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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- AUTHORIZED WORK
[p.264] HISTORICAL AND GENERAL
In accordance with Article 6
of the Hague Regulations, the Detaining Power was allowed to utilize the labour of prisoners of war, provided the tasks were not excessive and had "no connection with the operations of the war".
Had the provision been maintained in that form, it would virtually have amounted to prohibiting the employment of prisoners of war. For with the development of modern warfare, there are only very few activities which do not directly or indirectly affect the war effort of the belligerents. The corresponding provision in the 1929 Convention (Article 31, paragraph 1
) was already more explicit (1).
How is one to interpret a provision such as this? What constitutes direct connection with the operations of the war? When is it indirect? What does the term "combatant units" cover? Does it refer only to units engaged in the fighting, or does it also include those which for the time being are not taking part in the fighting, while remaining in the front-line area? To these many questions, commentators have given as many different answers. In the first place, one needs to know the attitude of the contracting parties. Is the intention to protect prisoners from the dangers of war, or to safeguard their military honour by not requiring them to contribute in any way to the campaign waged against their fellow-countrymen (2)?
For one must be under no illusion: whatever the services rendered to the Detaining Power by prisoners of war who work, their labour contributes to the economic resources of the nation. Leaving aside questions of security, it matters little whether it is the prisoner of war who works on the land while the farm worker transports munitions, or vice versa. According to their own conception of the principle on which this rule is founded, various authors have given different opinions concerning the interpretation of the 1929 text, and during the Second World War the belligerents themselves took very different views (3).
[p.265] The text approved by the Conference of Government Experts (4) was an attempt to solve the considerable difficulties which arose during the Second World War from the application of Article 31
of the 1929 Convention, as the belligerents could never agree on the scope of that provision. It was difficult to find a solution, since most work can be considered as a contribution to the national war effort. There were, however, two possible methods: either to include a more explicit enumeration of prohibited work or, on the contrary, to list those occupations which alone would be permitted (5).
The International Committee of the Red Cross finally favoured the second method, and submitted to the Stockholm Conference a text similar to that of the present Article 50. Like any other system which might be found to regulate labour of prisoners of war, this one obviously presented certain disadvantages, particularly because any enumeration necessarily involves an arbitrary element. The Stockholm Conference therefore rejected the proposal in favour of a fresh draft (6), which the 1949 Diplomatic Conference considered even less satisfactory. Despite objections, the latter Conference finally adopted the text which had been submitted at Stockholm (7).
[p.266] PARAGRAPH 1. -- CLASSES OF WORK AUTHORIZED
1. ' Work in the camps '
Before listing the various classes of work authorized, this paragraph mentions work "connected with camp administration, installation or maintenance", implying a general authorization for such work.
In actual fact, all work of this kind falls more or less into the classes listed in sub-paragraphs (a) to (f) of the present paragraph. It must be emphasized that work in the camps is done by prisoners of war in their own interest, while other work is done in the interest of the Detaining Power; no basic problem arises in the case of the former, but the latter raises the thorny question of participation by prisoners of war in the war effort of the Power in whose hands they are.
2. ' Other work '
The authors of the new Convention tried to overcome some of the difficulties which had occurred during the Second World War by drawing up a list of types of work authorized to the exclusion of all others. It would, however, be vain to believe that the essence of the problem has changed. The core of the question is still the distinction to be made between activities considered as being connected with war operations and those which are not. In order wherever possible to prevent divergent interpretations, however, an interpretation of the principle stated in Article 31
of the 1929 Convention was adopted. The new feature of the 1949 Convention is that it enumerates those activities which are not to be considered as being connected with war operations. It is not given in definitive form, however, and the various types of work authorized are divided into three groups:
A. ' Work authorized without restriction. ' -- Prisoners of war may be required in any circumstances and without restriction to do work relating to agriculture, commercial business, arts and crafts (8), and domestic service. Regardless whether the agricultural produce resulting from their labour is intended for soldiers in the front line or for the civilian population of the country, prisoners of war are [p.267] obliged to do this work if instructed to do so. It is of little consequence whether prisoners of war are assigned to domestic service in an hotel or in an officers' mess, provided that the security regulations (Article 23
) are not infringed. Any possible connection between the work done and the operations of the war is therefore not a relevant factor in the case of work listed under sub-paragraphs (a) (d), and (e).
B. ' Work which is authorized provided it has no military character or purpose. ' -- This refers to industries other than the metallurgical, machinery and chemical industries, and to public works and building operations, transport and handling of stores, and public utility services (sub-paragraphs (b), (c) and (f)). It will be noted that while the scope of the new Convention is broader as regards the first group, here it is more restrictive. The prohibition in the 1929 Convention referred only to work directly connected with the operations of the war, and although such a provision is difficult to interpret, the present text seems more strict (9). The distinction made by Scheidl, on the basis of the 1929 text, between activities connected with offensive operations and those related to defensive operations is therefore no longer pertinent (10).
What is the connotation of "military character or purpose" and what is the difference between these two concepts?
As we have already seen, a belligerent State engaged in total war directs all its efforts towards the war. The life of a State nevertheless falls into two distinct spheres of activity -- the civil and the military; in our view, the concept of "military character" should be taken in this sense, i.e. the contrary of "civil character". Everything which is commanded and regulated by the military authority is of a military character, in contrast to what is commanded and regulated by the civil authorities.
The second concept, that of "military purpose" is more difficult to define. In each case, the ultimate purpose of the activity will have to be determined, even if the activity is directed and controlled by the civil authorities or by civil undertakings. Thus, in the case of public works, it would not be permissible for prisoners of war to participate in road-building operations carried out under the direction of a private enterprise if the purpose of such operations were clearly military, as is almost invariably the case in war-time. Prisoners of [p.268] war may be employed on clearance work in a bombed city, since it is necessary for the normal life of the city. This would not be true, however, of a strategically important defile used only by military transport.
"Purpose" may therefore be interpreted in a fairly flexible way. In war-time, anything may have an incidental military purpose, depending on circumstances, and this is not the only consideration. Public utility services -- water, gas, electricity, telegraph, telephone, etc. -- have a truly military purpose only in sectors where they are under military administration, and then they have a "military character". In most of the country, however, they continue to supply the civilian population as well as circumstances permit, even if armed forces and headquarters stationed in the rear also use them on an equal basis or with priority.
Lastly, the same criteria will apply to transport and handling of stores. Prisoners of war may not be required to load trucks or vans, for a private enterprise, with supplies intended for fortification work or for the armed forces. It will not always be easy, however, to determine the ultimate purpose of certain consignments. Prisoners of war may therefore be employed on all work which, in the categories under consideration, normally serves to maintain civilian life, even if the military authorities incidentally benefit by it. The participation of prisoners of war in such work is prohibited, however, whenever it is done for the sole or principal benefit of the military, to the exclusion of civilians. In our opinion, the term "military purpose" must be construed in this relatively broad sense in order to avoid an excessively restrictive interpretation of the letter of the Convention which would ultimately lead only to continual and recurring infringements of the present provision.
C. ' Prohibited work '. -- The Convention expressly forbids the employment of prisoners of war in three types of industry -- metallurgical, machinery and chemical. This prohibition is stated less clearly in the French text than in the English (11), but it must be considered as absolute, for in the event of a general war, these industries will always be turned over to armaments production. The best means of ensuring that prisoners of war would not be called upon to participate in war production was therefore to forbid their employment in these industries. The prohibition is also justified by the fact that these industries, which are vital for national defence, are among the [p.269] key objectives of enemy air operations, as was amply proved during the Second World War; it has already been seen in considering Article 23
that for reasons of safety, prisoners should not be assembled in the neighbourhood of key military objectives.
PARAGRAPH 2. -- RIGHT OF COMPLAINT
Article 78, paragraph 2
, establishes the right of prisoners of war to make complaints on any matter regarding conditions of captivity. In principle there was therefore no need to include a second reference in the present paragraph. The drafters of the new Convention considered, however, that because of its importance, it was advisable to maintain this clause, which had been included in the 1929 Convention (Article 31, paragraph 2
). Reference should therefore be made to the commentary on Article 78
* (1) [(1) p.264] "Work done by prisoners of war shall have no
direct connection with the operations of the war. In
particular, it is forbidden to employ prisoners in the
manufacture or transport of arms or munitions of any kind,
or on the transport of material destined for combatant
(2) [(2) p.264] See BRETONNI RE: op. cit., pp. 196-201;
SCHEIDL: op. cit., pp. 378-384;
(3) [(3) p.264] See BRETONNI RE: op. cit., pp. 201-206; see
also ' Report of the International Committee of the Red
Cross on its activities during the Second World War, '
Vol. I, pp. 332-335, and ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 272;
(4) [(1) p.265] See ' Report on the Work of the Conference of
Government Experts, ' pp. 177-178. This text read as
"With the exception of work connected with the
removal of mines, bombs or similar devices laid by
themselves or by other members of their armed forces,
prisoners of war shall not be employed on work directly
connected either with active military operations or with
war production of an exclusively military character. They
may not be employed, in particular, in the manufacturing,
handling or transport of munitions, gas, explosives or any
other offensive substance; nor may they be employed in the
construction, handling or transport of any weapon of war,
or of equipment or material of an exclusively military
character. They shall not be employed to deliver any
material to combatant units, or to depôts from which such
material is issued direct to such units, nor may they work
in such depôts. They shall not be employed to construct or
repair fortifications, installations or earth-works which
may be used for the conduct of active military operations.
In the event of any violation of the above
provisions, prisoners of war are entitled to exercise
their right of complaint in accordance with Article 42.";
(5) [(2) p.265] See ' Report on the Work of the Conference of
Government Experts, ' pp. 178-179;
(6) [(3) p.265] "In addition to labour performed in connection
with camp administration, installation or maintenance,
prisoners of war may only be required to do work which is
normally required for the feeding, sheltering, clothing,
transportation and health of human beings, but may not be
employed in work which is otherwise of value in assisting
the conduct of active military operations." For other
texts proposed, see ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. III, pp. 70-71;
(7) [(4) p.265] See ' Diplomatic Conference for the
Establishment of International Conventions for the
Protection of War Victims, ' Working Document No. 3, pp.
22-23. For the discussion, see ' Final Record of the
Diplomatic Conference of Geneva of 1949, ' Vol. II-A, pp.
342-344. See also ' Remarks and Proposals, ' pp. 51-53;
(8) [(1) p.266] Although "crafts" are mentioned in the English
text, the French text refers only to "activités
commerciales ou artistiques";
(9) [(1) p.267] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 342-343;
(10) [(2) p.267] See SCHEIDL: op. cit., p. 383;
(11) [(1) p.268] In the English text, the semi-colon between
"chemical industries" and "public works" makes the scope
of the prohibition perfectly clear;