Practice Relating to Rule 115. Disposal of the Dead
Section A. General
Geneva Convention (1929)
Article 4, fifth paragraph, of the 1929 Geneva Convention provides that belligerents shall ensure that “the dead are honourably interred”.
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.”
Convention relative to the Treatment of Prisoners of War, Geneva, 27 July 1929, Article 76, third para.
Geneva Convention I
Article 17 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 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 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 II
Article 8 of the 1977 Additional Protocol II provides: “Whenever circumstances permit, and particularly after an engagement, all possible measures shall be taken, without delay, to … decently dispose of [the dead].”
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 8. Article 8 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.51, 3 June 1977, p. 110.
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 give [those who have died in the course of the armed conflict or while under detention] decent burial” 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 dispose of [the dead] with respect.”
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, Articles 3(4) and 4(9).
Argentina
Argentina’s Law of War Manual (1969) provides that the remains of deceased persons shall be honourably buried.
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; see also Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 2.06.
Australia
Australia’s Defence Force Manual (1994) provides: “The minimum respect for the remains of the dead is a decent burial or cremation.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 998.
The manual further states: “The deceased should be honourably interred.”
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:
9.103 …. The minimum respect for the remains of the dead is a decent burial or cremation …
9.104 … In the case of burial the deceased shall be honourably interred.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 9.103–9.104.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) provides: “The necessary measures shall be taken to bury the dead.”
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 49.
Brazil
Brazil’s Operations Manual for the Evacuation of Non-Combatants (2007) states: “Burial. The Joint Command shall ensure that appropriate treatment is given to the mortal remains of military personnel and non-combatants.”
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.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “after identification, the dead must be buried individually, if the tactical situation and other circumstances (e.g. hygiene) permit”.
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. 25.
Cameroon
Cameroon’s Instructor’s Manual (2006), under the heading “The Dead”, also states: “If the tactical situation permits, and after identification, the dead must be buried, incinerated or buried at sea, as appropriate.”
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. 60, § 251, p. 85, § 341, p. 117, § 391, p. 159, § 452 and p. 164, § 463.
The manual (2006), under the heading “The Case of Deceased Prisoners of War”, also states: “The burial [or] incineration … must be preceded by a medical examination.”
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 265, § 621.
Canada
Canada’s LOAC Manual (1999) provides: “Parties to the conflict shall ensure that the dead are honourably interred.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 9-6, § 58.
The manual also states: “Regulations with regard to burial at sea are adjusted to meet the requirements of the situation.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 9-2, § 11.
With respect to non-international armed conflicts in particular, the manual provides: “Steps must also be taken to … provide for decent disposition [of the dead]”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-4, § 32.
Canada
Canada’s Code of Conduct (2001) provides: “The dead shall be honourably interred.”
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 7, § 5.
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of the wounded, sick and shipwrecked:
1. 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.
…
5. Parties to the conflict shall ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belong.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 925.1 and 5.
The manual also states: “Regulations with regard to burial at sea are adjusted to meet the requirements of the situation.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 905.1.
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 provide for their decent disposition.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1718.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
As a general principle, subject to any religious or ethnic variations, the funeral arrangements for a PW [prisoners of war] are to be the same as those, which would be made for a member of the Canadian Forces dying in the AOO [Area of Operations].
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.
Canada
Canada’s Code of Conduct (2005) states: “The dead shall be honourably interred.”
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 7, § 5.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders):
The dead … must then be buried, cremated or buried at sea when the tactical situation permits and other circumstances (hygiene) permit. … Dead bodies which, owing to the circumstances, are not buried, cremated or buried at sea, must be evacuated.
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; see also Chapter II, Section III, § 3.1.
In Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police), the manual states: “At all times, and especially following a battle, the dead must be … buried”.
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Section II, § 2.3.
Croatia
Croatia’s Commanders’ Manual (1992) provides: “As a rule, the dead shall be identified and buried, cremated or buried at sea individually.”
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 76; see also § 89 and Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 47.
France
France’s LOAC Summary Note (1992) provides that the dead must be “identified, evacuated and buried, cremated or buried at sea”.
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 2.1.
France
France’s LOAC Teaching Note (2000) states:
After combat, the dead of both sides must be identified, evacuated and buried, cremated or buried at sea. To the extent possible, the dead must in principle be buried in order to allow for the repatriation of their remains later on.
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.
France
France’s LOAC Manual (2001) reproduces Article 17 of the 1949 Geneva Convention I.
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 121.
Hungary
Hungary’s Military Manual (1992) states: “The dead may be buried, buried at sea, cremated”.
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 77.
Israel
According to Israel’s Manual on the Laws of War (1998), a “[legal] combatant is entitled to the status of a prisoner of war, according him … the right to a proper burial”.
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 46.
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.”
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 30.
The manual further states:
Following barbaric acts committed by soldiers, such as scalping, cutting off the ears and “collecting” fingers, the Geneva Convention was required to provide for the orderly and honourable burial of the enemy’s fallen. The pressure for this actually came from the combatants who wanted to give the last honours to their enemies and ensure that the same treatment would be accorded to their own fallen.
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 39.
In addition, the manual states:
The IDF [Israel Defense Forces] maintains a cemetery where the bodies are laid to rest of terrorists killed in skirmishes with the IDF. In exchange for the return of the bodies of IDF soldiers who fell, the bodies of Hezbollah fighters were returned to it.
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 39.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s LOAC Elementary Rules Manual (1991) provides: “As a general rule, the dead shall be … buried, cremated or buried at sea individually.”
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 76.
Kenya
Kenya’s LOAC Manual (1997) states: “The dead shall be buried, cremated or buried at sea individually, when the tactical situation and other circumstances (e.g. hygiene) permit.”
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 3, p. 11.
Madagascar
Madagascar’s Military Manual (1994) provides: “Generally, the dead shall be … buried, incinerated or buried at sea individually.”
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 7-O, § 23; see also Fiche No. 8-O, § 25 and Fiche No. 6-SO, § B.
Mexico
Mexico’s Army and Air Force Manual (2009) states: “The [1949 Geneva] Convention [III] specifies burial (and, in certain cases cremation) requirements to ensure respect for the dead and to safeguard the interests of their families.”
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 197.
Netherlands
The Military Manual (2005) of the Netherlands states: “Burial must be performed with dignity.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0610.
New Zealand
New Zealand’s Military Manual (1992) provides: “The remains [of the dead] … shall be respected”.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1012(1).
The manual also states: “The regulations with regard to burial at sea are adjusted to meet the requirements of the situation.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1003(3).
With respect to non-international armed conflicts, the manual states that the parties to a conflict must take steps to “provide for [the] decent disposal [of the dead]”.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1817.
Peru
Peru’s IHL Manual (2004) states:
Burial on land or at sea and cremation of the dead should be preceded by a careful examination, if possible a medical examination, of the bodies, with a view to confirming death, establishing identity and enabling a report to be made … The dead must be honourably interred … At sea, the dead should be committed to the sea, individually if circumstances permit, if they cannot be taken to land.
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.
The manual also states that, in operational and geographic areas, commanders must “formulate an evacuation plan, in collaboration with the civilian authorities, and give instructions and specify measures for each evacuation line (for example, … bodily remains)”.
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:
Burial on land or at sea and cremation of the dead should be preceded by a careful examination, if possible a medical examination, of the bodies, with a view to confirming death, establishing identity and enabling a report to be made. … The dead must be honourably interred.
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; see also p. 427.
The manual further states that, in operational and geographic areas, commanders must “formulate an evacuation plan, in collaboration with the civilian authorities, and give instructions and specify measures for each evacuation line (for example, … bodily remains)”.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 25(c)(3), p. 228.
Philippines
The Military Instructions (1989) of the Philippines provides: “Evacuation of all dead bodies must be done … and arrangements for a decent burial made.”
Philippines, Safety of Innocent Civilians and Treatment of the Wounded and Dead, Directive to Commanders of Major Services and Area Commands, Office of the Chief of Staff, General Headquarters of the Armed Forces of the Philippines, Ministry of National Defence, 6 September 1989, p. 27, § 4; see also Military Directive to Commanders (1988), p. 30, Guideline 4(h)(6).
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.
7. Inform immediately the bereaved families of the dead. Inform immediately the families of the dead. This includes the dead enemies and crossfire victims. Crossfire victims are entitled of burial assistance from the government. Provide whatever assistance to the families of the dead, to include financial help, if possible.
Philippines, Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 61, §§ 6–7.
Peru
Peru’s IHL and Human Rights Manual (2010) states: “Bodies should only be cremated for imperative reasons of hygiene or for reasons connected to the religion of the deceased.”
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.
Poland
Poland’s Procedures Governing the Interment of Soldiers Killed in Action (2009) defines “Emergency burial” as “[a] burial, usually on the battlefield, when conditions do not permit evacuation for burial in a cemetery”.
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.1.
The Procedures further states in the section on the disposal of persons who have died in combat: “Prior to burial, the body shall be placed in a coffin or sealed container. If no coffins or other sealed containers are available, the body may be wrapped in a shroud, waterproof material, or at least a blanket.”
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.4.1.
The Procedures also states: “Civilian members of the armed forces who had not participated in hostilities shall be buried in line with procedures established for the burial of the bodies of soldiers.”
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.4.2.
The Procedures further states:
The bodies of persons who have died on the open seas should be disposed of by lowering the body into the sea, in line with naval custom.
If the ship is able to reach port within 24 hours, the remains shall be transported onto land and buried there. In that case, the burial shall be conducted in accordance with procedures pertaining to burial on land.
Poland, Norma Obronna NO-02-A053:2004, Działania wojenne Procedury pochówku poległych i zmarłych, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.4.4.
Russian Federation
The Russian Federation’s Military Manual (1990) states that the emergency disposal of the dead is one of the activities of civil defence that helps eliminate the immediate effects of hostilities or disaster.
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 9(l).
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) provides:
Search for, collection, identification and burial of the dead members of the enemy armed forces as well as of other victims of armed conflicts shall be organized immediately, as soon as the situation permits, and carried out to … bury them with due dignity and respect as required by ethical principles.
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 164.
With regard to internal armed conflict, the Regulations states: “Whenever circumstances permit and particularly after an engagement, all possible measures shall be taken, without delay … to search for the dead [and] to decently dispose of them.”
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 82.
Spain
Spain’s LOAC Manual (1996) states: “The dead shall be buried, cremated or buried at sea as soon as the tactical situation and other circumstances permit.”
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 that “the dead must be buried or cremated … when the tactical situation or other circumstances permit”.
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).
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “Burial shall be honourable.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 76(2).
Togo
Togo’s Military Manual (1996) provides that the dead “shall be buried, incinerated or disposed of at sea individually when the tactical situation or other circumstances (hygiene) so permit”.
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; see also p. 9 and Fascicule III, p. 5.
Ukraine
Ukraine’s IHL Manual (2004) states:
1.4.12. … As soon as the circumstances allow, all parties to an armed conflict shall … organize the search for the dead to … ensure their proper burial.
…
2.5.3.1. … Measures to search for, collect, identify and bury the dead shall be organized as soon as the situation permits. Those measures shall be aimed at the … dignified burial [of the dead] according to general human principles.
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, §§ 1.4.12 and 2.5.3.1.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides that “the belligerents must make provision for honourable interment” of the dead.
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:
7.35 The remains of the dead are to be honourably interred (unless burial at sea is appropriate) …
Graves
7.36. Graves must be respected and properly maintained. …
Exhumation
7.37. Exhumation is permitted only (a) in accordance with an agreement on the matters dealt with in paragraph 7.36; or (b) in accordance with overriding public necessity (which may include “medical or investigative necessity”). In such circumstances, the authorities of the territory in which the grave sites are situated are required to respect the remains and to give notice to the home state of the intended exhumation together with details of the intended place of re-interment. However, these provisions do not prevent the exhumation of temporary graves for the purpose of moving the remains to permanent graves in dignified, properly maintained cemeteries, such as those of the Commonwealth War Graves Commission.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 7.35–7.37.
In its chapter on internal armed conflict, the manual states: “The dead must not be despoiled or ill-treated and must be decently disposed of.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.29.1.
With regard to internal armed conflicts in which the 1977 Additional Protocol II is applicable, the manual further states:
Whenever circumstances permit, and particularly after an engagement, all possible measures shall be taken without delay … to search for the dead, prevent their being despoiled and decently dispose of them.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.44.
United States of America
The US Field Manual (1956) states that parties to the conflict “shall further ensure that the dead are honourably interred”.
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 US Operational Law Handbook (1993) provides: “The Parties must ensure proper burial.”
United States, Operational Law Handbook, JA 422, Center for Law and Military Operations and International Law Division, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia 22903-1781, 1993, p. Q-185.
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:
…
(2) [1949] Geneva Convention [II] … This convention … provides for burial at sea.
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-2–I-3.
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 dead bodies of persons who are not citizens of the State concerned and died of wounds or in prison, and whose death is connected with the military operations or occupation, should be buried with the necessary respect.
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).
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 20 of the Geneva Convention II, Article 120 of the Geneva Convention III and Article 130 of the Geneva Convention IV, as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 8, are punishable offences.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Italy
Italy’s Law of War Decree (1938), as amended in 1992, provides that commanders shall take all the necessary measures “to give [the dead] an honourable burial”.
Italy, Law of War Decree, 1938, as amended in 1992, Article 94.
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.
Sri Lanka
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
54. Where a police officer or member of the armed forces has reason to believe that the death of any person may have been caused as a result of any action taken in the course of duty either by him or by any subordinate officer as the case may be, or where any person dies in police custody or military custody, the Superintendent of Police in charge of the division to which such police officer is attached or in the case of a member of the armed forces the Commanding Officer of the Unit to which he belongs … shall … [n]otwithstanding anything to the contrary to Chapter XXX [relating to inquests of deaths], and Section 9, of the Code of Criminal Procedure Act, No. 15 of 1979 [giving power to the Magistrates’ court to inquire into sudden deaths] or the provisions of any other written law for the time being in force … report the facts relating to such death to the Inspector-General of Police or the nearest Deputy Inspector-General of Police.
…
56. …
(2) The Deputy Inspector-General of Police to whom the body is handed over … may in the interest of national security or for the maintenance or preservation of public order, authorize the taking possession of and effecting the burial or cremation of the dead body in accordance with such steps as he may deem necessary in the circumstances.
…
58A. Notwithstanding the preceding provisions of this regulation, where death is caused to a police officer or a member of the armed forces, it shall be lawful for the Secretary to the Ministry of the Minister in charge of the subject of Defence, –
(a) to instruct the Inspector-General of Police or the Commander of the Sri Lanka Army, the Commander of the Sri Lanka Navy or the Commander of the Sri Lanka Air Force as the case may be, to take all such measures as may be necessary for the cremation or burial of the dead body, subject to such restrictions and conditions as he may impose in the interest of national security, or for the maintenance or preservation of public order; or
(b) to direct the Inspector-General of Police to take such steps as are set out in regulation 54 in respect of such death and accordingly the provisions of regulations 55, 56, 57 and 58 shall thereupon be applicable.
Sri Lanka, Emergency Regulations, 2005, as amended to 5 August 2008, Sections 54, 56(2) and 58A.
Venezuela
Venezuela’s Code of Military Justice (1998), as amended, punishes “those who do not take care of the burial, cremation or burial at sea of the dead”.
Venezuela, Code of Military Justice, 1998, as amended, Article 474(12).
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 … [T]he burial will be conducted in a respectful manner, conforming to religious laws, and as soon as possible.”
Israel, High Court of Justice, Barake case, Ruling, 14 April 2002, §§ 8 and 9.
Israel
In its judgment in Physicians for Human Rights v Commander of IDF Forces in the Gaza Strip in 2004, Israel’s High Court of Justice stated:
Our assumption is that the fundamental principle that the dignity of local residents must be protected, as enshrined in section 27 of the Fourth Geneva Convention, encompasses not only local residents who are living, but also the dead. Compare Fourth Geneva Convention, §130; see Pictet, at 506; see also HCJ 3436/02 The International Custodian of Terra Santa v. The Government of Israel, at 22, 25. Human dignity includes the dignity of the living and the dignity of the dead. The same applies with regard to domestic Israeli law. See CA 294/91 Jerusalem Community Jewish Burial Society v. Kestenbaum, at 464; FH HCJ 3299/93 Wikselbaum v. The Minister of Defense, at 195; CA 6024/97 Shavit v. Rishon Lezion Jewish Burial Society, at 600. “The protection of the dead and their dignity is just like the protection of the living and their dignity.” See Justice J. Türkel in HCJ 81/66 The Inspector-General of The Israel Police v. Ramla Magistrate Court Judge Mr. Baizer, at 337, 353. The military commander is duty-bound to search for and locate dead bodies. See HCJ 3117/02 The Center for the Defense of the Individual – Founded by Dr. Lota Salzberger v. The Minister of Defense, at 17, 18. After bodies are found, he is obligated to ensure that they are accorded a dignified burial. In the Barake case, which discussed the duty of the military commander regarding dead bodies during army operations, we stated:
Our starting point is that, under the circumstances, respondents are responsible for the location, identification, evacuation and burial of the bodies. This is their obligation under international law. Respondents accept this position … The location, identification, and burial of bodies are important humanitarian acts. They are a direct consequence of the principle of respect for the dead – respect for all dead. They are fundamental to our existence as a Jewish and democratic state. Respondents declared that they are acting according to this approach, and this attitude seems appropriate to us … Indeed, it is usually possible to agree on humanitarian issues. Respect for the dead is important to us all, as man was created in the image of God. All parties hope to finish the location, identification, and burial process as soon as possible. Respondents are willing to include representatives of the Red Cross and, during the identification stage after the location and evacuation stages, local authorities as well (subject to specific decision of the military commander). All agree that burials should be performed with respect, according to religious custom, in a timely manner. Id, at 15.
The army attempted to act according to these principles in the case at hand. The dead were identified and transferred to A-Najar Hospital. At both these stages the Red Cross and the Red Crescent were involved. The problem here, however, concerned burial. Respondent was obviously prepared to bury the dead, but it believed that it had discharged this duty by transferring the bodies to A-Najar Hospital. This was not the case. The duty of the respondent is to ensure a dignified burial for the bodies. To this end, he must negotiate with the local authorities, to the extent that they are functioning, and find respectful ways to carry out this duty. As is clear from the information presented to us, the main difficulty which arose was the participation of the relatives of the dead. This matter was in the power of the respondent, whose forces controlled all entrances and exits to Tel A-Sultan, and respondent was obviously limited by security considerations. Apparently, the later proposals should have been proposed earlier. The changing position of respondent indicates that it did not prepare for the situation in advance, and it improvised the proposed solutions on the spot. This should not have happened. Preparations for dealing with the dead should have been planned in advance. Clear procedures should be fixed regarding the different stages of the process. Of course, if, at the end of the day, the dead are in a hospital and their relatives refuse to bury them, they should not be forced to do so. Nevertheless, everything should be done in order to reach an agreement on this matter.
Israel, High Court of Justice, Physicians for Human Rights v. Commander of IDF Forces in the Gaza Strip, Judgment, 30 May 2004, § 27.
Algeria
The Report on the Practice of Algeria notes that during the Algerian war of independence, “Algerian soldiers on occasion buried enemy personnel who died in combat”.
Report on the Practice of Algeria, 1997, Chapter 5.1, referring to El Moudjahid, Vol. 2, p. 641.
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 during the Iran–Iraq War, that, where dead combatants cannot be returned to the relevant party, they should be buried.
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
According to the Report on the Practice of Israel, the Israel Defense Forces are sensitive to the correct and proper treatment of remains and have established detailed internal regulations and procedures concerning their burial.
Report on the Practice of Israel, 1997, Chapter 5.1.
United Kingdom of Great Britain and Northern Ireland
In 2003, in a written reply to a question in the House of Lords, the UK Parliamentary Under-Secretary of State, Ministry of Defence, stated:
The Deployed Operating Instructions issued to all United Kingdom military units state that enemy dead are to be treated the same as UK military dead. This includes a direction that, where next of kin cannot be traced, the bodies are to be given the same funeral as would UK military personnel, subject to religious practices.
United Kingdom, House of Lords, Written answer by the Parliamentary Under-Secretary of State for Defence, Hansard, 8 September 2003, Vol. 652, Written Answers, col. WA40.
Zimbabwe
In 2013, in a reply to a member of parliament, Zimbabwe’s Deputy Minister of Home Affairs stated:
[R]egarding the reburial of people who died during the war of liberation … [t]hese people’s remains were exhumed and reburied in a decent way. … [I]f [anybody] know[s] of any place where there are some people who died during the war, please come and report to [the] Ministry [of Home Affairs, which] will exhume the remains and rebury them decently.
Zimbabwe, Parliament of Zimbabwe, Oral answers by the Government to questions without notice by Members of Parliament, 10 October 2013.
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”.
UN Commission on Human Rights, Res. 2005/26, 19 April 2005, preamble, adopted without a vote.
UN Commission on Human Rights (Special Rapporteur)
In 1996, the Special Rapporteur of the UN Commission on Human Rights on Extrajudicial, Summary or Arbitrary Executions identified as a particular concern a report that the bodies of six civilians who had been beaten and summarily executed by the Papua New Guinea Defence Forces were dumped at sea from helicopters.
UN Commission on Human Rights, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report, UN Doc. E/CN.4/1996/4/Add.2, 27 February 1996, § 73.
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) noted that “interment should be carried out in an honourable fashion”.
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).
European Union
In February 1995, in a statement before the Permanent Council of the Organization for Security and Co-operation in Europe (OSCE) on the situation in Chechnya, the EU stated that the proposal to establish a “humanitarian truce” appeared essential in order to provide the victims with a decent burial.
EU, Statement by France on behalf of the EU before the Permanent Council of the OSCE, Vienna, 2 February 1995, Politique étrangère de la France, February 1995, p. 155.
No data.
No data.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “The dead shall be buried, cremated or buried at sea individually, when the tactical situation and other circumstances (e.g. hygiene) permit.”
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 512.
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 dispose of [the dead] with respect.”
Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 30 November–2 December 1990, Article 13, IRRC, No. 282, p. 335.
