The need to respect and (physically) protect the dead is well established under international and national laws and extends to human remains found in mass graves. Once mass graves are discovered, and prior to any investigation, the dead in mass graves should be secured to an extent through the protection of the site itself. Should investigations follow (due to human rights abuses or breaches of international humanitarian or international criminal law), then the dead, if excavated, are in the custody and protection of the investigating authorities. Following successful identification of human remains, their return to the next of kin may be possible, or appropriate reburial may ensue.

Engagement with mass graves is complex: no two mass graves are the same, and contexts differ, as may the legal framework governing mass graves. Building on the Minnesota Protocol, international standards for a rights-informed response to human remains found in mass graves are proffered by the Bournemouth Protocol on Mass Grave Protection and Investigation. A new research project now collates information to generate a digital global map of mass graves and asks how and to what extent this holds protective value. Such regularized mass grave mapping was advocated by former United Nations Special Rapporteur Agnès Callamard; indeed, mapping is increasingly employed in human rights contexts as a protection and justice-monitoring measure.

By combining legal, forensic and anthropological insights in responding to the question of data collation in relation to mass graves, this paper sheds light on ways of both conceptualizing and operationalizing digital mapping of mass graves and appraises what kind of protection this may hold for the dead. Structured into four main interrelated sections, the paper briefly anchors data collation as a protection measure under international legal provisions; it then examines the challenges associated with the curation and creation of a global map of mass graves by adopting anthropological, forensic and legal lenses on the subject of mass graves and the data generated surrounding the dead. In a third step, the paper outlines the methodological challenges encountered during the pilot phase of the study, before then offering analysis and discussion on our preliminary findings, where we conclude that the informative value of mass grave mapping holds protective potential, particularly in the absence of physical protection.

As well as offering an original inquiry that fits well with the theme of “protection of the dead”, the paper investigates the very boundaries of protection measures in the context of mass graves and what value they may hold. Such contribution to knowledge and practice is increasingly pressing in situations where physical protection of the dead is not forthcoming, and as an avenue to offer some (albeit incomplete) protection mechanisms for emerging mass grave landscapes: migratory deaths and the threat of mass fatalities arising from extreme climatic events.

The circulation of harrowing war images on traditional and social media – beheaded soldiers, mutilated bodies and civilians burned alive by flames – underscores a profound and enduring connection between war, death and photography. While this nexus is not novel, contemporary developments in the speed, scale and permanence of visual media have opened new questions worth examining. This article aims to dig deeper into whether and how the normative landscape for protecting the inherent dignity of the deceased is evolving and the role that new challenges posed by digital media and the pervasive nature of contemporary visual media play in this process. The relevance of this study rests on the premise that ongoing academic and public debates tend to focus on the issue of media censorship, overshadowing critical inquiries into the legitimacy and legality of the display of certain images. Thus, it is argued that, in the context of publishing and disseminating images of the war dead, it is essential to examine not only what is hidden but also what is shown and how. This is especially pertinent given the asymmetric representation of death and conflict in the Western media, which frequently reinforces distant, “othering” perspectives. Finally, by examining the issue through multiple lenses, namely those of international humanitarian law, international human rights law and international criminal law, this study aims to provide a more comprehensive framework for addressing the ethical and legal dilemmas posed by war photography in the digital age.

Michael S. Pollanen is a Canadian medical doctor with over twenty years of experience as a forensic pathologist and Professor at the University of Toronto. His main area of expertise is the application of forensic medicine to investigating human rights abuses, with a focus on clinical and autopsy investigations of torture, extrajudicial killing, and death of detainees, and humanitarian action. He is also dedicated to forensic capacity development in resource-limited settings in order to strengthen medico-legal systems. He has consulted for various organizations and is a past president of the International Association of Forensic Sciences. Michael has worked in over twenty countries and has published over 100 peer-reviewed articles.

The principle of equality of belligerents mandates that the rules of international humanitarian law (IHL) apply equally to each party in an armed conflict, regardless of the legality of their use of force under jus ad bellum. This principle has been extensively analyzed in academic literature; its importance is universally recognized and its legal foundations and effects are well defined. However, this is primarily true with respect to its application in international armed conflicts (IACs) – in contrast, the principle does not receive equivalent recognition in situations of non-international armed conflict (NIAC), where at least one party is a non-State armed group. The issue arises from the lack of an accepted definition of the principle in NIACs, given the absence of any applicable international jus ad bellum in such conflicts. The present paper will try to remedy this issue by proposing that the principle is composed of two elements: symmetry of application and symmetry of substance. It will introduce this definition as it applies to IACs and NIACs and argue that the principle in NIACs is primarily defined by its symmetry of substance component. It will also evaluate the principle’s nature as a general principle of IHL and explore some of its concrete effects on IHL rules.

The mistreatment of corpses during armed conflicts is a grim and ancient practice that persists in modern warfare despite the protections afforded to the dead under international humanitarian law (IHL). This article explores the application of the war crime of outrages upon personal dignity to acts committed against the deceased. Sketching the development of the prohibition against maltreatment of the dead in the early laws and customs of war, it identifies post-Second World War prosecutions as the turning point where violations of such IHL provisions were clearly sanctioned as crimes imputing individual responsibility under international law. Turning to the elements of the modern war crime of outrages upon personal dignity, the article appraises the scant engagement of international criminal courts and tribunals with the offence in contexts involving the dead. It stresses that jurisprudencial guidance must be primarily sought in national case law from European jurisdictions, which have, in recent years, played host to the prosecution of a significant number of war crimes cases involving the degrading treatment of corpses. On the basis of this jurisprudence, the article then revisits the elements of the war crime, examining the particulars of the offence in the context of the dead.

Judge Roberto Carlos Vidal López is a Lawyer and Professor at the Pontificia Universidad Javeriana in Bogotá, where he gained a PhD in law. Since 1997 he has been a Professor and Expert Researcher there on human rights, international humanitarian law (IHL), forced migration and internal displacement. He has also studied history.

In addition to his work as a Professor, Judge Vidal López has been a Lecturer at the Universidad del Rosario and a Visiting Researcher at the University of Essex in the United Kingdom. He has worked for the Ideas for Peace Foundation, the United Nations in Colombia, the International Association for the Study of Forced Migration, the University Network for Peace, the Ombudsman’s Office of Colombia and the Brookings Institution, a major Washington-based think tank. He has also produced thirty publications, including Truth-Telling and Internal Displacement in Colombia (2012), The Participation of Internally Displaced People in Peace Processes in Colombia (2007) and Derecho global y desplazamiento interno: Creación, uso y desaparición del desplazamiento forzado por la violencia en el derecho contemporáneo (2007).

Although there is one law, there are many motivations for complying with it. This was one of the key findings of the Roots of Restraint in War study published in 2018 by the International Committee of the Red Cross (ICRC). Building on this insight, this article examines a few recent accounts of international humanitarian law (IHL) violations and two general categories of psychological states which may have given rise to them. It then explores the modern-day value of warrior codes and martial notions of honour, and reviews the ICRC’s recent work to find convergences between IHL and various religious or traditional value systems. The article offers some important caveats which should be kept in mind when undertaking work which compares morality, ethics and the law, before finally presenting some implications of this work for IHL integration and dissemination activities. Civilian IHL practitioners do not need to embed themselves into military life in order to understand military perspectives on IHL, but it would be helpful for them to consider the many ways in which troops internalize norms and how to incorporate extra-legal concepts into IHL integration and dissemination activities in an appropriate way.

Data has become central in various activities during armed conflict, including the identification of deceased persons. While the use of data-based methods can significantly improve the efficiency of efforts to identify the dead and inform their families about their fate, data can equally enable harm. This article analyzes the obligations that arise for States regarding the processing of data related to the identification of deceased persons. Despite being drafted long before the “age of data”, several international humanitarian law (IHL) provisions can be considered to give rise to obligations which protect those whose data is used to identify the dead from certain data-based harms. However, some of these protections are based on a data protection-friendly interpretation of more general obligations, and many only apply in international armed conflict. Against this background, it is suggested that further analysis on how international human rights law and domestic or regional data protection law could help to strengthen the case for data protection where IHL does not contain specific duties to protect data would be desirable.

While sexual violence is receiving increasing attention in terms of international humanitarian and criminal law, and on the world political scene, this does not apply to all aspects of such crimes. Sexual acts on dead bodies are a common practice in times of armed conflict, constituting an affront to universal moral values that exacerbates the violence, domination and humiliation which motivates such abuses. However, such crimes have rarely been prosecuted under international criminal law, and where they have, perpetrators have been charged with umbrella offences or in connection with the protection of human dignity rather than with sexual offences. To explain this tendency, the present article takes stock of the legal treatment of sexual violence on dead bodies, examining the legal, philosophical and moral concepts that apply, with a view to obtaining recognition of such acts as sexual offences.

As the International Committee of the Red Cross (ICRC) and other international organizations (IOs) are undergoing significant digital transformation and operate in an increasingly digitalized environment, questions as to how they can continue to ensure their information security are becoming more acute. Legal tools to protect IOs from harm in the digital age are central in this regard, alongside technical and organizational measures. This article focuses on one specific legal tool that can be used to foster IOs’ information security, namely legal interpretations of the concept of inviolability. Specifically, the article explores how the Agreement on the ICRC’s privileges and immunities in Luxembourg interprets the scope of the concept of inviolability, and the obligations arising under it.

The posthumous identification of Argentine soldiers killed in action during the international armed conflict in the Falkland Islands/Islas Malvinas was the result of the Humanitarian Project Plan, an unprecedented humanitarian forensic operation carried by the International Committee of the Red Cross at the request of Argentina and the United Kingdom. As a result of respect for international humanitarian law obligations to the dead and the novel use of humanitarian forensic action to help make this possible, tombstones that once read “Argentine soldier known only to God” now bear a name, thereby assuring their families of the fundamental right to know the final fate of their loved ones. This project was originally requested by relatives of unidentified soldiers and some veterans of the war, and was agreed to and supported by the parties to the past armed conflict. Although the unidentified soldiers were not missing (as it was known that they had died on the battlefield and that they were buried with dignity in a military cemetery, although without identification), it was essential for their relatives to have their names restored and to be able to honour them in their respective graves. While this was a logistically challenging and complex forensic operation, the main challenges were not exclusively logistical and scientific, but were political and diplomatic as well. At the completion of two Humanitarian Project Plan missions, 121 Argentine soldiers originally buried without a name had been identified; one identity had been corroborated and the remains of one body that were buried in two different graves were reassociated. All families were informed.

In its Macro Case 01, the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP) studied massive detentions committed by the Revolutionary Armed Forces of Colombia – People's Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) to determine if they should be remanded to amnesty proceedings or tried as international crimes. This included the question of detention of civilians and persons hors de combat for an eventual “humanitarian exchange” with imprisoned guerrilla fighters. The JEP concluded that this was in fact the crime of hostage-taking, because the sole reason for the detention was to force a “prisoner exchange”, and conditions of detention were so harrowing that persistent detention amounted to a threat to the life and physical security of the hostages. While the JEP did not refer to conditions of lawful detention, the ruling does suggest circumstances of lawful detention by non-State armed groups and limits to their authority to detain.

This article analyzes the main investigative and legal challenges addressed by the Acknowledgment Chamber of the Colombian Special Jurisdiction for Peace (SJP) in Case 07 on recruitment and use of children in the armed conflict. First, it presents a general background on the mandate of the SJP as a special system of justice – the outcome of the 2016 Final Peace Agreement reached between the Colombian government and the former FARC-EP guerrilla group. Second, it outlines how the investigative methodology used in Case 07 addressed challenges related to understanding child recruitment as a complex criminal phenomenon, the identification of those bearing the greatest responsibility, and the approach to the broad scale and scope of the victimization. Finally, the article addresses the main challenges faced by the Chamber in the legal qualification of the criminal patterns identified, and how it resolved three key issues: the determination of the age threshold under which child recruitment constitutes a war crime, the definitions of the international humanitarian law status of protections of individuals within an armed group, and the classification of different forms of gender-based violence as war crimes.

Imagine a future where man and machine become one on the battlefield, where soldiers direct weapon systems through a neural implant. Research advances on brain–computer interfaces (BCIs) may eventually allow such control of arms at the speed of thought. This article sketches two modes of BCI-controlled weapon systems. In Mode A (active BCI), the soldier opens fire by actively imagining that he is pushing a button with his hand. By contrast, Mode B (reactive BCI) captures neural signals evoked instantly after having spotted a target, before the operator becomes consciously aware of it. If he deems the target lawful, the brain signal is translated into a command to fire. Arguing that such man–machine collaboration transforms the operating soldier into a means of warfare, this article conducts a weapon review in line with Article 36 of Additional Protocol I (AP I) to answer the question of whether BCIs can be lawfully used to control weapons in international armed conflict. Consequently, the two set-ups are reviewed on their compliance with the customary targeting principles of international humanitarian law. Since Mode B casts doubt on the amount of control that the soldier retains over his targeting decision, the concept of meaningful human control is transposed from the debate on lethal autonomous weapon systems and applied to BCIs. It is found that reactive BCIs cannot be meaningfully controlled and thus violate the principles of distinction and proportionality. Hence, reactive BCIs are unlawful under Article 36 of AP I.

The search for missing persons requires the implementation of national plans that integrate a combined judicial and humanitarian approach. This article examines how national search plans in Colombia, Chile, Mexico and Peru have incorporated international standards on the search, exhumation, recovery, protection, identification, and restitution of human remains of missing persons and victims of enforced disappearance. Through a comparative analysis between the search plans and international humanitarian and human rights law instruments, common elements in the regulation of these matters are identified. The research reveals that the national normative frameworks of the search plans incorporate international standards in a detailed and precise manner, but the effective implementation of these standards in practice is problematic. The study concludes that, despite normative advances, significant challenges remain in the search for and recovery of victims of enforced disappearance, requiring a renewed commitment by States to comply with their international obligations. By addressing these critical issues, the article not only contributes to the academic debate, but also invites attention to the need to imagine new interdisciplinary strategies aimed at improving the efficiency and effectiveness of efforts to search for victims of enforced disappearance in diverse transitional contexts.

This case note examines the International Court of Justice’s (ICJ) 2022 reparations judgment in Democratic Republic of the Congo v. Uganda, analyzing the Court’s legal reasoning, its evidentiary approach, and the implications for future reparations cases. The 2022 judgment follows the ICJ’s 2005 ruling that found Uganda responsible for violations of international law during its military intervention in the Democratic Republic of the Congo (DRC). Given the failure of negotiations between the parties, the ICJ determined the amount of reparations owed, awarding a global sum of $325 million – substantially lower than the DRC’s claim. The case addresses complex legal and evidentiary questions, including the causal link between Uganda’s wrongful acts and the damages claimed, the standard and burden of proof for reparations, and categorizing harm. The Court examined four heads of damage, which were damage to persons, damage to property, damage to natural resources and macroeconomic damage, dismissing the latter due to insufficient proof of causation. A key aspect of the judgment was the ICJ’s adoption of a global sum approach – an uncommon approach in the Court’s practice. This case note assesses the lack of clear reasoning and methodology for determining the exact amount awarded for each head of damage.

Additionally, the ICJ’s over-reliance on United Nations reports and its application of standards of proof raise concerns about consistency and clarity in reparations proceedings. This case sets a precedent for State responsibility in mass violations of international law but highlights challenges in quantifying harm and ensuring equitable reparations. The Court’s reasoning and methods in the case may influence future cases involving State responsibility, armed conflicts, and reparative justice under international law.

The tradition of sepulchre, the recognition that a human body has intrinsic emotional and moral worth to those left behind after death and thus should be handled with dignity and respect, is timeless and knows few cultural boundaries. Its basic tenets are codified in international humanitarian law (IHL) – but codification and interpretation are entirely different things. What does it mean to state that parties to a conflict should ensure that bodies are handled with “adequate care”? What constitutes adequate? What precisely does it mean that bodies should not be “despoiled”? US courts have wrestled with the rights of surviving family members – and the corresponding duties of society – for over 200 years and have slowly crafted a cohesive and comprehensive consensus body of law as it relates to sepulchre. This article presents some of the logic and rationale used by American jurists in the evolution of US common and statutory law controlling the management of the dead in the hope that it may provide some insight into the interpretation of IHL.

This article explores the implications of attaching military chaplains and similar religious personnel to State and non-State fighting forces, and what this means for international humanitarian law (IHL). IHL assigns religious personnel a non-combatant humanitarian function equivalent to medical personnel, stipulating that they should perform exclusively religious duties. This underestimates the scope of “religious” activity, however, particularly the moral dimension of their ministry and the force-multiplying and restraining effects that this has on combatant behaviour. As representatives of non-State institutions embedded within military structures, many religious personnel also enjoy a unique degree of access to – and separation from – the chain of command, and can leverage this autonomy to influence the conduct of hostilities. The more that religious personnel are invested in the achievement of a fighting force's military objectives and are involved in its military operations, the likelier it is that they will test the parameters of their humanitarian function, and the protections they enjoy, under IHL. Moreover, some clerics associated with fighting forces do not aspire to non-combatant or exclusively humanitarian status, and should not be considered religious personnel. It is in the midst of armed conflict that religious personnel are most needed, however, and the tensions and ambiguities between their religious and military support functions are integral to their cross-cutting role. The contribution that religious personnel can make to humanizing war, and socializing IHL or corresponding religious principles, depends on them being present to support combatants and not confining themselves to a separate, but less effectual, humanitarian space. Criteria for their humanitarian exclusivity, attachment to fighting forces and protections under IHL therefore require some clarification.

This article examines the role of international humanitarian law (IHL) in safeguarding artisanal fishing communities residing along the banks of the Magdalena River in Colombia after the recognition of the river as a rights-bearing entity1 and a victim of the armed conflict. The article also explores the potential of targeted peacebuilding interventions for achieving sustainable well-being, ecological restoration and enduring peace. Against the backdrop of historical conflict, the Magdalena River and its adjoining communities have suffered significant harm, requiring widespread reparations that go beyond immediate crisis management. The study proposes a comprehensive approach for achieving sustainable well-being, ecological restoration and enduring peace, acknowledging the complex connections between legal frameworks, environmental considerations and the cultural heritage of the riverine community.