1 Davis, “The Prisoner of War,” 7 A.J.I.L. 521, 523 (1913).

2 32 Stat. 1803; U. S. Treaty Series, No. 403; 1 A.J.I.L. Supp. 129 (1907).

3 The Detaining Power is the state which holds captured members of the enemy armed forces in a prisoner-of-war status. The Power in whose armed forces they were serving at the time of capture is known as the “Power upon which they depend.”

4 Part of Art. 76 of Professor Francis Lieber 's famous General Orders No. 100, April 24, 1863, “Instructions for the Government of the Armies of the United States in the Field,” had dealt with this subject unilaterally; and provisions with respect thereto had likewise been included in Art. 25 of the Declaration drafted at the Brussels Conference of 1874 (2 U. S. Foreign Eelations (1875) 1017; 1 A.J.I.L. Supp. 96 (1907)), and in Arts. 71 and 72 of the “Oxford Manual” drafted by the Institute of International Law in 1880 (Annuaire de l'Institut de Droit International, 1881-1882). While these efforts unquestionably influenced in material degree the decisions subsequently reached at the international level, none of them constituted actual international legislation.

5 Art. 6 there of (cited note 2 above) reads: “The State may utilise the labour of prisoners of war according to their rank and aptitude. Their tasks shall not be excessive, and shall have nothing to do with military operations. “Prisoners may be authorised to work for the public service, for private persons, or on their own account. “Work done for the State shall be paid for according to the tariffs in force for soldiers of the national army employed on similar tasks. “When the work is for other branches of the public service or for private persons, the conditions shall be settled in agreement with the military authorities. “The wages of the prisoners shall go towards improving their position, and the balance shall be paid them at the time of their release, after deducting the cost of their maintenence.

6 36 Stat. 2277; U. S. Treaty Series, No. 539; 2 A.J.I.L. Supp. 90 (1908).

7 47 Stat. 2021; TJ. S. Treaty Series, No. 846; 27 A.J.I.L. Supp. 59 (1933).

8 6U.S. Treaties 3316; T.I.A.S., No. 3364; 75 TJ. N. Treaty Series 135 (1:972); 47 A.J.I.L. Supp. 119 (1953).

9 Arts. 49 through 57 and Art. 62 are the basic articles of the 1949 Convention relating to the subject of prisoner-of-war labor. Mention will also be made of a number of other articles which touch on the subject.

10 The author does not believe in the inevitability of major wars in the future, but he does believe, as did the 59 states which sent representatives to the Diplomatic Conference in Geneva in 1949 and the 87 states which have since either ratified or adhered to the four Conventions for the Protection of War Victims produced at that Conference, that, human nature being what it is, the outlawing of war and the existence of a state of peace are insufficient reasons for the apathy and attitude of complete disregard of the development of the law of war which has characterized many experts in the field of international law. Fortunately, there is evidence that a change in this attitude has occurred in recent years.

11 A general cartel governing the exchange of prisoners of war was entered into in 1862 (the Dix-Hill Cartel, July 22, 1862, War of the Bebellion, Series II, Vol. IV, p.266 (1899)), but it was not observed to any great degree by either side. Lewis and Mewha, History of Prisoner of War Utilization by the United States Army, 1776-1945 (hereinafter referred to as Lewis, History), pp. 29-30 (1955).

12 Lewis, History 27, 41. For a vivid fictional, but factually accurate, picture of this waste of manpower in the South, with its resulting evils to the prisoners of war themselves, see Kantor, Andersonville (1955).

13 Note 4 above.

14 Lewis, History 37, 38-39.

15 Preamble, Declaration of Brussels, note 4 above.

16 Note 4 above.

17 Belfield, “ The Treatment of Prisoners of War,’” 9 Transactions of the Grotius Society 131 (1924).

18 Lewis, History 57. This was not the case in France, where the American Expeditionary Force had started planning for prisoner-of-war utilization even before any were captured, the established policy there being that all except officers would be compelled to work. Ibid,. 59-62.

19 See, for example, the Final Act of the Conference of Copenhagen, executed by Austria-Hungary, Germany, Rumania, and Bussia on Nov. 2, 1917 (photostatic copy on file in The Army Library, Washington, D. C.); the Agreement between the British and Turkish Governments respecting Prisoners of War and Civilians, executed at Bern on Dec. 28, 1917 (111 Brit, and For. State Papers 557); the Agreement between France and Germany concerning Prisoners of War, executed at Bern on April 26, 1918 {ibid. 713) ; and the Agreement between the United States of America and Germany Concerning Prisoners of War, Sanitary Personnel, and Civilians, executed at Bern on Nov. 11, 1918 (U. S. Foreign Eelations, 1918, Supp. 2, p. 103; 13 A.J.I.L. Supp. 1 (1919)). This latter Agreement contained a section of eleven articles (41-51) relating to prisonerof- war labor.

20 14 A.J.I.L. 95, 115 (1920); History of the United Nations War Crimes Commission 35 (1948).

21 Note 7 above. The ‘ ‘ Final Eeport of the Treatment of Prisoners of War Committee,” published in 30 International Law Association Eeports 236 (1921), had contained a set of “Proposed International Eegulations for the Treatment of Prisoners of War.”

22 As the TJ.S.S.R. was not a party to this Convention, it considered that its relations with Germany and the latter's allies on prisoner-of-war matters were governed by the Fourth Hague Convention of 1907. Report of the International Committee of the Red Cross on its Activities during the Seeond World War (hereinafter referred to as ICRC Report), Vol. I , p. 412. (No mention was made by the TJ.S.S.R. of the situation created by the si omnes clause contained in that Convention.) Japan, which was likewise not a party to the 1929 Convention, nevertheless announced its intention to apply that Convention mutatis mutandis on a basis of reciprocity. Ibid. 443.

23 The international instruments regulating the treatment of prisoners of war were drawn up on the basis of the experience gained in the war of 1914-1918 and did not contemplate the wholesale and systematic use which many countries have since made of captive labor.” Anon., “ T h e Conditions of Employment of Prisoners of War: The Geneva Convention of 1929 and its Application,” 47 International Labour Review 169 (Feb., 1943).

24 In February, 1944, only 60% of the prisoners of war in the United States were being employed; by April, 1945, that figure had increased to more than 93%. Lewis, History 125. In Germany “ t h e mobilisation of prisoner labour has been organised as part of the general mobilisation of man-power for the execution of the economic programme.” Anon., “The Employment of Prisoners of War in Germany,” 48 International Labour Review 316, 318 (Sept., 1943).

25 Thus, it has been stated that the improved feeding of Russian prisoners of war by the Nazis in 1942 was instituted in order to obtain an adequate labor performance, and “must be assessed as a tactical sacrifice of dogma for the sake of short-range benefits to the warring Reich.” Dallin, German Rule in Russia 423 (1957). In the Milch Case (IT. S. v. Erhard Milch), 2 Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (hereinafter referred to as Trials) 782, the Military Tribunal quoted a 1943 statement of Himmler who, in speaking of the Russian prisoners of war captured early in the war, deplored the fact that at that time the Germans “ d i d not value the mass of humanity as we value it today, as raw material, as labor.”

26 ′’ The policy of the Japanese Government was to use prisoners of war and civilian internees to do work directly related to war operations.” Judgment of the International Military Tribunal for the Far East 1082 (mimeo., 1948).

27 Lewis, History 199.

28 Fairchild and Grossman, The Army and Industrial Manpower 194 (1959).

29 1 ICEC Eeport 327. See also Pictet, Commentary on the Geneva Convention relative to the Treatment of Prisoners of War (hereinafter referred to as Pictet, Commentary) 260 (1960); Flory, Prisoners of War 71 (1942); Girard-Claudon, Les prisonniers de guerre en face de devolution de la guerre 151 (unpublished thesis, Universite de Dijon, 1949); Feilehenfeld, Prisoners of War 47 (1948). Art. 49 of the 1949 Convention specifically states that the utilization of prisoner-of-war labor is “with a view particularly to maintaining them in a good state of physical and mental health.”

30 During World War I I the Nazi use as miners of prisoners of war who did not have the necessary physical aptitude for this type of work and who were inexperienced was a constant source of trouble. The I. G. Farben Case (U. S. v. Kraueh), 8 Trials 1187. The ICEC Delegate in Berlin finally proposed to the German High Command that prisoners of war over 45 years of age be exempted from working as miners, but this proposal was rejected by the Germans on the ground that the 1929 Convention made no reference to age as a criterion of physical qualification for compulsory labor. 1 ICBC Eeport 329-331. This situation has now been rectified.

31 The procedures followed in the United States during World War I I were as follows: “Prisoners of war … are given a complete physical examination upon their first arrival at a prisoner of war camp. At least once a month thereafter, they are inspected by a medical officer. Prisoners are classified by the attending medical officer according to their ability to work, as follows: (a) heavy work; (b) light work; (c) sick, or otherwise incapacitated—no work. Employable prisoners perform work only when the job is commensurate with their physical condition.” MacKnight, “The Employment ,of Prisoners of War in the United States,” 50 International Labour Review 47 (July, 1944). Major MacKnight's statement was based, at least in part, upon the U. S. War Department's Prisoner of War Circular No. 1, Regulations Governing Prisoners of War, sec. 87 (Sept., 1943), which was, in turn, taken from Art. 48 of the 1918 TT. S.German Agreement, note 19 above.

32 Art. 31 speaks of “medical inspections,” while Art. 55 uses the term “medical examinations.” (A similar variation is found in the French version of the 1949 Convention.) It does not appear that any substantive difference was intended by the draftsmen, particularly inasmuch as Art. 31 considerably amplifies the term “inspect i o n , “ making it clear that much more than a mere visual inspection was intended.

33 P i c t e t , Commentary 289. Captured medical service personnel are not prisoners of war and are entitled to be repatriated as soon as possible. Arts. 28 and 30, 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. 6 U. S. Treaties 3114; T.I.A.S., No. 3362; 75 U. N. Treaty Series 31 (1:970). However, the Detaining Power may temporarily retain some of these individuals to provide needed medical attention to prisoners of war, primarily those belonging to the armed forces of the Power to which the medical service personnel themselves belong (Art. 33). When so employed they are known as “retained medical personnel.

34 Similarly, the function of determining whether a prisoner of war should be repatriated for medical reasons is not allocated to the retained medical personnel, but is the responsibility of the medical personnel of the Detaining Power and of the Mixed Medical Commissions (Art. 112).

35 During the Eusso-Japanese War (1904-1905) the Japanese exempted officer prisoners of war from the requirement to work. Ariga, La guerre russo-japonaise au point de vue de droit international 114 (1907). But compare Takahashi, who stated that Japan did not impose labor on any Eussian prisoners of war! International Law Applied to the Eusso-Japanese War 125 (1908).

36 The ICRC states that 26,000 German non-commissioned officer prisoners of war, whose identity papers had been taken from them in England, were compelled to work while interned in the United States because of their inability to prove their status. 1 ICEC Eeport 339. The German General Staff urged German non-commissioned officer prisoners of war to work, probably in order to avoid the deterioration, both physical and mental, which comes to the completely inactive prisoners of war. Ibid.

37 Early in 1945 the U. S. military authorities discovered that many German prisoners of war had false documents purporting to prove non-commissioned status. They thereupon required all German prisoners of war who claimed to be non-commissioned officers to produce proof of such status in the form of a “soldbuch” or other official document. Thousands were unable to do BO and were reclassified as privates. A Brief History of the Office of the Provost Marshal General, World War II, 516 (mimeo., 1946). To some extent these may have been the same prisoners of war referred to in the preceding note.

38 It appears to the writer that the U. S. Army has created problems for itself in this respect by the establishment of a “specialist” classification of enlisted men who, although grouped in the same statutory grades as non-commissioned officers, are specifically stated not to be such. TJ. 8. Army Eegulations 600-201, June 20, 1956. The strict interpretation of the term “non-eommissioned officers” contemplated by the U.S.S.E. is evidenced by its expressed desire to limit non-commissioned officer labor exemption privileges to regular army (“re-enlisted“) personnel. Final Record of the Diplomatic Conference of Geneva of 1949 (hereinafter referred to as Final Eecord), Vol. IIA, pp. 348, 361, 566.

39 Pictet, Commentary 262.

40 See. 59, German Eegulations, Compilation of Orders No. 13, May 16, 1942. The apparent magnanimity of this provision is somewhat nullified by the last two sentences thereof, which indicate that “ t h e employment of British non-commissioned officers has resulted in so many difficulties that the latter have by far outweighed the advantages. The danger of sabotage, too, has been considerably increased thereby.”

41 U. 8. War Department Technical Manual 19-500, Enemy Prisoners of War, Oct. 5, 1944, Ch. 5, See. I , par. 4c. A draft revision of this Manual, which is currently under consideration in the Department of the Army, provides that “ a non-commissioned officer may, at any time, revoke his voluntary request for work.”

42 Pictet, Commentary, loc. cit. The Commentary continues with the statement that “during the Second World War, however, prisoners of war were sometimes more or less compelled to sign a contract for an indefinite period which bound them throughout their captivity; that would be absolutely contrary to the present provision.” The present writer confesses himself unable to identify the portion of Art. 49 of the 1949 Convention which so provides, or to determine wherein, in this respect, it differs from the provisions of the 1929 Convention.

43 ICEC Report 337-338.

44 Note 33 above.

45 Statement of Mr. William H. Gardner (U.K.), IIA Final Record 442. In a statement in a similar vein, Brig. Gen. Joseph V. Dillon, then the Provost Marshal General of the U. S. Air Force, and a member of the IT. S. Delegation at Geneva, later wrote: “Perhaps no section of the Convention gave rise to more debate and expressions of differences of view than that dealing with ‘Labour of Prisoners of War.’ At the outset, it appeared that all that could be agreed upon was the fact that the 1929 treatment of the subject was inadequate and ambiguous.” “The Genesis of the 1949 Convention Relative to the Treatment of Prisoners of W a r , “ 5 Miami Law Quarterly 40, 51 (1950).

46 Baxter, Book Review, 50 A.J.I.L. 979 (1956).

47 A r t . 25, Declaration of the Conference of Brussels (1874), note 4 above; Art. 71, “Oxford Manual” (1880), note 4 above.

48 Art. 6, Second Hague Convention of 1899, notes 2 and 5 above. The only changes incorporated in Art. 6, Fourth Hague Convention of 1907, note 6 above, were periphrastic in nature.

49 “What constituted a direct relation with war operation was a matter of personal opinion or, indeed, guess.” Dillon, loo. cit. note 45 above, at 52. Similarly, in the I. G. Farben Case (U. S. v. Carl Krauch), 7 Trials 1, the Military Tribunal said (8 ibid. 1189): “To attempt a general statement in definition or clarification of the term 'direct relation to war operations' would be to enter a field that the writers and students of international law have found highly controversial… . ”

50 Flory, “Vers une nouvelle conception du prisonnier de guerre?” 58 Eevue generate de droit international public 58 (1954); Janner, La Puissance protectrice en droit international d'apres les experiences faites par la Suisse pendant la seconde guerre mondiale 54 (1948; original in German); Feilchenfeld, op. cit. note 29 above, at 13.

51 The United States found it necessary to establish a Prisoner of War Employment Eeview Board, which was called upon to make a great number of decisions in this area. Mason, “German Prisoners of War in the United States,” 39 A.J.I.L. 198 (1945). Postwar researchers have collated lists which include literally hundreds of occupations as to which specific decisions were made. Lewis, History 146-147, 166-167, 203; Tollefson, “Enemy Prisoners of War,” 32 Iowa Law Eeview 51, note on 62 (1946).

52 Draft Eevised or New Conventions for the Protection of War Victims 82-83 (Art. 42) (XVIIth International Eed Cross Conference, Stockholm, 1948).

53 “ … work which is normally required for the feeding, sheltering, clothing, transportation and health of human beings … “ 1 Final Eecord 83. It is of interest that this was substantially the policy which had been followed by the United States in interpreting the provisions of Art. 31 of the 1929 Convention. MacKnight, loc. cit. note 31 above, at 54.

54 Remarks and Proposals submitted by the International Committee of the Eed Cross (Diplomatic Conference, Geneva, 1949) 51-52.

55 Art. 50 reads: “Besides work connected with camp administration, installation or maintenance, prisoners of war may be compelled to do only such work as is included in the following classes: (a) agriculture; (b) industries connected with the production or the extraction of raw materials, and manufacturing industries, with the exception of metallurgical, machinery and chemical industries; public works and building operations which have no military character or purpose; (c) transport and handling of stores which are not military in character or purpose; (d) commercial business, and arts and crafts; (e) domestic service; (/) public utility services having no military character or purpose. “Should the above provisions be infringed, prisoners of war shall be allowed to exercise their right of complaint, in conformity with Article 78.”

56 In its Report to the Plenary Assembly of the Diplomatic Conference, Committee II (Prisoners of War) characterized this article as one which ‘ ‘ clarifies [it] by a limitative enumeration of the categories of work which prisoners may be required to do.” 2A Pinal Record 566. On the contrary, the expression “military character and purpose” used in subpars. b, c, and /, of Art. 50, is almost indefinable. As to these subparagraphs, the basic problem, which existed when the words “war operations” were used, remains unchanged. Pictet, Commentary 266.

57 The difficulties experienced in selecting the appropriate verb to be used in the opening sentence of Art. 50 were typical of the over-all drafting problem. The following terms were contained in or suggested for the various texts, beginning with the original ICRC draft, which was submitted to the 1948 Stockholm Conference, and continuing chronologically through the various drafts, amendments, and discussions, until final approval of the article by the Plenary Assembly: “obliged t o “ (note 52 above); “ r e quired t o “ (1 Pinal Eecord 83); “obliged t o “ (3 ibid. 70); “employed o n “ (2A ibid. 272); “engaged i n “ (ibid, at 470); “obliged t o “ (ibid, at 344); “compelled t o “ (2B ibid. 176); and “compelled t o “ (Art. 50, note 55 above).

58 Par. 77, Prisoner of War Circular No. 1, note 31 above. Par. 78 of the same Circular contained the following informative enumeration: “78. Labor in class one is primarily for the benefit of prisoners. It need not be confined to the prisoner of war camp or to the camp area. Class one labor includes: “a. That which is necessary for the maintenance or repair of the prisoner of war camp compounds including barracks, roads, walks, sewers, sanitary facilities, water pipes, and fences. ’ ‘ b Labor incident to improving or providing for the comfort or health of prisoners, including work connected with the kitchens, canteens, fuel, garbage disposal, hospitals and camp dispensaries. ’ ‘ c. “Work within the respective prisoner companies as cooks, cook's helpers, tailors, cobblers, barbers, clerks and other persons connected with the interior economy of their companies. In apportioning work, consideration will be given by the company commander to the education, occupation, or profession of the prisoner.”

59 The utilization of prisoner-of-war labor for the operation and maintenance of military installations occupied by the armed forces of the Detaining Power does not fall within the classification of camp administration referred to in the Convention. While many such uses would probably come within the category of domestic services (cooks, cook's helpers, waiters, kitchen police, etc.), which are authorized, it would seem that many others are no longer permitted. (Employment in the Prisoner of War Information Bureau maintained by the Detaining Power is specifically authorized by Art. 122.)

60 Fairehild, op. cit. note 28 above, at 190. See also MacKnight, loc. cit. note 31 above, at 57.

61 In the spring of 1940 more than 90% of the Polish prisoners of war held by the Germans were employed in agriculture; and while this figure later dropped considerably, it always remained extremely high. Anon., “The Employment of Prisoners of War in Germany,” note 24 above, at 317. In the United States, even though more than 50% of the man-months worked in industry by prisoners of war were performed in agricultural work, the demands for such labor could never be fully met. Lewis, History 125-126. An exception to the foregoing occurred in Canada, where the great majority of prisoners of war were used in the lumbering industry. Anon., “The Employment of Prisoners of War in Canada,” 51 International Labour Eeview 335, 337 (March, 1945).

62 Pictet, Commentary 266. It is interesting to note that the enumeration originally prepared by the ICKC (note 52 above), which was ultimately restored to the Convention at the behest of the TJ. K. Delegation to the Conference, did not include agriculture as a separate item. A member of the U. S. Delegation urged that it be specifically listed, and his proposal was adopted without discussion or opposition. 2A Final Record 470.

63 1 ICRC Eeport 329. For a specific example, see note 30 above. Unfortunately, little data is available concerning the activities of Protecting Powers in this regard, as they rarely publish any details of their wartime activities, even after the conclusion of peace (Levie, ‘ ‘ Prisoners of War and the Protecting Power,'’ 55 A.J.I.L. 374, 378 (1961)). An unofficial report of Swiss activities as a Protecting Power during World War I I is contained in Janner, note 50 above.

64 The source of some of the wording and punctuation of subpar. (6) of Art. 50 is somewhat obscure. As submitted by Committee I I (Prisoners of War) to the Plenary Assembly of the Diplomatic Conference, it read: ” … manufacturing industries, with the exception of iron and steel, machinery and chemical industries and of public works, and building operations which have a military character or purpose” (2A Final Eecord 585-586). Although this portion of Art. 50 was approved by the Plenary Assembly without amendment, in the Final Act of the Conference (which is, of course, the official, signed version of the Convention), the same provision reads: ” … manufacturing industries, with the exception of metallurgical, machinery and chemical industries; public works and building operations which have no military character or purpose” (1 Final Record 254). These changes in wording and punctuation (made in the English version only) represent a considerable clarification and should eliminate many disputes which might otherwise have arisen. However, it would be interesting to know their origin!

65 Lewis, History 77. After World War I I one of the U. S. Military Tribunals at Nuernberg held: ” … as a matter of law that it is illegal to use prisoners of war in armament factories and factories engaged in the manufacture of airplanes for use in the war effort.” The Milch Case (U. S. v. Erhard Milch), note 25 above, at 867. The decision would, in part, probably have been otherwise had the defense been able to show that the airplanes were intended exclusively for civilian use.

66 Pictet, Commentary 268-269.

67 As indicated in note 57 above, the decision to use the words ‘ ‘ compelled t o “ in the first sentence of Art. 50 was reached only after the consideration and rejection of numerous alternatives. Words such as “prisoners of war may only be employed i n” were strongly urged because they would preclude the Detaining Power from using pressure to induce prisoners of war to “volunteer” for work which they could not be compelled to do (2A Final Record 343); and words such as “prisoners of war may be obliged to do only” (“compelled to do only“) were just as strongly urged on the very ground that the alternative proposal would preclude volunteering (ibid, at 342). The proponents of the latter position were successful in having their phraseology accepted by the Plenary Assembly.

68 See Levie, ‘ ‘ Penal Sanctions for Maltreatment of Prisoners of War,'’ 56 A.J.I.L. 433, at 450, note 71 (1962). The ICEC appears to be inconsistent in asserting that the prohibition against prisoners of war working in these industries is absolute (Pictet, Commentary 268), but that prisoners of war may volunteer to handle stores which are military in character or purpose (ibid, at 278), work which the Detaining Power is likewise prohibited from compelling prisoners of war to do. The statement that the absolute prohibition of Art. 7 against the voluntary renunciation of rights by prisoners of war was necessary “because it is difficult, if not impossible, to prove the existence of duress or pressure” (ibid, at 89) is, of course, equally applicable to all of the prohibitions of Art. 50, but the Diplomatic Conference obviously elected to take a calculated risk in this regard insofar as prisoner-of-war labor is concerned.

69 In his article (note 45 above, at p. 52), General Dillon showed considerable restraint when he said merely that many delegations believed that the phrase “will create some difficulty in future interpretations.'’ He had been much more vehement at the Diplomatic Conference! (2A Pinal Record 342-343.)

70 The test is whether it is intended for military use, and not whether it is intended for use by the military. A bowling alley or a tennis court or a clubhouse might be intended, perhaps exclusively, for use by the military, but such structures certainly have no military use per se and, therefore, they do not have a “military purpose.”

71 The foregoing position closely resembles the legal interpretation of the phrase in question proposed by the present author and approved by The Judge Advocate General of the United States Army in an unpublished opinion written in 1955 (JAGW 1955/88). I t differs from the ICEC position, which is that “everything which is commanded and regulated by the military authority is of a military character, in contrast to what is commanded and regulated by the civil authorities.” Pictet, Commentary 267.

72 Flory, op. cit. note 29 above, at 74.

73 The High Command Case (U. S. v. Wilhelm von Leeb), 11 Trials 534. No such uncertainty existed in the minds of the members of the Tribunal with respect to the use of prisoners of war in the construction of combat zone field fortifications. Ibid. 538.

74 Lewis, History 89.

75 See. 738, German Regulations, Compilation of Orders No. 39, July 15, 1944.

76 Pictet, Commentary 267-268, where a distinction is justifiably drawn between clearing debris from city streets and clearing it from an important defile used only for military purposes.

77 In Pictet, Commentary 268, the statement is made that these public utility services have a military character “ i n sectors where they are under military administration.” The present writer finds it impossible to agree that the nature of the administration of these public services can determine their inherent character. If this were possible, then public utility services administered by the military authorities in an occupied tlTGctj ELS is normally the case, would be military in character, even though originally constructed for and then being used almost exclusively by the civilian population of the occupied territory.

78 Lewis, History 112; MacKnight, loe. cit. note 31 above, at 55. The latter continues with the following statement: ” … 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 i t . “ The third criterion mentioned in the text has already been discussed at pp. 324-326 above.

79 In determining whether an industry was of a nature to require special study, The Judge Advocate General of the “United States Army rendered the following opinion in 1943: ” … If in particular industries the frequency of disabling injuries per million man-hours is: “a. Below 28.0—prisoner-of-war labor is generally available therein; ’ ‘b . Between 28.0 and 35.0—the industry should be specifically studied, from the point of view of hazard, before assigning prisoner-of-war labor therein; ” c. Over 35.0—prisoner-of-war labor is unavailable, except for the particular work therein which is not dangerous… . ”

80 Those interested in the history and background of this problem and the debate at the Diplomatic Conference are referred to the following sources: 1 ICEO Eeport 334; 3 Final Record 70-71; 2A ibid. 272-273, 443-444, 345; 2B ibid. 290-295, 298-299; Pictet, Commentary 277-278.

81 ‘ ‘ This rule has the advantage of being clear and easy to apply. The reference is to objective rules enforced by that Power and not the personal feelings of any individual member of the armed forces. The essential thing is that the prisoner concerned may not be the laughing-stock of those around him.” Pictet, Commentary 277.

82 Although prohibitions against the use of prisoners of war on humiliating work were contained in Art. 25 of the Declaration of Brussels and Art. 71 of the Oxford Manual (note 4 above), there was no similar provision in the 1929 Convention. Nevertheless, during World War I I the United States recognized the prohibition against the employment of prisoners of war on degrading or menial work as a “well settled rule of the customary law of nations” (MacKnight, loc. cit. note 31 above, at 54), and even prohibited their employment as orderlies for other than their own officers (Lewis, History 113). While this latter type of work is prohibited for personnel of the U. S. Army, it is believed that the prohibition is based upon policy rather than upon the “humiliating” nature of an orderly's functions. Apparently this is settled policy for the United States, as the same rule is found in the draft of the new directive on the subject of prisonerof- war labor which is being prepared by the XJ. S. Army.

83 In addition, Art. 25 prescribes specific minimum standards for accommodations; Art. 26 provides for such additional rations as may be necessary because of the nature of the labor on which the prisoners of war are employed; and Art. 27 provides that prisoners of war shall receive clothing appropriate to the work to which they are assigned. It has been asserted that not only must the living conditions of prisoner-of-war laborers not be inferior to those of local nationals, but also that this provision may not “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.” Pictet, Commentary 271. While the draftsmen did intend to establish two separate standards (2A Final Eecord 401), at least as to clothing, it is difficult to believe that any belligerent will provide prisoners of war with a higher standard of living than that to which its own civilian citizens have been reduced as a result of a rigid war economy.

84 Ibid. 275.

85 Pictet, Commentary 271-272.

86 2A Final Eecord 275.

87 It could be argued that a proper grammatical construction of this provision of the Convention makes only the protective equipment and not the training subject to national standards. However, this is debatable, and, even if true, it would merely result in the application of an international standard in the very area where the national standard would probably be highest.

88 The Judgment of the International Military Tribunal for the Far East(note 26 above, at 1002) mentioned “forced labor in tropical heat without protection from the sun” as one of the atrocities committed against prisoners of war by the Japanese. The motion picture, “The Bridge on the Eiver Kwai,” graphically portrayed the problem.

89 Art. 27 of the 1949 Convention specifically mentions that, in issuing clothing to prisoners of war (without regard to the work at which they are employed), the Detaining Power “shall make allowance for the climate of the region where the prisoners are detained.

90 Art. 89 of the 1949 Convention contains an enumeration of the punishments which may be administered to a prisoner of war as a disciplinary measure for minor violations of applicable rules and regulations.

91 At the Diplomatic Conference Mr. R. J. Wilhelm, the representative of the International Committee of the Bed Cross, stated that experience had indicated that the majority of all prisoners of war were maintained in labor detachments. 2A Final Record 276. This is confirmed by the series of articles which had appeared in the International Labour Beview during the course of World War II. See 47 International Labour Review 169, note 23 above, at 187 (general); 48 ibid. 316, note 24 above, at 318 (Germany); Anon., “The Employment of Prisoners of War in Great Britain,” 49 ibid. 191 (Feb., 1944); and MacKnight, loc. cit. note 31 above, at 49 (United States).

92 In addition to the requirements of Art. 56 for the observance of the present Convention in labor detachments, specific provisions as to these detachments are contained in Arts. 33 (medical services), 35 (spiritual services), and 79 and 81 (prisoners' representatives), among others.

93 For example, Art. 25 provides that the billets provided for prisoners of war must be adequately heated. The fact that the parent prisoner-of-war camp has central heating, while the billets occupied by the men of the labor detachment have separate, but adequate, heating facilities, does not constitute a violation of the Convention.

94 This latter provision is included in order to enable them to register a complaint concerning their treatment, should they believe that it is below Convention standards. Of course, complaints may also be made to the representatives of the Protecting Power, who may visit these detachments whenever they so desire (Arts. 56 and 126), but these latter are not always immediately available, while the prisoners' representatives are. During World War I I , both Great Britain and the United States provided for inspections by their own military authorities of the treatment of prisoners of war who were working for private employers. Anon., “The Employment of Prisoners of War in Great Britain,” note 91 above, at 192; Mason, loo. cit. note 51 above, at 212.

95 Members of the U. S. Armed Forces may not accept parole, except for very limited purposes. Code of Conduct, Exec. Order No. 10631, Aug. 17, 1955, 20 Fed. Eeg. 6057; The Law of Land Warfare, FM 27-10, V. S. Army, July, 1956, see. 187. The British rule is substantially similar. Manual of Military Law, Part I I I , The Law of War on Land, 1958, sec. 246, note 1.

96 In Pietet, Commentary 296, the argument is made, and with considerable merit, that escape is an act of war and that only military personnel of the Detaining Power are authorized to respond to this act of war with another act of war—the use of weapons against a prisoner of war. This theory finds support in the safeguards surrounding the use of weapons against prisoners of war, especially those involved in escapes, found in Art. 42 of the 1949 Convention.

97 See, for example, the World War I agreements listed in note 19 above, and Lauterpacht, “The Problem of the Revision of the Laws of War,” 29 Brit. Yr. Bk. of Int. Law 360, 373 (1952).

98 By becoming parties to the Convention they have given up their sovereign right to enter into special agreements adversely affecting the rights guaranteed to prisoners of war by the Convention.

99 Statement of Mr. R. J. Wilhelm, the representative of the International Committee of the Red Cross, 2A Final Record 275.

100 2B ibid. 300.

101 The Conference of Government Experts called by the ICRC in 1947 had originally considered setting maximum working hours, but finally decided against it as being ’ ‘ discrimination in favour of PW, which would not be acceptable to the civilian population of the D P . “ Report on the Work of the Conference of Government Experts 176 (1947). As stated in Anon., “ T h e Conditions of Employment of Prisoners of War,” note 23 above, at 194: “The prisoner cannot expect better treatment than the civilian workers of the detaining Power… . His fate depends upon the extent to which the standards of the country where he is imprisoned have been lowered through the exigencies of the war.”

102 During World War II, many countries used the piece or task-work method of controlling prisoner-of-war labor. Pictet, Commentary 282; Anon., “The Employment of Prisoners of War in Canada,” note 61 above, at 337. In the United States the piece-work system was used, but to control pay rather than work hours. Lewis, History 120-121. As long as the pay does not drop below the minimum prescribed by the Convention, there would appear to be no objection to this procedure.

103 Nor was it subject to national standards in the 1929 Convention, but the Germans refused to accord prisoners of war a weekly day of rest on the ground that the civilian population did not receive it. Janner, op.cit. note 50 above.

104 Pictet, Commentary 313; ICRC Eeport 286.

105 Actually, Art. 62 refers to “working rate of pay” twice and to “working pay” four times, while Arts. 54 and 64 refer only to “working pay.” The term “indemnite de travail” is used in the French version of all of these articles and the difference in English appears to be an error in drafting. The report of the Financial Experts at the 1949 Diplomatic Conference (2A Final Record 557) states: ” I t appeared that the expression ‘wages' was inappropriate and might give the impression that prisoners of war while fed and housed at the cost of the Detaining Power were in addition being remunerated for their work at a rate corresponding to the remuneration of a civilian worker responsible for maintaining himself and his family out of his wages. For this reason, it was decided to substitute the terms ‘working pay' wherever this was necessary.”

106 The inadequacy of the minimum set by the Convention, which amounts to approximately six cents a day in money of the United States (approximately 5 d. in British money), is illustrated by the fact that almost a century ago, in 1864, during the American Civil War, the Federal Government set the rate of prisoner-of-war pay at ten cents a day for the skilled and five cents a day for the unskilled! Lewis, History 39. During World War I I the United States paid prisoners of war 80 cents a day. Ibid, at 77. Under the incentive of the piece-work system it was possible to increase this to $1.20 a day. Ibid, at 120.

107 For some of these differences, see the quotation in note 105 above, and Mojonny, The Labor of Prisoners of War 24 (unpublished thesis, Indiana University, 1954). For a contrary view, see Pictet, Commentary 115.

108 During World War I I the Germans habitually paid Soviet prisoners of war as little as one-half of the amount paid to prisoners of war of other nationalities. Dallin, note 25 above, at 425. Art. 16 of the 1949 Convention specifically prohibits “adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria.”

109 This was the policy followed by the United States during World War II. Prisoner of War Circular No. 1, note 31 above, see. 85.

110 Flory, op. cit., note 29 above, at 79-80. The prisoner-of-war agreement concluded between France and Germany in 1915 had still a different approach: it provided that, upon repatriation, prisoners of war who had suffered industrial accidents would be treated as wounded combatants. Eosenberg, “International Law Concerning Accidents to War Prisoners Employed in Private Enterprises,” 36 A.J.I.L. 294, 297 (1942).

111 Lauterpacht, loc. cit. note 97 above. Lauterpacht labels the negotiations as “elaborate” and as “concerning the relatively trivial question of the interpretation of Article 27.”

112 Prisoner of War Circular No. 1, note 31 above, sees. 91 and 92; MacKnight, loo. cit. note 31 above, at 63.

113 Lauterpacht, loo. cit.

114 E.g., Lewis, History 156.

115 In the British Manual of Military Law, op. cit. note 95 above, sec. 185, note 1, the statement is made that during the World War II negotiations the United Kingdom “considered that its domestic workmen's compensation legislation was too complex and so bound up with the conditions of free civilian workmen as to make it impracticable to apply it to prisoners of war.'’ That position has become no less valid with the passing of the years since the end of that war.

116 Arts. 40 and 95 of the 1949 Geneva Convention Eelative to the Protection of Civilian Persons in Time of “War (6 U. S. Treaties 3516; 75 U.N. Treaty Series 287 (1:973); 50 A.J.I.L. Supp. 724 (1956)) place upon the Detaining Power the additional burden of providing compensation for occupational accidents and diseases. The variation between the two conventions was noted by the Co-ordination Committee of the Diplomatic Conference (2B Final Record 149), but Committee II, to which had been assigned the responsibility for preparing the text of the prisoner-of-war convention, determined that such a provision was not necessary for prisoners of war (2A Final Eecord 402).

117 The suggestion has been made that, ‘ ‘ since under Article 51, paragraph 2, he [the prisoner of war] is covered by the national legislation [of the Detaining Power] concerning the protection of labour,” a prisoner of war disabled in an industrial accident or by an industrial disease would, while still a prisoner of war, be entitled to benefit from local workmen's compensation laws. Pictet, Commentary 286-287. It is believed that the application of this general provision of the Convention has been restricted in this area by the specific provision on this subject.

118 Anon., ‘ ‘ The Conditions of Employment of Prisoners of War,'’ note 23 above, at182; Pictet, loc. cit.

119 The availability of the latter as a channel of complaint is not clearly defined. Levie, “Prisoners of War and the Protecting Power,” loo. cit. note 63 above, at 396.

120 The activities of the International Committee of the Red Cross are likewise a major deterrent to the improper application of the Convention.

121 Statement of German General Keitel, quoted in the “Opinion and Judgment of the International Military Tribunal,” 41 A.J.I.L. 172, 228-229 (1947).