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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Art. 81. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter II : Prisoner of war representatives
. -- PREROGATIVES
Prisoners' representatives cannot carry out their duties if they are subject to the same régime as their fellow-prisoners, and certain prerogatives were already granted to them under the 1929 Convention. Those prerogatives related to three main points: exemption from work, correspondence facilities and safeguards against sudden transfer.
The present Convention confirms the existing prerogatives and adds new ones: the right to appoint assistants from amongst the prisoners, and some freedom of movement.
On the other hand, there is no mention of prerogatives of a personal kind or of the right of prisoners' representatives to have more comfortable living conditions than other prisoners. Would such prerogatives be incompatible with the status of prisoners' representative? In our view, account should be taken only of the interest of the prisoners and the task to be done. The prisoners' representative must enjoy as much independence and intellectual freedom as is necessary for the efficient performance of his duties, and within the limits of discipline and expediency he will be the best judge of the most favourable working conditions for himself and his assistants.
PARAGRAPH 1. -- EXEMPTION FROM WORK
Under Article 44, paragraph 1
, of the 1929 Convention, the time which prisoners' representatives devoted to that work had to be counted as part of the compulsory period of labour. That provision was mainly designed to ensure that prisoners' representatives received pay.
The latter point is not disputed; prisoners' representatives perform work from which the Detaining Power benefits, and they must therefore be remunerated. This question is not dealt with in the present paragraph, however, but in Article 62, paragraph 3
Exemption from all other labour will be automatic "if the accomplishment of their duties is thereby made more difficult". This wording is sufficiently flexible to meet all contingencies; the prisoners, representative in a small labour detachment will probably need to devote only part of his time to duties in behalf of his fellow-prisoners.
The word "work" here must be taken as indicating any occupation which might prevent the prisoners' representative from ordering his own time and carrying out his duties. It refers not only to work which [p.401] the prisoners are required to do under Articles 49
to 57, but also to administration duties carried out in labour detachments by officers in accordance with Article 79, paragraph 3
PARAGRAPH 2. -- ASSISTANTS AND FACILITIES
1. ' First sentence. -- Assistants '
In order to carry out their many duties, prisoners' representatives in large camps must be able to appoint assistants; the Convention recognizes this right explicitly and unreservedly. This prerogative must not be questioned or the competence of prisoners' representatives would be illusory. The approval of the Detaining Power is therefore not formally required. If that Power were to object, the prisoners' representative should obviously endeavour to settle the matter in the best interests of his duties and the well-being of the prisoners. He alone is responsible, however, for selecting his assistants and determining their number.
The terminology of the Convention is not very strict in this connection: Article 62, paragraph 3
, speaks of "advisers" and "assistants", while Article 3
of the Regulations concerning collective relief mentions only "assistants". They will be interpreters, legal advisers, secretaries, assistants competent in matters of storage and handling, all of whom, like the prisoners' representative himself, will be exempted from any other work to the extent that the accomplishment of their duties would "thereby be made more difficult".
In appointing assistants, the prisoners' representative exercises a right, but he also takes on a duty towards the Detaining Power on the one hand and the prisoners of war on the other hand. He is therefore entitled to grant his assistants exemption from all other work to the extent that their special duties require. This interpretation is confirmed by Article 62, paragraph 3
, which provides that the working pay of the advisers and assistants of the prisoners' representative will be paid out of the fund maintained by canteen profits, as will his own.
2. ' Second sentence. -- Facilities and freedom of movement '
A. ' Facilities '. -- The Regulations concerning collective relief refer to the facilities necessary for verifying the distribution of relief. It [p.402] must therefore be possible to draw up questionnaires and to arrange for verification in an appropriate manner. Although the Convention does not expressly say so, the same will apply to all the other activities of the prisoners' representative and appropriate means must be available for him to carry out his tasks. It is not possible to list them, because they may be many and varied, and also because of the means which may actually be made available to him according to circumstances. By way of indication, however, mention may be made of the following facilities: transport, office space, premises for religious services, libraries, reading rooms, space for sports and games, equipment necessary for publishing a camp newspaper, the requisite security for depositing sums of money belonging to a mutual assistance or other fund, etc.
B. ' Freedom of movement '. -- The expression used is somewhat ambigiuous. The fact that it is expressly mentioned shows that the authors of the Convention were well aware of the importance of the matter, and yet they did not think fit to grant "complete freedom", but only "a certain freedom" (2). This freedom must be granted whenever "necessary". Two cases are expressly mentioned: inspection of labour detachments and receipt of relief supplies. On the latter point, Article 3
of the Regulations concerning relief supplies specifies that "prisoners' representatives or their assistants shall be authorized to go to the points of arrival of relief supplies near their camps".
It should be noted that Article 3, paragraph 2(a)
,states that the Detaining Power must place at the disposal of members of the medical personnel and chaplains the necessary means of transport for them to visit periodically prisoners of war situated in working detachments or in hospitals outside the camp. To the extent that the prisoners, representative is called upon to perform similar missions, he should also have the necessary transport facilities.
PARAGRAPH 3. -- INSPECTION OF PREMISES; CONSULTATIONS
The prisoners' representative has the right to visit premises where prisoners of war are detained; this will enable him to intercede with the detaining authorities or the protecting powers in order to obtain any necessary improvements. For although the provision does not [p.403] actually say so, it implies a sort of right of inspection granted to the prisoners' representative and recognized by the Detaining Power. The latter will therefore endeavour as far as possible to give effect to the suggestions and comments made by the prisoners' representative. Here the French text, which speaks of "locaux où sont ' internés '", is more restrictive than the English text in which the word "detained" may be understood as referring to all prisoners of war, even those undergoing detention. The premises which may be visited will include the kitchen, infirmary and other annexes.
The right of a prisoner of war freely to consult his prisoners' representative is of the highest importance; in this way the prisoners' representative will be able to give assistance not only to his fellow-prisoners in the camp but also to those who are isolated because they work outside the camp. He will inform prisoners of their rights and duties, and will receive their complaints and requests, for transmission to the camp authorities; he must try at all times to know the state of mind of those who place their confidence in him. This is the best way for him to avoid any injustice, misunderstanding and, above all, nervous tension which may sometimes lead even to open rebellion.
Do prisoners of war have an absolute right to converse at any time or place with their prisoners' representative as part of the latter's duties? One is tempted to give an affirmative reply to this question, and this would mean that prisoners' representatives would have the right to visit prisoners of war sentenced to disciplinary punishment or to a judicial penalty. Here, however, a few remarks are called for and account must be taken of the spirit in which the measures of sanction were taken: the prisoners' representative may visit prisoners of war undergoing detention, but this right to visit must be justified by other provisions of the Convention. Article 98, paragraph 1
, states that a prisoner of war undergoing punishment shall continue to enjoy the benefits of the provisions of the Convention "except in so far as these are necessarily rendered inapplicable by the mere fact that he is confined".
In accordance with paragraph 5 of the same Article, parcels and remittances of money are to be entrusted to the prisoners' representative until the completion of the punishment. There is therefore nothing here to justify a visit by the prisoners' representative. With regard to prisoners sentenced to a judicial penalty, Article 108, paragraph 3
, entitles them to receive at least one relief parcel monthly. In both these cases, the right of consultation provided in paragraph 3 remains valid, especially when action is required concerning the prisoner's family or his interests, that is to say when the prisoners' [p.404] representative is called upon to act as a ' representative. ' The question will not arise in the case of disciplinary punishment, since it is of short duration, but it may well arise when sentence is awarded by a judicial court, and the military authorities must respond favourably to any request by the prisoners' representative based on these considerations.
PARAGRAPH 4. -- CORRESPONDENCE FACILITIES
The large quantity of relief consignments sent to prisoner-of-war camps during the Second World War led to a considerable volume of correspondence between prisoners' representatives, who are responsible for administering such shipments, and the various international organizations concerned.
The first of these "facilities" is that, like the ordinary correspondence of prisoners of war, correspondence should be post-free but to a greater extent; as stated expressly in the last sentence of this paragraph, such correspondence must not be restricted. This is an important privilege, in view of the fact that communication channels are often overloaded in time of war. It also means that such correspondence will not be delayed. The facilities to be granted do not, however, include freedom from censorship, but correspondence may not be withheld. If circumstances so demand, a special censorship service must therefore be instituted or, at least, the correspondence of prisoners' representatives must be given priority. The Detaining Power must also permit communications to be written in a language other than the mother tongue of the prisoner concerned (Article 71, paragraph 3
). If need be, the camp authorities must provide the necessary stationery supplies.
PARAGRAPH 5. -- TRANSFERS
Article 44, paragraph 3
, of the 1929 Convention provided that in case of transfer, the "time necessary" should be allowed for acquainting the new prisoners' representative with the current business. That provision apparently did not always suffice to ensure the normal transmission of powers: during the Second World War, some camp commanders even went so far as to grant the prisoners, representative only one hour for handing over authority. Although [p.405] various proposals were made, it was decided not to fix any definite period (one week, for instance (3)), since any decision would have been arbitrary. The word "reasonable" has been added to the previous text, and it should induce camp commanders to take into account the extensive duties and ever-increasing number of tasks of a prisoners, representative.
PARAGRAPH 6. -- DISMISSAL
As has been seen, every prisoners' representative elected by prisoners of war must be approved by the Detaining Power (Article 79, paragraphs 1 and 4
). If it does not approve, the Detaining Power is entitled to dismiss the person elected. Can the prisoners of war themselves dismiss a representative elected by them? Article 79, paragraph 1
, enables them to show disapproval by not re-electing the prisoners' representative, since elections must be held every six months. The Convention provides no procedure, however, for a case where prisoners of war have grounds to demand that their representative should resign immediately; it makes provision only for dismissal of prisoners' representative by the Detaining Power. One solution would be for the prisoners of war to submit a request to the military authorities for recognition to be withdrawn from the prisoners' representative. If the Detaining Power is satisfied that that is the wish of the majority of prisoners, it may arrange for fresh elections to be held, and the results
thereof will justify Or not, as the case may be, the request made by the prisoners of war.
The Detaining Power may at any time withdraw its approval and request prisoners of war to hold new elections. It must advise the Protecting Power of the actual reasons for its decision and may not merely state that there is no longer mutual confidence between the prisoners' representative and its own representatives. The obligation laid on the Detaining Power is not merely to report by way of information; it implies that the Protecting Power verifies the decisions taken by the Detaining Power, and the latter must therefore provide a full explanation of its action.
* (1) [(1) p.401] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 373;
(2) [(1) p.402] During the Second world war, prisoners'
representatives were released on parole by some Detaining
Powers in order to enable them to travel from one camp to
(3) [(1) p.405] See ' Report on the Work of the Conference of
Government Experts, ' p. 201;