Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 17 : Prescriptions regarding the dead. Graves Registration Service
Text of the provision*
(1) Parties to the conflict shall ensure that burial or cremation of the dead, carried out individually as far as circumstances permit, is preceded by a careful examination, if possible by a medical examination, of the bodies, with a view to confirming death, establishing identity and enabling a report to be made. One half of the double identity disc, or the identity disc itself if it is a single disc, should remain on the body.
(2) Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. In case of cremation, the circumstances and reasons for cremation shall be stated in detail in the death certificate or on the authenticated list of the dead.
(3) They shall further ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality of the deceased, properly maintained and marked so that they may always be found. For this purpose, they shall organize at the commencement of hostilities an Official Graves Registration Service, to allow subsequent exhumations and to ensure the identification of bodies, whatever the site of the graves, and the possible transportation to the home country. These provisions shall likewise apply to the ashes, which shall be kept by the Graves Registration Service until proper disposal thereof in accordance with the wishes of the home country.
(4) As soon as circumstances permit, and at latest at the end of hostilities, these Services shall exchange, through the Information Bureau mentioned in the second paragraph of Article 16, lists showing the exact location and markings of the graves together with particulars of the dead interred therein.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1632  Article 17 deals exclusively with the treatment of the dead. It is closely related to the last paragraph of Article 16, for after laying down rules in regard to the belongings of the deceased, and to the information found on their persons, it was still necessary to say what was to become of the bodies. Article 17 therefore sets out a number of rules relating to the burial or cremation of the deceased, examination of the body prior to burial or cremation, and the maintenance and marking of graves.
1633  The first paragraph contains two principal obligations. First, the Parties to the conflict are required to ensure that the dead are buried or cremated. The burial or cremation must take place individually as far as circumstances permit. Second, a careful examination of the body must be undertaken prior to burial or cremation. Although this paragraph refers to ‘burial or cremation’, the second paragraph indicates a preference for burial, allowing for cremation only in two limited situations. The third paragraph sets out a number of related obligations. The Parties must ensure that the dead are honourably interred, if possible according to the rites of the religion to which the deceased belonged. They must ensure respect for the graves, group them if possible according to nationality, and maintain and mark them. The Parties are also required to set up an official graves registration service at the outset of hostilities, enabling them to exchange ‘lists showing the exact location and markings of the graves together with particulars of the dead interred therein’.
1634  The underlying purpose of the provisions relating to the dead – in this and other provisions of international humanitarian law[1] – is to preserve the dignity of the dead. Thus, their bodies are to be treated honourably and with respect,[2] their identities ascertained and their graves marked and respected.
1635  The provisions regarding the dead, for example those on establishing identity and marking graves, are related to those concerning missing persons and the right of families to know the fate of their loved ones.[3]
1636  For information on the treatment of the dead in non-international armed conflicts, see the commentary on common Article 3, section I.
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B. Historical background
1637  Throughout history, the treatment of the dead in times of armed conflict has been a subject of concern, pronounced on by a variety of cultures and religions. International humanitarian law also has a long history of regulating the treatment of the dead, dating back at least to the 1880 Oxford Manual.[4]
1638  The 1906 Geneva Convention also contained provisions relating to the treatment of the dead. It provided that ‘the belligerent who remains in possession of the field of battle … will see that a careful examination is made of the bodies of the dead prior to their interment or incineration’.[5] It also provided that ‘[a]s soon as possible each belligerent shall forward to the authorities of their country or army the marks or military papers of identification found upon the bodies of the dead’.[6] The Convention was interpreted at the time by one State as requiring the taking of ‘the necessary measures for the … examination and identification of the dead’.[7]
1639  Although explicitly requiring a ‘careful examination … of the bodies of the dead prior to their interment or incineration’, it was unclear whether or not the Convention also imposed an obligation on the belligerent itself to bury or cremate the dead. Such an obligation was not specified in the text of the Convention, and at least one State took the view that the Convention contained no such obligation.[8] However, the obligation to bury or cremate the dead, in so far as possible, was considered a norm of customary international law in academic writings even by 1906.[9]
1640  The provisions of the 1906 Convention were expanded upon in the 1929 Geneva Convention on the Wounded and Sick.[10] The 1929 Convention contains the core of the protections that are to be found in Article 17 of the present Convention.
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C. Paragraph 1: Examination of the body and establishing identity
1641  Article 17(1) contains two principal obligations. First, the Parties to the conflict are required to ensure the burial or cremation of the dead. As far as circumstances permit, such burial or cremation must be carried out individually. Second, the Parties must undertake a careful examination of the body prior to burial or cremation, to confirm death, establish the person’s identity and enable a report to be made.
1642  In addition, Article 4 of the First Convention requires neutral Powers to apply by analogy the provisions of the Convention to, inter alia, the dead found in their territory.[11]
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1. Burial or cremation
a. The obligation
1643  The Parties to the conflict must ensure that the dead are buried or cremated. The second and third paragraphs of Article 17 set out in detail how the burial or cremation should be performed, including ensuring ‘that the dead are honourably interred’. The 1929 Convention also required that the dead be ‘honourably interred’.[12] Honourable interment is of particular importance given that, all too often, bodies are left on the battlefield.[13] State practice confirms the obligation to ensure the actual burial or cremation of the dead.[14]
1644  The obligation to ensure that the dead are buried or cremated can be satisfied in different ways. The Party in question may itself honourably inter the deceased. Alternatively, it may return the bodies of the deceased to their families for burial or cremation. The ICRC can act as a neutral intermediary in this regard.[15] The choice of means follows from the wording of the provision, which states that the Parties ‘shall ensure’ the burial or cremation of the deceased rather than that the Parties ‘shall bury or cremate’ the deceased.
1645  The preferred option is the return of the remains of the deceased to their families so that they may bury or cremate them in accordance with their religious beliefs and practices. Another reason why this option is preferable is that it enables the families to mourn their loved ones.[16] Indeed, return of the dead to their families can be considered a basic humanitarian goal, recognized in both conventional and customary humanitarian law.[17]
1646  ‘Burial’ is defined as ‘the burying of a dead body’ and ‘to bury’ as ‘to place (a dead body) in the earth or a tomb’.[18] Burial usually involves placing the body of the deceased in a coffin or body bag, or wrapping it in a shroud, and then depositing it in the earth. ‘Cremate’ means to ‘dispose of a dead person’s body by burning it to ashes’;[19] this includes both cremation in a formal crematorium and cremation on a hand-built pyre.
1647  Although the first paragraph refers to ‘burial or cremation’, it is clear from the second paragraph that the two options are not equal and that the Parties to the conflict are not able to choose freely between them. Burial is the preferred option, while cremation is allowed only in exceptional circumstances.[20]
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b. Individual burial or cremation
1648  Burial or cremation of the dead is to be carried out individually ‘as far as circumstances permit’. This is an aspect of the requirement that the dead be honourably interred. 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’.[21] Although that observation was made in 1930, it remains true today. Practical reasons also favour burial in an individual grave or individual cremation. Burial in an individual grave makes possible the eventual return of the remains of the deceased to the family or home country, it facilitates any later exhumation and identification, and it avoids the disturbance of the final resting place of the other deceased. The requirement of burial in an individual grave does not preclude the interment of several bodies at the same time or in a common funeral but ensures that each body is committed separately. Individual cremation is of particular importance, as it would prove impossible otherwise to return the ashes of each deceased to their respective families.
1649  Reflecting the realities of armed conflict, the obligation of burial in an individual grave or of individual cremation is not an absolute one. Rather, it is to be fulfilled ‘as far as circumstances permit’. There is thus a presumption that burial or cremation will be carried out individually, and it will be up to the Party departing from the obligation to demonstrate that circumstances did not so permit. Burial in a collective grave or collective cremation should be an exceptional measure. Use of the word ‘circumstances’ makes clear that the reasons for burial in a collective grave or collective cremation are not limited to military ones. Such circumstances may include the sheer number of deceased, lack of manpower and military necessity.[22] Public health grounds do not generally justify burial in a collective grave.[23] Despite the sometimes ingrained fear that dead bodies will cause epidemics, the risk to health from dead bodies is negligible.[24]
1650  The obligation to bury or cremate the dead individually is to be construed strictly. If circumstances do ‘permit’ burial in an individual grave or individual cremation, that is required as a matter of legal obligation. Circumstances that merely make burial in an individual grave or individual cremation more difficult do not excuse the Parties from their obligations under the article. This will be a question of fact. Burial in a collective grave is also rendered unnecessary if facilities for temporary conservation of the bodies, such as ice, electricity or embalming fluids, are available.[25] Burial in an individual grave or individual cremation is necessarily a more onerous and time-consuming task than burial in a collective grave or collective cremation. This does not, by itself, excuse the Parties from their obligation as the obligation would then be vitiated; it only excuses the Parties if this transforms the circumstances into ones that do not permit individual burial or cremation. It is only in such cases that burial in a collective grave is permitted as it is preferable to the deceased being left on the battlefield.
1651  If the circumstances do not permit burial in an individual grave, certain requirements of burial in a common grave should be respected as an absolute minimum. The choice is not between individual burial and dumping bodies in a mass grave. The dead should be buried in a trench, in one layer only and not on top of one another; bodies should be interred at certain intervals, parallel with one another, and ideally in separate body bags or shrouds.[26] They should be ‘laid out in a recognizable sequence, preferably side by side’, with a marker indicating the start of the sequence. Two lists indicating the sequence should be drawn up, one being left beneath the marker, the other with the record of the grave.[27] The Party might not be able to provide a separate grave for each deceased, nor might it be able to perform individual funeral ceremonies. However, it must do its utmost to ensure that subsequent exhumation and identification of every individual will be possible and that each deceased is treated with respect. Such precautions will also assist in establishing that circumstances genuinely did not permit individual burial and that the Party was not intending, rather, to hide evidence of a violation of the law or to ignore its obligations.
1652  Given that cremation is only permitted in exceptional cases,[28] and that collective burial of the dead is also exceptional, collective cremation would be justified under the law only in the rarest of circumstances. As collective cremation makes subsequent identification and the return of the ashes to the family or home country impossible, it is to be hoped that a Party to a conflict will never resort to it.
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c. Personal scope of application
1653  The obligation to bury or cremate the dead is vested in the ‘Parties to the conflict’. Accordingly, the Parties cannot assume that the dead will be honourably interred by other persons or entities, such as the National Red Cross or Red Crescent Society, but will have to ‘ensure’ that those persons or entities take on this responsibility.
1654  The phrase ‘shall ensure’ is employed here for the first time in the Convention. It is not new, however, having been used to introduce the same provision in the Conventions of 1929 and 1906. The verb ‘to ensure’ means ‘to make certain that (something) will occur or be so’.[29] The compulsory nature of the obligation is reinforced by the preceding word, ‘shall’. This does not mean that the Parties have to bury or cremate the dead personally; the obligation can be delegated to other persons or entities. However, if they do, the Parties are required to make certain that the obligation is fulfilled. Alternatively – and this is the preferred option – the Parties may return the bodies of the deceased to their families for burial or cremation. Accordingly, there is no justification for thinking that the task is optional. On the contrary, in calling upon the Parties to the conflict to ensure that it is carried out, the Convention is once more drawing attention to the importance of the task and to the necessity of accomplishing it.
1655  In contrast with Article 16, which refers to the dead ‘of the adverse Party falling into [the] hands’ of a Party to the conflict, reference in the present provision is made simply to ‘the dead’. The different scope of application of the two provisions can be explained by the fact that Article 16 relates to records of the dead which are then forwarded to the other side through intermediaries.[30] There is thus no reason to include the dead of the side of the Party in question within the scope of that article, given that such records would not be forwarded to the adverse Party. Article 17, for its part, contains obligations of a different sort, namely respect for the dead, such respect being equally applicable to all the dead regardless to which Party they belong. Their differing subject matters thus explain why Article 16 refers to the dead ‘of the adverse Party’, whereas Article 17 refers to the dead without further qualification.[31] Likewise, Article 15, on the search for the dead, applies to the dead generally and not only to the dead of the adverse Party.[32] While it may be commonly assumed that Parties will always treat their own forces humanely, the history of international humanitarian law has proved otherwise. After all, it was concern for the wounded, sick and dead of both Parties to the Battle of Solferino that moved Henry Dunant to call for the creation of relief societies and not just one Party’s treatment of those of the adverse Party.[33]
1656  The present provision is closely related to the equivalent provision in Article 120 of the Third Convention, with both provisions governing the treatment of dead combatants. Their application differs in that the present provision is essentially concerned with the dead picked up on the battlefield, whereas Article 120 of the Third Convention is essentially concerned with prisoners of war who have died in captivity. However, the substantive rules contained in the present article and in Article 120 of the Third Convention are largely the same.
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2. Examination of the body prior to burial or cremation
a. The obligation
1657  The Parties to the conflict are under an obligation to ensure that bodies undergo a ‘careful examination’ prior to their burial or cremation.[34] The examination serves to confirm death, establish identity and enable a report to be made.
1658  The Parties to the conflict ‘shall ensure’ a careful examination is carried out. The phrase ‘shall ensure’, as used here, has the same meaning as that discussed above.[35] Accordingly, while the Parties do not have to undertake the examination themselves, referring it, for example, to a competent medical examiner outside the armed forces, they must make sure that the examination is carried out. The obligation exists regardless of whether the burial is in an individual or a common grave. The task in question is not optional. On the contrary, in calling upon the Parties to the conflict to ensure that it is carried out, the Convention is once more drawing attention to the importance of the task and to the necessity of accomplishing it.
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b. Purpose of the examination
1659  The requirement of an examination of the body serves a particular purpose. This is evident from the language of the provision, which states that the examination is to be undertaken ‘with a view to’ reaching certain conclusions. The purpose is threefold: ‘confirming death, establishing identity and enabling a report to be made’. Each component is important, although the last follows on from the first two.
1660  Death must be confirmed in order to avoid the terrible tragedy of burial or cremation of a person who appears to be dead but is in fact alive. The term ‘dead’ is thought to be self-explanatory.[36] Medically, death is understood as the permanent cessation of all vital functions of the body, including the heartbeat, brain activity, including the brain stem, and breathing.[37]
1661  The identity of the deceased is to be established with as much certainty as possible. All feasible measures must be taken in this respect.[38] They include a thorough examination of all documents and other objects found on the deceased’s person. Besides examining such items, recourse must be had to other methods which will make it possible to establish the person’s identity. In the past, measurements and description of the body and its physical features and examination of the teeth were the methods of choice. Since then, methods of identification have evolved considerably, and a wider range of possibilities is available today to assist Parties in complying with this obligation. These include taking photographs and/or video of the body and the face, taking prints of all the fingers, and collecting a hair sample (including the roots) for later DNA analysis.[39] However, a description of the person’s physical features remains important,[40] while the more recent means of identification should be regarded as complementary. A holistic approach to identification is required, as visual recognition on its own, including through photographs, can be unreliable. Although not all Parties may have access to all forms or means of identification, the absence of a qualified forensic service or poor technical capabilities cannot excuse a Party’s failure to comply with the underlying principles on which the provisions are built. Organizations such as the ICRC can also assist Parties with the development and dissemination of protocols, capacity building and the acquisition of the necessary equipment.
1662  Identification 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.[41] Sensitivity is required if the images are shown to the family of the deceased.
1663  The person’s identity is to be established in order to account for the missing and provide information to the families, in the light of one of the central principles of this area of the law, namely ‘the right of families to know the fate of their relatives’.[42]
1664  The obligation is one of conduct, to be carried out with due diligence, rather than one of result.[43] Accordingly, failing to identify the deceased after taking all feasible measures to do so, does not constitute a violation of the article.
1665  The obligation to take all feasible measures to identify the deceased extends beyond the conclusion of the conflict. This is evident from the obligations in respect of the missing.[44]
1666  Also for reasons of identification, one half of the double identity disc, or the identity disc itself if it is a single disc, should remain on the body at all times.[45] A tag bearing a unique identifying reference number on a waterproof label should be attached to the body.[46] Both of these measures will assist with any later establishment or confirmation of identity of the deceased, for example in the case of exhumation. The effect of this provision is that no members of the armed forces, living or dead, may be deprived of their identity disc. The fact that military authorities may thus be certain of always being able to identify their own personnel again, unless in very exceptional circumstances, should encourage those of them who have not already done so to make universal use of the identity disc, preferably a double one.
1667  A report must be made to provide a record of the confirmation of death and of the identity of the deceased or, as the case may be, of the inability to determine such identity. The report should include the means by which the individual was identified, such as through the identity papers found on the body and the information contained in them.[47] The report should also give the location of death or where the body was found, as precisely as possible, including in the form of GPS coordinates where available. This will help to prevent misidentification of the person in question as well as, at the domestic level, allow for more detail to be issued in a death certificate. Later, the place of burial – in the form of GPS coordinates or other salient markings – and the particulars of the grave will be added, so that the grave can always be found. These initial measures will enable the death to be conveyed with the least possible delay to the national information bureau, which will in turn inform the adverse Party. They will further facilitate the subsequent work of the graves registration service, one of the principal tasks of which is to group the graves and draw up lists of them.[48] The report will also enable any follow-up, such as exhumation and the possible return of the body to the family or to the home country. It might also have consequences at the domestic level, such as enabling a death certificate to be issued and, in turn, the family to receive benefits to which they are entitled.
1668  Although the article explicitly mentions only the three aforementioned purposes, examination of the body also serves other purposes. For example, it should, if possible, establish the date and time of death of the individual as accurately as possible and the cause of death, which are mentioned in Article 16. A statement of the date and time of death – or, where the date or time is only presumed, the reasons for this presumption – should be included in the report.
1669  The purposes set out in the article have implications for the nature of the examination.
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c. Nature of the examination
1670  A ‘careful examination’ is required. Accordingly, a perfunctory examination will not suffice, nor will an examination that is designed merely to ‘tick the box’ that the Party in question complied with its obligations under the present article. The examination must be a genuine and thorough one that aims to serve the purposes set out in the article and discussed above.[49]
1671  The phrase a ‘careful examination’ has a second meaning. The body of the deceased is also to be treated with care and respect at all times – before, during and after the examination. The examination cannot result in mutilation or despoliation for example.[50] Medical or scientific experiments on the body are prohibited.[51] The examination must not be used as an opportunity to display the body to the public at large as this would be inconsistent with the requirement that the dead be ‘honourably interred’.[52]
1672  The examination of the body of the deceased should be a medical one. Article 17 refers to ‘a careful examination, if possible … a medical examination’. The term ‘if possible’ does not mean that Parties are free to choose whether or not to undertake a medical examination. Rather, it allows for situations in which a medical examination is not feasible. This may arise, for example, where there are no, or not enough, medical examiners available and burial has to take place rapidly. In many situations, a medical examination will be possible. If a military medical examiner is not available, a civilian examiner may be. If neither is available, burial may be able to be delayed until an examiner can be reached. Refrigeration, for example, allows for the temporary storage of bodies. A medical examination is important also because in most States, a death certificate can only be issued following such an examination, and a death certificate might be needed, for example for the family to receive benefits to which they are entitled.
1673  Where a medical examination is not possible, the Party to the conflict must endeavour to carry out an examination akin to a medical examination. This may be undertaken, for example, by a person who has medical training but who is not a qualified medical examiner. Certain members of the armed forces may have received instruction in how to treat bodies prior to the arrival of the forensic services,[53] and they may have to be called upon if the forensic services cannot be reached. Even if a medical examination cannot be undertaken, the Party must still seek to establish the identity of the deceased, for example by measuring and describing the body, taking photographs or video, collecting DNA samples and so on, and a report must still be made. At the very least, the Party must take all possible measures to ‘maximize the chances of systematic evaluation of the event and identification at a later date’.[54] The report should also specify that a medical examination could not be carried out and the reasons for this. This may also allow a medical examination to be performed at a later date if appropriate.
1674  It is imperative that the examination be carried out in a timely manner. It follows from the threefold purpose of an examination that it be carried out as soon as possible following the incident leading to the death. The notion of a ‘timely’ examination is inherently variable and will depend on the facts at hand. Military considerations or practical difficulties may affect the timing of the examination. For example, ensuing hostilities may delay the search for the dead.[55] The terrain, the available transport, or the distance from qualified examiners may also affect the timeliness of the examination. Nonetheless, these considerations do not detract from the need for a timely examination, and unnecessary delay is to be avoided. The number of dead may also affect the timeliness of the examination. However, it does not remove in its entirety the obligation to carry out the examination.
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D. Paragraph 2: Cremation of bodies
1675  Although the first paragraph refers to ‘burial or cremation’, it is evident from the language of Article 17(2) – ‘[b]odies shall not be cremated except for …’ – that burial is the norm. The fact that the reasons for cremation have to be provided ‘in detail’, whereas no such reasons have to be provided in the case of burial, confirms this conclusion.
1676  The main reason why burial is favoured over cremation today is that the latter is irreversible. Should the family of the deceased wish to cremate their loved one, it remains possible for them to do so, even if the deceased was previously buried. It is also easier for a Party to hide violations of the law by cremation than by burial. As happened in the Second World War, the traces of crimes under international law were effaced by cremation,[56] a situation that was fresh in the minds of those attending the Diplomatic Conference.[57] Confirmation of the identity of the deceased is also rendered impossible in the case of cremation and, therefore, unidentified individuals must in no circumstances be cremated.
1677  Article 17 allows for cremation only in two limited situations, namely ‘imperative reasons of hygiene’ and ‘for motives based on the religion of the deceased’.
1678  Historically, certain beliefs regarding hygiene may have led to the choice of cremation over burial. However, science has since proven these beliefs to be unfounded. The wording of the article suggests that a high threshold must be met, for it is not simply any reason of hygiene but ‘imperative’ reasons of hygiene. The qualifier ‘imperative’ in this context indicates that the Party must be left with no other choice than to cremate. The imperative reasons of hygiene are not limited to the threat to the health of the Party alone but also to the health of, for example, civilians in the vicinity. In the past, hygiene considerations were prompted mainly by the fear of outbreaks of disease. Today, it is recognized that such concerns do not necessitate cremation rather than burial,[58] as the risk to public health from dead bodies is negligible.[59] Accordingly, based upon medical insights gained since 1949, the first situation justifying cremation rarely applies.
1679  The second exceptional situation, relating to the religion of the deceased,[60] is linked to the third paragraph, concerning the honourable interment of the dead in accordance with the rites of their religion.[61] Certain knowledge that the deceased belonged to a religion that favours cremation would militate for cremation of the body.[62] Ultimately, however, the decision of whether or not to cremate should be based on the individual’s wishes, if expressed, or beliefs and not on the preferences of the Party on whose behalf the deceased was fighting. Today, many States are multicultural, so the religion of the majority may not be that of the deceased. As is clear from Article 17(2), the exception for religion relates to the religion ‘of the deceased’ and not to the primary religion of the State concerned or of its armed forces. It would be difficult to determine the religion of a particular individual based on physical appearance so other factors must be considered in reaching a conclusion. If the deceased’s religion cannot be ascertained or the person is found to be an agnostic or an atheist, burial must be the preferred choice. Likewise, in case of doubt, the Party must err on the side of burial. All this follows from the preference expressed in the article for burial over cremation. Thus, only in limited situations will the exception for cremation based on religion apply. Even then, for the reasons mentioned above,[63] it would be preferable for the body of the deceased to be returned to the family for cremation.
1680  A third exceptional situation exists, although the article does not mention it explicitly, namely the wish to be cremated expressed by the individual, not necessarily motivated by religious reasons.[64] The reason why there is no mention of this additional exception in this article, unlike in the Third Convention, is likely to be because it was felt that the present provision was essentially concerned with the dead picked up on the battlefield. Nonetheless, the situation can arise even in respect of the First Convention, for example when a person expresses the desire to be cremated shortly before passing away on the battlefield or on the way to medical treatment. In such cases, the Party to the conflict may choose to respect the wish of the deceased. It is imperative that the person’s wish be explicit. Certain safeguards should also be in place to ensure that the wish is freely expressed. This may take the form of an independent witness or the desire expressed in writing by the deceased, although these will not always be to hand. Again, in such a situation, it would be preferable for the body of the deceased to be returned to the family to perform the cremation.
1681  If the deceased is cremated, Article 17 requires that the circumstances surrounding the cremation and the reasons for cremation be given. This requirement demonstrates the exceptional nature of cremation. The circumstances and reasons are to be provided ‘in detail’. Accordingly, it will not suffice to specify solely that the reason for cremation was the ‘religion of the deceased’. Rather, the various factors that led to the finding of the religion of the deceased need to be spelled out. This also applies in the case of the wish of the individual; indeed, a greater level of detail would be expected to be provided in such a case. Sufficient detail should be given to satisfy the Party’s obligations under the article and to provide information to the adverse Party and the family of the deceased. The level of detail will vary according to the situation. The circumstances and reasons are to be provided ‘in the death certificate or on the authenticated list of the dead’. If the wish was manifested in writing, this should be appended to the death certificate or enclosed with the authenticated list of the dead.
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E. Paragraph 3: Honourable interment
1682  Article 17(3) contains a number of related obligations for the Parties. First, they must ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged. Second, they have certain obligations in respect of the graves, namely to ensure they are respected, grouped if possible according to the nationality of the deceased, and maintained and marked. To fulfil the second set of obligations, the Parties must organize, ‘at the commencement of hostilities’, an official graves registration service, which has specific functions.
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1. Honourable interment
1683  The Parties to the conflict shall ensure that the dead are honourably interred. This obligation constitutes the minimum respect for the remains of the deceased,[65] and is of long standing.[66] The language ‘shall ensure’ has been discussed above and applies equally here.[67]
1684  The obligation to inter the dead honourably is an absolute one. It has both positive and negative aspects. Parties must respect the body of the deceased, the burial site and the interment ceremony. This includes, for example, choosing an appropriate site for burial if the body of the deceased is not returned to the family.[68] It also prohibits the deliberate contamination of the site and offensive acts on the site, such as littering or urination. It prohibits burial of the deceased with, for example, items that may be considered offensive to the deceased such as the insignia of the adverse Party. It involves respecting and not disrupting the interment ceremony, for example observing a minute’s silence if that is a feature of the ceremony. The Party must also ensure that other persons respect the interment process.
1685  Criminal prosecutions have been brought for preventing the honourable burial of the dead.[69]
1686  The interment is to take place, if possible, according to the rites of the religion to which the deceased belonged. The inclusion of the phrase ‘if possible’ confirms that this obligation is not an absolute one; the situation may preclude the interment of the dead in this manner. However, as indicated above where the phrase is discussed in greater detail,[70] the language ‘if possible’ also makes clear that the Parties are not given a free choice in the matter. Where interment according to the rites of the religion of the deceased is ‘possible’, Parties must act accordingly. Nonetheless, in certain situations, it will not be possible. It may not be possible to ascertain the religion to which the deceased belonged. If it can be ascertained, the Party may not be able to locate an appropriate religious figure or a necessary component of the rite.[71] In such a case, the Party may well be able to comply with certain aspects of the rites of the religion but not others, for example the saying of a prayer, or burial facing a particular direction. A religious figure may preside over the burial, even if not of the religion of the deceased; if no religious figure is available, another individual may preside over the burial.[72] Accordingly, the phrase ‘if possible’ is to be read as meaning ‘as far as possible’, demonstrating that it is not a choice between all of the rites of the religion to which the deceased belonged and none of them.
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2. Graves
1687  The Parties have particular obligations in respect of the graves of the deceased. A grave is understood to be ‘a hole dug in the ground to receive a coffin or corpse’,[73] and thus relates to that part of the earth that houses the deceased – or part of the remains of the deceased if, for example, the body does not consist of a single whole. It is not limited to formal burial grounds, such as a cemetery. Collective graves fit this description as much as individual ones do. As is evident from the definition, the earth in question must house the remains of the deceased. Thus, an empty tomb does not constitute a grave, whereas a monument containing the bones of a deceased does. If a monument and a grave together form a single whole, the entire object must be treated as a grave.[74] Likewise, a temporary grave from which the deceased has been removed does not constitute a grave as from the time of removal.[75] This does not mean that that site should not be afforded certain special treatment, for example a prohibition on building on the site; however, that is a matter for domestic law.
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a. Respect for graves
1688  The Parties to the conflict are to ensure that the graves are ‘respected’. This can be derived from the obligation to respect the dead. The principle of unqualified respect for fallen enemies holds good even after death.
1689  The obligation to ensure respect for the graves has both negative and positive components. The Parties themselves must not disrespect the graves, a point that applies also to all entities and individuals whose conduct can be attributed to the Parties. This prohibits such actions as vandalizing or removing headstones, razing or dismantling gravesites, and disinterring bodies, unless exhumation is authorized by international humanitarian law.[76] Importantly, the article does not limit this obligation to the Parties’ own conduct; rather, they are obliged to ‘ensure’ that the graves of the dead are respected.[77] Consequently, the Parties must take measures to prevent other persons or entities from disrespecting the graves. This obligation includes such actions as adopting legislation protecting graves and taking measures to ensure the security of graves, for example by constructing a security perimeter, particularly during and immediately after a conflict, when tensions may remain high.
1690  One aspect of respecting the graves is specifically mentioned in the article, namely maintenance.[78]
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b. Grouping of graves
1691  The Parties are to ensure that the graves are ‘grouped if possible according to the nationality of the deceased’. The obligation has two aspects: the obligation to group the graves and, if possible, to group them according to the nationality of the deceased. Of the two aspects, it is the grouping of the graves that is the more important. This is demonstrated by the inclusion of the words ‘if possible’ in relation to the manner in which the graves are to be grouped. The provision was aimed at avoiding the hasty roadside burials which were so frequent a feature of the wars that were fought immediately prior to the Diplomatic Conference of 1949. Grouping of graves is thus related to respect for the dead and an honourable interment, transforming a stretch of land into a cemetery rather than a series of ad hoc individual graves. It also facilitates later exhumation.
1692  The second aspect refers to the manner in which the graves are to be grouped: if possible according to the nationality of the deceased. Grouping on the basis of nationality is the one which military authorities will most naturally select. Grouping in this manner will make it possible for countries to pay collective tribute to their dead at a later date. It also assists with later exhumations and the return of remains to the home country.[79] The phrase ‘if possible’ makes clear that the obligation is not an absolute one but will depend on the situation at hand. Military considerations or the sheer number of bodies may make grouping according to nationality impossible. Likewise, the Parties may be unable to identify the nationality of the deceased, for example in a conflict with numerous Parties and where the bodies could not be identified.
1693  Grouping according to nationality is particularly important in the case of burial in a collective grave. As burial in a collective grave is allowed only where circumstances do not permit individual burial,[80] time will likely be a key factor. Nonetheless, there may be situations in which time does not allow for individual burial but does allow for grouping according to the nationality of the deceased.
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c. Maintenance and marking of graves
1694  The Parties shall ensure that the graves are ‘properly maintained and marked so that they may always be found’. The Parties are thus under two distinct but interrelated obligations: the obligation properly to maintain graves and the obligation to mark graves. The two are also linked to the broader obligation to respect the graves. If graves are not properly maintained, for example by being allowed to become overgrown with vegetation, the presence of the grave may be obscured, making respect for the grave more difficult. Proper maintenance also means that headstones must be repaired or replaced if necessary. Likewise, if a grave is not marked, it would be difficult to ensure respect for it as it might not be identifiable as a grave.
1695  In addition, the article provides that the graves be marked so that they ‘may always be found’. Thus, name plates on graves must be maintained and must not be removed. Physical marking of the grave is important given that memories fade with the passage of time and what was once known to be a grave may later be forgotten.[81] That graves may always be found is also important for future exhumations,[82] which may take place years or decades after the burial. Proper marking of a grave is also necessary so that the family may visit it.[83]
1696  The brief reference in the article to the matter of marking gives no exact indication of what the marking should be. The essential point is that it should always be possible to find the grave. A mere number or group of symbols on the marker, corresponding to the particulars in the record, is hardly enough for the purpose, for the record may be destroyed. The reference number in the record can, and should, appear on the gravestone; but it is essential that the surname (family name) and first names and, if possible, the date of birth and date of death should also figure in the inscription. This is all the more essential in the case of common graves. The information should be inscribed in such a way as to be indelible and non-perishable in order to withstand the vagaries of the weather.
1697  All the above provisions, adapted accordingly, apply equally to ashes, as stated in the last sentence of the paragraph, which is discussed below.[84]
1698  Reference in the paragraph to the maintenance and marking of graves so that they ‘may always be found’ indicates that the obligation persists after the cessation of hostilities. The paragraph does not specify for how long the obligation continues. As the requirement of marking and maintaining gravesites involves financial expenditure, particularly where there are a great many deceased on the territory, the State on whose territory the graves are located cannot be expected to bear the cost ad infinitum for the maintenance of the graves of foreign nationals. Article 34 of Additional Protocol I sets out a procedure for this and, in the practice relating to the maintenance of graves, little differentiation is made between graves in respect of which the Protocol applies and graves in respect of which it does not. Agreements have been concluded on the subject in respect of conflicts that ended before the entry into force of the Protocol.[85] Furthermore, graves commissions tend to maintain graves from a variety of conflicts.[86]
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3. Graves registration service
a. Creation of an official graves registration service
1699  In order to facilitate the fulfilment of the obligations described above, the Parties must establish an official graves registration service. Such a service may be vested in the armed forces; it may be another part of government; or it may take the form of a non-governmental entity.[87] If the last, it needs to be ‘official’ in the sense of being created by the Party to the conflict or having sufficient connections with the Party to be able to carry out its functions, and the State would remain responsible for it. The graves registration service need not be called a ‘graves registration service’ in order to be one. However, it must carry out the functions set out in the article, and the Party as well as other Parties should be aware that, although named differently, it is the equivalent of the graves registration service envisaged in the article.
1700  In practice, the majority of States have permanent military graves services which are responsible in peacetime for the maintenance of the graves of members of armed forces who have fallen in battle. After all, the obligation was first contained in the 1929 Geneva Convention on the Wounded and Sick.[88] These services are very well equipped, and are in a position on the outbreak of hostilities either to take over themselves the maintenance and listing of enemy graves or to form a special section for the purpose. Although States are free to decide how to implement this obligation, in view of the specialized nature of the duties involved, the 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.
1701  According to Article 17(3), the graves registration service is to be established ‘at the commencement of hostilities’. In certain circumstances, the Parties ought to establish the graves registration service even prior to the commencement of hostilities, such as following a declaration of war.[89] Persons may be killed at any time, resulting in obligations for the Parties in respect of those deceased also at any time. In light of the functions of the service, it is too late to establish it part way through the conflict or, worse, at the conclusion of the conflict. For this reason, there is a practical need to make preparations for a graves registration service in peacetime.
1702  The article does not stipulate an end date for the operations of the graves registration service. Given its functions, it is evident that the service does not – indeed cannot – cease to exist at the conclusion of the conflict. Exhumation and possible repatriation of bodies may take place more frequently after a conflict than during it. For this reason, graves registration services created during the First World War, such as the Commonwealth War Graves Commission (previously the Imperial War Graves Commission) exist to this day. This does not mean, however, that services are intended to carry out their functions ad infinitum. The temporal considerations discussed above apply here.[90]
1703  The article provides for specific functions of the graves registration service, namely to allow exhumations, ensure identification of bodies and facilitate possible transportation of the body to the home country. The functions of the service are also linked to the obligations of the Parties in respect of the graves, discussed above.[91]
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b. Functions of the graves registration service
1704  The graves registration service has two sets of functions. The first set relates to the obligations of the Parties discussed above, namely to ensure respect for the graves, their grouping, and their proper maintenance and marking so that they may always be found. Hence, the article provides that it is ‘[f]or this purpose’ that an official graves registration service must be created. During the conflict, the service will prove important for all three of this set of functions; after the conflict is over, as time passes, the last of these functions will take precedence. The service thus has to mark clearly any graves which have not yet been marked or which have been marked inadequately. It also has to maintain a list showing the exact location and markings of the graves, which will be exchanged with the equivalent list maintained by the graves registration service of the adverse Party.[92]
1705  During the 1949 Diplomatic Conference, a proposal was made to add further details to the duties of the graves registration service. In particular, it was proposed that the service would be tasked with ‘record[ing] particulars of all cremations and burials including the location of graves’.[93] The proposal was not adopted as it was thought that the duties of the service were ‘already clearly implied by the very name of the Service’.[94] Either way, it is evident that recording particulars of cremations and burials, including the location of graves constitutes an important function of the service.
1706  The second set of functions is noted in the context of the creation of the graves registration service. These functions are also threefold, namely to allow subsequent exhumations, to ensure the identification of the bodies and to assist in the possible transportation to the home country. Exhumations of the buried may take place at a later date, for example to confirm the identity of the individual or to repatriate the remains. It will be important to have a centralized body that can assist with such exhumation. The service is also to ensure the identification of the body. As identification should have taken place at the time of the examination of the body,[95] the service will be responsible primarily for keeping track of any change in the burial site or the transfer of the body.
1707  Both the function of subsequent exhumation and the function of identifying the bodies arise ‘whatever the site of the graves’. Although an ambiguous reference, the phrase is merely an updating of the 1929 Convention, which contained the associated phrase ‘whatever may be the subsequent site of the grave’.[96] This, together with the phrase ‘dead interred in their cemeteries and elsewhere’ in the subsequent paragraph of the 1929 Convention, reveals that the phrase is intended to cover bodies that are buried in graves other than in cemeteries, that is to say all graves.
1708  Lastly, the service is to assist in the possible transportation of the body to the home country. This allusion to the possible return of bodies was introduced for the first time at the Diplomatic Conference. Certain delegations at the Conference proposed making the provision imperative; others wished to omit it altogether.[97] It is the custom in some countries to bring the dead home at the close of hostilities, while others prefer to have them buried in the actual theatre where they have fallen. To satisfy both customs, the clause was left optional and the wording ‘possible return’ used. Article 34 of Additional Protocol I contains further provisions on the return of the remains of the deceased.[98]
1709  Agreements have been concluded to allow graves registration services to carry out these functions.[99]
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c. Treatment to be afforded to ashes
1710  In light of the possibility in certain circumstances of cremation rather than burial of the dead, Article 17 also provides for the treatment to be afforded to the ashes of the cremated. As stated in the final sentence of the paragraph, the foregoing provisions apply also in respect of the ashes. The ashes are to be kept by the graves registration service until their proper disposal in accordance with the wishes of the home country.
1711  Until such time as this can be ascertained, the ashes are to be treated with the same respect as the buried given the equivalence, in this regard, between burial and cremation. This means, for example, that the ashes must be collected, preferably in urns. They are to be stored in an appropriate place with suitable surroundings and not be discarded or forgotten about. Given that the article provides for the keeping of the ashes until their proper disposal, the service must not scatter the ashes. The ashes must also be protected against sacrilege of any kind and from the climate. They must be clearly marked to denote their contents as ashes and with all the particulars for which provision is made in the case of graves.
1712  Although the article refers to the proper disposal of the ashes in accordance with ‘the wishes of the home country’, wherever possible the home country should take into account the wishes of the family of the deceased. Indeed, the equivalent provision of the Fourth Convention provides that the ashes ‘shall be transferred as soon as possible to the next of kin on their request’,[100] and such a position ought to be adopted also in this context.
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F. Paragraph 4: Exchange of lists showing the location and marking of graves
1713  The graves registration services of the Parties to the conflict are to exchange ‘lists showing the exact location and markings of the graves together with particulars of the dead interred therein’. The 1929 Convention provided only for the exchange of ‘the list of graves and of dead interred’.[101] This was not sufficiently explicit and lists giving only these particulars would undoubtedly have been incomplete, and would not always have made it possible to locate the exact site of a particular grave or to identify the body contained in it. Accordingly, the present article provides that the lists must show the ‘exact’ location and markings of the graves. This may be assisted by the provision of maps, GPS coordinates and the like. The particulars of the dead are those mentioned in Article 16 of the First Convention.
1714  Article 17 sought to provide more information on the graves and the dead interred in them to the adverse Party than the 1929 Convention. It did not seek to limit the information to be provided. Accordingly, any other pertinent information, such as the report drawn up following the examination of the body of the deceased,[102] should also be provided. Indeed, during the latter part of the Second World War, ‘[a] regular exchange of photographs of graves was established’.[103]
1715  The exchange of lists is to take place through the information bureaux mentioned in Article 16(2) of the First Convention, i.e. each Party’s information bureau for prisoners of war.[104] Although the word ‘exchange’ is used, suggesting that there should be a simultaneous handing over of information, there is no reason why the communication of these particulars should take the form of an exchange in the strict sense of the word. There would not appear to be any necessity for them to be communicated simultaneously by the Parties. Indeed, the handing over of information other than in a simultaneous manner is to be encouraged given that international humanitarian law does not operate on the basis of de jure reciprocity and the failure of one side to live up to its obligations does not excuse the other side from complying therewith. Likewise, reference to the information bureau in the article does not mean that, should one side not establish one, the relevant information cannot be exchanged. For example, it has also been done through the intermediary of the ICRC.
1716  The exchange is to take place ‘[a]s soon as circumstances permit, and at latest at the end of hostilities’. Reference in the article to ‘as soon as circumstances permit’ confirms that the obligation is a pressing one, owing to the right of the families to know the fate of their relatives,[105] the desire of the Parties to know the whereabouts of their personnel, and the obligations of the Parties in relation to the missing.[106] At the same time, the clause recognizes that the exigencies of the conflict might make the immediate exchange of lists impossible. For example, the sheer number of deceased may require the graves registration service to focus its attention on the grouping and marking of graves. Such exigencies no longer exist once hostilities are over, and the article provides for this with its statement that the lists must be exchanged ‘at latest at the end of hostilities’. The term ‘the end of hostilities’ is ambiguous but refers to the cessation of hostilities rather than the conclusion of hostilities. The equivalent provision in the 1929 Convention states explicitly ‘[a]fter the cessation of hostilities’,[107] and the wording of the 1949 Convention was intended only to reflect the fact that exchanges could take place during hostilities, as was the case during the Second World War,[108] and was not limited to the aftermath of the hostilities. Furthermore, the exigencies of the situation following the cessation of hostilities would likely make the exchange of lists possible.
1717  The exchange of lists is not a one-off obligation; rather, it is an ongoing obligation. In practice, lists are provided by the Parties, or requested by the ICRC, as soon as it is known that a person has died.
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Select bibliography
Bothe, Michael, ‘War Graves’, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 4, North-Holland Publishing Company, Amsterdam, 2000, pp. 1373–1374.
Capdevila, Luc and Voldman, Danièle (eds), War Dead: Western Societies and the Casualties of War, Edinburgh University Press, 2006.
Elliott, H. Wayne, ‘The Third Priority: The Battlefield Dead’, Army Lawyer, July 1996, pp. 3–20.
Froidevaux, Sylvain, ‘L’humanitaire, le religieux et la mort’, International Review of the Red Cross, Vol. 84, No. 848, December 2002, pp. 785–801.
Gavshon, Daniela, ‘The Dead’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 277–296.
Harvey, Peter, Baghri, Sohrab and Reed, Bob, Emergency Sanitation: Assessment and Programme Design, Water, Engineering and Development Centre, Loughborough University, 2002.
Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, available at https://www.icrc.org/customary-ihl/eng/docs/v1.
ICRC, Operational Best Practices Regarding the Management of Human Remains and Information on the Dead by Non-Specialists, ICRC, Geneva, 2004.
Morgan, Oliver, Tidball-Binz, Morris and van Alphen, Dana (eds), Management of Dead Bodies after Disasters: A Field Manual for First Responders, Pan American Health Organization/World Health Organization/ICRC/International Federation of Red Cross and Red Crescent Societies, Geneva, 2009.
Petrig, Anna, ‘The war dead and their gravesites’, International Review of the Red Cross, Vol. 91, No. 874, June 2009, pp. 341–369.
Sassòli, Marco and Tougas, Marie-Louise, ‘The ICRC and the missing’, International Review of the Red Cross, Vol. 84, No. 848, December 2002, pp. 727–750.
Tidball-Binz, Morris, ‘Managing the dead in catastrophes: guiding principles and practical recommendations for first responders’, International Review of the Red Cross, Vol. 89, No. 866, June 2007, pp. 421–442.
Wisner, Benjamin and Adams, John (eds), Environmental health in emergencies and disasters: A practical guide, World Health Organization, Geneva, 2002.

1 - Second Convention, Articles 18 and 20; Third Convention, Article 120; Fourth Convention, Articles 129 and 130; Additional Protocol I, Article 34.
2 - See also First Convention, Article 15 (protection of the dead against despoliation).
3 - See Additional Protocol I, Articles 32–33; see also ICRC Study on Customary International Humanitarian Law (2005), Rule 117.
4 - Oxford Manual (1880), Articles 17 and 20.
5 - Geneva Convention (1906), Article 3.
6 - Ibid. Article 4.
7 - ‘Geneva (Red Cross) Conference of 1906’, in Papers relating to the Foreign Relations of the United States with the Annual Message of the President transmitted to Congress December 3, 1906, Government Printing Office, Washington, 1909, Part Two, p. 1557.
8 - United Kingdom, War Office, Manual of Military Law, London, 1914, p. 267.
9 - See Lassa Oppenheim, International Law: A Treatise, Vol. II, War and Neutrality, Longmans, Green and Co., London, 1906, p. 128, and James Molony Spaight, War Rights on Land, Macmillan, London, 1911, p. 431 (implicitly). See also United Kingdom, War Office, Manual of Military Law, London, 1914, p. 267 (implicitly – ‘the principle that even the enemy’s dead should be given burial is generally admitted’).
10 - Geneva Convention on the Wounded and Sick (1929), Article 4. In addition to the obligations repeated from the 1906 Geneva Convention, the 1929 Convention required, inter alia, that the dead be honourably interred, that their graves be respected and marked, and that a graves registration service be created.
11 - See the commentary on Article 4, para. 940.
12 - Geneva Convention on the Wounded and Sick (1929), Article 4.
13 - See e.g. Sophie Martin, ‘The Missing’, International Review of the Red Cross, Vol. 84, No. 848, December 2002, pp. 723–726, at 723 and 725.
14 - See e.g. Australia, Manual of the Law of Armed Conflict, 2006, paras 9.103–9.104 (‘The minimum respect for the remains of the dead is a decent burial or cremation’); Canada, LOAC Manual, 2001, para. 925.5 (‘Parties to the conflict shall ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belong’); Croatia, Commanders’ Manual, 1992, para. 76 (‘As a rule, the dead shall be identified and buried, cremated or buried at sea individually’); Italy, LOAC Elementary Rules Manual, 1991, para. 76 (‘As a general rule, the dead shall be … buried, cremated or buried at sea individually’); Russian Federation, Regulations on the Application of IHL, 2001, para. 164 (‘Search for, collection, identification and burial of the dead members of the enemy armed forces as well as of other victims of armed conflicts shall be organized immediately, as soon as the situation permits, and carried out to … bury them with due dignity and respect as required by ethical principles’); Spain, LOAC Manual, 1996, Vol. I, para. 5.2.d.(6) (‘The dead shall be buried, cremated or buried at sea as soon as the tactical situation and other circumstances permit’); Ukraine, Manual on the Application of IHL Rules, 2004, paras 1.4.12 (‘As soon as the circumstances allow, all parties to an armed conflict shall … organize the search for the dead to … ensure their proper burial’); and United States, Operational Law Handbook, 1993, p. Q-185 (‘The Parties must ensure proper burial.’).
15 - For instance, following the conflict between Armenia and Azerbaijan in the early 1990s, the ICRC acted as a neutral intermediary in the return of the remains of the deceased. See ICRC, Annual Report 2010, ICRC, Geneva, 2011, p. 315.
16 - ICRC, Accompanying the Families of Missing Persons: A Practical Handbook, ICRC, Geneva, 2013, pp. 36, 57–58 and 134.
17 - See Additional Protocol I, Article 34(2), and ICRC Study on Customary International Humanitarian Law (2005), Rule 114.
18 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, pp. 187 and 189.
19 - Ibid. p. 336.
20 - See section D.
21 - Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, Geneva, 1930, p. 32.
22 - Wisner/Adams, p. 199 (referring to number of deaths, climatic or other constraints).
23 - Tidball-Binz, p. 426, notes: Research has shown that the dead, including decomposing bodies, do not spread diseases after catastrophes unless they are in direct contact with drinking water. Instead, the surviving population is the most likely source of epidemics. The unfounded belief that the dead spread diseases is swiftly disseminated by the weary public after catastrophes and is often promoted by the media and on occasions even by misled sanitary authorities. The political pressure brought about by this belief too often causes authorities to call for hasty mass burials and cremations of unidentified bodies and for the use of ineffective ‘sanitary’ measures, such as the use of masks and spraying the dead with so-called ‘disinfectants’, which may truly pollute water sources. The mismanagement of dead bodies resulting from such hasty procedures may cause serious and long-lasting mental distress to bereaved families and communities exposed to the undignified handling of their dead and left unable to mourn their loved ones.
24 - See Morgan/Tidball-Binz/van Alphen, pp. 5–6 (‘The risk to the public is negligible because they do not touch dead bodies’); WHO Regional Office for South-East Asia, Disposal of Dead Bodies in Emergency Conditions, WHO/SEARO Technical Notes for Emergencies, Technical Note 8, p. 1 (‘health-related risks are likely to be negligible’); Harvey/Baghri/Reed, p. 135 (‘in the vast majority of situations, the health hazard associated with dead bodies is negligible’); and Tidball-Binz, p. 426. See also Wisner/Adams, p. 198: Dead or decayed human bodies do not generally create a serious health hazard, unless they are polluting sources of drinking-water with faecal matter, or are infected with plague or typhus, in which case they may be infested with the fleas or lice that spread these diseases.
25 - See Wisner/Adams, p. 199.
26 - See Tidball-Binz, p. 436, and ICRC, Operational Best Practices Regarding the Management of Human Remains, Annex E.
27 - ICRC, Operational Best Practices Regarding the Management of Human Remains, Annex H.
28 - See section D.
29 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 475.
30 - See the commentary on Article 16, section E.
31 - See also Thomas Erskine Holland, The Laws of War on Land, Clarendon Press, Oxford, 1908, p. 29, distinguishing between the obligations in Articles 3 and 4 of the 1906 Geneva Convention, the latter being considered to relate to the dead of the enemy alone. Article 3 of the 1906 Convention is equivalent to Article 17 of the present Convention, in relevant part, and Article 4 of the 1906 Convention to Article 16 of the present Convention.
32 - See the commentary on Article 15, para. 1511. See also Petrig, pp. 349–350.
33 - Henry Dunant, A Memory of Solferino, ICRC, Geneva, reprint 1986.
34 - On the meaning of ‘careful’, see paras 1670–1671.
35 - See para. 1654.
36 - Petrig, p. 344.
37 - Elizabeth A. Martin (ed.), Concise Medical Dictionary, Oxford University Press, 8th edition, 2010.
38 - ‘The Missing: Action to resolve the problem of people unaccounted for as a result of armed conflict or internal violence and to assist their families’, International Conference of Governmental and Non-Governmental Experts, Geneva, 19–21 February 2003, Observations and Recommendations, Point 11.1, reproduced in International Review of the Red Cross, Vol. 85, No. 849, March 2003, pp. 185–193, at 185.
39 - ICRC, Operational Best Practices Regarding the Management of Human Remains, Annex D. See also ICRC, Missing People, DNA Analysis and Identification of Human Remains, 2nd edition, ICRC, Geneva, 2009.
40 - These include: sex, approximate age, height, build, skin colour, hair colour and style, facial hair, eye colour, ethnic appearance, clothing and insignia, jewellery, tattoos, birthmarks, scars, visible dental abnormalities, unusually distributed hair, nicotine staining on fingers, condition of fingernails, and obvious deformities or malformations. See ICRC, Operational Best Practices Regarding the Management of Human Remains, Annex I. For further practical guidance, see Tidball-Binz, pp. 430–433.
41 - See Article 13 of the Third Convention and its commentary.
42 - See Additional Protocol I, Article 32. See also Henckaerts/Doswald-Beck, commentary on Rule 117, pp. 423–426, and Elliott, p. 11, noting that ‘part of the motivation for identifying the dead is to let their next of kin know their fate’. The uncertainty surrounding the fate of missing relatives causes real anguish for families. See also ICRC, Accompanying the Families of Missing Persons: A Practical Handbook, ICRC, Geneva, 2013, pp. 35 and 40–56.
43 - See Sassòli/Tougas, p. 731, and Petrig, p. 352. This is the case despite the seeming suggestion in the military manuals of certain States that the obligation is one of result. Examples of results-based obligations may be found in the military manuals of Argentina, Belgium, Benin, Burundi, the Central African Republic, Italy, Kenya, Madagascar, Senegal, Spain, and Togo. Military manuals indicating a conduct-based obligation include Cameroon, Canada, Cote d’Ivoire, Croatia, France, Germany, Hungary, Mexico, the Netherlands, New Zealand, Nigeria, Peru, the Philippines, Poland, the Russian Federation, Switzerland, Ukraine, the United Kingdom and the United States. See ICRC, Customary International Humanitarian Law, Practice relating to Rule 116, section A(III), available at https://www.icrc.org/customary-ihl/eng/docs/v2_rul.
44 - Additional Protocol I, Article 33 (‘As soon as circumstances permit, and at the latest from the end of active hostilities.’). See also Henckaerts/Doswald-Beck, commentary on Rule 117, pp. 426–427.
45 - On the identity disc, see the commentary on Article 16, paras 1569–1574.
46 - This number must be clearly marked at ground level and mapped for future reference. See Morgan/Tidball-Binz/van Alphen, p. 22.
47 - See also Article 16 and its commentary.
48 - See section F.
49 - See section C.2.b.
50 - On despoliation, see also the commentary on Article 15, section D.4. See also Additional Protocol I, Article 34(1) and ICRC Study on Customary International Humanitarian Law (2005), Rule 113.
51 - Pursuant to Article 50 of the First Convention, ‘biological experiments’ constitute grave breaches of the Convention.
52 - See Article 17(3); see also ICRC Study on Customary International Humanitarian Law (2005), Rule 115.
53 - See e.g. Colombia, Operational Law Manual, 2009, pp. 121–125.
54 - ICRC, Operational Best Practices Regarding the Management of Human Remains, para. 3.2.
55 - On the search for the dead, see the commentary on Article 15, section D.4.
56 - See e.g. United Kingdom, Military Court at Hamburg, Stalag Luft III case, Trial, 1947.
57 - ICRC, Report of the Commission on the Religious and Intellectual Needs of Prisoners of War and Civilian Internees of 1947, pp. 4–5. See also Elliott, p. 11.
58 - Tidball-Binz, p. 435; Harvey/Baghri/Reed, p. 135 (‘Health considerations alone provide no justification for cremation.’).
59 - ICRC, Management of Dead Bodies after Disasters, pp. 5–6. See also Wisner/Adams, p. 198 (‘Dead or decayed human bodies do not generally create a serious health hazard, unless they are polluting sources of drinking-water with faecal matter, or are infected with plague or typhus, in which case they may be infested with the fleas or lice that spread these diseases’); WHO Regional Office for South-East Asia, Disposal of Dead Bodies in Emergency Conditions, p. 1 (‘health-related risks are likely to be negligible’); Harvey/Baghri/Reed, p. 135 (‘the health hazard associated with dead bodies is negligible’); and Claude de Ville de Goyet, ‘Epidemics caused by dead bodies: a disaster myth that does not want to die’, Pan-American Journal of Public Health, Vol. 15, No. 5, May 2004, pp. 297–299.
60 - The phrase ‘motives based on the religion of the deceased’ (emphasis added) simply means reasons based on the religion of the deceased.
61 - See section E.1.
62 - For a list of religions and their preferences for burial or cremation, see Froidevaux, pp. 800–801.
63 - See para. 1645.
64 - See Article 120(5) of the Third Convention, in which the exception can be found alongside the two mentioned in the present article.
65 - See e.g. Australia, Manual of the Law of Armed Conflict, 2006, paras 9.103–9.104.
66 - Elliott, p. 10, describes it as being present ‘from antiquity and recognized as part of the law of nature’.
67 - See para. 1654.
68 - The ‘Checklist on the emergency or temporary burial of human remains’ also provides: There should be soil in which to bury the remains; The soil should be well drained and due consideration should be given to avoiding contamination of the water table (this might include sprinkling lime in the grave); The site should be easily reached by vehicles; The site should not be in a strategically or tactically significant area; The site should be located at a reasonable distance from sources of water for human consumption, in order to prevent those sources from being contaminated. ICRC, Operational Best Practices Regarding the Management of Human Remains, Annex H. Although disregard for these factors cannot be considered a dishonourable burial, they should be respected as far as possible.
69 - United States, Military Commission at the Mariana Islands, Yochio and others case, Trial, 1946.
70 - See para. 1672.
71 - Examples given during the drafting of the equivalent article in the Third Convention were the use of a rare substance and the sacrifice of an animal. ICRC, ‘Rapport sur les travaux de la Commission constituée pour étudier les dispositions conventionnelles relatives aux besoins religieux et intellectuels des prisonniers de guerre et des civils internés’, Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 29, No. 341, May 1947, pp. 399–421, at 402.
72 - ICRC, Operational Best Practices Regarding the Management of Human Remains, Annex H.
73 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 622.
74 - See also Petrig, p. 345. Each case will have to be judged on its facts.
75 - But see ibid. considering it ‘sufficient that the gravesite contained some mortal remains at some point in time’.
76 - On the last point, see Additional Protocol I, Article 34(4).
77 - For a discussion of the term ‘shall ensure’, see para. 1654.
78 - See section E.2.c.
79 - See Additional Protocol I, Article 34.
80 - See section C.1.b.
81 - See also ICRC Study on Customary International Humanitarian Law (2005), Rule 116, which links the marking of the location of the grave with the identification of the dead.
82 - On which, see Additional Protocol I, Article 34.
83 - See ibid.
84 - See section E.3.c.
85 - See e.g. Agreement concerning the Treatment of War Graves of Members of the UK Armed Forces in the German Democratic Republic, Berlin, 27 April 1987, relating to war graves resulting from the First and Second World Wars; Agreement between the Government of the USSR and the Government of Japan regarding persons who were detained in prisoner-of-war camps, Tokyo, 18 April 1991; and Agreement between the Russian Federation and the Government of the Republic of Turkey on Russian burial sites on the territory of the Republic of Turkey and Turkish burial sites on the territory of the Russian Federation, Istanbul, 3 December 2012. See also Agreement between the Russian Federation and the Government of the Republic of Hungary to perpetuate the memory of the fallen soldiers and civilian victims of war and the status of graves, Moscow, 6 March 1995, which refers to and applies the provisions of the Geneva Conventions and Additional Protocols to military personnel killed during the First and Second World Wars and the inter-war period.
86 - See the commentary on Article 34 of Additional Protocol I.
87 - Bothe, p. 316, gives as examples the tasks being carried out by ministerial departments in France and Italy, an agency of the executive branch of the Federal Government in the United States, and a private body in Germany charged with this task by the State.
88 - Geneva Convention on the Wounded and Sick (1929), Article 4.
89 - On the concept of declared war, see the commentary on common Article 2, section D.1.
90 - See para. 1698.
91 - See section E.2.
92 - See section F.
93 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 155 (United Kingdom).
94 - Ibid. (Netherlands).
95 - See section C.2.b.
96 - Geneva Convention on the Wounded and Sick (1929), Article 4.
97 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 154–155.
98 - See the commentary on Article 34 of Additional Protocol I.
99 - See e.g. Panmunjom Armistice Agreement (1953), Article II(13): The Commanders of the opposing sides shall: … f. In those cases where places of burial are a matter of record and graves are actually found to exist, permit graves registration personnel of the other side to enter, within a definite time limit after this armistice agreement becomes effective, the territory of Korea under their military control, for the purpose of proceeding to such graves to recover and evacuate the bodies of the deceased military personnel of that side, including deceased prisoners of war. For further analysis, see the commentary on Article 34 of Additional Protocol I.
100 - Fourth Convention, Article 130. Although the term used is ‘next of kin’, it refers to the general notion of the family of the deceased and is not limited to the stricter meaning of closest immediate relative. See also Article 34(2)(c) of Additional Protocol I and its commentary.
101 - Geneva Convention on the Wounded and Sick (1929), Article 4.
102 - This report is discussed in para. 35.
103 - ICRC, Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume I: General Activities, ICRC, Geneva, May 1948, p. 303.
104 - For more details, see Article 122 of the Third Convention.
105 - See Additional Protocol I, Article 32; see also Henckaerts/Doswald-Beck, commentary on Rule 117, pp. 423–426.
106 - See Additional Protocol I, Article 33; see also ICRC Study on Customary International Humanitarian Law (2005), Rule 117.
107 - Geneva Convention on the Wounded and Sick (1929), Article 4.
108 - See Report of the Preliminary Conference of National Societies of 1946, p. 24, and Report of the Conference of Government Experts of 1947, p. 20.