Section F. Respect for and maintenance of graves
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.
Geneva POW Convention
Article 76, third paragraph, of the 1929 Geneva POW Convention provides that belligerents shall ensure that the graves of prisoners of war are “treated with respect and suitably maintained”.
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.
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.
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.
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 respected [and] maintained … 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, … [they] shall conclude agreements in order:
(b) to protect and maintain such gravesites permanently;
3. In the absence of [such] agreements … and if the home country of such deceased is not willing to arrange at its expense for the maintenance of such gravesites, the High Contracting Party in whose territory the gravesites are situated may offer to facilitate the return of the remains of the deceased to the home country. Where such an offer has not been accepted the High Contracting Party may, after the expiry of five years from the date of the offer and upon due notice to the home country, adopt the arrangements laid down in its own laws relating to cemeteries and graves.
Agreement on Ending the War and Restoring Peace in Viet-Nam
Article 8(b) of the 1973 Agreement on Ending the War and Restoring Peace in Viet-Nam contained provisions requiring the parties to take care of the graves of the dead so as to facilitate the exhumation and repatriation of the remains.
Argentina’s Law of War Manual (1969) provides that graves shall be “respected … and properly maintained”.
Australia’s Defence Force Manual (1994) provides that the graves of the deceased “shall be respected”.
Australia’s LOAC Manual (2006) states that, for the deceased, “their graves [shall be] respected”.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Burundi’s Regulations on International Humanitarian Law (2007) states that “[t]he graves must be respected [and] properly maintained”.
Canada’s LOAC Manual (1999) states that the grave sites of all persons who have died as a result of hostilities or while in occupation or detention in relation thereto shall be “properly respected [and] maintained”.
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’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.”
Chad’s Instructor’s Manual (2006) states: “The graves of the dead must be respected and maintained.”
Croatia’s LOAC Compendium (1991) provides that one of the requirements after a conflict is to “respect … and maintain gravesites”.
France’s LOAC Manual (2001) reproduces Article 17 of the 1949 Geneva Convention I.
Hungary’s Military Manual (1992) provides that one of the requirements after a conflict is to “respect … and maintain gravesites”.
Israel’s Manual on the Laws of War (1998) states that the Israel Defense Forces (IDF) maintain “a cemetery in the north for the interment of the bodies of terrorists killed in clashes with the IDF”.
Israel’s Manual on the Rules of Warfare (2006) states: “The IDF [Israel Defense Forces] maintains a cemetery where the bodies are laid to rest of terrorists killed in skirmishes with the IDF.”
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Mexico’s Army and Air Force Manual (2009) states that a “series of rules [included in the 1977 Additional Protocol I] concerns the duty to … conserve the remains of the dead.”
The Military Manual (1993) of the Netherlands provides: “Graves must be properly maintained.”
The Military Manual (2005) of the Netherlands states: “The graves must be respected and maintained.”
New Zealand’s Military Manual (1992) provides that the grave sites of the dead shall be “properly respected, maintained and marked”.
Peru’s IHL Manual (2004) states: “The gravesites of the dead must be respected and properly maintained, wherever they are.”
Peru’s IHL and Human Rights Manual (2010) states: “The gravesites of the dead must be respected and properly maintained, wherever they are.”
The Russian Federation’s Regulations on the Application of IHL (2001) provides:
Gravesites and individual graves shall be located in open and dry areas (public gardens, squares, forest and grove edgings, road crossings). After proper recording, gravesites (graves) shall be conveyed by record to the local authorities or military commandants who shall henceforth be responsible for their maintenance.
South Africa’s LOAC Teaching Manual (2008) states:
- 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.
- These provisions shall likewise apply to the ashes, which shall be kept by the Graves Registration Service until proper disposal thereof in accordance with the wishes of the home country.
Remains of Deceased (Article 34  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  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:
- protect and maintain such gravesites permanently[.]
Spain’s LOAC Manual (1996) provides: “The graves of the dead shall be respected and properly maintained, wherever they are located.”
Spain’s LOAC Manual (2007) states: “The gravesites of the dead must be respected and properly maintained, wherever they are.”
Switzerland’s Basic Military Manual (1987) provides that “graves shall be respected” and “properly maintained”.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides: “Graves must be respected and properly maintained.”
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 and should, if possible, be grouped according to the nationality of the deceased. 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:
a. The permanent protection and maintenance of grave sites;
b. Access to those grave sites by relatives of the deceased and the representatives of the official graves registration services;
c. The return of remains of the deceased to the home state on that state’s request or, unless that state objects, on the request of the next of kin.
7.36.1. In the absence of agreements relating either to protection and maintenance of grave sites or for the return of the deceased, the authorities of the territory in which the grave sites are situated may (a) offer to facilitate the return of the remains to the home state; and (b) if such an offer is not accepted within five years from the date of the offer, and after due notice, adopt arrangements for dealing with such remains in accordance with their own domestic laws relating to cemeteries and graves.
United States of America
The US Field Manual (1956) provides that the graves of the dead “are respected [and] properly maintained”.
United States of America
The Annotated Supplement to the US Naval Handbook (1997) requires that “as soon as circumstances permit, arrangement be made to … protect and maintain such sites permanently”.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) provides that the graves of the deceased shall be respected.
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) provides that “the places of burial of [the dead] are respected”.
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.
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’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].
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.
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.
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  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 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
[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
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support … the principle … to maintain [grave] sites permanently”.
UN General Assembly
In a resolution adopted in 2007 on certain practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance, the UN General Assembly:
at recurring attempts to desecrate or demolish monuments erected in remembrance of those who fought against Nazism during the Second World War, as well as to unlawfully exhume or remove the remains of such persons, and urges States in this regard to fully comply with their relevant obligations, inter alia, under article 34 of Additional Protocol I to the Geneva Conventions of 1949.
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, with respect to its investigation into mass graves, that the graves of victims should be maintained.
International Conference of the Red Cross (1973)
The 22nd International Conference of the Red Cross in 1973 adopted a resolution on the missing and dead in armed conflicts in which it called on parties to armed conflicts “during hostilities and after cessation of hostilities, to help locate and care for the graves of the dead”.
Inter-American Court of Human Rights
In the Neira Alegría and Others case
in 1995, the Government of Peru informed the Inter-American Court of Human Rights that a certain cemetery under discussion was official and permanent in nature, and that the bodies of persons who died as a result of disproportionate use of force in putting down a prison mutiny would not therefore be moved except in accordance with regulations on the subject and at the request of an interested party.
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “gravesites of deceased persons shall be respected and maintained, wherever located”.
In 1996, in the context of the conflict in Bosnia and Herzegovina, Amnesty International called for the Implementation Force in Bosnia and Herzegovina (IFOR) to protect mass grave sites.