Ukraine Symposium – Photos of the Dead

As the death toll in the war between Russia and Ukraine climbs, the issue of how to properly treat the remains of dead soldiers has become a recurring theme (see, e.g., here and here). Some media reports claim, for example, that Ukrainian forces are publishing photographs of dead Russian soldiers on social media so family members can “determine whether the images feature a missing loved one.” Others allege they are identifying fallen Russians using facial recognition software and directly notifying family members of their soldier’s death using the scanned photos (e.g., here and here; see also here). Ukrainian officials assert that the notifications are necessary to ensure that Russian soldiers’ next of kin, “who have limited access to non-state-controlled media and information,” are reliably notified without interference from Russian disinformation and to “dispel the myth of a ‘special military operation’ in which there are ‘no conscripts’ and ‘no one dies.’”

The law applicable to international armed conflict, including the 1949 Geneva Conventions, Additional Protocol I to those instruments, and customary international law, governs the activities of both Russia and Ukraine. Some observers have condemned the alleged Ukrainian practices and suggest that publishing photos of dead soldiers violates Article 13 of the 1949 Convention Relative to the Treatment of Prisoners of War (GC III), customary international law, or both (e.g., here and here). The dissemination of photos to family members also raises the separate issue of whether doing so violates the process for notifying next of kin outlined in the 1949 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I). This post examines whether publishing such photos or sending them to family members violates the law of armed conflict.

Publishing Photos of Enemy Remains and the Law of Armed Conflict

Much of the criticism regarding the publication of the photos implies the practice violates Article 13 of GC III, which provides that prisoners of war “must at all times be humanely treated” and “protected, particularly against acts of violence or intimidation and against insults and public curiosity.” According to those critics, publicly disseminating an enemy soldier’s photograph is humiliating and, therefore, strictly prohibited (see International Committee of the Red Cross (ICRC), 2020 Commentary, ¶ 1624).

But this assertion does not hold up to close examination because Article 13 does not apply to enemy remains found on the battlefield. Instead, GC III protections only apply to soldiers “who have fallen into the power of the enemy,” i.e., prisoners of war, not remains found on the battlefield (Article 4). As to the issue of family notification, the procedures the Convention sets out only pertain to those “who die as prisoners of war” and “prisoners of war who have died in captivity” (Article 120; see also Article 122; ICRC 2016 Commentary to GC I, ¶ 1350). GC III does not include any law of armed conflict protections for soldiers who die in battle.

Turning to customary international law, “one of the oldest rules in the law of war” is to treat the remains of fallen soldiers with respect (DoD Law of War Manual, § 7.7.1). Although respect is a vague and inherently subjective term, disrespectful treatment typically requires specific indignant acts committed against or with corpses (see § 7.7.1.1). Rule 113 (Treatment of the Dead) of the ICRC’s Customary International Law study, for example, states, “Each party to the conflict must take all possible measures to prevent the dead from being despoiled. Mutilation of dead bodies is prohibited.”

The rule’s specificity implies that only acts meeting a certain threshold of disrespect are prohibited. This is consistent with the criminalization of the maltreatment of the dead in international criminal law. Article 8(2)(b)(xxi) of the Rome Statute, for example, prohibits humiliating, degrading, or indignant acts against dead bodies “of such a degree as to be generally recognized as an outrage upon personal dignity.” The threshold for misconduct involving bodies is, therefore, relatively high.

Although photographs may have a nexus to prohibited misconduct, it is typically the underlying inhumane behavior captured in photographs that violates customary international law, not the photographs themselves. Chief Petty Officer Eddie Gallagher, for example, posed for pictures with a slain fighter he stabbed while the man was receiving medical assistance, then conducted a reenlistment ceremony over the corpse. He sent one of the photos to a friend with the caption, “I got him with my hunting knife.” While Gallagher was ultimately acquitted of murder and other charges, he was convicted of “wrongfully pos[ing] for an unofficial picture with a human casualty.” The photograph was not itself criminal; the act of indignantly posing with the body—akin to claiming a kill as a war trophy—was (see DoD Law of War Manual, § 7.7.1.1).

This distinction is reflected in the U.S. 2019 Manual for Military Commissions, which excludes “photography of a corpse unaccompanied by acts of severe disrespect,” such as dismemberment or sexual defilement, from the war crime of intentionally mistreating a dead body (p. IV-16). Examples of photographs disseminated by the government are also illustrative. In 2003, for instance, the U.S. DoD released photographs of Saddam Hussein’s sons to prove to skeptics that the leaders were, in fact, dead. This was part of a larger DoD effort to encourage Iraqis to cooperate with U.S. forces without fear of reprisal from Baathist sympathizers. Additionally, photographs, even those depicting war crimes, are often published to hold perpetrators accountable.

In sum, while the scope of the customary international law requirement to treat the dead with respect is subjective, it does not categorically proscribe publishing photographs as such. Instead, it prohibits severe desecration, such as mutilation, despoilment, dismemberment, or sexual defilement, which may happen to be documented in photos.

There is no evidence to suggest any of the photos published by Ukraine depicted underlying misconduct prohibited by customary law, such as mutilation or beheading. Though the pictures may be graphic, disturbing, or emotionally distressing, especially to family members, the descriptions in the media do not rise to the level of prohibited conduct. Any claims that Ukraine violated customary international law are, therefore, unfounded.

Using Photos to Notify Next of Kin and the Law of Armed Conflict

As to the notification issue, customary international law imposes broad obligations on States with regard to the dead. As captured in the ICRC’s Customary International Law study, custom requires States to search for and collect the dead (Rule 112), “endeavor to facilitate the return of the remains of the deceased” upon request (Rule 114), and record information about the fallen before disposing of their remains (Rule 116). In contrast to GC I, however, it does not prescribe a specific process for notifying the next of kin.

The relevant treaty law is found in GC I. Article 15 requires parties to “search for the dead and prevent their being despoiled.” Once remains are found, their custodians must create a record containing identifying and other administrative data, which must then be forwarded, along with the deceased’s personal effects, to a national “Information Bureau” (Article 16; see also see DoD Law of War Manual, § 7.7.2.2). Information Bureaus are official entities created by each party that liaise and coordinate through the Central Tracing Agency, a neutral intermediary organization managed by the ICRC, for the transfer of information and effects between hostile parties concerning prisoners and dead soldiers (see GC III, Articles 122 and 123; see also DoD Law of War Manual, § 9.31.2; U.S. Army Regulation 190-8, ¶ 1-7). Once the Central Tracing Agency forwards information from the custodial party, the deceased soldier’s Information Bureau should notify the next of kin (see Article 16; see also ICRC 2016 Commentary to GC I, ¶ 1599; GC III, Article 123).

Ukraine does not appear to be violating customary international law by disseminating photos of dead soldiers to their family members in Russia. On the other hand, it may be violating the process outlined in GC I for notifying their next of kin. According to reports, Ukraine’s forces are contacting family members without using the Central Tracing Agency as an intermediary. This is arguably a technical violation of GC I, Article 16.

Ukrainian officials assert, however, that direct coordination is necessary to circumvent Russian disinformation, which includes “lying to its citizens about the number of the dead” (see ICRC 2016 Commentary to GC I, ¶ 1596, stating “Transmittal may also be suspended where the information is repeatedly (mis)used for propaganda purposes…”). In their eyes, the notifications are a reliable way to ensure next of kin are informed about their soldiers’ fates without Russia obstructing the process. According to Ukraine’s view, they are endeavoring to implement the spirit, if not the letter, of GC I (but see ¶ 1596, stating “Such suspension is a matter for the [Central Tracing] Agency and not for the Power into whose hands the persons have fallen.”).

Critics may counter that Ukraine’s purported purposes for distributing the photos are disingenuous; the actions are instead part of an information campaign to attack the will of the Russian people. In light of reports that Russia has “sought to conceal” casualty reports and is abandoning its dead on the battlefield without adequate attempts to search for and collect their remains, however, it is difficult to determine with reasonable confidence that Ukraine is operating in bad faith.

Conclusion

Simply publishing photographs of fallen soldiers, unlike the severely disrespectful acts they may depict, does not violate the law of armed conflict. Notifying next of kin outside of the official channel outlined in GC I may do so. Still, it is unclear whether the unique facts of this conflict excuse Ukraine’s technical departure from its treaty obligations.

This does not mean that publishing photos of fallen soldiers’ remains, whether on social media or to family members, is appropriate behavior. It has undoubtedly caused significant concern to many. And their concerns potentially have policy implications that may not benefit Ukraine.

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Major William C. Biggerstaff is a military professor at the Stockton Center for International Law at the U.S. Naval War College, where he co-teaches a course on the Law of Armed Conflict.

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