Appendix A [Last Rights proposed legal statement]

APPENDIX A [Last Rights proposed legal statement]
APPENDIX A [draft statement]
Last Rights
The Dead, the Missing and the Bereaved at Europe’s
International Borders
Proposal for a Statemen t
of the International legal obligations of States
September 2017
Large numbers of refugees and migra nts die or go missing at international land and sea b orders.
The names o f most of the missing and dead are n ot known; thei r families have not been tra ced;
where bodies have been found, they are often buried in unmarked graves. Families do not know if
a missing relative a parent, spouse, brother, sister or child is alive or dead. This statement seeks
to clarify the steps states s hould take to search for the missing, investiga te the deat hs, identify
those who die, provide a decent burial for the d ead [whether or not they have been identifi ed],
and trace their families, including their children.
In the legitimate exercise of their fun damental r ight to s eek and enjoy asylum from per secution,
enshrined in articl e 14 of t he 1948 U niversal D eclaration of Human Rights, and in thei r search for
a place to live where they may enjoy a minimum level o f safety and security, and ec onomic, socia l
and cultural rights, thousands of children, women and men die every year in their efforts to enter
Europe irregularly. Most of these deaths are by drowning in the Mediterranean Sea.
There is a subst antial body of legal principles and rules in both customa ry and treat y la w tha t
applies to the treatment o f the dead in the context of armed conflict. These principles and rules
derive from what the Hague Conventions call ‘the usages established among civilized peoples, from
the laws of humanity, and the dicta tes of the public conscience’
and what the International Court
of Justice referr ed to as ‘elementary considerations of humanity, even mor e exacting in peace than
in war’.
But while international law addresses the treatment of the dead and next of kin in armed
1 The Last Rights Project would w elcome comments on the Draf t Statement.
The Last R ights Project thanks Dr Louise Arimatsu; Professor Susa n Breau and Professor Wil liam Schabas for
their generous advice and assistance.
Estimates suggest that more than 46,000 migrant s and refugees have died since 2000 in different regions of the
world; the actual figures are certainly much higher. Many more are missing. In 2016, over 5,000 deaths were
recorded on journeys to Europe. IOM (2017), “Latest Global Fi gures 2 014-2017”, Miss ing Migra nts Project ,
International Organisation for Migration , http://missingmi -global-figures; accessed 15
March 2017.
Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the
Laws and Customs of War on Land (1907 Hague Convention IV), signe d 18 October 1907, entered i nto force 26
January 2010, 18 7 CTS 227, Preamble.
Corfu Channel Case (U nited Kingdom of Great Britain and Northern Ireland v. Albania), Merits, International
Court of Justice (ICJ), Judgment of 9 April 1949, I.C.J. Reports 1949, p.22.
APPENDIX A [Last Rights proposed legal statement]
conflict, the obligati ons on states in r espect of persons who die outside the co ntext of an armed
conflict have received less attention.
This stateme nt is i ntended to a ddress that issue. It draws upon international human rights law,
international humanitarian law, international criminal law and international maritime law. It is
premised on the principle that until ther e is a more ad equate codifi cation of the l aw applicable t o
their human rights obligations with respect to the dead and missing, States remain bound by treaty
obligations including the duty to resp ect human dig nity.
The law of ar med conflict, also known as international humanitarian law esta blishes important
principles applicable to the dead and missing in armed conflict. These principles are, in turn, rooted
in fundamental human values that are not confined by or limited to notions of reciprocal treatment
by parties to a confl ict as is the case in int ernational humanitar ian law. For this reason, the content
of princi ples that have be en adopte d by int ernational humanitarian law fr om that earlier system
of funda mental hu man valu es, may be rega rded as lending themselv es to t ransposition to
peacetime con texts.
It should be stressed that the principles proposed in this document flow from fundamental
international human rights law. To the extent that reference is also made to international
humanitarian law, this i s mainly because that body of la w has devel oped useful formulations and
terminology with respect to th e treatment of the dead and missing.
The r equirement that th e dead be treated with respect and dignity e xisted as a fundamental
human value long before there were any attempts to identify and codif y interna tional law. In
Antigone, Sophocles treat s the importance of burial as a principle incapable of being overridden by
government. Homer condemns Achilles’ disrespect for the body of the opponent whose life he has
just taken. Similar principles are found in the customs, traditions and literature of all peoples.
The general obligations imposed by internatio nal humanitarian law, as a result of both custom and
treaty, have been summarized by the International Committee of the Red Cross:
Whenever circumstanc es permit, and particul arly after an eng agement, e ach party to
the conflict must, without delay, take a ll possible measures to search for, c ollect and
evacuate th e dead with out adverse distinction.
Each party to the conflict must ta ke all possible measur es to prevent the dead from
being despoi led. Mutilation o f dead bodies i s prohibited.
Parties to the conflict must endeavour to faci litate the return of the remains of the
deceased up on request of the party to which t hey belong or upon the r equest of th eir
next of kin. T hey must retur n their personal effects to the m.
The dead must be dispose d of in a respectful ma nner and their graves respected and
properly main tained.
With a view to the id entification of the dead, each party to the confl ict must r ecord all
available information prior to disposal and mark the location of the graves.
These principles are set out together with detailed commentary and sources in: J.-M. Henckaerts and L.
Doswald-Beck (2005, reprint 2009), Cu stomary Int ernational Humanitarian Law, Vol. I, Rules, International
Committee of the Red Cross, Cambridge: ICRC and Cambridge University Press, pp. 406-420. See also : Gavshon
D.(2015), ‘The Dead’, in Clapham A., Gaeta P., Sassòli M. (eds.), The 1949 Geneva Conventions: A Commentary,
Oxford, United Kingdom: Oxford University Press, pp 277-296; International Committee of the Red Cross (2009),
‘Guiding Principles/Model Law on the Missing’, Geneva, Switzerl and: ICRC publication,

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