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Casualty recording and the importance of States to do so: an interview with Professor Susan Breau

Professor Susan Breau is Professor of International Law at the University of Victoria, Canada. Professor Mike Spagat is Professor of Economics at Royal Holloway College, University of London. Both are on the Board of the London-based NGO Every Casualty Counts.

The mission of Every Casualty Counts is to ensure that every life lost to armed violence is identified correctly, recorded effectively, and recognised and remembered appropriately. But how can we bring the world to a point where casualty recording happens whenever there’s war?  Part of the answer must be that States waging war do their utmost to record the casualties, both of combatants and civilians, suffered in these wars. Susan Breau has been a pioneer making the argument that, in fact, States are already bound by legal obligations to do casualty recording.  Recently Spagat caught up with Breau to discuss here seminal legal work in this field.

Spagat: Susan, how did you get into the casualty recording field in the first place?

Breau: I received an email from two gentlemen who were involved in an organisation called the Iraq body count [John Sloboda and Hamit Dardagan]. They introduced themselves and said, they wanted to know if there was a legal obligation towards the recording of civilian casualties of armed conflict. And the question really struck me because I recently completed a book, studying the customary international law that had just been released by the International Committee of the Red Cross. And the one chapter we had not covered in detail was the chapter about the dead. So I then went back and read that chapter and replied to the email with, I think, a one or two page document, saying that I believed that there was an international legal obligation to record civilian casualties of armed conflict. And I set out why based on the customary law study the Geneva Conventions and human rights law, that I thought it could be argued that there was an international legal obligation.

Spagat: Can you explain briefly what customary international law is and why itís relevant here?

Breau: Customary international law is not well known to the public. But there are two main sources of international law. One, the public knows well, and those are treaties. Those are pacts between states that states sign up to, and the most famous treaties that we deal with are the Geneva Conventions. But besides treaties, developed over centuries, is a doctrine that states will accept legal obligations not written down in a pact, by practice, and by agreeing in statements that by that practice they are legally obligated. And I think the easiest one to show you is the freedom of movement of ambassadors, that has gone on since the Middle Ages. It was a custom in all states that you didn’t arrest an ambassador, that an ambassador was free to return to his own country, and if necessary, face justice. But the whole of the international system would have collapsed, had states been able to arrest ambassadors when they came to visit. And so that was a custom. Now, more recently, there are a number of customs, for example, about freedom of air traffic. The prohibition against piracy was another one. There was no international treaty that said you couldn’t be a pirate, but states agreed that they would arrest pirates. So as the world has become more and more complex, there were more and more customary rules. And the reason I relied on that was because the obligations towards dead civilian casualties wasn’t really spelled out in any detail in the Geneva Conventions. It was certainly more specific for military casualty rates. There are very broad statements in the Geneva Conventions. And so I wanted to look at what custom had said about the treatment of dead civilians.

Spagat: Do you think that a formal international agreement, such as a treaty, is necessary to bring about systematic casualty recording whenever and wherever there is war in the world?

Breau: Controversially, I’ve never thought so. And I say controversially, because that was sort of a debate that we had early on. We set up a project called the Recording of Civilian Casualties. And there was a big debate about whether or not we should push for an international agreement, a treaty. But I thought, given the political climate that this would take decades. Secondly, it is a controversial topic. It wouldn’t result in achieving what I thought already existed. So I thought it was more important to set out in detail what already existed in international humanitarian law, which was the law behind the Geneva Conventions, and human rights law. I thought it was more important to set that out. And secondly, we were not at the level that we could really engage in international negotiations for a treaty. It wasn’t my specialty. I was an international law specialist. And I didn’t think we had the groundswell of support amongst states. Now, I must admit that looking at the developments on Cluster Munitions and explosive munitions, the treaties that are developing now, that it may, at some point, be the time to push for an agreement. Why is an agreement important? Because often in an agreement, there is what’s called an enforcement mechanism, a mechanism to hold states to account. The problem with customary law is that there isn’t a court. There isn’t a parliament, there isn’t anything that holds states to account. But often treaties will set up consequences for violation of international legal obligations. And that might be important in the future. And looking at the war in Ukraine right now. You can see that there should be consequences for the killing of civilians unlawfully. Already existing is the International Criminal Court statute and there are human rights tribunals. We do have some mechanisms, even without that treaty, but I’m not 100% convinced that at some point, it won’t result in a treaty on the recording and memorialising of civilian casualties.

Spagat: Okay, I gather you’re saying that it could make sense in the long run to push for a treaty codifying casualty recording obligations. But you believe that even in the absence of a treaty conventional international already calls for casualty recording obligations?

Breau: One of the confusions that we always have was that there isn’t anywhere written down, even in custom, that lists of civilian casualties have to be kept. But what is in the law that’s already in customary international law and in human rights law that family members have a have a right to know the fate of the relatives, that locations of graves should be recorded, that bodies should be identified, bodies should be searched for, causes of deaths should be identified and investigated. All of these obligations put together tells me that there’s an obligation on the state to record all of those things. So it’s not one thing. But it’s a number of things. For example, if a person is buried in a mass grave, there’s an emergence of a custom that people should be buried individually so that victims should be literally dug up and put into an individual grave. And the location of that grave should be marked. And there is also some custom about the fact that burying and memorialising the casualty should be in accordance with the customs of that victim. So in other words, a Muslim victim treated in a certain way, a Jewish victim treated in a certain way. So again, according to the cultural practices of the victim, and so all of those taken together to me is recording of civilian casualties.

Spagat: Could you give a brief summary of the casualty recording obligations that you believe already exist under conventional international law?

Breau: Yes. So let’s start first with what the law that says absolutely concretely, in the Geneva Conventions and human rights law, and that is to search for the missing. I’ve always had a problem with the word ìmissingî, because normally they are dead, This is esspecially current when you think of the situations that took place in South America. So that has been litigated all over the world, that there’s an obligation, if a relative goes into a police station, even in the middle of an armed conflict and says my relative is missing, there’s an obligation to search for that person. Then when a mass grave is discovered, there is an obligation to identify the victims. In Ukraine, they’re actually taking pictures. So again, that’s a very solid obligation. It’s in criminal law, it’s in domestic and international law, to identify the victim and identify the cause of death. And then going back to international law, what I feel is very concrete, is the obligation to notify family members. That’s in human rights law; you have an obligation to notify the family now. A little bit tenuous in international obligations is whether a body that has already been buried must be returned to the family. But I argue in human rights law, it should be. And I think it’s a should more than a must. The question remains of who would pay for the return of the victim to their homeland. That had been a big issue with the drowned migrants in the Mediterranean, who’s going to pay for the return of the coffin to another country. So that’s a bit tenuous, but notwithstanding that, the solid obligation is that this person is to be buried and with dignity and according to their cultural practices and the location of the grave recorded, with a great discouragement on mass graves. I think that those are the legal obligations.

Spagat: How are current wars, such as the one in Ukraine, affecting conventional law pertaining to casualty recording?

Breau: I have to start by saying the war in the Ukraine is a desperate tragedy because of the way it is being conducted, particularly by the Russians, where they are killing people and burying them in mass graves and not recording who they are and not identifying them. There has been an outcry, an international outcry. Well, international outcries can lead to the formation of international law. In other words, if there are public confirmations by political leaders that these acts are illegal that strengthens the formation of customary international law. I would argue before Ukraine, these obligations were already customary law. But this strengthens the force of that law. The other thing it has done, as there are a number of international lawyers trained in Ukraine, is that a language is of legal obligation is emerging. That started to happen in Afghanistan and Iraq as well, and in the Israel and Palestine conflict. This language of legal obligation in conflict is called lawfare. But part of it is that people and NGOs highlight the international law violations. But I’ve noticed in the Russia-Ukraine conflict, it’s particularly highlighting the very things that we’ve been talking about for the past decade and a half: the way in which civilian casualties are being treated, both before and after death. Because you see a number of news items where mass grave sites are secured, investigators are going in doing the things that we have argued should be done. And when the Russians have killed groups of civilians that has been highlighted as well. So I think the conflict has brought the legal issues to the attention of a number of countries and that came to the forefront at the United Nations Human Rights Council, where they recently adopted a resolution asking states to account for their practices with respect to recording of civilian casualties. That is very significant in terms of the development of customary law. Because the resolution passed by consensus which strengthens the customary nature of our obligations.

Spagat: I think we’ve been talking so far about obligations of states to record casualties of war. What role do you envision for civil society organisations in casualty recording?

Breau: I’ve often used the analogy of the International Committee of the Red Cross in the middle of a war. You can’t often count on a warring side, even the Ukraine Army that is trying to defend its territory by engaging in battle. It is often impossible to stop that battle and retrieve civilian casualties. I understand that it is often left to civil society to search for the missing, to account for the casualties, and to notify the families. These tasks can also be undertaken by the civilian branch of government. It can be police and it should be a combination of civil society and the civilian administration. But the best part about civil society is that they have been for decades on board with our mission and have pressed for proper civilian identification. And as you know, we have a casualty recorders network civil society has always been ahead of the curve on this one, and argued for a system of casualty recording. The problem is these organisations are chronically underfunded. And the worry about that, is that to actually do this properly is a very expensive process.

Spagat: You’ve argued that a variety of legal obligations regarding casualty recording actually exist and that they’re binding. But what happens if people nonetheless violate these laws? Is there some mechanism to hold them to account for that?

Breau: Well, there, there are a number of human rights tribunals. Russia, for example, is in the European Court of Human Rights, they can be brought to account in terms of compensation. And Russia as a state, a state can be brought to the European Court of Human Rights, individuals who violate these rights of individuals can be brought before the International Criminal Court. International criminal law is a lot more complex and difficult. Ukraine is calling for a special criminal court for the Russia and Ukraine conflict, because Russia doesn’t agree to the jurisdiction of the International Criminal Court. That is the role of a treaty. You’ve got to sign up to it. You’ve got to agree to it. There isn’t a clear system of enforceability. So what often happens is it ends up in local criminal courts after the war, and after a new regime takes over. It happened in Rwanda, where they had local courts, they had tribal courts that dealt with some of these issues. Often some domestic courts will get involved and argue the international obligations in a domestic setting. This is the most difficult part, and it’s why it’s so frustrating sometimes to be an international lawyer, because frankly, the whole system is almost based with getting away with murder. Itís often many years later before the criminal is brought to account, but I can only give the example of the Nuremberg tribunals. There were trials in Nuremberg that tried soldiers for indignities to human bodies. It just takes a long time before people are brought to account.

Spagat: Do you have anything you want to add?

Breau: Yes, there is. I don’t think identifying legal obligations is enough. There is a duty to remember. It goes to the core of our organisation Every Casualty. If you go to the museum at the International Committee of the Red Cross in Lausanne, you can literally walk in and see books of soldiers who are kept prisoners of war. They are named. They are listed on monuments. You know who they are. You can find the stories now. Even the missing soldiers are named. So the missing are named in war memorials all over France. There are lists of names of people where there are no known bodies. My dream would be at some point, that civilian casualties receive the same treatment because they are respected in popular culture. We all know the name of Anne Frank. She doesn’t have an identified body or burial site. We all know about her. We know her story. We know how she died. But I would like to see a database, a place where we will know the names of everyone who dies from armed violence across the globe. They will be named. They will be remembered. And the reason for that for me, is that until we do that, the true cost of war, the true impact of armed conflict will not be known. And it takes generations. It’s known within the culture that was affected. But often it’s not known in the global population. And, as you know, there are a growing number of Holocaust deniers. The survivors are all dying out. Yad Vashem is actually casualty recording, for the Holocaust. They’re trying to put all the names of the victims in books and record their stories. There are many countries that wouldn’t have the resources that Yad Vashem has to do that. I would like to see some place like an International Committee of a Red Cross, an international governmental organisation, though, not an NGO. The task of recording civilian casualties has to have buy in from states, because they have the databases, and frankly, they have the money. So in the same way they contribute to the International Committee of the Red Cross, they would have to contribute and larger states and wealthier states would contribute more. But I think with technology, it wouldn’t be as expensive as it was in the past. It wouldn’t need as many people. It would need systems. And they’d have to be designed. This organisation would also need storytellers and those who specialise in memorialization