Соответствующая норма
United States of America
Practice Relating to Rule 113. Treatment of the Dead
Section A. Respect for the dead
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).
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
