Rule 123. Recording and Notification of Personal Details of Persons Deprived of their LibertyRule 123. The personal details of persons deprived of their liberty must be recorded.
SummaryState practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This rule overlaps with both the prohibition of enforced disappearances (see Rule 98) and the obligation to account for persons reported missing (see Rule 117). The practice collected under those rules supports this rule and permits the conclusion that the requirement to record detainees’ details constitutes customary law in both international and non-international armed conflicts.
International armed conflictsThis rule was first codified in the Hague Regulations, which provides for the establishment of national information bureaux to receive and give information on each prisoner of war. The creation of such bureaux is also required by the Third Geneva Convention (with respect to prisoners of war) and the Fourth Geneva Convention (with respect to enemy aliens and civilian internees). These last two Conventions also make provision for the establishment of the Central Tracing Agency at the ICRC to ensure the exchange of information between the national information bureaux. In addition, in international armed conflicts, there is an obligation under the Third and Fourth Geneva Conventions to grant the ICRC access to detainees and provide it with their personal details (see Rule 124).
Numerous military manuals specify the obligation to record the details of persons deprived of their liberty. It is also stated in the legislation of several States. This rule is further supported by official statements and reported practice.
In a resolution on the protection of prisoners of war, the 21st International Conference of the Red Cross in 1969 recognized that, irrespective of the Third Geneva Convention, “the international community has consistently demanded humane treatment for prisoners of war, including identification and accounting for all prisoners”.
No official contrary practice was found.
InterpretationAs to the extent of the information to be recorded, the duty of the State cannot exceed the level of information available from detainees or from documents they may carry. According to the Third Geneva Convention, prisoners of war, when questioned, are bound to give only their surname, first names, date of birth, rank and army, regimental, personal or serial number or equivalent information.
In international armed conflicts, the details recorded pursuant to this rule must be forwarded to the other party and to the Central Tracing Agency at the ICRC.
Non-international armed conflictsThe obligation to record the personal details of persons deprived of their liberty is set forth in the Inter-American Convention on the Forced Disappearance of Persons and in the Agreement on the Military Aspects of the Peace Settlement annexed to the Dayton Accords. In addition, it is contained in various agreements concluded between the parties to the conflicts in the former Yugoslavia and in the Philippines.
Some military manuals which are applicable in or have been applied in non-international armed conflicts require that detainees’ personal details be recorded. Official statements and reported practice further support this rule.
In a resolution on the situation of human rights in Kosovo adopted in 1999, the UN General Assembly demanded that the representatives of Yugoslavia “provide an updated list of all persons detained and transferred from Kosovo to other parts of the FRY, specifying the charge, if any, under which each individual is detained”. The requirement to record the personal details of detainees is also contained in a number of international instruments pertaining also to non-international armed conflicts.
If, as stated above, the purpose of this rule is to ensure that no one goes missing or forcibly disappears, this rule must equally be respected in non-international armed conflicts. In this respect, the European Commission and Court of Human Rights have found that “the absence of holding data recording such matters as the date, time and location of detention, the name of the detainee as well as the reasons for the detention” is incompatible with the very purpose of the right to liberty and security. The Inter-American Commission on Human Rights has recommended to various countries that they establish central records “to account for all persons who have been detained, so that their relatives and other interested persons may promptly learn of any arrests”.
The ICRC has consistently called for respect for this rule, for example, in the context of the conflict in Bosnia and Herzegovina in 1992.
No official contrary practice was found with respect to either international or non-international armed conflicts.