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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
[p.413] ARTICLE 95
. -- WORKING CONDITIONS
PARAGRAPH 1 -- THE PRINCIPLE: VOLUNTARY WORK
The first paragraph sets forth a rule which marks an essential difference between the working conditions of internees and those of prisoners of war.
[p.414] Prisoners, with the exception of officers, are liable to compulsory work, whereas the Detaining Power may only give internees work of their own free will (1). That rule is based on the idea of the work of the internees being arranged in their own interest to keep them as far as possible in good physical and mental condition and to provide them with some additional financial resources with which to supplement the arrangements the Detaining Power makes for their maintenance. The preliminary discussions on the Convention, in particular those of the Government Experts of 1947, bring out this intention quite clearly. It was based on experience gained during the Second World War, during which the International Committee's delegates had even, when visiting internee camps, recommended that the internees should be extricated from an idleness which was, in the long run, dangerous to their physical and mental health. When certain internees had shown some scruples about accepting work, for fear of helping the war effort of the Detaining Power
to the detriment of their home country, the International Committee on several occasions negotiated with the two governments concerned to obtain their permission for the internees to carry out by agreement various tasks which had no direct connection with military operations. In Germany, for instance, they were able to take part in a general scheme for paid work, which had been drawn up by the German Government and consisted mainly in carpentry and the manufacture of toys and other articles made of wood (2). In Australia, the United States and Canada internees were mainly engaged on market gardening and forestry work, for which they received some wages.
Having agreed upon the general rule, the Geneva Conference felt that there should be certain reservations to ensure that internees could in no case fail to enjoy the general safeguards under the Convention to which they were entitled as protected persons. It would have been wrong to allow the Detaining Power to take advantage of their desire to do something active and earn some money, in order to make them work, with their apparent consent, under conditions which the Convention prohibited in the case of other protected persons. [p.415] That is the point of the second sentence in the paragraph; it was added to the original draft which merely laid down the rule that work must be voluntary. The provision refers to the Articles of the Convention which deal with interned aliens in the territory of a party to the conflict (Article 40
) and interned persons in occupied territory (Article 51
). In both these cases, the internees can only be put to work -- with their consent -- to the same extent as the inhabitants of the country of detention and under
the same conditions, and only where there is no direct connection between the work and the conduct of military operations.
A further reservation, also added to the Stockholm Draft, aims at prohibiting "in any case" work of a degrading or humiliating character. This reservation may seem unnecessary at first sight, since it is always understood that the work of internees can only be voluntary and it is difficult to imagine an internee voluntarily undertaking a task which he finds degrading or humiliating. During the last war, however, there were so many examples of a decline in morale that there is certainly good reason to protect those detained under all circumstances against a weakening of their own will.
PARAGRAPH 2. -- RIGHT TO GIVE UP WORK
The second paragraph stresses the voluntary nature of the work done by internees. As it is possible that they may have acted in good faith but over-hastily, or that they may have over-estimated their own strength, they have been given the right to change their minds. In order, however, that this new change of mind might not damage the interests of an employer who had acted in all fairness, it was necessary to give him time to find substitutes for workers who did not wish to continue. The draft text prepared by the International Committee of the Red Cross had made provision for a waiting period of three months; this was reduced by the Conference to six weeks, a compromise between the original proposal and the waiting period of three weeks on which certain delegates wished to settle.
PARAGRAPH 3. -- RESERVATION:
WORK DONE ON BEHALF OF THE INTERNEES THEMSELVES
The principle of voluntary work appears to be broken by the third paragraph, which gives a list of certain tasks which the Detaining Power may, if need be, force internees to carry out against their will. In reality the provisions of this paragraph are designed to achieve the same object as those of paragraph 1, namely, to promote the [p.416] well-being of the internees as a whole and to ensure, in the best possible way, their protection against bombing.
The commentary on Article 91
showed that internees must for preference be treated by medical personnel of their own nationality, and Article 88
refers to detained persons taking part in the protection of their quarters. The fact is that nobody could work more zealously on this task than the internees themselves. Such tasks represent work of human fellowship which they are bound to carry out on behalf of their companions. If they sought to avoid it they would be failing in an elementary duty and it would be right to force them to do it.
A similar line of argument led to the inclusion of administrative work and domestic tasks (work in the kitchen, cleaning and camp maintenance) among the duties which internees may be forced to carry out. It was thought that this reduction to a minimum of the daily contacts between internees and representatives of the Detaining Power would help to make their internment less hard to bear. It must never be forgotten that internees are still civilians, and only suspects -- not criminals or ex-belligerents. In their case less strict supervision can be tolerated than in the case of prisoners of war; it is in the interests of the internees that they should have the benefit of any easing of their conditions which may be possible, and for the sake of this general interest the possible resistance of a single individual cannot be tolerated.
Provision is made for only one exception, i.e. where the internee is physically unsuited to the task; but he must be declared unsuited by a doctor. The text of the Article says "by a medical officer". The proceedings of the Conference give no indication as to whether this term can be understood to mean a doctor on the medical staff of the Detaining Power. That would certainly be the meaning if there were no doctor among the internees; but if there is one, he would probably form part of the medical staff of the camp and in accordance with Article 91
, it would preferably be he who would be responsible.
PARAGRAPH 4. -- RESPONSIBILITY OF THE DETAINING POWER
Paragraph 4 is intended to define the responsibility of the Detaining Power for internees who work.
The Detaining Power's responsibility is general; it covers "all" working conditions, medical attention, compensation for occupational accidents and diseases, and the payment of wages, irrespective of the type of work undertaken by the internee.
All this follows from the fact that although the internee is working so that he can earn something for himself, in accordance with the rule [p.417] laid down in Paragraph 1, he is also serving the interests of the Detaining Power, whether he is working for that Power or for an outside employer, for the employer's activities will form part of the general war economy. If an internee were only to work, for the sake of his health, on gardening within the camp, he would be considered as working for the Detaining Power, all the more so if he were employed permanently on camp maintenance. It is therefore both simple and perfectly legitimate for the Detaining Power to assume responsibility in all cases for the working conditions of the internees. The Convention has laid down as a criterion of whether the Detaining Power is faithfully carrying out its obligations that the working conditions of the internees should not be inferior to those obtaining in the district for work of the same nature. There was, however, one point of difficulty of which the Diplomatic Conference was
fully conscious namely the question of wages. Should it be laid down that internees were to be paid exactly the same as local workmen? "This", wrote the Rapporteurs of Committee III, "might lead to fantastic results, the internee being, unlike the ordinary worker in the district, a person who has been divested of all normal financial responsibilities" (3). The authors of the Convention were therefore content to make provision for "fair" wages. Whether the work is done for the Detaining Power (including camp maintenance work) or for an outside employer, the wages are to be decided by agreement with the internees, bearing in mind the fact that the latter have no living expenses to defray. If they do not consider the remuneration given them to be fair, they are entitled to appeal to the Protecting Power, as laid down in Article 101
Notes: (1) [(1) p.414] Since internment is not a punishment it cannot
entail forced labour. A spokesman for the International
Committee of the Red Cross at the Diplomatic Conference
pointed out that the intention of the authors of the
Stockholm Draft, in proposing the adoption of that rule,
had been to remove any temptation from the Detaining Power
to increase the numbers of interned persons in the
interests of its own economy. See ' Final Record ', Vol.
II-A, p. 680;
(2) [(2) p.414] Reference here is only to civilian internees
in the strict sense of the term, and not to the inmates of
concentration camps who enjoyed no protection whatsoever.
See ' Report of the International Committee of the Red
Cross on its activities during the Second World War ',
Vol. I, p. 591;
(3) [(1) p.417] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 839;