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Commentary - General principle
    [p.343] Article 32 -- General principle


    General remarks

    1196 The sponsors of the proposal, introduced as an amendment, (1) and which led to this Section, did not give expression to the general principle on which it was based. They were, however, aware of its importance, as shown in the following statement explaining the need for the amendment:

    "To mitigate the suffering of the families of those who disappeared in war by removing the uncertainty about their fate and to give them an opportunity to remember their dead in the place where their remains lay was a fundamental humanitarian principle." (2)

    1197 However, an explicit statement of this principle was later included in a new amendment. (3) The aim of the amendment was clearly explained by those who presented it. They were concerned with drawing attention to the suffering inflicted on families by armed conflict, and in particular the anxiety resulting from the absence of information. For this reason, families should be accorded a [p.344] fundamental right which had never been recognized up to that time, namely, the right to know the fate of their relatives. (4)

    1198 Nevertheless, the introduction of this principle met with some objections. Some delegates, while recognizing that there was a "basic need" for families to know the fate of their relatives, did not consider that it was truly a "fundamental right". (5)

    1199 Others considered that there was no need for this statement since "it merely stated the motive behind the article, which could surely be taken for granted". (6)

    1200 The Rapporteur of the Working Group, replying to this objection, recognized that "it was unusual to state the premises on which an article was based", but emphasized the fact that the general principle had been incorporated "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". (7)

    1201 In this way he also answered the first objection by confirming the existence of a right, (8) and his point of view finally prevailed both in Committee II and in the plenary Conference.

    1202 The decision to state this general principle in a separate article was left to the Drafting Committee of Committee II, which opted for the solution given here. (9) first, it was thought to include it as the first paragraph of Article 20 bis (the present Article 33 -- ' Missing persons) ' and it must be admitted that the present wording of the principle relates essentially to that article.

    1203 However, it should be stated that no one contested the statement made at the time of the presentation of the initial proposal that "the right of access to graves [...] was an obvious and fundamental humanitarian need". (10)

    Text of the article

    1204 The principle is mentioned as the main motive for "activities" of the Parties to the conflict. It was therefore necessary to specify that it applies ' only in the context of this Section. '

    1205 Those undertaking the activities referred to are said to be the "High Contracting Parties", the "Parties to the conflict" and the "international humanitarian organizations mentioned in the Conventions and in this Protocol".

    1206 The ' Parties to the conflict ' and the ' High Contracting Parties ' are mentioned separately because some Parties to the conflict may not be Contracting Parties and yet be bound by the Protocol. (11)

    1207 It is clear that apart from the Contracting Parties and Parties to the conflict, some organizations are brought in to play a role in the areas covered by this [p.345] Section. As a matter of fact, the Central Tracing Agency of the International Committee of the Red Cross is explicitly mentioned in Article 33 ' (Missing persons) ' paragraph 3. (12)

    1208 The sponsors of the amendment, requesting that the principle mentioned in Article 32 should be given expression, referred only to "international organizations". The present wording, proposed by another delegate, (13) was preferred to this rather vague expression and was adopted without giving rise to any discussion. Yet the expression that was finally used is not very precise either. The organizations mentioned in the Conventions and the Protocol are referred to in many different ways, and in most cases such references are open-ended, so that it is impossible to draw up a comprehensive list of such organizations. (14)

    1209 It should therefore be noted that the expression should be understood in a broad sense. The words "international humanitarian organizations", in particular, might lead to the idea that there was an intention to limit them to inter-governmental humanitarian organizations, which is evidently not the case. The ICRC and its Central Tracing Agency are the first to be mentioned, and they would not fall under such a restrictive definition of international organizations. These therefore cover also non-governmental organizations.

    1210 This broad interpretation is all the more important as it is not a matter of conferring powers, but of reminding those working in this area of a line of conduct which, it is hoped, will always be respected.

    1211 The reference to the ' right ' of families to know the fate of their relatives gave rise to considerable discussion. (15) It should be stressed once again that the use of this term was adopted after careful reflection, and made in full consciousness. The Rapporteur of the Working Group in particular drew attention to the fact that:

    "United Nations General Assembly resolution 3220 (XXIX), which the Working Group had studied when drawing up the present text, stated in the last preambular paragraph that "the desire to know [...] is a basic human need", but the text under consideration went even further by referring to the 'right'." (16)

    He also justified calling it a right by stating that "if the right of 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". (17) Finally, in the speech he made after the Section was adopted by consensus in Committee II, the Director of the United Nations Human Rights Division made the following statement:

    [p.346]
    "The text which had just been adopted by consensus was an important step forward in the field of international efforts to protect human rights. The Conference would emphasize the ' right ' of families to be informed of the fate of their next-of-kin involved in armed conflicts [...]" (18)

    1212 Thus, although there may be a right, (19) the content of the obligation imposed on States, on other Parties to the conflict, and on the organizations concerned, is not easy to determine. In fact, it cannot be denied that there is no individual legal right for a representative of a family to insist that a government or other organization concerned undertake any particular action. This applies all the more because, as seen above, Committee II clearly confirmed that this Section did not impose obligations on a State with respect to its own nationals. (20)

    1213 However, it does grant the right (and imposes the duty) on those who are entrusted with ensuring the application of international humanitarian law -- first, the Parties concerned, secondly the Protecting Powers and their substitutes, but also all the States Parties to the Protocol in pursuance of Article 1 ' (General principles and scope of application), ' paragraph 1 -- to take care that activities undertaken in the light of this Section are basically motivated by this legal provision and keep clear of political or other motivations foreign to the nature of international humanitarian law.

    1214 The right is that of a ' family ' with regard to its ' relatives. ' This right should obviously be exercised by one or more of the members of the family. The actual relationship required is deliberately not specified in greater detail. The sponsors of the amendment introducing the general principle had used the word "proches" (the original text was in French) and subsequently "parents". (21) The English translation in both cases referred to "relatives". It was later pointed out that "there were varying definitions of 'family' and 'relatives' throughout the world", (22) and that in certain countries there was "the extended family". (23)

    1215 In the end the Committee decided not to define the meaning of family and family members, leaving this, and the latitude with which the expression should be understood, to the Contracting Parties in accordance with their social and cultural environment. From the humanitarian point of view it is important to adopt an approach which, at a practical level, takes into account, as far as possible, not only blood relations and legal ties, but also personal and emotional ties. Article 74 ' (Reunion of dispersed families) ' confirms in any case that there is such a duty on the part of Contracting Parties and Parties to the conflict.

    1216 The right of families mentioned here consists of knowing "the fate of their relatives", i.e., all possible steps should be taken to inform them of such a fate, [p.347] (but no one can be held to do the impossible). Thus it basically relates to Article 33 ' (Missing persons), ' which is concerned with the search for missing persons. Nevertheless, some obligations related to Article 34 ' (Remains of deceased), ' concerning the remains of the deceased, are also affected by this right, particularly the obligation to mark gravesites. Moreover, although this point is not explicitly mentioned, it should not be forgotten in commenting on this provision, that the right of access to gravesites was also mentioned during the Conference, (24) and no objections on points of principle were made. In the speech mentioned above, (25) the Director of the United Nations Human Rights Division mentioned the will of the Conference to underline "the right o families" also "to have some assurance that the remains of those who died would be treated in accordance with national ethical values and age-old traditional standards" (26)

    1217 In short, it certainly seems that the Conference wished to see that all the activities undertaken in the context of this Section would be basically founded on a concern for the interests of families and to spare them emotional suffering as far as possible.

    1218 However, the right of families should not be more than the "primary" motivation for the activities concerned and thus these activities are founded basically, but not solely, on this right. (27) A Party to the conflict also has the right to know the fate of its soldiers, and it may happen, though only in exceptional cases, that a prisoner does not wish to communicate with his family.

    1219 Indeed this right is shared, and although priority should be given to the family, the two interests involved do not clash. In the situation where the prisoner does not wish to communicate with his family, however, the two interests, i.e. that of the individual and that of his family, contradict each other. In this situation, although one can try to make the unwilling person understand his family's suffering, one cannot impose on him a course of action by virtue of the general principle.

    ' Y.S. '


    NOTES$ (1) [(1) p.343] O.R. III, pp. 98-100, CDDH/II/56;

    (2) [(2) p.343] O.R. XI, p. 185, CDDH/II/SR.19, para. 70;

    (3) [(3) p.343] O.R. III, p. 102, CDDH/II/259;

    (4) [(4) p.344] Cf. O.R. XI, p. 363, CDDH/II/SR.35, para. 2;

    (5) [(5) p.344] Ibid., p. 371 para. 49;

    (6) [(6) p.344] O.R. XII, p. 231, CDDH/II/SR.76, para. 26;

    (7) [(7) p.344] Ibid., p. 232, para. 29;

    (8) [(8) p.344] On this subject, cf. also infra, p. 346;

    (9) [(9) p.344] Cf. O.R. XII, p. 253, CDDH/II/SR.78, para. 34;

    (10) [(10) p.344] O.R. XI, p. 186, CDDH/II/SR.19, para.76;

    (11) [(11) p.344] On this subject, cf. commentary Art. 96, paras. 2 and 3, infra, pp. 1086-1092;

    (12) [(12) p.345] On this subject, cf. infra, p. 360;

    (13) [(13) p.345] Cf. O.R. XI, p. 365, CDDH/II/SR.35, para. 13;

    (14) [(14) p.345] However, on this subject, cf. ' Commentary III, ' pp. 594-596 (Art. 125) and commentary Art. 9, para. 2, supra, p. 143;

    (15) [(15) p.345] Cf. supra, p. 344;

    (16) [(16) p.345] O.R. XII p. 232, CDDH/II/SR.76, para. 29;

    (17) [(17) p.345] Ibid., para. 28;

    (18) [(18) p.346] Ibid. p. 255 CDDH/II/SR.78, para. 46;

    (19) [(19) p.346] The recognition of such a right in international armed conflicts should have further repercussions, particularly with regard to the families of missing persons in non-international armed conflicts and in the framework of human rights, even during internal disturbances or tensions;

    (20) [(20) p.346] Cf. introduction to the present Section, supra, p. 342;

    (21) [(21) p.346] O.R. III, p. 102, CDDH/II/259 and p. 105, CDDH/II/354;

    (22) [(22) p.346] O.R. XI p. 365 CDDH/II/SR.35, para. 11;

    (23) [(23) p.346] Cf. ibid., p. 372, para. 58;

    (24) [(24) p.347] Cf. particularly ibid., p. 186, CDDH/II/SR.19, para. 76;

    (25) [(25) p.347] Cf. supra, p. 346;

    (26) [(26) p.347] O.R XII p. 255, CDDH/II/SR.78, para. 46;

    (27) [(27) p.347] On this subject, cf. particularly O.R. XI, p. 374, CDDH/II/SR.35, para. 69, and O.R. XII, p. 231, CDDH/II/SR.76, para. 25 and p. 234, para. 37;