Practice Relating to Rule 115. Disposal of the Dead

Note: For practice concerning respect for convictions and religious practices in general, see Rule 104.
Geneva Convention I
Article 17, third paragraph, of the 1949 Geneva Convention I provides that the Parties to the conflict must “ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged”. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 17, third para.
Geneva Convention III
Article 120, fourth paragraph, of the 1949 Geneva Convention III provides that the Parties to the conflict must “ensure that prisoners of war who have died in captivity are honourably buried, if possible according to the rites of the religion to which they belonged”. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 120, fourth para.
Geneva Convention IV
Article 130, first paragraph, of the 1949 Geneva Convention IV provides that the Parties to the conflict must “ensure that internees who die while interned are honourably buried, if possible according to the rites of the religion to which they belonged”. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 130, first para.
NATO Standardization Agreement 2070
The 1999 NATO Standardization Agreement 2070 provides:
10. Whenever practicable, a brief burial service of the appropriate religion is to be held …
11. An appropriate (religious) marker high enough to be seen readily is to be erected. 
Standardization Agreement 2070, Edition 4, Emergency War Burial Procedures, North Atlantic Treaty Organization, Military Agency for Standardization, Brussels, 6 April 1999, §§ 10 and 11.
No data.
Argentina
Argentina’s Law of War Manual (1969) provides that the dead “shall be buried … if possible according to their religious rites”. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 3.005.
Australia
According to Australia’s Defence Force Manual (1994) provides:
998. The remains of the dead, regardless of whether they are combatants, non-combatants, protected persons or civilians are to be respected, in particular their honour, family rights, religious convictions and practices and manners and customs. … The minimum respect for the remains of the dead is a decent burial or cremation in accordance with their religious practices.
999. The burial or cremation of the dead shall be carried out individually in accordance with the religious rights and practices of the deceased. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 998–999.
Australia
Australia’s LOAC Manual (2006) states:
9.103 The remains of the dead, regardless of whether they are combatants, non-combatants, protected persons or civilians are to be respected, in particular their honour, family rights, religious convictions and practices and manners and customs. … The minimum respect for the remains of the dead is a decent burial or cremation in accordance with their religious practices.
9.104 The burial or cremation of the dead shall be carried out individually in accordance with the religious rites and practices of the deceased. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 9.103–9.104.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Benin
Benin’s Military Manual (1995) provides: “The dead shall be … buried … according to their religious rites.” 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, p. 5; see also Fascicule II, p. 12.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “Regarding deceased prisoners of war, they must be buried or incinerated individually if circumstances permit and according to the rites of the religion to which the deceased belonged.” 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 105.
Cameroon
Cameroon’s Instructor’s Manual (1992) states that the burial shall take place according to the religion of the deceased. 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 118, § 431(2).
Cameroon
Cameroon’s Instructor’s Manual (2006), under the heading “The Case of Deceased Prisoners of War”, states: “The [disposal of the dead] must be held according to [appropriate] religious rituals.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 265, § 621.
Canada
Canada’s LOAC Manual (1999) provides: “Parties to the conflict shall ensure that the dead are … interred and if possible according to the rites of the religion to which they belong.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 9-6, § 58.
Canada
Canada’s Code of Conduct (2001) provides: “The dead shall be … interred, and if possible accorded the rites of the religion to which the deceased belonged.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 7, § 5.
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of the wounded, sick and shipwrecked:
5. Parties to the conflict shall ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belong.
6. Bodies shall not be cremated except for imperative reasons of hygiene or for religious motives. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 925.5–6.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states, with regard to the funeral arrangements for prisoners of war (PW):
b. Cremation. PW may only be cremated for imperative reasons of hygiene, on account of the religion of the PW or in accordance with a written request by the PW or by the Prisoners’ Representative on the PW’s behalf …
c. Burial. [The 1949 Geneva Convention III] places a duty on the detaining authorities to ensure that:
(1) PW who have died in captivity are [to be] honourably buried, if possible according to the rites of the religion to which they belonged. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 3F17.5.b–c.
Canada
Canada’s Code of Conduct (2005) instructs: “The dead shall be honourably interred, and if possible accorded the rites of the religion to which the deceased belonged.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 7, § 5.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders): “Cremations may be performed only … in accordance with the religion of the deceased.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter III, Section II, § 2.3.
In Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police), the manual states: “At all times, and especially following a battle, the dead must be … buried, if possible … in accordance with the rites of their religion.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Section II, § 2.3.
Israel
Israel’s Manual on the Laws of War (1998) states: “Generally speaking, the enemy fallen are to be interred (in accordance with their religion’s customs insofar as possible).” 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 61.
Israel
Israel’s Manual on the Rules of Warfare (2006) states: “As a rule, the enemy’s fallen should be buried as per their religious rites as far as possible.” 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 39.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Netherlands
The Military Manual (2005) of the Netherlands states: “Cremation of a corpse is permitted for pressing hygienic or religious reasons.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0609.
Philippines
The Military Instructions (1989) of the Philippines stipulates: “Religious services must be provided if required.” 
Philippines, Safety of Innocent Civilians and Treatment of the Wounded and Dead, Directive to Commanders of Major Services and Area Commands, Office of the Chief of Staff, General Headquarters of the Armed Forces of the Philippines, Ministry of National Defence, 6 September 1989, p. 27, § 4.
Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) provides:
After an engagement:
4. Identify the dead. Pursue the identification of the dead. Enemy forces often bring with them documents that carry their identities. After identification, inform the nearest of kin and respect their cultural traditions. 
Philippines, Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 61, § 4.
Poland
Poland’s Procedures Governing the Interment of Soldiers Killed in Action (2009) states:
Irrespective of the circumstances of death, the aim shall always be to ensure that the dead are buried according to the rites of the religion to which they belonged … The burial rites should be performed by an army chaplain, or a cleric belonging to the same faith as the deceased. 
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.1.
In a section on “Marking the graves”, the Procedures further states: “In order to identify the religious beliefs of the persons buried in a grave, a marker indicating the relevant religion or faith shall be placed in as visible a location as possible.” 
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.3.
The Procedures also states:
Civilian members of the armed forces who had not participated in hostilities shall be buried in line with procedures established for the burial of the bodies of soldiers. Deceased residents of a conflict zone may, if circumstances permit, be buried in accordance with their religious beliefs. 
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.4.2.
The Procedures further states: “The burial rites [of persons whose identity cannot be verified] may be performed by an army chaplain or cleric belonging to any faith.” 
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.4.3.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) provides:
Whenever possible, dead bodies or the remains thereof shall be buried individually in accordance with the rites of the religion to which they belonged.
Dead bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased.  
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 168.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
- Parties to the conflict shall further ensure that
- the dead are honourably interred, if possible according to the rites of the religion to which they belonged[.] 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, p. 107.
Spain
Spain’s LOAC Manual (2007) states: “The religious beliefs of the deceased, if known, should be respected.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 6.2.b.(3).
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “Inhumation shall … [take place] if possible according to the religious rites of the deceased.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 76(2).
Togo
Togo’s Military Manual (1996) provides: “The dead shall be … buried … according to their religious rites.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule III, p. 5; see also Fascicule II, p. 12.
Ukraine
Ukraine’s IHL Manual (2004) states: “As much as possible, the burial of the dead bodies or their remains shall be done individually and according to the rites of the religion to which they belonged.” 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 2.5.3.6.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides: “The belligerents must make provision for … interment … if possible according to the rites of the religion to which the dead belong.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 383.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
The remains of the dead are to be honourably interred (unless burial at sea is appropriate), in so far as possible in individual graves, and, if possible, according to the rites of the religion to which the deceased belonged. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 7.35.
United States of America
The US Field Manual (1956) states that parties to the conflict “shall further ensure that the dead are … interred, if possible according to the rites of the religion to which they belonged”. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 218; see also Operational Law Handbook (1993), p. Q-185.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1949 Geneva Conventions, including violations of Article 17 of the Geneva Convention I, Article 120 of the Geneva Convention III and Article 130 of the Geneva Convention IV, is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(a).
Israel
In its ruling in the Barake case in 2002, dealing with the question of when, how and by whom the mortal remains of Palestinians who died in a battle in Jenin refugee camp should be identified and buried, Israel’s High Court of Justice stated: “The burial will be conducted … conforming to religious laws.” 
Israel, High Court of Justice, Barake case, Ruling, 14 April 2002, § 8.
Russian Federation
In 2007, in the Burial case, the Russian Federation’s Constitutional Court was called upon to rule on the constitutionality of two laws related to the interment of suspected terrorists whose deaths resulted from the interception of their terrorist acts. The Court held that the restrictive measures introduced by these laws were in conformity with the Constitution. The Court stated:
2. … The right of a person to be buried after death, in accordance with his will, observing the customs and traditions, religious and ritual cults ensues from the Constitution of the Russian Federation, in particular from Articles 21, 22, 28 and 29, which guarantee the protection of human dignity, the right to freedom and personal inviolability, freedom of conscience and religion, freedom of thought and speech, opinion and beliefs, as well as from universally acknowledged principles and norms of international law, which, by virtue of Article 15 (4) of the Constitution prevail over national legislation. …
3.1 … [T]he interest in fighting terrorism, in preventing terrorism in general and specific terms and in providing redress for the effects of terrorist acts, coupled with the risk of mass disorder, clashes between different ethnic groups and aggression by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, and lastly the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime, such as that provided for by section 14(1) of the Federal Act [on Interment and Burial of 12 January 1996, as amended], governing the burial of persons who escape prosecution in connection with terrorist activity on account of their death following the interception of a terrorist act. …
3.2. Action to minimise the informational and psychological impact of the terrorist act on the population, including the weakening of its propaganda effect, is one of the means necessary to protect public security and the morals, health, rights and legal interests of citizens. It therefore pursues exactly those aims for which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms.
The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts, and the observance of rites of burial and remembrance with the paying of respects, as a symbolic act of worship, serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question, creating the preconditions for increasing inter-ethnic and religious tension.
In the conditions which have arisen in the Russian Federation as a result of the commission of a series of terrorist acts which produced numerous human victims, resulted in widespread negative social reaction and had a major impact on the collective consciousness, the return of the body to the relatives … may create a threat to social order and peace and to the rights and legal interests of other persons and their security, including incitement to hatred and incitement to engage in acts of vandalism, violence, mass disorder and clashes which may produce further victims. Meanwhile, the burial places of participants in terrorist acts may become a shrine for certain extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity.
In such circumstances, the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part. 
Russian Federation, Constitutional Court, Burial case, 28 June 2007, §§ 2 and 3.1–3.2.
The Court also stated:
The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue, on account of the deaths of the suspects, a criminal case against or [the] prosecution of participants in a terrorist act. Accordingly, they also presuppose an obligation on the court’s part to examine the substance of the complaint, that is, to verify [that] the decision and the conclusions therein [are lawful and well founded] as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitating [the suspects] and discontinuing the criminal case. They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures. Until the entry into force of the court judgment the deceased’s remains cannot be buried; the relevant State bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition, in particular through the burial of the remains in the ground … or by [cremation], individually if possible. 
Russian Federation, Constitutional Court, Burial case, 28 June 2007, § 87.
Malaysia
According to the Report on the Practice of Malaysia, the bodies of members of enemy forces and civilians that remain unclaimed, but whose religious persuasions are identified, are buried according to their religious rites. 
Report on the Practice of Malaysia, 1997, Chapter 5.1.
United Kingdom of Great Britain and Northern Ireland
In 2003, in a written reply to a question in the House of Lords, the UK Parliamentary Under-Secretary of State, Ministry of Defence, stated:
The Deployed Operating Instructions issued to all United Kingdom military units state that enemy dead are to be treated the same as UK military dead. This includes a direction that, where next of kin cannot be traced, the bodies are to be given the same funeral as would UK military personnel, subject to religious practices. 
United Kingdom, House of Lords, Written answer by the Parliamentary Under-Secretary of State for Defence, Hansard, 8 September 2003, Vol. 652, Written Answers, col. WA40.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992) stated: “Interment should be carried out … according to the religious rites of the deceased.” 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, Annex Summaries and Conclusions, UN Doc. S/1994/674/Add.2 (Vol. I), 31 May 1995, § 503(b).
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “Burial or cremation shall, as far as circumstances permit, be carried out … according to the rites of the religion to which the dead belonged.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 735.
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