Practice Relating to Rule 116. Accounting for the Dead

Geneva Convention (1929)
Article 4, fifth paragraph, of the 1929 Geneva Convention provides:
[Belligerents] shall further ensure that the dead are honourably interred, that their graves are respected and marked so that they may always be found. 
Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 27 July 1929, Article 4, fifth para..
Geneva POW Convention
Article 76, third paragraph, of the 1929 Geneva POW Convention provides:
The belligerents shall ensure that prisoners of war who have died in captivity are honourably buried, and that the graves bear the necessary indications and are treated with respect and suitably maintained. 
Convention relative to the Treatment of Prisoners of War, Geneva, 27 July 1929, Article 76, third para.
Geneva Convention I
Article 17, third paragraph, of the 1949 Geneva Convention I provides:
[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, that their graves are respected, grouped if possible according to the nationality of the deceased, properly maintained and marked so that they may always be found. 
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:
The detaining authorities shall 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, and that their graves are respected, suitably maintained and marked so as to be found at any time. 
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:
The detaining authorities shall ensure that internees who die while interned are honourably buried, if possible according to the rites of the religion to which they belonged, and that their graves are respected, properly maintained, and marked in such a way that they can always be recognized. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 130, first para.
Additional Protocol I
Article 34 of the 1977 Additional Protocol I provides:
1. The remains of persons who have died for reasons related to occupation or in detention resulting from occupation or hostilities and those of persons not nationals of the country in which they have died as a result of hostilities shall be respected, and the gravesites of all such persons shall be … marked as provided for in Article 130 of the Fourth Convention, where their remains or gravesites would not receive more favourable consideration under the Conventions and this Protocol.
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:
(a) to facilitate access to the gravesites by relatives of the deceased and by representatives of official graves registration services and to regulate the practical arrangements for such access. 
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.
NATO Standardization Agreement 2070
The 1999 NATO Standardization Agreement 2070 provides:
7.Graves are normally located as near as convenient to the scene of death. Sites should be selected as much as possible with reference to ease of subsequent relocation and identification. Graves should not be dispersed. Easy recovery is essential and protection from water is desirable.
11. An appropriate (religious) marker high enough to be seen readily is to be erected …
12. In the case of trench or group burials a marker and list in a suitable container endorsed accordingly is to be placed at each end of the grave. 
Standardization Agreement 2070, Edition 4, Emergency War Burial Procedures, North Atlantic Treaty Organization, Military Agency for Standardization, Brussels, 6 April 1999, §§ 7, 11 and 12.
No data.
Argentina
Argentina’s Law of War Manual (1969) provides that graves shall be “marked so that they can always be found”. 
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 that the graves of the deceased “are to be correctly marked to allow future exhumation”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 999.
Australia
Australia’s LOAC Manual (2006) states that the graves of the deceased “are to be correctly marked to allow future exhumation”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 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 graves shall be marked so that they can be easily found.” 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule II, p. 12.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “The graves must be … marked so that they can be easily found”. 
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; see also Part I bis, p. 25.
Cameroon
Cameroon’s Instructor’s Manual (1992) states: “The graves shall be marked so that they can be easily found.” 
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. 44, § 163(2).
Cameroon
Cameroon’s Instructor’s Manual (2006), under the heading “The Dead”, states: “The graves must always be marked so that they can be easily found.” 
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 .
Canada
Canada’s LOAC Manual (1999) provides that the grave sites of the dead shall be marked. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 9-6, § 54.
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. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 925.1.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states with regard to the funeral arrangements for prisoners of war: “Their graves are [to be] respected, suitably maintained and marked so that they may be found at any time.” 
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.c(2).
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders): “Graves must be marked so that they can be easily located.” 
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.
Croatia
Croatia’s LOAC Compendium (1991) provides that one of the requirements after a conflict is to “mark … gravesites”. 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 21.
Kenya
Kenya’s LOAC Manual (1997) provides: “The graves shall be marked so that they can be easily found (e.g. improvised wooden cross or similar).” 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 3, p. 12.
Netherlands
The Military Manual (1993) of the Netherlands provides: “Graves must be properly … marked.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, pp. VI-2 and VI-3.
The manual also provides:
As soon as circumstances and the relations between the parties to the conflict permit, the parties, in whose territories graves of the persons who have died as a result of hostilities are located, shall conclude agreements in order: to facilitate access to the gravesites by relatives of the deceased and by representatives of official Graves Registration Services. 
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 access to the graves for family members and officials of graves associations; … 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0610.
New Zealand
New Zealand’s Military Manual (1992) provides that grave sites shall be properly marked. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1012(1).
Peru
Peru’s IHL Manual (2004) states: “Access to gravesites must be facilitated.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 68.b.
The manual also states that “graves [must be] properly marked so that they can be recognized”. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 86.b.
Peru
Peru’s IHL and Human Rights Manual (2010) states that “access to gravesites must be facilitated”. 
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(b), p. 269.
The manual further states that “graves [must be] properly marked so that they can be recognized”. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 77(b), p. 277.
Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) provides:
After an engagement:
6. Bring the bodies to the police, if possible and demand receipt. If possible, bring the dead to proper authorities. If not, bury them and mark their graves so they can be retrieved later. This will dispel any doubts of foul play. 
Philippines, Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 62, § 6.
Poland
Poland’s Procedures Governing the Interment of Soldiers Killed in Action (2009), in a section on “Marking the graves”, states:
A container should be placed on top of each grave, containing basic information to facilitate the identification of the remains buried there. …
The container shall be half-buried in the grave, with its lid pointing downwards.
When digging group or trench graves, the following principles shall be respected:
- Place a marker indicating the type of grave used. 
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 further states: “In the case of identity tags belonging to deceased United States nationals (soldiers): … The second tag shall be placed on the grave.” 
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 2.7.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
It is therefore the responsibility that at the end of every engagement soldiers should …
e. Mark the gravesite with local material so that it can easily be located. Record the details.
j. The above mentioned actions shall be applied to all dead persons, whether civilian or military, own or enemy forces. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, pp. 38–39.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Burial of the Dead
- Graves must be marked and the precise location must be recorded.
- 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;
- their graves are respected, properly maintained and marked so that they may always be found.
- As soon as circumstances permit, and at latest at the end of hostilities, [the Graves Registration] Services shall exchange, through the Information Bureau mentioned in the second paragraph of Article 16 [of 1949 Geneva Convention I], lists showing the exact location and markings of the graves, together with particulars of the dead interred therein.
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 [1949 Geneva] Conventions and Additional Protocol I.
- 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 access to gravesites by relatives of the deceased and by representatives of official graves registration services. 
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. 106–108.
Spain
Spain’s LOAC Manual (1996) provides: “Graves shall be marked so that they can always be found.” 
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, § 5.2.d.(6).
Spain
Spain’s LOAC Manual (2007) states: “Gravesites must be marked so that they can always be found.” 
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 that graves shall be “respected and marked with a distinctive sign” and “properly maintained and marked”. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 71(2) and Article 76, commentary.
Togo
Togo’s Military Manual (1996) provides: “The graves shall be marked so that they can be easily found.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule II, p. 12.
Ukraine
Ukraine’s IHL Manual (2004) states: “Following necessary documentation, gravesites (graves) shall be handed over to local representatives of the executive or to military commissariats who shall become responsible for their state. Appropriate protocols shall be made.” 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 2.5.3.5.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides that graves “must be marked so that they may always be found”. 
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:
7.36. Graves must be respected and properly maintained. They must be marked so that they may always be found … 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:
b. Access to those grave sites by relatives of the deceased and the representatives of the official graves registration services. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 7.36.
United States of America
The US Field Manual (1956) provides that the graves of the dead are “marked so that they may always be found”. 
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) requires that “as soon as circumstances permit, arrangement be made to facilitate access to grave sites by relatives”. 
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 places of burial of [the dead] … are signed with the purpose to find them any time.” 
Azerbaijan, Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War, 1995, Article 29(3).
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).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Law on Missing Persons (2004) states: “The missing persons’ families or their associations shall have the right to demand that places of burial and exhumation (individual or mass graves) be marked regardless of the number of victims or missing persons.” 
Bosnia and Herzegovina, Law on Missing Persons, 2004, Article 20.
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. … [T]he place of their burial shall not be disclosed. 
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. … [T]he place of their burial shall remain undisclosed.” 
Russian Federation, Suppression of Terrorism Amendment Act, 2002.
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.
The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts … 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.
… [T]he 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, §§ 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.
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 … marked … [and] as soon as circumstances permit, arrangements be made to facilitate access to grave sites by relatives.” 
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 or location, during and after the end of hostilities and in accordance with the Geneva Conventions of 1949, to take such action as may be within their power to help … mark the graves of the dead. 
UN General Assembly, Res. 3220 (XXIX), 6 November 1974, § 2, voting record: 95-0-32-11.
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, with respect to its investigation into mass graves, that the “graves [of victims should] … be marked so that they can be easily found”. 
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: “Graves shall be … marked so that they can be easily found.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 736.
No data.