Treaties, States Parties and Commentaries
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Commentary of 1958 

The first two paragraphs of this text reproduce word for word the draft Article submitted by the International Committee of the Red Cross to the Stockholm Conference, which adopted it without amendment.
The third paragraph was added by the Diplomatic Conference as being a logical consequence of the duty incumbent upon the Detaining Power of providing for the maintenance of the internees.


When persons are interned they are made to live in abnormal conditions, which may have very serious repercussions, irrespective of their financial and other circumstances. The internee is no longer free to go where he wants or occupy his time as he wishes; he cannot go to his normal work or conduct in the ordinary way his business relations if he is engaged in industry or trade, or his relations with his clients if he has a profession. Even if he has an income from investments, it may be blocked as a result of wartime legislation. He thus becomes incapable of paying for what he needs and especially of procuring such medical services as he may require. Now internment is not a punishment and it would therefore be wrong not to alleviate, so far as possible, its unpleasant consequences.
As internment is ordered by the Detaining Power -- and should only be resorted to for imperative reasons of security (Article 42 ) -- it is only fair that the cost of maintenance and medical services should be the responsibility of that Power. Maintenance must be understood to mean the supplying of everything necessary for the life and physical health of the internees. The various services which it is necessary to provide are dealt with in separate Articles; accommodation (Article 85 ), hygiene and medical attention (Article 91 ), [p.378] food (Article 89 ) and clothing (Article 90 ). The special reference to medical attention in paragraph 1, which expresses a general principle, is designed to underline the fact that such attention is indispensable, its absence having sometimes made the conditions in certain cases of internment inhuman.


Deprived of the resources produced by their normal activities, internees sometimes undertake certain work or their own free will. They may also have to undertake certain tasks prescribed by the Detaining Power: compulsory work carried out by the general public under wartime legislation, tasks connected with the administration or maintenance of the places of internment or professional assistance to the other internees. In all these cases, they are entitled to draw a salary, the principle and method of establishing which are the subject of express provisions in the Convention. Article 98, paragraph 2 , also lays down that internees "may receive allowances from the Power to which they owe allegiance, the Protecting Powers, and the organization which may assist them or their families". Lastly, since they retain full civil capacity, the internees remain entitled to receive money owing to them. It might be thought that certain sums might be deducted from the internee's allowance, salary, or receipts, to meet the cost of his maintenance. The
authors of the Convention, at the suggestion of the International Committee of the Red Cross, decided otherwise. They considered that these resources (in any case uncertain) should be wholly devoted to improving living conditions which were already fairly hard to bear compared with the internee's former position.
Article 15 of the Third Geneva Convention, which deals with the maintenance of prisoners of war, contains only one paragraph, whose wording is similar to paragraph 1 of Article 81. It states that the Detaining Power is bound to provide for the maintenance and medical care of prisoners, but it does not afford the additional safeguards which civilians enjoy under paragraphs 2 and 3 of Article 81.
In the case of paragraph 2, there are other provisions, in particular those concerning pay for prisoners' work, which to a certain degree limit the freedom of action of the Detaining Power, but there is nothing in the Third Convention which corresponds to paragraph 3, which relates to the maintenance of dependants.
This difference is due to the fact that a prisoner of war is a soldier in the service of a State and the duty of maintaining his family, [p.379] should it be necessary, may be regarded as incumbent on that State. Its legislation is designed to deal with that necessity. The situation of a civilian internee is not the same and the gap must therefore be filled by laying an obligation on the Power which ordered and benefits by the internment.


Whereas members of the families of prisoners of war usually reside in their country of origin and may, if necessary, be assisted by the public authorities of that country, the same is not true of internees' dependants. They usually live in normal times in the actual territory of the country of internment. It is therefore the public authorities or occupation authorities in that country which should be responsible for providing for the maintenance (and, by analogy, although the Article does not say so explicitly, for medical care) of people who are dependent on internees. The reasons are the same as they were in the case of the internees themselves. The obligation is only assumed, however, in cases where the beneficiaries are in poor circumstances or unable to earn their living.