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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
[p.295] ARTICLE 57
. -- PRISONERS WORKING FOR PRIVATE EMPLOYERS
Like other prisoners of war, those who work for private employers remain in the hands of the Detaining Power alone (Article 12
); and like their fellow-prisoners, they are under the direct authority of a camp commander, who must himself be a commissioned officer belonging to the regular armed forces of the Detaining Power (Articles 39
). There is therefore no change in the legal status of this category of prisoners of war as regards the basic principles which the Convention makes applicable to captivity. In fact, however, their situation is very different from that of their fellow-prisoners living in the camp, for in a way the Detaining Power delegates its powers to the employer. Subject to certain conditions, the Convention does not forbid this, as will be seen; it is, however, merely an internal arrangement.
PARAGRAPH 1. -- TREATMENT AND RESPONSIBILITY
1. ' First sentence. -- Minimum standard of treatment '
The first sentence was re-drafted several times. The participants at the Stockholm Conference recommended the following text, in order to make it clear that the employer is responsible for guarding prisoners:
"The treatment of prisoners of war working in the employ of private persons and placed under their direct control shall be equal at least to that which is foreseen by the present Convention. The Detaining Power shall ensure the supervision and take the entire responsibility for these prisoners (1)".
[p.296] The delegates to the 1949 Diplomatic Conference considered, however, that this wording was not advisable, since it might possibly be construed as permitting a transfer of responsibility from the camp commander to the private employer, and, as we have already seen, this cannot be allowed in any circumstances (2). In order to leave no ambiguity on this score, the Stockholm draft was amended and the text was approved as it now stands.
In the first place, therefore, it concerns prisoners of war whose employer takes on the responsibility for guarding and protecting them, it being understood that this responsibility is only an internal matter. The general rule is that, in the absence of any express provision to the contrary in the Convention, the Detaining Power is responsible for carrying out the Convention. The camp commander may therefore be authorized by his superiors to entrust the guarding of prisoners of war to civilians as well as to members of the armed forces; this is implicitly allowed by the present paragraph.
In matters of discipline, however, any delegation of powers is limited by paragraph 2 of Article 96
, which provides that "disciplinary punishment may be ordered only by an officer with disciplinary powers in his capacity as camp commander, or by a responsible officer who replaces him or to whom he has delegated his disciplinary powers". In no case, therefore, may a camp commander delegate such powers to civilian employers.
Similarly, any delegation of the responsibility for guarding prisoners of war cannot in any circumstances imply that civilians have the right to use weapons against prisoners of war attempting to escape. The justification for firing on an escaping prisoner of war lies in the fact that he is committing an act of war in his capacity as a member of the enemy armed forces; but only military personnel can respond by an act of war. Whatever the responsibility of private employers vis-à-vis the national authorities concerning the guarding of prisoners of war, such employers are forbidden to use weapons against prisoners, except in legitimate self-defence, which cannot arise solely from the fact that a prisoner attempts to escape.
Two solutions are therefore open to the Detaining Power: either it may detail military personnel to be responsible for guarding prisoners of war employed by private persons, or such civilian employers may be responsible for guarding only prisoners partially released on parole, pursuant to Article 21, paragraphs 2 and 3
[p.297] We come now to the principal clause in this provision, which expressly requires that the treatment of prisoners of war who work for private persons "shall not be inferior to that which is provided for by the present Convention". This stipulation was inserted in the light of the experience of the Second World War. Although prisoners employed by private persons sometimes enjoy certain advantages as regards food, quarters or discipline, for instance, as compared with their comrades who are in camps, they may be deprived of other rights because of their isolation. We have in mind especially correspondence, medical care, relief consignments, religious services, access to canteens, and the preparation of legal documents. The fact that prisoners who are employed by private persons may enjoy certain other advantages is no justification for depriving them of the rights to which they are entitled under the Convention.
In accordance with Article 135
, the present Convention is complementary to Chapter II of the Regulations annexed to the Hague Conventions for the Powers which are bound by the latter Conventions. Article 6
of the Hague Regulations, which provides that prisoners of war may be authorized to work "on their own account", therefore remains applicable as between the Powers concerned.
2. ' Second sentence. -- Responsibility '
This sentence was inserted by the delegates to the 1949 Diplomatic Conference in order to emphasize the principle that in all cases the military authorities must be directly responsible for the well-being of prisoners of war (3).
Express reference is made here to various matters which may possibly be the subject of contractual arrangements between the military authorities and the employer when prisoners of war are assigned to work for the latter: maintenance, care, treatment in accordance with the Convention, and payment of working pay. Contracts of this kind are not forbidden, but they must be considered as purely internal arrangements within the context of measures for applying the Conventions. By signing such a contract, the Government of the Detaining Power, the military authorities, or the commander of the camp to which the prisoners of war are attached, are in no way relieved of their responsibilities.
[p.298] PARAGRAPH 2. -- COMMUNICATION WITH THE PRISONERS'
The obligations imposed on the Detaining Power by the first paragraph are safeguarded by the present provision, which expressly recognizes the right of prisoners of war working for private persons to "remain in communication" with their prisoners' representative. This contact may be maintained by correspondence, telephone or periodic meetings. Article 81, paragraph 2
, expressly states that all material facilities must be granted to prisoners' representatives, particularly a certain freedom of movement. Visits to labour detachments are mentioned, and reference may be made to the commentary on that Article.
* (1) [(1) p.295] See ' XVIIth International Red Cross
Conference, Draft Revised or New Conventions for the
Protection of War Victims, ' p. 86;
(2) [(1) p.296] ' Final Record of the Diplomatic Conference of
Geneva of 1949, ' Vol. II-A, p. 277;
(3) [(1) p.297] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 277;