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Commentary - Art. 78. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter I : Complaints of prisoners of war respecting the conditions of captivity
    [p.381] ARTICLE 78. -- COMPLAINTS AND REQUESTS


    HISTORICAL BACKGROUND AND GENERAL REMARKS

    A. ' Before the 1929 Convention. ' -- The present chapter refers to one of the fundamental rights which the Convention provides for prisoners of war: the right of each of them to make comments on the conditions of captivity. This is a corollary of the right to information: [p.382] each prisoner must be acquainted with the rules applicable to captivity and he is also entitled to complain if he considers that those rules are not observed.
    This right was not included in the Hague Regulations and it was during the 1914-1918 war that the custom was established (1). The international rules which are now applicable are based on the principles set forth in the agreement concluded between Germany and France on March 15, 1918. That agreement provided that, through welfare committees, prisoners might put their complaints and petitions before the camp commanders who could attach their comments before transmitting them to the Protecting Power. There were, however, important limitations: the welfare committees were entitled to withhold any complaints which they considered to be without foundation or of no interest, and the military authorities had the right to withhold any complaints which they considered unacceptable in form or obviously without foundation. These restrictions left the way open for abuse, and in fact during the First World War the majority of written complaints submitted by prisoners of war never reached their destination.

    B. ' From the system established by the 1929 Convention to the present system. ' -- On the strength of those principles, the authors of the 1929 Convention established, in Article 42 , a system which with certain modifications and improvements provided a basis for the 1949 text. The system comprises:

    (a) the right to make requests to the military authorities;

    (b) the right to complain to the representatives of the Protecting
    Powers;

    (c) the stipulation that such complaints and requests should be
    transmitted immediately and should never, in any circumstances, give
    rise to any punishment.

    Like the 1929 Convention, the present text also refers to the right to request and complain in three special cases: when prisoners are employed on prohibited work (Article 50, paragraph 3 ), confined as a disciplinary punishment (Article 98, paragraph 1 ), or sentenced to a penalty depriving them of their liberty (Article 108, paragraph 3 ).

    [p.383] PARAGRAPH 1. -- REQUESTS

    The difference between "requests", to which the present paragraph refers, and "complaints", which are the subject of the following paragraph, corresponds in a way to a spontaneous appeal, on the one hand, and to a contentious appeal, on the other, to the Detaining Power through the intermediary of the Protecting Power. This distinction corresponds to that made in the agreement between France and Germany of March 1918 and calls for a few comments.
    The right to complain is customary in all armed forces and it implies that the person availing himself of it can accuse his superior of failing to carry out certain duties. If the drafters of the Convention had taken as a model the procedure applied on the national level, prisoners of war would have been enabled to make direct accusations against the agents of the Detaining Power, and in particular against camp commanders. Such a procedure would, however, not have taken into account the nature of the relationship between prisoners of war and the Detaining Power which results from the state of belligerence.
    It therefore seemed more logical and more appropriate to provide for the right to complain to be exercised in two stages. First of all the prisoner of war approaches the military authorities in whose power he is. This right applies to all requests, whatever their gravity; it exists at all times and in all places and may be exercised verbally or in writing, either direct or through the intermediary of the prisoners' representative, in regard to all the representatives of the Detaining Power at every level of responsibility, from a sentry to the camp commander. This right must obviously be exercised in a manner compatible with the normal requirements of discipline and camp administration and may not be used for purposes other than those arising under the Convention. If need be, the camp commander will issue regulations concerning the exercise of this right.
    The expression "military authorities" enables prisoners of war to address requests to authorities superior to the camp authorities. Although the present paragraph expressly authorizes prisoners of war to "make known" requests, implying that the Detaining Power is obliged to take cognizance of such requests, it is unlikely that they would be transmitted without endorsement by the camp commander. For the camp commander is immediately responsible for the application of the Convention (Article 39 ), and prisoners of war should normally address their requests to him or his deputy. He will determine [p.384] the form in which requests should be made (in writing, for instance), provided that it is easily accessible to prisoners of war.

    PARAGRAPH 2. -- COMPLAINTS ADDRESSED TO THE
    PROTECTING POWER

    This paragraph permits a prisoner of war to persist if his request is rejected or if he receives no reply. He may then make a complaint through the intermediary of the Protecting Power. The rôle of the latter is not merely to transmit the complaint to the Power of origin of the prisoner of war concerned; on the contrary, it is fully in accordance with the spirit of the Convention for the Protecting Power to transmit it to the Detaining Power and if the complaint seems justified, to insist that action be taken on it. The prisoner of war will thus have the support of a Power which can negotiate on an equal footing with the Detaining Power. This is of great importance.

    A. ' Contents of complaints addressed to the Protecting Powers. ' -- The word "unrestricted" did not appear in the 1929 text and was the subject of much discussion at the Conference of Government Experts (2), in connection with the Detaining Power's duty to forward complaints.
    The problem is to reconcile the Detaining Power's own security requirements with the need to ensure that the right of complaint can be effectively exercised. For reasons of security, the Detaining Power must obviously make sure that prisoners of war do not use it as a means of communication with the outside world. The Conference of Government Experts therefore rejected the suggestion that the words "without amendment" should be added to the obligation to transmit complaints.
    Such an addition would have resulted in doing away with censorship, and the Detaining Power could not agree to that. The authors of the Convention considered, however, that matters concerning only the "conditions of captivity" could be mentioned without restriction, and the wording adopted seemed best suited to take into account both the interests of the prisoners of war and the Detaining Power's own security requirements.

    [p.385] B. ' Intermediary of the prisoners' representative. ' -- A flood of more or less well founded complaints might result from the fact that prisoners of war can make complaints without incurring punishment. The intervention of the prisoner's representative is likely to place any such appeals on a more serious footing, and complaints bearing his endorsement will carry more weight and be considered more rapidly (3). It will probably prevent the development of what has in the past been called a "complaints complex".
    Under the present paragraph, a prisoner of war nevertheless retains the right to apply direct to the representatives of the Protecting Power instead of through the intermediary of the prisoners, representative. The latter is elected by the majority and does not necessarily enjoy the confidence of the minority who must therefore be able to submit complaints without passing through him, especially since the complaints in question may precisely be directed against the prisoner's representative (4).

    C. ' Intermediary of the Protecting Power. ' -- The part played by the Protecting Power has already been emphasized, and this procedure was generally applied during the Second World War. The International Committee of the Red Cross, however, also received a great many verbal or written communications which were actually complaints about the conditions of captivity. Most of these complaints were from prisoners of war who had not or no longer had a Protecting Power (5). In each case, the International Committee of the Red Cross sought the most appropriate means in its power to set the matter right.

    PARAGRAPH 3. -- TRANSMISSION. IMPUNITY

    Although the 1929 Convention made no express stipulation in the matter, the belligerents generally did not consider complaints and requests as part of the correspondence quota allowed to each prisoner of war.
    [p.386] That interpretation was fully consistent with the spirit of Article 42 of the 1929 text, which was obviously intended to establish the right of complaint and request without limitation. The authors of the present Article nevertheless felt that in order to avoid all ambiguity it was preferable to specify the absence of any limitation.
    On the other hand, a more important question, which has given rise to some difficulties, is that of delays in transmitting complaints and requests to the authorities qualified to deal with them. If complaints are not transmitted promptly they obviously lose most if not all of their value. Since every complaint is based on an actual situation, it must be examined as rapidly as possible and, if it is disputed, sufficiently soon to enable any necessary verification to be made. Complaints should therefore be transmitted urgently, that is to say without delay and with priority. The text uses the word "immediately" which is sufficiently clear.
    Lastly, the present paragraph establishes the impunity of prisoners of war in regard to any unfounded complaints or requests. Here the Convention departs from the regulations applied in national armed forces, which usually punish any excessive use of the right of complaint as being an attack on authority and an act of indiscipline.
    Here again the principle of the full liberty of prisoners of war prevails. It is to be hoped that prisoners of war will realize that in their own interest they should make judicious use of the right of complaint and request, and refrain from making complaints which they know to be groundless so that those which are justified can receive the attention they deserve.

    PARAGRAPH 4. -- PERIODIC REPORTS

    This provision affords useful documentation to the Protecting Powers and also constitutes an important safeguard for prisoners of war, since if there is any delay in transmitting a report which is expected on a given date, the Protecting Power can make enquiries.
    The system of periodic reports developed during the Second World War, most of them being addressed to the relief organizations and in particular the International Committee of the Red Cross. Although the Protecting Power, which is in the first place responsible for the protection of prisoners of war, has usually been designated as the central agency for receiving reports, the information which they contain will often concern the relief organizations. The Protecting Power must therefore transmit as rapidly as possible any information of interest to the relief organizations concerned.


    * (1) [(1) p.382] SCHEIDL refers to a treaty between Great
    Britain, France and Germany in 1906 (op. cit., p. 423, cf.
    German White Paper of January 31, 1917). Under this
    agreement the three Powers recognized that thenceforth all
    written requests addressed by prisoners of war to the
    representatives of the Power looking after their interests
    should be transmitted to the delegates of the Protecting
    Powers, together with the comments of the military
    authorities by way of additional information, explanation
    or denial;

    (2) [(1) p.384] See ' Report on the Work of the Conference of
    Government Experts ', pp. 195-197;

    (3) [(1) p.385] See ' Report on the Work of the Conference of
    Government Experts ', p. 196;

    (4) [(2) p.385] Furthermore, it should be noted that some
    prisoners of war, for instance those under arrest, are
    physically unable to use the intermediary of the
    prisoners' representative and must nevertheless be able to
    avail themselves of the right of complaint;

    (5) [(3) p.385] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War ', Vol. I, pp. 341-342;