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Commentary - Art. 54. Part III : Captivity #Section III : Labour of prisoners of war
    [p.283] ARTICLE 54. -- WORKING PAY, OCCUPATIONAL ACCIDENTS AND
    DISEASES


    Under the 1929 Convention, the problem of occupational accidents was covered by Article 27, paragraph 4 , but during the Second World War many difficulties arose in connection with the interpretation of that provision (1). The International Committee of the Red Cross was consulted many times as to the scope of this text (2). According to the most liberal interpretation and conditional upon reciprocity, the liability of the captor State to pay disability allowances to prisoners of war injured at work did not cease with their release and repatriation. This was the view of the International Committee of the Red Cross, basing itself less on the letter of the Convention than on the legitimate interest of prisoners of war (3). According to another, more restrictive, interpretation, however, this obligation ceased on the date of release of prisoners of war, and thereafter each State was responsible for paying the allowances due to its nationals (4).
    Another question which arose was whether or not the insurance should cover illness contracted at work. The International Committee of the Red Cross was consulted, and replied that the provision covered [p.284] only accidents properly so called; in its opinion, however, if the social insurance scheme of the Detaining Power included certain illnesses under the heading of accidents at work, prisoners of war should be given the benefit of those provisions (5).
    The experience of the Second World War had therefore shown that the 1929 text should be made more specific, and the present provision was prepared by the Conference of Government Experts (6).

    PARAGRAPH 1. -- WORKING PAY

    This is merely a reference to Article 62 , which regulates the question of working pay, and that Article is commented upon hereafter. The question of working pay which may be due during captivity to prisoners of war who sustain accidents or contract a disease in consequence of their work is not dealt with by Article 62 and will be considered in connection with the second sentence of paragraph 2 below.

    PARAGRAPH 2. -- COMPENSATION FOR OCCUPATIONAL ACCIDENTS
    AND DISEASES

    1. ' First sentence. -- Medical care '

    This provision may be read in conjunction with Articles 15 and 30 . Article 15 obliges the Detaining Power to provide free of charge for the medical attention required by the state of health of prisoners of war, while Article 30 contains detailed provisions concerning the care to be given them.
    The application of the present paragraph implies, however, certain precautionary measures on the part of the Detaining Power. Prisoners of war who are required to work are usually grouped in labour detachments which may or may not be close to the main camp, where the central infirmary and the main administrative services are situated. It is therefore important that, according to its size, a doctor or first-aid worker should be attached to every labour detachment, and that it should be supplied with essential medicaments as well as with the necessary facilities for transporting victims to a selected infirmary [p.285] or hospital. A single first-aid station may be available to several detachments; this is a question of organization to be settled by the Detaining Power. In case of emergency, one may call on the civilian doctor in the area (7).
    In addition, pursuant to Article 51, paragraph 2 , the national legislation concerning the protection of labour is applicable to prisoners of war.

    2. ' Second sentence. -- Compensation '

    As already noted, the provisions of the 1929 Convention relating to compensation for occupational accidents (Article 27, paragraph 4 ), which extended to prisoners of war the national legislation of the Detaining Power, proved inadequate during the Second World War. The new Convention therefore adopted another solution: it requires the Detaining Power to deliver to victims "a medical certificate enabling them to submit their claims to the Power on which they depend".
    The question is therefore settled: compensation is to be paid by the Power in whose armed forces the prisoner of war served, and the certificate delivered by the Detaining Power will constitute justification for the claim. A number of practical problems still remain to be solved, however.
    All countries nowadays have more or less advanced social legislation (8), but in what form should this certificate be drawn up? The States party to the Convention may conclude special agreements in this regard, pursuant to Article 6 of the Convention. In the absence [p.286] of any agreement, the Detaining Power will apply the corresponding provisions of its own legislation (9).
    Although the problem of compensation after the release of the prisoner concerned can be settled by delivery of a certificate, the question of the period of captivity still remains. In actual fact -- and unlike the 1929 Convention -- the present provision does not cover this period. This is, however, a relatively slight disadvantage, since in the interest of prisoners of war it was essential to provide a guarantee [p.287] not for the period of captivity, during which the loss of earning power is in any case minimal, but for the period following release. In this respect, the new Convention therefore goes considerably further than did the 1929 Convention. The prisoner is not thereby deprived of all protection until he is released, since under Article 51, paragraph 2 , he is covered by the national legislation concerning the protection of labour, and is therefore eligible for the benefits provided thereunder in case of occupational accidents or diseases (10).


    * (1) [(1) p.283] It read as follows: "During the whole period
    of captivity, belligerents are required to admit prisoners
    of war who are victims of accidents at work to the benefit
    of provisions applicable to workmen of the same category
    under the legislation of the Detaining Power. As regards
    prisoners of war to whom these legal provisions could not
    be applied by reason of the legislation of that Power, the
    latter undertakes to recommend to its legislative body all
    proper measures for the equitable compensation of the
    victims". The last sentence is addressed especially to
    federative States;

    (2) [(2) p.283] See ' Revue internationale de la
    Croix-Rouge, ' 1941, pp. 707 and 787; 1942, p. 631; 1943,
    pp. 486 and 849;

    (3) [(3) p.283] For the arguments presented in support of this
    view, see ' Revue internationale de la Croix-Rouge, '
    1943, pp. 849-852;

    (4) [(4) p.283] Ibid., p. 852;

    (5) [(1) p.284] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, p. 339;

    (6) [(2) p.284] See ' Report on the Work of the Conference of
    Government Experts, ' pp. 173-174;

    (7) [(1) p.285] The question must be considered according to
    the best interest of the prisoners of war; Article 30,
    paragraph 3, provides that "prisoners of war shall have
    the attention, preferably, of medical personnel of the
    Power on which they depend and, if possible, of their
    nationality";

    (8) [(2) p.285] Reference may also be made to the Conventions
    and Recommendations of the International Labour
    Organisation (in this connection, see extracts on pp.
    287-289, Note 1, concerning workmen's compensation for
    accidents and the minimum scale of such compensation).
    Mention should also be made of Convention No. 37, which
    came into force on July 18, 1937, concerning compulsory
    invalidity insurance for persons employed in industrial or
    commercial undertakings, in the liberal professions, and
    for outworkers and domestic servants, and Convention No.
    38, which came into force on July 18, 1937, concerning
    compulsory invalidity insurance for persons employed in
    agricultural undertakings;

    (9) [(1) p.286] We give below, as an indication, extracts from
    Recommendation No. 97 of the International Labour
    Organisation, concerning the protection of the health of
    workers in places of employment. In Section III, this
    Recommendation provides for a "notification of
    occupational diseases", with a view particularly to
    "allowing the initiation or development of measures
    designed to ensure that victims of occupational diseases
    receive the compensation provided for such diseases":
    "15. National laws or regulations should --
    (a) specify the persons responsible for notifying
    cases and suspected cases of occupational
    disease; and
    (b) prescribe the manner in which cases of
    occupational disease should be notified and the
    particulars to be notified and, in particular,
    specify --
    (i) in which cases immediate notification is
    required and in which cases notification at
    specified intervals is sufficient;
    (ii) in respect of cases in which immediate
    notification is required, the time limit
    after the detection of a case or suspected
    case of occupational disease within which
    notification is required;
    (iii)in respect of cases in which notification
    at specified intervals is sufficient, the
    intervals at which notification is
    required.
    16. The notification should provide the authority
    concerned with the protection of the health of workers in
    places of employment with such information as may be
    relevant and necessary for the effective performance of
    its duties, including, in particular, the following
    details:
    (a) age and sex of the person concerned;
    (b) the occupation and the trade or industry in
    which the person is or was last employed;
    (c) the name and address of the place or last place
    of employment of the person concerned;
    (d) the nature of the disease or poisoning;
    (e) the harmful agent and the process to which the
    disease or poisoning is attributed;
    (f) the name and address of the undertaking in which
    the worker presumes that he was exposed to the
    risk to which the disease or poisoning is
    attributed; and
    (g) so far as is known or can readily be ascertained
    by the person making the notification, the date
    of the beginning and, where appropriate, the
    cessation of exposure to the risk in each of the
    occupations, trades or industries in which the
    worker concerned is or has been exposed to the
    risk.";

    (10) [(1) p.287] It may be useful to note a series of documents
    relating to labour legislation:

    ' A. '

    ' Extracts from Convention No. 17 of the
    International Labour Organisation, concerning Workmen's
    Compensation for Accidents, which came into force on April
    1, 1927. '
    ...
    ' Article 5 '. -- The compensation payable to the
    injured workman, or his dependants, where permanent
    incapacity or death results from the injury, shall be paid
    in the form of periodical payments; provided that it may
    be wholly or partially paid in a lump sum, if the
    competent authority is satisfied that it will be properly
    utilized.
    ' Article 6 '. -- In case of incapacity, compensation
    shall be paid not later than as from the fifth day after
    the accident, whether it be payable by the employer, the
    accident insurance institution, or the sickness insurance
    institution concerned.
    ' Article 7 '. -- In cases where the injury results
    in incapacity of such a nature that the injured workman
    must have the constant help of another person, additional
    compensation shall be provided.
    ' Article 8 '. -- The national laws or regulations
    shall prescribe such measures of supervision and methods
    of review as are deemed necessary.
    ' Article 9 '. -- Injured workmen shall be entitled
    to medical aid and to such surgical and pharmaceutical aid
    as is recognized to be necessary in consequence of
    accidents. The cost of such aid shall be defrayed either
    by the employer, by accident insurance institutions, or by
    sickness or invalidity insurance institutions.
    ' Article 10 '. -- (1) Injured workmen shall be
    entitled to the supply and normal renewal, by the employer
    or insurer, of such artificial limbs and surgical
    appliances as are recognized to be necessary: provided
    that national laws or regulations may allow in exceptional
    circumstances the supply and renewal of such artificial
    limbs and appliances to be replaced by the award to the
    injured workman of a sum representing the probable cost of
    the supply and renewal of such appliances, this sum to be
    decided at the time when the amount of compensation is
    settled or revised.
    (2) National laws or regulations shall provide for
    such supervisory measures as are necessary, either to
    prevent abuses in connection with the -renewal of
    appliances, or to ensure that the additional compensation
    is utilized for this purpose.
    ' Article 11 '. -- The national laws or regulations
    shall make such provision as, having regard to national
    circumstances, is deemed most suitable for ensuring in all
    circumstances, in the event of the insolvency of the
    employer or insurer, the payment of compensation to
    workmen who suffer personal injury due to industrial
    accidents, or, in case of death, to their dependants.

    ' B '

    ' Extract from Recommendation No. 22 of the
    International Labour Organisation, ' concerning the
    Minimum Scale of Workmen's Compensation (May 1925).
    N.B. -- In the case of prisoners of war, the rates
    indicated would have to be based on their normal pay, and
    not on the allowances paid to them during captivity.

    I

    When incapacity for work results from the injury, the
    national laws or regulations should provide for the
    payment of compensation at rates not lower than those
    hereinafter indicated:
    1. In the case of permanent total incapacity, a
    periodical payment equivalent to two-thirds of the
    workman's annual earnings;
    2. In case of permanent partial incapacity, a proportion
    of the periodical payment due in the event of
    permanent total incapacity calculated in reference to
    the reduction of earning power caused by the injury;
    3. In case of temporary total incapacity, a daily or
    weekly payment equivalent to two-thirds of the
    workman's basic earnings as calculated for purposes
    of compensation;
    4. In case of temporary partial incapacity, a proportion
    of the daily or weekly payment payable in the case of
    temporary total incapacity calculated in reference to
    the reduction of earning power caused by the injury.
    Where compensation is paid in a lump sum, the sum
    should not be less than the capitalized value of the
    periodical payment which would be payable under the
    foregoing paragraphs.

    II

    Where the injury is such that the workman requires
    the constant help of another person, additional
    compensation should be paid to the workman, which should
    not be less than half the amount payable in the case of
    permanent total incapacity.

    III

    Where death results from the injury, those entitled
    to be regarded as dependants for purposes of compensation
    should include at least the following:
    1. deceased's husband or wife;
    2. deceased's children under eighteen years of age, or
    above that age if, by reason of physical or mental
    infirmity, they are incapable of earning;
    3. deceased's ascendants (parents or grandparents),
    provided that they are without means of subsistence
    and were dependent on the deceased, or the deceased
    was under an obligation to contribute towards their
    maintenance;
    4. deceased's grandchildren and brothers and sisters, if
    below eighteen years of age, or above that age if, by
    reason of physical or mental infirmity, they are
    incapable of earning, and if they are orphans, or if
    their parents, though still living, are incapable of
    providing for them.
    Where compensation is paid by means of periodical
    payments, the maximum total of the yearly sum payable to
    all the dependants should not be less than two-thirds of
    the deceased's annual earnings.
    Where compensation is paid in a lump sum, the maximum
    sum payable to all the dependants should not be less than
    the capitalized value of periodical payments equivalent to
    two-thirds of the deceased's annual earnings.

    IV

    The vocational re-education of injured workmen should
    be provided by such means as the national laws or
    regulations deem most suitable.
    Governments should encourage institutions which
    undertake such reeducation;