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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- ELECTION
[p.389] PARAGRAPH 1. -- GENERAL PRINCIPLE
A. ' Nature of the obligation. ' -- Under Article 43, paragraph 1
, of the 1929 Convention prisoners of war were allowed to appoint representatives, and the Detaining Power was merely required to permit such appointments to be made. The present text is more specific and implies that prisoners of war must hold such elections in order not to lose some of the advantages and safeguards which the Convention affords.
B. ' Conditions for elections. ' -- The 1929 Convention left it to prisoners of war to decide on the election procedure. In fact, during the Second World War, prisoners' representatives were frequently elected not by the whole camp community but by a small number of prisoners with considerable influence, Such as chaplains and interpreters (1). The new Convention specifies that elections must be held by secret ballot and this involves some organization. In camps consisting of several thousands of prisoners of war, especially, balloting may be preceded by a veritable electoral campaign, and this cannot take place without some help from the Detaining Power. The latter must, however, see [p.390] that no pressure is brought to bear on prisoners of war, and the requirement that the prisoners' representative elected must be approved by the Detaining Power is no justification for that Power to use its influence before the election by restricting the choice of the prisoners.
C. ' Time and place of elections. ' -- The Convention does not specify the stage at which prisoners' representatives may be elected, but in line with the other rights established by the Convention the right to elect prisoners' representatives should obviously obtain from the beginning of captivity. In view of the general wording of the phrase "in all places where there are prisoners of war", there is no need to wait until they are actually in a camp. If circumstances permit, prisoners of war will be able to appoint a prisoners' representative in transit camps. The general wording of the provision therefore enables prisoners' representatives to be elected not only in the main camps which are usually situated on the outskirts of built-up areas, but also in labour detachments.
In 1929 consideration was given to the advisability of specifying a minimum number of prisoners (10, 50 or 100) for the election of a prisoners' representative. The present text leaves no room for doubt: wherever there are prisoners of war, and regardless of their number, there must be prisoners' representatives able to carry out their duties.
D. ' Duty of representation. ' -- In electing prisoners' representatives "entrusted with representing them", prisoners of war appoint their spokesman before the authorities and agencies listed. This is confirmed by Article 126
, which states that delegates of the Protecting Powers and of the International Committee of the Red Cross have the right to interview prisoners' representatives without witnesses.
The prisoners' representative also represents his fellow-prisoners before "any other organization which may assist them". This function is somewhat restricted by the fact that, pursuant to Article 125, paragraph 2
, the Detaining Power may limit the number of societies and organizations whose delegates are allowed to carry out their activities in its territory.
Does the fact that the prisoners' representative acts as an official intermediary deprive prisoners of war of the right to enter into direct contact with the organizations assisting them or the military authorities? As has been seen in connection with Article 78
, prisoners of war may address complaints directly to the Protecting Power without [p.391] going through the prisoners' representative; they may also present themselves directly for examination by the Mixed Medical Commissions (Article 113, paragraph 2
); lastly, under Article 9
of the Regulations concerning collective relief (Annex III), collective relief may be distributed without the participation of the prisoners, representative. It is clear from these provisions that the answer to the question is in the negative.
Although the prisoners' representative has no monopoly over relations with the outside world, as a general rule the authorities and organizations referred to above should nevertheless abstain from dealing directly with prisoners of war on matters which are clearly his concern, such as administrative questions; once his competence has been established, it should be respected. For their part, these authorities and organizations may consider that in dealing with the prisoners' representative on matters of this kind, they are dealing with the camp community and cannot therefore be held responsible if some of the prisoners are not satisfied with the regulations and arrangements accepted by their representative. During the Second World War, prisoners' representatives kept in close and constant touch with the International Committee of the Red Cross, in addition to routine co-operation concerned with the distribution of relief. They wrote on behalf of prisoners of war to ask for family news or a copy of an official document, to forward a
will or a commercial document, a certificate of marriage by proxy, etc. During camp visits, personal contacts were established by the representatives of relief organizations with the prisoners' representatives.
It is the duty of the prisoners' representative in a labour detachment to represent his fellow-prisoners before the non-commissioned officer i charge of the detachment, while the prisoners' representative in the main camp represents prisoners of war before the camp commander. If the prisoners' representative in a labour detachment wishes to bring any matter to the attention of the camp commander, he must do so through the intermediary of the prisoners' representative in the main camp, to whom the necessary communication facilities for this purpose are afforded by Article 81, paragraph 4
It is not conceivable that prisoners' representative would approach the military authorities to which the camp authorities are subordinate, unless the former take a direct hand in the camp administration. As already pointed out prisoners' representatives -- like individual prisoners of war -- may apply to the camp commander's superiors through the complaint procedure, but such action goes beyond the notion of representation as implied here.
[p.392] PARAGRAPH 2. -- APPOINTMENT OF THE PRISONERS'
REPRESENTATIVE IN CAMPS FOR OFFICERS AND PERSONS OF
EQUIVALENT STATUS OR IN MIXED CAMPS
In camps for officers (2), the prisoners' representative is appointed according to seniority and not by election. The term "the senior officer" (in French, "le plus ancien dans le grade le plus élevé") has sometimes been taken as meaning the oldest officer with the highest rank. If the words are to have a precise meaning, however, as they must have, it should be what the English text says, viz. the senior officer of the highest rank. Age will only be the determining factor where two officers of the same rank were promoted on the same date. It should, however, be noted that the Detaining Power will not easily be able to check dates of promotion (3).
Thus it is clearly established that, like other prisoners of war, officers have a prisoners' representative. Serious difficulties may result, however, from the fact that he is appointed according to rank, particularly if his state of health makes it difficult for him to carry out the wide range of tasks incumbent on the prisoners' representative. The 1949 text therefore provides a possibility which did not exist in Article 43
of the 1929 Convention: the officer who is the prisoners' representative will be "assisted" by one or more advisers chosen by the prisoners themselves. The intention of the authors of this new provision (4) was that such assistants should be able to help the senior officer of the highest rank by expressing the wishes and opinions of all the prisoners.
In mixed camps, these assistants are to be "elected" and one may suppose that the procedure laid down in Article 79, paragraph 1
, will also apply to these elections. In camps for officers, advisers will simply be "chosen by the officers"; it was not thought necessary to impose such a strict procedure on officers.
The Convention does not stipulate the number of assistants in a camp for officers, and it will depend on the size and conditions of the camp. The authors of the provision seem to have had in mind a small number.
Lastly, it should be noted that the notion of "mixed camps" is an innovation as compared with the 1929 text, and this is the only [p.393] reference to it. As may be seen from the record of the discussions at the Diplomatic Conference (5), the expression refers to camps comprising both officers and other ranks.
PARAGRAPH 3. -- SPECIAL DUTIES OF OFFICERS IN LABOUR CAMPS
This provision appeared for the first time at the Diplomatic Conference of 1949, and is based on a proposal by the United States Delegation that the duties of the prisoners' representative in camps for other ranks should be entrusted to officers (6). In that form it was contrary to the general spirit of the present Chapter and in particular conflicted with the idea that prisoners' representatives should be elected. It is therefore not surprising that the Conference did not accept the proposal in its original form; it nevertheless retained the idea of entrusting administration duties to officers, and this has the advantage of providing officers with an occupation and at the same time ensuring that the camp administration is in the hands of experienced persons.
The term "labour camp" must not be taken in a punitive sense. Since all prisoners of war belonging to the other ranks are normally required to work, these are merely the camps in which they live, as opposed to camps for officers referred to in paragraph 2. The Detaining Power is responsible for the treatment of prisoners of war and also for carrying out the "camp administration duties". Depending on the customs of each nation, however, the Detaining Power might leave prisoners of war considerable latitude, if they agree, as regards the organization of the camp. The present provision permits these administrative tasks to be carried out by officer prisoners of war whose work will thus complement that done by the representatives of the Detaining Power.
In no case, however, may these administrative tasks include duties expressly laid upon the prisoners' representatives unless the person in question is elected to that post by the prisoners of war.
[p.394] PARAGRAPH 4. -- APPROVAL OF THE DETAINING POWER
Provision was already made in the Franco-German Agreement of 1918 and in the 1929 text (Article 43
) for the welfare committee representative elected to be approved by the Detaining Power. This clause, while understandable, may restrict the freedom of prisoners of war to choose their representative; in order to limit arbitrary action by the Detaining Power, the Convention states that if the Detaining Power does not give its approval, it must inform the Protecting Power of the reasons for refusing. If the Protecting Power considers those reasons valid, it can so inform the prisoners of war who can then advisedly elect another candidate.
PARAGRAPH 5. -- GUARANTEES OF IMPARTIALITY AND
This text was introduced at the 1949 Conference on the basis of the practice followed during the Second World War by certain Detaining Powers which allowed a prisoners' representative to be appointed for each national group. This solution made it much easier to distribute and share out collective shipments, which were generally grouped according to nationality.
The criteria specified in the first sentence are the same as those stated in Article 22, paragraph 3
, concerning the assembling of prisoners of war. They are justified not only by practical needs connected with the distribution of relief, but still more by the general task of representation. In order to carry out that task properly, prisoners' representatives must speak the language of the prisoners concerned and be in sufficiently close contact with them to understand them and, if need be, plead on their behalf. Any other solution might result in inequitable treatment which would be contrary to the principle stated in Article 16
* (1) [(1) p.389] See BRETONNI RE, op. cit., pp. 252-259;
(2) [(1) p.392] See ' Revue Internationale de la
Croix-Rouge ', 1943, p. 853;
(3) [(2) p.392] See Article 28 of the First Convention and
' Commentary I ', p. 249, Note 3;
(4) [(3) p.392] See ' Report on the Work of the Conference of
Government Experts ', pp. 198-199;
(5) [(1) p.393] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 289;
(6) [(2) p.393] Ibid., Vol. III, p. 78, No. 141;