Practice Relating to Rule 113. Treatment of the Dead

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:

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. 

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. 

(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. 

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. 

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. 

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. 

The individual is entitled to respect for his life, physical, mental and moral integrity and whatever is inseparable from his personality.

Examples:

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. 

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. 

- This article applies to the remains of persons

- 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. 

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- The dead must be protected and taken care of. 

“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. 

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 …

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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:

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.

c. Comment.

d. Maximum punishment. Confinement for 20 years. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

Whoever, in time of war and contrary to public international law and humanitarian conventions:

is punishable with rigorous imprisonment, or, in cases of exceptional gravity, with life imprisonment or death. 

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. 

The following offences shall be tried at the first instance by the Primary Court:

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. 

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.

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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:

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.

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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:

“The following offenses shall be triable by military commission under this chapter at any time without limitation:

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. 

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.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… 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. …

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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.

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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. …

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… 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.

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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.

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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. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

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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.

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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. …

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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].

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I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

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Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

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

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

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

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

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

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

In 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 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. 

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. 

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:

9.91 The parties to a conflict must … take measures to protect the bodies from being despoiled.

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9.103 The remains of the dead … shall be … protected against pillage and despoilment. 

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. 

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

Search for, collection, identification and burial of the dead members of the enemy armed forces as well as of other victims of armed conflicts shall be organized immediately, as soon as the situation permits, and carried out to prevent … looting (pillage of the dead bodies). 

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

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[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[:]

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

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 …

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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. 

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. 

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. 

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 –

(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:

Maximum punishment: Imprisonment for 5 years. 

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(2) A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for 17 years. 

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(2) A person (the perpetrator) commits an offence if:

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:

(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. 

Any person, military or not, who, in the area of operation of a force or a unit:

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]. 

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].

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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. 

Whoever, in time of war and contrary to public international law and humanitarian conventions:

is punishable with rigorous imprisonment, or, in cases of exceptional gravity, with life imprisonment or death. 

The offence by any person, military or not, who, in the area of operation of a force or a unit:

Every person subject to service law under this Act who –

shall be guilty of looting and liable on conviction by court-martial to imprisonment or any less punishment provided by this Act. 

Every person subject to this Act commits the offence of looting, and is liable to imprisonment … who –

A person subject to service law under this Act who-

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. 

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. 

Every person subject to military law who –

shall be guilty of looting and shall be liable on conviction by a subordinate military court to imprisonment. 

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. 

Any military or non-military person having committed the following acts in a military combat zone shall be liable to:

Any person subject to military law who –

is guilty of looting and, on conviction by court-martial, liable to imprisonment or less punishment. 

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. 

Any person subject to military law who –

shall be guilty of looting and liable, on conviction by court-martial, to imprisonment or any less punishment provided by this Act. 

Any person subject to air-force law who –

shall be guilty of looting and liable, on conviction by court-martial, to imprisonment or any less punishment provided by this Act. 

(1) A person within subsection (4) commits an offence if, without lawful excuse –

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(4) A person is within this subsection if he is –

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(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:

Any person subject to military law under this Act who –

shall be guilty of looting and liable, on conviction by court-martial, to imprisonment or any less punishment provided by this Act. 

Any member [of the Defence Forces] who –

shall be guilty of the offence of looting and liable to imprisonment or any less punishment. 

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. 

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. 

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.