Section B. Return of the personal effects of the dead
Geneva Convention (1929)
Article 4, third paragraph, of the 1929 Geneva Convention provides that belligerents shall “collect and transmit to each other all articles of a personal nature found on the field of battle or on the dead”.
Geneva Convention I
Article 16, fourth paragraph, of the 1949 Geneva Convention I provides that parties to the conflict shall “collect and forward through the [Information Bureau] … money and in general all articles of an intrinsic or sentimental value, which are found on the dead”.
Geneva Convention II
Article 19, third paragraph, of the 1949 Geneva Convention II provides that parties to the conflict shall “collect and forward through the [Information Bureau] … money and in general all articles of an intrinsic or sentimental value, which are found on the dead”.
Geneva Convention III
Article 122, ninth paragraph, of the 1949 Geneva Convention III provides:
The Information Bureau shall furthermore be charged with collecting all personal valuables, including sums in currencies other than that of the Detaining Power and documents of importance to the next of kin, left by prisoners of war who have … died, and shall forward the said valuables to the Powers concerned.
Geneva Convention IV
Article 139 of the 1949 Geneva Convention IV provides:
Each National Information Bureau shall, furthermore, be responsible for collecting all personal valuables left by [any protected persons who are kept in custody for more than two weeks, who are subjected to assigned residence or who are interned], in particular those who have … died; it shall forward the said valuables to those concerned, either direct, or, if necessary, through the Central Agency.
Additional Protocol I
Article 34(2)(c) of the 1977 Additional Protocol I provides that as soon “as the circumstances and the relations between the adverse Parties permit, … [they] shall conclude agreements in order … to facilitate the return of the personal effects of the deceased”.
NATO Standardization Agreement 2070
The 1999 NATO Standardization Agreement 2070 provides:
18. With the exception of deceased United States personnel, all personal effects (including all personal and official papers) are removed from the remains and placed in a suitable receptacle. 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 …
19. An inventory is to be made of the personal effects, checked and signed by an officer, and dispatched with the receptacle containing the personal effects.
Article 20 of the 1880 Oxford Manual provides: “The articles … collected from the dead of the enemy are transmitted to its army or government.”
Argentina’s Law of War Manual (1989) provides that “last wills or other documents of importance to the family of the dead, money and in general all objects of an intrinsic or sentimental value which are found on the dead” shall be transmitted to the other party through its national Information Bureau.
Belgium’s Specific Procedure on the Prisoners of War Information Bureau (2007) states that the tasks of the PWIB (Prisoners of War Information Bureau) include: “collecting and transmitting all personal valuables, including money and documents useful to the next of kin, left by the prisoners of war who have been repatriated, released, escaped or died”.
The Specific Procedure further provides:
a. The PWIB shall furthermore be charged with collecting and forwarding to the States concerned all personal valuables, including sums of money and documents of importance to the next of kin, left by prisoners of war who have … died.
h. Likewise, the PWIB is to follow an identical procedure to remit to the family of a Belgian PW [prisoner of war] who … has … died, all valuables that the latter has left and that the CTA [Central Tracing Agency] or any other body has returned, except for strictly military articles. These shall be forwarded to the unit of the individual concerned, which should then return them to the family if the said articles prove to be of a personal nature.
Benin’s Military Manual (1995) states: “Personal effects [of the dead] shall be collected and evacuated.”
The manual further states: “Identity cards and personal effects of the deceased shall be sent to superiors.”
Cameroon’s Instructor’s Manual (1992) provides: “Personal effects of the dead shall be evacuated.”
Cameroon’s Instructor’s Manual (2006), under the heading “The Dead”, states: “The … personal effects must be evacuated. A report must be written about the deceased and the measures subsequently taken.”
Chad’s Instructor’s Manual (2006) states: “Facilities must be provided for the … personal effects [of the deceased] to be returned to their country of origin.”
Croatia’s LOAC Compendium (1991) provides that one of the measures required after a conflict is to return personal effects of the dead.
Croatia’s Commanders’ Manual (1992) states: “Personal effects of the dead shall be collected and evacuated to the rear.”
France’s LOAC Summary Note (1992) provides: “The belongings of the dead must be collected and evacuated to the rear.”
France’s LOAC Teaching Note (2000) provides that the personal effects of the dead “shall be collected and transferred to the rear. They shall be returned to the family if it claims them.”
Hungary’s Military Manual (1992) provides that one of the requirements after a conflict is the return of the personal effects of the dead.
Israel’s Manual on the Laws of War (1998) states: “It is incumbent on each party to … hand over to the other side half of the dog-tag worn by the fallen soldier as well as his personal effects.”
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.”
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Kenya’s LOAC Manual (1997) states: “Personal effects [of the dead] shall be collected and evacuated.”
Madagascar’s Military Manual (1994) provides: “The personal effects of the deceased shall be collected and evacuated to the rear.”
The Military Manual (1993) of the Netherlands provides that the parties to the conflict shall conclude agreements in order to “facilitate the return of the personal effects of the deceased to the home country”.
The Military Handbook (1995) of the Netherlands provides: “The property of the dead may not be confiscated or destroyed.”
The Military Manual (2005) of the Netherlands states:
As soon as circumstances and the relations between the parties to the conflict permit, the parties whose territory contains graves of persons who died during the conflict must conclude agreements in order:
- to facilitate the return of the remains and personal effects to the country of origin.
Nigeria’s Manual on the Laws of War provides: “Money and articles of personal or sentimental value found on the dead must be forwarded to the enemy.”
Peru’s IHL Manual (2004) states: “Efforts must be made to facilitate the return of the … personal effects [of the deceased] to their country of origin.”
Peru’s IHL and Human Rights Manual (2010) states: “Efforts must be made to facilitate the return of … the personal effects [of the deceased] to their country of origin.”
Poland’s Procedures Governing the Interment of Soldiers Killed in Action (2009) states:
2.6.1 Personal effects belonging to deceased United States nationals
All personal effects should remain with the body.
2.6.2 Personal effects belonging to deceased persons of other nationalities
All personal effects belonging to deceased persons of other nationalities, together with the relevant documents, should be archived and stored securely.
Personal effects belonging to deceased members of enemy forces shall be sent to the Information Bureau of the Polish Red Cross, in accordance with the regulations of the state in which the burial is performed.
The personal effects of deceased members of NATO allied forces shall be sent on by the Records Office to the relevant offices in those countries.
If it is not possible to establish the personal details of the deceased, their personal effects, and half of their identity tag shall be sent to the Records Office.
The Russian Federation’s Regulations on the Application of IHL (2001) provides:
After the burial, a proper statement shall be drawn up containing a description of the burial site (its precise coordinates), with enclosed lists of identified bodies, and specifying the number of unidentified bodies and their description. The statement shall be made in two copies.
The burial statement and the lists of the dead shall be certified by the signature of a person in charge of the burial, stamped with the official seal of the military unit (organization) and confirmed by the superior commander.
The first copy of the burial statement, as well as the first copies of the inventory of the personal effects of the deceased and a cover letter, shall be sent to the army’s headquarters. As soon as circumstances permit and at the latest at the end of hostilities, the second copy of the statement with the enclosures and the parcels containing the personal effects of the deceased shall be handed over through international channels to the competent authorities of the adverse party.
Senegal’s IHL Manual (1999) provides that, in situations of internal troubles, the personal effects of the dead shall be collected and evacuated with the dead body.
South Africa’s LOAC Teaching Manual (2008) states:
The Dead (Article 17  Geneva Convention I)
- Their personal possessions must be collected. These include;
- one half of the double identity disc (the other half must be left on the body);
- Last Wills and Testaments;
- other documents of possible importance to next-of-kin;
- money; and
- all articles of value, including articles of sentimental value.
Remains of Deceased (Article 34  Additional Protocol I)
- This article applies to the remains of persons
- who have died:
- for reasons related to occupation;
- in detention resulting from occupation; or
- in hostilities; and
- who are not nationals of the country in which they have died as a result of hostilities.
- As soon as circumstances and the relations between the adverse Parties permit, the Parties in whose territories graves and other locations of the remains of the abovementioned dead persons are situated shall conclude agreements in order to:
- facilitate the return of the remains of the deceased and his personal effects to the home country upon that country’s request or that of the next of kin.
Spain’s LOAC Manual (1996) stipulates that personal belongings, identity tags and any last will left by the deceased must be sent to the national Information Bureau.
Spain’s LOAC Manual (2007) states: “Efforts must be made to facilitate the return of the … personal effects [of the deceased] to their country of origin”. Such personal effects “must be sent to the national information bureau”. Specifically mentioned personal effects for return include: “identity cards” and “last wills and any other documents of importance to the next of kin, money and, in general, all objects of an intrinsic or sentimental value found on the body”.
Togo’s Military Manual (1996) provides: “Personal effects [of the dead] shall be collected and evacuated.”
It further specifies: “Identity cards shall be evacuated. One half of the identity card shall remain on the corpse, the other half shall be evacuated.”
Ukraine’s IHL Manual (2004) states:
Personal belongings of the deceased servicemen shall be sent to their relatives who have the right of hereditary succession. Items of military uniform clothing (except for the organizational items) belonging to officers and warrant officers shall be sent to relatives together with personal belongings. Items belonging to rank and file (sergeants and privates) shall be returned to the military units inventories.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides: “The belligerents must also forward to each other through … [the information] bureau … last wills or other documents of importance to the next of kin; money and all articles of an intrinsic or sentimental value which are found on the dead”.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
Looting is an offence under the Service Discipline Acts. The personal effects of the dead should be collected in identifiable packets and sent with any available identity disc to the information bureau. The personal effects that are particularly envisaged here are money, all items of intrinsic or sentimental value and last wills or other documents of importance to the next of kin. Articles other than personal effects, such as military equipment, found upon the dead of a hostile party to an armed conflict become the public property of the finding party, that is the property of the government, not of the individuals or unit capturing them.
United States of America
The US Field Manual (1956) provides that parties to the conflict shall “collect and forward through the … [information] bureau one half of the double identity disc, 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”.
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) provides:
The appropriate authorities and governmental bodies of the Azerbaijan Republic shall ensure that the necessary measures be taken … to return back … personal property [of the dead] following a request from the parties and close relatives of the dead persons.
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.
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’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].
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 16 of the Geneva Convention I, Article 19 of the Geneva Convention II, Article 122 of the Geneva Convention III and Article 139 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 34(2)(c), are punishable offences.
Italy’s Law of War Decree (1938), as amended in 1992, provides: “The objects of personal use belonging to enemy dead on the battlefield shall be collected and kept safely.”
Norway’s Military Penal Code (1902), as amended in 1981, 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.
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  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.
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
[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
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) noted: “For every deceased person who falls into the hands of the adverse party, the adverse party must … forward … personal effects to the appropriate parties.”
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that the “return of … [the] personal effects [of the deceased] to the home State shall be facilitated”.