04 Jul Death and Dignity in Ukraine’s Armed Conflict: An Insight into the Protection of Victims’ Remains under International Law Part I
[Sévane Garibian is a Professor in International Criminal Law and Transitional Justice at the University of Geneva and an Adjunct Professor in Legal Philosophy at the University of Neuchâtel. She is currently leading the Swiss National Science Foundation (SNSF) funded research project “Right to Truth, Truth(s) through Rights: Mass Crimes Impunity and Transitional Justice” at the University of Geneva. Marion Vironda Dubray is a doctoral researcher in the SNSF project “Right to Truth, Truth(s) through Rights: Mass Crimes Impunity and Transitional Justice” and a teaching assistant at the University of Geneva. Her research examines the concept of mass crimes impunity from an international law perspective.]
The authors contributed as legal consultants to the drafting of the ICRC’s Guiding Principles for Dignified Management of the Dead in Humanitarian Emergencies and to Prevent them Becoming Missing Persons.
When at war, the question of what to do with the remains of victims becomes an urgent plight. As the situation in Ukraine shows today, this is far from a rhetorical concern. It relates, first, to the issue of dealing with the massive number of bodies of those killed during hostilities while also caring for and protecting survivors. In this regard, the challenges faced by authorities during armed conflict are acutely illustrated by reports of human corpses piling up in the streets and the municipal morgues or buried in mass graves in Ukrainian cities such as Mariupol or Bucha. Second, it concerns the crucial importance of securing killing and burial-sites, including mass graves, to ensure the effective investigation of potential war crimes and the subsequent accountability of those responsible (as powerfully argued here). Third, this question further refers to the diversity of public uses, and potential instrumentalization, of the remains of civilian and military victims on both sides of the war. Since the beginning of the Russian aggression against Ukraine, images of the discarded bodies of fallen soldiers have been circulating on the web and social networks, alongside pictures of prisoners of war and wounded civilians. The phenomenon is not new: dead bodies, corpses, bones, and skeletons are indeed often exposed, through pictures that are produced whenever one intends to inform and counter the distortion of facts, denounce crimes, prove atrocities, mobilise the international community, commemorate victims… or, conversely, manipulate, humiliate, destabilise, terrorise. For the families of victims, the priority is to find their next of kin as soon as possible, learn what happened to them, and restore the dignity of the deceased. In this light, one understands the impetus of the Government in Kyiv to establish a platform to allow relatives of Russian servicemen sent to the front to learn about their fate or else their intent to apply facial recognition technology to identify the dead. Under the guise of an altruistic and “humanitarian” objective, the visibilization of Russian losses aims to discredit the Moscow regime, which, since the beginning of the aggression, has silenced, muzzled, hidden and distorted any information connected to its casualties. The psychological impact is considerable, especially on a Russian society that is marked by what some say is a long-standing disregard by the authorities for the lives of soldiers. The concealment of military losses is frequent in contexts of war, and Russia is not new to this practice. During past conflicts (Afghanistan, Chechnya), and since 2014 in Ukraine, Russian authorities have repeatedly abandoned or buried hastily in mass or anonymous graves the unidentified bodies of soldiers. The rumour relating to the use of mobile crematoria that reportedly followed the Russian troops in Ukraine to make the bodies disappear and leave no trace is telling in this regard.
Faced with these practices, it seems all the more important to stress that international law sets obligations towards the dead, the missing and their families, with due regard for the need to respect human dignity, although it does not resolve the thorny issue of the legal status of human remains. In particular, the recently published ICRC’s Guiding Principles for Dignified Management of the Dead in Humanitarian Emergencies and to Prevent them Becoming Missing Persons (2021, thereafter: the Guiding Principles) bring together the many standards, technical directives and legal instruments on the treatment of the dead that are scattered throughout various corpora: international humanitarian law (IHL), international human-rights and criminal law and disaster response law (see the conclusions of a 2018 expert meeting regarding the need to codify and develop this fragmented legal framework). In so doing, these Guiding Principles set the spirit in which the norms should be applied to ensure the dignity of the dead and their families in humanitarian emergencies, including armed conflicts. They make clear that treating the dead in a dignified manner is crucial to ensure they do not go missing as a result of their disrespectful handling and disposition. In this sense, these Principles are complementary to investigative guidelines specifically dedicated to the issue of the missing, such as the Guiding principles for the search for disappeared persons, developed by the United Nations Committee on Enforced Disappearances in 2019 or the ICRC’s recently published guidelines on the search for missing migrants (2021). These instruments are further complemented by other, accountability-oriented guidelines, such as the updated Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) or the Bournemouth Protocol on Mass Grave Protection and Investigation (2021) that set rules and procedures for the handling, protection and effective investigation of human remains, including those buried in mass graves.
Among those sources, the present post, published in two parts, focuses more specifically on the main norms applicable to the ongoing armed conflict in Ukraine, namely the directives codified by the Guiding Principles, completed, wherever appropriate, by the more detailed rules of IHL. A general reading of these instruments reveals four fundamental aspects of the dignified management of the dead in armed conflict: searching for, recovering, and handling human remains with care (1); accounting for the deceased, in particular through their bodies’ identification, to prevent them from going missing (2); guaranteeing a decent temporary burial, a respectful resting place and/or return to the dead (3); and treating their families with dignity and respect (4).
The following developments address the two first of these issues, while the question of the dignified disposition of the dead and treatment of their families ((3) and (4)) will be considered in the second part of this post. Whilst this analysis focuses on the law applicable to the ongoing international armed conflict between Ukraine and Russia (in particular the 1949 Geneva Conventions (GCs) and their first Additional Protocol of 1977 (API)), many of the fundamental obligations discussed in this post also apply—albeit often in a less detailed manner, based on customary international law—to the parallel non-international armed conflicts in which Ukraine is also involved. In addition, since most of these duties are part of customary international law, the text points to the rules identified by the ICRC’s studies on Customary IHL (CIHL), where readers may find further references to the corresponding treaty provisions.
Searching for, Recovering and Respecting the Dead
A first set of IHL rules aims to avoid the inappropriate treatment and handling of dead bodies in armed conflicts.
To this end, parties to the conflict must first take all feasible measures to search for, recover and evacuate the dead (CIHL Rule 112). This obligation arguably applies to both members of the enemy’s armed forces and civilian population, as well as a party’s own nationals, provided their death results from the armed conflict (in this sense, see Daniela Gavshon and Anna Pettrig). Of course, searching for and recovering the dead is not always possible during hostilities. It must be done “whenever circumstances permit and particularly after an engagement” but “without delay” from this moment on (CIHL Rule 112). Moreover, this is an obligation of means, which belligerents shall observe diligently, for example, by
concluding arrangements to set up teams to look for and gather victims from the battlefield areas (API, art. 33 (4)) or by allowing humanitarian organizations, such as the ICRC, to carry out this work (API, art. 17 (2)).
In contexts where the dead have already been interred and it is suspected that their death results from serious IHL or human-rights violations—for example, extrajudicial killing or torture—the obligation to investigate these violations effectively requires that burial sites, including mass graves, should be secured and protected from disturbances by non-experts, including first responders (see e.g. Bournemouth Protocol). Albeit sometimes difficult, in particular in contexts of armed conflict, this is essential to prevent evidence from being tampered with or destroyed. Protecting burial or potential killing sites also allows experts—notably forensic anthropologists, pathologists and archaeologists, whenever they are available—to analyse fully the remains and the sites themselves to gather crucial indications to identify the victims and establish the cause and circumstances of their death.
Second, belligerents are required to respect the dead—civilians and combatants alike—and to take all feasible measures to ensure their respectful treatment (CIHL Rule 113; Guiding Principles 2 and 5). This imposes two subsets of obligations. On the one hand, to make all possible efforts to protect their remains from ill-treatment and their belongings from pillage (CIHL Rule 113; Preamble of the Principles, para. 9). It is worth noting in this regard that mutilating a dead body may constitute the war crime of “committing outrages upon personal dignity” under the Rome Statute of the International Criminal Court (as established by its Elements of crimes, art. 8 (2) (b) (xxi), footnote 49 and 8 (2) (c) (ii), footnote 57). On the other hand, respecting the dead involves the appropriate handling of their bodies and possessions: they should be searched for, recovered, and stored in compliance with international law and applicable best practices, using standardized procedures such as those recommended by the UN, ICRC, WHO and INTERPOL (Guiding Principle 12).
These obligations—along with the other rules discussed in this post—shall be applied without any adverse distinction, including based on the person’s race, colour, sex, language, religion or belief, political or other opinions, national or social origin, wealth, birth or another status, physical or mental disability, or any other ground prohibited by international legal instruments (CIHL Rule 88; Guiding Principle 11). As argued by Gloria Gaggioli, the obligations towards the dead and the missing also apply independently of their past behaviour, including their alleged involvement in terrorist activities.
Accounting for the Dead and the Missing
The protection of dignity also connects to the identification of the deceased, through the attribution of their birth names or other appropriate designation (Guiding Principles 1 and 3). Authorities shall make every feasible effort and use all the means at their disposal to this end. In particular, IHL instructs belligerents to record all available information regarding persons whose passing has resulted from hostilities or occupation, to try and identify them (CIHL, Rule 116, as interpreted, e.g. by Ana Pettrig). They shall do so without delay and, in any case, before the burial or cremation of their remains, by documenting data such as the deceased’ names, their nationalities or the belligerent party to which they belong and the cause of their death, whenever these particulars are known. The 1949 Geneva Conventions further require the careful examination of the dead of the adverse party, including combatants who have died in action or as a result of the conflict, as well as deceased prisoners of war and civilian internees (art. 17 (1) GCI; 20 (1) GCII; 120 (3) GCIII; 129 (2) GCIV). This inspection, if possible by a physician, shall aim to confirm their death and to establish their identity before burial or cremation. The details thus collected must be forwarded by the belligerents to their respective national information bureaux (Ukraine has established one on March 17th 2022) and be transmitted to the other side, usually through the intermediary of the ICRC’s Central Tracing Agency, to make sure the dead do not remain unaccounted for.
These rules, aimed at the identification of the deceased and the transmission of information regarding their fate and location, are closely linked to the obligation of belligerents to take all feasible measures to account for persons reported missing as a result of the armed conflict. Indeed, as made clear by the Guiding Principles, until identified, dead persons are likely to be missing persons whose fate and whereabouts remain unknown to their families and communities.