Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 68 : Claims for compensation
Text of the provision*
(1) Any claim by a prisoner of war for compensation in respect of any injury or other disability arising out of work shall be referred to the Power on which he depends, through the Protecting Power. In accordance with Article 54, the Detaining Power will, in all cases, provide the prisoner of war concerned with a statement showing the nature of the injury or disability, the circumstances in which it arose and particulars of medical or hospital treatment given for it. This statement will be signed by a responsible officer of the Detaining Power and the medical particulars certified by a medical officer.
(2) Any claim by a prisoner of war for compensation in respect of personal effects, monies or valuables impounded by the Detaining Power under Article 18 and not forthcoming on his repatriation, or in respect of loss alleged to be due to the fault of the Detaining Power or any of its servants, shall likewise be referred to the Power on which he depends. Nevertheless, any such personal effects required for use by the prisoners of war whilst in captivity shall be replaced at the expense of the Detaining Power. The Detaining Power will, in all cases, provide the prisoner of war with a statement, signed by a responsible officer, showing all available information regarding the reasons why such effects, monies or valuables have not been restored to him. A copy of this statement will be forwarded to the Power on which he depends through the Central Prisoners of War Agency provided for in Article 123.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
3070  Article 68 deals with claims for compensation of prisoners of war. The provision is mostly of a procedural rather than substantive nature, apart, however, from the obligation of the Detaining Power to replace personal effects that the prisoners may need while in captivity. Claims for compensation are to be referred, not to the Detaining Power, but to the Power on which the prisoners depend. The ultimate settlement is subject to an arrangement between the Parties to the conflict pursuant to the second sentence of Article 67.
3071  The first paragraph of Article 68 concerns claims for compensation arising out of accidents at work resulting in injury or disability. Unlike in the 1929 Geneva Convention on Prisoners of War, claims for compensation by prisoners of war are no longer relegated to the domestic law of the Detaining Power. Such claims must be referred, through the Protecting Power, if there is one, to the Power on which the prisoners depend. The Detaining Power is obliged to provide the prisoner concerned with a certified statement describing the nature of the injury or disability, the circumstances in which it arose and the particulars of medical or hospital treatment received. This paragraph is closely linked to Article 54(2). In parallel, when the conditions for its applicability have been met, it may be that Article 121 requires an ‘official enquiry’.
3072  Under the second paragraph, claims for compensation for personal effects, money or valuables taken from prisoners upon capture and not returned to them upon their repatriation must also be referred to the Power on which they depend. The same applies to items lost alleged to be due to the fault of the Detaining Power. However, the Detaining Power is obliged to replace, at its own expense, personal effects required for the prisoners’ use while in captivity. As in the case of work-related accidents, the Detaining Power must provide the prisoners with a certified statement giving the reasons why the items have not been restored. A copy of that statement must be forwarded, through the Central Prisoners of War Agency (now known as the Central Tracing Agency),[1] to the Power on which the prisoners depend. These provisions do not apply if, pursuant to Articles 18(6) or 119(2), the items have been returned to the prisoners upon repatriation.
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B. Historical background
3073  The issue of compensation for a work-related injury or illness was first addressed in the 1929 Geneva Convention on Prisoners of War. Article 27, paragraph 4, of the Convention provided that ‘prisoners of war who are victims of accidents at work’ were to benefit from ‘the provisions applicable to workmen of the same category under the legislation of the detaining Power’. Where such persons were unable to benefit from these provisions by virtue of its legislation, the Detaining Power was required ‘to recommend to its legislative body all proper measures for the equitable compensation of the victims’. These provisions proved ineffectual; during the Second World War, no payments were made to injured prisoners of war by the Detaining Power after repatriation.[2]
3074  As regards personal items, ‘articles of value’ and money found on prisoners of war at the time of capture, Article 6 of the 1929 Convention provided that money could be taken from them (and placed on their accounts). All other personal items were to remain in their possession. However, the 1929 Convention lacked provisions on compensation for money and personal items lost or not returned to the prisoners at the close of hostilities or upon termination of their captivity.
3075  The Conference of Government Experts, convened in 1947 to review the 1929 Conventions, approved an ICRC proposal obliging the Detaining Power to issue former prisoners of war with a medical certificate to assist them in obtaining compensation from their home government after their repatriation. The proposal also suggested that a duplicate of this certificate be forwarded to that government through the ICRC.[3] The provision was based on the principle that prisoners of war ‘continue in their country’s service during captivity and may thus expect to receive compensation from the latter, if they suffer an accident or contract a disease during compulsory work’.[4]
3076  The government experts also briefly discussed a proposal to require the Detaining Power to pay financial compensation for any articles of value which it had taken upon capture but could not return to the owner. The idea was moreover advanced that ‘such financial compensation was incumbent rather upon the home country of the PW [prisoner of war] concerned, but that the DP [Detaining Power] should be obliged to replace impounded articles which the PW may need during captivity’.[5]
3077  Accordingly, the second paragraph of draft article 45 adopted by the 17th International Conference of the Red Cross in Stockholm in 1948 provided that the Detaining Power was to issue prisoners of war with a medical certificate, ‘enabling them to put in their claims with the Power on which they depend’, with a duplicate sent to the Central Prisoners of War Agency.[6] As regards valuables and money taken from prisoners of war upon capture, draft article 16 provided merely that they ‘shall be returned in their initial shape to prisoners of war when they are liberated’,[7] but lacked a provision on items not so returned.
3078  During the Diplomatic Conference in 1949, there was initial agreement that prisoners of war should receive compensation for accidents arising out of work, as long as they ‘remained in the territory of the Detaining Power’.[8] However, in the course of the deliberations, the UK delegate proposed that such compensation be borne by the Power on which the prisoner of war depended, as the provisions of the 1929 Convention had proved unworkable during the Second World War.[9] The Committee of Financial Experts accepted the UK proposal and suggested that the Detaining Power, in case of need, be required to ‘certify the exactitude of the claims’.[10] The only exception carved out from this general rule was in relation to ‘personal effects which the prisoner needs during his captivity’.[11] The ensuing draft article 57A, today’s Article 68, was eventually adopted.[12]
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C. Paragraph 1: Claims for compensation for injury or disability arising out of work
3079  Article 68(1), which is closely linked to Article 54(2), concerns compensation for accidents at work. The provision has completely changed the procedure provided for in the 1929 Convention regarding compensation for occupational accidents.[13] Claims for compensation are no longer subject to the Detaining Power’s legislation. The compensation due is to be paid by the Power on which the prisoners depend, thus avoiding the prisoner of war having to take the former Detaining Power to court. The Detaining Power, for its part, is required to provide the prisoner with a certificate ‘showing the nature of the injury or disability, the circumstances in which it arose and particulars of medical or hospital treatment given for it’. This certificate is a vital piece of evidence for prisoners of war to submit when making a claim for compensation, without which any such claim would not normally be enforceable. The validity of claims for compensation is to be determined according to the domestic law of the Power on which the prisoners depend. Paragraph 1 does not prescribe the procedures that must be applied within each State.[14] If and to the extent compensation has been paid, the final settlement is subject to an agreement between the Parties to the conflict pursuant to the second sentence of Article 67.
3080  The object of paragraph 1 is to ensure, to the extent possible, that a prisoner of war receives compensation for a work-related accident or injury incurred while a prisoner of war, even after the end of their captivity. The provision applies not only to compensation for disabilities whose effects persist after captivity, but also to any injury suffered during work, even if the prisoner is subsequently successfully treated and no longer suffers from the accident’s consequences.
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1. First sentence: Referral of claims to the Power on which the prisoners depend
3081  The Detaining Power is obliged to refer to the Power on which the prisoners depend ‘[a]ny claim … for compensation in respect of any injury or other disability arising out of work’. Any referral of claims should be forwarded as soon as possible after it has been introduced.
3082  Any claim must be addressed directly to the Protecting Power, where such exists, 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. If the Parties to the conflict maintain direct relations, there may be no need to involve the Protecting Power. In practice, Protecting Powers have been appointed in very few conflicts.[15] While the ICRC is not explicitly mentioned as an alternative to the Protecting Power under Article 68, it has, both prior to and since 1949, ‘nevertheless performed many of the tasks usually assigned to Protecting Powers’.[16] Thus, the Detaining Power may invite the ICRC to act as a neutral intermediary in forwarding the claim for compensation to the Power on which the prisoners depend. However, in line with its humanitarian activities in general and as a matter of international law, the ICRC is not obliged to accept such an invitation. It remains within the ICRC’s discretion whether to accept.[17]
3083  Apart from the requirement to make use of the Protecting Power as an intermediary, the provision does not specify what procedure the Detaining Power must employ when referring prisoners’ claims for compensation. Accordingly, the Detaining Power is free to choose any procedure it considers appropriate, as long as it provides the Power on which the prisoners depend with the necessary information to support the claim (see section C.2), as well as with the details identifying the prisoner of war concerned, as set out in Article 122(4).
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2. Second and third sentences: Statement by the Detaining Power
3084  Article 68(1) supplements Article 54(2), according to which the Detaining Power is obliged to provide prisoners of war who have sustained work-related accidents with ‘a medical certificate enabling them to submit their claims to the Power on which they depend’. The contents of the certificate are not, however, limited to the medical aspects of the accident – i.e. the ‘nature of the injury or disability’ and the ‘particulars of medical or hospital treatment given for it’ – but must also describe the circumstances in which the injury or disability arose. The list of particulars to appear on the statement provided for in paragraph 1 is not exhaustive but merely states the minimum requirements.[18]
3085  The Detaining Power should follow any procedures in place for the documentation of workplace injury or disability in its own armed forces, in particular regarding the circumstances in which the injury or disability occurred. The statement, when describing these circumstances, should include the testimonies of any witnesses and a detailed description of the location, date and time of the accident, as well as of how it happened.[19]
3086  If the accident has resulted in the death of a prisoner, the certificate must be forwarded to the victim’s heirs so that they may submit a claim to the Power on which the prisoner depended. The certificate may be sent at the same time as the death certificate provided for in Article 120(2). It should be created in duplicate and may be sent either to the Protecting Power, if there is one, to be forwarded to the Power on which the prisoner depended, or to the Central Tracing Agency, to be forwarded to the victim’s family. If there is only one copy, it should preferably be sent to the Central Tracing Agency.
3087  The third sentence of Article 68(1) provides that the statement must be certified, i.e. signed, not only by a responsible officer of the Detaining Power, for instance by the camp commander or their deputy or, where applicable, the military justice officer who conducted the enquiry, but also by a medical officer. While the former will attest to the accuracy of the personal data of the prisoner concerned and the circumstances in which the injury or disability arose, the medical officer must attest to the ‘medical particulars’, i.e. the nature of the injury or disability and the details of medical or hospital treatment received. The prisoners’ representative should check that all the necessary formalities are carried out to the letter by the Detaining Power.
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D. Paragraph 2: Other claims for compensation
1. First sentence: Referral to the Power on which the prisoners of war depend
3088  The first sentence of Article 68(2) concerns personal effects, valuables and money taken from prisoners upon capture under Article 18 and which are not returned to them upon repatriation as they should on the basis of Article 119(2). It concerns only money that is not in the currency of the Detaining Power. Money in the currency of the Detaining Power, or that has been changed into that currency on the prisoners’ request, is regulated by Article 66. This provision does not apply if the said items are returned to the prisoners pursuant to Article 18(6). It is also important to bear in mind that missing items may still reach the prisoner of war through the Detaining Power’s information bureau pursuant to Article 122(9).[20]
3089  The first sentence also applies to personal items not taken from the prisoners and that are lost allegedly due to the ‘fault of the Detaining Power or any of its servants’. Given the absence of a receipt for such items, it is unclear how a prisoner could prove the veracity of their claim or how it should be processed. It therefore seems appropriate that such claims be taken into account when the ‘arrangements at the close of hostilities’ are negotiated between the relevant Parties pursuant to Article 67. The term ‘servants’ in connection with ‘Detaining Power’ indicates that the provision covers not only loss due to the conduct of State organs, but also due to the actions of others authorized by the Detaining Power to deal with prisoners of war such that they are in a position to interfere with the prisoners’ personal effects.[21]
3090  Any claim by a prisoner of war for compensation must be referred to the Power on which the prisoners depend, which will settle the claim. The ultimate settlement is subject to arrangements between the Parties to the conflict pursuant to the second sentence of Article 67.[22] Based on its wording (‘forthcoming on his repatriation’), Article 68(2) might seem to apply only if the prisoners are repatriated and not to other situations terminating captivity, such as if the prisoner has successfully escaped. However, Levie notes that the provisions of Articles 66(1), 68(2), 119(2) and 122(9) ‘vary widely as to the types of termination of captivity to which reference is made’ but should be taken ‘to include all relevant cases of the termination of captivity, whether by release, repatriation, escape, death, or any other means’.[23]
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2. Second sentence: Replacement of personal effects at the expense of the Detaining Power
3091  The second sentence of Article 68(2) concerns personal effects required for use by prisoners of war while in captivity, i.e. clothing and the other items dealt with in Article 27. If such items are lost or damaged, the Detaining Power is obliged to replace them. The articles replaced become the personal property of the prisoners and may not be taken away from them at a later date. If no replacement is made, the procedure laid out in the first sentence will apply.[24]
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3. Third and fourth sentences: Procedural safeguards
3092  According to the third sentence of Article 68(2), the Detaining Power must give the prisoner of war concerned, free of charge, a statement showing all available information regarding the reasons why such effects have not been restored to them. This constitutes a recognition of indebtedness, which will assist the prisoner of war in obtaining either restitution or damages at a later stage.
3093  The fourth sentence provides that, as an additional safeguard, a copy of the statement must be forwarded to the Power on which the prisoners depend through the intermediary of the Central Prisoners of War Agency (now the Central Tracing Agency) established by the ICRC pursuant to Article 123. It should be noted that, unlike the procedures provided for in Articles 62(1), 63(3) and 66(1), whereby a copy must be forwarded, through the intermediary of the Protecting Power, to the Power on which the prisoners depend, this provision requires the copy to be forwarded through the Central Tracing Agency.[25]
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Select bibliography
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 194–212.

1 - On the Central Tracing Agency, see Article 123.
2 - Levie, p. 250.
3 - Report of the Conference of Government Experts of 1947, p. 173.
4 - Ibid. p. 174.
5 - Ibid. p. 126.
6 - i> Draft Conventions adopted by the 1948 Stockholm Conference, p. 70.
7 - Ibid. p. 63.
8 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 276.
9 - Ibid. p. 550.
10 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 558. For an example of an earlier (bilateral) agreement requiring that the Detaining Power certify what was differently described in that treaty as the ‘nature of the accident’, see Agreement between the British and German Governments concerning Combatant Prisoners of War and Civilians (1918), Article 32.
11 - Ibid.
12 - Ibid. pp. 386, 555 and 589.
13 - On this basis, the Tokyo High Court denied both the retroactive applicability of the 1949 Third Geneva Convention, as well as of Article 68 reflecting customary law applicable to Japanese prisoners of war from the Second World War. See Okada Izumi on the decision of the Tokyo High Court of 5 March 1993, ‘Legal Materials: State Practice of Asian Countries in the Field of International Law’, Asian Yearbook of International Law, Vol. 5, 1995, pp. 245–252, at 248–252.
14 - Levie, p. 251.
15 - See the commentary on Article 8, section H.
16 - François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, p. 871.
17 - See Introduction, section A.1.e, in particular paras 50–51, and the commentary on Article 9, section C.1.
18 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 335.
19 - Ibid. p. 336.
20 - See the commentary on Article 122, section E.3. See also Levie, p. 211, fn. 480.
21 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 377. See also Draft Articles on State Responsibility (2001), Articles 4–5.
22 - See the commentary on Article 67, section C.2.
23 - Levie, p. 211, fn. 477.
24 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 337.
25 - Levie, p. 212, considers this to have ‘no logic whatsoever’.