Rule 95. Forced Labour

Rule 95. Uncompensated or abusive forced labour is prohibited.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
In the context of international armed conflicts, the Third Geneva Convention provides that “the Detaining Power may utilize the labour of prisoners of war who are physically fit, taking into account their age, sex, rank and physical aptitude, and with a view particularly to maintaining them in a good state of physical and mental health”.[1]
The Convention lists in detail the types of work a prisoner of war may be compelled to perform, “besides work connected with camp administration, installation or maintenance”.[2] This list builds upon the general prohibition found in the 1929 Geneva Convention Relative to the Treatment of Prisoners of War that “work done by prisoners of war shall have no direct connection with the operations of the war”.[3] In addition, the Third Geneva Convention provides that “unless he be a volunteer, no prisoner of war may be employed on labour which is of an unhealthy or dangerous nature. 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. The removal of mines or similar devices shall be considered as dangerous labour.”[4] The Convention contains further detailed provisions concerning working conditions, duration of labour, working pay, occupational accidents and medical supervision.[5]
The Fourth Geneva Convention provides that protected civilians may be compelled to work, but only under strict conditions, excluding work which is “directly related to the conduct of military operations” or which would involve them “in the obligation of taking part in military operations”, and payment of a wage is required.[6] Lastly, the Fourth Geneva Convention provides that civilian internees shall not be employed “unless they so desire”, in which case they must also receive a salary.[7]
The military manuals and the legislation of many States state that imposing forced labour on prisoners of war or civilians,[8] as well as compelling prisoners of war or civilians to perform prohibited work, are criminal offences.[9] In several national war crimes trials, the accused were found guilty of having forced prisoners of war or civilians to engage in work related to the war.[10]
In the context of non-international armed conflicts, Additional Protocol II provides that persons who are deprived of their liberty for reasons related to the armed conflict “shall, if made to work, have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population”.[11]
The Forced Labour Convention and Convention concerning the Abolition of Forced Labour, as well as the International Covenant on Civil and Political Rights and the regional human rights conventions, prohibit “forced or compulsory labour”.[12] The Forced Labour Convention defines this as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.[13] But human rights law provides for exceptions to the general rule in that certain types of labour would not amount to unlawful forced labour, for example, labour by prisoners within prison establishments, labour required for the community to overcome calamity situations or normal civic obligations.[14] In addition, contrary to the prohibition of slavery and the slave trade, the prohibition of forced or compulsory labour may be derogated from, for example, in case of armed conflict where the above-mentioned specific rules of international humanitarian law become applicable.[15]
Deportation to slave labour violates the prohibition of deportation (see Rule 129) but has also been specified as a separate war crime in international armed conflicts. The Charter of the International Military Tribunal at Nuremberg included “deportation to slave labour or for any other purpose of civilian population of or in occupied territory” as a war crime.[16] Several defendants before the Tribunal were charged with and convicted of deporting thousands of civilians for slave labour, i.e., performing compulsory uncompensated labour.[17] Deportation to slave labour is also prohibited by the military manuals and legislation of several States.[18] Several national courts have found persons guilty of this crime, including in the List (Hostages Trial) case, in which the accused was found guilty of “deportation to slave labour of prisoners of war and members of the civilian populations in territories occupied by the German Armed Forces”.[19]
Compelling persons to serve in the forces of a hostile power is a specific type of forced labour that is prohibited in international armed conflicts. The Hague Regulations specify that it is forbidden to compel nationals of the hostile party to take part in operations of war directed against their own country, even if they were in the belligerent’s service before the war.[20] The Third and Fourth Geneva Conventions state that so compelling a prisoner of war or a protected civilian is a grave breach.[21] The prohibition is repeated in the list of war crimes in the Statute of the International Criminal Court.[22]
The prohibition on compelling persons to serve in the forces of a hostile power is contained in numerous military manuals.[23] It is also set forth in the legislation of a large number of States.[24] The reasoning behind the rule is the distressing and dishonourable nature of making persons participate in military operations against their own country – whether or not they are remunerated.
[1] Third Geneva Convention, Article 49.
[2] Third Geneva Convention, Article 50 (cited in Vol. II, Ch. 32, § 1761).
[3] 1929 Geneva Convention Relative to the Treatment of Prisoners of War, Article 31 (ibid., § 1757).
[4] Third Geneva Convention, Article 52 (ibid., § 1762).
[5] See Third Geneva Convention, Articles 51 and 53–55.
[6] Fourth Geneva Convention, Article 40 (cited in Vol. II, Ch. 32, § 1763) and Article 51 (ibid., § 1764).
[7] Fourth Geneva Convention, Article 95 (ibid., § 1765).
[8] See, e.g., the military manuals of Ecuador (ibid., § 1801) and United States (ibid., § 1813) and the legislation of Australia (ibid., §§ 1816–1817), Azerbaijan (ibid., § 1820), Bosnia and Herzegovina (ibid., § 1824), Democratic Republic of the Congo (ibid., § 1828), Côte d’Ivoire (ibid., § 1830), Croatia (ibid., § 1831), Ethiopia (ibid., § 1832), Latvia (ibid., § 1838), Lithuania (ibid., § 1839), Paraguay (ibid., § 1848), Slovenia (ibid., § 1850), Uzbekistan (ibid., § 1856) and Yugoslavia (ibid., §§ 1857–1858).
[9] See, e.g., the military manuals of Netherlands (ibid., § 1804), Nigeria (ibid., § 1806), South Africa (ibid., § 1808), United Kingdom (ibid., § 1809) and United States (ibid., §§ 1810–1813); the legislation of Bangladesh (ibid., § 1821), China (ibid., § 1827), Ireland (ibid., § 1834), Italy (ibid., § 1836), Luxembourg (ibid., § 1840), Nicaragua (ibid., § 1845) and Norway (ibid., § 1847).
[10] See, e.g., Canada, Federal Court of Appeal, Rudolph and Minister of Employment and Immigration case (use of civilians in the production of V2 rockets) (ibid., § 1859); France, General Tribunal at Rastadt of the Military Government for the French Zone of Occupation in Germany, Roechling case (prisoners of war working in the metallurgical industry) (ibid., § 1861); Netherlands, Temporary Court-Martial of Makassar, Koshiro case (prisoners of war building and filling up ammunition depots) (ibid., § 1863); Netherlands, Special Court of Cassation, Rohrig and Others case (civilians constructing fortifications) (ibid., § 1864); United Kingdom, Military Court at Lüneberg, Student case (prisoners of war unloading arms, ammunition and warlike stores from aircraft) (ibid., § 1866); United States, Military Tribunal at Nuremberg, Krauch (I. G. Farben Trial) case (prisoners of war working in coal mines) (ibid., § 1870) and Von Leeb (High Command) case (civilians constructing fortifications) (ibid., § 1872).
[11] Additional Protocol II, Article 5(1)(e) (adopted by consensus) (ibid., § 1773).
[12] Forced Labour Convention, Article 1 (ibid., § 1758); Convention concerning the Abolition of Forced Labour, Articles 1 and 2 (ibid., §§ 1768–1769); International Covenant on Civil and Political Rights, Article 8(3) (ibid., § 1770); European Convention on Human Rights, Article 4(2) ( ibid., § 1766); American Convention on Human Rights, Article 6(2); African Charter on Human and Peoples’ Rights, Article 15 (right to work under equitable and satisfactory conditions).
[13] Forced Labour Convention, Article 2 (cited in Vol. II, Ch. 32, § 1758); see the further interpretation provided by the European Court of Human Rights, Van der Mussele v. Belgium (ibid., § 1899).
[14] See International Covenant on Civil and Political Rights, Article 8(3)(b) and (c); European Convention on Human Rights, Article 4(3); American Convention on Human Rights, Article 6(3).
[15] See, e.g., International Covenant on Civil and Political Rights, Articles 4(2) and 8(3) (cited in Vol. II, Ch. 32, § 1770) and European Convention on Human Rights, Articles 4(2) and 15(2) (ibid., § 1766).
[16] IMT Charter (Nuremberg), Article 6 (ibid., § 1759).
[17] See International Military Tribunal at Nuremberg, Case of the Major War Criminals (ibid., § 1890).
[18] See, e.g., the military manuals of Nigeria (ibid., § 1806) and United Kingdom (ibid., § 1809) and the legislation of Australia (ibid., § 1817), Bangladesh (ibid., § 1821), Belarus (ibid., § 1822), Ethiopia (ibid., § 1832), Israel (ibid., § 1835) and Ukraine (ibid., § 1852).
[19] See, e.g., Canada, Federal Court of Appeal, Rudolph and Minister of Employment and Immigration case (ibid., § 1859); Netherlands, Special Court of Cassation, Rohrig and Others case (ibid., § 1864); Poland, Supreme National Tribunal at Poznan, Greiser case (ibid., § 1865); United States, Military Tribunal at Nuremberg, List (Hostages Trial) case (ibid., § 1868), Milch case (ibid., § 1869), Krauch (I. G. Farben Trial) case (ibid., § 1870) and Krupp case (ibid., § 1871).
[20] Hague Regulations, Article 23(h) (ibid., § 1907).
[21] Third Geneva Convention, Article 130 (ibid., § 1910); Fourth Geneva Convention, Article 147 (ibid., § 1910).
[22] ICC Statute, Article 8(2)(a)(v) and (b)(xv) (ibid., § 1912).
[23] See, e.g., the military manuals of Argentina (ibid., § 1918), Australia (ibid., §§ 1919–1920), Belgium (ibid., § 1921), Benin (ibid., § 1922), Burkina Faso (ibid., § 1923), Cameroon (ibid., § 1924), Canada (ibid., § 1925), France (ibid., §§ 1926–1928), Germany (ibid., § 1929), Israel (ibid., § 1930), Italy (ibid., § 1931), Kenya (ibid., § 1932), Republic of Korea (ibid., § 1933), Mali (ibid., § 1934), Morocco (ibid., § 1935), Netherlands (ibid., § 1936), New Zealand (ibid., § 1937), Nigeria (ibid., §§ 1938–1939), Russian Federation (ibid., § 1940), Senegal (ibid., § 1941), South Africa (ibid., § 1942), Sweden (ibid., § 1943), Switzerland (ibid., § 1944), Togo (ibid., § 1945), United Kingdom (ibid., §§ 1946–1947) and United States (ibid., §§ 1948–1950).
[24] See, e.g., the legislation (ibid., §§ 1951–2032).