74 Am. U. L. Rev. 315 (2024).

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Abstract

International humanitarian law mandates that the dead must be respected and protected in armed conflict. Among other things, parties to an armed conflict must ensure that the dead are treated with dignity and that their bodies are not despoiled, pillaged, mutilated, or otherwise maltreated. Not all human remains located on the battlefield, however, will have a direct nexus to the fighting. Some, like those of Prince Grigory Potemkin, a historical figure whose bones were seized by Russian forces from a Ukrainian church in 2022, might even pre-exist an ongoing conflict. Whether rules applicable to the dead apply to such remains is debatable. The international humanitarian law governing the dead implicates the bodies of combatants and civilians killed in conflict, not those of remote figures from the past. How, then, should the bodies of long-dead people be evaluated under international humanitarian law? This Article examines a particular subset of human remains—the remains of what the Article describes as the “exceptional dead”—and determines whether such material can be treated as property under the law of armed conflict. The Article then explores the “no-property” rule in dead bodies and its effect on the protection of human remains in armed conflict. Lastly, the Article considers whether the remains of the exceptional dead might qualify as cultural heritage material entitled to protection as cultural property under international humanitarian law.

* Lieutenant Colonel, United States Army; Academy Professor and Associate Dean for Strategy & Initiatives, United States Military Academy, West Point; Senior Military Fellow, Lieber Institute for Law and Warfare, West Point. The views expressed here are the views of the Author and do not necessarily reflect those of the United States Military Academy, the United States Army, the Department of Defense, or any other department or agency of the United States government.