Ukraine Symposium – Forced Civilian Labor in Occupied Territory

On July 27, the Institute for the Study of War reported that “Russian occupation officials are likely leveraging food aid and other humanitarian assistance to force occupied populations to cooperate with and work for Russian occupiers.” According to the report, the Mariupol City Council has announced “that Russian forces stopped providing humanitarian assistance to Mariupol residents to force residents to demine and clear rubble on behalf of the occupation administration in exchange for food….” If true, the allegations raise the issue of whether occupation forces may compel the population of territory over which it exercises control to work, and if so, under what circumstances.

International humanitarian law (IHL) addresses various types of compulsory labor. For example, it sets forth rules regarding using prisoners of war (1949 Geneva Convention III, arts. 49-68) and certain protected civilians, such as aliens in the territory of a party to the conflict and internees (1949 Geneva Convention IV, arts. 39, 40, 89, 90, 95, 143). IHL also prohibits deportation from occupied territory, including for the purpose of work (see here). And compelled labor is subject to certain limitations even during a non-international armed conflict (see, e.g., 1977 Additional Protocol II, art. 5(1)(e); Customary International Humanitarian Law study, art. 95; Statute of the International Criminal Court, art. 8(2)(b)(xv)).

In this post, however, I unpack the specific IHL rules on compelling the civilian inhabitants of occupied territory to work. Assuming for the sake of analysis that the Russians are forcing the Ukrainian inhabitants to work, I conclude with an assessment of the policy’s compliance, or lack thereof, with those rules.

A Tragic Lineage

There is a long and tragic history of forced civilian labor during armed conflicts. In the First World War, for instance, mobilization and the need to produce armaments led to labor shortages in industry and agriculture. When the use of prisoners of war and the entry of women and children into the workforce failed to satisfy the shortages, Germany, the Hapsburg Empire, and Russia turned to forced labor in the territories they occupied or deported civilians to work elsewhere.

This practice provided a template for the more shocking use of forced civilian labor during the Second World War. As noted by the Nuremberg Tribunal in 1946,

In the early stages of the war, manpower in the occupied territories was under the control of various occupation authorities, and the procedure varied from country to country. In all the occupied territories compulsory labour service was promptly instituted. Inhabitants of the occupied countries were conscripted and compelled to work in local occupations, to assist the German war economy. In many cases they were forced to work on German fortifications and military installations. As local supplies of raw materials and local industrial capacity became inadequate to meet the German requirements, the system of deporting labourers to Germany was put into force. By the middle of April, 1940, compulsory deportation of labourers to Germany had been ordered in the Government General; and a similar procedure was followed in other Eastern territories as they were occupied.

Particularly horrific was the “annihilation through work” policy, according to which prisoners were worked to death. At the Mauthausen concentration camp, for example, “emaciated prisoners were forced to run up 186 steps out of a stone quarry while carrying heavy boulders.” Many of the cases heard by the (subsequent) U.S. Military Tribunal at Nuremberg dealt with incidents of forced labor and deportation [see, e.g., the Pohl, List (Hostage), Milch, Krauch (IG Farben), Krupp, and Von Leeb (High Command)].

The practice continued during the armed conflicts that followed. For instance, forced labor was commonplace throughout the conflicts of the 1990s in the Balkans. Accordingly, the International Criminal Tribunal for the former Yugoslavia handled numerous cases involving compelled work, especially by detainees. Typical was one in which civilian detainees were forced, “at great risk to their lives, to perform various dangerous military support tasks … including: digging trenches, building defences with sandbags, carrying wounded or killed … soldiers, carrying ammunition and explosives across the confrontation line, and placing them in front of [enemy] positions” during the conflicts of the 1990s in the Balkans. Beyond the battlefield, they were also forced to engage in such activities as construction and maintenance, including for private residences of soldiers, and building defensive positions for the forces detaining them (Naletilić and Martinović, ICTY, 2^nd amended indictment). United Nations bodies repeatedly condemned these practices as the conflicts were underway (see, e.g., S.C. Res. 1019 (1995); S.C. Res. 1034 (1995); G.A. Res. 50/193 (1995)).

And the allegations of forced labor by Russia mentioned above are not the first that have been leveled during this conflict. Notably, last March, U.K. Foreign Secretary Liz Truss accused Russia of the “abduction and deportation” of Ukrainians from Mariupol. Inna Sovsun, a member of Ukraine’s Parliament, explained, “they are sending them through what are called the ‘filtration camps’ and then they are being relocated to very distant parts of Russia, where they are being forced to sign papers (saying) that they will stay in that area for two or three years and they will work for free in those areas.”

The Law

To begin with, it is not unlawful per se to compel inhabitants of an occupied territory to work. On the contrary, as early as the 1899 Hague Convention II, IHL explicitly allowed an occupying force to turn to the civilian population for support. Article 52 of the Annexed Regulations to that instrument provided,

Neither requisitions in kind nor services can be demanded from communes or inhabitants except for the necessities of the army of occupation. They must be in proportion to the resources of the country, and of such a nature as not to involve the population in the obligation of taking part in military operations against their country.

These requisitions and services shall only be demanded on the authority of the commander in the locality occupied.

The contributions in kind shall, as far as possible, be paid for in ready money; if not, their receipt shall be acknowledged.

In 1907, this provision was repeated nearly verbatim in Hague Convention IV’s Annexed Regulations (art. 52). Thus, in situations of strict necessity, inhabitants who were compensated could be made to perform non-military work for the occupying forces.

This was the rule in place during the Second World War. Under Article 6(b) of the 1945 Nuremberg Charter, “ill-treatment or deportation to slave labour or for any other purpose of the civilian population of or in occupied territory” amounted to a war crime. The Nuremberg Tribunal held that the “policy of the German occupation authorities was in flagrant violation” of Article 52 of the 1907 Annexed Regulations, which in turn meant there was a breach of Article 6(b) of the Charter in the context of individual criminal responsibility.

In light of the horrific practices during that war, the International Committee of the Red Cross (ICRC) proposed new rules governing the requisition of civilian services. The ICRC did not, however, urge the elimination of the practice altogether, for “it did not appear likely that their complete elimination would be agreed to by governments” (ICRC 1958 Commentary). This practical approach resulted in the adoption of more granular rules in the 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War.

Article 51 is at the heart of that effort. It forbids compulsory service in the Occupying Power’s military (although voluntary enlistment is not prohibited). Although forcing an individual to serve in the enemy’s armed forces was long banned, Article 52 extends the prohibition to active recruiting (see also DoD Law of War Manual, § 11.20.1.1). Violation is not only an “internationally wrongful act” by the State concerned but also a “grave breach” of the Convention (art. 147), thereby obligating all States Party to prosecute violators or turn them over to another State or appropriate entity for prosecution (art. 146). The Statute of the International Criminal Court confirms that compelled military service is a war crime (Arts. 8(2)(a)(v)), as did, for instance, Article 2 of the Statute for the International Tribunal for Yugoslavia.

Beyond the ban on military service, Geneva Convention IV Article 51 does not prohibit voluntary labor for or on behalf of the Occupying Power. Yet it set forth a series of 10 stringent cumulative prohibitions and obligations.

1. Workers must be at least 18 years of age (see also DoD Law of War Manual, § 11.20.2).

2. The work must be necessary for a) the needs of the Occupying Power, b) “public utility services,” or c) “feeding, sheltering, clothing, transportation, or health of the population” (see also DoD Law of War Manual, § 11.20.2). With regard to the needs of the occupying forces, acceptable duties include “those connected with billeting and the provision of fodder, transport services, the repairing of roads, bridges, ports and railways and laying telephone and telegraph lines” (ICRC Commentary). In addition, the DoD Manual offers the examples of “providing telephone, water, or electricity services to the facilities of the occupation army from which the occupied territory is administered, or providing support to prisons, police stations, and other facilities necessary for the maintenance of order among the civilian population” (§ 11.20.2.1). As the ICRC’s Commentary notes, “It is the maintenance needs of the army of occupation and not its strategic or tactical requirements which are referred to.” The DoD Manual makes precisely the same point.

Although Article 51 does not illustrate the term “public utilities services,” it was reasonably interpreted during negotiations as including “water, gas and electricity services, transport, health and similar services.” Moreover, the ICRC Commentary suggests that communications such as telephone services should be included. In the modern context, this would extend to the internet and other ICT services.

The final form of labor included in Article 51 (feeding, etc.) refers to activities solely for the benefit of the occupied population; it may be compelled only when necessary. Such work is intended to maintain, for instance, important industrial and agricultural production. Thus, it is consistent with the Occupying Power’s obligations to, for example, provide food for the inhabitants of the occupied territory, ensure public health, and maintain sanitation (Geneva Convention IV, arts. 55 and 56).

The DoD Law of War Manual provides additional granularity on the types of compelled work that are permissible (§ 11.20.2.1).

The services that may be obtained from inhabitants by requisition include those of professionals, such as engineers, physicians, and nurses; and of artisans and laborers, such as clerks, carpenters, butchers, bakers, and truck drivers. The officials and employees of:

whether employed by the State or private companies, may be requisitioned to perform their duties only so long as the duties required do not directly concern the operations of war against their own country.

The Occupying Power may also requisition labor to restore the general condition of the public works to that of peace, including the repair of roads, bridges, railways, and telecommunication networks, and to perform services on behalf of the local population, such as the care of the wounded and sick, and the burial of the dead.

3. The Manual also observes that “police, firefighters, prison guards, and others who provide services essential to good order and security in occupied territory may be compelled by an Occupying Power to continue to provide those services” (§ 11.20.2.2). After all, the Occupying Power is obligated to maintain public order and safety in occupied territory (Hague IV Regulations, art. 43, which reflects customary law). But there is no legal basis for compelling inhabitants of occupied territory to work for the benefit of the Occupying Power’s economy in any way.

The work must not involve taking part in military operations (see also DoD Law of War Manual, § 11.20.1.5). This prohibition is broader than the related one found in Article 52 of the Hague Regulations, which encompassed only “military operations against their own country.” Geneva Convention IV expanded the ban to include any activities facilitating military operations. This was done in part to preclude claims by an occupying force that it is no longer directing its operations against the occupied State and, therefore, the prohibition is inoperative. Moreover, the prohibition helps ensure civilians do not qualify as direct participants in hostilities who lose key IHL conduct of hostilities protections.

The difficulty in applying the prohibition is that both the Hague Conventions and Geneva Convention IV permit compelling civilians to provide for the non-operational needs of the Occupying Power, such as cooking, cleaning, and administrative duties. Unfortunately, the line separating permitted from forbidden work is undefined.

However, any activity directly enhancing the occupying force’s military wherewithal or detracting from that of the occupied State is prohibited. The 1958 ICRC Commentary mentions reviving the war industry and producing war materiel, while the DoD Law of War Manual offers the examples of “construction of fortifications, entrenchments, and military airfields, or the transportation of supplies or ammunition in the zone of operations” (§ 11.20.1.5). A helpful way to describe the scope of the prohibition using the patois of targeting law is that it comprises any activity that involves “war-fighting” or “war-supporting” (Schmitt and Widmar, 394). Of course, compelling any action that would qualify as “direct participation in hostilities” likewise would be unlawful.

4. Workers may not be compelled to guard installations where they perform compulsory labor (see also DoD Law of War Manual, § 11.20.1.2). The prohibition includes any location where they work, including those that are not military.

5. Compelled work may only be carried out in the occupied territory. In other words, deportation for the purpose of work, which was widespread during the Second World War, is prohibited.

6. To the extent possible, workers must be kept in their usual place of employment.

7. Workers must be paid a fair wage. The International Labour Organization suggested this and the following provisions on work conditions (see DoD Law of War Manual, §11.20.3).

8. The work must be appropriate to the worker’s “intellectual and physical capabilities.”

9. Working conditions must comply with legislation in force in the occupied territory concerning “such matters as wages, hours of work, equipment, and preliminary training, and compensation for occupational accidents and diseases.”

10. The forced labor may not result in the “mobilization of workers in an organization of a military or semi-military character” (see also DoD Law of War Manual, § 11.20.1.3). This purpose of this final condition “was to avoid the resurrection of organizations, formed during the last war, of a character quite incompatible with the civilian status of their members.” In other words, there was concern that the nature of the compelled work might lead to questions as to whether those involved were entitled to the various protections that IHL affords individuals qualifying as civilians.

Thus, while Article 51 is more demanding than its Hague Conventions equivalents regarding the treatment of workers and conditions of work, it is more permissive regarding the type of work that can be required. Whereas the Hague Conventions limited labor to that necessary to support the occupying forces, Geneva Convention IV allows inhabitants to be compelled to perform duties in support of the occupied population.

Article 51 does not prohibit inhabitants of an occupied territory from voluntarily working for the occupation forces. However, to preclude de facto compulsion, Article 52 provides, “All measures aiming at creating unemployment or at restricting the opportunities offered to workers in an occupied territory, in order to induce them to work for the Occupying Power, are prohibited” (see also DoD Law of War Manual, § 11.20.5.2).

This text was included in light of measures taken during the Second World War that artificially created unemployment or made it more difficult to find work. The ICRC’s Commentary cites the examples of setting up employment monopolies, closing industries, and causing a shortage of raw materials needed for production. Yoram Dinstein has emphasized that the intent must be to create a situation in which inhabitants must work for the occupant. He points to de-Baathification by the Coalition Provisional Authority during the Gulf War (CPA Order #2). Although it created widespread unemployment, the policy was not designed to drive those affected to work for the CPA or occupation forces; therefore, it did not violate Article 52 (The International Law of Belligerent Occupation, p. 193).

Finally, Article 52 allows workers to seek intervention by the “Protecting Power” if its provisions are violated (see also DoD Law of War Manual, § 11.20.5.1). A Protecting Power is a neutral State that the belligerents designate to foster the implementation of, inter alia, the Geneva Conventions. Should such a State not be designated, the ICRC or another humanitarian organization may serve as the Protecting Power (Geneva Convention IV, arts. 9 and 11). In most cases, the ICRC performs this role.

The 1907 Hague Regulations and 1949 Geneva Conventions prohibitions and obligations undoubtedly reflect customary international law that binds all States. As noted by the International Court of Justice in its Nuclear Weapons Advisory Opinion, “these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law” (¶ 79).  In this regard, the ICRC’s Customary International Humanitarian Law study approaches the subject carefully. Article 95 of the study merely states, “Uncompensated or abusive forced labour is prohibited.” In my estimation, any violation of the prohibitions and obligations would qualify as “abusive” and, therefore, breach both treaty and customary IHL rules.

Finally, non-IHL instruments beyond the scope of this article also bear on the issue of forced labor. These include, depending on the circumstances, the Forced Labour Convention (art. 1), Convention concerning the Abolition of Forced Labour (arts. 1 and 2); the International Covenant on Civil and Political Rights (art. 8(3)), and regional agreements like the European Convention on Human Rights (art. 4). Of course, the principle of “lex specialis” applies, thereby allowing the IHL rules to prevail in most situations (although applicable rules from different legal regimes might not clash or the State concerned may have derogated).

Assessing the Alleged Russian Actions

It might surprise some that IHL countenances an Occupying Power forcing civilian inhabitants of the territory it controls to work. In particular, the premise that an Occupying Power may force them to labor in support of the occupying armed forces seems particularly repugnant. But that is the law.

Nevertheless, considering the horrific abuses the practice has engendered, IHL places the strict limits on forced labor that have been outlined above. If the reports are correct, Russia is in clear violation of various IHL rules, like those prohibiting starvation (see here), requiring the Occupying Power to ensure food is available (Geneva Convention IV, art. 55), and prohibiting interference with relief supplies (Geneva Convention IV, art. 60).

As to the work reportedly being demanded, clearing rubble falls within permissible tasks. However, requiring civilians to engage in demining, unless that activity is somehow already their duty (as in the case of emergency ordnance disposal teams), is prohibited. It is inconsistent with Article 51’s requirement that the work concerned be consistent with intellectual (knowledge and training) capacity. Presumably, such dangerous work would also violate Ukraine’s workplace health and safety rules, which remain in force under Article 51. And, of course, Article 51 requires payment for work, which cannot possibly take the form of food and humanitarian assistance that the Occupying Power is already required to provide.

Moreover, although Article 51 does not directly address dangerous work, the requirement can be inferred. To begin with, it would certainly qualify as “abusive,” the term employed by the ICRC in its Customary International Humanitarian Law study, to force inhabitants to engage in hazardous tasks. And Article 52 of Geneva Convection III, which governs, in part, prisoner of war work, provides, “unless he be a volunteer, no prisoner of war may be employed on labour which is of an unhealthy or dangerous nature. … The removal of mines or similar devices shall be considered as dangerous labour.” It would be incongruent for IHL to allow civilian inhabitants of occupied territory to be forced to perform duties deemed too dangerous under that body of law for captured military personnel.

I close by emphasizing that this article has zeroed in on the issue of forcing civilian inhabitants who are not interred to work involuntarily. As noted, there are also restrictions on forcing others, such as prisoners of war and civilian internees to work, and there are numerous additional IHL rules that bear on the practice beyond those that directly deal with forced labor. If the Russians are engaging in practices like those of which they have been accused, there is no doubt that they are violating IHL.

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Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading; Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College; and Strauss Center Distinguished Scholar and Visiting Professor of Law at the University of Texas.

Photo credit: State Emergency Service of Ukraine