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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- WINDING UP OF ACCOUNTS
of the 1929 Convention gave released prisoners of war the right to obtain restitution of property taken from them at the time of capture, and the payment of the credit balances of their accounts accumulated during captivity, particularly as a result of the retention of part of their pay or wages.
[p.327] At the end of the Second World War, the laws and regulations enacted by most States in respect of export and import of foreign currency made it very difficult to comply with these obligations.
Furthermore, the States concerned could settle such matters by special agreements as provided in Article 83
of the Convention; most of the powers concerned resorted to this procedure after the end of the Second world war, as it was often impossible to comply with the rules of the Convention. In some cases, the necessary vouchers either had not been issued, did not correspond to the sums claimed, or had been lost (1). Other prisoners, whose country had been occupied and the Government overthrown during the hostilities, were unable to obtain their credit balances because there was no possibility of reimbursement to the Detaining power by the power on which they depended. Yet the 1929 Convention, in Article 24, paragraph 2
, and Article 34, paragraph 5
, established the right of prisoners of war to receive their credit balances upon the termination of captivity. After lengthy discussion, the 1949 Diplomatic Conference therefore substituted a new rule for the 1929 provision, which made the Detaining Power responsible for paying the
credit balance due to prisoners of war (2).
PARAGRAPH 1. -- PROCEDURE
1. ' First sentence. -- Issue of a statement to the prisoner of war '
Instead of receiving a cash payment, prisoners of war are to be given a credit voucher.
The Convention does not specify what form this voucher should take and merely states that it must be signed by an "authorized" officer, that is to say an officer belonging to the administration of the camp in which the prisoner concerned was interned. This "authority" must be attested by an official seal or stamp confirming the officer's status, so that in case of dispute the necessary verifications may be made.
The reason for issuing a credit voucher is obvious: it is in order to enable prisoners of war to prove, to an authority other than the former Detaining Power, their entitlement after repatriation. The [p.328] sums due to prisoners of war may be from a number of sources, although they are all deposited with the Detaining Power. The Power "on which the prisoner of war depends" is responsible for paying him the total amount of his credit balance; this phrase, which appears in the second sentence, may give rise to certain difficulties of interpretation.
It is important to establish the nature of the various amounts which may be credited to prisoners' accounts. In particular, one should make a distinction between amounts due by the Detaining Power and sums due by the Power in whose armed forces the prisoner of war has fought.
A. ' Amounts due by the Detaining Power. -- ' In the first place, such amounts consist of working pay, together with sums in the currency of the Detaining Power which were withdrawn from prisoners of war at the time of capture, sums subsequently converted into that currency at the prisoner's request, and sums transferred to prisoners in accordance with Article 63
but which were not handed to them because of the limitations specified in Article 58
, or which have been neither spent nor transferred. This heading also includes any supplementary pay which may have been sent by the Power on which prisoners depend and which has not been paid to them in cash (3).
B. ' Amounts due by the Power on which prisoners of war depend '. -- The amounts due by the Power on which the prisoners of war depend consist of any advances of pay which have not actually been received by the prisoners concerned.
The settlement of credit balances therefore concerns both Powers and at the 1949 Diplomatic Conference it was proposed that they should be held jointly responsible for equitable payment (4). Article 66, as finally adopted, specifies, however, that the entire credit balance shall be paid to prisoners of war by the Power on which they depend (5).
[p.329] An important question now arises for the prisoner on whom the Convention imposes this procedure. What guarantee has he that the credit balance due to him will in fact be paid? There will be no problem for prisoners of a given nationality, since the established appeals procedures are open to them; the Second World War showed, however, that as a result of political upheavals, there may be a very large number of stateless persons among prisoners or former prisoners of war. They are deprived of any chance of appealing, and the procedure established by the Convention in the present Article in effect leads to an unjust situation, particularly as regards amounts due by the former Detaining Power, since it leaves in the possession of the latter Power, and in a completely illegal way, sums of money belonging to prisoners of war (6).
It would therefore be helpful if, in the absence of a Protecting Power, since stateless persons are involved, the International Committee of the Red Cross were to use its good offices in order to ensure that prisoners of war recover what is due to them from the former Detaining Power. The Convention does not make provision for an intervention of this kind, but it is fully consistent with the intention clearly demonstrated by the authors of the Convention, that prisoners should not suffer injustice but that, on the contrary, their property should be safeguarded.
The question of advances of pay is slightly different, since these sums are owed not by the former Detaining Power but by the Power in whose service the former prisoners of war fought. This matter will be referred to in connection with Article 67
2. ' Second sentence. -- Lists '
This provision should be read in conjunction with Article 122, paragraph 3
, which states that similar information must be given to the Information Bureau of the Detaining Power for forwarding to the Powers concerned through the intermediary of the Protecting Powers, and likewise of the Central Agency. The only difference is that the present provision states that the lists must indicate the amount of the credit balances of prisoners of war, while Article 122
does not contain that requirement. Because these two provisions are closely linked, in case of release, repatriation, escape or death the notification to be made [p.330] pursuant to Article 122
should always include a statement of the credit balances of the prisoners concerned.
3. ' Third sentence. -- Certification '
This provision, requiring certification of the lists "by an authorized representative of the Detaining Power" should be compared with the first sentence of the paragraph, which stipulates that the statement given to a prisoner of war must be signed by an authorized officer (7). The reason for this emphasis is that the signing officer must have the ' authority ' to give an undertaking on behalf of his country. It is a matter of administrative competence.
The amounts recorded on the lists and on the individual statements must naturally correspond. In principle, they should be drawn up simultaneously and bear the same signature.
PARAGRAPH 2. -- RESERVATION: SPECIAL AGREEMENTS
For practical reasons, the Powers concerned may be obliged to resort to procedures other than those specified in paragraph 1. The Detaining Power may not always be able to issue a statement to each prisoner of war at the end of captivity. These are merely implementing procedures, however, and the present provision does not permit the Detaining Power to deviate from the spirit of the rule by means of a special agreement, that is to say to deprive a prisoner of war of his right to reimbursement. The present exception refers only to paragraph 1 and not to paragraph 3 which, although placed at the end of the Article, sets forth its main principle, and that principle is sacrosanct (8).
PARAGRAPH 3. -- RESPONSIBILITY
The scope of this principle has already been mentioned in connection with the preceding paragraphs, and requires no further comment.
One problem which arises in relation to this system of settlement is that of the rate of exchange. The amounts entered to the credit of [p.331] a prisoner of war are expressed in terms of the Detaining Power's currency, and must be recorded thus in the individual statement given to the prisoner as well as in the lists transmitted to the Power concerned. It is obvious that the rate of exchange must be fair, so that prisoners are not the losers in a transaction of currency conversion.
* (1) [(1) p.327] For further details, see ' Report of the
International Committee of the Red Cross on its activities
during the Second World War, ' Vol. I, pp. 291-293;
(2) [(2) p.327] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 568; see
also ' Report on the Work of the Conference of Government
Experts, ' pp. 162-163;
(3) [(1) p.328] The account does not include sums of money in
a currency other than that of the Detaining Power or
articles of value which, pursuant to Article 18, were
withdrawn against a receipt and must be returned in their
initial shape to the prisoners of war at the end of their
(4) [(2) p.328] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 568;
(5) [(3) p.328] The novel feature of this procedure is that
the credit voucher issued by the debtor (the Detaining
Power) entitles the prisoner of war to recover the amount
due from a third party (the Power on which the prisoner of
war depends). In certain domestic legislation, this system
is known as "porte-fort" and the payee may claim damages
if the third party fails to fulfil the obligation. (In the
case of Switzerland, see ' Code des Obligations, ' Article
(6) [(1) p.329] The expression "Power on which a prisoner of
war depends" gave rise to some difficulty and discussion
at the 1949 Diplomatic Conference. See ' Final Record of
the Diplomatic Conference of Geneva of 1949, ' Vol. II-A,
(7) [(1) p.330] The French text refers to "un officier
' compétent '" in the first sentence, and to "un
représentant ' autorisé '" in the third sentence;
(8) [(2) p.330] In this connection, it is appropriate to refer
to Article 7, which forbids prisoners of war to renounce
in part or in entirety the rights secured to them by the