Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.

2823  Article 57 provides that prisoners of war who work for private persons remain entitled to the same protections as other prisoners of war under the responsibility of the Detaining Power, including the right to communicate with the prisoners’ representatives. There is therefore no change in the legal status of this category of prisoners of war as regards the principles which the Convention makes applicable to captivity. Prisoners working for private persons may not be subject to lesser protections.

2824  Some prisoners of war working for private employers may reside at the main camp and return to it every day after work. Others may be lodged at or near their place of work, thus constituting a labour detachment.[1] The latter group are therefore also covered by Article 56 on labour detachments.[2]

2825  Article 6 of the 1907 Hague Regulations recognized the possibility of prisoners of war being employed by private persons. However, it did not identify who was to be responsible for the treatment of such prisoners, providing simply that employment conditions be ‘settled in agreement with the military authorities’. Article 28 of the 1929 Geneva Convention on Prisoners of War subsequently made clear that it was the Detaining Power who had ‘entire responsibility for the maintenance, care, treatment and the payment of the wages of prisoners of war working for private individuals’. Notwithstanding this provision, during the Second World War thousands of prisoners of war were assigned to work for private employers in sometimes terrible conditions.[3]

2826  Participants at the Conference of Government Experts convened in 1947 elaborated on this provision. Besides confirming the principle already recognized in the 1929 Convention that the Detaining Power retains responsibility for prisoners of war working for private persons, they added two new elements. The first provided that the standard of treatment of prisoners of war working for private persons may not be inferior to that prescribed by the Convention, as ‘[e]xperience has frequently shown that squads of PoW detailed for work are often under the orders of employers who are completely ignorant of the Convention’.[4] The second addition concerned the right of prisoners of war working for private employers to remain in touch with the prisoners’ representatives of the camps to which they belong.[5]

2827  There were no lengthy discussions on the substance of this provision during the 17th International Conference of the Red Cross in Stockholm in 1948 and the Diplomatic Conference in 1949.[6] At the latter, the article was adopted unanimously.[7]

2828  The first sentence of Article 57(1) provides that the treatment of prisoners of war who work for private employers may not be inferior to the treatment which is provided for by the Convention. This provision reinforces the general principle that the Detaining Power must treat all prisoners of war alike.[8] The word ‘treatment’ refers to all the obligations owed to prisoners of war under the Convention.[9]

2829  The term ‘private persons’ covers all private employers, both natural persons and corporate entities, without making a distinction between the various types of legal persons that may exist within domestic legal systems. A prisoner working for a private corporation would thus be covered by this provision. The fact that a State owns shares in a corporation or partly owns a corporation does not mean that that corporation would not be classified as ‘private’ for the purpose of this provision. In any case, Article 57(1) equates prisoners of war working for private employers with other prisoners of war in terms of the minimum treatment they must receive. Irrespective of whether the prisoners work for a private employer or for the Detaining Power, their treatment must thus, at least, meet all the standards laid down in the Convention.

2830  While this provision serves as the minimum standard of treatment for prisoners working for private employers, it also allows for the possibility of treatment more favourable than that required by the Convention. The fact that prisoners who are employed by private persons may enjoy certain other advantages is no justification for depriving them of the rights owed to them under the Convention.

2831  Pursuant to Article 51, the working conditions of prisoners of war must be based on national standards governing working conditions for civilians employed in similar work, as long as these standards do not fall below the minimum requirements of the Convention.[10] These standards may, however, be more generous than the Convention.

2832  Private persons may, by agreement with the Detaining Power, assume certain duties in relation to ‘guarding and protecting’ the prisoners working for them. Because these prisoners remain entitled to all the protections of the Convention, such agreements may not, of course, be inconsistent with the terms of the Convention. As discussed below, the fact that the private persons assume certain responsibilities under the agreement does not relieve the Detaining Power of its ultimate responsibilities.[11] For example, a Detaining Power may require by agreement that private employers protect the prisoners of war working for them, but this would not absolve the Detaining Power of its obligations under Article 13(2).

2833  While a Detaining Power may delegate the task of guarding the prisoners, it cannot delegate its disciplinary functions. This is confirmed by Article 96(2), which provides that ‘disciplinary punishment may be ordered only by an officer with disciplinary powers in his capacity as camp commander, or by a responsible officer who replaces him or to whom he has delegated his disciplinary powers’. Therefore, if a prisoner commits an offence while at work for which a Detaining Power could impose a disciplinary punishment, the employer may inform the detaining authorities, and, if appropriate, the camp commander could then order a disciplinary punishment.[12]

2834  Similarly, the Detaining Power may not delegate to a private person any authorization for the use of weapons against prisoners of war.[13] Whatever the responsibility of private employers vis-à-vis the national authorities concerning the guarding of prisoners of war, such employers may not use weapons against prisoners, except in legitimate self-defence, which cannot arise solely from the fact that a prisoner attempts to escape. If the Detaining Power does not consider it sufficient to guard the prisoners without the use of weapons, it has two options: to assign military personnel to guard the prisoners or only assign to work for a civilian employer those prisoners who have been partially released on parole, pursuant to Article 21(2) and (3).[14]

2835  Under the second sentence of Article 57(1), the Detaining Power, the military authorities and the commander of the camp to which the prisoners of war belong remain entirely responsible for the maintenance, care, treatment and payment of working pay of prisoners employed by private persons. The provision thus reaffirms that responsibility for the welfare of the prisoners remains with the Detaining Power.[15] This responsibility exists notwithstanding any arrangements made with the private employer. It also does not in any way exclude any personal responsibility, whether by a private person or by, for example, a military commander, that may exist for acts committed against prisoners of war, nor the possibility of punishment for such acts.[16]

2836  The use of the labour of prisoners of war by private persons must be contingent on the agreement of the private persons to comply with the Convention. The Detaining Power must verify that such persons are fully familiar with the Convention’s requirements and that they are in a position to ensure compliance with them.[17]

2837  The Detaining Power must comply with its obligations under the Convention. If prisoners’ treatment by a private employer falls below the standards of the Convention, the Detaining Power must take corrective measures.[18] This may mean opting out of the agreement it has with the private employer. It may then only re-enter into an agreement with that employer, and allow the prisoners to work there again, if it has received sufficient guarantees that the prisoners will be granted the standard of treatment provided for by the Convention. If the abuses committed against the prisoners of war amount to grave breaches, the Detaining Power must search for, prosecute or extradite the alleged perpetrators.[19] If it is believed that the private employer is unable or unwilling to grant the prisoners of war the treatment required by the Convention, for example based on its past record, the Detaining Power must abstain from entering into an agreement or terminate an already existing agreement with that employer. These obligations arise from the Detaining Power’s responsibility for the prisoners’ welfare and are in line with its obligation to respect and ensure respect for the Convention under common Article 1.[20]

2838  Article 57(2) states that prisoners of war working for private employers have the right to remain in communication with the prisoners’ representatives in the camps on which they depend. The exercise of this right makes it easier for prisoners to register a complaint if they believe that their treatment falls below the standards of the Convention.[21] Therefore, any grievance between the private persons and prisoners that cannot be resolved between them can be discussed through the prisoners’ representative. This is without prejudice to other avenues which may be available to the prisoner based on the national legislation concerning the protection of labour which are applicable pursuant to Article 51(2).

2839  The right to remain in contact with the prisoners’ representative is also implicit in Article 57(1) as prisoners of war working for private persons retain their rights under the Convention. The reference in Article 57(2) can be understood as a reiteration of the broad obligation of paragraph 1, while recognizing the risk that this right will not be fulfilled because of the physical separation of the prisoners from their camp.

2840  Contact with the prisoners’ representatives may be maintained by correspondence (including modern means such as email), telephone or periodic meetings.[22] Article 81(2) expressly states that all material facilities, particularly a certain freedom of movement, must be granted to prisoners’ representatives.