Traités, États parties et Commentaires
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Commentaire of 2016 
Article 16 : Recording and forwarding of information
Text of the provision*
(1) Parties to the conflict shall record as soon as possible, in respect of each wounded, sick or dead person of the adverse Party falling into their hands, any particulars which may assist in his identification.
(2) These records should if possible include:
(a) designation of the Power on which he depends;
(b) army, regimental, personal or serial number;
(c) surname;
(d) first name or names;
(e) date of birth;
(f) any other particulars shown on his identity card or disc;
(g) date and place of capture or death;
(h) particulars concerning wounds or illness, or cause of death.
(3) As soon as possible the above mentioned information shall be forwarded to the Information Bureau described in Article 122 of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, which shall transmit this information to the Power on which these persons depend through the intermediary of the Protecting Power and of the Central Prisoners of War Agency.
(4) Parties to the conflict shall prepare and forward to each other through the same bureau, certificates of death or duly authenticated lists of the dead. They shall likewise collect and forward through the same bureau one half of a double identity disc, last wills or other documents of importance to the next of kin, money and in general all articles of an intrinsic or sentimental value, which are found on the dead. These articles, together with unidentified articles, shall be sent in sealed packets, accompanied by statements giving all particulars necessary for the identification of the deceased owners, as well as by a complete list of the contents of the parcel.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1527  Article 16 regulates three issues: the recording and forwarding of information concerning wounded, sick and dead persons who have fallen into the hands of the adverse Party; the preparation and forwarding of death certificates; and the collection and forwarding of the deceased’s personal items.
1528  The information to be recorded relates to identification. It serves several purposes, principal amongst which are to protect the persons concerned, to provide information to the Power on which they depend, and to provide information to their families. Recording this information and subsequently forwarding it to the State on which the persons depend and to their families, serves to account for their whereabouts, and thus to prevent them from going missing or forcibly disappearing.[1] For details on how this issue is dealt with in non-international armed conflict, see the commentary on common Article 3, section I.
1529  In the case of dead persons, the collection and forwarding of their personal items are also important for their loved ones. These items may be the very last belongings of the deceased that the family will receive and be all the more precious for having been on the person at the time of his or her death.
1530  Article 16 is related to the other provisions of international humanitarian law on the wounded and sick and on the dead, as well as to those on the missing and the right of families to know the fate of their loved ones.[2] In particular, there is a close relationship between the present provision and several provisions of the Third Convention.
1531  Wounded and sick members of the armed forces and certain other persons who have fallen into the hands of the adverse Party are prisoners of war and, as such, also benefit from the protections afforded by the Third Convention.[3] Given that most of the provisions of Article 16 are also to be found in Articles 17, 120 and 122 of the Third Convention, it might have been thought that there was no need for the First Convention to contain an article of this sort. However, despite the overlap, the present article remains important for two reasons in particular.
1532  First, the wounded and sick often find themselves outside the usual locations established for prisoners of war, such as in a field hospital rather than in a prisoner-of-war camp. Likewise, they do not always go through the same processes as other prisoners of war; for example they may be diverted to a military hospital immediately upon capture instead of first being processed at a transit or prisoner-of-war camp. Thus, the persons who come into contact with the wounded and sick will likely be more familiar with the provisions of the First Convention than of the Third Convention. Accordingly, it was thought necessary to include in the First Convention provisions similar to those of the Third Convention. This is also in conformity with the general approach of making each Convention, as far as possible, complete in itself.
1533  Second, in addition to the wounded and sick, the present article covers the dead, including persons who died prior to falling into the hands of the adverse Party. At no stage would such persons have been prisoners of war.
1534  Those two points notwithstanding, the close relationship between the present article and various provisions of the Third Convention means that regard must also be had to that Convention and its commentary.
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B. Historical background
1535  The need to identify wounded, sick or dead members of the armed forces and certain other persons has long been recognized, as has the need to transmit death certificates and certain possessions of the deceased to the Party on whom the deceased depended.
1536  The 1880 Oxford Manual provided that ‘[t]he dead should never be buried until all articles on them which may serve to fix their identity, such as pocket-books, numbers, etc., shall have been collected’. It added that ‘[t]he articles thus collected from the dead of the enemy are transmitted to its army or government’.[4]
1537  Article 4 of the 1906 Geneva Convention covered similar matters. It also required the belligerents to forward to the authorities a list of the names of the wounded and sick in their charge, thus extending the requirement of identification to the wounded and sick. However, it provided little in the way of detail.
1538  The 1929 Geneva Convention on the Wounded and Sick expanded upon the provisions of the 1906 Convention. Article 4 required the communication of the names of the wounded, the sick and the dead to the adverse Party, together with anything that might assist in their identification; the transmittal of death certificates; and the collection and transmittal of certain personal items of the deceased, including one half of the identity disc. Transmittal of personal items was considered of particular importance given that they might be all the family of the deceased had to remember their loved one by.[5]
1539  The 1929 Convention contains the core of the protections that are to be found in Article 16 of the present Convention, to which further details were added. The 1929 Convention was limited in a number of respects, omitting to mention what information might assist in the identification of the deceased or the manner in which it was to be transmitted to the adverse Party,[6] and lacking guidance on which of the deceased’s belongings to transmit. Article 16 expands upon these aspects and takes into account practice from the Second World War, as well as its shortcomings.[7]
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C. Paragraph 1: Recording of information
1. Nature of the obligation
1540  The Parties to the conflict are under an obligation to record, as soon as possible, any particulars that may assist in the identification of wounded, sick or dead persons of the adverse Party who have fallen into their hands. The obligation is an absolute one as is evident from the wording ‘shall record’.[8] Accordingly, certain particulars must be recorded and there is no excuse for the failure to do so. The precise particulars to be recorded are set out in the second paragraph and the ability to record some of them will vary according to the situation.
1541  Two aspects of the recording and forwarding of information are of particular importance, namely speed and accuracy.[9] Speedy recording of information is of the essence, as it reduces the risk of persons going missing, especially if they are moved from place to place. Delay in forwarding the recorded information exacerbates the suffering of the families and friends of persons who are unaccounted for. Accuracy is also critical. Only when the details are recorded with care and precision can an individual’s identity be ascertained correctly and accurate information passed on to the family.
1542  Accordingly, the Parties must take the necessary preparatory steps in good time, and even before the commencement of hostilities, in order to ensure that the competent authorities are in a position to perform their duties. These steps include, for example, deciding on the form the records are to take, instructing and training the relevant personnel in the recording of information, and establishing speedy identification and processing procedures.
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2. Personal scope of application
1543  The obligation is vested in the ‘Parties to the conflict’ and not in particular individuals. Nonetheless, by necessity, it can only be fulfilled by individuals. It is only they who will be able to question wounded or sick persons about their identity or to read their identity cards or discs. Thus, the obligation concerns all levels of the Parties to the conflict and all forces,[10] the determining factor being whether wounded, sick or dead persons have fallen into their hands. Accordingly, the persons who carry out the obligation of the Party in the first paragraph, i.e. the recording of information, might not be the same ones who undertake the tasks required by the third paragraph, namely the forwarding of the information to the information bureau. Who actually fulfils these tasks will depend on each Party’s procedure for forwarding information to the information bureau. Nonetheless, States must organize and structure the competent authorities and institutions in such a way as to be able to comply fully with the obligations set forth in Article 16. This means that, for example, if the individuals are not the same at each stage of the process, the Party has to ensure, including through training and regulations, that the information is properly transmitted along the chain.
1544  Article 16 does not place any duty on States not Parties to the conflict to record information. However, pursuant to Article 4 of the First Convention, ‘[n]eutral Powers shall apply by analogy the provisions of the present Convention to the wounded and sick … received or interned in their territory, as well as to dead persons found’. Accordingly, Article 16 read together with Article 4 of the First Convention makes clear that neutral States that receive or find wounded, sick or dead persons in their territory are under the same obligation to record the necessary information.
1545  The particulars are to be recorded in respect of ‘each wounded, sick or dead person of the adverse Party falling into [the] hands’ of a Party to the conflict. The particulars must be recorded individually, regardless of the number of persons concerned. This follows from the requirement to record the information in respect of ‘each’ wounded, sick or dead person. Individual recording is of particular importance given that a group of people might be split up when moved. Furthermore, it is essential for establishing individual identities.
1546  This is one of the few provisions of the First Convention that covers the wounded and sick and the dead together;[11] other provisions relate either to the wounded and sick or to the dead.[12] They are treated together in the present article given the need to identify all three categories of persons. Further obligations that concern the deceased exclusively are set out in the fourth paragraph.
1547  The obligation is limited to ‘each wounded, sick or dead person of the adverse Party’ (emphasis added). Thus, unlike the provisions on the search for wounded, sick or dead persons and on the burial of the dead,[13] the obligation in the present article does not extend to wounded, sick or dead members of the Party’s own forces. The limitation can be explained by the obligation that follows the recording of information, namely that it be forwarded to the adverse Party through the procedure set out in the third paragraph. Obligations under international humanitarian law on providing information in respect of the Party’s own forces stem from different rules.[14]
1548  The identities of the wounded, sick or dead will not always be easy to determine, and it may also be unclear whether they belong to the adverse Party. Given that one of the purposes of this provision is to assist in the identification of such persons, it follows that, where there is doubt as to which Party a person belongs, particulars that could assist in his or her identification should still be recorded.
1549  The obligation is further limited to the wounded, sick or dead persons of the adverse Party ‘falling into [the] hands’ of a Party to the conflict. For the meaning of that phrase, see the commentary on Article 14, section C.3.
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3. Recording of particulars
1550  The Parties to the conflict are required to ‘record’ certain particulars. The word ‘record’ means ‘to make a record of’,[15] and it is that action and the content of the record that are of particular importance. This record will enable the Party to keep a constant check on wounded, sick or dead enemy personnel who have fallen into its hands, and will furnish the particulars that are to be forwarded to the adverse Party. The precise form that the record takes is of lesser significance and can be either electronic or paper. Nonetheless, there are certain matters that follow from the requirement. First, there must actually be a record: it is not sufficient for the individuals into whose hands the persons have fallen to simply memorize the particulars. Memorizing will inevitably result in inaccuracies or loss of information. Second, the record must be as accurate as possible. Although 100 per cent accuracy may not be achievable, given the situation, the persons recording the information must do so with due diligence. Third, the record must be able to withstand the conditions of an armed conflict and the vagaries of the climate. Fourth, the Party must have a standard approach to the recording of information. This will assist in the timely transmission of information along the chain.[16] And lastly, once the record is made, it must be stored securely and sent as soon as possible to the information bureau, pursuant to the third paragraph of the present article.
1551  The processing of data for the purposes envisaged in this article is consistent with legal bases for processing generally found in data protection legislation. These include compliance with a legal obligation, in this case Article 16 itself; the vital interests of the data subjects, in this case to ensure that they do not go missing; and important grounds of public interest, in the present case the performance of a humanitarian activity foreseen by the Geneva Conventions, their Additional Protocols and the Statutes of the International Red Cross and Red Crescent Movement, and of the mandates of the information bureau and of the Central Tracing Agency derived therefrom.[17] It is the responsibility of States party to the Geneva Conventions to ensure that if they adopt data protection legislation, such legislation does not bar compliance with Article 16.
1552  The first paragraph of Article 16 sets out the information to be recorded, while the second paragraph sets out in detail the particulars to be recorded.
1553  Article 16(1) provides that ‘any particulars which may assist in’ the identification of the wounded, sick or dead must be recorded. The primary purpose of the provision therefore is the identification of the wounded, sick or dead person in the hands of the adverse Party. Accordingly, ‘any’ particulars which ‘may assist’ in identification must be recorded, no matter how trivial they may seem. This point is expanded on in the second paragraph but, in general terms, the Party should err on the side of inclusion. The summary recording of information does not meet the requirements of this provision.
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4. Timing
1554  The Parties to the conflict are required to record the particulars ‘as soon as possible’. The need for speedy fulfilment of the obligation is evident from its rationale.[18] Parties to the conflict have obligations in respect of persons who are missing.[19] Families and friends have an interest in knowing whether their loved ones are alive or dead. Timely recording of information also serves to protect individuals, by accounting for their whereabouts. Moreover, speed in establishing the necessary records will assist the Party in its task of distributing the wounded to their various places of accommodation while keeping a careful check on their movements. This is of particular importance given that Parties sometimes find it more difficult to account for wounded and sick enemy personnel who are in their hands but outside the usual prisoner-of-war handling processes.[20]
1555  Further precision in regard to the time allowed to fulfil this obligation could not be included in the provision as this will vary according to circumstances. In particular, the timing will depend on the number of persons who have fallen into the hands of the adverse Party, the number of persons who receive them and the period of time involved.[21] Nonetheless, some guidance can be provided. To the extent possible, the information must be recorded at the moment the wounded, sick or dead person first falls into the hands of the adverse Party and prior to any transfer, be it internal or external. This last requirement is of particular importance given that there is a greater chance of a person becoming unaccounted for if there is a transfer to or from, for example, temporary holding facilities, hospitals or prisoner-of-war camps, and this chance increases substantially if the person is transferred to a facility outside the control of the adverse Party.[22]
1556  Both humanitarian and military considerations may make it impossible to record the information immediately upon the person falling into the hands of the adverse Party. For example, the wounded and sick may require urgent medical treatment or rapid evacuation from the battlefield in conditions that do not allow for the immediate recording of information.[23] Although this creates a gap between the moment when the person falls into enemy hands and the moment when the information is recorded, it does not vitiate the obligation, albeit deferred, to record the information. Some States operate a multi-stage system: a truncated documentation, involving the recording of basic details at the point of capture, and a more detailed documentation as soon as reasonably practical thereafter, usually at subsequent stages of the processing of captured personnel.[24]
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5. Capture cards
1557  As noted earlier, members of the armed forces and certain other persons who are wounded or sick and who have fallen into the hands of the adverse Party are prisoners of war and benefit also from the Third Convention. The attention of the authorities responsible for applying the First Convention should therefore be drawn to Article 70 of the Third Convention, pursuant to which prisoners of war must be enabled to write directly to their families and to the Central Prisoners of War Agency, now known as the Central Tracing Agency.[25]
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D. Paragraph 2: Content of the record
1558  Article 16(2) provides a list of the particulars that are required for the identification of the wounded, sick or dead who have fallen into the hands of the adverse Party. It was felt that everything possible should be done to ensure that persons falling into enemy hands were duly identified; and it was desired that the process of identification should, if possible, be the same for all categories of persons protected under the four Conventions. Hence, similar detailed provisions are included in all four Conventions.[26]
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1. Nature of the content
1559  The list of particulars set out in Article 16(2) is illustrative and not exhaustive, as follows from the use of the phrase ‘should if possible include’. The guiding principle in this area is that as much information as possible that may assist in the identification of the wounded, sick or dead person is to be recorded. Accordingly, items or particulars that are not mentioned in the article, such as photographs, fingerprints, body measurements, names and addresses of next of kin,[27] and distinguishing features or markings such as scars or tattoos,[28] may be included in the record. Recording these items will be of particular importance where certain details listed in the paragraph are unobtainable. They are also important given that errors sometimes occur in the recording or transmittal of information.[29] These errors may be due to linguistic differences such as different alphabets, the similarity of certain names, whether phonetic (e.g. Hussein, Hussain and Hossein) or graphic (e.g. Ferrand and Ferraud), or common names (e.g. John Smith).[30] The items listed in the article are the ones that will be most useful in identifying individuals, in contacting the Power on which they depend and in accounting for their whereabouts.
1560  Article 16(2) provides that the listed items ‘should if possible’ be included in the record. The use of this wording indicates that it may not be possible to record all of the listed items in respect of each and every wounded, sick or dead person. It will not be possible, for example, to include the particulars shown on the identity card or disc if no such card or disc is present. Likewise, it may not be possible to record persons’ names and date of birth if they are unconscious and not carrying any form of identification.[31] Thus, if it is possible to do so, the information must be recorded, and the notion of ‘possibility’ is to be interpreted strictly. The sheer number of wounded, sick or dead people or lack of manpower does not release the Party from its obligation. It may take the Party longer than would ordinarily be the case, but in that case the standard of ‘as soon as possible’ will be interpreted accordingly. Likewise, the absence of one particular does not excuse the Party from recording all the other information that is available.
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2. Types of particulars
1561  The listed particulars are of different sorts. Most of them relate to the identification of the individual: name, date of birth, other particulars shown on the identity card or disc, and army or other number. Other particulars relate to the identification (‘designation’) of the Power on which the person depends, so that it may be duly notified. This item of information is of particular importance in a conflict that involves several Parties so that the correct Party and, in turn, the person’s family can be informed and the obligations contained in the third and fourth paragraphs be fulfilled. Other particulars relate to the circumstances in which the person fell into enemy hands. This is the case for the date and place of capture or death and details of wounds, illness or cause of death. These last particulars are related to the obligations contained in related provisions, in particular Article 17 of the First Convention.
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3. The listed particulars
a. Designation of the Power on which the person depends
1562  ‘Designation of the Power on which [the person] depends’ means naming the Party to the conflict to which the individual was attached. This will usually be the same as the person’s State of nationality. However, in certain situations, a person may be fighting on behalf of a State of which he or she is not a national.
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b–e. Number, names and date of birth
1563  The particulars of ‘army, regimental, personal or serial number’, ‘surname’, ‘first name or names’ and ‘date of birth’ are everyday concepts and need no further explanation. All names must be written in full. Shortened forms may cause unnecessary delay in identification and have the potential to mislead.
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f. Particulars on the identity card or disc
1564  Although the paragraph refers to an ‘identity card or disc’, an identity disc is preferable, given that an identity card is more easily lost, damaged or destroyed amid the turmoil of conflict.
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i. Identity card
1565  Article 17(3) of the Third Convention requires that States furnish ‘persons under [their] jurisdiction who are liable to become prisoners of war, with an identity card’. The persons to whom Article 17 is referring are those listed in Article 4A and B of the Third Convention. The categories of persons listed in Article 4A of the Third Convention are the same as those listed in Article 13 of the First Convention, which sets out the categories of persons to which the Convention applies. Accordingly, every wounded or sick person who benefits from the present Convention should be carrying an identity card, unless it has been lost or destroyed during the conflict.
1566  While there is considerable overlap with the particulars listed in Article 16(2), identity cards have to contain several additional pieces of information not specified in the present provision. These are the person’s rank, signature, fingerprints (optional) and other unspecified information, and, in the case of persons who accompany but who are not members of the armed forces, also the name of the military authority issuing the card, place of birth, date of issue, photograph, blood type, religion, imprint of official seal, and marks of identification.[32] These items equate to the ‘any other particulars’ to which item (f) of the present article refers. Each of these details can be recorded, in the case of the signature and fingerprints through scans, digitization or photographs, and these will then afford a valuable means of identification in the absence of general particulars, for example in cases where the card is partially destroyed. These further particulars help ensure that the correct individual is identified and can be cross-checked against the records held by the Power on which the person depends.
1567  In practice, States do not always issue identity cards, and this has led to great difficulties in identifying individuals, particularly when they are deceased. Indeed, in some cases, persons have remained unidentified for want of this type of information. Consequently, it is important for Parties to issue identity cards and for members of the armed forces always to carry one.
1568  Should the person be carrying another form of identification, for example a driver’s licence or a national identity card, any further particulars provided by those documents should also be recorded.
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ii. Identity disc
1569  The practice of providing each member of the armed forces with an identity disc became widespread during the First World War, and the need for standardization of the disc became apparent shortly after.[33] A model identity disc, which could be divided in two, each part bearing the same information, one of which was to remain on the body of the deceased and the other detached from the body and sent to the State on which the individual depended,[34] was approved by the 13th International Conference of the Red Cross,[35] and reference to the identity disc was included in Article 4 of the 1929 Geneva Convention on the Wounded and Sick. Identity discs have since become widely used by State armed forces. In 1981, the 24th International Conference of the Red Cross urged all Parties to armed conflict, without distinction between international and non-international armed conflict, ‘to take all necessary steps to provide the members of their armed forces with identity discs and to ensure that the discs are worn during service’.[36]
1570  To be effective for identification purposes, these double discs must be made with the greatest care. The inscriptions must be indelible. The substance of the disc must be as resistant as possible to the destructive effects of chemical and physical agents, especially fire and heat,[37] and be unaffected by the climate and bodily contact. This will usually be a durable metal. Although there is a model identity disc, different armed forces follow their own preferences. The precise form of the disc may thus vary between States, for example in its shape (oval, rectangular, etc.), the particular metal used, and the manner in which the two halves of the disc are attached (by chain, directly to each other, etc.). This object is sometimes referred to as ‘a disc’ (i.e. a single item but with two halves) or ‘discs’ (i.e. a reference to two parts of a whole). Whether in the singular or the plural, it is basically the same thing.
1571  The disc should be worn on the person, usually around the neck, and not be attached to an item of clothing, for example the lace of a boot, or to another belonging such as a rucksack. It is all too easy to become separated from one’s belongings, especially during hostilities, vastly reducing the utility of the disc if it is not worn on the person.[38] Likewise, it is imperative for individuals to wear their own discs and not those of others.
1572  The precise information inscribed on the identity disc varies between States. The 24th International Conference of the Red Cross recommended that the discs ‘give all the indications required for a precise identification of members of the armed forces such as full name, date and place of birth, religion, serial number and blood group’.[39] Some States include other particulars, for example the person’s social security/insurance number or the branch of the armed forces in which he or she serves. It goes without saying that the details inscribed on the disc must be genuine and not contain false information designed, for example, to mislead the adverse Party. It should also be inscribed in a manner that can easily be understood by others, for example not in code.
1573  The identity disc should be issued as soon as the individual enters the armed forces. This is one of the measures States Parties can take in peacetime. Delay in issuing the identity disc until the outbreak of hostilities may result in the identity disc being issued too late or not at all owing to the speedy deployment of forces or preoccupation with military matters.[40]
1574  It may be argued that, for practical reasons, there is an obligation on States to issue identity discs to members of their armed forces. This follows from the obligation on Parties to conflicts in Article 17(3) of the Third Convention ‘to furnish the persons under [their] jurisdiction who are liable to become prisoners of war, with an identity card’, coupled with the preference for identity discs over identity cards expressed in Resolution I of the 24th International Conference.[41] However, Article 16 does not as such spell out an obligation to issue identity discs or to wear them.[42] Regardless, the importance of such discs and the desirability of their adoption by all armed forces and of all individuals becoming familiar with them cannot be overstated. The absence of identity discs in certain conflicts has led to numerous problems with the identification of dead bodies and the tracing of missing persons.[43]
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g–h. Details concerning capture, wounds, illness or death
1575  It is largely within the ability of the Party into whose hands the individual has fallen to determine the information required under the items ‘(g) date and place of capture or death’ and ‘(h) particulars concerning wounds or illness, or cause of death’. Accordingly, such information must be recorded to the extent possible, regardless of the person’s condition and the presence of any identity disc or card. The required information is related to Article 17 of the present Convention (prescriptions regarding the dead) and thus to associated obligations on the Party.
1576  Insofar as item (g) is concerned, it will not always be possible to give the exact date on which death occurred, for example when the individual was already deceased when picked up on the battlefield. But the date is nevertheless of great importance for reasons mainly connected with civil and family law, for example in relation to the deceased’s family receiving due benefits or for testate matters. The date must therefore be determined with all the precision which present-day medical science affords, to the extent such science is available and practical, and mention should be made of any medical examination, together with the results, in the details that are forwarded.[44]
1577  The date and place of capture must also be recorded. This holds true for situations in which a person falls into enemy hands in a manner other than capture (e.g. surrender). It should be recalled that the first paragraph sets out the scope of the provision and refers to wounded, sick or dead individuals falling into the hands of the adverse Party generally. In referring only to capture, the second paragraph does not serve to limit the scope of the provision. Rather, it lists the particulars that are to be recorded ‘if possible’. In the absence of an identity card or disc, detailing the exact time and place, for example through GPS coordinates, that the persons fell into the Party’s hands may assist in their identification. Families of missing persons sometimes contact the Central Tracing Agency with information that their loved ones were picked up by the adverse Party at a particular time and place. This information can then be cross-checked against the equivalent information provided by the Party in question.
1578  The information required under item (h) is medical in nature and should be supplied by a doctor. Provision should in consequence be made for the constant presence of a doctor with the competent administrative authorities. If no doctor is present, the information should be provided by another suitably qualified person. The Parties to the conflict must endeavour to supply these particulars, only insofar as they have a bearing on the identification of the individual.[45] According to contemporary standards of medical ethics, doctors must treat all medical information with absolute confidentiality,[46] unless the patient has capacity and consents to the disclosure/sharing of the information, ‘it is required by law’ (in this case Article 16 itself) or ‘it is justified in the public interest’.[47] It is a delicate matter, which must be handled with the utmost care in the light of the person’s high degree of vulnerability.
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4. Means of obtaining the particulars
1579  Collecting information on wounded, sick or dead persons can be difficult. However, the Party into whose hands an individual has fallen can obtain the information required by Article 16(2) in different ways.
1580  Items (a) to (f) in the list can be obtained most readily from the identity card or disc, where present, while items (g) and (h) are supplied by the Power into whose hands the individual has fallen. It should be recalled that the identity card or disc cannot be confiscated at any time, even to obtain the relevant information. This is stated explicitly in Article 17(2) of the Third Convention, a rule which applies with equal force in the present context given that to confiscate the card or disc would be to obviate its very rationale.
1581  The information can also be obtained by questioning the person concerned. Pursuant to Article 17(1) of the Third Convention, prisoners of war are required to provide their ‘surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information’. In this scenario, Article 17(4) prohibits torture or coercion to secure information from prisoners of war and provides that ‘[p]risoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind’. In the present context, this means, in particular, that medical treatment cannot be made contingent on the answering of questions. Likewise, the failure to answer questions cannot lead to disadvantageous treatment of any sort, including inferior medical treatment. Furthermore, the questioning must not in any way hinder or interfere with the required medical care. Accordingly, acts such as delaying necessary medical treatment in order to make the person feel more vulnerable or stretching out the journey to the medical facility in order to have more time for questioning are prohibited.
1582  Although the provisions of Article 17 of the Third Convention are not contained in the present article, they nonetheless apply to persons covered by it.[48] The wounded and sick who have fallen into the hands of the adverse Party are prisoners of war and the First and Third Conventions apply simultaneously to them. It is therefore essential that the authorities and all persons who are called upon to apply the First Convention are fully conversant with the provisions of Article 17 of the Third Convention and that they strictly observe them. Furthermore, pursuant to Article 12 of the First Convention, the wounded and sick must be treated humanely and cared for.
1583  If the information cannot be obtained by the above means, for example if the person is unconscious or refuses to provide the information, or when an identity card or disc is not present, it does not follow that a record cannot be made. As indicated above, some of the information required is largely within the control of the Party into whose hands the wounded, sick or dead have fallen.[49] Accordingly, this information can usually be provided and there will not normally be a reasonable excuse for failing to record it.
1584  Other information can be obtained by different means. According to the Third Convention, ‘all possible means’ must be used to identify ‘[p]risoners of war who, owing to their physical or mental condition, are unable to state their identity’, but these means must not amount to, or involve, torture, coercion, threats, insults or exposure to unpleasant or disadvantageous treatment of any kind.[50] Thus, an individual may be fingerprinted or photographed.[51] A DNA sample may not be taken without the person’s consent, unless there is a legal justification, such as in the case of a criminal investigation, or to identify remains.[52]
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E. Paragraph 3: Forwarding and transmittal of information
1585  Article 16(3) describes what has to be done with the information that has been collected. It fills an important gap in the previous Geneva Conventions, none of which specified how or to whom the information was to be transmitted.[53] The provision is now quite clear. The information is to be forwarded as soon as possible, by the persons or authorities who collected it, to the information bureau which the Party to the conflict is required to establish. The information bureau will transmit it to the Protecting Power, should one exist, and to the Central Tracing Agency, while the Protecting Power and the Central Tracing Agency will each pass it on to the Power on which the wounded, sick or dead persons depend. This process, aside from the appointment of Protecting Powers, has generally been followed in all major international armed conflicts since the adoption of the Convention.
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1. Forwarding to the information bureau
1586  The information collected pursuant to the first and second paragraphs of Article 16 is to be forwarded to the information bureau described in Article 122 of the Third Convention. Pursuant to that article, the Parties to the conflict are required to establish an information bureau upon the outbreak of the conflict and in cases of occupation. The purpose of the information bureau is to centralize all information relating to prisoners of war, such as information on their movements, releases, illnesses or deaths. This is necessary both for administrative reasons and to enable particulars to be forwarded to the Power on which the prisoners of war depend and, in turn, to their families. It also follows from the principle that prisoners of war are in the hands of the adverse Party rather than of the individuals who captured them.[54] Given the overlap between the First and Third Conventions,[55] the mandate of the information bureau extends to certain aspects of the First Convention. Indeed, it was only logical to centralize all the information concerning prisoners of war, advising one and the same office of everything happening to them, be they wounded, sick or in good health, regardless of whether they came under the First, Second or Third Convention.
1587  For the information bureau to carry out its tasks, the Party to the conflict must have a procedure in place for the forwarding of information. This will require ‘clear lines of communication’[56] between the individuals into whose hands the persons have fallen, hospitals or other facilities for the treatment of the wounded and sick, prisoner-of-war camps and the information bureau. This is the only way to ensure that those who actually record the information forward it to the information bureau.
1588  The information is to be forwarded ‘as soon as possible’ for the reasons set out above.[57] The likely existence of a chain of transmission makes its timeliness all the more important. The phrase ‘as soon as possible’ implies that the forwarding of the information must take place by the most rapid means available, for example electronically.
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2. Transmittal to the Protecting Power and the Central Tracing Agency
1589  Once the information bureau receives the information, it is required to transmit it to the Protecting Power and the Central Tracing Agency. This dual line of reporting has proved useful given the relatively few conflicts in which Protecting Powers have been appointed.[58] In conflicts in which Protecting Powers exist, the information will reach the adverse Party through two distinct channels.
1590  The transmission to the Protecting Power will usually be effected by communicating the information to the diplomatic staff which the Protecting Power maintains in the country concerned for the purpose of exercising its protective functions. It is then incumbent on the diplomatic staff to arrange for the information to be transmitted as quickly as possible to its own authorities, who will pass it on to the Party on whose behalf it is acting as Protecting Power.
1591  The Central Prisoners of War Agency, renamed the Central Tracing Agency in 1960, is a standing division of the ICRC based in Geneva. As its original name suggests, one of its primary functions is to centralize information on prisoners of war and to transmit that information to the country of origin of the prisoners of war or to the Power on which they depend.[59] In so far as the present provision is concerned, one of the Agency’s functions is to receive particulars relating to the wounded, sick and dead, and to forward them to the Power on which they depend.[60] In practice, the particulars have taken a variety of forms, including individual identity cards, lists, death certificates, letters and telegrams.
1592  The information bureau must transmit the information ‘as soon as possible’.[61] The equivalent provision in Article 122(3) of the Third Convention requires that it be done ‘immediately’. In practice, at this stage of the transmission process, there will be little difference between ‘as soon as possible’ and ‘immediately’. Immediacy is subject to putting the information in an appropriate form, cross-checking it against other information received, and making a copy for the records of the Party to which the information bureau belongs.
1593  The information must be forwarded using ‘the most rapid means’ available. This standard is set out in the equivalent provision in Article 122(3) of the Third Convention and applies equally to the present provision. The precise means of transmission will depend on the relevant State’s level of technical progress. In practice, this has included the postal service, telegram, electronic communication and hand delivery. However, some of these means (e.g. telegram) are now mostly redundant and the requirement to use the most rapid means available suggests that, in most cases, this will be, and in practice often has been, electronic means such as email. On occasion, the information is handed over to delegates of the ICRC or of another impartial humanitarian organization on the ground.
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3. Obligatory nature of forwarding and transmittal of information
1594  Both stages in the transmittal process, i.e. from those who record the information to the information bureau and from the information bureau to the Protecting Power (if any) and the Central Tracing Agency, are obligatory. This is evident from the word ‘shall’, which is used twice in the paragraph and in relation to both stages. Accordingly, the individuals who record the information cannot use their discretion in deciding whether to forward the information to the information bureau. Likewise, the information bureau cannot use its discretion in deciding whether to transmit the information to the Protecting Power and the Central Tracing Agency. This is the case regardless of the circumstances, for example if equivalent information has been provided by the adverse Party.[62] The provision, like all of international humanitarian law, does not operate on the basis of reciprocity.[63]
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4. Transmittal to the Power on which the persons depend
1595  The Protecting Power and the Central Tracing Agency act as intermediaries between the Parties in regard to the transmittal of information. Accordingly, they do not keep the information for themselves; rather, they are required to forward that information to the Power on which the persons depend. The Agency does, however, record and keep a copy of the information for its files,[64] for example in case the information is lost en route to the Power. This also allows the Agency to respond to queries from concerned families.[65]
1596  An exception to this rule, in so far as the Agency is concerned, is where the Power on which the persons depend systematically uses the information to harm the persons concerned or their families,[66] such as to make accusations of desertion or to intimidate or persecute families. Transmittal may also be suspended where the information is repeatedly (mis)used for propaganda purposes, such as to accuse the adverse Party of torturing or murdering the persons in its hands. This is also consistent with the notion that personal data may not be used for purposes other than those for which they were collected or for compatible further processing.[67] Accordingly, if the Power on which the persons depend uses that information to harm them or their families, it is only proper that transmittal be suspended. Such suspension is a matter for the Agency and not for the Power into whose hands the persons have fallen; it remains incumbent on the latter to transmit the information to the Agency. Nor does it mean that the families of persons who have fallen into the hands of the adverse Party will be deprived of news of their loved ones. The Agency may communicate the information directly to the families concerned if it considers that it can so act without prejudice to anyone.
1597  The situation is more difficult in so far as the Protecting Power is concerned. Unlike the Central Tracing Agency, which is a purely humanitarian body concerned exclusively with the fate of victims of armed conflict, the Protecting Power, through a sort of agreement between itself and the Power that it is protecting, undertakes the forwarding of the most varied kinds of documents without necessarily considering whether it is expedient to forward them or not. However, if the interests of the persons in the hands of the adverse Party or their families are being harmed, the Protecting Power would be well advised to adopt, at least temporarily, a position similar to that of the Agency.
1598  The transmittal of information must be carried out ‘as soon as possible’. The paragraph commences with these words and they can be read as applying to both the Protecting Power and the Central Tracing Agency. This is confirmed by Article 123 of the Third Convention, which provides that the Agency must ‘transmit [the information] as rapidly as possible’. The information is transmitted in the same manner as noted above, for example by email or hand, depending on the context.[68]
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5. Communication to the family
1599  Although nowhere stated in the paragraph, the Power on which the persons depend must inform the families of the wounded, sick or dead who are in the hands of the adverse Party of the fate of their loved ones.[69] Indeed, the system is established in the interest of the State on which the individuals depend and their families. Article 122(4) of the Third Convention provides that the equivalent information required by that article ‘shall make it possible quickly to advise the next of kin concerned’. Although it may have been unclear at the time of the adoption of the Convention whether the provision constituted a recommendation that the belligerents advise the next of kin of prisoners of war, given that these are matters which are solely within the purview of the Power on which prisoners of war depend, international humanitarian law has since developed. Additional Protocol I provides that application of its provisions on the missing and the dead ‘shall be prompted mainly by the right of families to know the fate of their relatives’,[70] a point which holds true also for the provisions of the Conventions relating to the wounded, sick and dead.
1600  Other instruments also provide for a right of families to know the fate of missing relatives.[71] Under customary international law, each Party to the conflict must provide family members of missing persons with any information it has on their fate.[72] Indeed, one State has expressed the view that the need to establish an individual’s identity is ‘to enable his capture to be reported to the authorities in his own country and to his family’;[73] another stipulates that one of the tasks of the national information bureau is to ‘transmit … the information received to the families concerned’.[74] Deliberately withholding information about missing persons contravenes the right of families to know the fate of their loved ones. This does not mean that every single piece of information has to be communicated to the family, as a Party might have a legitimate interest in withholding certain types of information. Nonetheless, the general fate of individuals, such as their death or capture, must be communicated to the family.
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F. Paragraph 4: Forwarding of death certificates and personal items
1601  Article 16(4) deals with the forwarding of documents and items that relate exclusively to the dead.
1602  The present provision embodies the practice of a number of belligerents and of the Central Prisoners of War Agency during the Second World War, and introduces the precision which was lacking in the 1929 Geneva Convention on the Wounded and Sick.
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1. Certificates of death or lists of deceased
1603  Pursuant to the first sentence of Article 16(4), the Parties to the conflict ‘shall prepare and forward to each other … certificates of death or duly authenticated lists of the dead’ (hereinafter shortened to ‘death certificates or lists’).
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a. The obligation
1604  The Parties to the conflict are required to prepare and forward death certificates or lists, as is evident from use of the word ‘shall’.[75] The obligation is one of result and there is no excuse for failure to meet this requirement. This does not mean that the Party is under an obligation to identify every single deceased person so that it can prepare death certificates. The obligation of identification is one of conduct, to be carried out with due diligence, as it may not be possible to identify the deceased, for example if no identity disc or card was on the person and he or she did not regain consciousness whilst in the hands of the Party.[76] In respect of persons who have not been identified, as much information as possible is to be provided on the death certificates or lists.
1605  Given that the obligation to prepare the death certificates or lists is so that they can be forwarded, the Party whose task it is must not use them for such other purposes as propaganda or intimidation.
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b. Timing
1606  Although not stated explicitly in the paragraph, the death certificates or lists are to be prepared and forwarded as soon as possible. This is because it is in the interests of the family to receive the death certificate as soon as possible following notification of the death so that testate and other civil law matters can start to be addressed. Likewise, Article 120(2) of the Third Convention requires that death certificates of prisoners of war or certified lists of dead prisoners of war be forwarded ‘as rapidly as possible’. In many cases, it may be possible to prepare and transfer the record of death and the death certificate at the same time. Indeed, with respect to persons who died immediately upon falling into the hands of the adverse Party and before the record required by the second paragraph can be made, the Party may decide to record the required information in the form of a death certificate.
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c. Procedure
1607  The death certificates or lists are to be forwarded ‘through the same bureau’, that is to say the information bureau referred to in the third paragraph. In practice, death certificates or lists are not always transmitted through the information bureau. They are sometimes handed over in person to ICRC delegates on the ground, who forward them to the Central Tracing Agency in Geneva, or they are sometimes handed over to the ICRC in Geneva by the permanent mission of the State in question.
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d. Documents and items for forwarding
i. Death certificates
1608  Article 4, paragraph 2, of the 1929 Geneva Convention on the Wounded and Sick referred to ‘certificates of death’, without specifying their content or how they were to be made out. During the Second World War, the procedure for the preparation and transmission of death certificates varied, but some States made use of a detailed standard form proposed by the ICRC.[77] Despite the existence of this form, the First Convention does not specify the content of the death certificate or the form it should take, so reference should be made to the Third Convention in this regard. Article 120(2) of the Third Convention sets out the requirements for death certificates in respect of prisoners of war. While there are differences in a Party’s duty of care to a person who dies on the battlefield and one who dies whilst a prisoner of war,[78] the provisions of Article 120 apply largely to both categories, at least in so far as circumstances allow.
1609  This means that the death certificates of persons who die on the battlefield should follow the model annexed to the Third Convention (Annex IVD) and contain three kinds of information.
1610  The first set of particulars relates to the identity of the deceased and includes: surname and first name; rank; army, regimental, personal or serial number, or equivalent information; and date of birth. The second set relates to the death itself and includes the date and place of death and the cause of death. The third and final set relates to the burial site and includes the date and place of burial and all particulars necessary to identify the grave. If the body has been cremated, the fact is to be stated, together with the reasons for such exceptional treatment, as provided in Article 17(2) of the First Convention.[79] All these particulars, with the exception of the last set, are the same as those required by Article 16(1) and (2).
1611  The model death certificate includes, in addition to the above particulars, two headings of the greatest interest to the families of the deceased, namely a reference to the possible existence of personal effects, which is further discussed below, and a few details about the last moments of the deceased. It will no doubt only be rarely that particulars can be given under the latter heading in the case of dead picked up on the battlefield. But the responsible authorities should nevertheless endeavour to give as many details as possible, in view of their sentimental and human value.
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ii. Authenticated lists of the dead
1612  As an alternative to the preparation and forwarding of death certificates, the paragraph provides for the preparation and forwarding of duly authenticated lists of the dead. This was done, for example, during the conflicts in the Middle East in the late 1960s and early 1970s.[80] The lists must be authenticated, i.e. certified, which requires both that an individual of sufficient authority authenticates the lists[81] and that a process of authentication be undertaken, for example checking the information contained in the lists against other records in the Party’s possession. Authentication will usually take place through a signature together with a stamp or seal.[82]
1613  Although presented as an alternative, death certificates are by far preferable to certified lists, as individual death certificates are generally required by the national legislation of the Power on which the individual depends, for example to legally confirm death and to issue benefits to the family of the deceased or for testate matters. The reason for the provision of an alternative was the view that death certificates could not be made obligatory owing to the additional work they involved.[83] If authenticated lists of the dead are used, they must, as far as possible, be consistent with the model death certificate and contain the same kinds of information.
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2. Identity disc, wills and personal items
a. The obligation
1614  Pursuant to the second sentence of Article 16(4), the Parties to the conflict are required to collect, i.e. to ‘bring or gather together’,[84] and forward the items mentioned in the paragraph. The obligation is evident from the use of the word ‘shall’. The items in question are: ‘one half of a double identity disc, last wills or other documents of importance to the next of kin, money and in general all articles of an intrinsic or sentimental value, which are found on the dead’.[85]
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b. Timing
1615  Although not set out explicitly in the paragraph, the listed items are to be collected and forwarded as soon as possible. This obligation is based on the needs of the family. For example, the wills will be required for the possessions of the deceased to be distributed in accordance with their wishes. In many cases, it may be possible to forward the items to the information bureau at the same time as the information specified in the second paragraph, or at the same time as the death certificates or lists of the dead specified in the fourth paragraph. This may not be possible in all cases, for example if the information can be transmitted electronically but there are no physical means by which to send the items. It should also be recalled that the individuals into whose hands the deceased have fallen are not permitted to keep the items for any reason, including, for example, as souvenirs.[86]
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c. Procedure
1616  The items are to be forwarded ‘through the same bureau’, that is to say through the information bureau, which in turn has to transmit them to the Central Tracing Agency or the Protecting Power. As the items are unique tangible objects, they can only be transmitted through one of these two channels. The choice between the two is for the relevant information bureau to make but, in practice, it is the Agency which is usually chosen, either because there are no Protecting Powers or, in conflicts in which Protecting Powers are used, because the Agency has prepared especially for this task. The Central Tracing Agency and Protecting Power will, in turn, transmit the items to the family of the deceased.
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d. Items for forwarding
1617  The paragraph provides an exhaustive list of items to be forwarded, although two of the items – documents of importance to the next of kin and articles of an intrinsic or sentimental value – are general in nature. In practice, States have interpreted the list broadly, requiring that ‘personal effects’ be collected and forwarded, and this is reflected in the customary international law standard.[87]
1618  What is common to each of the listed items is that they are ‘found on the dead’. The phrase includes items that are physically on the body, for example one half of the double identity disc, a ring or a wristwatch. It also includes items that are on, or in, the clothes that are worn by the deceased, for example in a pocket or affixed to a lapel. It further covers items that are being carried by the deceased, for example in a rucksack, as those too are ‘found on the dead’. Lastly, the phrase extends to objects that are in the immediate vicinity of the dead.[88] It would be unfortunate if a strict reading of the provision led to the conclusion, for example, that an item otherwise falling within the scope of the paragraph but lying just beyond the reach of the deceased’s outstretched hand was not collected and forwarded as it was not found ‘on the dead’. While the Party is not under an obligation to search the surroundings for valuables belonging to the deceased, the phrase must be interpreted with the purpose of the provision in mind,[89] namely to return items of value and/or importance to the families of the deceased. Accordingly, where it is clear that an item not found on the deceased nonetheless belongs to him or her and is of value or importance to the family, it must be forwarded.[90] Indeed, in practice, and reflected in the customary international law standard, States have omitted the condition that the personal effects be ‘found on the dead’, instead referring to a more general obligation to collect and forward the items.[91]
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i. One half of the double identity disc
1619  One half of the double identity disc is to remain around the neck of the deceased, while the other half is to be detached and sent to the State on which he or she depended.[92] Article 17(1) provides for the possibility of soldiers being issued only with single discs. In such cases, the whole disc must remain with the body, as it is essential for the body to be identifiable at any time. But the use of a single disc will deprive the Power on which the individual depended of an additional, and often very valuable, means of identification. Accordingly, the disc should be composed of two separable parts.
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ii. Last wills
1620  In collecting the documents that are on the person of the deceased, the preservation and forwarding of those which have legal value, particularly wills, are important. Only in this way can the possessions of the deceased be disposed of in the manner intended. Although the practice of conflicts suggests that the Geneva Conventions’ provisions on wills rarely need to be resorted to, such is the importance of the issue that the topic is mentioned in all four Conventions.[93]
1621  The reference to a ‘will’ is to ‘a legal document containing instructions for the disposition of one’s money and property after one’s death’,[94] howsoever characterized. The document that passes for a will may not look like one, for example it might be scrawled on a scrap of paper, it might not use the language of the law (testator, beneficiary, and so on), and witnesses might not have attested to it. This does not prevent it from having to be forwarded. It is not for the Party to judge the validity of the will, only to forward to the information bureau that which resembles a will.[95]
1622  Should there be multiple wills of differing dates, all such wills must be forwarded. The reference to ‘last will’ is simply to the will, ‘last will’ or ‘last will and testament’ being alternative names for the document. The reference does not mean that the individuals of the Party into whose hands the deceased have fallen are to select and forward only the most recently dated will. As already noted, the choice between wills, their validity and so forth are not matters for the Party concerned; all that is required of the Party in this regard is that the will(s) are forwarded to the information bureau. Decisions on the validity of the will and other matters fall within the domestic legal framework of the State in which the will is to be given effect.
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iii. Other documents of importance
1623  The documents to be forwarded are not limited to wills; they include ‘other documents of importance to the next of kin’. This is a broad category that is defined by three salient features. First, the item must be of a documentary nature, i.e. it must be ‘a piece of written, printed, or electronic matter that provides information or evidence’.[96] Second, the item must be important to the next of kin.[97] This category thus includes such documents as instructions for the disposal of the body and arrangements for the care of children. It also excludes certain documents, such as those of intelligence or military value. As the importance of a document is relative and, aside from certain documents such as a will or those of military value, may not be immediately apparent, the individuals of the Party into whose hands the deceased have fallen should err on the side of forwarding the document. Indeed, the provision should be read as requiring the forwarding of documents that are not obviously unimportant to the next of kin. Where a bundle of papers, or files on a USB drive, contain documents of military value as well as documents of importance to the next of kin, the documents should be separated if, and to the extent, possible.
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iv. Money
1624  ‘[M]oney … which [is] found on the dead’ must also be forwarded. As this category is not narrowed down further, aside from it being found on the dead, all money is to be forwarded regardless of the amount and currency. Likewise, it is not limited to cash, that is to say banknotes and coins, but extends to cheques, money orders and any other monetary items.
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v. Articles of intrinsic or sentimental value
1625  The final category listed is ‘in general all articles of an intrinsic or sentimental value’. This comprises, in fact, two categories – objects of an intrinsic value and objects of sentimental value. The two categories are to be interpreted broadly, as is evident by the words ‘in general’ and ‘all’. The defining feature of both categories is the value of the object, although one category is judged by its monetary worth and the other by its sentimental worth. Selection in the latter case will sometimes be more difficult; it must be borne in mind that articles which have little or no apparent value may, for sentimental reasons, be highly prized by near relatives. Likewise, what is considered to be of sentimental value will also vary by individual and also possibly by culture. Accordingly, and given also that what might be considered valuable for monetary reasons by one person might be considered near worthless by another, the individuals of the Party into whose hands the deceased have fallen should err on the side of forwarding the objects and leave it to the families of the deceased to judge whether or not they wish to retain the objects.[98] Indeed, the very fact that the object was on the person of the deceased at the moment he or she passed away might make it of sentimental value to the family. In general terms, though, articles of sentimental value include personal letters,[99] personal photographs, a wallet, a wristwatch, items of jewellery such as a ring or a chain, and religious artefacts. Also in general terms, items that would not fall within this category include weapons,[100] other military materiel, and photographs of military use, for example those taken on a scouting expedition.
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vi. Unidentified articles
1626  One further category of items to be forwarded is listed, albeit in the final sentence of the paragraph and not in the sentence that contains the other items to be forwarded. This category is termed ‘unidentified articles’ and by default does not include any of the categories discussed above. It must be recalled that, under customary international law, all ‘personal effects’ and not only those items listed in the paragraph under discussion are to be collected and forwarded. Through the inclusion of the category ‘unidentified articles’, the conventional and customary law standards are not far apart.
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3. Transmittal of the items
1627  The final sentence of Article 16(4) provides details concerning the transmittal of the items listed in the paragraph. The Parties to the conflict are to send the objects in sealed packets, accompanied by a statement on the identity of the deceased owner, as well as by a complete list of the contents.
1628  The items in question are those set out in the first two sentences, together with ‘unidentified articles’. They are to be ‘sent’ through the information bureau. As the items in question are physical objects rather than pieces of information, it will be necessary for them to be physically transported, first to the information bureau and then to the Central Tracing Agency or Protecting Power. This will usually be done through the postal system, and the Third Convention provides that the information bureau ‘shall enjoy free postage for mail’.[101] However, provided that the items are ‘sent’, it is not required that this be done via the postal system; other means, such as personally conveying the items to the information bureau and to the Protecting Power or Agency, are just as acceptable. Regardless of the precise means used, the method and manner of sending must be reliable. Reliability operates at different levels, including that the items are actually received in the ordinary course of things, that they are received in good order, and that their receipt is not unduly delayed. All feasible precautions must be taken to ensure that parcels of such value are not lost or opened ‘en route’. In time of armed conflict, postal communications are uncertain and often roundabout, and the risk of damage or deterioration is correspondingly increased.
1629  The items are to be sent ‘in sealed packets’. This reduces the chance of interference with or damage to the items. It further reduces the chances of them being mixed up with the belongings of other persons transmitted at the same time.
1630  The sealed packets must be ‘accompanied by’ certain pieces of information. Thus, the required information must be packaged alongside the items and should not follow later. The information must also be attached to the items or clearly indicate the item to which it belongs; otherwise, the very purpose behind the sending of the information is negated. The information in question is ‘statements giving all particulars necessary for the identification of the deceased owners’ and ‘a complete list of the contents of the parcel’. The former is required in order to match the deceased owners with their property, while the latter is required to ensure that all the items that are sent reach their final destination. In the event that the property was found on a person who could not be identified, the information concerning the deceased owner will relate to the particulars that the Party was able to record.
1631  The Central Tracing Agency or Protecting Power that receives the items sends them unopened to the family of the deceased. Precisely which family member receives the items depends on the individual’s circumstances. In practice, this tends to be the spouse, the parents or, failing these, another family member. In so far as the Central Agency is concerned, if the ICRC has already had contact with the family of the deceased, the items are sent to the ICRC delegation or the National Red Cross or Red Crescent Society of the State in question, rather than through the Power on which the deceased depended, for transmittal to the family. If there has been no such contact, the ICRC discusses the matter with the Power on which the deceased depended or sends the items to it, for onward transmittal to the family.
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Select bibliography
Ary, Vaughn A., ‘Accounting for Prisoners of War: A Legal Review of the United States Armed Forces Identification and Reporting Procedures’, Army Lawyer, No. 261, August 1994, pp. 16–26.
Bugnion, François, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, pp. 498–507.
Capdevila, Luc and Voldman, Danièle, ‘Du numéro matricule au code génétique: la manipulation du corps des tués de la guerre en quête d’identité’ (‘From regimental number to genetic code: The handling of bodies of war victims in the search for identity’), International Review of the Red Cross, Vol. 84, No. 848, December 2002, pp. 751–765.
– (eds), War Dead: Western Societies and the Casualties of War, Edinburgh University Press, 2006.
Đjurović, Gradimir, The Central Tracing Agency of the International Committee of the Red Cross, Henry Dunant Institute, Geneva, 1986.
Durand, André, History of the International Committee of the Red Cross, Volume II: from Sarajevo to Hiroshima, Henry Dunant Institute, Geneva, 1984, pp. 34–48 and 413–441.
Geiss, Robin, ‘Name, rank, date of birth, serial number and the right to remain silent’, International Review of the Red Cross, Vol. 87, No. 860, December 2005, pp. 721–735.
Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, available at https://www.icrc.org/customary-ihl/eng/docs/v1.
Katz, Monique, ‘The Central Tracing Agency of the ICRC’, International Review of the Red Cross, Vol. 17, No. 199, October 1977, pp. 407–412.
Petrig, Anna, ‘Search for Missing Persons’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 257–276.
Sassòli, Marco, ‘The National Information Bureau in Aid of the Victims of Armed Conflicts’, International Review of the Red Cross, Vol. 27, No. 256, February 1987, pp. 6–24.

1 - See also Convention on Enforced Disappearance (2006), Article 17(3), which provides that each State Party to the Convention ‘shall assure the compilation and maintenance of one or more up-to-date official registers and/or records of persons deprived of liberty, which shall be made promptly available, upon request, to any judicial or other competent authority or institution authorized for that purpose by the law of the State Party concerned or any relevant international legal instrument to which the State concerned is a party’.
2 - See e.g. First Convention, Article 17, and Additional Protocol I, Article 32.
3 - Third Convention, Article 4. On the division between the First and Third Conventions, see Article 14 of the First Convention.
4 - Oxford Manual (1880), Article 20.
5 - Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, p. 31.
6 - However, the 1929 Geneva Convention on Prisoners of War contained provisions on the creation of national information bureaux (Article 77) and a Central Agency (Article 79), and those bodies were implicitly entrusted with matters concerning the wounded and dead collected on the battlefield; see ibid.
7 - On which, see ICRC, Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume I: General Activities and Volume II: The Central Agency for Prisoners of War, ICRC, Geneva, 1948.
8 - The recording of this information in respect of the dead and the detained is also an obligation under customary international law; see ICRC Study on Customary International Humanitarian Law (2005), Rules 116 and 123.
9 - Durand, p. 416.
10 - See also Katz, p. 409.
11 - See also First Convention, Articles 4 and 15. For the meaning of the term ‘wounded and sick’, see the commentary on Article 12, section D.2.
12 - On the wounded and sick, see in particular Chapter II of the First Convention; on the dead, see Article 17 of the First Convention.
13 - First Convention, Articles 15 and 17.
14 - See e.g. Additional Protocol I, Article 32. See also ICRC Study on Customary International Humanitarian Law (2005), Rule 117.
15 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1202.
16 - On which, see para. 1588.
17 - See e.g. Council of Europe, Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, Convention No. 108, Strasbourg, 28 January 1981, Article 5(a).
18 - See para. 1541.
19 - See Fourth Convention, Article 26; Additional Protocol I, Article 33; and ICRC Study on Customary International Humanitarian Law (2005), Rule 117.
20 - Ary, p. 25.
21 - See also ibid. p. 21.
22 - See also the safeguards in Article 12 of the Third Convention.
23 - See also the obligation to respect and protect the wounded and sick (Article 12) and the obligation to search for and evacuate them (Article 15). See also Article 19 of the Third Convention, and Ary, pp. 25–26.
24 - See e.g. United Kingdom, Joint Doctrine Captured Persons, 2015.
25 - For details concerning timing, content of writing, and transmission of cards, see Article 70 of the Third Convention and its commentary. On the name change, see para. 1591.
26 - Second Convention, Article 19; Third Convention, Article 122; Fourth Convention, Article 138.
27 - The names and addresses of next of kin were included, for example, in some of the death certificates that were forwarded by Ethiopia during the armed conflict between Eritrea and Ethiopia. Although the wording used is ‘next of kin’, it refers to the general notion of the family of the deceased and is not limited to the stricter meaning of ‘closest immediate relative’.
28 - See, with respect to the dead, ICRC, Operational Best Practices Regarding the Management of Human Remains and Information on the Dead by Non-Specialists, ICRC, Geneva, 2004, pp. 41–42.
29 - For example, during the conflict in Cyprus in 1974, some of the lists transmitted ‘were only of partial use because the misspelling of names made identification of the prisoners impossible’; Đjurović, p. 232.
30 - This was a particular problem during the Second World War. See ICRC, Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume II: The Central Agency for Prisoners of War, ICRC, Geneva, 1948, pp. 105–106.
31 - See Henckaerts/Doswald-Beck, commentary on Rule 123, p. 440 (‘As to the extent of the information to be recorded, the duty of the State cannot exceed the level of information available from detainees or from documents they may carry.’)
32 - Third Convention, Article 4A(4) and Annex IV.
33 - On the use of the disc prior to the First World War, see Capdevila/Voldman, 2006, pp. 22–26.
34 - See Commission internationale pour la standardisation du matériel sanitaire, 2nd Session, 24–31 October 1927, Resolution III, reproduced in Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix Rouge, Vol. 9, No. 107, November 1927, pp. 770–771, and 3rd Session, 16–23 July 1928, Resolution VIII, reproduced in Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix Rouge, Vol. 10, No. 115, July 1928, p. 583.
35 - 13th International Conference of the Red Cross, The Hague, 1928, Resolution X, reproduced in Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix Rouge, Vol. 10, No. 119, November 1928, p. 1019.
36 - 24th International Conference of the Red Cross, Manila, 1981, Resolution I, reproduced in International Review of the Red Cross, Vol. 21, No. 225, December 1981, p. 318.
37 - This passage, originally from Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 171, was reiterated in Resolution I of the 24th International Conference of the Red Cross, Manila, 1981, reproduced in International Review of the Red Cross, Vol. 21, No. 225, December 1981, p. 318.
38 - In certain older conflicts, ‘paybooks’ were issued to soldiers and served as identity documents, but these were carried in soldiers’ packs and were not taken into battle with them. ‘[E]quipment was stamped with a personal number whose holder could in theory be identified from the quartermaster’s records. But the morning after a big battle many of the dead on the battlefield were left naked, having been stripped by looters during the night.’ Accordingly, it was recognized that some form of identification needed to be carried on the person. See Bugnion, p. 499.
39 - 24th International Conference of the Red Cross, Manila, 1981, Resolution I, reproduced in International Review of the Red Cross, Vol. 21, No. 225, December 1981, p. 318.
40 - See Bugnion, p. 502.
41 - Furthermore, Article 40(2) of the First Convention provides that medical personnel ‘in addition to wearing the identity disc mentioned in Article 16, shall also carry a special identity card’.
42 - See also H. Wayne Elliott, ‘Identification’, in Roy Gutman, David Rieff and Anthony Dworkin (eds), Crimes of War: What the Public Should Know, 2nd edition, W.W. Norton & Company, New York, 2007, pp. 232–234.
43 - This was the case, for example, in the 1991 Gulf War, as the Iraqi armed forces did not use identity discs.
44 - On the examination of the body, see also the commentary on Article 17, section C.2.
45 - See also, in respect of the deceased, Article 17 of the First Convention.
46 - World Medical Association, International Code of Medical Ethics, adopted by the 3rd General Assembly of the World Medical Association, October 1949, as amended; ICRC, Health Care in Danger: The Responsibilities of Health-Care Personnel Working in Armed Conflicts and Other Emergencies, ICRC, Geneva, 2012, p. 77
47 - British Medical Association, Ethical decision-making for doctors in the armed forces: a tool kit, London, 2012, p. 25; ICRC, Health Care in Danger: The Responsibilities of Health-Care Personnel Working in Armed Conflicts and Other Emergencies, ICRC, Geneva, 2012, pp. 76–78. See also Additional Protocol I, Article 16(3).
48 - On the division between the First and Third Conventions, see Article 14 of the First Convention.
49 - See also Sassòli, p. 11.
50 - Third Convention, Article 17(4)–(5).
51 - See e.g. United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 8.33.2, which lists these as examples of measures that may be taken.
52 - In such cases, the DNA sample must be taken solely for the purpose of identifying the individual, collected by qualified persons, destroyed after the purpose is served, analysed in laboratories working according to accredited standards, and protected from unauthorized access and use. See ICRC, Missing People, DNA Analysis and Identification of Human Remains, 2nd edition, ICRC, Geneva, 2009, p. 42.
53 - See Geneva Convention on the Wounded and Sick (1929), Article 4; Report of the Preliminary Conference of National Societies of 1946, p. 22; and Report of the Conference of Government Experts of 1947, p. 17.
54 - Third Convention, Article 12.
55 - See the commentary on Article 14, section C.1.
56 - Ary, pp. 21–22.
57 - See section C.4. Katz, p. 409, frames it as ‘with the utmost speed’. Article 122 of the Third Convention requires that the equivalent obligation in respect of prisoners of war be fulfilled ‘[w]ithin the shortest possible period’. Each of these phrases means essentially the same thing.
58 - See the commentary on Article 8, section H.
59 - Third Convention, Article 123.
60 - Although Article 123 might appear broader, in that it provides also for the transmission of information to ‘the country of origin of the prisoners of war’, in practice there is little difference between it and the provision under discussion. Ordinarily, the person’s country of origin will be the same as the Power on which the person depends. In cases where the two States are not the same, the Central Agency will not transmit the information to the country of origin unless the person consents, given that to do so may be to inform the State concerned that one of its nationals was a member of the armed forces of a foreign State. See Sassòli, p. 12, fn. 26.
61 - Katz, p. 409, frames it as ‘without delay’.
62 - However, in practice in certain conflicts, Parties have occasionally conditioned the sending of information on the adverse Party doing the same.
63 - See Vienna Convention on the Law of Treaties (1969), Article 60(5). See also ICTY, Kupreškić Trial Judgment, 2000, paras 510–520.
64 - Bugnion, p. 501. See also Đjurović, p. 231, on the Indo-Pakistan conflict of the early 1970s.
65 - Bugnion, p. 501.
66 - An exception to this effect in respect of civilian internees is set out explicitly in Articles 137(2) and 140(2) of the Fourth Convention.
67 - See e.g. Guidelines for the Regulation of Computerized Personal Data Files, adopted by UN General Assembly, Res. 45/95, 14 December 1990, Annex, Principle 3(b); OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, C(80)58/FINAL, 23 September 1980, Annex, as amended by C(2013)79, 11 July 2013, para. 9; and Council of Europe, Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, Convention No. 108, Strasbourg, 28 January 1981, Article 5(b).
68 - See section E.2, and para. 67 in particular.
69 - The capture card mentioned in Article 70 of the Third Convention should help to provide this information. Precisely which family member is to be informed depends on the person’s situation. In practice, this tends to be the spouse, the parents or, failing those, another family member.
70 - Additional Protocol I, Article 32.
71 - See e.g. UN Secretary-General’s Bulletin (1999), Section 9.8; Guiding Principles on Internal Displacement (1998), Principles 16(1) and 17(4); and Henckaerts/Doswald-Beck, commentary on Rule 117, pp. 423–426.
72 - ICRC Study on Customary International Humanitarian Law (2005), Rule 117.
73 - United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 8.33.1.
74 - Belgium, Specific Procedure on the Prisoners of War Information Bureau, 2007, section 7(d).
75 - The obligation applies also to neutral States in the situation referenced in and pursuant to Article 4 of the First Convention.
76 - See also the commentary on Article 17, para. 1663.
77 - See ICRC, Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume I: General Activities, ICRC, Geneva, 1948, pp. 301–302. See also ibid. Volume II: The Central Agency for Prisoners of War, p. 33.
78 - For example, Article 121 of the Third Convention requires that an official enquiry be conducted in the case of prisoners of war killed or seriously injured in certain circumstances.
79 - For further details, see Article 120 of the Third Convention.
80 - Đjurović, p. 226.
81 - Article 120(8) of the Third Convention requires that the lists be certified ‘by a responsible officer’.
82 - Article 122(2) of the Third Convention provides that ‘[a]ll written communications made by the Bureau shall be authenticated by a signature or a seal’.
83 - For the debate on this topic in the context of the Third Convention, see Report of the Conference of Government Experts of 1947, p. 247.
84 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 281.
85 - See also ICRC Study on Customary International Humanitarian Law (2005), Rule 114 (Parties to the conflict must return the personal effects of the deceased to their next of kin.).
86 - This would amount to looting/pillage and is prohibited under Articles 28 and 47 of the 1907 Hague Regulations and Article 15 of the First Convention, as well as under customary international law (see ICRC Study on Customary International Humanitarian Law (2005), Rule 52).
87 - ICRC Study on Customary International Humanitarian Law (2005), Rule 114. See Benin, Law of Armed Conflict Manual, 1995, Fascicule III, p. 13; Cameroon, Instructor’s Manual, 2006, pp. 122 and 164; Chad, Instructor’s Manual, 2006, p. 94; Croatia, LOAC Compendium, 1991, p. 21; France, LOAC Teaching Note, 2000, p. 3; Hungary, Military Manual, 1992, p. 38; Israel, Manual on the Rules of Warfare, 2006, p. 39; Kenya, LOAC Manual, 1997, p. 12; Madagascar, Military Manual, 1994, para. 23; Netherlands, Military Manual, 2005, para. 0610; Peru, IHL and Human Rights Manual, 2010, para. 69(c); Senegal, IHL Manual, 1999, p. 18; Spain, LOAC Manual, 2007, paras 5.2.d.(6) and 6.2.b.(3); Togo, Military Manual, 1996, Fascicule II, p. 12; and United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 7.34. This is consistent with Article 4 of the 1929 Geneva Convention on the Wounded and Sick, which referred to ‘articles of a personal nature’.
88 - The ICRC had suggested that the words ‘or in the immediate vicinity’ be included in the provision ‘as the articles in question need not be actually found on the dead’; see Draft Conventions adopted by the 1948 Stockholm Conference, p. 11. Article 4 of the 1906 Geneva Convention referred to items ‘which are found upon the field of battle, or have been left by the sick or wounded who have died in sanitary formations or other establishments’.
89 - Vienna Convention on the Law of Treaties (1969), Article 31(1).
90 - See also the last paragraph of Article 122 of the Third Convention, which requires that ‘personal valuables’ of prisoners of war be collected and forwarded and that their ‘other personal effects’ be transmitted.
91 - ICRC Study on Customary International Humanitarian Law (2005), Rule 114 and related practice.
92 - On the identity disc, see paras 1569–1574.
93 - Second Convention, Article 19; Third Convention, Articles 77 and 120; Fourth Convention, Article 129.
94 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1651.
95 - Indeed, even if the document does not legally constitute a will, it might amount to an article of sentimental value.
96 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 421.
97 - Some States interpret ‘importance’ broadly, as equivalent to ‘useful’. See, regarding the parallel provision in the Third Convention, Canada, LOAC Manual, 2001, para. 1036.
98 - The difficulties of leaving the adverse Party to determine the intrinsic or sentimental value of items was noted by one delegation during the Conference of Government Experts in June 1947 and which accordingly proposed the words be deleted; see Draft Conventions submitted to the 1948 Stockholm Conference, Document No. 4a, p. 12. The phrase was nonetheless retained.
99 - This was expressly included in Article 4 of the 1906 Geneva Convention.
100 - This will be the case even if the particular weapon can be said to be of sentimental value to the deceased.
101 - Third Convention, Article 124. This provision is given effect inter alia through the Universal Postal Convention, Article 7.2.1–7.2.3, the Letter Post Regulations, Rules 111–112, and the Postal Payment Services Regulations, Article 1005. See Universal Postal Union, Postal Payment Services Manual, Berne, 2013, para. 10.4–10.6.