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Commentary - Art. 120. Part IV : Termination of captivity #Section III : Death of prisoners of war
    ARTICLE 120. -- WILLS, DEATH CERTIFICATES, BURIAL,
    CREMATION


    [p.559] The provisions of the present Section should be compared with others in the Convention, i.e. Article 66 (winding-up of accounts in case of death), Article 77 (preparation, execution and transmission of legal documents) and Article 122 (paragraphs 5, 7 and 9) , which refers to enquiries and transmission of information to the national Information Bureau in case of death as well as safe-keeping of articles of value.

    PARAGRAPH 1. -- DRAWING-UP AND TRANSMISSION OF WILLS

    1. ' First sentence. -- Conditions of validity '

    The present paragraph acknowledges the right of every prisoner of war to make a will, pursuant to the general principle set forth in Article 14, paragraph 3 , that a prisoner of war shall retain his full civil capacity. This right is undisputed but it was still necessary to establish a procedure for its application. Wills cannot be regulated [p.560] by the Convention; they must satisfy the conditions of validity required by the legislation of the country in which they take effect.
    This is a departure from the text of previous Conventions. The present provision refers expressly to "the conditions of validity required by the legislation of their country of origin", while Article 76, paragraph 1 , of the 1929 Convention which corresponded to Article 19 of the Hague Regulations, read as follows: "The wills of prisoners of war shall be received and drawn up under the same conditions as for soldiers of the national armed forces."
    During the preparatory work for the 1949 Diplomatic Conference, this provision was kept without amendment (1). As the wording was rather vague, however, some delegates to the Conference of Government Experts proposed that the principle of ' locus regit actum ' should apply to this particular case. In the end no amendment was proposed and unanimous agreement was reached on the principle that the Convention could not do more than authorize a prisoner of war to draw up a will in the form provided for members of the armed forces of the Detaining Power.
    At the 1949 Diplomatic Conference, several objections were raised in connection with the 1929 text. Some delegations considered it superfluous, as its contents were covered by Article 77 , which requires the Detaining Power to provide all facilities for the preparation and execution of legal documents by prisoners of war (2). Moreover, the wording seemed unsatisfactory and likely to shed doubt on the principle that, as regards their content, wills must meet the conditions required by the legislation of the country of origin of prisoners of war, the application of the legislation of the country of detention being strictly limited to the form. The following text was then drawn up:

    "The wills of prisoners of war shall be drawn up in the form required by the law of the Detaining Power and must satisfy the conditions of validity required by the legislation of their country of origin, which will take steps to inform the Detaining Power of its requirements in this respect (3)."

    This wording took account of the two considerations mentioned above and although it was not unanimously approved by the delegations [p.561] represented in Committee II (4), the text was submitted to a plenary session where discussion was resumed.
    How should one consider the text of the present paragraph as adopted by the drafters of the Convention? Was it their intention to make the drawing up of wills subject to the law of the country of origin as regards both form and content? Is the traditional rule ' locus regit actum ', which is generally acknowledged by international private law as well as by earlier international conventions relative to prisoners of war, no longer applicable?
    Such a conclusion would certainly be incorrect. In referring to "the conditions of validity required by the legislation of their country of origin", the Convention does not reject the rule of ' locus regit actum ', but refers to national legislation for the application of that rule.
    With regard to form, most national legislations provide certain facilities for members of the armed forces. Apart from the holographic form, a verbal form is usually permitted in case of need. In practice, however, the latter form of will would frequently be inappropriate for prisoners of war, at least for those interned in camps for other ranks, for it usually requires the presence of officers qualified to receive a will (5), and this condition can rarely be fulfilled (6).
    Holograph wills will therefore be the usual case. A prisoner of war can make a will in due legal form only if his national legislation permits him to make one according to the form required in the detaining country. In that case he may, if he wishes, have his will drawn up in the required form, since Article 77, paragraph 2 , specifies that prisoners of war must be allowed to consult a lawyer in connection with the preparation and execution of legal documents.
    The last part of the first sentence of the present paragraph, which requires the country of origin to take steps to inform the Detaining Power of the conditions in which prisoners of war must draw up wills, is a necessary corollary of the solution finally adopted.
    Article 77 requires the Detaining Power to allow prisoners of war to prepare and execute all necessary legal documents; in order to fulfil this obligation, it is essential that the Detaining Power be fully informed of the conditions for the drawing up of such documents.
    This information will be transmitted either through the Protecting Power, or through the Central Agency provided under Article 123 .

    [p.562] 2. ' Second sentence. -- Transmission of wills '

    Article 77 , which relates to the transmission of legal documents, expressly refers to wills. This is confirmed in the present provision, but in an imperative form; the Detaining Power is no longer required to "provide all facilities" but to transmit the will "without delay".
    This provision is applicable in two cases: on a request by a prisoner of war (which may be transmitted through the intermediary of the prisoners' representative in accordance with Article 79, paragraph 1 ), or upon the death of the testator. The First Geneva Convention for the Amelioration of the Condition of Wounded and Sick also provides, in Article 16, paragraphs 3 and 4 , that the Information Bureau described in Article 122 of the present Convention must forward the last wills of deceased persons through the intermediary of the Protecting Powers and the Central Agency. The present provision specifies that the Protecting Power will receive the original document, a certified copy being sent to the Central Agency.

    PARAGRAPH 2. -- DEATH CERTIFICATES

    During the Second World War the procedure for the preparation an transmission of death certificates varied from country to country. In Germany, for instance, the usual practice was to draw up lists to be considered as collective death certificates; a signature and official seal together with a note stating that the information was based on reports by the competent military authorities gave this document an official character. In Great Britain, death certificates were drawn up by the responsible civil authorities and were transmitted in the normal way.
    The International Committee of the Red Cross suggested during the Second World War that the belligerents should adopt a standard form and several States fell in with this suggestion (7).
    Article 76, paragraph 2 , of the 1929 Convention, which corresponded to Article 19, paragraph 2 , of the Hague Regulations, provided that the same rules as in the case of wills should be followed as regards the documents relative to the certification of death, that is to say the rules applicable to members of the armed forces of the Detaining Power. Instead of this provision, the International Committee [p.563] made a recommendation that the belligerents should use a standard form and this proposal was approved by the Conference of Government Experts and by the 1949 Diplomatic Conference (8).
    The new Convention therefore improves the conditions for the transmission of death certificates, and apart from the psychological effect, this improvement may have important legal implications for the next of kin of the deceased. The belligerents are required to inform the Information Bureau, established in accordance with Article 122 , of the names of all prisoners of war who die during captivity, and as rapidly as possible. This information may be communicated in the form of certificates, either individual or collective (9).
    These certificates must contain at least certain specified data which, in addition to particulars of identity (surname, first names and rank, date of birth, and army, regimental, personal or serial number), must at least include in all cases the following items:
    1. Place of death
    2. Date of death
    3. Cause of death
    4. Place of burial
    5. Date of burial
    6. All particulars necessary to identify the grave.

    In case of cremation, the list should also state the reasons why the body was cremated and not buried (for reasons of health, religion, or the deceased's own wishes), in accordance with the third sentence of paragraph 4 of the present Article.
    A model death certificate is given in Annex IV. D to the Convention; it was prepared by the Central Prisoners of War Agency on the basis of its experience and has proved to be most useful. In addition to the information specified in the present Article, it provides for certain indications which may be particularly valuable for the family of the deceased: a reference to the disposal of personal effects and certain details concerning the last moments of the deceased, to be given by an actual witness. It is therefore desirable that this model death certificate should be adopted by as may Information Bureaux as possible, or at least that these two additional items should also be recorded on the documents issued by them.

    [p.564] PARAGRAPH 3. -- MEDICAL EXAMINATION BEFORE BURIAL
    OR CREMATION

    As already mentioned, the provisions of paragraphs 3 to 6 of the present Article, based on Article 17 of the First Convention, originated in an amendment submitted by the United Kingdom Delegation to the 1949 Diplomatic Conference which was agreed to by the other delegations (10). Although in fact the corresponding provision in the 1929 Convention was generally respected during the Second World War (11), it merely stated that prisoners of war who died in captivity must be honourably buried, and that their graves must bear the necessary indications, be treated with respect and be suitably maintained (Article 76, paragraph 3 ). Certain other points are, however, of great importance: medical examination of the body before burial, registration of graves for purposes of identification, exchange of information regarding graves, maintenance of a record of cremations, custody of ashes. The amendment was therefore approved without difficulty (12).
    Before a body is cremated (subject to the conditions specified in paragraph 5) or buried, it must be carefully examined by a doctor with a view to making certain that death has taken place and, where necessary, establishing the identity of the deceased. On the basis of this examination a report will be drawn up with regard to the following main points:

    A. ' Determination of death. ' -- In the first place a thorough medical examination must be made in order to make sure that no trace of life remains, to determine the exact cause of death and, if possible, the time of death, if this cannot be established by any other means (eye-witness accounts).

    B. ' Identification. ' -- This will normally be less important in the case of prisoners of war than in that of men who have fallen on the battlefield. If, however, a prisoner's identity remains in doubt (for [p.565] instance, if he has not yet been questioned as provided in Article 17 ), the doctor will follow the same procedure as for those who have fallen on the battlefield: examination of papers found in the clothing of the dead man, questioning of his comrades or, if that is not possible, other methods must be adopted in order to enable the adverse Party to establish his identity, e.g. measurement ad description of the body and its physical features, examination of the teeth, finger-prints, photograph, etc. (13).

    C. ' Establishment of the report. ' -- The report on the medical examination must contain all the necessary data for preparing the individual or collective certificates referred to in paragraph 2 of the present Article. It should therefore mention the cause, date and place of death and all necessary information to facilitate accurate identification in each case.
    Although these items are similar to those mentioned in Article 17, paragraph 1 , of the First Convention, the latter contains an additional requirement which is curiously lacking in the present Convention -- that one half of the double identity disc, or the identity disc itself if it is a single disc, should remain on the body. This was probably an oversight on the part of the drafters of the Third Convention and by analogy, one may assume that the Detaining Power should follow the same procedure in the case of deceased prisoners of war (14).

    PARAGRAPH 4. -- BURIAL

    Except for a few details of drafting, this provision corresponds to the first sentence of Article 17, paragraph 3 , of the First Convention.

    A. ' Nature of the obligation. ' -- The rule contained in Article 76, paragraph 3 of the 1929 Convention appears here once more and it implies an obligation. The importance of this task is emphasized by the fact that the detaining authorities must ensure that it is carried out (15).

    B. ' Observance of rites. ' -- The reference to the observance of rites was introduced by the Conference of Government Experts (16). It is not mandatory since the rites required by certain religions are sometimes difficult to observe (17).

    [p.566] C. ' Respect. ' -- The grave, once closed, must be respected. The obligation in this case is not merely a passive one; it implies active measures of protection. The Graves Registration Service established in accordance with paragraph 6 of the present Article is the body primarily responsible for preventing violations of graves and sacrileges of all kinds, but the obligation rests on everybody. The principle of unqualified respect for fallen enemies holds good even after death.

    D. ' Marking. ' -- Graves must also be properly maintained and must be marked in such a way that they can be found at any time. The question of marking calls for some comment, as the brief reference to the matter in the Convention gives no exact indication of what the marking should be. The essential point is that it should always be possible to find the grave of any combatant. A mere number or group of symbols corresponding to the particulars in the record is hardly enough for the purpose, for the record may be destroyed. Most certainly the reference number in the record can, and should, appear on the grave stone or cross; but it is essential that the name and first names and, if possible, the date of birth should also figure in the inscription, and should be inscribed indelibly. This is all the more essential in the case of collective graves (paragraph 5).

    E. ' Grouping. ' -- Graves are further to be grouped, if possible according to the allegiance of the deceased to one Power or another. This requirement was inserted in the First Convention by the Conference of Government Experts, in order to avoid hasty burials by the roadside which so frequently occurred in recent conflicts (18). Grouping in this manner will make it possible for a country to pay collective tribute to its dead at a later date.

    PARAGRAPH 5. -- INDIVIDUAL GRAVES AND CREMATION

    Unlike the corresponding provision in the First Convention (Article 17, paragraph 1, first sentence ), the requirement of individual and not collective graves is mentioned only in the case of burial and Hot in that of cremation. On the basis of the above-mentioned provision of the First Convention, however, we consider that the present [p.567] provision should be interpreted as applying also to cremation. This rule, proposed by the XVIIth International Red Cross Conference, is happily conceived, for the idea of a common grave conflicts with the sentiment of respect for the dead; moreover, it makes any subsequent exhumation impossible or very difficult. Because of circumstances, climate or military requirements, burial in collective graves may be unavoidable, but this must always be an exceptional measure.
    The provisions concerning cremation were first proposed during the preparatory work on the First Convention, at the meeting of experts in March 1947 (19), and were later endorsed by all subsequent conferences of experts. The cremation of bodies is therefore forbidden except for imperative reasons of hygiene or for reasons connected with the religion of the deceased. In case of cremation, the circumstances and reasons for it should be stated in the death certificate (in accordance with Article 17, paragraph 2 , of the First Convention).
    Quite apart from other reasons for objecting to cremation (in particular fear of a repetition of certain criminal occurrences), the very strong opposition of certain peoples to cremation from motives of custom or religion (20) led the Diplomatic Conference to adopt the proposal. It was also necessary, however, to provide an exception for prisoners of war who expressed a wish for cremation for personal reasons, and this is contained at the end of the second sentence of the present paragraph.

    PARAGRAPH 6. -- GRAVES REGISTRATION SERVICE

    In order to ensure that paragraph 4 of the present Article is applied, a Graves Registration Service must be established at the outbreak of hostilities. Such a service was already provided under the 1929 Convention (Article 4, paragraph 6 ), and it is responsible for keeping an up-to-date list of graves, marking clearly any graves which have not yet been marked or have been marked inadequately, maintaining them and grouping them if possible, as indicated above, where this has not already been done. It must also keep track of any change or transfer, so as to allow of subsequent exhumation at any time and to ensure the identification of bodies, whatever the site of graves.

    [p.568] A. ' Transmission of information. ' -- The 1929 Convention stipulated that this exchange of information was to take place at the end of hostilities, whereas Article 17, paragraph 4 , of the First Convention of 1949 states that it must be effected "as soon as circumstances permit". This wording is in keeping with the practice followed during the Second World War, when such information was generally communicated during the hostilities -- sometimes even by telegram whenever the slowness of ordinary mails and the remote situation of places of internment justified such a course (21).
    There is, however, no reason why the communication of these particulars should take the form of an exchange in the strict sense of the word. There would not appear to be any necessity for them to be communicated simultaneously by the two Parties.

    B. ' Obligation for the Occupying Power. ' -- An important provision is contained in the third sentence of the present paragraph, which requires the Power controlling the territory, if it is a party to the Convention, to take care of existing graves of deceased prisoners of war and to keep a record of any subsequent moves of the bodies. The Occupying Power must therefore take over responsibility for these tasks, whatever the nationality of the prisoners of war or the Power in whose armed forces they served.

    C. ' Ashes. ' -- Ashes are to be held by the Graves Registration Service until the country of origin makes known its final decision in regard to them. It is obvious -- and follows, incidentally, from the words "These provisions shall also apply..." -- that ashes must also be identifiable at all times. They must, therefore, be collected, preferably in urns, which should be clearly marked with all the particulars for which provision is made in the case of graves. The urns are to be kept in a suitable spot and protected against sacrilege of any kind.
    Lastly, let us consider the actual organization of the Graves Registration Service. As a rule, its task may be entrusted to a service which already exists. The majority of States have permanent military graves services which are responsible in peace-time for the maintenance of the graves of nationals who have fallen in battle. These services are very well equipped, and are in a position on the outbreak of hostilities to take over the maintenance and listing of enemy graves, if need be by forming a special section for the purpose. In view of the specialized nature of the duties involved, the military [p.569] authorities will be well advised to entrust the work to individuals or organizations familiar with it rather than set up a new service which may not have the desired experience or competence (22).


    * (1) [(1) p.560] See ' Report on the Work of the Conference of
    Government Experts ', p. 246; and ' XVIIth International
    Red Cross Conference, Draft Revised or New Conventions for
    the Protection of War Victims ', p. 126;

    (2) [(2) p.560] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949 ', Vol. II-A, p. 297;

    (3) [(3) p.560] Ibid., p. 600;

    (4) [(1) p.561] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949 ', Vol. II-A, pp. 375-377;

    (5) [(2) p.561] See in Swiss law Articles 506 to 509 of the
    Civil Code; in French law, Article 981 and following of
    the Civil Code;

    (6) [(3) p.561] See in this connection Ferdinand CHARON, op.
    cit., pp. 66-67;

    (7) [(1) p.562] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War ', Vol. I, pp. 300-302. See also Vol. II, pp. 49-50;

    (8) [(1) p.563] See ' Report on the Work of the Conference of
    Government Experts ', pp. 246-247; ' Final Record of the
    Diplomatic Conference of Geneva of 1949 ', Vol. II-A, pp.
    375-377;

    (9) [(2) p.563] See ' Report on the Work of the Conference of
    Government Experts ', p. 247;

    (10) [(1) p.564] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949 ', Vol. III, pp. 89-90;

    (11) [(2) p.564] Except when the International Committee of the
    Red Cross had to make representations in order to ensure
    that the religious rites of deceased prisoners of war were
    respected;

    (12) [(3) p.564] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949 ', Vol. II-A, p. 297. As most
    of the questions to which the present and following
    paragraphs refer are drawn from Article 17 of the First
    Convention, we shall refer, in examining them, to the
    Commentary on that Convention. ' Commentary I ', pp.
    175-183;

    (13) [(1) p.565] See ' Commentary I ', p. 177;

    (14) [(2) p.565] Ibid., p. 178;

    (15) [(3) p.565] Ibid., pp. 176-177;

    (16) [(4) p.565] See ' Report on the Work of the Conference of
    Government Experts ', p. 248;

    (17) [(5) p.565] For instance, in the case of animal sacrifice
    or the use of rare substances;

    (18) [(1) p.566] This grouping is intended in the same spirit
    as Article 22, paragraph 3, which states that prisoners of
    war should not, in principle, be separated from others
    belonging to the armed forces with which they were
    serving;

    (19) [(1) p.567] This meeting, which was convened in Geneva by
    the International Committee of the Red Cross, was attended
    by representatives of the various associations assisting
    prisoners of war;

    (20) [(2) p.567] With the exception of those religions which
    advocate cremation;

    (21) [(1) p.568] See ' Report of the International Committee of
    the Red Cross on its activities during the second World
    War ', Vol. I, p. 301;

    (22) [(1) p.569] For the study of the present paragraph, see
    ' Commentary I ', pp. 180-183;