Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 77 : Preparation, execution and transmission of legal documents
Text of the provision*
(1) The Detaining Powers shall provide all facilities for the transmission, through the Protecting Power or the Central Prisoners of War Agency provided for in Article 123, of instruments, papers or documents intended for prisoners of war or despatched by them, especially powers of attorney and wills.
(2) In all cases they shall facilitate the preparation and execution of such documents on behalf of prisoners of war; in particular, they shall allow them to consult a lawyer and shall take what measures are necessary for the authentication of their signatures.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
3371  Prisoners of war retain their full civil capacity and the Detaining Power may not restrict, either within or outside its own territory, the exercise of the rights such capacity confers, except in so far as captivity requires.[1] In practice, it is primarily in the prisoner of war’s country of origin or domicile that they may need to execute important legal documents, as it is there that they are likely to have their family and their interests or professional relationships. The documents include those relating to marriage, divorce and separation, children and the sale, mortgage or transfer of land or other property, whether movable or immovable. These examples suggest that the longer the conflict lasts the more important this article might become in practice.
3372  Accordingly, under the present article, the Detaining Power will need to accord prisoners of war the requisite facilities for the preparation, execution and transmission of these documents.
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B. Historical background
3373  The obligation to facilitate the execution and transmission of prisoners of war’s legal documents can be found in several agreements from the First World War.[2] At a multilateral level, the obligation was codified in Article 41 of the 1929 Geneva Convention on Prisoners of War, which provided:
Belligerents shall accord all facilities for the transmission of documents destined for prisoners of war or signed by them, in particular powers of attorney and wills. They shall take the necessary measures to secure, in case of need, the legalisation of signatures of prisoners.
3374  During the Second World War, this article was mostly complied with,[3] and legal services were established in many prisoner-of-war camps under the direction of the prisoners’ representative.[4] Prisoners of war also approached the ICRC on matters concerning, in particular, marriage, divorce and the making of wills. The ICRC ‘frequently acted as an intermediary in transmitting the wills’ and, in exceptional circumstances, took charge of the wills until the end of hostilities.[5]
3375  During the revision of the 1929 Convention, the ICRC considered it unnecessary to amend Article 41.[6] Article 77 of the present Convention thus reproduces the essence of the 1929 Convention but adds further detail, particularly relating to the manner in which the materials are to be transmitted and consultation with a lawyer.
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C. Paragraph 1: Facilities for the transmission of instruments, papers or documents
1. Content of obligation
3376  Article 77(1) concerns the transmission of legal papers. The Detaining Power is under an obligation to provide facilities for their transmission. The obligation is a positive obligation, with the article specifying that the Detaining Power ‘shall provide’ the facilities. Thus, not only is the Detaining Power prohibited from refusing to transmit legal papers – for example, as a sanction or as a disciplinary measure – it is under an obligation actively to facilitate it. The strength of this obligation is evident from the fact that ‘all facilities’ are to be provided for the transmission. This may take the form, for example, of delivering the legal papers to the Central Tracing Agency directly or to ICRC delegates for onward delivery to the Agency. In practice, it has tended to take the form of allowing the prisoners of war to hand the papers directly to ICRC delegates.
3377  While the subject of this provision relates to papers of a civil-law nature, the Detaining Power may subject these legal papers to censorship.[7] In such situations, censorship should be carried out not by a layperson but by an expert (a registrar, notary or lawyer)[8] who would or could be made subject to professional obligations of confidentiality (to protect the interests of the prisoner) while possessing the requisite knowledge to perform the censorship task (to protect the interests of the Detaining Power).
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2. Instruments, papers and documents
3378  The article lists the transmittable materials for which facilities are to be provided. These are ‘instruments, papers or documents intended for prisoners of war or despatched by them, especially powers of attorney and wills’. Although perhaps not immediately apparent, the article is concerned with legal instruments, papers and documents, and not instruments, papers and documents generally. This is evident from the materials that are mentioned by name in the first paragraph, namely powers of attorney and wills, and is confirmed by the second paragraph, which concerns the preparation and execution of ‘such documents’ and for which a lawyer may be consulted. It is also evident from the drafting history of the provision.[9] States have also interpreted ‘instruments, papers or documents’ in this manner.[10]
3379  Provided that the documentation in question is of a legal nature, the substantive content of the documents is unspecified, indicating that it is of broad scope. This is evidenced by the use of three terms – instruments, papers and documents – with essentially the same meaning.[11] The formulation thus covers all legal materials, whether or not contained in a formal legal document. Two sets of materials are singled out for special mention, namely powers of attorney and wills. These are the documents that prisoners of war are most likely to need transmitted.[12] However, they are only examples of the documents that are the subject of the article. Other documents may include ‘marriage contracts, paternity [and maternity] certificates, divorce papers, wills, bills of sale, bank statements and other business papers’, and allotment forms.[13]
3380  At the same time, the situation in which prisoners of war find themselves means that not all matters of a legal nature can be dealt with – for example, matters of a commercial nature.[14] Rather, the present article, in conjunction with Article 14(3), seeks to safeguard the interests of prisoners of war primarily in their State of origin or domicile. Certain interests can be safeguarded through an appropriate entity acting in the place of the prisoner of war; others, however, can only be safeguarded by the prisoners of war themselves, albeit by correspondence or by proxy.[15] The present article concerns the interests that can only be safeguarded by the prisoners themselves. In the usual case, the legal documents at issue will tend to concern personal matters that arise in the State of origin of the prisoner of war, rather than in the State of detention – hence the need to transmit them through the Protecting Power or the Central Prisoners of War Agency (now the Central Tracing Agency).[16]
3381  The scope of the article is not limited to legal documents despatched by the prisoner of war, as it expressly includes legal documents that are ‘intended for’ prisoners of war. This would include, for example, papers relating to divorce, adoption, separation, the guardianship of infants and powers of attorney that are initiated by the spouse or another family member and sent to the prisoner of war.
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3382  As a matter of private international law, the formal and substantive (essential) validity of all legal documents covered by Article 77 depends on the legislation, including the provisions on conflict of laws, of the State where these validity issues may arise. Such State may be the one of the prisoner’s nationality or domicile but may also be a different State (for instance, the State where the family member of the prisoner of war now resides).
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3. Channels of transmission
3383  The article provides that the legal papers are to be transmitted ‘through the Protecting Power or the Central Prisoners of War Agency’. The 1929 Convention made no mention of the channels through which the papers were to be transmitted. During the Second World War, legal documents were transmitted through different channels; sometimes, this resulted in a delays, damage or loss.[17] The ICRC and the Protecting Powers, in particular, played an important role in this regard.[18] Accordingly, when the Convention was being revised, references to the Central Prisoners of War Agency and the Protecting Power were incorporated into the text of the provision.[19] The manner in which wills are to be transmitted is also addressed in Article 120.
3384  The article provides for alternative channels of transmission (‘the Protecting Power or the Central [Tracing] Agency’). Thus, in case no Protecting Power or a substitute has been appointed, as has been the case in most international armed conflicts occurring since the adoption of the Conventions in 1949,[20] the provision provides that transmission must occur through the Central Tracing Agency.
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D. Paragraph 2: Measures to facilitate the preparation and execution of documents
3385  Article 77(2) concerns the ‘preparation and execution’ of the documents that are the subject of the first paragraph.
3386  The obligation is a positive one: The Detaining Power ‘shall facilitate the preparation and execution’ of the documents (emphasis added). This, coupled with the reference to ‘[i]n all cases’, confirms that, as long as the documents are those that are the subject of the first paragraph, their preparation and execution must be facilitated. They cannot be refused, for example for disciplinary reasons or as a sanction or punishment; nor can it be made contingent on good behaviour.
3387  Unlike Article 77(1), which requires the Detaining Power to actually provide the facilities for the transmission, with two exceptions, the second paragraph only requires the Detaining Power to ‘facilitate’ the preparation and execution of the documents, i.e. to make it ‘easy or easier’.[21] Thus, the Detaining Power is not responsible for preparing or executing the documents itself. It is, however, under an obligation to make it possible for prisoners to do so and thus assist them to the extent necessary. The precise manner in which it is done is within the discretion of the Detaining Power and depends on the nature of the legal documents. The preparation could include, for example, providing access to stationery, court papers, computer systems and the internet and allowing prisoners to consult relevant officials.
3388  Article 77(2) singles out two aspects of the preparation and execution of documents as being of special importance, given that these are legal documents: consultation with a lawyer; and the authentication of the prisoner’s signature. If prisoners of war are without access to a lawyer, they may be unaware of the requirements imposed by the domestic law of the State in which the documents are intended to take effect, for example the particular form the document is required to take, the required content of the document or the formalities surrounding its conclusion. Consequently, the purported legal document might turn out to be without effect.[22] Furthermore, during an international armed conflict, States sometimes enact special legislation allowing prisoners of war to marry by proxy.[23] Prisoners of war are unlikely to be aware of such a possibility, particularly if the legislation was enacted after they fell into the hands of the Detaining Power. Along similar lines, the legal document may require an original signature and that the signature be authenticated. Accordingly, in respect of allowing consultation with a lawyer and taking the measures necessary to authenticate signature, the obligation of the Detaining Power is absolute and not simply one of facilitation. The Detaining Power retains some discretion, however, as to precisely how the obligation is to be fulfilled.
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1. Consultation with a lawyer
3389  The Detaining Power is under an obligation to allow prisoners of war to consult a lawyer. The context in which the obligation appears reveals that the consultation with a lawyer is for the purposes of the preparation and execution of the legal documents that are the subject of the first paragraph, rather than a more general right to consult a lawyer, for example to defend against a charge or to challenge the legality of the detention.[24]
3390  The circle of persons who might be consulted as lawyers is not specified. A sufficiently wide interpretation should be given to this provision. The lawyer may be a fellow prisoner of war who is located within the same camp or in a different camp. Alternatively, they may be a military lawyer of the Detaining Power. A civilian lawyer is also an option. Early drafts of the provision specified that prisoners of war should be allowed to consult a lawyer within their own camp.[25] During the 1949 Diplomatic Conference, it was recognized that there may be no lawyer in the camp, necessitating referral to a lawyer from outside the camp.[26] Ultimately, the reference to a lawyer ‘in their camp’ was deleted, as it was ‘considered preferable to give prisoners of war the choice of consulting a lawyer either in the camp or outside it’.[27] Indeed, depending on the legal issue arising, and if feasible, a lawyer with specialist knowledge of the matter and the legal system in question might be required.
3391  The obligation of the Detaining Power in this regard is to allow consultation with a lawyer. Thus, if a civilian lawyer is used, the Detaining Power has to grant that person access to the prisoner-of-war camp or allow the prisoner to travel outside the camp for the consultation. If the prisoner belongs to a labour detachment while the person they wish to consult is in the main camp, they must be given permission to go there. While preference must be given to personal consultations, it may also be permissible to conduct the consultations via modern means of communication, such as videoconferencing.
3392  The obligation of the Detaining Power to allow prisoners of war to consult a lawyer concerning personal legal documents that are of a purely private character implies that such documents sent between a prisoner of war and their lawyer should in principle be free from censorship. They should be treated with the sensitivity that is usually afforded to personal legal documents. Censorship should only take place where absolutely necessary and should never hamper a prisoner’s right to consult a lawyer. Where necessary, censorship should be carried out in a timely manner and not subject the consultation to any undue delay.
3393  However, conditions could be attached to the consultation with a lawyer that are necessary and proportionate. For example, the Detaining Power may impose limits on the choice of lawyer, especially when the prisoner of war is indigent, or limit selection to those who have security clearance, where necessary. Likewise, it may specify the date and time of the consultation, provided that it does not lead to unreasonable delay. Furthermore, the Detaining Power is not under an obligation to pay for the consultation.[28]
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2. Authentication of signature
3394  The Detaining Power is also under an obligation to take whatever measures are necessary to ensure the signatures of prisoners of war are authenticated. To authenticate a signature is to render it ‘authoritative or authentic, as by attestation or other legal formality’.[29] The obligation in question relates to the authenticating of the signature rather than the legalizing of it,[30] that is to say, the Detaining Power must do whatever needs to be done to render the signature authentic, rather than to make it lawful.
3395  The language ‘what measures are necessary’ indicates that the obligation is a strict one. The specific measures necessary will vary according to the law of the State in which the document is to take effect. Given that the Detaining Power might not be aware of the requirements of domestic legislation of other States in this regard, the State of origin of the prisoner of war or the Power on which they depend, should inform the Detaining Power of the measures that need to be taken. Specific provision is made for this situation in the case of wills.[31] Consultation with a lawyer by the prisoner of war will also shed light on the requirements for authentication.[32]
3396  Authentication of signatures should not prove unduly onerous given that, under ordinary circumstances, it would involve arranging for the signature to be witnessed or notarized by a competent individual. Subject to the requirements of the State in which the document is to take effect, this could be done, in the case of witnessing, by a fellow prisoner or the prisoners’ representative;[33] or, in the case of notarizing, by a notary of the Detaining Power or a civilian notary. The State in which the document is to take effect should accept that, in respect of prisoners of war, a signature can be authenticated by a notary of the Detaining Power or a civilian notary of another State.[34] In the practice of armed conflicts since the Second World War, ICRC delegates have also acted as witnesses for prisoners of war writing and signing powers of attorney.
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Select bibliography
Bretonnière, Maurice, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), Paris, 1949.
Charon, Ferdinand, De la condition du prisonnier de guerre français en Allemagne au regard du droit privé (thesis presented to the Faculty of Law of Paris), 1946.
Levie, Howard S., ‘Prisoners of War in International Armed Conflict’, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 181–182 and 186–187.
Sanna, Silvia, ‘Treatment of Prisoners of War’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 977–1012.
Weill, Sharon, ‘Relations with the Outside World’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 1013–1024.

1 - For details, see the commentary on Article 14, section E.
2 - See e.g. Agreement between Austria-Hungary and Italy concerning Prisoners of War and Civilians (1918), Article 81, and Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Article 93.
3 - Bretonnière, p. 245.
4 - See e.g. Charon, pp. 90–92.
5 - 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, May 1948, pp. 294–295.
6 - Report of the Conference of Government Experts of 1947, p. 194.
7 - On censorship, see Article 76.
8 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 379.
9 - In introducing the provision at the 1949 Diplomatic Conference, the representative of the ICRC noted that ‘[a] new provision laid down that legal documents were to be transmitted through the Protecting Power or through the Central Prisoners of War Agency’; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 288. See also Draft Conventions submitted to the 1948 Stockholm Conference, draft article 67, p. 101.
10 - See e.g. Canada, Prisoner of War Handling Manual, 2004, para. 3F16.2 (subheading ‘Legal Documents’); Philippines, LOAC Teaching File, 2006, p. 217 (‘POWs must also be allowed to send, receive and draft legal documents such as powers of attorney or wills’); Switzerland, Basic Military Manual, 1987, Article 133 (‘Pour établir des documents juridiques, on permettra aux prisonniers de consulter un juriste’) (‘For the drafting of legal documents, prisoners of war shall be allowed to consult a lawyer’); and United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 170, para. 8.71 (subheading ‘Legal documents’).
11 - See also Levie, p. 182.
12 - Wills are also the subject of Article 120.
13 - 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, May 1948, p. 75. An allotment form is ‘a document by which a man [or woman] on service gives authority for the payment to his family, or third persons, of all or part of his army pay’; ibid. fn. 1. See also Antonino Janner, La Puissance protectrice en droit international d’après les expériences faites par la Suisse pendant la seconde guerre mondiale, Helbing & Lichtenhahn, Basel, 1948 (reprint 1972), p. 55.
14 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 150, who notes that ‘prisoners of war may not, for instance, carry on any real business activity’.
15 - See ibid. pp. 149–150.
16 - On the change of name, see the commentary on Article 123, para. 4804.
17 - Charon, pp. 90–92, notes that, pursuant to Article 41 of the 1929 Geneva Convention on Prisoners of War, services for transmitting and sending documents were set up in camps for French prisoners of war. The prisoners, their families and members of the legal profession concerned transmitted the documents to the embassy of the prisoners of war, to the French Red Cross or directly to the ICRC in Geneva. The documents passed through so many hands, however, that there were significant delays and considerable risk of loss or damage.
18 - 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, May 1948, pp. 75–76. See also Sanna, p. 985.
19 - See Report of the Conference of Government Experts of 1947, pp. 194–195.
20 - See the commentary on Article 8, section H. For a general discussion of the functions of Protecting Powers in the Third Convention, see Introduction, section A.3.e.
21 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 509.
22 - At the 1949 Diplomatic Conference, an amendment was submitted, proposing the addition of the following language: ‘The form and substance of these instruments shall be governed by the principles of private international law.’ However, the proposal was rejected. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 288. On the specific matter of wills, see Article 120.
23 - During the Second World War, Belgium, France, Germany and Italy enacted legislation along these lines. See 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, May 1948, p. 294.
24 - On the right to consult a lawyer to defend against a charge, see Article 105(1).
25 - Report of the Conference of Government Experts of 1947, p. 195; Draft Conventions submitted to the 1948 Stockholm Conference, p. 101; and Draft Conventions adopted by the 1948 Stockholm Conference, p. 79.
26 - See Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. I, 13th meeting, p. 63 (India).
27 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 364.
28 - During the Second World War, Germany adopted the position that, if the individual prisoner of war did not have the requisite funds, canteen funds or prisoner-of-war funds would be used; see Levie, p. 182.
29 - Bryan A. Garner (ed.), Black’s Law Dictionary, 11th edition, Thomson Reuters, 2019, p. 163.
30 - Article 41 of the 1929 Geneva Convention on Prisoners of War provided for the ‘legalisation’ of signatures. This was amended to ‘authentication’ of signatures in the draft submitted to the 1948 Stockholm Conference; Draft Conventions submitted to the 1948 Stockholm Conference, p. 105.
31 - See Article 120(1).
32 - Some military manuals refer specifically to the entitlement of prisoners of war to seek legal advice on matters such as the authentication of legal documents; see e.g. Canada, Prisoner of War Handling Manual, 2004, para. 3F16.2, and United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 170, para. 8.71.
33 - In the draft conventions submitted to the 1948 Stockholm Conference, it was considered the duty of the prisoners’ representative rather than the obligation of the Detaining Power to authenticate signatures; Draft Conventions submitted to the 1948 Stockholm Conference, p. 105. However, this specification was removed; Draft Conventions adopted by the 1948 Stockholm Conference, p. 79.
34 - Levie, p. 187, fn. 381, notes: ‘If only witnesses to the signature are required, no problem arises. However, if a document must be notarized, it is extremely unlikely that a prisoner-of-war notary will be available and the use of a notary of the Detaining Power, even if one is made available by the latter, would very possibly create legal problems concerning the validity of the document.’