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Commentary - Art. 52. Part III : Captivity #Section III : Labour of prisoners of war
    ARTICLE 52. -- DANGEROUS OR HUMILIATING LABOUR


    In connection with Article 51 , reference has already been made to the difficulties encountered by the participants in the 1949 Diplomatic Conference when trying to define the significance of "unhealthy or dangerous" work. These difficulties arose from the fact that the term could not be defined in the abstract, but only in the context of the conditions in which the work must be done (equipment, training, general safety measures). Article 51 overcame the first difficulty by ensuring for prisoners of war in all circumstances working conditions at least as favourable as those normally enjoyed by civilian workers. A solution still had to be found, however, to the problem of work which might involve risks other than the "normal risks" run by civilian workers. That is the purpose of the present Article.

    A distinction must be made between the following:

    (a) Work which is not dangerous in itself but which may be dangerous by
    reason of the general conditions in which it is carried out.

    [p.275] This refers especially to work done in the vicinity either of key military objectives (ports, barracks, airfields, munition dumps, factories), or of the battlefield. We mention this here although it actually concerns the general security of prisoners of war which is covered by Article 23 .

    (b) Work which by its very nature is dangerous or unhealthy.

    As an example of this, one may cite work done in a tropical climate involving a risk of sunstroke, etc. Mine-lifting may also be mentioned, because of its importance and of its influence on the discussion concerning the present provision; this matter will be referred to again later, in connection with the third paragraph of the present Article.

    (c) Work which is not in itself dangerous but which may be or may become
    so if it is done in inadequate technical conditions.

    At the Stockholm Conference, various proposals were presented, some relating to general safety conditions and others concerning the special question of mine-lifting, which was in fact the most dramatic example of dangerous work (1). At the 1949 Diplomatic Conference, the first draft text proposed by the Second Committee read as follows:

    "Subject to the stipulations contained in Article 42, second paragraph (now Article 51 ), no prisoner of war may be employed on labour which is of an unhealthy or dangerous nature" (2).

    The principle that prisoners must not be employed on unhealthy or dangerous work was therefore confirmed, but without any examples being listed. A number of delegations, however, were in favour of forbidding the employment of prisoners of war for removing mines [p.276] or other similar devices. After lengthy discussion, both during the first reading and in the Special Committee, the majority approved a provision stating that mine-lifting would be considered as dangerous labour. In those circumstances, several delegations considered that it was necessary, from the humanitarian point of view, that prisoners of war should no longer be exposed to the risks entailed by that particular kind of work.
    The opposite thesis was that it would be equally inhuman to exclude the possibility of employing prisoners of war -- who might themselves have laid the mines and who could, as members of a disciplined military force, be easily trained to remove them -- when otherwise, mine removal would have to be carried out by civilians, who, it was said, would be sacrificed for the benefit of those who had invaded their territory (3).
    The question was again discussed at length in plenary session, in connection with an amendment proposed by Canada, and the supporters of both theses spoke with great feeling. The amendment simply forbade the employment of prisoners of war on mine-lifting. The latter proposal was finally approved, but at the suggestion of France, the Conference decided not to prevent the employment of prisoners of war who volunteered for such work, thus taking into account to some extent the interest of the civilian population, and in this way the text of Article 52 as it now stands was adopted (4).

    PARAGRAPH 1. -- UNHEALTHY AND DANGEROUS LABOUR

    Unhealthy and dangerous work is forbidden unless prisoners of war volunteer for it. With the exception of the express reference to mine-lifting in the third paragraph, the Convention unfortunately gives no list nor any criteria for defining dangerous work.
    We shall not repeat here what has already been said in connection with Article 51 concerning the external safety measures which must be taken in any work, whatever it may be, and without which accidents cannot easily be avoided. It is assumed that those measures will always be taken. The essential difference between what is authorized and what is not therefore lies in the nature of the work, not in the external conditions in which it is performed.
    [p.277] It must be pointed out that the reference to volunteering in no way diminishes the responsibility of the Detaining Power and cannot excuse any lack of discernment in the selection of prisoners for such work. The Detaining Power must choose from among the volunteers who come forward those best qualified to do the work required with the maximum safety, and it must give them all the necessary training or, if they claim to have been trained already, check their ability and reject all those who do not meet the required standards. Furthermore, all the provisions of Article 51 remain applicable. It should also be added that if prisoners volunteer for such work on the basis of certain promises, the Detaining Power must naturally keep those promises. Any prisoner who is the victim of injustice has the right to appeal through the prisoners' representative and the Protecting Power, in accordance with Article 78 . But in our view, if arrangements are to be made for the employment of a certain number of prisoners of the same nationality or depending on the
    same belligerent, it would be preferable to resort to special agreements pursuant to Article 6 of the present Convention.

    PARAGRAPH 2. -- HUMILIATING LABOUR

    The 1929 Convention contained no provision concerning humiliating labour. The present clause was introduced at the Stockholm Conference on the basis of Article 71 of the Oxford Manual. The honour of prisoners is referred to in general provisions, and in particular in Article 13, paragraph 2 , and Article 14, paragraph 1 , but the present provision is somewhat more specific in that it establishes a rather bold analogy with the customary rules of the Detaining Power's own forces. This rule has the advantage of being clear and easy to apply. The reference is to objective rules enforced by that Power and not the personal feelings of any individual member of the armed forces. The essential thing is that the prisoner concerned may not be the laughing-stock of those around him.

    PARAGRAPH 3. -- REMOVAL OF MINES

    Because of its very great importance, the problem of mine-lifting had a determining influence on the development of Articles 51 and 52 during the 1949 Diplomatic Conference. The relevant facts are as follows. The question arose for the first time in North Africa in March 1943, when it was decided that German prisoners of war should [p.278] remove mines laid by the German army. Such work was prohibited during hostilities by Article 31 of the 1929 Convention, and once hostilities were over it remained prohibited, under Article 32 of the same Convention. The representative of the International Committee of the Red Cross immediately made a protest and although he was not entirely successful he did obtain the concession that only men who had served as sappers should in future be assigned to mine-removal.
    The problem arose in an acute form in France at the beginning of 1945. Public opinion considered that mines should be cleared by those who had laid them. In September 1945, the French War Ministry estimated the number of mines to be cleared in France at about one hundred million. The monthly rate of fatal accidents among German prisoners engaged on this work was two thousand (5). Special safety precautions were subsequently taken, however, and the accident-rate decreased almost to nil (6).
    It is nevertheless understandable that this question was such a matter for concern at the 1949 Diplomatic Conference that it had a decisive influence on the drafting of the present Article and, as has already been seen, of Article 51 . As a result the removal of mines or all similar devices (shells, grenades, bombs and explosives of all kinds) is expressly stated by the present paragraph to be dangerous work and only volunteers may therefore engage in it.
    It should be emphasized that this clause in no way relieves the Detaining Power of the obligation to respect the other provisions of the Convention relating to the safety of prisoners, and in particular Article 23, paragraph 1 , which states that prisoners of war may not be exposed to the fire of the combat zone.
    On the other hand, contrary to the implications of Article 31 of the 1929 Convention, the present text does not appear to prevent the Detaining Power from employing volunteers to remove mines during hostilities. The present Article 50 states that prisoners of war may not be compelled to assist in the handling of stores which are military in character or purpose. But although the Detaining Power may not compel them to do so, nowhere is it stated that they may not at any time volunteer to do such work. Ultimately, therefore, their participation in work connected with war operations depends only on the prisoners themselves, provided it takes place outside the theatre of operations.


    * (1) [(1) p.275] Article 43, paragraph 1, of the draft
    submitted to the Stockholm Conference provided:
    "No prisoner of war may be employed on any work of an
    unhealthy or dangerous nature, unless he has received
    previous adequate training and is provided with all the
    necessary means of protection..." (These provisions are
    now contained in Article 51).
    In addition, Article 42 (e) contained the following
    provision:
    "Work connected with the removal of mines or similar
    devices placed by the prisoners themselves before they
    have been taken, or by other members of the forces to
    which they belonged, shall however be authorized, on
    condition that it is carried out in areas distant from the
    theatre of military operations and under conditions
    defined in the following Article."
    Following the discussions at the Stockholm
    Conference, the text was amended as follows (Article 43,
    paragraph 1):
    "No prisoner of war may be employed on labour which
    is of an unhealthy or dangerous nature, in view of
    climatic conditions".
    There was no longer any express reference to
    mine-lifting;

    (2) [(2) p.275] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, p. 586;

    (3) [(1) p.276] See Report of Committee II, ' Final Record of
    the Diplomatic Conference of Geneva of 1949, ' Vol. II-A,
    p. 566;

    (4) [(2) p.276] Ibid., Vol. II-B, pp. 290-298;

    (5) [(1) p.278] I.e. a ratio of one accident per five thousand
    mines;

    (6) [(2) p.278] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, pp. 333-334;