Rule 115. Disposal of the DeadRule 115. The dead must be disposed of in a respectful manner and their graves respected and properly maintained.
SummaryState practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
International armed conflictsThe obligation to dispose of the dead respectfully was first codified in the 1929 Geneva Conventions. It is now dealt with in detail in the 1949 Geneva Conventions.
Many military manuals specify that the dead must be disposed of decently. This obligation is set forth in the legislation of most, if not all, States. It was upheld in 2002 by Israel’s High Court in the Jenin (Mortal Remains) case.
The above-mentioned treaty provisions also require that graves be respected and properly maintained. Additional Protocol I adds that the parties must conclude agreements to protect and maintain gravesites permanently. The requirement to respect and maintain gravesites is also laid down in numerous military manuals.
Non-international armed conflictsThe obligation to dispose of the dead decently in non-international armed conflicts is set forth in Additional Protocol II. In addition, this rule is contained in other instruments pertaining also to non-international armed conflicts.
A number of military manuals which are applicable in or have been applied in non-international armed conflicts specify that the dead must be disposed of decently. The legislation of most, if not all, States requires respect for this rule. It may be said that this rule reflects a general principle of law requiring respect for the dead and their graves.
No official contrary practice was found with respect to either international or non-international armed conflicts. A reported case of the disrespectful disposal of dead civilians in Papua New Guinea was condemned by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.
It is also likely that further detailed rules supporting the requirement of decent disposal of the dead and respect and proper maintenance of their gravesites are contained in domestic legislation.
InterpretationThe Geneva Conventions specify that the dead must be buried, if possible, according to the rites of the religion to which they belonged and that they may only be cremated in exceptional circumstances, namely because of imperative reasons of hygiene, on account of the religion of the deceased or in accordance with the express wish of the deceased. The Geneva Conventions furthermore require that, in principle, burial should be in individual graves. Collective graves may only be used when circumstances do not permit the use of individual graves or, in case of burial of prisoners of war or civilian internees, because unavoidable circumstances require the use of collective graves. Lastly, the Geneva Conventions require that graves be grouped according to nationality if possible. These requirements are also set forth in numerous military manuals.
It is likely that some of these requirements also apply in non-international armed conflicts on the basis of national law. In 1995, for example, Colombia’s Council of State held that the deceased must be buried individually subject to all the requirements of the law, and not in mass graves.