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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- ADJUSTMENTS BETWEEN PARTIES TO THE CONFLICT
This Article enables the Powers concerned to make arrangements between themselves regarding three kinds of payment:
1. ' Adjustment for advances of pay '
According to the 1929 Convention, all advances made to prisoners of war by way of pay had to be reimbursed, at the end of hostilities, by the Power in whose service the prisoners had been.
During the Second World War, however, certain Powers interpreted this provision as if the fulfilment of the obligation was dependent on reimbursement at a later date. Payments were consequently suspended in the case of prisoners whose country of origin had suffered such political upheavals that there could be no certainty of reimbursement.
We do not propose to examine the 1929 text in detail here, or to give any opinion on the legal arguments adduced by certain States to justify such discriminatory treatment of prisoners of war. In our view, however, such discrimination is contrary to Article 4, paragraph 2
, of the 1929 Convention.
The problem is still more important, however, in relation to the new Convention, since the latter makes provision for advances of pay not merely for officers, as was already the case in the 1929 Convention, but for all prisoners of war in accordance with Article 60
. Two provisions have to be considered: in the first place, Article 60
, which contains a categorical obligation for the Detaining Power to give [p.332] advances of pay in accordance with a fixed scale (subject only to the reservation contained in paragraph 2 as we have already seen); and, secondly, the present provision, which states that such advances of pay "shall be considered as made on behalf of the Power on which they (the prisoners of war) depend".
The text says "shall be considered" and not "shall be made" on behalf of that Power, and the shade of meaning is not unimportant: "shall be considered" implies that they shall be "recognized" or "acknowledged" as being made on behalf of the Power on which the prisoners of war depend. There is therefore no need for a special agreement to be concluded before the Detaining Power, fulfilling its obligation pursuant to Article 60
, that is to say giving advances of pay according to the fixed scale, can legitimately claim that it is acting as the representative of the Powers on which the prisoners depend, which implies that arrangements must be concluded between the Powers concerned at the end of hostilities.
It will, however, be difficult to conclude such arrangements if prisoners of war have become stateless persons at the close of hostilities.
Would there be any justification under Article 67 for the Detaining Power to suspend advances of pay to prisoners of war when, in the opinion of that Power, there is no longer the necessary assurance that reimbursement will be made at a later date? In our opinion, the answer must be in the negative.
In the first place, it would be premature in the course of hostilities to make any assumption regarding the political situation likely to prevail at the end of the war. More important still, the two questions must be kept completely separate. Every prisoner of war is fully entitled to advances of pay throughout the period of captivity. The Detaining Power is entitled to compensation at the close of hostilities for the payments which it has made. The appropriate procedure for implementing Article 67 can only become clearly apparent at the end of the conflict. For the Detaining Power to take any other attitude would be contrary to the letter and the spirit of the Convention and especially to Article 16
, which permits no discrimination in the treatment of prisoners of war (1).
[p.333] 2. ' Adjustment for payments made by notification '
This refers to payments made in the country of origin of a prisoner of war and which are debited to the prisoner's account with the Detaining Power. Adjustment will normally be effected automatically by the relevant entries. This will be the case wherever payment is made on the basis of advances of pay, since the pay is due by the Power on which the prisoner depends. If, on the contrary, payment is made on the basis of amounts due to the prisoner by the Detaining Power (i.e. working pay, or sums impounded at the time of capture), an arrangement must be made subsequently since in fact the amounts concerned have been paid out by the Power on which the prisoner depends.
3. ' Compensation for accidents at work ' (Article 68
The only obligation incumbent on the Detaining Power under Article 68
in regard to a prisoner of war who suffers an accident while at work is to provide him with a certificate enabling him to submit his claim to the Power on which he depends. This procedure was evolved in order to ensure that the prisoner of war would continue to receive an indemnity after the end of captivity, that is to say as long as the disability persisted. The Detaining Power is nevertheless responsible towards the Power on which the prisoner depends, and this is precisely why the present provision states that arrangements must be made at the close of hostilities.
This procedure, which assures prisoners of war of an equitable indemnity, would, however, have unjust effects in the case of prisoners who have no means of recourse at the national level after the end of their captivity. Such a result would again be a flagrant contradiction of the spirit of the Convention.
In our opinion, a prisoner of war in this situation would have the right to make a claim directly against the Detaining Power. This opinion is based on Article 51, paragraph 2
, which states: "The Detaining Power, in utilizing the labour of prisoners of war, shall ensure that in areas in which prisoners are employed, the national legislation concerning the protection of labour, and, more particularly, the regulations for the safety of workers, are duly applied".
If there is no possibility of applying Article 68
, the prisoners of war concerned must therefore be able to make a claim directly against the Detaining Power on the basis of the above-mentioned regulations, in the same way as workers who are nationals of that State.
* (1) [(1) p.332] For purposes of adjustment, account must
obviously be taken only of sums actually paid and not
those which have been entered in a prisoner's account but
to which he has never had access;