United States of America
Practice Related to Rule 95. Forced Labour
The US Field Manual (1956) states that compelling prisoners of war and civilians to perform prohibited labour is a war crime.
The US Air Force Pamphlet (1976) restates Article 51 of the 1949 Geneva Convention IV and provides that “wilfully compelling civilians or PWs [prisoners of war] to perform prohibited labour” is an act involving individual criminal responsibility.
The US Instructor’s Guide (1985) states:
In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … compelling prisoners of war to perform prohibited labor such as removing mines or digging defensive positions [and] compelling civilians to perform prohibited labor such as carrying mortars.
The US Naval Handbook (1995) provides that it is prohibited to subject prisoners of war to “unhealthy, dangerous, or otherwise prohibited labour”.
The manual adds that imposing “forced labor” on civilian inhabitants of occupied territory is a war crime.
The US Naval Handbook (2007) states that examples of war crimes that could be considered as grave breaches of the 1949 Geneva Conventions include:
1. Offenses against prisoners of war, including … unhealthy, dangerous, or otherwise prohibited labor …
2. Offenses against civilian inhabitants of occupied territory, including … forced labor.
In its judgement in the Pohl case in 1947, the US Military Tribunal at Nuremberg, in considering charges of war crimes and crimes against humanity, held:
Slavery may exist even without torture. Slaves may be well fed, well clothed, and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint. We might eliminate all proof of ill-treatment, overlook the starvation, beatings, and other barbarous acts, but the admitted fact of slavery – compulsory uncompensated labour – would still remain. There is no such thing as benevolent slavery. Involuntary servitude, even if tempered by humane treatment, is still slavery.
In the List case (The Hostages Trial)
in 1948, the US Military Tribunal at Nuremberg found the defendants guilty of committing acts of “deportation to slave labour of prisoners of war and members of the civilian populations in territories occupied by the German Armed Forces”.
In the Milch case
in 1947, the US Military Tribunal at Nuremberg found the accused guilty of war crimes in that he was responsible for the slave labour and deportation to slave labour of the civilian populations of countries and territories occupied by the German armed forces, and in the enslavement, deportation, ill-treatment and terrorization of such persons. The Tribunal found the accused guilty of crimes against humanity for the same war crimes insofar as they related to foreign nationals. Judge Fitzroy D Phillips referred to the definition of crimes in the 1945 Allied Control Council Law No. 10 and stated in his concurring opinion that the law treats as separate crimes and different types of crime deportation to slave labour (as a war crime) and enslavement (as a crime against humanity).
In its judgement in the Krauch case (The I.G. Farben Trial) in 1948, the US Military Tribunal at Nuremberg, without attempting to define what constituted “work in direct relation to war operations” within the meaning of the 1929 Geneva POW Convention, held that the use of prisoners of war in coal mines under the existing conditions amounted to a violation of the Convention and, therefore, was a war crime. With regard to the deportation of the civilian inhabitants of occupied territories to slave labour, the Tribunal held:
The use of concentration camp labour and forced foreign workers at Auschwitz, with the initiative displayed by the officials of Farben in the procurement and utilization of such labour, is a crime against humanity and, to the extent that non-German nationals were involved, also a war crime, to which the slave labour programme of the Reich will not warrant the defence of necessity.
In its judgement in the Krupp case
in 1948, the US Military Tribunal at Nuremberg referred to the statement of the law applicable to the deportation to slave labour and enslavement made by Judge Phillips in the Milch case
and found the accused guilty of forcing French prisoners of war to work in the armament industry.
In its judgement in the Von Leeb case (The German High Command Trial)
in 1948, the US Military Tribunal at Nuremberg found that forcing the civilian inhabitants of occupied territories to construct fortifications was prohibited work.
In a report submitted in 1992 pursuant to paragraph 5 of UN Security Council Resolution 771 (1992) on grave breaches of the 1949 Geneva Convention IV committed in the former Yugoslavia, the United States described acts of hard and forced labour perpetrated by the parties to the conflict.
In a concurrent resolution adopted in 2000, the US Congress expressed its sense concerning the war crimes committed by the Japanese military during the Second World War, in particular the enslavement of millions of Koreans.
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris
of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].”
The US Field Manual (1956) provides that compelling a prisoner of war or a protected person to serve in the forces of a hostile power is a grave breach of the 1949 Geneva Conventions.
The US Air Force Pamphlet (1976) recalls Article 23 of the 1907 Hague Regulations, which “forbids compelling nationals of the hostile party to take part in the operations of war directed against their own country”, and Article 45 of the 1907 Hague Regulations, which “forbids compelling the inhabitants of occupied territory to swear allegiance to the hostile power”. The Pamphlet also refers to Article 51 of the 1949 Geneva Convention IV and states: “Compulsory military service by protected persons in the armed forces of the occupant is prohibited.” It adds: “Wilfully compelling civilians or PWs [prisoners of war] to perform prohibited labour” is an act involving individual criminal responsibility.”
The US Air Force Commander’s Handbook (1980): “A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country.”
Under the US War Crimes Act (1996), violations of common Article 3 of the 1949 Geneva Conventions, grave breaches of the 1949 Geneva Conventions and violations of Article 23 of the 1907 Hague Regulations are war crimes.
In its judgement in the Weizsaecker case (The Ministries Trial)
in 1949, the US Military Tribunal at Nuremberg held that “pressure or coercion to compel [prisoners of war] to enter into the armed forces obviously violated international law” and that the conscription of foreign nationals into the armed forces of a belligerent was a crime against humanity.
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated: “Compelling hostages to serve in the armed forces of Iraq constitute Grave Breaches (that is, major violations of the law of war) under Article 147 [of the 1949 Geneva Convention IV].”
The report also listed some specific Iraqi war crimes including “compelling Kuwaiti and third country nationals to serve in the armed forces of Iraq, in violation of Articles 51 and 147 [of the 1949 Geneva Convention IV]”.