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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
[p.334] ARTICLE 68
. -- CLAIMS FOR COMPENSATION
The introduction to this Article was proposed in an amendment submitted by the United Kingdom Delegation to the 1949 Diplomatic Conference (1).
The Article is actually related to certain other provisions of the Convention. The first paragraph concerns compensation for occupational accidents (which are covered by Article 54
), and the second relates to compensation in respect of personal property impounded at the time of capture (Article 18, paragraphs 5 and 6
) and not restored at the close of hostilities.
PARAGRAPH 1. -- COMPENSATION FOR ACCIDENTS AT WORK
As already pointed out in connection with Article 54
, the new Convention completely changed the 1929 procedure regarding compensation for occupational accidents. With the idea that, in the event [p.335] of disability resulting from an accident at work, prisoners of war should be safeguarded indefinitely and not merely for the period of captivity, the new Convention states that compensation is to be paid by the Power on which prisoners of war depend, on the basis of a certificate issued to the victim by the Detaining Power.
1. ' First sentence. -- Referral of claims '
It is stated that any claim by a prisoner of war for compensation in respect of an accident at work must be referred to the Power on which he depends through the Protecting Power. It might have been preferable to use the following wording: "Any application for compensation... in respect of disability resulting from an accident or illness sustained or contracted in consequence of work...". Be this as it may, the provision refers to the handling of claims submitted by prisoners of war because of disability. Any such claim may be addressed directly to the Protecting Power, whether or not through the intermediary of the prisoners' representative. If it is submitted in the first instance to the Detaining Power, the latter is obliged to forward it to the Protecting Power.
2. ' Second sentence. -- Contents of the certificate '
Article 54, paragraph 2
, requires the Detaining Power to deliver a certificate to any prisoner of war who suffers an occupational accident, but does not specify the form in which it should be drawn up. It is merely stated that it must be a "medical" certificate enabling prisoners of war to "submit their claims".
In the commentary on Article 54, paragraph 2
, an extract has been included from Recommendation No. 97 of the International Labour Organisation, which lists certain data to be included in notifications of occupational diseases (2). In the present text, the Convention refers only to three items:
(a) the nature of the injury or disability;
(b) the circumstances in which it arose;
(c) particulars of medical or hospital treatment given for it.
This list is not exhaustive but constitutes a minimum requirement.
[p.336] This information may be compared with that to be transmitted by the Information Bureau in accordance with Article 122
, which states that information regarding the state of health of sick or wounded prisoners of war, as well as information concerning admissions to hospital and deaths, must be supplied regularly to the Power on which the prisoners depend.
In describing the circumstances in which the accident occurred, the responsible authorities will follow the normal procedure in their country (statement by witnesses, accurate information as to the place, date, time, etc.)
The Convention does not, however, refer specifically to payment of compensation when the accident results not in total or partial disability, but in death. In such a case, the procedure set forth in the Convention is obviously inapplicable, since it states that the person concerned is to be provided with a certificate. This certificate must nevertheless be forwarded to the victim's beneficiaries, that is to say to his family, so that they may submit a claim to the Power on which he depended. The certificate may be transmitted together with the death certificate provided for in Article 120, paragraph 2
. It should be prepared in duplicate and may be forwarded either through the intermediary of the Protecting Power for transmission to the Power on which the prisoner depended, or through the intermediary of the Central Agency provided for in Article 123
, for transmission to the victim's family. If there is only one copy, it should preferably be transmitted through the intermediary of the Central Agency.
3. ' Third sentence. -- Signature of the certificate '
This provision, which states that the certificate must be signed by two persons, requires little comment. The signature of a "responsible officer of the Detaining Power" is required for the description of the circumstances in which the accident occurred. It may be the camp commander or his deputy, or, where applicable, the officer of military justice who conducted the enquiry. The word "responsible" implies that the person signing is authorized to do so on behalf of the Detaining Power. The prisoners' representative should check that all the necessary formalities are carried out to the letter by the Detaining Power.
PARAGRAPH 2. -- OTHER CLAIMS FOR COMPENSATION
This paragraph refers to various personal losses which may be incurred by a prisoner of war during captivity.
[p.337] 1. ' First sentence. -- Referral to the Power on which
prisoners of war depend '
If personal effects or monies impounded under Article 18
are not returned at the end of captivity, the prisoner of war concerned still retains the receipt issued to him which constitutes the necessary basis for a claim for restitution or damages.
In fact, however, at the end of captivity a prisoner of war will have no opportunity to make a claim against the Detaining Power. The Convention therefore makes the Power on which he depends responsible for compensating him. All claims must therefore be referred to the latter Power through the intermediary of the Protecting Power.
This procedure is also applicable in respect of any "loss alleged to be due to the fault of the Detaining Power or any of its servants". Here the problem is more complicated since there is no recognition of indebtedness by the Detaining Power and the mere submission of a complaint is no substitute. The text entitles the prisoner to allege that the Detaining Power is responsible for the loss of the article claimed; in common law, however, the onus of proof of guilt is on the injured party; how can proof be furnished? The penultimate sentence of the present paragraph provides at least a partial answer to this question, as we shall see. This is important, for once the victim has received compensation from the Power on which he depends, arrangements must be made between the two Powers concerned, under Article 67
2. ' Second sentence. -- Personal effects '
In connection with Article 18, paragraph 1
, a list has already been given of articles which may be considered as "personal effects" of a prisoner of war, that is to say effects which may not be considered as booty. The Detaining Power must replace at its expense certain personal effects for whose loss it is responsible if they are required for use by the prisoner during captivity; this obligation results from the provisions concerning clothing (Article 27
). The article replaced becomes the personal property of the prisoner and may not be taken away from him at a later date. If no replacement is made, the procedure stated in the first sentence will apply.
3. ' Third sentence. -- Statement by the Detaining Power '
In the case of personal effects not withdrawn at the time of capture and subsequently lost due to the fault of the Detaining Power, the [p.338] latter must give the prisoner of war concerned a statement showing all available information regarding the reasons why such effects have Hot been restored to him. This constitutes a recognition of indebtedness which will enable the prisoner of war to obtain either restitution or damages at a later stage.
4. ' Fourth sentence. -- Duplicate copy '
As an additional safeguard for the prisoner of war, a copy of the statement must be forwarded to the Power on which he depends through the intermediary of the Central Agency established under Article 123
* (1) [(1) p.334] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 386;
(2) [(1) p.335] See above p. 286, note 1;