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Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
. -- RECORDING AND FORWARDING OF INFORMATION
[p.137] As we have seen in connection with Article 16
, military personnel and other persons mentioned in Article 13
who are picked up at sea by an enemy hospital ship will become prisoners of war. At the same time, however, they are wounded, sick or shipwrecked and, as such, entitled to special protection. Their position as prisoners of war already exists but will not become fully effective until they have been landed in an enemy country and when the wounded and sick are on the way to recovery. In other words, from the moment when a wounded or shipwrecked member of the armed forces is picked up at sea by the enemy, he is under the protection of the Second and the Third Conventions. But certain provisions of the latter will remain, so to speak, in the background as long as the health of the person concerned requires special protection and care. As he ceases to be a wounded man, the Third Convention will become applicable to him to an increasing extent, until finally it is the only instrument governing his status. After the wounded
and sick have been landed, the First Convention will apply to them (instead of the Second) concurrently with the Third.
The First, Second and Third Conventions therefore contain a certain number of provisions in this regard which differ only [p.138] slightly from one another. Article 19, the provisions of which deal with the identification of persons picked up at sea and the communication to the enemy of the information obtained, is a case in point.
The present rules must be applied as soon as a member of the armed forces falls into enemy hands. It is important that his own home Power should know that he has been picked up, wounded or dead, by the enemy and should receive preliminary information, even though very brief, regarding him. It was considered necessary to specify this obligation in the First and Second Conventions in order to ensure that such information is supplied.
Despite the means of telecommunication now available to naval units, the conditions of the conflict will in fact only very seldom permit the immediate transmission of the information requested. A warship always has good reasons for communicating by radio as little as possible, and one cannot therefore expect it to transmit by that means sundry information about the shipwrecked or sick whom it may have picked up. It will delay doing so until it has arrived at a port in its home country, and the authorities on land will then have to notify the enemy. The information will thus be communicated pursuant to either the First Convention, if those landed are wounded or sick and are taken over by the Medical Service, or the Third, in the case of able-bodied persons fit to be sent directly to a prisoner-of-war camp.
It was mainly in order to leave no gaps that provisions were included in Article 19 (more especially in paragraphs 2 and 3) which will very seldom be implemented by the authorities responsible for applying the Second Convention. We shall therefore give only the essential explanations here, and refer the reader to the more detailed comments on the corresponding provisions in the First and Third Conventions (1).
PARAGRAPH 1. -- RECORDING
The Parties to the conflict are required to forward ' as soon as possible ' information regarding each person falling into their hands. As we have already seen, it is unlikely that a commander will [p.139] transmit such information to the authorities on land (who are responsible for forwarding it to the opposing Party) so long as his ship is on the high seas, but it is his duty to do so as soon as circumstances permit without risk, and at the latest upon arrival in a port. It is therefore important that the information listed here be collected and recorded as soon as the persons concerned are taken on board. This does not mean the ' records ' which, under the Convention, it is the duty of the appropriate authorities on land to prepare. It simply means that as soon as possible and at the latest on landing, each commander must provide the authorities with a list containing the information required so as to enable the records to be prepared.
The list of data to be recorded is neither limitative nor imperative; it merely indicates the particulars which would appear most likely to assist in establishing the identity of an individual. Additions may be made to the list, and where certain of the particulars indicated are missing -- such as in the case of persons who are not actually members of the armed forces -- others may be supplied in their place (photographs, body measurements, descriptions of teeth or distinguishing marks, etc.). One point about the list is that all particulars can be obtained without any necessity for interrogating the shipwrecked, wounded or sick men, who may often be unable to reply to questions. This point is of particular importance in connection with the identification of the dead. Items (a) to (f) of the list appear on the identity card which all military personnel should carry on them, while items (g) and (h) will be supplied by the commander or the officers of the vessel concerned.
The ' identity card ' referred to in item (f) is that provided for in the Third Convention (in Article 17, paragraph 3
, in the case of members of the armed forces, and Article 4 A (4)
in the case of persons who accompany the armed forces without actually being members thereof). The particulars given on the identity card are sufficient to identify its holder without any possibility of error. Consequently, one can appreciate the value of the card, and how essential it is that all those who are liable to be missing or taken prisoner at sea should be provided with such cards and should, moreover, always carry them on their person. All troops, and [p.140] particularly members of the naval forces, should be fully informed of the importance of this.
The ' identity disc ', also mentioned under item (f), will be referred to below in connection with paragraph 3.
' The date of death ' referred to under item (g) cannot always be given exactly, particularly where persons are found drowned at sea. The date is nevertheless important for reasons mainly connected with civil law. It must therefore be determined as precisely as possible and mention should be made of the relevant examination among the particulars which are forwarded.
The ' medical particulars ' referred to under item (h) must be supplied by the ship's doctor or, if there is none, by the best qualified officer. Such information is often very important, especially for the families of the deceased (2).
Lastly, information must be transmitted to the adverse Party in respect of persons whose existence is known or has been detected though there has been no possibility of taking them on board. The enemy should at least be informed without delay of their existence and given all the necessary particulars so that he may rescue them itself.
PARAGRAPH 2. -- FORWARDING OF INFORMATION
As soon as possible, the commander of a ship which has picked up shipwrecked, sick or wounded persons must forward the information regarding them to the ' information bureau ' which each belligerent is required to open on its territory. He will do so either directly or -- and this will be the usual case -- through the competent authorities on land.
The information bureau referred to here is that described in Article 122 of the Third Convention
. Such bureaux were in operation [p.141] during the Second World War, pursuant to Article 77
of the 1929 Convention relative to the Treatment of Prisoners of War; their importance grew steadily, and was reflected in the provisions adopted in 1949. The activities of the bureaux were originally limited to prisoners of war, but they have now been extended to all persons protected by the First and Second Conventions (3). As most of these individuals, when they lose their special status as wounded, sick or shipwrecked persons, become ordinary prisoners of war, it was only logical to centralize all the particulars concerning them, advising one and the same office of everything happening to them, whether they came under the First, the Second or the Third Convention.
Information which the bureau receives from the appropriate services of the armed forces is to be forwarded by it to the Power of origin of the persons concerned.
In this connection, one should note what is no doubt a drafting error in the French text, which refers to "la Puissance dont dépendent ces ' prisonniers '". The word "personnes" should have been used, as in the corresponding Article (Article 16
) of the First Convention, and the English text of the present provision uses the word "persons". The point is an important one, for the wounded, sick or shipwrecked who fall into the hands of the adverse Party will not all necessarily become prisoners of war. Apart from civilians (excluding those mentioned in Article 13
), this will in particular be the case for medical personnel.
The information must be communicated without delay and must be duplicated -- that is to say, it must be sent both to the Protecting Power and to the Central Prisoners of War Agency. By Protecting Power we mean the Power which represents the interests of the country of origin of the wounded in the country in whose power they are.
The functions of the Central Prisoners of War Agency are defined in Article 123 of the Third Convention
. It does not fall within the scope of the present study to consider here in detail the nature and [p.142] operation of the Agency, and the reader, if interested in the matter, may refer to the commentary on the Third Convention (4). It may be briefly noted that the Agency was first opened by the International Committee of the Red Cross in 1870, and it developed considerably during the two world wars. Its essential work is obviously in connection with prisoners of war. One of its functions is to receive particulars relating to the wounded, sick and dead and to forward such particulars, always as rapidly as possible, to the Power on which the victims depend. But its chief task is to keep their families informed and to form a permanent link between them and their captured relatives. It asks the national information bureaux for additional information (including information of a medical character), conducts enquiries of its own, arranges for the
exchanging of correspondence (where the ordinary postal channels are closed) and forwards personal assets. Whereas the activities of the Protecting Power are mainly administrative, the Agency is essentially concerned with human relations.
PARAGRAPH 3. -- PARTICULARS OF THE DEAD
This paragraph deals with the forwarding of everything relating exclusively to the dead picked up at sea or to wounded who die before being landed -- that is to say certificates of death and personal assets. As in the case of the preceding paragraph, the competent authorities on land will usually forward such items to the national information bureau. It will be the duty of the responsible officers in each ship either to supply the material to be transmitted to the responsible authorities at the first opportunity, and at the latest upon landing, or to forward it themselves as soon as they are able to do so.
The documents which certify decease are ' certificates of death ' or ' lists of the dead '. They must be duly authenticated, and it will suffice if they are signed by the ship's commander. No further details are given as to what the certificates or lists should consist of and here as in the case of most provisions of this Article, one [p.143] should refer to the Third Convention (Article 120, paragraph 2
) which gives all the requisite details (5) in regard to prisoners dying in captivity. Pursuant to that provision, death certificates (preferably in the form indicated in Annex IV D. to the Third Convention) or duly certified lists must be drawn up. They should include (a) the particulars found on the identity card, viz. name, first names, rank, date of birth, and army, regimental, personal or serial number and (b) mention of the place, date and cause of death, the place and date of burial, and all particulars necessary for subsequent identification of the grave. If the body has been cremated, the fact has to be stated, together with the reasons for such a measure. These last items (burial, identification of graves, cremation) will naturally apply only if bodies picked up at sea are landed. If, as will more often be the case, they are buried at sea, then the position (latitude and longitude) and date alone need be mentioned (6).
The model certificate annexed to the Third Convention was drawn up by the International Committee of the Red Cross on the basis of its experience. It includes two additional headings which are of the greatest interest to the families of the deceased -- namely, a reference to the existence of any personal assets and a few details about the last moments of the deceased. It will no doubt only be rarely that particulars can be given under the latter heading but they are nevertheless important from the sentimental and human point of view and should not be neglected.
The paragraph also refers to the ' identity disc, ' which may be either single or double. This point calls for some explanation.
The practice of providing each member of the armed forces with an identity disc became widespread during the First World War and now appears to be universally accepted. But the need for standardization of the disc also became apparent very soon. Accordingly the question was studied in 1928 by the International Commission for the Standardization of Medical Equipment, which was set up under the auspices of the International Committee of [p.144] the Red Cross. The Commission produced a model identity disc which could be divided in two. One half, it was proposed, was to remain around the neck of the dead person, while the other was to be detached and sent to the State of which he was a national. The model, or at all events its principle, was approved and the 1929 Convention stated that "one half" of the identity disc was to be transmitted, "the other half to remain attached to the body". The wording was not clear, however, and the 1949 text speaks of one half of a double identity disc, to show that the disc must in fact be composed of two separate parts, each bearing the same particulars.
Provision is still made for the possibility of military personnel being issued with single discs only, inscribed with the bare particulars. In the case of burial on land, such a disc must remain with the body, so that the latter may be identifiable at any time. In the case of burial at sea, it must be removed and sent to the deceased's home country, for a body buried at sea is usually wrapped in a weighted sailcloth bag and we know of no instance of one having been washed ashore; there is therefore no question of subsequent identification (7).
Among the objects which must also be collected and transmitted, ' wills ' and any other documents of legal value are important. Also of importance are articles having an intrinsic or sentimental value; objects which have little or no apparent value may, for sentimental reasons, be highly prized by near relatives.
There is also a reference to ' unidentified articles '. It has often happened that ships or aircraft have been hit so suddenly and with such brutal force that nothing was left of them and their occupants except a few stray objects floating on the sea. If collected and forwarded, such objects may enable the Power of origin to identify the persons who have disappeared. Sometimes, even, a single object of this sort may constitute the only proof of the total disappearance of the entire crew of a ship or aircraft.
All such documents and objects are to be sent in ' sealed packets ', accompanied by a ' statement ' and an ' inventory '. Precautions must obviously be taken to ensure that parcels of such value are not lost [p.145] or opened ' en route '; in war-time, postal communications are uncertain.
Two provisions of the Third Convention must be mentioned here. They do not appear either in the Second Convention or in the First, and their absence leaves a gap, for they are important and must be observed by those applying the Convention. They relate to the conditions under which the enemy wounded, sick and shipwrecked may b interrogated, and to cards giving notice of capture.
Article 17 of the Third Convention, paragraphs 1, 2 and 4
, lays down rules for the ' questioning ' of prisoners, states what they may be asked and prohibits any form of coercion to secure further information. Its purpose is to protect prisoners against pressure which the Detaining Power might be tempted to put upon them in order to obtain information of a military character. It goes without saying that those safeguards are equally applicable to the shipwrecked, wounded and sick picked up by the enemy. If they are picked up by a warship they will receive the safeguards by right, since they will become prisoners of war; if they are on board a hospital ship, they will receive the safeguards by analogy and in accordance with the spirit of the Convention, for in that case they will become prisoners of war by law only after they have been landed in enemy territory. It is therefore essential that all persons who are called upon to apply the Second Convention should be fully conversant with the provisions of Article 17 of the Third Convention
and should respect them.
Article 70 of the Third Convention
provides that each prisoner is to be enabled to send to the Central Agency, at the same time as to his family, and not more than one week after capture, a card known as a "card giving notice of capture", or for short, "capture card" to say what has happened to him. Its importance in the case of shipwrecked, wounded or sick persons picked up at sea can be realised. Nothing could justify depriving this category of war victims of an advantage to which they are entitled, and which their state of health makes all the more essential.
The attention of the authorities responsible for applying the Second Convention should therefore be drawn to this point, and they must see that not only reception centres in naval bases but also certain ships most likely to pick up shipwrecked persons -- and [p.146] in any event all hospital ships -- are supplied with a sufficient quantity of capture cards.
' Recording of civilians '. -- As we have seen, it is the duty of the Parties to the conflict to collect and assist not only military personnel but also civilians who are the victims of a disaster at sea. The Party to the conflict concerned must also transmit to their country of origin all information which could assist their identification and reassure their families, regardless whether the persons concerned are of allied, enemy or neutral nationality. The humanitarian aspect of this duty and also its consequences in civil law, which may be of capital importance, make it virtually imperative, and a Party to the conflict may be released from it only at the express request of the person concerned.
In the case of civilians who are picked up by an enemy warship or enemy merchant vessel and are landed in an enemy port, the relevant information, together with death certificates, documents and other articles in the case of deceased persons, can also be transmitted through the national information bureau in accordance with the procedure laid down in paragraph 2. Article 136 of the Fourth Convention of 1949
provides for the establishment of such a bureau for protected persons; the bureau may be the same as that provided for in the Third Convention in respect of military personnel. If civilians are landed in a neutral country, information regarding them can be transmitted through normal diplomatic channels.
* (1) [(1) p.138] First Convention, Article 16; Third
Convention, Articles 17, 120 (paragraphs 1 and 2), 122 and
(2) [(1) p.140] The 1907 Hague Convention, Article 17 of which
formed the basis for the present provisions, mentioned one
further item of information to be transmitted, which was
not reproduced in the Second Convention of 1949 despite
its obvious interest from the humanitarian point of view.
We mention it here solely as a reminder, for in fact it
concerns only the wounded and sick on land who are covered
by the First Convention, and it relates to information
concerning transfers and admissions to hospital;
(3) [(1) p.141] The Fourth Convention also makes provision for
an information bureau for interned civilians; but it need
not necessarily be the same as the information bureau for
which the present paragraph provides;
(4) [(1) p.142] See also ' Report of the International
Committee of the Red Cross on its activities during the
Second World War, ' Vol. II: ' The Central Agency for
Prisoners of War. ';
(5) [(1) p.143] Those details were included in the 1949
Convention in order to take account of the experience
gained by both the national information bureaux and the
Central Prisoners of War Agency. They relate to burial and
(6) [(2) p.143] Article 20 also refers to this matter. See
below, pp. 146-150;
(7) [(1) p.144] In this connection, see also the commentary on
Article 20, p. 146 below;