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Commentary - Part II : Wounded, sick and shipwrecked #Section III -- Missing and dead persons
    [p.339] Part II, Section III -- Missing and dead persons


    Introduction

    1183 The draft did not contain provisions on missing and dead persons -- even though this is a question that had been dealt with by international humanitarian law at an early stage (1) -- for this area is covered at some length in the Geneva Conventions.

    1184 Nevertheless, on 6 November 1974, the United Nations General Assembly discussed the problems dealt with in the present Section, and adopted Resolution [p.340] 3320 (XXIX) thereon, entitled "Assistance and co-operation in accounting for persons who are missing or dead in armed conflicts", asking the United Nations Secretary-General to bring this resolution to the attention of the second session of the CDDH.

    1185 That resolution follows up Resolution V of the XXIInd International Conference of the Red Cross (Teheran, 1973) and calls on Parties to armed conflicts to

    "take such action as may be within their power to help to locate and mark the graves of the dead, to facilitate the disinterment and the return of remains, if requested by their families, and to provide information about those who are missing in action".

    1186 Some States then prepared a draft text and submitted a proposal to the second session of the CDDH, (2) while another delegation also presented a draft on the subject. Moreover, in accordance with the mandate given him, the Secretary-General presented Resolution 3220 (XXIX) to the Conference through the intermediary of the Director of the United Nations Human Rights Division. (3)

    1187 The sponsors of the proposals drew attention to the positive effects of the existing provisions, but also pointed out that they "left a number of gaps". (4) To remedy this they proposed improvements on five main issues:

    "First, the existing provisions did not cover all categories of missing and dead persons, in particular those civilians who were not internees protected by the fourth Geneva Convention of 1949. Second, the provisions with regard to the maintenance of graves and the keeping of records thereof needed elucidation. Thirdly, the access to graves was not expressly granted in the provisions; fourthly, the duty to allow exhumation and return of the remains needed to be made clearer; fifthly, the duty to secure and exchange information on the missing and dead needed to be strengthened." (5)

    1188 The ICRC representative emphasized that:

    "The Conventions were silent on one important matter: they did not oblige the Parties to a conflict to search at all times for soldiers of the opposing side whose names did not appear on the lists of captured or deceased persons. Nor were they obliged to carry out such searches in the case of civilians." (6)

    [p.341] 1189 Despite the fact that there were no provisions in the draft, the ICRC approved the idea that a new provision should be introduced into the Protocol, particularly as this would comply with the request put forward during the XXIInd International Conference of the Red Cross (Teheran, 1973 (Resolution V)), as well as Resolution 3320 (XXIX) of the United Nations General Assembly as mentioned above. (7)

    1190 The Committee adopted this point of view, but considering the numerous problems raised by these proposals, referred examination of the question to a Working Group. The latter proposed introducing three articles in a new section of Part II of the Protocol, and this proposal was adopted by Committee II.

    1191 This third Section of Part II first lays down the general principle on which the Section is based (Article 32 -- ' General principle '), then makes a distinction between the problem of missing persons (Article 33 -- ' Missing persons ') and that of the remains of the deceased (Article 34 -- ' Remains of deceased '). Each one of these questions is dealt with in a lenghty article. In the commentary on these articles, we will examine the new features which they add to the provisions of the Conventions on this subject.

    1192 Three further elements which concern the Section as a whole deserve to be mentioned:

    1193 In principle the Parties to the Protocol are only required to apply it inter se in order to resolve problems relating to the consequences of conflicts breaking out between them or relating to the aftermath of such conflicts. Obviously we would not wish to defend the idea of retroactive application of the Protocol, but even so it is to be hoped that Parties bound by it will refer to it to resolve problems still unresolved at the end of a conflict which had ended before they had become bound by the Protocol. Questions relating to missing persons, and to an even greater extent, those concerning the remains of the deceased, actually pose problems well after the end of an armed conflict.

    1194 As explicitly mentioned in Article 33 ' (Missing persons), ' paragraph 2, and Article 34 ' (Remains of deceased), ' paragraph 1, the provisions of this Section are only intended to fill a gap and should in no case be substituted for a more favourable régime which the persons concerned may enjoy under the Geneva Conventions. In order not to weaken the existing provisions and to leave them intact, (8) the "additional" character of the new provisions was explicitly mentioned in the report of the Working Group presented during the 34th meeting of the Committee. (9) This qualification was subsequently deleted as it was considered superfluous having regard to the general provision of Article 1 ' (General principles and scope of application), ' paragraph 3. (10) However, in the context of this Section it is important to bear this in mind, for it is very relevant, as we will see in the analysis of certain provisions.

    [p.342] 1195 The question whether some provisions of this Section should impose obligations on a Party to the conflict vis-à-vis its own nationals was discussed repeatedly in Committee II. (11) The Committee's intentions, as clearly expressed, were ultimately not to impose any such obligations: in fact, the report of the Working Group on this Section adopted by Committee II contained a paragraph in square brackets (Article 20 quater, paragraph 5), which provided that: "this Section does not impose on any High Contracting Party or Party to a conflict obligations with regards to its own nationals". (12) Although this paragraph was later deleted by consensus, this was, according to the report by Committee II, "because it was self-evident that the article did not apply to a Party's own nationals". (13)

    ' Y. S. '


    NOTES

    (1) [(1) p.339] Cf. in particular the Hague Regulations Respecting the Laws and Customs of War on Land annexed to the Hague Convention II of 29 July 1899 and the Hague Convention IV of 18 October 1907, Arts. 14 and 19, and the Geneva Convention of 6 July 1906, Arts. 3 and 4. Also see the Manual published by the Institute of International Law on the laws of war on land, following its session in Oxford in 1880, Art. 20;

    (2) [(2) p.340] C.f. O.R. XIII, pp. 102-103, CDDH/221/Rev.1, paras. 113-115; O.R. III, pp.48-100, CDDH/ 11/56, and O.R. IV, pp. 166-167, CDDH/II/90;

    (3) [(3) p.340] Cf. O.R. XI, pp. 184-185, CDDH/II/19, paras. 67-69;

    (4) [(4) p.340] Ibid., p. 185, para. 72;

    (5) [(5) p.340] Ibid;

    (6) [(6) p.340] Ibid., p. 187, para. 86;

    (7) [(7) p.341] Ibid;

    (8) [(8) p.341] Ibid., p. 186, para. 82;

    (9) [(9) p.341] CDDH/II/244/Rev.1, Chapter III, para. 11, 2nd sentence. Cf. O.R. XIII, pp. 107-110, CDDH/221/Rev. 1, para. 120;

    (10) [(10) p.341] In this connection, cf. in particular O.R. XI, p. 358, CDDH /II/SR.34, para. 54. Cf. also Article 96, para. 1;

    (11) [(11) p.342] Cf. in particular O.R. XI, p. 352, CDDH/II/SR.34, para. 18; p. 354, para. 30; pp. 358-359, para. 55; p. 370, CDDH/II/SR.35, para. 45; p. 372, para. 58; p. 374, para. 68. O.R. XII, p. 468, CDDH/II/SR.99, paras. 17-18; p. 476, CDDH/II/SR.100; para. 33;

    (12) [(12) p.342] Cf. O.R. XIII, p. 285, CDDH/235/Rev.1, Annex 1 (Article 20 quater, paragraph 5);

    (13) [(13) p.342] Ibid. p. 361, CDDH/II/406/Rev.1, para. 32. However, in this connection, see commentary Art. 32, infra, p. 346 and note 19;