Related Rule
United States of America
Practice Relating to Rule 117. Accounting for Missing Persons
The US National Defense Authorization Act for Fiscal Year 2010 (2009) provides for the following authorization:
Sec. 541. Additional Requirements for Accounting for Members of the Armed Forces and Department of Defense Civilian Employees Listed as Missing in Conflicts Occurring Before Enactment of New System for Accounting for Missing Persons
(a) IMPOSITION OF ADDITIONAL REQUIREMENTS.—Section 1509 of title 10, United States Code, is amended to read as follows:
Ҥ 1509. Program to resolve pre-enactment missing person cases
“(a) PROGRAM REQUIRED; COVERED CONFLICTS.—The Secretary of Defense shall implement a comprehensive, coordinated, integrated, and fully resourced program to account for persons described in subparagraph (A) or (B) of section 1513(1) of this title who are unaccounted for from the following conflicts:
“(1) World War II during the period beginning on December 7, 1941, and ending on December 31, 1946, including members of the armed forces who were lost during flight operations in the Pacific theater of operations covered by section 576 of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106–65; 10 U.S.C. 1501 note).
“(2) The Cold War during the period beginning on September 2, 1945, and ending on August 21, 1991.
“(3) The Korean War during the period beginning on June 27, 1950, and ending on January 31, 1955.
“(4) The Indochina War era during the period beginning on July 8, 1959, and ending on May 15, 1975.
“(5) The Persian Gulf War during the period beginning on August 2, 1990, and ending on February 28, 1991.
“(6) Such other conflicts in which members of the armed forces served as the Secretary of Defense may designate.
‘‘(c) TREATMENT AS MISSING PERSONS.—Each unaccounted for person covered by subsection (a) shall be considered to be a missing person for purposes of the applicability of other provisions of this chapter to the person. 
United States, National Defense Authorization Act for Fiscal Year 2010, 2009, Sec. 541, pp. 107–108.
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support the principle that … each party to a conflict should search areas under its control for persons reported missing, when circumstances permit, and at the latest from the end of active hostilities.” 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 424.
In 1995, during a debate in the UN Security Council concerning Bosnia and Herzegovina, the United States stated, with respect to the civilians missing and unaccounted for: “We have a responsibility to investigate, to find out what we can.” 
United States, Statement before the UN Security Council, UN Doc. S/PV.3564, 10 August 1995, p. 6.
The US Field Manual (1956) reproduces Article 122 of the 1949 Geneva Convention III and Articles 136 and 137 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 203, 343 and 344.
The US Naval Handbook (2007) states: “The [1949] Geneva Conventions recognize the special status of the ICRC and have assigned specific tasks for it to perform, including … searching for information concerning missing persons.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.2.
The US National Defense Authorization Act for Fiscal Year 2010 (2009) provides for the following authorisation:
Sec. 541. Additional Requirements for Accounting for Members of the Armed Forces and Department of Defense Civilian Employees Listed as Missing in Conflicts Occurring Before Enactment of New System for Accounting for Missing Persons
(a) IMPOSITION OF ADDITIONAL REQUIREMENTS.—Section 1509 of title 10, United States Code, is amended to read as follows:
Ҥ 1509. Program to resolve pre-enactment missing person cases
“(a) PROGRAM REQUIRED; COVERED CONFLICTS.—The Secretary of Defense shall implement a comprehensive, coordinated, integrated, and fully resourced program to account for persons described in subparagraph (A) or (B) of section 1513(1) of this title who are unaccounted for from the following conflicts:
“(1) World War II during the period beginning on December 7, 1941, and ending on December 31, 1946, including members of the armed forces who were lost during flight operations in the Pacific theater of operations covered by section 576 of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106–65; 10 U.S.C. 1501 note).
“(2) The Cold War during the period beginning on September 2, 1945, and ending on August 21, 1991.
“(3) The Korean War during the period beginning on June 27, 1950, and ending on January 31, 1955.
“(4) The Indochina War era during the period beginning on July 8, 1959, and ending on May 15, 1975.
“(5) The Persian Gulf War during the period beginning on August 2, 1990, and ending on February 28, 1991.
“(6) Such other conflicts in which members of the armed forces served as the Secretary of Defense may designate.
“(d) ESTABLISHMENT OF PERSONNEL FILES.—(1) The Secretary of Defense shall ensure that a personnel file is established and maintained for each person covered by subsection (a) if the Secretary—
“(A) possesses any information relevant to the status of the person; or
“(B) receives any new information regarding the missing person as provided in subsection (e).
“(2) The Secretary of Defense shall ensure that each file established under this subsection contains all relevant information pertaining to a person covered by subsection (a) and is readily accessible to all elements of the department, the combatant commands, and the armed forces involved in the effort to account for the person. 
United States, National Defense Authorization Act for Fiscal Year 2010, 2009, Sec. 541, pp. 107–108.
According to the Report on US Practice, it is the opinio juris of the United States that the parties to all armed conflicts should take such action as may be within their power to provide information about missing persons. 
Report on US Practice, 1997, Chapter 5.2.
The US Field Manual (1956) reproduces Article 26 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 265.
The US Air Force Pamphlet (1976) stipulates that the 1949 Geneva Convention IV contains “measures for facilitating the establishment of contact between members of a family who have been separated because of the war”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-3.
The Annotated Supplement to the US Naval Handbook (1997) states: “The United States also supports the new principles in [the 1977 Additional Protocol] I, art. 32 & 34, that families have the right to know the fate of their relatives.” 
United States, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, prepared by the Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College, Newport, Rhode Island, November 1997, § 11.4, footnote 19.
At the CDDH in 1974, the United States referred to “the anguish of the families of persons of whom there was no word during conflicts” and stressed
the need to inform those families of the fate of their missing relatives as soon as possible, and pointed out that the draft followed logically from resolution V adopted on that subject by the XXIInd International Conference of the Red Cross at Teheran in 1973. 
United States, Statement at the CDDH, Official Records, Vol. XI, CDDH/II/SR.6, 14 March 1974, p. 41, § 4.
At the CDDH in 1976, the United States stated:
The statement of the right of the families to know the fate of their relatives was of primary importance for the understanding of the Section under discussion. Paragraph 1 of article 20 bis did not refer to other sections of the draft Protocol or the Geneva Conventions. If the right of the families was not specifically mentioned, the section might be interpreted as referring to the right of Governments, for instance, to know what had happened to certain missing persons … As regards [a] query of the Yugoslav representative whether paragraph 1 of article 20 bis was necessary, he agreed that it was unusual to state the premises on which an article was based. The paragraph had been included in response to a strong feeling of many delegations and institutions that it was important to express in the Protocol the idea that families had a right to know what had happened to their relatives. United Nations General Assembly resolution 3220 (XXIX), which the Working Group had studied when drawing up the present text, stated in the last preambular that “the desire to know … is a basic human need”, but the next under consideration went even further by referring to the “right”. 
United States, Statement at the CDDH, Official Records, Vol. XII, CDDH/II/SR.76, 1 June 1976, p. 232, §§ 28–29.
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support the principle that families have a right to know the fate of their relatives.” 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 424.