Treaties, States Parties and Commentaries
Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- PROPERTY OF PRISONERS
[p.165] This Article reaffirms and strengthens a principle of the law of nations: the right to booty is limited to property of the enemy State (to the exclusion of all personal belongings of a prisoner of war).
This principle was recognized only with some difficulty (1). For humanitarian reasons, the 1929 Convention extended the concept of a prisoner's personal belongings to cover, with certain specified exceptions, articles which are in fact the property of the State but are in personal use by the prisoner. The first paragraph of the present Article confirms this extension (2).
[p.166] The right of the captor State to take booty must not be confused with its right to impound certain belongings of prisoners of war for reasons of security. If the latter right is exercised, a receipt must be given and the articles concerned must be returned to their owners at the end of hostilities.
During the Second World War, there seem to have been frequent violations of the provisions of the 1929 Convention in regard to the right to take booty, or at least those provisions seem to have been interpreted in a more or less liberal manner according to circumstances (3). That is why they have been drafted more explicitly in the new Article.
PARAGRAPH 1. -- ARTICLES OF PERSONAL USE OF PRISONERS OF WAR
This paragraph states a rule, with certain exceptions to that rule.
Articles of personal use, articles used for the clothing or feeding of prisoners of war, and certain articles issued for personal protection, including metal helmets and gas masks, must remain in their possession. These articles may not be confiscated, regardless whether they are the personal property of prisoners or whether they form part of their regulation military equipment.
On the other hand, arms, horses, military equipment other than that issued for personal protection, and military documents are subject to confiscation, regardless whether or not they are the personal property of the prisoner (4).
[p.167] The numerous abuses of the right to take booty which occurred during the Second World War were mainly due to the fact that confiscation did not always take place with all desirable safeguards, i.e. in the presence of responsible officers with all the necessary instructions. Reference should be made here to the first paragraph of Article 12
, which states that prisoners of war "are in the hands of the enemy Power, but not of the individuals or military units who have captured them". The right to booty is a right of the State, not of the individual. The Detaining power is therefore under an obligation to regulate the exercise of that right in accordance with the Conventions in force.
PARAGRAPH 2. -- IDENTITY DOCUMENTS
This provision, which is new, was introduced in the light of certain regrettable occurrences during the Second World War, when paybooks or army-books were sometimes taken away from prisoners on the grounds that they constituted "military papers" and were therefore [p.168] liable to confiscation under Article 6, paragraph 1
, of the 1929 Convention. In fact, they were only identity tokens in the sense of paragraph 3 of the same Article
, and as such could not be impounded. This measure often placed prisoners of war in an awkward situation when they were deprived of their sole identity document and could no longer produce evidence of their rank (5). Moreover, in case of attempted escape, they ran the risk of being treated as spies. It is obvious, however, that no Detaining power would undertake not to seize the individual service records of combatants immediately following capture, since valuable information might be contained therein. The Convention does not, therefore, restrict the right of the Detaining Power to seize military documents; in this
respect it departs from the 1929 text but also stipulates that at no time should prisoners of war be without identity documents. As we have already seen in connection with Article 17
, the Detaining power must therefore supply an identity document in place of any individual service record which it impounds.
PARAGRAPH 3. -- BADGES, DECORATIONS AND ARTICLES HAVING
ABOVE ALL A PERSONAL OR SENTIMENTAL VALUE
Whatever the rank and nationality of a prisoner of war, the wearing of badges and decorations is a matter of dignity which is within the general question of respect for the persons and honour of prisoners. Article 40
provides expressly that prisoners of war shall be permitted to wear badges and decorations, and they may not be deprived of this right in any circumstances, not even as a penal or disciplinary sanction (Article 87, paragraph 4
). It was therefore logical to forbid the Detaining Power to take away such badges and decorations. Article 6, paragraph 3
, of the 1929 Convention contained a similar provision, but it was not always respected during the Second World War (6). The reference is, of course, only to regular badges and decorations; it does not extend to any which are not authorized by the military authorities to whom the prisoners concerned are responsible.
Considerable discussion took place at the Conference of Government Experts regarding the impounding of valuables. Several delegations pointed out that during the Second World War many prisoners of war had succeeded in escaping, thanks to articles of value which [p.169] they had been allowed to keep (7). The present text is therefore more restrictive than the 1929 provision and refers only to articles having above all a personal or sentimental value, such as rings, wedding rings or other family tokens whose commercial value is often negligible.
PARAGRAPH 4. -- IMPOUNDING OF SUMS OF MONEY
Sums of money which are the personal property of prisoners of war may not be considered as booty. For reasons of security, however, and also in order to preclude any attempt at bribery, the Detaining power must be able to withdraw such monies (except those amounts needed for the minor purchases permitted during captivity).
Such impounding must be accompanied by certain safeguards, and the present provision reaffirms and strengthens Article 6, paragraph 2
, of the 1929 Convention. Sums of money carried by prisoners of war may be taken away only by order of an officer, and, in principle, immediately following capture. It is not expressly stated, however, that the officer must be present. He may instruct a qualified clerk to carry out the operation, but he remains responsible. This provision is intended to safeguard the proper conduct of the operation which must not only not amount to pillage, but must be carried out in an orderly manner. The money may not be impounded until the relevant details have been recorded in a special register. This register is not the one referred to in the second sentence of the same paragraph; the latter records the total credit due to each prisoner, including advances of pay and working pay, pursuant to Article 64
. The register referred to here contains only a record of sums of money and valuables impounded at the time of capture.
In addition to recording particulars in the register, the Convention requires the Detaining power to issue an itemized receipt. The form and content of the receipt will be determined by the Detaining Power concerned, but it should contain at least the following information: place and date of issue of the receipt, exact amount impounded (in figures and in letters), expressed in terms of the currency actually handed over, exact designation of the person to whom the receipt is issued, i.e. at least the surname, first names, rank, nationality (or an equivalent indication, such as the armed forces of which he is a member), year of birth, and army, regimental, personal or serial number. One very important requirement is that the receipt must be legibly inscribed with the name, rank and unit of the person issuing the [p.170] receipt. Since the operation may be carried out only by order of an officer, he is responsible, in accordance with the regulations of the Detaining power, for designating the person who will sign such receipts. As a rule, this
signature must be at least that of a quartermaster sergeant or other non-commissioned officer qualified in accountancy.
Special reference is made to sums in the currency of the Detaining Power, or which are changed into that currency at the prisoner's request. Such sums must be placed to the credit of the prisoner,s account as provided in Articles 64
, so that they may be made available to him in accordance with the provisions of Part III, Section IV.
PARAGRAPH 5. -- IMPOUNDING OF VALUABLES
As we have already seen in considering paragraph 3, it is forbidden to take away from prisoners of war articles of personal or sentimental value. Although the present provision authorizes the Detaining Power to withdraw other articles of value, the text is restrictive and permits such withdrawal only where the security of the Detaining Power so requires.
Articles of value which prisoners might have would consist mainly of jewels, with which they might try to bribe their guards.
The procedure for withdrawal is the same as in the case of sums of money. But although it is simple to specify in a receipt the exact amount of a sum of money, valuation of articles is a different matter. In recording jewellery, therefore, precise indications must be given as to weight, composition, content, etc., so that in case of loss an equitable assessment can be made for compensation purposes.
PARAGRAPH 6. -- RETURN OF VALUABLES
The receipt given upon the impounding of valuables and the record contained in the special register, pursuant to paragraph 4, constitute the necessary documentary evidence for the return of such articles.
The Detaining power is responsible for articles of value as well as for sums of money which have not been changed into local currency. But if such articles and monies are not returned at the end of captivity, the prisoner of war cannot make a claim against the former Detaining [p.171] Power. It was therefore suggested at the Conference of Government Experts that such compensation should be incumbent rather upon the Power of Origin of the prisoner concerned (8), and that it would then be for the power of Origin to arrange for a general solution of the question with the Detaining Power, within the context of the peace treaty. This solution would certainly be more advantageous for the prisoner of war, since financial compensation for an article of value calls for an expert appraisal which must be made objectively.
* (1) [(1) p.165] It was finally recognized by the ' Lieber
Laws ' (Article 72), the ' Brussels Declaration ' (Article
23, para. 5), the ' Oxford Manual ' (Article 64) and the
' Hague Regulations ' (Article 4, para. 3);
(2) [(2) p.165] See SCHEIDL, op. cit., pp. 301-303. In this
author's opinion, the attitude of the Detaining Power
should be determined merely by the question of interest:
the captor State should exercise the right to booty only
if it would be more to its advantage to confiscate
articles than it would be to the advantage of the Prisoner
to leave those same articles in his possession;
(3) [(1) p.166] See BRETONNI RE, op. cit., pp. 71-74;
(4) [(2) p.166] As an indication, these provisions may be
summarized as follows:
A. ' Articles not subject to the right to take booty '
1. ' All articles of clothing ': underwear, all
garments and parts thereof, including boots,
leggings, belts, gloves, coats and raincoats of
all kinds. Pullovers have sometimes been
confiscated, the reason given being that they
would make escape easier, but this is a flagrant
violation of the present provision. Bags and
canteens used for storing such clothing and
articles are also exempt from confiscation (see
' Report on the Work of the Conference of
Government Experts, ' pp. 124-125).
2. ' Other personal effects ': toilet requisites
(except open-blade razors, which were
confiscated by some Detaining Powers during the
Second World War, on the grounds that they could
be used as weapons), watches, wallets and
notecases (subject to the provisions of
paragraph 4), keys, prayerbooks, writing-paper,
pencils, pens, pocket torches, spectacles, etc.
For reasons of security, however, cameras may be
3. ' Articles used for personal protection ': the
Convention makes specific mention of metal
helmets and gas masks. To these should be added
special clothing, tent canvas, field-dressing
kits, and life-belts if they may still be of
use; if that is not the case, these articles may
4. ' Articles used for feeding ': Pocket knives,
eating utensils, mess-tins, water-bottles, oil
and solid alcohol stoves and, obviously,
foodstuffs and their containers.
B. ' Articles subject to the right to take booty '
1. ' Arms ': arms of any kind, and of course
ammunition and accessory equipment for such
2. ' Horses ': horses are still specifically
mentioned, although the rôle of cavalry has
greatly diminished in present-day armed forces.
Other individual means of transport should also
be considered as liable to confiscation: skis,
bicycles, motor bicycles, etc.
3. ' Military equipment ': this gives rise to most
difficulty, since may of the articles mentioned
under A above are in fact part of military
equipment. In any case, this category includes
all articles solely for military use, such as
optical or precision instruments, portable radio
sets, component parts of weapons, pioneer tools,
4. ' Military documents ': the term "papers" which
was used in the 1929 Convention has been
replaced here by "documents", in order to
emphasize that this refers not to identity
papers, for which special provision is made in
paragraph 2, but to other documents such as
maps, regulations, written orders, plans,
individual military records, etc;
(5) [(1) p.168] See ' Report on the Work of the Conference of
Government Experts ', pp. 126-127;
(6) [(2) p.168] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War, ' Vol. I, p. 370 in fine;
(7) [(1) p.169] See ' Report on the Work of the Conference of
Government Experts, ' p. 126;
(8) [(1) p.171] See ' Report on the Work of the Conference of
Government Experts, ' p. 126;