Belligerent obligations under article 18(1) of the Second Geneva Convention : the impact of sovereign immunity, booty of war, and the obligation to respect and protect war graves / Wolff Heintschel von Heinegg
Article 18(1) of the Second Geneva Convention requires parties to an international armed conflict, “after each engagement” and “without delay,” to “take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.” This article focuses on the latter obligation: the duty to search for and collect the dead. It assesses this obligation in light of the International Committee of the Red Cross 2017 Commentary on the Second Geneva Convention, the first such commentary completed by the ICRC since 1960. After examining the language of Article 18(1), the article explores whether the sovereign immunity of sunken warships frustrates Article 18(1) obligations before turning to the concept of sunken warships as war graves and how this concept may affect efforts to search for and collect the dead. It concludes that the belligerent’s duty to search for and collect the dead extends to the remains found within sunken warships, as the sovereign immunity of sunken warships does not bar the application of Article 18(1) to belligerents since sunken warships qualify as booty of war. Regarding sunken warships as war graves, the obligation to respect these war graves would only apply after the belligerent affirmatively declares that the wreck constitutes a war grave. Until then, the belligerent parties remain bound by Article 18(1) to search for and collect the dead.