Hence is it that the office of burial is said to be performed not so much for the man, that is, for the person, as for mankind, that is for human nature.
Hugo GrotiusFootnote 1
Introduction
Spanish philosopher George Santayana, in a quote commonly misattributed to Plato, memorably wrote that “only the dead have seen the end of war”.Footnote 2 The motif of heroic death in battle throughout ancient Greek epic myth similarly emphasized that “[t]o pass by death is also to escape the process of aging” and that “[t]o fall on the battlefield saves the warrior from this inexorable decay”.Footnote 3 Such a conception of death as a merciful delivery from the savagery of the battlefield has persisted since.Footnote 4 But the true tragic record of warfare, from antiquity to modernity, would appear to dispel any such claim that the horrors of war end upon death or that death in war preserves bodies from despoliation. On the contrary, it would appear that, in countless cases, the bodies of deceased combatants fall victim to some of the most barbaric and senseless violence to punctuate armed conflict, even if post-mortem in nature. The disturbingly ancient history of the despoliation and desecration of the corpses of the opposing military emphasizes that the horrors of war faced by soldiers transcend the physical death of combatants.
The mistreatment of corpses during and in the aftermath of armed conflict is a horror of an ancient vintage. Homer’s Iliad features corpse mutilation extensively,Footnote 5 so much so that a rich body of literature has developed drawing on patterns in Homeric depictions of corpse mutilation to construct thematic lessons from its inclusion as a narrative device in understanding broader themes of warfare, honour and theology in ancient Greece and, later, Rome.Footnote 6 Beyond the battlefield, many national jurisdictions have come to criminalize acts of desecrating the dead as “ordinary” domestic offences, drawing rich scholarly discussions concerning whether the dead truly possess interests capable of being harmed and, if so, whether harm to such interests warrants the intervention of criminal law.Footnote 7 As will be discussed, these questions are of continued salience as a matter of international law.
Obligations under international humanitarian law (IHL) relating to the treatment and protection of the dead and related war crimes receive relatively scarce engagement in leading works on IHL.Footnote 8 Even less scholarly attention has been paid to issues of individual responsibility under international criminal law for violations of such jus in bello provisions. The few illuminating studies to date have either focused on the broader IHL framework,Footnote 9 issues of humanitarian forensicsFootnote 10 or the treatment of war crimes against the dead in particular national jurisdictions.Footnote 11 In recent years, the International Committee of the Red Cross (ICRC) has produced several reports and guidelines in relation to the treatment of the dead during armed conflict that clarify both the applicable law and best practices.Footnote 12 In addition, in April 2024, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions published an extensive report assessing the protection of the dead across various legal frameworks, including IHL and international criminal law, but focussing primarily on international human rights law and practical guidance on protections and investigations.Footnote 13
This article seeks to examine and clarify the elements of the war crime of outrages against the personal dignity of the dead, an offence applicable during both international armed conflicts (IACs) and non-international armed conflicts (NIACs) under the Rome Statute of the International Criminal Court (ICC) and customary international law. It first identifies the offence’s basis in IHL, before outlining the scattered and imprecise treatment of the offence in the jurisprudence of international criminal courts and tribunals. The article then turns to the far more extensive engagement with the offence that can be found in the universal jurisdiction case law of continental European States. In doing so, it traces the development of the offence through post-Second World War prosecutions of mistreatment of the dead, vital antecedents to the crystallization of individual criminal responsibility for such acts under customary international law. Reviewing the practice and jurisprudence of domestic courts, the article aims to foster a more detailed understanding of the specific elements and operation of the war crime of outrages against personal dignity when applied to the dead.
Overview of the legal framework applicable to the dead in war
Early instruments
Even in its earlier instruments, the protections of IHL have extended to the wartime dead. The 1880 Oxford Manual on The Laws of War on Land, while a non-binding model for national military manuals, was the first instrument to explicitly outline a prohibition against the despoliation of the dead, with Article 19 providing that “[i]t is forbidden to rob or mutilate the dead lying on the field of battle”.Footnote 14 Article 3 of the 1906 Geneva Convention required that a “careful examination is made of the bodies of the dead prior to their interment or incineration”.Footnote 15 This obligation was reiterated in Article 16 of the 1907 Hague Convention X on Maritime Warfare and Article 85 of the non-binding 1913 Oxford Manual of the Laws of Naval War, which also specified that the dead must be protected “from pillage and ill-treatment”.Footnote 16 The latter obligation was most authoritatively reiterated verbatim in Article 3 of the 1929 Geneva Convention. Article 4 of the 1929 Convention also required that States “ensure that the dead are honourably interred, that their graves are respected and marked so that they may always be found”.Footnote 17 These early instruments laid the groundwork for modern IHL’s treatment of violence against the dead.
Modern international humanitarian law
Contemporary IHL imposes various obligations on belligerent parties with respect to the treatment and disposal of the dead.Footnote 18 These obligations are based both in treaty law – namely, the Geneva Conventions of 1949 and their Additional Protocols of 1977 – and customary IHL, as primarily reflected in the ICRC Customary Law Study of 2005. Firstly, parties must at all times, and particularly after an engagement, without delay, take all possible measures to search for, collect and evacuate the dead without adverse distinction of any kind.Footnote 19 Before disposing of the dead, parties must record all available personal information on the deceased, with a view to identifying their bodies or remains.Footnote 20 IHL also imposes other obligations relating to wills, return of remains and personal artefacts, recording of information, gravesites, and exhumations.Footnote 21 The most pertinent IHL obligation in the context of the present article is that requiring parties to at all times take all possible measures to prevent the despoliation of the dead.Footnote 22 The dead must be disposed of in a respectful manner,Footnote 23 and to the extent permitted by circumstances, parties must ensure that bodies are buried or cremated individually.Footnote 24 Unlike obligations relating to the identification of the dead, which apply only to deceased persons of the “adverse Party”,Footnote 25 the obligation to prevent despoliation applies with respect to all dead, no matter their affiliation.Footnote 26
Furthermore, Article 3(1)(c) common to the four Geneva Conventions (common Article 3(1)(c)) provides for an absolute prohibition on “outrages upon personal dignity, in particular humiliating and degrading treatment”, when committed against protected persons. As will be discussed in greater detail below, whether the dead qualify as persons enjoying such protected status, and thus the extent to which they enjoy the minimum protection of common Article 3, remains a core controversy. In its most recent Commentary on Geneva Convention III (GC III), the ICRC takes the position that the prohibition against “violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment and torture” under common Article 3(1)(a) does not apply when such acts are committed post-mortem, but that the dead do enjoy the protection against “outrages upon personal dignity” under common Article 3(1)(c).Footnote 27 It should be recalled that, while common Article 3 is most commonly discussed in the context of protections applicable during NIACs, this provision provides a set of minimum protections applicable during all armed conflicts, both IACs and NIACs.Footnote 28
International human rights law
The rules of IHL and international human rights law take differing approaches to the dead as subjects of legal protection, with persisting debate over the relationship between the two corpora of law continuing to dominate discussions of their mutual applicability during armed conflict.Footnote 29 That being said, the rights of the dead have not traditionally been embraced by human rights law. It is generally understood that while the procedural limbs of various human rights find application with respect to deceased persons,Footnote 30 substantive human rights obligations do not extend to the dead, with the European Court of Human Rights (ECtHR) reasoning that “the human quality is extinguished on death”.Footnote 31 Even with respect to procedural limbs of rights, such obligations are generally owed to the deceased person’s family or next of kin.Footnote 32 In this vein, it should be noted that the mental suffering caused to family members by virtue of the mutilation or maltreatment of the corpse of a loved one may amount to inhumane or degrading treatment.Footnote 33
The exclusion of the dead from substantive obligations of human rights law is also confirmed in the jurisprudence of international criminal tribunals on crimes against humanity. Unlike war crimes, crimes against humanity do not require any nexus with an armed conflict,Footnote 34 and are rooted in international human rights law rather than IHL. In Tadić, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) concluded that acts of mutilation committed against a corpse could not constitute the crime against humanity of “other inhumane acts”,Footnote 35 opining that while the philosophical proposition that acts against a corpse could be “inhumane” is sound, the clear formulation of all other crimes against humanity as applying only to the living had the necessary implication of confining “other inhumane acts”, a residual subcategory of the offence, only to those acts committed against the living.Footnote 36 For the time being at least, acts of violence against deceased persons can be considered excluded from the direct ambit of international human rights law.
Post-Second World War origins of corpse mistreatment as an international crime
Prosecutions in the Pacific Theatre
The earliest modern international judicial engagement with the ill-treatment of the dead during armed conflict concerned allegations of post-mortem mutilation and cannibalism perpetrated by Japanese soldiers and officers during the Second World War.Footnote 37 While allegations of mutilation and trophy-collecting from corpses also surrounded US service members in the Pacific,Footnote 38 only members of the Japanese armed forces faced criminal prosecution, with the moral revulsion surrounding cannibalism contributing to the perceived severity of the offences.Footnote 39 The International Military Tribunal for the Far East, created to prosecute Japanese leadership for international crimes committed during the war, was the first international court to opine on the criminality of corpse mistreatment under international law. The Tribunal described cannibalism as a “traditional war crime”, observing that members of the Japanese armed forces, including high-ranking officers, participated in the grizzly practice “from choice and not of necessity”.Footnote 40 Curiously, however, the Tribunal did not specifically convict any of the accused of offences relating to cannibalism or corpse mutilation,Footnote 41 perhaps indicating that its obiter on such acts’ criminality was expressive, condemning a practice that was found to be widespread but for which no defendant before the Tribunal was conclusively found to be individually criminally responsible.
The greatest number of post-Second World War prosecutions of corpse mutilation and cannibalism occurred before Australian military courts in New Guinea between 1945 and 1946.Footnote 42 Six such trials of direct perpetrators were conducted. Two were conducted before a military court in Wewak, resulting in one conviction and one acquittal,Footnote 43 and three before a military court in Rabaul, resulting in four convictions and five acquittals, though three convictions were not confirmed by the Australian commander-in-chief, resulting in their invalidity.Footnote 44 The sixth trial, the most significant trial concerning Japanese corpse mutilation, was also conducted before the Rabaul court and concerned Lieutenant-General Adachi Hatazō, commander of Japanese forces in New Guinea, who was tried and found to bear command responsibility for atrocities committed by soldiers under his command, including mutilation and cannibalism of the dead.Footnote 45 Notably, this trial not only featured one of the highest-ranking individuals ever charged or convicted of corpse mistreatment but was also the only case involving such offences before the post-Second World War Australian military courts in which a defendant was formally charged with and convicted of a war crime in relation to the ill-treatment of corpses during armed conflict.Footnote 46
US military courts in the Pacific also convicted several Japanese service members of offences against the dead.Footnote 47 In April 1946, a US military commission at Yokohama convicted two Japanese soldiers of “bayoneting and mutilating the dead body of a United States prisoner of war”.Footnote 48 In a separate August 1946 case, a US military commission at the Mariana Islands tried and convicted Lieutenant-General Yoshio Tachibana and twelve other Japanese officers and soldiers in relation to the torture, killing and post-mortem cannibalism of eight American airmen who had been captured after being shot down in what is often referred to as the Chichijima incident.Footnote 49 Tachibana and a number of other defendants were convicted of violations of the laws and customs of war for removing and consuming the flesh of seven of the American prisoners of war, denying them proper burials, and bayoneting the corpse of another.Footnote 50
These acts of post-mortem mutilation and cannibalism were unequivocally branded by the Mariana Islands commission as violations of “the laws and customs of war and the moral standards of civilised society”.Footnote 51 It is revealing to observe that the commission only used the latter phrase concerning the “moral standards of civilised society” in reference to crimes against the dead, notably omitting it when opining on other violations of the laws and customs of war, including torture and ill-treatment.Footnote 52 This signifies the particularly repulsive character and severe stigmatization that the commission assigned to post-mortem offences.
Prosecutions in the European Theatre
Outside the Pacific Theatre, prosecutions concerning the mistreatment of the dead during the Second World War were limited. An exceptional case was that of Max Schmid, a Nazi medical officer at a battlefield morgue who was convicted in May 1947 by a US military court in Dachau, Germany, for decapitating an unknown deceased US soldier, skinning and bleaching his skull, and gifting it to his wife as a souvenir.Footnote 53 Unlike the majority of the trials in the Pacific Theatre, the Schmid court explicitly branded the offence in question as a war crime and identified Articles 3 and 4 of the 1929 Geneva Convention as the relevant provisions of IHL whose violation furnished the individual criminal responsibility of the accused.Footnote 54 The court also recalled four cases from the Pacific Theatre discussed above to support the criminal nature of the accused’s conduct.Footnote 55
In November 1947, a US military tribunal at Nuremberg declared in the Pohl case that the desecration of the dead, “even without the added offense of killing, is and always has been a crime”.Footnote 56 The tribunal would go on to convict defendant August Frank, a high-ranking functionary in the Main Economic and Administrative Office of the SS, of war crimes and crimes against humanity in relation to, inter alia, the plundering of concentration camp dead for valuables.Footnote 57 In contrast to the cases from the Pacific Theatre and Schmid, the Pohl tribunal was dealing not with physical mutilation of the dead but with the plunder and pillaging of their property, the prohibition of which is lex specialis relative to that of pillage more generally.
Mistreatment of the dead as a war crime under the Rome Statute
It is trite to point out that not every violation of IHL will constitute a war crime.Footnote 58 Thus, while “IHL foresees and in many respects regulates individual criminal responsibility in order to ensure its implementation”,Footnote 59 violations of responsibilities of belligerents to search for, bury and, when possible, return the dead do not generally furnish individual criminal responsibility.Footnote 60 It is principally the obligation to prevent the mistreatment or despoliation of the dead and the extension of the prohibition against humiliating or degrading treatment under common Article 3 to deceased persons that furnishes the criminality of acts of violence committed against the dead.Footnote 61 These prohibitions are the only IHL rules relating to the dead whose violation is presently recognized as imputing individual criminal responsibility, whether committed in the context of an IAC or a NIAC.
While the term “mutilation” appears frequently in national military manuals as the archetypical example of prohibited corpse mistreatment,Footnote 62 the war crime of mutilation under Article 8(2)(b)(x) and (2)(c)(i) of the Rome Statute, derived respectively from Article 11(2)(a) and (4) of Additional Protocol I (AP I) and common Article 3(1)(a), and from Article 4(2)(b) of Additional Protocol II (AP II),Footnote 63 is inapplicable to post-mortem acts. In the Mbarushimana case, ICC Pre-Trial Chamber I concluded that the offence “presupposes an act committed against a person and not a dead body”.Footnote 64 This approach is in line with the aforementioned position of the ICRC that the prohibition of mutilation under common Article 3(1)(a) does not apply to violence against the dead.Footnote 65 The war crime of outrages upon personal dignity, in particular humiliating and degrading treatment (by virtue of the specific stipulations of its entry in the ICC Elements of Crimes (EoC), a secondary document containing authoritative specifications of the elements of each crime under the Statute), is uniquely intended to capture the criminality of mistreatment directed at the dead. The offence applies both during IACs and NIACs under Article 8(2)(b)(xxi) and (2)(c)(ii) of the Rome Statute respectively.Footnote 66
Drafting history of the Rome Statute and the Elements of Crimes
In its 1994 draft ICC statute, the International Law Commission (ILC) referred only to “serious violations of the laws and customs applicable in armed conflict” as a general category of crime under Article 20(c).Footnote 67 However, in its commentary thereto, the ILC proffered some specific offences that may fall within this category, curiously excluding outrages upon personal dignity.Footnote 68 Instead, the offence first appeared in the 1996 alternative proposals of States before the Preparatory Committee on the Establishment of an ICC (PCEICC), as reflected in the chairman’s revised informal text aggregating various States’ proposals for expanding on the ILC draft by clarifying and specifying war crimes under the proposed court’s jurisdiction.Footnote 69 While it is unclear which States proposed the inclusion of outrages upon personal dignity, the chairman’s text offered a number of possible formulations of the provision on war crimes, all of which include the offence in the context of both IACs and NIACs.
Following further discussions at the PCEICC, the Working Group on the Definition of Crimes (WGDC) synthesized these various proposals into a single draft consolidated text, which it submitted to the full Committee in February 1997, providing for the offence in both its IAC and NIAC formulations.Footnote 70 The result of these various drafts was the inclusion of the war crime of outrages upon personal dignity in the final text of the 1998 Rome Statute.Footnote 71 However, none of the draft statutes nor the final Statute itself elaborated on the ratione personae scope of the offence, resulting in the Statute leaving the question of whether the dead constituted “persons” within the meaning of Article 8(2)(b)(xxi) and (2)(c)(ii) unanswered.
It would fall to the Preparatory Commission for the International Criminal Court (PCICC), tasked by the Rome Conference with, inter alia, the drafting of an EoC document,Footnote 72 to offer clarity on this matter. The elements of the war crime of outrages upon personal dignity were not discussed at the first session of the PCICC in February 1999. The first appearance of both the elements of the war crime of outrages upon personal dignity and footnotes concerning the ratione personae scope of the offence can be found in the 10 and 11 August 1999 discussion papers issued by the coordinator of the Working Group on Elements of Crimes (WGEC) during the second session of the PCICC.Footnote 73 Both of these discussion papers included the following identical footnotes to the first material elements of the both the IAC and NIAC formulations of the offence:
For this crime, “persons” can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.Footnote 74
With the lack of any noted conflicting perspectives present within the coordinator’s discussion papers concerning the applicability of the offence to acts against the dead, the inclusion of the footnotes can be seen as a relatively uncontroversial clarification. It has been suggested that this inclusion was made to take into account post-Second World War jurisprudence,Footnote 75 though the record of the PCICC discloses no explicit reasoning to this effect.
The elements of outrages upon personal dignity were not discussed at the third session of the PCICC in November–December 1999, with the Commission adopting the footnotes on the dead, as they were formulated in the coordinator’s discussion papers, in its second session during its first complete reading of the EoC.Footnote 76 This reading marked the first appearance in the footnotes of the stipulation that “the victim need not personally be aware of the existence of the humiliation or degradation or other violation”, inserted immediately following the sentence on the qualification of the dead as persons.Footnote 77 The text of the footnote remained unchanged at the second reading of the EoC at the fourth session of the PCICC in April 2000.Footnote 78 At its fifth session in July of the same year, the PCICC adopted the finalized draft text of the EoC without any changes to the relevant footnotes.Footnote 79
Outrages upon the personal dignity of the dead in the Rome Statute
The offence of “outrages upon personal dignity” principally derives from the prohibition of such conduct under common Article 3(1)(c). It should be recalled that common Article 3, though often referenced solely in the context of NIACs, contains minimum standards applicable during armed conflicts of any nature.Footnote 80 Furthermore, during IACs in particular, Article 27 of Geneva Convention IV (GC IV) provides that protected persons, in all circumstances, are entitled “to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs”, and that such persons “shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity”. The phrase “outrages upon personal dignity” is later included as an act categorically prohibited at any time and place and in any manner whatsoever during both IACs and NIACs under Article 75(2)(b) of AP I and Article 4(2)(e) of AP II respectively. The ICRC Commentary on the Additional Protocols defines such prohibited acts as those “which, without directly causing harm to the integrity and physical and mental well-being of persons, are aimed at humiliating and ridiculing them, even forcing them to perform degrading acts”.Footnote 81 The nature of outrages upon personal dignity as a war crime is recognized under customary IHL,Footnote 82 equally applicable during both IACs and NIACs.Footnote 83
Excluding the contextual elements applicable to all war crimes, the substantive elements of the offence in the context of an IAC under Article 8(2)(b)(xxi) of the Rome Statute require that the perpetrator humiliated, degraded or otherwise violated the dignity of the victim and that the severity of this violation was of such a degree as to be generally recognized as an outrage upon personal dignity.Footnote 84 When the offence is committed during a NIAC, Article 8(2)(c)(ii) imposes two additional elements further to those required by Article 8(2)(b)(xxi) – namely, that the victim or victims were either hors de combat, civilians, or medical or religious personnel taking no active part in the hostilities, and that the perpetrator was aware of the factual circumstances establishing this protected status.Footnote 85
The most significant feature of the elements of the offence, for the present purposes, is found in the footnotes to element 1 of both of the above entries in the EoC, quoted in full in the previous subsection. The identical footnotes to the actus rei of both the IAC and NIAC formulations of the offence provide in relevant part that the term “persons”, as used in element 1, “can including dead persons”, and that “the victim need not personally be aware of the existence of the humiliation or degradation or other violation”.Footnote 86 The crucial implication of this clarification, of course, is the explicit extension of the ratione personae scope of outrages against personal dignity so as to include deceased victims. As will be seen below, this pair of footnotes has been central in questions as to the customary nature of the protection of the dead under IHL.
Justification for criminalization
The criminalization of war crimes derived from so-called Geneva Law generally serves to protect the fundamental individual rights of protected persons, inter alia life, security, dignity and physical integrity, which are particularly threatened by the specific circumstances of armed conflicts.Footnote 87 The law of war crimes is commonly said to also protect universal legal interests such as world peace.Footnote 88 The criminalization of outrages upon personal dignity specifically seeks, similarly to Geneva Law generally, to safeguard “respect for the human personality”.Footnote 89 The criminalization of outrages on personal dignity lies at the heart of the protections envisioned in IHL, with “[t]he general principle of respect for human dignity [being] the basic underpinning and indeed the very raison d’être of international humanitarian law and human rights law”.Footnote 90 In the context of deceased victims, this offence’s protected interest is identical to the purpose of IHL protections of the dead generally: “to preserve the dignity of the dead”.Footnote 91 This formulation suggests (i) that at least some of the legal interests possessed by an individual ante mortem –namely, dignity – continue to be enjoyed post mortem, and (ii) that such interests are capable of being harmed despite the physical death of the individual. Both points are problematic from the standpoint of criminal law theory.
The classical “harm principle” articulates the now axiomatic theoretical justification for the criminalization of a given act or course of conduct: criminalization is inappropriate save for acts or conduct that cause harm to the interests of others.Footnote 92 The harm principle has also come to occupy a significant place in prevailing theoretical understandings of the ratione materiae ambit of international criminal law.Footnote 93 The application of the harm principle to deceased persons and related questions of posthumous rights have been the subject of rich philosophical discussion.Footnote 94 While a minority of scholars assert that the dead retain certain legal interests that are capable of being harmed after death in a similar manner as they would be ante mortem,Footnote 95 the majority contend that the dead themselves do not have interests harm to which may justify the imposition of individual criminal responsibility.Footnote 96 In the context of international crimes against the dead, the latter conclusion would appear to support the positions of a number of scholars who assert that the dead do not enjoy protected status under IHL and thus cannot properly be victims of the war crime of outrages upon personal dignity.Footnote 97 As will be demonstrated in the reviews of case law in the following sections, this is a decidedly incorrect view of the law; the dead are in fact protected persons within the meaning of IHL.
That being said, the interests of a deceased person should not be understood as the retained interests of their former living selves; instead, they should be retrospectively based on what their living selves’ interests would have been.Footnote 98 Thus, “when a person is ‘wronged’ after death, this is not a wrong to the corpse but a wrong to the live person they once were”.Footnote 99 Under this rationale, the legal interests of a person may be infringed upon in death if they are “treated after death in a way which they would have strongly objected to if alive”.Footnote 100 This rationale comports with the above-discussed understanding that the IHL basis for the criminality of outrages upon the dignity of the dead lies primarily in common Article 3(2)(c) as well as Article 75(2)(b) of AP I and Article 4(2)(e) of AP II. The incorporation of the dead within the ratione personae ambit of outrages upon personal dignity acknowledges that the acts prohibited by the above provisions are of such an inexcusable character that any living person would object in the strongest terms to those acts being inflicted upon them even after death.
The limited jurisprudence of international courts and tribunals
An international criminal court or tribunal has only once considered post-mortem acts in the context of the war crime of outrages against personal dignity. In the Bagosora et al. case before the International Criminal Tribunal for Rwanda (ICTR), the Trial Chamber found, in a decision on defence motions to acquit, that a conviction for outrages upon personal dignity may be founded upon the act of “burying corpses in [a] latrine pit”.Footnote 101 However, the Chamber’s analysis of the same events in the trial judgment leaves it unclear whether it viewed the manner of the corpses’ disposal itself as criminal. The judges heard evidence that soldiers “began pushing some of the Tutsi refugees in latrine pits before throwing in grenades. The soldiers forced others to dig their own graves before killing them.”Footnote 102 The prosecution’s closing brief then detailed the “forcing of victims to dig their own graves and the throwing of them alive into latrines before killing them”.Footnote 103 Thus, it would appear that the Bagosora Trial Chamber’s focus was on the particularly humiliating manner in which the victims were killed, not the humiliating nature of their subsequent burial. Further, the Chamber did not consider this particular event when establishing the accused’s guilt, as the prosecutor had introduced this evidence subsequent to the indictment and the pre-trial brief.Footnote 104
Marginally more persuasive case law on the qualification of violence against the dead as an outrage upon personal dignity can be found in the Brđanin case before the ICTY. The Trial Chamber listed acts committed against corpses amongst a broader list of acts constituting humiliating and degrading treatment, explaining as follows:
As a final humiliating gesture, the bodies of killed Bosnian Muslims and Bosnian Croats were often treated with disrespect or even mutilated, buried in mass graves and sometimes re-buried in order to cover up the crimes committed. Some of these gravesites have not been discovered to date. There can be no doubt that these acts were discriminatory in fact. The Trial Chamber also finds that in the given situation, these acts amount to the level of gravity of crimes against humanity.Footnote 105
While these acts were found to constitute ill-treatment as an underlying act of the crime against humanity of persecution, the ICTY Trial Chamber recognized the basis of the prohibition of such treatment during armed conflict in common Article 3.Footnote 106 The ICC, for its part, has yet to prosecute a charge under Article 8(2)(b)(xxi) or 8(2)(c)(ii) of the Rome Statute involving the dead. Nevertheless, in Al Hassan, when enumerating acts that have been considered in jurisprudence to constitute outrages upon personal dignity, Pre-Trial Chamber I included “treating corpses in a disrespectful manner or mutilat[ing] them”, citing the above-referenced excerpt from the Brđanin trial judgment.Footnote 107 The Al Hassan case itself, however, did not involve outrages against personal dignity committed against dead persons and thus cannot necessarily be considered definitive jurisprudence on the matter.
Jurisprudence of European national courts
In stark contrast to the scant engagement of international criminal courts and tribunals with war crimes against the dead, domestic jurisdictions in Europe have seen a remarkable number of proceedings concerning the maltreatment of corpses arising out of armed conflict in Iraq and Syria. From these cases in Germany, Finland, Sweden and the Netherlands has emerged a growing body of jurisprudence clarifying crucial aspects of the elements of the war crime of outrages upon personal dignity particular to circumstances involving deceased victims.
The most extensive and conclusive jurisprudence on the matter of war crimes against the dead comes from national courts prosecuting Syrian and Iraqi nationals under the principle of universal jurisdiction in the last decade, including the highest courts of two European States. While difficulties often arise in applying IHL before domestic judiciaries,Footnote 108 paradoxically, national courts have provided far greater clarity and depth of engagement with the notion of war crimes against the dead than their international counterparts.
Germany
In 2002, Germany adopted the Code of Crimes against International Law (Völkerstrafgesetzbuch, VStGB),Footnote 109 a dedicated statute providing for the prosecution and punishment of genocide, crimes against humanity and war crimes before its domestic courts.Footnote 110 Section 8(1)(9) of the VStGB designates “treat[ing] a person who is to be protected under international humanitarian law in a gravely humiliating or degrading manner” as a war crime when committed during either an IAC or a NIAC.Footnote 111 It is under this provision that German authorities have prosecuted instances of corpse mistreatment as international crimes.
The first judgment of a German court relating to the offence under Section 8(1)(9) of the VStGB was rendered in July 2016 by the Higher Regional Court (Oberlandesgericht, OLG) of Frankfurt am Main in the Aria L. case, convicting a jihadist militant in relation to a video that the accused posted to Facebook in which he is shown posing with the severed heads of two Syrian government soldiers impaled on spikes.Footnote 112 The OLG identified the actus reus of the defendant’s crime as his act of posing with the bodies rather than the recording or online distribution of the video.Footnote 113 It considered the act as one which is “generally” and “cross-culturally” regarded as seriously degrading given the fact that it reduces a corpse to a “trophy” and thus reduces the victim’s body to an object.Footnote 114 With regard to the qualification of the dead as protected persons under IHL, the Court was content with citing the ICRC Customary Law Study and the relevant footnotes to the EoC as a clear indication that the dead enjoyed protected status under customary IHL.Footnote 115
In the separate Abdelkarim E. case, a Syrian member of the so-called Islamic State of Iraq and the Levant (ISIL) was charged before the OLG Frankfurt am Main with inter alia the war crime of humiliating or degrading treatment of a protected person in relation to three videos recovered from his mobile phone where he, along with two other men, is seen kicking a corpse, cutting off its nose and ears, and then shooting it in the head. In August 2016, the first-instance court rejected the accused’s application to end his pre-trial detention.Footnote 116 The accused appealed the decision to the Federal Court of Justice (Bundesgerichtshof, BGH), the highest court on civil and criminal matters in Germany. In considering the appeal, the BGH examined the necessity of pre-trial detention with recourse to the seriousness of the offences charged. In doing so, the Court examined the specific legal elements of the offence under Section 8(1)(9) of the VStGB.
In its September 2016 judgment, the BGH concluded that the category of protected persons under Section 8(1)(9) of the VStGB – which “includes in particular members of the armed forces and fighters of the opposing party who have laid down their arms or are otherwise defenseless – also includes deceased persons”, and that such protection “serves to protect the honour of the dead or the dignity of the human being that continues beyond death”.Footnote 117 The Court cited the EoC in concluding that the inclusion of the dead as protected persons under the EoC furnished its parallel inclusion in the VStGB, given that, in enacting the latter, “the legislature wanted to implement the criminal provisions of the Rome Statute … and to ensure that Germany is always in a position to prosecute the crimes that fall under the jurisdiction of the ICC itself”.Footnote 118 The Court, moreover, subscribed to the view that the PCICC believed that “the prohibition of the desecration of corpses was part of customary international law and, correspondingly, should be included in the ICC Statute”.Footnote 119 In doing so, the BGH both affirmed the protected status of the dead under the Rome Statute framework and strongly implied that the Statute and EoC are declaratory of customary international law for the purpose of defining the scope of persons protected by IHL in the context of Section 8(1)(9) of the VStGB.Footnote 120
Following this landmark interlocutory appeal judgment, the accused in Abdelkarim E. was convicted of the charged offence in November 2016, with the OLG Frankfurt am Main summarily adopting the approach of the BGH concerning the protected status of the dead.Footnote 121 The Court found that despite the fact that the accused did not personally commit all the acts of mutilation depicted in the videos recovered from his mobile phone, “his membership of the group whose members carried out the acts and with whom he had made a joint decision to commit the act” rendered him liable for the war crime of humiliating or degrading treatment of a protected persons as an accomplice.Footnote 122
With respect to the OLG Frankfurt’s 2016 judgment in the Aria L. case, the accused appealed the question of whether the dead may be considered protected persons within the meaning of Section 8(1)(9) of the VStGB. While the BGH had previously opined on the matter in its Abdelkarim E interlocutory judgment, it had done so in the context of affirming the continued propriety of pre-trial detention, not with specific regard to establishing the elements of the offence. In its 2017 judgment on the Aria L. appeal, the BGH affirmed its previous findings that the dead constitute protected persons for the purpose of the relevant offence, reaffirming that the legislature’s intention in enacting the VStGB was to mirror the Rome Statute system, including the particulars of the EoC.Footnote 123 It went further than in Abdelkarim E., finding that the dead were included within the scope of protected persons in customary IHL at the time of the Rome Statute’s adoption and thus that the relevant footnotes of the EoC simply reflected the existing IHL of the time, rather than broadening the scope of protections.Footnote 124 The BGH also cited the ICRC Customary Law Study and the limited jurisprudence of the ICTR and ICTY in support of its assessment of customary international law.Footnote 125 The Court specifically found that the two deceased victims in the case at hand constituted persons hors de combat and were thus protected under common Article 3.Footnote 126
Finland
The incorporation of international crimes into Finnish domestic law is presently accomplished primarily by Chapter 1, Section 7 of the Criminal Code, read in conjunction with a 1996 decree on the application of this provision.Footnote 127 Chapter 1, Section 7(1) of the Criminal Code affords Finnish courts with universal criminal jurisdiction over offences “based on an international agreement binding on Finland or on another statute or regulation internationally binding on Finland (international offence)”,Footnote 128 with the 1996 decree specifying that “international offences”, within the meaning of this provision, includes inter alia any war crime or crime against humanity defined in the Rome Statute or other criminal offence prescribed under the Geneva Conventions or AP I.Footnote 129 Thus, while the statutory codification of international criminal law in Finnish penal law is based on the Rome Statute, Finnish courts can still reference customary international law in interpreting the content and elements of Rome Statute offences.Footnote 130
This quite direct approach to the domestic implementation of the Rome Statute in Finland means that, when prosecuting war crimes and crimes against humanity, Finnish courts are directly applying the law of the Rome Statute. This lends their jurisprudence on crimes against the dead particular authority in terms of interpreting the position of international criminal law applicable before the ICC on such offences. Finnish courts have thus far played host to three similar cases concerning the war crime of outrages upon the personal dignity of the dead, all involving degrading acts committed against corpses, photos of which were later published on Facebook.
The first case, Hilal, involved a sergeant in the special forces branch of the Iraqi Army who was convicted in March 2016 by the District Court of Kanta-Häme of committing outrages against personal dignity during a NIAC under Article 8(2)(c)(ii) of the Rome Statute in relation to a photograph he posted on Facebook of himself crouched down posing next to a decapitated head of what is believed to be an enemy combatant.Footnote 131 The Court primarily conceptualized the actus reus of the offence as the accused’s act of posting the image in question on Facebook – emphasizing that it was “freely viewable by a very large number of Facebook users” – rather than his act of posing with the head or taking the photograph itself.Footnote 132 The “degrading” nature of the conduct was thus understood as the online distribution of a photograph of the severed head in a manner and through a medium that exposed the deceased individual to public curiosity before an indefinite and unknown quantity of individuals. The District Court noted that the relevant footnote to the offence’s entry in the EoC provides that the dead can properly be victim to the war crime in question,Footnote 133 adding that combatants may “become hors de combat following their death in combat”.Footnote 134
The second Finnish case involving war crimes against the dead, Jebbar-Salman, concerned remarkably similar factual circumstances. The defendant, also a sergeant in the Iraqi Army, was convicted on an identical statutory basis as Hilal by the District Court of Pirkanmaa for the act of publishing a photograph of himself on Facebook posing with the decapitated head of an individual believed to be an ISIL fighter.Footnote 135 Just as in Hilal, the Court in Jebbar-Salman referred to the footnote concerning dead persons in the EoC in establishing that the dead could properly be victims of outrages upon personal dignity and that the individual, as a deceased combatant, was rendered hors de combat and thus enjoyed protection under common Article 3.Footnote 136
The third case before Finnish courts was distinct from the former two. In this most recent case, Hasan, the District Court of Helsinki convicted an Iraqi soldier of outrages upon personal dignity as a war crime in relation to several videos and photographs posted to his Facebook account demonstrating maltreatment of the dead. In one video, the defendant is seen beheading a corpse, believed to be that of an ISIL combatant, before posing while making a “victory” hand sign as a fellow soldier holds the victim’s severed head in front of the defendant. In a second video, the defendant and other Iraqi soldiers are seen posing before a mound of at least four corpses that had been set on fire.Footnote 137 Unlike Hilal and Jebbar-Salman, the Court in Hasan considered that the defendant’s actions in the videos – particularly his decapitation of the corpse in the first video – formed part of the degrading treatment, reasoning as follows:
[T]he severing of the dead fighter’s head, taking images and video of this action, and uploading, or allowing the uploading, of both the videos referred to in the charge, along with the photographs, to the Facebook profile … constitute, in view of the content that was published and the actions as a whole, a general offence against a person’s honour.Footnote 138
The Hasan case thus elucidates the potential scope of the actus reus of the offence, casting a broad net as to the types of conduct that can satisfy the material element of the war crime. The particular actus reus on the basis of which a given charge is founded will vary on a case-by-case basis, largely on the grounds of the available evidence. Because video evidence in Hasan established that the defendant had himself beheaded the corpse, this act of post-mortem mutilation could underpin the charge of outrages upon the deceased victim’s dignity. On the other hand, because the evidence in Hilal and Jebbar-Salman was confined to still images, the respective courts could not establish that the defendants themselves had severed the heads which they were photographed displaying and instead based the charges solely on the defendants’ acts of publishing the gruesome images on social media.
Sweden
In 2014, Sweden codified the offences specified in Article 5 of the Rome Statute into its domestic law through the Act on Criminal Responsibility for Genocide, Crimes against Humanity and War Crimes.Footnote 139 The 2014 Act was explicitly an attempt to bring Sweden’s previously existing open-ended jurisdiction over international crimes into line with the Rome Statute framework.Footnote 140 While the provisions of the Act generally correspond to those of the Rome Statute,Footnote 141 it does not differentiate between war crimes committed during an IAC and those committed during a NIAC, reflecting increasing scholarly opinion on the artificial nature of the distinction between the two in war crimes law.Footnote 142 Section 4(7) of the Act designates as a war crime, during either an IAC or NIAC, “subject[ing] a protected person to humiliating or degrading treatment that is calculated to seriously violate their personal dignity”.Footnote 143 This offence is intended to correspond to those under Article 8(2)(b)(xxii) and 8(2)(c)(ii) of the Rome Statute.Footnote 144
In December 2016, the Blekinge District Court in Sweden convicted Raed Thaer Abdulkareem, a former member of the Iraqi Army, of the above war crime in relation to a video and photographs of the accused in Iraq posing next to a decapitated head on a barrel next to other bodies with severed heads, and taking selfies with corpses. Citing the qualification of the dead as “persons” in the EoC, the Court held that the dead are protected persons under common Article 3(1).Footnote 145 The Skåne and Blekinge Court of Appeal affirmed the District Court’s conclusion on substantially similar grounds.Footnote 146 The Court of Appeal specifically clarified that the accused committed an outrage against the personal dignity of the pictured deceased individuals both through the manner in which he posed with their corpses and by posting the relevant photographs on Facebook.Footnote 147
In the separate 2017 Abdullah case, the Södertorn District Court convicted a former member of the Syrian Army of the war crime of humiliating or degrading treatment of a protected person in relation to a photo of him with his foot on the corpse of what appears to be a civilian, surrounded by the corpses of persons appearing to be soldiers placed in degrading positions.Footnote 148 The Court concluded that the dead constituted protected persons on the basis of the relevant footnotes to the EoC, which it considered reflected customary IHL at the time of the Rome Statute’s adoption.Footnote 149 Accordingly, the Court concluded that both the defendant’s treatment of the corpse in the photo and his subsequent posting of it on Facebook constituted an outrage upon the personal dignity of the deceased victim.Footnote 150
The most significant Swedish case dealing with war crimes against the dead is that of Saeed. In 2019, the Örebro District Court convicted a former member of the Iraqi Army of the war crime of humiliating or degrading treatment of a protected person in relation to widely circulated photographs of the accused posing next to corpses, many of which appeared to have been desecrated.Footnote 151 The court cited the findings of the Skåne and Blekinge Court of Appeal in Abdulkareem in affirming that the dead constitute protected persons under common Article 3(1). The District Court found that the corpses shown in the photos in question enjoyed protected status regardless of whether they were civilians or combatants due solely to the fact that they were deceased and thus not taking any part in hostilities.Footnote 152 The Göta Court of Appeal affirmed the conclusions of the District Court without significant explicit engagement with the relevant IHL.Footnote 153
The Saeed case proceeded to the Supreme Court of Sweden, which pronounced its detailed judgment in 2021.Footnote 154 The Court cited the footnotes in the EoC providing for the applicability of the war crime of outrages on personal dignity, adding that “[t]he fact that dead persons are mentioned only in the footnotes does not per se mean that the text is not to be deemed to be an integral part of the elements of crimes”.Footnote 155 The Court also observed that while the terms of the Rome Statute and the EoC were a product of diplomatic negotiations, it should be assumed that, in crafting the EoC, the PCICC intended to reflect the state of existing customary international law at the time of the Rome Statute’s adoption.Footnote 156 Logically, any deviation by the PCICC from the elements of a given offence’s formulation under customary international law would thus be explicit. The Court also cited the 2017 judgment of the German BGH and the fact that no national jurisprudence has rejected the qualification of the dead as protected persons.Footnote 157 Ultimately, the Supreme Court concluded that “[t]he purpose of the elements of crimes in the Rome Statute and the application thereof clearly indicate that dead persons are covered by the term protected persons in accordance with customary international law”.Footnote 158 In the specific circumstances of the case, the Court concluded that the deceased individuals were combatants ante mortem and thus were rendered hors de combat upon their killing, making them protected persons under common Article 3.Footnote 159 The Supreme Court upheld the defendant’s conviction.Footnote 160
Following the seminal Saeed case, Swedish courts have seen one other case, Fatosh, involving crimes against the dead. In March 2023, the Gothenburg District Court convicted a Syrian woman alleged to have been a member of ISIL inter alia of the war crime of outrages against personal dignity.Footnote 161 The Court found that while she had posted several photographs of a person posing next to a severed head and other mutilated corpses accompanied by degrading messages on Facebook, there was not enough evidence to positively identify her as the individual in the video or as the person responsible for the mutilation itself.Footnote 162 However, the Court nevertheless convicted her, finding that her act of posting the videos on an online social media platform and her accompanying comment on one photo, which “portrayed the protected person in the photo as a trophy”, constituted distinct acts of severe humiliating and degrading treatment.Footnote 163 The District Court summarily affirmed the protected status of the dead under IHL with reference to Saeed,Footnote 164 suggesting that the question has become a matter of res judicata before Swedish courts.
The Netherlands
The legal framework for the prosecution of international crimes before domestic courts in the Netherlands is provided for in the International Crimes Act (ICA) of 2003.Footnote 165 The intention of Dutch legislatures in enacting the ICA was clearly to align domestic law on international crimes with that of the nascent ICC.Footnote 166 Sections 5(6)(j) and 6(1)(c) of the ICA criminalize outrages upon personal dignity as a war crime in IACs and NIACs respectively.Footnote 167 The latter provision explicitly codifies those prohibitions provided for in common Article 3.Footnote 168 Prosecutions under this provision relating to NIACs have occurred on three occasions in the Netherlands.
The first Dutch prosecution for war crimes targeting the dead, the Al Khedr case, concerned a Free Syrian Army soldier who, while being on the payroll of ISIL, was pictured in a social media post smiling and posing in front of a deceased man affixed to a wooden cross.Footnote 169 The photograph had been published on the defendant’s own Facebook page. He was also charged in relation to privately distributing a photograph of a sandaled foot placed on a female corpse.Footnote 170 In its 23 July 2019 judgment in the case, the District Court of The Hague held that the defendant’s act of posting next to the strung-up corpse in the first photograph constituted an outrage on the personal dignity of the deceased, as it “contributed to further deepening the humiliation and/or dishonouring of the deceased” occasioned by their being affixed to the cross and constituted an expression on the part of the defendant “that the body of the deceased had to be considered a trophy and that he is superior compared to the deceased”.Footnote 171 In addition, the Court concluded that the defendant’s subsequent act of publishing the first photo on Facebook, which “ensured that a large number of people had the opportunity to take cognisance of the photograph”, when taken in conjunction “with the fact that he himself posed for the photograph and had it made, … further continued the outrage upon [the] personal dignity of the deceased person”.Footnote 172 Both the defendant’s act of posing with the corpse and his subsequent publication of the image formed part of the actus reus of the offence.
The District Court acquitted the defendant of the charge relating to the second photograph, finding that while the actions depicted in the image certainly constituted outrages against the personal dignity of the deceased individual, as the defendant does not appear in the photographs and did not publish them to his Facebook page, the charges were based solely on the defendant’s material act of privately forwarding the image to one other individual.Footnote 173 Accordingly, the Court held that, while in doing so the defendant “did indeed continue the humiliation and/or dishonour”, the mere act of forwarding the image to a single person “is not in itself of such a nature and seriousness that this is automatically regarded as an assault on the personal dignity of the deceased person”.Footnote 174 With regard to the deceased individual’s protected status, the court reasoned that whether or not they were a member of ISIL when alive, as was alleged, they would enjoy protection under common Article 3 as their death rendered them a person not taking direct part in hostilities.Footnote 175 The Court also made reference to the inclusion of the dead within the definition of “person” in the relevant footnotes to the EoC.Footnote 176 The defendant appealed his conviction.
Considering numerous grounds of appeal raised by the accused, the Court of Appeal of The Hague affirmed the conviction entered by the District Court.Footnote 177 Like the District Court, the Court of Appeal considered that in the case of the first photo, the defendant had committed an outrage against the dignity of the deceased person both by virtue of the manner in which he posed with the corpse and his posting the incriminating image to Facebook, which “ensured that a large number of people were given the opportunity to take note of the photo”.Footnote 178 The Court also affirmed that, as individuals not taking direct part in hostilities, deceased persons ipso facto constitute protected persons under common Article 3, regardless of their ante-mortem status.Footnote 179 The Dutch Supreme Court summarily rejected the accused’s appeals in cassation and affirmed his conviction.Footnote 180
The second case before Dutch courts concerning the mistreatment of the dead, Ahmad al-Y., involved a Syrian militia fighter who posted a video to YouTube depicting himself and others posing next to multiple deceased Syrian Army soldiers, calling them “dogs” and “carcasses of Al-Assad” while singing songs, placing his foot on the corpses, and spitting on and kicking them.Footnote 181 The District Court of The Hague summarily reasoned that the dead constitute individuals not taking direct part in hostilities and are thus protected under common Article 3.Footnote 182 Moreover, it held that, when taken in conjunction, the defendant’s conduct with respect to the corpses in the video and his subsequent distribution of the footage via a public YouTube channel constituted degrading treatment of sufficient severity to constitute a war crime.Footnote 183 The Court accordingly convicted the defendant.Footnote 184
However, The Hague Court of Appeal would overturn the defendant’s conviction, finding that the outrage against the dignity of the deceased victims did not arise to the sufficient degree of severity to constitute a war crime.Footnote 185 Firstly, the Court once again affirmed that the dead enjoy protection under common Article 3 and customary IHL,Footnote 186 reasoning that “[t]he protected interest – the dignity of the individual – belongs to all those who cannot be excluded from protection on the basis of direct participation in hostilities” and finding that it “fails to see that such personal dignity can no longer exist once a person is deceased”.Footnote 187 Despite this conclusion, with regard to severity, the Court opined that while the dead do enjoy protection under IHL, “they cannot be said to be suffering severely physically or mentally”.Footnote 188 On this basis, the Court emphasized that the various acts against the corpses depicted in the video were transient in nature, not adversely affecting the integrity of the bodies in any way. The judges also dismissed the significance of the accused’s acts of spitting on a corpse and placing his foot on top of it as having only “take[n] place once and twice respectively and always within a brief moment”.Footnote 189 Distinguishing the decision of a differently composed bench of the Court of Appeal in Al Khedr, the judges did not consider that the conduct of the defendant and the other individuals in the video were indicative of the display of the deceased persons as trophies.Footnote 190 The Public Prosecution Service has appealed the Ahmad al-Y. decision to the Supreme Court.Footnote 191
The war crime of outrages upon personal dignity against the dead
Status under customary international law
The proposition that the dead fall within the ratione personae scope of the war crime of outrages upon personal dignity may not simply be inferred from the above-discussed footnotes in the EoC. As Yanev has emphasized, even before the ICC, in order for a crime to have been committed on the territory of a non-State Party, it must have existed under customary international law at the time.Footnote 192 On this basis, Berster and Ambos have argued that IHL does not extend protection to the dead within the framework of common Article 3, and thus that the footnotes of the EoC regarding the dead are not reflective of customary international law.Footnote 193
The present author disagrees with this interpretation. Rather, it is submitted that the footnotes to the EoC bringing the dead within the ambit of outrages upon personal dignity reflect the evolution of customary IHL in the period since the Second World War.Footnote 194 The varied practice of post-Second World War war crimes tribunals lends clear jurisprudential support to the notion that IHL prohibits the maltreatment of the dead and that such maltreatment entails individual criminal responsibility under customary international law. This conclusion is bolstered by the widespread criminalization of corpse mistreatment in domestic legal systemsFootnote 195 and its unconditional prohibition during armed conflict in the military manuals and national legislation of countless States.Footnote 196 It also aligns with the position of the ICRC in its Customary Law Study and the updated ICRC Commentary on common Article 3.Footnote 197
Moreover, the consensus of States in the aftermath of the 1998 Rome Conference in relation to the inclusion within the EoC explicating the applicability of outrages upon personal dignity to acts of degrading treatment of the dead serves as a powerful indicator of opinio juris amongst States that this approach reflected the customary IHL of the time. Berster and Ambos’ contentions that the inclusion of the dead within the meaning of “person” in the form of a footnote is indicative of disagreement amongst States Parties enjoy no basis in the travaux préparatoires of the EoC;Footnote 198 on the contrary, the travaux disclose no disagreement on the part of States Parties on the inclusion of the dead within the scope of the term “persons” in the relevant footnotes. Furthermore, the Swedish Supreme Court reasoned in Saeed that “the intention of the work of the Drafting Committee which construed the elements of crimes was that the general purport would correspond to established international humanitarian law” and thus that “as a starting point, the criteria (including the footnotes and the general commentary) should be viewed as part of the customary international law when the Rome Statute was created”.Footnote 199 The German BGH similarly reasoned that the footnotes to the EoC on the inclusion of the dead within the scope of “persons” are reflective of the position of customary IHL at the time of the Rome Statute’s adoption.Footnote 200 Other lower national courts have reached the same conclusion.Footnote 201
Rather than seeking to improperly import into the Rome Statute framework protections that were not afforded under IHL, the inclusion of the dead as protected persons for the purpose of outrages upon personal dignity serves to reflect the crystallization of such protections in modern customary IHL. Presently, in light of the plethora of consistent jurisprudence from numerous jurisdictions affirming this in the specific context of the war crime of outrages upon personal dignity, this conclusion with regard to the customary nature of the protection of the dead under IHL, in particular common Article 3(2)(c), has been definitively reinforced and confirmed.
As the formulation of the offence in question both before international and internationalized criminal courts and before domestic courts can thus be considered reflective of customary international law, the remainder of this section sketches the particulars of the war crime of outrages upon the personal dignity of the dead, consolidating international and domestic jurisprudence to elucidate the specifics of the offence that arise and should be clarified in situations involving the commission of the crime against deceased individuals.
Material elements (actus reus)
Humiliation, degradation, or violation of the dignity of persons
As with other crimes of ill-treatment, no exhaustive enumeration of acts constituting outrages upon personal dignity exists.Footnote 202 As Rodley writes, any attempt to develop a “catalogue of horrific practices … would simply provide a challenge to the ingenuity of the torturers, not a viable legal prohibition”.Footnote 203 The qualification of acts as falling within the actus reus of outrages upon personal dignity must thus be considered on a case-by-case basis. For the purpose of this offence, “humiliating” and “degrading” treatment are considered functionally synonymous since both enjoy equal prohibition under IHL.Footnote 204 In the Musema case, an ICTR Trial Chamber defined the actus reus of the war crime of outrages upon personal dignity as “[s]ubjecting victims to treatment designed to subvert their self-regard”.Footnote 205
The footnotes to the respective first elements of Article 8(2)(b)(xxi) and 8(2)(c)(ii) of the EoC also specifically add that “the victim need not personally be aware of the existence of the humiliation or degradation or other violation”.Footnote 206 The ICRC Commentary on GC III explains that this point “was made in order to cover the deliberate humiliation of unconscious persons”,Footnote 207 but it is also of great importance when considering outrages upon the personal dignity of the dead, as emphasized by the Swedish Supreme Court in Saeed,Footnote 208 as it allows the war crime to cover those who, being deceased, can no longer experience emotions of humiliation or perceived degradation. This is in line with the “objective” standard for assessing the severity of material acts of the war crime, as discussed below.
International courts and tribunals have considered a variety of acts to amount to the war crime of outrages upon personal dignity, including death threats and repetitive screams over a loudspeaker,Footnote 209 the use of detainees as human shields and trench diggers,Footnote 210 physical violence and causing constant fear of physical, mental or sexual violence or being robbed,Footnote 211 public acts of physical violence,Footnote 212 squalid conditions of detention,Footnote 213 forcing detainees to perform manual labour or subservient acts,Footnote 214 forcing detainees to beat one another,Footnote 215 forcing detainees to relieve bodily functions in their clothing or on the floor of a cell,Footnote 216 forced incestual sexual acts,Footnote 217 abduction and sexual slavery,Footnote 218 forced nudity,Footnote 219 rape and other sexual violence and coerced sexual acts,Footnote 220 and forcing individuals to witness sexual violence against others in a manner constituting a threat or intimidation, or in an otherwise degrading or humiliating manner.Footnote 221
National courts have convicted defendants for the war crime of outrages upon personal dignity in relation to, inter alia, the following acts against deceased persons: mutilating corpses through beheading or post-mortem amputation of body parts,Footnote 222 recording oneself shouting threats and insults at a corpse,Footnote 223 posing and/or taking photos with a corpse or the severed heads of corpses displayed in a trophy-like manner,Footnote 224 posing with one’s foot on a corpse,Footnote 225 kicking and shooting at a corpse,Footnote 226 and disseminating photographs or videos displaying corpses being treated in any degrading manner on the internet.Footnote 227
The severity of the humiliation, degradation or other violation
An act of humiliation or degradation or other violation of personal dignity must rise to a certain severity in order to be considered a war crime,Footnote 228 though this severity threshold is necessarily less than that of torture and other cruel, inhuman or degrading treatment or punishment.Footnote 229 This threshold is also one, unlike torture, that is oriented towards the severity of humiliation or degradation, rather than the physical or mental pain, suffered by the victim,Footnote 230 either in the eyes of the victim or those of others.Footnote 231 This is emphasized by the absence of a requirement that the suffering occasioned by the act must have long-term effects.Footnote 232 In Aleksovski, the ICTY Trial Chamber opined that the “severity” requirement of the actus reus of the war crime of outrages on personal dignity demands that “the humiliation to the victim must be so intense that the reasonable person would be outraged”.Footnote 233 This test differs, for instance, from a subjective test that would consider whether the victim themselves was outraged. This objective standard was affirmed by the ICTY Appeals Chamber in Kunarac et al. Footnote 234 and adopted by the Trial Chamber in Kvočka et al. Footnote 235 The standard has since enjoyed broad support in the jurisprudence of subsequent tribunals,Footnote 236 including the ICC,Footnote 237 with Trial Chamber X of the latter most recently holding that the relevant determination must be based on “a reasonable person’s objective assessment and must be assessed on a case-by-case basis”.Footnote 238
The national jurisprudence recalled in the previous subFootnote section 239 demonstrates that an accused will only be held directly responsible for mistreatment depicted in digital media if it is clear from the video or image in question that they participated in the mistreatment on display.Footnote 240 Merely appearing in a photograph or video displaying corpses is not a sufficiently serious outrage against the dignity of the dead.Footnote 241 For posing with deceased persons to constitute sufficiently severe degrading treatment, the corpses must be reduced to a trophy-like position;Footnote 242 otherwise, liability is restricted to the sharing of such media. The posting of an image or video depicting corpse mistreatment will generally only constitute a degrading act of sufficient severity if it is digitally distributed in a manner which ensures that a numerically large number of individuals will be able to view it.Footnote 243 While infringing on the dignity of the deceased victim, the limited and private sharing of media will not, in principle, rise to the requisite degree of severity to furnish individual criminal responsibility.Footnote 244
The Ahmad al-Y. judgment of the Court of Appeal of The Hague is an outlier amongst national jurisprudence. The judges’ conclusion that the actions of the defendant and others pictured in a video where they yelled at, kicked, spat at and placed a foot atop a pile of corpses were not a sufficiently serious outrage against the personal dignity of the deceased to constitute a war crimeFootnote 245 appears deeply flawed and contrary to established jurisprudence. Firstly, the Court erred in emphasizing that the actions did not disturb the physical integrity of the corpses, as intentional courts and tribunals have clearly and consistently affirmed that the war crime of outrages upon personal dignity does not require that the acts or conduct in question have long-term consequences.Footnote 246 The severity of a degrading act is not in and of itself diminished by its transient nature, particularly when such an act is captured on video and distributed online. Secondly, the Court appears to improperly deviate from the objective standard of severity by considering factors such as whether the fighters and the individual filming appear to pay attention to their compatriots’ acts against the corpses.Footnote 247 This approach unacceptably emphasizes the subjective considerations of the alleged perpetrators in determining severity, contravening the objective standard in a particularly egregious manner. The Dutch Supreme Court would be well advised to review the Ahmad al-Y. judgment’s conformity with international and domestic jurisprudence on the severity requirement.
Subjective element (mens rea)
Under the Rome Statute framework, outrages upon personal dignity carry the standard mens rea provided by Article 30 of the Rome Statute. Where national jurisdictions provide for a basis or default mens rea for criminal offences, domestic courts have also applied this requirement to the war crime of outrages against personal dignity.Footnote 248 The NIAC formulation of the offence under Article 8(2)(c)(ii) of the Rome Statute imposes an additional mental element requiring that the accused was aware of the factual circumstances that established the protected status of the victim.Footnote 249 With regard to the severity of the act which comprises the actus reus, there is no requirement that the accused completed a value judgment as to the severity of the humiliation or degradation that they inflicted upon the victim.Footnote 250
There is no requirement that the perpetrator held any discriminatory intent or motive in committing the offence.Footnote 251 While the ECtHR has observed that whether a particular act is degrading is to be assessed, in part, on the basis of whether “its object is to humiliate and debase the person concerned”,Footnote 252 no such requirement has been embraced by international criminal law. There is no requirement that the accused possessed any specific intent to humiliate, ridicule or degrade the victim,Footnote 253 though the perpetrator must know that their act or acts could humiliate, ridicule or degrade the victim.Footnote 254
The accused need not be aware of the ante-mortem status of a deceased victim given that the dead enjoy protection as persons not taking an active part in hostilities regardless of their status or combat role when alive. Accordingly, the mens rea requirement of Article 8(2)(c)(ii) of the Rome Statute demanding knowledge of the factual circumstances establishing the victim’s protected status only requires that the defendant knew the victim was deceased at the time of the offence.Footnote 255 The Swedish and Dutch courts have even suggested that the knowledge may be established if the defendant, even if not knowing the victims are deceased, was aware that they enjoyed ante-mortem protected status.Footnote 256 Under this approach, so long as the accused believes that the victim enjoyed protected status, even if they are mistaken as to the nature of that status, they may possess the necessary mens rea. This appears appropriate in light of the fact that outrages against personal dignity are regarded as equally criminal no matter the specific nature of the victim’s protected status.
Sentencing considerations
The majority of accused convicted in European domestic jurisdictions of outrages against the personal dignity of the dead have been given relatively short sentences ranging from suspended or conditional sentencesFootnote 257 to periods of imprisonment of two years or less in most cases.Footnote 258 This generally reflects the nature of most of their culpable conduct being the posting of videos depicting corpse mistreatment rather than participating in the depicted conduct themselves. In the German case of Abdelkarim E., where the accused was found to have personally participated in the mutilation of a corpse, a higher sentence was imposed.Footnote 259 In the two Dutch cases, the accused’s relatively lengthy sentences were the result of their concurrect convictions for the higher-sentence-bearing offence of membership in a foreign terrorist organization,Footnote 260 with the district courts in the two cases taking two and a half and two years’ imprisonment as their respective starting points with regard to the sentence for the relevant war crime.Footnote 261
Of special note is the role of corpse mistreatment in sentencing with respect to crimes besides outrages against personal dignity as, even when corpse mistreatment is not directly charged as a criminal offence, it may be considered an aggravating factor in sentencing before the ICC where it demonstrates that an accused’s crimes were committed “with particular cruelty”.Footnote 262 In the 1946 Tachibana et al. case, the US Military Commission found that the post-mortem ill-treatment of the deceased prisoners of war was to be considered an aggravating factor with respect to the charges of murder and neglect as war crimes concerning the prisoners’ deaths.Footnote 263 Similarly, in the Yekatom and Ngaïssona case, trial proceedings in which are ongoing before the ICC as of the time of this article’s writing, the prosecutor has argued that charges relating to the torture and murder of the second deputy mayor of the Central African town of Mbaïki are aggravated by the alleged post-mortem dismemberment of his genitalia, which the prosecutor submitted “demonstrates a profound degree of depravity”.Footnote 264
Conclusion
While the recent surge in domestic courts’ engagement with the war crime of outrages against the personal dignity of the dead would suggest that the offence is of a relatively contemporary vintage, this article has demonstrated that the mistreatment of the dead has long been considered the proper subject of both IHL and international criminal law. Post-Second World War prosecutions of crimes against the deceased as violations of the laws and customs of war, coupled with the more robust protections of the Geneva Conventions followed by their Additional Protocols, paved the way for the crystallization of individual criminal responsibility for post-mortem degrading treatment as a war crime, culminating in its codification within the Rome Statute and its EoC.
In the last decade, a number of European States have spearheaded the prosecution of outrages against the personal dignity of deceased victims as part of a broader wave of prosecutions of crimes committed in Syria and Iraq under the principle of universal jurisdiction. Resultantly, the courts of these jurisdictions have begun to fill the jurisprudencial gap left by international criminal courts and tribunals’ fleeting engagement with crimes of posthumous mistreatment. As this article has sought to examine, this growing body of national case law represents an incredibly valuable tool in more precisely defining the elements of the war crime of outrages against personal dignity when considering deceased victims.
The extension of the ambit of international criminal law to encompass war crimes against the dead necessitates the balancing of protecting fundamental interests of human dignity that survive after death and preserving the coherence of IHL and international criminal law. Particularly in light of the widespread nature of crimes against the dead during contemporary armed conflict (evidenced in part by the growing body of national jurisprudence on the issue), the clarification of how IHL and international criminal law respond to such atrocities is of paramount importance. This article seeks to make a broad and far-reaching contribution in this regard. Greater scholarly attention to this overlooked area of war crimes law is long overdue. The seemingly fundamental extension of the penal enforcement of jus in bello to offences against the deceased not only elevates the status of IHL in safeguarding the most vulnerable but also reaffirms the humanistic aspirations at its core.
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