Practice Related to Rule 95. Forced Labour
Italy’s Wartime Military Penal Code (1941) provides for the punishment of any member of the military who compels prisoners of war to carry out labour which is directly linked to military operations or which is especially prohibited by law or international conventions.
In its decision in the Ferrini case in 2004, Italy’s Supreme Court of Cassation stated:
7.2. As has been noted … the facts forming the basis of the claim for compensation made by the plaintiff consist of his capture and deportation to Germany to be used as a “non-voluntary worker” by German companies.
In line with Resolution 95-I of 11 December 1946, with which the United Nations General Assembly confirmed the principles of international law of the Charter and the judgment of the Nuremberg International Military Tribunal, both the deportation and subjection to forced labour should be included among “war crimes” and therefore among crimes governed by international law.
The Charter, signed in London on 8 August 1945, stated that the category of “war crimes” also includes “deportation to forced labour” (Article 6, letter (b)).
The decision from the Nuremberg Tribunal of 30 September 1946 noted that such conduct constituted a “flagrant” violation of the Convention pertaining to laws and customs of war on land, signed at the Hague on 18 October 1907, whose appended Regulations established that services could be demanded of “inhabitants (only) to meet the requirements of the occupation” (Article 52), therefore prohibiting any such services from being required for other purposes. The applicability of this provision was challenged by the defendants, which made reference to article 2 of the Convention, noting that the Convention had not been signed by any of the belligerent States. The objection was overruled by the Tribunal, noting that in 1939 (and therefore before the start of the conflict) the “rules” that it had established had been recognised and accepted by all civil nations and had therefore taken on the force and status of customary law.
7.3. The assimilation of deportation and the subjection of deportees to forced labour as an “international crime” is confirmed both by the principles of international law adopted in June 1950 by the United Nations International Law Commission (principle VI), and by the Resolutions of the United Nations Security Council of 25 May 1993, 927/93 and 8 November 1994 no. 955/94, through which were adopted, respectively, the Statute of the International Criminal Tribunal for the former Yugoslavia (Articles 2 and 5) and the Statute of the International Criminal Tribunal for Rwanda (Article 3). It is also confirmed by the Convention through which the International Criminal Court was established, signed in Rome in 17 July 1998 by 139 States (of which 120 ratified it) and which entered into force on 1 July 2002 (articles 7 and 8).
7.4. Even if the points made in the decision referred to in the previous paragraph are not taken into account, there can be no doubt that in this regard a norm of general customary international law has emerged for all components of the international community.
Italy’s IHL Manual (1991) forbids the compelling “of enemy soldiers to participate in military actions against their own country”.
The manual provides: “The inhabitants of an occupied territory … shall not be enrolled into the national armed forces, or … provide services directly linked to the war.”
The manual further states: “In no case shall civilian persons be compelled to carry out works which would oblige them to take part in military operations.”
Italy’s Law of War Decree (1938), as amended in 1992, provides: “It is prohibited to compel your enemies to participate in actions of war against their own country”.
The Law instructs soldiers: “You cannot implicate prisoners of war in work which would involve their participation in military operations.”
The Law also states: “Enemies cannot, in any case, even if they used to serve the State before the outbreak of hostilities, be compelled to enlist in the armed forces of the State, or to render services directly linked to the war.”
Italy’s Wartime Military Penal Code (1941) provides for the punishment of any member of the military who compels enemy nationals to take part in war actions against their own country.