What Does the Law of War Say About Mishandling Human Remains in Iraq?

Stars and Stripes relays word that entertainment website TMZ has obtained pictures of US Marines burning Iraqi bodies in Fallujah in 2004. Stripes is withholding publication of the photos until more is learned about their context.

Likewise, I’ll refrain from commentary on the photos until then. In the meantime, I do want to address the relevant Law of War in response to a point made by Pentagon spokesman Col. Steve Warren:

The pictures show U.S. servicemembers in what could be a violation of the Uniform Code of Military Justice, which makes it a crime to mishandle remains. Warren added that these actions would not be a violation of the laws of war — but would be a violation of General Order No. 1, which governs conduct in a given war zone.

“On the burning, you know, it’s hard to tell [whether it’s a violation],” Warren said. “While we don’t routinely burn human remains, there are circumstances when that might be necessary for hygiene, health — things like that.”

I believe Colonel Warren is, if not mistaken, oversimplifying the position of the Law of War on the mishandling of human remains. Mishandling human remains is clearly prohibited by the First Geneva Convention. The only ambiguity that I can see is in whether the First Geneva Convention applied to the Iraq conflict at the time of the incident.

Articles 15 and 17 of the First Geneva Convention require parties to international armed conflict to protect the dignity of the dead and to provide for a proper burial when possible. The first paragraph of Article 15 states [emphasis mine]:

At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to…search for the dead and prevent their being despoiled.

Article 17 explicitly prohibits cremation “except for imperative reasons of hygiene or for motives based on the religion of the deceased.” It requires that burials be conducted “honourably”:

[Parties to the conflict] shall further ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged…

So the prohibition on mishandling human remains in international armed conflict is clear. However, the First Geneva Convention applies only in the following circumstances:

to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party…

Legally, armed conflict between the US and Iraq ended when the US deposed the Iraqi government on April 9th, 2003. Iraq then became subject to US occupation until the US Coalition Provisional Authority transferred power to the Iraqi Interim Government on June 30, 2004.

After June 30, 2004, the US remained in Iraq with the consent of the Iraqi government (such as it was). This agreement marked the legal transition of the Iraq war from occupation to an internal armed conflict in which the US was allied with the Iraqi government against insurgent forces.

Since Common Article 3 of the Geneva Conventions is the only law that applies to internal armed conflict, mishandling of human remains might not be a violation of the First Geneva Convention if it occurred in Iraq after June 30, 2004 (more in this PDF).

Quite a technicality, I know. The legal transitions I describe had little bearing on the warlike conditions on the ground. But without knowing when in 2004 the pictures were taken, we can’t say whether the Law of War is applicable to the acts depicted in them.

Again, we lack the information to determine if a violation of domestic or international law occurred. But as we wait for more information, we should keep in mind that the law of war does address the mishandling of human remains in certain circumstances. I’d argue as well that mishandling remains always violates the spirit if not the letter of the law.

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