Practice Relating to Rule 114. Return of the Remains and Personal Effects of the Dead

Geneva Convention I
Article 17, third paragraph, of the 1949 Geneva Convention I provides: “[A]n Official Graves Registration Service [shall be established] to allow … the possible transportation of the remains to the home country. These provisions shall likewise apply to the ashes”. 
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, sixth paragraph, of the 1949 Geneva Convention III provides, with regard to the possibility of return of the remains to the home country:
Responsibility … for records of any subsequent moves of the bodies shall rest on the Power controlling the territory … These provisions shall also apply to the ashes, which shall be kept by the Graves Registration Service until proper disposal thereof in accordance with the wishes of the home country. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 120, sixth para.
Geneva Convention IV
Article 130, second paragraph, of the 1949 Geneva Convention IV provides: “The ashes [of deceased internees] shall be retained for safe-keeping by the detaining authorities and shall be transferred as soon as possible to the next of kin on their request.” 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 130, second para.
Panmunjom Armistice Agreement
Article II(13)(f) of the 1953 Panmunjom Armistice Agreement provides:
[T]he Commanders of the opposing sides shall:
f. In those cases where places of burial are a matter of record and graves are actually found to exist, permit graves registration personnel of the other side to enter, within a definite time limit after this Armistice Agreement becomes effective, the territory of Korea under their military control, for the purpose of proceeding to such graves to recover and evacuate the bodies of the deceased military personnel of that side, including deceased prisoners of war. 
Agreement between the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers, on the other hand, concerning a Military Armistice in Korea, Panmunjom, 27 July 1953, Article II(13)(f).
Agreement on Ending the War and Restoring Peace in Viet-Nam
Article 8(b) of the 1973 Agreement on Ending the War and Restoring Peace in Viet-Nam contains provisions designed “to facilitate … repatriation of remains”. 
Agreement on Ending the War and Restoring Peace in Viet-Nam, signed on behalf of the United States of America, the Republic of Viet-Nam, the Democratic Republic of Viet-Nam, and the Provisional Revolutionary Government of South Viet-Nam, Paris, 27 January 1973, Article 8(b).
Additional Protocol I
Article 34 of the 1977 Additional Protocol I provides:
2. As soon as circumstances and the relations between the adverse Parties permit, the High Contracting Parties in whose territories graves and, as the case may be, other locations of the remains of persons who have died as a result of hostilities or during occupation or in detention are situated, shall conclude agreements in order:
(b) to protect and maintain such gravesites permanently;
(c) to facilitate the return of the remains of the deceased … to the home country upon its request or, unless that country objects, upon the request of the next of kin.
3. In the absence of the agreements provided for in paragraph 2 (b) or (c) and if the home country of such deceased is not willing to arrange at its expense for the maintenance of such gravesites, the High Contracting Party in whose territory the gravesites are situated may offer to facilitate the return of the remains of the deceased to the home country. Where such an offer has not been accepted the High Contracting Party may, after the expiry of five years from the date of the offer and upon due notice to the home country, adopt the arrangements laid down in its own laws relating to cemeteries and graves. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 34. Article 34 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.37, 24 May 1977, p. 71.
Finnish-Russian Agreement on War Dead
The 1992 Finnish-Russian Agreement on War Dead provides for cooperation in relation to the identification and return of the remains of soldiers dating from the Second World War. 
Agreement on Cooperation in Perpetuating the Memory of Finnish Servicemen in Russia and Russian (Soviet) Servicemen in Finland Who Fell in the Second World War, Helsinki, 11 July 1992.
Estonian-Finnish Agreement on War Dead
The 1997 Estonian-Finnish Agreement on War Dead provides for cooperation in relation to the identification and return of the remains of soldiers dating from the Second World War. 
Agreement on Cooperation in Acknowledging the Memory of the War Victims, concluded between Estonia and Finland, Parnu, 16 August 1997.
Plan of Operation for the Joint Commission to Trace Missing Persons and Mortal Remains
Proposal 1.2 of the 1991 Plan of Operation for the Joint Commission to Trace Missing Persons and Mortal Remains in the context of the former Yugoslavia provided: “At the request of the party on which the deceased depended, the parties to the conflict shall organize the handover of the mortal remains.” 
Joint Commission to Trace Missing Persons and Mortal Remains: Rules of Procedure and Plan of Operation, established on the Basis of a Memorandum of Understanding between the Socialist Federal Republic of Yugoslavia, Republic of Croatia, Republic of Serbia, Yugoslav People’s Army and International Committee of the Red Cross, Pècs, 16 December 1991, Proposal 1.2.
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 “breach of [the] duty to tender immediately [the remains of those who have died in the course of the armed conflict or while under detention] to their families” shall remain prohibited at any time and in any place whatsoever with respect to persons hors de combat. 
Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, The Hague, 16 March 1998, Part IV, Article 3(4).
Argentina
Argentina’s Law of War Manual (1969) provides that ashes “shall be kept by the Graves Registration Service until the home country makes known what arrangements it wants made”. 
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
Australia’s Defence Force Manual (1994) provides: “The ashes of the deceased shall be forwarded to the Graves Registration and the ashes exchanged as soon as practical following the conclusion of hostilities.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 9-100.
Australia
Australia’s LOAC Manual (2006) states: “The ashes of the deceased shall be forwarded to Graves Registration and the ashes exchanged as soon as practicable following the conclusion of hostilities.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.105.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Specific Procedure on the Prisoners of War Information Bureau (2007) provides: “If the remains of enemy combatants are situated in a territory under the control of Belgian armed forces, the PWIB [Prisoners of War Information Bureau] shall … be informed as soon as possible.” 
Belgium, Structure et fonctionnement du Bureau de Renseignements sur les prisonniers de guerre, Procédure spécifique, Ministère de la Défense, 2007, p. 9, § 10(d)(1).
Brazil
Brazil’s Operations Manual for the Evacuation of Non-Combatants (2007) states: “Under no circumstances shall the mortal remains [of military personnel and non-combatants] be transferred [to a safe place] before all evacuated persons have been safely transported.” 
Brazil, Manual de Operações de Evacuação de Não-Combatentes, Ministério da Defesa, Estado-Maior de Defesa, MD33-M-08, Ordinance No. 1351/EMD/MD of 11 October 2007, published in Diário Oficial da União, No. 198, 15 October 2007, § 6.4.3.
The Operations Manual also states:
1.2.1 Non-Combatant Evacuation Operations are conducted by the Ministry of Defence, upon request by the Ministry of Foreign Affairs, for the evacuation of non-combatants whose lives are in danger, from their host country to a safe place of destination …
3.4.1 Non-Combatant Evacuation Operations … may be triggered by sudden changes in the government of the host country, changes in its political or military orientation with regard to Brazil, or hostile threats to Brazilian citizens by internal or external forces in that country.
Annex A. Rules of Engagement and the Law of Armed Conflict
3. The Law of Armed Conflict
According to the policy of the Ministry of Defence, the principles of the Law of Armed Conflict regulate the actions taken by the Joint Command in the defence of its personnel, property and equipment. 
Brazil, Manual de Operações de Evacuação de Não-Combatentes, Ministério da Defesa, Estado-Maior de Defesa, MD33-M-08, Ordinance No. 1351/EMD/MD of 11 October 2007, published in Diário Oficial da União, No. 198, 15 October 2007, §§ 1.2.1 and 3.4.1, and Annex A, § 3.
Cameroon
Cameroon’s Instructor’s Manual (2006), under the heading “The Case of Deceased Prisoners of War”, states: “In some circumstances, certain bodies may be repatriated.” 
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.
The manual, under the heading “The Dead”, also states: “The ashes … must be evacuated. A report must be written about the deceased and the measures subsequently taken.” 
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. 122, § 403; see also p. 164, § 463.
Chad
Chad’s Instructor’s Manual (2006) states: “Facilities must be provided for the remains and the ashes of the deceased … to be returned to their country of origin.” 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 94.
Croatia
Croatia’s LOAC Compendium (1991) provides that one of the measures required after a conflict is to return ashes and remains. 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 21.
France
France’s LOAC Teaching Note (2000) provides: “At the end of an engagement, the dead of both sides … should be buried in order to facilitate the possible repatriation of mortal remains.” 
France, Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 3.
Hungary
Hungary’s Military Manual (1992) provides that one of the measures required after a conflict is to return ashes and remains of the dead. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 38.
Netherlands
The Military Manual (1993) of the Netherlands states that the parties “shall conclude agreements in order to facilitate the return of the remains of the deceased”. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VI-3.
Netherlands
The Military Manual (2005) of the Netherlands states:
As soon as circumstances and the relations between the parties to the conflict permit, the parties whose territory contains graves of persons who died during the conflict must conclude agreements in order:
- to facilitate the return of the remains and personal effects to the country of origin. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0610.
Peru
Peru’s IHL Manual (2004) states: “Efforts must be made to facilitate the return of the bodily remains or ashes of the deceased.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 68.c.
Peru
Peru’s IHL and Human Rights Manual (2010) states: “Efforts must be made to facilitate the return of the bodily remains or ashes of the deceased … to their country of origin.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 69(c), p. 269.
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.
- As soon as circumstances and the relations between the adverse Parties permit, the Parties in whose territories graves and other locations of the remains of the abovementioned dead persons are situated shall conclude agreements in order to:
- facilitate the return of the remains of the deceased and his personal effects to the home country upon that country’s request or that of the next of kin. 
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, pp. 107–108.
Spain
Spain’s LOAC Manual (1996) provides that when bodies have been cremated, the ashes of the deceased shall be forwarded to the Graves Registration Authority and handed over to relatives as soon as practicable. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, Article 5.2.d.(6).
Spain
Spain’s LOAC Manual (2007) states:
Efforts must be made to facilitate the return of the bodily remains or ashes of the deceased … to their country of origin.
Ashes must be returned through evacuation channels to the graves registration service. 
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, § 5.2.d.(6); see also § 6.2.b.(3).
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “If possible, the remains of the deceased shall be repatriated to the country of origin, according to special agreements.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 71(2).
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides: “The ashes must be respectfully treated, and kept by the Graves Registration Service until properly disposed of according to the wishes of the home country.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 384.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
Graves registration services must be officially established at the outbreak of hostilities and, as soon as circumstances permit, the adverse parties and any other concerned authorities are required to seek agreement for:
c. The return of remains of the deceased to the home state on that state’s request or, unless that state objects, on the request of the next of kin. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 7.36.
The manual further states:
In the absence of agreements relating either to protection and maintenance of grave sites or for the return of the deceased, the authorities of the territory in which the grave sites are situated may (a) offer to facilitate the return of the remains to the home state; and (b) if such an offer is not accepted within five years from the date of the offer, and after due notice, adopt arrangements for dealing with such remains in accordance with their own domestic laws relating to cemeteries and graves. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 7.36.1.
United States of America
The US Field Manual (1956) provides that an Official Graves Registration Service “shall allow … the possible transportation to the home country” of the bodies exhumed. The manual adds that the ashes “shall be kept by the Graves Registration Service until proper disposal thereof in accordance with the wishes of the home country”. 
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.
United States of America
The Annotated Supplement to the US Naval Handbook (1997) provides that “as soon as circumstances permit, arrangement be made to … facilitate the return of the remains when requested”. 
United States, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, prepared by the Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College, Newport, Rhode Island, November 1997, § 11.4, footnote 19.
Azerbaijan
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) provides:
The appropriate authorities and governmental bodies of the Azerbaijan Republic shall ensure that the necessary measures be taken that: … the places where dead bodies … were buried should be marked … and recorded … with the aim to return back these dead bodies … following a request from the parties and close relatives of the dead persons. 
Azerbaijan, Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War, 1995, Article 29(5).
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
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that 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, and of the 1977 Additional Protocol I, including violations of Article 34, are punishable offences. 
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 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Russian Federation
The Russian Federation’s Interment and Burial Amendment Act (2002) states:
Persons against whom a criminal investigation concerning their terrorist activities has been closed on account of their death following interception of the said terrorist act shall be interred in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial. 
Russian Federation, Interment and Burial Amendment Act, 2002.
Russian Federation
The Russian Federation’s Suppression of Terrorism Amendment Act (2002) states: “[T]he interment of terrorists who die as a result of the interception of a terrorist act shall be carried out in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial.” 
Russian Federation, Suppression of Terrorism Amendment Act, 2002.
Colombia
In a case before Colombia’s Administrative Court in Cundinamarca in 1985, it was stated that families must not be denied their legitimate right to claim the bodies of their relatives, transfer them to wherever they see fit, and bury them. 
Colombia, Administrative Tribunal of Cundinamarca, Case No. 4010, Informe del Tribunal Especial de Instrucción, 6–7 November 1985, cuaderno de pruebas.
Israel
According to the Report on the Practice of Israel, in the Abu-Rijwa case in 2000, the Israel Defense Forces carried out DNA identification tests when asked by family members to repatriate remains, implying that when these remains are identified correctly, they will be returned. 
Report on the Practice of Israel, 1997, Chapter 5.1, referring to High Court, Abu-Rijwa case, Judgment, 15 November 2000.
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:
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.
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. …
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, §§ 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 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. 
Russian Federation, Constitutional Court, Burial case, 28 June 2007, § 87.
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, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
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. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[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. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Democratic Republic of the Congo
In 2008, a training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. When addressing the issue of mass graves used for the concealment of evidence of human rights violations committed during armed conflicts, the training manual states: “Objectives [of the exhumation of mass graves]: … to return the remains … to members … [of the victims’] families so the latter can organise their funerals with dignity”. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, p. 35.
Egypt
In 1975 and 1976, the exchange and repatriation of mortal remains of both civilians and combatants were carried out between Egypt and Israel in the presence of ICRC delegates. 
ICRC, Annual Report 1975, Geneva, 1976, p. 21; Annual Report 1976, Geneva, 1977, p. 13.
Egypt
According to the Report on the Practice of Egypt, it is the well-established practice of Egypt to exchange and repatriate mortal remains, in order to enable burial in accordance with the wishes of the deceased and their families. 
Report on the Practice of Egypt, 1997, Chapter 5.1.
Greece
In 1996, the Greek observer to the UN Commission on Human Rights stressed that if the deaths of persons missing in Cyprus were confirmed, their remains would be returned to their families. 
Greece, Statement before the UN Commission on Human Rights, UN Doc. E/CN.4/ 1996/SR.46, 22 May 1996, § 24.
Indonesia
In 1991, the Asian Yearbook of International Law reported that the “ashes of 3,500 Japanese soldiers killed during World War II in Irian Jaya were handed over by Indonesia to the Japanese Ambassador at Jakarta”. 
Asian Yearbook of International Law, Vol. 1, 1991, p. 354.
Iraq
In 2011, Iraq’s Ministry of Human Rights issued a press release entitled “Statement: The [M]inistry of [H]uman [R]ights receives 38 remains from the Iranian side”, which stated:
The [M]inistry of [H]uman Rights had received on Tuesday Feb. 01, 2011 [at the] Shalamja border crossing the remains of 38 Iraqi martyrs that lost their lives during the Iraqi-Iranian war. … Five of the martyrs received were of known identity and [this] shall be duly published after testing and inspection, to be delivered to their families. The names of the known martyrs were published by the [M]inistry in the media … and were not received by their families yet.
It is worth mentioning that the number of remains received from [the] Iranian side had reached 249, some of them of known and [some of] unknown identities[,] while 52 Iranian remains were handed over to the Iranian side from 2003 until this date[.] 
Iraq, Ministry of Human Rights, “Statement: The [M]inistry of [H]uman [R]ights receives 38 remains from the Iranian side”, Press Release, 2 February 2011.
Iraq
In 2011, Iraq’s Ministry of Human Rights issued a press release entitled “The Min[is]try of Human Rights hands over remains [from the] Iraq-Iran war to the Iranian sid[e]”, which stated:
The Iraqi side, represented by the [M]inistry of [H]uman [R]ights, handed over to Iran the remains of 17 Iranians [on] April 04, 2011 through [the] Al-Shalamja border crossing. … It is worth mentioning that Iran handed over to Iraq 38 remains of Iraqi martyrs, 6 of which were of known identity and [whose] names were published in local media.
The exchange of remains process between the two sides shall continue as soon as such remains are found[,] according to the two MOUs signed by Iraq[,] represented by the Ministry of Human Rights[,] and Iran, in coordi[n]ation with the ICRC. 
Iraq, Ministry of Human Rights, “The Min[is]try of Human Rights hands over remains [from the] Iraq-Iran war to the Iranian sid[e]”, Press Release, 4 April 2011.
Islamic Republic of Iran
According to the Report on the Practice of the Islamic Republic of Iran, it is the opinio juris of the Islamic Republic of Iran, based on practice in the Iran–Iraq War, that attempts should be made to return the bodies of dead combatants to the relevant party. 
Report on the Practice of the Islamic Republic of Iran, 1997, Chapter 5.1, referring to Statement by the Iranian Minister of Foreign Affairs, 15 November 1980 and Military Communiqué No. 2176, 27 July 1985.
Israel
In 1975 and 1976, the exchange and repatriation of mortal remains of both civilians and combatants were carried out between Egypt and Israel in the presence of ICRC delegates. 
ICRC, Annual Report 1975, Geneva, 1976, p. 21; Annual Report 1976, Geneva, 1977, p. 13.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support … the principle that each party to a conflict permit teams to … facilitate the return of the remains when requested”. 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 424.
UN General Assembly
In a resolution adopted in 1974 on assistance and cooperation in accounting for persons who are missing or dead in armed conflicts, the UN General Assembly:
Calls upon parties to armed conflicts, regardless of their character and location, during and after the end of hostilities and in accordance with the Geneva Conventions, to take such action as may be within their power … to facilitate the disinterment and the return of remains, if requested by their families. 
UN General Assembly, Res. 3220 (XXIX), 6 November 1974, § 2, voting record: 95-0-32-11.
UN Secretary-General
In 1996, in a report concerning Liberia, the UN Secretary-General reported that UNOMIL had facilitated discussions on the release of the bodies of soldiers killed in the fighting, which the United Liberation Movement of Liberia for Democracy (ULIMO-J) had accepted on the understanding that concerns about its own combatants would be considered. 
UN Secretary-General, Fifteenth progress report on the UNOMIL, UN Doc. S/1996/47, 23 January 1996, § 26.
No data.
International Conference of the Red Cross (1973)
The 22nd International Conference of the Red Cross in 1973 adopted a resolution on the missing and dead in armed conflicts in which it called on parties to armed conflicts “during hostilities and after cessation of hostilities … to facilitate the disinterment and return of remains”.  
22nd International Conference of the Red Cross, Teheran, 8–15 November 1973, Res. V.
International Conference of the Red Cross and Red Crescent (1999)
The Plan of Action for the years 2000–2003 adopted in 1999 by the 27th International Conference of the Red Cross and Red Crescent proposed that all the parties to an armed conflict take effective measures to ensure that “every effort is made to identify dead persons, inform their families and return their bodies to them”. 
27th International Conference of the Red Cross and Red Crescent, Geneva, 31 October–6 November 1999, Res. I, Annex 2, Plan of Action for the years 2000–2003, Actions proposed for final goal 1.1, § 1(e).
Inter-American Commission on Human Rights
In a case concerning Suriname before the Inter-American Commission on Human Rights in 1989, it was reported that, in 1987, the military did not allow family members to collect the remains of a large number of dead following an attack by the National Army. 
Inter-American Commission on Human Rights, Case 10.124 (Suriname), Resolution, 27 September 1989, § 6(iv).
Inter-American Commission on Human Rights
In a case concerning Colombia before the Inter-American Commission on Human Rights in 1995, testimony was given to the effect that, in 1990, the witness was permitted by a Colombian brigade commander to collect the body of her husband for burial, following his death in an indiscriminate attack on a house suspected of harbouring guerrillas. 
Inter-American Commission on Human Rights, Case 11.010 (Colombia), Report, 13 September 1995, Section 11A(a).
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “The return of remains and ashes of the deceased … to the home State shall be facilitated.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 262.
ICRC
The ICRC often acts as a neutral intermediary between the parties to the conflict regarding servicemen missing in action so that the mortal remains of combatants may be returned to the respective parties. For instance, in 1998, in the context of the conflict in Sri Lanka, the ICRC transported the remains of 1,014 government soldiers and Liberation Tigers of Tamil Eelam (LTTE) combatants. 
ICRC, Annual Report 1998, Geneva, 1999, p. 175.
The same year, it “repatriated the mortal remains of an Israeli soldier and of 40 Lebanese fighters to their respective countries”. 
ICRC, Annual Report 1998, Geneva, 1999, p. 279.
No data.