United States of America
Practice Relating to Rule 113. Treatment of the Dead
Section B. Protection of the dead against despoliation
The US Field Manual (1956) reproduces Article 15 of the 1949 Geneva Convention I.
The US Air Force Pamphlet (1976) refers to Article 15 of the 1949 Geneva Convention I.
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: … taking and keeping … property from dead bodies”.
The US Operational Law Handbook (1993) states: “The LOW [law of war] requires Parties to a conflict to prevent [the] despoilment [of the dead].”
The Annotated Supplement to the US Naval Handbook (1997) provides that the “requirement [to protect from harm and ensure the care of wounded, sick and shipwrecked] also extends to the dead and includes a requirement to prevent despoiling of the dead”.
The US Manual for Military Commissions (2007), 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 necessity, shall be punished as a military commission under this chapter may direct.”
(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 armed conflict.
(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.
d. Maximum punishment
. Confinement for 20 years.
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
(b) OFFENSES.—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 necessity, shall be punished as a military commission under this chapter may direct.
In its judgment in the Pohl case in 1947, the US Military Tribunal at Nuremberg stated:
Robbing the dead, even without the added offence of killing, is and always has been a crime. And when it is organized and planned and carried out on a hundred-million mark scale, it becomes an aggravated crime, and anyone who takes part in it is a criminal.