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Commentary - Art. 51. Part III : Status and treatment of protected persons #Section III : Occupied territories
    ARTICLE 51 -- ENLISTMENT, LABOUR (1)


    [p.291] GENERAL

    How far is an Occupying Power authorized to requisition the services of the population of the occupied territory? In supplying the answer to that question, Article 51 distinguishes two kinds of service: military service, which is dealt with in paragraph 1 and civilian work, referred to in paragraphs 2 to 4, and in the next Article .
    The Hague Regulations already laid down that requisitions of services were to be in proportion to the resources of the country and that they could only be demanded on the authority of the commander in the locality occupied (2). These rules have often been broken [p.292] and the problem became a particularly difficult one during the Second World War, when an Occupying Power carried out in a systematic manner the forced mass enlistment of the inhabitants of occupied territory in order to provide manpower for its own economy. A proportion of these workers served on the spot but the immense majority, several million people, were sent abroad, in most cases to the territory of the Occupying Power.
    Not only was the productive capacity of the occupied countries diminished as a result and their economy weakened to a dangerous extent, but the forcibly enlisted civilians -- and this was particularly serious from the humanitarian standpoint -- were deprived of all protection under any Convention. They were the victims of what might be described as a resurrected slavery and were often subjected to harsh coercive measures and forced to work under conditions which paid little regard to human dignity. The authorities which held them at their mercy allowed no interference in their relations with these workers, and it was only early in 1945 that the International Committee of the Red Cross was able, in spite of many obstacles, to do a little to relieve their distress by organizing a system of civilian messages (3), consignments of relief supplies, assistance to sick workmen etc. (4)
    Moved by the tragic fate of these civilians, the International Committee proposed new regulations governing the requisition of services, as it did not appear likely that their complete elimination would be agreed to by governments. The XVIIth International Red Cross Conference and the Diplomatic Conference adopted and amplified the International Committee's suggestions.

    PARAGRAPH 1. -- ENLISTMENT

    Paragraph 1 contains a rule of cardinal importance to the population of an occupied territory. The Occupying Power is forbidden to force protected persons to serve in its armed or auxiliary forces.
    The prohibition is not new, since a basic principle, universally recognized in the law of war, strictly prohibits belligerents from forcing enemy subjects to take up arms against their own country (5), [p.293] but that principle had often been violated during the two world wars, and it appeared necessary to reaffirm it in the new Convention. When doing so, the Diplomatic Conference specified that it was not only enlistment in the armed and auxiliary forces of the Occupying Power that was forbidden, but also all forms of pressure or propaganda aimed at securing voluntary enlistment.
    The prohibition is absolute and no derogation from it is permitted. Its object is to protect the inhabitants of the occupied territory from actions offensive to their patriotic feelings or from attempts to undermine their allegiance to their own country. In Article 23 of the Hague Regulations it is only forced participation of nationals of the hostile party in operations of war directed against their own country which is prohibited. The Diplomatic Conference increased the scope of the prohibition and referred generally to all enlistment in the armed forces of the Occupying Power, whatever the theatre of operations and whoever the opposing forces might be -- the armed forces of the non-occupied portion of the territory, of a government in exile, of an allied State, or of resistance movements operating within the occupied territory.
    Certain delegations at the Diplomatic Conference did not hold propaganda aimed at securing the voluntary enlistment of protected persons in the armed or auxiliary forces of the Occupying Power to be unlawful; they proposed that the second sentence in paragraph 1 should be deleted. Their proposal was rejected. Remembering the painful impression left by certain propaganda during the last two world wars, the Conference decided to keep the prohibition as it was; they appear to have acted rightly, as it is difficult to distinguish between propaganda and a more or less disguised form of constraint (6).
    As was seen when discussing Article 40 , the rule laid down in paragraph 1 also applies to enemy aliens who are in the territory of a Party to the conflict when hostilities break out.
    It should finally be noted that the Conference included the act of "compelling a protected person to serve in the forces of a hostile Power" among the grave breaches listed in Article 147 , thus showing the importance it attached to this indispensable prohibition.

    PARAGRAPH 2. -- LABOUR

    1.' First sentence -- Age limit '

    The exemption from compulsory labour of all protected persons under eighteen years of age is unconditional. It is valid for all the types [p.294] of work authorized by the Convention and should be included in the list of preferential measures in favour of children and protected persons who are minors (7), since young people must be protected by prohibiting once and for all such regrettable actions as the forcible enlistment of children and adolescents and their compulsory employment on work which is often beyond their physical capacity and in any case separates them from their parents.

    2. ' Authorized work '

    A. ' Work necessary for the needs of the army of occupation '

    On this point the Convention does no more than endorse, in the same terms as the Hague Regulations, what has for a very long time been the normal practice.
    The wording "work which is necessary for the needs of the army of occupation" is very comprehensive and its interpretation is open to discussion. It will be enough to note here that the clause covers a wide variety of services -- those connected with billeting and the provision of fodder, transport services, the repairing of roads, bridges, ports and railways and laying telephone and telegraph lines. On the other hand it is generally agreed that the inhabitants of the occupied territory cannot be requisitioned for such work as the construction of fortifications, trenches or aerial bases. It is the maintenance needs of the army of occupation and not its strategic or tactical requirements which are referred to here. The distinction is essential and should be emphasized. It is confirmed by a provision, to be examined further on, laying down that the Occupying Power cannot compel protected persons to do work which would involve their participation in military operations.
    As has been seen, the question of compelling protected persons to give information or to act as "guides" is dealt with in a special Article of the Convention, to which reference should be made (8).
    The reference to "work necessary for the needs of the army of occupation" did not figure in the Stockholm Draft (9); it was inserted by the Diplomatic Conference in order to bring the text adopted into line with the provisions of the Hague Regulations (10). The importance of the clause, however, has been reduced considerably owing to the fact that modern armies are very largely self-contained and therefore [p.295] much less dependent than they were on the services of the population of occupied countries.

    B. ' Work necessary to satisfy the needs of the population '

    A second group of services is concerned with the needs of the population; the right to requisition labour for work connected with these services belongs to the Occupying Power as the authority responsible for maintaining order and the living conditions of the population.
    It will be remembered that work necessary for the public utility services was the only type of work mentioned in the corresponding Article in the draft submitted by the International Committee. The XVIIth International Red Cross Conference felt that the expression "public utility services" should be defined and therefore added the words "such as water, gas and electricity services, transport, health and similar services" (11). Although the Diplomatic Conference did not keep this list of various examples, it is nevertheless clear that it had such services in mind and the words "public utility services" (12) should be understood in that sense.
    Postal, telegraphic and telephone services are generally considered to be part of the "public utility services" and should therefore be added to the list of examples given above.
    If order and normal living conditions are to be maintained in occupied territory it is essential for the public utility services to keep working properly; any failure to do so is bound to have far-reaching repercussions on the whole population. It is primarily to protect the interests of the inhabitants, therefore, that the occupying authorities can and must exercise their right of requisition should the need arise. Such action would moreover be in accordance with Article 43 of the Hague Regulations which requires the occupant to take "all the measures in his power to restore, and ensure, as far as possible, public order and safety". The same end is served by certain clauses in Article 54 of the Convention, concerning judges and public officials, which will be commented upon further on.
    After referring to the public utility services, the Diplomatic Conference added a list of various forms of work which the Occupying Power might also compel protected persons to do -- namely work which is necessary for the feeding, sheltering, clothing, transport or health of the population of the occupied country (13). It will be remembered that [p.296] those were the five classes of work which a belligerent, under the terms of Article 40 , may compel protected persons of enemy nationality who are in its territory to do.
    Recognition of the Occupying Power's right to requisition the services of persons for the types of work mentioned above helps to ensure continuity in industrial production and also in agricultural production and mining (14).
    Since work falling into the categories specified in this paragraph are of vital importance for the whole economy of the occupied countries and closely affect the interests of each individual person, they will normally continue to be carried out and the occupying authorities are unlikely to have to intervene except on rare occasions. The Occupying Power may not in any circumstances or in any manner whatsoever employ protected persons to serve its own national economy, and the types of work mentioned may only be made compulsory when it is necessary to do so, as the Convention emphasizes, to meet the needs "of the population of the occupied country".
    It may be mentioned, in conclusion, that the right to requisition the services of protected persons may be regarded as a counterpart to the extensive obligations which the Occupying Power assumes towards the population of the occupied country, particularly in connection with the provision of food supplies, public health and sanitation; its obligations under these headings are laid down in Articles 55 , 56 , 59 and following of the Convention.

    3. ' Second sentence -- Prohibition of the compulsory employment of
    protected persons on work which would oblige them to take part in
    military operations '

    This injunction reproduces Article 52 of the Hague Regulations. It may also be compared with Article 40, paragraph 2 , of the present Convention, which lays down that protected persons of enemy nationality who are in the territory of a party to the conflict may only be compelled to do certain types of work if that work "is not directly related to the conduct of military operations" -- a wording drawn from the 1929 and 1949 Prisoners of War Conventions.
    The prohibition in this sentence is even more general than that contained in Article 52 of the Hague Regulations; for it does not only embrace work involving the participation of the inhabitants in "military operations against their own country", but refers in a general way to any work "which would involve them in the obligation [p.297] of taking part in military operations". The importance of the distinction will be realised if the mind is cast back to cases when the occupying authorities have tried to circumvent the law of war by pretending that they are no longer engaged in military operations against the home country of the persons whose services they are requisitioning. Although such arguments were not accepted by the courts which had to come to a decision on the subject after the Second World War, it is nevertheless wise that the new provision should prohibit, clearly and without any ambiguity, all work involving protected persons in any form of participation in military operations, whether directed against the home country or not.
    The question of what work should be regarded as obliging protected persons to take part in military operations raises various difficulties -- the same difficulties met with in connection with Article 42 . It is quite certain, however, that the Occupying Power cannot demand that protected persons should revive the war industry of the occupied country, nor force them to produce war material. On the other hand it has a right to demand the services it needs for the upkeep of the army of occupation. Some examples of such services have been given above.
    One point must not be forgotten: the Fourth Convention applies to civilians and civilians are by definition outside the fighting. Any action on the part of the Occupying Power which had the effect of involving them, directly or indirectly (15), in the fighting and so preventing them from benefiting by special protection under the Convention must be regarded as unlawful. The application of this clause depends very largely on the good faith of the occupant, who must judge in each individual case, with a full sense of his responsibility in the matter, whether or not the work demanded is compatible with the conditions here laid down.

    4. ' Third sentence -- Protected persons may not be compelled to
    employ forcible means to ensure the security of the installations where
    they are performing compulsory labour '

    This clause applies with equal force whether the work in question is carried out for the benefit of the army of occupation or for that of the population; and it matters little whether the attacks are made by regular armed forces, by resistance movements or simply by saboteurs. In all these cases the occupying authorities are themselves responsible [p.298] for ensuring the security of the place of work; that is fully in accordance with their role as the guardians of public order and safety.
    The clause represents a very welcome addition to Article 28 (danger zones) and Article 34 (the taking of hostages) with which it has a certain connection, as the Articles mentioned prohibit the use of protected persons to guard against actions for which they are not responsible and on which they have no influence.
    The extent to which these considerations are subject to reservations in the particular case of the police force of the occupied territory will be seen later in the commentary on Article 54 .

    PARAGRAPH 3. -- WORKING CONDITIONS

    The stipulation that protected persons may not be employed on work outside the occupied territory is already contained, as has been seen, in Article 49, paragraph 1 , which contains a general prohibition of all "deportations", but in view of the unhappy experiences of the last world war it seemed necessary to reaffirm that essential principle here.
    The Convention lays down that persons whose services are requisitioned are to be kept, as far possible, in their usual places of employment, which will usually be where their family is living. In this respect the provision may be compared with Article 27 , which affirms the principle of respect for family rights.
    This paragraph contains a series of additional conditions which were the subject of detailed discussion at the Geneva Conference (16). That does not mean that working conditions must remain unchanged throughout the period of occupation. The Diplomatic Conference recognized, on the contrary, that labour laws would probably be modified from time to time during the occupation, and that wages would in particular be liable to vary if prices increased to any appreciable extent; the Conference considered that provision had been made for this contingency by the reference to the "legislation in force" in the occupied territory (17).
    These very detailed provisions, which were elaborated at the Diplomatic Conference at the suggestion of the International Labour Organisation (18), provide protected persons with valuable humanitarian and social safeguards (19).

    [p.299] PARAGRAPH 4. -- CIVILIAN STATUS OF WORKERS

    This clause is drawn from the Stockholm Draft, which laid down in addition that requisitions of labour could only be of a temporary "nature".
    The Diplomatic Conference felt that such a stipulation might be detrimental to the execution of certain types of work useful to the economy of the country and that it was wiser to omit it. On the other hand the Conference emphasized that such requisitions must not eventually lead to a "mobilization of workers" by stipulating that groups of workers must not be organized on "military or semi-military lines". Its object in so doing was to avoid the resurrection of organizations, formed during the last war, of a character quite incompatible with the civilian status of their members (20).


    Notes: (1) [(3) p.290] For the discussions leading to Article 51, see
    ' Final Record, ' Vol. I, p. 121; Vol. II-A, pp. 665,
    776-777, 799-800, 809, 828-829; Vol. II-B, pp. 193-194,
    416-417; Vol. III, p. 133;

    (2) [(1) p.291] Article 52 of the Regulations reads as
    follows: "Requisitions in kind and services shall not be
    demanded from municipalities or inhabitants except for the
    needs of the army of occupation. They shall be in
    proportion to the resources of the country, and of such a
    nature as not to involve the inhabitants in the obligation
    of taking part in military operations against their own
    country.
    "Such requisitions and services shall only be
    demanded on the authority of the commander in the locality
    occupied.
    "Contributions in kind shall as far as possible be
    paid for in cash; if not, a receipt shall be given and the
    payment of the amount due shall be made as soon as
    possible.";

    (3) [(1) p.292] See page 191;

    (4) [(2) p.292] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, pp. 657 sqq.;

    (5) [(3) p.292] Article 23 of the Hague Regulations is quite
    definite on this point. The second paragraph of the
    Article reads as follows: "A belligerent is likewise
    forbidden to compel the nationals of the hostile party to
    take part in the operations of war directed against their
    own country, even if they were in the belligerent's
    service before the commencement of the war.";

    (6) [(1) p.293] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 665,
    776-777;

    (7) [(1) p.294] See page 184;

    (8) [(2) p.294] See page 220;

    (9) [(3) p.294] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. I, p. 121;

    (10) [(4) p.294] See ibid., Vol. II-A, pp. 776-777;

    (11) [(1) p.295] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. I, p. 121;

    (12) [(2) p.295] In French "services d'intérêt public"; the
    above interpretation is confirmed by the Final Record of
    the Conference (see ' Final Record, ' Vol. II-A, pp.
    776-777);

    (13) [(3) p.295] See ' Final Record, ' Vol. II-A, pp. 664-665,
    776;

    (14) [(1) p.296] See ' Final Record, ' Vol. I, p. 121; Vol.
    II-A, pp. 665, 776-777;

    (15) [(1) p.297] For example, to employ them as workmen in a
    munitions factory, liable to be bombarded as a "military
    objective";

    (16) [(1) p.298] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 799-800,
    809;

    (17) [(2) p.298] See ibid., Vol. II-A, pp. 776-777, 799-800;
    Vol. II-B, p. 416;

    (18) [(3) p.298] See ibid., Vol. II-A, pp. 665, 776-777; Vol.
    III, pp. 132-133;

    (19) [(4) p.298] Paragraph 3 should be compared with Article
    40, para. 3 (work of protected persons living in the
    territory of a Party to the conflict) and Article 95,
    para. 3 (work of internees) of the present Convention and
    with Article 51 (work of prisoners of war) of the Third
    Convention;

    (20) [(1) p.299] See ' Final Record, ' Vol. II-A, pp. 665,
    776-777, 809;