Practice Related to Rule 95. Forced Labour
The Military Manual (1993) of the Netherlands restates the rules on labour carried out by prisoners of war as found in Articles 49–52, 54, 60 and 64 of the 1949 Geneva Convention III and Article 51 of the 1949 Geneva Convention IV.
The Military Manual (2005) of the Netherlands states:
It is expressly prohibited to carry out the following acts against the civilian population or individual civilians, wounded, sick or prisoners:
- slavery, slave trading or dangerous or degrading forced labour;
- threatening anyone with the above-mentioned acts or treatment.
In its chapter on peace operations, the manual states:
Section 2 - Applicability of human rights
1211. Human rights should be respected … However, “in time of war or in case of any other general state of emergency which threatens the existence of the country,” certain human rights may be curtailed as long as the situation strictly necessitates such measures. But the right to life, the prohibition of torture, slavery and forced labour, and the legal principle “no punishment without prior legal provision” cannot be waived.
The Definition of War Crimes Decree (1946) of the Netherlands includes “forced labour of civilians in connection with the military operations of the enemy” and “the employment of prisoners of war on unauthorized works” in its list of war crimes.
In its judgement in the Notomi case
in 1947, the Temporary Court Martial at Makassar sentenced four of the accused to death and two others to imprisonment. The accused were responsible for a prisoner of war camp. They were found responsible for having subjected the prisoners to labour for which they were not suited. The Court thus considered that Articles 29 and 30 of the 1929 Geneva POW Convention, which it considered to reflect customary international humanitarian law, had been violated.
In its judgement in the Koshiro case
in 1947, the Temporary Court-Martial of Makassar of the Netherlands found that forcing prisoners of war to build ammunition depots and fill them with ammunition amounted to “employing prisoners of war on war work” and qualified it as a violation of Article 6 of the 1907 Hague Regulations and of Article 31 of the 1929 Geneva POW Convention.
In its judgement in the Rohrig and Others case
in 1950, a Special Court of Cassation of the Netherlands found the accused guilty of having deported civilians from the Netherlands to Germany and having put them to forced labour in the construction of the fortifications of the German “West Wall”.
The Military Manual (1993) of the Netherlands provides that compelling a protected person to serve a hostile power is a grave breach of the 1949 Geneva Conventions and their 1977 Additional Protocols.
The Military Manual (2005) of the Netherlands states that “a prisoner of war may not accept certain privileges in exchange for his consent to work in an armaments factory. Prisoners of war may not do any work of a military nature”.
The manual further states:
0735. A detaining power may set prisoners of war to work. In doing so, it must take account of their age, sex, health, rank and physical fitness. Officers may not be required to work, while non-commissioned officers may perform only supervisory tasks. Other prisoners of war may be deployed only to a limited extent.
0736. A prisoner of war may never be ordered to carry out activities which would increase the adversary’s military potential, or to work in an industry which would form a legitimate military target for his/her own armed forces. However, prisoners of war may be ordered to work on the administration, set-up and maintenance of their camps. In addition, activities in the following fields may be ordered:
- industry in general, but with express exceptions;
- metallurgical, mechanical and chemical industries;
- public works and building operations that have no military character or purpose;
- transport and storage of goods that are not military in character or purpose;
- activities in the field of business, trade or arts and crafts;
- domestic services;
- public utility services having no military character or purpose.
The working conditions may not be inferior to those in which nationals of the detaining power perform similar work.
0737. A prisoner of war is not bound to carry out unhealthy or dangerous work. This is, however, possible on a voluntary basis. Prisoners of war are entitled to be paid for work done.
In its chapter on the protection of the civilian population, the manual states:
0814. Protected persons may be compelled to work only to the same extent as nationals of the country in whose territory they are located. They may also only be compelled to do work which is normally necessary to ensure the feeding, sheltering, clothing, transport and health of human beings and which is not directly related to the conduct of military operations …
Section 7 - Occupied areas
0833. Persons over the age of 18 may be obliged to work. This may be only within the occupied area, and the activities must serve the needs of the army of occupation, public utilities or the food supply, accommodation, clothing, transport or health of the population. The requisitioning of a workforce must in no case lead to mobilization of workers in an organization of a military or semi-military character. Employment on building defence works is also not permitted. Protected persons may not be deployed either on work which would compel them to take part in war operations.
The Definition of War Crimes Decree (1946) of the Netherlands includes “compulsory enlistment of soldiers among the inhabitants of occupied territory” in its list of war crimes.
Under the International Crimes Act (2003) of the Netherlands, it is a crime to commit in an international armed conflict grave breaches of the 1949 Geneva Conventions, including “compelling a prisoner of war or other protected person to serve in the armed forces of a hostile power”, as well as “compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war”.