Armed Groups and the Need for State Mechanisms to Account for the Dead

About the author(s):

Kathryn Hampton is a human rights advocate in the field of refugee protection. She has worked with the Organisation for Security and Cooperation in Europe, the International Rescue Committee, the International Commission on Missing Persons and Physicians for Human Rights. She is currently Head of Impact at Rainbow Railroad, a not-for-profit organisation that helps LGTBQI+ people facing persecution. She has worked in Bosnia-Herzegovina, Iraq, Turkey, Ukraine and on the U.S.-Mexico border. She has published widely and was awarded the 2021 American Society of International Law Francis Lieber Prize for an exceptional article in the field of the law on armed conflict. She holds degrees in International Human Rights Law (Oxon), Refugee Protection (Lond) and Comparative Literature (Princeton).

Bilyana Petkova Khan has over a decade of professional experience working in the fields of human rights and armed conflict. She currently serves as a Human Rights Officer at the UN OHCHR in Geneva (Switzerland). Previously, Bilyana supported complex war crimes prosecutions in Kosovo and analysed and reported on violations in the context of the conflict in eastern Ukraine. She carried out similar functions while working with both NATO (Belgium) and Interpol (France). Bilyana holds a Bachelors degree in Law, and two Masters degrees in Public International Law and International Security (Jean Moulin Lyon III University). She is fluent in English and French, and conversational in Russian.

Deaths are an unfortunate yet expected occurrence in the context of armed conflict, whether of international or non-international character. Accounting for the dead due to hostilities or in other situations such as custodial deaths raises significant challenges if information about the deceased is not recorded or their remains not identified and collected. Not only could victims become missing, but this could also result in the deprivation of identity which may be understood as an injury and an indignity to the dead.

Identification is also critical for returning bodies to their families, safeguarding their rights, including the right to truth, prevention of missing persons, and may be important for prosecution, as well as facilitating access to humanitarian assistance regardless of the conflict classification. Further, a confirmation of death is important for families to mourn and bury their loved ones and to proceed with the legal aspects of the death, such as inheritance or child custody, which in turn, could impact children’s right to nationality and access to services. Accounting for the dead is, moreover, a means of fulfilling “the right of human beings not to lose their identity after death”. 

   The duty to record deaths in international armed conflicts (IACs) is much more clearly defined in the law than the duty to record deaths in non-international armed conflicts (NIACs). However, the ICRC has identified a rule of customary international humanitarian law (IHL) applicable in both IAC and NIAC: “With a view to the identification of the dead, each party to the conflict must record all available information prior to disposal and mark the location of the graves”. In practice, a critical issue emerges in this regard, notably when organised non-state armed groups (NSAGs) aspire to perform state-like functions and thus use “means at their disposal” to regulate the daily life of civilians, and, accordingly, provide death certificates to populations they “govern”. 

Accounting For the Dead: The Legal Gap in NIACs 

While the IHL of belligerent occupation provides a well-regulated legal regime for the protection of persons and the administration of territory in IACs, no such provisions – beyond essential humanitarian rules protecting civilians – exist in NIACs. As noted in one opinion, IHL was designed to regulate the protection of civilians in NIACs against violence, without comprehensively regulating the relationship between people and authorities, the latter relationship being governed by human rights law. As noted by others, this gap also reflects the reluctance of States to permit interference in their sovereignty. Military and civilian casualty numbers from non-government-controlled areas can be politicised, as States may not wish to acknowledge that their military operations are resulting in civilian casualties or may dispute military casualty numbers. 

This legal gap impacts civilians’ ability to access  documentation in general, compounding the situation of the at least 64 million people currently living in areas fully controlled by armed groups. The lack of regulation in NIAC is disconnected from the reality, given the proliferation of armed groups and NIACs and the fact that, as stated in another opinion, life will “go on” and life-cycle events, such as birth, death, marriage, or divorce, will continue to occur and impact families in the exercise of their rights.  

Within the context of IACs, States are required to collect bodies from the battlefield and record information to aid in identification, as well as to issue death certificates or certified lists with information about the identity and circumstances of death (GC I, Art. 16, GC II, Art. 19(1), GC III, Art. 120(2), GC IV, Art. 129). 

Specimen 25M.

A number of institutional mechanisms to identify and account for the dead are also foreseen in IAC law, including the establishment of an official Graves Registration Service for identifying bodies and marking graves, information bureaux for collecting and transmitting information about prisoners of war and civilian internees, and a Central Information Agency in a neutral country for collecting and transmitting information about prisoners of war, civilian internees and missing persons. 

In contrast, none of the institutions such as the Grave Registry Service are legally required to be set up in NIAC contexts, thus leaving a gap regarding how deaths should be recorded in NIACs. However, one scholar suggests that belligerent parties should nevertheless be encouraged to set up similar structures. Although the ICRC customary rule, mentioned above, refers to recording information and marking grave locations, State and non-State practice indicates that this may include a range of activities, including collecting one half of the double identity disk (i.e. military ID tag) and issuing death certificates. The establishment of death certificates could be an “appropriate method” of identifying the dead after burial. 

As of July 2022, 77 non-State armed groups “fully and exclusively” control territory and 262 contest and fluidly control territory; 82 percent of these groups have exercised such control for four or more years. Despite the growing number of armed groups parties to NIACs that are in control of territory, a mere four percent of these armed groups provide service provision such as legal documentation for vital events.

Case Study: the Islamic State (IS)

In the context of Syria, multiple armed groups active in areas beyond Government control since February 2012 have issued civil documentation through their de facto governance structures to populations living under their control. At its peak between 2015 and 2017, the Islamic State (IS)  controlled a territory equivalent to the size of the United Kingdom in parts of Syria and Iraq. Documentary evidence indicates that the IS established a bureaucratic system, and dedicated significant efforts to provide state-like governance services to an estimated 12 million people under its rule, including security and police, but also municipal offices some of which provided life-cycle event documentation. IS received requests to issue death certificates from family members of deceased individuals among their ranks who appeared to have died in battle, presumably for widows to be able to remarry.

In parallel IS confiscated official State civil documentation, rendering people reliant on IS documents alone and in effect forcing them to prove life-cycle events should they have (or been willing) to request State documentation after its territorial defeat in 2019. An outcome of this was that families with suspected familial links to IS returning to Iraq in early 2018 faced significant obstacles to obtain, if at all, official State documentation, with some unable to prove that a civil event such as death had even occurred. These people were instead met with suspicion and questioned about the whereabouts of the deceased spouse. In turn, without death certificates, women are also unable to obtain birth registration and an ID for the child born to the (now deceased) alleged IS fighter As IS-issued documents appear to have been used as proof of allegiance and support for the group, others were also denied the security clearances required by the Iraqi security apparatus for the issuance of State documents. Similarly, birth registration for children born to IS fighters was also not possible for Syrian women who returned to their places of origin in Syria in 2019. Although discriminatory denials of access to civil documentation may violate the prohibition on collective punishment, the lack of clear regulation in IHL opens the door to State refusal to recognise insurgent documentation as legitimisation of terrorism, evading their obligations to families. 

The way forward 

Despite the lack of explicit black letter provisions related to identification of the dead in NIACs, the obligation of humane treatment to those rendered hors de combat could potentially be applied to deceased persons. Alternatively, surviving relatives could argue that a failure to account for the dead amounts to inhuman treatment or an outrage upon personal dignity for relatives of the deceased.     

Although States bear the primary responsibility for upholding the rights of surviving family members, NSAGs such as the IS have demonstrated effective control of territory alongside the capacity to account for the dead by means of issuing death certificates. Though States are increasingly introducing procedures to recognise the fact of death including for inheritance purposes, insurgent death certificates are not considered as evidence.

  The establishment by States of a mechanism that allows for the details contained in documents issued by NSAGs to be used as evidence of death could make a significant contribution in preventing the dead from becoming missing persons and ensuring access of surviving relatives to key rights. Such a mechanism would also comply with the spirit of IHL given duties related to accounting for the dead in IAC and customary IHL. As customary Rule 116 is based on state practice, it seems that states have some level of agreement that accounting for the dead is still relevant, necessary and meaningful for parties to NIACs. Families should not continue to lose the right to know the fates and whereabouts of their relatives due simply to conflict classification.

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