Introduction
Wars lead to death and destruction. Those who die in warfare deserve respect, even from their adversaries on the battlefield. The law and human decency permit no less.Footnote 1
Throughout human history, the respectful treatment of the dead,Footnote 2 including in armed conflicts, has been reflected in and cuts across diverse cultures and religions.Footnote 3 It is also a fundamental tenet of international humanitarian law (IHL). As a body of law applying in war, IHL is designed to minimize suffering and protect all those who are not directly participating in hostilities and all those placed hors de combat. However, even when IHL is fully respected, combatantsFootnote 4 will die (as will some civilians), causing unimaginable suffering for those left behind. IHL thus sets out clear and comprehensive obligations for warring parties regarding the dead and their families. A minimum set of rules apply to all persons – combatants and civilians alike – who die in the context of armed conflicts, whether international or non-international. These obligations seek to ensure respect for the dignity of the dead.Footnote 5
Despite the humanitarian imperative that they underpin, we see a shocking lack of respect for these rules in conflicts today. Moreover, in many of the approximately 130 armed conflicts currently raging across the world, beyond the expected (and generally lawful) military deaths, civilian loss of life has too often become the norm rather than the exception.Footnote 6 Civilians are intentionally attacked or easily dismissed as collateral damage, as are civilian objects, including cemeteries, that are claimed to somehow benefit the enemy.Footnote 7 According to the United Nations (UN), between 2022 and 2023, civilian casualties in war increased by 72% – the sharpest increase since 2015, and a reversal of the downward trend seen between 2016 and 2019.Footnote 8 As aptly noted by Zegveld, “if many fatalities occur, this says a great deal about the way in which war is being conducted and about the likelihood that rules are being breached”.Footnote 9
This article presents an overview of IHL rules protecting the dead.Footnote 10 The first part sets out the legal and factual context, highlighting the human cost of war for the dead and their families and giving a bird’s-eye view of core IHL obligations, and of the complementary protections provided by international human rights law (IHRL). The second part then turns to certain contemporary legal issues requiring increased attention by warring parties, focusing on obligations to account for the dead,Footnote 11 to respect the dead and their graves, and to return human remains home. Finally, the third part addresses practical issues on IHL implementation, including compliance by non-State armed groups (NSAGs), criminal accountability and death investigations, key recommendations to drive actions forward on the protection of the dead, and the role of the International Committee of the Red Cross (ICRC) in this area.
War and the dead: The factual and legal context
The human cost of armed conflicts
Death has been an expected consequence of war since the inception of war itself, and the history of regulating the treatment of the dead, both domestically and in international law, is also long. As a legal framework governing armed conflict, IHL is premised on, and integrates, the fact that killing can be lawful. However, if IHL were fully respected, the majority of those who die and who might remain unaccounted for would be members of the armed forces or of NSAGs. It is precisely to lessen the suffering of familiesFootnote 12 that IHL contains such elaborate rules regarding the dead, whether combatants or civilians. Relevant written IHL rules date back at least to the 1880 Oxford Manual on the Laws of War on Land, and humanitarian norms have roots in worldwide legal, social, religious and ethical traditions.Footnote 13 Yet, despite a global consensus on the 1949 Geneva Conventions and on IHL more generally, the horrific toll of today’s wars shows that adherence to these and other rules of IHL is alarmingly inadequate.Footnote 14 Today, many of those who die in armed conflicts remain unprotected, and missing persons cases that occurred decades ago remain unresolved. Not knowing the fate of a loved one and not being able to mourn the dead are among the deepest and most unseen wounds of war, and each individual case tells a story of suffering, uncertainty and anxious waiting. This has lasting impacts on individuals, each of whom are affected in different ways depending on age, gender, disability and other diversity factors, and depending on their specific circumstances – for instance, in migration and displacement contexts.
There are myriad reasons for the alarming increase in the numbers of missing persons, among them many deceased individuals, and also for why so many of those who die are not treated with respect.Footnote 15 The lack or insufficiency of the law is not one of these. While people will inevitably go missing or die even if conflicts are fought in full respect of IHL, (deliberate) IHL or IHRL violations, including enforced disappearances,Footnote 16 are one piece of the puzzle, together with political considerations and shockingly inadequate measures to prevent recurrence and to hold those responsible accountable. Today, we continue to see the dehumanization of opposing forces, and of civilians associated with them, by warring parties but also by the public, and this can aggravate existing biases and potentially contribute to discrimination.Footnote 17 This dehumanization takes many forms. In some conflicts, the dead are ill-treated and their personal belongings pillaged – often with the precise purpose of disrespecting both the dead and the living. In some contexts, (former) parties to conflicts can refuse to disclose information in order to hide evidence of violations and crimes. Parties also purposely withhold information on the dead to cause further suffering, to pressure the enemy or for other reasons, including to perpetuate hate, exclude certain groups or seek public support.Footnote 18 Moreover, the dead are also used as bargaining chips between parties, impeding identification efforts and the return to families.Footnote 19 Yet, IHL compliance by one party must not depend on respect by its opponent – all States and parties to armed conflict must respect and ensure respect for IHL in all circumstances.Footnote 20
There are also practical and administrative reasons why people, including the dead, go missing in wars. Such outcomes are not always the result of IHL violations, but they are evidence of, at a minimum, insufficient efforts by States and warring parties to put in place adequate measures enabling legal compliance on the ground. As a result, parties might struggle to search for and recover hundreds or thousands of bodies in a dignified manner while also carrying out the search for survivors and caring for them. This can result in bodies being abandoned without a decent burial, mishandling of the dead, or hasty examinations with little regard for forensic best practices.Footnote 21 All too often, parties also fail to collect all available information and to share it with families and the ICRC’s Central Tracing Agency (CTA), in accordance with the latter’s humanitarian mandate and role under IHL and the Statutes of the International Red Cross and Red Crescent Movement.Footnote 22 In some cases, communities might also bury human remains themselves for various reasons, often without advising civilian authorities and record keepers. Coupled with overextended forensic authorities and overrun morgues, subsequent identifications, families’ access to gravesFootnote 23 and the return of human remains become more difficult, if not impossible.
Advances in information and communication technologies can support compliance with certain IHL obligations, including the obligations to find those who have gone missing and to end impunity for international crimes. The use of such technologies can also help to raise public awareness of violations. At the same time, however, their use can do harm, infringing on IHL obligations and on the human rights of individuals.Footnote 24 Although the images of deceased persons flashing across our screens are regrettably not new, the role of social media in “viralizing” this content means that nowadays it reaches the public eye more quickly and at a greater scale, stripping those killed in wars of their dignity.Footnote 25 This also has horrific consequences for their loved ones, starting with the unspeakable suffering – beyond the death itself – of continuously reliving their trauma with images that are “constantly available to taunt victims and their communities”.Footnote 26
Despite existing challenges, in armed conflicts today we see the practical value of IHL. If warring parties more adequately and systematically respected IHL, fewer individuals would die or become unaccounted for, preventing further suffering and the fracturing of social foundations. However, for effective application of relevant IHL rules, States and NSAGs must put in place institutional frameworks or other relevant measures, ideally well before a war starts. For example, parties to armed conflicts can, as a preparedness measure, issue modes of identification to their personnel to facilitate the collection and recording of information on those who die (among others), in order to prevent them from becoming unaccounted for.Footnote 27 If this is not done, it will already be too late for some: information on the dead will only be partially gathered, will get lost or will never be collected.Footnote 28 In turn, families will remain in limbo for years or even decades while struggling with the numerous consequences – legal, administrative, economic and psychosocial – that this has on their lives.Footnote 29 The failure to preserve the dignity of the dead is deeply entwined with their families’ dignity. Furthermore, when the law is violated, those responsible must be held accountable. This requires safeguarding graves and other sites where people have been killed, including in detention, and collecting data on civilian (and soldiers’) deaths to enable (war crimes) investigations, among other measures.Footnote 30 Beyond this, information collected for criminal investigations is also critical for identifying the dead and guaranteeing their families’ right to know.Footnote 31
From the realities of war to the law: IHL and the deceased
Dignity of the dead, families and the right to know: The backbone of IHL obligations
For over a hundred years, IHL has sought, in letter and spirit, to ensure that the dead are searched for and identified, and to afford them the highest possible protection and respect for their dignity, setting out the most detailed rules of international law on this. These rules have three key objectives: ensuring respect for the dead, preventing people from going missing, and ensuring the right of families to know the fate of their loved ones. For this, IHL requires warring parties to step in from the moment a person dies until they are identified and honourably laid to rest, ideally by their families.
An underlying purpose – and key component – of these obligations is ensuring respect for the dignity of the dead. This is also a key objective of IHL obligations on accounting for the dead, which are inherently linked with those on accounting for missing persons.Footnote 32 Indeed, preserving or restoring the identity of the dead also guarantees their dignity.Footnote 33 Thus, IHL requires accounting for the dead, with a view to identification,Footnote 34 which is crucial to prevent them from going missing, return their remains and guarantee the families’ right to know.Footnote 35 This said, identification is an obligation of means: parties must “use their best efforts and all means at their disposal” to achieve this objective.Footnote 36 A failure to successfully identify the deceased does not necessarily, in itself, constitute an IHL violation. In certain circumstances – for example, when no ante-mortem information is available, or when there are incomplete or degraded human remains or inadequate forensic processes – identification may prove impossible despite genuine efforts. However, developments in forensic science have significantly enhanced parties’ ability to fulfil this obligation.Footnote 37
Underpinning, and at the centre of, IHL rules on the dead are families and their right to know the fate of their relatives, including the latter’s whereabouts.Footnote 38 In international armed conflicts (IACs), this right is set down in Article 32 of Additional Protocol I (AP I) as a “general principle” of IHL guiding the activities – in relation to the missing and the dead – of States, warring parties and international humanitarian organizations.Footnote 39 Introducing this provision (which was ultimately adopted by consensus), its sponsors emphasized that it concerns “a fundamental right” of families, seeking to recognize their suffering as a result of separation and uncertainty about the fate of their relatives.Footnote 40 The right to know pre-existed the adoption of AP I, however.Footnote 41 Already in 1974, the UN General Assembly had referred to obligations on providing information to families of those missing in war, calling upon
parties to armed conflicts, regardless of their character or location, during and after the end of hostilities and in accordance with the Geneva Conventions of 1949, to take such action as may be within their power to help locate and mark the graves of the dead, to facilitate the disinterment and the return of remains, if requested by their families, and to provide information about those who are missing in action.Footnote 42
The General Assembly also called upon all parties to cooperate with the ICRC, in accordance with the 1949 Geneva Conventions, by providing information on the missing and dead.Footnote 43
By setting out the right to know as a general principle in AP I, IHL acknowledges and incorporates this right in its rules on the missing and the dead, establishing a legal obligation to consider the right to know in all measures concerning them.Footnote 44 Similarly, under customary IHL, parties must provide the families concerned with any information they have on those reported missing due to war.Footnote 45 Thus, the right to know is relevant in the application of the Geneva Conventions’ provisions on accounting for people in armed conflict.Footnote 46 It also underpins specific IHL rules on searching for the missing and identifying the dead. In practice, being “prompted” by the right to know means that different steps must be taken to clarify a person’s fate.Footnote 47 Ultimately, although not explicitly mentioned in all IHL rules on the dead, families are at the centre of these obligations.
The legal baseline: Core IHL rules protecting the dead
With over twenty specific treaty provisions in the Geneva Conventions and AP I, IHL rules governing the treatment of the dead in IACs – whether members of the armed forces or other protected persons – are particularly rich and detailed. Though less elaborate, the rules in non-international armed conflicts (NIACs) also address the majority of challenges faced by the dead and their families.
In any armed conflict, IHL imposes certain minimum obligations. In brief, parties to armed conflicts must: (1) search for, collect and evacuate the dead without adverse distinction;Footnote 48 (2) account for the dead and inform families of their fate;Footnote 49 (3) respect the dead, including by preventing despoilment and prohibiting the mutilation of dead bodies;Footnote 50 (4) carry out respectful disposal of the dead, andrespect and mantain their graves;Footnote 51 and (5) return human remains and personal effects.Footnote 52 Key issues related to these obligations are addressed in subsequent sections.
As time is a crucial factor, IHL obligations on searching for, and recording information on, the deceased are of primary relevance “following the heat of battle” or other military engagements.Footnote 53 However, these and other IHL obligations also continue to apply – and may become even more relevant – long beyond the end of a conflict.Footnote 54 For example, thirty years after the 1990–91 Gulf War, the Iraqi and Kuwaiti authorities, with the assistance of the ICRC, identified the remains of twenty persons, allowing closure for their families.Footnote 55
Complementing IHL’s protections for the dead and their families through international human rights law
IHRL, which applies at all times, contains obligations relevant to the treatment of the dead and to clarifying their fate.Footnote 56 Importantly, it is widely recognized that IHRL rules applicable in armed conflict complement IHL protections, even if the exact relationship between these two bodies of law remains subject to constant clarification and evolution.Footnote 57 Without seeking to be exhaustive, this section provides an overview of key IHRL obligations.Footnote 58 In addition, IHRL provisions and case law are cited in other sections where relevant for interpreting shared concepts (e.g. degrading or humiliating treatment) or where they can provide useful guidance. In addition, in the section below on “IHRL on Return”, the article addresses relevant obligations under this body of law on the return of human remains in NIACs, given IHL’s gaps on this issue.
In considering references to human rights law and jurisprudence, however, the particular context and the specificities of armed conflict must be kept in mind.Footnote 59 For example, concerning the right to life and the procedural duty to conduct investigations, while it is clear that these obligations generally continue to apply in armed conflicts (and beyond them),Footnote 60 what needs to be considered first is whether the use of force leading to the deaths was governed by IHL rules on the conduct of hostilities or by IHRL standards on the use of force in law enforcement; in the former case, certain deaths may be lawful and as a result would not trigger an obligation to investigate.Footnote 61 Secondly, as pointed out by Droege, “not all requirements of an investigation in peacetime may be transposable to situations of armed conflict”, including procedural ones.Footnote 62
As the first universal human rights treaty containing specific provisions regarding persons who may be dead, the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) requires States Parties to “take all appropriate measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains”, as well as to investigate disappearances and bring those responsible to justice.Footnote 63 States Parties must also cooperate with each other with a view to exhuming, identifying and returning the remains of the dead.Footnote 64 Importantly, the ICPPED explicitly recognizes the right to know the truth, meaning that families – who are also victims themselvesFootnote 65 – must be informed about the circumstances of the disappearance, the progress and results of the investigation, and the fate of those disappeared.Footnote 66
Although general IHRL treaties do not set out provisions dealing specifically with all the dead, UN treaty bodies and regional human rights courts and tribunals have over the years addressed this issue to varying degrees, with differences in their findings. Generally, jurisprudence has held that several treaty provisions give rise to relevant obligations relating to the dead and their families. Under IHRL, States can be held responsible for failing to uphold the protection of human dignity;Footnote 67 the right to life; the prohibition of torture and cruel, inhuman or degrading treatment or punishment; the prohibition of enforced disappearance; the right to private and family life;Footnote 68 the right to liberty;Footnote 69 the right to freedom of conscience and religion;Footnote 70 and the right to an effective remedy.Footnote 71
For violations of the right to life under IHRL, States have a duty to conduct a prompt, thorough, effective, impartial and independent investigation on unlawful or suspicious deaths within their jurisdictionFootnote 72 (this obligation also extends to other allegations of IHRL violations, including enforced disappearancesFootnote 73). If a person dies in such circumstances, States must take all reasonable steps to identify the dead and determine the cause of their death,Footnote 74 to properly dispose of their remains, and to collect information on their identity and fate and provide it to families, or permit entities like the ICRC to do so.Footnote 75 Investigations must also involve the victim’s next of kin, as is necessary to safeguard their legitimate interests,Footnote 76 and grant access to information to establish the truth.Footnote 77 The obligation to investigate applies until authorities can no longer reasonably take measures to elucidate the circumstances and establish responsibility, but if additional information emerges, they must take additional measures.Footnote 78 In cases of enforced disappearance, this procedural obligation can continue to apply as long as the person is unaccounted for, even if death is presumed and even if those responsible have not been identified and punished.Footnote 79 For war crimes and crimes against humanity, there is also a public interest in achieving the prosecution and conviction of perpetrators, even years or decades after the event.Footnote 80
In some cases, courts have also determined that the suffering caused to families by the post-mortem treatment of a relative’s body can be regarded as inhuman or degrading treatmentFootnote 81 when such suffering is different in nature from that caused by the death itself.Footnote 82 The failure to properly identify the deceased or provide information to familiesFootnote 83 and refusing to provide access to, or information on, burial sites have also been found to constitute degrading and inhuman treatment.Footnote 84 When denied the possibility of visiting graves or participating in burial ceremonies, or if they are given no information on the location of graves or receive the body with excessive delays, relatives may also invoke their right to private and family life.Footnote 85 Jurisprudence has further emphasized that States’ omissions in respecting these obligations can constitute interference with the right to family and private life and other rights of relatives of the deceased, and in doing so has considered religious and cultural elements.Footnote 86
Finally, as previously touched upon, human rights bodies and regional courts have also recognized a right to the truth surrounding enforced disappearances, other gross violations of human rights and serious violations of IHL; this is inferred from specific rights in IHRL treaties and, in some cases, is recognized as a right in itself.Footnote 87 Under IHRL, the right to the truth is broader in scope than the IHL right to know.Footnote 88
Searching for and accounting for the dead in wars
Where it all begins: Search and recovery of the dead
As a fundamental prerequisite to complying with other IHL obligations on the dead, parties to armed conflicts must take all possible measures to search for, collect and evacuate them.Footnote 89 These obligations “are important in ensuring respect for the dignity of the dead, which is crucial, not least because disrespect for the dead might set off a cycle of barbarity”.Footnote 90 In practice, the legal protection afforded does not differ depending on the type of armed conflict, although treaty provisions applicable in IACs regulate specific aspects in further detail.Footnote 91 Put concisely, parties to all armed conflicts must “without delay” do everything possible to search for, collect and evacuate the dead from areas of military operations “whenever circumstances permit, and particularly after an engagement”.Footnote 92 These operations must be carried out for all the dead, regardless of the party to which they belong and whether or not they directly participated in hostilities, without any adverse distinction.Footnote 93
The obligation to search is triggered “particularly after an engagement”, but it does not start or end with this – it is a continuing obligation.Footnote 94 The phrasing “particularly after” does not exclude a requirement to search during an engagement, where possible.Footnote 95 However, recognizing the realities of war, this is an obligation of means – to “take all possible measures”.Footnote 96 This may include permitting and facilitating searches by others, including impartial humanitarian organizations.Footnote 97 Parties may not arbitrarily withhold consent for such organizations to carry out this work.Footnote 98 In naval warfare, for instance, a specific warship may consider that undertaking a search operation is impossible but must still assess other “possible measures”, including alerting nearby coastal authorities and neutral vessels and appealing to them to take the shipwrecked, wounded, sick or dead on board.Footnote 99 Thus, although the measures to be taken depend on what is possible at a given moment, the obligation to act “without delay” is strict.Footnote 100 Furthermore, to prevent a further increase of the missing in war, IHL also requires parties to record all available information prior to final disposition of the dead – in practice, the moment after casualties are evacuated represents a critical moment.Footnote 101
Today, rapid developments in artificial intelligence and machine learning can open avenues to accelerating the search for and identification of the deceased, including to find mass graves during and after conflicts.Footnote 102 Such technologies may be able to support more conventional human identification techniques, such as DNA analysis, fingerprinting and dental examination, in order to make these more efficient and accurate.Footnote 103 They can also strengthen the integrated identification approach by, for example, assisting in the separation of commingled human remains.Footnote 104 However, the use of any technology for humanitarian forensic action still requires specific types of forensic data to work, such as previously obtained skeletal and ante-mortem data, and still relies on human expertise.Footnote 105 In all cases, users must ensure that the protection of conflict-affected populations remains at the centre,Footnote 106 and must comply with relevant legal obligations, including the preservation of dignity, as well as data protection rules and standards.Footnote 107
Accounting for the dead in international armed conflicts
“What is the good of all these names, all these cards covered in details and descriptions?” the General said. “When all is said and done, can a pile of bones still have a name?”Footnote 108
In IACs, the Geneva Conventions and AP I outline the obligations of parties to account for military personnel and for civilians who die in the context of hostilities and internment. According to Sassòli, “[t]he provisions for obtaining, collating and transmitting this type of information are a major step forward in international humanitarian law”.Footnote 109
Combatant deaths as a result of hostilities
After the search for the dead and their evacuation from areas of military operations, either on land or at sea, it is necessary to document information about the dead, as this is essential for their identification.Footnote 110 The Geneva Conventions foresee a specific process for a party to record and transmit information to the adverse party in respect of each shipwrecked, wounded, sick or dead member of the enemy’s militaryFootnote 111 “falling into its hands” – in other words, when the party exercises a degree of control over the individual in question.Footnote 112 This is the case whenever armed forces collect and evacuate the dead, thereby triggering the obligations to record and transmit relevant information. In practice, while this obligation applies in regard to the enemy, determining if an individual is part of the enemy armed forces is not always straightforward. In these situations, parties must still record the individual’s information in order to ensure that all necessary measures are taken to protect and identify the individual and to inform, when relevant, the other party and the deceased’s family.Footnote 113 The obligation to record and transmit is vested in IAC parties but also in any neutral State that may receive or find, among others, deceased individuals in its territory.Footnote 114
As seen in its formulation (“shall record”), the obligation to record and transmit information is mandatory in nature and is linked with the obligations of parties to carefully examine and ensure the proper burial of the dead.Footnote 115 It refers to the action of recording “any particulars which may assist in the [person’s] identification”. The word “particulars” means “details”.Footnote 116 Articles 16 of Geneva Convention I (GC I) and 19 of Geneva Convention II (GC II) clarify the type of information that parties must record, which include the person’s individual identification (e.g. name, surname, date of birth), the circumstances in which they fell into the adverse party’s hands (e.g. place of capture, place of death), and details on the person’s state (e.g. wounds, illness, cause of death). The list of required particulars is illustrative, meaning that parties may collect additional information which might be critical to enabling identification.Footnote 117 For the dead, information “must be recorded to the extent possible, regardless of the person’s condition and the presence of any identity disc or card”.Footnote 118 This accords with established forensic standards according to which it is essential to compile comprehensive information on the deceased.Footnote 119 Compiling such information involves creating a dedicated case file with biological data obtained through forensic examination and background information gathered through investigative efforts and recovery operations.
Under Articles 16 of GC I and 19 of GC II, information must be recorded “as soon as possible” to prevent persons from going missing and to inform families.Footnote 120 However, operational realities in wars might make it difficult to record information as early as would be ideal. Thus, the timing may vary depending on factors including the number of individuals falling into the hands of a party, the capacity of those receiving them, and the duration of the process.Footnote 121 However, such constraints do not absolve parties of their obligation to record information promptly and adequately. Given this, it is essential that States and their armed forces engage in thorough military planning – ideally during peacetime – so that all needed support is foreseen and all processes and procedures are in place to give effect to this obligation.Footnote 122
Once the information has been recorded, those responsible must transmit it “as soon as possible” to their National Information Bureau (NIB) for forwarding to the other party through the ICRC’s CTA.Footnote 123 Parties must also transmit certificates of death or duly authenticated lists of the dead and one half of a double identity disc, along with any last wills or other documents important to the next of kin, money, and in general all articles of intrinsic or sentimental value, found on the deceased.Footnote 124
Civilians killed due to military operations
Based on Article 16 of Geneva Convention IV (GC IV), parties to a conflict must “facilitate the steps taken to search” for civilians killed as a result of an IAC, particularly those killed in military operations. Neither Article 16 nor any other provision in the Convention outlines specific procedures for recording information or identifying the civilians concerned, but AP I foresees the exchange of information to facilitate the search for missing and dead civilians, and under customary law parties must record all available information before disposing of the deceased and must mark their graves with a view to identification.Footnote 125
AP I expands the protection of the missing and dead for persons not receiving more favourable consideration under the Geneva Conventions. Under Article 33(2) of AP I,Footnote 126 parties must record and transmit information on persons “detained, imprisoned, or otherwise held in captivity for more than two weeks due to hostilities or occupation, as well as those who have died while in detention”, and on persons who have died in other circumstances due to hostilities or occupation. In this way, Article 33 reinforces the duty to furnish and exchange information on persons reported missing by a party so as to facilitate the search for them. According to Bothe, Partsch and Solf, the obligation to search applies to all victims, irrespective of their status under the Geneva Conventions and AP I. However, a connection must exist between the party requesting the search and the person in question.Footnote 127 For those protected under Article 33, parties are required to transmit all relevant information concerning persons reported missing, and any related requests, to the adverse party, either directly or through intermediaries such as the Protecting Powers, National Red Cross and Red Crescent Societies, or the ICRC’s CTA. Importantly, Article 33(3) underscores that, in any case, each party must ensure that information is consistently provided to the CTA; this helps the CTA to maintain a centralized and comprehensive record of missing persons, including the deceased.Footnote 128
Deaths in custody: Prisoners of war and civilian internees
When prisoners of war (PoWs) or civilian internees die while in custody, the Detaining Power must take specific measures to identify them and inform their families. When it comes to PoWs, Geneva Convention III (GC III) addresses prescriptions for the drawing up of willsFootnote 129 and procedures to follow after a prisoner has died, including in special circumstances.Footnote 130 PoWs have a right to draft wills and, upon their request, these must be transmitted “without delay” to the Protecting Power. A certified copy must also be sent to the CTA.Footnote 131 Before interring or cremating PoWs, a careful medical examination is required to confirm death, document findings in a report, and, where necessary, establish the deceased’s identity.Footnote 132 The death certificate must be sent to the NIB; the NIB will then report the death to the CTA, which in turn will forward the certificate to the country concerned. The Graves Registration Service (GRS) must also record and transmit “lists of graves and particulars of the prisoners of war interred in cemeteries and elsewhere” to the Power upon which the PoWs in question depended.Footnote 133 As explained in the ICRC Commentary on GC III:
Compliance will be measured against a higher standard for a prisoner of war who died in the hands of a Party to the conflict and had been brought to the rear or held in a designated facility than for a combatant collected on the battlefield, given that in the former scenario the Party would have had greater capacity and facilities to deal with the situation.Footnote 134
When it comes to civilian internees, GC IV also regulates various issues related to the possibility that they might die in custody. First, internees are entitled to draft wills and, in the event of death, such documents must be transmitted without delay to the person designated by the deceased.Footnote 135 After an internee dies, an official record of death must be established and a copy forwarded to the Protecting Power and the CTA.Footnote 136 Lastly, the Detaining Power, through its NIB, must forward lists of graves of deceased internees to the Powers on whom those individuals depended.Footnote 137
Where PoWs or internees die of unknown causes or due to the actions of any person, including other detainees or the detaining forces, the responsible party must conduct an official enquiry.Footnote 138 As explained in the ICRC Commentary on GC IV, the enquiry
should aim to determine the exact circumstances and causes, so that responsibility for [the death] can be established. If there is a reasonable suspicion that a criminal act was involved, the investigation has to be moved to a criminal procedure and the Detaining Power must take all the necessary measures to prosecute the person(s) responsible.Footnote 139
The enquiry must be “effective”, meaning “that the process must be ‘appropriate and undertaken in good faith, with all feasible means employed to achieve its goal’”.Footnote 140
Such investigations can also have a crucial preventive function, helping to avert similar future deaths.Footnote 141 Furthermore, sharing information on the investigation with families upholds their right to know and enhances transparency.Footnote 142 The PoW’s or internee’s body must undergo a thorough examination, including by a forensic medicine expert whenever feasible.Footnote 143 The Detaining Power is also required to communicate the death to the Protecting Power. While the relevant provisions do not explicitly refer to the ICRC or its CTA as recipients of such communications, the obligation to inform the NIB of the death remains applicable. In practice, States have often transmitted reports required under Articles 121 of GC III and 131 of GC IV to the ICRC.Footnote 144
National Information Bureaux and Official Graves Registration Services
Accounting for enemy individuals falling into the hands of a party to the conflict requires dedicated institutions. To this end, the Geneva Conventions oblige parties to establish an NIB at the onset of an IAC and in all cases of occupationFootnote 145 and an official GRS at the commencement of hostilities.Footnote 146
The NIB’s main responsibilities are threefold: (1) to collect and transmit information about certain categories of persons protected by the Geneva Conventions, including the deceased; (2) to respond to enquiries on these; and (3) to collect and forward personal valuables left by protected persons.Footnote 147 Its functions are key to ensuring that persons falling into the hands of a party who have died on the battlefield, at sea or in captivity are accounted for. The information that the NIB gathers comes from authorities responsible for handling protected persons. In the case of the deceased, these can include military or civilian mortuary services, morgues, forensic facilities and the Detaining Authority’s medico-legal services. Today, various States have established NIBs in laws, policies or military doctrines.Footnote 148 This is a key first step to ensuring that if conflict breaks out, processes are in place to account for people promptly.
Parties must also establish a GRS, which is instrumental in enabling parties to fulfil their obligations regarding the dead. The primary responsibilities of these are to ensure respect for graves and their proper grouping and maintenance, to support the identification of the deceased, to assist the armed forces in the potential transportation of remains to their home countriesFootnote 149 and to facilitate access to gravesites.Footnote 150 The Geneva Conventions do not specify the entity responsible for establishing or administering such services – indeed, the organizational structure of GRSs may differ between States and can encompass governmental and non-governmental arrangements.Footnote 151 Prominent examples include the German War Graves Commission and the Commonwealth War Graves Commission, both of which operate as private or semi-official bodies tasked with these functions. In fulfilling their obligations regarding the deceased, States may rely on existing military graves services that traditionally manage the burial and maintenance of fallen armed forces personnel.Footnote 152 These entities are often already equipped with the logistical capacity and technical expertise needed to carry out the GRS’s functions. Thus, while States retain discretion on how to implement the obligation to have a GRS, due to the specialized nature of these tasks, “military authorities should entrust the work to individuals or organizations familiar with it rather than set up new bodies which may not have the desired experience or competence”.Footnote 153
The services that the GRS provides are primarily for PoWs and members of the armed forces who have died in areas of military operations, whether on land or at sea. For deceased internees and civilians killed as a result of hostilities, GC IV is silent on this issue and AP I only foresees the access of the GRS to gravesites in specific circumstances.Footnote 154 States should establish the necessary institutional frameworks and strengthen the capacity of existing bodies, irrespective of whether they are civilian or military, to deliver services for those protected under GC IV comparable to those that GRSs provide for military personnel. This pragmatic approach enables compliance with the overarching obligation to ensure dignity and respect for the deceased and their graves through effective and reliable institutional processes.
NIBs and GRSs must coordinate closely. Each party must exchange, through the respective GRSs of each party, lists indicating the exact locations and markings of graves and any available information about the deceased interred therein, facilitated by their respective NIBs.Footnote 155 These lists may be assisted by maps, GPS coordinates or satellite imagery. Moreover, clear procedures for the creation and operation of NIBs and GRSs should be established well in advance to ensure immediate functionality.Footnote 156 According to Zeith and Seneviratne,
[e]xperience shows that in order to deliver their humanitarian objective, these processes should not only be well resourced and coordinated across government agencies, but also legally and operationally compatible with the systems and processes of partners and allies as well as the CTA itself.Footnote 157
Accounting for the dead in non-international armed conflicts
For NIACs, IHL is silent on the processes that parties need to put in place to comply with obligations to record and transmit information on the deceased.Footnote 158 Nevertheless, under customary law, to facilitate future identification, parties must record all available information on the dead prior to their final disposition and mark graves, and they must provide families with any information on the fate of their relatives.Footnote 159 By doing so, parties ensure that individuals are not unaccounted for due to war and uphold the families’ right to know.Footnote 160
In practice, States have put in place mechanisms or processes to search for those reported missing in the context of NIACs, whether alive or dead, and these are often premised on the continued application of these obligations after the end of conflict.Footnote 161 For instance, during the peace negotiations between the Government of Colombia and the former Revolutionary Armed Forces of Colombia – People’s Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP), both parties committed to implementing immediate confidence-building measures to support the search for, location, identification and dignified return of persons missing in connection with the armed conflict.Footnote 162
To establish practical solutions, parties to NIACs should consider concluding agreements to record and transmit information on detained persons, including those who have died, and to facilitate the search for the missing and identification of the dead. This could be done, for instance, by resorting to special agreements concluded under Article 3 common to the four Geneva Conventions (common Article 3), in order “to apply, in addition to common Article 3, ‘other provisions’ of the Geneva Conventions that are not formally applicable in a non-international armed conflict”.Footnote 163
Respecting and protecting the dead in wars
Contemporary armed conflicts show that degrading and humiliating treatment of the dead continues to occur with disturbing frequency, despite IHL seeking precisely to avoid this. The rules of IHL explicitly integrate the notion of dignity after death and the obligation to respect the dead. Although IHL treaties do not define “respect” and “dignity” in their application to the dead, these notions are implicit in warring parties’ positive and negative obligations.
In its ordinary meaning, “dignity” refers to being worthy of respect.Footnote 164 In international law, the adoption of the 1949 Geneva Conventions can be seen as the “first consolidation of human dignity”, with subsequent phases in IHRL and international criminal law.Footnote 165 Importantly, the International Criminal Tribunal for the former Yugoslavia (ICTY)Footnote 166 has asserted that
[t]he essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person …. The general principle of respect for human dignity is … the very raison d’être of international humanitarian law and human rights law; indeed in modern times it has become of such paramount importance as to permeate the whole body of international law.Footnote 167
In the Geneva Conventions, the concept of “dignity” is explicitly found in common Article 3’s prohibition against “outrages upon personal dignity”, later reaffirmed in the Additional Protocols.Footnote 168 Meanwhile, referring to the “dignity” of the dead as the purpose underpinning Article 120 of GC III and other IHL rules on the dead, the ICRC Commentary on GC III notes that the deceased’s bodies “are to be treated honourably and with respect, their identities ascertained and their graves marked and respected”.Footnote 169 In turn, the fundamental concept of human dignity is at the root of the standard of humane treatment, which “is in truth the ‘leitmotif’ of the four Geneva Conventions”.Footnote 170 This obligation requires that protected persons be treated humanely at all times; in other words, their inherent human dignity must always be respected.Footnote 171 In this way, the obligation establishes a minimum standard of treatment and sets out non-exhaustive types of prohibited ill-treatment that apply to enemies and civilians alike in both IACs and NIACs.Footnote 172
Specifically concerning the dead, the prohibitions on outrages upon personal dignity, on mutilating, and on despoiling the dead stem from, and concretize, the obligation to treat the dead respectfully.Footnote 173 The “principle of respect for the remains of the deceased and for gravesites” was expressly incorporated in IHL through Article 34(1) of AP I.Footnote 174 As noted in the ICRC Customary Law Study, it has also been argued “that the obligation to respect the dead is inherent in common Article 3 of the Geneva Conventions”.Footnote 175 Under this article, parties to the conflict must treat “[p]ersons taking no active part in the hostilities”, including those placed “hors de combat by sickness, wounds, detention, or any other cause”, humanely in all circumstances and without any adverse distinction. The article prohibits, “[t]o this end”, a number of acts “with respect to the above-mentioned persons”, including outrages upon personal dignity.Footnote 176 As will be further explained below, in the context of international criminal law, States have explicitly recognized that the specific prohibition against outrages upon personal dignity under common Article 3 applies to the dead.
As Gureghian Hall argues concerning the war crime of outrages upon personal dignity, the jurisprudence of tribunals after the Second World War and the widespread criminalization of the mistreatment of the dead in domestic frameworks clearly support “the notion that IHL prohibits the maltreatment of the dead and that such maltreatment entails individual criminal responsibility”.Footnote 177 Beyond this, national courts have explicitly found that the dead qualify as “persons” protected by IHL, and the Geneva Conventions in particular, and that the clarification in the Elements of Crimes adopted under the 1998 Rome Statute of the International Criminal Court (ICC) that the dead are “persons” for the purposes of the war crime of “outrages upon personal dignity”Footnote 178 was reflective of customary IHL at the time.Footnote 179 These national courts were specifically addressing outrages upon personal dignity as an IHL prohibition and war crime, but they did not necessarily preclude the possibility that other IHL rules protecting persons more generally could also be relevant to dead persons. The logical implication of States’ confirmation in the Elements of Crimes that the war crime of outrages upon personal dignity as a serious violation of common Article 3 applies to dead persons is that the dead can qualify as persons “taking no active part in hostilities” or persons hors de combat for the purposes of common Article 3. This in turn raises the possibility that not only the specific prohibition against outrages upon personal dignity but potentially other specific provisions or aspects of the general obligation of humane treatment under common Article 3, insofar as they can be relevant to the dead, may also apply.Footnote 180
A similar analysis could be applied to, for instance, the obligation of humane treatment under Article 13 of GC III and Article 27 of GC IV. As will be discussed below, the ICRC has concluded that the “protection against insults and public curiosity” found in these provisions applies also to PoWs and protected persons who have died. From this it follows that other specific GC IV provisions, including aspects of the general requirement of humane treatment under Article 27, which apply to “protected persons” more generally could potentially be relevant insofar as they can be applied to dead persons.Footnote 181 The ICRC Commentary to Article 34 (“Remains of Deceased”) of AP I, for instance, states that even if certain dead persons are not covered by that article, “such persons are covered by Article 27 of the fourth Convention”.Footnote 182 As Article 27 requires “respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs”, and states that “they shall at all times be humanely treated”, this “implies, at the very least, a respect for the remains of the dead and a decent burial in accordance with their religious practices”.Footnote 183 That said, the possible extent of humane treatment obligations remains subject to further exploration.
Finally, other IHL rules flowing from the requirement to treat the dead honourably and to preserve their dignity include obligations on the final disposition of the dead and on the respect of graves and other burial locations. These obligations have positive and negative components, which require parties to refrain from committing certain acts and to protect individuals from (or to prevent the commission of) such acts by other actors. The following sections will elaborate on some important elements of the obligations to respect the deceased and their graves.
The prohibition against outrages upon personal dignity and public curiosity
The IHL prohibition against “outrages upon personal dignity” is of crucial importance for the protection of the dead. Although it is not defined in IHL treaties, the ICTY has characterized this offence as “an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity”.Footnote 184 The prohibition is specifically mentioned in common Article 3 in relation to NIACs (“outrages upon personal dignity, in particular humiliating and degrading treatment”) and in Article 4(2) of Additional Protocol II (AP II). An “outrage on personal dignity” of a protected person would also violate various other GC III and GC IV provisions applicable in IACs, and is explicitly mentioned in Article 75(2)(b) of AP I.Footnote 185 This prohibition also applies more generally as a matter of customary IHL.Footnote 186
The Rome Statute of the ICC furthermore recognizes “committing outrages upon personal dignity, in particular humiliating and degrading treatment”, as a war crime in all armed conflicts (including, in the context of NIAC, specifically as a “serious violation of article 3 common to the four Geneva Conventions”).Footnote 187 The ICC Elements of Crimes refers to the war crime being committed when the perpetrator has “humiliated, degraded or otherwise violated the dignity of one or more persons”, noting that in this context “‘persons’ can include dead persons”.Footnote 188 Outrages upon personal dignity (including desecration of the dead) also constitute war crimes under customary IHL.Footnote 189 As recent conflicts demonstrate, such treatment of the dead is unfortunately all too common, making this clarification particularly important. Furthermore, “relevant aspects of the cultural background of the victim” have to be considered, covering treatment that is humiliating to a person of a certain religion, culture or nationality even if it is not considered so by others.Footnote 190 For instance, many societies view photographing human remains and publicizing such images as “unethical, insensitive and deeply harmful”.Footnote 191 To amount to outrages upon personal dignity, such acts do not necessarily have to be committed against the “war dead”; they can be committed against any deceased person in the context of an armed conflict.
Concerning the exposure of the dead to public curiosity, the ICRC Commentary to Article 34 of AP I interprets “respect” of the dead to include “preventing them from being despoiled and from being exposed to public curiosity, by placing them in an appropriate place before burial or cremation”.Footnote 192 Meanwhile, the Geneva Conventions require that in IACs, PoWs and protected persons must be protected against “insults and public curiosity”.Footnote 193 The Commentary to Article 13 of GC III clarifies that these provisions extend to deceased PoWs, whose remains must be treated respectfully, and covers the disclosure of photos and videos “irrespective of which public communication channel is used, including the internet”;Footnote 194 a similar interpretation would apply to Article 27 of GC IV.Footnote 195 Furthermore, with regard to Articles 17 of GC I and 20 of GC II, the respective Commentaries note:
Identification [of the dead] must be carried out in a manner that respects the Party’s other obligations under international humanitarian law. Thus, for example, if photographs or video footage are taken of the deceased, these must not be made public or used for propaganda purposes. Sensitivity is required if the images are shown to the family of the deceased.Footnote 196
In NIACs, as already noted, States have recognized that the prohibition against outrages upon personal dignity under common Article 3 applies to dead persons. Although common Article 3 does not explicitly address the duty to protect against insults and public curiosity, exposure of dead bodies to public curiosity could, depending on the circumstances, constitute an outrage upon personal dignity even without mutilation of the bodies, particularly if done in a degrading way.Footnote 197 For example, with regard to an arrest warrant where the ICC held that there were reasonable grounds to believe that the acts concerned constituted the war crime of murder, in assessing the gravity of the case the Court noted that “the manner in which the crime was committed and publicized [by posting the videos showing the executions on social media] was cruel, dehumanizing, and degrading”.Footnote 198 The International Criminal Tribunal for Rwanda (ICTR) and the ICTY have also pronounced themselves on acts concerning the dead, but have, so far, made no convictions for the war crime of outrages upon personal dignity.Footnote 199 Several domestic war crimes trials in Finland, Germany, the Netherlands and Sweden have elaborated on this war crime specifically concerning deceased persons;Footnote 200 for example, the Finnish District Court of Kanta-Häme found that the act of a fighter posing with the severed head of an enemy soldier, who was thus hors de combat, and publishing it on his Facebook profile – making it “freely viewable by a very large number of Facebook users – was directed “at the personal dignity of the person depicted” and was “humiliating and degrading” to “such degree as to be generally recognised as a crime against personal dignity”.Footnote 201
The advent of smartphones and social media, with the increased presence of mass media in wars, raises additional questions for IHL and the role not only of media organizations but also of individual journalists, social media platform content moderators and even our next-door neighbours.Footnote 202 As seen, the publication of images of the dead may violate IHL and even amount to war crimes, and it also poses questions on respect for relevant human rights.Footnote 203 At the same time, personal information, photographs, videos and other visual materials of those detained or killed in wars can support the identification processFootnote 204 and the investigation and prosecution of international crimes,Footnote 205 for instance through the use of data obtained from online open-source investigationsFootnote 206 and even by civilians with their smartphones.Footnote 207
It is thus necessary to strike a reasonable balance between the benefit of making information public and the possible humiliation or degradation of the individual.Footnote 208 Any materials enabling identification of individual persons must generally be regarded as subjecting them to public curiosity, and such materials may therefore not be transmitted, published or broadcast by warring parties.Footnote 209 If there is a compelling public interest or if it is in the person’s vital interest, this may tip the balance and parties may exceptionally release certain material publicly, but only insofar as this respects the individual’s dignity.Footnote 210 In particular, images of protected persons in humiliating or degrading situations may not be transmitted, published or broadcast unless there is a compelling reason of public interest to do so and the images do not disclose the identities of the individuals concerned.Footnote 211 Importantly, in general, the law already contains more suitable and effective processes that support the identification of the deceased, including by requiring the establishment of various pathways to account for people in wars while ensuring respect for families.Footnote 212 Furthermore, the dignity of families and the additional suffering that may be caused to them, including by making such images public, need to be considered.Footnote 213 However, photographs or other visual material, including clothing, other personal belongings or tattoos, can be shared with relevant authorities and humanitarian organizations for identification purposes.Footnote 214
The prohibitions against mutilating and pillaging the dead
A related IHL rule is the prohibition against the mutilation of dead bodies in IACs and NIACs under customary IHL.Footnote 215 Mutilation has also been recognized as an example of outrages upon personal dignity.Footnote 216
Moreover, parties are required to prevent the despoilment of the dead; this is a long-standing IHL obligation.Footnote 217 Despoilment as a form of pillage – which is in turn defined as the appropriation or obtaining of public or private property by an individual without the owner’s consent, in violation of IHLFootnote 218 – is prohibited.Footnote 219 For the deceased, the absence of consent must be presumed.Footnote 220 Pillage is also recognized as a war crime under the Rome Statute.Footnote 221 In simple terms, it is prohibited to steal the personal possessions of the dead in wars,Footnote 222 as this disrespects not only their dignity but also that of their families and hinders the return of their valuables.Footnote 223
Mutilation, pillaging and despoilation of the dead all constitute war crimes under customary IHL.Footnote 224 Mutilation and pillage of the dead are therefore subject to individual criminal responsibility under universal jurisdiction and obligations to investigate and prosecute.Footnote 225 Other forms of ill-treatment of the dead, including cannibalism, desecration of bodies, taking body parts as trophies, stealing from the dead, exposing corpses to public display in order to humiliate or denigrate, burial in mass graves, preventing honourable burial and reburial, and the disrespect of religious practices in the treatment of corpses, have been prohibited and criminalized.Footnote 226 Such acts may also constitute prohibited mutilation, outrages upon personal dignity or pillage under IHL and amount to war crimes.
Parties to armed conflicts are prohibited from directly committing acts such as these, and they also have a due diligence obligation to protect against such acts by other actors. For instance, on the battlefield, parties must search for the dead and guard them in order to prevent their despoilation or any ill-treatment, and to enable respectful burial.Footnote 227
Laying the dead to rest: Rules on the final disposition of remains and their resting places
Once parties to conflicts have recovered the dead and collected all relevant information and their personal effects, IHL requires parties to respectfully dispose of their remains and to respect and mark graves.Footnote 228 These rules seek to preserve the dignity of the deceased and prevent them from going missing.Footnote 229 In particular, IAC treaty provisions address in detail the meaning and content of obligations on the final disposition of the deceased and on their resting places.Footnote 230 These will be addressed in the following four subsections, while corresponding NIAC obligations are addressed in the final subsection.
Respectful final disposition of the dead
In IACs, parties must, first and foremost, ensure that all the dead – regardless of the party to which they belong – are honourably buried (or cremated), individually as far as circumstances permit and, if possible, according to the rites of their religion.Footnote 231 This applies to those who die at sea or on land.Footnote 232 Parties must also ensure the grouping of graves of members of the armed forces, if possible according to the deceased’s nationality.Footnote 233 Generally, it is preferable to return remains so that families can lay their relatives to rest and mourn them according to their religious beliefs and practices.Footnote 234 Prior to burial or cremation of protected persons under GC I, II and III, a careful examination of the body is required.
The obligation to bury or cremate the dead individually necessitates a strict reading.Footnote 235 Collective graves must only be used when circumstances do not permit individual ones or, for PoWs and internees, if unavoidable circumstances require it.Footnote 236 Indeed, “[a] common grave conflicts with the sentiment of respect for the dead, yet, all too often, the dead are ‘thrown pell-mell in a common grave’”.Footnote 237 Individual graves (or individual cremations) are also preferable for practical reasons; they make the eventual return of remains to families possible and facilitate subsequent identification efforts and criminal accountability processes. Today, the ability to temporarily conserve bodies will likely render collective burials unnecessary; it is only in circumstances not allowing individual burial that “burial in a collective grave is permitted as it is preferable to the deceased being left on the battlefield”.Footnote 238 In these exceptional cases, certain minimum – and absolute – requirements need to be respected; parties cannot simply dump remains in mass graves.Footnote 239
To comply with the duty of honourable burial, parties must respect the deceased’s body, the burial site and the funerary ceremony; this has positive and negative components.Footnote 240 Prohibited behaviours in this regard include deliberate contamination of and offensive acts on the site and burying the dead with potentially offensive items.Footnote 241
Burial and cremation: Equivalents in IHL?
While the Geneva Conventions’ prescriptions regarding the dead refer to both burials and cremation, burials are clearly the preferred option and cremation an exceptional measure.Footnote 242 Under IHL, cremations are only permissible for “imperative reasons of hygiene” and for reasons related to the deceased’s religion or in accordance with the individual’s express wishes.Footnote 243 In practice, the first exception rarely applies; today we know that dead bodies pose far lesser public health risks than what was believed in 1949.Footnote 244 In the limited situations where the religion of an individual favours cremation over burial, cremation is possible, but the final decision rests on the individual’s wishes and those of their families.Footnote 245 Finally, while cremation in accordance with the express wishes of the deceased person may be lawful, unidentified persons must not be cremated.Footnote 246 In exceptional cases of cremation, to ensure that the deceased can be identified and do not become missing persons, death certificates or authenticated lists of the dead must include the circumstances surrounding cremation and the reasons for it.Footnote 247 Beyond this, in any case, IHL rules dealing with the remains of the deceased apply, mutatis mutandis, to their ashes.Footnote 248
Obligations to respect, mark and maintain graves
Flowing from the obligation to respect the dead, IHL requires that parties to IACs ensure respect for graves.Footnote 249 This obligation is linked with the obligation of the parties to set up a GRSFootnote 250 and has negative and positive elements. Parties must not disrespect graves, prohibiting acts including “vandalizing or removing headstones, razing or dismantling gravesites, and disinterring bodies” (unless IHL exceptionally permits exhumation), and they must also ensure respect by others.Footnote 251 Moreover, IHL prohibits the destruction (or seizure) of enemy property unless required by imperative military necessity; this may also amount to a war crime.Footnote 252 Such destruction has taken various forms, including the bulldozing of cemeteries. Meanwhile, in the context of attacks, any damage to or destruction of graves or of other locations containing human remains is governed by the conduct of hostilities rules, including the principles of distinction, proportionality and precautions.
Graves and other locations containing human remains are “normally dedicated to civilian purposes”.Footnote 253 As such, they are protected against direct attacks, unless and for such time as they become military objectives.Footnote 254 The mere presence within such sites of combatants or military objectives does not, alone, turn them, or parts of them, into military objectives. Even when these sites are used for military purposes in a manner that would turn certain parts of them into military objectives, warring parties must respect all conduct of hostilities rules and limit their attacks to only those parts which have become military objectives. In the conduct of military operations, constant care must be taken to spare civilian objects, and parties must take all feasible precautions to avoid, and in any event to minimize, incidental damage to locations holding human remains.Footnote 255 Attacks expected to cause disproportionate damage to these, alone or in combination with civilian harm and damage to other civilian objects, are prohibited.Footnote 256 Additionally, parties must take all feasible precautions to protect such sites under their control against the dangers resulting from military operations, including by avoiding – to the extent feasible – using such locations for military purposes.Footnote 257 Under the Rome Statute, “[i]ntentionally directing attacks” against civilian objects, including cemeteries or other locations holding human remains, and “[i]ntentionally launching an attack” knowing it will cause incidental damage to civilian objects “which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” are war crimes.Footnote 258
Under IHL, States and parties to armed conflicts are obliged to respect and protect cultural property, with varying legal protections depending on the property in question. Accordingly, if graves or other locations containing human remains qualify as cultural property, the damage that can be inflicted on them by warring parties would be further limited. Already in the seventeenth century, Hugo Grotius referred to the express prohibition of attacks against “things which have been devoted to sacred uses”, including “structures erected in honour of the dead”.Footnote 259 For States parties to AP I, directing acts of hostility against historic monuments or places of worship (including churches holding human remains) constituting the cultural or spiritual heritage of peoples, or using such sites in support of the military effort, is prohibited.Footnote 260 Under customary IHL, parties must take special care in military operations to avoid damage to, inter alia, buildings dedicated to religion and historic monuments, unless they are military objectives.Footnote 261 Furthermore, property of great importance to the cultural heritage of every people must not be directly attacked or used for purposes likely to expose it to destruction or damage, unless imperatively required by military necessity.Footnote 262 In addition, any form of theft, pillage or misappropriation of such property is prohibited, as are any acts of vandalism directed against it.Footnote 263
Finally, another component of respect for graves expressly addressed in the Geneva Conventions and AP I is the obligation of parties to mark and properly maintain graves so that they can always be found.Footnote 264 This requires placing and maintaining name plates on graves, which is necessary for any future exhumation and for families to access graves, even long after the end of the conflict.Footnote 265 Although these provisions do not indicate the duration of the obligation to maintain graves, Article 34 of AP I establishes a procedure for this, which has been employed in practice regardless of the Protocol’s applicability.Footnote 266
Beyond the protection of locations containing human remains, as seen above, IHL protects the deceased’s dignity as such and contains obligations to ensure that they are respected. Attacks against, or the destruction of, such sites would, beyond the damage to the sites themselves, have nefarious effects on the human remains contained within them, which would once again be disturbed and become unaccounted for, unleashing a fresh wave of suffering for families.
The legality and legitimacy of exhumations
Under IHL, exhumations are generally prohibited, except to return remains to the deceased’s home country and to their families or if justified by “overriding public necessity, including cases of medical and investigative necessity”, but always ensuring respect for the dead.Footnote 267 As explained by a co-sponsor for the amendment resulting in Article 34(4) of AP I, the drafters “sought to strike a balance between the general principle of respect for graves and the need to exhume” exceptionally, where there are legitimate grounds for it.Footnote 268
Legitimate grounds of “overriding public necessity” may include cases where exhumations are necessary to allow identification, determine the cause of death or investigate serious IHL violations, as well as for public health and sanitation reasons or in case of flood threats in cemeteries.Footnote 269 Yet another reason is enabling recovery and decent burial, which gives effect to IHL obligations on respecting the deceased; this could include regrouping graves in certain cases.Footnote 270 Exhumations may also be the only way to identify the deceased and comply with their families’ right to know, which could also militate for exhumations.Footnote 271 Ideally, the families’ wishes, including those based on religious and cultural practices and beliefs, should be taken into account, including in the initial decision, and taking particular care to ensure that they are not being manipulated or further harmed.Footnote 272
Non-international armed conflicts: Respecting the dead and their graves
In NIACs, IHL obliges parties to dispose of the dead respectfully and to respect and properly maintain their graves. AP II explicitly requires the decent final disposition of the dead,Footnote 273 and it is also “likely that further detailed rules supporting the requirement of decent disposal of the dead and respect and proper maintenance of their gravesites are contained in domestic legislation”.Footnote 274 Although NIAC provisions do not explicitly refer to a prior careful examination of the deceased, a forensic examination is essential to confirm death as well as to establish the identity of the deceased as required by IHL.Footnote 275 Furthermore, State practice shows that measures envisaged to identify the dead are often prescribed by domestic law and include “the recording of autopsies, the establishment of death certificates” and “exhumation combined with the application of forensic methods, including DNA testing”.Footnote 276 As addressed in the above section on “Complementing IHL’s Protections for the Dead and Their Families through International Human Rights Law”, IHRL also imposes obligations on States related to the dead, including, in particular, measures to identify the dead and investigate the cause of death, in order to protect the right to life.
Moreover, although common Article 3 and AP II do not expressly require the marking of graves or the recording of their location, customary IHL obliges parties to record all available information prior to final disposition of the dead and to mark graves’ locations.Footnote 277 The Commentary to AP II specifies that the dead are “entitled to be paid their last respects, i.e., they must be decently buried … after a religious service, if required”.Footnote 278 Marking graves and recording their location are also important to give effect to the right to know.Footnote 279
Ensuring that graves are marked and that information on their location is available is also a fundamental prerequisite for compliance with other IHL obligations of parties to NIACs, including those on identifying the dead and informing families.Footnote 280 It can also facilitate families’ access to graves and the potential return of remains. In turn, obligations to respect graves and to mark and maintain them flow from the obligation to respect the dead and to preserve their dignity.Footnote 281 Importantly, the rules on the conduct of hostilities, on destruction of enemy property unless required by imperative military necessity, and on cultural property also apply in NIACs and can serve to protect locations containing human remains.Footnote 282 As Sivakumaran notes, “[r]espect for graves can be considered akin to the prohibition on despoliation of the dead, albeit a broader obligation, and would prohibit the digging up of graves in order to hide casualties and the flattening of grave sites”.Footnote 283 Finally, the principle that cremations and exhumations remain exceptional also flows from the obligation to respect the dead and should be applied in NIACs. Indeed, as noted in the above section, there are various legal and humanitarian objections to cremation; notably, it could prevent future identification, potentially erase crimes – as happened in the Second World WarFootnote 284 – and clash with some religious and cultural practices and beliefs.Footnote 285 In any case, should the deceased’s family wish to cremate their relative, they can still do so afterwards.
Ultimately, although the prescriptions regarding burials and respect for, marking and maintenance of graves are far less detailed in NIACs, and the mechanisms and processes to be put in place are left to the parties’ discretion, the core legal protection is largely equivalent to that guaranteed in IACs. Moreover, when looking at the IAC treaty provisions on this, “[i]t is likely that some of these requirements also apply in non-international armed conflicts on the basis of national law”.Footnote 286 In any case, “respecting personal dignity should be the guiding principle for the treatment of dead bodies in a NIAC in the absence of any other more prescriptive rules in IHL”.Footnote 287
The return of the dead to their families
When there is no body to bury, there appears to be a universal traumatizing effect.Footnote 288
Returning the bodies of those who have died in the context of war is a humanitarian imperative with significant importance in international law, forensic science and religious studies.Footnote 289
IHL in international armed conflicts on return
In IACs, relevant treaty provisions are broadly framed, emphasizing the need for agreements between parties to facilitate the return of the deceased to their home country or their families upon their request. These rules distinguish between those who die due to hostilities and those who die in detention.
The return of military personnel who have died in areas of military operations, either on land or at sea, is not the object of a detailed procedure in the Geneva Conventions, which refer only to their possible transportation to their home country and eventually to their families.Footnote 290 Returning the deceased is therefore dependent on other GC I and GC II obligations.Footnote 291 In this regard, parties must take all possible measures without delay to search for the dead, record information on them and ensure a careful examination prior to burial or cremation, refraining in some cases from burial in order to facilitate their return.Footnote 292 Indeed, the obligation to ensure honourable burial “can be satisfied in different ways”, including by returning bodies to their families for burial or cremation.Footnote 293 This ensures that the deceased can be laid to rest in accordance with their religious beliefs and customs and allows families to properly mourn their loved ones.Footnote 294 When parties make such decisions, information regarding the individual’s return should be transmitted to the ICRC’s CTA.
Where civilians are killed due to hostilities or occupation, GC IV does not address the return of their remains to their families. It is thus essential to rely on Article 27 of GC IV, AP I, and relevant rules of customary IHL. Article 27(1) of GC IV affirms the rights of protected persons: their religious practices must be respected, including by returning the remains of the deceased to their families in order to carry out burial rites in accordance with their religious practices.Footnote 295 Article 34 of AP I extends protection to those who would not receive more favourable treatment under the Geneva Conventions, and develops obligations on the return of the deceased.Footnote 296 It specifically requires High Contracting Parties in whose territory graves or human remains are found to conclude special agreements to facilitate the return of those remains, along with personal effects, to the home countryFootnote 297 upon its request or, unless that country objects, upon the request of the deceased’s relatives.Footnote 298 This procedure serves not only the deceased covered therein but also those covered by the Geneva Conventions (combatants and deceased internees),Footnote 299 which do not provide details on this. Lastly, AP I also establishes a procedure to follow in the absence of such agreements.Footnote 300
In any case, customary IHL establishes the obligation for all parties to an IAC to endeavour to facilitate the return of the deceased upon request of the party to which they belonged or upon request of their families; the personal effects of the deceased must also be returned.Footnote 301 This rule, which imposes an obligation of means, is reflective of existing provisions on the dead in the Geneva Conventions and AP I;Footnote 302 it applies to all those who die in relation to armed conflicts.
In relation to PoWs and internees who die in captivity, the Geneva Conventions offer limited guidance on the potential return of their remains. For PoWs, GC III only refers to the obligation of the party in control of the territory to care for graves and for the records of any subsequent moves of the deceased,Footnote 303 including return to their home country. In relation to internees, the GC IV obligation to ensure burial may include facilitating return to the deceased’s country of origin or residence. Where cremation occurs, Article 130 of GC IV requires that the ashes be transferred to the next of kin upon request and as soon as possible. While GC III does not mirror this requirement, a consistent humanitarian approach would suggest that similar consideration be given to the ashes of PoWs, with due regard for the wishes of their families by the home country.Footnote 304
As outlined above, beyond the (sometimes vague and limited) guidance provided by treaty and customary IHL on the return of the deceased, State practice in IACs has consistently demonstrated a commitment to facilitating return. For example, military manuals foresee the return of human remains to their home country and their families,Footnote 305 and some have even prioritized return at the end of an armed conflict.Footnote 306 Based on its mandate, the ICRC has also acted as a neutral intermediary between (former) parties to IACs in order to facilitate the transfer and return of human remains from both sides.Footnote 307
IHL in non-international armed conflicts on return
In the context of NIACs, no treaty provisions address the return of remains or of the deceased’s personal effects, although AP II does impose an obligation for parties to take all possible measures without delay to search for the dead.Footnote 308 Although Rule 114 of the ICRC Customary Law Study only applies in IACs, its commentary adds that there is “a growing trend towards recognition of the obligation of parties to a conflict to facilitate the return of the remains of the dead to their families upon their request”.Footnote 309 Although this is a gap in the law, other IHL obligations need to be considered. For instance, returning the deceased is in line with the obligation of parties to respect family life as far as possible and with families’ right to know.Footnote 310 Moreover, different resolutions of the International Conference of the Red Cross and Red Crescent and the UN recognize the importance of returning the bodies to families.Footnote 311
In the absence of a clear-cut legal obligation, one must also look to practice, which shows that States and NSAGs have taken various measures in this regard. This has occurred during active hostilities, in the aftermath of hostilities or in post-conflict settings. For example, States and (former) parties to armed conflict have taken measures necessary to return bodies to their families,Footnote 312 while some NSAGs have also returned bodies to their families or allowed humanitarian organizations like the ICRC to facilitate such returns.Footnote 313 In this vein, State practice supports the “growing trend” mentioned above.Footnote 314
Whether in the context of IACs or NIACs, forensic practice and standards, which recognize the need for authorities to take all appropriate measures to return the remains and the belongings of the deceased under dignified conditions and in accordance with the wishes of their families, also need to be considered.Footnote 315 The development of such forensic practice and standards also influences the way in which States and parties to conflicts commit to the humanitarian imperative of returning the deceased.
IHRL on return
Human rights law complements the protections afforded by IHL concerning the deceased, including in relation to the return of their remains to their families. The ICPPED explicitly requires States Parties to “take all appropriate measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains”.Footnote 316 In 2019, the Committee on Enforced Disappearances issued its Guiding Principles for the Search for Disappeared Persons, which recognize return as an integral part of the search and integrate it in several principles.Footnote 317 Moreover, the UN Human Rights Committee (HRC) has also affirmed that the “[r]elatives of individuals deprived of their life by the State must be able to receive the remains, if they so wish”.Footnote 318
The return of the deceased to their families has also been analyzed by regional courts. The European Court of Human Rights (ECtHR) has dealt with this issue from various perspectives. It has, for instance, considered the return of the deceased through the rights of their families, including protection from inhuman or degrading treatmentFootnote 319 and the right to private and family life.Footnote 320 It has also specifically recognized that actions impeding the return of bodies to families, like excessive delay in restituting a body or refusal to transfer ashes, can be considered an interference with the right to private and family life.Footnote 321
The Inter-American Court of Human Rights (IACtHR) has consistently affirmed – as part of the reparations it mandates – that States are obliged to locate, identify and return the remains of victims of extrajudicial executions or enforced disappearances to families.Footnote 322 This obligation is not merely procedural; the Court has explicitly recognized that the act of returning the deceased is integral to restoring their dignity, honouring their memory and enabling families to carry out proper burial rites.Footnote 323 In this way, the return of remains serves both a symbolic and practical role in the broader framework of truth, justice and reparation.Footnote 324
Issues of practice: Building a culture of respect for IHL
Criminal accountability and investigations of deaths
IHL establishes clear obligations to investigate war crimes and, where appropriate, to prosecute those responsibleFootnote 325 and to suppress other acts that are contrary to IHL rules,Footnote 326 including those committed against the dead. As previously noted, IHRL also includes obligations on the investigation of alleged violations.Footnote 327 In this regard, States must enact adequate criminal laws to ensure that crimes are investigated and prosecuted.Footnote 328 The ICRC contributes to these efforts by urging States to investigate and prosecute serious violations of IHL and by supporting their efforts to adopt legislation and take other measures implementing their accountability obligations.Footnote 329
In armed conflicts, the investigation of deaths plays a critical role in determining if these resulted from a criminal act.Footnote 330 As seen above, IHL obliges the Detaining Power to conduct an official enquiry when a PoW or internee dies because of the acts of any person, including other detainees or the detaining forces, or because of unknown causes.Footnote 331 The Geneva Conventions and their Additional Protocols do not provide guidance on the investigation of deaths outside these specific circumstances;Footnote 332 in practice, however, States have national laws or policies requiring an investigation into combat-related deaths of both their own and enemy combatants.Footnote 333 Evidence obtained from the deceased can play a crucial role in establishing the circumstances surrounding the death, including the commission of war crimes.Footnote 334 In certain cases, serious violations of the rules relating to the death itself or in respect to the dignity of the dead may amount to war crimes or other international crimes. This includes wilful killing and outrages upon personal dignity, including the mutilation of dead bodies. Measures to identify the dead and investigate the cause of death are also required by IHRL, in particular to protect the right to life.Footnote 335
Balancing the imperative to collect and preserve evidence for criminal investigations, including from human remains, with IHL obligations to account for the deceased and to inform their families may give rise to practical challenges.Footnote 336 In armed conflicts, parties must ensure that criminal investigations do not obstruct the transmission of information about the dead to the ICRC’s CTA or to families. This requires the establishment of clear procedures to enable the investigation of potential crimes and to account for persons, as required by IHL. Similar challenges can arise in post-conflict contexts, where efforts to search for missing persons – alive or dead – coincide with criminal investigations, including on enforced disappearances. To address these complexities, it is critical to establish coordinating procedures between both processes in order to ensure complementarity and that they align with international legal obligations and standards.Footnote 337 While criminal investigations follow strict evidentiary rules, search mechanisms may use more flexible methods; however, if these mechanisms keep perpetrator-identifying information confidential, such confidentiality should be limited in order to avoid obstructing criminal investigations.Footnote 338 Ultimately, what matters is that crimes are thoroughly investigated, the dead are searched for and identified, and families are given the answers and closure they deserve.
Enhancing the protection of the deceased in non-international armed conflicts: The obligations and practice of NSAGs
In the context of NIACs, NSAGs are bound by IHL, including the minimum rules on the dignified treatment of the dead and respect of their families. However, continued work to influence the behaviour of NSAGs, including by identifying and understanding the various sources shaping their behaviour (formal and informal), is essential to ensure compliance with their obligations.Footnote 339 Notably, drawing on local beliefs, legal traditions, customs, and practices that align with IHL principles is an important vector to foster NSAG compliance.Footnote 340 For instance, in contexts where Islamic law is a significant component of the value system of NSAGs, Islamic sources, such as provisions/rules/teachings, may be used to protect the deceased and uphold their dignity. As Al-Dawoody notes, these sources “reflect a long-standing practice of parties to conflict accounting for dead bodies, sometimes in great detail”, underscoring a historical commitment to the respectful treatment of the dead within Islamic law and tradition.Footnote 341
To further engage with and influence the behaviour of NSAGs, in 2023 the ICRC published a study on the IHL obligations of NSAGs that hold detainees, illustrated by examples of how to implement these obligations.Footnote 342 This study draws on reported practices and doctrinal sources from eighty-four such groups involved in NIACs across forty-two countries since the 1960s. Among its findings, the study shows how various NSAGs have addressed the treatment of those who die in detention. It documents practices of NSAGs relating to ensuring the respectful handling of the deceased, returning bodies to families if possible, informing relatives or impartial humanitarian organizations like the ICRC of the death, and, where it is unfeasible to return the remains, ensuring dignified burial, grave marking, and the recording of burial sites.Footnote 343
Building on this, the ICRC will soon publish a complementary study on NSAG obligations and practices related to family separation, missing persons and the deceased. This study will draw on practices from over sixty NSAGs operating in NIACs across thirty countries. Preliminary findings show a range of measures taken to protect the deceased, including treating dead enemies with the same respect as the party’s own members, in accordance with their customs and beliefs; coordinating with the enemy to return dead combatants or fighters; recording GPS coordinates or other information regarding the location of graves; NSAG members wearing identification tags on their wrist, neck or waist to facilitate identification in case of death; and ensuring that unidentified remains are buried in individual graves, with documentation and mapping of burial sites.Footnote 344 Practices such as these are key to ensuring real respect for the dead and for their families.
The ICRC’s action on behalf of the dead and their families
The ICRC plays a key role in supporting States on the domestic implementation and effective application of IHL.Footnote 345 It works with States to establish and strengthen relevant institutions, such as NIBs, GRSs and other national mechanisms and medico-legal systems.Footnote 346 It also assists in the development of measures to prevent persons from going missing and to account for those who do (including in detention settings), supports forensic human identification processesFootnote 347 and works closely with States and parties to armed conflict to ensure that the families of those missing receive the support and information they need.Footnote 348 Finally, but importantly, the ICRC engages in a bilateral and confidential protection dialogue with States and NSAGs to reaffirm and call for respect of relevant obligations.
In this context, it is relevant to highlight the role of the ICRC’s CTA, which leads some of these activities, including through its forensic humanitarian action. It is expressly mandated by the Geneva Conventions and AP I to carry out certain tasks in connection with the obligations of parties to IACs set out in the sections above.Footnote 349
The ICRC Central Tracing Agency and its humanitarian forensic action
The CTA plays a key role for those who die in wars. Its conventional mandate stems from the 1929 Geneva ConventionFootnote 350 and is reaffirmed in the 1949 Geneva Conventions and in AP I.Footnote 351 The Statutes of the International Red Cross and Red Crescent Movement, adopted by all States party to the Geneva Conventions, provide that it is the ICRC’s role “to ensure the operation of the Central Tracing Agency as provided in the Geneva Conventions”.Footnote 352
More specifically, under Articles 123 of GC III and 140 of GC IV, the CTA is mandated to collect and transmit information on PoWs and wounded, sick, shipwrecked or dead military personnel in the hands of a party to the conflict, protected persons under GC IV deprived of their liberty,Footnote 353 deceased internees,Footnote 354 and children in occupied territories whose identity is in doubt.Footnote 355 In this regard, the CTA acts as a neutral intermediary between IAC parties, which must record and transmit information on these persons and set up an NIB to transmit information to the CTA.Footnote 356 By collecting and transmitting information between parties to an IAC, the CTA serves as a neutral intermediary and trusted repository, facilitating the flow of information between the parties. In this role, it ensures that information is handled securely and coordinated effectively, with the ultimate aim of keeping families informed. Although Articles 123 of GC III and 140 of GC IV do not elaborate on the relationship between the CTA and the families – only requiring transmission to concerned States – “in practice and for strictly humanitarian purposes, the Agency [also] transmits information directly to the family”.Footnote 357 Beyond this, the CTA carries out other responsibilities concerning deceased individuals. For example, it may assist PoWs and internees with civil administrative matters, such as the transmission of wills. This stems from the obligation of parties to promptly forward the wills of PoWs and internees to the Protecting Power, while also sending a certified copy to the CTA.Footnote 358 These and other tasks can also be carried out based on the ICRC’s right of humanitarian initiative or right to offer its services.Footnote 359
In NIACs, the CTA is not expressly mentioned in treaty or customary IHL but may still offer its services in such conflicts for the deceased and their families. This involvement can be based on the ICRC’s right of humanitarian initiativeFootnote 360 or derive from common Article 3 special agreements.Footnote 361 Importantly, since its inception over 150 years ago, the CTA has been at the heart of the ICRC’s efforts to reunite families and help them stay in touch, prevent people from going missing and search for those who do, respect the dead, and ensure that the rights and needs of families are addressed.Footnote 362
A key feature of the ICRC’s work is its humanitarian forensic action, which has two fundamental objectives: to ensure that the dead are treated with dignity and respect in humanitarian emergencies, including armed conflicts, and to support States and warring parties in fulfilling their IHL obligations.Footnote 363 This includes technical expertise and assistance for the development and strengthening of national medico-legal systems. For instance, in 2024 the ICRC launched the Military Identification Project to help States ensure that during and in the aftermath of war, missing and deceased members of the armed forces are promptly searched for, recovered and identified, and their families informed of their fate and whereabouts.Footnote 364 The ICRC also engages in humanitarian forensic operations directly: a notable example of this is the ICRC-led operation, together with Argentina and the United Kingdom, that posthumously identified 121 Argentine soldiers killed in the 1982 Falkland Islands/Islas Malvinas armed conflict, providing long-awaited answers to their families.Footnote 365
Another key component of this action is the involvement of families, who play an essential role in forensic investigations and other search processes and should be able to participate in these.Footnote 366 Families are often asked to provide ante-mortem information about missing persons as well as biological reference samples to support identifications. Findings concerning the fate of their loved ones are also communicated to them directly. Each stage of this engagement can have profound emotional impacts on families and, if not approached with sensitivity and care, may result in additional trauma. In this context, psychosocial support has become a critical element of forensic investigations, seeking to ensure that interactions with families are guided by a “do no harm” approach and with continuous communication, transparency and respect for their needs and dignity.Footnote 367
For the ICRC to effectively carry out its humanitarian mandate and role in accordance with IHL, compliance by parties to armed conflicts with their IHL obligations, including with regard to the CTA, is a sine qua non condition.
Conclusion
The treatment of the dead in war is not only a legal obligation under international law, but also a common value of our shared humanity. Amidst the growing numbers of casualties and missing persons that we see today, the need to uphold existing protections is more imperative than ever. Proper care for the deceased – through search, identification, respectful burial and, where possible, return to their families – is foundational to their dignity and that of their families; it is also essential for truth, justice and accountability and, in turn, for long-term reconciliation and sustainable peace.Footnote 368
To ensure that obligations are upheld during war, States must establish the necessary legal, institutional and administrative frameworks in peacetime. This proactive approach enables those responsible to activate the required processes swiftly and operate them effectively when a conflict begins, ensuring that IHL rules protecting the deceased are included in their military planning and operations from the outset.Footnote 369 The law’s effectiveness relies heavily on the readiness and commitment of States and parties to armed conflicts to fulfil obligations from the very outbreak of war – without timely and coordinated action, the law’s protective force is diminished. This becomes especially critical in the context of large-scale conflicts, where the amount of casualties can quickly overwhelm existing systems. As armed forces expand their capabilities and develop contingency plans for such scenarios, it is essential that these plans include clear procedures with defined roles and responsibilities for the search, recovery, identification and return of the dead, and for the protection of graves. These measures must not be treated as secondary, but rather as integral to military preparedness and operational conduct. NSAGs, too, can and must take measures to respect the deceased and their families. Collecting and disseminating good practices can be a good vector to influence the behaviour of such groups.
The law is clear, the obligations are known, and there is no justification for non-compliance. Violations of these duties do lasting harm, not only to the memory of the dead and their dignity but also to the fabric of families and societies. Preventing violations and further suffering in war is thus critical. When serious violations of IHL and of other relevant legal frameworks nevertheless occur, these must be investigated and prosecuted. Conversely, when parties to conflict respect their obligations, this contributes to reducing suffering, preventing further violence and atrocities, building trust and fostering pathways to peace. In turn, for any peace to last, peace negotiations and agreements also need to comprehensively address the issue of the missing and the dead.Footnote 370
The dead are silent, but the way we treat them speaks greatly about our commitment to the values of humanity, even in the darkest moments of war. The wounds of war shape the stories of suffering and the aftermath of conflict. How these are addressed – including respect for the dignity of the dead – may shape the road to healing for survivors, families and communities.
Open access
