Practice Relating to Rule 113. Treatment of the Dead
Geneva Convention IV
Article 16, second paragraph, of the 1949 Geneva Convention IV provides: “As far as military considerations allow, each Party to the conflict shall facilitate the steps taken … to protect [the killed] against … ill-treatment.”
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 16, second para.
Additional Protocol I
Article 34(1) of the 1977 Additional Protocol I provides: “The remains of persons who have died for reasons related to occupation or in detention resulting from occupation or hostilities … shall be respected”.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 34(1). Article 34 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.37, 24 May 1977, p. 71.
Additional Protocol II
Article 4 of the 1977 Additional Protocol II provides:
1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person [and] honour …
2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever:
…
(e) outrages upon personal dignity, in particular humiliating and degrading treatment …
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 4. Article 4 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 90
ICC Statute
Pursuant to Article 8(2)(b)(xxi) and (c)(ii) of the 1998 ICC Statute, “[c]ommitting outrages upon personal dignity” constitutes a war crime in both international and non-international armed conflicts.
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(b)(xxi) and (c)(ii).
Oxford Manual
Article 19 of the 1880 Oxford Manual provides: “It is forbidden to … mutilate the dead lying on the field of battle.”
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 19.
Cairo Declaration on Human Rights in Islam
Article 3(a) of the 1990 Cairo Declaration on Human Rights in Islam provides: “In the event of the use of force and in case of armed conflict … it is prohibited to mutilate dead bodies.”
Cairo Declaration on Human Rights in Islam, adopted at the 19th Session of the Islamic Conference of Foreign Ministers, Res. 49/19-P, Cairo, 5 August 1990, annexed to Letter dated 19 September 1990 from the permanent representative of Egypt to the UN addressed to the UN Secretary-General, UN Doc. A/45/421-S/21797, 20 September 1990, Article 3(a).
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 “desecration of the remains of those who have died in the course of the armed conflict or while under detention” 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 prevent] mutilation [the dead].”
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).
ICC Elements of Crimes
With reference to the war crime of outrages upon personal dignity, the 2000 ICC Elements of Crimes specifies that Article 8(2)(b)(xxi) and (c)(ii) of the 1998 ICC Statute also applies to dead persons.
Finalized draft text of the Elements of Crimes, adopted by the 23rd Meeting of the Preparatory Commission for the International Criminal Court, New York, 30 June 2000, Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2000/INF/3/Add.2, Addendum, 6 July 2000, as adopted by the Assembly of States Parties, First Session, 3–10 September 2002, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, UN Doc. ICC-ASP/1/3, 25 September 2002, and ICC-ASP/1/3/Corr.1, 31 October 2002, p. 29, footnote 49, and p. 35, footnote 57.
UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(b)(xxi) and (c)(ii), “[c]ommitting outrages upon personal dignity” constitutes a war crime in both international and non-international armed conflicts.
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 6(1)(b)(xxi) and (c)(ii).
Australia
Australia’s Defence Force Manual (1994) provides:
The remains of the dead, regardless of whether they are combatants, noncombatants, protected persons or civilians, are to be respected, in particular their honour, family rights, religious convictions and practices and manners and customs. At all times they shall be humanely treated.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 998.
Australia
Australia’s LOAC Manual (2006) states:
The remains of the dead, regardless of whether they are combatants, non-combatants, protected persons or civilians are to be respected, in particular their honour, family rights, religious convictions and practices and manners and customs. At all times they shall be humanely treated.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.103.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Bosnia and Herzegovina
The Instructions to the Muslim Fighter (1993) issued by the Army of Bosnia and Herzegovina (ABiH) in 1993 stated:
(c) Prisoners of war:
… Islam likewise forbids the mutilation of enemy … dead … These are general rules which are binding for our soldiers. However, if the commanding officer assesses that the situation and the general interest demand a different course of action, then the soldiers are duty-bound to obey their commanding officer.
Bosnia and Herzegovina, Instructions to the Muslim Fighter, booklet, ABiH 3rd Corps, 1993, cited in ICTY, Hadžihasanović and Others Case, Amended Indictment, 11 January 2002, § 24(c).
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “The dead must be respected in all circumstances.”
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. 85; see also Part I bis, p. 57.
Canada
Canada’s LOAC Manual (1999) provides: “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.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 9-6, § 54.
The manual considers that “mutilation or other maltreatment of dead bodies” is a war crime.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-4, § 21(a).
Canada
Canada’s Code of Conduct (2001) provides that “there is … an obligation to … protect and pay proper respect for the dead”.
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001 Rule 7, § 3.
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of the wounded, sick and shipwrecked: “The remains of all persons who have died as a result of hostilities or while in occupation or detention in relation thereto shall be respected, and their gravesites properly respected, maintained and marked.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 925.1.
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power, the manual states:
As far as military considerations permit, the belligerents must facilitate any steps to search for killed and wounded, to assist shipwrecked and other persons exposed to grave danger, and to protect them against pillage and ill-treatment.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1110.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual further states that “mutilation or other maltreatment of dead bodies” is a war crime.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1609.3.a.
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] prevent their despoliation.
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 Code of Conduct (2005) states that there is “an obligation to … protect and pay proper respect for the dead”.
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 7, § 3.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders) that “dead enemy soldiers must be treated well.”
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, Annex, Section II.
Chad
Chad’s Instructor’s Manual (2006) states that “the dead must not be attacked”.
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 93.
Ecuador
Ecuador’s Naval Manual (1989) provides that “mutilation and other mistreatment of the dead” are representative war crimes.
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, p. 6-5, § 6.2.5.
Greece
The Hellenic Territorial Army’s Internal Service Code (1984), as amended, provides: “It is forbidden for members of the armed forces: … To perform outrageous acts against the dead.”
Greece, Hellenic Territorial Army Regulation of Internal Service Code, Presidential Decree 130/1984 (Military Regulation 20-1), as amended, Article 15(b).
Israel
Israel’s Manual on the Laws of War (1998) states: “It is imperative to tend to the enemy’s wounded and dead.”
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 44.
The manual further states: “[A legal] combatant is entitled to the status of a prisoner of war, according him … protection against the abuse of dead soldiers’ bodies.”
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 46.
According to the manual, it is absolutely forbidden to abuse the corpses of the enemy’s dead.
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 61.
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:
It is absolutely forbidden to desecrate the bodies of the enemy’s fallen. Such actions do not contribute anything to the fighting and destroy the human image of both the fallen soldier and the desecrator.
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).
Netherlands
The Military Manual (1993) of the Netherlands states: “Remains must be protected.”
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VI-2
Netherlands
The Military Handbook (1995) of the Netherlands provides: “The dead must not be mutilated.”
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-37.
Netherlands
The Military Manual (2005) of the Netherlands states:
The individual is entitled to respect for his life, physical, mental and moral integrity and whatever is inseparable from his personality.
Examples:
- The physical remains of a fallen combatant are inviolable.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0224(d).
The manual further states: “Human remains must be respected and protected.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0609.
New Zealand
New Zealand’s Military Manual (1992) states: “The remains of all persons who have died as a result of hostilities, or while in occupation or detention in relation to hostilities, 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: “Among other war crimes recognised by the customary law of armed conflict are mutilation or other maltreatment of dead bodies.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1704(5).
With respect to non-international armed conflicts, the manual states that “steps must be taken to prevent … abuse” 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(1).
Nigeria
According to Nigeria’s Manual on the Laws of War, “maltreatment of dead bodies” is a war crime.
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 6.
Philippines
The Military Instructions (1989) of the Philippines states:
Respect for the dead which includes our own troops, the enemy and particularly innocent civilians must be a paramount concern of all commanders and troops at all levels … All dead bodies … must be handled humanely and treated with care and respect.
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, §§ 2 and 4.
Republic of Korea
The Republic of Korea’s Operational Law Manual (1996) states that the mutilation of dead bodies is a war crime.
Republic of Korea, Operational Law Manual, 1996, Articles 1(4) and 2.
Republic of Korea
Under the Republic of Korea’s military regulations, “injuring dead bodies” is a war crime.
Republic of Korea, Military Regulation 187, 1 January 1991, Article 4.2; Military Operations Law of War Compliance Regulation, Regulation No. 525-8, 1 November 1993, Statute 525-8 of United Nations Command/Combined Force Command (UNC/CFC), Statute of Observing Laws of War of 15 December 1988.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
i. Mutilation of bodies is prohibited.
j. The above mentioned actions shall be applied to all dead persons, whether civilian or military, own or enemy forces.
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 39.
South Africa
According to South Africa’s LOAC Manual (1996), “maltreatment of dead bodies” is a grave breach.
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 39(c).
South Africa
South Africa’s Revised Civic Education Manual (2004) provides that the “[m]altreatment of dead bodies” is a grave breach of the law of armed conflict and a war crime.
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, §§ 61(c) and 57.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Remains of Deceased (Article 34 [1977] Additional Protocol I)
- This article applies to the remains of persons
- who have died:
- for reasons related to occupation;
- in detention resulting from occupation; or
- in hostilities; and
- who are not nationals of the country in which they have died as a result of hostilities.
- The remains of and gravesites of all such persons shall be respected, maintained and marked as provided for in Article 130 of the [1949] Fourth [Geneva] Convention, where their remains or gravesites would not receive more favourable consideration under the other provisions of the Conventions and Additional Protocol I.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 107–108.
The manual also states:
Handling of War Victims
…
- The dead must be protected and taken care of.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, p. 192.
Spain
Spain’s LOAC Manual (1996) states: “The dead shall be preserved from attack.”
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).
It also states: “The dead shall be respected.” 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, § 7.5.a.
Spain
Spain’s LOAC Manual (2007) states: “The dead must be respected.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 5.2.d.(6); see also § 7.5.a.
Switzerland
Switzerland’s Basic Military Manual (1987) states that anyone who “mutilates the dead” will be punished.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Articles 194(2) and 200(f).
Ukraine
Ukraine’s IHL Manual (2004) states:
“The dead” means persons who died because of the reasons related to the conduct of hostilities. The remains of such persons, including non-citizens of the State where they died, shall be respected.
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.30.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “The dead must be protected against … maltreatment.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 380.
The manual further states that “maltreatment of dead bodies” is a war crime.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 626(b).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states: “The dead must not be … mutilated.”
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Annex A, p. 47, § 15.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) provides that the dead must be protected against maltreatment and that the mutilation of dead bodies is a war crime. The manual refers to this as a “well-established rule of customary international law”.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 7.31 and footnote 72.
In its chapter on internal armed conflict, the manual states: “The dead must not be … ill-treated.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.29.1.
United States of America
The US Field Manual (1956) provides that “maltreatment of dead bodies” is a war crime.
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, § 504(c).
United States of America
The US Instructor’s Guide (1985) states: “In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … mutilating or mistreating dead bodies”.
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, pp. 13 and 14.
United States of America
The US Naval Handbook (1995) provides that “mutilation and other mistreatment of the dead” are representative war crimes.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5.
United States of America
The US Naval Handbook (2007) states that “[m]utilation or other mistreatment of the dead” is an example of acts that could be considered war crimes.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6.
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:
(1) [1949] Geneva Convention [I] … This convention … prohibits the abuse of remains [of dead persons].
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-2–I-3.
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
INTENTIONALLY MISTREATING A DEAD BODY.
a. Text. “Any person subject to this chapter who intentionally mistreats the body of a dead person, without justification by legitimate military necessary, shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused mistreated or otherwise violated the dignity of the body of a dead person;
(2) The accused’s actions were not justified by legitimate military necessity;
(3) The accused intended to mistreat or violate the dignity of such body; and
(4) This act took place in the context of and was associated with hostilities.
c. Comment.
(1) This offense is designed to criminalize only the most serious conduct.
(2) To mistreat or otherwise violate the dignity of the body of a dead person requires severe physical desecrations, such as dismemberment, sexual or other defilement, or mutilation of dead bodies, especially if publicly displayed, that, as a result, do not respect the remains of the deceased; it does not include photography of a corpse unaccompanied by acts of severe disrespect.
(3) The term “necessary” as used in this section means “necessity.”
d. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(20), pp. IV-16 and IV-17.
Australia
Australia’s War Crimes Act (1945) states: “The expression ‘war crime’ includes the following: … cannibalism … [and] mutilation of the dead”.
Australia, War Crimes Act, 1945, Section 3(xxxiv) and (xxxv).
Australia
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “outrages upon personal dignity” of the bodies of dead persons in both international and non-international armed conflicts.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, §§ 268.58(2) and 268.74(2).
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).
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) defines war crimes with reference to the categories of crimes defined in Article 8 of the 1998 ICC Statute.
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 4.
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).
Ethiopia
Under Ethiopia’s Penal Code (1957), it is a punishable offence to “mutilate a dead person”.
Ethiopia, Penal Code, 1957, Article 287(b).
Ethiopia’s Criminal Code (2004) states:
Article 275.- Dereliction of Duty Towards the Enemy.
Whoever, in time of war and contrary to public international law and humanitarian conventions:
…
(b) mutilates a dead person; or
…
(d) orders one of the above acts,
is punishable with rigorous imprisonment, or, in cases of exceptional gravity, with life imprisonment or death.
Ethiopia, Criminal Code, 2004, Article 275.
The Criminal Code of 2004 repealed Ethiopia’s Penal Code of 1957.
Ireland
Ireland’s Geneva Conventions Act (1962), as amended 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 16 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 34(1), 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: “Commanders shall take all necessary measures to ensure respect for the bodies of enemy dead on the battlefield.”
Italy, Law of War Decree, 1938, as amended in 1992, Article 94.
Italy
Italy’s Wartime Military Penal Code (1941) provides that anyone who mutilates or commits outrages upon the body of a soldier fallen on the battlefield is guilty of a punishable offence.
Italy, Wartime Military Penal Code, 1941, Article 197.
Lithuania
Lithuania’s Criminal Code (1961), as amended in 1998, punishes outrages upon the bodies of the killed out of revenge or for terror purposes.
Lithuania, Criminal Code, 1961, as amended in 1998, Article 335.
Morocco
Morocco’s Military Justice Code (1956) states that “[a]ny individual, military or not, who, in the area of operations of a military field unit … despoils a wounded, sick or dead soldier, is punished with imprisonment”.
Morocco, Military Justice Code, 1956, Article 164.
Netherlands
The Military Criminal Code (1964), as amended in 1990, of the Netherlands provides for the punishment of persons committing violent acts against a dead person.
Netherlands, Military Criminal Code, as amended in 1990, Article 143.
New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crimes defined in Article 8(2)(b)(xxi) and (c)(ii) of the 1998 ICC Statute.
New Zealand, International Crimes and ICC Act, 2000, Section 11(2).
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.
Acts constituting the crime of genocide perpetrated against Tutsi and other crimes against humanity which are in the jurisdiction of the Primary Court
The following offences shall be tried at the first instance by the Primary Court:
Somalia
Somalia’s Military Criminal Code (1963) states:
Anyone who mutilates or disfigures the corpse of a soldier who has died in war, or who commits upon it acts of desecration or other acts of brutality or obscenity, or who steals all or part of the corpse, shall be punished by imprisonment for not less than 10 years.
Somalia, Military Criminal Code, 1963, Article 380.
Spain
Spain’s Royal Ordinance for the Armed Forces (1978) provides: “The dead shall be respected.”
Spain, Royal Ordinance for the Armed Forces, 1978, Article 140.
Switzerland
Switzerland’s Military Criminal Code (1927), as amended, punishes anyone who mutilates a dead person.
Switzerland, Military Criminal Code, 1927, as amended, Article 140(2).
Switzerland
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
Art. 110
Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
…
Art. 112c
1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:
…
e. mutilates the dead body of an enemy combatant.
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 110 and 112c (1)(e).
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “War crimes”:
Art. 264b
Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
…
Art. 264g
1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:
…
e. mutilates the dead body of an enemy combatant.
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 264b and 264g (1)(e).
United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(b)(xxi) and (c)(ii) of the 1998 ICC Statute.
United Kingdom, ICC Act, 2001, Sections 50(1) and 51(1) (England and Wales) and Section 58(1) (Northern Ireland).
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
…
“(20) INTENTIONALLY MISTREATING A DEAD BODY.—Any person subject to this chapter who intentionally mistreats the body of a dead person, without justification by legitimate military necessary [necessity], shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2009, § 950t(20).
Venezuela
Under Venezuela’s Code of Military Justice (1998), as amended, committing outrages upon the dead is considered a crime against international law.
Venezuela, Code of Military Justice, 1998, as amended, Article 474(12).
Australia
In 1945, in the Takehiko case, an Australian Military Court sentenced the accused, a Japanese soldier, for “mutilating the dead body of a prisoner of war” and for “cannibalism”.
Australia, Military Court at Wewak, Takehiko case, Judgment, 30 November 1945.
Australia
In 1946, in the Tisato case, an Australian Military Court found the accused, a Japanese soldier, guilty of “cannibalism”. The prosecution in this case alleged that several prisoners had been killed and that their flesh had been eaten.
Australia, Military Court at Rabaul, Tisato case, Judgment, 2 April 1946.
Canada
In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.”
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
Israel
In its judgment in Physicians for Human Rights v. Commander of the IDF Forces in the West Bank in 2002, Israel’s High Court of Justice stated:
Though we are unable to express a position regarding the specific events mentioned in the petition … we see fit to emphasize that our combat forces are required to abide by the rules of humanitarian law regarding the care of the wounded, the ill and bodies of the deceased.
Israel, High Court of Justice, Physicians for Human Rights v. Commander of the IDF Forces in the West Bank, Judgment, 8 April 2002.
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. In this matter, no distinction will be made between the bodies of armed combatants and the bodies of civilians.”
Israel, High Court of Justice, Barake case, Ruling, 14 April 2002, § 8.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
…
The accused’s position is stated to be that this Court has no jurisdiction to try him.
…
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
…
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
…
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
…
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
…
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
…
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
…
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
…
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
…
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
…
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
…
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
…
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
…
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
United States of America
In 1946, in the Kikuchi and Mahuchi case, a US Military Commission sentenced the accused, who were Japanese soldiers, for “bayoneting and mutilating the dead body of a United States prisoner of war”.
United States, Military Commission at Yokohama, Kikuchi and Mahuchi case, Judgment, 20 April 1946.
United States of America
In 1946, in the Yochio and Others case, a US Military Commission tried and convicted some of the accused Japanese soldiers for “preventing an honorable burial due to the consumption of parts of the bodies of prisoners of war by the accused during a special meal in the officers’ mess”. The accused were found guilty of these charges.
United States, Military Commission at the Mariana Islands, Yochio and Others case, Judgment, 2–15 August 1946.
United States of America
In its judgment in the Schmid case in 1947, the US General Military Court at Dachau found the accused, a German medical officer, guilty of maltreating the body of a deceased US airman in violation of Article 3 of the 1929 Geneva Convention. The accused had severed the head from the body of the airman, had baked it and removed the skin and flesh and had bleached the skull.
United States, General Military Court at Dachau, Schmid case, Judgment, 19 May 1947.
Azerbaijan
In 1993, the Ministry of the Interior of Azerbaijan ordered that troops “in zones of combat, during military operations … must not desecrate the remains of enemies”.
Azerbaijan, Ministry of the Interior, Command of the Troops of the Interior, Order No. 42, Baku, 9 January 1993, § 5.
Colombia
In a case before Colombia’s Council of State in 1994, the Prosecutor stated that failure to treat the bodies of dead combatants and civilians with respect constituted a violation of common Article 3 of the 1949 Geneva Conventions.
Colombia, Council of State, Case No. 9276, Concepto del Procurador Primero Delegado, 19 August 1994.
Djibouti
In 2011, in the History and Geography Textbook for 9th Grade, Djibouti’s Ministry for National Education and Vocational Training, under the heading “Ethics of Debne warriors” [inhabitants of the Dikhil region in Djibouti], stated: “Avoid any humiliation of … the dead enemy”.
Djibouti, Ministry of National Education and Vocational Training, History and Geography Textbook for 9th Grade, 2011, p. 231.
Indonesia
The Report on the Practice of Indonesia states that it is the practice of Indonesia to care for the dead.
Report on the Practice of Indonesia, 1997, Chapter 5.1.
Somalia
In 1998, an ICRC publication entitled “Spared from the Spear” recorded traditional Somali practice in warfare as follows: “The bodies of the enemy dead should not be mutilated or burned”.
Somalia, Spared from the Spear, 1998, p. 25.
The publication also described traditional Somali practice as follows: “[T]o mutilate the body of a dead person or uncover its genitals were considered to be a particularly outrageous violation of custom.”
Somalia, Spared from the Spear, 1998, p. 55.
In 2011, in its comments on the concluding observations of the Human Rights Council concerning Somalia’s report, the Transitional Federal Government of Somalia referred to “Spared from the Spear” as its “own Geneva Conventions”:
In times of hostilities, the Biri-Ma-Geydo (Spared from the Spear), i.e. Somalia’s own “Geneva Conventions”[,] which existed long before the adoption of the Hague and Geneva Conventions, mitigated and regulated the conduct of clan hostilities and the treatment of immune groups.
Somalia, Comments by the Transitional Federal Government of Somalia on the concluding observations of the Human Rights Council concerning the report of Somalia, submitted 21 September 2011, § 4.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include Article 4 providing guarantees to persons taking no active part in hostilities … due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions.
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 75.
United Kingdom of Great Britain and Northern Ireland
In 2003, in reply to a written question in the House of Lords, the UK Parliamentary Under-Secretary of State, Ministry of Defence, wrote: “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.”
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.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support … the principle that … the remains of the dead be respected and maintained”.
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 424.
Yugoslavia, Socialist Federal Republic of
In 1991, the Ministry of Defence of the Socialist Federal Republic of Yugoslavia issued a document entitled “Examples of violations of the rules of international law committed by the so-called armed forces of Slovenia”. This document included the following example: “The attitude towards dead YPA [Yugoslav People’s Army] soldiers has been absolutely uncivilized and without any trace of humanity.”
Yugoslavia, Socialist Federal Republic of, Ministry of Defence, Examples of violations of the rules of international law committed by the so-called armed forces of Slovenia, 10 July 1991, § 2(iv).
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.
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “The dead may not be attacked.”
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 230.
ICRC
In a press release issued in 1993 in the context of the conflict in Somalia, the ICRC condemned abuses committed on the remains of dead combatants of the UNOSOM II forces.
ICRC, Press Release No. 1759, Somalia: The ICRC appeals for respect for international humanitarian law, 7 October 1993, § 1.
De Zayas
Investigations following allegations concerning crimes committed against members of the armed forces fighting in Crete during the Second World War found evidence that dead German soldiers had been mutilated:
Some had their genitals mutilated, eyes put out, ears and noses cut off; others had knife wounds in the face, stomach, and back; throats were slit, and hands chopped off. The majority of these mutilations were probably defilement of dead bodies; only in a few cases does the evidence indicate that the victim was maltreated and tortured to death.
Alfred M. de Zayas, The Wehrmacht War Crimes Bureau, 1939–1945, University of Nebraska Press, 1989, pp. 156 and 157.
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 prevent [the dead] being … mutilated.”
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.
Hague Convention (X)
Article 16 of the 1907 Hague Convention (X) provides: “After every engagement, the two belligerents, so far as military interests permit, shall take steps … to protect … the dead … against pillage”.
Hague Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, The Hague, 18 October 1907, Article 16.
Geneva Convention I
Article 15, first paragraph, of the 1949 Geneva Convention I provides: “At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to … prevent [the dead from] being despoiled.”
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 15, first para.
Geneva Convention II
Article 18, first paragraph, of the 1949 Geneva Convention II provides: “After each engagement, Parties to the conflict shall, without delay, take all possible measures to … prevent [the dead from] being despoiled.”
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 18, first para.
Geneva Convention IV
Article 16, second paragraph, of the 1949 Geneva Convention IV provides: “As far as military considerations allow, each Party to the conflict shall facilitate the steps taken … to protect [the killed] against pillage”.
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 16, second para.
Additional Protocol II
Article 4 of the 1977 Additional Protocol II provides:
2. Without prejudice to the generality of the foregoing, the following acts against [all persons who do not take a direct part or who have ceased to take part in hostilities] are and shall remain prohibited at any time and in any place whatsoever:
…
(g) pillage.
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 4. Article 4 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 90.
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 … prevent [the dead from] being despoiled.”
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.
Oxford Manual
Article 19 of the 1880 Oxford Manual provides: “it is forbidden to rob … the dead lying on the field of battle.”
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 19.
UN Command Rules and Regulations
Rule 4 of the 1950 UN Command Rules and Regulations gave Military Commissions of the UN Command in Korea jurisdiction over offences including acts of marauding.
Rules of Criminal Procedure for Military Commissions of the United Nations Command, Tokyo, 22 October 1950, Rule 4.
Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 4(9) of Part IV of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines provides: “Every possible measure shall be taken, without delay, to … prevent despoliation [of the dead].”
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, Article 4(9).
Argentina
Argentina’s Law of War Manual (1969) provides that the dead shall be prevented from being despoiled.
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; 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) states: “Parties must take measures to protect the bodies from being despoiled.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 986.
It adds that the remains of the dead “must be protected against pillage and despoilment”. Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 998.
Australia
Australia’s LOAC Manual (2006) states:
9.91 The parties to a conflict must … take measures to protect the bodies from being despoiled.
…
9.103 The remains of the dead … shall be … protected against pillage and despoilment.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 9.91 and 9.103.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Field Regulations (1964) states: “It is forbidden to despoil the dead.”
Belgium, Règlement sur le Service en Campagne, Règlement IF 47, Ministère de la Défense Nationale, Etat-Major Général, Force Terrestre, Direction Supérieure de la Tactique, Direction Générale du Planning, Entraînement et Organisation, 1964, Article 24; see also 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.
The manual adds: “Only weapons, ammunition, war material and personal documents may be removed from the body.” Belgium, Règlement sur le Service en Campagne, Règlement IF 47, Ministère de la Défense Nationale, Etat-Major Général, Force Terrestre, Direction Supérieure de la Tactique, Direction Générale du Planning, Entraînement et Organisation, 1964, Article 24.
Benin
Benin’s Military Manual (1995) provides: “Combatants must prevent the dead from being despoiled.”
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule II, p. 10; see also Fascicule III, p. 5.
Burkina Faso
Burkina Faso’s Disciplinary Regulations (1994) states that it is prohibited “to despoil the dead”.
Burkina Faso, Règlement de Discipline Générale dans les Forces Armées, Décret No. 94-159/IPRES/DEF, Ministère de la Défense, 1994, Article 35(2).
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “[c]ombatants must participate in the … search for the dead and protect them from despoliation”.
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 Disciplinary Regulations (1975) states that it is forbidden “to despoil the dead”.
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 32.
Cameroon
Cameroon’s Disciplinary Regulations (2007) states: “It is prohibited to soldiers in combat: … to despoil the dead, wounded, sick and shipwrecked.
Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 32.
Canada
Canada’s LOAC Manual (1999) states that the belligerents “must … prevent [the] remains [of the dead] from being despoiled”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 9-1, § 9; see also p. 11-2, § 16.
With respect to non-international armed conflicts in particular, the manual states: “Steps must also be taken to … prevent despoliation [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 personal property of … the dead shall not be taken.”
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 8, § 2.
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of the wounded, sick and shipwrecked:
The parties to a conflict must protect the wounded, sick and shipwrecked from pillage and ill-treatment and ensure their adequate care. They must also search for the dead and prevent their remains from being despoiled.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 904.2.
Canada
Canada’s Code of Conduct (2005) states: “The personal property of … the dead shall not be taken.”
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 8, § 2.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders): “Combatants must … prevent … [the dead] from being despoiled.”
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 II, Section III, § 3.2.
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 protected against despoilment”.
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.
Central African Republic
The Central African Republic’s Disciplinary Regulations (2009) states: “During combat, it is also prohibited for servicemen to … despoil the dead”.
Central African Republic, Décret 09.411 portant règlement de discipline générale dans les Armées, Ministre de la Défense Nationale, des Anciens Combattants, des Victimes de Guerre, du Désarmement et de la Restructuration de l’Armée, 10 December 2009, Article 12(11).
Chad
Chad’s Instructor’s Manual (2006) states that “the parties to the conflict must take the measures needed to … prevent risks of [dead] bodies being stripped of goods”.
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 52; see also pp. 75 and 93.
Congo
The Congo’s Disciplinary Regulations (1986) states that, under the laws and customs of war, it is forbidden to “despoil the dead”.
Congo, Décret No. 86/057 du 14 janvier 1986 portant Règlement du Service dans l’Armée Populaire Nationale, 1986, Article 32(2).
Djibouti
Djibouti’s Disciplinary Regulations (1982) states: “It is prohibited for combatants to … despoil the dead”.
Djibouti, Décret no. 82-028/PR/DEF du 5 mai 1982 portant règlement de la discipline générale dans les Forces armées, Article 30(3).
France
France’s Disciplinary Regulations (1975), as amended, provides that, under international conventions, “it is prohibited to despoil the dead”.
France, Règlement de Discipline Générale dans les Armées, Decree No. 75-675 of 28 July 1975, replacing Decree No. 66-749, completed by Decree of 11 October 1978, implemented by Instruction No. 52000/DEF/C/5 of 10 December 1979, and modified by Decree of 12 July 1982, Ministère de la Défense, Etat-Major de l’Armée de Terre, Bureau Emploi, Article 9 bis.
Germany
Germany’s Military Manual (1992) states: “The dead are to be … prevented from being despoiled.”
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 611.
Guinea
Guinea’s Disciplinary Regulations (2012) states: “Military personnel in combat are prohibited from: … despoiling the dead and the wounded”.
Guinea, Règlement de Service dans les Forces Armées, Volume 1: Règlement de Discipline Générale (Service Regulations in the Armed Forces, Volume 1: General Discipline Regulations), 2012 edition, Ministère de la Défense Nationale, approved by Presidential Decree No. D 293/PRG/SGG/2012, 6 December 2012, Article 12(b).
Kenya
Kenya’s LOAC Manual (1997) states: “Parties to a conflict must … prevent [the dead] being despoiled.”
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 14; see also Précis No. 3, p. 11.
Lebanon
Lebanon’s Army Regulations (1971) and Field Manual (1996) prohibit pillage of the dead.
Lebanon, Règlement Général de l’Armée, No. 1/400, Ministère de la Défense, Commandement de l’Armée, 14 January 1971, § 17; Manuel de Service du Terrain dans l’Armée Libanaise, Arrêt No. 3188/A.A./Q, Département de l’Armée pour la Planification, Direction des Etudes Générales, 23 October 1996, § 8.
Madagascar
Madagascar’s Military Manual (1994) provides: “All possible measures must be taken … to prevent [the dead] being despoiled.”
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 2-T, § 22.
Mali
Mali’s Army Regulations (1979) provides that, under the laws and customs of war, it is prohibited to plunder the dead.
Mali, Règlement du Service dans l’Armée, 1ère Partie: Discipline Générale, Ministère de la Défense Nationale, 1979, Article 36.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention II, states: “After each engagement, parties to the conflict … must … prevent [the dead] from being despoiled.”
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 118.
Morocco
Morocco’s Disciplinary Regulations (1974) provides that, under the laws and customs of war, it is prohibited “to despoil the dead”.
Morocco, Règlement de Discipline Général dans les Forces Armées Royales, Dahir No. 1-74-383 du 15 rejeb 1394, 5 August 1974, Article 25(2)(6).
Netherlands
The Military Handbook (1995) of the Netherlands provides: “The property [of the dead] must not be taken or destroyed.”
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-37.
New Zealand
New Zealand’s Military Manual (1992) provides: “The Parties to a conflict are obliged … to prevent [the dead] … being looted.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1003(1).
Nigeria
Nigeria’s Manual on the Laws of War provides: “At all times and particularly after a campaign, the belligerents must immediately take measures to … prevent [the dead] being despoiled.”
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 34(c).
Peru
Peru’s IHL Manual (2004) defines “spoliation” as: “Removal of the movable property belonging to wounded, sick or shipwrecked persons, prisoners of war or the dead on the battlefield by non-violent means. Spoliation is prohibited.”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, Annex 9, Glossary of Terms.
The manual further states: “This prohibition extends to remains, ashes and graves.”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 33.a.(3); see also § 88.a.(2).
Peru
Peru’s IHL and Human Rights Manual (2010) defines “spoliation” in its Glossary of Terms as: “Removal, not necessarily through violent means, of the movable property belonging to wounded, sick or shipwrecked persons, prisoners of war or the dead on the battlefield. Spoliation is prohibited.”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, p. 404.
The manual further states: “This prohibition extends to remains, ashes and graves.”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 34(a)(1), p. 252.
The manual also states:
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:
…
(2) Search for the dead and prevent their spoliation.
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(a)(2), p. 227.
Poland
Poland’s Procedures Governing the Interment of Soldiers Killed in Action (2009) states: “In the case of an emergency burial, the following principles shall apply: … Protect the bodies from desecration and looting.”
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.
Romania
Romania’s Soldiers’ Manual (1991) provides that it is prohibited to despoil or pillage dead enemy combatants.
Romania, Manualul Soldatului, Ghid de comportare în luptă, Asociaţia Română de Drept Umanitar (ARDU), 1991, p. 9.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
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 prevent … looting (pillage of the dead bodies).
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 prevent them being despoiled.”
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.
Senegal
Senegal’s Disciplinary Regulations (1990) states that, under the laws and customs of war, it is prohibited for soldiers in combat “to despoil the dead”.
Senegal, Règlement de Discipline dans les Forces Armées, Décret 90-1159, 12 October 1990, Article 34(2).
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
It is therefore the responsibility that at the end of every engagement soldiers should …
…
c. Take necessary action to prevent the dead from being despoiled.
…
j. The above mentioned actions shall be applied to all dead persons, whether civilian or military, own or enemy forces.
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, pp. 38–39.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
2.1 Basic Categories of Persons and Objects Recognised under the LOAC [law of armed conflict]
…
d. Wounded, sick, shipwrecked, the dead and missing.
…
Search for Casualties
[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[:]
…
- search for the dead and prevent their being despoiled.
…
…
The Dead (Article 17 [1949] Geneva Convention I)
- The bodies of the dead must be collected and protected against plundering.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 52, 102, 103–104 and 106.
Spain
Spain’s LOAC Manual (1996) provides: “The dead shall not be … despoiled.”
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); see also § 7.5.a.
Spain
Spain’s LOAC Manual (2007) states: “The dead must … not be despoiled.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 5.2.d.(6); see also § 7.5.a.
Switzerland
Switzerland’s Basic Military Manual (1987) provides that it is prohibited “to despoil the … dead”.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 72; see also Lois et coutumes de la guerre, Manuel 51.7/III dfi, Armée suisse, 1984, p. 4, and Droit des gens en temps de guerre, Programme d’instruction fondé sur le Manuel 51.7/III “Lois et coutumes de la guerre”, Cours de base pour recrues de toutes les armes 97.2f, Armée suisse, 1986, p. 38.
Switzerland
Switzerland’s Aide-Memoire on the Ten Basic Rules of the Law of Armed Conflict (2005) states: “I respect civilian property. Pillaging and robbing, even of wounded or dead persons, are strictly prohibited.”
Switzerland, The Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for Organization of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Rule 6.
Togo
Togo’s Military Manual (1996) provides: “Combatants must … prevent the dead from being despoiled.”
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule II, p. 10; see also 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 prevent their pillage …
…
2.5.3.1. … Measures to search for, collect, identify and burial of the dead shall be organized as soon as the situation permits. Those measures shall be aimed at the prevention of … pillage.
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 dead must be protected against pillage”, specifying that “this is a well-established rule of customary international law”. It adds: “Belligerents must at all times, and particularly after an engagement, take all possible measures … to prevent [the dead] … being despoiled.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, §§ 380 and 381.
The manual further states:
A special class of war crime is that sometimes known as “marauding”. This consists of ranging over battlefields and following advancing or retreating armies in quest of loot, robbing … and plundering the dead – all acts done not as a means of carrying on the war but for private gain. Nevertheless, such acts are treated as violations of the law of war. Those who commit them, whether civilians who have never been lawful combatants, or persons who have belonged to a military unit, an organised resistance movement or a levée en masse, and have deserted and so ceased to be lawful combatants, are liable to be punished as war criminals. They may be tried and sentenced by the courts of either belligerent.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 636.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) provides: “Combatants are required to … prevent [the dead] being despoiled.”
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 6, p. 22, § 3; see also Annex A, p. 47, § 15.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) provides that the dead must be protected against pillage and that the looting of their property is a war crime.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 7.31.
The manual refers to this as a “well-established rule of customary international law”.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 7.31, footnote 72, and § 7.34.
In its chapter on internal armed conflict, the manual states: “The dead must not be despoiled.”
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 specifies: “Whenever circumstances permit, and particularly after an engagement, all possible measures shall be taken without delay … to … prevent [the dead] being despoiled”.
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) reproduces Article 15 of the 1949 Geneva Convention I.
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, § 216.
United States of America
The US Air Force Pamphlet (1976) refers to Article 15 of the 1949 Geneva Convention I.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 12-2(a).
United States of America
The US Instructor’s Guide (1985) states: “In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … taking and keeping … property from dead bodies”.
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, pp. 13 and 14.
United States of America
The US Operational Law Handbook (1993) states: “The LOW [law of war] requires Parties to a conflict to prevent [the] despoilment [of the dead].”
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 Annotated Supplement to the US Naval Handbook (1997) provides that the “requirement [to protect from harm and ensure the care of wounded, sick and shipwrecked] also extends to the dead and includes a requirement to prevent despoiling of the dead”.
United States, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, prepared by the Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College, Newport, Rhode Island, November 1997, § 11.4, footnote 19.
United States of America
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
INTENTIONALLY MISTREATING A DEAD BODY.
a. Text. “Any person subject to this chapter who intentionally mistreats the body of a dead person, without justification by legitimate military necessity, shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused mistreated or otherwise violated the dignity of the body of a dead person;
(2) The accused’s actions were not justified by legitimate military necessity;
(3) The accused intended to mistreat or violate the dignity of such body; and
(4) This act took place in the context of and was associated with armed conflict.
c. Comment.
(1) This offense is designed to criminalize only the most serious conduct.
(2) To mistreat or otherwise violate the dignity of the body of a dead person requires severe physical desecrations, such as dismemberment, sexual or other defilement, or mutilation of dead bodies, especially if publicly displayed, that, as a result, do not respect the remains of the deceased; it does not include photography of a corpse unaccompanied by acts of severe disrespect.
d. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(20), pp. IV-15 and IV-16.
Albania
Under Albania’s Military Penal Code (1995), “stealing on the battlefield” is an offence.
Albania, Military Penal Code, 1995, Articles 91–93.
Algeria
Under Algeria’s Code of Military Justice (1971), it is a punishable offence for a military or civilian person to steal from dead persons in the area of operation.
Algeria, Code of Military Justice, 1971, Article 287.
Armenia
Under Armenia’s Penal Code (2003), stealing objects from the dead on the battlefield is a punishable offence.
Armenia, Penal Code, 2003, Article 383.
Australia
Australia’s Defence Force Discipline Act (1982), in an article concerning looting, provides:
A person, being a defence member or a defence civilian, who, in the course of operations against the enemy, or in the course of operations undertaken by the Defence Force for the preservation of law and order or otherwise in aid of the civil authorities –
…
(b) takes any property from the body of a person killed … in those operations … is guilty of [a punishable] offence.
Australia, Defence Force Discipline Act, 1982, Section 48(1).
Australia
Australia’s Defence Force Discipline Act (1982), as amended to 2007, states:
48 Looting
(1) A person who is a defence member or a defence civilian is guilty of an offence if, in the course of operations against the enemy, or in the course of operations undertaken by the Defence Force for the preservation of law and order or otherwise in aid of the civil authorities, the person:
…
(b) takes any property from the body of a person who has been killed or from a person who has been wounded, injured or captured
…
Maximum punishment: Imprisonment for 5 years.
Australia, Defence Force Discipline Act, 1982, as amended to 2007, Division 5A, Subdivision D, § 48(1), p.56.
Australia
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to serious war crimes that are committed in the course of an international armed conflict:
268.58 War crime – outrages upon personal dignity
…
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely humiliates, degrades or otherwise violates the dignity of the body or bodies of one or more dead persons; and
(b) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.58, p. 338.
The Criminal Code Act also states with respect to war crimes that are serious violations of common Article 3 of the 1949 Geneva Conventions and are committed in the course of a non-international armed conflict:
268.74 War crime – outrages upon personal dignity
…
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely humiliates, degrades or otherwise violates the dignity of the body or bodies of one or more dead persons; and
(b) the dead person or dead persons were not, before his, her or their death, taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the dead person or dead persons were not, before his, her or their death, taking an active part in the hostilities; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
(3) To avoid doubt, a reference in this section to a person or persons who are not, or a dead person or dead persons who were not before his, her or their death, taking an active part in the hostilities includes a reference to:
(a) a person or persons who:
(i) are hors de combat; or
(ii) are civilians, medical personnel or religious personnel who are not taking an active part in the hostilities; or
(b) a dead person or dead persons who, before his, her or their death:
(i) were hors de combat; or
(ii) were civilians, medical personnel or religious personnel who were not taking an active part in the hostilities;
as the case may be.
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, §268.74, pp. 351–353.
Azerbaijan
Azerbaijan’s Criminal Code (1999) provides that “pillage of property of persons killed … on the battlefield” constitutes a war crime in international and non-international armed conflicts.
Azerbaijan, Criminal Code, 1999, Article 118.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Bosnia and Herzegovina
Under the Criminal Code (1998) of the Federation of Bosnia and Herzegovina, “the unlawful appropriation of belongings from the killed … on the battlefield” is a war crime.
Bosnia and Herzegovina, Federation, Criminal Code, 1998, Article 159(1).
The Criminal Code (2000) of the Republika Srpska contains the same provision.
Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Article 439(1).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) states:
(1) Whoever orders the unlawful appropriation of belongings from the killed … on the battlefield, or who carries out such appropriation,
shall be punished by imprisonment for a term of between six months and five years.
(2) If the criminal offence referred to in paragraph 1 of this Article has been perpetrated in a cruel manner, the perpetrator
shall be punished by imprisonment for a term of between one and ten years.
Bosnia and Herzegovina, Criminal Code, 2003, Article 178.
Botswana
Botswana’s Geneva Conventions Act (1970) provides: “Parties to the conflict, shall, without delay take all possible measures … to protect [the dead] being despoiled.”
Botswana, Geneva Conventions Act, 1970, Article 15, Schedule 1.
Bulgaria
Bulgaria’s Penal Code (1968), as amended in 1999, provides that any “person who, on the battlefield, takes away objects from … a killed person, with the intention to unlawfully appropriate them” commits a punishable crime.
Bulgaria, Penal Code, 1968, as amended in 1999, Article 405.
Burkina Faso
Under Burkina Faso’s Code of Military Justice (1994), the despoliation of the dead in the area of operations of military units is a punishable offence.
Burkina Faso, Code of Military Justice, 1994, Article 193.
Burundi
Burundi’s Military Penal Code (1980) states:
Any person, military or not, who, in the area of operation of a force or a unit:
1. Plunders a … dead person, is punished with five years’ imprisonment.
Burundi, Military Penal Code, 1980, Article 50(1).
Canada
Canada’s National Defence Act (1985) provides: “Every person who … steals from, or with intent to steal searches, the person of any person killed … in the course of warlike operations … is guilty of [a punishable] offence.”
Canada, National Defence Act, 1985, Section 77(g).
Chad
Under Chad’s Code of Military Justice (1962), taking the property of the dead on the battlefield is a criminal offence.
Chad, Code of Military Justice, 1962, Article 62.
Chile
Chile’s Code of Military Justice (1925) provides that “military personnel who plunder soldiers or auxiliary personnel dead on the battlefield of their money, jewellery or other objects, in order to appropriate them,” commits a punishable offence.
Chile, Code of Military Justice, 1925, Article 365.
Colombia
Colombia’s Penal Code (2000) imposes a criminal sanction on “anyone who, during an armed conflict, despoils a dead person”.
Colombia, Penal Code, 2000, Article 151.
Côte d’Ivoire
Côte d’Ivoire’s Penal Code (1981), as amended in 1998, punishes “whoever, in an area of military operations, despoils … a dead person”.
Côte d’Ivoire, Penal Code, 1981, as amended in 1998, Article 465.
Croatia
Under Croatia’s Criminal Code (1997), “the unlawful taking of the personal belongings of those killed on the battlefield” is a war crime.
Croatia, Criminal Code, 1997, Article 162(1).
Cuba
Cuba’s Military Criminal Code (1979) punishes “anyone who, in areas of military operations, for personal gain, despoils the money or other belongings of … the dead”.
Cuba, Military Criminal Code, 1979, Article 43(1).
Czech Republic
The Czech Republic’s Criminal Code (1961), as amended in 1999, punishes “a person who, in the area of combat, on the battlefield, in places affected by war operations or in occupied territory, … robs the war dead”.
Czech Republic, Criminal Code, 1961, as amended in 1999, Article 264(c).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
24. …
(2) Any person who unlawfully takes an object from a person killed through an act of war shall be punishable for theft.
25. (1) … 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, §§ 24(2) and 25(1).
Denmark’s Military Criminal Code (2005) provides:
36. …
(2) 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].
…
38. (1) Any person who deliberately during armed conflict unlawfully takes an object from a person killed through an act of war shall be punished for robbery from a dead body with imprisonment for up to 18 months.
(2) The punishment can be extended to six years’ imprisonment when the crime is of a particularly grave nature, mainly because of the extent or the method.
Denmark, Military Criminal Code, 2005, §§ 36(2) and 38.
Egypt
Under Egypt’s Penal Code (1937), the theft of property belonging to a dead combatant … in zones of military operations, “even if he is an enemy”, is an offence.
Egypt, Penal Code, 1937, Article 317(9).
Egypt
Egypt’s Military Criminal Code (1966) punishes “any person who, in an area of military operations, steals from a dead … soldier, even if he is an enemy”.
Egypt, Military Criminal Code, 1966, Article 136.
The provision applies both to the military and to civilians. Egypt, Military Criminal Code, 1966, Articles 123 and 136.
El Salvador
El Salvador’s Code of Military Justice (1934) punishes “the soldier who despoils his comrade-in-arms, killed on the battlefield, of the money or jewellery carried with him, and appropriates it for himself”.
El Salvador, Code of Military Justice, 1934, Article 71.
Ethiopia
Under Ethiopia’s Penal Code (1957), “whoever, in time of war and contrary to public international law and humanitarian conventions, … lays hands on or does violence to a … dead enemy on the field of battle, with intent to rob or plunder him” commits a punishable offence against the law of nations.
Ethiopia, Penal Code, 1957, Article 287(c).
Ethiopia’s Criminal Code (2004) states:
Article 275.- Dereliction of Duty Towards the Enemy.
Whoever, in time of war and contrary to public international law and humanitarian conventions:
…
(c) lays hands on or does violence to a … dead enemy on the field of battle, with intent to rob or plunder him; or
(d) orders one of the above acts,
is punishable with rigorous imprisonment, or, in cases of exceptional gravity, with life imprisonment or death.
Ethiopia, Criminal Code, 2004, Article 275.
The Criminal Code of 2004 repealed Ethiopia’s Penal Code of 1957.
France
Under France’s Code of Military Justice (1982), “any individual, military or not, who, in the area of operation of a force or a unit, … plunders a … dead person” commits a punishable offence.
France, Code of Military Justice, 1982, Article 428.
France
France’s Code of Military Justice (2006) states:
Pillage
The offence by any person, military or not, who, in the area of operation of a force or a unit:
1. Plunders a … dead person, is punished with ten years’ imprisonment.
France, Code of Military Justice, 2006, Article L. 322-6.
France
France’s Penal Code (1992), as amended in 2010, states in its section on war crimes common to both international and non-international armed conflicts: “Unless they are justified by military necessity, the following offences committed against a person protected by the law of armed conflict constitute … war crimes: … [s]tealing [or] extorting … objects”.
France, Penal Code, 1992, as amended in 2010, Article 461-16.
Gambia
The Gambia’s Armed Forces Act (1985) provides that “every person subject to this Act who … steals from or with intent to steal searches, the person of any person killed … in the course of war-like operations” commits a punishable offence.
Gambia, Armed Forces Act, 1985, Section 40(g).
Georgia
Under Georgia’s Criminal Code (1999), “pillage, i.e. seizure in a combat situation of things which are on a dead person,” is a crime.
Georgia, Criminal Code, 1999, Article 413(a).
Ghana
Ghana’s Armed Forces Act (1962) provides that “every person subject to the Code of Service Discipline who … steals from or with the intent to steal searches, the person of any person killed … in the course of warlike operations” commits a punishable offence.
Ghana, Armed Forces Act, 1962, Section 18(g).
Guinea
Guinea’s Criminal Code (1998) provides that “whoever, in an area of military operation, plunders a … dead person” commits a punishable offence.
Guinea, Criminal Code, 1998, Article 570.
Guinea
Guinea’s Code of Military Justice (2011) states: “Any person who despoils a … dead person in an area of military operations, shall be punished with 1 to 5 years’ imprisonment.”
Guinea, Code of Military Justice, 2011, Articles 112 and 149.
Hungary
Under Hungary’s Criminal Code (1978), as amended in 1998, “the person who loots the dead … on the battlefield” is guilty, upon conviction, of a war crime.
Hungary, Criminal Code, 1978, as amended in 1998, Section 161.
Indonesia
Indonesia’s Military Penal Code (1947) provides that “those who commit theft from dead bodies” commit a punishable offence.
Indonesia, Military Penal Code, 1947, Article 143.
Iraq
Iraq’s Military Penal Code (1940) provides: “Every person who, with the intent to appropriate for himself or unjustifiably, takes money or other things from the killed in the field of battle … shall be punished.”
Iraq, Military Penal Code, 1940, Article 115(a).
Iraq’s Military Penal Code (2007) provides: “Whosoever, with the intent of unlawful possession, seizes monies or possessions of persons murdered on the battlefield … is punishable with imprisonment for (15) fifteen years.”
Iraq, Military Penal Code, 2007, Article 61(10).
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 15 of the Geneva Convention I, Article 18 of the Geneva Convention II and Article 16 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).
Islamic Republic of Iran
The Islamic Republic of Iran’s Army Penal and Procedure Code (1939) states that “anyone who robs … [a] dead person within the domain of military-army operations will be sentenced to solitary imprisonment from two to 10 years”.
Islamic Republic of Iran, Army Penal and Procedure Code, 1939, Article 384.
Italy
Italy’s Wartime Military Penal Code (1941) provides that anyone who despoils a cadaver on the battlefield for private purposes is guilty of a punishable offence.
Italy, Wartime Military Penal Code, 1941, Article 197.
Kazakhstan
Under Kazakhstan’s Penal Code (1997), “theft of objects belonging to the dead … on the battlefield” is a punishable offence.
Kazakhstan, Penal Code, 1997, Article 385.
Kenya
Under Kenya’s Armed Forces Act (1968), anyone who steals from the person of the dead commits a punishable offence.
Kenya, Armed Forces Act, 1968, Section 23.
Latvia
Under Latvia’s Criminal Code (1998), the pillage of persons killed on the battlefield is a punishable offence.
Latvia, Criminal Code, 1998, Section 74; see also Section 71 (deliver children on a compulsory basis from one group of people into another as a part of a genocide campaign).
Lebanon
Lebanon’s Code of Military Justice (1968) provides that “any person, military or not, who, in an area of military operations, despoils a … dead person” commits a punishable offence.
Lebanon, Code of Military Justice, 1968, Article 132.
Lithuania
Under Lithuania’s Criminal Code (1961), as amended in 1998, “an order to plunder or seize things from fallen … victims on the battlefield” is a war crime.
Lithuania, Criminal Code, 1961, as amended in 1998, Article 341.
Malaysia
Malaysia’s Armed Forces Act (1972) provides:
Every person subject to service law under this Act who –
(a) steals from, or with intent to steal searches, the person of anyone killed … in the course of warlike operations …
shall be guilty of looting and liable on conviction by court-martial to imprisonment or any less punishment provided by this Act.
Malaysia, Armed Forces Act, 1972, Section 46(a).
Mali
Under Mali’s Code of Military Justice (1995), “anyone who despoils a … dead person” commits a punishable offence.
Mali, Code of Military Justice, 1995, Article 134(1).
Netherlands
Under the Military Criminal Code (1964), as amended in 1990, of the Netherlands, “theft from a dead … person, who belongs to one of the parties to the conflict” is a criminal offence.
Netherlands, Military Criminal Code, 1964, as amended in 1990, Article 156.
New Zealand
New Zealand’s Armed Forces Discipline Act (1971) provides:
Every person subject to this Act commits the offence of looting, and is liable to imprisonment … who –
(a) Steals from, or with intent to steal searches, the person of anyone killed … in the course of any war or warlike operations in which New Zealand is engaged, or killed … in the course of operations undertaken by any service of the Armed Forces for the preservation of law and order or otherwise in aid of the civil power.
New Zealand, Armed Forces Discipline Act, 1971, Section 31(a).
Nicaragua
Nicaragua’s Military Penal Law (1980) punishes “anyone who, in military operations, steals, for personal gain, the money or other belongings of … the dead”.
Nicaragua, Military Penal Law, 1980, Article 81.
Nicaragua
Nicaragua’s Military Penal Code (1996) provides for the punishment of the soldier who, in the zone of operations, “despoils a dead person … of his or her clothes or other personal effects”.
Nicaragua, Military Penal Code, 1996, Article 56(1).
Nigeria
Nigeria’s Armed Forces Act (1993), as amended in 1994, states:
A person subject to service law under this Act who-
(a) steals from, or with intent to steal, searches the body of a person killed … in the course of war-like operations, or killed … in the course of [an] operation undertaken by any service of the Armed Forces for the preservation of law and order or otherwise in aid of the civil authorities; or
…
is guilty of looting and liable, on conviction by a court-martial, to imprisonment for a term not exceeding seven years or any less punishment provided by this Act.
Nigeria, Armed Forces Act, 1993, as amended in 1994, Article 51(a).
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.
Republic of Korea
Under the Republic of Korea’s Military Criminal Code (1962), “a person who takes the clothes and other property of the dead … in the combat area” commits a punishable offence.
Republic of Korea, Military Criminal Code, 1962, Article 82.
Republic of Moldova
Under the Republic of Moldova’s Penal Code (2002), “pillage of the dead on the battlefield” is a punishable offence.
Republic of Moldova, Penal Code, 2002, Article 389.
Romania
Romania’s Penal Code (1968) criminalizes “robbing the dead … on the battlefield of objects they possess”.
Romania, Penal Code, 1968, Article 350.
Serbia
Serbia’s Criminal Code (2005) states: “Whoever orders the unlawful appropriation of objects from the dead … on the battlefield, or who commits such an offence, shall be punished by imprisonment of [from] one to five years.”
Serbia, Criminal Code, 2005, Article 379.
Singapore
Singapore’s Armed Forces Act (1972), as amended in 2000, provides:
Every person subject to military law who –
(a) steals from or, with intent to steal, searches the person of anyone killed … in the course of warlike operations, or killed … in the course of operations undertaken by the Singapore Armed Forces for the preservation of law and order or otherwise in aid of the civil authorities …
shall be guilty of looting and shall be liable on conviction by a subordinate military court to imprisonment.
Singapore, Armed Forces Act, 1972, as amended in 2000, Section 18(a).
Slovakia
Slovakia’s Criminal Code (1961), as amended, punishes “a person who in the area of combat, on the battlefield, in places affected by war operations or in the occupied territory … robs the war dead”.
Slovakia, Criminal Code, 1961, as amended, Article 264(c).
Slovenia
Under Slovenia’s Penal Code (1994), plundering or ordering the plunder of the belongings of casualties on the battlefield is a war crime.
Slovenia, Penal Code, 1994, Article 380(1).
Somalia
Somalia’s Military Criminal Code (1963) states:
1. Anyone who, on the battlefield and for the purpose of profiting therefrom, plunders a corpse or steals money or precious objects from it shall be punished by imprisonment for 5 to 15 years.
2. If the act is committed by several people acting in concert, the penalty shall be increased by one third to one half.
Somalia, Military Criminal Code, 1963, Article 381.
Spain
Under Spain’s Military Criminal Code (1985), “the military personnel who … strip a cadaver … of his personal effects in the area of operations, with the intent to appropriate them,” commit punishable offences against the laws and customs of war.
Spain, Military Criminal Code, 1985, Article 77(2).
Spain
Under Spain’s Penal Code (1995), “anyone who, on the occasion of an armed conflict … strips a cadaver … of his personal effects” commits a punishable “offence against protected persons and objects in the event of armed conflict”.
Spain, Penal Code, 1995, Article 612(7).
Spain
Spain’s Royal Ordinances for the Armed Forces (2009) states: “Whenever circumstances for the accomplishment of the mission and the security of the unit permit, [members of the armed forces] must take, without delay, all possible measures to … prevent despoliation [of the dead]”.
Spain, Royal Ordinances for the Armed Forces, 2009, Article 108.
Switzerland
Switzerland’s Military Criminal Code (1927), as amended, punishes anyone who, on the battlefield, despoils dead persons.
Switzerland, Military Criminal Code, 1927, as amended, Article 140(1).
Switzerland
Switzerland’s Military Criminal Code (1927), as amended in 2007, states that “any person who has mutilated a dead enemy is to be punished with three years’ or more imprisonment or a monetary penalty or, in less serious cases, a year imprisonment or less”.
Switzerland, Military Criminal Code, 1927, as amended in 2007, Article 111.
The manual further states: “Any person who, on the battlefield, has laid his or her hands on a dead person … with the intention to steal, is to be punished with a year imprisonment or less.”
Switzerland, Military Criminal Code, 1927, as amended in 2007, Article 139.
Syrian Arab Republic
The Syrian Arab Republic’s Military Penal Code (1950) provides:
Any military or non-military person having committed the following acts in a military combat zone shall be liable to:
A - Provisional arrest if he pillages a … dead military person.
B - Capital punishment if he causes additional injury to a … dead military person through the use of violence in order to pillage him.
Syrian Arab Republic, Military Penal Code, 1950, Article 132.
Tajikistan
Tajikistan’s Criminal Code (1998) punishes “pillage, i.e. seizure in a combat situation of things which are on the dead”.
Tajikistan, Criminal Code, 1998, Article 405.
Togo
Under Togo’s Code of Military Justice (1981), taking the property from the dead on the battlefield is a criminal offence.
Togo, Code of Military Justice, 1981, Article 95.
Trinidad and Tobago
Trinidad and Tobago’s Defence Act (1962), as amended in 1979, contains a section on “looting” which states:
Any person subject to military law who –
(a) steals from, or with intent to steal searches, the person of anyone killed … in the course of warlike operations …
is guilty of looting and, on conviction by court-martial, liable to imprisonment or less punishment.
Trinidad and Tobago, Defence Act as amended, 1962, Section 40(a).
Turkey
Under Turkey’s Military Penal Code (1930), stealing from the dead on the battlefield is an offence punishable by imprisonment.
Turkey, Military Penal Code, 1930, § 127.
Uganda
Uganda’s National Resistance Army Statute (1992) states:
A person subject to military law who … steals from or with intent to steal, searches the person or any person killed … in the course of war-like operations … commits an offence and shall on conviction, be liable to … imprisonment.
Uganda, National Resistance Army Statute, 1992, Section 35(f).
Ukraine
Pursuant to Ukraine’s Criminal Code (2001), “stealing belongings of the dead … on a battlefield” is a war crime.
Ukraine, Criminal Code, 2001, Article 432.
United Kingdom of Great Britain and Northern Ireland
The UK Army Act (1955), as amended in 1971, provides:
Any person subject to military law who –
(a) steals from, or with intent to steal searches, the person of anyone killed … in the course of warlike operations, or killed … in the course of operations undertaken by Her Majesty’s forces for the preservation of law and order or otherwise in aid of the civil authorities …
shall be guilty of looting and liable, on conviction by court-martial, to imprisonment or any less punishment provided by this Act.
United Kingdom, Army Act, 1955, as amended in 1971, Section 30(a).
United Kingdom of Great Britain and Northern Ireland
The UK Air Force Act (1955), as amended in 1971, provides:
Any person subject to air-force law who –
(a) steals from, or with intent to steal searches, the person of anyone killed … in the course of warlike operations, or killed … in the course of operations undertaken by Her Majesty’s forces for the preservation of law and order or otherwise in aid of the civil authorities …
shall be guilty of looting and liable, on conviction by court-martial, to imprisonment or any less punishment provided by this Act.
United Kingdom, Air Force Act, 1955, as amended in 1971, Section 30(a).
United Kingdom of Great Britain and Northern Ireland
The UK Armed Forces Act (2006) states:
4 Looting
(1) A person within subsection (4) commits an offence if, without lawful excuse –
(a) he takes any property from a person who has been killed, injured, captured or detained in the course of an action or operation of any of Her Majesty’s forces or of any force co-operating with them; or
(b) he searches such a person with the intention of taking property from him.
…
(4) A person is within this subsection if he is –
(a) a person subject to service law; or
(b) a civilian subject to service discipline.
United Kingdom, Armed Forces Act, 2006, Section 4.
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
…
(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
…
(20) INTENTIONALLY MISTREATING A DEAD BODY.—Any person subject to this chapter who intentionally mistreats the body of a dead person, without justification by legitimate military necessity, shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2629, § 950v(b)(20).
Uruguay
Uruguay’s Military Penal Code (1943), as amended, punishes “the spoliation of … the dead in combat”.
Uruguay, Military Penal Code, 1943, as amended, Article 58(10).
Venezuela
Under Venezuela’s Code of Military Justice (1998), as amended, it is a crime against international law to plunder a dead person.
Venezuela, Code of Military Justice, 1998, as amended, Article 474(12).
Viet Nam
Viet Nam’s Penal Code (1990) punishes “anyone who steals things from … remains of soldiers dead on the battlefield”.
Viet Nam, Penal Code, 1990, Article 271(2).
Viet Nam
Viet Nam’s Penal Code (1999) provides for the punishment of anyone “who appropriate[s] relics of war dead”.
Viet Nam, Penal Code, 1999, § 336.4.
Yemen
Under Yemen’s Military Criminal Code (1998), “any person who … despoils … a dead person” commits a war crime.
Yemen, Military Criminal Code, 1998, Article 20.
Yugoslavia, Socialist Federal Republic of
Under the Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, ordering or executing the unlawful seizure of belongings from the killed on the battlefield is a war crime.
Yugoslavia, Socialist Federal Republic of, Penal Code, 1976, as amended in 2001, Article 147(1).
Zambia
Zambia’s Defence Act (1964), as amended, states:
Any person subject to military law under this Act who –
(a) steals from or with intent to steal searches the person of anyone killed … in the course of warlike operations …
shall be guilty of looting and liable, on conviction by court-martial, to imprisonment or any less punishment provided by this Act.
Zambia, Defence Act, 1964, as amended, Section 35(a).
Zimbabwe
Zimbabwe’s Defence Act (1972), as amended to 1993, provides:
Any member [of the Defence Forces] who –
(a) steals from or with intent to steal searches the person of anyone killed … in the course of warlike operations …
shall be guilty of the offence of looting and liable to imprisonment or any less punishment.
Zimbabwe, Defence Act, 1972, as amended to 1993, First Schedule, Section 11(a).
United States of America
In its judgment in the Pohl case in 1947, the US Military Tribunal at Nuremberg stated:
Robbing the dead, even without the added offence of killing, is and always has been a crime. And when it is organized and planned and carried out on a hundred-million mark scale, it becomes an aggravated crime, and anyone who takes part in it is a criminal.
United States, Military Tribunal at Nuremberg, Pohl case, Judgment, 3 November 1947.
Somalia
In 1998, an ICRC publication entitled “Spared from the Spear” recorded traditional Somali practice in warfare as follows: “The body of a man who is killed should not be searched for gain and any property that he had with him should not be confiscated”.
Somalia, Spared from the Spear, 1998, p. 25.
In 2011, in its comments on the concluding observations of the Human Rights Council concerning Somalia’s report, the Transitional Federal Government of Somalia referred to “Spared from the Spear” as its “own Geneva Conventions”:
In times of hostilities, the Biri-Ma-Geydo (Spared from the Spear), i.e. Somalia’s own “Geneva Conventions”[,] which existed long before the adoption of the Hague and Geneva Conventions, mitigated and regulated the conduct of clan hostilities and the treatment of immune groups.
Somalia, Comments by the Transitional Federal Government of Somalia on the concluding observations of the Human Rights Council concerning the report of Somalia, submitted 21 September 2011, § 4.
United Kingdom of Great Britain and Northern Ireland
A training video on IHL produced by the UK Ministry of Defence illustrates the rule that “stealing from a dead soldier is illegal and also a court martial offence”.
United Kingdom, Ministry of Defence, Training Video: The Geneva Conventions, 1986, Report on UK Practice, 1997, Chapter 2.3.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992) stated: “The Geneva Conventions require parties to a conflict … to prevent [the] bodies and remains [of the dead] from being despoiled.”
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, Annex Summaries and Conclusions, UN Doc. S/1994/674/Add.2 (Vol. I), 31 May 1995, § 503(b).
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “the dead may not be … despoiled”.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 230.
De Zayas
According to German investigations following allegations of crimes committed against members of armed forces in Crete in May 1941, it appeared that:
Dead … soldiers were robbed and deprived of parts of their clothing, primarily by the civilian population …
From these investigations it appears that … the maltreatment of soldiers [was] committed almost exclusively by Cretan civilians. In some cases survivors observed that civilians fell upon dead soldiers [and] robbed them.
Alfred M. de Zayas, The Wehrmacht War Crimes Bureau, 1939–1945, University of Nebraska Press, 1989, pp. 156–157.
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 prevent [the dead] being despoiled.”
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.
