The respect and deference paid to the fallen in war can be seen throughout the world. In many cities, towns and villages the ‘harsh history of life and death in wartime is frozen in public monuments’Footnote 1 – be it in the form of a war memorial at a French railway station commemorating the railway workers who died in the First or Second World War, or a list of deceased Japanese soldiers displayed in a Gokoku shrine. Issues pertaining to persons who have lost their lives in war are highly sensitive and can easily cause public outrage. Thus the pictures of mutilated dead US soldiers dragged through the streets of Mogadishu in 1993 provoked consternation around the world and contributed to the withdrawal of the US troops from Somalia.Footnote 2 More recently, the removal of a Red Army war memorial and a dozen graves in Tallinn led to massive protests which left one person dead and had a negative impact on the relationship between Estonia and Russia.Footnote 3 Disputes over the maintenance of war cemeteries also regularly arise in all parts of the world – for example, the 2008 debate in Norway on whether the state remains under any international obligations with regard to deceased World War II combatants and their gravesites.Footnote 4
Interests and humanitarian issues concerning the dead are many and varied. First and foremost, the personal dignity of the deceased must be safeguarded. In addition, the relatives' right to know the fate of their next of kin and their interest in recovering the dead or having access to the burial place must be ensured. Moreover, not only individuals but also states are stakeholders. Thus the home countries of soldiers buried on foreign soil generally have a keen interest in respect for and maintenance of their war graves. Finally, institutions mandated by the international community to investigate and prosecute crimes committed in armed conflict have an interest in obtaining evidence on the cause and circumstances of death.
Legal answers to questions concerning persons deceased in armed conflict and their gravesites are provided by various branches and sources of law, which are often cumulatively applicable. First, numerous bilateral or multilateral agreements between states – e.g. agreements on co-operation and mutual relations, peace treaties,Footnote 5 or agreements exclusively dealing with war cemeteriesFootnote 6 – contain rules on the dead and their graves. Secondly, where such concrete rules are absent, fragmentary, non-binding or incompatible with international law, general norms of international humanitarian law and international human rights lawFootnote 7 can provide answers. Thirdly, international norms engaging individual criminal responsibilityFootnote 8 or state responsibility become relevant when primary norms laying down obligations towards the dead and their graves are violated. Fourthly, domestic law may be relevant, such as fundamental rights enshrined in constitutions or bills of rights, military law, public health law or criminal law.
This article focuses exclusively on the provisions pertaining to the dead and their gravesites that are contained in international humanitarian law. After providing an overview of the various substantive obligations and their temporal scope of application, namely whether they apply in times of peace, it will be discussed why IHL as in force today is applicable to questions concerning the deceased and their burial places.
The dead and their gravesites: what substantive obligations does international humanitarian law contain?
With regard to international armed conflicts, the four Geneva Conventions (GC I to IV)Footnote 9 and Additional Protocol I (AP I)Footnote 10 thereto contain various provisions specifically dealing with mortal remains and gravesites. The mesh of IHL provisions on the dead that are applicable in non-international armed conflicts is much less densely interwoven: the only provision explicitly mentioning the dead is Article 8 of Additional Protocol II (AP II).Footnote 11 However, the absence of specific norms pertaining to the dead does not mean that the parties to the conflict can act in a legal vacuum. On the contrary, they are obliged to respect general norms of IHL, such as the prohibition of outrages upon personal dignity, in particular humiliating and degrading treatment;Footnote 12 the prohibition of cruel and inhuman treatment;Footnote 13 and the prohibition of collective punishment.Footnote 14 In addition, customary international lawFootnote 15 on the dead might fill protection gaps in both types of conflicts. According to the ICRC Study on Customary International Humanitarian Law (ICRC study), all customary rules on the dead (with the exception of Rule 114 on the return of mortal remains and personal effects of the deceased) also apply to non-international conflicts.Footnote 16
Terminology: the dead and their gravesites
Different terms are used in IHL provisions on the dead to describe the person who died: ‘the dead’,Footnote 17 ‘dead person’,Footnote 18 ‘bodies’,Footnote 19 ‘the killed’,Footnote 20 ‘the remains of deceased’,Footnote 21 or ‘remains of persons who have died’.Footnote 22 They should be understood as synonyms. Generally, the provisions on the dead and their graves equally apply to ashes.Footnote 23
While the term ‘dead’ is self-explanatory, a clear definition of the terms ‘grave’,Footnote 24 ‘gravesite’,Footnote 25 or ‘other locations of the remains of persons’Footnote 26 is lacking. It is necessary to determine, for instance, whether the terms encompass monuments as such in memory of the dead, or mass graves resulting from the commission of crimes. The very wording of Article 34(2) of AP I – ‘graves and, as the case may be, other locations of the remains of persons’ – suggests a broad understanding of these notions. This view is supported by the respective commentaries on that article: ‘The fact that “other locations of the remains” of such persons are mentioned in addition to graves is in order to take into account all eventualities, lawful or unlawful, such as, in particular, cremation, collective graves, and even mass graves consequent upon atrocities committed during hostilities.’Footnote 27 Or: ‘This broad terminology has been chosen in order to cover any form of disposal of the remains. It covers cemeteries, any place where urns are stored, etc.’Footnote 28 Such an understanding seems justified, given the variety of religious and cultural practices to dispose of the dead. Furthermore, only an inclusive reading of the term ‘gravesite’ ensures that locations containing human remains other than sites established for commemoration, e.g. mass graves constructed in order to conceal the commission of crimes,Footnote 29 are covered by IHL.
Even though a broad reading of the notion ‘gravesite’ seems justified, it needs to be determined whether sites not containing any mortal remains could qualify as a gravesite, such as the Cenotaph in Whitehall or the Monument to the Missing at Thiepval.Footnote 30 The wording of various gravesite provisions implies that the site in question must contain mortal remains: ‘graves together with particulars of the dead interred therein’Footnote 31 or ‘[l]ists of graves and particulars of the prisoners of war interred in cemeteries and elsewhere’,Footnote 32 ‘remains of deceased’Footnote 33 or ‘other locations of the remains of persons’.Footnote 34 Hence monuments or memorials that are solely a remembrance without hosting any deceased cannot be subsumed under the term ‘gravesite’ as used in the treaty language.Footnote 35 However, to qualify as such it should be sufficient that the gravesite contained some mortal remains at some point in time.Footnote 36 Thus for instance, the obligation to maintain a cemetery should not terminate once the remains are completely decomposed, or when it is impossible to physically transfer all remains when a gravesite is relocated years after its creation.Footnote 37
Obligation to search for, collect, and evacuate the dead
Taking of all possible measures without adverse distinction
Parties to conflict are under an obligation to search for the dead.Footnote 38 Even though not explicitly stated in the respective treaty provisions – as it is in the customary ruleFootnote 39 – the obligation must apply to all the dead ‘without adverse distinction’. Not only is this an underlying principle of IHL, it is also affirmed with regard to the wounded and sickFootnote 40 and can therefore be applied mutatis mutandis to the dead. Furthermore, the rules on the ‘General protection of populations against certain consequences of war’ in the Fourth Geneva Convention, to which the provision on the dead belongs, cover ‘the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion’.Footnote 41 Under AP II, the general ratione personae provision also states that it ‘shall be applied without any adverse distinction […] to all persons affected by an armed conflict’.Footnote 42
The search for the dead is a sine qua non for respect for other obligations pertaining to mortal remains and gravesites, such as returning the remains or providing a decent burial.Footnote 43 Persons who die as a result of armed conflict often remain unaccounted for because their death is not recorded; the recording of information in turn is very difficult if the bodies or mortal remains of those killed in action or in extrajudicial killings are not collected.Footnote 44 Thus for instance, the death of thousands of persons who died in concentration camps during the World War II, whose mortal remains were burned or otherwise disappeared, could only be established by assembling information found in the paper trail left by the Nazis, such as ‘death books’.Footnote 45
The First and Second Geneva Conventions, as well as customary law and Protocol II, oblige the parties to conflict ‘to take all possible measures’. This wording indicates an obligation of means rather than result. The drafters were taking into account that in some cases collection of all the dead cannot be achieved – for instance because ongoing military operations make it impossible for medical personnel to search for and collect the dead (especially if priority must be given to the wounded),Footnote 46 or if in naval warfare a rescue operation would expose the vessel to attack.Footnote 47 The measures sufficient to meet this obligation can vary: in naval warfare, for instance, certain fighting ships such as fast torpedo-boats or submarines will have inadequate equipment or insufficient accommodation to pick up the crews of ships they have sunk. In these cases, the obligation can be met by alerting hospital ships or coastal authorities, requesting assistance from air forces or appealing to neutral vessels.Footnote 48
Time and circumstances
The various provisions differ with regard to when and under which circumstances rescue operations must take place. GC I requires that they be carried out not only after an engagement – as was stated in the 1929 Geneva Convention – but ‘at all times’. This broader time element was introduced in 1949 to take into account the realities of contemporary warfare in which hostilities became more continuous in character, compared with the past.Footnote 49 However, with regard to naval warfare the drafters were of the view that the term ‘after each engagement’ was better suited to the special conditions prevailing at sea than the wording ‘at all times’.Footnote 50 The provision in the Fourth Geneva Convention commands that the dead be searched for only ‘[a]s far as military considerations allow’.Footnote 51
So while GC I and GC II emphasize the humanity principle, GC IV places the emphasis on military necessity. However, according to the ICRC Commentary, the ‘difference is more apparent than real’, and the extent of the obligation under GC IV would be similar to that under GC I and GC II – the different wording would only have been chosen because under GC IV, ‘the service responsible for searching for wounded and dead is placed not under the control of military commanders, but under that of the civilian authorities; it is obvious that the latter could not send relief teams into the battle area without taking into account the essential military requirements. Consequently, the Diplomatic Conference rejected various proposals that the reservation should be omitted.’Footnote 52
The wording ‘at all times’ used in GC I might be misleading, as the obligation to search is not absolute but hinges on the realities on the battlefield. On the other hand, the formulation ‘[a]s far as military considerations allow’ used in GC IV could imply that considerations of humanity should not be given weight when deciding upon a rescue operation. Thus the wording in Article 8 of AP II and the customary normFootnote 53 – ‘[w]henever circumstances permit, and particularly after an engagement’ – might best reflect the current understanding of when and under which circumstances the obligation to search, collect and evacuate has to be carried out, whether in international or non-international armed conflict.
The addressees of the obligation to search for, collect and evacuate the dead
In international armed conflicts, the obligation to search for the dead is addressed to the parties to the conflict. The ICRC Commentary on the First Geneva Convention reflects a traditional concept of warfare when stating that ‘the commonest and the most important case will be that of enemy troops retiring in the face of an attack. The occupant of the battlefield must then, without delay, make a thorough search of the captured ground so as to pick up all the victims’.Footnote 54 However, in times of remote warfare, the search for and collection of the dead might no longer be carried out first and foremost by the enemy troops, who are then not physically present on the battlefield.
In non-international armed conflicts, Article 3 common to the four Geneva Conventions implies that not only the ratifying (state) party, but every party to a non-international armed conflict, is required to apply its guarantees ‘by the mere fact of that Party's existence and the existence of an armed conflict between it and the other Party’.Footnote 55 AP II likewise imposes the same duties on both state and insurgent parties to the conflict.Footnote 56 Thus it follows that non-state parties to a conflict are also bound by the obligation to search for, collect and evacuate the dead. However, to successfully discharge certain obligations, a certain degree of control over the territory might be necessary, meaning that all parties to the conflict might not be able to perform every obligation to the same extent at all times.
Appeal to the civilian population and aid societies
Parties to conflict may appeal to – but have no right to ‘mobilize’Footnote 57 – the civilian population and aid societies to search for the dead and report their location.Footnote 58 The drafters' intention in Article 17 of AP I was to limit the task of the civilian population and aid societies to searching for the dead and reporting their location, and to exclude the collection of the dead by them.Footnote 59 However, the functions of the teams mentioned in Article 33(4) thereof – which can consist of personnel of international humanitarian organizationsFootnote 60 – include the collection of the dead. This contradiction between the two provisions of AP I (or rather their interpretations by commentators) does not seem to stand in the way of humanitarian organizations assisting parties to conflict in the collection of the dead. The ICRC and National Societies, for instance, not only engage in searching for and reporting the location of the dead, but also in the collection of mortal remains.Footnote 61
The law of non-international armed conflicts does not specify how to carry out the search for and collection of the dead,Footnote 62 but as relief societies and the civilian population may offer their services for the collection and care of the wounded, sick and shipwrecked,Footnote 63 they should by analogy also be able to do so with regard to the dead.
Persons covered by the obligation to search for, collect and evacuate the dead
It is submitted that ‘the dead’ covered by the GC I and GC IIFootnote 64 provisions on the search, collection and evacuation of the dead include protected persons covered by general ratione personae provisions,Footnote 65 as well as a party's own nationals, even though the latter are generally not beneficiaries of the Geneva Conventions.Footnote 66 First, the simple reference to ‘the dead’ can be contrasted with provisions on identification of the dead using the words ‘dead person of the adverse Party’.Footnote 67 The ICRC Commentary confirms (with regard to GC I) that Article 15 ‘deals with soldiers who have fallen wounded or sick in the actual area where fighting takes place, and defines the obligations incumbent on both friend and foe in regard to them’, while on the other hand, Article 16 deals with obligations towards the wounded and sick of the opposing party once they have been collected.Footnote 68 Secondly, the corresponding obligation in GC IV applies to the whole civilian population – whether foreign or own nationals in the territories of the parties to the conflict.Footnote 69 It would consequently be difficult to argue that a state's own civilian nationals are covered in GC IV, but not its own combatants in GC I. Thus the obligation to search for the dead and prevent their being despoiled applies similarly to both enemy and own nationals.
In the law of non-international armed conflicts, Common Article 3 of the Geneva Conventions does not explicitly list the dead among the persons covered by its guarantees. However, the obligation to treat humanely all ‘[p]ersons taking no active part in the hostilities, including […] those placed hors de combat by […] any other cause’ than sickness, wounds, or detention, could arguably apply to deceased persons.Footnote 70 Relatives of the deceased falling within the personal scope of application of Common Article 3 could also invoke its guarantees, for instance by claiming that non-respect for their relative's mortal remains constitutes inhuman treatment or, more specifically, an outrage upon their dignity.Footnote 71 The obligations in Protocol II regarding the dead are for the benefit of ‘all persons affected by an armed conflict’,Footnote 72 regardless of their location, as according to the ICRC Commentary, ‘[p]ersons affected by the conflict […] are covered by the Protocol wherever they are in the territory of the State engaged in conflict.’Footnote 73
Respect for the dead
The command that mortal remains must be respectedFootnote 74 is a concretization of the general obligation to protect the dignity of persons and the prohibition of outrages upon personal dignity. Such outrages can constitute an offence under the Rome Statute;Footnote 75 the respective Elements of Crimes specify that the victim need not personally be aware of the existence of the offence and that the term ‘person’ used in the criminal provision includes the dead.Footnote 76
The general notion of respect includes preventing the dead from being despoiled.Footnote 77 This concretization of the general prohibition of pillage is intended to guard the dead from those who may seek to lay hands on them and to prevent them from falling prey to the ‘hyenas of the battlefield’. The US Military Tribunal at Nuremberg stated, in the Pohl case, that robbing the dead ‘is and always has been a crime’.Footnote 78 While this pronouncement relates to the belongings of the dead, the prohibition of ill-treatment and mutilationFootnote 79 protects the mortal remains as such. Trials held in the aftermath of the Second World War revealed odious acts of mutilation of dead bodies,Footnote 80 as well as cannibalism.Footnote 81 Respect further requires that dead bodies not be exposed to public curiosity and that this be avoided by placing them in an appropriate place before burial or cremation.Footnote 82
Identification and recording of information on the dead
‘History counts its skeletons in round numbers. A thousand and one remain a thousand as though the one never existed.’Footnote 83 While accounting for every dead person might not be necessary in order to establish a reliable historical record, it is of major importance when seen through the eyes of surviving dependants. Often only the official establishment of death can close the circle of uncertainty and put an end to relatives' false hopes. In this way acknowledgment of the loss of life represents a first step in the mourning process. Being in possession of information about the fate of relatives not only has a psychological and emotional component, but is also of great legal significance: many rights of the survivors only take effect once death is established, for instance by the issuing of a death certificate. This in turn necessitates that human remains are identified and information is recorded and transferred to the respective authorities. Moreover, proper identification and recording of information on the dead is also a means of fulfilling the right of human beings not to lose their identity after death.Footnote 84
All four Geneva Conventions require an examination of the body, preferably carried out by a physician, with a view to confirming death and establishing identity.Footnote 85 In addition, GC I and GC II oblige parties to the conflict to record as soon as possible any other information which may assist in the identification of the dead collected on the battlefield and provides an indicative list of particulars to be registered.Footnote 86 The Third and Fourth Geneva Conventions (GC III and GC IV), both dealing with persons in the hands of the enemy, oblige the detaining power to issue death certificates or certified lists containing, inter alia, information about the deceased person and the circumstances of death.Footnote 87 All four treaties provide for channels through which this information should pass from the enemy power to the respective addressee.Footnote 88 The injunction to collect, record and transmit information about the dead is intended to ensure that the person does not remain unaccounted for, and that the right of families to know the fate of their relativesFootnote 89 can be respected.
The wording ‘Parties to the conflict shall ensure…’ used in the respective provisions constitutes an obligation; hence they must ‘make certain that the prescribed task, for which they are responsible, is duly carried out. There is no justification for thinking that the task is optional’.Footnote 90 However, the obligation should be regarded as fulfilled as long as parties make every possible effort and use all means at their disposal to do so – even if this fails to result in an identification of the person. Thus other interests, such as public health concerns making swift burials imperative and not allowing for identification of all persons (as was the case in Chad in 2008),Footnote 91 may be taken into account. Some identification measures are already foreseen in the Geneva Conventions, such as collecting half of the identity disk or conducting autopsies.Footnote 92 Depending on the context and the warring parties, more elaborate means such as DNA samples may be used.Footnote 93
Return of mortal remains and personal effects of the dead
Mortal remains
GC I and GC II provide for the possibility of transferring bodies to the home country.Footnote 94 During the drafting of the Geneva Conventions some delegations wished to omit this reference altogether, since they preferred to have their combatants buried in the actual theatre of war where they fell. Others pleaded for an imperative clause to bring the dead home at the close of the hostilities. To strike a balance between these diverging views on where fallen soldiers should be laid to rest, the clause was left optional. In GC III and GC IV, only the possibility of returning ashes is explicitly stated.Footnote 95
For the High Contracting Parties to API in whose territory graves or mortal remains are situated, it is mandatory to conclude agreements in order to facilitate the repatriation of mortal remains.Footnote 96 A request for the return of mortal remains can be formulated either by the home country or by the next of kin. However, the home country can object to a request by relatives. This veto power of the home country was deemed essential to the maintenance of war cemeteries in foreign countries. In particular, countries belonging to the British Commonwealth followed a policy of interring their soldiers in quite large war cemeteries in the country where they fell – for example, the Tyne Cot cemetery in Belgium hosting fallen soldiers from the Great War.Footnote 97 If families had an unlimited right to request exhumation and repatriation, the integrity of these cemeteries could not be ensured.Footnote 98
The return of mortal remains often takes place years after the end of hostilities, such as Indonesia's 1991 handover of the ashes of 3500 Japanese soldiers killed during the Second World War to the Japanese ambassador in Jakarta.Footnote 99 It is not uncommon for the ICRC to act as a neutral intermediary between warring parties for this purpose; to give only one example, it facilitated the handover of deceased persons between the Israeli authorities and Hezbollah in July 2008.Footnote 100
In non-international armed conflicts, neither a treaty nor a customary rule explicitly covers the return of mortal remains. This is a real gap in humanitarian law. The ICRC Study merely recognizes a trend towards an obligation for the parties to such conflicts to return the mortal remains and effects of the deceased.Footnote 101 Only by recourse to general norms of IHL can an obligation to return the mortal remains be construed. It could accordingly be argued that not returning mortal remains to the relatives constitutes a form of collective punishmentFootnote 102 and violates the prohibition of cruel or inhuman treatmentFootnote 103 and of outrages upon personal dignity, in particular humiliating and degrading treatment.Footnote 104 In Russia, for instance, a federal law forbids authorities to return the bodies of persons qualified as terrorists to their families or to inform the relatives about their place of burial. Thus the bodies of several people killed in Chechnya, who were qualified as terrorists, were not handed over to their families for burial despite pleas and persistent efforts. Russia's Constitutional Court upheld the ban on handing over bodies of persons classed as terrorists and turned down several appeals filed by relatives of the deceased.Footnote 105 It could be argued that this legislation and practice violate the prohibition of collective punishment since relatives – who did not themselves commit hostile acts – suffer some form of punishment if deprived of the possibility to perform funeral rites. Furthermore, the anguish caused by the lasting uncertainty as to the whereabouts of the remains and their actual treatment could constitute psychological suffering and feelings of degradation that might reach the level of inhuman treatment or qualify as an outrage upon personal dignity.
Personal effects
The parties to an international armed conflict are under an obligation to forward personal effects of deceased protected persons through the information bureau provided for in GC IIIFootnote 106 to their country of origin.Footnote 107 The terms ‘personal effects’ or ‘personal valuables’ have to be understood in a broad sense as including last wills, other documents of importance to the next of kin, money, and also articles of an intrinsic or sentimental value. However, weapons and other military material may be kept as war booty.Footnote 108
Disposal of the body
Notwithstanding how a conflict is qualified, the parties must dispose of the dead respectfully. However, only the law of international armed conflict specifies what is meant by this, specifically requiring, inter alia, individual burial according to the deceased's religious beliefs, and the grouping of graves. The interpretative text in the ICRC Study expresses some hesitation as to whether such precise guarantees exist under the law of non-international armed conflicts, merely stating that: ‘It is likely that some of these requirements also apply in non-international armed conflicts on the basis of national law’.Footnote 109
Respect for the body and for religious beliefs
The four Geneva Conventions prescribe that the dead must be honourably interred and that the rites of the religion to which the deceased belonged must – if possible – be respected.Footnote 110 Given that some rites, such as those requiring the use of special ingredients or the sacrifice of an animal, might be difficult to observe in the special context of armed conflict where the death toll is usually high and resources scarce, an optional rather than a mandatory clause was enacted.Footnote 111
Individual burial and grouping of graves
The Geneva Conventions furthermore mandate the warring parties to bury the deceased – as far as circumstances permit – individually and not in collective graves.Footnote 112 The rationale behind these provisions is that the idea of common graves conflicts with the sentiment of respect for the dead and would also make subsequent exhumation more difficult.Footnote 113 However, these interests might be overridden, for instance by public health concerns or military considerations.Footnote 114
According to the Geneva Conventions, graves have to be grouped, if possible, according to the nationality of the deceased.Footnote 115 The drafters' intention was to avoid hasty roadside burials and to achieve the grouping of graves in cemeteries. Besides nationality being the most obvious criterion for the grouping, it also allows the home country to pay collective tribute to its dead at a later date.Footnote 116
Burial favoured over cremation
The provisions on the dead contained in the four Geneva Conventions strongly favour burial over cremation. Bodies can only be cremated for imperative reasons of hygiene or for motives based on the religion of the deceased.Footnote 117 GC III and GC IV allow for cremation if this was the wish of the deceased prisoner of war or internee.Footnote 118 The idea of a general prohibition on cremation was new when the 1949 Conventions were drafted and partly stemmed from a fear of repetition of certain criminal acts that occurred during the Second World War.Footnote 119 The Conventions further require that if cremation is exceptionally allowed, the reasons for doing so should be stated in the death certificate or the authenticated lists of the dead.Footnote 120 This requirement helps to avoid all traces of the deceased being eradicated and the dead thus remaining unaccounted for.
Persons covered by obligations regarding human remains
Articles 16 and 17 of GC I both only apply to the dead of the adverse party. Although only the former provision specifies this, whereas the latter simply uses the term ‘the dead’, the conclusion that the persons covered by Article 17 are dead persons of the adverse party is supported by its reference to ‘the home country’.Footnote 121 This scope of application is mirrored by the corresponding provisions in GC II on recording and forwarding information on the deadFootnote 122 and on what should happen with their bodies.Footnote 123 The provisions of GC III under the heading ‘Death of prisoners of war’Footnote 124, however, cite persons who died while prisoners of war as the persons to whom they apply.Footnote 125 GC IV's provisions on the deadFootnote 126 apply only to ‘internees who died while interned’ or ‘deceased internees’, i.e. protected personsFootnote 127 who were interned on the basis of Articles 41 to 43, 68, or 79 of GC IV.
In general, it can be said that the provisions on the dead contained in each of the Geneva Conventions (including those on gravesites, discussed below) apply only to a limited circle of deceased persons.Footnote 128 Protocol I aimed to fill these protection gaps.Footnote 129 Under its Article 34(1), the obligations to respect mortal remains and gravesites and to maintain and mark gravesites apply to all persons who have died for reasons related to occupation,Footnote 130 persons who have died in detention resulting from occupation or hostilities,Footnote 131 and persons who are not nationals of the country in which they have died as the result of hostilities, unless they receive more favourable consideration under the Geneva Conventions or any other provision of AP I.Footnote 132 However, the obligations laid down in AP I do not apply to a party's own nationals.Footnote 133
Gravesites and other locations of mortal remains
The Geneva Conventions oblige the parties to an international armed conflict to ensure that graves are respected, properly or suitably maintained and marked so that they may always be found/recognized.Footnote 134 The identical obligations contained in AP I as well as in customary lawFootnote 135 are addressed to all states on whose territories gravesites exist and thus to a wider circle of states.Footnote 136 These obligations do not cease with the close of hostilities, but belong to the provisions applicable at all times.Footnote 137
It is important to note that these obligations have become customary rules, since the treaty law of non-international armed conflict is mute on the issue. This is possibly due to the fact that the performance of these obligations requires a degree of territorial control which states are usually reluctant to acknowledge non-state entities as having. However, this should not per se be an obstacle to a normative development in that sense – all the more as the application of AP II is likewise conditional on territorial control.Footnote 138
Respect for and maintenance of burial places
Various provisions stipulate that graves must be respected.Footnote 139 The wording ‘to ensure respect’ indicates a positive obligation, hence active measures of protection are required. In many cases, a Graves Registration Service is mandated with ensuring respect for burial places by preventing violation of graves and sacrilege of all kinds.Footnote 140 While the obligation to respect gravesites aims at preventing graves from being vandalized and the peace of the dead being disturbed, the obligation to maintain gravesites points towards activities to keep and conserve locations where persons are buried. Considering that such maintenance entails financial expenditure and that relations between the deceased's home country and the state where the graves are located are often tense, this obligation regularly gives rise to disputes. In Norway, for instance, a public debate took place in 2008 on whether the state today incurs obligations under IHL vis-à-vis combatants deceased in the Second World War and their gravesites situated on Norwegian territory. The Ministry of Culture and Church Affairs took the stance that the work carried out by the Norwegian Official Graves Registration Service, which is, inter alia, responsible for the administration of all war graves in Norway, would not be based on any international law.Footnote 141
Marking of gravesites
The obligation to mark gravesites and other locations where mortal remains are situatedFootnote 142 is intrinsically linked to two other obligations. On the one hand, it is a concrete aspect of the broader obligation to maintain war graves. On the other hand, it is a prerequisite to guarantee access to burial places. The bearers of that obligation are free to mark the graves in the manner they see fit, as long as it is done ‘in such a way that they can always be recognized’Footnote 143 and ‘that they may always be found’.Footnote 144 Most commonly, plates displaying the surname, first name and date of birth of the deceased person are affixed to the graves.Footnote 145 In Norway, it was particularly the removal of name plates of war graves that caused concern, since without this information the dead become unaccounted for.Footnote 146
Access to places containing mortal remains
Agreements should not only be concluded to protect and maintain gravesites but also to facilitate access by relatives or representatives of Grave Registration Services.Footnote 147 The wording ‘facilitate access’ is nebulous, but it could encompass allowing these persons to enter the territory and granting them a visa. In addition, they should be given the necessary information on the location of the gravesites. To ensure accessibility, the parties to the agreement are required to ‘regulate the practical arrangements for such access’.Footnote 148
Recording and exchange of information on gravesites
The Geneva Conventions require the warring parties and states on whose territories graves are located to record not only information on the dead and the circumstances of their death, but also on their burial places. Lists showing the exact location and markings of graves together with particulars of the dead interred therein must consequently be established. Provision is also made for when, by whom, and through which channels this information must be exchanged.Footnote 149
Duration of obligations regarding gravesites
While the obligation applies ratione temporis at all times, it is less clear for how long states are obliged to maintain gravesites.Footnote 150 Article 34 of AP I neither specifies how long the obligation lasts nor does it provide clear guidance on how to fulfil it. Rather, it provides a procedural answer on how to deal with war graves, stipulating that as soon as circumstances and the relations between the adverse parties permit, the High Contracting Parties in whose territory graves are situated shall conclude agreements in order to protect and maintain gravesites permanently.Footnote 151 It is in these agreements that questions pertaining to the maintenance of burial places would then be comprehensively regulated.Footnote 152
An obligation to conclude agreements on maintenance and access to gravesites is absent in the domain of non-international armed conflicts. This might be partly due to the state's concern that non-state entities could be accorded undue recognition or status under international law if such agreements were concluded on the basis of a treaty provision. Yet these objections could be met by emphasizing the spirit behind Common Article 3(2) of the Geneva Conventions stating that the provision's application – and hence the conclusion of agreements – does not affect the legal status of the parties to the conflict.Footnote 153
The drafters of AP I did not ignore the fact that – despite the obligation to conclude such agreements – negotiations and reaching a consensus might not always be possible. Article 34 therefore lays down a procedure to follow if such an agreement cannot be concluded and the home country of the deceased is not willing to arrange for the maintenance of such gravesites at its own expense.Footnote 154 As a first step, the state where the graves are situated may offer to facilitate the return of the remains to the home country of the deceased. Where such an offer has not been accepted it may then, after the expiry of five years from the date of the offer and upon due notice to the home country, adopt the arrangements laid down in its own laws relating to cemeteries and graves. Domestic legislation on the subject matter is extremely diverse, but it may allow for the closure and disappearance of the gravesite.Footnote 155
The Geneva Conventions do not explicitly state a time limit for the maintenance of gravesites. The wording of the provisions on the marking of graves – ‘so that they may always be found’Footnote 156 and ‘so as to be found at any time’Footnote 157 – could suggest that the obligation lasts ad infinitum. The commentators on the Geneva Conventions seem to hold this view when explaining that the essential point about marking is ‘that it should always be possible to find the grave of any combatant’.Footnote 158 However, the Commentary on AP I takes a different standpoint in that it qualifies the absence of a time limit in the Geneva Conventions as an ‘obvious gap’, rather than interpreting the obligation as one lasting ad infinitum and thus beyond the existence of any humanitarian interest. The commentators therefore suggest that the system foreseen in Article 34 of the Protocol should apply not only to graves covered by that provision but also to those covered by the four Geneva Conventions.Footnote 159
Exhumation
The drafters of AP I, the only treaty explicitly dealing with exhumations,Footnote 160 sought to strike a balance between respect for graves and the recognition of legitimate grounds for exhumation. While exhumations are as a general rule strictly prohibited, they are exceptionally permitted in two situations: first, in order to return the mortal remains to the home country;Footnote 161 and second, if they are justified by ‘overriding public necessity’. The latter category includes, inter alia, medical reasons or criminal investigation needs.Footnote 162 The fulfilment of IHL obligations pertaining to the dead and their graves also potentially meets the necessity criterion; thus the Rapporteur of the Working Group dealing with exhumation stated: ‘Where adequate protection and maintenance was not otherwise possible – for instance, in the case of scattered and temporary graves made during a battle – exhumation for the purpose of regrouping graves in one location would be a matter of public necessity.’Footnote 163
The restrictions on exhumation as contained in Article 34(4) of Protocol I are addressed to the High Contracting Parties on whose territory graves are situated. As stated in the interpretative declaration of one delegation during the Diplomatic Conference, the provision should not, however, limit the work of Grave Registration Services: ‘Paragraph 4 of the article in no way prevents the exhumation of the remains in temporary graves at the end of an armed conflict by or on behalf of a Graves Registration Service for the purpose of providing permanent gravesites, as was done after the last two European conflicts’.Footnote 164
Since the drafting of that exhumation provision in the late 1970s, implementation of the obligation to prosecute serious violations of IHL has gained momentum. The establishment of numerous fact-finding commissions and international criminal tribunals at the turn of this century created a growing demand for forensic evidence, and exhumation justified by investigative necessity was thus no longer a theoretical concept. However, practice has shown that the needs of the victim's families can easily clash with the interests of investigative or prosecuting bodies. A conflict of interest can manifest itself in two ways. On the one hand, relatives might disapprove of exhumations, given that the dead and their graves should be respected and not disturbed. On the other hand, the extent of exhumations and the degree of identification might not go far enough for relatives who have an interest in recovering the mortal remains of their loved ones. International criminal tribunals often lack the resources or political will to undertake forensic investigations aimed at identifying all the dead, and confine themselves to the evidence needed to prove specific allegations. Furthermore, the ‘personal identification’ of the dead might not be their prime concern. For a genocide charge, for instance, the ‘categorical identification’ of the dead – such as the victim's ethnicity, religion or race – might suffice to establish that the perpetrator acted with intent to destroy a particular group.Footnote 165 With the growing number of forensic investigations conducted, the need to develop and adhere to ethical and scientific standards for the exhumation and post-mortem examination of remains, which bring the interests of families and justice into the equation, has become apparent.Footnote 166
Bearers of the obligations regarding gravesites
The provisions on gravesites contained in the Geneva Conventions are addressed to the ‘Parties to the conflict’Footnote 167 or to the ‘detaining authorities’ or ‘Detaining Power,’ respectively.Footnote 168 Thus states that are not or were not a party to the conflict or a detaining power but on whose territory war graves are situated – such as the graves of German soldiers who fell in World War I and are interred in the St. Georges cemetery in Geneva, SwitzerlandFootnote 169 – do not bear the obligations towards the dead contained in the Geneva Conventions. However, Article 34 of AP I considerably enlarges the circle of addressees: its obligations are addressed to the ‘High Contracting Parties in whose territories graves and […] other locations of the remains of persons […] are situated’. Hence it is not necessary for the state concerned to be or have been a party to the conflict or a detaining power.Footnote 170 This broader ratione personae concept is in line with the aim pursued by Article 34 of Protocol I, namely to bridge the protection gaps left by the Geneva Conventions regime.Footnote 171
There are constellations in which a party to conflict is not a High Contracting Party to Protocol I but is nonetheless bound by its provisions through the mechanisms foreseen in its Articles 96(2) and 96(3).Footnote 172 Considering that many obligations with regard to the dead become especially relevant after the end of hostilities, these undertakings to be bound by Protocol I should be read broadly, i.e. as encompassing all situations and effects resulting from a specific conflict, otherwise equality in terms of obligations between High Contracting Parties and parties to conflict accepting and applying the Protocol would be impaired.Footnote 173
Creation of a Graves Registration Service
The Geneva Conventions entrust various obligations pertaining to the dead and their graves to so-called ‘Official Graves Registration Services’.Footnote 174 In addition, AP I mentions them as endowed with certain privileges.Footnote 175 Graves Registration Services are assigned functions both within the actual theatre of war (e.g. identification of the dead) and beyond the end of hostilities (e.g. maintenance of war cemeteries). Because of the importance of those functions, it is mandatory to establish Graves Registration Services as soon as hostilities break out.Footnote 176 However, the respective IHL treaties do not specify how these services must be organized in practice and leave this to the respective state's discretion. Their activities can be carried out by government agencies: in France and Italy, for example, special ministerial departments were created; in the United States, Congress in 1923 established the American Battle Monuments Commission, which is an agency of the Executive Branch of the Federal Government.Footnote 177 However, it is also possible to entrust these tasks to a private body. Germany opted for this solution and the Volksbund Deutsche Kriegsgräberfürsorge e.V. was mandated with, inter alia, the maintenance of war cemeteries.Footnote 178
Provisions on the dead and their gravesites: applicable at all times ?
Practice has shown that it is often disputed when and under which circumstances IHL norms on the dead and their gravesites are applicable. States are especially reluctant to accept the idea that the obligations – for instance, to identify deceased combatants – not only apply during an armed conflict, but may persist in times of peace.Footnote 179 Generally, the temporal scope of application of international humanitarian lawFootnote 180 is identical to the material oneFootnote 181 (i.e. from the beginning of an armed conflict or occupation and until the close of military operations, the termination of occupation, or in either case until protected persons are released or re-established).Footnote 182 However, the introductory sentence of Article 3 of AP I reads ‘[w]ithout prejudice to the provisions which are applicable at all times…’. Hence some IHL provisions not only apply during an armed conflict or a situation of occupation, but also in peacetime.Footnote 183
The ICRC Commentary sheds some light on the question of which provisions are meant to apply at all timesFootnote 184 and divides them into various categories: final provisions; provisions which applyFootnote 185 or may applyFootnote 186 as soon as Protocol I enters into force; those giving grounds for taking preparatory measures;Footnote 187 and provisions whose application in relation to a conflict may continue beyond the termination of that conflict. In this last category are listed, inter alia, the provisions on missing and dead persons (AP I, Arts. 33 and 34), reunion of dispersed families (AP I, Art. 74), repression of breaches of Protocol I (AP I, Art. 85) and mutual assistance in criminal matters (AP I, Art. 88).Footnote 188 These latter provisions have a common feature in that they regulate phenomena which originate in or result from an armed conflict or occupation, but whose effects extend beyond the end of those situations. It follows that the rules regulating or remedying these effects must be applicable beyond the end of the armed conflict or occupation.
Common Article 2 of the Geneva Conventions also refers to ‘provisions which shall be implemented in peacetime’. Both the travaux préparatoires and the ICRC Commentary are silent as to which provisions these are. However, by consulting the records of the Diplomatic Conference on Protocol I, thus by putting the cart before the horse, it can be seen that the rationale behind the temporal scope of application of provisions of the said Protocol and the Geneva Conventions is the same.Footnote 189 It therefore seems justified to apply the same kind of provisions at all times. A further point to be noted is that the gravesite provision of AP I,Footnote 190 which is applicable at all times, is linked to GC IV, as it states that: ‘gravesites […] shall be respected, maintained and marked as provided for in Article 130 of the Fourth Convention’. Given this technical linkage between the two provisions, but also the fact that they contain the same core ideas, not only Article 34 of AP I on mortal remains but also the provisions of the Geneva Conventions on the dead belong to the category of provisions that are applicable at all times.
The situation in non-international armed conflicts, however, appears to be different. Since Common Article 3 applies only to situations reaching the threshold of a non-international armed conflict, and not to internal disturbances or tensions,Footnote 191 it can be held that it is a fortiori not applicable in times of peace. The same can be said of Article 8 of AP II, as the existence of an armed conflict meeting the criteria of Article 1(1) thereof is required for the Protocol to apply; there is moreover the clear stipulation that the Protocol ‘shall not apply to situations of internal disturbances and tensions’.Footnote 192 Nor does it contain a clause allowing for provisions that are applicable at all times. So Article 8 of AP II does not seem to apply beyond the termination of an armed conflict either.Footnote 193
The applicable body of law: past or present IHL rules?
The issue: persisting facts – evolving legal rules
Legal questions with regard to mortal remains or war cemeteries arise not only when a person dies or when the gravesite is built, but often decades later. For example, many European countries now face the question of how to deal correctly with graves where people who died during the two world wars are interred. Do these gravesites have to be maintained, or can a conflicting construction project be given priority?Footnote 194 Can a war memorial be removed or transferred because it is perceived by part of the population as a thorn in their side?Footnote 195 Or can collective graves containing soldiers' remains be excavated to allow for individual burial?Footnote 196 Given that these fact patterns comprise elements of past and present times (i.e. are of a continuing nature) and that IHL evolves over time, the question is whether these juridical facts have to be assessed in the light of past or present IHL norms.Footnote 197
The approach: the doctrine of intertemporal law
The doctrine of intertemporal law provides an answer to the question of whether to apply, for example, the IHL rules which were in force at the time a gravesite was constructed, or those in force when, for instance, the financing of the maintenance of a war cemetery is disputed. Arbitrator Huber defined intertemporal law in the Island of Palmas case before the Permanent Court of Arbitration as ‘the rules determining which of successive legal systems is to be applied’ or as ‘the question which of different legal systems prevailing at successive periods is to be applied in a particular case’.Footnote 198 He further stated that according to intertemporal law, ‘a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law as in force at the time when a dispute in regard to it arises or falls to be settled’.Footnote 199 The principle of non-retroactivity is one facet of this broader ruleFootnote 200 and is laid down in Article 28 of the Vienna Convention on the Law of TreatiesFootnote 201 in the following terms: ‘Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.’ Hence intertemporal law dictates that legal rules contemporaneous with the acts control their legal significance.Footnote 202
The solution: the law of today applies to facts of a continuing nature
In order to apply the criterion of contemporaneity, the nature of facts relating to mortal remains and gravesites must be determined, i.e. whether these are past/completed or present/continuing facts. While international humanitarian law as in force today can be applied to present and continuing facts, this is not the case for events of yesterday, i.e. for any act taking place or any situation that ceased to exist before a specific IHL provision entered into force.
Most situations involving mortal remains or gravesites cannot be qualified as completed or isolated acts lying in the past. Rather, they are of a continuing or even present nature. Their ongoing nature is reflected by the very core provision on the subject matter, which stipulates that gravesites have to be respected and maintained.Footnote 203 Both obligations can only be fulfilled by continued activity and are suggestive of a situation persisting over time. The continuing nature of these facts is also reflected by the wording of various gravesite provisions, such as Article 17(3) of GC I stipulating that ‘graves are […] marked so that they may always be found’. Obligations ensuring that the dead are accounted for – such as the registration, forwarding, and keeping of information on the dead and their burial placesFootnote 204 – also do not cease at a given moment but persist over time. Other obligations can be dormant and may only materialize long after death, such as those pertaining to exhumation, identification or return of mortal remains.Footnote 205 Given that the facts dealt with are of a continuing or present nature, the principle of intertemporal law, which requires contemporaneity between fact and law, dictates that the IHL in force today be applied.
The appraisal: applying today's law – the least problematic approach in practice
Application of the IHL body of law as in force today to current legal questions pertaining to human remains and war cemeteries – rather than the law as in force when the person died or the grave was constructed – also seems reasonable from a purely practical point of view. In many cases the information available on the dead or their graves is very poor and it would be difficult to establish the exact time when death occurred or the grave was built. This may be due to the fact that the person was buried in the turmoil of war, or to the low documentation standards prevailing several decades ago or in a war-torn country, or also because the information is purposely withheld, as in the case of a mass grave built to conceal traces of a crime.
Application of the law as in force at the time of death or burial would furthermore lead to a fragmented legal regime, since a fact pattern often comprises elements attributable to different points of time in the past. It is for instance not uncommon for soldiers who died in the First and Second World Wars to be buried at the same war cemetery, as at the Suresnes American Cemetery and Memorial in France, which now shelters the remains of US dead of both wars.Footnote 206 Often graves are constructed in a provisional way during a battle and (sometimes decades) later relocated and/or transformed into a more permanent structure. For instance, four provisional burial sites in Belgium – Henri-Chapelle, Fosse, Overrepen and Neuville-en-Condroz – were later replaced by the war cemetery in Lommel, which is the largest military cemetery in Western Europe for German soldiers who died in the Second World War.Footnote 207 Applying the IHL rules as in force today enables the situation to be taken into account as it has evolved with the passage of time, and with all the features it displays today. The situation is thereby governed by one and the same set of rules.
Finally, the difficulties pertain not only to the establishment of the facts but also to the determination of the law as in force several decades or a century ago. This holds especially true with regard to customary international law, and also to situations where one state succeeded another, for instance through secession, annexation or decolonization.
Conclusion
The substantive provisions of international humanitarian law on the dead and their gravesites applicable in international armed conflicts are quite comprehensive and regulate most of the issues relating to people who have died in armed conflict. Moreover, these provisions apply not only during but also after an armed conflict or occupation. Although they are comprehensive in terms of content and application at all times, there are nonetheless protection gaps in the four Geneva Conventions, resulting first and foremost from their limited personal scope of application (mostly confined to protected persons). In addition, under the Conventions only a narrowly defined category of states (i.e. parties to conflict and detaining powers) bear specific obligations pertaining to the dead. In Protocol I, the provisions on ‘missing and dead persons’ were designed to bridge the protection gaps left by the humanitarian law regime adopted in the aftermath of the Second World War. This treaty not only extends the circle of persons protected by IHL but also places obligations on states that have neither been a party to the conflict concerned nor a detaining power. Although Protocol I has not yet been universally ratified, its core ideas and those of the Geneva Conventions have been consolidated in customary international law and are thus applicable to every state.
With regard to non-international armed conflicts, only very few specific substantive norms on the dead and their graves exist. However, all parties to such a conflict are bound by general IHL obligations – such as the prohibition of outrages upon personal dignity, cruel and inhuman treatment, and collective punishment – which also confer protection on the dead person and his or her relatives. Moreover, except for the obligation to facilitate the return of the remains and personal effects of the deceased, the customary rules as identified by the ICRC apply not only to international but also to non-international armed conflicts.
Finally, it must be stressed that while international humanitarian law is an important body of law protecting the deceased and their next of kin, it is not the only one. International human rights law – despite the absence of specific rules on the dead – contains general rules which could also be effective in protecting the human dignity of the deceased and safeguarding the rights and needs of their relatives.
