Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 120 : Prescriptions regarding the dead, including wills and death certificates
Text of the provision*
(1) Wills of prisoners of war shall be drawn up so as to satisfy the conditions of validity required by the legislation of their country of origin, which will take steps to inform the Detaining Power of its requirements in this respect. At the request of the prisoner of war and, in all cases, after death, the will shall be transmitted without delay to the Protecting Power; a certified copy shall be sent to the Central Agency.
(2) Death certificates in the form annexed to the present Convention, or lists certified by a responsible officer, of all persons who die as prisoners of war shall be forwarded as rapidly as possible to the Prisoner of War Information Bureau established in accordance with Article 122. The death certificates or certified lists shall show particulars of identity as set out in the third paragraph of Article 17, and also the date and place of death, the cause of death, the date and place of burial and all particulars necessary to identify the graves.
(3) The burial or cremation of a prisoner of war shall be preceded by a medical examination of the body with a view to confirming death and enabling a report to be made and, where necessary, establishing identity.
(4) The detaining authorities shall ensure that prisoners of war who have died in captivity are honourably buried, if possible according to the rites of the religion to which they belonged, and that their graves are respected, suitably maintained and marked so as to be found at any time. Wherever possible, deceased prisoners of war who depended on the same Power shall be interred in the same place.
(5) Deceased prisoners of war shall be buried in individual graves unless unavoidable circumstances require the use of collective graves. Bodies may be cremated only for imperative reasons of hygiene, on account of the religion of the deceased or in accordance with his express wish to this effect. In case of cremation, the fact shall be stated and the reasons given in the death certificate of the deceased.
(6) In order that graves may always be found, all particulars of burials and graves shall be recorded with a Graves Registration Service established by the Detaining Power. Lists of graves and particulars of the prisoners of war interred in cemeteries and elsewhere shall be transmitted to the Power on which such prisoners of war depended. Responsibility for the care of these graves and for records of any subsequent moves of the bodies shall rest on the Power controlling the territory, if a Party to the present Convention. These provisions shall also 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.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
4525  Article 120 deals with two sets of related issues: wills and death certificates of prisoners of war and burial and cremation of deceased prisoners of war.
4526  The provisions relating to the first set of issues are connected to other articles of the Convention, in particular Article 66 (winding up of accounts in case of death), Article 77 (preparation, execution and transmission of legal documents) and Article 122(5), (7) and (9) (dealing with enquiries and transmission of information to the national information bureau if a prisoner of war dies, as well as with the safe-keeping of articles of value).
4527  The provisions relating to burial and cremation in paragraphs 3–6 of Article 120 mirror to some extent those in Article 17 of the First Convention and Article 20 of the Second Convention. Whereas the last two provisions relate to combatants who died on the battlefield, Article 120 concerns prisoners of war who died while in the hands of another Power.[1] As with the other provisions relating to the dead,[2] the underlying purpose is to preserve the dignity of the deceased. Thus, their bodies are to be treated honourably and with respect, their identities ascertained and their graves marked and respected. This, in turn, precludes people from going missing.
4528  The provisions regarding the dead, for example those on establishing identity and marking graves, are also related to those governing missing persons and the right of families to know the fate of their relatives.[3]
4529  Many of the obligations concerning the dead are obligations of means. Compliance will be measured against a higher standard for a prisoner of war who died in the hands of a Party to the conflict and had been brought to the rear or held in a designated facility than for a combatant collected on the battlefield, given that in the former scenario the Party would have had greater capacity and facilities to deal with the situation. Thus, although the interpretation of Article 17 of the First Convention and Article 20 of the Second Convention informs the understanding of the present article, the three are not necessarily interpreted in precisely the same manner.
4530  While Article 120 requires that deceased prisoners of war be honourably buried by the detaining authorities, it is important to keep in mind that, pursuant to Additional Protocol I, the Parties must conclude agreements as soon as circumstances permit, among other things, ‘to facilitate the return of the remains of the deceased and of personal effects to the home country’.[4] This rule is particularly important for prisoners who die in captivity and should in principle be much easier to implement than when there are mass casualties on the battlefield. This is especially true when a prisoner dies in the territory of a neutral Power.
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B. Historical background
4531  Article 120 is a revised and expanded version of Article 76 of the 1929 Geneva Convention on Prisoners of War, which provided:
The wills of prisoners of war shall be received and drawn up under the same conditions as for soldiers of the national armed forces.
The same rules shall be followed as regards the documents relative to the certification of the death.
The belligerents shall ensure that prisoners of war who have died in captivity are honourably buried, and that the graves bear the necessary indications and are treated with respect and suitably maintained.[5]
4532  During the Second World War, while the first two paragraphs of Article 76 dealing with wills and documents were relatively uncontroversial, the brevity of the third paragraph led to certain omissions and difficulties in its practical application.[6] Accordingly, the provision was developed considerably during the drafting of the Third Convention. A model ‘Notification of death’ form was also annexed to the new Convention.[7]
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C. Paragraph 1: Wills
4533  Article 120(1) concerns the wills of prisoners of war. In this context, a ‘will’ refers to ‘a legal document containing instructions for the disposition of one’s money and property after one’s death’, howsoever characterized.[8]
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1. Manner of drawing up a will
4534  Paragraph 1 acknowledges the right of every prisoner of war to make a will, pursuant to the general principle set forth in Article 14(3) that a prisoner of war retains their full civil capacity for the duration of captivity. This right is undisputed, but it was still necessary to establish a procedure for its application.
4535  Wills cannot be regulated by the Convention; they must satisfy the conditions of validity set down in the legislation of the country in which they take effect, which is equated by the Convention with the country of origin of the prisoner of war. Accordingly, the Detaining Power is obliged to ensure that, if a prisoner of war is drawing up a will, it must be done in a manner that satisfies the conditions of validity required by the legislation of the country of origin of the prisoner.
4536  For this purpose, the country of origin also bears an obligation, namely to communicate to the Detaining Power, and thus indirectly to the prisoner of war, the manner in which the will should be drawn up. The absolute nature of the obligations on the Detaining Power and on the country of origin is evident from the language of the paragraph – wills of prisoners of war ‘shall be drawn up’ in accordance with the relevant framework. Likewise, the country of origin ‘will take steps’ to inform the Detaining Power. The absolute nature of the obligation on the Detaining Power should not be confused with an obligation on the prisoner of war to make a will; as a matter of international law, the drafting of a will is a right, not an obligation, and whether or not a will has been drawn up, inheritance questions remain regulated by bodies of law other than international humanitarian law.
4537  The purpose behind this provision is to ensure the validity of a will following the death of the prisoner of war who authored it. The 1929 precursor of this provision provided that the wills of prisoners of war were to be ‘received and drawn up under the same conditions as for soldiers of the national armed forces’.[9] The Convention thus provided for parity between the wills of prisoners of war and the wills of members of the armed forces of the Detaining Power.
4538  The same approach was followed during the lead-up to the 1949 Diplomatic Conference.[10] As the wording was rather vague, however, some delegates at the Conference argued that the principle of locus regit actum (the place governs the act) should apply to the form of the will, while at an earlier stage of the discussions it was held that ‘the provisions of the will must satisfy the conditions required by the legislation of the country of origin’.[11] No amendment was nonetheless proposed, and it was initially unanimously agreed that the Convention could not do more than authorize a prisoner of war to draw up a will in the form provided for members of the armed forces of the Detaining Power.[12] This meant, however, that in terms of its formal validity the will might not have been accepted as valid in the country of origin of the deceased as it would not necessarily have fulfilled the requisite formalities. Yet, in the vast majority of cases it was in the country of origin that the will needed to take effect.[13] Accordingly, the Diplomatic Conference sought to combine the two approaches, stating that ‘[t]he wills of prisoners of war shall be drawn up in the form according to the law of the Detaining Power and will have to satisfy the conditions of validity required by the legislation of their country of origin’.[14] In practice, for example in federal States, the ‘legislation of their country of origin’ may be different for each province/administrative substructure. Where this is the case, logically, ‘the will should satisfy those provincial or state law requirements’.[15]
4539  In certain countries, when it comes to the conditions of validity of wills, members of the armed forces (whether or not they are prisoners of war) are covered by the general legislation applicable to civilians.[16] However, the legislation of several countries provides certain dispensations for members of the armed forces when making and executing their wills.[17] In some cases, those rules encompass wills made by prisoners of war.[18] An additional valid form is an ‘international will’ drafted in accordance with the provisions of a treaty is accepted as valid.[19]
4540  It was pointed out at the Diplomatic Conference, however, that the draft article, as phrased, ‘stipulates two requirements that may well be found to be mutually incompatible in practice and therefore to place upon the Detaining Power an obligation which will not possibly be fulfilled by it’.[20] Furthermore, it was noted that, between validity in accordance with the law of the Detaining Power and validity in accordance with the law of the country of origin (i.e. where the will has to take effect), the latter had to take priority.[21]
4541  Thus, the relevant paragraph in the final version of the article, unlike in the 1929 Convention, requires the will to be drawn up in accordance with the legislation of the country of origin of the prisoner of war and not in the same manner as for the armed forces of the Detaining Power. Although, as pointed out at the Diplomatic Conference, there may be certain difficulties in applying the provision ‘as there might be prisoners who were nationals of countries which were not Parties to the conflict’,[22] these difficulties are outweighed by the importance of ensuring the validity of the will in the State in which it is likely to be executed, which the Convention assumes to be the country of origin of the prisoner of war. In the event that the State in which the will is to be executed is not the country of origin of the prisoner of war, it is to be hoped that the Detaining Power would take steps to facilitate its execution (for instance, by identifying a lawyer for the purposes of Article 77 who has, or can obtain, knowledge of the execution requirements of that other country) and that courts of that State look favourably on the validity of the will.
4542  For a will to fulfil the conditions of validity required by the legislation of their country of origin, prisoners of war must know what those conditions are. Accordingly, Article 120(1) provides that the country of origin must ‘take steps to inform the Detaining Power of its requirements in this respect’. This is a necessary corollary of the wording that was ultimately adopted. The information may be conveyed at the initiative of the country of origin,[23] or at the request of the Detaining Power. It may be communicated directly to the Detaining Power or to an intermediary such as the Protecting Power or the Central Agency provided for under Article 123. Ultimately, the information must be passed on to the individual prisoner of war, and the Detaining Power must allow the prisoner to draft the will accordingly.
4543  When it comes to the formal validity of wills, the trend in private international law since 1949 has been to favour their international validity through alternative conflict rules, as opposed to – as the 1949 Convention does – exclusive conflict rules. The prime example in this regard is the 1961 Convention on the Conflicts of Laws relating to the Form of Testamentary Dispositions,[24] Article 1 of which, compared with Article 120(1) of the Third Convention, significantly expands the list of domestic legal frameworks a will can comply with to be valid in terms of its form (it suffices for the will’s form to comply with any of the referred laws for it to be valid as a whole). Furthermore, some States that are not Contracting Parties to the 1961 Convention follow similar rules (codified or not) in their domestic frameworks.[25]
4544  The interplay between Article 120 of the Third Convention and these developments post-1949 poses no difficulties: since Article 120 requires a will ‘to satisfy the conditions of validity required by the legislation of their country of origin’, this legislation includes the aforementioned 1961 Convention or a substantively similar domestic framework where these are applicable to the State in question. Where such rules apply to a given prisoner of war, they complement – and thereby broaden – the range of domestic legal frameworks a will must comply with to be valid in terms of its form.
4545  Article 120 of the Convention applies only to the will’s formal validity. As to its substantial (essential) validity, the prisoner of war needs to make sure that it complies with the substantive rules identified by the choice of law relating to succession in the relevant jurisdiction (‘forum’), i.e. the country whose authorities may be seized concerning the distribution of (part of) the estate. In most cases, this will be the prisoner’s country of origin, which will be the same as their country of habitual residence/domicile and where the bulk, if not the whole, of the estate is situated. In some cases, an estate may involve two or more countries. Some countries allow the testator to make a ‘professio iuris’, i.e. choose between the law of domicile/habitual residence and the law of nationality.
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2. Transmission of the will
4546  After the will has been drawn up, it must be transmitted to the Protecting Power in two situations: when the prisoner requests it and ‘in all cases, after death’. The rationale behind the second is evident. It is only once the will is transmitted to the Protecting Power that it can be forwarded to the country of origin of the deceased prisoner of war and duly executed. Transmission at the prisoner’s request may take place for a variety of reasons, for example if they wish to ensure that all the formalities are in place and that the likely beneficiaries are aware that this part of their affairs has been attended to (and the possibility of intestacy avoided). The two situations expressly mentioned in the paragraph also lead to the conclusion that the will is not to be transmitted solely on the initiative of the Detaining Power if the prisoner of war concerned is alive as they may still decide to modify the will. The equivalent provision of the Fourth Convention provides for the safe-keeping of wills by the responsible authorities.[26]
4547  Article 77 of the Third Convention, which relates to the transmission of legal documents, expressly refers to wills. The present provision confirms the need for wills to be transmitted but uses the imperative form; the Detaining Power is not just required to ‘provide all facilities’, as in Article 77, but to transmit the will ‘without delay’. The wording underlines the importance of the timely transmission of the will: ‘without delay’, not ‘without undue delay’ or ‘without unnecessary delay’. Nonetheless, the phrase has to be interpreted in the context in which the paragraph applies, namely armed conflict, and not as it might be in peacetime. Hence, the wording used is relative and does not specify an exact time frame, such as within 24 hours.
4548  Article 120(1) requires the will to be transmitted to the Protecting Power. In the absence of a Protecting Power or a substitute, during the Second World War the ICRC ‘frequently acted as an intermediary in transmitting the wills of PW’.[27] In exceptional situations, the ICRC ‘even took charge of them until the end of hostilities’.[28] Since 1949, Protecting Powers have only rarely been appointed.[29]
4549  A certified copy of the will must also be sent to the Central Tracing Agency.[30] Article 16(3) and (4) of the First Convention provides that the information bureau described in Article 122 of the Third Convention must forward the last wills of deceased persons to the country concerned through the intermediary of the Protecting Power and the Central Agency. The present provision specifies that the Protecting Power will receive the original document, a certified copy being sent to the Central Agency.
4550  The document that passes for a will may not look like one. For example, it may be scrawled on a scrap of paper, may not use the language of the law (testator, beneficiary, etc.), and may not be attested to by witnesses. This does not prevent it from having to be forwarded. It is not for the Party to judge the validity of the will, only to forward that which appears to be a will.[31]
4551  Should there be multiple wills of different dates, all such wills must be transmitted. The choice between wills, their validity and so forth are not matters for the Party concerned; all that is required of the Detaining Power in this regard is to transmit the will(s). Decisions on the validity of the will and other matters fall within the domestic legal framework of the State in which the will is to be given effect.
4552  Although there was considerable practice relating to wills during the Second World War, there has been little since the adoption of the Convention. The fact that many members of the armed forces will draw up wills before entering the conflict, or do not draw up wills at all (whether before or after capture), likely means that the article rarely needs to be relied upon.
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D. Paragraph 2: Death certificates or certified lists
1. Forwarding of death certificates or certified lists
4553  Death certificates or certified lists of the dead are to be forwarded to the national information bureau as rapidly as possible.
4554  During the Second World War, the procedure for preparing and transmitting death certificates for prisoners of war varied from country to country. In Germany, for instance, the usual practice was to draw up lists to be considered as collective death certificates; a signature and official seal, together with a note stating that the information was based on reports by the competent military authorities, gave this document an official character. In the United Kingdom, death certificates were drawn up by the responsible civil authorities and were transmitted in the normal way. The ICRC therefore suggested that the belligerents adopt a standard form and several States took up this suggestion.[32]
4555  Article 76, paragraph 2, of the 1929 Convention, which corresponded to Article 19, paragraph 2, of the 1899 and 1907 Hague Regulations, provided that the same rules as in the case of wills, i.e. the rules applicable to members of the armed forces of the Detaining Power, shall be followed for death certificates. The ICRC’s proposal that the belligerents use a standard form instead was approved by the 1947 Conference of Government Experts and subsequently by the 1949 Diplomatic Conference.[33] Annex IV-D contains a model death certificate, and Article 120(2) specifies that death certificates are to take that form.
4556  The 1949 Convention therefore improves on the conditions for transmitting death certificates, and in addition to the psychological benefits, this improvement may have important legal implications for the families of the deceased.
4557  Best practices regarding the elements to be provided in a death certificate have evolved since the adoption of the Convention. Since 1979, the World Health Organization recommends the use of a new type of form.[34] Through their domestic legislation, some States render the use of this form compulsory.[35]
4558  As an alternative to death certificates, Article 120(2) provides that certified lists of the dead may be forwarded. The latter must be certified by ‘a responsible officer’. This requires both that an individual of sufficient authority certifies/authenticates the list (for example, a senior member of the administration of the prisoner-of-war camp) and that a process of certification be undertaken (for example, the information in the list checked against other records available to the Detaining Power). Authentication will usually take place through a signature together with a stamp or seal.[36]
4559  Although presented as an alternative, death certificates are by far preferable to certified lists, as individual death certificates are generally required by the legislation of the Power on which the prisoner depends, for example to legally confirm death, to issue benefits to the family of the deceased or for testate matters.[37] During the Second World War, the ICRC spoke out in favour of death certificates and recommended that ‘the lists of deceased PW sent out by the Detaining Powers should be followed by the official death certificate in each individual case’.[38] However, death certificates create additional work and it was therefore felt that they could not be made obligatory.[39] At any rate, the lists must be consistent with the model death certificate, indicating that the same sort of information is to be transmitted, whether in the form of a certificate or entered into a list.
4560  Death certificates or certified lists are required in respect of ‘all persons who die as prisoners of war’. All prisoners of war are thus covered by the provision regardless of the cause of death, be it from natural causes or owing to conditions of detention or treatment. Whatever the case, a death certificate must be established or the prisoner’s details must be included in the certified list. The same is true regardless of the location or manner of death. There can be no exceptions, for all the dead must be accounted for.
4561  The death certificates or certified lists are to be forwarded to the national information bureau, established in accordance with Article 122. They are then sent on, usually through the Central Agency, to the Power on which the deceased depended, to be forwarded to the families of the deceased.
4562  For the information bureau to carry out its tasks, the Party to the conflict must have a procedure in place for information to be forwarded. This will require ‘clear lines of communication’[40] between the Detaining Power and the information bureau. It is the only way to ensure that those who actually record the information forward it to the information bureau.
4563  Death certificates or certified lists are to be forwarded ‘as rapidly as possible’. The wording underscores the importance of speediness, i.e. that the fastest means of communication available be used, for example electronically. Families and friends have an interest in knowing when a loved one has died.
4564  During the Second World War, the ICRC ‘endeavoured to have lists of deceased prisoners sent by telegram, whenever the slowness of the ordinary mails and the remote situation of the PW camps justified such a course’.[41] Today, instantaneous methods of communication, such as email and facsimile, should be used to the extent possible, after which the original (signed) death certificate must be forwarded.
4565  Through its visits to prisoners of war, the ICRC also plays an important role in ensuring that death certificates are compiled in accordance with the applicable rules, and that the requisite procedures, including a medical examination, have been followed.
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2. Content of death certificates or certified lists
4566  The death certificates or certified lists must include three types of information: regarding the identity of the deceased, regarding the death and regarding the burial site.
4567  To accurately convey the identity of the deceased, the death certificates or certified lists are required to ‘show particulars of identity as set out in the third paragraph of Article 17’. These particulars include: surname and first name; rank, army, regimental, personal or serial number, or equivalent information; and date of birth. The person’s signature, fingerprints and other relevant information may also be included.
4568  Information relating to the death itself shall include the date, place and cause of death. The date of death is crucial for civil and family law purposes, for example to enable the deceased’s family to receive due benefits or for testate matters. Cause of death is information of a medical nature and should be supplied by a doctor, preferably based on an autopsy. According to contemporary standards of medical ethics, doctors must treat all medical information with confidentiality.[42]
4569  Information regarding the burial site should include the date and place of burial and all particulars necessary to identify the graves.[43] This information is important, in particular so that relatives may visit the grave later or for the possible exhumation of the body.[44]
4570  In the case of cremation, the death certificate or certified list should also state in as much detail as possible the reasons why cremation and not burial was chosen (e.g. religious reasons or the wishes of the deceased), in accordance with the third sentence of Article 120(4) of the present Article, providing as much detail in this regard as possible.
4571  The content of death certificates and certified lists set out in Article 120(2) is the minimum required.[45] The Detaining Power is free to provide any further information it sees fit, bearing in mind, in particular, ‘the right of families to know the fate of their relatives’,[46] and the customary obligation whereby, ‘[w]ith a view to the identification of the dead, each party to the conflict must record all available information prior to disposal and mark the location of the graves’.[47] This further information should include, in particular, a reference to the disposal of personal effects and certain details concerning the last moments of the deceased, to be given if possible by a witness.
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E. Paragraph 3: Medical examination
4572  The provisions of Article 120(3)–(6) originated in an amendment submitted at the Diplomatic Conference.[48] Although the corresponding provision in the 1929 Convention was generally complied with during the Second World War,[49] it merely stated that prisoners of war who died in captivity must be honourably buried and that their graves must bear the necessary indications, be treated with respect and be suitably maintained.[50] Certain other aspects are, however, of great importance: medical examination of the body before burial; registration of graves for the purpose of identification; exchange of information regarding graves; maintenance of a record of cremations; and custody of ashes. The amendments to the 1929 version were therefore approved without difficulty at the 1949 Diplomatic Conference.[51]
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1. Burial or cremation
4573  The wording of Article 120(3) does not make clear whether or not there is an obligation actually to ensure the burial or cremation of the dead. The paragraph could be read as requiring that the dead be buried or cremated either by the Detaining Power or by the families of the deceased following the return of the body to them, and that an examination be carried out prior to the burial or cremation. Alternatively, it could be read as suggesting that, if a Party to the conflict buries or cremates the dead, it must be preceded by a medical examination. It is evident from the next paragraph that the former interpretation must prevail, containing as it does an obligation to ‘ensure that prisoners of war who have died in captivity are honourably buried’. How they are to be buried or cremated is set out in the subsequent paragraphs. Taken as a whole, therefore, the article contains an obligation on the Detaining Power to ensure the burial or cremation of a deceased prisoner of war.
4574  Such a conclusion is supported by the 1929 Convention, which also contained an obligation to ensure that ‘prisoners of war who have died in captivity are honourably buried’.[52] State practice confirms the understanding that the article contains an obligation to ensure the actual burial or cremation of the dead.[53]
4575  ‘Burial’ is defined as ‘the burying of a dead body’ and ‘bury’ as ‘to place (a dead body) in the earth or a tomb’.[54] 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’;[55] this includes both cremation in a formal crematorium and cremation on a hand-built pyre.
4576  Although the third paragraph refers to ‘burial or cremation’, it is clear from the fifth 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.
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2. Medical examination of bodies prior to burial or cremation
4577  The Detaining Power is under an obligation to ensure that the bodies undergo a medical examination prior to burial or cremation. This is evident from the language used: burial or cremation ‘shall be preceded’ by a medical examination.[56]
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a. Purpose of the examination
4578  The requirement of a medical examination is intended to achieve a particular purpose. This is also evident from the language of the provision, which provides that the examination is to be undertaken ‘with a view to’ reaching certain conclusions. The purpose in question is threefold: ‘confirming death’, ‘enabling a report to be made’ and ‘where necessary, establishing identity’. Each component is important, although the first naturally precedes the second.
4579  Death must be confirmed in order to avoid the terrible tragedy of burying or cremating a person who appears to be dead but is in fact alive. The term ‘dead’ is thought to be self-explanatory.[57] 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.[58]
4580  The identity of the deceased is to be established with as much certainty as possible. In the case of deceased prisoners of war, this only needs to be done ‘where necessary’, as in most cases identity will have been established upon capture.[59] All feasible measures must be taken in this respect.[60]
4581  In exceptional circumstances, where it has not been possible to establish identity, other measures may be needed. They include a thorough examination of all documents and other objects found on the deceased’s person, for example the name tag or the identity card. Besides examining such items, if that remains inconclusive, recourse must be had to other methods that 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 information from the body that can be used for later DNA analysis.[61] However, a description of the person’s physical features remains important,[62] 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.
4582  Identification must be carried out in a manner that complies with 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.[63] Sensitivity is required if the images are shown to the family of the deceased.
4583  Although nowhere mentioned in Article 120(3), 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.[64] The absence of mention in the Third Convention was probably an oversight on the part of the drafters and, by analogy to Article 17(1) of the First Convention and Article 19(3) of the Second Convention, it may be assumed that the Detaining Power should follow the same procedure for deceased prisoners of war as for the fallen on the battlefield.
4584  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, except 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. In addition, a tag bearing a unique identifying reference number on a waterproof label should be attached to the body.[65] Both measures will assist in later establishing or confirming the identity of the deceased, for example in the case of exhumation.
4585  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’.[66]
4586  The obligation is one of conduct, to be carried out with due diligence, rather than one of result.[67] Accordingly, failing to identify the deceased after taking all feasible measures to do so, does not constitute a violation of the article. Such failure should, however, be extremely rare in the case of prisoners of war, as the Detaining Power must identify all prisoners of war as soon as they fall into its hands and notify the information bureau accordingly.[68]
4587  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.[69]
4588  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.[70] 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 as well as, at the domestic level, allow for more detail to be provided 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.[71] The report will also enable any follow-up, such as exhumation and the possible return of the body to the family or to the prisoner’s home country. It may 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.
4589  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 is information necessary to complete the death certificate required by Article 120(2). The latter especially may render necessary an official enquiry pursuant to Article 121 of the Convention.
4590  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.
4591  The purposes set out in Article 120(3) have implications for the nature of the examination.
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b. Nature of the examination
4592  The examination must be a medical examination. Unlike Article 17 of the First Convention, which refers to ‘a careful examination, if possible … a medical examination’, the present article refers simply to ‘a medical examination’. Unlike in a battlefield environment, medical examiners will usually be present in prisoner-of-war camps. Even if they are not, they are more readily accessible than on the battlefield. Only through a medical examination can the obligation of the Parties to ‘confirm[] death’ be carried out. Furthermore, in most States a death certificate can only be issued following a medical examination.
4593  Although, unlike in Article 17 of the First Convention, reference is not made to a ‘careful’ examination, the absence of the word in no way suggests that the examination does not need to be done carefully. This should be self-evident. A perfunctory examination will not suffice, nor will an examination that is designed merely to ‘tick the box’ that the Party in question has complied with its obligations under this provision. The examination must be genuine and thorough and serve the purposes set out in the article. Preferably, where other methods have failed to establish the identity of the deceased, resort must be had to an autopsy, complemented, where relevant, by additional forms of analysis such as toxicology and histology.
4594  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.[72] Medical or scientific experiments on the body are prohibited.[73] 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 buried’.[74]
4595  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 ‘timely’ is inherently variable and will depend on the facts at hand. Military considerations or practical difficulties may affect the timing, as may the terrain, the availability of transport, or the distance from qualified examiners. Nonetheless, these considerations do not detract from the need for the examination to be carried out as soon as possible, without unnecessary delay. The number of dead may also affect the timeliness of the examination. However, it does not remove the obligation in its entirety.
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F. Paragraph 4: Honourable burial
4596  Apart from a few drafting details, Article 120(4) corresponds to the first sentence of Article 17(3) of the First Convention. It imposes a number of related obligations on the detaining authorities. First, they must ensure that the dead are honourably buried, if possible according to the rites of the religion to which the deceased belonged. Second, they have certain obligations in respect of the graves, namely to ensure they are respected, maintained and marked, and, wherever possible, that deceased prisoners of war are interred in the same place as others who depended on the same Power. Compliance with these obligations may be more complicated where the detaining authorities are operating on the territory of foreign States and/or where control of the territory in question is shared or likely to be temporary only.
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1. Honourable interment
4597  The Parties to the conflict must ensure that the dead are honourably interred. This obligation constitutes the minimum respect for the remains of the deceased,[75] and is of long standing.[76] The language ‘shall ensure’ renders this a strong obligation. The verb ‘ensure’ means ‘to make certain that (something) will occur or be so’.[77] The compulsory nature of the obligation is reinforced by the preceding word, ‘shall’. 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.
4598  The obligation is vested in the ‘detaining authorities’. Therefore, they cannot assume that the deceased prisoners will be buried by other persons or entities, such as the National Red Cross or Red Crescent Society. Rather, the detaining authorities ‘shall ensure’ that burial takes place. This does not mean that the authorities have to bury the dead physically themselves; this task can be delegated to other persons or entities, while the State remains responsible for ensuring it is carried out in accordance with the Convention. Alternatively, and preferably, the authorities can return the bodies to the families of the deceased for burial or cremation.[78] The ICRC can act as a neutral intermediary in this regard
4599  The obligation to inter the dead honourably is an absolute one. It has both positive and negative aspects. The detaining authority 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 is not returned to the family.[79] It also prohibits the deliberate contamination of the site and offensive acts on the site, such as littering or urination. It further prohibits burial 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.
4600  Criminal prosecutions have been brought for preventing the honourable burial of the dead.[80]
4601  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’ indicates that this obligation is not an absolute one; the situation may preclude the interment of the dead in this manner.[81] However, as indicated above where the phrase is discussed in greater detail,[82] the language ‘if possible’ also makes clear that the Detaining Power does not have a free choice in the matter. Where interment according to the rites of the religion of the deceased is ‘possible’, the Detaining Power must do so. Nonetheless, in certain situations, it will not be possible. To begin with, it may not be possible to ascertain the religion of the deceased. Even if it can be ascertained, an appropriate religious figure may not be available to perform the ceremony or a necessary component of the rite may be absent.[83] In such cases, the Detaining Power may well be able to comply with certain aspects of the rites of the religion but not others, for example by saying a prayer or burying the deceased facing a particular direction. A religious figure not of the religion of the deceased may preside over the burial; if no such figure is available, another appropriate individual may be chosen.[84] Accordingly, the phrase ‘if possible’ is to be read as meaning ‘as far as possible’, indicating that it is not a choice between all of the rites of the religion to which the deceased belonged and none of them.
4602  In all situations, interring the deceased in an honourable and dignified manner would go a considerable way to meeting the Party’s obligations. The detaining authorities can be expected to have greater resources in this respect than Parties that are burying the battlefield dead.
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2. Graves
4603  The detaining authorities 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’,[85] 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 person does. If a monument and a grave together form a single whole, the entire object must be treated as a grave.[86] Likewise, a temporary grave from which the deceased has been removed does not constitute a grave as from the time of removal.[87] 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
4604  The detaining authorities must ensure that the graves are ‘respected’. This notion can be derived from the obligation to respect the dead. The principle of unqualified respect for fallen enemies holds good even after death.
4605  The obligation to ensure respect for the graves has both negative and positive components. The detaining authorities themselves must not disrespect the graves, a point that applies also to all entities and individuals whose conduct can be attributed to the detaining authorities. This prohibits such actions as vandalizing or removing headstones, razing or dismantling gravesites, and disinterring bodies, unless exhumation is authorized by international humanitarian law.[88] Importantly, Article 120 does not limit this obligation to the Parties’ own conduct; rather, they are obliged to ‘ensure’ that the graves of the dead are respected.[89] Consequently, the Parties must take measures to prevent other persons or entities from disrespecting the graves. This includes 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. Such actions may be more complicated when the graves are located on the territory of foreign States and/or where control of the territory is shared or only likely to be temporary. In such circumstances, the detaining authority may need to closely coordinate with, and seek the cooperation of, the host nation.
4606  One aspect of respecting the graves is specifically mentioned in the article, namely maintenance and marking.
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b. Maintenance and marking of graves
4607  The detaining authorities must ensure that the graves are ‘suitably maintained and marked so as to be found at any time’. The Parties are thus under two distinct but interrelated obligations: to maintain the graves properly and to mark the 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.
4608  In addition to the suitable maintenance of the grave,[90] Article 120(4) indicates that the obligation to mark the graves is necessary so that the graves may be ‘found at any time’. 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 time and what was once known to be a grave may later be forgotten.[91] That graves may always be found is also important for future exhumations,[92] 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.[93]
4609  The brief reference in the article to marking gives no exact indication of what the marking should be.[94] 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, would not be enough for this 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 also figure in the inscription. This is especially important 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.
4610  Reference in Article 120(4) to the maintenance and marking of graves so that they may ‘be found at any time’ indicates that the obligation persists after the cessation of hostilities.[95] 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 where 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.[96] Furthermore, graves commissions tend to maintain graves from a variety of conflicts.[97]
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c. Grouping of graves
4611  Article 120(4) also refers to the manner in which the graves are to be grouped: ‘Wherever possible, deceased prisoners of war who depended on the same Power shall be interred in the same place.’ The obligation has two aspects: to group together the graves and to group them according to the Power on which the deceased depended.
4612  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.
4613  Grouping on the basis of nationality is the option that military authorities will most naturally select. Doing so 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.[98]
4614  The phrase ‘wherever possible’ makes clear that the obligation is not an absolute one but will depend on the situation at hand. However, in the case of prisoners of war, it will mostly be possible to group the graves together, as there should be relatively few deceased, and the detaining authorities should have ascertained the identity of the prisoners at the beginning of captivity.[99]
4615  Grouping according to nationality is particularly important in the case of burial in a collective grave. As such burial is allowed only where circumstances do not permit individual burial,[100] 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 nationality.
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G. Paragraph 5: Individual graves and cremation
1. Individual graves
4616  The deceased are to be buried in individual graves unless unavoidable circumstances require the use of collective graves. This is an aspect of the requirement that the dead be honourably interred. Burial in a mass grave conflicts with the sentiment of respect for the dead. 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 later exhumation and identification, and it avoids disturbing the final resting place of the other deceased. 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 person to his or family.
4617  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 ‘unless unavoidable circumstances require the use of collective graves’. 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.[101] Public health grounds do not generally justify burial in a collective grave.[102] Despite the sometimes ingrained fear that dead bodies will cause epidemics, the risk to health from dead bodies is negligible.[103]
4618  The only exception to this would be an outbreak of plague or typhus in the camp,[104] and even then, measures can be taken to mitigate the spread of fleas or lice, for example through the use of protective clothing and the storing and burying of the dead in separate body bags.[105]
4619  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 law. 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.[106] 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, relieve the Parties of 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.
4620  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.[107] 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.[108] The detaining authority may not be able to provide a separate grave for each deceased, nor 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.
4621  Unlike the corresponding provision in Article 17(1) of the First Convention, the requirement of individual and not collective graves is mentioned only in the case of burial and not of cremation. On the basis of that provision of the First Convention, however, Article 120 of the present Convention is to be interpreted as applying also to cremation. Given that cremation is only permitted in exceptional cases,[109] and that collective burial 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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2. Cremation
4622  Although paragraph 3 refers to ‘burial or cremation’, it is evident from the language used in paragraph 5 – ‘[b]odies may only be cremated for imperative reasons’ – that burial is the norm. The fact that the reasons for cremation also have to be provided, whereas no such reasons have to be provided in the case of burial, confirms this conclusion.
4623  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, there have been cases in which the traces of crimes under international law were effaced by cremation,[110] a situation that was fresh in the minds of those attending the Diplomatic Conference.[111] 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.
4624  Article 120(5) allows for cremation only in three limited situations, namely ‘imperative reasons of hygiene’, ‘on account of the religion of the deceased’ and in accordance with the ‘express wish’ of the deceased.
4625  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 detaining authority 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[112] as the risk to public health from dead bodies is negligible.[113] Accordingly, based on medical insights gained since 1949, the first situation justifying cremation rarely applies.
4626  The second exceptional situation, relating to the religion of the deceased,[114] is linked to the fourth paragraph, concerning the honourable interment of the dead in accordance with the rites of their religion. Certain knowledge that the deceased belonged to a religion that favours cremation would militate for cremation of the body.[115] 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 120(5), 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 detaining authority 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, it would be preferable for the body of the deceased to be returned to the family for cremation.
4627  The third situation in which cremation of a deceased person may be lawful is when doing so is ‘in accordance with his express wish to this effect’ – and this wish may have been expressed without necessarily being motivated by religious reasons. 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.
4628  If the deceased is cremated, Article 120 requires that the fact of cremation and the reasons for cremation be given. This requirement demonstrates the exceptional nature of cremation. 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 that conclusion 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 of the deceased’. 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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H. Paragraph 6: Graves, graves registration service and ashes
1. Graves registration service
a. Creation of the graves registration service
4629  To fulfil the obligations described above, each Party 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.[116] 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 Article 120(6), and the Party concerned, as well as the other Parties, should be aware that, although named differently, it is the equivalent of the graves registration service provided for in the article.
4630  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. Indeed, the obligation was first contained in the 1929 Geneva Convention on the Wounded and Sick.[117] These services should be well equipped, and 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 that 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.
4631  Article 120(6) requires that the graves registration service be ‘established by the Detaining Power’, without indicating when this is to be done. On this point, Article 120 differs from Article 17(3) of the First Convention, which explicitly states that this service is to be organized ‘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.[118] 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.
4632  The article does not specify an end date for the operations of the graves registration service either. 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.
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b. Functions of the graves registration service
4633  All particulars of burials and graves are to be recorded with the graves registration service. This is to ensure that the graves may always be found. The particulars in question include the exact location and markings of the graves, backed up, where possible, by maps, GPS coordinates and the like; the identity of the deceased buried there, along with the information included on their death certificates; and the report of the examinations carried out on the bodies. All graves must be included, not only those located in formal cemeteries.
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c. Transmission of information
4634  The lists of graves and particulars noted in the previous section must be transmitted to the Power on which the deceased depended. This may be done through the Parties’ information bureaux[119] or through the ICRC.
4635  Article 120(6) does not say when the information must be transmitted. According to Article 17(4) of the First Convention, it must be transmitted ‘[a]s soon as circumstances permit, and at latest at the end of hostilities’. Reference in the latter 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,[120] the desire of the Parties to know the whereabouts of their personnel, and the obligations of the Parties in relation to the missing.[121] At the same time, the clause recognizes that the exigencies of the conflict may 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, although it is unlikely that there will be a large number of deceased prisoners of war at any one time. Such exigencies no longer exist once hostilities are over, and Article 17(4) of the First Convention provides for this with its statement that the lists of graves must be exchanged ‘at latest at the end of hostilities’. The phrase ‘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’,[122] 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,[123] 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.
4636  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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2. Care for graves
4637  To ‘care’ for graves includes respecting them and ensuring that they are respected, maintaining them and marking them so that they are identifiable as graves. Article 120(4) provides that these obligations are vested in the detaining authorities, whereas the present paragraph provides that the obligation to care for the graves is vested in the Power controlling the territory. Often, the detaining authorities and the Power controlling the territory will be one and the same. This will be true where the prisoner of war dies while in captivity in the adverse State and is buried there. Where the two entities are not coterminous, the facts will determine the matter. For example, the obligation will vest in the detaining authorities until such time as they hand over control of the territory to another State, at which point the obligation will vest in the latter.
4638  The Power that is in control of the territory is also responsible for the records of any subsequent moves of the bodies. Bodies might be moved, for example, from a temporary burial site and reinterred with other prisoners of war who depended on the same Power. They might be exhumed for investigations of war crimes or for transportation to the home country.[124] Regardless of the reason for the exhumation, it is incumbent on the Power that is in control of the territory to maintain records as to the whereabouts of the bodies. Only then can access to gravesites and possible transportation of the deceased to the home country be arranged.[125]
4639  The paragraph provides for the foregoing ‘if [the Power is] a Party to the present Convention’. As treaties are binding only on Parties to them,[126] the clause adds little of value. It does make clear, however, that the obligations in this regard vest in Powers generally, and not solely in the Parties to a conflict. Thus, if a prisoner of war dies in captivity and is buried in a State other than a Party to the conflict, that State has obligations in respect of the care of those graves, provided it is a Party to the Convention. Likewise, where a prisoner of war is accommodated in a neutral State,[127] and dies there, the neutral State is obliged to ensure the graves are cared for. In the case of an Occupying Power, that Power will have obligations in respect of the graves, whatever the nationality of the prisoners of war buried there or whatever the Power in whose armed forces they served. The obligation vests in the ‘Power controlling the territory’, referring to de facto control and not the sovereign State of the territory, in case the two are not the same.
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3. Treatment to be accorded to ashes
4640  Given that, in certain circumstances, the dead may be cremated rather than buried, Article 120(6) also governs the treatment of 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.
4641  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.[128]
4642  Although the provision 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’,[129] and the same should be done also in this context.[130]
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Bothe, Michael, ‘War Graves’, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 4, North-Holland Publishing Company, Amsterdam, 2000, pp. 1373–1374.
Bretonnière, Maurice, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), Paris, 1949.
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, 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.
La Vaccara, Alessandra, When the Conflict Ends, While Uncertainty Continues: Accounting for Missing Persons between War and Peace in International Law, Hart Publishing, Oxford, 2019.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978.
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 - See e.g. United States, Law of War Manual, 2016, p. 643, para. 9.34, which states that the provisions of the First and Second Conventions ‘are broader in application, e.g., they address members of the armed forces who have died on the battlefield and thus were not held as POWs’.
2 - First Convention, Articles 15 and 17; Second Convention, Articles 18 and 20; Fourth Convention, Articles 129 and 130; Additional Protocol I, Article 34.
3 - See Additional Protocol I, Articles 32–33. See also ICRC Study on Customary International Humanitarian Law (2005), Rule 117, and La Vaccara, p. 75.
4 - Additional Protocol I, Article 34(2)(c). See also ICRC Study on Customary International Humanitarian Law (2005), Rule 114.
5 - The 1929 Convention was itself based on the 1899 and 1907 Hague Regulations. Article 19 of the 1899 Hague Regulations provided: ‘The wills of prisoners of war are received or drawn up on the same conditions as for soldiers of the national army. The same rules shall be observed regarding death certificates, as well as for the burial of prisoners of war, due regard being paid to their grade and rank.’ Article 19 of the 1907 Hague Regulations contained largely similar wording. For practice during the First World War, see Agreement between Austria-Hungary and Italy concerning Prisoners of War and Civilians (1918), Articles 111–113, and Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Articles 88–91.
6 - See 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, pp. 300–304. See also Bretonnière, p. 477, and Levie, p. 181.
7 - See Annex IV.D.
8 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1651.
9 - Article 76 of the 1929 Geneva Convention on Prisoners of War.
10 - See Report of the Conference of Government Experts of 1947, p. 246, and Draft Conventions adopted by the 1948 Stockholm Conference, p. 95.
11 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 376.
12 - Ibid. Vol. I, p. 97.
13 - See Ibid. Vol. II-A, p. 376 (Netherlands).
14 - Ibid. Text proposed by Drafting Committee No. 2, p. 375. See also ibid. draft articles 110 and 111, p. 600.
15 - United States, Law of War Manual, 2016, pp. 599–600, para. 9.21.2.1.
16 - This is the case, for example, in Germany and Sweden.
17 - See e.g. Australian Capital Territory, Wills Act, 1968, as amended, section 16; South Australia, Wills Act, 1936, section 11; India, Succession Act, 1925, sections 65–66; Mexico, Federal Civil Code, 1928, as amended, Articles 1579–1582; New Zealand, Wills Act, 2007, sections 33–38; Nigeria, Armed Forces Act, 2004, sections 276–277; and United Kingdom, Wills Act, 1837, as amended, section 11, and Wills (Soldiers and Sailors) Act, 1918, as amended, section 3.
18 - See e.g. Australian Capital Territory, Wills Act, 1968, as amended, section 16(6)(c); Mexico, Federal Civil Code, 1928, as amended, section 1580; and New Zealand, Wills Act, 2007, section 35(3).
19 - See e.g. Tasmania (Australia), Wills Act, 2008, section 62(A)–(E). An ‘international will’ is a will drafted in accordance with the requirements of the annex to the 1973 Convention Providing a Uniform Law on the Form of an International Will. As at May 2020, only 13 States are Contracting Parties to this Convention.
20 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 321 (United Kingdom).
21 - Ibid. Vol. II-B, p. 321 (United Kingdom)
22 - Ibid. Vol. II-A, p. 376 (USSR).
23 - Some States indicate that it is preferable for this to be done ‘as soon as hostilities start’; see United Kingdom, Manual of the Law of Armed Conflict, 2004, pp. 141–142, para. 8.2, and New Zealand, Military Manual, 2019, Vol. 4, p. 12-17, para. 12.4.1.g(4).
24 - As at April 2020, this Convention has around 45 Contracting Parties. On this Convention, see the explanatory report by Henri Batiffol, Convention sur les conflits de lois en matière de forme des dispositions testamentaires, Offprint from Actes et documents de la Neuvième session (1960), Tome III : Forme des testaments, Hague Conference on Private International Law, 26 October 1960. Similarly, see Institute of International Law, Resolution on Testamentary Succession in Private International Law, Nice, 1967, Article 3.
25 - See e.g. China, Law on the Laws Applicable to Foreign-related Civil Relations of 28 October 2010 (in force since 1 April 2011), Article 32, and European Parliament and Council of the European Union, Regulation (EU) No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, Article 27.
26 - See Fourth Convention, Article 129.
27 - 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. 295.
28 - Ibid.
29 - See the commentary on Article 8, section H. For a general discussion of the functions of Protecting Powers in the Third Convention, see Introduction, section A.3.e.
30 - On the Central Tracing Agency, see Article 123.
31 - Even if the document does not legally constitute a will, it may have sentimental value for the prisoner’s family.
32 - See 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, pp. 300–302, and Volume II: The Central Agency for Prisoners of War, pp. 49–50.
33 - See Report of the Conference of Government Experts of 1947, pp. 246–247, and Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 375–377.
34 - World Health Organization, Medical Certification of Cause of Death: Instructions for Physicians on Use of International Form of Medical Certificate of Cause of Death, 4th edition, WHO, Geneva, 1979.
35 - Jason Payne-James and Richard Jones, Simpson’s Forensic Medicine, 14th edition, CRC Press, Bota Raton, p. 35: ‘The format for certifying the cause of death was defined by the World Health Organization (WHO) in 1979 and is an international standard that is used in most countries.’
36 - Article 122(8) provides that ‘(a)ll written communications made by the Bureau shall be authenticated by a signature or a seal’.
37 - See also Sassòli, p. 344, para. 8.281.
38 - 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. 301.
39 - See Report of the Conference of Government Experts of 1947, p. 247.
40 - Vaughn A. Ary, ‘Accounting for Prisoners of War: A Legal Review of the United States Armed Forces Identification and Reporting Procedures’, Army Lawyer, No. 261, August 1994, pp. 16–26, at 21–22.
41 - 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. 301.
42 - See World Medical Association, International Code of Medical Ethics, adopted by the 3rd General Assembly of the World Medical Association, October 1949, as amended; ICRC, Health Care in Danger: The Responsibilities of Health-Care Personnel Working in Armed Conflicts and Other Emergencies, ICRC, Geneva, 2012, p. 77.
43 - See e.g. Netherlands, Military Manual, 2005, pp. 95–96 (‘This information should consist specifically of the name, rank, date of birth and registration number, date and place of death, cause of death, date and place of burial, and all particulars necessary to locate the grave.’); Spain, LOAC Manual, 1996, p. 8-27 (‘Se redactará un acta de fallecimiento con todas las indicaciones necesarias para la identificación, así como del lugar y fecha del fallecimiento, la causa de éste, el lugar y la fecha de entierro así como los detalles necesarios para identificar la tumba.’ (‘A death certificate shall be drawn up with all the information needed to establish identity, along with the place and date of death, the cause of death, the place and date of burial, and the details required to locate the grave.’)); and United States, Law of War Manual, 2016, p. 644, para. 9.34.2 (‘all particulars necessary to identify the graves or inurnment/columbarium location’).
44 - See Additional Protocol I, Article 34.
45 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 297 (ICRC), referring to ‘certain minimum data’ to be included in the form.
46 - See Additional Protocol I, Article 32.
47 - ICRC Study on Customary International Humanitarian Law (2005), Rule 116.
48 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. III, pp. 89–90.
49 - Although, in some instances, the ICRC had to make representations to ensure respect for the religious rites of deceased prisoners of war.
50 - Geneva Convention on Prisoners of War (1929), Article 76, para. 3.
51 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 297.
52 - Geneva Convention on Prisoners of War (1929), Article 76.
53 - 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.’); Denmark, Military Manual, 2016, p. 274 (‘17. The dead must be buried or cremated – individually insofar as circumstances permit’); Italy, LOAC Elementary Rules Manual, 1991, para. 76 (‘As a general rule, the dead shall be … buried, cremated or buried at sea individually.’); New Zealand, Military Manual, 2019, Vol. 4, p. 11-14, para. 11.3.5.d (‘[I]f return is not practicable, remains are to be: … (4) buried, whether on land or at sea, individually where possible, but in any case with respect and religious rites’); 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, para. 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, 2017, p. 15, para. C.g. (‘Parties to the conflict … shall ensure that burial of the dead is carried out honorably and individually as far as circumstances permit’.).
54 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, pp. 187 and 189.
55 - Ibid. p. 336.
56 - See e.g. Denmark, Military Manual, 2016, p. 514 (‘In every case, the death of persons deprived of liberty must be certified by a doctor, and a death certificate shall be made out, showing the cause of death, the conditions under which it occurred, and, where necessary, the identity of the deceased.’), and New Zealand, Military Manual, 2019, Vol. 4, p. 11-14, para. 11.3.5.d (‘[I]f return is not practicable, remains are to be: (1) carefully examined to confirm death and establish identity’). For broader guidance, see also ICRC, Guidelines for Investigating Deaths in Custody, ICRC, Geneva, 2013, in particular chapter 3, and UN Office of the High Commissioner for Human Rights, The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, UNOHCHR, New York/Geneva, 2017, in particular chapter V, section D (‘Detailed Guidelines on Autopsy’).
57 - Petrig, p. 344.
58 - Elizabeth A. Martin (ed.), Concise Medical Dictionary, 8th edition, Oxford University Press, 2010.
59 - See Article 17. See also information based on the capture card provided for in Article 70.
60 - ‘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.
61 - ICRC, Operational Best Practices Regarding the Management of Human Remains, Annex D. See also ICRC, Missing People, DNA Analysis and Identification of Human Remains: A Guide to Best Practice in Armed Conflicts and Other Situations of Armed Violence, 2nd edition, ICRC, Geneva, 2009.
62 - 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.
63 - See also the commentary on Article 13, para. 1629.
64 - On the identity disc, see the commentaries on Article 16 of the First Convention, paras 1569–1574, and on Article 19 of the Second Convention, paras 1746–1751.
65 - This number must be clearly marked at ground level and mapped for future reference; see Morgan/Tidball-Binz/van Alphen, p. 22.
66 - See Additional Protocol I, Article 32. See also Henckaerts/Doswald-Beck, commentary on Rule 117, pp. 423–426; Elliott, p. 11, noting that ‘part of the motivation for identifying the dead is to let their next of kin know their fate’ and Gavshon, pp. 281–283. 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.
67 - 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, Côte 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), https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule116.
68 - See Articles 17 and 122.
69 - Additional Protocol I, Article 33 (‘As soon as circumstances permit, and at the latest from the end of active hostilities’). See also ICRC Study on Customary International Humanitarian Law (2005), Rule 117.
70 - See also Article 16 of the First Convention.
71 - See section H.
72 - On despoliation, see also the commentary on Article 15 of the First Convention, section D.4. See also Additional Protocol I, Article 34(1), and ICRC Study on Customary International Humanitarian Law (2005), Rule 113.
73 - Pursuant to Article 50 of the First Convention, ‘biological experiments’ constitute grave breaches of the Convention.
74 - See Article 120(4). See also ICRC Study on Customary International Humanitarian Law (2005), Rule 115.
75 - See e.g. Australia, Manual of the Law of Armed Conflict, 2006, paras 9.103–9.104; Denmark, Military Manual, 2016, pp. 514–515; and New Zealand, Military Manual, 2019, Vol. 4, p. 11-14, para. 11.3.5.d(4–6).
76 - Elliott, p. 10, describes it as being present ‘from antiquity and recognized as part of the law of nature’.
77 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 475.
78 - See also Sassòli, p. 344, para. 8.281.
79 - See ICRC, Operational Best Practices Regarding the Management of Human Remains, Annex H, which contains a ‘Checklist on the emergency or temporary burial of human remains’. The checklist 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. Although disregard for these factors cannot be considered a dishonourable burial, they should be respected as far as possible.
80 - See e.g. United States, Military Commission at the Mariana Islands, Yochio and others case, Trial, 1946, and United Kingdom, Military Court at Singapore, Jotani case, Abstract of evidence, 1946, p. 3.
81 - For further information on burial and religious rites, see Gavshon, pp. 287–288.
82 - See section E.2.b.
83 - Examples given during the drafting of the present article were the use of a rare substance and the sacrifice of an animal. See 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.
84 - ICRC, Operational Best Practices Regarding the Management of Human Remains, Annex H.
85 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 622.
86 - See also Petrig, p. 345. Each case will have to be judged on its facts.
87 - But see ibid. considering it ‘sufficient that the gravesite contained some mortal remains at some point in time’.
88 - On the last point, see Additional Protocol I, Article 34(4).
89 - For a discussion of the term ‘shall ensure’, see para. 4597 of this commentary.
90 - The notion of ‘suitably maintained’ is akin to the First Convention notion of ‘properly’ maintained; see Article 17 of that Convention.
91 - 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.
92 - On which, see Additional Protocol I, Article 34.
93 - See ibid.
94 - See e.g. New Zealand, Military Manual, 2019, Vol. 4, p. 11-14, para. 11.3.5.e: ‘NZDF [New Zealand Defence Force] commanders and members of the NZDF dealing with human remains are to ensure that: … e. graves are marked with culturally appropriate markers (fn. 77) and all available information regarding their location is recorded and exchanged.’ fn. 77: ‘It is not appropriate to use religious markers unless this is known to be acceptable to the families of the deceased. For example, crosses are not to be used to mark the graves of Muslim dead.’
95 - See also La Vaccara, p. 75.
96 - See e.g. Agreement concerning the Treatment of War Graves of Members of the UK Armed Forces in the German Democratic Republic (1987) relating to war graves resulting from the First and Second World Wars; USSR-Japan Agreement on Persons Detained in Prisoner-of-War Camps (1991); and Russia-Turkey Agreement on Burial Sites (2012). See also Russia-Hungary Agreement to perpetuate the Memory of War Victims and the Status of Graves (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 interwar period.
97 - See the commentary on Article 34 of Additional Protocol I.
98 - See Additional Protocol I, Article 34.
99 - See Article 17.
100 - See section G.1.
101 - Wisner/Adams, p. 199 (referring to number of deaths, climatic or other constraints).
102 - 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.
103 - 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.
104 - Wisner/Adams, p. 198.
105 - WHO Regional Office for South-East Asia, Disposal of dead bodies in emergency conditions, WHO/SEARO Technical Notes for Emergencies, Technical Note No. 8, World Health Organization, New Delhi, undated, p. 4.
106 - See Wisner/Adams, p. 199.
107 - See Tidball-Binz, p. 436, and ICRC, Operational Best Practices Regarding the Management of Human Remains, Annex E.
108 - ICRC, Operational Best Practices Regarding the Management of Human Remains, Annex H.
109 - See para. 4576 of this commentary.
110 - See e.g. United Kingdom, Military Court at Hamburg, Stalag Luft III case, Trial, 1947, and Military Court at Singapore, Mabuchi Setsuo and others, Abstract of evidence, 1946, p. 1.
111 - 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.
112 - Tidball-Binz, p. 435; Harvey/Baghri/Reed, p. 135 (‘Health considerations alone provide no justification for cremation.’).
113 - 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, WHO/SEARO Technical Notes for Emergencies, Technical Note No. 8, World Health Organization, New Delhi, undated, 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.
114 - The phrase ‘motives based on the religion of the deceased’ (emphasis added) simply means reasons based on the religion of the deceased.
115 - For a list of religions and their preferences for burial or cremation, see Froidevaux, pp. 800–801.
116 - 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.
117 - Geneva Convention on the Wounded and Sick (1929), Article 4.
118 - On the concept of declared war, see the commentary on Article 2, section D.1.
119 - Article 122.
120 - See Additional Protocol I, Article 32. See also Henckaerts/Doswald-Beck, commentary on Rule 117, pp. 423–426, and, for further analysis of the contours of this right under contemporary international law, Gavshon, p. 282.
121 - See Additional Protocol I, Article 33. See also ICRC Study on Customary International Humanitarian Law (2005), Rule 117.
122 - Geneva Convention on the Wounded and Sick (1929), Article 4.
123 - 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.
124 - See Additional Protocol I, Article 34.
125 - See ibid.
126 - Vienna Convention on the Law of Treaties (1969), Article 34.
127 - See Articles 109–117.
128 - See section F.2.b.
129 - 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 the commentary on Article 34(2)(c) of Additional Protocol I.
130 - See e.g. United States, Army Regulation on Enemy Prisoners, Retained Personnel, Civilian Internees and Other Detainees, 1997, para. 3-10.g (‘Ashes will be kept by Graves Registration Service persons until proper disposal can be decided according to the wishes of the power on which that person depended.’).