|By H. Wayne Elliott
In 1967 a U.S. Army sergeant in Vietnam posed for a photograph. The photograph, later published nationally, showed the sergeant holding the decapitated heads of two enemy corpses. The soldier was court-martialed and convicted of “conduct prejudicial to good order and discipline.” There were other reports of U.S. soldiers cutting the ears and fingers off the enemy dead. Gen. William Westmoreland, commander of U.S. forces in Vietnam, denounced the mutilation of dead bodies as “subhuman” and “contrary to all policy and below the minimum standards of human decency.” Not only is the mistreatment of dead bodies “contrary to all policy,” it is also a violation of the laws of war.
The main obligation to the dead is now found in Article 15 of the First Geneva Convention. The thrust of that article is the need to aid the wounded. However, it also provides that the parties must “at all times, and particularly after an engagement… search for the dead and prevent their being despoiled.” The article also says that “whenever circumstances permit,” an armistice should be concluded so as to facilitate the search for the wounded. Of course, while searching for the wounded, the dead would also be found.
The International Committee of the Red Cross (ICRC) Commentary to the Geneva Convention says that the dead must be brought back along with the wounded. One reason for this is that in the highly charged atmosphere of the battlefield, it might not always be possible to determine who is really dead and who is seriously wounded. Another reason is that the laws of war require that an effort be made to identify the dead and to provide a proper burial.
The treatment of the battlefield dead can be divided into two aspects. First, there is a prohibition on deliberate mistreatment of the body, either through failure to treat it with appropriate respect or through mutilation. Second, there is a prohibition on pillaging the dead. These mandates concerning the dead are as much derived from the customary laws of war as from the Geneva Conventions.
The Geneva Conventions take the customary rules further. In Article 16 of the First Geneva Convention, we find an obligation for the party that has the body to send to the other party (usually through a neutral power or the ICRC) written evidence of death. Where the body is identified with the required double identity disk, one half of the disk, along with any personal effects found on the body, is to be sent to the other side.
Article 17 of the First Geneva Convention is concerned specifically with the burial of the battlefield dead. The bodies are to be examined, preferably by a person with medical skills, so as to confirm death. Burial is to be, where possible, in individual graves. The idea is that individual graves would be more consistent with the general requirement that the dead be respected, and also that individual burial would make subsequent exhumation easier. The requirement, however, is not absolute. Climate, sanitation, and hygiene may make mass burial the only proper action. The remaining half of the double identity disk must remain with the body. Cremation is prohibited except where it is based on the religion of the deceased or where imperative reasons of hygiene justify cremation.
Where possible, the burial or cremation is to be done in accordance with the religious rites of the deceased. The bodies are to be grouped according
Mutilation of the dead is actually a fairly rare occurrence in well-disciplined armies. This is probably as much the result of a general revulsion at such conduct as from a fear of criminal punishment. However, pillaging the dead is a greater problem. In World War II the U.S. Army prohibited soldiers taking as “war trophies” any item that evidenced disrespectful treatment of the dead. A similar prohibition exists today. Nonetheless, there is a recognized right to search the dead for information that might be of some intelligence value. But private property of the deceased must be safeguarded for later delivery to the deceased’s own military authorities.
As this summary indicates, the duty owed to the dead is somewhat subjective. What sort of conduct constitutes disrespect? How can we determine when neglect of the dead has ceased to be mandated by considerations of military necessity and become evidence of the war crime of mistreatment of the dead? There are no hard and fast answers to these questions. However, if the dead are left on the battlefield for some time after the fighting has ended, their very presence is evidence of failure to meet the obligations imposed by law. If the dead are left on the field solely so that they might be seen by journalists or photographed, that is stronger evidence that the threshold of mistreatment is near. If the dead are placed on display as propaganda (dragging the bodies through the streets as occurred in Somalia is a ready example), then the threshold has been crossed and a war crime has been clearly committed.
The laws of war accept that death is an inherent part of war. They also recognize that the disposal of the dead will be given less immediacy than the care of the living.
The raison d’etre for protecting and honoring the dead is captured in the inscription on the Tomb of the Unknowns in Arlington Cemetery: “Here Rests in Honored Glory an American Soldier Known But to God.” That sentiment is not one peculiar to Americans.
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