detaining Power to use the labour of prisoners ofwar. Such labour could be of substantial economic benefit to the DetainingPower and help offset the costs of their maintenance.

This provision is a central pillar of the Geneva Conventions as it establishesthe circumstances and conditions under which the Conventions apply. Article 2,common to the four Geneva Conventions, constituted a major step forward whenadopted in 1949 as it addressed a lacuna in earlier international humanitarianlaw instruments. Indeed, neither the 1899 and 1907 Hague Conventions nor the1864, 1906 and 1929 Geneva Conventions specified under what conditions theirapplication would be triggered. In the absence of any explicit indication, itwas generally understood that these instruments applied only during a declaredwar, with recognition by the belligerents that a state of war existed betweenthem.

In addition to the extensive provisions governing the Detaining Power’sobligation to ensure humane and safe conditions within prisoner-of-warcamps, the Third Convention concerns itself with the welfare and safetyof prisoners of war while outside camps, such as during transfers.Transfer refers to physically moving prisoners from one camp to anotherafter their initial evacuation upon capture, regardless of the method oftransportation used, the territory to and from which they aretransferred, and the term used to describe the holding facilitiesconcerned.

Article 103 can be said to contain pretrial guarantees forprisoners of war who are suspected or accused of criminal offences.It addresses two pretrial situations: judicial investigations andconfinement awaiting trial. Both terms require some clarification.First, the term ‘judicial investigation’ may suit civil-lawjurisdictions better than common-law jurisdictions. This is because,in civil-law systems, a suspect may be charged at an early stage,with a subsequent, formal, judge-led investigation prior to thosecharges proceeding to trial. In common-law or adversarial legalsystems, investigations are typically led by law enforcement(police) authorities, rather than judges, and involve only minimalor occasional judicial supervision. Furthermore, in common-lawsystems, charges are preferred towards the end of an investigationprocess, rather than at the beginning. The reference in Article 103to ‘judicial investigations’ should not be taken to imply that it isonly relevant in civil-law systems. The thrust of the provision,which must be applied whatever the legal system, is thatinvestigations concerning persons suspected or accused of criminaloffences must be conducted expeditiously, to allow trial to takeplace as soon as possible. Second, Article 103 employs the term‘confinement awaiting trial’. While a variety of terms is used todescribe this phenomenon, including ‘pretrial detention’, ‘detentionon remand’ and ‘provisional detention’, this commentary will limititself to the terms ‘confinement awaiting trial’ and ‘pretrialconfinement’.

In the second chapter of the book I explore the first moment of the genealogy of modern comparative law. This first moment, instrumental comparative studies, is where modern comparative law emerges. In this stage, comparative law is not interpreted as an autonomous discipline within the law. Rather, comparative studies are an instrument for the advance of other disciplines or of other areas of law. In this section of the book, more precisely, I focus on the analysis of Montesquieu's work. This author is particularly important given that the specialized literature recognizes him as the father of modern comparative law. Montesquieu has been interpreted by this literature as the person who uses the comparative method paradigmatically in this first moment of the discipline; his work has come to represent emblematic forms of the use of this method; some of his conclusions have become part of the canon of modern law and politics. In The Spirit of the Laws, Montesquieu uses empirical information on the law and politics of European and non-European countries to justify his theses on the relationship between natural law and positive law and on the links between positive law and the geographic and psychological characteristics of peoples, as well as to promote a normative political agenda: a legally limited monarchy for his political community. In the process, Montesquieu constructs subjectivities that are central in the creation of modern law: the European and the Asian. In addition, Montesquieu constructs an imagined space that these two types of subjects inhabit: Europe and Asia. Finally, Montesquieu imagines legal and political time in a dual manner: inertially static and dynamic in potency

The medical inspections provided for in Article 31 serve especially toensure that any communicable diseases are diagnosed early. Examining thegeneral state of health of prisoners of war also helps to identify anyspecific medical needs they may have and to assess their cleanliness.These inspections are therefore an important means for the DetainingPower to fulfil its obligation under Article 29 to ensure thecleanliness and healthfulness of camps and to prevent epidemics (which,in turn, also protects the local population outside the camp) and tofulfil its obligation under Article 30 to ensure that prisoners receivethe medical attention they require.

Article 15 of the Third Convention requires that the Detaining Powerprovide for the maintenance of prisoners of war. This includes the basicobligation to provide them with food and water. Article 26 contains moredetailed rules and sets the standard that the food and water thatprisoners receive must be sufficient to keep them in good health andprevent loss of weight or the development of nutritionaldeficiencies.

The previous article set forth the basic principle that prisonersof war are subject to the laws, regulations and orders in force inthe armed forces of the Detaining Power and recognized the authorityof that Power to take judicial or disciplinary measures in respectof any offence committed by a prisoner of war against such laws,regulations or orders. Article 83 requires that the Detaining Power,in exercising that authority, apply the ‘greatest leniency’ indeciding between disciplinary and judicial proceedings and thatdisciplinary measures be adopted ‘wherever possible’.