Section D. Identification of the dead after disposal
Geneva Convention (1929)
Article 4, sixth paragraph, of the 1929 Geneva Convention provides:
[A]t the commencement of hostilities, [the belligerents] shall organize officially a graves registration service, to render eventual exhumations possible, and to ensure the identification of bodies whatever may be the subsequent site of the grave.
Geneva Convention I
Article 17, third paragraph, of the 1949 Geneva Convention I provides that parties to the conflict “shall organize at the commencement of hostilities an Official Graves Registration Service, to allow subsequent exhumation and to ensure the identification of bodies, whatever the site of the graves”.
Additional Protocol I
According to Article 34(4) of the 1977 Additional Protocol I, exhumation is allowed only where it is “a matter of overriding public necessity, including cases of investigative necessity”.
Plan of Operation of the Joint Commission to Trace Missing Persons and Mortal Remains
Proposal 1.2 of the 1991 Plan of Operation for the Joint Commission to Trace Missing Persons and Mortal Remains in the context of the former Yugoslavia provides: “At the request of the party on which the deceased depend, the parties to the conflict shall … allow the identification of the [mortal remains of the] deceased by the adverse party.” Proposal 1.3 provides: “By mutual agreement, the parties may decide on the participation of foreign medical experts in identifying the deceased.”
Argentina’s Law of War Manual (1969) provides: “An official Graves Registration Service must be established from the commencement of hostilities in order to allow possible exhumations, to ensure the identity of the bodies.”
Australia’s Defence Force Manual (1994) states that the graves “are to be correctly marked to allow future exhumation”.
Australia’s LOAC Manual (2006) states that the graves of the deceased “are to be correctly marked to allow future exhumation”.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Burundi’s Regulations on International Humanitarian Law (2007) states concerning the burial of dead combatants: “One half of the metal identity disc must remain with the body while the other must be retrieved.”
Cameroon’s Instructor’s Manual (2006), under the heading “The Dead”, states: “The identity cards and discs [of deceased persons] must be retained. In the case of double [identity] discs, one half must remain with the body.”
The manual also states that “[t]he dead … may be incinerated after identification, and their ashes must be repatriated at the same time as their identity cards or discs”.
The Military Manual (2005) of the Netherlands states: “One half of the double identity disc (or the whole of a single disc) must remain attached to the body.”
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: … Facilitate the exhumation and identification of bodies”.
The Procedures further states: “When selecting the burial site and digging the graves, the aim should be to ensure that: … [they] are laid out in such a way as to facilitate the exhumation and identification of bodies.”
The Procedures also states: “Civilian members of the armed forces who had not participated in hostilities shall be buried in line with procedures established for the burial of the bodies of soldiers.”
The Procedures further states:
The bodies of persons whose identity cannot be verified shall be buried in the same way as unidentified bodies. … In the place where the name and surname of the fallen or deceased person is recorded, the word “unknown” shall be written …
If information is available that could help to identify the body, it shall be noted down as accurately as possible. This information should refer to the physical characteristics of the fallen or deceased person, such as their gender, estimated age, height, dentition, etc., as well as a description of the numbers and insignia on their uniform, the equipment the deceased had carried and any vehicles they would have driven (in combat).
Detailed information shall also be provided on the location of the grave and, if circumstances permit, fingerprints shall be taken from the deceased.
The Procedures also states: “If it is not possible to establish the personal details of the deceased, their personal effects, and half of their identity tag shall be sent to the Records Office.”
Ukraine’s IHL Manual (2004) states: “One half of the double identity disc, or the identity disc itself if it is a single disc, should remain on the body either during burial or cremation.”
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides:
Graves Registration Services must be officially established at the outbreak of hostilities, to allow of exhumations and to ensure the identification of the bodies and their possible transportation to the home country.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
7.33. Where the deceased is in possession of two identity discs, one disc should remain on the body and the other should be sent with his personal effects to the information bureau. If the deceased was in possession of only one identity disc, that disc should remain on the body.
7.37 Exhumation is permitted only (a) in accordance with an agreement on the matters dealt with in paragraph 7.36 [relating to respect for and maintenance of graves]; or (b) in accordance with overriding public necessity (which may include “medical or investigative necessity”). In such circumstances, the authorities of the territory in which the grave sites are situated are required to respect the remains and to give notice to the home state of the intended exhumation together with details of the intended place of re-interment. However, these provisions do not prevent the exhumation of temporary graves for the purpose of moving the remains to permanent graves in dignified, properly maintained cemeteries, such as those of the Commonwealth War Graves Commission.
United States of America
The US Field Manual (1956) provides that the belligerents “shall organize at the commencement of hostilities an Official Graves Registration Service, to allow subsequent exhumations and to ensure the identification of bodies, whatever the site of the graves, and the possible transportation to the home country”.
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 17 of the Geneva Convention I, and of the 1977 Additional Protocol I, including violations of Article 34(4), are punishable offences.
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment.
According the Report on the Practice of Israel, in the Abu-Rijwa case
, the Israel Defense Forces carried out DNA identification tests on the remains of two “terrorists” buried in Israel at the request of a Jordanian family who petitioned the Israeli High Court in 1992 for the purpose of repatriating the remains of their son.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
Bosnia and Herzegovina
The Report on the Practice of Bosnia and Herzegovina states:
During the aggression on Bosnia and Herzegovina, a large number of persons were registered as missing and the tracing process is still ongoing. It is assumed that the majority of the missing persons were killed by the aggressor and thrown into mass graves in different locations … The State Commission for the Exchange of Prisoners of War has undertaken huge efforts to locate mass graves, to exhume and identify bodies of innocent victims. Allegations of mass graves are received from eyewitnesses of the committed massacres.
Democratic Republic of the Congo
In 2008, a training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. When addressing the issue of mass graves used for the concealment of evidence of human rights violations committed during armed conflicts, the training manual states:
b. Objectives [of the exhumation of mass graves]:
- collect evidence to identify the victims[.]
The training manual also states:
[When] the investigation of war crimes, genocide or crimes against humanity involves collective graves, the identification of individual victims, although useful, should not necessarily be the starting point of the investigation.
For such crimes, it might happen that certain persons became victims because of the manner in which they were perceived culturally … In this case, it suffices to simply identify the victims according to a certain category (such as ethnic origin, religion or political opinion) and prove that they were killed because of such characteristics.
Unfortunately, positive individual identification is often impossible in the context of poor countries in a post-conflict situation, where the infrastructure, in particular medical infrastructure, is destroyed or inexistent.
Indeed, for almost 500 individuals examined following the exhumation of collective graves in Kibuye, in Rwanda, after the genocide of 1994, only 17 persons were identified …
However, for 28.500 persons disappeared during the Bosnian war (mainly Muslims), the remains of 16.500 individuals were found and 11.500 were identified.
UN Commission on Human Rights
In a resolution adopted in 1996 in the context of the conflict in the former Yugoslavia, the UN Commission on Human Rights welcomed the establishment of the Expert Group on Exhumation and Missing Persons chaired by the Office of the High Representative.
UN Commission on Human Rights (Special Rapporteur)
In 1995, in a report on the situation of human rights in the territory of the former Yugoslavia, the Special Rapporteur of the UN Commission on Human Rights recommended that the Croatian authorities identify all those killed, including by exhumation, which, whenever necessary, should be carried out under the supervision of international experts.
UN High Commissioner for Human Rights
In 1996, the Office of the UN High Commissioner for Human Rights, in a briefing on the investigation of violations of international law, noted that a project was arranged by the Special Rapporteur on the Situation of Human Rights in the former Yugoslavia, in coordination with the Expert on Missing Persons, the Office of the High Commissioner for Human Rights and the governments of Finland and the Netherlands, to recover and identify remains of the dead in a particular area, with the humanitarian aim of identifying persons for the sake of their relatives. The Expert emphasized the problem of mass graves and called upon the parties and the international community to intensify efforts to clarify the fate of missing persons using every possible means, including exhumation of mortal remains where necessary.
Expert for the Special Process on Missing Persons in the Territory of the Former Yugoslavia
In 1997, the Expert for the Special Process on Missing Persons in the Territory of the Former Yugoslavia drew the attention of the UN Commission on Human Rights to the fact that “governments were apparently growing less hostile to the use of forensic methods to elucidate the fate of disappeared persons”.
UN Observer for Croatia
In 1997, the UN Observer for Croatia stated before the UN Commission on Human Rights that “the exhumation of [certain] mass graves … which had resulted in the exhumation and identification of the remains of some 200 disappeared persons [was] a step in the right direction”.
High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovina
In 1996, the High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovina reported that national authorities and international mechanisms and organizations dealing with the issue of mass graves had undertaken considerable efforts to establish the fate of the dead bodies found in mass grave sites.
International Conference of the Red Cross (1965)
The 20th International Conference of the Red Cross in 1965 adopted a resolution on the tracing of burial places of persons killed during armed conflict in which it recommended “recourse, in the event of exhumation, to all possible identification procedures with the help of specialist services”.