Armed groups, states and families: accounting for the dead as an element of humane treatment

ABSTRACT

International humanitarian law requires that the bodies of those who die as a result of armed conflict, whether of international or non-international character, must be protected, treated with dignity, and all available information recorded prior to their disposal. In practice, non-international conflicts have become more prevalent over the last years, resulting into a proliferation of non-state armed groups who increasingly hold territory and provide governance-like services, such as the case of the Syrian Arab Republic and the Republic of Iraq. In providing services to populations under control through the establishment of a civilian administration, non-state armed groups have recorded deaths and issued death certificates. In response, States have introduced cumbersome procedures to recognize the fact of death for inheritance purposes, though not necessarily recognizing insurgent death certificates alone as proof for death. Failure to obtain a valid proof of death for the death of a family members’ results in denial of myriad rights afforded to surviving relatives. In considering the gravity and scale of this problem, this study considers whether the obligation to record deaths under humanitarian law, the obligation of humane treatment and the right to know the fate of relatives can shed light on how states may regard the validity of insurgent death certificates.

KEYWORDS:

• International humanitarian law
• legal identity
• missing persons
• death certificates
• non-state armed groups
• gender

1. Introduction

Civil registration¹ is a core responsibility of the state, and fundamental for a person to be granted legal identity. In the introduction to this issue, Sosnowski and Klem define legal identity as ‘the constellation of rights and duties of a person in relation to a particular state’ (Sosnowski and Klem, 2024. Legal identity, which the United Nations operationally defined as the ‘basic characteristics of an individual’s identity (United Nations Statistics Division n.da.)’, including name, sex, and place of birth, is conferred through registration at the occurrence of birth. Whichever definition one refers to, when viewed holistically, birth registration marks the beginning of the existence of legal identity, which is then retired by the issuance of a death certificate upon the official registration of death by the State (United Nations Statistics Division n.d.-b. para 22). Death registration is therefore a key element of one’s legal identity as also evidenced in the commitment made by the 2030 Sustainable Development Goals, to include all people from birth to death ‘leav(ing) no one behind’ (Target 16.9), with 100% birth registration and 80% death registration to be achieved by 2030 (Indicator 17.19.2).

Although birth registration is crucial for the recognition as a person before the law, and a pre-requisite for exercising all other rights, civil registration, including death registration, is not universal when considered comparatively across multiple countries. This means that the lives and deaths of segments of populations may end up unregistered and unaccounted for by the state (United Nations Statistics Division n.d.-b.). To illustrate, as of April 2023, the United Nations Statistics Division found that, across more than 230 countries and areas, only 73% register at least 90% of the occurred births, while 68% register at least 90% of the occurred deaths (United Nations Statistics Division n.d.-b.). Moreover, the lack of unified civil registration impacts adversely the most vulnerable. For example, according to UNICEF, the lack of birth and death registration within populations at risk, such as minority groups, may also lead to a systematic underestimation of child mortality rates (Muzzi 2010). Maintaining vital statistics becomes much more cumbersome in the context of humanitarian emergencies, when civil registration systems collapse, populations are displaced, and existing documents are destroyed or lost (see Dhiman and Harbers 2024).

Such is the case of armed conflicts, whether of international character, when one or more states use force against another state, or non-international, when organized armed groups are involved in hostilities opposing government armed forces. International humanitarian law, which applies to both types of conflict, regulates the means and methods of warfare, and covers the protection of persons who are not, or no longer, taking part in hostilities. Traditionally, international humanitarian law has regulated in greater detail the behaviours of parties in the context of an international armed conflict. Over the past 20 years however, the number of non-international armed conflicts have more than doubled and, in parallel, non-stated armed groups, though different in size, structure and capabilities, have also proliferated (International Committee of the Red Cross Position Paper 2021). Between 100 and 110 armed conflicts were recorded in 2022; approximately 100 of those were reported to be of non-international character (Geneva Academy, 2022; International Committee of the Red Cross 2022).

Armed groups sufficiently organized to become party to a non-international armed conflict are in control of a certain (state’s) territory (ICTY, The Prosecutor v. Boškoski and Tarčulovski, 2008), and the populations residing therein. This is often followed by the withdrawal or displacement of Government authorities, including civil registration offices, thereby removing access to public services for populations living there. The absence of state services thus creates a legal vacuum whereby armed groups attempt to replace state authorities with governance-like administrative bodies responsible for civilian functions, and as such, provide services to civilians, including death registration and certificates (see e.g. Arjona, Kasfir, and Mampilly 2015; Mampilly 2011). As an indicium of the scale of this issue, as of July 2022, the ICRC listed 524 armed groups that are of humanitarian concern globally. Of those, 77 armed groups ‘fully and exclusively’ controlled territory and 262 contested and fluidly controlled territory; 82% of the groups that fully control territory have exercised control for four years or more (Bamber 2023). More ‘complex’ service provision, such as legal documentation is provided by groups in full territorial control for four years or more. An internal ICRC study estimated that 50 to 60 million individuals live in territories which are fully controlled by armed groups and that another 100 million live in areas of contested control (Herbet and Drevon 2021).

Though both birth and death registration form part of one’s legal identity, the validity of death certificates issued by non-state armed groups fall into a legal and scholarly gap which has been subject to far less research compared to other vital events, such as birth. ICRC has devoted significant attention to death certificates in the context of the missing, although not specifically death certificates issued by non-state armed groups (ICRC Report: The Missing And Their Families 2003). Like birth certificates, death certificates provided by armed groups are not automatically recognized by states. Civilian and combatant casualty numbers are highly political, sensitive, and often contested, and become even more so when a non-state armed group is involved (Gartner, Segura, and Barratt 2004). Yet, death certificates are necessary in practice to allow the next of kin to access a range of other rights, such as property, inheritance, birth registration, and matters relating to family law, including child custody (see example of the Syrian Arab Republic, below).

Given the scope and gravity of the problem, this article discusses practices of non-state armed groups in issuing death certificates with a focus on the period from 2012–2018 when Islamic State controlled parts of Syria and Iraq, and the aftermath of reconstruction after its defeat. Islamic State issuance of such documents and the experiences of affected populations is probably the most studied occurrence of insurgent civil documents, making it a critical and unique case study which highlights the urgency to address this gap. The article next compares existing provisions of international humanitarian law which regulate the issuance of death certificates in international armed conflicts with the paucity of explicit provisions related to non-international armed conflicts. In the context of non-international armed conflict law, the obligation of proper handling of the dead without adverse distinction inarguably is required of both the state and armed groups, and, as this article argues, includes registration of the death through which legal identity is retired (United Nations Statistics Division n.d.-b.). The article further analyses relevant provisions of international humanitarian law to bolster the interpretation of humane treatment, collective punishment, and outrages upon personal dignity, taking into account the crucial importance of documentation of life-cycle events to secure rights in practice. This analysis also contributes to discussions on implied powers that non-state armed groups may hold under international humanitarian law, namely powers that may be inferred from legal duties, though not explicit in the law, and the state obligations that arise consequent to non-state armed groups exercise of those powers. Treaty law applicable in non-international armed conflict does not go into detail regarding the duty to record deaths, nor does it contemplate the phenomenon of death certificates issued by non-state armed groups. This article thus seeks to articulate how existing treaty law and customary international law can be interpreted and applied to guide states in the question of recognition of death certificates issued by non-state armed groups.

Recording deaths is particularly important to account for the missing. Given the hardships that families experience and the denial of their right to know the fate of their relatives when they do not receive death certificates, we argue that non-state armed groups issuance of death certificates could be considered an appropriate means to treat both deceased persons and their surviving family members humanely and with dignity. Thus, we recommend that a mechanism for states, as well as other armed groups, to recognize at the very least the facts contained in non-state armed groups death certificates, even if not the certificates themselves, may be a crucial means of ensuring humane treatment, accounting for the dead, and reducing the number of missing persons.

The role of states in recognizing non-state armed groups, death certificates and other documents has global reach. Countries of asylum can also greatly increase hardships for families seeking refuge by requiring them to resort to the persecutory state to renew documents rather than recognizing documents already in their possession, albeit issued by insurgent groups (Ferreri 2022). Although other forms of recognition of death, such as duly authenticated casualty lists or medical reports, rather than death certificates, may also be an acceptable means accounting for the missing, these may not always be available locally. States may similarly object to the recognition of other documentation provided by non-state armed groups. As non-state armed groups continue to hold territory, death certificates provided by these groups are a reality, and, in many cases are the only proof of death that families have in their possession. As such, it is essential to establish what international law provides for the issuance of death certificates by armed groups and the obligation of states to accept them.

To answer the question of how states should regard death certificates issued by non-state armed groups, we begin by considering practices of armed groups. We focus on Syria as a critical case study, where non-state armed groups issued death certificates which were later not recognized by the State, causing hardships for surviving family members. We then review relevant legal provisions in treaty and customary law and make our argument that states should recognize such death certificates based on their obligations under international law. We argue that the right of the deceased and of surviving family members to humane treatment includes the right not to lose one’s identity after death and the right to know what happened to loved ones. Finally, we discuss the inherent or implied powers which non-state armed groups may exercise to fulfil their obligations under international humanitarian law, and obligations of states where non-state armed groups exercise such powers. We conclude by recommending the establishment of mechanisms to carry out these principles in practice.

2. Current scholarship on non-state actor-issued death certificates

Academic literature addressing practices related to accounting for the dead in non-international armed conflict, including identifying bodies, recording deaths, and issuing death certificates, falls into two main categories. The first category is the legal and forensic literature related to the operational and practical issues concerning identification and disposal of the dead; the second is the legal discourse on the validity of legal status documents, including death certificates, issued by non-state armed groups.

Forensic experts speak to the importance of balancing the interests of states and families in identification of bodies (Stover and Shigekane 2002), make recommendations on operational best practices in forensic humanitarian action and forensic investigation (Baraybar, Brasey, and Zadel Baraybar, Jose, and Zadel 2007), and raise awareness regarding the practical challenges of navigating dangerous and complex sites where bodies are located or have been moved (Cobham et al. 2022). Navigating the process of accounting for the dead is further complicated by the lack of formal humanitarian coordination mechanisms for this thematic area within the UN cluster system (Garibian, Araguete Toribio, and Schnyder 2019). State politicization of dead bodies of non-state groups as ‘terrorists’, and therefore undeserving of humane treatment, in non-international armed conflicts, also hinders humane disposition (Mégret and Swinden 2019). Legal scholars consider the theoretical basis underlying the treatment of the dead, whether in respect of religious and cultural beliefs (Al-Dawoody et al. 2021), the rights of the dead themselves (Smolensky 2009; Rosenblatt 2010; McEvoy and Conway 2004) or the rights of surviving relatives (De Baets 2022). Death certificates are mentioned in passing in this literature, including the fact that forensic experts issue certificates of death in the course of their work (Cobham et al. 2022), doctors issue death certificates the accuracy of which is essential for accountability for deaths in custody (Solomon 2005) and families struggle to access their rights without documentation of death (Parrin 2022). Experts convened by the ICRC in 2019 noted that this area is generally under-regulated under both international humanitarian law and international human rights law, as there are legal gaps related to management of dead bodies in humanitarian emergencies, while universal guidance must take social, cultural and heritage context regarding dignified disposition into account (Garibian, Araguete Toribio, and Schnyder 2019).

The other strand of relevant academic discussion is scholarly work which addresses the legal status of civil documentation issued by non-state armed groups, a growing area of academic concern. Scholars argue variously that international humanitarian law applicable in non-international armed conflict does not address civil status (Rodenhäuser 2020), that international human rights law may bind non-state armed groups in certain ways regulating their engagement with civil documentation efforts (Fortin 2021) or even that states are required under international human rights law or international humanitarian law to recognize non-state armed groups documentation where it exists, in order to prevent deprivation of rights (Schoiswohl 2001; Hampton 2019).

In this special thematic issue, scholars and practitioners describe non-state armed groups documentation in various contexts around the world, with analysis of consequent implications for access to rights and for our understanding of legal identity and citizenship. Even within this specialized literature, death certificates are addressed in less detail, as a greater focus of academic and humanitarian field research is on birth and marriage certificates, particularly birth certificates, due to their inclusion as an indicator in the Sustainable Development Goals (United Nations Statistics Division n.d.-b.), or on passports, which require international recognition to effectively facilitate cross-border travel (see Ganohariti 2024; Abaza 2024; Hedstrom 2024).

This article contributes to the literature on the dead and the missing by exploring how death certificates play a critical role in responding to the needs of families and protecting the rights that the dead may hold posthumously. It contributes to the legal identity literature by exploring in greater depth the legal provisions related to death certificates in international humanitarian law, practices of non-state armed groups in issuing death certificates and policy options specific to accounting for the dead in non-international armed conflict.

By exploring death certificates as an overlooked facet of legal identity, this article describes how non-state armed groups issue death certificates for inhabitants of the territories they control, despite the legal gap in the law on non-international armed conflict regarding the status of such death certificates, and the subsequent hardships experienced by the deceased’s surviving family members when those certificates are not recognized by states.

3. The humanitarian implications of death certificates issued by non-state armed groups

We will now ground our legal analysis regarding death certificates issued by armed groups by considering the practices of such groups and the experiences of the affected populations, with Syria as a case study.

By way of background, empirical data has shown that non-state armed group-controlled territories are often characterized by a ‘considerable degree of order’ which may translate into the establishment and management of a civilian administration (Fortin 2016). In the absence of state authorities, non-state armed groups have created governance-like bodies to ensure continuation and provision of services, a phenomenon which affects an estimated 50–60 million people, as mentioned above (Herbet and Drevon 2021). Death registration and the provision of death certificates, along with registration of other life-cycle events, is one such service in furtherance of armed groups’ territorial aspirations. As a key state prerogative, the ability to provide civil documentation demonstrates that armed groups have the capacity, as with States, to address the recuring needs of the populations under control and, overall, provide a sense of normalcy to people’s lives. This could be perceived as a necessity (Fortin 2016), or as a logical expectation on the part of individuals and non-state armed groups alike when territories have changed hands.

Take the case of the Syrian Arab Republic. Vital events are recorded with the Civil Affairs Directorate, under the Ministry of Interior (UNHCR and Syrian Arab Republic Ministry of Interior Civil Affairs Directorate n.d..), which is organized based on familial units: a family booklet is provided to individuals at the time of marriage, and regularly updated to reflect life events, including death. Registration of new events is linked to previously obtained civil documentation: a valid marriage certificate is required for a spouse to obtain a birth certificate, and without a death certificate, the next of kin cannot register the death, and thus access a variety of rights, such as inheritance of property, confirmation of child custody and ability to remarry or to access social welfare benefits owed to family members of the deceased. Life-cycle events must be registered within three months if the event has occurred in Syria, and within nine months for events occurring abroad. Delayed registration incurs fines, though with the promulgation of the Syrian Civil Status Law No.13/2021 in March 2021 (replacing the Civil Status Law 2007), documents may be submitted to any civil registry in areas controlled by the government and are no longer limited to the place of origin (on this see also Adamczyk and Doumit 2024).

When the violence in Syria reached the armed conflict threshold in February 2012, various non-state armed groups began providing public services in a manner akin to the incumbent state, including the registration of life events, often to align with the vision of ‘statehood’ (Grant-Brook 2023; Sosnowski 2021). Between 2013 and 2018, nearly 400,000 people subsisted in besieged eastern Ghouta (rif Damascus) (REACH 2018) under the control of Jaysh al-Islam, which was the largest group in control at the time. The devastating effects of the siege notwithstanding, state services were no longer operational, rendering civilians reliant on civil registration offered by local councils established by non-state armed groups. Among other issues, these local councils also documented ‘the number of killed or injured, prisoners and disappeared people’ (Angelova 2014).

By the time Government forces recaptured eastern Ghouta in April 2018, besieged civilians were solely in the possession of life-cycle documents issued by the armed groups who had ‘governed’ them over the last five years. Many of these people were forcibly displaced (Syed Khan 2021) to Idlib governorate, under the control of Hay’at Tahrir al-Sham (HTS), whose ‘Salvation government’ rarely recognizes documentation issued by other groups, and mandates individuals living in its territories to acquire HTS-issued cards (Grant-Brook 2023; Adamczyk and Doumit 2024).

The rest, many of whom were fighters and their families, entered ‘reconciliation agreements’ (i.e. a type of surrender for amnesty and demobilization) with the Government (Samer Abboud 2020; Sosnowski 2020), which also meant that state services were again available, though accessing them came with a security risk. As with HTS in Idlib governorate, state civil registry officers did not recognize non-state armed groups’ documents solely as evidence of the occurrence of a vital event (Hamou and Al Maleh 2018), and instead, required families to travel to Damascus and present themselves before a court, in the presence of a lawyer, and/or a witness. Families were hardly able to afford the financial costs and undertake this journey (United Nations Human Rights Council UNHRC n.d.). Others, particularly young men of military age, feared requesting the security clearance required to cross government-controlled checkpoints to reach official civil registration offices, and obtain the civil document itself (United Nations Human Rights Council UNHRC n.d.). Carrying non-state armed group-issued documents was widely perceived as a proof of allegiance to the non-state armed groups issuing the documents and could therefore lead to arrest. Many became reluctant to approach official civil registry offices, leaving individuals and their families to ‘just live without documents’ (Lund 2020, 4).

Access to valid documentation was no easier in other parts of Syria. At its peak between 2015–2017, Islamic State controlled a territory across Syria and Iraq equivalent to the size of Britain and ruled over an estimated population of 12 million people (Center for International Security and Cooperation CISAC, n.d; Jones et al. 2017). Documentary evidence indicates that Islamic State established a bureaucratic system and dedicated significant efforts towards providing state-like governance services including security and police, but also municipal offices some of which provided life-cycle event documentation (Al-Tamimi 2016). Islamic State received requests from family members to issue death certificates of deceased individuals among their ranks who appeared to have died in battle (Al-Tamimi 2016).

In parallel, Islamic State confiscated official state civil documentation, rendering individuals reliant on Islamic State issued documents alone to prove life-cycle events after the group’s territorial defeat in 2018 (M. Sosnowski and Hamadeh 2021). One notable outcome of this was that, in early 2018, those with suspected familial links to Islamic State returning to Iraq faced significant obstacles to obtain, if at all, official state documentation, with some unable to prove that a civil event, such as a death, had even occurred (Norwegian Refugee Council, 2019). Individuals were met with suspicion and questioned about the whereabouts of the deceased spouse. In Iraq, families of IS fighters were also denied security clearances required by the Iraqi security apparatus for the issuance of state documents. Islamic state-issued documentation has been, as in the case of eastern Ghouta, used as proof of allegiance or support for opposition groups which has led to denial of requests for official documentation (Human Rights Watch 2018). If no proof was available for the death of a person, surviving family members, mainly women, must declare a person missing and only after a period had passed, the court may grant a death certificate to the next of kin. In the meantime, women whose spouses have gone missing or have died, subsist without civil documentation for them and their children, including obtaining a birth certificate, an ID or education (Norwegian Refugee Council, 2019).

The number of deceased individuals involved, and thus the number of surviving family members, is considerable. Regarding Syria, the Office of the United Nations High Commissioner for Human Rights documented 350,209 unique civilian casualties between 1 March 2011 and 31 March 2021 (UN OHCHR 2022). Most of these deaths occurred in the context of military operations in areas controlled by armed groups, suggesting that non-state armed groups were the only recourse for families to document these deaths. Other locations where casualties occurred included HTS-controlled territories in the north-west, and IS-controlled areas in the north-east, where respective non-state armed groups ran civilian administration, and, similarly, recorded life-events, including deaths.

Over 300,000 of the documented deaths were male, creating a disproportionately negative impact of this phenomenon on surviving female family members and children (UN OHCHR 2022. table A3). Their female relatives and/or spouses are likely to not even consider requesting official documentation because of the refusal of the Syrian and Iraqi states to recognize non-state armed groups documents or for fear of arrest because of the perceived allegiance of their male relatives to opposition groups. Absence of death certificates negatively impacted access to property, inheritance, freedom of movement, and custody rights of surviving spouses, as documents are required as evidence for probate, border crossing procedures and child custody proceedings (Adamczyk and Doumit 2024). Children struggle with the ramifications of the undocumented – or unrecognized – deaths of their fathers, including potential statelessness, while their mothers may not be able to legally remarry, which leads to undocumented marriages, rendering those women more vulnerable to gender-based violence and with reduced access to protection services and shelter. This vicious cycle exacerbates pre-existing discriminatory practices impacting women and girls in Syria (Adamczyk and Doumit 2024). To secure these rights, some Syrian women had to pronounce their spouses dead after several years or claim abandonment (Syrian Law of Personal Status, arts. 109 and 205 (2)). In 2019, women with familial links to IS who returned to their place of origin in Syria and Iraq after the group’s territorial defeat were unable to obtain birth registration and identity documents for the child born to the (now deceased) alleged IS fighters or were exploited for bribes or sexual favours in order to obtain documents (International Committee of the Red Cross 2023).

4. Obligations to account for the dead in international humanitarian law

Having looked at practices of non-state armed groups issuing death certificates and the refusal by states to recognize these documents, we now turn to the relevant legal provisions under treaty and customary law.

Customary international humanitarian law, based on state practice and opinio juris, holds that, with a view to the identification of the dead, parties to an international or non-international armed conflict must record all available information prior to disposal and mark the location of the graves (ICRC Customary Law Study, Rule 116, 2005). Considered an obligation of means, parties are required to use their best efforts and means at their disposal to identify the dead. Preventing persons becoming unaccounted for is closely related to the prohibition of enforced disappearances and respect for family life (ICRC Customary Law Study, Rule 117, Rule 105). At the core of the protection given to the missing and their families is the right to know the fate of their loved ones; families need to know the circumstances of death and whereabouts of their loved ones, as provided for in both international humanitarian law and international human rights law (Protection of All Persons from Enforced Disappearances Article 24(1) and (2), Article 32 and 33 of Protocol I to the 1949 Geneva Conventions; ICRC Customary Law Study Rule 117).

Despite the scant mention of civil documentation in the Geneva Conventions overall, it is not surprising that death certificates (or duly authenticated lists as an acceptable substitute) receive the most consistent and frequent mention in the Conventions, while birth certificates are mentioned only in the law on belligerent occupation (Article 50, GCIV). Parties to international armed conflicts are required to issue death certificates in all four of the Geneva Conventions (Article 16 GCI, Article 19 GCII, Article 120 GCIII, Article 129 and 130 GCIV) with the definitive language ‘shall be [drawn up, forwarded, etc.]’. Recording and transmitting information regarding the dead in international armed conflict law is an absolute obligation and an obligation of result regarding conduct, which must be carried out accurately and with speed, ‘with no excuse for failure’ to exercise due diligence (Sandoz, Swinarski, and Zimmerman 1987, paras 1540, 1604). Provisions contain a range of suggestions regarding details which could be transmitted regarding the deceased individual, including the name, date of birth, date and place of capture or death and wounds, illness, or cause of death (Article 16, GCI), which correspond to the level of detail which might be expected from a death certificate.

Though clearly of crucial importance for the dead and their families and consistent with the prohibition of enforced disappearances, the duty to record deaths in international armed conflicts is much more clearly defined in the law than the duty to record deaths in non-international armed conflicts. The 1987 Commentary to Additional Protocol II states that such detailed provisions would not have been ‘realistic’ to implement in non-international armed conflicts, although it also states that it is still important ‘for families to be informed of the fate of their missing relatives and, when appropriate, the location of their graves, particularly in an internal fratricidal conflict’, noting the high number of missing persons in armed conflicts (Sandoz, Swinarski, and Zimmerman 1987, para 4657).

Instead, the law of armed conflict that applies to non-international armed conflict relies on broader principles, such as the requirement of humane treatment and the prohibition of its converse, outrages upon personal dignity and humiliating and degrading treatment. Common Article 3, which applies to all armed conflicts regardless of classification, requires that all conflict parties to treat those not directly participating in hostilities ‘humanely, without any adverse distinction’ (Common Article 3). Common Article 3 has been held by the International Court of Justice to reflect ‘elementary considerations of humanity’ (ICJ Corfu Channel, Merits, International Court of Justice 1949, 22)

Institutional mechanisms to identify and account for the dead are also foreseen in international humanitarian law applicable in international armed conflict, including the establishment of an official Graves Registration Service for identifying bodies and marking graves (Article 17 GCI; 120(6) GCIII.), information bureaux for collecting and transmitting information about prisoners of war and civilian internees (Article 122 GCIII and 136 GCIV; Articles 16–17 GCI; 19 GCII; 119, 120 GCIII and 136–138, 141 GCIV.), and a Central Information Agency in a neutral country for collecting and transmitting information about prisoners of war, civilian internees, and missing persons (Article 123 GCIII and 140 GCIV, Articles 33 API and 78(3) API; Gaggioli 2018). In contrast, none of the institutions such as the Grave Registry Service are legally required to be set up in non-international armed conflicts, thus leaving a gap in implementation of the duty to record deaths. Despite the lack of explicit obligation in treaty law in non-international armed conflict, state and non-state practice include a range of activities to record deaths in war time, including collecting one half of the double identity disk (i.e. military ID tags, and therefore only connected to battlefield dead) or issuing death certificates (ICRC Customary Law Study, Practice relating to Rule 116). These practices underscore how conflict parties recognize that similar provisions are needed in conflict settings, regardless of conflict classification. Customary law is expanded by these practices when motivated by opinio juris; we argue later in this article that these obligations may also be implied in existing provisions of treaty law, which speaks to legal obligation rather than simply pragmatic practice.

Beyond the essential humanitarian rules protecting civilians against violence by non-state armed groups in the context of a non-international armed conflict, international humanitarian law does not explicitly regulate the day-to-day relationship between people and the authorities in detail, as states have primarily codified such provisions under international human rights law or domestic law (Rodenhäuser 2020). In protracted conflicts, civilians become reliant on service provision by non-state armed groups, including registration of life-cycle events, leading to a situation akin to a belligerent occupation, though without being legally classified as such, and thus without the protection otherwise afforded to civilians in international armed conflicts. ‘Life goes on’ however irrespective of conflict classification and life cycle events will continue to occur whether hostilities subside or not (Fortin 2021).

Though it remains unclear whether Islamic State also issued death certificates for deaths of civilians, this is highly likely given its statehood aspirations and routine registrations of other life-cycle events such as birth and marriage (Al-Tamimi 2016). This leads to another complex issue, namely, the recording of non-conflict related deaths occurring in areas controlled by non-state armed groups, as international humanitarian law only applies to situations of armed conflict, leading to a potential gap in application. For example, if someone died of cancer in an area controlled by Islamic State, where they were unable to access chemotherapy or to travel to access oncology services due to checkpoints and the front line, is their death related to the conflict? In such a scenario, civilians subject to the governance of the non-state armed groups ‘authority’ may be considered to be affected by the conflict, therefore satisfying the nexus requirement that needs to be fulfilled for international humanitarian law to apply, as long as the conflict continues (Rodenhäuser 2020). Said differently, the way in which control was exercised by Islamic State and other non-state armed groups in eastern Ghouta, may be viewed as ‘inherently’ linked to the conflict due to the conflict’s ‘substantive’ role in the ‘ability of the group to control the lives’ of the population living in areas of control, though this view is not shared by all scholars (International Committee of the Red Cross 2020, 53).

4.1. Accounting for the dead as an element of humane treatment

As mentioned above, the obligation of humane treatment applies to all conflict parties, regardless of conflict classification. How might humane treatment apply to the situation of surviving family members with armed group-issued death certificates, absent more detailed provisions applicable in non-international armed conflict? The 1958 Commentary to the Fourth Geneva Convention notes that humane treatment is a broad principle and that it would not be desirable to enshrine exhaustive provisions which could limit the scope of the protections, which should apply to ‘all aspects of man’s life’ (Pictet 1958Pictet, 1958, pg. 204, Article 27, para 1(2)) and allow for evolution of interpretation over time. Thus, humane treatment should not be thought of as an ‘objective, immutable standard’, but rather one which is adapted to the ‘socio-economic background of both the victims and the vanquishers’ (Elder 1979). Considering the practical, legal, social and financial burdens resulting from a lack of death certificates, we argue that denial of death certificates, refusal to recognize non-state armed groups’ death certificates and discrimination against individuals for bearing non-state armed groups documents, may amount to inhuman treatment of the deceased person and their surviving relatives. We will now look at each of these categories in turn.

4.2. Humane treatment of deceased persons

Does an obligation of humane treatment exist regarding deceased persons? While not mentioned explicitly, the obligation of humane treatment for those not participating in hostilities could apply to deceased persons. Although it may sound strange to speak of the dead having rights, domestic jurisdictions provide limited rights to the dead, such as the right not to be dissected without consent, mutilated, or used sexually, clear examples of injuries or indignities which may be committed against deceased persons (Rosenblatt 2010). Philosophically, rights of the dead may be understood through an ‘interest theory approach to rights’, whereby rights holders may have interests which persist despite their inability to make conscious choices, such as in the case of the dead, infants, or those who are incapacitated, interests which can also survive death (Smolensky 2009). Notably, although international humanitarian law obligations generally only apply during the conflict, obligations to the dead extend even beyond the cessation of hostilities. For example, Additional Protocol 1 Article 34 requires ‘permanent’ maintenance and protection of graves. According to Mégret and Swinden (2019), ‘this “permanent” obligation to maintain graves tends to indicate that obligations in relation to the dead are potentially indefinite under international humanitarian law itself’.

The Assembly of States Parties to the Statute of the International Criminal Court has stated that the crime of committing outrages on personal dignity can be committed against a dead person, noting, ‘It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation’ (International Criminal Court 2013). If the dead may indeed be considered victims after their decease, the rationale behind the offense to the deceased person when their death is not recorded and transmitted may be understood as a violation of the right ‘not to lose [one’s] identity after death’, which Interpol recognizes ‘for legal, religious, cultural and other reasons’ (1996ICPO-INTERPOL General Assembly, 65th session, Resolution AGN/65/RES/13 1996). The Interpol General Assembly adopted this resolution in 1996 to confirm the commitments and obligations of member states regarding disaster victim identification. Admittedly, the recognition of the right not to lose one’s identity after death by the Interpol General Assembly has not been confirmed more widely by other bodies, nor did Interpol provide a detailed description for the legal basis of this right. The right to recognition as a person before the law is related but does not address a right for deceased persons. The treaty-based prohibition of enforced disappearance applies narrowly to persons deprived by their liberty by states (International Convention for the Protection of All Persons from Enforced Disappearance, Article 2). In armed conflict, deprivation of identity is a violation which can be committed through a series of acts against the body of a deceased person. Perpetrators of this violation may initiate inhuman treatment while the victim is alive, forcing the individual to give up identity documents and clothing which could have been used to identify them posthumously. This inhuman treatment may continue after their death, in a worst-case scenario by bulldozing and repeatedly moving bodies in mass graves so that they become disarticulated and impossible to re-identify without extensive DNA processing (Rosenblatt 2010). If we understand a deliberate deprivation of identity as inhuman treatment, then preservation or restoration of identity may be understood as humane treatment. The ICRC report, The Missing, alludes to this obligation without pointing to an international legal obligation, stating that ‘intentionally obstructing, interfering with, or impeding the process of identification of human remains for the purpose of preventing said identification should be punished as a criminal offence under domestic law’ (The Missing 2003, section 6.2). We argue here that in the case where the domestic policy leaves a gap or actively impedes accurately recording of deaths, such a policy constitutes inhuman treatment, because it increases the likelihood that an individual’s identity will be lost after death.

4.3. Humane treatment of surviving family members

Not knowing the fate of relatives, and not possessing documentary evidence confirming these facts, is psychologically devastating for surviving relatives, but also has practical and legal consequences for their everyday lives (Petrig 2009). As mentioned above, survivors can only access inheritance, property, and parental rights once they possess valid documentation of death. Fortin has suggested that the consequences arising from ‘denial, confiscation or destruction of civil status documentation’ by conflict parties may constitute an outrage on personal dignity prohibited by Common Article 3, especially as international human rights law already recognizes that a denial of legal status affects personal dignity (Fortin 2021).

Under international human rights law, the Human Rights Council has found that failure of states to provide recognition of death to missing persons’ families, thus denying them access to social benefits, constitutes inhuman and degrading treatment (Baranowska 2022, 44). Although this decision relates to international human rights law rather than international humanitarian law, the ruling is not made on the basis of recognition as a person under the law, which is not explicitly protected in international humanitarian law, but rather as a violation of inhuman treatment, which is prohibited in both legal regimes.

Another way of expressing the violation against grieving families may be to see denial of death certificates as a form of prohibited collective punishment. Mégret and Swinden have argued that state refusal to return dead bodies of ‘terrorists’ to families, can constitute a form of collective punishment, prohibited by Additional Protocol II, Art. 4(2) (Mégret and Swinden 2019). The state may believe that denial of a death certificate or body punishes only the deceased person, but our analysis above has shown that the denial of a death certificate also punishes family members. Moreover, the previous section described how family members may be arrested for simply possessing non-state armed groups’ documents as a proxy for proof of allegiance, with particular challenges for families of fallen terrorist fighters, collectively punishing their surviving family members.

4.4. Denial of death certificates violates the right to know the fate of relatives

While denial or destruction of death certificates, or punishment for holding non-state armed groups death certificates, could be construed as inhuman treatment or an outrage upon dignity against either the deceased person or their surviving relatives, families have another right which is specific to them: the right to know. Article 32 of Additional Protocol I recognizes the right of families to know the fate of their relatives, a right which belongs to families and not to states. The Commentary of 1987 to Additional Protocol I states that adoption of the term ‘right’ followed ‘careful reflection, and [was] made in full consciousness’, going beyond a contemporary UN General Assembly resolution which called the desire of families to know the fate of relatives ‘a basic human need’, thus clarifying that the right belonged to surviving relatives and not to states (Sandoz Commentary of Sandoz, Swinarski, and Zimmerman 1987 to API, p.343, para 1211, Article 32 – General principle; UN General Assembly, Resolution 3220, para. 4, 1975). Gaggioli notes that it was unprecedented that an international humanitarian law treaty created a new right which was not already established in international human rights law. Violations of the family’s right to know are thus a separate form of inhuman treatment which create a duty for governments to respond (Gaggioli 2018). After the adoption of Additional Protocol I, the right of families to know the truth about the fate of their relatives was confirmed in international human rights law to apply to non-conflict situations and broadened to include the rights to remedy and reparation which are not addressed in international humanitarian law (Baranowska 2022).

Death certificates are a highly appropriate means of fulfilling the right to know, because they allow families to receive information related to the time and cause of death (the ‘fate’ of their relative), as well as provide the civil documentation necessary to access their own rights. Death certificates do not provide the full scope of information which might be gathered for accountability purposes, for example, the names and chain of command of those responsible for the death. However, this means that death certificates can be insulated from the complex issues of confidentiality and impartiality that may arise in informing families when criminal investigations are ongoing (Parrin 2022).

The 1987 Commentary to Additional Protocol I refers to limits on the rights of families, since the precise content of the obligation on states is not clear and, according to the commentary, ‘there is no individual legal right for a representative of a family to insist that a government or other organization concerned undertake any particular action’ (Sandoz, Swinarski, and Zimmerman 1987 to API, p.343, para 1212). Of course, the right to know the fate of relatives is also not explicit in treaty law applicable in non-international armed conflict. As the commentary states, Committee II which adopted the Section in Additional Protocol I confirmed that ‘this Section did not impose obligations on a state with respect to its own nationals’, i.e. in non-international armed conflicts, where presumably international human rights law could fill the gap. However, the application of international human rights law to positive obligations of non-state armed groups is unclear.

ICRC recommends that domestic law should recognize the right of family members to know the fate of missing relatives in non-international armed conflicts, including imposing penalties on officials for ‘withholding available information or refusing to make reasonable efforts to obtain and provide information on the fact of death’ (ICRC The Missing 2003, para 28.2). However, related international customary law provisions in the ICRC study, based on state practice and opinio juris, apply both in international and non-international armed conflicts. The ICRC study’s reference to state practice includes a number of resolutions by international bodies which call on conflict parties to account for missing persons, without distinction between international and non-international armed conflicts, including a UN General Assembly resolution, a UN Security Council resolution and conclusions of the Working Group on Enforced or Involuntary Disappearances (UN General Assembly 3220, UN Security Council Resolution 2474, Human Rights Committee 2019).

In our line of argumentation, a deliberate disrespect of the family’s right to know through denial of death certificates, refusal to recognize non-state armed groups’ death certificates or punishment of families holding non-state armed groups’ death certificates, represents both inhuman treatment of families and also a violation of their right to know, prohibited in non-international armed conflicts under customary humanitarian law. The right to know the fate of relatives must include official documentation of these facts, or else it is illusory in practice. Families cannot present themselves in court for probate or child custody hearings simply stating that they ‘know’ the fate of their missing relative; they must be able to prove it.

4.5. Powers that non-state armed groups may exercise under international humanitarian law

Having argued that non-state armed group issuance of death certificates, and state recognition of such certificates, may be an element of humane treatment, we now consider the rationale for non-state armed groups to take on such a duty. Although non-international armed conflict law is circumspect regarding the rights and obligations which it grants to non-state actors, reflecting the reluctance of states to legitimize state-like actions by non-state armed groups, certain provisions seem to grant inherent or implied powers to groups to exercise functions regulated under international humanitarian law. One such example is detention. Although non-international armed conflict law does not require nor explicitly permit non-state armed groups to detain combatants or civilians, it regulates non-state armed groups detention through fundamental guarantees and minimum standards (Additional Protocol II, Article 5, see also Articles 4 and 6). Given this regulation, the ICRC and some scholars have argued that non-international armed conflict law contains an ‘inherent power’ for non-state armed groups to detain (see eg Commentary of 2016b to Geneva Convention I on Common Article 3, para 728; Van Amstel 2012).

Arguably, there is an implied power for non-state armed groups to issue birth certificates, in order to comply with their international humanitarian law obligations to provide education, reunite families, prohibit child recruitment, protect child detainees, and evacuate children to safety. As one study states, ‘This power does not rise to the level of an obligation, as it is not explicitly mentioned in [Additional Protocol II], but such a power may be exercised for the purpose of implementing the explicit obligations [of the Protocol]’ (Hampton 2019). In other words, treaty law provisions imply that non-state armed groups have the power to issue birth certificates, because non-state armed groups are required to provide education, reunification and prevent underage recruitment, for which they need to know the name, age, and other registration information of the child.

Following this logic, if non-state armed groups, in the course of diligently searching for the dead, preventing their bodies being despoiled, and decently disposing of them, as they are required to do in Article 8 of Additional Protocol II, take ‘all possible measures’, including issuing accurate and timely death certificates to families, it would seem that these death certificates are issued within the spirit of the relevant provisions. When considering the hardship that denial of death certificates causes to family members, and the increased likelihood that the deceased person will lose their identity after death without such certificates, non-state armed groups’ death certificates are a reasonable measure to ensure humane treatment for the deceased person and for their surviving relatives, and to prevent deprivation of identity after death.

4.6. State obligations that arise consequent to non-state armed groups exercising such powers

If non-state armed groups exercise an implied power to issue death certificates, in order to treat deceased persons and families humanely and to prevent inhumane treatment, what conduct might be required from states in response? Under international human rights law, as a broad principle, states lacking control over territory have been required to use all means available, whether ‘legal, economic, judicial or diplomatic’, to guarantee the rights of individuals who are on their territory but outside their effective control (see Ilaşcu and Others v Moldova and Russia 2004, Mozer v Moldova and Russia 2016, para 99–100, in Fortin 2021).

In a handful of relevant cases, concerning the US Civil War, the occupation of Namibia by South Africa, and an aspirant state, self-proclaimed as the ‘Turkish Republic of Northern Cyprus’, the obligation of the territorial state has been assessed in regard to recognition of civil status documents by a non-recognized entity (US Supreme Court, Texas v. White; George W. Hopkins (USA) v United Mexican States 1926; The Peerless Motor Car Company (USA) v United Mexican States 1927; ICJ Advisory Opinion on Namibia 1971, ECHR Cyprus v Turkey, 2001). In each of these cases, the US Supreme Court, the International Court of Justice and the European Court of Human Rights, respectively, found that governments should recognize legal acts – especially civil documentation related to births, deaths and marriages – issued by non-state, insurgent or unrecognized authorities, in order to prevent detriment to the inhabitants of the territory (Fortin 2021). These cases do not represent a direct precedent, given that most involve unrecognized states rather than armed groups, as we lack legal precedent directly addressing this issue. Nevertheless, these cases show a decided bent towards prioritizing the benefit of the inhabitants (or their humane treatment, in international humanitarian law terms) rather than the fear that recognition of documents will confer legitimacy on the document-issuing entity.

Despite these precedents, states such as Iraq and Syria have not recognized civil documentation issued by armed groups alone as proof on their territories and even arrested family members for holding such documents (Fortin 2021). The possibilities for redress and remedy for the hardship this imposes are limited and, as mentioned, often hindered by safety and security concerns of the affected population.

Despite the increasingly protracted nature of non-international armed conflicts and the increasingly sophisticated and durable governing regimes of non-state actors since the 1970s, there have been no updates to the Additional Protocols grappling with the implications of protracted rebel governance. The limited provisions of non-international armed conflict law in comparison to international armed conflict law reflect ‘states’ lack of appetite for intrusion into their sovereignty’, as well as ‘contempt’ states may hold for those considered to be lawbreakers (Mégret and Swinden 2019).

5. Conclusion

In contemporary non-international armed conflicts, a significant number of non-state armed groups have exercised de facto control over territories and populations. In addition to their engagement in hostilities, non-state armed groups have created civil administrations through which they have provided services to civilians, including registration of life-cycle events such as deaths. Though civil registration remains a state responsibility, non-state armed groups, whether for political or other reasons, have demonstrated the ability to address the recurrent needs of civilians they aspired to govern, and as such, account for the dead by means of providing death certificates. States have increasingly introduced cumbersome procedures to recognize the fact of death without recognizing insurgent death certificates alone as evidence to the fact of death. Nevertheless, in the case of Syria, for instance, despite recent amendments to the Civil Status Law to facilitate access to life-cycle events, individuals are often unable to cover the financial cost of the journey and the procedure itself to obtain an official document, while others fear arrest for carrying documentation issued by opposition groups.

The establishment of a mechanism, whether international or domestic, that allows for the factual details contained in documents issued by non-state armed groups to be used as evidence of death could make a significant contribution in preventing the dead from becoming missing, but also for the next of kin to access key rights. A dedicated mechanism could provide practical assistance to address issues of forgery or mistaken identity by centralizing to prevent duplication and transmitting information to families for accountability. Such a mechanism could also be used to ensure that non-state armed groups would recognize the civil documents issued by states and by other armed groups. ICRC has advocated for information bureaux to be established in non-international armed conflict settings, implying that non-state armed groups could also set up such bureaux, stating, ‘Information Bureaux should also centralize information on persons belonging to the party responsible for the Information Bureau’ (ICRC The Missing United Nations Statistics Division, n.d, section 24.4). ICRC also encouraged states to rely on alternate sources of confirmation of the fact of death, such as witness accounts (International Committee of the Red Cross Report: The Missing And Their Families 2003, section 6.5), a flexibility which could also be applied to non-state armed group documentation. As documented in the case of Syria, the majority of people who go missing in wartime are men (Djokanovic 2015). Such mechanisms need therefore to also take into consideration the gendered aspect of conflict, responding to the specific needs of women and girls whose rights – such as inheritance or child custody – are interwoven with their deceased spouses. Further study could explore in greater detail what such a mechanism could look like in practice.

Finally, this mechanism would also comply with the spirit of international humanitarian law, fulfilling duties related to accounting for the dead. State practice and opinio juris indicate some level of agreement on the part of states that accounting for the dead is still relevant, necessary, and meaningful for parties to both non-international and international armed conflicts. Consequences are far-reaching and families must not continue to lose the right to know the fates and whereabouts of their relatives due simply to conflict classification.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. The views of the author are expressed in a personal capacity and do not represent the views of the United Nations.