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Commentary - Art. 40. Part III : Status and treatment of protected persons #Section II : Aliens in the territory of a party to the conflict
    ARTICLE 40. -- EMPLOYMENT


    PARAGRAPH 1. -- COMPULSORY WORK

    This provision is of great importance in an age when belligerents have made a general practice of mobilizing civilian man-power with a view to ensuring that the national economy works properly in wartime.
    Once again the criterion adopted is that of treatment as nationals, subject to certain detailed conditions set forth in the paragraphs which follow.

    PARAGRAPH 2. -- RESTRICTIONS

    When protected persons are of enemy nationality they may only be compelled to work under certain conditions. These concern types of work, of which a restrictive definition is given: "work which is normally necessary to ensure the feeding, sheltering, clothing, transport and health of human beings and which is not directly related to the conduct of military operations".
    These two restrictions are based on an idea expressed in several other Articles of the Geneva Conventions, namely that an enemy subject who has fallen into the hands of the Opposing Power must not [p.254] be forced to participate in warlike measures directed against his home country (1).
    The meaning of the words "feeding, sheltering, clothing, transport and health" is clear, but what exactly is meant by the phrase "which is not directly related to the conduct of military operations"? These words are based on a clause in the 1929 Prisoners of War Convention, but it is not easy to determine their precise significance: experience has shown that their interpretation is a matter of considerable difficulty, as in the modern conception of war most types of work may be regarded as contributing to the country's war effort. Nevertheless, despite the variety of possible cases and the consequent difficulty in laying down a priori a dividing line between activities which are directly related to the conduct of military operations and those which are not, the practical application of the clause is a question of common sense. Article 40 is very restrictive. Its purpose is to prevent enemy aliens from being employed for purposes which conflict with the interests of their home country and are incompatible with their conscience and patriotic
    sentiments.
    By enumerating the only types of work which are permitted, the clause a contrario prohibits compulsory enlistment. That constitutes an advance on the Hague Regulations of 1907 (Article 23, para. 2 ) which prohibited steps to compel the nationals of the hostile party to take part in operations of war directed against their own country, but made no mention of their not being compelled to take part in work connected with the feeding and supplying of the armed forces.
    These restrictions apply only to foreign aliens and not to protected persons as a whole. It is known that many States reserve the right to compel aliens residing in their territory who are not of enemy nationality to do military service. In the case of such persons the rule of treatment as nationals is still applicable.

    PARAGRAPH 3. -- WORKING CONDITIONS

    This paragraph once again asserts the principle of treatment as nationals. Cases in which that rule is applied are only given by way of example. Safeguards in regard to age, the physical capacity of workers, the employment of women, etc., may be added to the list.
    [p.255] The obligation to give protected persons the benefit of the labour laws of the country concerned is, of course, applicable to all protected persons, whether they are of enemy nationality or not.

    PARAGRAPH 4. -- RIGHT OF COMPLAINT

    Paragraph 4 draws attention to the fact that if one of the provisions laid down in the preceding paragraphs is infringed, protected persons are allowed to exercise their right of complaint in accordance with Article 30 of the Convention . As has been seen, that Article gives them the right to make application to the Protecting Powers, the International Committee of the Red Cross and the National Red Cross Society of the country where they are living, or to any other organization which is able to help them.


    Notes: (1) [(1) p.254] See this ' Convention, ' Articles 51 (work
    done by civilians in occupied territory) and 95 (work done
    by civilian internees), and the ' Third Convention, '
    Article 50 (work done by prisoners of war).
    Cf. also ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. I, pp. 31 and 254;