Mass Grave in Sudan: Revisiting the Rules on the Treatment and Disposal of the Dead
On July 13, 2023, UN High Commissioner for Human Rights, Volker Türk, reported that eighty-seven bodies were discovered in a mass grave in the west of the Darfur region in Sudan. According to the report, local people had no option but to dispose of the dead bodies in a mass grave because the Rapid Support Forces (RSF) left the dead unattended.
The RSF are a party to the ongoing non-international armed conflict (NIAC) in Sudan. According to credible information gathered by the UN Office of the High Commissioner for Human Rights, the RSF killed the victims between June 13 and 21 in the districts of Al-Madaress and Al-Jamarek, located in El-Geneina. According to the UN Report, witnesses said that many bodies were left lying in the streets for days on end as mediation efforts for access to and burial of the dead by the community were delayed.
Collection and Disposal of the Dead
Death is an inevitable consequence of armed conflict. The collection and dignified handling and disposal of dead bodies is an operational reality that international humanitarian law (IHL) provides for. The IHL applicable to NIAC includes specific rules regarding the management and decent disposal of the dead. These rules are important not only to ensure respect for the dignity of the dead but also for hygiene reasons and to alleviate psychological trauma suffered by the families of the deceased. Additionally, dignified treatment of the dead ensures that the dead do not become unaccounted for.
The legal regime that regulates the management of dead bodies is not restricted to the decent disposal of the dead. Other obligations include the prohibition of ill-treatment and mutilation of dead bodies, and a duty to endeavor to facilitate the return of human remains and the personal effects of the dead. The purpose of this post is solely to address the RSF’s failure to properly deal with those who died in the NIAC in Sudan, which led to members of the community disposing of the dead in a mass grave. The post first revisits the IHL rules in treaty law that govern the decent disposal of the dead in situations of NIAC before turning to address the position under customary international law.
Conventional Law of NIAC
The conventional law of NIAC includes few provisions relating to the treatment of the dead. Article 8 of Additional Protocol II to the Geneva Conventions (AP II) is the only treaty provision which addresses the issue of the decent treatment of the dead. This applies to NIACs that meet the requirements set out in Article 1(1) of AP II. Sudan is a State party to AP II.
It is clear that shortly after the fighting erupted in Sudan, it satisfied the Tadić criteria to constitute a NIAC (para. 70). In the case of Sudan, it is not necessary to conduct an organizational analysis because the RSF were a part of the Sudanese Armed Forces and it is, therefore, assumed that they are sufficiently organized. I agree with Jelena Pejic that the RSF constitute dissident armed forces within the meaning of AP II. Dissident armed forces refer to sections in the armed forces that rebel against the government and break their previous ties that bind them to government control.
The intensity threshold necessary to trigger the law of NIAC was almost immediately satisfied when fighting began on April 15, 2023. Duration is only an indicative factor of protracted armed violence, therefore it is possible to classify a high intensity NIAC almost instantaneously. A higher level of intensity that does include duration is, however, required to meet the demands of AP II. This is owing to the inclusion of the term “sustained” in the construct “sustained and concerted military operations” included in Article 1(1) of AP II. At time of writing, more than three months have passed since the commencement of the NIAC, and in my view the conflict has become “sustained.”
Article 1(1) of AP II introduces four compulsory criteria with which a non-State fighting unit must comply to satisfy the notion of “organized armed group” for the purposes of the four conditions are: the presence of a responsible command structure; control over a portion of the opposing state’s territory; the ability to launch sustained and concerted military operations from such a territory; and, lastly, the ability to implement the provisions of AP II. As Pejic shows in her own analysis, facts from the ground support the assertion that the situation is an AP II-type armed conflict.
As such, the provisions of AP II, including Article 8, apply to the conflict in Sudan. In order to prevent despoliation, Article 8 of AP II provides that all possible measures must be taken to search for the dead and that dead bodies must be disposed of decently. The International Committee of the Red Cross (ICRC) 1987 Commentary to Article 8 touches briefly on the content of the protections offered to the dead. Essentially, the Commentary provides that the dead are entitled to be paid their last respects and to receive a decent burial after a (religious) service, if such a service is necessary.
This obligation to properly manage the dead and to protect their dignity binds each party to an AP II-type NIAC. Clearly, leaving the dead to despoil where they were killed for days on end (some were reportedly left for up to thirteen days) is a violation of Article 8 of AP II. It seems that the RSF made no efforts to allow for or facilitate any sort of burial. However, the duty under Article 8 of AP II binds only the parties to the conflict, namely the RSF and the Sudanese Armed Forces. It does not bind the local people who, in their view, had no option but to dispose of the dead in a mass grave.
Customary Law of NIAC
Should the situation in Sudan fall short of meeting AP II’s requirements, the customary law of NIAC still binds all parties to the conflict and regulates the disposal of the dead. According to rule 112 of the ICRC Customary IHL Study, the parties to a NIAC are under a duty to search for, evacuate, and collect the dead especially after an engagement. Rule 113 of the study is a corollary to rule 112. According to rule 113, each party to the conflict must take all possible measures to prevent the dead from being despoiled. Leaving dead bodies unattended is thus a violation of customary international law. From the available facts it seems that the RSF engaged in fighting or targeted civilians and moved on without any regard for the dead.
Rule 115 of the ICRC Study on Customary IHL provides that the way in which the dead are disposed of must be respectful. The rule further demands that graves are respected and maintained. Rule 116 relates to the parties’ obligations to account for the dead prior to disposal. Simply disregarding the dead and leaving it to the community to deal with, which seems to be the situation in West Darfur, is a clear violation of the customary international law obligation reflected in the rule. The law demands that parties to the conflict in Sudan, both government forces and the RSF, must record all available information about the dead prior to disposal and mark the location of the graves.
To properly record information regarding the dead, it is advisable that those responsible for this task collect one half of the double identity disk for members of the armed forces. Rule 116 necessitates all parties to the conflict to record the disposal of the dead and facilitate the burial of the dead in individual graves. There is a prohibition on automatic recourse to the use of collective graves. According to the commentary to Rule 115, bodies should in principle be buried in individual graves. Collective graves may only be used if the circumstances do not permit individual graves, or if they render the use of collective graves unavoidable.
Final Remarks
Those who died at the hands of the RSF were left unattended for days after they were killed. This was due to the RSF actively blocking and purposefully delaying the community from accessing the dead.
There is a clear legal duty on all parties to a NIAC to search for and recover the dead. The corollary duty is to identify the dead and record all available information prior to disposing of the dead bodies in a marked grave. Identification and the collection of information are described as “obligations of means” meaning that parties to the conflict must do the best that they can with whatever means they have available to fulfill this duty. The RSF were under a legal obligation to allow for and facilitate a decent burial for the dead who fell victim to their actions in the west of Darfur. However, they neglected this duty. The consequence was that members of the community disposed of the bodies in a mass grave, which delayed the provision of a proper burial for the dead. It must be emphasized, however, that the duty to decently dispose of the dead was binding on the RSF, as a party to the NIAC, and not the members of the community.
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Photo credit: Henry Wilkins/VOA
