The war crime of outrages against the personal dignity of the dead: Legal basis, evolution, and elements

Abstract The mistreatment of corpses during armed conflicts is a grim and ancient practice that persists in modern warfare despite the protections afforded to the dead under international humanitarian law (IHL). This article explores the application of the war crime of outrages upon personal dignity to acts committed against the deceased. Sketching the development of the prohibition against maltreatment of the dead in the early laws and customs of war, it identifies post-Second World War prosecutions as the turning point where violations of such IHL provisions were clearly sanctioned as crimes imputing individual responsibility under international law. Turning to the elements of the modern war crime of outrages upon personal dignity, the article appraises the scant engagement of international criminal courts and tribunals with the offence in contexts involving the dead. It stresses that jurisprudencial guidance must be primarily sought in national case law from European jurisdictions, which have, in recent years, played host to the prosecution of a significant number of war crimes cases involving the degrading treatment of corpses. On the basis of this jurisprudence, the article then revisits the elements of the war crime, examining the particulars of the offence in the context of the dead.