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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
[p.155] ARTICLE 17
. -- QUESTIONING OF PRISONERS
[p.156] GENERAL REMARKS
The first concern and, indeed, the first duty of a belligerent Power which has prisoners of war in its hands is to establish their identity. It must immediately determine the rank and status of those whom it has captured, in order to accord them the treatment to which they are entitled.
It is therefore in the interest of the person concerned to establish his identity and he must give the power which has captured him sufficient information to establish beyond any doubt his status as a member of the enemy armed forces. But this minimum amount of information does not meet every requirement. The Detaining power may very naturally be tempted to obtain additional information from the prisoner, both in regard to himself and concerning the circumstances which preceded his capture, for this is obviously of interest from the military point of view. The prisoner may, and indeed must, refrain from giving military information to the Detaining Power; he must therefore be protected against any inquisitorial practices on the part of that Power. Furthermore, he will wish to send to his family and friends as much information as possible concerning his situation, so that he may receive news and parcels; this information can obviously be sent only through the good offices of the Detaining Power. There are, however, cases where, if a prisoner gives
information about members of his family, the latter may suffer embarrassment or difficulty.
The Power in whose armed forces the prisoner was serving prior to his capture must ascertain the fate of those who were enlisted under its colours and must also see to it that the prisoner's next of kin are notified.
It was therefore necessary to make provision in the Convention for all these requirements which may conflict in some respects. The system finally adopted may be summarized as follows:
A. ' Information given by the prisoner to the Detaining Power ' (Article 17, paragraphs 1 and 3).
' Time ': Immediately following capture; this is not expressly
stated, but the spirit of the Convention requires that
prisoners should be identified within a very short time;
' Form ': Questioning or identity card.
The prisoner is bound to give his surname, first names, rank, date of birth and army, regimental, personal or serial number, or failing this, equivalent information. He must upon demand show his identity card which must contain, as a minimum requirement, this information.
B. ' Information given by the prisoner to his family and the Central Prisoners of War Agency ' (Article 70
, Annex IV).
' Time ': Within one week after capture;
' Form ': Capture card (Annex IV).
This provision is binding on the Detaining Power but the prisoner may refrain from giving certain information. The capture card provides space for indicating the surname, first Dames, father's first name, address of family, date and place of birth, rank, army, regimental, personal or serial number, state of health, and name and address of camp.
C. ' Information given by the Detaining Power to the national Information Bureau for forwarding to the Powers concerned and to the Central Prisoners of War Agency ' (Article 122
' Time ': As soon as possible after capture;
' Form ': At the discretion of the national Bureau (individual
record), but all written communications by the Bureau
must be authenticated by a signature or seal.
This provision is binding on the Detaining Power, subject to any information of a personal nature which prisoners may refuse to give.
The information comprises: surname, first names, father's first name, mother's maiden name, name and address of the person to be notified, rank, army, regimental, personal or serial number, name of camp and postal address -- information regarding transfers, releases, repatriations, escapes, admissions to hospitals, deaths -- information regarding the state of health of prisoners.
PARAGRAPH 1. -- DECLARATION BY THE PRISONER
As we have seen, a prisoner of war, when questioned on the subject, is bound to give only his name, first names and rank, date of birth and [p.158] army, regimental, personal or serial number, or failing this, equivalent information. The present text is therefore an improvement as compared with the corresponding text in the 1929 Convention, which allowed a prisoner to give only his regimental number (Article 5, paragraph 1
). The Central Agency's extensive experience showed that that information alone was quite inadequate for the identification of prisoners of war and for the work of the Information Bureaux. In view of the risk of error involved in transmitting names and figures, it is essential to have several indications simultaneously, in order to make a cross-check. In practice, moreover, prisoners of war, when questioned, very rarely availed themselves of the possibility of giving only their regimental number (1). The Conference of Government Experts considered that it would be advisable to revert to the text of the Hague Regulations
), with the addition of the requirement that the date of birth should be given. At the 1949 Diplomatic Conference, however, this solution was not adopted without difficulty; some delegates pointed out that information concerning the rank and age of prisoners might be of interest from the military point of view (2). It should, however, be noted that if the age and rank of prisoners are not known, the Detaining power will be unable to take them into account as required by certain Articles of the Convention (Articles 16
). Other information which is of great value for purposes of identification, such as nationality or country of origin, may be withheld because of possible consequences, e.g. when the country concerned is occupied by the armed forces of the Detaining Power. This is also true in the case of information concerning the military unit or regiment, which may be of military interest (3).
PARAGRAPH 2. -- SANCTION
Although a prisoner of war may not be forced to give any information over and above that specified in paragraph 1, he is bound to give those indications and his statement must be a true one.
[p.159] For this reason, the Convention does not hesitate to provide a sanction in case of wilful infringement of this rule. When prisoners are questioned, the Detaining power should therefore draw their attention to the provisions contained in this Article, so that they may be fully aware of their rights and obligations. It is perhaps regrettable that no express provision to that effect was included in the Convention, since this situation is not covered by the general requirement in Article 41
that the text of the Convention must be posted in every camp. Prisoners of war are in fact usually questioned very shortly after capture, sometimes even on the battlefield and amid some confusion. The fifth paragraph of the Article makes special provision to cover incorrect statements made by prisoners owing to their physical or mental condition. Under the Convention, a prisoner who wilfully makes an inaccurate statement or who refuses to give the particulars specified in the first paragraph may be liable to "a restriction of the privileges accorded to
his rank or status". This wording is not entirely new; the Brussels Declaration (Article 29
), the Oxford Manual (Article 65
), the Hague Regulations (Article 9
) and the 1929 Convention (Article 5, paragraph 2
) already contained a similar rule, with the slight difference that the word "category" was used instead of "rank or status". The Conference of Government Experts considered, however, that the term "category" did not make sufficiently clear the distinction between officers, non-commissioned officers and men. 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, yet have the status of an officer (4). It must be emphasized, however, that for the prisoners concerned this provision may entail only a "restriction" of privileges and in no case should it involve loss of all or part of the other benefits accruing under the Convention (5). 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. Those provisions are the following:
: General clause referring to privileged treatment according to rank and age;
[p.160] Article 39, paragraph 3
: Special provisions for saluting in the case of officers;
: Wearing of badges of rank;
: Special clause regarding treatment of officers;
: Special clause regarding treatment of other prisoners of war according to rank and age;
Article 49, paragraph 1
: General conditions concerning labour: age reservation;
Article 49, paragraph 2
: Exemption from work for non-commissioned officers;
Article 49, paragraph 3
: Exemption from work for officers: Article 60
: Advances of pay;
Article 79, paragraph 2
: Appointment of prisoners'representative in camps for officers and in mixed camps;
Article 79, paragraph 3
: Appointment of officers to administrative posts in labour camps;
Article 87, paragraph 4
: Requirement that the Detaining Power may not deprive a prisoner of war of his rank or prevent him from wearing his badges;
Article 97, paragraph 3
: Provision of quarters separate from those of non-commissioned officers and men for officers undergoing punishment;
Article 104, paragraph 2
: Notification of proceedings against a prisoner of war;
Article 122, paragraph 4
: Information transmitted by the Information Bureau.
The sanction automatically applies to prisoners who conceal their rank, since in such a case the Detaining power will necessarily and in good faith consider them as having a status inferior to that to which they would actually be entitled. If the captor subsequently discovers the true identity of prisoners of war who have fallen into his hands, he is in no way bound to accord them the corresponding treatment (6). The Convention, however, gives the captor full latitude in this matter.
[p.161] If, on the contrary, during questioning a prisoner claims a rank superior to his actual status and the Detaining power subsequently finds this out, the prisoner may be deprived throughout his captivity, not only of the privileges which had until then been accorded to him, but also of all the privileges to which his true rank would entitle him.
PARAGRAPH 3. -- IDENTITY CARDS
At the Conference of Government Experts, one delegation recommended that the identification of prisoners of war should be based on an identity card of a standard pattern for all members of the armed forces of a given country, which every combatant should carry and hand to the Detaining Power on capture in order to speed up identification formalities. It was objected that such cards might be lost or exchanged and that they could in no way replace verbal information furnished by prisoners of war. The proposal was therefore rejected (7).
1. ' First sentence. -- Issue of an identity card. -- Obligation for
belligerent Powers '
This requirement is mandatory and refers to all the categories of persons mentioned in Article 4
, regardless of their nationality. The provision is applicable to all persons under the jurisdiction of a Party to the conflict who are liable to become prisoners of war. It should, however, be noted that this requirement could not be complied with in the event of a mass levy.
The fact that such identity cards must be issued at the outbreak of hostilities implies that the States parties to the Convention must take the necessary measures in good time (8). The information to be shown on the card is exactly the same as that specified in the first paragraph of the Article.
2. ' Second sentence. -- Other information '
As an optional measure, the Convention also provides that the card may bear the signature and finger-prints of the owner, as well as "any other information the party to the conflict may wish to add..." [p.162] It would also be desirable to indicate the religious denomination of the owner, in order to enable the appropriate rites to be performed in case of death. Another important addition would be the owner's blood group. In order to preclude any exchange of cards, the photograph of the holder might also be on the card.
3. ' Third sentence. -- Size and number of copies '
As far as possible the card should be of standard size (6.5 X 10 cm.) (9); this is desirable for practical reasons, particularly for filing in card indexes. The duplicate copy will be filed by the power which issued the card and will assist the work of the Information Bureaux and the Central prisoners of War Agency.
4. ' Fourth sentence. -- Showing of the card '
In accordance with this provision, the prisoner of war must upon demand show the identity card of which he is the regular holder to the military authorities of the Detaining Power. This requirement is unconditional, and is therefore unrelated to the questioning referred to in the first paragraph. A prisoner of war may not cite the questioning as grounds for refusing to show his identity card.
Furthermore, the card constitutes proof, as 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.
The identity card affords a constant guarantee to the prisoner only if he carries it all the time (10). It frequently happened during the Second World War that the belligerents took away all the identity documents of prisoners of war, and numerous difficulties ensued. As we shall see in considering Article 18
, one cannot prohibit the Detaining Power from taking away the military documents carried by prisoners, as such documents may contain military information. The identity card, on the other hand, contains no military information; [p.163] it serves only to establish the prisoner's identity and must be handed back to him immediately, in accordance with the present provision.
The card to which the present Article refers is distinct from that mentioned in Article 4, paragraph 4
; the latter is for issue to persons who accompany the armed forces without actually being members thereof, and a model card is shown in Annex IV.
PARAGRAPH 4. -- PROHIBITION OF COERCION
During the Second World War, certain categories of prisoners were placed in special camps, known as "interrogation camps" before being sent to a normal prisoner-of-war camp. In order to try to secure information, great hardship was inflicted on them. Such camps were outside the control of the protecting powers and the delegates of the International Committee of the Red Cross, which in most cases had no knowledge of their existence. These practices were therefore in flagrant violation of Article 5, paragraph 3
, of the 1929 Convention.
The authors of the new Convention were not content to confirm the 1929 text: they made it more categorical by prohibiting not only "coercion" but also "physical or mental torture". The 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 (11). The 1929 text, which stated that "No pressure shall be exerted on prisoners to obtain information regarding the situation in their armed forces or their country" was replaced by an absolutely general prohibition in regard to "information of any kind whatever".
The Detaining power may not therefore exert any pressure on prisoners, and this prohibition even refers to the information specified in the first paragraph of the Article. The holding of prisoners ' incommunicado ', which was practised by certain Detaining powers in "interrogation camps" during the last war, is also implicitly forbidden by this paragraph, but even more so by Article 126
Be this as it may, a State which has captured prisoners of war will always try to obtain military information from them (12). Such attempts [p.164] are not forbidden; the present paragraph covers only the methods to which it expressly refers (13).
PARAGRAPH 5. -- PRISONERS WHO ARE UNABLE TO STATE
The 1929 Convention also provided, in Article 5, paragraph 4
, that a prisoner who, by reason of his physical or mental condition, is incapable of stating his identity must be handed over to the Medical Service; no difficulties seem to have arisen from the application of this provision during the Second World War (14). The Conference of Government Experts nevertheless recommended the addition of a clause requiring the Detaining Power to endeavour to establish identity in such cases "by all possible means, subject to the provisions of the preceding paragraph". The delegations at the Conference had in mind particularly the finger-print system, but this is only useful provided finger-prints have been registered previously by the prisoner's Power of Origin. Recourse may also be had to other methods, such as the transmission of photographs.
PARAGRAPH 6. -- LANGUAGE USED FOR QUESTIONING
The questioning of prisoners of war should obviously be carried out in "a language which they understand", and the authors of the 1929 Convention did not deem it necessary to include this clarification. It will be noted, however, that, provided the prisoner can understand the questions put to him, the questioning need not necessarily be carried out in his mother tongue.
* (1) [(1) p.158] See BRETONNI RE: op. cit., pp. 67-78;
(2) [(2) p.158] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 250;
(3) [(3) p.158] The United States authorities gave strict
instructions to members of their armed forces that, in
case of capture by the enemy, they were to give only the
information specified in Article 17. (' The U.S. Fighting
Man's Code ', rule IV, Department of Defense, Office of
the Armed Forces, Information and Education, November
1955). These very strict instructions were given following
the unfortunate experiences of American prisoners of war
during the Korean conflict;
(4) [(1) p.159] See ' Report on the Work of the Conference of
Government Experts ', p. 123;
(5) [(2) p.159] The draft text approved by the Conference of
Government Experts is quite explicit in this regard:
"Should the prisoner of war deliberately infringe
this rule, he may be liable to restriction of the
privileges granted to prisoners of war of his rank or
status, ' over and beyond the rights conferred by the
Convention on prisoners of war in general". (Report on the
Work of the Conference of Government Experts ', p. 123.)
The last phrase was deleted in order to simplify the text;
(6) [(1) p.160] For an example during the Second World War,
see BRETONNI RE: op. cit., pp. 67-68;
(7) [(1) p.161] See ' Report on the Work of the Conference of
Government Experts ', p. 122;
(8) [(2) p.161] Certain Governments are already preparing
these identity cards. See ' Revue internationale de la
Croix-Rouge ', September 1953, pp. 691-694; see also
' Information Note No. 4 ', May 1954, pp. 14-15;
(9) [(1) p.162] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' vol. II-A, p. 250-251;
(10) [(2) p.162] A prisoner may lose his card, in which case he
would have a valid excuse. 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 they fulfil the conditions specified in
Article 4. This applies also to those who have taken up
arms as a result of a mass levy;
(11) [(1) p.163] See ' Report on the Work of the Conference of
Government Experts ', pp. 123-124;
(12) [(2) p.163] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 251;
(13) [(1) p.164] See also below, p. 627;
(14) [(2) p.164] See BRETONNI RE, op. cit., p. 70;
See the Commentary of 2020
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