Dana E. Heitz
Heitz Legal, Berlin
dana@heitzlegal.com  

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‘[T]he office of burial is said to be performed not so much for the man, that is, for the person, as for mankind, that is for human nature . . . A natural consequence of this is that burial ought not to be denied either to private or to public enemies.’

Hugo Grotius

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Bodies are piling up – Russian and Ukrainian, combatant and civilian.

And atrocities are still being inflicted on the living. Yet it would be a mistake to forget the bodies, to leave them unburied in fields of battle or memory.

While a dead person can't assert rights to privacy, bodily integrity, dignity, or property, some lawyers and legal scholars argue that the dead have legal interests. These reflect an ongoing ‘symbolic existence’ where biological death does not equate to biographical cessation.^[1]

Likewise, international humanitarian law (IHL) is often associated with crimes against the living – starvation or forced migration, for some terrible examples. But IHL helps to define and defend the dignity of the war dead, as well.

After all, the dead are susceptible to insult. Several countries have convicted and sentenced combatants for causing outrage to personal dignity in taking and publishing photos of themselves posed with mutilated corpses.^[2]

And though silent, a dead body still speaks. Its scars or tattoos describe its life. Its condition tells what happened to it, and at whose hand. Its mere existence testifies to loved ones who will mourn it, or wait suspended between hope and grief until learning of its fate.

The bodies ask us to not forget their experiences. And the law promises to remember.

Protection of the dead under IHL

Like other forms of humanitarian action, identifying human remains – telling the stories of the dead – provides a service to the living, that is, the families. But beyond this, it also pays respect to the humanity of the deceased.^[3] Their lives and deaths mattered; their unlawful killing does not place them beyond the scope of human concern.

Under IHL, the dead thus represent a ‘distinct category of victim’.^[4]

This status is preserved both in customary law and under the Rome Statute. In a study of the rules of customary law, the International Committee of the Red Cross identified the requirement that after an engagement, dead bodies be collected ‘without adverse distinction’. Another rule prohibits mutilating dead bodies and requires taking measures to prevent despoliation. Another requires efforts to return the bodies of the dead to their families. Further rules require identification and respectful disposal of the dead and recording and maintenance of their graves.^[5]

The Rome Statute's Article 8(2)(c)(ii) prohibits as a war crime ‘outrages upon personal dignity, in particular humiliating and degrading treatment’. Its application is not precluded simply because the object of such treatment is dead. In a footnote, the Elements of Crimes of this provision recognises that ‘“persons” can include dead persons’, and also that ‘the victim need not personally be aware of the existence of the humiliation or degradation or other violation’.

Under these international rules, how the dead are treated can be itself a violation of IHL. The limited state of publicly available, reliable information related to Russia's invasion of Ukraine does not yet allow a thorough analysis, and whether and which IHL violations have occurred will have to await full investigation and adjudication.

But we know that in this war, sometimes, how bodies are managed leads to their stories being told. And sometimes it doesn't.

Bodies in Ukraine

IHL charges the parties to a conflict with the obligations of collecting and identifying the dead and notifying families of their fate.^[6] ‘But’, writes one scholar, ‘not all soldiers are equal in death, and some countries invest much more in remembering the fallen than others’.^[7]

Little information is available about the Russian war dead. Russia's central strategy is apparently one of denial, of refusing to tell the stories of their dead because the resulting ‘tears and suffering’ would be bad for morale and potentially harm further recruitment.^[8]

In fact, the number of dead is a state secret kept so tightly that the Russian government has refused to release names of missing soldiers even to facilitate their bodies’ return from Ukrainian custody, lest this hint at the number of soldiers killed.^[9]

And while a few families have spoken about their losses or posted about them on social media, pressure from the government and sometimes from friends and neighbours leads many to remain silent.^[10]

Still, despite widespread reticence, reporters have found evidence of how Russian soldiers treat the bodies they have caused to die. One reporter in Ukraine recognised that many bodies of Russian troops are simply abandoned, calling this ‘a startling practice that flouts a common code among combatants’.^[11] And an analysis by the New York Times determined that bodies of civilians killed in the Kyiv suburb of Bucha had been left for three weeks where they fell, while the town was under Russian control.^[12]

On the Ukrainian side, a reliable overview of actions in combat zones is also difficult to achieve. But here too, reporters have provided sketches depicting how compatriots and adversaries are handled.

For example, NPR describes a nationwide effort, Evacuation 200, which cares for the emotional and practical needs of fallen soldiers’ families. Its volunteers take care of paperwork related to soldiers’ deaths, and deliver the bodies back to the families.^[13]

And as of May, Ukrainians in the Kharkiv region were collecting dead Russian soldiers. They took samples of their DNA, to be matched with the DNA of war crime suspects, and stored their bodies in refrigerated train cars. Explaining the need for this work, one Ukrainian soldier said that they were collecting bodies for ‘sanitary reasons’ – to preclude their being eaten by dogs. Yet he was also acting with the knowledge that eventually ‘we will return them to their loved ones’ – an awareness echoed by another soldier, who hoped that the respectful treatment of Russian corpses would increase the likelihood that the Russian army would also return the war dead of Ukraine.^[14]

In early June, such an exchange did take place. Of thousands of bodies on each side, each exchanged 160.^[15] An additional exchange is said to have taken place at the end of August, involving the bodies of 541 dead soldiers, including 300 who had defended a steel plant in Mariupol.^[16]

Before the exchanges of bodies, Ukrainian officials indicated their readiness to ‘give them all back ... but there is no response, no dialogue’.^[17] The BBC juxtaposed Russia's slogan ‘we don't abandon our own’ – a pretext for the invasion itself – with its refusal to bring home its own.^[18] Ukraine's President Zelenskyy called Moscow's initial failure to reach an agreement for exchanging war dead ‘disrespectful’ to Russian families.^[19] ‘I’m saying this to you as the president of a country that is fighting with Russian soldiers’, he said. ‘It’s a war, but they are not animals.’^[20]

On the Ukrainian side, several families have accused Ukraine's government of being ‘less than helpful in recovering’ the remains of their loved ones.^[21] And while some Ukrainian soldiers acknowledge the rule of IHL, at least with respect to maintaining the integrity of corpses,^[22] others have been distributing videos showing photos of Russian remains, in violation of the Geneva Conventions.^[23]

Future IHL obligations toward the dead

When the fighting is over, and for whatever reason, international obligations will continue. Enormous efforts are already ongoing to collect evidence of war crimes in this conflict, which may lead to ‘the biggest effort in history to hold war criminals to account’.^[24] After the conflict ends, the process of accountability can get fully underway. And along with investigations and trials, the duty to preserve the memory of the dead will remain.^[25]

These duties, including obligations to search for missing persons, assist with the reunion of families and maintain grave sites, are not limited to the duration of active conflict.^[26] The Geneva Conventions apply obligations to search for the dead not only during armed conflict but ‘[w]henever circumstances permit, and particularly after an engagement’.^[27] Memorials to the dead present another ongoing obligation: Article 34 of AP I and GC I Article 17(3) require states to ‘permanently’ protect, maintain and facilitate access to grave sites, specifying that this be done in a such a manner ‘that they may always be found’.^[28] In conflicts such as those in the Balkans and in the Nagorno-Karabakh region, states and NGOs have responded to the need under IHL to identify missing persons, update records and make information public.^[29] These obligations do not end with the fighting.

International law thus refuses to abandon the dead. It strives to ensure their dignity and it continues to listen to their stories.

Even after the war's end, humanity and justice depend on the willingness of the living to listen as well.

Notes