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Commentary - Missing persons
    [p.349] Article 33 -- Missing persons


    [p.350] General remarks

    1220 The substance of this article was contained in paragraphs 2, 7, 8 and 9 of the initial draft which led to this Section and which consisted of only one article. (1)

    1221 In its first report the Working Group charged with examining this subject had already proposed dividing the article into two main parts, one devoted to "information on the missing and dead", and the other to "graves". (2) Although the titles were changed later, this distinction was retained.

    1222 The main aims of the article are, on the one hand, to extend the obligation to search for missing persons to embrace also persons not covered by the Conventions, and on the other hand, to reinforce the duty to furnish and exchange information on the missing and the dead in order to facilitate the search for them. (3)

    Paragraph 1 -- Search

    1223 This paragraph introduces the obligation to search for persons who have been reported missing, an obligation which, as the delegate presenting the initial proposal stated, "met a fundamental humanitarian need, which was not yet fully and explicitly covered by existing treaty obligations". (4)

    ' First sentence -- Obligations of the Party receiving the request '

    1224 Obviously this type of search is distinct from that carried out on the battlefield after a clash, which is covered by Article 15 of the first Convention and paragraph 4 of this article. With regard to paragraph 1 under consideration here, it is not so much a question of combing a well-defined area, but of carrying out a real investigation.

    1225 The persons covered by this paragraph are not listed. Apparently the only restriction imposed is that the request should come from the adverse Party. Does this mean that the latter may request information about anyone? It certainly does not. The request must relate to persons who are either nationals of that Party, or in some other way are linked to it -- such as, in particular, persons who had been admitted to its territory as refugees or persons who had enlisted in its armed forces -- or generally persons in whom it has a genuine interest based on the general principle of Article 32 ' (General principle), ' such as members of the family of a person belonging to the two former categories.

    [p.351] 1226 Although this restriction is not explicitly made in Article 33 , it is nevertheless quite clear that it follows from the general principle of Article 32 ' (General principle) ' -- the object of the request must be humanitarian -- and from the jurisdiction ' ratione personae ' of States as defined by general international law. (5)

    1227 Nevertheless, when there is any controversy regarding the legitimacy of the request, particularly if it relates to persons from territory the status of which is contested, so that consequently their nationality is also contested, (6) the interests of families and the humanitarian character of the problem should prevail in accordance with the principle set out in Article 32 ' (General principle). '

    1228 Moreover, a Party reporting missing persons will use its authority mainly to deal with requests submitted to it by the families of missing persons. A systematic refusal to transmit such requests would be contrary to the principle of Article 32 (' General principle). '

    1229 Persons to be searched for, according to a request, should basically be combatants from whom there has been no news, or civilians in occupied territory or enemy territory. The idea of including "a definition of "missing", to indicate that a missing person, whether military or civilian, was one who had not returned to his unit after a military operation or mission, or who had not returned to his home because of circumstances associated with the hostilities" (7) was rejected, and the Working Group on this matter adopted the following working definition: "the missing were those reported by another party as missing". (8) It follows that a request cannot be refused for the sole reason that the person to be searched for is not "missing" in the strict sense of the word.

    1230 In theory searches should not be related to prisoners of war or civilian internees, since, on the one hand, information about persons in these categories should be transmitted to the Powers concerned by the national Information Bureaux which must be established by Detaining Powers in pursuance of Articles 119 and 122 of the Third Convention, as well as Article 137 of the fourth Convention, while on the other hand, any search should be undertaken on the basis of Article 119 of the Third Convention and Article 133 of the fourth Convention.

    1231 Requests from allied States or States not Parties to the conflict are not taken into consideration in this context as they are supposed to be made through normal diplomatic channels and are not subject to international humanitarian law. However, logically, requests from States not Parties to the conflict, but without diplomatic relations with the Party to whom the request for the search is directed, should also be admitted, since nationals of such States are considered as protected persons under the fourth Convention while they are in the territory of that Party. (9) Thus there is a gap here, probably unintentional, as the record of the [p.352] negotiations shows that the problem has not been raised. (10) Whatever the facts of the matter, this omission could also be remedied by an initiative taken by an organization such as the ICRC, which could transmit requests relating to such cases.

    1232 The obligation is imposed only on Parties to the conflict, which is logical in the context of international humanitarian law. It is expressed in a very general manner: those persons who have been reported missing shall be "searched for". The first step in such a search, which suffices in some cases, may be relatively simple: the last known place of residence of the person concerned is checked or the registers of detention centres are inspected (however, the second task may be more complicated than it seems if there is no central register or if the registers are badly kept or non-existent).

    1233 If the first step is not successful, the search of course becomes more difficult and may require considerable effort. For example, it may be necessary to search for members of the family who could give information, to question neighbours and colleagues, in short, to carry out a true investigation. It is quite clear that the possibility of conducting such investigations will vary considerably, depending on the situation and also on the infrastructure and the geography of the country and on the willingness of its leaders and the manpower available. In this respect it should be mentioned that the National Red Cross or Red Crescent Societies should be able to make a considerable contribution to this task. They can draw on the experience of the Central Tracing Agency of the ICRC, which also plays a coordinating role.

    1234 The Conference did not specify how far the obligation extends. Certainly it would not be met if the first step mentioned above, which must be considered as a minimum requirement, were not undertaken. As regards the second step, there were delegates who stated that "too heavy a burden should not be imposed on the Parties" and that "account must be taken of the fact that the conditions of the search might be difficult and the costs high". (11) Furthermore, though a proposal to mitigate the obligation by adding the words "as far as practicable" was finally withdrawn, this was only after the intervention of the Rapporteur of the Working Group, who stressed that "such a provision was implicit in the entire Section". (12)

    1235 The obligation exists "as soon as circumstances permit, and at the latest from the end of active hostilities". This wording tends to set a time-limit which allows great latitude of judgment to the Parties to the conflict obliged to carry out the search (they themselves must determine whether circumstances will permit the search to be carried out), but it also lays down an absolute limit: the end of active hostilities.

    1236 Various opinions, which do not all accord, were expressed with regard to this wording, (13) but during one of the last discussions relating more specifically to the [p.353] term "active hostilities" the Rapporteur of the Drafting Committee recalled that as these words were used in the Geneva Conventions, the Working Group considered that they should be retained. (14) This point of view finally prevailed.

    1237 The expression "as soon as circumstances permit" requires that the Parties which have to undertake the search examine the possibility of doing so before the end of active hostilities. There is therefore a clear directive that consideration of the request should not simply be delayed to the second time-limit; the situation should be assessed immediately, and then at regular intervals, to determine whether circumstances permit the requested search to be carried out. For example, there are no major a priori reasons preventing registers from being checked. On the other hand, if a more thorough investigation turned out to be necessary, the possibilities of gaining access to certain places or communicating with them may be reduced as a result of hostilities, and may justify delaying the investigation. However, the Parties concerned must constantly bear in mind the interests of families and be aware of the terrible moral suffering inflicted on them by any delay in the transmission of information about their relatives.

    1238 As regards the absolute limit of the "end of active hostilities", virtually the same expression can be found in the Geneva Conventions, though only in one place. (15) The Commentary in French on the Third Convention equates the end of active hostilities with a cease-fire (16) (though this term is not mentioned in the English text), underlining the fact that hostilities "could cease without any peace treaty, or even armistice". (17) In fact, the meaning of the expression "activ hostilities" is no different in this context from that of the expression "hostilities". In both cases it refers to armed hostilities.

    1239 Finally it should be noted that no time-limit is laid down with regard to how long such activities should be pursued. As the Rapporteur of the Working Group remarked:

    "The representative of the Central Tracing Agency of the ICRC had in fact suggested adding a provision to the effect that the search should continue without any limit of duration, but the members of the Working Group had considered that such a provision was implicit in the paragraph." (18)

    This statement was not contested.

    [p.354]
    ' Second sentence -- Obligation of the Party making the request '

    1240 The second sentence of paragraph 1 seems self-evident. If a Party requests a search, it is in its own interests to transmit all relevant information to facilitate the investigation.

    1241 Nevertheless, the sentence has a purpose. Transmitting requests for searches received from families should not become a routine matter, and it is therefore proper that from the outset this should be done in a serious and thorough manner. For this purpose the officials or other persons responsible for preparing the request to be transmitted should consistently stipulate that requesting families give all the information that might facilitate the investigation.

    1242 The expression "all relevant information" is of course not very precise. The report of the Working Group presented during the third session of the CDDH indicated: "the name, special characteristics and other information on such persons". (19)

    1243 At the presentation of the report of the Working Group at the preceding session, the Rapporteur of this group had mentioned "names and other relevant information (such as the date and place of loss)". (20)

    1244 The general expression that was finally adopted is justified by the fact that the information concerned may vary considerably in each individual case (date of last letter and place where it was despatched, testimony of witnesses, addresses of friends etc.). It is important simply that the person making the request does so intelligently an conscientiously in order to "facilitate search" to be undertaken by the adverse Party, as the text states explicitly.

    1245 Where necessary, the Central Tracing Agency of the ICRC will make its experience available to persons charged with gathering and transmitting information about cases of missing persons. (21)

    Paragraph 2 -- Measures to facilitate the search

    ' Opening sentence '

    1246 Paragraph 2 is addressed to the Parties to the conflict only, and imposes two obligations on them mentioned in sub-paragraphs (a) and (b). In addition to the [p.355] general objective of the Section as a whole, described in Article 32 ' (General principle), ' these obligations have a direct purpose mentioned in the opening sentence: "to facilitate the gathering of information pursuant to the preceding paragraph". This wording is actually not very clear at first reading, in that it could lead one to think that it refers to the information described in the second sentence of paragraph 1 which must be communicated by the requesting Party to facilitate the investigation by the Party undertaking the search. However, the measures laid down in sub-paragraphs (a) and (b) only concern the Party holding missing persons, i.e., the Party to which requests may in due course be addressed. Thus paragraph 2 refers to the first sentence of paragraph 1, and not to the second sentence.

    1247 Finally, the introductory sentence is a reminder that the obligations laid down here establish new duties, for the benefit of persons who were previously inadequately covered or not covered at all, but do not in any way restrict the more extensive rights to which some categories of persons are entitled under the rules of the Conventions, or by virtue of other provisions of Protocol I. We will examine below which persons are covered by each of these obligations, and which are not because they are entitled to better protection under other provisions of the Conventions or Protocol I.

    ' Sub-paragraph (a) -- keeping records '

    1248 This provision deals separately with the obligation to record information about persons who have been detained, on the one hand, and those who have died during a period of detention, on the other.

    1. ' The obligation to record information in respect of persons who have been detained '

    1249 The content of the first part of the obligation is relatively simple: it consists of recording the information laid down in Article 138 of the fourth Convention, viz.:.

    -- surname;
    -- first names;
    -- place and date of birth;
    -- nationality;
    -- last residence;
    -- distinguishing characteristics;
    -- the first name of the father and the maiden name of the mother;
    -- the date, place and nature of the action taken with regard to the individual;
    -- the address at which correspondence to him may be sent;
    -- the name and address of the person to be informed.

    1250 It should be recalled that this list is preceded by the qualification "at least", and that other useful information may be added, particularly when some of the information mentioned above cannot be obtained.

    [p.356] 1251 Finally, as Article 138 also provides for the regular transmission of information regarding the state of health of internees who are seriously ill or seriously wounded, every file should contain, where applicable, information about the medical procedures which have been carried out on the persons concerned, as is in fact explicitly provided in Article 11 ' (Protection of persons), ' paragraph 6, of the Protocol, which also covers such persons. (22)

    1252 Next, it is necessary to determine exactly to which persons the first part of the obligation applies.

    1253 First we shall examine who are "protected persons" under the fourth Convention, i.e., as regards the relations between two Parties to the Conventions:

    - nationals of one Party who are in the power of the adverse Party;
    - nationals of a Party not involved in the conflict (a neutral State according to the terminology of the Conventions) (23) in occupied territory;
    - nationals of a Party not involved in the conflict who are in the territory of a Party to the conflict where their State does not have "normal diplomatic representation"; (24)
    - nationals of a Party engaged in the conflict who are in the power of a co-belligerent (allied) Party in which their State has no "normal diplomatic representation" (which should be very exceptional).

    1254 The obligation to record the information listed in Article 138 of the fourth Convention covers those protected persons who are "kept in custody for more than two weeks, who are subjected to assigned residence or who are interned" (Article 136 , fourth Convention). The wording used in the Protocol -- "detained, imprisoned or otherwise held in captivity for more than two weeks" -- attempts to avoid any loopholes: it refers to any person who is forcefully detained by the Party concerned for a period longer than two weeks. This period has been retained, as it corresponds to the time which may be necessary for a preliminary judicial investigation. In fact, although the expression "interned", which is used in Article 136 of the fourth Convention, may leave some room for doubt whether it was meant to cover all forms of detention, this was certainly the intention of the Conference in 1949, as confirmed in the commentary on this provision. The Diplomatic Conference of 1949 "considered that the national Information Bureaux, in order to keep constant track of each person, should record every sort of detention". (25) Thus, the first part of the obligation laid down in paragraph 2, sub-paragraph (a), clarifies, but does not in any way change, the obligation to record information laid down in Article 138 with regard to persons protected by the fourth Convention. In addition, it should be recalled that the obligation of the fourth Convention applies to all protected persons detained for more than [p.357] two weeks "whether for political reasons or for offences against ordinary law", (26) while the Protocol is limited to detention "as a result of hostilities or occupation".

    1255 We shall now consider the position of civilians in the territory of a Party to the conflict or in occupied territory who are not specifically protected by the fourth Convention, viz.:

    a) nationals of a State not Party to the fourth Convention;
    b) nationals, other than those in occupied territory, of a State not Party to the conflict which has "normal diplomatic representation" in the detaining State;
    c) nationals of a co-belligerent State which has "normal diplomatic representation" in the detaining State;
    d) the Party to the conflict's own nationals.

    a) ' Nationals of States not parties to the Fourth Convention '

    1256 In principle the Protocol only applies between Contracting Parties or between a Contracting Party and a Party to the conflict which, though not a Contracting Party, is bound pursuant to Article 96 ' (Treaty relations upon entry into force of this Protocol), ' paragraphs 2 and 3. (27) Nevertheless, the Conference's intention in Article 33 seems to have been to cover all persons, except nationals, who are missing in the territory of a Party to the conflict in time of armed conflict and who do not already enjoy protection under another treaty. (28) In fact, keeping such records is in the interests of families and therefore accords with the spirit of Article 32 ' (General principle). '

    b) ' Nationals of States not Parties to the conflict '

    1257 Nationals of States not Parties to the conflict were expressly mentioned by the acting Rapporteur of the Working Group of Committee II charged with examining this Section, as being covered by Article 33 . (29) This view did not raise any objections, and must be considered to have been generally accepted. It may be viewed as the counterpart to the obligation which rests upon States not Parties to the conflict to apply "the relevant provisions of this Protocol to persons protected by this Part who may be received or interned within their territory, and to an dead of the Parties to that conflict whom they may find" (Article 19 -- ' Neutral and other States not parties to the conflict '). (30)

    c) ' Nationals of co-belligerent States '

    1258 The above-mentioned statement by the acting Rapporteur of the Working Group also related to nationals of co-belligerent States. (31) The logic of this is not [p.358] so clear for this category of persons, as their situation is not governed by the Conventions and the Protocol, except where there are no diplomatic relations. It is, in fact, a very useful exception; there are cases where a government engages the State which it represents in a conflict on the side of another State, against the wishes of the majority of its own population, of which some members may leave the country or go underground. In such cases the humanitarian importance of prescribing compulsory records for nationals of the co-belligerent State who have been detained is apparent. However, the obligation to keep records only relates to nationals of a Party which is also bound by the Protocol, and only if such persons are held in captivity "as a result of hostilities or occupation". (32) Thus this does not include someone imprisoned under ordinary rules of criminal law, though of course this should not be used as a pretext to wrongfully exclude persons who have committed acts for reasons related to the conflict. In this case again legal niceties should not be the dominant factor, but a respect for the interests of families.

    d) ' A Party to the conflict's own nationals '

    1259 As regards the nationals of a Party to the conflict itself, the clear statements made in Committee II about excluding them from the scope of this Section were mentioned above. (33) Thus the Protocol does not impose an obligation on a State to keep records of its own nationals who are held in captivity, even when this is for reasons related to the hostilities. However, it cannot be denied that it would be desirable to keep such records in accordance with the general principle of Article 32 ' (General principle), ' particularly when a State is divided politically, or even physically split in two. In addition, it is absolutely essential that records of persons whose nationality is contested are kept, a fortiori when the question of nationality is the crux of the conflict.

    1260 The obligation to record prisoners of war (Article 4A , Third Convention) and persons entitled to prisoner-of-war treatment (Article 4B , Third Convention) is laid down in Article 122 of the Third Convention, and these categories are therefore not covered by Article 33 , paragraph 2, sub-paragraph (a), under consideration here.

    1261 Persons enjoying the status of combatant and, where applicable, prisoner-of-war status in accordance with Articles 43 ' (Armed forces), ' 44 ' (Combatants and prisoners of war) ' and 45 ' (Protection of persons who have taken part in hostilities) ' of the Protocol, and who are not covered by Article 4 of the Third Convention, are also protected, in the case of Parties to the Protocol, by Article 122 of the Third Convention, and therefore do not fall under Article 33 of the Protocol with which we are concerned here.

    1262 Apart from this, spies, (34) mercenaries (35) and all those denied prisoner-of-war status are normally covered by the fourth Convention, and if not, by this Article. [p.359] Thus records must be kept on them in accordance with the requirements examined above.

    2. ' The obligation to record information in respect of persons who died during detention '

    1263 Information as set out in Article 138 of the fourth Convention and in this paragraph must also be recorded if those concerned have died in detention. (36)

    1264 This applies to all persons defined above. In case of death, however, the obligation even applies during the first two weeks of detention.

    1265 It is logical that the obligation has been so strengthened in case of death in detention, and it fits into the system of the present Section III. For it may be recalled that one of the purposes of this Section was to strengthen "the duty to secure and exchange information on the missing and dead". (37)

    ' Sub-paragraph (b) -- keeping records in case of death otherwise than in detention '

    1266 Sub-paragraph (a) is concerned with an obligation to keep records which presupposes instructions at an administrative level, but does not involve great expense; it is no great thing to ask a State to keep a record of persons it holds in detention.

    1267 Although the purpose of sub-paragraph (b) is the same, i.e., to inform families, it implies the setting into motion of specific measures which may be costly. This is why the expression "to the fullest extent possible" was introduced at the explicit request of several delegates who had stressed the limited means available to some States. (38)

    1268 The persons concerned are still the same, i.e., those who do not enjoy more favourable treatment under the Conventions and this Protocol. (39) The search and recording of information are in this case concerned with persons who have died, on the one hand, "as a result of hostilities or occupation", (40) and on the other hand not in a place of detention under the control of the Party to the conflict. The expression "in other circumstances" actually refers to the words "during any period of detention" used in sub-paragraph (a), so as to exclude detention. The latter of course covers only detention imposed by the Party concerned, and not that resulting from banditry (kidnapping, taking hostages etc.).

    1269 It should be remembered that sub-paragraph (b) only seeks to make the obligation laid down in paragraph 1, i.e., to search for persons who have been reported missing by an adverse Party, more specific. The scope of this obligation here, in the context of sub-paragraph (b), only extends to the search for ' deceased ' [p.360] persons, and keeping records of them. Nevertheless, as regards the search, this concerns persons who are presumed dead. This applies in particular to the registration of the missing and the dead after bombardments.

    1270 The obligation imposed on the Parties to the conflict is to "facilitate and, if need be, carry out" the search for and the recording of information concerned. As one delegate stated, this wording is justified as "in occupied territory the search for and recording of information concerning the persons referred to [...] would normally be left to the local municipal authorities". (41)

    Paragraph 3 -- Transmission of information

    1271 First, this paragraph determines the appropriate channel for transmitting requests and the information mentioned in paragraphs 1 and 2. Secondly, it provides for the central safekeeping of such information in view of the humanitarian importance it has sometimes for a very long time.

    1272 The information concerned is that gathered in accordance with paragraphs 1 and 2. As regards the "requests for such information", this refers, as clearly shown in the English text, to the requests made by a Party to the conflict to an adverse Party, in accordance with paragraph 1, to search for a missing person. In short, all these activities presuppose a contact between the Parties to the conflict and a way must be found to establish this.

    1273 The first possibility to be mentioned is through direct contact, which is logical wherever possible. If not, an intermediary should be found. As a first resort, the Protecting Power is mentioned, which is designated by a Party to the conflict to safeguard its humanitarian interests vis-à-vis the adverse Party, and can easily play this role.

    1274 However, for this to happen, the system of Protecting Powers, or at least of their substitutes, must be functioning properly. Yet though it is to be hoped that it will gain strength by virtue of the fact that it is reinforced in the Protocol (42) it cannot be denied that it has seldom been applied since the Conventions were adopted.

    1275 Other possibilities were therefore provided for. The first is to employ the channel of the Central Tracing Agency (CTA) of the ICRC. In particular, this has the right to visit prisoners of war and civilian internees, and generally sends a delegation to each of the Parties to the conflict in the case of an international armed conflict. Representatives of the CTA are included in these delegations and thus they can easily play an intermediary role as the information and the requests are generally transmitted through the headquarters of the organization in Geneva. It should be noted that the explicit mention of the CTA of the ICRC also constitutes a posteriori recognition of the fact that in practice the CTA plays the role of the central information agencies which, according to the Conventions, should be created in neutral countries in the case of international [p.361] armed conflict, both for prisoners of war and for persons protected by the Fourth Convention. (43)

    1276 Finally, the possibility is laid down of using the national Red Cross and Red Crescent Societies. In fact, it may happen that contact is established between two National Societies of countries engaged in conflict, and that as a result, they play a humanitarian role. Resolution XXI of the XXIst International Conference of the Red Cross (Istanbul, 1969) indeed recommends such contacts.

    1277 On the other hand, the reference to other impartial humanitarian organizations, initially included in the report of the Working Group, was deleted, since, according to one delegate, "division of effort means loss of efficiency". (44)

    1278 The second sentence of the paragraph "underlined the role of the Central Tracing Agency", (45) as stated by the acting Rapporteur of the Working Group, by requesting that information which had not passed through this Agency should be transmitted to it. The Parties to the conflict are responsible for "ensuring" that such information is transmitted, either by directly communicating such information as is available to them, or by ensuring that the intermediary acting as liaison with the adverse Party also informs the CTA.

    1279 In this way, the importance of making sure that the information is centralized in one place and safely stored on a long-term basis is recognized. National frontiers may be changed, populations dispersed and files destroyed, but the central storage of information has enabled families to be reunited or to regain contact, sometimes even long after the end of the armed conflict, as well as making possible many other humanitarian acts. (46)

    Paragraph 4 -- Searching for the dead in battlefield areas

    1280 This paragraph supplements Article 15 of the first Convention, which provides in particular that the Parties to the conflict:

    [p.362] "shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled". (47)

    1281 Paragraph 4 of Article 33 provides "to search for, identify and recover the dead", in order to fulfil two humanitarian objectives: that of informing the family of the deceased, if he has been identified, and that of ensuring a decent burial after having been removed to behind the lines, if that is possible, or on the spot if it is not.

    1282 Logically the function of searching for the dead, as provided for in this article, should be coordinated with the function, laid down in Article 15 of the first Convention, of searching for the wounded.

    1283 As far as possible this will be the case. However, it should be noted that although Article 15 provides that "whenever circumstances permit, an armistice or a suspension of fire shall be arranged, or local arrangements made", this is only in order to permit "the removal, exchange and transport of the wounded left on the battlefield", and not to recover the dead. Now the provision of Article 33 under consideration here also lays down the possibility of making arrangements with regard to recovering the dead, though in a less imperative manner: "The Parties to the conflict shall endeavour to agree on arrangements". Admittedly the difference in meaning is minimal, (48) but it is clear that the obligation laid down is not absolute. (49) for that matter, it often happens that these activities are carried out in two stages: the first, devoted to the wounded for whom every minute counts; the second, devoted to the dead.

    1284 Though Article 15 of the first Convention does not explicitly mention joint teams, i.e., teams of one Party to the conflict accompanied by personnel of the adverse Party, as does the provision under consideration here, such a possibility is not excluded in that article and it therefore also exists with regard to the search for the wounded.

    1285 The possibility of a team being accompanied by personnel of the adverse Party is provided when such teams are "carrying out these missions in areas controlled by the adverse Party".

    1286 In this respect it was clearly stated that activities of a team in territory controlled by the adverse Party could not be carried out without the agreement of the latter. (50)

    1287 In fact, in referring to battlefield areas, we are dealing with "areas the physical control of which is not clearly established", (51) as described in Article 26 ' (Medical aircraft in contact or similar zones) ', unless hostilities have ceased. Moreover, there will probably be dead or even wounded of each of the Parties. The arrangement should therefore, as far as possible, allow for activities by joint teams to search for the dead and wounded of ' both ' Parties.

    [p.363] 1288 The expression "battlefield areas", taken from Article 15 of the first Convention, was finally preferred to "combat zones", which had been suggested. (52) However, there is no reason to insist on a more precise definition of this expression with regard to this provision, since the Parties to the conflict have the authority to enter into such agreements and can conclude them whenever they are deemed useful.

    1289 It should be noted that in its first report the Working Group of Committee II had provided that such teams could be assisted by "personnel of international humanitarian organizations", (53) though this idea was later abandoned. However, the fact that it was deleted does not express an intention to exclude the personnel of such organizations from such tasks. As one delegate, who proposed deleting the phrase, stated: "the Parties could by mutual agreement decide that personnel of international humanitarian organizations might participate in the activities referred to". (54)

    1290 In practice the ICRC has often played an important role in concluding such agreements and has actively participated in their implementation.

    1291 Finally, the last sentence recalls the obvious obligation to respect and protect the personnel of such teams. (55)

    1292 However, this obligation was qualified in that it is only imposed while such personnel are "exclusively carrying out these duties". In this way the obligation of the personnel of such teams to devote themselves exclusively (56) to their task throughout such missions is emphasized, as in the case of temporary medical personnel. The trust which allows such activities would be seriously betrayed if the personnel were entrusted with other tasks, particularly that of military intelligence.

    1293 Apart from this, it is clearly indicated that for such missions, personnel may be employed who are not normally protected, and that the immunity granted such personnel applies only for the duration of the mission.

    1294 Finally, this sentence indirectly recalls the delicate nature of such agreements and the importance of their being perfectly clear and precise.

    ' Y. S. '


    NOTES

    (1) [(1) p.350] Cf. O.R. III, pp. 98-100, CDDH/II/56;

    (2) [(2) p.350] Cf. O.R. XIII, pp. 107-110, CDDH/221/Rev., para. 120;

    (3) [(3) p.350] On this subject, cf. particularly O.R. XI, p. 185, CDDDH/II/SR. 19, para. 72;

    (4) [(4) p.350] Ibid., p. 186, para. 79. Cf. also ibid., p. 187, para. 86;

    (5) [(5) p.351] On this subject, cf. particularly A.N. Makarov, "Régles générales du Droit de la nationalité", 74 Hague Recueil, 1949/I, p. 269;

    (6) [(6) p.351] In this respect it should be noted that Committee II clearly indicated that the Section did not lay down any obligation for a Party to the conflict with respect to its nationals. Cf. the introduction to this Section, supra, p. 342;

    (7) [(7) p.351] O.R. XI, p. 191, CDDH/II/SR. 20, para. 13;

    (8) [(8) p.351] Ibid., p. 353, CDDH/II/SR.34, para. 20;

    (9) [(9) p.351] Cf. Art. 4 of that Convention;

    (10) [(10) p.352] The obligation to record information about nationals of such States -- on this subject, cf. infra, pp. 357-358 -- is another important indication with regard to the intention that para. 1 should cover such States;

    (11) [(11) p.352] O.R. XII, p.231, CDDH/II/SR.76, para. 22;

    (12) [(12) p.352] Ibid., para. 27. Cf. also pp. 252-253, CDDH/II/SR.78, paras. 25-32;

    (13) [(13) p.352] Cf. particularly, O.R. XI, p. 365, CDDH/II/SR.35, para. 13; O.R. XII, p. 231, CDDH/II/ SR.76, para. 25; p. 234, CDDH/II/SR.76, para. 38;

    (14) [(14) p.353] O.R. XII, p. 250-253, CDDH/II/SR.78, paras. 12, 20, 33-34;

    (15) [(15) p.353] Article 118, para. 1, Third Convention. The French text is identical (la fin des hostilités actives); in the English version there is a slight difference: "the cessation of active hostilities" instead of "the end of active hostilities". On the other hand, Article 17, para. 4, of the First Convention and Article 130, para. 3, of the Fourth Convention use the same expression in French: "dès que les circonstances le permettront et au plus tard à la fin des hostilités". In the English text they are different in wording: First Convention: "As soon as circumstances permit, and at the latest at the end of hostilities; Fourth Convention: "as soon as circumstances permit, and not later than the close of hostilities";

    (16) [(16) p.353] Cf. ' Commentary III ', p. 550 (English text) and p. 579 (French text);

    (17) [(17) p.353] ' Commentary III ', p. 541;

    (18) [(18) p.353] O.R. XII, p. 232, CDDH/II/SR.76, para. 28;

    (19) [(19) p.354] O.R. XIII, p. 331, CDDH/II/376 (Art. 20 bis, para. 2);

    (20) [(20) p.354] O.R. XI, p. 353, CDDH/II/SR.34, para. 20;

    (21) [(21) p.354] The wording of requests for a search by the CTA contains the following points: full name of the person being searched for (as used locally); father's full name; mother's full name; date of birth; sex; place of birth; nationality; country of origin; occupation; marital status; rank/unit/ service number (if applicable); date and kind of last news; last known address; circumstances leading to loss of contact; full name of family members accompanying the person to be traced; date of birth; sex; relationship; additional information (request to supply all information that may assist investigation, such as: duration and address of former residences, precisions regarding business address or that of present employer, religion etc.); name and address of persons able to supply information; full name of the enquirer (as used locally); father's full name; mother's full name; date of birth; sex; place of birth; full present address; relationship to the person to be traced; signature of the enquirer; date and place of request;

    (22) [(22) p.356] Cf. commentary Art. 11, para. 6, supra, pp. 161-163. For more details on Article 138 of the Fourth Convention, cf. also ' Commentary IV ', pp. 534-537;

    (23) [(23) p.356] On this subject, cf. commentary Art. 2, sub-para. (c), supra, pp. 61-62;

    (24) [(24) p.356] On the meaning of the expression "normal diplomatic representation", cf. Commentary IV, pp. 48-49;

    (25) [(25) p.356] ' Commentary IV ', p. 526;

    (26) [(26) p.357] Ibid;

    (27) [(27) p.357] On this subject, cf. commentary Art. 96, infra, pp. 1086-1092;

    (28) [(28) p.357] In this sense, cf. O.R. XII, p. 228, CDDH/II/SR.76, para. 8, and M. Bothe, K.J. Partsch, W. Solf, op. cit., p. 173;

    (29) [(29) p.357] Cf. O.R. XII, p. 228, CDDH/II/SR.76, para. 8;

    (30) [(30) p.357] On this subject, cf. commentary Art. 19, supra, p. 237;

    (31) [(31) p.357] Cf. O.R. XII, p. 228, CDDH/II/SR.76, para. 8;

    (32) [(32) p.358] Cf. supra, p. 357;

    (33) [(33) p.358] Cf. introduction to this Section, supra, p. 339;

    (34) [(34) p.358] Cf. Art. 46, Protocol I;

    (35) [(35) p.358] Cf. Art. 47, Protocol I;

    (36) [(36) p.359] On the meaning of the word "detention", cf. supra, p. 356;

    (37) [(37) p.359] O.R. XI, p. 185, CDDH/II/SR.19, para. 72;

    (38) [(38) p.359] Cf. particularly ibid., pp. 368-369, CDDH/II/SR.35, paras. 33 and 41;

    (39) [(39) p.359] Cf. supra, pp. 341 and 354-355;

    (40) [(40) p.359] On this subject, cf. supra, p. 357;

    (41) [(41) p.360] O.R. XI, p. 370, CDDH/II/SR.35, para. 46;

    (42) [(42) p.360] On this subject, cf. commentary Art. 5, supra, p. 75;

    (43) [(43) p.361] Cf. Art. 123, Third Convention, and Art. 140, Fourth Convention. Cf. also O.R. XI, p. 191, CDDH/II/SR.20, para. 10;

    (44) [(44) p.361] O.R. XI, p. 355, CDDH/II/SR.34, para. 37. Cf. also pp. 363-364, CDDH/II/SR.35, para. 3;
    (45) [(45) p.361] O.R. XII, p. 228, CDDH/II/SR.76, para. 9;

    (46) [(46) p.361] In this respect it should be noted that information received "over and above" that which the Parties to the conflict are obliged to furnish under treaty obligations has enabled the solution of many humanitarian problems. By way of example the following could be mentioned:
    - lists of former prisoners of war and internees in German hands, drawn up by the allied forces when they liberated them;
    - lists of civilian internees repatriated from Ethiopia (occupied by the United Kingdom) to Italy during the conflict;
    - lists of the Italian Red Cross and other Italian organizations of Italian civilians and former prisoners of war, repatriated after the end of hostilities;
    - information received from the Italians, after the war, on Italian soldiers killed during hostilities;
    - replies to questionnaires on civilian internees in the United Kingdom and in the Commonwealth. In addition it should be noted that information from neutral countries may be very useful, such as, for example, the lists of persons who passed through Switzerland in the process of repatriation;

    (47) [(47) p.362] Cf. also O.R. XI, p. 192, CDDH/II/SR.20, para. 20;

    (48) [(48) p.362] On this subject, cf. also O.R. XII, p. 230, CDDH/II/SR.76, paras. 18-19; p. 233, paras. 31-32;

    (49) [(49) p.362] In this respect, cf. O.R. XI, p. 360, CDDH/II/SR.34, para. 62;

    (50) [(50) p.362] Cf. particularly ibid., p. 365, CDDH/II/SR.35, para. 14;

    (51) [(51) p.362] Cf. commentary Art. 26, supra, p. 290;

    (52) [(52) p.363] Cf. particularly O.R. XI, p. 353, CDDH/II/SR.34, para. 22;

    (53) [(53) p.363] Cf. O.R. XIII, p. 108, CDDH/221/Rev.1, para. 120 (para. 4, sub-para. (b), of the new proposed Section);

    (54) [(54) p.363] O.R. XI, p. 367, CDDH/II/SR.35, para. 22;

    (55) [(55) p.363] On the concepts of respect and protection, cf. commentary Art. 10, supra, p. 146;

    (56) [(56) p.363] On this concept, cf. commentary Art. 8, sub-para. (k), supra, pp. 132-135;