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Commentary - Remains of deceased
    [p.365] Article 34 -- Remains of deceased


    [p.366] 1295 Article 34 is concerned with the remains of persons who have died, as shown in the title, and with various problems linked to the burial of such persons. It develops the Conventions by introducing new provisions and moreover, by extending the personal field of application of existing provisions.

    Paragraph 1 -- Respect for remains and gravesites

    1296 This paragraph is concerned with the respect due to the remains and gravesites of persons insofar as these are not covered by other provisions of the Conventions or Protocol I.

    1297 Thus it concerns only remains and gravesites that "would not receive more favourable consideration under the Conventions and this Protocol". It therefore excludes:

    - combatants who have died in battle and who are covered by Articles 15 -17 of the first Convention, and by Articles 18 -20 of the Second Convention;
    - prisoners of war who have died during a period of detention and who are covered by Articles 120 and 121 of the Third Convention;
    - protected civilians who have died during internment and who are covered by Articles 129 -131 of the fourth Convention.

    1298 It therefore covers the following categories:

    a) ' Persons who have died for reasons related to occupation '

    1299 The whole population of occupied territories seems to be covered by this provision. Nevertheless, the following are excluded:

    - civilian internees, as these enjoy greater protection under the Conventions (see above);
    - the nationals of the Occupying Power. (1) However, under Article 75 ' (Fundamental guarantees) ' the latter are entitled to humanitarian treatment if they are detained for reasons related to the conflict, (2) and it is clear that such [p.367] humanitarian treatment implies a respect for their remains and a decent gravesite;
    - persons who have died for reasons not related to the occupation. However, with the exception of nationals of States not Parties to the Conventions, such persons are covered by Article 27 of the fourth Convention, which provides in particular that they are entitled in all circumstances "to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs", and that "they shall at all times be humanely treated". It is clear here, too, that such a provision implies, at the very least, a respect for the remains of the dead and a decent burial in accordance with their religious practices.

    1300 As regards Article 34 , paragraph 1, this is concerned more specifically, as shown above, with persons who have died "for reasons related to occupation". The connection between the occupation and the death is not defined more precisely. It basically relates to persons who are victims of armed conflicts, particularly of bombardments, and to persons killed by the armed forces of the Occupying Power for failing to comply with security regulations related to the occupation, such as curfews. It is probably advisable to limit this category to clear-cut cases such as these, and to exclude cases which are less clear, such as death which is to some extent hastened by a lack of medication or by the grief resulting from separation (it may be recalled that respect for the remains and gravesites of persons who have died for such reasons is, in any case, implicitly imposed by Article 27 of the fourth Convention). (3)

    1301 Finally, nationals of States not Parties to the Conventions should also be considered to be covered by this provision, (4) if they have died for reasons related to the occupation.

    b) ' Persons who have died in detention resulting from occupation or hostilities '

    1302 With the exception of civilian internees and the nationals of the Party concerned, this category concerns:

    - persons whose detention results from occupation. There is no difference intended between detention "resulting from occupation" and the phrase "during occupation", used in paragraph 2 of Article 33 ' (Missing persons). ' (5) This remark is important also in relation to the category mentioned above under a), because of the fact that persons detained for reasons of occupation can obviously die for reasons that are not related to occupation;
    - persons "in detention resulting from hostilities". It would have been more precise to refer here to "the hostilities" as we are concerned with the same armed conflict which gave rise to the application of the Protocol in the first place (apart from the above-mentioned occupation problem). The French text is not more precise here, as it also omits the definite article ("d'hostilités"), [p.368] although in Article 33 ' (Missing persons), ' paragraph 2(a), it did use, in a similar context, the definite article ("des hostilités"). However, the English text in Article 33 ' (Missing persons) ' is as imprecise as it is in Article 34 . Yet, the reference to "detention resulting from hostilities" should be understood in the same way as the corresponding one in Article 33 ' (Missing persons). ' (6)

    c) ' Persons not nationals of the country in which they have died as the result of hostilities '

    1303 These are persons who are in the territory of a Party to the conflict and who are:

    - neither nationals of that Party to the conflict;
    - nor persons who fall under a more favourable régime under the Conventions and Protocol I. (7)

    1304 They therefore comprise:

    - nationals of States not Parties to the conflict or co-belligerent States who are in the territory of a Party to the conflict where the State of which they are nationals has a "normal diplomatic representation", (8) and who are therefore excluded from the protection of Part III of the fourth Convention. In the event of their death, such persons are therefore covered by this provision, even if the problem should in principle be solved without recourse to international humanitarian law;
    - nationals of the adverse Party (other than prisoners of war and civilian internees), nationals of States not Parties to the conflict and nationals of co-belligerent States who are in the territory of a Party to the conflict where the State of which they are nationals does not have a "normal diplomatic represention". In fact, such persons are covered by Part III of the fourth Convention, but apart from the general provisions of Article 27 , (9) Part III does not contain any provisions concerning the remains and gravesites of the dead;
    - nationals of States not Parties to the fourth Convention, who are therefore not Parties to the Protocol either.

    1305 All such persons are covered by this provision of Article 34 , if they have died as a result of hostilities. Death may be due in particular to bombardment or other attacks, possibly aimed directly at such persons in violation of international humanitarian law, or they may be victims of incidental damage resulting from attacks on military objectives. (10) Their death may be immediate or not. For example, if a man spends a year in hospital because of injuries caused by bombardment, and dies after this period from his injuries, he is of course covered. [p.369] But here, too, there may be borderline cases where the causal link between death and hostilities is not clear. However, there must undoubtedly be a direct causal link. (11)

    1306 There are two requirements vis-à-vis the persons listed above: respect for their remains, and respect for and maintenance and marking of the gravesites.

    a) ' Respect for remains '

    1307 Article 34 , paragraph 1, is very brief in this respect, simply stating that the remains of certain persons "shall be respected", without any further clarification. Reference should be made to the provisions of the Conventions, (12) to determine the contents of this obligation. Basically this consists of preventing the remains from being despoiled and from being exposed to public curiosity, by placing them in an appropriate place before burial or cremation. This also, for that matter, constitutes a measure of essential public hygiene. Respect for the remains also implies that they are disposed of as far as possible in accordance with the wishes or the religious beliefs of the deceased, insofar as these are known.

    b) ' Gravesites '

    1308 Gravesites must be "respected, maintained and marked as provided for in Article 130 of the fourth Convention". That article deals with the burial or cremation of civilian internees and the relevant provisions of that article therefore apply to the gravesites of the persons covered by this paragraph.

    1309 As regards respect, Article 130 mentions respect for graves without any further explanation. It shows how much this is considered self-evident.

    1310 However, the same article also lays down a principle of individual graves, and only permits cremation in exceptional circumstances "for imperative reasons of hygiene, on account of the religion of the deceased, or in accordance with his expressed wish to this effect". The duty to retain the ashes and transfer them to the next of kin is also mentioned. These provisions arise from a respect for both the remains and for the gravesites, and this should be duly taken into account.

    1311 Moreover, Article 130 states that graves should be "properly maintained", and above all, that they must be "marked in such a way that they can always be recognized". This is certainly the essential element, and even the main object, not only of marking the grave, but also of maintaining it properly. (13)

    [p.370] Paragraph 2 -- Access to and maintenance of gravesites; return of the remains

    ' Opening sentence '

    1312 This sentence imposes the obligation to conclude agreements of which the subject matter is specified in sub-paragraphs (a), (b) and (c). This obligation rests on the "High Contracting Parties in whose territories graves and, as the case may be, other locations of the remains of persons who have died as a result of hostilities or during occupation or in detention are situated".

    1313 The persons whose graves or remains are situated in the territory of the Contracting Party are those covered by paragraph 1, even though the wording of paragraph 2 seems to have a broader scope. However, the development of the situation should be taken into account. Thus, for example, a Contracting Party occupying the territory of the adverse Party would be affected by these provisions if the said adverse Party had buried in such territory some of its own nationals who had died as a result of hostilities.

    1314 The fact that "other locations of the remains" of such persons are mentioned in addition to graves is in order to take into account all eventualities, lawful or unlawful, such as, in particular, cremation, collective graves, and even mass graves consequent upon atrocities committed during hostilities. (14)

    1315 The obligation concerns the "High Contracting Parties". The Parties engaged in a conflict such as that provided in Article 1 ' (General principles and scope of application) ', paragraph 4, which have made the declaration provided for in Article 96 ' (Treaty relations upon entry into force of this Protocol), ' paragraph 3, are not mentioned. However, this omission has no legal consequences as Article 96 ' (Treaty relations upon entry into force of this Protocol), ' paragraph 3(b), provides that the authority representing such a Party "assumes the same rights and obligations as those which have been assumed by a High Contracting Party to the Conventions and this Protocol". (15)

    1316 However, in practice the agreements concerned presuppose lasting control of the territory which such a Party rarely has in fact. Thus they should act in accordance with the spirit of these provisions to the extent that they are able to do so. Depending on the circumstances, some ad hoc procedures could be envisaged, particularly through the good offices of the Protecting Powers or the ICRC.

    1317 Finally, the obligation to conclude agreements only enters into force "as soon as circumstances and the relations between the adverse Parties permit". This phrase was discussed at length in Committee II. (16) At first the Working Group of Committee II preferred the solution of using the same expression that was used in Article 33 ' (Missing persons), ' paragraph 1, namely, "as soon as circumstances permit, and at the latest from the end of active hostilities". (17)

    [p.371] 1318 The Committee then opted for the expression "as soon as circumstances permit", (18) but in the end it agreed on the formulation that was finally adopted, and which did not give rise to any comments (19) after a statement emphasizing the difficulty of carrying out agreements permitting access of families to gravesites whilst hostilities were continuing. (20)

    1319 It could be claimed that the relations between the Parties constitute part of the "circumstances" which make it possible to conclude such agreements or not. However, the more specific wording has the advantage of emphasizing the importance of such relations, which obviously form the key to the problem. The very flexible wording which was finally adopted should make it possible to deal with important humanitarian problems raised by this paragraph without seeing any political motivation behind this. It is clear that it is up to the Parties concerned to determine whether their relations permit the conclusion of such agreements, but in the event there is nothing to prevent Protecting Powers or the ICRC from suggesting them.

    1320 Finally, it should be noted that the Parties to the agreement are not identified, but it is clear that these will be States with a legitimate interest in the remains situated in the territory of the Contracting Party concerned, an interest based on the fact that the remains are those of their nationals or of others for whom they are responsible, insofar as they meet the criteria set out above (21)

    ' Sub-paragraph (a) -- Access to gravesites '

    1321 The first of the agreements which the Contracting Parties must conclude within the restraints described above concerns access to gravesites, which was presented on behalf of the co-authors of the initial proposal as an "obvious and fundamental humanitarian need". (22)

    1322 Those benefitting from the agreement are first of all the "relatives" of the persons who have died and who meet the criteria listed above. (23) The concept of "relatives" has been examined above. (24)

    1323 Another category of beneficiaries is also mentioned, namely, representatives of official graves registration services. In fact it is important that a census of the dead and an accurate report on the location of gravesites should be carefully drawn up by the services of every State concerned, particularly in order to facilitate the informing of families and for the solution of various problems, whether legal or otherwise. However, it is not impossible that a Contracting Party may consider that the situation only permits access for families or, conversely, for the graves registration services. In such cases agreements are made in two stages.

    [p.372] 1324 The agreements should "facilitate access to the gravesites", which is not a very precise wording. Obviously this primarily means that the persons concerned should be able to enter the territory and, if necessary, be granted a visa. Then they should be informed exactly where the graves are located. However, in practice many problems may arise concerning in particular the transport of persons, or the exact location of a grave at the indicated site, and this applies all the more if the armed hostilities have not yet terminated. This did not escape the notice of the drafters of the Protocol. This instrument therefore requires, in addition to agreements facilitating access to the gravesites, that the Contracting Parties concerned "regulate the practical arrangements for such access". Thus, if necessary, special transport should be made available, and specific dates fixed for the persons concerned to avoid possible congestion. Officials able to locate the graves should be made available at the site and, in short, all that is necessary for the agreement to be put into operation in the best conditions.

    ' Sub-paragraph (b) -- Protection and maintenance of gravesites '

    1325 Paragraph 1 lays down obligations relating to the establishment, marking and maintenance of gravesites, as mentioned in this paragraph. The problem posed by this sub-paragraph concerns the duration of such obligations. The maintenance of gravesites after all involves financial expenditure which cannot be laid ad infinitum to the charge of countries where gravesites of other countries' nationals are located. (25)

    1326 As the sponsors of the initial proposal stated, the fact that the State of origin of the dead must bear the cost of maintenance of gravesites in the territory of another State is "a necessary corrollary to the duty of maintaining such graves. Otherwise, the State responsible for the maintenance of the graves might rightly feel itself overburdened" (26)

    1327 Thus bilateral agreements must be concluded to solve this problem, as the sub-paragraph under consideration here requires, and a procedure should be laid down in case agreements cannot be concluded. This is done in paragraph 3. (27)

    1328 Moreover, in this respect it should be noted that the Conventions do not deal with this problem and do not specify a time-limit on the obligation to maintain gravesites. (28) Even though the system now laid down only officially applies to the gravesites concerned here, which are not those covered by the Conventions, it must be admitted that in future it will also be applied to the latter, in this way filling an obvious gap in the Conventions.

    [p.373]
    ' Sub-paragraph (c) -- Return of the remains '

    1329 The second field in which the Contracting Parties referred to in this paragraph are obliged to conclude agreements is that of repatriating the remains of the dead covered by this sub-paragraph.

    1330 It should be noted that the Conventions do not provide for the repatriation of the remains of deceased persons which are dealt with by specific provisions. (29) They do not, of course, exclude this, but they do not contain any procedure to be followed. Thus this provision can again serve as an example, not only for the dead explicitly covered, but also for those covered by the Conventions. When they presented the initial proposal, the co-sponsors clearly indicated that although they intended to extend the procedure to cases which had not been previously covered, their aim was still "a clarification of the procedure and time with respect to the duty to allow the exhumation and return of the remains of a deceased person". (30)

    1331 The return of the remains of the deceased provided for here should form the object of an agreement as should that of their "personal effects". In this respect it should be noted that the first and Second Conventions provide for the automatic forwarding of the personal effects of deceased combatants to the Power on which they depend, by the Information Bureau referred to in Article 122 of the Third Convention. (31) The Third Convention lays down the same procedure for articles left by prisoners of war "who have been repatriated or released, or who have escaped or died". (32) Similarly, the forwarding of personal valuables of persons protected by the fourth Convention, "in particular those who have been repatriated or released, or who have escaped or died", is laid down in that Convention. (33) In this respect it is clear that the provision under consideration here cannot in any way diminish the obligations arising from those articles. (34)

    1332 For the meaning of the expression "personal effects", reference should be made to the Conventions: Article 16 of the first Convention mentions "last wills or other documents of importance to the next of kin, money, and in general all articles of an intrinsic or sentimental value". Article 122 , paragraph 9, of the Third Convention refers to "all personal valuables, including sums in currencies other than that of the Detaining Power and documents of importance to the next of kin".

    1333 As regards Article 139 of the fourth Convention, this refers only to "personal valuables". In this respect the commentary on that Convention specifies that these are "all the articles which belonged to the person" concerned, and which "are of any commercial worth or sentimental value". Finally, it adds: "In practice, [p.374] therefore, almost all the articles found on the spot will be collected and forwarded." (35)

    1334 The agreements must "facilitate" the return of the remains and the personal effects. Basically this implies the exhumation of the remains when they have been buried, and the forwarding of such remains and of personal effects. These tasks can only be carried out by the competent authorities of the Contracting Parties concerned. However, the agreements can lay down rules for sharing the costs.

    1335 As in the case of sub-paragraph (b) examined above, paragraph 3 provides for a procedure when there is no agreement regarding repatriation of remains. (36)

    1336 The agreements should provide for the repatriation of the remains and of personal effects:

    - on the one hand, upon the request of the home country;
    - on the other hand, upon the request of the next of kin, with a right of veto of the home country.

    1337 Committee II discussed the question of the "home country" at length. One amendment proposed including a definition of the State of origin. (37) This amendment was subsequently withdrawn in favour of the proposal made by the Working Group. (38)

    1338 The idea that the home country should be permitted to object to the repatriation of remains, even though an express agreement is not required, was also introduced by an amendment, (39) with the aim of permitting repatriation

    "even if there was no home State, and consequently no one was allowed to object. That might be the case, for example, if a defeated State broke up into two or more separate States, neither of which was interested in some or all of the dead, although their families might still wish to have the remains repatriated". (40)

    1339 A definition close to that proposed in the above-mentioned amendment was then introduced into the report of the Working Group presented at the fifty second session of Committee II, but it was in square brackets, indicating that the desirability of such a definition was in dispute. It gives a good indication of how this expression should be interpreted:

    "home country means the State on which a person depended on the date he died or was reported missing, or, in the event of a succession of States taking place in relation to that country, the State on which such person would have depended had he not died or been reported missing". (41)

    [p.375] 1340 In the end, as the Rapporteur of the Working Group stated,

    "the Working Group as a whole had considered that the question of definition was so complex that it would be better not to attempt a definition which might lead to difficulties in reaching a decision on the responsibility for missing or dead persons". (42)

    However, commenting on this definition and stressing that it was not "intended to be exclusive", (43) he indicated that "for a soldier or combatant, that definition would normally mean a country in whose forces he was serving, and for a civilian, the country of citizenship
    or residence". (44)

    1341 Finally, one delegate emphasized the importance of two factors: "that of dependency on a State", (45) for which the above-mentioned commentary of the Rapporteur gave a valuable pointer, and the "reference to succession of States" (46) made in the draft definition.

    1342 These factors will solve the problem in the great majority of cases. A solution taking into account the interests of families should be found in other cases.

    1343 Thus the request may be made by the home country, but it may also come directly from the family. (47)

    1344 The question of precisely which relatives were entitled to request repatriation of remains led to some discussion in Committee II. One delegate stated that, according to his delegation, such relatives could only be "close personal relatives", (48) and an amendment was even proposed on these lines. (49) However, another delegate emphasized the fact that the expression "close personal relatives" would not be applicable in his country, "because of the existence there of the extended family". (50) This point of view finally prevailed and it is up to each country individually to find a solution on the basis of its laws and customs. However, it should be noted that the English text uses the expression "next of kin", which only designates the closest living relative, and is therefore more restrictive than the term "relatives" used in Article 32 ' (General principle) ' and in Article 34 , paragraph 2(a). In view of the above-mentioned discussions, the French term "famille" therefore seems more appropriate.

    1345 Nevertheless, in this case the home country has a right of veto. As one delegate explained, it was not desirable that the exhumation and transfer of remains from well-established gravesites such as those dating back to the first World War, should be carried out without the agreement of the home country. (51)

    [p.376] 1346 Moreover, he also stressed the importance of laying down rules for the question of repatriation in an orderly manner, which explains the importance of the right of veto of the home State, which itself takes over the problem in its entirety. (52)

    Paragraph 3 -- Treatment of gravesites in the absence of agreements

    1347 Article 34 does not ignore the fact that the agreements described in paragraph 2(b) and (c) might not be concluded, particularly for financial reasons.

    1348 In this case the Contracting Party may legitimately wish to stop meeting the expenses incurred by the maintenance of the gravesites concerned. Nevertheless, respect for the remains and the interests of families should still be maintained. For this reason paragraph 3 wisely makes the decision the responsibility of the home country or even of the family in case that country is not prepared to meet the expenses. Although it is not spelled out in so many words, it is quite clear that the offer is directed to the home country, but if needed, this may be transferred to the family or the family may be invited to participate in the expenses.

    1349 Logically the offer is made only if the agreements regarding permanent maintenance of gravesites or repatriation of the remains, as laid down in paragraph 2(b) and (c), have not been concluded. Further, even if such agreements have not been concluded, the Contracting Party in whose territory the gravesites are situated is obliged to ensure permanent maintenance if the home country of the deceased is prepared to meet the costs.

    1350 However, an agreement on this subject concluded as soon as possible seems clearly preferable as a long-term solution.

    1351 In the following situation -- i.e., no agreement with the home country and no declaration of intent on the part of the latter to meet the costs of maintaining the gravesites -- the Contracting Party concerned "may offer to facilitate the return of the remains of the deceased to the home country". In practice this means that, at the request of the home country, it is prepared, on the one hand, to exhume the remains, and on the other hand, to ensure that they are transported to a place to be agreed upon (whether this is the border or any other place) where the home country takes charge of them. The technical details and the costs incurred by the operation should clearly be arranged between the Contracting Party and the home country concerned.

    1352 If the offer to facilitate the return of the remains of the deceased is refused, the Contracting Party may "adopt the arrangements laid down in its own laws related to cemeteries and graves". Of course, such national legislation is extremely diverse, but this may entail the closure and disappearance of gravesites, particularly if no financial contribution is made for their maintenance.

    1353 However, two conditions are laid down before such measures may be resorted to:

    - A period of five years must have elapsed since the offer was made. There is therefore in any case an obligation to maintain gravesites for five years after [p.377] the proposal is made to repatriate the remains. This period was contested in Committee II, as one delegate considered in particular that "the Party to the conflict in whose territory such graves were situated should have the right to act in accordance with its domestic legislation without being bound to wait for any given period". (53) However, the period was retained and represents a useful guarantee for families.
    - The Contracting Party must give "due notice to the home country" before applying the provisions laid down in its own laws. Thus there is a sort of ultimatum which is addressed to the home country, and this is also a positive element, particularly if the national legislation permits the destruction of gravesites. Thus the home country is clearly faced with its responsibilities once again in case the initial offer made five years previously had been forgotten.

    Paragraph 4 -- Exhumation of remains

    1354 Article 34 also includes exhumation, particularly in dealing with the repatriation of the remains of the deceased, and paragraph 4 specifies exact rules which should be observed in this field.

    1355 As one of the co-sponsors of the amendment (54) which gave rise to paragraph 4 stated: respect for graves had been proclaimed as a general principle, and similarly the duty to exhume in certain circumstances, but "exhumation should be the subject of closer control". (55) This is why a proposal was made to permit it only in the situations listed. "They had sought to strike a balance between the general principle of respect for graves and the need to exhume". (56)

    1356 This paragraph is addressed to the Contracting Parties in whose territory the gravesites covered by this article (57) are situated, and it provides that exhumations are strictly prohibited outside the situations described.

    1357 These situations are the following:

    - exhumation in accordance with the agreements laid down in paragraph 2(c); (58)
    - exhumation in accordance with paragraph 3, (59) in the absence of such agreements;
    - exhumation required in cases of "overriding public necessity, including cases of medical and investigative necessity". In the last case exhumation is based on a unilateral decision of the Party in whose territory the gravesite is situated.

    1358 At first the Working Group considered that the Protocol should not restrict such exhumations, on the one hand, because the principle of respect for the remains of the deceased and for gravesites laid down earlier provided sufficient general limitations, and on the other hand, because the exhumation might be

    [p.378] "undertaken for many reasons, such as the grouping of remains by nationality, relocation of cemeteries, threats of flood or rising water, reasons of health and sanitation, identification of the deceased or enquiries on war crimes or mutilations". (60)

    However, several delegates advocated retaining rules "covering situations where the host State required exhumations for its own purposes". (61)

    1359 The exhumation should be ' necessary ' in the public interest. There must be compelling reasons, and as the acting Rapporteur of the Working Group stated, this wording stresses "the need to protect graves". (62) He continued by stating that:

    "Where adequate protection and maintenance was not otherwise possible -- for instance, in the case of scattered and temporary graves made during a battle -- exhumation for the purpose of regrouping graves in one location would be a matter of public necessity. There was, however, no clause on general re-grouping of graves, since that might result in the arbitrary or capricious removal of graves." (63)

    1360 The expression "including cases of medical and investigativ necessity" was added, following the comment of a delegate who considered that, in addition to cases of overriding public necessity there might be "a matter of military and medical necessity, for example, when it was necessary to determine the cause of death". (64) According to another delegate, "public necessity must, by its nature, include both those concepts". (65) Although the latter view prevailed, the discussed concepts were included to avoid any misunderstanding.

    1361 Although the term "overriding public necessity" is therefore fairly clearly defined, it should nevertheless be noted, as the Rapporteur of the Working Group stated, that "it would of course be for the country in whose territory the graves were situated to decide whether or not exhumation was a matter of overriding public necessity". (66) In this respect the interpretative declaration by one delegation should be noted:

    "Paragraph 4 of the article in no way prevents the exhumation of the remains in temporary graves at the end of an armed conflict by or on behalf of a Graves Registration Service for the purpose of providing permanent gravesites, as was done after the last two European conflicts." (67)

    1362 In the cases examined above where exhumation is carried out for reasons relevant to the State in whose territory the graves are situated, three additional obligations are specified with which it must comply:

    [p.379]
    - to treat the remains of the deceased with respect at all times. This reminder was not essential inasmuch as this obligation already follows from paragraph 1. Nevertheless, it is appropriate to emphasize that even reasons of overriding public necessity cannot in any case justify a lack of respect for the remains of the deceased. (68)
    - to give notice to the home country of the intention to exhume. This country may then make comments although it cannot object to the exhumation. On the other hand, on this occasion it could still propose the repatriation of the remains in accordance with a procedure to be determined;
    - to give the home country details of the intended place of reburial. The right of families to access to the graves of their relatives clearly requires the transmission of such information and the home country is responsible for transmitting it to the families concerned.

    ' Y. S. '


    NOTES

    (1) [(1) p.366] On this subject, cf. introduction to this Section, supra, p. 342;

    (2) [(2) p.366] Cf. commentary Art. 75, para. 1, infra, pp. 866-871;

    (3) [(3) p.367] National legislation, particularly social legislation, may also give indications in this respect;

    (4) [(4) p.367] On this subject, cf., by analogy, commentary Art. 33, supra, p. 357;

    (5) [(5) p.367] Cf. also commentary Art. 33, para. 2, supra, p. 357;

    (6) [(6) p.368] Ibid;

    (7) [(7) p.368] On this subject, cf. supra, pp. 354-356;

    (8) [(8) p.368] Cf. Fourth Convention, Art. 4, para. 2;

    (9) [(9) p.368] On these provisions, cf. supra, p. 367;

    (10) [(10) p.368] On this subject, cf. particularly Art. 57, sub-para. 2(a)(ii), and the commentary thereon, infra, pp. 682-683;

    (11) [(11) p.369] Cf. also supra, pp. 367-368;

    (12) [(12) p.369] Cf. particularly Arts. 15-17, First Convention; 18-20, Second Convention; 120, Third Convention; and 119-120, Fourth Convention;

    (13) [(13) p.369] For more details on this subject, cf. ' Commentary IV, ' pp. 506-507;

    (14) [(14) p.370] Cf. also O.R. XI, p. 354, CDDH/II/SR.34, para. 28;

    (15) [(15) p.370] On this subject, cf. also commentary Art. 96, infra, pp. 1088-1092;

    (16) [(16) p.370] Cf. particularly O.R. XI, p. 367, CDDH/II/SR.35, para. 25, and O.R. XII, p. 250, CDDH/II/ SR.78, para. 10; pp. 254-255, paras. 39-43;

    (17) [(17) p.370] Cf. O.R. XIII, p. 109, CDDH/221 /Rev.1, para. 120 (Art. 18 bis, para. 7);

    (18) [(18) p.371] Cf. ibid., p. 332, CDDH/II/376 (Art. 20 ter, para. 2);

    (19) [(19) p.371] O.R. XII, pp. 254-255, CDDH/II/SR.78, paras. 38-44;

    (20) [(20) p.371] Cf. ibid., p. 251, para. 16;

    (21) [(21) p.371] Cf. supra, pp. 366-369;

    (22) [(22) p.371] O.R. XI, p. 186, CDDH/II/SR.19, para. 76;

    (23) [(23) p.371] Cf. supra, pp. 366-369;

    (24) [(24) p.371] Cf. commentary Art. 32, supra, pp. 346-347;

    (25) [(25) p.372] On this subject, cf. also commentary para. 3, infra, pp. 376-377;

    (26) [(26) p.372] O.R. XI, p. 186, CDDH/II/SR.19, para. 78;

    (27) [(27) p.372] Cf. infra, pp. 376-377;

    (28) [(28) p.372] Cf. Art. 17, para. 3, First Convention; Art. 120, para. 4, Third Convention; Art. 130, para. 1, Fourth Convention;

    (29) [(29) p.373] Cf. Art. 17, First Convention; Art. 20, Second Convention; Art. 120, Third Convention; Art. 130, Fourth Convention;

    (30) [(30) p.373] O.R. XI, p. 186, CDDH/II/SR.19, para. 75;

    (31) [(31) p.373] Cf. Art. 16, para. 3, First Convention and Art. 19, para. 3, Second Convention;

    (32) [(32) p.373] Cf. Art. 122, para. 9, Third Convention;

    (33) [(33) p.373] Cf. Art. 139, Fourth Convention;

    (34) [(34) p.373] On this subject, cf. particularly O.R. XI, p. 190, CDDH/II/SR.20, para. 6;

    (35) [(35) p.374] Cf. ' Commentary IV, ' p. 538;

    (36) [(36) p.374] Cf. infra, pp. 376-377;

    (37) [(37) p.374] O.R. III, p. 101, CDDH/II/220;

    (38) [(38) p.374] Cf. O.R. XI, p. 357, CDDH/II/SR.34, para. 49;

    (39) [(39) p.374] Cf. O.R. III, p. 100, CDDH/II/56/Rev. 1;

    (40) [(40) p.374] O.R. XI, p. 190, CDDH/II/SR.20, para. 7;

    (41) [(41) p.374] O.R. XIII, p. 117, CDDH/221/Rev. 1, para. 124 (para. 11 of the new Section I bis);

    (42) [(42) p.375] O.R. XI, p. 354, CDDH/II/SR.34, para. 29;

    (43) [(43) p.375] Ibid;

    (44) [(44) p.375] Ibid;

    (45) [(45) p.375] Ibid., p. 358, para. 52;

    (46) [(46) p.375] Ibid., para. 53;

    (47) [(47) p.375] On the concept of the family, cf. commentary Art. 32, supra, pp. 346-347;

    (48) [(48) p.375] Cf. O.R. XI, p. 357, CDDH/II/SR.34, para. 45;

    (49) [(49) p.375] Cf. O.R. III, p. 103, CDDH/II/260; cf. also O.R. XI, p. 374, CDDH/II/SR.35, para. 67;

    (50) [(50) p.375] O.R. XI, p. 372, CDDH/II/SR.35, para. 58;

    (51) [(51) p.375] Cf. ibid., p. 189, CDDH/II/SR.20, para. 4; cf. also p. 353, CDDH/II/SR.34, para. 25;

    (52) [(52) p.376] Cf. ibid., p. 190, CDDH/II/SR.20, para. 5;

    (53) [(53) p.377] Ibid., p. 367, CDDH/II/SR.35, para. 26;

    (54) [(54) p.377] O.R. III, p. 101, CDDH/II/204;

    (55) [(55) p.377] O.R. XI, p. 190, CDDH/II/SR.20, para. 9;

    (56) [(56) p.377] Ibid;

    (57) [(57) p.377] On this subject, cf. supra, pp. 366-369;

    (58) [(58) p.377] Cf. supra, pp. 373-376;

    (59) [(59) p.377] Cf. supra, pp. 376-377;

    (60) [(60) p.378] O.R. XI, pp. 353-354, CDDH/II/SR.34, para. 27;

    (61) [(61) p.378] Ibid., p. 356, para. 43; also cf. paras. 44-46;

    (62) [(62) p.378] O.R. XII, p. 229, CDDH/II/SR.76, para. 13;

    (63) [(63) p.378] Ibid;

    (64) [(64) p.378] O.R. XI, p. 365, CDDH/II/SR.35, para. 15;

    (65) [(65) p.378] Ibid., p. 373, para. 61;

    (66) [(66) p.378] Ibid., p. 360, CDDH/II/SR.34, para. 62;

    (67) [(67) p.378] O.R. VI, p. 81, CDDH/SR.37, Annex (United Kingdom);

    (68) [(68) p.379] On the concept of respect, cf. also supra, p. 369;