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Name, rank, date of birth, serial number and the right to remain silent

Published online by Cambridge University Press:  01 December 2005

Robin Geiß
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Abstract

This article analyses recurring misconceptions about the questioning of prisoners of war. The author takes a two fold approach, first considering matters relating to the identification of prisoners of war, namely contemporary issues such as the use of modern identification techniques, and then discussing interrogation procedures that go beyond the establishment of a prisoner's identity. In this context particular attention is given to the question whether and, if so, at which point in time a prisoner of war starts to benefit from fair trial rights, namely the right to remain silent, the right not to incriminate oneself and the corresponding right to be informed about these fair trial protections.

Type
Selected articles on international humanitarian law
Information
International Review of the Red Cross , Volume 87 , Issue 860: Communication , December 2005 , pp. 721 - 735
Copyright
Copyright © International Committee of the Red Cross 2005

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References

1 Examination of the status question, i.e. who is eligible for POW status under GC III, Article 4, would go beyond the scope of this brief analysis. For an overview see Dörmann, Knut, “The legal situation of unlawful/unprivileged combatants,” International Review of the Red Cross, Vol. 85, No. 849, March 2003, pp. 45–74CrossRefGoogle Scholar.

2 Even though the right to notification of fair trial rights is not explicitly mentioned in either international humanitarian law or the International Convention on Civil and Political Rights (ICCPR), it is inherently attached to the substantive fair trial rights, such as the right to remain silent, which would otherwise be rendered meaningless since in order to exercise one's rights one must know of their existence. Consequently the right to be informed of ones fair trial rights prior to questioning is prescribed in Rule 42 of the Rules of Procedure and Evidence of the ad hoc Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), as well as in Principle 13 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, GA/RES 43/173 of 9 December 1988, available at: <http://www.unhchr.ch/html/menu3/b/h_comp36.htm> (last visited 26 of July 2005).

3 Bugnion, Francois, The ICRC and the Protection of War Victims, Macmillan Publishers, 2003, p. 556Google Scholar.

4 Prince Anatole Demidoff in a letter read out by Henry Dunant to the Constitutent Conference of October 1863, See Compte rendu de la Conférence Internationale réunie à Genève les 26, 27, 28 et 29 octobre 1863 pour étudier les moyens de pourvoir à I'insuffisance du service sanitaire dans les armées en campagne, Imprimerie Fick, Geneva, 1863, p. 28Google Scholar.

5 See H. W. Elliott, Identification, available at: <http://www.crimesofwar.org/thebookyidentification.html> (last visited 26 July 2005).

6 For a general account see Djurovic, Gradimir, The Central Tracing Agency of the ICRC, Henry Dunant Institute, Geneva, 1986Google Scholar.

7 Today Article 33.4 of 1977 Protocol I additional to the Geneva Conventions (hereinafter API) stipulates: “The Parties to the conflict shall endeavour to agree on arrangements for teams to search for, identify and recover the dead from battlefield areas, including arrangements, if appropriate, for such teams to be accompanied by personnel of the adverse Party while carrying out these missions in areas controlled by the adverse Party. Personnel of such teams shall be respected and protected while exclusively carrying out these duties.”

8 See Resolution I, 24th International Conference of the Red Cross, Manila, 1981, reprinted in: Handbook of the International Red Cross and Red Crescent Movement, 1994, p. 788.

9 Similarly, but in more general terms, any person interned/administratively detained must be registered and held in an officially recognized place of internment/administrative detention. Information that a person has been taken into such custody and on any transfers between places of detention must be available to that persons family within a reasonable time; see GCIV, Arts. 106 and 138. “The entire system of detention laid down by the Conventions, and in which the ICRC plays a supervisory role, is based on the idea that detainees must be registered and held in officially recognized places of detention accessible, n i particular, to the ICRC.” See Pejic, Jelena, “Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence,” International Review of the Red Cross, Vol. 87, No. 858, June 2005, p. 385CrossRefGoogle Scholar.

10 See Pfanner, Toni, “Military uniforms and the law of war,” International Review of the Red Cross, Vol. 86, No. 853, March 2004, pp. 93–130CrossRefGoogle Scholar.

11 This is a well-established rule, laid down already in Art. 29 of the 1874 Brussels Declaration; Art. 65 of the 1880 Oxford Manual; Art. 9 of the 1899 and 1907 Hague Regulations and Art. 5, para. 2, of the 1929 Convention relative to the Treatment of Prisoners of War.

12 These privileges are laid down in GC III, Arts. 16 and 39 para. 3; Art. 40; Art. 44 and 45; Art. 49 paras. 1,2,3; Art. 60; Art. 79 paras. 2,3; Art. 87 para. 4; Art. 97 para. 3; Art. 104 para 2; Art. 122 para. 4. See Commentary on the Geneva Conventions of 12 August 1949, Vol. III, Geneva Convention relative to the Treatment of Prisoners of War, Pictet, Jean (ed.), ICRC, Geneva; 1960, pp. 159 fGoogle Scholar.

13 See draft text approved by the Conference of Government Experts: “Should the prisoner of war deliberately infringe this rule, he may be liable to restriction of the privileges granted to prisoners of war of his rank or status, over and beyond the rights conferred by the Convention on prisoners of war in general,” Report on the Work of the Conference of Government Experts, p. 123.

14 With regard to the respective anti-terror legislation in Italy, see Neue Zürcher Zeitung, 2 August 2005.

15 See ICCPR, Art. 17. It should be noted that the derogable rights laid down in Art. 17 are not absolute (see ICCPR, Art. 4, para. 2). The ICCPR's Article 17, as worded, merely protects from arbitrary and unlawful interference. In general, the protection of personal data raises numerous questions under human rights law with regard to procedures, consent, processing, storage, use and deletion. Consideration of these highly topical questions would clearly go beyond the scope of the present analysis. As a starting point for information about them, see the Universal Declaration on the Human Genome and Human Rights, UN Doc. A/RES/53/152 (1999); International Declaration on Human Genetic Data, 16 October 2003, 32nd session of the General Conference of UNESCO, available at: <http://portal.unesco.org/shs/en/file_download.php/6016a4bea4c293a23e913de638045ea9Declaration_en.pdf> (last visited 26 July 2005).

16 With regard to the criterion of adequacy, see pp. 7–8 below.

17 Even in peacetime it is accepted that limitations on the principle of consent to such identification measures can be prescribed for compelling reasons, see e.g. International Declaration on Human Genetic Data, Article 8(a), second sentence, op. cit. (note 15). However, the mere suspicion alone of having “unlawfully” participated in hostilities would not necessarily amount to the gravity necessary to justify coercive identification measures in peacetime, unless the person who has allegedly “unlawfully” participated in hostilities is, by virtue of having done so, simultaneously suspected of having committed crimes such as murder or attempted murder.

18 GC III, Art. 13, stipulates that “no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.”

19 Commentary on the Third Geneva Convention, op. cit. (note 12), p. 143.

20 In addition, the procedure would not amount to a medical or scientific experiment prohibited under GC III, Art. 13.

21 For a definition of and differentiation between invasive and non-invasive procedures, see International Declaration on Human Genetic Data, Art. 2 (vii), (viii), op. cit. (note 15).

22 AP I, Art. 11, bans “any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty.” Art. 11, para. 2(c) stipulates that “the removal of tissue or organs for transplantation” is prohibited without the consent of the person concerned, and Article 11 para. 3 provides that “[e]xceptions to the prohibition in paragraph 2(c) may be made only in the case of donations of blood for transfusion or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement, and then only for therapeutic purposes, under conditions consistent with generally accepted medical standards and controls designed for the benefit of both the donor and the recipient.”

23 See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 251.

24 See ICCPR, Art. 14.

25 GC I, Art. 49, para. 4; GC II, Art. 50, para. 4; GC III, Arts. 102–108; GC IV, Arts. 5, 66–75; AP I, Arts. 71, para. 1, and 75, para. 4; AP II, Art. 6(2). The principle of the right to fair trial is likewise provided for in Art. 17, para. 2, of the Second Protocol to the Hague Convention for the Protection of Cultural Property.

26 With regard to human rights see e.g. ECHR, Arts. 5, 6, 7; ACHR, Arts. 7, 8, 9; ICCPR, Arts. 9, 14, 15, 16; CRC, Art. 40(2) (b) (iii). The UN Human Rights Committee in its General Comment No. 29 on Article 4 of the ICCPR stated that “fundamental principles of fair trial” may never be derogated from. With regard to post-WW II case law see e.g. Sawada and Three Others, in UNWCC, LRTWC, Vol. V, pp. 1 ff.; 13 AD 302 at 303–304; I. Altstbtter and Others, UNWCC, LRTWC, Vol. VI, pp. 1 ff.; 14 AD 278. Common Article 3 of the Geneva Conventions prohibits the sentencing of persons or the carrying out of executions without previous judgment pronounced by a regularly constituted court. The deprivation of fair trial rights also constitutes a war crime under Art. 2(f) of the ICTY Statute, Art. 4(g) of the ICTR Statute and Art. 3(g) of the Statute of the Special Court for Sierra Leone.

27 Knut Dormann, Elements of War Crimes under the Rome Statute of the International Criminal Court, p. 100. With regard to the customary law status of these fair trial rights see Jean-Marie Henckaerts, Customary International Humanitarian Law, Vol. I: Rules, pp. 354 ff.

28 For a listing of the main judicial guarantees laid down in the Geneva Conventions and the 1977 Additional Protocols, see Dormann, ibid., p. 101. Judicial guarantees entail, inter alia, the right of the accused to be judged by an independent and impartial court (GC III, Art. 84(2); AP I, Art. 75(4); AP II, Art. 6(2)); the right of the accused to be promptly informed of the offences with which he/she is charged (GC III, Art. 104; GC IV, Art. 71(2); AP I, Art. 75(4)(a); AP II, Art. 6(2)(a)); and the right of the accused not to testify against himself/herself or to confess guilt (AP I, Art. 75(4)(f); AP II, Art. 6 (2)(f)).

29 Rule 2 of the ICTY Rules of Evidence and Procedure defines an accused as “a person against whom one or more counts in an indictment have been confirmed in accordance with Rule 47.”

30 Salvatore Zappala, Human Rights in International Criminal Proceedings, p. 49.

31 Ibid., p. 50. In the context of Art. 10(2) of the 1CCPR see also Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary, 2nd ed., Kehl (2005), pp. 251 f.

32 It is noteworthy that the status of “suspect” was deliberately omitted from the Rome Statute, since the drafters intended to avoid premature criminalization and its omission avoids various problems concerning determination of the moment when a person becomes a suspect. Critics have claimed that rather than solving possible problems, this omission may have created more uncertainty. S. De Gurmendi, “International criminal law procedures - The process of negotiations,” pp. 217 ff. See also Friman, H., “Rights of persons suspected or accused of a crime,” 247–262, both in Lee, R. (ed.), The International Criminal Court — The Making of the Rome Statute, Issues, Negotiations, Results, The Hague, 1999Google Scholar.

33 Salvatore Zappala, op. cit. (note 30), p. 50.

34 Ibid., p. 45.

35 While such constellations demand attention, especially in the context of traditional war, the other end of the spectrum, i.e. contemporary asymmetric conflicts between States and non-State Parties, cannot be ignored. Inasmuch as the detention of prisoners of war is akin to that of criminal suspects — an evident feature of asymmetric conflict and especially current endeavours to combat terrorism — the applicable standard of fair trial rights should resemble the full panoply of fair trial rights applicable in peacetime criminal law enforcement.

36 Prosecutor v. Radoslav Brdjanin, TC II, Case No. IT-99-36-T, Decision of 3 October 2003, para. 33. The Chamber held that: “Firstly, the law itself may specifically provide for the automatic exclusion of any evidence which has been illegally or otherwise inappropriately obtained; 2. Secondly, the issue of exclusion or admission of such evidence may be left as a matter for the discretion of the judge who has the judicial duty to ensure fairness to the accused; 3. Thirdly, the courts might concern themselves only with the quality of the evidence and not consider its provenance at all; in other words the courts would only seek to find out if the evidence is relevant, reliable and having probative value irrespective of questions whether that evidence was obtained lawfully or unlawfully.”