Working Paper: The Legal Obligation to Record Civilian Casualties of Armed Conflict

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Dr Susan Breau and Rachel Joyce
1 June 2011

The Legal Team of the Recording Casualties of Armed Conflict programme have identified an international legal obligation to record the civilian casualties of armed conflict, through extensive research. This discussion paper presents their findings.

Summary of the findings

The Oxford Research Group’s Recording of Casualties of Armed Conflict Project has concluded a research project on identifying the international legal obligation to record civilian casualties of armed conflict. As a result of extensive research into international customary humanitarian law and the treaties that embody obligations for states in international humanitarian law and international human rights law, the research team has identified the elements of the international legal obligation. The various sources of law drawn upon to identify this right include the Geneva Conventions; the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and other human rights instruments; reports and statements of the United Nations; case law of the European Court of Human Rights and the Inter-American Court of Human Rights; and the principles of customary international law.

When placed in the context of casualty recording, the principles spread amongst these instruments and sources come together naturally to form a binding obligation on states. The findings of this report indicate that a move towards establishing a systematic mechanism of casualty recording in all theatres of armed conflict is necessary and required by law.

The content of the international legal obligation to record every civilian casualty of armed conflict:

1. There are binding international legal obligations upon parties to armed conflict to:

a) to search for all missing civilians as a result of hostilities, occupation or detention;
b) to collect all of the casualties of armed conflict from the area of hostilities as soon as circumstances permit;
c) if at all possible the remains of those killed is to be returned to their relatives;
d) the remains of the dead are not to be despoiled;
e) any property found with the bodies of the dead is to be returned to the relatives of the deceased;
f) the dead are to be buried with dignity and in accordance with their religious or cultural beliefs;
g) the dead are to be buried individually and not in mass graves;
h) the graves are to be maintained and protected;
i) exhumation of dead bodies is only to be permitted in circumstances of public necessity which will include identifying cause of death;
j) the location of the place of burial is to be recorded by the party to the conflict in control of that territory;
k) there should be established in the case of civilian casualties an official graves registration service.

2. These international legal obligations taken together constitute a binding international legal obligation upon every party to an armed conflict to record every civilian casualty of armed conflict whether in an international or non-international armed conflict.

 

For further ORG reports that address the use of drones in conflict see:

‘Discussion Paper: Drone Attacks, International Law, and the Recording of Civilians of Armed Conflict’

‘Working Paper: The Drone Wars and Pakistan’s Conflict Casualties, 2010’

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