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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
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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.
. -- PRESCRIPTIONS REGARDING THE DEAD
[p.147] This Article reproduces that portion of Article 17 of the First Convention
which is applicable to war at sea -- namely paragraph 1, the words "burial or cremation" being replaced by "burial at sea". The corresponding provision of the 1906 Convention had already been included in Article 16, paragraph 2
, of the Hague Convention, but the reference to burial on land and cremation had been retained, along with the new notion of burial at sea. This will be referred to below.
The provisions in the First and Second Conventions regarding the dead tally with those of the Third Convention which deal with the burial of prisoners who died in captivity (Article 120, paragraphs 3 to 6
). At first sight it may seem that a mere reference to the latter Convention would have sufficed; but the framers of the Convention wished to take account of the fact that the dead picked up by the enemy (and it is to them especially that the present provision refers) have never for one moment been prisoners of war. Again, it is only natural that shipwrecked, wounded or sick combatants who have died shortly after having been picked up should remain subject to the provisions of the Convention under the protection of which circumstances brought them.
PARAGRAPH 1. -- EXAMINATION OF BODIES; BURIAL AT SEA
The form of wording with which the paragraph opens: "Parties to the conflict ' shall ensure '..." is used here for the first time in the Convention. It is not new, however, having appeared in the corresponding provision of the 1907 Convention (Article 16, paragraph 2
) and that of 1906. It must be taken to imply an obligation. It means that the Parties to the conflict must see to it that the prescribed task for which they are responsible is duly carried out. There is no 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 once more draws attention to the importance of the task and to the necessity of accomplishing it.
For reasons of logic, the 1949 Diplomatic Conference deleted the reference to burial on land and cremation which had been [p.148] included in the 1907 Convention, though the move was perhaps rather precipitate. It was pointed out that if the dead are buried on land or cremated, it means that they have been landed and the First Convention has therefore become applicable to them; that is the reason for paragraph 2 (1).
The idea is no doubt correct in principle, for in maritime warfare the dead are usually buried at sea. It is also quite possible, however, that a ship may put in at a point on the coast or at an island and bury the dead on land. The commanding officer may not necessarily have to hand the text of the First Convention, in particular Article 17
which is applicable in such a case, and it might have been helpful to reproduce here the essential provisions of that Article
, as has been done in other cases. The relevant extracts will be found below, in connection with paragraph 2.
As far as circumstances permit, burial at sea must be carried out ' individually. ' The idea is taken from the First Convention; the authors wished to prohibit common graves, which conflict with the sentiment of respect for the dead, in addition to making any subsequent exhumation difficult or impossible. The significance of the provision is, however, a little different here. The intention is not to preclude the committal of several bodies at the same time -- for what is the sea if not an immense common grave? -- but to ensure that each body is committed separately in a weighted sailcloth bag.
Before burial, the bodies must be given a ' careful examination ' in order to make sure that death has occurred and to establish identity. That is the essential point of the provision, and even the main reason for it. Wherever possible, a doctor should confirm that death has taken place; in ships which have no doctor on board, the best qualified officer will carry out the task. The medical examination also implies that the date of death must be established, as we have seen in connection with Article 19, paragraph 1
' Identification ' implies a search for the papers carried by the dead man. In the absence of papers, recourse must be had to other [p.149] methods which will make it possible for the adverse Party itself to establish his identity, e.g. measurements and description of the body, photograph, examination of the teeth, finger-prints, etc.
The examination must be such as to enable a ' report ' to be made. A minute must therefore be prepared, mentioning all the findings made. To it will be added the date and place of burial, together with a brief description of any ceremony which may have taken place.
The provision concludes with an injunction to the effect that one half of the double identity disc is to remain on the body. We have already referred to identity discs in connection with Article 19, paragraph 1
, their purpose being to enable a body to be identified at any time. In the case of bodies buried at sea, there can be virtually no question of identification at a later date, since they are weighted and are not washed ashore. The present injunction was included mainly for reasons of unification and order, and to facilitate the task of the national information bureaux to whom the other half of the disc will be sent.
PARAGRAPH 2. -- REFERENCE TO THE FIRST CONVENTION
In the case of burial on land or cremation of enemy dead who had been landed by a ship, Article 17
of the First Convention will be applicable. It reads as follows (3):
"Parties to the conflict shall ensure that burial or cremation of the dead, carried out individually as far as circumstances permit, is preceded by a careful examination, if possible by a medical examination, of the bodies, with a view to confirming death, establishing identity and enabling a report to be made. One half of the double identity disc, or the identity disc itself if it is a single disc, should remain on the body.
Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. In case of cremation, the circumstances and reasons for cremation shall be stated in detail in the death certificate or on the authenticated list of the dead.
They shall further ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality of the deceased, properly maintained and marked so that they may always be found. For this purpose, they shall organize at the commencement of hostilities an Official Graves Registration Service, [p.150] to allow subsequent exhumations and to ensure the identification of bodies, whatever the site of the graves, and the possible transportation to the home country. These provisions shall likewise apply to the ashes, which shall be kept by the Graves Registration Service until proper disposal thereof in accordance with the wishes of the home country.
As soon as circumstances permit, and at the latest at the end of hostilities, these Services shall exchange, through the Information Bureau mentioned in the second paragraph of Article 16
, lists showing the exact location and markings of the graves together with particulars of the dead interred therein."
' Application to civilians '. -- This Article, like those preceding it, will apply automatically to civilians collected dead at sea or who die while on board ship, except of course for the rules concerning the double identity disc which relate only to military personnel. Civilians may sometimes wear an identity disc, however (4). If so, in the case of civilians of enemy nationality, the identity disc should be sent together with the other information and personal assets as referred to in Article 19
to the national information bureau established pursuant to Article 136
of the Fourth Convention.
* (1) [(1) p.148] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 155;
(2) [(2) p.148] See above, p. 140;
(3) [(1) p.149] See ' Commentary I, ' p. 175 ff.;
(4) [(1) p.150] Article 24 of the Fourth Convention recommends
that the Parties to the conflict should issue identity
discs to all children under twelve years of age;