Practice Relating to Rule 116. Accounting for the Dead

Geneva Convention (1929)
Article 4 of the 1929 Geneva Convention provides:
Belligerents … shall ensure that the burial or cremation of the dead is preceded by a careful, and if possible medical, examination of the bodies, with a view to confirming death, establishing identity and enabling a report to be made. 
Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 27 July 1929, Article 4.
Geneva Convention I
Article 16, first and second paragraphs, of the 1949 Geneva Convention I provides:
Parties to the conflict shall record as soon as possible, in respect of each … dead person of the adverse Party falling into their hands, any particulars which may assist in his identification.
These records should if possible include:
a) designation of the Power on which he depends;
b) army, regimental, personal or serial number;
c) surname;
d) first name or names;
e) date of birth;
f) any other particulars shown on his identity card or disc;
g) date and place of capture or death;
h) particulars concerning wounds or illness, or cause of death. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 16, first and second paras.
Geneva Convention I
Article 17, first paragraph, of the 1949 Geneva Convention I provides:
Parties to the conflict shall ensure that burial or cremation of the dead, carried out individually as far as circumstances permit, is preceded by a careful examination, if possible by a medical examination, of the bodies, with a view to confirming death, establishing identity and enabling a report to be made. One half of the double identity disc, or the identity disc itself if it is a single disc, should remain on the body. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 17, first para.
Geneva Convention II
Article 19, first paragraph, of the 1949 Geneva Convention II provides:
The Parties to the conflict shall record as soon as possible, in respect of each … dead person of the adverse Party falling into their hands, any particulars which may assist in his identification. These records should if possible include:
a) designation of the Power on which he depends;
b) army, regimental, personal or serial number;
c) surname;
d) first name or names;
e) date of birth;
f) any other particulars shown on his identity card or disc;
g) date and place of capture or death;
h) particulars concerning wounds or illness, or cause of death. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 19, first para.
Geneva Convention II
Article 20 of the 1949 Geneva Convention II provides:
Parties to the conflict shall ensure that burial at sea of the dead, carried out individually as far as circumstances permit, is preceded by a careful examination, if possible by a medical examination, of the bodies, with a view to confirming death, establishing identity and enabling a report to be made. Where a double identity disc is used, one half of the disc should remain on the body.
If dead persons are landed, the provisions of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, shall be applicable. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 20.
Geneva Convention III
Article 120, second and third paragraphs, of the 1949 Geneva Convention III provides:
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.
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. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 120, second and third paras.
Geneva Convention IV
Article 129, second and third paragraphs, of the 1949 Geneva Convention IV provides:
Deaths of internees shall be certified in every case by a doctor, and a death certificate shall be made out, showing the causes of death and the conditions under which it occurred.
An official record of the death, duly registered, shall be drawn up in accordance with the procedure relating thereto in force in the territory where the place of internment is situated, and a duly certified copy of such record shall be transmitted without delay to the Protecting Power as well as to the Central Agency referred to in Article 140. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 129, second and third paras.
Panmunjom Armistice Agreement
Article III(58)(a) of the 1953 Panmunjom Armistice Agreement provides:
The Commander of each side shall furnish to the Commander of the other side as soon as practicable, but not later than ten (10) days after this Armistice Agreement becomes effective, the following information concerning prisoners of war:
(2) Insofar as practicable, information regarding name, nationality, rank, and other identification data, date and cause of death, and place of burial, of those prisoners of war who died while in custody. 
Agreement between the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers, on the other hand, concerning a Military Armistice in Korea, Panmunjom, 27 July 1953, Article III(58)(a).
NATO Standardization Agreement 2132
The 1974 NATO Standardization Agreement 2132 describes the procedures to be followed with respect to documentation relative to medical evacuation, treatment and cause of death of patients. 
Standardization Agreement 2132, Edition 2, Documentation Relative to Medical Evacuation, Treatment and Cause of Death of Patients, North Atlantic Treaty Organization, Military Agency for Standardization, Brussels, 7 August 1974.
Additional Protocol I
Article 33 of the 1977 Additional Protocol I, with regard to the search for missing persons, provides:
2. In order to facilitate the gathering of information [regarding missing persons], each Party to the conflict shall, with respect to persons who would not receive more favourable consideration under the [1949 Geneva] Conventions and this Protocol:
(a) record the information specified in Article 138 of the Fourth [Geneva] Convention in respect of such persons who … have died during any period of detention;
(b) to the fullest extent possible, facilitate and, if need be, carry out the search for and the recording of information concerning such persons if they have died in other circumstances as a result of hostilities or occupation.
4. The Parties to the conflict shall endeavour to agree on arrangements for teams to … identify … the dead from battlefield areas. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 33. Article 33 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.37, 24 May 1977, p. 71.
NATO Standardization Agreement 2070
The 1999 NATO Standardization Agreement 2070 provides:
11. An appropriate (religious) marker high enough to be seen is to be erected. At its base, a bottle, can, or other suitable container is to be half buried, open end downwards, containing a paper on which is recorded such information listed below as is available:
a. Name (surname, prefix and forename or initials).
b. Rank or Grade.
c. Gender.
d. Service Number.
e. National Force, Unit, and Place of Birth, if desired.
f. Date and cause of death, if known.
g. Date buried.
h. By whom buried.
i.Religious faith.
j.Nature of contamination.
12. In the case of trench and group burials a marker and list in a suitable container endorsed accordingly is to be placed at each end of the grave and the distance of the remains from the marker is to be shown against the relevant entry in the list. In group burials the number of bodies buried must be recorded, with the names of the known but unidentifiable dead listed.
15. Unidentifiable dead should be buried and reported as others except that the word “unknown” is to be used in place of the name. Particular care must be taken to list all information which may assist identification later. The fullest possible physical, especially dental, description is to be recorded and fingerprints taken if possible. Details of numbers and markings on uniforms, equipment, vehicles or aircraft, and particulars of IDENTIFIABLE DEAD in the vicinity should be noted.
16. In all cases an emergency burial report must be completed by the unit responsible. The type of report form to be used is given at Annex A. This is not a prescribed format, but shows generally the information most nations consider essential to have, provided it is available.
18. … One identification tag/disc must be buried with the corpse. The second identification tag/disc, or the removable part, is placed in the receptacle with the personal effects. In the case of United States personnel, all personal effects and one identification tag are buried with the remains and the second identification tag affixed to the grave marker. 
Standardization Agreement 2070, Edition 4, Emergency War Burial Procedures, North Atlantic Treaty Organization, Military Agency for Standardization, Brussels, 6 April 1999, §§ 11, 12, 15, 16 and 18.
[emphasis in original]
Oxford Manual
Article 20 of the 1880 Oxford Manual provides: “The dead should never be buried until all articles on them which may serve to fix their identity, such as pocket-books, numbers, etc., shall have been collected.” 
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 20.
Argentina
Argentina’s Law of War Manual (1969) provides that the dead shall be identified prior to their disposal. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 3.005; see also Law of War Manual (1989), §§ 2.06, 6.01 and 6.04.
Australia
Australia’s Defence Force Manual (1994) provides:
As soon as is practical following the death of a combatant, a belligerent shall record the following information to aid identification …
a) nationality;
b) regimental or serial number and rank;
c) surname and all first names;
d) date of birth, religion and any other particulars shown on the body’s identity card or identity discs; and
e) the date, cause and place of death and if the body is given a field burial, the exact location of the remains to enable future exhumation of the body, or remains if necessary. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 9-101.
Australia
Australia’s LOAC Manual (2006) states:
As soon as is practical following the death of a combatant, a belligerent shall record the following information to aid identification. Such information is to be passed to the national bureau direct, or through a protecting power to the Central Tracing Agency of the ICRC as follows:
• nationality;
• regimental or serial number and rank;
• surname and all first names;
• date of birth, religion and any other particulars shown on the body’s identity card or identity discs; and
• the date, cause and place of death and if the body is given a field burial, the exact location of the remains to enable future exhumation of the body, or remains if necessary. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.106.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states: “The belligerents must … identify the dead”. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 49.
Benin
Benin’s Military Manual (1995) provides: “The dead must be identified.” 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule II, pp. 9 and 12.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “The dead must be identified (name, first name, rank, regimental number, origin).” 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 25.
Cameroon
Cameroon’s Instructor’s Manual (1992) states that, when the tactical situation permits, the dead should be buried after identification and medical examination. It also states: “All the dead must be listed.” 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 44, § 163(2) and p. 118, § 431(2).
Cameroon
Cameroon’s Instructor’s Manual (2006) states: “If the tactical situation permits, and after identification, the dead must be buried, incinerated or buried at sea, as appropriate.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 122, § 403; see also p. 60, § 251, p. 85, § 341, p. 117, § 391, p. 159, § 452 and p. 164, § 463.
The manual further states: “In the case of [burial] at sea, the entire double [identity] disc must be retained.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 122, § 403; see also p. 164, § 463.
The manual, under the heading “The Case of Deceased Prisoners of War”, also provides that “[a]ll dead must be registered”. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 264, § 621.
Canada
Canada’s LOAC Manual (1999) provides: “Parties to the conflict shall endeavour to reach agreements to allow teams to … identify … the dead from battlefield areas.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 9-5, § 53.
The manual further states: “Burial or cremation must be preceded by a careful examination of the bodies (if possible by a medical examination), with a view to confirming death, establishing identity and enabling a report to be made.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 9-6, § 56.
Canada
Canada’s Code of Conduct (2001) provides: “Burial must be preceded by a careful examination, and if possible, by a medical examination of the bodies in order to confirm death, establish identity and make appropriate reports.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 7, § 5.
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of the wounded, sick and shipwrecked:
924. Search for missing and dead
1. The Geneva Conventions impose certain obligations on Detaining Powers with regard to the burial and reporting of dead personnel belonging to the adverse party. [The 1977 Additional Protocol I] also imposes obligations to search for the missing and to report upon the disposal of the remains of the dead.
3. To facilitate the finding of missing personnel, parties to the conflict shall endeavour to reach agreements to allow teams to search for, identify and recover the dead from battlefield areas. They may also attach to such teams representatives of the adverse party when the search is taking place in areas controlled by the adverse party. While carrying out these duties, members of the teams shall be respected and protected.
925. Care of remains
3. Burial or cremation must be preceded by a careful examination of the bodies (if possible by a medical examination), with a view to confirming death, establishing identity and enabling a report to be made. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 924.1 and 3 and 925.3.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
As a general principle, subject to any religious or ethnic variations, the funeral arrangements for a PW [prisoner of war] are to be the same as those, which would be made for a member of the Canadian Forces dying in the AOO [Area of Operations]. In particular, the disposal of the remains of a deceased PW are to be carried out [as follows]:
a. … Before burial or cremation takes place, there is to be a medical examination of the body in order to confirm death and, where necessary, to identify the remains. It will be normal practice for an NIS [National Investigation Service] Investigator to be present during this post mortem investigation. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 3F17.5.
Canada
Canada’s Code of Conduct (2005) states: “Burial must be preceded by a careful examination, and if possible, by a medical examination of the bodies in order to confirm death, establish identity and make appropriate reports.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 7, § 5.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders): “The dead must be identified … Identity cards must be removed and kept. One half of a double identity disc remains with the body; the other half must be removed and kept. … Ashes and personal effects should be collected and removed and kept.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter III, Section II, § 2.3; see also Chapter II, Section III, § 3.1.
In Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police), the manual states: “The identity cards of the dead and their personal effects must be sent to the hierarchical superior.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Section II, § 2.3.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 2 (Instruction of second-year trainee officers):
I.2.3. The dead
Before burial, bodies shall, to the greatest extent practicable, be the object of a careful examination, if possible by a medical examination, with a view to confirming death, establishing identity and enabling a report to be made. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 24.
Croatia
Croatia’s LOAC Compendium (1991) states: “The dead shall be identified according to the circumstances.” 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 47.
Croatia
Croatia’s Commanders’ Manual (1992) provides: “As a rule, the dead shall be identified.” 
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 76; see also § 89.
France
France’s LOAC Summary Note (1992) and LOAC Teaching Note (2000) provide that the dead must be identified. 
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 2.1; Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 3.
France
France’s LOAC Manual (2001) reproduces Article 17 of the 1949 Geneva Convention I. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 121.
Germany
Germany’s Military Manual (1992) provides: “Burial or cremation of the dead shall be preceded by an examination of the bodies with documentation.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 611.
Hungary
Hungary’s Military Manual (1992) states: “The dead shall be identified according to the circumstances.” 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 77.
India
India’s Police Manual (1986) provides that, in cases of death resulting from a clash, the police are required to hold an inquest and to send the body for post-mortem examination. 
India, Police Manual for Handling Civil Disturbances, Home Ministry, Government of Maharashtra, Bombay, 1986, Article 13(xviii), p. 39.
Israel
Israel’s Manual on the Laws of War (1998) states:
It is incumbent on each party to keep a record of a fallen soldier’s personal details and particulars of death, and hand over to the other side half of the dog-tag worn by the fallen soldier, as well as a death certificate. 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 61.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
Each side has the duty to record details of the fallen and details of the death, and to send to the other side half the identity tag worn by the fallen, his personal possessions and the death certificate. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 39.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s LOAC Elementary Rules Manual (1991) provides: “As a general rule, the dead shall be identified.” 
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 76.
Kenya
Kenya’s LOAC Manual (1997) provides: “The dead shall be identified. After identification, the dead shall be buried … Identity cards shall be evacuated.” 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 3, p. 11.
Madagascar
Madagascar’s Military Manual (1994) provides: “Generally, the dead shall be identified.” 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 7-O, § 23; see also Fiche No. 8-O, § 25, Fiche No. 6-SO, § B and Fiche No. 2-T, § 22.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention I, states:
Parties to the conflict must ensure that burial on land or at sea or cremation of the dead, carried out individually as far as circumstances permit, is preceded by an examination, if possible a medical examination, of the bodies, with a view to confirming death and establishing identity. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 92.
Netherlands
The Military Manual (1993) of the Netherlands provides:
Parties to the conflict are obliged to ensure that burial or cremation of the dead … is preceded for each dead by a careful examination, if possible by a medical examination, of the body, with a view to confirming death and establishing identity. One half of the double identity disc or the identity disc itself if it is a single disc, should remain on the body. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VI-2.
Netherlands
The Military Handbook (1995) of the Netherlands provides: “The identification of the dead must be done.” 
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-37.
Netherlands
The Military Manual (2005) of the Netherlands states:
The parties to a conflict are bound to ensure that burial or cremation of the dead … is, in any case, preceded by careful examination of the body (also medically if possible), to establish cause of death and identity. One half of the double identity disc (or the whole of a single disc) must remain attached to the body. Cremation of a corpse is permitted for pressing hygienic or religious reasons. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0609.
New Zealand
New Zealand’s Military Manual (1992) states: “To facilitate the finding of the missing personnel, Parties to the conflict endeavour to reach agreement to allow teams to … identify … the dead from battlefield areas.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1011(3).
Nigeria
Nigeria’s Manual on the Laws of War provides: “The belligerents have to register as soon as possible all the particulars that can help to identify an enemy soldier who is wounded, sick or dead.” 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 35.
Peru
Peru’s IHL and Human Rights Manual (2010) states: “Prior to their burial at sea or land or their incineration, the dead must be subjected to a careful and thorough medical examination if possible, with a view to … establishing identity”. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 77(b), p. 277; see also p. 427.
Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) provides:
After an engagement:
4. Identify the dead. Pursue the identification of the dead. Enemy forces often bring with them documents that carry their identities. After identification, inform the nearest of kin and respect their cultural traditions. 
Philippines, Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 61, § 4.
Poland
Poland’s Procedures Governing the Interment of Soldiers Killed in Action (2009) states in the section on “Marking the graves”:
A container should be placed on top of each grave, containing basic information to facilitate the identification of the remains buried there. It is recommended that information relating to the buried bodies be written in indelible ink on paper … and include the following details:
- Surname and name, initials or other information pertaining to the deceased, such as a pseudonym
- Rank or professional post held
- Gender
- Service number
- Number of military unit
- Date and cause of death (if known)
- Date of burial
- Name of person who performed the burial
- Religious faith
- Nature of contamination (if any occurred and can be described)
- Circumstances of death and names of witnesses, if known
When digging group or trench graves, the following principles shall be respected:
- Draft lists relating to the deceased persons buried in the grave …
If the remains cannot be identified, the aim should be to at least indicate the number of bodies in each grave. 
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.3.
The Procedures also states: “Civilian members of the armed forces who had not participated in hostilities shall be buried in line with procedures established for the burial of the bodies of soldiers.” 
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.4.2.
The Procedures further states: “If an emergency burial has taken place, a report shall be drawn up by the army unit performing the burial. … The chaplain performing the burial, irrespective of their faith, should record the deceased in the register of births and deaths, in the section pertaining to the deaths.” 
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.5.1.
The Procedures also states:
In the case of identity tags belonging to deceased United States nationals (soldiers):
- One tag shall be placed with the body
- The second tag shall be placed on the grave.
Identity tags belonging to deceased members of the national or allied armed forces shall be split in two parts, and
- one part shall be placed with the body, preferably in the mouth of the deceased. 
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.7.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) provides in its chapter on logistic support:
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 establish the identity of the dead …
165. Burial of the dead members of the enemy armed forces and other victims of armed conflicts shall be organized by the deputy division (regiment) commander for logistics. Collection, identification and burial of the dead as well as the graves (gravesites) registration shall be performed by the units (teams) headed by officers appointed by a division (regiment) commander’s order. Such units (teams) commanders shall be provided with transport, tools, materials and disinfectants.
166. Bodies of the dead enemy servicemen and those of other victims of armed conflicts shall be gathered in the assigned areas.
Whenever possible, the fact of death shall be confirmed by a representative of the medical service. In the course of identification, if the identification information is available (documents, personal identification number – identity disc), lists of names of the dead shall be drawn up, including nationality (citizenship); service or personal number; surname; first name or names; date of birth; any other particulars shown on the identity card or disc; date and place of death; particulars concerning wounds (mutilation) or illness and the cause of death.
If identification is impossible and if the situation permits, the appearance of the dead shall be described, prints of his fingers and palms taken, a card filled in and full face and profile photos taken in order to identify the dead person in the future.
167. A half of a double identity disc or the identity disc itself if it is a single disc, should remain on the body both when buried or cremated.
A two-copy inventory shall be made of the identity disk or one half of the double identity disc, if any, last wills or other documents of importance to the next of kin, money and in general all articles of an intrinsic or sentimental value, which are found on the dead. All these articles shall be sealed into a parcel with the second copy of the inventory enclosed and sent, according to the established procedure, together with the burial acts and the lists of the names of the dead. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, §§ 164–167; see also § 151 (logistic support).
Senegal
Senegal’s IHL Manual (1999) provides that, in situations of internal troubles, “the dead shall be identified”. 
Senegal, Le DIH adapté au contexte des opérations de maintien de l’ordre, République du Sénégal, Ministère des Forces Armées, Haut Commandement de la Gendarmerie et Direction de la Justice Militaire, Cabinet, 1999, p. 18, § 6.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
It is therefore the responsibility that at the end of every engagement soldiers should …
b. Identify the dead by checking his identity card or disc.
j. The above mentioned actions shall be applied to all dead persons, whether civilian or military, own or enemy forces. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, pp. 38–39.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
c. Prisoners of War
Death of POW [prisoners of war]
The burial of a POW should only take place after a medical examination of the body with a view to confirming death, providing a death report and identifying the POW.
The Detaining Power has specific duties with regard to the:
- sending of death certificates to the NIB [National Information Bureau].
d. Wounded, sick, shipwrecked, the dead and missing.
Identification (Article 15 [1949] Geneva Convention I)
- The Parties to a conflict are obliged to record and forward the particulars of the wounded, sick and dead to the NIB of the ICRC.
- This is done for the purpose of informing the next-of-kin.
- It is preferable that these particulars be recorded as soon as possible to avoid confusion.
- It is particularly important that the dead be identified before burial.
- The following information must be recorded if possible:
- the power on which the person depends (his country);
- military or personal identity numbers;
- surname;
- full names;
- date of birth;
- any other details which appear on his identity card or disc;
- date and place of capture or death; and
- particulars of wounds, illness or cause of death.
The Dead (Article 17 Geneva Convention I)
- The identity and other particulars of the dead must be recorded.
- Their personal possessions must be collected. These include;
- one half of the double identity disc (the other half must be left on the body);
Burial of the Dead
- The burial of the dead must be preceded by a thorough examination to confirm death and to identify the deceased. This examination should preferably be a medical examination.
- One half of the double identity disc must be left on the body. If only a single identity disc is found on the body it must remain there.
- Burial of the Dead
- Parties to the conflict shall ensure that the burial at sea of the dead is preceded by a careful examination, if possible by a medical examination, of the bodies, with a view to confirming death, establishing identity and enabling a report to be made.
- Where a double identity disc is used, one half of the disc should remain on the body.
- If the bodies are brought ashore, the prescriptions of Geneva Convention I, regarding burial at land, will apply. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 91, 99, 102, 105–107 and 111.
Spain
Spain’s LOAC Manual (1996) states: “The dead must be identified.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 5.2.d.(6).
Spain
Spain’s LOAC Manual (2007) states: “The dead must be identified. … If the deceased person has a double identity disc, one half must be returned and the other must remain on the body. If the deceased person has a single disc, it must remain on the body.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 5.2.d.(6).
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “No corpse shall be buried or cremated without an examination, if possible medical, to certify the death and establish the identity of the deceased.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 76(1).
Switzerland
Switzerland’s Aide-Memoire on the Ten Basic Rules of the Law of Armed Conflict (2005) states: “I recover and identify wounded, sick, shipwrecked and dead persons without discrimination as soon as the combat situation allows or the superior orders such.” 
Switzerland, The Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for Organization of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Rule 4.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states: “The deaths of prisoners must be reported immediately to the superior and a detailed report established.” 
Switzerland, Bases légales du comportement à l’engagement ( BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 192.
Togo
Togo’s Military Manual (1996) provides: “The dead must be identified.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule II, pp. 9 and 12.
Ukraine
Ukraine’s IHL Manual (2004) states:
2.5.3.1. … Measures to search for, collect, identify and bury the dead shall be organized as soon as the situation permits. Those measures shall be aimed at the … identification of the dead …
2.5.3.3. … During [the] identification process in [cases when] the relevant information is present (documents, identification disc or distinctive medallion), detailed lists of the deceased shall be made. Such lists shall include:
- nationality of the servicemen;
- military or personal number;
- surname, first name and patronymic;
- date of birth;
- other particulars shown on the ID card or identification disc;
- date and place of death;
- information relating to the character of injury (mutilation), illness and cause of death.
If identification proves to be impossible, if circumstances permit, the following actions shall be performed in order to enable his/her identification in future: a description of appearance of the deceased, printing of fingers and palms, photograph (full-face and half-face). 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, §§ 2.5.3.1 and 2.5.3.3.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides: “Belligerents must record as soon as possible any particulars which may assist in the identification of dead persons belonging to the opposing belligerent who fall into their hands.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 382.
The manual adds: “Before being buried or cremated, the bodies must be carefully examined to ensure that life is extinct, and also to establish identity and enable a report to be made.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 383.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) provides:
7.32. Since some injuries sustained in, or as a result of, combat produce symptoms resembling death, the parties to a conflict are required to ensure that, in so far as circumstances permit, bodies are given an individual medical examination. This is a task for medical personnel and the objects of such examination are to confirm the fact of death, to establish the identity of the deceased and to enable a report about the death to be made.
Identity discs
7.33. Where the deceased is in possession of two identity discs, one disc should remain on the body and the other should be sent with his personal effects to the information bureau. If the deceased was in possession of only one identity disc, that disc should remain on the body. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 7.32 and 7.33.
In its chapter on maritime warfare, the manual provides:
Burial at sea of the dead is to be carried out individually as far as circumstances permit and is to be preceded by a careful examination, preferably a medical examination, of the bodies to confirm death, establish identity and to enable a report to be made. Where a double identity disc is used, one half of the disc should remain on the body. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 13.130.
United States of America
The US Field Manual (1956) provides:
Parties to the conflict shall record as soon as possible, in respect of each … dead person of the adverse Party falling into their hands, any particulars which may assist in his identification.
These records should if possible include:
(a) designation of the Power on which he depends;
(b) army, regimental, personal or serial number;
(c) surname;
(d) first name or names;
(e) date of birth;
(f) any other particulars shown on his identity card or disc;
(g) date and place of capture or death;
(h) particulars concerning wounds or illness, or cause of death. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 217; see also Operational Law Handbook (1993), p. Q-185.
The manual also provides:
Parties to the conflict shall ensure that burial or cremation of the dead … is preceded by a careful examination, if possible by a medical examination, of the bodies, with a view to confirming death, establishing identity and enabling a report to be made. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 218.
United States of America
The US Air Force Pamphlet (1976) refers to Article 16 of the 1949 Geneva Convention I. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 12-2(a).
United States of America
The US Manual on Detainee Operations (2008) states:
(5) When a detainee in U.S. custody dies, the commander, the staff judge advocate or legal adviser, and appropriate military investigative agency will be notified immediately. The attending medical officer will provide the commander the following information:
(a) Full name of deceased
(b) ISN [internment serial number] of deceased
(c) ICRC number of deceased, if available
(d) Date and place of death
(e) A statement as to the cause of death
(6) After coordination with the AFME [Armed Forces Medical Examiner], the detention facility’s senior medical officer available will sign the death certificate. This authority will not be delegated. Upon the death of a detainee, the internment facility, unit, or medical facility will immediately notify the TDRC [theater detainee reporting center] through the chain of command by the most expeditious means possible. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. IV-7.
The manual also states:
Detainee Categories
The DOD [Department of Defense] definition of the word “detainee” includes any person captured, detained, or otherwise under the control of DOD personnel (military, civilian, or contractor employee) … It does not include persons being held primarily for law enforcement purposes except where the United States is the occupying power …
a. Enemy Combatant. In general, a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” includes both “lawful enemy combatants” and “unlawful enemy combatants.”
b. Enemy Prisoner of War. Individual under the custody and/or control of the DOD according to Articles 4 and 5 of the … [1949 Geneva Convention III].
c. Retained Personnel … Personnel who fall into the following categories: official medical personnel of the armed forces exclusively engaged in the search for, or the collection, transport, or treatment of wounded or sick, or in the prevention of disease, and staff exclusively engaged in the administration of medical units and facilities; chaplains attached to enemy armed forces; staff of national Red Cross Societies and that of other volunteer aid societies duly recognized and authorized by their governments to assist medical service personnel of their own armed forces, provided they are exclusively engaged in the search for, or the collection, transport or treatment of, the wounded or sick, or in the prevention of disease, and provided that the staff of such societies are subject to military laws and regulations.
d. Civilian Internee … A civilian who is interned during an armed conflict, occupation, or other military operation for security reasons, for protection, or because he or she has committed an offense against the detaining power. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-3–I-5; see also pp. viii and GL-3.
Azerbaijan
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) provides: “Each party buries [the dead] after they take all the measures for their identification.” 
Azerbaijan, Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War, 1995, Article 29(3).
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.  
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Articles 16 and 17 of the Geneva Convention I, Articles 19 and 20 of the Geneva Convention II, Articles 120 and 121 of the Geneva Convention III, Articles 129 and 131 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 33, are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Italy
Italy’s Law of War Decree (1938), as amended in 1992, provides: “Commanders shall take all necessary measures to … ascertain [the] identity [of the dead].” 
Italy, Law of War Decree, 1938, as amended in 1992, Article 94.
Norway
Norway’s Military Penal Code (1902) provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Argentina
In its judgment in the Military Juntas case in 1985, Argentina’s Court of Appeal referred to the rule that prior to burial or cremation, the dead should be examined, if possible by a doctor. 
Argentina, Court of Appeal, Military Juntas case, Judgment, 9 December 1985.
Colombia
In 1995, Colombia’s Council of State held that a report must be made concerning the circumstances of death: in the aftermath of a battle, the bodies of all those killed, whether combatants or non-combatants, must be treated in accordance with forensic requirements in order to “permit complete identification and establishment of the circumstances of death”. 
Colombia, Council of State, Case No. 10941, Judgment, 6 September 1995, pp. 37–42.
Israel
According to the Report on the Practice of Israel, in the Abu-Rijwa case in 2000, the Israel Defense Forces (IDF) carried out DNA identification tests when asked by family members to repatriate remains. 
Report on the Practice of Israel, 1997, Chapter 5.1, referring to High Court, Abu-Rijwa case, Judgment, 15 November 2000.
Israel
In its ruling in the Barake case in 2002, dealing with the question of when, how and by whom the mortal remains of Palestinians who died in a battle in Jenin refugee camp should be identified and buried, Israel’s High Court of Justice stated that “once the identification process is over, the burial shall begin” and that “identifying … the bodies is a highly important humanitarian need”. 
Israel, High Court of Justice, Barake case, Ruling, 14 April 2002, §§ 8 and 9.
Russian Federation
In 2007, in the Burial case, the Russian Federation’s Constitutional Court was called upon to rule on the constitutionality of two laws related to the interment of suspected terrorists whose deaths resulted from the interception of their terrorist acts. The Court held that the restrictive measures introduced by these laws were in conformity with the Constitution. The Court stated:
3.1 … [T]he interest in fighting terrorism, in preventing terrorism in general and specific terms and in providing redress for the effects of terrorist acts, coupled with the risk of mass disorder, clashes between different ethnic groups and aggression by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, and lastly the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime, such as that provided for by section 14(1) of the Federal Act [on Interment and Burial of 12 January 1996, as amended], governing the burial of persons who escape prosecution in connection with terrorist activity on account of their death following the interception of a terrorist act. …
3.2. Action to minimise the informational and psychological impact of the terrorist act on the population, including the weakening of its propaganda effect, is one of the means necessary to protect public security and the morals, health, rights and legal interests of citizens. It therefore pursues exactly those aims for which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms.
The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts, and the observance of rites of burial and remembrance with the paying of respects, as a symbolic act of worship, serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question, creating the preconditions for increasing inter-ethnic and religious tension.
In the conditions which have arisen in the Russian Federation as a result of the commission of a series of terrorist acts which produced numerous human victims, resulted in widespread negative social reaction and had a major impact on the collective consciousness, the return of the body to the relatives … may create a threat to social order and peace and to the rights and legal interests of other persons and their security, including incitement to hatred and incitement to engage in acts of vandalism, violence, mass disorder and clashes which may produce further victims. Meanwhile, the burial places of participants in terrorist acts may become a shrine for certain extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity.
In such circumstances, the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part. 
Russian Federation, Constitutional Court, Burial case, 28 June 2007, §§ 3.1–3.2.
The Court also stated:
The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue, on account of the deaths of the suspects, a criminal case against or prosecution of participants in a terrorist act. Accordingly, they also presuppose an obligation on the court’s part to examine the substance of the complaint, that is, to verify [that] the decision and the conclusions therein [are lawful and well founded] as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitating [the suspects] and discontinuing the criminal case. They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures. Until the entry into force of the court judgment the deceased’s remains cannot be buried; the relevant State bodies and officials must take all necessary measures … to ensure compliance prior thereto with the requirements concerning the identification of the deceased … and of the time, location and cause of death. 
Russian Federation, Constitutional Court, Burial case, 28 June 2007, § 87.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Malaysia
According to the Report on the Practice of Malaysia, the “bodies of enemies and civilians are identified, sent to a morgue and subsequently buried”. 
Report on the Practice of Malaysia, 1997, Chapter 5.1.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support … the principle that each party to a conflict permit teams to identify … the dead.” 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 424.
UN General Assembly
In a resolution adopted in 1974 on assistance and cooperation in accounting for persons who are missing or dead in armed conflicts, the UN General Assembly:
2. Calls upon parties to armed conflicts, regardless of their character or location, during and after the end of hostilities and in accordance with the Geneva Conventions of 1949, to take such action as may be within their power to help locate and mark the graves of the dead [and] to facilitate the disinterment and the return of the remains, if requested by the families …
4. Calls upon all parties to armed conflicts to cooperate, in accordance with the Geneva Conventions of 1949, with Protecting Powers or their substitutes and with the International Committee of the Red Cross in providing information on the … dead in armed conflicts, including persons belonging to other countries not parties to the armed conflict. 
UN General Assembly, Res. 3220 (XXIX), 6 November 1974, §§ 2 and 4, voting record: 95-0-32-11.
UN Commission on Human Rights (Special Rapporteur)
In 1995, in a report on the situation of human rights in the territory of the former Yugoslavia, the Special Rapporteur of the UN Commission on Human Rights recommended that the Croatian authorities identify all those killed. 
UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, Periodic report, UN Doc. E/CN.4/1996/6, 5 July 1995, § 59.
UN Observer Mission in El Salvador
In 1991, in a report on El Salvador, the Director of the Human Rights Division of ONUSAL recommended that:
The immediate disposal of bodies should be avoided in cases of violent death or death in questionable circumstances and an adequate autopsy should be conducted in accordance with the conditions recommended in the Principles [on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions]. 
ONUSAL, Director of the Human Rights Division, Report, UN Doc. A/46/658-S/23222, 15 November 1991, Annex, § 151.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992) stated, with respect to its investigation into mass graves:
For every deceased person who falls into the hands of the adverse party, the adverse party must record, prepare, and forward all identification information, death certificates … to the appropriate parties. Parties to a conflict must also ensure that deceased persons are autopsied. 
UN Commission of Experts Established pursuant to Security Council Resolution 780, 1992, Final report, Annex Summaries and Conclusions, UN Doc. S/1994/674/Add.2 (Vol. I), 31 May 1995, § 503(b).
UN Commission on the Truth for El Salvador
In its report in 1993, the UN Commission on the Truth for El Salvador noted that, following a reported clash between Farabundo Martí para la Liberación Nacional (FMLN) troops and a military patrol, a member of the Salvadoran Armed Service Press Committee (COPREFA) photographed the bodies of the dead, and members of the National Police performed paraffin tests to see whether the persons had fired weapons. 
UN Commission on the Truth for El Salvador, Report, UN Doc. S/25500, 1 April 1993, p. 90.
Council of Europe Committee of Ministers
In 1999, the Council of Europe Committee of Ministers adopted a recommendation on the harmonization of medico-legal autopsy rules, without making any exception for situations of armed conflict. In particular, it stated that autopsies should be carried out “in all cases of obvious or suspected unnatural death, in particular arising out of violations of human rights such as suspicion of torture or any other form of ill-treatment and deaths in custody or death associated with police or military activities”. 
Council of Europe, Committee of Ministers, Rec. (99)3, Harmonisation of medico-legal autopsy rules, 2 February 1999, §§ 2(c) and (i).
League of Arab States Council
In a resolution adopted in 1997, the League of Arab States Council decided “to call for the implementation of the investigations provided for by the international conventions to be applied to the death of Lebanese detainees in Israeli detention camps and prisons”. 
League of Arab States, Council, Res. 5635, 31 March 1997, § 5.
European Union
In February 1995, in a statement before the Permanent Council of the Organization for Security and Co-operation in Europe on the situation in Chechnya, the EU stated that the proposal to establish a “humanitarian truce” appeared essential in order to permit the identification of the victims. 
EU, Statement by France on behalf of the EU before the Permanent Council of the OSCE, Vienna, 2 February 1995, Politique étrangère de la France, February 1995, p. 155.
International Conference of the Red Cross (1981)
The 24th International Conference of the Red Cross in 1981 adopted a resolution on the wearing of identity discs in which it recalled that Articles 16 and 17 of the 1949 Geneva Convention I “provide for identity discs to be worn by members of the armed forces to facilitate their identification in case they are killed”. The Conference further:
1. urges the Parties to an armed conflict to take all necessary steps to provide the members of their armed forces with identity discs and to ensure that the discs are worn during service,
2. recommends that the Parties to an armed conflict should see that these discs give all the indications required for a precise identification of members of the armed forces such as full name, date and place of birth, religion, serial number and blood group; that every disc be double and composed of two separable parts, each bearing the same indications; and that the inscriptions be engraved on a substance as resistant as possible to the destructive action of chemical and physical agents, especially to fire and heat. 
24th International Conference of the Red Cross, Manila, 7–14 November 1981, Res. I, §§ 1 and 2.
International Conference of the Red Cross (1986)
The 25th International Conference of the Red Cross in 1986 urged the parties to every international armed conflict “to implement the provisions of Articles 16 and 17 of the First Geneva Convention, prescribing the wearing of identity discs by members of the armed forces, in order to facilitate the identification of the … dead”. 
25th International Conference of the Red Cross, Geneva, 23–31 October 1986, Res. XIII, § 1.
International Conference of the Red Cross and Red Crescent (1999)
The Plan of Action for the years 2000–2003 adopted in 1999 by the 27th International Conference of the Red Cross and Red Crescent proposed that all the parties to an armed conflict take effective measures to ensure that “every effort is made … to identify dead persons”. 
27th International Conference of the Red Cross and Red Crescent, Geneva, 31 October–6 November 1999, Res. I, Annex 2, Plan of Action for the years 2000–2003, Actions proposed for final goal 1.1, § 1(e).
European Court of Human Rights
In its judgment in Kaya v. Turkey in 1998, the European Court of Human Rights found that an autopsy on a man shot by Turkish security forces, who reportedly believed him to be a terrorist, was inadequate on the basis that the number of bullets in the body was not recorded, no tests for fingerprints or gunpowder traces were made and no attempt was made to identify the body. While acknowledging the difficult security conditions under which the examination was carried out, the European Court of Human Rights expressed surprise that the body had not been evacuated to a safer location for further examination. 
European Court of Human Rights, Kaya v. Turkey, Judgment, 19 February 1998, § 89.
European Court of Human Rights
In its judgment in Ergi v. Turkey in 1998, the European Court of Human Rights recalled the obligation pointed out in its previous judgments that:
Neither the prevalence of violent armed clashes nor the high incidence of fatalities can displace the obligation … to ensure that an effective, independent investigation is conducted into the deaths arising out of clashes involving the security forces, more so in cases … where the circumstances are in many respects unclear. 
European Court of Human Rights, Ergi v. Turkey, Judgment, 28 July 1998, § 85.
European Court of Human Rights
In its judgment in Yasa v. Turkey in 1998, the European Court of Human Rights recalled the obligation pointed out in its judgment in Kaya v. Turkey “to carry out an investigation” into the circumstances surrounding the death of individuals killed as a result of the use of force by the State authorities, even when arising in a climate marked by violent action. 
European Court of Human Rights, Yasa v. Turkey, Judgment, 2 September 1998, § 104.
Inter-American Commission on Human Rights
In 1997, in a case concerning Argentina, in the context of a clash which the Inter-American Commission on Human Rights qualified as being of sufficient intensity to trigger the application of IHL, the Inter-American Commission on Human Rights found that the autopsies were, according to expert evidence, superficial and did not make any serious attempt to examine the injuries, invoking instead the degree of putrefaction of the corpses as a bar to further examination. The Commission recognized that in certain situations of conflict, the collection of evidence may be difficult, but that this justification may not be used where, immediately following the incident, the State had absolute control over the evidence. 
Inter-American Commission on Human Rights, Case 11.137 (Argentina), Report, 18 November 1997, §§ 238–242 and 423.
Inter-American Court of Human Rights
In its judgment in the Neira Alegría and Others case in 1995, involving the disappearance of three prisoners following a riot in which control and jurisdiction of the prison was handed over to the army, the Inter-American Court of Human Rights stated:
The Court likewise considers it proven that the identification of the bodies was not undertaken with the required diligence, since only a few of those bodies recovered during the days immediately following the end of the conflict were identified. Of the rest, which were recovered over a span of nine months, certainly a long period, this was not done either although, according to the statement of the experts, identification could have been possible by applying certain techniques. This conduct on the part of the Government constitutes a serious act of negligence. 
Inter-American Court of Human Rights, Neira Alegría and Others case, Judgment, 19 January 1995, § 71.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “the dead shall be identified”. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, §§ 511 and 734.
No data.