Rule 113. Each party to the conflict must take all possible measures to prevent the dead from being despoiled. Mutilation of dead bodies is prohibited.Volume II, Chapter 35, Section B.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The obligation to take all possible measures to prevent the dead from being despoiled (or pillaged) was first codified in the 1907 Hague Convention (X).
[1] It is now also codified in the Geneva Conventions.
[2] It is also contained in Additional Protocol I,
[3] albeit in more general terms of “respecting” the dead, which includes the notion of preventing the remains from being despoiled.
[4]The obligation to take all possible measures to prevent the dead from being despoiled or the prohibition of the despoliation of the dead is set forth in numerous military manuals.
[5] The despoliation of dead bodies is an offence under the legislation of many States.
[6] In the
Pohl case in 1947, the US Military Tribunal at Nuremberg stated that robbing the dead “is and always has been a crime”.
[7] In addition, the prohibition of despoliation of dead bodies is an application of the general prohibition of pillage (see Rule 52).
The prohibition of mutilating dead bodies in international armed conflicts is covered by the war crime of “committing outrages upon personal dignity” under the Statute of the International Criminal Court, which according to the Elements of Crimes also applies to dead persons (see commentary to Rule 90).
[8]Many military manuals prohibit the mutilation or other maltreatment of the dead.
[9] Mutilation of the dead is an offence under the legislation of many States.
[10] In several trials after the Second World War, the accused were convicted on charges of mutilation of dead bodies and cannibalism.
[11] The prohibition on mutilating the dead is further supported by official statements and other practice.
[12]The obligation to take all possible measures to prevent the dead from being despoiled in non-international armed conflicts is set forth in Additional Protocol II.
[13] In addition, this obligation is contained in other instruments pertaining also to non-international armed conflicts.
[14]The obligation to take all possible measures to prevent the dead from being despoiled or the prohibition of the despoliation of the dead is set forth in a number of military manuals which are applicable in or have been applied in non-international armed conflicts.
[15] It is also an offence under the legislation of many States.
[16] In addition, the prohibition of despoliation of dead bodies is an application of the general prohibition of pillage (see Rule 52).
It has been argued by the Prosecutor before Colombia’s Council of State that the obligation to respect the dead is inherent in common Article 3 of the Geneva Conventions.
[17] The prohibition of mutilation is set forth in Additional Protocol II.
[18] The prohibition of mutilating dead bodies in non-international armed conflicts is covered by the war crime of “committing outrages upon personal dignity” under the Statute of the International Criminal Court, which according to the Elements of Crimes also applies to dead persons (see commentary to Rule 90).
[19] This prohibition is set forth in other instruments pertaining also to non-international armed conflicts.
[20]Many military manuals which are applicable in or have been applied in non-international armed conflicts prohibit the mutilation or other maltreatment of the dead.
[21] Under the legislation of many States, it is an offence to mutilate or otherwise maltreat dead bodies.
[22]No official contrary practice was found with respect to either international or non-international armed conflicts.