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The war dead and their gravesites

Published online by Cambridge University Press:  23 November 2009

Anna Petrig
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Abstract

International humanitarian law (IHL) contains various provisions pertaining to the dead in armed conflicts and their burial places. This article provides an overview of the various substantive obligations with regard to persons having lost their lives in armed conflicts and their gravesites. The temporal scope of application of these provisions – namely whether they apply in times of peace – will also be analysed. Finally, the reasons why IHL as in force today is applicable to questions concerning the dead and their gravesites will be considered.

Type
War victims
Information
International Review of the Red Cross , Volume 91 , Issue 874: War victims , June 2009 , pp. 341 - 369
Copyright
Copyright © International Committee of the Red Cross 2009

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References

1 Jay Winter, Sites of Memory, Sites of Mourning: The Great War in European Cultural History, Cambridge University Press, Cambridge, 1995, p. 78.

2 ‘Rebels drag soldiers’ bodies through Mogadishu streets', The Guardian, 21 March 2007, available at: http://www.guardian.co.uk/world/2007/mar/21/1 (last visited 21 May 2009).

3 ‘Estonia to remove Soviet memorial’, BBC News, 12 January 2007, available at: http://news.bbc.co.uk/2/hi/europe/6255051.stm (last visited 21 May 2009); ‘Estonia seals off Soviet memorial’, BBC News, available at: http://news.bbc.co.uk/2/hi/europe/6597497.stm (last visited 21 May 2009).

4 Norwegian Parliament, written question from Ine Marie Søreide (H) to the Minister of Culture and Church Affairs (Stortinget, Skriftlig spørsmål fra Ine Marie Eriksen Søreide (H) til kultur- og kirkeministeren), 16 June 2008, available at: http://www.stortinget.no/no/Saker-og-publikasjoner/Sporsmal/Skriftlige-sporsmal-og-svar/Skriftlig-sporsmal/?qid=40641 (last visited 21 May 2009).

5 See e.g. Articles 225 and 226 of the Treaty of Versailles of 28 June 1919, available at: http://avalon.law.yale.edu/imt/partvi.asp (last visited 21 May 2009).

6 See e.g. the Exchange of Notes (With Annexes) between the Netherlands and the United States of America Constituting an Agreement Concerning the American War Cemetery at Margraten, The Hague, 26 September 1951, 158 UNTS 468; or Exchange of Notes between Austria and India Constituting an Agreement Concerning the Commonwealth War Cemetery at Klagenfurt, Vienna, 10 July 1968, 645 UNTS 65.

7 The following human rights contained in almost all regional and international human rights treaties are particularly relevant with regard to the dead and their graves: human dignity, freedom of religion, prohibition of cruel, inhuman or degrading treatment, respect for family and private life, and the right to privacy.

8 Article 8(2)(b)(xxi) and (c)(ii) of the Rome Statute prohibits the commission of outrages upon personal dignity in international and non-international armed conflicts. According to the Elements of Crimes, a dead person is a potential victim of this offence. See note 70 below.

9 First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (hereinafter GC I); Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85(hereinafter GC II); Third Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 (hereinafter GC III); Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (hereinafter GC IV).

10 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (hereinafter AP I).

11 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (hereinafter AP II). Article 8 states that ‘[w]henever circumstances permit, and particularly after an engagement, all possible measures shall be taken, without delay […] to search for the dead, prevent their being despoiled, and decently dispose of them’.

12 GC I-IV, Art. 3(1)(c), and AP II, Art. 4(2)(e).

13 GC I-IV, Art. 3(1), and AP II, Art. 4(1).

14 AP II, Art. 4(2)(b).

15 Reference will be made to the customary rules as identified in the ICRC study on customary international humanitarian law: Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, Cambridge University Press, Geneva, 2006.

16 Ibid. The rules specifically dealing with mortal remains and gravesites are the following: – Rule 112. Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the dead without adverse distinction. [International and Non-International Armed Conflicts]– Rule 113. Each party to the conflict must take all possible measures to prevent the dead from being despoiled. Mutilation of dead bodies is prohibited. [International and Non-International Armed Conflicts]– Rule 114. Parties to the conflict must endeavour to facilitate the return of the remains of the deceased upon request of the party to which they belong or upon the request of their next of kin. They must return their personal effects to them. [International Armed Conflicts]– Rule 115. The dead must be disposed of in a respectful manner and their graves respected and properly maintained. [International and Non-International Armed Conflicts] – Rule 116. With a view to the identification of the dead, each party to the conflict must record all available information prior to disposal and mark the location of the graves. [International and Non-International Armed Conflicts].

17 GC I, Arts. 15(1) and 17; GC II, Arts. 18(1) and 20(1); AP II, Art. 8; Henckaerts and Doswald-Beck, above note 15, Rules 112 to 116.

18 GC I, Art. 16; GC II, Arts. 19 and 20(2).

19 GC I, Art. 17(3).

20 GC IV, Art. 15.

21 AP I, title of Art. 34.

22 AP I, Art. 34.

23 See e.g. GC I, Art. 17(3), and GC III, Art. 120(6).

24 See e.g. GC III, Art. 120(6), and GC IV, Art. 130(1).

25 See e.g. AP I, Art. 34.

26 AP I, Art. 34(2).

27 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff, Geneva/Dordrecht, 1987, p. 370, para. 1314.

28 Michael Bothe, Karl Partsch and Waldemar Solf, New Rules for Victims of Armed Conflicts, Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff, The Hague, 1982, p. 177.

29 That mass graves are covered by IHL provisions on the dead follows from Article 34(4) of Protocol I regulating exhumation in cases of investigative necessity; an obvious example of a gravesite that needs to be excavated for investigative purposes would be a mass grave.

30 The Cenotaph in Whitehall is an empty tomb in London that symbolizes the tomb of all those who died in the First World War; the Monument to the Missing at Thiepval in France displays on its internal walls the names of approximately 73,000 British and Allied men who died in the Battle of the Somme in 1916 and whose bodies were never found. See Winter, above note 1, pp. 102–105.

31 GC I, Art. 17(4).

32 GC III, Art. 120(6).

33 AP I, title of Art. 34.

34 AP I, Art. 34(2).

35 However, if a memorial forms a unity with the grave – such as the statues by the German sculptor Käthe Kollwitz at the German war cemetery at Roggevelde where her son was buried (see Winter, above note 1, pp. 108–113) – the notion of ‘gravesite’ could be understood as encompassing the memorial. The American Battle Monuments Commission, which assumes the functions assigned by IHL to a Graves Registration Service, distinguishes between ‘memorials’ and ‘cemeteries’. For a list of memorials, see http://www.abmc.gov/memorials/index.php (last visited 20 May 2009); for a list of permanent American burial grounds on foreign soil, see http://www.abmc.gov/cemeteries/cemeteries.php (last visited 20 May 2009).

36 Providing a definition that is neither overly inclusive nor too narrow is not simple in light of the variety of cultural and religious practices for disposing of the dead. The definition at hand excludes pure memorials; hence Shinto shrines – which do not host any dead bodies because they are perceived as impure and are therefore buried somewhere else – would for instance not be covered by the definition provided here.

37 E.g. the planned individual reburial of British and Australian troops found in a mass grave in France in 2008. See ‘Australian, British WWI remains to be reburied’, Agence France Presse, 1 August 2008, available at: http://www.brisbanetimes.com.au/news/world/australian-british-wwi-remains-to-be-reburied/2008/08/01/1217097470597.html (last visited 29 December 2008).

38 GC I, Art. 15; GC II, Art. 18(1); GC IV, Art. 16(2); AP II, Art. 8; Henckaerts and Doswald-Beck, above note 15, Rule 112.

39 Henckaerts and Doswald-Beck, ibid., Rule 112.

40 GC I and II, Art. 12.

41 GC IV, Art. 13, read together with GC IV, Art. 16(2).

42 AP II, Art. 2(1).

43 Henckaerts and Doswald-Beck, above note 15, p. 407.

44 ICRC, Operational Best Practices Regarding the Management of Human Remains and Information on the Dead by Non-Specialists, For All Armed Forces, For All Humanitarian Organizations, p. 9, available at: http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0858/$File/ICRC_002_858.PDF!Open (last visited 20 May 2009).

45 The Nazis entered the names of interned persons who were murdered or perished in concentration camps in so-called ‘Totenbüchern’ (‘death books’); however, these books do not account for every dead person, since many ‘death books’ were destroyed by the Nazis and no such books were kept in extermination camps where the newcomers from the transports were murdered on the spot. See http://www.its-arolsen.org/en/help_and_faq/glossary/index.html (last visited 20 May 2009). For a list of other documents used by the International Tracing Service to trace missing persons and to ascertain the fate of victims of Nazi persecution, see http://www.its-arolsen.org/en/help_and_faq/dokumentenbeispiele/index.html (last visited 20 May 2009).

46 See GC I, Art. 12(3), stating that only urgent medical reasons authorize priority in the order of treatment to be administered.

47 Jean Pictet (ed), The Geneva Conventions of 12 August 1949: Commentary, Vol. I (Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field), Art. 15, p. 151; Vol. II (Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea), Art. 18, p. 131.

48 GC II, Art. 21(1); Pictet, above note 47, Vol. II, Art. 18, p. 131.

49 GC I, Art. 15; Pictet, ibid., Vol. I, Art. 15, p. 151.

50 GC II, Art. 18; Pictet, ibid., Vol. II, Art. 18, p. 132.

51 GC IV, Art. 16(2).

52 Jean Pictet (ed), The Geneva Conventions of 12 August 1949: Commentary, Vol. IV, Geneva Convention relative to the Protection of Civilian Persons in Time of War, Art. 16, pp. 136–137.

53 Henckaerts and Doswald-Beck, above note 15, Rule 112.

54 Pictet, above note 47, Vol. I, Art. 15, p. 151.

55 Ibid., Vol. I, Art. 3, p. 51.

56 Sandoz, Swinarski and Zimmermann (eds), above note 27, p. 1345, para. 4442.

57 Pictet, above note 47, Vol. I, Art. 17, p. 218.

58 AP I, Art. 17(2); provision for the civilian population (without mentioning relief societies) to assume such a role is made in GC I, Art. 18, only with regard to the wounded and sick; GC II, Art. 21(1), states that the parties to the conflict may appeal to the charity of commanders of neutral vessels to collect the dead.

59 Sandoz, Swinarski and Zimmermann (eds), above note 27, Art. 17, p. 218, para. 724.

60 Ibid., Art. 33, p. 363, para. 1289.

61 Annual Report 2008, ICRC, Geneva, 2008, p. 187 (on ICRC activities in Afghanistan pertaining to the collection, burial and/or repatriation of human remains after fighting) and p. 350 (on ICRC help for the Palestine Red Crescent and Ministry of Health emergency services in the collection of dead bodies).

62 See AP II, Art. 8.

63 AP II, Art. 18(1).

64 GC I Art. 15(1); GC II, Art. 18.

65 GC I and II, Art 13. Similarly to GC I, Art. 13 of GC II defining the passive personal scope of application does not mention the dead, but simply the wounded, sick and shipwrecked at sea.

66 Pictet, above note 52, Vol. IV, Art. 4, p. 46.

67 GC I, Art. 16(1) (emphasis added); GC II, Art. 19 (emphasis added).

68 Pictet, above note 47, Vol. I, Art. 16, p. 159 (emphasis added).

69 GC IV, Art. 16 (obligation to search for the killed and to protect them against pillage and ill-treatment), read together with GC IV, Art. 13 (in which the definition of the persons covered by GC IV, Arts. 14 to 26, differs from that of GC IV, Art. 4).

70 The Assembly of States Parties to the ICC Statute considers that for purposes of the Statute, a dead person could potentially be a victim of the crime of committing outrages upon the personal dignity. See International Criminal Court, Elements of Crimes, adopted by the Assembly of States Parties, First Session, New York, 3–10 September 2002, Official Records ICC-ASP/1/3, Art. 8(2)(b)(xxi), fn. 49, and Art. 8(2)(c)(ii), fn. 57: ‘For this crime, “persons” can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation’.

71 For a practical example, see the text accompanying note 105 below.

72 AP II, Art. 2(1).

73 Sandoz, Swinarski and Zimmermann (eds), above note 27, Art. 2, pp. 1359–1360, para. 4490.

74 See e.g. AP I, Art. 34(1).

75 Rome Statute, Art. 8(2)(b)(xxi) and Art. 8(2)(c)(ii).

76 See International Criminal Court, above note 70.

77 GC I, Art.15; GC II, Art. 18(1); GC IV, Art. 16(2); AP II, Art. 8; Henckaerts and Doswald-Beck, above note 15, Rule 113.

78 US Military Tribunal at Nuremberg, Pohl Case, Judgment, 3 November 1947, reproduced in Henckaerts and Doswald-Beck, above note 15, p. 409.

79 GC IV, Art. 16(1); Henckaerts and Doswald-Beck, above note 15, Rule 113.

80 In 1946 the US Military Commission at Yokohama sentenced Japanese soldiers for ‘bayoneting and mutilating the dead body of a United States prisoner of war’ (Kikuchi and Mahuchi Case, Judgment of 20 April 1946). In 1947 the US General Military Court at Dachau found a German medical officer guilty of maltreating the body of a deceased US airman. The convicted officer had severed the head from the dead man's body, had baked it, removed the skin and flesh and bleached the skull (Schmid Case, Judgment of 19 May 1947). The cases are reproduced in Henckaerts and Doswald-Beck, above note 15, p. 409.

81 In 1946 the US Military Commission in the Mariana Islands convicted 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' (Yochio and Others Case, Judgment 2–15 August 1946); reproduced in Henckaerts and Doswald-Beck, above note 15, p. 409.

82 Sandoz, Swinarski and Zimmermann (eds), above note 27, Art. 34, p. 369, para. 1307.

83 Wislawa Szymborska, ‘Hunger camp at Jasko’, in Carolyn Forche (ed), Against Forgetting: Twentieth Century Poetry of Witness, W.W. Norton, New York, 1993, p. 459.

84 Interpol, ICPO-Interpol General Assembly, 65th session, Resolution AGN/65/RES/13 (1996), available at: http://www.interpol.int/Public/ICPO/GeneralAssembly/Agn65/Resolutions/AGN65RES13.asp (last visited 21 May 2009).

85 GC I, Art. 17(1); GC II, Art. 20(1); GC III, Art. 120(3); GC IV, Art. 129(2). No similar provision exists for non-international armed conflict; the obligations have however been consolidated in customary law. See Henckaerts and Doswald-Beck, above note 15, Rule 116.

86 GC I, Art. 16, and GC II, Art. 19(1).

87 GC III, Art. 120(2), and GC IV, Art. 129.

88 GC I, Art. 16(2) and (3); GC II, Art. 19(2) and (3); GC III, Art. 120(1) and (2); GC IV, Art. 129(1) and (3).

89 AP I, Art. 32.

90 Pictet, above note 47, Vol. I, Art. 16, pp. 176–177.

91 See e.g. ICRC, Chad: Saving lives as fighting subsides, Operational Update, 7 February 2008, available at: http://icrc.org/web/eng/siteeng0.nsf/html/chad-update-070208 (last visited 30 March 2009).

92 Henckaerts and Doswald-Beck, above note 15, pp. 419–420.

93 Capdevila, Luc and Voldman, Danièle, ‘Du numéro matricule au code génétique: la manipulation du corps des tués de la guerre en quête d'identité’, International Review of the Red Cross, Vol. 84, No. 848, December 2002, pp. 751–765.CrossRefGoogle Scholar

94 GC I, Art. 17(3), and Art. 20(2) of GC II referring to the provisions on the dead contained in GC I.

95 GC III, Art. 120(6), and GC IV, Art. 130(2).

96 AP I, Art. 34(2).

97 The Commonwealth War Graves Commission provides a description of this war cemetery. See http://www.cwgc.org/search/cemetery_details.aspx?cemetery=85900&mode=1 (last visited 21 May 2009).

98 Bothe, Partsch and Solf, above note 28, p. 179.

99 Henckaerts and Doswald-Beck, above note 15, p. 412.

100 ‘Hezbollah, Israel swap corpses on Lebanon border’, Reuters, 16 July 2008, available at: http://www.reuters.com/article/homepageCrisis/idUSL16516924._CH_.2400 (last visited 21 May 2009).

101 Henckaerts and Doswald-Beck, above note 15, pp. 411–412.

102 AP II, Art. 4(2)(b).

103 GC I-IV, Art. 3(1), and AP II, Art. 4(1).

104 GC I-IV, Art. 3(1)(c), and AP II, Art. 4(2)(e).

105 ‘Court upholds ban on returning terrorists’ bodies to relatives', RIA Novosti, 28 June 2008, available at: http://en.rian.ru/russia/20070628/67977135.html (last visited 21 May 2009); Sudha Ramachandran, ‘The dreadful dead of terror’, Asia Times Online, 7 July 2004, available at: http://www.atimes.com/atimes/South_Asia/FG07Df05.html (last visited 21 May 2009).

106 GC III, Art. 122.

107 GC I, Art. 16(3); GC II, Art. 19(3), GC III; Art. 122(9); GC IV, Art. 139. With regard to non-international armed conflicts, no specific obligation exists.

108 Henckaerts and Doswald-Beck, above note 15, p. 413.

109 Ibid., p. 417.

110 GC I, Art. 17(3); GC III, Art. 120(4); GC IV, Art. 130(1).

111 Pictet, above note 47, Vol. I, Art. 17, p. 179; Jean Pictet (ed), The Geneva Conventions of 12 August 1949: Commentary, Vol. III, Geneva Convention Relative to the Treatment of Prisoners of War, Art. 120, p. 565.

112 GC I, Art. 17(1); GC II, Art. 20(1); GC III, Art. 120(5); GC IV, Art. 130(2).

113 Pictet, above note 47, Vol. I, Art. 17, p. 177.

114 Pictet, above note 52, Vol. IV, Art. 120, p. 507.

115 GC I, Art. 17(3), and GC III, Art. 120(4).

116 Pictet, above note 47, Vol. I, Art. 17, p. 180.

117 GC I, Art. 17(2); GC III, Art. 120(5); GC IV, Art. 130(2).

118 GC III, Art. 120(5), and GC IV, Art. 130(2). GC I and GC II do not contain this further justification for cremation since they are essentially concerned with the dead picked up on the battlefield, where such a wish would be difficult to ascertain.

119 Pictet, above note 47, Vol. I, Art. 17, pp. 178–179.

120 GC I, Art. 17(2); GC II, Art. 20(2); GC III, Art. 120(5); GC IV, Art. 130(2).

121 AP I, Art. 34, also contains similar guarantees to GC I, Arts. 16 and 17, and is – according to the travaux préparatoires – not applicable to a state's own nationals; see note 133 below. It should also be recalled that under the 1929 Geneva Convention, the obligations in GC I, Arts. 16 and 17, were contained in one single article and were only divided in 1949 when they were spelled out in much more detail. See Pictet, above note 47, Vol. I, Art. 17, pp. 175–176.

122 GC II, Art. 19.

123 GC II, Art. 20. With regard to disposal of the body, it should be noted that if the dead person is taken ashore, that person then comes within the ambit of GC I (GC II, Art. 20(2)).

124 GC III, Arts. 120–121.

125 For an overview on who is considered to be a prisoner of war, see GC III, Art. 4, and Pictet, above note 111, Vol. III, Art. 4, pp. 44–73. The personal scope of application of GC I has to be distinguished from that of GC III: the provisions of GC I are ‘essentially concerned with the dead picked up by the enemy on the battlefield, that is to say, with the mortal remains of combatants who have never for one moment been prisoners of war’: Pictet, above note 47, Vol. I, Art. 17, p. 175.

126 GC IV, Arts. 129–131.

127 In terms of GC IV, Art. 4.

128 The customary rules in the ICRC Study (Henckaerts and Doswald-Beck, above note 15, Rules 112–116) simply refer to ‘the dead’ and thus follow – unlike the Geneva Conventions – the broadest possible ratione personae concept; the only limitation that should also apply here is that death must have resulted from an armed conflict or occupation.

129 Sandoz, Swinarski and Zimmermann (eds), above note 27, Introduction to Part II, Section III, p. 341, para. 1134.

130 This would also cover, for instance, all those civilians who are not protected persons or not interned at the time of their death. Commentaries suggest that a direct causal link between occupation and death has to exist and that only death ‘due to the special circumstances of occupation’ would be encompassed. For examples, see Sandoz, Swinarski and Zimmermann (eds), above note 27, Art. 34, paras. 1299–1300.

131 The ‘detention resulting from occupation’ referred to in Article 34 of AP I is a wider concept than internment of protected persons under GC IV. If, for instance, the Occupying Power arrests and prosecutes a civilian for serious acts of sabotage, the detention would not be an internment within the meaning of GC IV; thus if such a person dies, its provisions do not apply. See Bothe, Partsch and Solf, above note 28, pp. 173 and 176.

132 In this case, death has to be a result of hostilities, such as bombardments or other attacks; however, death need not be immediate as long as a causal link is present. Sandoz, Swinarski and Zimmermann (eds), above note 27, para. 1305.

133 During the drafting of the Section containing Article 34 of AP I, there was discussion on whether it should impose obligations on a state vis-à-vis its own nationals. The working group stated in its report that these provisions do ‘not impose on any High Contracting Party or Party to a conflict obligations with regard to its own nationals”. This clarification was later deleted by consensus, “because it was self-evident that the article did not apply to a Party's own nationals’. Ibid., Introduction to Part II, Section III, p. 342, para. 1195.

134 GC I, Art. 17(3); GC III, Art. 120(4); GC IV, Art. 130(1).

135 Henckaerts and Doswald-Beck, above note 15, Rules 115 and 116.

136 AP I, Art. 34.

137 See text belonging to notes 179–193 below.

138 AP I, Art. 1(1).

139 GC I, Art. 17(3); GC III, Art. 120(4); GC IV, Art. 130(1); AP I, Art. 34(1).

140 Pictet, above note 47, Vol. I, Art. 17, pp. 179–180. See also the section on ‘Creation of a Graves Registration Service’, text accompanying notes 174–178 below.

141 Norwegian Parliament, above note 4.

142 GC I, Art. 17(3); GC III, Art. 120(4); GC IV, Art. 130(1); AP I, Art. 34(1).

143 GC IV, Art. 130.

144 GC I, Art. 17(3).

145 Pictet, above note 47, Vol. I, Art. 17, p. 180.

146 Norwegian Parliament, above note 4.

147 AP I, Art. 34(2).

148 Ibid.

149 GC I, Art. 17(4); GC III, Art. 120(6); GC IV, Art. 130(3).

150 The fact that the provision on the maintenance of gravesites applies at all times does not have any bearing on how long this obligation lasts. Rather, the temporal scope of application only determines whether a certain provision is applicable as such at a given moment; see text belonging to notes 179–193 below.

151 AP I, Art. 34(2).

152 See note 6 above for an examples of such an agreement.

153 AP I, Art. 4, contains a similar provision for international armed conflicts.

154 Even in the absence of an agreement, the High Contracting Party in whose territory the graves are situated is obliged to ensure permanent maintenance if the home country of the deceased is prepared to meet the costs; Sandoz, Swinarski and Zimmermann (eds), above note 27, Art. 34, p. 376, para. 1352.

155 AP I, Art. 34(3); Sandoz, Swinarski and Zimmermann (eds), above note 27, Art. 34, pp. 376–377, paras. 1347–1353.

156 GC I, Art. 17(3).

157 GC III, Art. 120(4).

158 Pictet, above note 111, Vol. III, Art. 120, p. 566.

159 Sandoz, Swinarski and Zimmermann (eds), above note 27, Art. 34, p. 372, para. 1328.

160 AP I, Art. 34(4).

161 AP I, Art. 34(4)(a). This could be a return of the remains to the home country, either pursuant to an agreement under AP I, Art. 34(2)(c) or, in the absence of an agreement, in one of the two situations provided for in AP I, Art. 34(3).

162 Sandoz, Swinarski and Zimmermann (eds), above note 27, Art. 34, p. 377, paras. 1355–1357.

163 Ibid., Art. 34, p. 378, para. 1359.

164 Ibid., Art. 34, p. 378, para. 1361.

165 Stover, Eric and Shigekane, Rachel, ‘The missing in the aftermath of war: When do the needs of victims’ families and international war crimes tribunals clash?', International Review of the Red Cross, Vol. 84, No. 848, December 2002, pp. 845–847.CrossRefGoogle Scholar

166 See e.g. the recommendations formulated in ICRC, Operational Best Practices, above note 44, p. 9; ICRC Report: The Missing and Their Families, Recommendation No. 23, pp. 31–32, available at: http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5JAHR8/$File/ICRC_TheMissing_012003_EN_10.pdf (last visited 21 May 2009).

167 See e.g. GC I, Art. 17, and GC II, Art. 20.

168 See e.g. GC III, Art. 120, and GC IV, Art. 130. It should be noted that neutral countries can also be detaining powers; thus Soviet soldiers captured in 1982 by opposition movements in Afghanistan were interned in Switzerland. See Marco Sassòli, ‘Internment’, in Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition available at: www.mpepil.com (last visited 30 January 2009).

169 See Volksbund Deutsche Kriegsgräberfürsorge e.V. (German Graves Registration Service) at: http://www.volksbund.de/kgs/land.asp?kga=&land=99078 (last visited 20 May 2009).

170 Henckaerts and Doswald-Beck, above note 15, Rules 112–114 and 116 are addressed only to the ‘parties to the conflict’; whereas Rule 115 (‘The dead must be disposed of in a respectful manner and their graves respected and properly maintained.’) is not – it could therefore be held to apply to all states on whose territory graves are situated.

171 Sandoz, Swinarski and Zimmermann (eds), above note 27, Introduction to Part II, Section III, p. 341, para. 1134.

172 The authority representing the people of Nagorno-Karabakh, for instance, undertook to apply the Geneva Conventions and Additional Protocol I in relation to the armed conflict with Azerbaijan.

173 This interpretation seems to be supported by the text in the ICRC Commentary on AP I, Art. 32, stating that the right of families to know the fate of their relatives encompasses giving the families an opportunity to remember their dead in the place where their remains lie, providing access to the gravesites and marking them (i.e. obligations pertaining to the dead that are also relevant after the conflict has ended). The Commentary continues by explaining that the ‘Parties to the conflict’ and the ‘High Contracting Parties’ are mentioned separately because some parties to the conflict may not be Contracting Parties and yet be bound by the Protocol through Article 96(2) and (3) of Protocol I: Sandoz, Swinarski and Zimmermann (eds), above note 27, p. 343, para. 1196; p. 344, para. 1206; p. 346, para. 1216.

174 See e.g. GC I, Art. 17(3); GC III, Art. 120(6).

175 AP I, Art. 34(2)(a) states that agreements should be concluded in order to facilitate access to the gravesites by representatives of Official Graves Registration Services.

176 See e.g. wording of GC I, Art. 17(3); Pictet, above note 47, Art. 17, p. 181.

177 For a description of its mandate and activities see: http://www.abmc.gov/commission/index.php (last visited 20 May 2009).

178 Michael Bothe, ‘War graves’, in Rudolf Bernhardt (ed), Encyclopedia of International Public Law, Vol. 2, North-Holland Elsevier, Amsterdam, 1995, p. 1374.

179 This was the case in Norway in 2008: see text belonging to notes 4 and 141.

180 The temporal scope of application of the Geneva Conventions is laid down in GC I, Arts. 2 and 5; GC II, Art. 2; GC III, Arts. 2 and 5; and GC IV, Arts. 2 and 6. However, the wording of AP I, Art. 3(a) – ‘the Conventions and this Protocol shall apply…’ – indicates that the temporal scope of application rule of Protocol I also governs the Geneva Conventions and replaces their relevant provisions.

181 AP I, Art. 1(3) and (4), referring to Article 2 common to GC I-IV.

182 For the beginning of application see AP I, Art. 3(a), referring to AP I, Art. 1, which in turn refers to Article 2 common to GC I-IV; for the end of application see AP I, Art. 3(b).

183 Sandoz, Swinarski and Zimmermann (eds), above note 27, Art. 3, p. 66, paras. 145–146.

184 The ICRC draft of Protocol I with commentary provides a list of provisions applicable at all times: Draft Additional Protocols to the Geneva Conventions of August 12, 1949: Commentary, ICRC, Geneva, October 1973, p. 10. Since draft Protocol I did not contain any provisions on the missing or the dead (they were only introduced at a later stage of the drafting process), the gravesite provisions could not possibly be included in this list.

185 e.g. AP I, Art. 83, on dissemination.

186 e.g. AP I, Art. 7, on meetings.

187 e.g. AP I, Art. 58, on precautions against the effects of attacks.

188 Sandoz, Swinarski and Zimmermann (eds), above note 27, Art. 3, p. 66, para. 149.

189 The ICRC draft provision on AP I's temporal scope of application differed from the text retained in Article 3, and was only later changed into the present wording. It read ‘In addition to the provisions applicable in peace time, the present Protocol shall apply…’ Draft Additional Protocols to the Geneva Conventions of August 12, 1949, Commentary, ICRC, Geneva, October 1973, p. 9. With regard to this wording, an ICRC delegate at the Conference stated that: ‘in using the expression “in peacetime”, the ICRC had based itself on the terminology of the Geneva Conventions.’ – Official Records of the Diplomatic Conference of the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), ICRC, CDDH/I/SR.10, Vol. VIII, p. 74.

190 AP I, Art. 34(1).

191 ICRC, ‘How is the term “armed conflict” defined in international humanitarian law?’, Opinion Paper, March 2008, p. 3, available at: http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article-170308/$file/Opinion-paper-armed-conflict.pdf (last visited 21 May 2009).

192 AP II, Art. 1(2).

193 Against this textual interpretation of the treaty, the teleological argument could be made that several provisions of AP II (e.g. Article 19 entitled ‘Dissemination’) are clearly meant to apply at all times. However, this reading is not supported by the wording of the Protocol's scope of application rules.

194 Olga Bondaruk, ‘Ukraine Jews want graves building halted’, Associated Press, 23 July 2008, available at: http://abcnews.go.com/International/wireStory?id=5433924 (last visited 20 May 2009).

195 ‘Estonia removes Soviet memorial’, BBC News, 27 April 2007, available at: http://news.bbc.co.uk/2/hi/europe/6598269.stm (last visited 20 May 2009).

196 ‘Australian, British WWI remains to be reburied’, Agence France Presse, 1 August 2008, available at: http://www.brisbanetimes.com.au/news/world/australian-british-wwi-remains-to-be-reburied/2008/08/01/1217097470597.html (last visited 20 May 2009).

197 During the First and Second World Wars, for instance, the four Geneva Conventions of 1949 were not yet in force and there were only fragmentary regulations for dealing with the dead and their gravesites, e.g. in the 1929 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, the 1907 Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, and the 1929 Convention relative to the Treatment of Prisoners of War.

198 Permanent Court of Arbitration, Island of Palmas Case (United States of America v. The Netherlands), Award of the Tribunal, 4 April 1928, p. 15, available at: http://www.pca-cpa.org/upload/files/Island%20of%20Palmas%20award%20only%20+%20TOC.pdf (last visited 20 May 2009).

199 Ibid., p. 14.

200 Frédéric Dopagne, ‘Article 28 – Convention de Vienne de 1969’, in Olivier Corten and Pierre Klein (eds), Commentaire article par article des Conventions de Vienne de 1969 et 1986 sur le droit des traités, Vol. 1, Bruylant, Brussels, 2006, pp. 1165 and 1174.

201 Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969, entered into force on 27 January 1980, 1155 UNTS 331.

202 Anthony D‘Amato, ‘International law: Intertemporal problems’, in Rudolf Bernhardt (ed), Encyclopedia of International Public Law, Vol. 2, North-Holland Elsevier, Amsterdam, 1995, p. 1235.

203 E.g. GC I, Art. 17(3); GC III, Art. 120(4); GC IV, Art. 130(1); AP I, Art. 34(1), (2b) and (3); see also Henckaerts and Doswald-Beck, above note 15, Rule 115.

204 E.g. Henckaerts and Doswald-Beck, ibid., Rule 116.

205 E.g. AP I, Art. 34(3) and (4).

206 For a description of the Suresnes American Cemetery and Memorial provided by the American Battle Monuments Commissions, see http://www.abmc.gov/cemeteries/cemeteries/su.php (last visited 20 May 2009).

207 The Volksbund Deutsche Kriegsgräberfürsorge e.V. (German Graves Registration Service) provides more information about gravesites of German war dead in Belgium and elsewhere: http://www.volksbund.de/kgs/land.asp?land=99009 (last visited 20 May 2009).