8. In the 1929 Prisoners of War Convention there is an Article which allows belligerents to come to mutual agreement on any matter they choose. This Article has been used on occasions to make arrangements which might be regarded as worsening the position of prisoners.* Here again the countries which have had experience of German occupation are fearful that a provision sanctioning less favourable treatment than the Convention requires would legalise the type of agreement for which the Vichy and other Quisling Governments were responsible during the Second World War and they, therefore, desire to make the provisions of the new Conventions intangible by limiting the power to make agreements to provisions which would improve the treatment provided as a minimum by the Conventions.
The view of the Committee, with which we agree, is that this is an imprac- ticable proposition. The Committee argue that some of the provisions of the proposed Convention could only be accepted if some measure of elasticity is retained, as permitted in the 1929 Convention.
We recommend that the Committee's advice, which is contained in paragraphs 60 and 61 of their report, be accepted.
War Crimes
9. At the 1947 Experts' Conference the United States and the European Allies urged that there should be embodied in all the new Conventions an Article providing that serious breaches of the Conventions should be regarded as war crimes, and that parties to the Conventions should be required to punish persons responsible as war criminals.
The United Kingdom delegation resisted this proposal on the grounds that:-
(a) humanitarian Conventions were not a suitable medium for war
legislation; (b) any breach of the Conventions would be a war crime, and that to specify some breaches only would tend to create grounds for claiming that breaches other than those specified were not war crimes, with a conse- quent weakening of the whole doctrine of war crimes;
(c) international legislation regarding war crimes should be a separate instrument and penalties and punishment should have regard to the whole field of war crimes and not to one particular corner.
The Canadian Government take the view that it would be a mistake to introduce war crimes legislation into the Conventions, and the United States have now modified their view.
We recommend that the Cabinet should approve the recommendations of the Committee, which are contained in paragraphs 208 to 218 of their report, and should authorise the United Kingdom delegation to resist any reference to war crimes in the new Conventions.
Surrendered Enemy Personnel
10. Following the surrenders of Germany and Japan, the United Kingdom Government were faced with the problem of the treatment of Armed Forces surrendering en masse. Largely for practical and administrative reasons these forces were not treated as individual prisoners of war, but were retained in their military formations and units under the command of their own officers. This action meant that the United Kingdom Government was not answerable for their treatment under the terms of the existing Conventions. In practice, their treat- ment was humane and provoked little criticism, but the United Kingdom has been criticised strongly for having undermined in principle the whole basis of the protection of captured persons. In the view of the Secretary of State for Foreign Affairs it is increasingly difficult to justify this special category of surrendered enemy personnel having no rights in international law, and it is natural that the French and other Governments whose forces were treated in the same way after the 1940 surrenders desire to prevent the same thing happening in the future.
**
e.g. By agreement with the Germans the British Government reduced the pay of captive
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Ip thein recommendation (paragraphs 44 to 50 the Committee have had regard to the deliberate policy of the United Kingdom Government at the end of the last war and have no doubt felt bound to recommend that provision should be made in any future Convention for surrendered enemy personnel, though such provision could not but give them rights inferior to those of prisoners of war proper. Our feeling is that it would be unwise to accord any formal recognition by international agreement to such a category, and we therefore recommend that the recommendations of the Committee on this point (paragraph 50 of the report) should not be approved.
Work
11. The 1929 Prisoners of War Convention provides that:
"The work done by the prisoners of war shall have no direct connection with the operations of the war. In particular, it is forbidden to employ prisoners in the manufacture or transport of arms or munitions of any kind, or in the transport of material destined for combatant units.'
""
This Article gave rise to many difficulties in interpretation and there is agreement that its terms should be clarified. In our own case we have used prisoners of war for such operations as mine lifting and bomb disposal and we have regarded this use as legitimate, provided that we equipped and trained the prisoners for this work in the same way as we equip and train our own troops, and do not use them in a combat zone.
This use of prisoners of war has been generally criticised, and at the 1947 Experts Conference the United Kingdom view was opposed by New Zealand and the United States. The Canadian Inter-Departmental Committee has expressed the view that the practice is "iniquitous.
The Committee recommend that prisoners of war should be allowed to be employed on general work in agriculture, forestry and civil engineering
"by military forces or on any work not primarily connected with operations against an enemy or the production or handling of weapons or ammunition; but, in any case, not in a zone of active operations."
This formula would permit, for example, the use of prisoners of war on lifting mines laid by our own forces, and we have no doubt that, in making their recommendation, the Committee felt bound to provide for the same kind of employments as those for which His Majesty's Government have, in fact, used prisoners of war.
The International Red Cross Committee in their latest draft have suggested that:
"The work connected with the removal of mines or similar devices placed by the prisoners themselves before their capture or by other members of the forces to which they belong shall, however, be authorised on condition that it is carried out in areas distant from the theatre of military operations.
>"
It seems to us that the position of a victorious commander would be intolerable if the responsibility for clearing all the enemy minefields in the surrendered country were imposed on his own troops, and we therefore recommend that the Cabinet should approve the compromise solution recommended by the International Red Cross Committee, which is narrower than that which is recommended by our own Committee. We append the complete Article as now proposed by the International Red Cross Committee. We would add that the civil user Departments and the Ministry of Labour and National Service have agreed to the I.R.C.C. draft.
In this as in other matters, international law is different regarding operations at sea and on land; and the removal of sea mines also presents somewhat different problems. We mention the point only because the First Lord of the Admiralty may want to make it clear that these provisions regarding work should relate only to the employment of prisoners of war on land and that Article 5 of the VIIIth Hague Convention would still govern the clearance of sea mines. That Article reads:
At the close of the war
as regards anchored automatic contact laid by one of the belligerents off the coast of the other, their position
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must be Pragified Cocthe 8ther party by the Power which Rage them afid &sch Power must proceed with the least possible delay to remove the mines in its own waters.
Repatriation after Termination of Hostilities
12. The 1929 Convention does not impose an absolute obligation to repatriate prisoners of war after the termination of hostilities, though there is such an obligation to repatriate when a peace treaty has been signed. But there seems to be little room for doubt that the intention of the Convention was that prisoners of war should be returned to their own country within a reasonable time after the termination of hostilities. There have been criticisms of our own performance in this matter, both abroad and at home.
The Committee came to the conclusion that there may be many good reasons for not returning prisoners of war immediately after the termination of hostilities and that, apart from these practical reasons, it may be contrary to the interests of the men themselves and of their own country to send them back immediately after hostilities cease. They therefore recommend that there should be some elasticity in these provisions, but that, as a safeguard, where prisoners are retained for any length of time after the termination of hostilities the detaining power should be bound to give specific reasons justifying the retention, not only to the prisoners themselves, but also to the protecting Power and to the Inter- national Red Cross Committee.
Proposals have been put forward-
(a) to prohibit any differentiation in selecting prisoners for repatriation
unless based on sex, health, age or length of captivity,
(b) to prohibit repatriation of prisoners against their own will.
We agree with the Committee that both these proposals should be resisted. Had the first been embodied in the present Convention His Majesty's Government would have been prevented from returning prisoners to Germany on the deliberately selective basis which they, in fact, adopted. The second proposal might saddle a detaining Power with large numbers of prisoners of war who, for various reasons, might prefer to stay in the country where they were detained. We recommend that the Cabinet approve the Committee's recommendations in paragraphs 87 to 91 of the report.
Protected Personnel
13. We draw attention to the important change which it is proposed to make in the status of captured medical personnel and chaplains.
Hitherto, under the Geneva Red Cross Convention, all persons engaged in looking after wounded and sick, or in transporting them, and chaplains, have had, in theory, immunity from being made prisoners of war and if they fall into the hands of an enemy, that Power is under obligation to send them back to their own forces as soon as a route is open." In practice these provisions have proved unworkable, and, with some minor exceptions, such personnel have been treated as prisoners of war, but those who were surplus to the needs of the wounded and sick of their own forces in enemy hands were, after delay, repatriated.
The present position is unsatisfactory because there is no obligation on a belligerent to notify any information about medical personnel and chaplains who come into their hands; nor have such persons any rights in disciplinary and legal proceedings, correspondence, relief supplies, &c. It is, therefore, proposed that, if they fall into the hands of the enemy in future, they should become prisoners of war with all the protection which the Prisoners of War Convention may give them.
We recommend that the Cabinet should endorse the recommendations contained in paragraph 162 of the report.
Joint Responsibility of transferor and transferee Powers
14. During the Second World War prisoners were frequently transferred from one detaining Power to another. Difficulties arose in fixing responsibility for the treatment of such transferred prisoners. At one time certain prisoners held in fact by the Italians were alleged to belong to the Germans and no remedy could be obtainge in matters where their treatment was not satisfactory! This
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affected the Continental countries much more than the British Commonwealth. Weagrselves transferred prisoners freely between age members488 the Common- wealth and to and from the United States.
The 1947 Experts Conference recommended-
(a) prohibition of the transfer of prisoners to a Power not party to the
Convention by a party to the Convention;
(b) that where prisoners were transferred from one party to the Convention to another, both parties should be jointly responsible for the appli- cation of the Convention.
We recommend that we accept (a) without question; but (b) raises difficulties. A similar proposition was examined during the war to govern relations between ourselves and the other members of the Commonwealth, but it proved unacceptable. We are satisfied that it is also impracticable. His Majesty's Government and the United States Government made it a condition of the transfer of certain German prisoners from SHAEF to France that we should be jointly responsible for their proper treatment by the French; but in practice, neither we nor the United States were able to secure any amelioration of their conditions even when we felt that their treatment by the French was not adequate. A belligerent is unlikely to be in a position to impose effective sanctions on an Ally during a war, and without the power of sanctions it is difficult to see how any Power could in fact discharge the responsibility which it is proposed should be assumed in respect of prisoners transferred by it to another party to the Convention.
The Committee recommend that, instead of providing for joint responsibility in the Convention, His Majesty's Government should press for a clear declaration that a detaining Power ceases to be responsible for the treatment of prisoners from the date it transfers them to another party to the Convention, and we recommend that the Cabinet should approve this.
Substitute for Protecting Power
15. The effective application of the Prisoners of War Convention depends in large measure on the existence of a protecting Power, i.e., a neutral which watches over the interests of prisoners of war, visiting their camps regularly and listening to their complaints. When a country surrenders and direct relations are set up between it and its enemies (e.g., the Italian surrender in 1943), or when a Government disappears (e.g., Germany in 1945), the protecting Power also disappears. In the interests of the prisoners, and as a result of our experience in the interests of the detaining Power also in maintaining the general discipline and morale of the prisoners, it is desirable that some substitute should, if possible, be found in such circumstances; and there was strong pressure at the 1947 Experts' Conference to write into the Convention an obligation on a detaining Power to find such a substitute. This is manifestly absurd.
The Committee recommend that a detaining Power in such circumstances should be under obligation to accept any appropriate body which offers itself as a substitute, provided that it fulfils certain conditions set out in paragraph 148 of the report. It is particularly important, we think, to ensure that any independent body which assumes the functions of a protecting Power should not be at liberty to exercise pressure on the detaining Power through Parliament, Press or other internal organs of the country. We advise the Cabinet to approve the recommendations of the Committee in paragraph 148.
Finger-prints
16. There is a very strong desire that to assist in identification of dead on the battlefield and prisoners of war, all identity documents should carry the holder's finger-prints: and that the detaining Power should record the finger- prints of each prisoner of war. The Home Office advised the Committee that the use of finger-prints for non-criminal classes would meet with the strongest resistance from public opinion in the United Kingdom.
We already use finger-prints for identification purposes amongst native troops who cannot write, and we understand that finger-prints were embodied in the identification papers of our own merchant seamene during the war, because without such prints they would not have been able to land in the United States.
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The Committee, acting on the Home Office advice, recommend that any provision regadong2fingerfp88ts should be permissive and Potoobligatory 48We think the Home Office may be exaggerating the strength of public opinion in this matter; and from the point of view of establishing identity of members of the forces falling into enemy hands (and vice versa) we are in favour of accepting the obligation to include finger-prints on identity cards and other
documents.
17. We have no comments on the other recommendations in the report and we advise the Cabinet to give general approval to them; but in doing so we would call attention to the fact that the following questions also arise on the proposed Civilian Convention :-
Civil War, Colonial Conflicts and Undeclared War (see paragraph 5
above).
Derogations and Intangibility (see paragraphs 7 and 8 above).
War Crimes (see paragraph 9 above).
Joint Responsibility (see paragraph 14 above).
Substitute for Protecting Power (see paragraph 15 above).
Safety Localities.
Finger-prints on identity documents (see paragraph 16 above).
10th March, 1949.
E. B.
E. S.
APPENDIX
DRAFT ARTICLE REGARDING WORK AUTHORISED TO BE DONE BY PRISONERS OF WAR
Besides work done in connection with camp administration, installation or maintenance, prisoners of war may only be obliged to do work included in the following classes of economic activity :--
(a) Industries connected with production, extraction of raw material or manufacture, with the exception of iron and steel, machinery and chemical industries, and of public works and buildings which have a military character or purpose.
(b) Transport and handling of stores having neither military character nor
purpose.
Commercial business, and arts and crafts. Domestic service.
Public utility services having no military character or purpose. Work connected with the removal of mines or similar devices placed by the prisoners themselves before they have been taken, or by other members of the forces to which they belonged, shall however be authorised, on condition that it is carried out in areas distant from the theatre of military operations and under conditions defined in the following Article.
Should the above provisions be infringed, prisoners of war shall be allowed to exercise their right of complaint, in conformity with Article 68.
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