Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 20 : Prescriptions regarding the dead
Text of the provision*
(1) Parties to the conflict shall ensure that burial at sea 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. Where a double identity disc is used, one half of the disc should remain on the body. (2) If dead persons are landed, the provisions of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 shall be applicable.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1809  Respectful and honourable treatment and burial of the dead are requirements, whether the death takes place on land or at sea. Accordingly, this article reproduces, with certain amendments, that portion of Article 17 of the First Convention which is applicable to armed conflict at sea. It is closely related to the last paragraph of Article 19, adding rules for the disposal of the remains of the deceased to those governing the personal belongings and information found with the deceased. Article 20, therefore, sets out a number of rules relating to the burial of the deceased and to the examination of the body prior to burial.
1810  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] all information that may help with their identification collected, where possible, and their resting places respected.
1811  The provisions regarding treatment of the dead, for example those on establishing identity, are related to those concerning missing persons and the right of families to know the fate of their loved ones.[3]
1812  Article 20 also makes direct reference to Article 17 of the First Convention, whose provisions are applicable ‘[i]f dead persons are landed’.
1813  The provisions in the First and Second Conventions regarding treatment of the dead tally with those of the Third Convention that deal with the burial of prisoners of war who die in captivity.[4] While it may seem that a mere reference to the Third Convention would have sufficed, the drafters of the Convention wished to take account of the fact that the dead who are collected by the adverse Party may have never for one moment been prisoners of war. Accordingly, they benefit from the protections of the First and Second Conventions.
1814  For information on the treatment of the dead in non-international armed conflicts, see the commentary on common Article 3, section I, para. 787.
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B. Historical background
1815  The first important statement relating to the treatment of the dead in maritime warfare can be found in the 1907 Hague Convention (X). Article 16(2) of that Convention provided that the belligerents ‘shall see that the burial, whether by land or sea, or cremation of the dead shall be preceded by a careful examination of the corpse’.
1816  As the full title of the 1907 Hague Convention (X), i.e. ‘for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention’, suggests, both the provision in question and the Convention in general sought to apply the provisions relating to war on land to maritime warfare.[5] Thus, it was the law of war on land that dictated the law in this area.
1817  Article 16(2) of the 1907 Hague Convention (X) was reproduced verbatim in the 1913 Oxford Manual of Naval War.[6] Until the adoption of the Second Geneva Convention in 1949, there was little else by way of applicable conventional law in the area. The ICRC, pursuant to a mandate from the 15th International Conference of the Red Cross, had embarked on a revision of the Hague Convention (X) and put a report before the 16th International Conference in 1938.[7] However, the matter was overtaken by the events of the Second World War.
1818  Article 20 comprises two paragraphs, which need to be read together in order to obtain the proper meaning of the obligations they contain. The first paragraph relates to burial at sea,[8] while the second relates to burial on land.
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C. Paragraph 1: Burial at sea
1819  The first paragraph of Article 20, read together with the second, contains two principal obligations. First, the Parties to the conflict are required to ensure the burial of the dead. As far as circumstances permit, such burial must be carried out individually. Second, the Parties must undertake a careful examination of the body prior to burial, to confirm death, establish the person’s identity and enable a report to be made.
1820  Although not strictly a case of ‘burial’, sunken warships and other ships that sank with their crews on board constitute war graves.[9] These graves must therefore be respected.[10]
1821  In addition, Article 5 of the Convention requires neutral Powers to apply by analogy the provisions of the Convention to, inter alia, ‘dead persons found’.[11]
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1. Burial
a. The obligation
1822  The Parties to the conflict must ensure that the dead are buried. This obligation can be satisfied in different ways. The Party in question may itself honourably bury the deceased. Alternatively, it may return the bodies of the deceased to their families for burial. The ICRC can act as a neutral intermediary in this regard. The choice of means follows from the wording of the provision, read in the context of the article as a whole and its reference to Article 17 of the First Convention.
1823  The preferred option is the return of the remains of the deceased to their families so that they may bury them in accordance with their religious beliefs and practices. Another reason why this option is preferable is that it enables families to mourn their loved ones.[12] Indeed, return of the dead to their families can be considered a basic humanitarian goal, recognized in both conventional and customary humanitarian law.[13] This option will be subject to the capabilities of the relevant ship, the possibility of landing and operational requirements.
1824  ‘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’.[14] In the present context, this would entail placing the dead body in water. Burial at sea usually involves wrapping the deceased in a shroud, placing the shrouded body in a sailcloth bag, weighting the bag to prevent the body rising to the surface or being washed ashore, and then depositing the bag in the water. Although not stated in the article, the burial must be an honourable one, if possible according to the rites of the religion to which the deceased belonged.[15]
1825  As indicated above, the first paragraph relates only to burial at sea. This does not mean, however, that the Parties are obliged to bury the dead at sea. Burial on land is explicitly foreseen by the second paragraph of the article, and ought to be preferred over burial at sea for humanitarian reasons. Burial at sea makes subsequent recovery of the body, and thus also confirmation of identity, virtually impossible. For example, the body may get washed away or attacked by scavengers or the bag destroyed. It also impedes, if not prevents, investigations of violations of the law. The family’s access to the place of burial is also made difficult. Given the acceptance in other areas of the law of the need to take into account the views of the family of the deceased,[16] and for the reasons set out above favouring return of the deceased’s body to the family, the Parties to the conflict must give serious consideration to storing the bodies and returning them to shore.
1826  Indeed, burial at sea should be the exception, for example if landing is not feasible, if there is limited space on board the ship and if in all respects there is compliance with the requirements of the first paragraph. In particular, burial at sea may not take place if it is not preceded by a medical examination. Return of the deceased to land is also foreseen in military manuals.[17] Once the remains of the deceased are landed, the provisions of the First Convention will become applicable to them.
1827  Furthermore, the location of a burial at sea has to take into account the relevant rules of the law of the sea. Thus, for example, burial in the territorial waters of another State may not be permitted under the rules on innocent passage.[18]
1828  Unlike Article 17 of the First Convention and Article 16 of the 1907 Hague Convention (X), the first paragraph of the present article does not provide the Parties with a choice between burial and cremation. Indeed, there is no mention of cremation in the article at all. Implicit in the article is the notion that cremation cannot take place at sea, although some States in their military manuals do refer to burial or cremation at sea.[19] Despite the initial impression given by the particular wording used here, the substance of the provision in this regard has not changed. Article 16 of the 1907 Hague Convention (X) concerned disposal of the body generally, whether this was on land or at sea,[20] whereas the paragraph of the provision under consideration relates solely to burial ‘at sea’. It is the second paragraph that provides that, should the ship reach land or the body be moved from the ship to land, the provisions of the First Convention apply, thus accounting for the possibility of cremation.[21]
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b. Individual burial
1829  Burial of the dead is to be carried out individually ‘as far as circumstances permit’. The requirement of individual burial does not preclude the committal of several bodies to the water at the same time, but ensures that each body is committed separately in a weighted sailcloth bag or similar device to ensure the bodies sink and do not float. This is an aspect of the requirement that the dead be buried honourably. A common grave conflicts with the sentiment of respect for the dead.[22]
1830  Reflecting the realities of armed conflict, the obligation of individual burial is not an absolute one. Rather, it is to be fulfilled ‘as far as circumstances permit’. There is thus a presumption that burial 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. Use of the word ‘circumstances’ makes clear that the reasons for collective burial are not limited to military ones. Such circumstances may include the sheer number of deceased, lack of manpower and military necessity.[23]
1831  Nevertheless, the obligation to bury the dead individually is to be construed strictly. If circumstances do ‘permit’ individual burial, that is required as a matter of legal obligation. Circumstances that merely make individual burial more difficult do not excuse the Parties from their obligations under the article. This will be a question of fact. Individual burial is necessarily a more onerous and time-consuming task than collective burial. This does not, by itself, excuse the Parties from their obligation as the obligation would then be vitiated; it only excuses the Parties if it transforms the circumstances into ones that do not permit individual burial. Thus, collective burial at sea would be a very exceptional measure, especially given that the requirement of individual burial does not preclude the committal of several bodies to the sea at the same time.
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c. Personal scope of application
1832  The obligation to bury the dead is vested in the ‘Parties to the conflict’, who ‘shall ensure’ that burial takes place. The Party in question may fulfil this obligation either by burying the deceased itself or, preferably, by returning the body to the family for burial.
1833  The phrase ‘shall ensure’ is employed here for the first time in the Convention. A clause to similar effect – ‘[t]hey shall see that’ – was used in the corresponding provision of the 1907 Hague Convention (X) (Article 16, paragraph 2). The French text of the present provision uses exactly the same language – ‘veiller à ce que’ – as in the corresponding provision of the 1907 Hague Convention (X). The verb ‘to ensure’ means ‘to make certain that (something) will occur or be so’.[24] The compulsory nature of the obligation is reinforced by the preceding word, ‘shall’. This does not mean that the Parties have to bury 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. 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 once more draws attention to the importance of the task and to the necessity of accomplishing it.
1834  In contrast with Article 19, 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 19 relates to records of the dead which are then forwarded to the other side through intermediaries.[25] 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 20, 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 19 refers to the dead ‘of the adverse Party’, whereas Article 20 refers to the dead without further qualification.[26] Likewise, Article 18, on the search for the dead, applies to the dead generally and not only to the dead of the adverse Party.[27] 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.[28]
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2. Examination of the body prior to burial
a. The obligation
1835  The Parties to the conflict are under an obligation to ensure that bodies undergo a ‘careful examination’ prior to their burial. The examination serves to confirm death, establish identity and enable a report to be made.
1836  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.[29] Accordingly, while the Parties do not have to undertake the examination themselves, referring it, for example, to a competent medical examiner on another ship or craft or delaying the burial until landing, they must make sure that the examination is carried out. The obligation exists regardless of whether or not the burial is an individual one. 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 once more draws attention to the importance of the task and to the necessity of accomplishing it.
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b. Purpose of the examination
1837  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.
1838  Death must be confirmed in order to avoid the terrible tragedy of committing to the waters a person who appears to be dead but is in fact alive. The term ‘dead’ is thought to be self-explanatory.[30] 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.[31]
1839  The identity of the deceased is to be established with as much certainty as possible. All feasible measures must be taken in this respect.[32] 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.[33] However, a description of the person’s physical features remains important,[34] 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 based. 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.
1840  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.[35] Sensitivity is required if the images are shown to the family of the deceased.
1841  The person’s identity is to be established in order to account for the missing and provide information to the families, in 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’.[36]
1842  The obligation is one of conduct, to be carried out with due diligence, rather than one of result,[37] and some of the measures listed above may not be able to be taken on board a warship. Accordingly, failing to identify the deceased after taking all feasible measures to do so, does not constitute a violation of the article.
1843  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.[38] However, burial at sea by the Parties will rarely be justified following the conclusion of the conflict. If the conflict is over, there will be even fewer justifications, such as operational requirements, for the exceptional situation of burial at sea.
1844  One half of the double identity disc should remain on the body.[39] This will aid identification in the case of later recovery of the body. It will also facilitate the task of the national information bureau to which the other half of the disc will be sent. If the identity disc comprises a single disc, for the reasons that follow, the disc should be removed from the body and kept with the other possessions of the deceased prior to burial at sea. An earlier draft of the article had proposed that, in the case of a single disc, the disc should remain on the body,[40] in this way making the position akin to the equivalent provision in the First Convention.[41] Unlike situations of burial on land, however, later recovery of a body that was buried at sea would be exceptional. Accordingly, one delegate proposed reconsideration of the issue, noting that the approach taken by the First Convention was necessary ‘in the case of burials on land where the bodies may be subsequently exhumed’. He suggested that it had ‘no meaning in relation to burials at sea’.[42] The Drafting Committee deleted mention of a single disc from the article,[43] suggesting that Parties are free to remove the single disc prior to burial at sea or to bury the deceased at sea with the disc. Despite this apparent choice, in reality the single disc should be removed from the body of the deceased prior to burial at sea. Weighing in favour of this option is the necessity of passing on reliable information regarding the deceased’s identity, including proof of death, to the adverse Party and, in turn, to the family, against the minimal possibility of later recovery of the body. Such a conclusion is supported by Article 19, which provides that one half of the double identity disc ‘or the identity disc itself if it is a single disc’ is to be forwarded to the information bureau.
1845  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.[44] To it will be added the date and place of burial – in the form of a fixed position, for example GPS coordinates, or estimated position (EP) when obtaining a fixed position is not possible. The report may be forwarded to the adverse Party. 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.
1846  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 19. 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.
1847  The purposes set out in the article have implications for the nature of the examination.
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c. Nature of the examination
1848  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.[45]
1849  The phrase a ‘careful examination’ has a second meaning. The body of the deceased is 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.[46] Medical or scientific experiments on the body are prohibited.[47] 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 buried honourably.[48]
1850  The examination of the body of the deceased should be a medical one. Article 20 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 a doctor is not on board the ship. In such a case, where possible, burial should wait until the ship reaches the shore or the body can be evacuated by air so that a medical examination can take place. It is only where no such possibilities exist and there is no possibility of using refrigeration techniques that allow for temporary storage of bodies that a medical examination will be deemed impossible. A medical examination is important also because, in most States and circumstances, a death certificate normally can only be issued following such an examination, and a death certificate might be needed, for example for the family to receive due benefits.[49]
1851  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. Failing that, the best qualified officer can carry out the task. Certain members of the armed forces may have received instruction in how to treat bodies prior to the arrival of the forensic services,[50] and they may have to be called upon if the forensic services cannot be reached. Even if a medical examination cannot be undertaken, the Parties must still seek to establish the identity of the deceased, for example by measuring and describing the body, taking photographs of the body and face, 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’.[51] 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. For this to happen, the Party in question should consider storing the body until such time as a medical examination can be carried out, for example when docking in port or following evacuation by air. Committing the body to the sea makes it virtually impossible to later recover the body and identify the deceased.
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D. Paragraph 2: Relationship with the First Convention
1852  Article 20(2) relates to the situation in which the dead persons are landed. This may take place through, for example, the docking of the ship in port or the evacuation of the bodies to land by air. In the case of dead persons who are landed, the provisions of the First Convention apply.[52]
1853  The Working Party that drafted the provision at the 1949 Diplomatic Conference expressed the matter in strong terms: ‘Immediately the sick, wounded and dead were landed they would automatically be entitled to protection under the provisions of the Wounded and Sick Convention.’[53] This is simply an application of the general proposition set out in Article 4(2) of the Second Convention, namely that ‘[f]orces put ashore shall immediately become subject to the provisions’ of the First Convention.
1854  As is clear from Article 20(2), burial at sea is only a possibility in respect of dead persons who are not landed. Accordingly, Parties to the conflict are not to bury at sea persons who died on land. Indeed, the First Convention is limited to burial on land. This is due to the difficulties that follow from burial at sea, such as the confirmation of identity and access to the gravesite.[54] Should an individual who died on land have expressed the wish to be buried at sea, the body of the deceased can be returned to the family for such burial.
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Select bibliography
Elliott, H. Wayne, ‘The Third Priority: The Battlefield Dead’, Army Lawyer, July 1996, pp. 3–20.
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.
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.
Petrig, Anna, ‘The war dead and their gravesites’, International Review of the Red Cross, Vol. 91, No. 874, June 2009, pp. 341–369.

1 - First Convention, Articles 15 and 17; Third Convention, Article 120; Fourth Convention, Articles 129 and 130; Additional Protocol I, Article 34.
2 - See also Second Convention, Article 18 (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 - Third Convention, Article 120(3)–(6).
5 - In its report to the 1907 Hague Peace Conference, the committee tasked with amending the 1899 Hague Convention (III) noted that ‘Article 16 is new; it is borrowed from the Convention of 1906 (Article 3)’; Proceedings of the Hague Peace Conferences of 1907, Vol. I, p. 73. The reference to the ‘Convention of 1906’ is to the 1906 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field.
6 - Oxford Manual of Naval War (1913), Article 85, second paragraph.
7 - Naval Expert Report of 1937.
8 - For the interpretation of the term ‘at sea’, see the commentary on Article 12, section D.2.
9 - See e.g. J. Ashley Roach, ‘Sunken warships and military aircraft’, Marine Policy, Vol. 20, No. 4, 1996, pp. 351–354; Wolff Heintschel von Heinegg, ‘The Law of Military Operations at Sea’, in Terry D. Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations, 2nd edition, Oxford University Press, 2015, pp. 375–421, at 395–396; Daniel P. O’Connell, The International Law of the Sea, Vol. II, Oxford University Press, 1984, p. 912; Jann K. Kleffner, ‘Protection of the Wounded, Sick, and Shipwrecked’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, p. 333.
10 - See e.g. ICRC Study on Customary International Humanitarian Law (2005), Rule 115. See also Additional Protocol I, Article 34. It may also be noted that the Convention on the Protection of the Underwater Cultural Heritage (2001) applies, inter alia, to vessels that have been under water for at least 100 years. Article 2(9) provides that ‘States Parties shall ensure that proper respect is given to all human remains located in maritime waters’, while Rule 5 of the Annex provides that ‘[a]ctivities directed at underwater cultural heritage shall avoid the unnecessary disturbance of human remains or venerated sites’. See Sarah Dromgoole, Underwater Cultural Heritage and International Law, Cambridge University Press, 2013, Chapters 4 and 9.
11 - See the commentary on Article 5, para. 987.
12 - ICRC, Accompanying the Families of Missing Persons: A Practical Handbook, ICRC, Geneva, 2013, pp. 36, 57–58 and 134.
13 - See Additional Protocol I, Article 34(2), and ICRC Study on Customary International Humanitarian Law (2005), Rule 114.
14 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, pp. 187 and 189.
15 - For the interpretation of the notions of an honourable burial and the rites of the religion to which the deceased belonged, see the commentary on Article 17 of the First Convention, section E.1.
16 - See e.g. Fourth Convention, Article 130.
17 - For instance, United States, Mortuary Affairs, 2011, p. II-7, which provides: When death occurs aboard ship, or when human remains are recovered from the sea, the human remains should be preserved for burial on land. This is applicable whether the human remains are US, multinational partner, or adversary. Committal at sea is permissible only when refrigerated storage facilities cannot be made available aboard ship and transfer to shore cannot be accomplished within a reasonable time or is operationally inadvisable. The United Kingdom’s Manual of the Law of Armed Conflict, 2004, p. 135, provides that ‘[t]he remains of the dead are to be honourably interred (unless burial at sea is appropriate)’ but does not specify which situations would be appropriate for burial at sea.
18 - See UN Convention on the Law of the Sea (1982), Article 19(2), in particular subparagraphs (g) and (l).
19 - ICRC, Customary International Humanitarian Law (2005), practice relating to Rule 115, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule115.
20 - The committee tasked with amending the 1899 Hague Convention (III), in its report to the 1907 Hague Peace Conference, noted that ‘[i]t has been thought strange that the words “burial” and “cremation” were kept, as, naturally, they will not often be applicable in the case of naval operations. But it must be remembered that an engagement may take place near the coast and that the provision applies to the individuals who may be on land.’ Proceedings of the Hague Peace Conference of 1907, Vol. II, p. 73.
21 - For details, see paras 1852–1854.
22 - Other motivations, such as the possibility of subsequent recovery of the bodies and disturbance of the final resting place, are less important in relation to burial at sea. On these aspects in the context of land warfare, see the commentary on Article 17 of the First Convention, section E.
23 - Benjamin Wisner and John Adams (eds), Environmental health in emergencies and disasters: A practical guide, World Health Organization, 2002, p. 199 (referring to number of deaths, climatic or other constraints).
24 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 475.
25 - See the commentary on Article 19.
26 - 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 in respect of the law of war on land, that Convention being considered to relate to the dead of the enemy alone.
27 - See the commentary on Article 18.
28 - Henry Dunant, A Memory of Solferino, ICRC, Geneva, reprint 1986.
29 - For details, see para. 1833.
30 - Petrig, p. 344.
31 - Elizabeth A. Martin (ed.), Concise Medical Dictionary, 8th edition, Oxford University Press, 2010.
32 - ‘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.
33 - 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.
34 - 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. ICRC, Operational Best Practices Regarding the Management of Human Remains, Annex I.
35 - See Third Convention, Article 13(2) and commentary.
36 - See Additional Protocol I, Article 32. See also Henckaerts/Doswald-Beck, commentary on Rule 117, pp. 423–426, and Elliott, pp. 3 and 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.
37 - See Marco Sassòli and Marie-Louise Tougas, ‘The ICRC and the missing’, International Review of the Red Cross, Vol. 84, No. 848, December 2002, pp. 727 and 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 Study on Customary International Humanitarian Law, Practice relating to Rule 116, https://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule116, Section A(III).
38 - 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.
39 - On the identity disc, see the commentary on Article 19, section 3.f.ii.
40 - See e.g. Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 225.
41 - See the commentary on Article 17 of the First Convention, para. 1666.
42 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 251 (United Kingdom).
43 - See ibid. p. 167.
44 - See also Article 19 and its commentary.
45 - See section C.2.b.
46 - On despoliation, see also the commentary on Article 18, section C.7. See also Additional Protocol I, Article 34(1), and ICRC Study on Customary International Humanitarian Law (2005), Rule 113.
47 - Pursuant to Article 51 of the Second Convention, ‘biological experiments’ constitute grave breaches of the Convention.
48 - Rule 115 of the 2005 ICRC Study on Customary International Humanitarian Law provides that ‘[t]he dead must be disposed of in a respectful manner’.
49 - In exceptional circumstances and subject to adequate justification, deaths may be registered by the responsible authority without a medical examination.
50 - See e.g. Colombia, Operational Law Manual, 2009, pp. 121–125.
51 - ICRC, Operational Best Practices Regarding the Management of Human Remains, para. 3.2.
52 - See in particular Article 17, as well as Article 4 of the First Convention.
53 - Final Record of the Diplomatic Conference of 1949, Vol. II-A, p. 155 (Rapporteur of the Working Party). See also Naval Expert Report of 1937, p. 21 (‘At sea, … all wounded, sick and dead are protected by the Maritime Convention; but as soon as they are landed they come automatically under the protection of the Geneva Convention’).
54 - For details, see para. 1825.