Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.

3123  Prisoners of war are not to be held in secret. Recording information about an individual’s detention serves to account for their whereabouts, thereby ensuring that no one goes missing or is forcibly disappeared.[1] The fact of a prisoner of war’s capture must be communicated at the earliest possible moment following capture, and within certain time limits, to the prisoner’s family and to the Central Prisoners of War Agency (now known, and herein referred to, as the Central Tracing Agency, which has always functioned under the responsibility of the ICRC).[2] Information regarding the capture, together with certain other details, is provided in a number of ways. One of these is through the cards that are the subject of the present article.

3124  The 1929 Geneva Convention on Prisoners of War provided for communication of capture through two different means. First, prisoners of war had to be enabled to send a postcard to their families informing them of their capture and the state of their health.[3] Second, belligerents were required to notify each other through the information bureaux of the capture of prisoners of war.[4] The transmission of this information was often subject to considerable delays. Accordingly, the 1949 Convention introduced the ‘capture card’, completed by the prisoners of war themselves and sent directly to the Central Tracing Agency. At the same time, prisoners still must be enabled to send a card containing similar information to their families. This notification system exists in addition to the transmission of lists of prisoners of war through the national information bureaux.[5]

3125  Related to the obligation to enable prisoners of war to write to their families and the Central Tracing Agency in case of sickness or transfer to hospital, the First and Second Conventions require that Parties to the conflict record and transmit to the national bureaux as soon as possible, in respect of each wounded, sick, shipwrecked or dead person of the adverse Party falling into their hands, any particulars which may assist in their identification.[6]

3126  During the First World War, bilateral agreements were concluded, providing, inter alia, for prisoners of war to be enabled to write to their families informing them of their capture.[7]

3127  A similar procedure was adopted in the 1929 Geneva Convention on Prisoners of War, whose Article 36, second paragraph, stipulated:

3128  During the Second World War, the ICRC observed that information bureaux sometimes took a while to notify captures and transfers.[8] There were a number of reasons for these delays: for example, an influx of newly captured persons or other demands upon the information bureaux.[9] Accordingly, the ICRC suggested to Detaining Powers that they send the Central Tracing Agency in Geneva ‘capture cards’ completed by the prisoners of war themselves.[10] The cards would contain all the information necessary to identify each individual. As the ICRC reported to the Preliminary Conference of National Societies meeting in Geneva in 1946,

3129  The priority given to ICRC mail meant that the capture cards often arrived some months before the official lists of prisoners of war who had been captured were conveyed[12] and before the postcards to the prisoners’ families had reached the recipients.[13] Accordingly, during the negotiation of the 1949 Convention, it was agreed to include the sending of the capture cards to the Central Tracing Agency, while maintaining the provision concerning the cards for prisoners’ families.

3130  Other points were also clarified, including the timing of the obligation and the necessity of the cards being completed also on the transfer of a prisoner of war.

3131  The Detaining Power is under an obligation to enable prisoners of war to write a card to their families and a card to the Central Tracing Agency informing them of certain matters.

3132  This obligation includes providing prisoners of war with the cards for completion in a language they understand, supplying the necessary writing materials or electronic devices, and providing an appropriate location to complete the cards. It may also be necessary to allow ICRC delegates and/or fellow prisoners, or, exceptionally, the Detaining Power itself, to assist in the completion of the capture cards in cases where prisoners of war are illiterate or seriously wounded and unable to fill in the cards themselves. It moreover entails explaining to prisoners of war the rationale behind the cards and the importance of completing them.

3133  These are important tasks, which require careful planning and qualified staff with the relevant language skills. The Detaining Power will thus need to supply such cards to prisoner-of-war camps, transit camps, and hospitals treating or potentially treating prisoners of war. This should be done even prior to prisoners of war falling into its hands, so that the obligation can be fulfilled in a timely manner.[14]

3134  The obligation belongs to the Detaining Power. As the word ‘enable’ indicates, there is no obligation for prisoners of war to actually fill in the cards. The sending of capture cards is their right – and, indeed, it is in their interests to do so – but it is not an obligation.[15] In some armed conflicts, certain prisoners declined to complete these cards owing, for example, to fears for their families’ safety.[16] Accordingly, the Detaining Power must afford prisoners of war the opportunity to fill in these cards, but it cannot coerce them to do so or to provide specific information on the cards.[17] Prisoners of war who decline to fill in capture cards are entitled to change their minds at a later date. Likewise, prisoners who fill in the initial capture cards have the right not to fill in other ones, for example if they fall sick or are transferred to a hospital or another camp; again, they may change their minds and complete one at a later date. This follows from Article 7 of the Convention, which provides that prisoners of war may not renounce their rights.

3135  The wording ‘every prisoner of war’ indicates that having the opportunity to write and send capture cards is an individual right. It therefore falls to the Detaining Power to inform each prisoner of this right, without discrimination; it must not wait until a prisoner requests it. Nor may the completion of the capture cards be used as an incentive, for example for good behaviour or for providing information to the Detaining Power. Likewise, its withdrawal cannot be used as a sanction, for example for poor behaviour or for failing to provide information requested by the Detaining Power. Retained medical and religious personnel covered by Article 33 must also be allowed to send capture cards.[18]

3136  Where the Detaining Power has not already enabled prisoners of war to complete capture cards, they will be given the opportunity to fill in the cards, or their equivalents,[19] during visits by ICRC delegates.

3137  Article 70 refers to two sets of recipients of the capture cards: one is the family of the prisoner of war and the other the Central Tracing Agency operating under the responsibility of the ICRC. Since sending the information solely through the Central Tracing Agency can engender delays in notification of the family, the 1947 Conference of Government Experts agreed with the ICRC proposal that prisoners of war should be allowed to notify their next of kin directly of their capture.[20] In practice, the card tends to be handed to the ICRC, which sends it on to the prisoner’s family.[21] When the card is not transmitted via the ICRC, it may be passed on by the authorities of the State in which the family resides. The term ‘family’ should be interpreted broadly, as there may be situations in which a prisoner of war has no ‘family’ as such but has other persons who are close to them and to whom the card may be addressed.[22]

3138  The recipient of the second card is the Central Tracing Agency. Capture cards enable the Agency to maintain records of individuals who are in the hands of the Detaining Power, together with details of their address and state of health. This information allows the Agency to keep track of their location and is linked to the purpose of the capture card.[23] It also enables the Agency to respond to queries from family members or the Power on which the prisoner of war depends,[24] which is especially relevant in cases where prisoners’ families are evacuated because of the armed conflict and are unable to receive a capture card by mail.[25]

3139  The purpose of the capture cards is to inform the outside world of the fate and whereabouts of the prisoner of war immediately upon capture.[26]

3140  The sending of a capture card by prisoners of war to their families serves to inform them of the fact of capture, an address at which they can be contacted, and their state of health. This removes, or at least alleviates, the uncertainty surrounding a person’s fate and whereabouts and the family’s consequent anguish.[27] Indeed, in some conflicts in which prisoners of war were not allowed to send capture cards, they were missing to their families who suffered a great deal of distress as a result.[28] Coming directly from the prisoner of war and bearing their signature, the card will be particularly meaningful to the prisoner’s family.[29]

3141  The sending of a capture card to the Central Tracing Agency provides an extra level of protection for the individual.[30] With the information it contains, the ICRC is able to monitor the sender’s location and to ensure individual follow-up, including on their state of health, until their final release and repatriation. This, in turn, significantly reduces the risk of ill-treatment, extrajudicial execution, disappearance or even misplacement of the individual.

3142  Providing information on the captured prisoner of war in this way also reflects sound detention policy. It constitutes acknowledgement of a person’s detention, increases transparency and helps to dispel rumours. Accordingly, it is also of benefit to the Detaining Power.

3143  The cards are to be ‘similar, if possible, to the model’ in Annex IV.B of the Convention. Use of the model format is thus a recommendation rather than a requirement. Enabling a prisoner of war to write a card with content equivalent to that contained in the model card is the key obligation and is more important than the form that the card takes. Accordingly, if the Detaining Power runs out of capture cards of the type annexed to the Convention or if it did not have any such cards to begin with, it must allow equivalent cards to be completed.[31] A lack of model cards excuses neither failure to enable prisoners of war to complete equivalent cards nor a delay in their completion beyond the time period set out in the article. As long as the prisoner of war has the opportunity to convey information equivalent to that contained in the annexed card, alternatives may be used.[32] This also extends to digital capture cards, which may be completed electronically, provided that the process is secure and the card is designed in a manner allowing for the transmission of information equivalent to that of a paper card, including the prisoner’s signature.[33]

3144  Whatever the case, it is important that the various fields on the cards are set out and described in a way that is easy to understand and accessible to all prisoners. This requires not only that the card be in a language that the prisoners understand, but also that it uses words and terms with which they are familiar.[34] The layout of the card must also leave enough space for each piece of information to be filled in, taking into account, for example, potentially long names or long addresses of next of kin. Given that the model capture card in Annex IV.B is pre-addressed to the Central Prisoners of War Agency (now the Central Tracing Agency), the card for the family must leave room for the family’s address.[35]

3145  While there is freedom as to the form of the card, the recommendation to use the model card annexed to the Convention is an important one. The model card is based on the ICRC’s experience and is useful for all concerned. For the Central Tracing Agency, in particular, a standard card makes it quicker and easier to record and file the information.[36] For its part, the Detaining Power can prepare a stock of such cards or electronic templates,[37] in the appropriate languages, at the commencement of hostilities, ready for distribution to prisoners of war during the first formalities after capture.[38]

3146  A standard card or electronic template also facilitates rapid censorship.[39] The information on the cards is of a very summary kind, and censorship should therefore be a mere formality.[40] Indeed, if the card only contains the information provided for and the prisoner does not, as instructed, add any remarks,[41] that information may not be removed. Cards addressed to the Central Tracing Agency might even be forwarded without censorship, since they are ‘addressed to a strictly neutral body, which would use the information received only for a humanitarian purpose’.[42] With the main headings printed on the cards, they can be filled in easily and within the set time limit.[43] This, in turn, contributes to the timely transmission of the card, thus also benefiting the prisoner of war. It also facilitates compliance with the obligation that is the subject of the second sentence.[44]

3147  The card is addressed to the Central Tracing Agency, International Committee of the Red Cross, Geneva, Switzerland.

3148  While the form of the capture card is recommendatory, the Convention did not foresee any discretion regarding the content, which is specified in the present article and in Article 122(4). The capture card contains personal data about the prisoner of war to enable them to be identified and not confused with another individual.

3149  As specified in the present article, the capture cards must contain the fact of capture, the address, and state of health of the prisoner of war. These three pieces of information are in line with the purpose of the capture cards. For example, the model capture card refers to the date on which the person was taken prisoner.[45] This information can be cross-matched against other sources, such as reports by the adverse Party or the family regarding when the person went missing.[46] The model card refers to the address of the next of kin, enabling the Central Tracing Agency to contact them. The model card also calls for the prisoner number and the name of the camp in which the prisoner of war is located, which implies that the prisoner has been informed of where they are being held. Those details allow the person’s whereabouts to be monitored and them to exchange correspondence with family members.

3150  The model capture card also contains a number of options regarding the prisoner’s state of health – for example ‘good health’, ‘sick’, ‘slightly wounded’ or ‘severely wounded’ – to be struck out as applicable.[47] It is for the prisoner of war to select the option deemed most appropriate. In certain circumstances, the Central Tracing Agency, based on the best interest of the families, has nevertheless advised the Detaining Power not to include information regarding the health status on the capture card. However, this does not release the Detaining Power from its obligation to register the health status of the prisoners in their power and, in coordination with the Agency, to transmit this information to the families through other context-specific channels.

3151  Other pieces of information are also useful for ensuring accurate recording of information. Indispensable is the prisoner’s name: the model capture card thus lists under the following numbered headings: ‘2. Name’; ‘3. First names (in full)’; and ‘4. First name of father’.[48] Capture cards used in more recent armed conflicts also include a field entitled ‘Mother’s name’. This is necessary not only in cases where the name of the father is unknown, but also to help distinguish between individuals with the same names.

3152  Name formats can differ significantly from one culture to another. To establish identity unambiguously, and allow for the comparison of alphabetical lists, local name formats must be maintained when information is collected. For example, when noting Arabic names, four names should be included, in the following order: first name, father’s first name, grandfather’s first name, and family name (or tribe name).

3153  The model capture card also includes the following additional headings: ‘1. Power on which the prisoner depends’;[49] ‘5. Date of birth’; ‘6. Place of birth’; ‘7. Rank’; ‘8. Service number’; ‘13. Date’; and ‘14. Signature’. However, in accordance with Article 17,[50] prisoners of war are at liberty not to give all the information for which space is provided on the model card. They may, if they wish, merely fill in items 2, 3, 5, 7 and 8.[51] However, this might make it more difficult to identify them and follow them up properly.

3154  If necessary, capture cards will contain the information in at least two languages: the prisoner’s own language and that of the Detaining Power.[52] In any case, they must be in a language which the prisoner understands.

3155  To avoid the loss of data and mistakes being introduced on the card, all personal details are to be recorded on the capture cards in the prisoner of war’s own language, preferably by the prisoner themselves.

3156  The card for the prisoner’s family is designed to restore links between the prisoner and their relatives and contains the same basic information as the capture card addressed to the Central Tracing Agency. Additional information can be communicated through the sending and receiving of letters and cards.[53] Importantly, capture cards are not considered as part of prisoners’ ordinary correspondence and do not count towards the permitted quota of letters and cards under the Convention.[54]

3157  The personal data collected via the capture cards is subject to applicable rules and standards on privacy and data protection.[55] In addition, information on the state of health of prisoners of war is of a medical nature and constitutes particularly sensitive personal information, subject to confidentiality. It must be handled with the utmost care given the person’s high degree of vulnerability.[56]

3158  Article 70 provides for three situations in which the Detaining Power is required to enable the prisoner of war to complete the cards: first, ‘[i]mmediately upon capture, or not more than one week after arrival at a camp’; second, ‘in case of sickness’; and third, in the event of ‘transfer to hospital or another camp’.

3159  The triggering event for the initial completion of the card is capture. Although the article uses the word ‘capture’, the determinant is the falling into the hands of the adverse Party, rather than the manner in which it took place.[57] Thus, it includes not only capture in the narrow sense of the word, but also, for example, the taking into custody following surrender.[58]

3160  Once a person falls into the hands of the adverse Party, the obligation arises ‘immediately’, i.e. at the earliest possible moment following capture, thus leaving sufficient space to take into account operational concerns, including if the prisoner of war is not held in a camp. Article 70 recognizes that, on occasion, it may prove impossible to enable a prisoner of war to fill in capture cards immediately upon capture. For example, they might have been captured in a remote location or in the heat of a battle and might need to be evacuated to a safe area. A short delay may also occur after arrival in a camp, for example when many prisoners arrive at the same time. Accordingly, the article sets a maximum time limit by which the capture cards need to be completed, i.e. ‘not more than one week after arrival at a camp’. The framing of the sentence (‘not more than’) indicates that this ought to be done sooner. This is evident from the fact that the alternative time frame is one of immediacy and follows on from the purpose behind the completion of the capture card.[59]

3161  The one-week time limit commences from the moment the prisoner arrives at ‘a camp’. The reference to ‘a camp’, rather than, for example, to a prisoner-of-war camp, makes clear that the provision applies to any type of ‘camp’.[60] This understanding is confirmed by the express reference to a ‘transit camp’, whether temporary or permanent.[61] Although a stay in a transit camp should, by its nature, be temporary, it can turn out to be rather lengthy. For example, during the Second World War, prisoners of war were sometimes housed in transit camps for an extended period, during which time they were sometimes refused the right to be visited by the bodies responsible for scrutiny and to send notification of their whereabouts to the Central Tracing Agency. The one-week time limit applies also to facilities that are not necessarily labelled as camps, such as ‘holding facilities’. The time limit ensures that any stay of one week or more is subject to the obligation, irrespective of the nature of the camp or the terminology used to describe it.[62]

3162  The Detaining Power must enable the prisoner of war to complete the cards within the specified time frame even if there are negotiations going on relating to the release and repatriation of prisoners of war. The negotiations may not, for instance, concern that particular prisoner. Even if they do, the negotiations may not necessarily be concluded within one week, and there is no guarantee that they will be successful.

3163  The second situation in which the Detaining Power is under an obligation to enable the prisoner of war to complete the cards is in case of sickness. As the capture cards includes a reference to the prisoner’s state of health, they must be enabled to inform their family and the Central Tracing Agency of any change in that state of health. However, this does not apply to each change in the prisoner’s health: it would not be realistic to expect that the card should be completed for every minor ailment that is easily treatable.[63] At the same time, the threshold should not be so high as to cover only life-threatening conditions or only conditions that require hospitalization. The former is too strict and the latter is covered by the third situation in which the obligation arises.[64] Accordingly, the obligation arises when the sickness in question is serious.[65] This should be assessed in good faith, taking into account the rationale of the provision, namely to make sure that the family and the Central Tracing Agency are informed of serious health issues. The determination of the seriousness of a person’s sickness is also dependent on other aspects, such as age, pregnancy, or health issues such as diabetes. If the prisoner is so ill as to be unable to complete the card themselves, the Detaining Power should facilitate the process, for instance through an ICRC delegate, a fellow prisoner or a nurse.

3164  Although not mentioned in the article, it is recommended that the prisoner of war be enabled to write to their family and to the Central Tracing Agency also upon recovering from sickness. Should such a possibility not be made available, the family and the Central Tracing Agency might be left under the (mis-)apprehension that the individual in question is still ill.

3165  The third situation in which the obligation applies is the transfer of a prisoner to a hospital or another camp. Indeed, the prisoner’s state of health, for example following a work-related accident, might require hospitalization,[66] or the proximity of fighting might necessitate transfer to another camp.[67] In such situations, as the address of the prisoner of war will have changed, they must be given the opportunity to fill out cards for the family and the Central Tracing Agency informing them of the transfer.[68] The Agency can thus continue to monitor the location and condition of the prisoner of war and the prisoner can continue to communicate with their family.

3166  The use of the word ‘likewise’ in the article might suggest that the same time frame applies to transfer as it does to capture, namely ‘immediately upon capture or not more than one week after arrival at a camp’. However, this is not the case. Article 48 of the Convention provides: ‘In the event of transfer, prisoners of war shall be officially advised of their departure and of their new postal address. Such notifications shall be given in time for them to pack their luggage and inform their next of kin.’ It is clear from this provision that the prisoner of war must be given sufficient time to notify their next of kin prior to transfer. Accordingly, the reference to ‘likewise’ in the present article must be taken as applying the one-week maximum time limit only when it was impossible to provide a prisoner of war with the new postal address before departure, for example if they were rushed to hospital or had to be rapidly transferred due to nearby hostilities, or if there was a change of destination following departure.

3167  The second sentence requires that the cards ‘be forwarded as rapidly as possible and may not be delayed in any manner’. The cards must be forwarded with due diligence and in good faith. This does not necessarily guarantee that the cards addressed to the family will reach their intended recipients. Whether the cards do so might be beyond the control of the Detaining Power, for example if a family member has moved from the address provided by the prisoner of war.[69] There should be no reason, however, for the cards addressed to the Central Tracing Agency not to reach their destination.

3168  The second sentence also specifies the speed at which the cards are to be forwarded, namely ‘as rapidly as possible’. This applies irrespective of the prisoner’s location. During the Second World War, the despatch of cards was ‘sometimes delayed indefinitely, on the plea that the [prisoners of war] had not yet reached their permanent place of internment’.[70] The wording of the article conveys the urgency of the obligation. The forwarding of capture cards must be given priority, and the quickest means of transmission available must be used. At the same time, the article accepts that there might be situations in which it will not be possible to forward the cards immediately, for example if the camp is in a remote location. Even in such situations, the obligation remains to forward the cards as soon as circumstances allow.

3169  Where feasible, the Detaining Power may forward capture cards in electronic format, using modern means of technology. If the Detaining Power uses such technologies, it is recommended to use open and/or widespread data formats that allow interoperability and long-term usability of the data, while guaranteeing the security of the data during transmission. However, the use of such technologies does not relieve the Detaining Power of the obligation to forward to the Central Tracing Agency the actual capture card filled in by each prisoner of war.

3170  Given that the forwarding of the cards ‘may not be delayed in any manner’, it cannot be used as a sanction or a reward, or made contingent on certain behaviour. Depending on the situation, there may be a delay in the cards reaching their intended recipients. Speed of delivery may depend on the regularity and efficiency of the postal service concerned, normal postal services may have been disrupted by the armed conflict, or family members may have been displaced.

3171  Article 70 does not regulate what should happen once the cards are filled out; rather, it regulates the actual forwarding of the cards by the Detaining Power. As the cards contain information of a sensitive nature, i.e. details concerning persons who have been captured, it will not always be appropriate to use the ordinary postal system. Furthermore, postal addresses are not used widely in all States. In practice, the cards tend to be passed on to ICRC field offices.[71] They may also be handed over to ICRC delegates during visits to prisoners of war, but the Detaining Power may not use delays in such visits to justify holding up the transmission of the cards. The delegates transmit the cards to the Central Tracing Agency, and the Central Tracing Agency or the ICRC will then distribute the cards addressed to the families, if appropriate through the National Red Cross or Red Crescent Society in the destination country.