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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
. -- TRANSMISSION OF INFORMATION
PARAGRAPH 1. -- TRANSMISSION. -- REPLY TO ENQUIRIES
This paragraph repeats, with some slight alterations, paragraphs 3 and 7 of Article 122
of the Third Convention concerning national Information Bureaux for prisoners of war.
1. ' First sentence -- Transmission of information '
Once the various items of information concerning protected persons have been gathered and transmitted by the departments [p.529] concerned to the national Bureau, the Bureau -- and this is the essential part of its task and the reason for its existence -- will forward them to the Power concerned through the Protecting Power and the Central Agency. In this respect Bureaux for civilians do not differ in function from Bureaux for prisoners of war.
The only alteration made by the Diplomatic Conference in the corresponding provision of the Prisoners of War Convention of 1929 (Article 77
) was to add the words "by the most rapid means", which must be used for forwarding the information concerned to the country of origin. This addition was made to the Third as well as to the Fourth Convention. The national Bureaux, therefore, have not only the duty to forward information communicated to them by various departments and services immediately, but to use the most rapid means for doing so.
During the Second World War, information on prisoners of war and civilian internees was generally sent to the Central Agency by post, a procedure which sometimes entailed long delays. To remedy this, the Agency in certain cases established a system of telegraphic or radio transmission. It was with the idea that this system should be made general and improved that the Diplomatic Conference introduced the amendment mentioned. Every country must therefore try to use the most efficient methods made available by science (radio (1), microfilms, radiotelephotography, etc.). The use of these means could be made easier to a certain extent by granting Information Bureaux total or partial exemption from charges on their telegrams, in addition to the exemption from postal charges which they enjoy under Article 141
. In practice, of course, these rapid methods should be used mainly for the transmission of information to the Agency. Information will generally be transmitted to the Protecting Power direct, through the diplomatic staff it maintains in
the country concerned to carry out its mission. It will be for that staff to forward the information received rapidly to its own authorities.
The responsibility of the Bureaux, in fact, extends only to the forwarding of information to the Protecting Power and the Central Agency. To give full effect to this provision, the authorities of the Protecting Power and the Agency must in their turn, in reforwarding the information to the Power concerned, not only preserve the same sense of urgency, but also use "the most rapid means".
The system of forwarding information to both the Protecting Power and the Central Agency originated in the 1929 Prisoners of War [p.530] Convention. It reduces the risk of error or loss and above all enables all the information exchanged between the various sides to be brought together in a single place, thus giving the Agency a general view of the situation of protected persons in the hands of all the belligerents.This system gave every satisfaction during the Second World War and the provisions embodying it were repeated without change in the Third Convention of 1949. With one important reservation referred to in the second paragraph, the same was done in the Fourth Convention.
Whereas Article 122
of the Third Convention indicates that information concerning prisoners of war will be forwarded "to the Powers concerned", the paragraph we are now discussing gives more exact details: information concerning protected persons will be transmitted to the Power "of whom the aforesaid persons are nationals" or "in whose territory they resided". These additional details, suggested for humanitarian reasons by the International Committee of the Red Cross, are intended to cover cases where protected persons before the outbreak of hostilities resided in a foreign country without having its nationality, a country in which their family continued to reside. As it is above all for the information of families that the particulars are forwarded, this exception to the rule was necessary. In fact, it will be for the Protecting Power and the Agency to forward the information either to the country of origin or to the country of domicile or both according to circumstances.
The forwarding of information concerning protected persons in occupied territory will sometimes raise problems, particularly if the civilian administration of the territory is in the hands of the Occupying Power. Here also the Protecting Power and the Agency will have to take whatever measures circumstances make necessary, either restricting themselves to informing the family only or transmitting the information to a particular authority or charitable society, whether Red Cross or other.
2. ' Second sentence -- Reply to enquiries '
Independently of information concerning the identity, situation and health of the protected persons, which the national Bureau is obliged to collect under the terms of Articles 136
, it must also reply to other enquiries addressed to it concerning protected persons.
This task is important since, however complete the information collected may be, it will often be necessary to make it more precise. [p.531] Thus the Bureau will very often have to make enquiries or to have enquiries made by the departments concerned or sometimes even by individuals, even though such enquiries are not expressly mentioned in the Convention (2).
The Diplomatic Conference did not give any details concerning enquirers. As a rule, enquiries reaching national Bureaux will be from either an official body, mainly the Central Agency, or an unofficial humanitarian or other body. The very lack of precision shows, however, a wish to leave ordinary individuals free to make enquiries from the national Bureaux for information concerning persons in whom they are interested, and this will conceivably apply as a rule to persons residing in occupied territory and making enquiries of the Bureaux set up in that territory.
The Bureaux are obliged to reply to all requests for enquiry. However, under the provisions of the following paragraph, they must not forward information concerning a protected person if its transmission might be detrimental to the person concerned or to his or her relatives. Only the Central Agency, warned of this reservation, can receive the information. Anything which cannot be officially communicated must not, for even stronger reasons, be communicated to individual enquirers. The Bureaux will therefore only transmit, on enquiry, information which the protected person authorizes them to communicate. Requests made by the Central Agency are not subject to this rule, the Agency being authorized to receive all information, even confidential, for its own files and subject to the same need for discretion with regard to the public.
PARAGRAPH 2. -- NON-TRANSMISSION OF INFORMATION
This paragraph contains a provision not included in the Third Convention. It seeks to protect civilians in enemy hands and particularly their families in their country of origin, against the authorities of that country if they should have any reason for particular animosity towards them. This exceptional provision is based on the confused situations which occurred during the First World War. Civilians who have fled from persecution generally have an interest in remaining unknown to the authorities of their former country. They must therefore judge for themselves the expediency of notification to the authorities, even in the case of the forwarding of information to members of their family. Credit for this humanitarian solution must [p.532] be given to the Diplomatic Conference (3), and mention should be made of the courage and objectivity of the government delegates who were the first to recognize the need to protect civilians against the arbitrary conduct of governments.
It is therefore for the protected persons themselves, either on their own initiative or in answer to enquiry, to state that they would consider it dangerous for themselves or their families to communicate to the adverse Party information concerning them. This desire must be strictly respected, otherwise these persons, made mistrustful, would keep silent or give false information. However, they must be warned that the information concerning them, although kept secret by the national Bureau, will nevertheless be communicated to the Central Information Agency, which will treat it in all due confidence.
Here it is worth emphasizing the fundamental difference which exists in this respect between the Protecting Powers and the Central Information Agency as it has operated so far in Geneva on behalf of prisoners and internees.
Protecting Powers, as governmental institutions, exercise their activities under a sort of contract between the States concerned. This contractual obligation provides in particular that they will undertake the forwarding of the most varied kinds of document from one State to another. They do not express an opinion in respect of these documents and do not consider whether it is expedient to forward them or not; they simply forward them. The Central Agency, on the other hand, as a purely humanitarian body concerned exclusively with the fate of war victims, receives no document which it does not first study with a view to finding some new way of achieving its aims. Absolutely independent of States, it is free, if it considers it expedient, not to inform States of facts known to it, if such information might place in danger the very persons it has the duty of assisting. This policy was always strictly observed during recent wars and this has procured for the Agency the absolute confidence of war victims and of the governments themselves. This confidence is shown in this provision and particularly in paragraph 2 of Article 140
, to which it expressly refers. All information concerning protected persons, even that which should remain confidential and which in any case must not come to the knowledge of third persons or outside authorities, will nevertheless be communicated to the Agency with an indication of its confidential nature. It should be noted, furthermore, that even when no such indication is given, the [p.533] Agency may refrain from forwarding the information if it has special reasons for doing so or if it has received special information making such a course advisable.
While refraining in certain cases from forwarding to the authorities or to official departments the information it has received, the Agency will, on the other hand -- and this is the reason why information must always be communicated to it -- bring it in some way to the knowledge of the persons really concerned, i.e. families without news of protected persons, if it considers that it can so act without prejudice to anyone.
PARAGRAPH 3. -- AUTHENTICATION
It is of the utmost importance that the information forwarded should not only be detailed and complete but that it should be above all of undoubted authenticity. Those concerned -- families, the authorities and the Agency -- must have full confidence in the authenticity of a message announcing death, illness or repatriation. Of course, errors will always be possible but an attempt has been made to reduce them, if possible, by making it obligatory for each national Bureau to authenticate, by means of a seal or the signature of the person responsible, all written communications issued by it. With regard to unwritten communications, it may be considered that the nature of the channels through which they are generally sent constitutes a sufficient guarantee of their authenticity. It would, however, always be possible, for radio or telephonic communications, to establish a code if exceptional circumstances justified such a measure.
Notes: (1) [(1) p.529] It should be emphasized that the information
transmitted by radio must not only be sufficiently
complete to enable certain identification but should later
be confirmed in writing;
(2) [(1) p.531] They are mentioned in the corresponding
provisions of the Third Convention;
(3) [(1) p.532] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 845;
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