Dead Bodies of War in Legal-Historical Context

“We have come for the bodies of the slain, wishing to bury them in observance of the universal law ….”

Euripides, The Suppliants, ca. 423 BCE[i]

Since the early days of the war between Ukraine and Russia, there have been various accounts of what is being done or not being done with the bodies of the dead. Images of unburied bodies in the streets of Bucha were broadcast worldwide. Ukraine collected Russian dead with a view to exchanging them for Ukrainian bodies. Russia allegedly booby-trapped dead bodies in Bucha and is claimed to advance over the corpses of their fallen comrades. Blogposts in Articles of War and elsewhere have discussed the legal background of some of these issues, such as the taking of photographs of the dead in order to disseminate information about their identity. This post places reports on what is done with the bodies of the dead of war in a historical-legal perspective. How did previous generations deal with their war dead in various eras of world history?

To Bury or Not to Bury?

Like us, past societies had cultural traditions or spiritual notions about the right way to treat the bodies of war dead. Some form of disposal in accordance with a society’s conventions, such as interment or cremation, was generally an important part of those customs. For the Ancient Greeks this meant bringing the dead home for an elaborate state funeral. The Ancient Romans however preferred burial in situ on the battlefield, as the one time they brought the dead home, the parade of mangled bodies was so abhorrent to the population that enlistment plummeted. The Middle Ages were an era of anonymous mass graves for the majority. Total abandonment of the dead, even though not unheard of, was generally rare. Over time, regulations on the disposal of the dead of war have found their way into modern international law (GC I, art. 17; GCII, art. 20; GCIII, art. 120; GCIV, art. 130; CIHL Rule 115).

A society’s care for the dead generally did not extend to the enemy’s fallen. If an opponent’s dead bodies were provided a funeral, it was a particular sign of respect, usually bestowed only upon a few officers. Often parties would allow the other to collect their own dead; if these were not retrieved, they were simply abandoned. Situations where one party buried all dead, including all of their adversary’s bodies, are rare. Society has come to think differently about this, and non-discrimination is now a firmly established rule in the international law on the dead of armed conflict (GC Common Art. 3; GCIII, art. 16; GCIV, art. 13; API, art, 75.1; APII, art. 4.1, DoD Law of War Manual, para. 7.7.1).

Looting and Commodification

Throughout history, the dead of war have proved to be a source of valuables. People used to follow armies and wait for battles to be over in order to take material goods from the dead. ‘Hyenas of the battlefield’ was an expression commonly used to describe such looters. Taking items off the dead—and not always only from the bodies of one’s opponent!—was not necessarily malicious, but was a way of rearming oneself and preventing weaponry from falling into the hands of the enemy. Egyptian king Ptolemy “stripped the enemy corpses of their arms and armour.” Here we see a modern parallel: acquisition of armaments left by the adversary is perfectly acceptable in international law (Hague Convention II (1899) and IV (1907), arts. 23.g, 28, 46 and 53; CIHL Rule 49).

Opportunist gain for personal riches, another timeless motivation to steal from the dead, however, is not permitted (see Commentary on GCIII (2020), para. 1837). Commodification of the dead, such as fashioning dentures with teeth recovered from the battlefield (for example, the famous “Waterloo teeth”), sourcing anatomical specimens from the slain, commercial trade in souvenir body parts, and medicinal use of human body fat, all documented practices from the past, would be frowned upon in today’s international courts. For one thing, extensive looting and manipulation of the dead hampers chances of identification, which is highly valued in today’s law and society.

Individuality and Identification

The importance assigned to the individuality of the dead varies over time and place, but it is a constant throughout history in some form or another. The Ancient Greeks and Romans kept muster rolls and would check losses against these. The identification tags used by military forces worldwide since approximately WWI—and even earlier in the United States—had their precursor in the Spartan skytilades, a small wooden tablet inscribed with the bearer’s name. However, identification exists in degrees: individuality in death was in many cultures a privilege of the higher classes. While the bodies of knights and nobles were repatriated with pomp and ceremony, the masses most often disappeared into unmarked mass graves for much of the European medieval period. At most they would be identified as a member of a certain collective or community. Such collective identification was possibly all that was culturally required, but very likely also partly due to the condition of bodies.

Taphonomic processes can disfigure corpses very fast, even more so when they were damaged. According to an apocryphal story, after a particularly bloody confrontation between the Ancient Greeks and Egyptians the bodies of the dead were mangled to such a degree that each party only managed to extract their own dead by the shape of the feet: the ones with a longer second toe, the so-called “Greek foot,” were identified as Greeks, the rest as Egyptians. With the advance of science, individual identification gained importance, as did the desire of families to have their dead returned. In the American Civil War, some persons made a living out of tracing bodies for bereaved families, and methods of conservation and transport home of the dead became an opportunity for clever entrepreneurs.

Instrumentalizing the War Dead

Some societies went further than merely looting or commodifying the corpses of their adversaries. The Gauls would behead enemy cadavers, display the skulls on stakes, and fashion spiritual ritual objects out of crania. On multiple occasions the Crusaders propelled heads or entire bodies into besieged cities, and indigenous peoples in the Americas and the South Pacific collected scalps or other trophies. Cannibalism or ritual slaughter too is a documented practice, as eye-witness accounts from the Spanish conquest of South America and the Crusades testify. Some societies’ spiritual beliefs required them to absorb the strength of opponents by consumption or by display of the most powerful body parts, such as the head, which contained the soul, or phalli, as a mark of power and prowess. These days, mistreatment of the dead may classify as a war crime (Rome Statute of the ICC, 8.2.b.xxi).

The dead were not, and are not, a neutral element in warfare. They often played a vital part in forging an outcome or influencing the course of belligerence, for example through games of deception. A Roman commander buried a number of his dead under cover of darkness to hide his losses. Russian troops reportedly followed a similar tactic in Ukraine. But the dead have been instrumental in more pragmatic ways as well. An Assyrian King was said to have used the bodies of his opponents to build a bridge across a river. The first documented case of biological warfare allegedly occurred when the Tartar army propelled plague-ridden bodies of deceased soldiers into a besieged city. Warlord Saladin recovered several bodies of highly placed Christian knights after battle with a view of exchanging them for prisoners. Israel and Palestine have been known to make similar exchanges in recent years, and much the same plan is entertained by Ukraine today. More brutal uses of the dead in warfare are unfortunately abundant, such as the display of dead bodies by ISIS as a show of strength, and the deployment of booby-traps on bodies and burial sites.

Conclusion

Respect for the dead, identification of remains, and repatriation of bodies are values we share with past peoples. The treatment of enemy dead is on paper equal to that of one’s own troops. However, in many cases the practical implementation of this rule of non-discrimination of the dead lags behind. Looting the dead, commodification of corpses, and other abuse of the dead we also have in common with our historical precursors. History and current times demonstrate that violence towards the dead involves ostentatiousness and theatricality, aimed at showing contempt, discouraging opponents, sowing fear, asserting superiority. One might wonder whether current international law should devise more robust responses to such conduct that is unreconcilable with key principles of humanitarian law and human rights.

[i] Verse 670, translation E.P. Coleridge, Random House 1938. BCE = Before Common Era.

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Welmoet Wels is a lecturer and PhD candidate at the University of Groningen in the Netherlands.

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