Practice Relating to Rule 112. Search for and Collection of the Dead

In order to facilitate the gathering of information [regarding missing persons], each Party to the conflict shall, with respect to persons who would not receive more favourable consideration under the Conventions and this Protocol:

The cease-fire shall imply:

…

5. The possibility of recovering the remains of the dead. 

All of the protagonists to a conflict shall attempt to agree to form special teams to undertake the search, identity and recovery of their dead from a belligerent’s battlefield. This will include any arrangements for such teams to be accompanied by members of the belligerent force upon whose land they are searching. In the course of their duties search teams are deemed to be protected persons. 

9.91 The parties to a conflict must … search for the dead …

…

9.109 … All of the protagonists to a conflict shall attempt to agree to form special teams to undertake the search, identity and recovery of their dead from a belligerent’s battlefield. This will include any arrangement for such teams to be accompanied by members of the belligerent force upon whose land they are searching. In the course of their duties search teams are deemed to be protected persons. 

In case of armed conflict, the protection of persons and objects must be the first permanent concern of commanders. Thus, the first act must be to search for the victims.

An appeal to the charity of the population can be made to help National Societies such as the Red Cross or the Red Crescent collect … and even identify the dead. 

Parties to the conflict shall endeavour to reach agreements to allow teams to search for … and recover the dead from battlefield areas. They may also attach to such teams representatives of the adverse party when the search is taking place in areas controlled by the adverse party. While carrying out these duties, members of the teams shall be respected and protected. 

1. The Geneva Conventions impose certain obligations on Detaining Powers with regard to the burial and reporting of dead personnel belonging to the adverse party. [The 1977 Additional protocol I] also imposes obligations to search for the missing and to report upon the disposal of the remains of the dead.

2. As soon as possible, and certainly immediately upon the end of hostilities, each party to the conflict must search for those reported missing by the adverse party. The requests and all information, which may assist in tracing or identifying such person shall be transmitted through the Protecting Power or the Central Tracing Agency of the International Committee of the Red Cross (ICRC) or the national Red Cross Societies.

3. To facilitate the finding of missing personnel, parties to the conflict shall endeavour to reach agreements to allow teams to search for, identify and recover the dead from battlefield areas. They may also attach to such teams representatives of the adverse party when the search is taking place in areas controlled by the adverse party. While carrying out these duties, members of the teams shall be respected and protected. 

I.2.3. The dead

…

At sea, appeal can be made to the charity of certain commanders of neutral merchant vessels or other craft to collect the dead. 

To facilitate the finding of the missing personnel Parties to the conflict endeavour to reach agreement to allow teams to search for … and recover the dead from battlefield areas and may attach to such teams representatives of the adverse Party when the search is taking place in areas controlled by the adverse Party. While carrying out these duties, members of the teams shall be respected and protected. 

At all times in an armed conflict, and particularly after an engagement, parties to the conflict must take all possible measures, to the extent permitted by military requirements and taking into account the circumstances and location, in order to … search for the dead. 

At all times in an armed conflict, and particularly after an engagement, parties to the conflict must take all possible measures, to the extent permitted by military requirements and taking into account the circumstances and location, in order to:

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. 

It is therefore the responsibility that at the end of every engagement soldiers should …

…

…

[1949] Geneva Convention I article 15 stipulates that the Parties to the conflict must, at all times, particularly after an engagement, without delay, take all possible measures to[:]

…

- The bodies of the dead must be collected and protected against plundering[.]

…

- After every engagement at sea all possible measures must be taken to search for and collect the dead, wounded, sick and shipwrecked.

- Certain warships such as torpedo boats and submarines do not have sufficient space, equipment or capacity to collect the whole crew of ships they may sink. Furthermore, operational circumstances may make it impossible for warships or submarines to carry out rescue actions.

In such cases other means must be considered, for example[:]

At all times, and particularly after an engagement, the parties to a conflict must take all possible measures to search for and collect those … killed during the fighting.

Local agreements can be made between the parties to the conflict for this purpose. 

1.4.12. … As soon as the circumstances allow, all parties to an armed conflict shall … organize the search for the dead …

…

2.5.3.1. … Measures to search for [and] collect … the dead shall be organized as soon as the situation permits. 

Additional Protocol I encourages the parties to try to make arrangements for joint teams from both sides to search for, identify and recover the dead from battlefield areas, such teams to be respected and protected while carrying out those duties. 

“Whenever circumstances permit, and particularly after an engagement, all possible measures shall be taken without delay … to search for the dead …”. 

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:

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]. 

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]. 

The Ministry of Internally Displaced Persons from Occupied Territories of Georgia [shall] support IDPs in the enjoyment of their rights at temporary dwelling spaces, together with the executive authorities and local self-government bodies, who:

a citizen of Georgia or a stateless person permanently residing in Georgia, who was forced to leave his place of permanent residency and seek asylum within the territory of Georgia due to a threat to his or his relatives’ life, health and freedom, as a result of an aggression by a foreign state, an internal conflict or massive violations of human rights. 

The Ministry supports the IDPs [internally displaced persons] in [the] enjoyment of their rights in … temporary dwelling spaces[,] together with the executive authorities and local self-government bodies, who:

Internally displaced person from the occupied territory – IDP a citizen of Georgia or stateless person permanently residing in Georgia, who was forced to leave his place of permanent residency and seek asylum within the territory of Georgia due to the threat to his life, health and freedom or life, health and freedom of his family members, as a result of aggression of a foreign state, internal conflict o[r] mass violation of human rights or [a]s a result of events determined by … paragraph 11 of article 2 of this Law. 

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. 

Chapter XXV

INFRINGEMENTS UPON DUTIES AND RESPONSIBILITIES OF SERVICEMEN AND COOPERATORS WITH THE ARMY IN WARTIME

1. Servicemen, military workers and employees.

2. Reserve servicemen during training period.

3. Militia members [cooperating] with the army in wartime.

4. Citizens recruited to the army.

…

1. Any person who is responsible but deliberately abandons a wounded or dead soldier in the battlefield or fails to treat a wounded soldier and causes the missing or death of such soldier shall face a penalty of up to 03 years community [service] or 06–60 months’ imprisonment.

2. This offence committed in any of the following cases shall carry a penalty of 03–10 years’ imprisonment:

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. 

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:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

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. 

In an armed conflict where guerilla warfare is the strategy used, distinguishing between civilians and combatants is very difficult. This is precisely the reason why the Philippines have adopted the same rules for both civilians and combatants with regard to the search for and care of the wounded, sick and dead. 

Article 85 entitled “Principle of Humanity”, contained in Title IV on Operations [of the Royal Ordinances for the Armed Forces (2009)], clearly embodies the spirit of the [1949] Geneva Convention and its [1977] Additional Protocols, as it provides that “[the] … conduct [of members of the armed forces] in any conflict or military operation must conform to the applicable rules of the international treaties on international humanitarian law to which Spain is a party”.

That is further developed in Chapter VI on Ethics in Operations, which goes into specific duties under international humanitarian law … the search for the … dead. 

Also strongly condemns again the opening of fire by the Israeli army of occupation on ambulances and paramedical personnel and the practice of preventing ambulances and vehicles of the International Committee of the Red Cross from reaching the wounded and the dead in order to transport them to hospital, thus leaving the wounded bleeding to death in the streets. 

Also strongly condemns once more the Israeli army of occupation’s practices of opening fire on ambulances and paramedical personnel and preventing ambulances and vehicles of the International Committee of the Red Cross from reaching the wounded and the dead in order to transport them to hospital, thus leaving the wounded bleeding to death in the streets.