Section A. Respect for the dead
Geneva Convention IV
Article 16, second paragraph, of the 1949 Geneva Convention IV provides: “As far as military considerations allow, each Party to the conflict shall facilitate the steps taken … to protect [the killed] against … ill-treatment.”
Additional Protocol I
Article 34(1) of the 1977 Additional Protocol I provides: “The remains of persons who have died for reasons related to occupation or in detention resulting from occupation or hostilities … shall be respected”.
Additional Protocol II
Article 4 of the 1977 Additional Protocol II provides:
1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person [and] honour …
2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever:
…
(e) outrages upon personal dignity, in particular humiliating and degrading treatment …
ICC Statute
Pursuant to Article 8(2)(b)(xxi) and (c)(ii) of the 1998 ICC Statute, “[c]ommitting outrages upon personal dignity” constitutes a war crime in both international and non-international armed conflicts.
Oxford Manual
Article 19 of the 1880 Oxford Manual provides: “It is forbidden to … mutilate the dead lying on the field of battle.”
Cairo Declaration on Human Rights in Islam
Article 3(a) of the 1990 Cairo Declaration on Human Rights in Islam provides: “In the event of the use of force and in case of armed conflict … it is prohibited to mutilate dead bodies.”
Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 3(4) of Part IV of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines provides that “desecration of the remains of those who have died in the course of the armed conflict or while under detention” shall remain prohibited at any time and in any place whatsoever with respect to persons
hors de combat. Article 4(9) provides: “Every possible measure shall be taken, without delay, … [to prevent] mutilation [the dead].”
ICC Elements of Crimes
With reference to the war crime of outrages upon personal dignity, the 2000 ICC Elements of Crimes specifies that Article 8(2)(b)(xxi) and (c)(ii) of the 1998 ICC Statute also applies to dead persons.
UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(b)(xxi) and (c)(ii), “[c]ommitting outrages upon personal dignity” constitutes a war crime in both international and non-international armed conflicts.
Australia
Australia’s Defence Force Manual (1994) provides:
The remains of the dead, regardless of whether they are combatants, noncombatants, protected persons or civilians, are to be respected, in particular their honour, family rights, religious convictions and practices and manners and customs. At all times they shall be humanely treated.
Australia
Australia’s LOAC Manual (2006) states:
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. At all times they shall be humanely treated.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Bosnia and Herzegovina
The Instructions to the Muslim Fighter (1993) issued by the Army of Bosnia and Herzegovina (ABiH) in 1993 stated:
(c) Prisoners of war:
… Islam likewise forbids the mutilation of enemy … dead … These are general rules which are binding for our soldiers. However, if the commanding officer assesses that the situation and the general interest demand a different course of action, then the soldiers are duty-bound to obey their commanding officer.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “The dead must be respected in all circumstances.”
Canada
Canada’s LOAC Manual (1999) provides: “The remains of all persons who have died as a result of hostilities or while in occupation or detention in relation thereto shall be respected.”
The manual considers that “mutilation or other maltreatment of dead bodies” is a war crime.
Canada
Canada’s Code of Conduct (2001) provides that “there is … an obligation to … protect and pay proper respect for the dead”.
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of the wounded, sick and shipwrecked: “The remains of all persons who have died as a result of hostilities or while in occupation or detention in relation thereto shall be respected, and their gravesites properly respected, maintained and marked.”
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power, the manual states:
As far as military considerations permit, the belligerents must facilitate any steps to search for killed and wounded, to assist shipwrecked and other persons exposed to grave danger, and to protect them against pillage and ill-treatment.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual further states that “mutilation or other maltreatment of dead bodies” is a war crime.
In its chapter on non-international armed conflicts, the manual states:
After any engagement and whenever circumstances permit, all possible steps must be taken without delay to search for and collect the wounded, sick and shipwrecked … Steps must also be taken to search for the dead [and] prevent their despoliation.
Canada
Canada’s Code of Conduct (2005) states that there is “an obligation to … protect and pay proper respect for the dead”.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders) that “dead enemy soldiers must be treated well.”
Chad
Chad’s Instructor’s Manual (2006) states that “the dead must not be attacked”.
Ecuador
Ecuador’s Naval Manual (1989) provides that “mutilation and other mistreatment of the dead” are representative war crimes.
Greece
The Hellenic Territorial Army’s Internal Service Code (1984), as amended, provides: “It is forbidden for members of the armed forces: … To perform outrageous acts against the dead.”
Israel
Israel’s Manual on the Laws of War (1998) states: “It is imperative to tend to the enemy’s wounded and dead.”
The manual further states: “[A legal] combatant is entitled to the status of a prisoner of war, according him … protection against the abuse of dead soldiers’ bodies.”
According to the manual, it is absolutely forbidden to abuse the corpses of the enemy’s dead.
Israel
Israel’s Manual on the Rules of Warfare (2006) states: “The bodies of the fallen must not be desecrated and they must be given suitable burial.”
The manual further states:
It is absolutely forbidden to desecrate the bodies of the enemy’s fallen. Such actions do not contribute anything to the fighting and destroy the human image of both the fallen soldier and the desecrator.
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 (1993) of the Netherlands states: “Remains must be protected.”
Netherlands
The Military Handbook (1995) of the Netherlands provides: “The dead must not be mutilated.”
Netherlands
The Military Manual (2005) of the Netherlands states:
The individual is entitled to respect for his life, physical, mental and moral integrity and whatever is inseparable from his personality.
Examples:
- The physical remains of a fallen combatant are inviolable.
The manual further states: “Human remains must be respected and protected.”
New Zealand
New Zealand’s Military Manual (1992) states: “The remains of all persons who have died as a result of hostilities, or while in occupation or detention in relation to hostilities, shall be respected.”
The manual also states: “Among other war crimes recognised by the customary law of armed conflict are mutilation or other maltreatment of dead bodies.”
With respect to non-international armed conflicts, the manual states that “steps must be taken to prevent … abuse” of the dead.
Nigeria
According to Nigeria’s Manual on the Laws of War, “maltreatment of dead bodies” is a war crime.
Philippines
The Military Instructions (1989) of the Philippines states:
Respect for the dead which includes our own troops, the enemy and particularly innocent civilians must be a paramount concern of all commanders and troops at all levels … All dead bodies … must be handled humanely and treated with care and respect.
Republic of Korea
The Republic of Korea’s Operational Law Manual (1996) states that the mutilation of dead bodies is a war crime.
Republic of Korea
Under the Republic of Korea’s military regulations, “injuring dead bodies” is a war crime.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
i. Mutilation of bodies is prohibited.
j. The above mentioned actions shall be applied to all dead persons, whether civilian or military, own or enemy forces.
South Africa
According to South Africa’s LOAC Manual (1996), “maltreatment of dead bodies” is a grave breach.
South Africa
South Africa’s Revised Civic Education Manual (2004) provides that the “[m]altreatment of dead bodies” is a grave breach of the law of armed conflict and a war crime.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Remains of Deceased (Article 34 [1977] Additional Protocol I)
- This article applies to the remains of persons
- who have died:
- for reasons related to occupation;
- in detention resulting from occupation; or
- in hostilities; and
- who are not nationals of the country in which they have died as a result of hostilities.
- The remains of and gravesites of all such persons shall be respected, maintained and marked as provided for in Article 130 of the [1949] Fourth [Geneva] Convention, where their remains or gravesites would not receive more favourable consideration under the other provisions of the Conventions and Additional Protocol I.
The manual also states:
Handling of War Victims
…
- The dead must be protected and taken care of.
Spain
Spain’s LOAC Manual (1996) states: “The dead shall be preserved from attack.”

It also states: “The dead shall be respected.”
Spain
Spain’s LOAC Manual (2007) states: “The dead must be respected.”
Switzerland
Switzerland’s Basic Military Manual (1987) states that anyone who “mutilates the dead” will be punished.
Ukraine
Ukraine’s IHL Manual (2004) states:
“The dead” means persons who died because of the reasons related to the conduct of hostilities. The remains of such persons, including non-citizens of the State where they died, shall be respected.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “The dead must be protected against … maltreatment.”
The manual further states that “maltreatment of dead bodies” is a war crime.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states: “The dead must not be … mutilated.”
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) provides that the dead must be protected against maltreatment and that the mutilation of dead bodies is a war crime. The manual refers to this as a “well-established rule of customary international law”.
In its chapter on internal armed conflict, the manual states: “The dead must not be … ill-treated.”
United States of America
The US Field Manual (1956) provides that “maltreatment of dead bodies” is a war crime.
United States of America
The US Instructor’s Guide (1985) states: “In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … mutilating or mistreating dead bodies”.
United States of America
The US Naval Handbook (1995) provides that “mutilation and other mistreatment of the dead” are representative war crimes.
United States of America
The US Naval Handbook (2007) states that “[m]utilation or other mistreatment of the dead” is an example of acts that could be considered war crimes.
United States of America
The US Manual on Detainee Operations (2008) states:
Legal Considerations
a. As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations …
…
c. The four Geneva Conventions of 1949 are fully applicable as a matter of international law to all military operations that qualify as international armed conflicts … The principles reflected in these treaties are considered customary international law, binding on all nations during international armed conflict. Although often referred to collectively as the “Geneva Conventions,” the specific treaties are:
(1)
[1949] Geneva Convention [I] … This convention … prohibits the abuse of remains [of dead persons].
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
INTENTIONALLY MISTREATING A DEAD BODY.
a. Text. “Any person subject to this chapter who intentionally mistreats the body of a dead person, without justification by legitimate military necessary, shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused mistreated or otherwise violated the dignity of the body of a dead person;
(2) The accused’s actions were not justified by legitimate military necessity;
(3) The accused intended to mistreat or violate the dignity of such body; and
(4) This act took place in the context of and was associated with hostilities.
c. Comment.
(1) This offense is designed to criminalize only the most serious conduct.
(2) To mistreat or otherwise violate the dignity of the body of a dead person requires severe physical desecrations, such as dismemberment, sexual or other defilement, or mutilation of dead bodies, especially if publicly displayed, that, as a result, do not respect the remains of the deceased; it does not include photography of a corpse unaccompanied by acts of severe disrespect.
(3) The term “necessary” as used in this section means “necessity.”
d.
Maximum punishment. Confinement for 20 years.
Australia
Australia’s War Crimes Act (1945) states: “The expression ‘war crime’ includes the following: … cannibalism … [and] mutilation of the dead”.
Australia
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “outrages upon personal dignity” of the bodies of dead persons in both international and non-international armed conflicts.
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.
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) defines war crimes with reference to the categories of crimes defined in Article 8 of the 1998 ICC Statute.
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’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].
Ethiopia
Under Ethiopia’s Penal Code (1957), it is a punishable offence to “mutilate a dead person”.
Ethiopia’s Criminal Code (2004) states:
Article 275.- Dereliction of Duty Towards the Enemy.
Whoever, in time of war and contrary to public international law and humanitarian conventions:
…
(b) mutilates a dead person; or
…
(d) orders one of the above acts,
is punishable with rigorous imprisonment, or, in cases of exceptional gravity, with life imprisonment or death.
The Criminal Code of 2004 repealed Ethiopia’s Penal Code of 1957.
Ireland
Ireland’s Geneva Conventions Act (1962), as amended 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 16 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 34(1), are punishable offences.
Italy
Italy’s Law of War Decree (1938), as amended in 1992, provides: “Commanders shall take all necessary measures to ensure respect for the bodies of enemy dead on the battlefield.”
Italy
Italy’s Wartime Military Penal Code (1941) provides that anyone who mutilates or commits outrages upon the body of a soldier fallen on the battlefield is guilty of a punishable offence.
Lithuania
Lithuania’s Criminal Code (1961), as amended in 1998, punishes outrages upon the bodies of the killed out of revenge or for terror purposes.
Morocco
Morocco’s Military Justice Code (1956) states that “[a]ny individual, military or not, who, in the area of operations of a military field unit … despoils a wounded, sick or dead soldier, is punished with imprisonment”.
Netherlands
The Military Criminal Code (1964), as amended in 1990, of the Netherlands provides for the punishment of persons committing violent acts against a dead person.
New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crimes defined in Article 8(2)(b)(xxi) and (c)(ii) of the 1998 ICC Statute.
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 … [and in] the two additional protocols to these Conventions … is liable to imprisonment.
Acts constituting the crime of genocide perpetrated against Tutsi and other crimes against humanity which are in the jurisdiction of the Primary Court
The following offences shall be tried at the first instance by the Primary Court:
Somalia
Somalia’s Military Criminal Code (1963) states:
Anyone who mutilates or disfigures the corpse of a soldier who has died in war, or who commits upon it acts of desecration or other acts of brutality or obscenity, or who steals all or part of the corpse, shall be punished by imprisonment for not less than 10 years.
Spain
Spain’s Royal Ordinance for the Armed Forces (1978) provides: “The dead shall be respected.”
Switzerland
Switzerland’s Military Criminal Code (1927), as amended, punishes anyone who mutilates a dead person.
Switzerland
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
Art. 110
Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
…
Art. 112c
1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:
…
e. mutilates the dead body of an enemy combatant.
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “War crimes”:
Art. 264b
Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
…
Art. 264g
1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:
…
e. mutilates the dead body of an enemy combatant.
United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(b)(xxi) and (c)(ii) of the 1998 ICC Statute.
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
“§ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
…
“(20) INTENTIONALLY MISTREATING A DEAD BODY.—Any person subject to this chapter who intentionally mistreats the body of a dead person, without justification by legitimate military necessary [necessity], shall be punished as a military commission under this chapter may direct.
Venezuela
Under Venezuela’s Code of Military Justice (1998), as amended, committing outrages upon the dead is considered a crime against international law.
Australia
In 1945, in the
Takehiko case, an Australian Military Court sentenced the accused, a Japanese soldier, for “mutilating the dead body of a prisoner of war” and for “cannibalism”.
Australia
In 1946, in the
Tisato case, an Australian Military Court found the accused, a Japanese soldier, guilty of “cannibalism”. The prosecution in this case alleged that several prisoners had been killed and that their flesh had been eaten.
Canada
In 2013, in the
Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the
Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.”
Israel
In its judgment in Physicians for Human Rights v. Commander of the IDF Forces in the West Bank in 2002, Israel’s High Court of Justice stated:
Though we are unable to express a position regarding the specific events mentioned in the petition … we see fit to emphasize that our combat forces are required to abide by the rules of humanitarian law regarding the care of the wounded, the ill and bodies of the deceased.
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: “Needless to say, the burial will be made in an appropriate and respectful manner, maintaining the respect for the dead. In this matter, no distinction will be made between the bodies of armed combatants and the bodies of civilians.”
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
…
The accused’s position is stated to be that this Court has no jurisdiction to try him.
…
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
…
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
…
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
…
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
…
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
…
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
…
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
…
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
…
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
…
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
…
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
…
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
…
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of
usus and/or
opinio juris have not been met. See
Petane.

[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of
usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of
opinio juris.
United States of America
In 1946, in the
Kikuchi and Mahuchi case, a US Military Commission sentenced the accused, who were Japanese soldiers, for “bayoneting and mutilating the dead body of a United States prisoner of war”.
United States of America
In 1946, in the
Yochio and Others case, a US Military Commission tried and convicted some of the accused Japanese soldiers for “preventing an honorable burial due to the consumption of parts of the bodies of prisoners of war by the accused during a special meal in the officers’ mess”. The accused were found guilty of these charges.
United States of America
In its judgment in the
Schmid case in 1947, the US General Military Court at Dachau found the accused, a German medical officer, guilty of maltreating the body of a deceased US airman in violation of Article 3 of the 1929 Geneva Convention. The accused had severed the head from the body of the airman, had baked it and removed the skin and flesh and had bleached the skull.
Azerbaijan
In 1993, the Ministry of the Interior of Azerbaijan ordered that troops “in zones of combat, during military operations … must not desecrate the remains of enemies”.
Colombia
In a case before Colombia’s Council of State in 1994, the Prosecutor stated that failure to treat the bodies of dead combatants and civilians with respect constituted a violation of common Article 3 of the 1949 Geneva Conventions.
Djibouti
In 2011, in the History and Geography Textbook for 9th Grade, Djibouti’s Ministry for National Education and Vocational Training, under the heading “Ethics of Debne warriors” [inhabitants of the Dikhil region in Djibouti], stated: “Avoid any humiliation of … the dead enemy”.
Indonesia
The Report on the Practice of Indonesia states that it is the practice of Indonesia to care for the dead.
Somalia
In 1998, an ICRC publication entitled “Spared from the Spear” recorded traditional Somali practice in warfare as follows: “The bodies of the enemy dead should not be mutilated or burned”.
The publication also described traditional Somali practice as follows: “[T]o mutilate the body of a dead person or uncover its genitals were considered to be a particularly outrageous violation of custom.”
In 2011, in its comments on the concluding observations of the Human Rights Council concerning Somalia’s report, the Transitional Federal Government of Somalia referred to “Spared from the Spear” as its “own Geneva Conventions”:
In times of hostilities, the
Biri-Ma-Geydo (Spared from the Spear), i.e. Somalia’s own “Geneva Conventions”[,] which existed long before the adoption of the Hague and Geneva Conventions, mitigated and regulated the conduct of clan hostilities and the treatment of immune groups.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include Article 4 providing guarantees to persons taking no active part in hostilities … due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions.
United Kingdom of Great Britain and Northern Ireland
In 2003, in reply to a written question in the House of Lords, the UK Parliamentary Under-Secretary of State, Ministry of Defence, wrote: “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.”
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support … the principle that … the remains of the dead be respected and maintained”.
Yugoslavia, Socialist Federal Republic of
In 1991, the Ministry of Defence of the Socialist Federal Republic of Yugoslavia issued a document entitled “Examples of violations of the rules of international law committed by the so-called armed forces of Slovenia”. This document included the following example: “The attitude towards dead YPA [Yugoslav People’s Army] soldiers has been absolutely uncivilized and without any trace of humanity.”
UN Commission on Human Rights
In a resolution adopted in 2005 on human rights and forensic science, the UN Commission on Human Rights underlined “the importance of dignified handling of human remains, including their proper management and disposal, as well as of respect for the needs of families”.
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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: “The dead may not be attacked.”
ICRC
In a press release issued in 1993 in the context of the conflict in Somalia, the ICRC condemned abuses committed on the remains of dead combatants of the UNOSOM II forces.
De Zayas
Investigations following allegations concerning crimes committed against members of the armed forces fighting in Crete during the Second World War found evidence that dead German soldiers had been mutilated:
Some had their genitals mutilated, eyes put out, ears and noses cut off; others had knife wounds in the face, stomach, and back; throats were slit, and hands chopped off. The majority of these mutilations were probably defilement of dead bodies; only in a few cases does the evidence indicate that the victim was maltreated and tortured to death.
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, states: “Every possible measure shall be taken, without delay, … to prevent [the dead] being … mutilated.”