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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.
One of the consequences of war is the death of some of those who
get caught up in it. From time immemorial, the proper disposal of
the dead has been a military concern. In earlier times the proper
disposal of the battlefield dead often had religious overtones.
Also, the dead on the battlefield were an immediate hygienic problem.
Often, the need to avoid the diseases which could come from the
untended dead was enough to force some humane disposal of the bodies.
But, the law does not rely solely on the religious practices or
the health concerns of the living. The proper disposal of the dead
is now mandated by law.
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
to nationality and the cemeteries mapped in such a way as to make
later exhumation easier. This is the core of the Geneva Convention
duty to the dead—they are to be treated honorably and their
graves protected.
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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