Rule 112. Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the dead without adverse distinction.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The duty to search for the dead in international armed conflicts was first codified in the 1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field.[1] This rule is now codified in the 1949 Geneva Conventions.[2]
Numerous military manuals specify the duty to search for and collect the dead.[3] In the Jenin (Mortal Remains) case in 2002, Israel’s High Court of Justice stated that locating the dead was a “highly important humanitarian deed”.[4]
In the context of a non-international armed conflict, the duty to search for the dead is set forth in Additional Protocol II.[5] In addition, this rule is contained in other instruments pertaining also to non-international armed conflicts.[6]
A number of military manuals which are applicable in or have been applied in non-international armed conflicts specify the duty to search for and collect the dead.[7]
Respect for this rule is a conditio sine qua non of respect for the subsequent rules in this chapter requiring return of remains, decent burial and identification of the dead. In addition, much of the practice relating to the search for and collection of the wounded, sick and shipwrecked (see practice relating to Rule 109) is also relevant to this rule as, in a first phase after combat, the dead will be searched for and collected together with the wounded and sick. The Annotated Supplement to the US Naval Handbook, for example, recognizes that the obligation to search for and collect the wounded, sick and shipwrecked “also extends to the dead”.[8]
No official contrary practice was found with respect to either international or non-international armed conflicts.
The obligation to search for and collect the dead is an obligation of means. Each party to the conflict has to take all possible measures to search for and collect the dead. This includes permitting the search for and collection of the dead by humanitarian organizations. Practice shows that humanitarian organizations, including the ICRC, have engaged in the search for and collection of the dead.[9] It is clear that in practice these organizations need permission from the party in control of a certain area to carry out search and collection activities, but such permission must not be denied arbitrarily (see also commentary to Rule 55).
In addition, the possibility of calling on the civilian population to assist in the search for and collection of the dead is recognized in Additional Protocol I.[10] A number of military manuals also provide for this possibility.[11]
As noted in the commentary to Rule 109, the Geneva Conventions require parties to arrange a suspension of fire, whenever circumstances permit, to remove, exchange and transport the wounded from the battlefield, but this provision does not explicitly mention the dead. In practice, however, the dead are in many cases collected at the same time. In cases of extreme urgency, however, it may be that only the wounded are collected for immediate care and that the dead are left behind for collection at a later time. Additional Protocol I has therefore introduced the rule that parties shall endeavour to agree on arrangements for teams to search for and recover the dead from the battlefield areas.[12] This rule is also set forth in several military manuals.[13] The United States has expressed its support for this provision in Additional Protocol I.[14]
This rule applies to all the dead, without adverse distinction (see Rule 88). This means that it applies to the dead regardless to which party they belong, but also regardless of whether or not they have taken a direct part in hostilities. The application of this rule to civilians was already the case pursuant to Article 16 of the Fourth Geneva Convention, which applies to the whole of the populations of the countries in conflict, and to Article 8 of Additional Protocol II, which does not specify any distinction.[15]
Most military manuals state this rule in general terms.[16] The military manuals of Cameroon and Kenya state that in case of civilian losses, civil defence units shall participate in the search for the victims.[17] In its judgment in the Jenin (Mortal Remains) case, Israel’s High Court of Justice stated that the obligation to search for and collect the dead derived from “respect for every dead”.[18]
[1] 1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Article 3 (cited in Vol. II, Ch. 35, § 1).
[2] First Geneva Convention, Article 15, first paragraph (ibid., § 2); Second Geneva Convention, Article 18, first paragraph (ibid., § 3); Fourth Geneva Convention, Article 16, second paragraph (ibid., § 5).
[3] See, e.g., the military manuals of Argentina (ibid., § 11), Australia (ibid., § 12), Belgium (ibid., § 13), Benin (ibid., § 14), Cameroon (ibid., § 15), Canada (ibid., §§ 16–17), Croatia (ibid., § 18), France (ibid., § 19), Germany (ibid., § 20), Italy (ibid., § 22), Kenya (ibid., § 23), Madagascar (ibid., § 24), Netherlands (ibid., § 26), New Zealand (ibid., § 27), Nigeria (ibid., §§ 28–29), Philippines (ibid., § 30), Spain (ibid., § 31), Switzerland (ibid., § 32), Togo (ibid., § 33), United Kingdom (ibid., §§ 34–35) and United States (ibid., §§ 36–39).
[4] Israel, High Court of Justice, Jenin (Mortal Remains) case (ibid., § 46).
[5] Additional Protocol II, Article 8 (adopted by consensus) (ibid., § 8).
[6] See, e.g., Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law in the Philippines, Part IV, Article 4(9) (ibid., § 10).
[7] See, e.g., the military manuals of Argentina (ibid., § 11), Australia (ibid., § 12), Benin (ibid., § 14), Cameroon (ibid., § 15), Canada (ibid., §§ 16–17), Croatia (ibid., § 18), Germany (ibid., § 20), India (ibid., § 21), Italy (ibid., § 22), Kenya (ibid., § 23), Madagascar (ibid., § 24), Netherlands (ibid., § 25), New Zealand (ibid., § 27), Nigeria (ibid., § 28), Philippines (ibid., § 30), Spain (ibid., § 31) and Togo (ibid., § 33).
[8] United States, Annotated Supplement to the Naval Handbook (ibid., § 39).
[9] See, e.g., the practice of the ICRC reported by the UN Secretary-General (ibid., § 51).
[10] Additional Protocol I, Article 17(2) (adopted by consensus) (ibid., § 6).
[11] See, e.g., the military manuals of Benin (ibid., § 14), Cameroon (ibid., § 15), Kenya (ibid., § 23), Nigeria (ibid., § 28), Togo (ibid., § 33), United States (ibid., § 36) and Yugoslavia (ibid., § 40).
[12] Additional Protocol I, Article 33(4) (adopted by consensus) (ibid., § 7).
[13] See, e.g., the military manuals of Australia (ibid., § 12), Canada (ibid., § 16), India (ibid., § 21), Kenya (ibid., § 23) and New Zealand (ibid., § 27).
[14] United States, Remarks of the Deputy Legal Adviser of the Department of State (ibid., § 49).
[15] Fourth Geneva Convention, Article 16 (ibid., § 5); Additional Protocol II, Article 8 (adopted by consensus) (ibid., § 8); see also Additional Protocol II, Article 2(1) on non-discrimination (adopted by consensus) (cited in Vol. II, Ch. 32, § 369).
[16] See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 35, § 11), Australia (ibid., § 12), Belgium (ibid., § 13), Benin (ibid., § 14), Cameroon (ibid., § 15), Canada (ibid., §§ 16–17), Croatia (ibid., § 18), France (ibid., § 19), Germany (ibid., § 20), India (ibid., § 21), Italy (ibid., § 22), Kenya (ibid., § 23), Madagascar (ibid., § 24), Netherlands (ibid., §§ 25–26), New Zealand (ibid., § 27), Nigeria (ibid., §§ 28–29), Philippines (ibid., § 30), Spain (ibid., § 31), Switzerland (ibid., § 32), Togo (ibid., § 33), United Kingdom (ibid., §§ 34–35) and United States (ibid., §§ 36–39).
[17] Cameroon, Instructors’ Manual (ibid., § 15); Kenya, LOAC Manual (ibid., § 23).
[18] Israel, High Court of Justice, Jenin (Mortal Remains) case (ibid., § 46).