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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Art. 49. Part III : Captivity #Section III : Labour of prisoners of war
. -- GENERAL OBSERVATIONS
This Article is based on Article 27, paragraphs 1, 2 and 3
of the 1929 Convention.
[p.260] PARAGRAPH 1. -- GENERAL CONDITIONS
The basic principle stated in this paragraph is the right of the Detaining Power to require prisoners of war to work.
The wording is similar to that of the corresponding texts in the Hague Regulations (Article 6
) and the 1929 Convention (Article 27, paragraph 1
Provision is made for prisoners of war to work because of humanitarian considerations and not on account of the economic interest of the Detaining Power; the primary purpose is, through work, to preserve the bodily health and morale of prisoners of war. In addition, camp administration is made easier and, lastly, the prisoners are materially better off because of the pay which they receive.
The application of the general principle is subject to certain conditions: the Detaining Power may only require physically fit prisoners to work, in order precisely to maintain them in a good state of physical and mental health. Prisoners who are "physically fit" are those who are healthy, vigorous and able to work; this will be verified by the medical service which is required to hold medical examinations, under Article 55
The Detaining Power must also consider the following factors:
A. ' Age '. -- Pursuant to Article 16
, for reasons of age the Detaining Power may derogate from the general principle of equal treatment; this is a typical case for application of that rule.
B. ' Sex '. -- Here, too, Article 16
C. ' Rank '. -- The reference to rank in this paragraph is only by way of a general indication, and more detailed provisions are contained in paragraphs 2 and 3 below.
D. ' Physical aptitude '. -- The 1929 Convention stated, in Article 29
, that prisoners of war must not be employed on work for which they were physically unsuited. Nevertheless, this provision was frequently violated during the Second World War (1). On the other hand, Article 27, paragraph 1
, of the 1929 Convention merely stated that prisoners of war were to be assigned to work according to their "ability", [p.261] which might be taken to refer to professional ability (2). It is difficult, however, to make vocational aptitude a general rule applicable to captivity. The work done by prisoners of war will often be manual labour, involving a physical effort which must be proportionate to the strength of the workers concerned, since the principal purpose of work is to maintain prisoners of war in good health.
E. ' Interest of prisoners '. -- Here the text leaves no room for doubt, and refers specifically to the maintenance of prisoners of war in a good state of physical and mental health.
PARAGRAPH 2. -- WORK BY NON-COMMISSIONED OFFICERS
During the Second World War, great difficulties arose in this connection. In the first place, non-commissioned officers who were prisoners of war often had no means of proving their status as their identity documents had been taken away from them when they were captured. It also happened that varying interpretations were placed on the term "non-commissioned officer" (3) as well as on the expression "supervisory work".
The new Convention tries to overcome some of these difficulties. In accordance with Article 17
, every person liable to become a prisoner of war must be furnished with an identity card which may in no case be taken away from him. This card will enable non-commissioned officers to prove their status at all times. Moreover, under the new Convention the provisions requiring the belligerents to communicate to one another titles and ranks are applicable to "all the persons mentioned in Article 4
" (Article 43
), while the 1929 Convention provided this advantage only for officers and persons of equivalent status. These more detailed provisions should preclude any differences of interpretation concerning the recognition of the status of non-commissioned officers. It should also be noted that, unlike the arrangements concluded on this subject during the First World War, the Convention makes no distinction between the various categories of non-commissioned officers (4).
[p.262] The term "supervisory work" is generally recognized as denoting administrative tasks which usually consist of directing the other ranks; it obviously excludes all manual labour (5).
No pressure may be brought to bear on prisoners of war to compel them to do other work. On the other hand, non-commissioned officers may ask for other suitable work and there is therefore a risk that the Detaining Power may try to influence them, either by granting them certain advantages or by paying them for the work done, which cannot be forbidden. On the other hand, it is essential that noncommissioned officers who are unwilling to work should not be punished in any way for refusing to do so. This rule was not always respected during the Second World War (6).
The Convention encourages the Detaining Power to accede to the request of non-commissioned officers who wish to work, since it states that such work "shall, so far as possible, be found for them". Work under this heading is not covered by the list in Article 50
, which refers only to compulsory labour. Those concerned, however, are under a moral obligation not to request any work which might be prejudicial to the Power in whose armed forces they fought.
Non-commissioned officers are free to undertake work, and they must similarly be free to renounce that undertaking. The Detaining Power may, at its discretion, regulate this possibility, for instance by providing for employment for a fixed term, which may be extended for regular periods. During the Second World War, however, prisoners of war were sometimes more or less compelled to sign a contract for an indefinite period which bound them throughout their captivity; that would be absolutely contrary to the present provision.
PARAGRAPH 3. -- WORK BY OFFICERS
This provision reproduces the text of Article 27, paragraph 2
, of the 1929 Convention, with the addition of a reminder that officers may not be compelled to work.
[p.263] Officers are therefore free to request suitable work, and this right was generally respected during the Second World War (7).
Like non-commissioned officers, officer prisoners of war are entitled to give up the work Which they requested.
In the past, when officer prisoners of war worked, they generally did so without causing any prejudice to the Power in whose armed forces they served and almost always without accepting remuneration. There therefore seemed no justification for the accusations made after their return from captivity against certain officers who had availed themselves of the possibility of working (8). Moreover, the States would certainly not have adopted the present provision at the 1949 Diplomatic Conference if they had felt that it left the way open for treasonable acts.
* (1) [(1) p.260] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War, ' Vol. I, pp. 329-332;
(2) [(1) p.261] Germany made an effort in this direction
during the Second World War; see BRETONNI RE, op. cit.,
pp. 165-167 and 179;
(3) [(2) p.261] In Switzerland, for instance, a corporal is a
non-commissioned officer, but in France he is not;
(4) [(3) p.261] See SCHEIDL: op. cit., p. 376; see also
' Final Record of the Diplomatic Conference of Geneva of
1949, ' Vol. II-A, p. 361;
(5) [(1) p.262] See BRETONNI RE: op. cit., pp. 171-172;
SCHEIDL: op. cit., p. 376;
(6) [(2) p.262] Germany ordered non-commissioned officers who
were prisoners of war to work, but was not always prepared
to recognize the right of non-commissioned officers who
were prisoners in German hands to avail themselves of
Article 27, paragraph 3, of the 1929 Convention. See
' Report of the International Committee of the Red Cross
on its activities during the Second World War, ' Vol. I,
pp. 338-339; BRETONNI RE: op. cit., pp. 170-178;
(7) [(1) p.263] In fact, only rarely did officers avail
themselves of this possibility. See ' Report of the
International Committee of the Red Cross on its activities
during the Second World War, ' Vol. I, pp. 337-338;
BRETONNI RE: op. cit., pp. 169-170;
(8) [(2) p.263] See ' Report on the Work of the Conference of
Government Experts, ' p. 172;