Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 52 : Dangerous or humiliating labour
Text of the provision*
(1) Unless he be a volunteer, no prisoner of war may be employed on labour which is of an unhealthy or dangerous nature.
(2) No prisoner of war shall be assigned to labour which would be looked upon as humiliating for a member of the Detaining Power’s own forces.
(3) The removal of mines or similar devices shall be considered as dangerous labour.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2739  The issue of unhealthy or dangerous work, together with the question whether prisoners of war may be used for demining, was the topic of fierce debate at the Diplomatic Conference in 1949. The drafting of Article 52 was closely linked to that of Article 50. While the latter provides an exhaustive list of categories of labour that prisoners of war may be compelled to do, the present article prohibits their employment on labour which is unhealthy or dangerous, unless they volunteer. The third paragraph of Article 52 makes clear that demining activities are to be considered dangerous labour, while the second paragraph provides that prisoners of war may not be assigned to labour which would be considered humiliating for a member of the Detaining Power’s own forces.
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B. Historical background
2740  Article 32 of the 1929 Geneva Convention on Prisoners of War provided that it was ‘forbidden to employ prisoners of war on unhealthy or dangerous work’. This provision was frequently violated during the Second World War, however, as prisoners were forced to take part in demining activities or to work in factories producing dangerous chemicals.[1] The principle that no prisoner of war may be employed on labour which is of an unhealthy or dangerous nature was readily accepted by States at the 17th International Conference of the Red Cross in Stockholm in 1948 and at the Diplomatic Conference in 1949.[2]
2741  However, States did not offer a definition of the terms ‘unhealthy’ or ‘dangerous’ nor give examples of such work, with the notable exception of demining activities.[3] A proposal to include demining in the list of authorized work in Article 50 proved contentious.[4] Some States felt that, for humanitarian reasons, prisoners of war should not be exposed to the risks of demining, while others felt strongly that, as the prisoners may themselves have laid mines, they could easily be trained in their removal. [5] Once it was decided that demining activities would not feature in Article 50, the majority of States agreed to an explicit mention in Article 52 of mine removal as dangerous work.[6]
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C. Paragraph 1: Voluntary character of unhealthy or dangerous work
2742  No prisoner of war may be employed on labour which is of an unhealthy or dangerous nature, unless they volunteer for it. Article 52(1) thus deals with the types of work which by their nature can be considered to be unhealthy or dangerous.
2743  This paragraph does not cover the type of work that is in itself not dangerous but may become so because of the general conditions in which it is performed by prisoners, such as when it is carried out close to the battlefield.[7] Work can also be dangerous or unhealthy if it is done without the necessary safety equipment or training. These situations are covered by Article 51, which requires the Detaining Power to provide prisoners with suitable working conditions, training and protective equipment.[8] The essential difference between authorized work, covered by Article 50, and what would not be authorized under Article 52, is in the nature of the work itself, not in the external conditions in which the work is performed.[9]
2744  With the exception of the express reference to mine clearance in Article 52(3), the Convention provides no list of nor any criteria for defining unhealthy or dangerous work.[10] Unhealthy labour can be defined as a type of work which is liable to cause disease, injury or body ailment.[11] Dangerous work is that which can be qualified as perilous, hazardous or unsafe.[12] The nature of each task and whether it is unhealthy or dangerous will have to be determined by the Detaining Power on a case-by-case basis, and generally not for an entire category or type of work.[13] In case of disagreement, prisoners of war have the right to have recourse to the complaints mechanisms provided for under Article 78.
2745  Article 52 nonetheless allows prisoners of war to be employed in dangerous or unhealthy work if they volunteer for it.[14] During the final plenary sessions in 1949, following lengthy discussions on whether to allow or prohibit the Detaining Power from employing prisoners in demining and its subsequent exclusion from the list of authorized labour in Article 50, States at the Diplomatic Conference approved a suggestion by France to include in Article 52(1) the possibility of prisoners of war volunteering for it.[15] This was the compromise reached: while, on the one hand, the Detaining Power may not compel prisoners of war to carry out demining activities, on the other hand, prisoners may volunteer for dangerous or unhealthy work, including demining.
2746  When prisoners of war volunteer, the provisions of Article 51 remain fully applicable. The prisoners must be informed of the risks and dangers involved, and the Detaining Power must choose, from among those who come forward, the ones best qualified to do the work in the safest way possible and give them all the necessary training. If the prisoners claim to have been trained already, the Detaining Power must test their ability to carry out the work safely and reject anyone who does not meet the required standard.[16]
2747  The fact that prisoners can voluntarily renounce the protection granted by Article 52 should not be seen as a violation of Article 7, which provides that ‘[p]risoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention’. In the case of Article 52, the Convention allows prisoners of war to consent to carrying out dangerous or unhealthy work that would otherwise be prohibited. States that accommodate such choices by prisoners of war therefore do not violate Article 7.[17]
2748  If a prisoner of war subsequently informs the Detaining Power that they no longer wish to carry out labour which is of an unhealthy or dangerous nature, they must be allowed to cease such labour. The Detaining Power may not compel that prisoner to continue doing the work in question.
2749  As Article 52 clearly prohibits the Detaining Power from requiring prisoners of war to undertake unhealthy or dangerous work, unless they volunteer freely for it, it will be crucial to determine whether the prisoners who come forward are genuine volunteers. No physical or moral pressure to carry out such work may be put on them.[18] Considering the vulnerable and often desperate situation of prisoners of war in the hands of a Detaining Power, caution must be exercised when considering the authenticity of the prisoner’s consent. It is doubtful whether they are able to take decisions based on ‘free will’ in such circumstances.[19]
2750  In cases before it, [20] the ICTY used the following criteria to determine whether the work was undertaken voluntarily or whether the prisoners of war were compelled to undertake it:
a) the substantially uncompensated aspect of the labour performed; b) the vulnerable position in which the detainees found themselves; c) the allegations that detainees who were unable or unwilling to work were either forced to do so or put in solitary confinement; d) claims of longer term consequences of the labour; e) the fact and the conditions of detention; and f) the physical consequences of the work on the health of the internees.[21]
After reviewing the factual evidence, the Tribunal determined on a case-by-case basis whether a prisoner had expressed a genuine choice in volunteering to perform unhealthy or dangerous labour. In some instances, it found that the ‘nature of the work and the circumstances in which it was performed could only lead to the conclusion that the prisoners had not truly volunteered’.[22] The ICTY found individuals guilty of the war crime of unlawful labour when the conditions prescribed in Articles 50 or 52 had been violated.[23]
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D. Paragraph 2: Prohibition of humiliating labour
2751  The 1929 Geneva Convention on Prisoners of War contained no provision concerning humiliating labour. The present paragraph was introduced at the 1948 Stockholm Conference on the basis of Article 71 of the 1880 Oxford Manual.[24] The Convention does not specify what constitutes humiliating labour but generally recalls in Article 14 that prisoners of war are entitled to respect for their persons and their honour.[25] Humiliating labour can be defined as a type of work which will injure the dignity and self-respect of prisoners of war.[26]
2752  If the Detaining Power’s forces look upon the type of work as humiliating, then prisoners of war may not be employed to do it. Prisoners of war cannot validly consent to any such work. The reference is to objective rules enforced by the Detaining Power and not to the personal feelings of any individual member of the armed forces.[27]
2753  The standard to determine whether the type of work is of a humiliating nature is the one applied in the armed forces of the Detaining Power, rather than that applied in the armed forces of the Power on which the prisoner depends. This may give rise to some difficulties as prisoners of war may consider certain tasks humiliating even though members of the Detaining Power’s forces do not.[28] This contrasts with the choice made by States in the Elements of Crimes under the 1998 ICC Statute for the war crime of outrages upon personal dignity, in particular humiliating treatment. It was felt that the cultural background of victims under that crime needed to be taken into account when assessing if the treatment was humiliating.[29] Some treatment could be humiliating to someone of a particular nationality, culture or religion, while not necessarily to others.[30] The plain reading of Article 52, however, does not seem to allow for a similar interpretation of humiliating labour.[31]
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E. Paragraph 3: Removal of mines or similar devices
2754  Article 52(3) states that the employment of prisoners of war in mine removal amounts to dangerous labour and is therefore prohibited unless they volunteer. The concept of ‘mine’ covers anti-personnel, anti-vehicle and naval mines.[32] This provision also covers the removal of other unexploded ordinance, as it speaks of ‘similar devices’.
2755  It should be emphasized that this clause in no way relieves the Detaining Power of the obligation to respect other provisions of the Convention relating to the safety of prisoners, and in particular Article 23, which states that prisoners of war may not be exposed to the dangers of combat.[33]
2756  Prisoners of war were used for demining activities during the Second World War, particularly after the end of active hostilities.[34] More recently, Argentinean prisoners of war volunteered to assist British officers in marking the outer limits of minefields on the Falkland/Malvinas Islands.[35]
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Select bibliography
Chifflet, Pascale, ‘Recent Legal Developments: The Judgement of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Mladen Naletilić and Vinko Martinović’, Leiden Journal of International Law, 2003, Vol. 16, No. 3, 2003, pp. 525–539.
Hingorani, Rup C., Prisoners of War, 2nd edition, Oceana Press, Dobbs Ferry, 1982.
Levie, Howard S., ‘The Employment of Prisoners of War’, American Journal of International Law, Vol. 57, No. 2, April 1963, pp. 318–353.
Maia, Catherine, Kolb, Robert and Scalia, Damien, La Protection des Prisonniers de Guerre en Droit International Humanitaire, Bruylant, Brussels, 2015.
Pocar, Fausto, ‘L’emploi des civils et des prisonniers de guerre à des fins militaires devant le TPIY’, in Marcelo Kohen, Robert Kolb and Djacoba Liva Tehindrazanarivelo (eds), Perspectives of International Law in the 21st Century: Liber Amicorum Professor Christian Dominicé in Honour of his 80th Birthday, Martinus Nijhoff Publishers, Leiden, 2012, pp. 371–382.

1 - See Report of the Conference of Government Experts of 1947, pp. 179–180, and Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 273. See also 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. 332–335.
2 - See Report of the Conference of Government Experts of 1947, pp. 251–257; Draft Conventions submitted to the 1948 Stockholm Conference, p. 84; and Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 345–346 and 445–447.
3 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 566.
4 - See the commentary on Article 50, para. 2698.
5 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 566, and Vol. II-B, pp. 299–300. See also Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 275–276.
6 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 566.
7 - This situation is covered by Article 23(1), which provides that ‘[n]o prisoner of war may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone’. See the commentary on Article 23, section C.1.
8 - For more details, see the commentary on Article 51, sections C, D and E.
9 - See also Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 276.
10 - Ibid. pp. 275–276.
11 - See Bryan A. Garner (ed.), Black’s Law Dictionary, 11th edition, Thomson Reuters, 2019, p. 837 (good health).
12 - Ibid. p. 494.
13 - On this point, see Maia/Kolb/Scalia, p. 335. See also e.g. United States, Army Regulation on Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, 1997, p. 16, para. 4-5, which states: ‘A specific task should be considered, not the industry as a whole. The specific conditions for each job are the deciding factors.’
14 - As a safeguard, some military manuals require the prisoners’ written consent to carry out otherwise prohibited work. See e.g. Russian Federation, Regulations on the Application of IHL, 2001: ‘[T]he employment of prisoners of war in dangerous type of works (including mine clearing) can be exercised only upon consent of the prisoners of war in writing.’
15 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 299–300. The French proposal was adopted by 18 votes to 10, with 8 abstentions.
16 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 277, as well as Sandra Krähenmann, ‘Protection of Prisoners in Armed Conflict’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 359–411, at 399–400.
17 - See the commentary on Article 7, para. 1170.
18 - These fears were already expressed by States at the 1949 Diplomatic Conference; see e.g. Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 343. See also Maia/Kolb/Scalia, pp. 338–339.
19 - See the commentary on Article 7, para. 1177, and Hingorani, p. 149.
20 - See e.g. ICTY, Naletilić and Martinović Trial Judgment, 2003, paras 250–273, and Appeal Judgment, 2006, paras 420–426; and Prlić Trial Judgment, 2013, Vol. 2, paras 157–164, and Vol. 3, paras 1500–1522 and 1592–1612.
21 - ICTY, Naletilić and Martinović Trial Judgment, 2003, para. 259. For an analysis of this decision, see Chifflet, pp. 526–531.
22 - Chifflet, p. 531. See ICTY, Naletilić and Martinović Trial Judgment, 2003, paras 270, 288 and 302. See also Pocar, p. 375.
23 - See e.g. ICTY, Naletilić and Martinović Trial Judgment, 2003, paras 250–273, and Appeal Judgment, 2006, paras 420–426; and Prlić Trial Judgment, 2013, Vol. 2, in particular paras 157–164.
24 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 277. Article 71 of the 1880 Oxford Manual read: ‘[Prisoners of war] may be employed on public works which have no direct connection with the operations in the theatre of war, which are not excessive and are not humiliating either to their military rank, if they belong to the army, or to their official or social position, if they do not form part thereof.’
25 - For more details on the concept of ‘honour’, see the commentary on Article 14, section C.3.
26 - See e.g. Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 694.
27 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 277.
28 - See Levie, pp. 340–341.
29 - See ICC Elements of Crimes (2002), Article 8(2)(c)(ii), fn. 57.
30 - See the commentaries on Article 3 of the First Convention, para. 669, and on Article 14 of the Third Convention, para. 1666.
31 - The Detaining Power might nonetheless choose to consider the prisoners’ culture and the type of activities that they might deem humiliating. Pursuant to Articles 13 and 14(1), prisoners of war must be treated humanely and with respect for their persons and their honour.
32 - According to Article 2 of the 1997 Anti-Personnel Mine Ban Convention, an anti-personnel mine is ‘a mine designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons’ and an anti-vehicle mine is one that is ‘designed to be detonated by the presence, proximity or contact of a vehicle as opposed to a person’. This term could arguably also cover sea/naval mines.
33 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 278.
34 - 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. 333–334. For example, Italian and German forces in North Africa in 1943 were required to clear minefields. Similarly, in 1945 French authorities used prisoners to clear mines. The monthly rate of fatal accidents among German prisoners engaged in this work was 2,000, one death per 5,000 mines. See also United States, Military Tribunal at Nuremberg, Von Leeb case, Judgment, 1948, pp. 46–47.
35 - See Peter Rowe, ‘Prisoners of war in the Gulf area’, in Peter Rowe (ed.), The Gulf War 1990-91 in International and English Law, Routledge, London, 1993, pp. 189–204, at 199, and Maia/Kolb/Scalia, p. 339.