Death and Dignity in Ukraine’s Armed Conflict: An Insight into the Protection of Victims’ Remains under International Law Part II

[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.

This is the second part of a post that aims at presenting the principal international law rules underlying the dignified management of the dead in armed conflict, with a specific focus on the main norms applicable to the ongoing war in Ukraine following the Russian aggression. While the first part exposed belligerents’ duties related to searching for, recovering, and accounting for the dead in armed conflict, this second part addresses two other fundamental obligations: 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). 

Ensuring the Respectful Disposition and/or Return of the Dead

Treating the dead with dignity implies their disposal in a respectful manner, including, whenever possible, following the deceased’s known cultural and religious practices and beliefs (CIHL rule 115, Guiding Principles 18-19). This obligation translates into rules regarding decent burial and protection of graves, which not only implement the precept that “respect due to a human being does not cease with death” (Guiding Principle 10) but also, here again, aim at preventing the dead from going missing. Indeed, the way in which their remains are handled, disposed of or put to rest may affect, and, at times, condition, the very possibility of their being identified. For the sake of brevity, we will focus on five of the most important rules: 

• Future Identification – First, while unidentified or pending their return at the end of hostilities, the remains of the dead should either be safely stored or buried temporarily “in a manner that facilitates their traceability, future identification and return to families or communities as appropriate” (Guiding Principle 17). To this end, technical guidelines on the management of dead bodies recommend that their remains be labelled, protected and sufficiently spaced whenever they are interred collectively. The temporary graves should be clearly marked.
• Individual vs collective burial – Second, and in close connection to the first rule, the dead should be buried individually, as far as possible, depending on the number of dead bodies to be interred. Indeed, the Geneva Conventions instruct parties to use individual graves to bury the dead of the adverse party, including the bodies of combatants, picked up on the battlefield—unless the situation does not permit it (art. 17 (1) GCI; 20 (1) GCII). This preference for the individual disposal of the enemy’s dead is even stricter regarding prisoners of war or civilian internees who may only be collectively interred when “unavoidable circumstances” require it (art. 120 (5) GCIII; 130 (2) GCIV). Yet, context-specific cultural and religious practices and beliefs should also be taken into account. Indeed, as experts have pointed out, sometimes individual burial might not be possible or preferred, and collective forms of burial and memorialization might be prioritized by bereaved families and communities. 
• Cremation – Third, cremation should be avoided, for it prevents future identification, potentially invisibilizes violations of IHL and may clash with some religious and cultural practices and beliefs (Guiding Principle 17). More specifically, under IHL, the remains of fallen combatants, prisoners of war and civilian internees shall not be cremated, except for imperative reasons of hygiene, motives based on their religion, or expressed wishes to this effect (art. 17 (2) GCI; 20 (2) GCII; 120 (5) GCIII; 130 (2) GCIV). While commentators disagree on whether this specific rule applies only to the enemy’s combatants (see e.g. Ana Pettrig) or also to members of a party’s own armed forces (see e.g. Daniela Gavshon), what is clear is that the customary rules on the respectful disposal of the dead and the recording of information about the deceased apply to all persons whose death results from hostilities or occupation. In light of these rules, the cremation of its own soldiers’ remains by a belligerent party could constitute a violation of IHL, whenever it is not required for sanitary reasons—as, in most cases, dead bodies do not spread diseases—and prevents the deceased’s identification. This would arguably also be the case when the unnecessary cremation of human remains contradicts the dead’s known religious and cultural convictions. 
• Funeral and Resting Places – Fourth, independently of their identification, belligerent parties must ensure that the dead are offered an honourable funeral and/or resting place that accords, whenever possible, with their family preferences and cultural and religious practices and beliefs (CIHL Rule 115; Guiding Principle 18). Resting places, including temporary burials, or, in cases of cremation, ashes, must be properly recorded and marked so that they may always be found. They must also be respected, protected and duly maintained (CIHL Rules 115-116; Guiding Principles 18 and 19).
• Return of the remains – Fifth, as soon as the circumstances permit it, the authorities must endeavour to facilitate the return of the body and the belongings of the deceased, under dignified conditions and following the wishes of the relatives (CIHL Rule 114, Principle 20). Under the Geneva Conventions and their Additional Protocol I, this needs an agreement between (former or current) belligerent parties. The conclusion of such an arrangement is often rendered difficult by the political instrumentalization of issues concerning the dead and missing in (post-)conflict negotiations. Interestingly, the content of a potential accord to settle the conflict in Ukraine has been discussed on this blog (for example here and here) but, without explicitly addressing the question of the restitution of victims’ remains. Moreover, the Additional Protocol I to the Geneva Conventions provides that, if the home country is not prepared to cover the expense of maintaining the graves, the State where these are located may offer—either to the deceased’s family or their State of nationality—to aid the return of victims’ bodies (API, art. 34 (3)). 

Treating the Families of the Dead and the Missing with Dignity

The dignified management of the dead also relates to the interaction of the authorities with their families and communities. First and foremost, it entails treating them with respect at all times (Guiding Principle 5). Second, it means giving effect to the right of families to know the fate and whereabouts of their missing relatives, including victims of enforced disappearances (API, art. 32; Preamble of the Guiding Principles, para 6). This right imposes an obligation to account for persons reported missing as a result of an armed conflict or serious violations of IHL and human rights, considering that they may be dead or alive. It also requires authorities in charge of the inquiry to inform their families of the progress of their search and, once they have been found, to reveal their localisation and what happened to them (CIHL Rule 117; Guiding Principle 13). Third, families should have access to the deceased’s temporary and final resting places as well as to funeral or memorial sites (Guiding Principle 20). Under IHL, this requires the conclusion of an agreement between parties to the conflict, which usually also concerns the return of the remains and may face the same kind of political and other obstacles that have been mentioned earlier. 

Conclusion 

The current situation in Ukraine illustrates once again, the complex issues surrounding the treatment of the remains of victims of armed conflicts, including their instrumentalization through their exposure, mistreatment, concealment, or destruction. However, international law imposes a whole series of obligations that counter these (mis)uses of dead bodies to protect the dignity of both the living and the deceased. Moreover, while perpetrators often attempt to erase, destroy or conceal the victims’ corpses in the hope of securing their own impunity, physical (along with testimonial and archival) traces of mass crimes never disappear nor remain silent completely. Victims’ remains are at the centre of all inquiries led, in the context of judicial or extra-judicial proceedings, by professionals, members of the civil society or families themselves, within or outside the field of the law. Besides providing answers to their relatives, the work with and around victims’ remains indeed gives access to a large number of clues and potential evidence that may shed light on the elements of the crimes and their impact, the system in which they are embedded, as well as the responsibilities arising from them. This endeavour takes on a special dimension when it is carried out within investigations, such as the one opened by the Office of the Prosecutor of the International Criminal Court on the situation in Ukraine (which will be conducted for the first time in connection with a Joint Investigation Team, supported by Eurojust); or the one that is conducted in parallel by the U.N. Independent International Commission of Inquiry on the violations resulting from the Russian invasion.

In any case, all these issues call for a dialogue between academics, practitioners, and field actors, capable of producing tools that promote—at the very least—a coherent implementation of the achievements of international law in synergy with good practices in this area. Finally, these questions inevitably imply confronting the fundamental question of the place and function that the dead have in the community of the living.