75 Am. U. L. Rev. F. 17 (2025).

Abstract

In The Exceptional Dead: Human Remains as Property, Non-Property, and Cultural Property in Armed Conflict, Ronald Alcala spotlights a rare but significant legal lacuna, namely that existing International Humanitarian Law (IHL) offers little (if any) protection for the remains of any dead lacking a direct nexus with on-going armed conflict (i.e., dead which cannot be classified as recent casualties of the fighting). It makes no exception for existing cemeteries or tombs, or for the remains of historical figures that are despoiled, mutilated, pillaged, or even stolen during the fighting, as exemplified by the recent (2022) seizure and removal of Prince Grigory Potemkin’s remains from their crypt in a Ukrainian cathedral by Russian soldiers. Alcala proposes, and this Response endorses, at least as a partial solution, the co-option of the anthropological concept of the “exceptional dead,” (i.e., individuals who, after their deaths, become the focus of a relatively greater level of social attention and awareness). The recognition that human remains often are closely and symbolically tied to the cultural identity of a given people or nation could serve to bring them under the protective umbrella of IHL as cultural heritage material rather than as anomalous casualties of war.

* Professor and Director of the Forensic Institute for Research and Education, Middle Tennessee State University. Ph.D., Anthropology, University of Missouri; J.D., University of Hawaii Richardson School of Law. Diplomate of the American Board of Forensic Anthropology. Thank you to Professors Alcala and Sarah Wagner for their insight and comments. Thank you also to the American University Law Review for inviting this Response, and especially to the individual Law Review staffers for their exceptional editing skills.