Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 15 : Maintenance of prisoners
Text of the provision
The Power detaining prisoners of war shall be bound to provide free of charge for their maintenance and for the medical attention required by their state of health.
Reservations or declarations
None
Contents

A. Introduction
1710  Article 15 obliges the Detaining Power to provide free of charge for the maintenance of prisoners of war and for the medical attention required by their state of health. This obligation represents one of the most important aspects of the protection afforded to prisoners of war under the Third Convention.[1]
1711  This provision forms part of the five introductory articles in Part II of the Third Convention (Articles 12–16), which set down fundamental principles related to the protection of prisoners of war. They serve as a reference for the understanding and application of the more technical provisions in Parts III and IV of the Convention, which provide further detail on conditions of detention, such as the standards for quarters (Article 25), food (Article 26), clothing (Article 28), hygiene and medical attention (Articles 29–32),[2] and recreation, study, sports and games (Article 38).
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B. Historical background
1712  The rule that the Detaining Power has an obligation to provide for the maintenance of prisoners of war emerged during the nineteenth century. The 1863 Lieber Code was the first instrument to include provisions requiring the Detaining Power to feed prisoners and provide them with medical treatment.[3] In the 1874 Brussels Declaration, governments charged themselves with the maintenance of prisoners of war in their power.[4] The 1880 Oxford Manual likewise placed responsibility for the maintenance of prisoners of war on the government into whose hands they had fallen.[5] The provision was then incorporated in the Hague Regulations of 1899 and 1907.[6] The 1929 Geneva Convention on Prisoners of War reiterated the rule, stating that the ‘detaining Power is required to provide for the maintenance of prisoners of war in its charge’.[7]
1713  Although the principle has not been questioned since,[8] in practice the obligation was not always complied with during the Second World War, particularly with regard to clothing and medical attention.[9]
1714  As a result of revisions in the light of the Second World War, Article 15 of the Third Convention differs in two aspects from its 1929 predecessor. First, it contains a specific reference to ‘medical attention’ as being an important aspect of ‘maintenance’. Proposals during the Conference of Government Experts in 1947 to include a more comprehensive definition of the term ‘maintenance’ were rejected, as it was felt that such detail would go against the general nature of the principle stated in the article.[10]
1715  Second, the drafters specified that all maintenance, including medical attention, is to be provided free of charge. This idea was already implicit in the 1929 version of the text, but the ICRC proposed making it clearer, which the 1947 Conference of Government Experts accepted.[11] During the Diplomatic Conference in 1949, many participating governments mentioned that the gratuitous nature of the rule extended to all forms of maintenance, especially to medical attention, and that this should be spelled out in the provision.[12] The Conference adopted Article 15 with only minor linguistic changes to the draft that had been agreed on at the 17th International Conference of the Red Cross in Stockholm in 1948.[13]
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C. Discussion
1. Scope of the obligation
1716  The opening words of Article 15, ‘[t]he Power detaining prisoners of war shall be bound’, make it clear that the obligation is incumbent on the Detaining Power and that it is unconditional.[14] No additional elements need to be fulfilled for the prisoners to benefit from the obligation.[15]
1717  The present article requires the Detaining Power to provide all aspects of maintenance and medical care ‘free of charge’. While this obligation was already implicit in the 1929 text, the government experts meeting in 1947 expressed the wish to stress this aspect by making it explicit.[16] The drafters wished to emphasize that the clause in question applied to both maintenance in general and medical treatment specifically.[17]
1718  In past conflicts, the ICRC has witnessed situations in which prisoners of war were obliged to purchase hygiene materials with their wages, in violation of Article 15, resulting in the worsening of sanitary conditions in the camp.
1719  The obligation to provide for prisoners’ maintenance is in no way diminished if they receive any relief supplies from their country of origin or from humanitarian organizations.[18] In past conflicts, the ICRC regularly observed that the Power on the which the prisoners depended supplied its military personnel in captivity with packages containing toiletries such as soap and toothpaste. While the Third Convention contains provisions regulating prisoners’ right to receive relief shipments,[19] these are not meant to detract from the Detaining Power’s primary obligation. Relief shipments can provide additional comfort, but they do not relieve the Detaining Power of its responsibility for prisoners’ maintenance. This principle is clearly spelled out in Article 72(2).[20] Moreover, maintenance expenses cannot be deducted from prisoners’ working pay or other financial resources.[21]
1720  Even if a Detaining Power experiences economic pressures that make it difficult for it to provide prisoners of war with the required maintenance and medical attention, the obligation remains. The present article acts as a minimum guarantee; it obliges the Detaining Power to meet all the basic needs of the prisoners of war in its hands. Nevertheless, the exact type and standard of maintenance is dependent on the context. The Eritrea-Ethiopia Claims Commission addressed the challenge facing a Detaining Power in balancing its international humanitarian law obligations with economic constraints in its two awards relating to the 1998–2000 Eritrea-Ethiopia conflict, stating that the economic environment and the standard of medical care available in the country have to be taken into account when assessing the treatment afforded to prisoners of war.[22] The Commission noted, however, that scarcity of resources does not excuse a Detaining Power’s failure to ensure the minimum standard of maintenance.[23]
1721  Accordingly, if the Detaining Power finds itself unable to provide for the prisoners of war’s maintenance and medical attention, it must take appropriate measures, which could include requesting or accepting assistance from other States or from an impartial humanitarian organization such as the ICRC; transferring the prisoners to another Power, subject to Article 12; or ultimately releasing and repatriating them.[24] In all other circumstances, it should consider offers to provide assistance in good faith.[25]
1722  Independently of these legal considerations, provided that such action would not threaten the security and safety of the prisoners, the Detaining Power may also decide as a matter of policy to unilaterally release and repatriate them for logistical, economic or humanitarian reasons rather than organize and pay for their maintenance and medical attention.[26]
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2. Maintenance
1723  Maintenance encompasses the supply of what is necessary for the health and welfare of prisoners of war. [27] The scope of the term is based on the rationale that the principal obligation of the Detaining Power is to take all reasonable measures to keep the prisoners alive and in good health,[28] while providing them with the medical attention they require and with medical inspections at least once a month.[29] Maintenance thus extends to various aspects of a prisoner’s life, including the provision of adequate housing and sanitation facilities, food and clothing, hygiene materials, including sanitary pads for female prisoners, as well as the means to pursue intellectual, educational and recreational activities in line with the obligations set down in Article 38.
1724  While the Detaining Power must provide for the maintenance of every prisoner of war, the specific measures to be taken may differ depending on the prisoner’s physical and mental condition, as well as on a wide range of factors, such as their cultural, social and religious background, gender and age.[30]
1725  The type and standard of maintenance that are required in a particular case also depend on the time, place and other circumstances of captivity. A hot and humid climate, for example, might pose a greater risk of certain diseases (e.g. malaria) and must be taken into account when arranging accommodation, health care and medication. Furthermore, the nature and level of needs immediately after a combatant has fallen into the power of the enemy can differ from those that arise once a prisoner has been evacuated from the war zone and transferred to a camp.[31]
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3. Medical attention
1726  Medical attention is one of the most important factors to preserve the health and well-being of prisoners of war, and Article 15 makes it clear that it forms part of the free maintenance that the Detaining Power is required to provide.
1727  While Article 30 goes into greater detail on the organization of medical care in prisoner-of-war camps, Article 15 requires more broadly that the medical attention be given free of charge and be appropriate to the prisoners’ state of health. Article 15 thus mirrors the standard of care owed to wounded, sick and shipwrecked persons under Article 12 of the First and Second Conventions. The notion of ‘medical attention required by their state of health’ emphasizes that the type and extent of medical attention to be provided is dependent on a prisoner’s medical condition. The exact content of this obligation depends on what kind of medical care that can reasonably be expected in the circumstances of each case.[32]
1728  Medical attention entails attending to wounds and injuries incurred on the battlefield and during capture or captivity, including the treatment of fractures, orthopaedic surgery and the supply of medicines. It also encompasses primary health care, including regular examinations of all prisoners of war carried out with their consent, to detect signs of malnutrition or any other factors that might impact prisoners’ health.[33] Regular examinations also aim to ensure timely detection of contagious diseases and thus to prevent their spread within the camp.[34]
1729  Other aspects of ensuring prisoners receive the medical attention they require are the provision of medical treatment to those with a mental health condition or otherwise in need of specialist mental health and psychosocial support services or for those who fall sick during captivity. Where specialized treatment is called for, the Detaining Power is obliged to make referrals to appropriate hospitals, clinics or other external health providers, unless the camp’s own medical services can provide the same standard of treatment.[35] Regarding the standard of medical care that the Detaining Power must provide to prisoners of war, it is generally accepted that it must be at least the same as that provided to the Detaining Power’s own armed forces in similar circumstances.[36]
1730  Depending on, for example, their age, gender, disability and/or background, prisoners will have different medical needs or will face specific barriers, risks or stigma in effectively accessing the medical attention required by their condition, which may make them reluctant to seek or receive medical care.[37] It is therefore important to include these differing perspectives in needs assessments relating to the provision of medical attention in prisoner-of-war camps.
1731  The obligation of the Detaining Power to provide medical care for wounded or sick prisoners of war may conflict with the right of prisoners to refuse certain types of treatment, such as blood transfusions, which are considered essential for health or even survival. The refusal of medical treatment by prisoners of war, after they have been informed of and have understood the medical risks associated with such refusal, raises questions that need to be resolved in accordance with applicable standards of medical ethics.[38]
1732  The situation is different in the case of contagious diseases, where the Detaining Power has to balance the right of the individual to refuse examinations or treatment against the right of the other prisoners to be protected from such diseases.[39] Once a contagious disease is detected, the medical personnel of the Detaining Power are under an obligation to separate and treat the prisoners,[40] even against their will, and to vaccinate others in order to prevent the spread of the disease.
1733  A distinct issue in this regard is the treatment of prisoners of war on a hunger strike. In two declarations on medical ethics, the World Medical Association (WMA) addressed the ethical dilemma and conflict of values arising for physicians when a prisoner decides to refuse nourishment. According to these declarations, respect for the individual’s autonomy requires that a prisoner who refuses nourishment voluntarily and is considered by the physician as capable of forming an unimpaired and rational judgement concerning the consequences of such refusal may not be fed artificially.[41] Despite these internationally established standards, States have taken divergent approaches to hunger-striking prisoners in practice. Some explicitly allow for a person on a hunger strike to be administered enteral feeding under some form of restraint against their will if there is a serious danger to the person’s life or health.[42] Other States defer to the prisoner’s autonomy,[43] or to their prior written instruction relating to medical treatment,[44] even at the cost of the person’s death by starvation. The ICRC’s position on this issue closely corresponds to that expressed by the WMA in the Tokyo and Malta Declarations. In the ICRC’s view, it is essential to respect detainees’ choices and preserve their human dignity. The refusal of a prisoner to accept nourishment or medical treatment to deal with the consequences of the hunger strike must be respected if the prisoner is considered by a doctor as capable of forming an unimpaired and rational judgement concerning the consequences of such voluntary refusal.[45] This view is in line with the provision of Article 11(5) of Additional Protocol I, which similarly allows a prisoner of war to refuse surgery, even if a doctor considers it essential to their survival.
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Select bibliography
Bretonnière, Maurice, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), Paris, 1949.
Dinstein, Yoram, ‘Prisoners of War’, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. III, Elsevier Science B.V., Amsterdam, 1997, pp. 1109–1114.
Lindsey-Curtet, Charlotte, Tercier Holst-Roness, Florence and Anderson, Letitia, Addressing the Needs of Women Affected by Armed Conflict: An ICRC Guidance Document, ICRC, Geneva, 2004.
Neff, Stephen C. ‘Prisoners of War in International Law: The Nineteenth Century’, in Sibylle Scheipers (ed.), Prisoners in War, Oxford University Press, 2010, pp. 57–73.
Sanna, Silvia, ‘International Humanitarian Law and the Treatment of Protected Persons’, in Andrea de Guttry, Harry H.G. Post and Gabriella Venturini (eds), The 1998-2000 War between Eritrea and Ethiopia: An International Legal Perspective, T.M.C. Asser Press, The Hague, 2009, pp. 307–339.
– ‘Treatment of Prisoners of War’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 977–1012, at 985–986.

1 - Dinstein, p. 1111; Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 53, and Prisoners of War, Eritrea’s Claim, Partial Award, 2003, para. 55.
2 - See e.g. Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 2003, para. 116, and Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 105, where the Commission deals with the provisions in Articles 29–32 in conjunction with Article 15.
3 - Lieber Code (1863), Articles 76 and 79.
4 - Brussels Declaration (1874), Article 27.
5 - Oxford Manual (1880), Article 69.
6 - Hague Regulations (1899), Article 7, and Hague Regulations (1907), Article 7.
7 - Geneva Convention on Prisoners of War (1929), Article 4.
8 - Report of the Conference of Government Experts of 1947, p. 120: ‘The general principle implied in this Section and embodied in Art. 10 to 17, 23 and 34 of the [Prisoner of War] Convention does not seem to have led to any difficulties or divergent interpretations during the recent war. The ICRC had proposed, however, to specify plainly that maintenance shall be gratuitous, and the Commission agreed.’
9 - See ICRC, Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume I: General Activities, ICRC, Geneva, May 1948, pp. 258–267, and Bretonnière, pp. 60–61.
10 - Report of the Conference of Government Experts of 1947, p. 120.
11 - Ibid.
12 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 278.
13 - Article 14, first paragraph, of the revised prisoner of war convention adopted by the 1948 Stockholm Conference stated: ‘The Power detaining prisoners of war is bound to provide for their free maintenance and likewise to afford them the medical care which their state of health requires.’ Draft Conventions adopted by the 1948 Stockholm Conference, p. 57. See also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 172.
14 - Neff, p. 63. The fact that the provision clarifies the question shows that the government experts considered it important to specify who was responsible for the maintenance of prisoners of war: ‘[I]t was pointed out that the essential purpose of this provision is to determine who shall be responsible for maintenance of PW. … The Commission therefore thought it unnecessary to define the idea of maintenance beyond mention of free medical care.’ Report of the Conference of Government Experts of 1947, p. 120.
15 - The Eritrea-Ethiopia Claims Commission also stressed the unconditional nature of Article 15; see Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 105, and Prisoners of War, Eritrea’s Claim, Partial Award, 2003, para. 116.
16 - Report of the Conference of Government Experts of 1947, p. 120.
17 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 278.
18 - See the commentary on Article 125.
19 - See the commentaries on Articles 72 and 73.
20 - The same applies in regard to civilian internees; see Article 60 of the Fourth Convention.
21 - On financial resources, see, in particular, Articles 59–63. See also Sanna, p. 985, para. 28.
22 - Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 125, and Prisoners of War, Eritrea’s Claim, Partial Award, 2003, para. 138. The Commission pointed out that ‘the cost of such care is not, in any event, substantial in comparison with the other costs imposed by the armed conflict’.
23 - Ibid. See also Sanna, 2009, p. 318, and 2015, pp. 985–986, para. 29.
24 - See e.g. New Zealand, Military Manual, 2019, Vol. 4, p. 12-15, para. 12.3.14; Philippines, LOAC Teaching File, 2006, p. 23-7; Sri Lanka, Military Manual, 2003, p. 83, para. 1606; and United Kingdom, Joint Doctrine Captured Persons, 2015, p. 3-8, para. 309.b, and pp. 3-15–3-17, paras 311–312. See also Introduction, para. 114; and the commentaries on Article 12, para. 1526, and on Article 26, para. 2119; Levie, pp. 127–128; Ryan Goodman and Derek Jinks, ‘International Law, U.S. War Powers, and the Global War on Terrorism’, Harvard Law Review, Vol. 118, No. 8, June 2005, pp. 2653–2662, at 2660–2661; Sanna, 2015, p. 986.
25 - See the commentary on Article 9, section C.4.b, in particular para. 1357.
26 - See e.g. Turkey, LOAC Manual, 2001, p. 52, and Sri Lanka, Military Manual, 2003, p. 93, para. 1674.
27 - The Eritrea-Ethiopia Claims Commission understood the maintenance obligation to mean that ‘a Detaining Power must do those things required to prevent significant deterioration of a prisoner’s health’; Prisoners of War, Eritrea’s Claim, Partial Award, 2003, para. 118, and Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 107. In its ordinary meaning, ‘welfare’ refers to ‘the health, happiness, and fortunes of a person or group’ or ‘action or procedure designed to promote the basic physical and material well-being of people in need’; Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1639.
28 - The term ‘good health’ refers not only to physical health but also to mental health. See also Article 49(1), as well as the commentaries on Article 13, para. 1581, and on Article 30, para. 2278.
29 - Articles 30–31. On the medical attention required, see, further, section C.3.
30 - For a further discussion of the distinct needs of different categories of prisoners of war, see Introduction, section A.3.b.
31 - See also Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 70, and Prisoners of War, Eritrea’s Claim, Partial Award, 2003, para. 65.
32 - For a further discussion of the reasonable standards of medical care, see the commentaries on Article 12 of the First Convention, paras 13811385, and on Article 12 of the Second Convention, paras 1426–1430.
33 - Article 31.
34 - See the commentaries on Article 29, para. 2197, and on Article 31, para. 2289. See also Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 106.
35 - See Article 30(2).
36 - See e.g. United Kingdom, Joint Doctrine Captured Persons, 2015, p. 3-11, para. 310(e); United States, Medical Support to Detainee Operations, 2007, p. 2-3, para. 2-4. For a general discussion of the principle of assimilation, see Introduction, section A.3.c.
37 - See e.g. 33rd International Conference of the Red Cross and Red Crescent, Res. 2, Addressing mental health and psychosocial needs of people affected by armed conflicts, natural disasters and other emergencies, Geneva, 2019, preambular para. 8 and operative para. 7. In relation to the specific medical needs and barriers in accessing appropriate medical attention for persons with disabilities, see ICRC, ‘How law protects persons with disabilities in armed conflict’, 2017, pp. 3–4; Inter-Agency Standing Committee, Guidelines – Inclusion of Persons with Disabilities in Humanitarian Action, 2019, pp. 111–114; and the commentary on Article 30, section C.2. Women prisoners of war may also face specific barriers impeding their access to appropriate medical services; see e.g. Helen Durham and Vanessa Murphy, ‘Equal Treatment for Women in State Armed Forces: Three Practical Implications for Medical Care’ (blog), Humanitarian Law & Policy, 8 March 2019. Furthermore, sexual or gender minorities may have specific medical needs but may face multiple obstacles to receiving appropriate health care in prisons owing to stigma; see e.g. Tasha Hill, ‘Transgender Military Inmates’ Legal and Constitutional Rights to Medical Care in Prisons: Serious Medical Need versus Military Necessity’, Vermont Law Review, Vol. 39, No. 2, 2014, pp. 411–459, at 429–432.
38 - For more details on medical ethics, see also the commentary on Article 30, para. 2232. On the eligibility of prisoners of war for direct repatriation according to Articles 109–110 following a refusal of medical treatment, see the commentary on Article 109, section C.1.c. See also Additional Protocol I, Article 11(5).
39 - Regarding the refusal of prisoners of war to subject themselves to medical inspections, see the commentary on Article 31, paras 2297–2298.
40 - Article 30(1) requires that ‘[i]solation wards shall, if necessary, be set aside for cases of contagious … disease’.
41 - See World Medical Association, WMA Declaration of Tokyo: Guidelines for Physicians concerning Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment, adopted by the 29th World Medical Assembly in Tokyo, Japan, in October 1975, last revised by the 173rd WMA General Assembly in October 2016, section 6; and WMA Declaration of Malta on Hunger Strikers, adopted by the 43rd World Medical Assembly in St. Julian’s, Malta, in November 1991, last revised by the 68th World Medical Assembly in October 2017, Principle 2. See also British Medical Association, ‘WMA Declaration of Malta: A background paper on the ethical management of hunger strikes’, World Medical Journal, Vol. 52, No. 2, June 2006, pp. 36–43.
42 - See e.g. France, Criminal Procedure Code, 1959, as amended, Article D.364, and Germany, Prison Act, 1976, Section 101. See also Aamer, where the Court held that the law did not recognize force-feeding a prisoner on a hunger strike as inhuman or degrading; United States, Court of Appeals for the DC Circuit, Aamer case, 2014, p. 30. For a discussion of the specific example of force-feeding of detainees in Guantánamo, see Walter Ruiz, Baher Azmy, Stephen Xenakis and Rachel VanLandingham, ‘Remarks’, American Society of International Law Proceedings of the Annual Meeting, Vol. 108, 2014, pp. 200–217; and A. Naomi Paik, ‘Representing the Disappeared Body: Videos of Force-Feedings at Guantánamo’, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, Vol. 9, No. 3, winter 2018, pp. 423–448. Regarding an Israeli Supreme Court case which rejected a petition submitted against a 2015 law regulating the force-feeding of prisoners on a hunger strike, see Jesse Lempel, ‘Force-Feeding Prisoners on a Hunger Strike: Israel as a Case Study in International Law’, Harvard International Law Journal, 2 December 2016. The European Court of Human Rights has dealt with hunger strikes in the context of an alleged violation of Article 3 of the 1950 European Convention on Human Rights. In Nevmerzhitsky v. Ukraine, Judgment, 2005, para. 94, the Court noted that a measure that is of therapeutic necessity from the point of view of established principles of medicine could not in principle be regarded as inhuman and degrading. While not rejecting force-feeding as a principle, the Court attached a number of additional criteria that had to be fulfilled so as to ensure that force-feeding did not violate the rights of the person under Article 3 of the 1950 European Convention on Human Rights: the feeding has to be necessary from a medical point of view and aimed at saving the patient’s life, certain procedural safeguards have to be in place, and the manner in which the feeding is carried out must not be more severe than allowed by Article 3; see also Rappaz v. Switzerland, Decision, 2013, para. 65.
43 - See e.g. United Kingdom, High Court of Justice, Secretary of State for the Home Department v. Robb, Judgment, 1995.
44 - See e.g. Switzerland, Supreme Court of the Canton of Bern (2nd Criminal Chamber), A. and University Hospital of Bern v. Directorate of Police and Military Affairs, Decision, 2014.
45 - See ICRC, ‘Hunger Strikes in Prisons: The ICRC’s Position’, 31 January 2013. See also Hernán Reyes, ‘Medical and Ethical Aspects of Hunger Strikes in Custody and the Issue of Torture’, in M. Oehmichen (ed.), ‘Maltreatment and Torture’, Research in Legal Medicine, Vol. 19, 1998.