Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 17 : Questioning of prisoners
Text of the provision
(1) Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.
(2) If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.
(3) Each party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war, with an identity card showing the owner’s surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth. The identity card may, furthermore, bear the signature or the fingerprints, or both, of the owner, and may bear, as well, any other information the Party to the conflict may wish to add concerning persons belonging to its armed forces. As far as possible the card shall measure 6.5 x 10 cm. and shall be issued in duplicate. The identity card shall be shown by the prisoner of war upon demand, but may in no case be taken away from him.
(4) No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatsoever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.
(5) Prisoners of war who, owing to their physical or mental condition, are unable to state their identity, shall be handed over to the medical service. The identity of such prisoners shall be established by all possible means, subject to the provisions of the preceding paragraph.
(6) The questioning of prisoners of war shall be carried out in a language which they understand.
Reservations or declarations
None
Contents

A. Introduction
1786  Article 17 is the first of four articles dealing with point-of-capture issues (Articles 17–20). They are also relevant beyond the immediate time and location of capture, including in some cases throughout captivity. These provisions are applicable from the time a person falls into the power of the enemy until their final release and repatriation.[1] The issues dealt with have historically proven difficult to monitor and enforce because they often arise soon after combat operations have concluded, sometimes while they are still in progress, when emotions may still be running high and supervision may be limited.
1787  The article seeks to ensure that captured combatants are properly identified and that they do not go missing. In that regard, the article should be read together with other relevant provisions in the Convention.[2] It further seeks to protect prisoners against physical or mental torture or any other form of coercion when being questioned. Torture is already prohibited by Article 13 in the preceding Part II on general protections of prisoners of war. The fact that a specific article is dedicated to questioning shows the importance of this issue in the treatment of prisoners.
1788  Captured members of the enemy armed forces are typically disarmed and searched. As soon as possible upon capture, the Detaining Power needs to determine the identity, status and rank of the captured persons in order to accord them the treatment to which they are entitled.
1789  It is generally in the prisoners’ interest to establish their identity, status and rank as soon as possible. They must give the Power that has captured them sufficient information to establish their status as members of the enemy armed forces. However, the Detaining Power may wish to obtain additional information on the prisoners themselves, the Power on which they depend and the circumstances that preceded their capture, for this may be of interest from a military point of view, particularly for intelligence purposes. Even so, under Article 17 prisoners of war are not bound to give any more information than that provided for in the article in relation to their identity, and under no circumstances may physical or mental torture or any other form of coercion be used to obtain any information, not even information in relation to their identity set out in paragraph 1.
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B. Historical background
1790  The 1863 Lieber Code stated that, upon capture, ‘[a] prisoner of war is in honor bound truly to state to the captor his rank’.[3] The Code also noted that ‘the modern law of war permits no longer the use of any violence against prisoners in order to extort the desired information or to punish them for having given false information’.[4]
1791  The 1907 Hague Regulations provided that ‘[e]very prisoner of war is bound to give, if he is questioned on the subject, his true name and rank, and if he infringes this rule, he is liable to have the advantages given to prisoners of his class curtailed’.[5]
1792  Battlefield experiences during the First World War demonstrated the need for more detailed humanitarian rules in situations involving newly captured prisoners.[6] On the issue of questioning upon capture, the 1929 Geneva Convention on Prisoners of War contained much the same language as the 1907 Hague Regulations. Article 5 of the 1929 Convention provided that ‘[e]very prisoner of war is required to declare, if he is interrogated on the subject, his true names and rank, or his regimental number’. It further provided: ‘No pressure shall be exercised on prisoners to obtain information regarding the situation in their armed forces or their country. Prisoners who refuse to reply may not be threatened, insulted, or exposed to unpleasantness or disadvantages of any kind whatsoever.’ The 1929 provisions are echoed and amplified in the Third Convention adopted in 1949.
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C. Paragraph 1: Declaration by the prisoner
1793  Prisoners of war, when questioned on the subject, are bound to give only their surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. The phrase ‘equivalent information’ refers to information equivalent to an army, regimental, personal or serial number and ensures that any system of identification is covered. This may be particularly relevant for prisoners falling under subparagraphs 2 and 4–6 of Article 4A.
1794  The term ‘true’ found in the 1929 Convention is not repeated in the 1949 Convention. It is, however, implicit in the text that the information to be provided must be correct, for otherwise it does not constitute the actual information a prisoner is bound to give.
1795  The present wording improves on the corresponding text in the 1929 Convention, which required prisoners to give only their name and rank or regimental number.[7] The Central Tracing Agency’s extensive experience in the Second World War showed that the regimental number alone was inadequate for identifying prisoners of war and for the work of the information bureaux. In view of the risk of error involved in transmitting names and figures, even digitally, it is essential to have several identifying details simultaneously, so that these can be cross-checked. In practice, moreover, prisoners of war, when questioned, very rarely availed themselves of the possibility of giving only their regimental number.[8]
1796  The Conference of Government Experts in 1947 thought it advisable to revert to the text of Article 9 of the 1907 Hague Regulations (‘true name and rank’), with the additional requirement of date of birth. At the 1949 Diplomatic Conference, however, not everyone was in agreement with this proposal; one delegate in particular argued that the relevant words should be omitted because information concerning the prisoners’ rank and age could reveal important military information to the Detaining Power.[9] At the same time, if a prisoner’s age and rank are unknown, the Detaining Power will be unable to take those factors into account in the treatment accorded, as required by Articles 16, 44 and 45 of the Convention.
1797  Other information which might be of value for identification purposes, such as nationality or country of origin, is not included in the list of details the prisoner is obliged to provide because of potential negative security consequences, for example when the country concerned is occupied by the armed forces of the Detaining Power.
1798  Although it is not expressly stated in Article 17, it follows from reading Article 17 together with Article 122(2) that prisoners must be identified as soon as possible after capture. This will assist in ensuring that the prisoners receive the required treatment and that the information is shared with the national information bureaux ‘[w]ithin the shortest possible period’, as required by Article 122(2). This will also assist in achieving one of the objectives of the Convention, i.e. to inform the families of prisoners of their fate and whereabouts and to avoid persons going missing.[10]
1799  Prisoners of war remain free to provide more information than is required by the present article and this can be done at any time, whether at the point of capture or afterwards.[11] Such information could include, for example, the names and addresses of their next of kin, so that these can be notified of their capture (Article 122); their blood group; or their religion. Information on religion is to be taken into account in matters of prisoners’ food and daily routine and to enable them to enjoy ‘complete latitude in the exercise of their religious duties’ (Article 34), have access to ministers of their religion (Articles 35–37) and have the appropriate rites performed in case of death (Article 120(4)).
1800  Any personal data collected pursuant to Article 17 are subject to applicable rules on data protection.[12]
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D. Paragraph 2: Restriction of privileges in case of infringement
1801  Although prisoners of war are not obliged to give any information over and above that specified in paragraph 1, they are bound to give those details and they must be truthful. For this reason, the Convention provides for the possibility of restricting privileges in case of wilful infringement of this rule. When prisoners are questioned, the Detaining Power should, therefore, draw their attention to the provisions of this article, so that they may be fully aware of their rights and obligations.
1802  Prisoners of war are usually questioned shortly after capture, sometimes on the battlefield and amid some confusion. If prisoners unintentionally misstate any information on their identity, their privileges may not be restricted. In addition, the fifth paragraph of this article makes special provision for situations where prisoners are unable to state their identity owing to their physical or mental condition (see section G).
1803  A prisoner who wilfully refuses to give the particulars specified in the first paragraph or offers an inaccurate statement may be liable to ‘a restriction of the privileges accorded his rank or status’. This means that the Detaining Power is not obliged to restrict the privileges but may do so. This provision is not new: the 1907 Hague Regulations and the 1929 Geneva Convention contained a similar rule, with the slight difference that the word ‘category’ was used in the 1929 text instead of ‘rank or status’.[13] The Conference of Government Experts in 1947 considered that the term ‘category’ did not make sufficiently clear the distinction between officers, non-commissioned officers and other persons. The word ‘status’ is intended to cover the situation of certain members of the armed forces, such as war correspondents, who without holding any rank, nevertheless have the status of an officer.[14] It does not refer to prisoner-of-war status, which may not be denied on the basis of this paragraph.
1804  In addition, this provision may entail only a ‘restriction’ of privileges accorded on the basis of rank or status for the prisoners concerned and may in no case involve loss of any of the other rights accruing under the Convention.[15] The only advantages which may be withdrawn are, therefore, those contained in the provisions concerning special privileges to be accorded to officers, non-commissioned officers or persons with similar status.[16]
1805  Prisoners of war who conceal their rank may risk having the privileges that the Detaining Power would normally accord them on the basis of their rank or status restricted. If the Detaining Power is unaware of a prisoner’s rank and therefore of the privileges due to them, it would not violate the Convention by not granting them. If the Detaining Power is subsequently informed of that person’s true rank, it may, but need not, maintain the restriction.[17] In such a situation, the Detaining Power should pay due regard to the circumstances of each case.
1806  Conversely, if during questioning prisoners claim a rank superior to their actual status and the Detaining Power subsequently finds out this was not the case, they may be deprived throughout their captivity not only of the privileges which until then had been accorded them, but also of all the privileges to which their actual rank would have entitled them.[18] Nevertheless, they remain at all times entitled to all the other protections provided under the Convention.
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E. Paragraph 3: Identity cards
1. First sentence: Issue of an identity card – obligations for Parties to the conflict
1807  Article 17(3) requires each Party to a conflict to issue identity cards to all persons under its jurisdiction who are liable to become prisoners of war.[19] The fact that such identity cards must be issued by ‘each Party to a conflict’ implies that the States party to the Convention must take the necessary measures to issue them to its members in good time, ideally in time of peace. In cases where a State has not issued identity cards prior to the start of hostilities, it should do so without delay at the outbreak of hostilities. In this regard, it is conceivable that regular forces on active duty will receive identity cards immediately, while reservists that are only called for service in view of a particular need will receive their identity cards later on – but in any case, no later than when they are deployed.
1808  The issuing of identity cards is mandatory and concerns all categories of persons mentioned in Article 4, regardless of their nationality. The provision is applicable to all persons belonging to a Party to the conflict who are liable to become prisoners of war. It should be noted, however, that it would not be possible to comply with this requirement in the event of a levée en masse.
1809  The card to which the present article refers is different from that mentioned in Article 4A(4). The latter is for issue to persons who accompany, but are not actually members of, the armed forces; for this eventuality, a model card is shown in Annex IV to this Convention. Additional identity cards are required for medical and religious personnel.[20]
1810  The identity card required by this article should also be distinguished from the identity discs referred to in the First and Second Conventions.[21] Such discs are in wide use by the armed forces of many States. In addition, the 1981 International Conference of the Red Cross urged all Parties to armed conflicts, 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’.[22] 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. However, in contrast to the identity card mentioned by the present article, the Conventions do not expressly spell out an obligation to issue identity discs or to wear them.[23]
1811  The information to be shown on the identity card is the same as that which, pursuant to Article 17(1), a prisoner of war is bound to give when questioned.[24]
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2. Second sentence: Other information
1812  The Convention also provides that, optionally, the card may bear the signature and fingerprints of the owner, as well as ‘any other information the Party to the conflict may wish to add’. Such other information could include: height and eye colour, for purposes of identification; religious denomination, so that the appropriate rites can be performed in case of death;[25] blood group; and a photograph of the holder, to preclude the card being exchanged for someone else’s. If it so desires, the State Party issuing the card may add or duplicate this information by means of a microchip embedded in the identity card. Moreover, the card may also contain a request that, if found, it should be forwarded to the address indicated.
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3. Third sentence: Size and number of copies
1813  As far as possible, the card should be a standard size (6.5 x 10 cm).[26] This is desirable for practical reasons, particularly for filing in card indexes. It is not an absolute requirement, however, and today’s technology for storing information on captured persons may make this less important.
1814  There is a requirement to issue the identity card in duplicate. The copy should be filed by the Power that issued the card and could consist of a digital copy. These copies, whether physical or digital, are of particular importance for the work of the national information bureaux and the Central Tracing Agency.
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4. Fourth sentence: Showing of the card
1815  In accordance with this provision, prisoners of war must, on demand, show their identity cards to the military authorities of the Detaining Power. This requirement is not related to the questioning referred to in the first paragraph. Prisoners of war may not cite their questioning as grounds for refusing to show their identity cards. States Parties have an obligation to educate their forces regarding this requirement.
1816  Furthermore, the card constitutes proof – as a uniform does not always do, especially in case of attempted escape – that its owner is a member of regular armed forces and is entitled to the treatment laid down by the present Convention.
1817  The identity card affords a constant guarantee to prisoners only if they carry it all the time.[27] During the Second World War, it frequently happened that the belligerents confiscated all prisoners’ identity documents, creating numerous difficulties. The Detaining Power is not prohibited from taking away the military documents carried by prisoners, as these may contain military information.[28] The identity card, on the other hand, contains no military information; it serves only to establish prisoners’ identity and must be returned to them immediately, in accordance with the present provision.
1818  Where the Power on which the prisoner depends has failed to issue identity cards or where a prisoner has lost their card, the Detaining Power must provide an identity document in its stead.[29]
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F. Paragraph 4: Prohibition of torture and coercion
1819  According to Article 17(4), no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them ‘information of any kind whatsoever’. A specific application of this rule can be found in Article 99(2), which prohibits using moral or physical coercion to induce a prisoner of war to admit guilt.[30]
1820  During the Second World War, certain categories of prisoners (e.g. airmen, submariners, missilemen, nuclear specialists) considered as having important intelligence value were placed in special ‘interrogation camps’ before being sent to a prisoner-of-war camp.[31] To extract information, great hardship was inflicted on them. These practices were, therefore, in violation of Article 5(3) of the 1929 Geneva Convention on Prisoners of War. Such camps were outside the control of the Protecting Powers and the delegates of the ICRC, which in most cases had no knowledge of their existence.[32] The ICRC has noted similar practices in some post-Second World War conflicts.[33]
1821  The authors of the 1949 Convention were not content to merely replicate the 1929 text. They made it more specific by replacing the prohibition on ‘exercising pressure’ with a prohibition not only on ‘coercion’ but also on ‘physical or mental torture’. The 1949 Convention also broadened the scope of the prohibition. During the Second World War, certain Detaining Powers succeeded, by coercion, in obtaining information from prisoners of war about their personal circumstances or that of their relatives.[34] The 1929 text, which prohibited exercising pressure to obtain information from prisoners of war regarding ‘the situation in their armed forces or their country’, was therefore replaced with an absolute prohibition on using torture or any other coercive means to obtain ‘information of any kind whatsoever’.
1822  The prohibitions in Article 17(4) apply not only to obtaining the information specified in paragraph 1, but to ‘information of any kind’. They apply, therefore, not only to questioning at the point of capture to identify a person but also to any subsequent interrogation. Prisoners of war may lawfully be interrogated, even in the combat zone, as well as later, for example to obtain information concerning tactical positions and plans.[35] Any such interrogation is subject, however, to the prohibition of torture and coercion contained in the present paragraph, as well as the requirement of humane treatment in Article 13.
1823  Torture is defined as the intentional infliction of severe pain or suffering, whether physical or mental, for such purposes as to obtain information or a confession, to punish, intimidate or coerce the victim or a third person, or to discriminate, on any ground, against the victim or a third person.[36] The purpose of torture addressed in paragraph 4 (‘to secure from [prisoners of war] information of any kind whatsoever’) is but one of the prohibited purposes of the general definition of torture. The prohibition in the present paragraph is thus encompassed within the general prohibition of torture under international law. Torture also constitutes a grave breach under the Convention.[37] For more details on what constitutes torture, see the commentary on common Article 3, section G.2.e.
1824  Paragraph 4 also prohibits ‘any other form of coercion’. In its ordinary meaning, ‘coerce’ means to ‘persuade (an unwilling person) to do something by using force or threats’.[38] The decisive factor in determining whether coercion has occurred or is occurring is whether the method used deprives or impairs the prisoner of the exercise of free will and autonomy.[39] Such methods may comprise both acts and omissions. For example, intentionally withholding required medical treatment or intentionally withholding sleep, food or water to extract information from a prisoner would be prohibited under paragraph 4.[40] Moreover, coercion need not cause physical harm, but could be aimed at breaking a prisoner’s mental resistance. This might involve, for instance, forcing prisoners to engage in tasks that amount to humiliating or degrading treatment, demanding they act against their belief systems or threatening harm or humiliation to someone close to them.
1825  In addition to the prohibition of torture and coercion, the requirements contained in Article 13 that prisoners of war be at all times treated humanely and protected against acts of violence, intimidation and insults also apply to interrogation. All forms of ill-treatment, including cruel, inhuman and degrading treatment, are prohibited.[41] This will have an impact not only on the methods of interrogation, but also on its duration and frequency.
1826  In assessing whether an interrogation method is lawful, it is important to take into account the known individual circumstances of the prisoner of war, including the environment, physical or mental condition of the prisoner, cultural beliefs and sensitivity, gender, age, social, cultural, religious or political background, or past experiences.[42] In addition, the totality of the treatment the prisoner of war has received since capture, and not just during interrogation, needs to be considered.[43]
1827  It is thus not possible to establish a definitive list of permissible and prohibited interrogation techniques. Such an approach would inevitably fail to include potential coercive techniques yet to be developed. Further, it is misleading to assess detention and interrogation regimes according to checklists designed to ensure that every element of the interrogation regime, in and of itself, remains within the permissible parameters. The cumulative effect of all the elements that make up the internment and interrogation regime must be taken into account.[44]
1828  That said, certain types of interrogation techniques are clearly prohibited. For example, attempts to gain information from an unwilling prisoner of war through the deliberate denial of required medical treatment or through the use of mind-altering chemicals (such as a ‘truth serum’), drugs and physiological or psychological devices (such as hypnosis), which impair or deprive prisoners of their free will without being in their interest (as would be, for example, bona fide medical treatment), are also prohibited for their coercive nature and, when employed by a Detaining Power, would be deemed violations of Article 13 (humane treatment of prisoners) and Article 17.[45] Other examples gleaned from practice include beatings and other physical abuse.[46] Holding prisoners ‘incommunicado’, a practice of certain Detaining Powers in ‘interrogation camps’ during the Second World War, but also in conflicts since then, is implicitly forbidden by this paragraph. It is also inconsistent with Articles 13–14, 122, and 126 of the Convention.
1829  Paragraph 4 contains an important additional safeguard by stating that prisoners of war who refuse to answer ‘may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind’.[47] The Detaining Power is therefore obliged to respect a prisoner’s decision to refuse to answer questions that go beyond the identifying information referred to in paragraph 1 and it cannot punish such refusal in any way. Even with respect to the said identifying information, the Detaining Power may only sanction a refusal to answer by restricting the privileges accorded to the prisoner’s rank or status, as provided in paragraph 2.
1830  This article does not prohibit the Detaining Power from interrogating prisoners of war with a view to ascertaining the truth in relation to an alleged crime.[48] Interrogators may use interrogation techniques that are not unlawful under Articles 13 and 17 or any other applicable rules.[49] Wounded or sick prisoners of war may only be interrogated with the approval of medical staff; such interrogation must not interfere with required medical treatment and must respect applicable standards of medical ethics.[50]
1831  To avoid any breach of the Convention, interrogation beyond the basic questioning foreseen in the first paragraph of this article should be conducted only by qualified personnel such as properly trained intelligence personnel and be subject to strong control mechanisms and oversight to ensure that it does not violate the prohibitions of torture, cruel, inhuman and degrading treatment and any form of coercion. To prevent violations, interrogation sessions should not take place unless recording methods (audio and/or video) are in operation. Such recordings may also assist in the investigation of alleged cases of torture, as required under Article 129.[51]
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G. Paragraph 5: Prisoners who are unable to state their identity
1832  According to Article 17(5), prisoners of war who are unable to state their identity owing to their physical or mental condition, for example because of wounds or exhaustion, must be handed over to the medical service. The purpose of this provision is to ensure that such prisoners receive the necessary medical assistance to the fullest extent practicable and with the least possible delay and that any questioning complies with the restrictions specific to their situation (see para. 1830 of this commentary).
1833  The identity of such prisoners must be established by all possible means, subject to the prohibition of torture and coercion in paragraph 4. In particular, such prisoners may be identified through their identity cards or their identity discs or by fellow prisoners. Recourse may also be had to other methods, such as the transmission of digital or analogue photographs or biometric identification procedures such as fingerprints or retinal scanning.[52] Any identification procedure used must be consistent with the requirements of Article 13. For example, if prisoners of war are photographed for identification purposes, the photographs must be handled and used in a way that does not violate the prohibition of exposure to public curiosity contained in Article 13(2).[53] A DNA sample may be taken and analysed only with the prisoner’s informed consent, except where an overriding public interest dictates otherwise, such as to identify persons who are unable to state their identity, and other methods of identification are not adequate.[54]
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H. Paragraph 6: Language used for questioning
1834  The questioning of prisoners of war must be carried out in ‘a language which they understand’. Provided prisoners can understand the questions put to them, the questioning need not necessarily be carried out in their native language.[55]
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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.
Gardner, Edith Rose, ‘Coerced Confessions of Prisoners of War’, George Washington Law Review, Vol. 24, 1956, pp. 528–563.
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.
Glod, Lt. Stanley J. and Smith, Lt. Lawrence J., ‘Interrogation Under the 1949 Prisoners of War Convention’, Military Law Review, Vol. 21, July 1963, pp. 145–156.
Krähenmann, Sandra, ‘Protection of Prisoners in Armed Conflict’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 359–411.
Kuner, Christopher and Marelli, Massimo (eds), Handbook on Data Protection and Humanitarian Action, ICRC and Brussels Privacy Hub, 2nd edition, Geneva, 2020.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 106–109.
Mullins, Claud, The Leipzig Trials: An Account of the War Criminals’ Trials and A Study of German Mentality, H.F. & G. Witherby, London, 1921.
Noone, Commander Gregory P. et al., ‘Prisoners of War in the 21st Century: Issues in Modern Warfare’, Naval Law Review, Vol. 50, 2004, pp. 1–69.
Nowak, Manfred and Janik, Ralph R.A., ‘Torture, Cruel, Inhuman or Degrading Treatment or Punishment’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 317–342.
Pato, Joseph N. and Millett, Lynette I. (eds), Biometric Recognition: Challenges and Opportunities, National Research Council/National Academies Press, Washington, D.C., 2010.
Rosas, Allan, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts, Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 1976, reprinted 2005, pp. 442–445.
Thompson, Sean Kevin, ‘The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation’, Cornell Law Review, Vol. 90, September 2005, pp. 1601–1638.

1 - Article 5.
2 - See, in particular, Article 70 regarding capture cards transmitted by prisoners to their families and to the Central Tracing Agency, and Article 122 regarding information given by the Detaining Power to the national information bureau for forwarding to the Powers concerned and to the Central Tracing Agency established pursuant to Article 123.
3 - Lieber Code (1863), Article 107.
4 - Ibid. Article 80.
5 - Hague Regulations (1907), Article 9. Article 9 of the 1899 Hague Regulations used almost identical wording.
6 - For practice during the First World War, see Agreement between France and Germany concerning Prisoners of War (1918), Article 26; Agreement between Austria-Hungary and Italy concerning Prisoners of War and Civilians (1918), Article 25(4); and Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Article 25.
7 - See Geneva Convention on Prisoners of War (1929), Article 5(1). For the text of this provision, see para. 1792 of this commentary.
8 - See Bretonnière, pp. 67–78.
9 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 251 (Finland).
10 - See also para. 1787 of this commentary and Introduction, section A.3.f.
11 - See also the commentary on Article 70, paras 3148–3157, discussing the data to be included on capture cards filled in by the prisoners.
12 - For more details, see the commentary on Article 122, section E.1.d.
13 - Hague Regulations (1907), Article 9, and Geneva Convention on Prisoners or War (1929), Article 5(2). See also Brussels Declaration (1874), Article 29, and Oxford Manual (1880), Article 65.
14 - Report of the Conference of Government Experts of 1947, p. 123.
15 - The draft text approved by the 1947 Conference of Government Experts is quite explicit in this regard: ‘Should the PW deliberately infringe this rule, he may be liable to restriction of the privileges granted to PW of his rank or status, over and beyond the rights conferred by the Convention on PW in general.’ Report of the Conference of Government Experts of 1947, p. 123. The latter part of the sentence (here italicized) was deleted in order to simplify the text.
16 - See Article 16, a general clause referring to the privileged treatment accorded to rank and age; Article 39(3) noting special provisions for the saluting of officers; Article 40 concerning the wearing of badges of rank; Article 44, a special clause regarding the treatment of officers; Article 45, a special clause regarding the treatment of other prisoners of war according to rank and age; Article 49(1) on general conditions concerning labour – age reservations in the work that may be required of prisoners; Article 49(2) on exemption from work for non-commissioned officers; Article 49(3) on exemption from work for officers; Article 60 on advances of pay; Article 79(2) on the appointment of prisoners’ representatives in camps for officers and in mixed camps; Article 79(3) on the appointment of officers to administrative posts in labour camps; Article 87(4) providing that the Detaining Power may not deprive prisoners of war of their rank or prevent them wearing their badges; Article 97(3) requiring that officers undergoing punishment be accommodated separately from non-commissioned officers and men; Article 104(2) requiring notification of proceedings against a prisoner of war; and Article 122(4) concerning the information transmitted by the information bureau.
17 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 160. For an example during the Second World War, see Bretonnière, pp. 67–68 (French prisoners concealed their rank of officer upon capture in the hope of an earlier release but as a result were made to work. This restriction of privilege continued to be applied after their true rank was discovered.)
18 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 161.
19 - For national practice, see e.g. Argentina, Manual of the Law of Armed Conflict, 2010, p. 157; Canada, Prisoner of War Handling Manual, 2004, section 302.10; Denmark, Military Manual, 2016, p. 243; Netherlands, Military Manual, 2005, para. 0716; New Zealand, Military Manual, 2019, Vol. 4, para. 12.4.1(c); Spain, LOAC Manual, 2007, para. 4-46; Switzerland, Basic Military Manual, 1987, Articles 60 and 110; United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 149, para. 8.19; and United States, Law of War Manual, 2016, p. 545, para. 9.4.3.
20 - See First Convention, Article 40, and Second Convention, Article 42. For auxiliary medical personnel, see First Convention, Article 41. For civilian medical and religious personnel, see Additional Protocol I, Articles 15(5) and 18(3).
21 - See First Convention, Articles 16 and 17, and Second Convention, Articles 19 and 20.
22 - 24th International Conference of the Red Cross, Manila, 1981, Res. I, Wearing of identity discs, reproduced in International Review of the Red Cross, Vol. 21, No. 225, December 1981, p. 318.
23 - For further details, see the commentaries on Article 16 of the First Convention, paras 1569–1574, and on Article 19 of the Second Convention, paras 1746–1751.
24 - Most of these details do not change often, if at all. However, one piece of information that is liable to change more than others is rank. In that case, the Detaining Power may use an alternative means of determining a prisoner’s rank, including through external signs, such as a badge.
25 - See Article 120(4).
26 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 250–251.
27 - Prisoners may lose their cards, in which case they would have a valid excuse for not carrying them on them. Moreover, Article 5 provides that persons ‘shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal’. Partisans will not normally carry identity cards, but this fact cannot deprive them of the right to be treated as prisoners of war, provided that they fulfil the conditions specified in Article 4. This applies also to those who have taken up arms as a result of a levée en masse.
28 - For what constitutes ‘military documents’, see the commentary on Article 18, para. 1848.
29 - See Article 18(2).
30 - For more details, see the commentary on Article 99, section D.
31 - Levie, p. 109. See also United Kingdom, Military Court at Wuppertal, Dulag Luft case, Trial, 1945 (‘The function of Dulag Luft was, shortly, to obtain information of an operational and vital nature from the captured crews of Allied machines. The allegation was that excessive heating of the prisoners[’] cells took place at Dulag Luft between the dates laid in the charge for the deliberate purpose of obtaining from prisoners of war information of a kind which under the Geneva Convention they were not bound to give, and that the accused were concerned in that ill-treatment. The Prosecution also alleged a “lack of and refusal of required medical attention” and “in some cases, blows.” ... Killinger, Junge and Eberhardt were found guilty and sentenced to imprisonment for five, five and three years respectively. The remaining two accused were found not guilty.’).
32 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 163.
33 - See e.g. UN Security Council, Prisoners of war in Iran and Iraq: The report of a mission dispatched by the Secretary-General, January 1985, UN Doc. S/16962 (reissued), 22 February 1985, para. 113.
34 - See Report of the Conference of Government Experts of 1947, pp. 123–124.
35 - See also Levie, p. 109. A limit to interrogation on the battlefield is the requirement in Article 19 that prisoners be evacuated ‘as soon as possible after their capture’.
36 - See the commentaries on Article 3, para. 663, and on Article 130, section D.2.
37 - Article 130.
38 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 278. See also Netherlands, Military Manual, 2005, para. 0717 (‘Coercion may mean the exercise of power, by violence or otherwise, which forces someone to do something.’)
39 - See United States, Intelligence Interrogation Handbook, 1992, p. 1-8, which defines coercion as ‘actions designed to unlawfully induce another to compel an act against one’s will’. See also Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), Principle 21(2): ‘No detained person while being interrogated shall be subject to violence, threats or methods of interrogation which impair his capacity of decision or his judgment.’
40 - On denying medical care or threatening or implying denial of other rights guaranteed by the Conventions, see United States, Intelligence Interrogation Handbook, 1992, p. 1-8, and Human Intelligence Collector Operations, 2006, para. 5.77. On the prohibition of the so-called ‘five techniques’ (stress positions, hooding, subjection to noise, deprivation of sleep and rest, and deprivation of food and water), see United Kingdom, Joint Doctrine Captured Persons, 2015, p. 2-12, para. 218.
41 - For the definition of these terms, see the commentary on Article 3, sections G.2 and G.4.
42 - See also the commentary on Article 3, paras 655 and 670–671, and Maia/Kolb/Scalia, p. 161.
43 - See also the commentary on Article 3, paras 655 and 672.
44 - See also the commentary on Article 3, para. 672.
45 - UN General Assembly, Respect for human rights in armed conflicts: Report of the Secretary-General, UN Doc. A/8052, 18 September 1970, para. 119; Glod/Smith, pp. 153–154. On the prohibition of mind-altering chemicals, see United States, Law of War Manual, 2016, p. 554, para. 9.8.1. On the prohibition of hypnosis, see United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 192, para. 8.131. On the use of functional magnetic resonance imaging (MRI), see Thompson, pp. 1616–1618.
46 - Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, paras 75–76; UN Compensation Commission, Report and Recommendations made by the Panel of Commissioners concerning Part One of the Second Instalment of Claims for Serious Personal Injury of Death (Category “B” Claims), UN Doc. S/AC.26/1994/4, 15 December 1994, para. 14; United States, Department of Defense, Conduct of the Persian Gulf War: Final Report to Congress, April 1992, Appendix O-19; Krähenmann, p. 391, para. 716.
47 - Examples of national practice concerning the prohibition of adverse treatment of detainees because they refuse to provide information beyond names, rank, date of birth and service number include: Burundi, Regulation on International Humanitarian Law, 2008, p. 55; Canada, Code of Conduct, 2002, p. 2-10; Denmark, Military Manual, 2016, p. 528; Ireland, LOAC Manual, 2005, part 5; Madagascar, Military Manual, 1994, para. 28; New Zealand, Military Manual, Vol. 4, para. 12.6.9; Nigeria, Military Manual, 1979, para. 38; Switzerland, Basic Military Manual, 1987, para. 6.2; and United States, Law of War Manual, 2016, pp. 554–555, para. 9.8.1, and Army Regulation on Enemy Prisoners, Retained Personnel, Civilian Internees and Other Detainees, 1997, para. 2.1.a (1)(d).
48 - For more details, see Article 99(2).
49 - Some military manuals allow the offering of incentives that exceed basic amenities (United States, Army Field Manual, 2006, p. 8-2, and Operational Law Handbook, 2017, p. 113), while other manuals prohibit it (New Zealand, Military Manual, 2019, Vol. 4, para. 12.6.4(f); Peru, IHL Manual, 2004, para. 39(g); Philippines, LOAC Teaching File, 2006, p. 14-7; Sri Lanka, Military Manual, 2003, para. 1621; and Turkey, LOAC Manual, 2001, p. 50). See also Sanna, pp. 992–993 (‘[T]he real concession of any privilege would appear unlawful if contrary to the principle of non-discrimination between prisoners. Nevertheless, it is worth remembering that the non-discrimination provision should be understood as excluding differentiation only when it is disadvantageous for the moral and material well-being of POWs.’); Levie, p. 108 (‘[T]here is no prohibition against obtaining information from a prisoner of war by trickery.’); Krähenmann, p. 391, para. 716 (referring to Levie); and Noone et al., p. 55 (‘[I]t is not lawful to give particularly cooperative prisoners of war more favorable treatment, such as better accommodation, rations or pay, since all prisoners of war are to be treated alike.’).
50 - For more details on medical ethics, see the commentary on Article 30, para. 2232.
51 - See the commentary on Article 129, section D.1. See also Convention against Torture (1984), Article 12; UN Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2000), para. 2 (‘States shall ensure that complaints and reports of torture or ill-treatment are promptly and effectively investigated. Even in the absence of an express complaint, an investigation shall be undertaken if there are other indications that torture or ill-treatment might have occurred.’), and Istanbul Protocol (2004), p. 4.
52 - ‘Biometric recognition’ is defined as ‘automated recognition of individuals based on their biological and behavioural characteristics’. See International Standards Organization, ISO/IEC TR 24741:2018, Information technology – Biometrics – Overview and application, February 2018.
53 - See the commentary on Article 13(2), section D.4.
54 - 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: A Guide to Best Practice in Armed Conflicts and Other Situations of Armed Violence, 2nd edition, ICRC, Geneva, 2009, p. 42. See also Sanna, p. 992.
55 - See also Maia/Kolb/Scalia, pp. 157–158 (referring to examples in this regard from the Korean War (1950–1953), Falklands/Malvinas War (1982) and Gulf War (1990–1991).