Rule 116. With a view to the identification of the dead, each party to the conflict must record all available information prior to disposal and mark the location of the graves.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This rule is reinforced by the requirement of respect for family life (see Rule 105) and the right of families to know the fate of their relatives (see Rule 117).
The obligation to identify the dead prior to their disposal was first codified in the 1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field.
This obligation, together with the details to be recorded and the obligation to transmit the information to the other party and the Central Tracing Agency, is now set forth in the 1949 Geneva Conventions.
Numerous military manuals set forth the obligation to identify the dead prior to disposal.
Some of them specify what details are to be recorded with regard to the deceased.
In addition, several military manuals include the requirement to record the location of the place of burial.
In the Jenin (Mortal Remains) case
, Israel’s High Court of Justice stated that the identification of the dead was a “highly important humanitarian deed”.
There is no treaty provision explicitly requiring measures to identify the dead prior to their disposal in the context of a non-international armed conflict. There is consistent practice which indicates, nevertheless, that this obligation is also incumbent upon parties to internal conflicts. This practice includes military manuals which are applicable in or have been applied in non-international armed conflicts.
In addition, the case-law of Argentina and Colombia has required that prior to their disposal the dead must be examined so that they can be identified and the circumstances of death established.
It is likely that such requirements are part of the legislation of numerous States.
Measures to identify the dead and investigate the cause of death are also required by international human rights law, in particular in order to protect the right to life. The European Court of Human Rights and the Inter-American Commission and Court of Human Rights have required that effective measures be taken to this effect in a timely fashion, even in situations of armed violence.
Other instances have called for such measures in the context of the conflicts in Chechnya, El Salvador and the former Yugoslavia.
In addition, on two occasions, the Inter-American Court of Human Rights ruled that the State was obliged to do all it could to inform the relatives of the location of the remains of persons killed as a result of enforced disappearances.
In December 1991, when the armed conflict in the former Yugoslavia was characterized as non-international, the parties to the conflict reached an agreement with respect to the exchange of information regarding the identification of the deceased.
Other practice found includes that of the Philippine government, which collects information on dead insurgents after clashes,
and that of the Salvadoran army photographing the bodies of the dead after a clash between FMLN troops and a military patrol.
Three resolutions adopted at the international level, which received very wide support and no negative vote, called upon parties to armed conflicts to account for the dead (identify and provide information about the dead). In 1973, the 22nd International Conference of the Red Cross called upon parties to armed conflicts “to accomplish the humanitarian mission of accounting for the dead”.
In a resolution adopted in 1974, the UN General Assembly called upon parties to armed conflicts, regardless of their character, to cooperate “in providing information on the missing and dead in armed conflicts”.
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, required that all parties to an armed conflict take effective measures to ensure that “every effort is made … to identify dead persons”.
Furthermore, one of the main purposes of this rule is to prevent the enforced disappearance of persons (see Rule 98) and to ensure that they do not otherwise go missing (see Rule 117), two obligations which apply equally to international and non-international armed conflicts.
No official contrary practice was found with respect to either international or non-international armed conflicts.
The obligation to identify the dead is an obligation of means, and parties have to use their best efforts and all means at their disposal in this respect. According to the practice collected, the measures envisaged here include collecting one half of the double identity disk, autopsies, the recording of autopsies, the establishment of death certificates, the recording of the disposal of the dead, burial in individual graves, prohibition of collective graves without prior identification, and the proper marking of graves. Practice also suggests that exhumation combined with the application of forensic methods, including DNA testing, may be an appropriate method of identifying the dead after burial.
In general, this obligation also requires effective cooperation between all parties concerned. 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 in order to comply with this rule, “appropriate procedures be put into place at the latest from the beginning of an armed conflict”.