Treaties, States Parties and Commentaries
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Commentary of 1958 


Respect for the dead is one of the most ancient ideas of civilization. In codifying humanitarian law, the 1929 Convention relative to the Treatment of Prisoners of War proclaimed this principle in Article 76, paragraph 3 . The present text, however, adds two notions to the text of 1929: the recommendation that the dead should be buried according to the rites of the religion to which they belonged and the obligation to mark graves in such a way that they can always be found again.
The first idea is the subject of a recommendation only, since it may happen that the observation of some rites may be particularly difficult (2), or that the maintenance of public order might be made difficult if certain rites are carried out which may provoke hostile reactions among the people. However, tolerance is the very spirit of the Geneva Conventions, and it may be hoped that with encouragement from Governments (3), this spirit will spread more and more among the masses so that this recommendation on a point very important for the honour of families can always be observed.
The necessity to put clear and permanent markings on places of burial corresponds to the just desire of the relatives of the deceased to visit his grave or to remove his mortal remains as soon as circumstances permit. The Convention does not state how graves should be marked. The practice of placing individual markings on the grave [p.507] showing the surname, first name and date of birth of the dead person in detail and in a durable fashion, is, however, particularly to be recommended to belligerents wishing to fulfil their obligations. The same applies to ashes in the case of cremation, as mentioned in the following paragraph.


However desirable it may be to have individual graves properly marked, advocated as the general practice by the Convention, the Article does allow of exceptions. These would be valid for reasons of ' force majeure ', during an epidemic, for example, if the death of an excessively large number of persons created a danger of infection which did not allow time for the digging of individual graves, or again if warlike operations obliged the Detaining Power to retreat and before retreating and from lack of time it undertook collective burials in the interests of public health.
Similarly, the general rules for burial do not apply in case of cremation. The preparatory work on the Convention shows, however, that cremation is thought of as an exceptional measure, since the opinion of the experts was in general against the practice (4). For that reason, cremation is only compatible with respect for the Convention if certain very strict conditions are observed. It must be based on reasons of public health, or the expressed will of the deceased person, or the customs of his religion. The reasons must be explicitly stated on the death certificate. In the same way as the previous paragraph provides for the maintenance and marking of graves, the Detaining Power must preserve and mark ashes, which must be kept for transfer to the family of the deceased. Ashes in general will be placed in urns which will bear, clearly marked, all the information which should normally be placed on a grave. These urns will be placed in a suitable spot and protected against any sacrilegious act.


This Article is designed to give effect to the previous two paragraphs. The 1929 Convention relative to the Treatment of Prisoners of War did not provide for information being transmitted until after the end of hostilities, whereas the present text states that the information must be transmitted as soon as circumstances allow. This sanctions the practice during the Second World War, when information [p.508] was generally transmitted during hostilities, sometimes even by telegraph, when the slowness of mail and the distance of places of internment justified such a measure (5).
The services of the Information Bureaux provided for in Article 136 are particularly useful for notifying families of the distinguishing features of the graves. It will be understood that notification of death through diplomatic channels will only contain very brief information concerning the grave. It is for the Power of which the members of the family are nationals to inform them, with the help of the Agency, so that the provisions of the Convention on the marking and maintenance of the graves can be observed.

Notes: (1) [(2) p.505] This Article may be compared to Article 17 of
the First Convention. See ' Commentary I, ' pp. 175-183;

(2) [(1) p.506] In the case of animal sacrifice, or the use of
rare substances;

(3) [(2) p.506] It may be recalled that the High Contracting
Parties, in Article 1 common to all the Conventions,
undertake to respect and ensure respect for the
Conventions in all circumstances;

(4) [(1) p.507] See ' Report on the Work of the Conference of
Government Experts, ' p. 19;

(5) [(1) p.508] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War, ' Vol. I, p. 301;