Rule 114. Parties to the conflict must endeavour to facilitate the return of the remains of the deceased upon request of the party to which they belong or upon the request of their next of kin. They must return their personal effects to them.
State practice establishes the customary nature of this rule in international armed conflicts. In the context of non-international armed conflicts, there is a growing trend towards recognition of the obligation of parties to a conflict to facilitate the return of the remains of the dead to their families upon their request. The fact that this obligation is in keeping with the requirement of respect for family life (see Rule 105) implies that it should apply equally in both international and non-international armed conflicts.
The rule with respect to the return of the remains of the deceased is based on the Geneva Conventions.
The relevant provisions in the Conventions, however, are rather general and require agreement between parties for the remains to be returned. Additional Protocol I also recognizes the need for such agreement, but sets out the procedure to be followed in the absence of an agreement.
A few examples of such agreements were found.
There are other examples of practice, such as the exchange of mortal remains between Egypt and Israel in 1975 and 1976 and the return of the ashes of 3,500 Japanese soldiers killed during the Second World War in Irian Jaya and handed over by Indonesia to the Japanese ambassador in Jakarta in 1991.
The obligation to facilitate the return of the remains of the deceased is provided for in a number of military manuals.
These manuals include that of the United States, which is not party to Additional Protocol I.
This obligation is also set forth in the legislation of Azerbaijan, which is not party to Additional Protocol I.
In the Abu-Rijwa case
before Israel’s High Court in 2000, the Israel Defence Forces carried out DNA identification tests when asked by family members to repatriate remains. According to the Report on the Practice of Israel, this means that when remains can be identified correctly, they will be returned.
The United States has declared that it supports the rules in Additional Protocol I that are aimed at facilitating the return of remains when requested.
The obligation to return the personal effects of the dead was first codified in the 1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field.
It is now set forth in the 1949 Geneva Conventions.
These provisions oblige parties to return the personal effects of the dead through the Information Bureaux. Additional Protocol I encourages parties to conclude agreements to facilitate such return.
Several military manuals specify the obligation to collect and return the personal effects of the dead.
It is also set forth in the legislation of some States.
This practice indicates that the objects in question are last wills, other documents of importance to the next of kin, money and all articles of an intrinsic or sentimental value. Weapons and other materials which may be used in military operations may be kept as war booty (see Rule 49).
There is no treaty provision requiring measures to transfer the remains of the dead to their families in the context of non-international armed conflicts. Nevertheless, a few agreements dealing with this issue were found.
There are also other examples of practice, such as the exchange under ICRC auspices of the mortal remains of more than 1,000 soldiers and LTTE fighters in Sri Lanka in 1998.
Furthermore, in 1985, Colombia’s Administrative Court in Cundinamarca held that families must not be denied their legitimate right to claim the bodies of their relatives, transfer them to wherever they see fit and bury them.
It is likely that such rights are also recognized in the legislation and/or case-law of other countries. There is a statement by a government involved in a non-international armed conflict that it would repatriate mortal remains.
There is also a case, however, where the military did not allow family members to collect the remains of the dead killed by government forces.
This practice shows an equal concern for this issue in non-international armed conflicts, but it is not clear whether this arises from a sense of legal obligation. Three resolutions adopted at the international level, which received very wide support and no negative vote, called upon parties to armed conflicts to facilitate the return of the dead. In 1973, the 22nd International Conference of the Red Cross adopted a resolution by consensus in which it called upon parties to armed conflicts “during hostilities and after cessation of hostilities … to facilitate the disinterment and return of remains”.
In a resolution adopted in 1974, the UN General Assembly called upon parties to armed conflicts, regardless of their character, “to take such action as may be within their power … to facilitate the disinterment and the return of remains, if requested by their families”.
More recently, the Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, requires that all parties to an armed conflict take effective measures to ensure that “every effort is made … to identify dead persons, inform their families and return their bodies to them”.
Furthermore, the practice mentioned above states the right of the families of the deceased to have the bodies returned to them.
This is an expression of the respect due to family life (see Rule 105) and is in line with the right of families to know the fate of their relatives (see Rule 117).
The obligation to return the personal effects of the dead in non-international armed conflicts is not provided for in treaty law, but it is likely that this issue is regulated under domestic law.