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Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
[p.175] ARTICLE 17
-- PRESCRIPTIONS REGARDING THE DEAD
GRAVES REGISTRATION SERVICE
This Article deals exclusively with the dead, and is therefore bound up, as it were, with the last paragraph of the preceding Article
. For after laying down rules in regard to articles left by the combatant dead, and the information found on their persons, it was still necessary to say what was to become of the bodies.
In the 1929 Convention all these provisions were concentrated in a single Article (Article 4, paragraphs 2 to 7
), which although much shorter, contained everything that was essential. But the addition of numerous points of detail by the Diplomatic Conference of 1949, led [p.176] to a grouping of the material, everything relating to interment being incorporated in the new Article 17.
It may be noted that here again the provisions of the First Convention tally with those of the Third Convention, which deals (Article 120, paragraphs 3 to 6
) with the burial of prisoners dying in captivity. But a mere reference to the Third Convention, which might originally have been thought of, would not have been adequate for the reasons already indicated in connection with Article 16
. In the first place the present Article (Article 17) is essentially concerned with the dead picked up by the enemy on the battlefield, that is to say, with the mortal remains of combatants who have never for one moment been prisoners of war. Again, combatants who have died shortly after having been picked up wounded or sick, will have succumbed to the wounds or sickness which brought them under the protection of the First Convention, and it is therefore only natural that they should remain subject to the provisions of that Convention.
PARAGRAPH 1 -- EXAMINATION OF THE BODIES
Paragraph 1 provides that the bodies, before being buried or cremated, are to be carefully examined, preferably by a doctor, with a view to making certain that death has taken place and establishing the identity of the deceased. In order that the latter's identity may be checked at any time, the identity disc, or one half of it if it is double, is to remain attached to the body.
A. ' Nature of the obligation. ' -- It will be noted at the outset that the form of wording with which the paragraph opens: "Parties to the conflict shall ensure..." is employed here for the first time in the Convention. It is not new, however, having been used to introduce the same provision both in the Convention of 1929 and in that of 1906. What is its significance?
Clearly it must be taken to imply an obligation. According to Littré's French dictionary, the expression ' veiller à ' (ensure) means ' prendre garde à ' (see to it). The Parties to the conflict have therefore to "see to it" -- that is to say, to make certain -- that the prescribed task, for which they are responsible, is duly carried out. There is no [p.177] justification for thinking that the task in question is optional. On the contrary, in calling upon the Parties to the conflict to ensure that it is carried out, the Convention is once more drawing attention to the importance of the task and to the necessity for accomplishing it.
B. ' Individual burial. ' -- The paragraph begins by laying down a general rule which applies equally to burial and cremation: both must be carried out individually, as far as circumstances permit. This rule, which was proposed at the XVIIth International Red Cross Conference, is happily conceived, as the idea of a common grave conflicts with the sentiment of respect for the dead, in addition to making any subsequent exhumation impossible or very difficult. No absolute obligation is imposed, however, because circumstances, the climate or military considerations may force a Commanding Officer to resort to burial in a common grave; but this must always remain an exceptional measure.
C. ' Examination of the body. ' -- Before being buried or cremated, the bodies must be examined twice over, even if they have to be placed in a common grave. They must in the first place be subjected, as soon as they are brought in from the front, to a thorough medical examination, in order to make sure that no trace of life remains. This examination can, of course, only be made by a medical man, who, as we have seen in connection with Article 16, paragraph 1
, should also endeavour to establish the time of death as accurately as possible, unless the medical personnel who have brought in the body are able to supply the necessary information.
D. ' Identfication. ' -- The next thing to be done is to examine the papers found in the clothing of the dead man, in order to establish his identity with as much certainty as possible. In the absence of papers recourse must be had to other methods which will make it possible for the adverse Party itself to establish his identity, e.g. measurements and description of the body and its physical features, examination of the teeth, fingerprints, photograph, etc.
The paragraph goes on to say that, when identity has been established, "a report is to be made". This means a minute mentioning not only the identity papers found on the body and the information contained [p.178] in them, but also the possessions which the deceased carried on his person, together with a statement of the date of death or, where the date is only presumed, the reasons for this presumption. Later, the place of burial and the particulars on the grave will be added, so that the latter will always be able to be found. These initial measures will enable the death to be notified with the least possible delay to the national Information Bureau, which will in turn inform the adverse Party. They will further facilitate the subsequent work of the Graves Registration Service, one of whose principal tasks is to regroup the graves and draw up lists of them.
This first series of provisions concludes with an injunction to the effect that one half of the double identity disc, or the identity disc itself if it is a single disc, is to remain on the body. The effect of this provision, which has already been discussed in connection with the fourth paragraph of Article 16
(1), is that no member of the armed forces, living or dead, may henceforth be deprived of the identity disc issued to him. The fact that military authorities may thus be certain of being always able to find their own personnel again, unless in very exceptional circumstances, should encourage those of them who have not already done so to make universal use of the identity disc, preferably a double one.
PARAGRAPH 2 -- CREMATION
Paragraph 2, which is, as it were, a parenthesis between paragraphs 1 and 3, contains a new idea, proposed for the first time at the meeting of experts in March 1947 (2) and later endorsed by all subsequent conferences of experts. The idea was to prohibit the cremation of bodies 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 are to be stated in detail in the death certificate or on the authenticated list of the dead.
Quite apart from the possible objection to cremation on sentimental grounds, and the fear of seeing a repetition of certain criminal occurrences of the Second World War, the traces of which were effaced by cremation, the very strong opposition of certain peoples to cremation [p.179] from motives of custom or religion (3) led the Diplomatic Conference to adopt the proposal.
It should be noted that in the Third Convention, where this provision recurs (Article 120, paragraph 5
) in connection with the cremation of prisoners of war who die in captivity, there is a further clause which is not to be found in the present paragraph. Mention is made of an additional motive justifying cremation -- namely, a wish expressed by the prisoner for cremation for personal reasons. The reason why there is no mention in the present paragraph of this additional motive is no doubt that it was felt that the provision in the First Convention was essentially concerned with the dead picked up on the battlefield. But we must also think of the wounded and sick who may, before their death, express a desire to be cremated. Their wish, in such cases, should be gratified.
PARAGRAPH 3 -- INTERMENT. GRAVES REGISTRATION SERVICE
Paragraph 3 is in the nature of a sequel to paragraph 1, the subject of its opening sentence, the word "They" (4), referring back to the opening words of paragraph 1 ("Parties to the conflict"). It first lays down that the dead are to be honourably interred -- if possible, according to the rites of the religion to which they belonged -- and that their graves are to be respected, and marked in some permanent fashion. It then provides for the organization of a Graves Registration Service, the duties of which it defines.
The mention of the observance of the rites of the religion to which the deceased belonged is new. It too is due to the experts of March 1947. No obligation is imposed, however, since certain religions prescribe rites which it may sometimes be difficult to observe, as, for example, the sacrifice of an animal or the use of some rare ingredient.
1. ' Graves '
A. ' Respect. ' -- The grave, once closed, must be respected. The obligation in this case is not purely a passive one. It implies active [p.180] measures of protection. The Graves Registration Service is the body primarily responsible for preventing violation of graves and sacrilege of all kinds; but the obligation rests on everybody. The principle of unqualified respect for fallen enemies holds good even after death.
B. ' Grouping. ' -- Graves are further to be grouped, if possible according to the nationality of the deceased. This idea again is not new. The Conference of Government Experts in April 1947 was anxious to avoid the hasty roadside burials which were so frequent a feature of recent wars, and urged the grouping of graves. The Diplomatic Conference of 1949 adopted this proposal, indicating in addition the basis on which the grouping was to take place. The basis selected -- that o nationality -- cannot, quite obviously, be made obligatory; but it is the one which military authorities will most naturally select in grouping graves. Grouping in this manner will make it possible for countries to pay collective tribute to their dead at a later date. But the main essential is to ensure that the graves are in fact grouped in cemeteries.
C. ' 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 gravestone 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 in such a way as to be as nearly indelible as possible. This is all the more essential in the case of common graves.
All the above provisions apply equally to ashes, as stated in the last sentence of the paragraph, which will be discussed below.
2. ' Graves Registration Service '
Having said that the graves are to be "properly maintained and marked so that they can always be found", the paragraph goes on: "For this purpose, they" (i.e. the Parties to the conflict) "shall organize [p.181] at the commencement of hostilities an Official Graves Registration Service..." The purpose of this Service is thus defined from the outset. It is to maintain the graves and to enable them to be found.
A. ' Activities. ' -- Thus, instituted as a matter of obligation from the moment hostilities break out, the Graves Registration Service (which had already been called into being by the 1929 Convention) is responsible for keeping an up-to-date list of all graves of enemy combatants, and has to mark clearly any graves which have not yet been marked or which have been marked inadequately; it must also maintain the graves and group them if possible according to the nationality of the deceased, if they are not already so grouped. It is also responsible for keeping 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 the graves, and their "possible transportation to the home country". (5)
B. ' Return of bodies. ' -- This allusion to the possible return of bodies is an entirely new provision which was introduced by the Diplomatic Conference of 1949. Certain delegations at the Conference proposed making the provision imperative; others wished to omit it altogether. It is the custom in some countries to bring the dead home at the close of hostilities, while others prefer to have them buried in the actual theatre where they have fallen. To satisfy both requirements, the clause was left optional.
C. ' Ashes. ' -- The activities of the Graves Registration Service also extend to the ashes of the dead, as provided in the last sentence of the paragraph. Ashes are to be held by the 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 likewise 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 they, too, must be protected against sacrilege of any kind.
[p.182] As soon as all the particulars of the interments have been collected, they are to be communicated to the Party to which the dead persons belong. This is stipulated in the paragraph which follows.
PARAGRAPH 4 -- EXCHANGE OF INFORMATION
Paragraph 4 requires the Graves Registration Services (6) of the opposing Parties to exchange as soon as possible, and at the latest at the end of hostilities, all information relating to the dead and to their interment.
The 1929 Convention only stipulated, in the final paragraph of its Article 4
, that this exchange of information was to take place after the cessation of hostilities. But the Diplomatic Conference adopted the proposal of the Government Experts of 1947, who had pointed out that in the Second World War such exchanges had actually taken place during hostilities. The practice was a desirable one, and deserved to be officially recognized. There is, moreover, 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.
A. ' Graves of prisoners of war. ' -- The Graves Registration Service is concerned, not only with the graves of those fallen in battle, but also, under Article 120 of the Third Convention
, with the graves of prisoners of war who die in captivity. In its final paragraph, the latter Article reproduces the provisions of the present Article 17, taken as a whole; but it contains in addition one important provision which does not figure in the First Convention. Should a country be occupied, the Graves Registration Service of the Occupying Power is required to take over, and carry on, all the activities of the Service of the occupied Power.
B. ' Lists. ' -- It may further be noted that the 1929 Convention, in providing for the exchange of "the list of graves and of dead interred", was not sufficiently explicit. Lists giving only these particulars would undoubtedly have been incomplete, and would not always have made it possible to locate the exact site of a particular grave or to identify the [p.183] body contained in it. Fortunately the details given in the 1949 Convention made the matter completely clear. There is to be a single list which, in addition to giving full particulars regarding the identity of the dead, must specify the exact location and markings of the grave in which each of them is buried.
C. ' Organization of the Service. ' -- How are the Graves Registration Services to be organized in practice? As a rule their task may be entrusted to a service which already exists. The majority of States have permanent military graves services which are responsible in peacetime 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 either to take over themselves the maintenance and listing of enemy graves or to form a special section for the purpose. In view of the specialized nature of the duties involved, the military authorities will be well advised to entrust the work to individuals or organizations familiar with it rather than set up new bodies which may not have the desired experience or competence.
* (1) [(1) p.178] See above, page 171;
(2) [(2) p.178] This meeting, which was convened in Geneva by
the International Committee of the Red Cross, was attended
by representatives of the various Associations for the
relief of prisoners of war;
(3) [(1) p.179] As we have already pointed out, certain
religions taboo cremation, while others advocate it;
(4) [(2) p.179] The French text repeats in full the opening
words of paragraph 1: "Les Parties au conflit veilleront"
(The Parties to the conflict shall ensure). -- TRANSLATOR;
(5) [(1) p.181] See also below, on paragraph 4;
(6) [(1) p.182] See above, page 180;
See the Commentary of 2016