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

ARTICLE 51 . -- WORKING CONDITIONS

GENERAL

Article 50 referred to just above shows the importance which the drafters of the new Convention attached to labour of prisoners of war and this was fully justified by the experience of the Second World War.

[p.270] Article 51 refers to the normal risks run by civilian workers (paragraph 3, second sentence); but Article 52 prohibits the employment of prisoners of war on labour of an unhealthy or dangerous nature unless they be volunteers (1). How can these two clauses be reconciled? During the discussions at the 1949 Diplomatic Conference, Article 51 was developed from the present Article 52 , that is to say from the notion of what is unhealthy and dangerous and what is not (with particular reference to mine clearance). The Conference decided, however, to separate the two provisions and to devote the present Article to general safeguards connected with the work authorized by Article 50 (2).

PARAGRAPH 1. -- GENERAL PRINCIPLE OF ASSIMILATION

This paragraph specifies a new rule. The 1929 Convention stated (3) that the quarters and food of prisoners of war must be equivalent to those provided for the depôt troops of the Detaining Power. The authors of the new Convention preferred to set specific standards and Article 26 (food) and 27 (clothing) make express reference to labour.

The working conditions to be given to prisoners of war are therefore to be based, not on the conditions granted to the depôt troops of the Detaining Power, but on those enjoyed by civilian workers. Because of the general requirement to work as stated in Article 49 , this rule applies to all prisoners; it might therefore be considered as a concession to action taken during the Second World War by some belligerents who "transformed" certain categories of prisoners of war into civilian workers; this was contrary to their obligations under the Convention. In our opinion, however, prisoners of war who are [p.271] employed on the land, in construction yards, etc., cannot avail themselves of the present provision in order to claim living conditions equivalent to that of farmers, workmen, etc., even if such accommodation has sometimes been given to them (4). On the other hand, the present provision must be taken as justifying equivalent working premises, wherever the work performed normally requires special arrangements there.

With regard to food and clothing, as we have already seen, Articles 26 and 27 contain a special clause relating to work. The principle of assimilation stated here is obviously included only in order to specify a minimum standard of treatment. It may not, however, prevent the application of the other provisions of the Convention, if, for instance, the standard of living of citizens of the Detaining Power is lower than the minimum standard required for the maintenance of prisoners of war (5).

The list (accommodation, food, clothing, equipment) is not exhaustive, as is clear from the inclusion of the word "especially".

Article 27 , relating to clothing, refers to special climatic conditions, but the reference at the end of the present paragraph is broader in scope since it concerns working conditions in general, that is to say both the kind of work and its duration.

PARAGRAPH 2. -- PROTECTION OF LABOUR, SAFETY

The requirement that the national legislation concerning the protection of labour and, more particularly, the regulations for the safety of workers must be applied to prisoners of war is a new provision, introduced at the 1949 Diplomatic Conference by a Soviet amendment (6). In no case may a provision such as this impede the full application of the Convention. The legislation concerning working conditions varies greatly from country to country and may not always necessarily correspond to the minimum standard required by [p.272] the Convention for prisoners of war at all times and in all circumstances. We have in mind particularly the various safeguards set forth in the present section as well as those in Article 13 (humane treatment of prisoners).

The same is true of the more specific question of safety. In this respect, some countries have very advanced legislation while in other States labour regulations are still at a very early stage of development (7).

PARAGRAPH 3. -- MEANS OF PROTECTION, RISKS

1. ' First sentence. -- Training and means of protection '

During the Second World War, prisoners of war were frequently assigned to work for which they were already trained (8). The requirement [p.273] that suitable means of protection should be provided seems to have been generally respected (9).

2. ' Second sentence. -- Risks '

Prisoners of war may be submitted to the "normal" risks run by civilian workers. This is a logical sequence of the principle of assimilation.

This proposal, which was presented at the 1949 Diplomatic Conference (10), gave rise to a number of objections in view of the fact that working conditions vary widely in different countries and the term normal risks" is consequently extremely vague. In the Far East, for instance, working conditions which are perfectly normal for the local population may be intolerable for European prisoners (10). The objection, however, concerns the qualifications of workers rather than the risks involved in the work. Article 51 as a whole is intended precisely to preclude the danger of inadequate preparation. On the basis of equal ability and equivalent equipment, its purpose is to ensure that prisoners are granted the same working conditions as the workers of the Detaining Power, it being understood that all manual labour involves a certain risk. A similar conclusion might be drawn from the preceding paragraph, and it was perhaps not necessary to make this express statement.

PARAGRAPH 4. -- DISCIPLINARY MEASURES

The disciplinary measures applicable to prisoners of war are listed in Article 89 . If prisoners refuse to work, they are liable to disciplinary [p.274] punishment, but it must be emphasized that the working conditions set forth in the present section represent a minimum standard which the Detaining Power must observe, and none of these safeguards may be withdrawn from prisoners of war by way of disciplinary punishment.

During the Second World War, by way of disciplinary punishment, certain belligerents extended the working hours for prisoners of war (11); this is absolutely prohibited (12). It is, however, not forbidden to withdraw certain advantages attached to the work to which they are assigned, by way of punishment. Thus, the Detaining Power is entitled to withhold from prisoners of war the extra food rations granted over and above the minimum specified in Article 26 , if they do not carry out the work required.

* (1) [(1) p.270] See the United Kingdom amendment; ' Final

Record of the Diplomatic Conference of Geneva of 1949, '

Vol. II-A, pp. 273-274. See also ' International Labour

Review, ' Montreal, July 1944, pp. 55-56: "The prohibition

contained in Article 32 of the Geneva Convention is

construed by the War Department to forbid the employment

of prisoners of war on jobs considered to be unhealthy or

dangerous either because of their inherent nature, or

because of the particular conditions under which they are

performed, or by reason of the individual's physical

unfitness or lack of technical skill. The particular task

is considered, not the industry as a whole. The specific

conditions attending each job are decisive. For example,

an otherwise dangerous task may be made safe by the use of

a proper appliance, and an otherwise safe job rendered

dangerous by the circumstances in which the work is

required to be done. Work which is dangerous for the

untrained may be safe for those whose training and

experience have made them adept in it.";

(2) [(2) p.270] For the discussions, see ' Final Record of the

Diplomatic Conference of Geneva of 1949, ' Vol. II-A, pp.

273-275, 345-346, 445-447, 470-471;

(3) [(3) p.270] In Article 10, para. 3, and Article 11, para.

1;

(4) [(1) p.271] In Great Britain, during the Second World War,

when prisoners of war were employed in agriculture, the

employer had to "supply healthy, comfortable and warm

premises, straw to fill palliasses, crockery, artificial

light, and facilities for washing and baths". See

' International Labour Review, ' February 1944, p. 192;

(5) [(2) p.271] In connection with the inadequacy of rations

issued to prisoners compelled to do heavy manual labour,

see ' Report of the International Committee of the Red

Cross on its activities during the Second World War, '

Vol, I, pp. 335-337;

(6) [(3) p.271] See ' Final Record of the Diplomatic

Conference of Geneva of 1949, ' Vol. II-A, p. 273;

(7) [(1) p.272] In this connection, see the various

Conventions adopted by the International Labour

Conference, and in particular: Convention No. 62

concerning Safety Provisions in the Building Industry,

which came into force on July 4, 1942; Recommendation No.

53, of June 3, 1937, concerning Safety Provisions in the

Building Industry; Recommendation No. 32, of May 30, 1929,

concerning Responsibility for the Protection of

Power-Driven Machinery; Convention No. 28, concerning the

Protection against Accidents of Workers employed in

loading or unloading Ships, which came into force on April

1, 1932, and was revised in 1932 (Convention No. 32 of

April 30, 1932); Convention No. 13 concerning the Use of

White Lead in Painting, which came into force on August

31, 1923. One may also recall, for reference purposes --

for only rarely do belligerents enlist in their armed

forces young persons below the age of fifteen years -- the

various Conventions concerning the minimum age for

admission to employment of certain kinds;

(8) [(2) p.272] In this connection, the following was the

procedure in the United States: "Before approving a work

project, an on-the-job determination is made in each

instance as to the suitability of the work, taking into

account such basic factors as the inherent nature of the

job, the actual working conditions, the prisoner's

physical fitness and training, and the informed advice of

persons familiar with the operations concerned. To ensure

further compliance with the standards prescribed by the

War Department, preliminary job training is given when

necessary; protective clothing and accessories, including

hard-toed shoes, goggles and gloves, are secured when

required; and the existence and adequacy of safety devices

are ascertained. Safety devices on prisoner-of-war

projects must be of a parity with the safeguards provided

for civilian labour. Periodic inspections of approved

projects are made to ensure that satisfactory conditions

are maintained at all times.

In accordance with the following standards, the War

Department has authorized the employment of prisoners of

war on the production of logs, pulpwood, chemical wood,

fuelwood and other forest products, and on the production

of lumber and wood products. Prisoners are selected for

work in these industries who are physically fit for the

work and who are qualified by civilian occupation and

training or by preliminary job training. With the advice

and assistance of the United States Forest Service, all

prisoners who work in these industries receive both before

and during such employment the necessary training in

American methods and procedures, in the use of tools and

equipment, and in safety measures particularly applicable

to their work. In addition to the prohibitions already

noted, prisoners may not be used in many types of work in

the logging industry, including swamp logging, stream

driving, booming or other occupations which present a

hazard of drowning, or of wetting clothing to the

detriment of health, power skidding and loading, and

broadcast slash burning. All prisoners are excluded from

the woods during periods of critical fire hazard." See

' International Labour Review, ' July 1944, pp. 56-57.

Similarly, Germany always endeavoured to employ prisoners

of war in their civilian occupations and at the beginning

of 1941 it was estimated that almost 80 per cent of the

prisoners taken on the western front had been so

reclassified. See ' International Labour Review, '

September 1943, p. 320;

(9) [(1) p.273] In Great Britain, for instance, it was

expressly laid down that employers were to provide "any

special working kit". Prisoners working on wet land

drainage were, whenever possible, provided with rubber

boots. See ' International Labour Review, February 1944 ',

p. 192;

(10) [(2) p.273] See ' Final Record of the Diplomatic

Conference of Geneva of 1949, ' Vol. II-A, p. 274;

(11) [(1) p.274] See BRETONNI RE, op. cit., pp. 209-210;

(12) [(2) p.274] And moreover, it was prohibited by the 1929

Convention (Article 32);