Advancing honour and dignity in death for victims of armed conflicts: Exploring the challenges and opportunities of AI and machine learning in humanitarian forensic action under IHL

Abstract

With technological developments presenting tremendous opportunities, rapid developments in data-driven artificial intelligence (AI) and machine learning (ML) have the potential to significantly transform humanitarian forensic action. Yet, their role in the forensic identification of dead bodies remains unexamined. The correct and early identification of dead bodies is not only important to afford the deceased their honour and dignity and to ensure that their families know the fate of their loved ones, but also has broader implications for human rights and international humanitarian law (IHL). This article examines the opportunities and challenges of AI and ML in advancing honour and dignity in death for armed conflict victims in humanitarian forensic action under IHL. It argues that the application of AI and ML in humanitarian forensic action has the potential to revolutionize and support forensic practitioners in the identification of human remains. This will consequently guarantee that families know the fate of their loved ones and that the deceased are afforded dignified burials according to their religious and cultural rites. The article proposes recommendations for the future use of AI and ML in humanitarian forensic action, including the adoption of a legally binding international instrument governing their use, the development of guidelines for their use, the training of forensic actors in IHL and human rights law, and the use of new technologies in humanitarian action.

***

Introduction

In the French Army a certain number of soldiers were detailed from each company to identify and bury the dead. Usually, they picked out the men of their own units. They took the regimental number on the dead man's belongings, and then, with the help of Lombard peasants paid for the purpose, laid the body, clothed, in a common grave. Unhappily, in their haste to finish their work, and because of the carelessness and gross negligence of some of the peasants, there is every reason to believe that more than one live man was buried with the dead.

Henry Dunant, A Memory of Solferino ¹

With the current armed conflicts raging in various parts of the world, the loss of life is an undeniable and tragic reality affecting all parties to these conflicts. Thousands of unidentified victims are left in a state of decomposition. In some instances, corpses are mutilated, desecrated, abandoned without any funeral rites, or not accorded decent burials.² Families are left without any knowledge of the fate of their beloved ones.

International humanitarian law (IHL) has been developed to limit means and methods of warfare and to protect war victims. Under IHL, parties to both international armed conflicts (IACs) and non-international armed conflicts (NIACs) are bound to collect and search for the dead,³ to prevent the dead from being despoiled or mutilated,⁴ to ensure that the disposal of the dead is done in a dignified manner by following the deceased's culture and religion,⁵ and to account for the dead with a view to identification.⁶ In IACs, there is an obligation to return the human remains and personal effects of the dead when possible.⁷

With technological developments presenting tremendous opportunities, rapid developments in data-driven artificial intelligence (AI) and machine learning (ML) have the potential to significantly transform humanitarian forensic action. However, their role in forensic identification of the deceased remains unexamined. Over the years, tech enthusiasts in collaboration with forensic practitioners have developed tools like Skeleton ID, Commingled Remains Analytics (CoRA) and forensic facial imaging tools to aid in the identification of the missing and the dead.

The search for missing persons and the identification of human remains stands as a beacon of humanity's unyielding commitment to justice and the restoration of dignity. The correct and early identification of human remains has broader implications for human rights and IHL. To begin with, it is indisputable that the majority of cultures contain rules and traditions aimed at preserving the peace and dignity of the deceased by placing responsibility on the living to oversee funeral processes and rites of the dead.⁸ These funeral rites, often replete with symbolism and reverence, mark the ultimate stage of the vital human path that begins at birth and ends in the grave, allowing the dead to “rest in peace”.

Furthermore, recognizing the moral and philosophical underpinnings of human dignity, it is a fundamental tenet that every human being is inherently entitled to receive ethical treatment, respect and value throughout the entirety of his or her life, even transcending into the domain of death.⁹ This premise underscores the idea that the safeguarding of an individual's dignity does not cease upon death, but encompasses certain assurances related to the individual's human remains. These guarantees encompass the commitment to employ all reasonable means and methods to ascertain the identity of the deceased before burial, the guarantee that the remains will be protected from desecration, exposure to public curiosity or revenge, and the assurance of a respectful burial or cremation aligned with the deceased's religious and cultural beliefs. Thus, it remains true that the notion of human dignity extends beyond the boundaries of life, resonating with profound significance in the treatment and handling of the deceased.

Moreover, it is essential to acknowledge the right of families to know the fate of their loved ones. Every conceivable effort must be diligently undertaken to ascertain the fate of missing persons and to identify their remains. Experience has demonstrated the enduring, heart-wrenching plight of families connected to missing individuals.¹⁰ For instance, in many cases, spouses of the missing are trapped in a state of suspended bereavement, unable to move on with their lives until death is confirmed and the mortal remains are identified.¹¹ Any glimmer of hope perpetually reignites the pain, turning the disappearance into a daily, unending cycle of grief. Therefore, the imperative remains clear: it is of paramount importance to trace the fate of missing soldiers or civilians and to ascertain the identities of their mortal remains.

Using a multidisciplinary approach encompassing law, forensic science, computer science and transitional justice, this article explores AI and ML's challenges and opportunities in advancing honour and dignity in death for armed conflict victims in humanitarian forensic action under IHL. First, the article provides conceptual definitions of key terms like “artificial intelligence”, “machine learning” and “humanitarian forensic action”. To contextualize the discussion, the article then examines current developments and the application of AI and ML in humanitarian forensic action. It acknowledges the development and use of tools and software like CoRA,¹² Skeleton ID¹³ and other forensic facial imaging software in humanitarian forensic work. The article goes on to examine IHL obligations to protect the dead which are relevant for humanitarian forensic action and the specific human rights applicable to the treatment and management of the dead. It then discusses the opportunities and challenges of using AI and ML in humanitarian forensic action, and finally makes operational and normative recommendations aimed at guiding the responsible and ethical deployment of AI and ML in humanitarian forensic action.

Definition of key terms

Humanitarian forensic action

Humanitarian forensic action refers to “the application of forensic science to humanitarian activities”.¹⁴ The International Committee of the Red Cross (ICRC) defines it as a “range of activities that seek to alleviate human suffering and protect the dignity of all victims of armed conflict and catastrophes, carried out in a neutral, impartial and independent manner, free of charge and framed under IHL”.¹⁵ Following the wording of the Fundamental Principles of the International Red Cross and Red Crescent Movement,¹⁶ the International Court of Justice (ICJ) has defined humanitarian action as activities conducted by organizations and individuals “to prevent and alleviate human suffering wherever it may be found and to protect life and health and ensure respect for the human being”.¹⁷ This article conceptualizes humanitarian forensic action as part and parcel of all activities conducted by States, non-State armed groups, non-governmental organizations and humanitarian organizations to alleviate human suffering and to preserve, restore and promote human dignity regardless of whether the victim is dead or alive.

Artificial intelligence in the context of humanitarian forensic action

Although no single, comprehensive or widely accepted definition of AI exists, several operational definitions have emerged from academia, governments, and industry. The term “artificial intelligence” is used to refer to “any technique that enables computers to mimic human behaviour and reproduce or excel over human decision-making to solve complex tasks independently or with minimal human intervention”.¹⁸ The European Commission's Joint Research Centre has defined AI as

software (and possibly hardware) systems designed by humans that, given a complex goal, act in the physical or digital dimension by perceiving their environment through data acquisition, interpreting the collected structured and unstructured data, reasoning on the knowledge, or processing the information, derived from the data and deciding the best action(s) to take to achieve the given goal.¹⁹

In other words, “artificial intelligence” is a generic term used to describe any machine or algorithm that is capable of observing its environment, learning from that environment and making recommendations based on its own knowledge and experience.²⁰ The US Supreme Court, in Gottschalk v. Benson, defined an algorithm as “a procedure for solving a given type of mathematical problem”;²¹ however, whilst this definition is acceptable, it is now too restrictive, and algorithms today are remarkably similar to the sophisticated computer programs that make AI possible.²² In the United Kingdom, an algorithm is defined as “a process or set of rules to be followed in problem-solving which is structured and proceeds in logical steps”.²³ The Canadian Parliament has defined an algorithm as “an automated decision system or any technology that assists or replaces the judgment of human decision-makers using techniques such as rules-based systems, regression analysis, predictive analytics, machine learning, deep learning and neural nets”.²⁴ While these definitions seem different, they all point to problem-solving and replacement and automation of human judgement, which are some of the key characteristics of AI and ML. In humanitarian forensic action, “artificial intelligence” refers to the use of machines with a variety of algorithmic-based computational capabilities to cognitively examine massive quantities of complex data in order to reach logical conclusions that may assist in the search for and identification of the missing and dead in armed conflict, disasters, and migration contexts.

Machine learning in the context of humanitarian forensic action

Machine learning refers to the “science of developing computer systems that are trained and programmed to arrive at logical conclusions about the world through exposure to and processing of data”.²⁵ Data is analyzed through algorithms to ascertain the existence or absence of relationships.²⁶ ML enables computer systems to “learn, decide, anticipate, adapt and react to changes, improving from experience without being explicitly programmed”.²⁷ The concept of “learning” refers to the process of recognizing similar patterns and discrepancies in data through practice and repetitive instruction.²⁸

ML may be supervised or unsupervised. In supervised learning, the programmer trains the computer to recognize the object of interest in other datasets that are unfamiliar to it.²⁹ The system uses its training from the labelled dataset to identify an object of interest in the novel dataset.³⁰ A biased dataset will result in a biased system because the quality of the system's learning is dependent on the quality and diversity of the training data.³¹ Conversely, unsupervised ML is data-driven, and the algorithm trains the system to recognize patterns using an unlabelled dataset without human interference.³² The algorithm uses dataset features to draw inferences. In humanitarian forensic action, computer systems may be trained to assist in the identification of victims of armed conflicts, natural disasters and migration through facial recognition as well as reconstruction of a victim's body through skeletal-based forensic identification.

The use of artificial intelligence and machine learning in forensic action

In peacetime

In peacetime, AI and ML have been integrated into civil protection activities to help reduce disaster-related deaths, identify vulnerabilities, detect hazards and predict the development of future risks.³³ They have been applied in the context of the COVID-19 pandemic, for faster diagnosis and triage by health-care professionals.³⁴ For example, Infervision Technology has deployed and implemented AI-based software in an infrared computerized tomography scan with an 83% accuracy rate in detecting pneumonia lesions.³⁵ Additionally, Chinese facial recognition firms like SenseTime and Megvii have modified their AI systems to identify people wearing face masks and detect those exhibiting coronavirus symptoms.³⁶ Real-world needs and challenges have seen the deployment of several pre-trained computer models like AlexNet, GoogleNet, DenseNet201, and DENT-net.³⁷

In armed conflict situations

AI and ML have been extensively utilized in geospatial intelligence in current armed conflicts. In sensitive geopolitical locations, AI and ML have been used to analyze open-source material, including social media photos and satellite images.³⁸ While geospatial intelligence may have mostly been utilized for targeting on the battlefield, recent studies have shown that it can be used in forensic investigations to look for spatial patterns in the distribution of the dead or mass graves in post-conflict situations.³⁹ In Mexico, for example, local and international organizations employed ML models to predict and locate mass graves.⁴⁰

To shape its humanitarian response activities, the ICRC has developed AI- and ML-enabled scanning dashboards to collect and analyze massive data quantities, including employing predictive analytics to assist in determining humanitarian needs.⁴¹ For example, in the wake of the European migration crisis, the ICRC recently began testing the use of AI to help reunite loved ones, which represents a breakthrough technological opportunity.⁴² The ICRC has expressed interest in using AI-based facial recognition programs to assist in identifying the missing and the dead,⁴³ and it is currently exploring how AI and ML technologies can support the Central Tracing Agency's⁴⁴ efforts to reunify families separated by conflict⁴⁵ and how AI- and ML-based image analysis and pattern recognition for satellite imagery may support its infrastructure assistance projects in urban areas and the documentation of IHL compliance.⁴⁶

Current trends in and use of artificial intelligence and machine learning in humanitarian forensic action

Identification has always been extremely important in humanitarian forensic action and is an essential element of the activities of any medico-legal death investigations system.⁴⁷ The most popular method for human identification is visual recognition.⁴⁸ Where scientific methods are used for identification, Interpol recommendations for disaster victim identification recognize fingerprint matching, DNA testing and comparative dental analysis as the primary and most reliable stand-alone identifiers.⁴⁹ All these methods, however, require prior records, a reliable baseline and preserved material for DNA extraction or fingerprint comparison.⁵⁰ In cases where no ante-mortem data exist or where bodies are poorly preserved, these measures may be inapplicable. It is extremely challenging to employ these conventional methods where remains are reduced to bare bones, burnt or thrown into mass graves, where bones get mixed up, rendering identification quasi-impossible.

Recent breakthroughs in ML have resulted in advances in image recognition, restoration and synthesis.⁵¹ AI has assisted forensic practitioners with parameter estimation, image segmentation, pathology classification and image enhancement.⁵² It is thus necessary to explore some of the AI and ML developments that facilitate human identification.

The Korean War Identification Project: Isotopic Analysis and CoRA

The 1953 Korean Armistice Agreement provided for the recovery and exchange of human remains between opposing forces in the Korean War.⁵³ However, thousands of dead US soldiers north of the demilitarized zone could not be handed over to United Nations (UN) forces before the complete closure of the North–South Korean border.⁵⁴ Over the years, predictive models providing parameters for comparing isotopic values in tissues such as teeth, bone, hair and nails have been developed.⁵⁵ This process has undergone partial automation through the incorporation of full-spectrum identification algorithms, usually equipped with a specific library of isotopes.⁵⁶ Without human experts or using lookup tables, ML-based isotopic analysis can enable detection systems to adapt to diverse radiation fields by employing pattern recognition to identify characteristics or deviations in spectra data.⁵⁷

In addition to isotopic analysis, the US Defence Accounting Agency has incorporated newly developed software programs like CoRA which keep an inventory of bones and track relationships between them.⁵⁸ This is essential for separating commingled human remains into distinct individuals.⁵⁹ CoRA has been useful in offering analytical methodologies and tools to assist in the separation and identification of the dead. Many US servicemen who died in the Korean War have been or are currently being identified through isotopic analysis and CoRA and subsequently accorded decent burials.⁶⁰

Forensic facial imaging

Several ML algorithms have been developed to assist in human identification.⁶¹ A forensic facial imaging software which uses visual facial data for identification purposes has been developed.⁶² Using skulls and faces, this software can be applied to craniofacial identification processes like facial approximation and photographic superimposition.⁶³ Craniofacial superimposition, which entails “the superimposition of an image of a skull with some ante-mortem images of an individual and the analysis of their morphological correspondence”, is considered the most challenging form of skeleton-based forensic identification.⁶⁴

Various technologies have been utilized to reconstruct the faces of the deceased as a means of identification. For example, Face Lab is a research group at Liverpool John Moores University specializing in facial identification using forensic facial imaging.⁶⁵ Its research areas include the further development of a 3-D computerized craniofacial representation system employing haptic technology⁶⁶ and 3-D modelling software, developing a database of anatomical traits, and using cutting-edge technology for facial depiction, animation and recognition.⁶⁷ All these processes leverage existing AI- and ML-based technological advancements to assist in human identification.

Skeleton ID

Using physical anthropological methods like craniofacial photographic superimposition,⁶⁸ biological profiling,⁶⁹ comparative radiography⁷⁰ and facial comparison, Skeleton ID facilitates skeleton-based identification.⁷¹ Comparative radiography, for instance, is a forensic identification technique based on the comparison of skeletal structures in ante-mortem and post-mortem radiographic images.⁷² The images, such as 2-D radiographs or 3-D computerized tomographies,⁷³ are manually superimposed and visually compared by a forensic practitioner.⁷⁴

While AI and ML advances are welcome, their use is dependent upon the availability of certain forensic data previously obtained during the deceased's lifetime.⁷⁵ The nature of these techniques makes them useful only in certain limited circumstances – where there are widespread bombings with fragmented remains, in the absence of skeletal data, they are bound to fail.⁷⁶ In this regard, multiple lines of evidence in identification⁷⁷ may be utilized. These are not limited to dental, genetic and medical information but also include contextual information relating to the case such as circumstances of the disappearance/finding, geographical-temporal data and relationships with other individuals, biological profiles, individualizing features and more.⁷⁸

Legal obligations under international humanitarian law relevant to humanitarian forensic action

Article 38 of the Statute of the ICJ lists treaties, custom and general principles of law accepted by civilized nations as sources of international law,⁷⁹ while judicial decisions and the writings of highly qualified scholars from different nations are defined as subsidiary means for establishing legal rules.⁸⁰ IHL, which is primarily derived from the Geneva Conventions, their Additional Protocols and relevant customary IHL rules, imposes on warring parties specific obligations aimed at preserving the dignity and humanity of the deceased and their families.

Treaty law obligations under international humanitarian law relevant to humanitarian forensic action

The Geneva Conventions and their Additional Protocols apply to situations of armed conflict. IHL distinguishes between two types of armed conflicts: IACs, which are governed by the four Geneva Conventions and Additional Protocol I (AP I), and NIACs, which are governed primarily by Additional Protocol II (AP II) and Article 3 common to the four Geneva Conventions. Some provisions of customary IHL apply only to IACs, and others are specifically directed at NIACs, while most apply to all situations of armed conflict. Overall, parties to a conflict are required to treat the dead with dignity; search for, collect and evacuate their bodies; take all possible measures to identify them, respectfully bury them and ensure that their graves are respected and properly maintained; and record all available information on them and mark the location of their graves.⁸¹ IHL further protects the right of family members to know the fate of their loved ones.⁸² These same principles equally apply to other humanitarian emergencies like natural disasters and migration.⁸³

International armed conflicts

In IACs, parties to the conflict must observe and respect several legal obligations. These include the obligations to search for and collect the dead,⁸⁴ to ensure that they are honourably buried,⁸⁵ to return human remains and personal effects,⁸⁶ to dispose of the dead⁸⁷ and to account for the dead and the missing.⁸⁸ These obligations are fundamental to ensuring the effective implementation of humanitarian forensic action.

The obligation to search for and collect the dead

The duty to search for and collect the dead is a long-standing IHL rule codified in the 1949 Geneva Conventions.⁸⁹ Locating the dead has been considered to be a “highly important humanitarian deed”.⁹⁰ The obligation requires each party to the conflict to take all possible measures to search for, collect and evacuate the dead whenever circumstances permit,⁹¹ without any adverse distinction on any basis.⁹² As part of the search, warring parties are required to document any information about the dead that may assist in their identification as soon as possible.⁹³ The obligation is an “obligation of means that must be performed with due diligence”.⁹⁴

AP I urges warring parties to “endeavour to agree on arrangements for teams to search for, identify and recover the dead from the battlefield”.⁹⁵ As far as possible, such arrangements should allow for joint teams of both parties to search for the dead⁹⁶ or allow the civilian population or humanitarian organizations like the ICRC and Médecins Sans Frontières to assist in the search for and collection of the dead.⁹⁷ In practice, humanitarian organizations require permission from the party controlling a certain region to conduct search and collection activities, and such permission must not be arbitrarily withheld.⁹⁸

Disposal of the dead

Parties to a conflict are required to ensure dignified individual burials which are preceded by a meticulous medical examination for the purposes of, inter alia, establishing identity.⁹⁹ This obligation was initially codified in the 1929 Geneva Conventions¹⁰⁰ and was modified in the 1949 Geneva Conventions.¹⁰¹ AP I mandates parties to the conflict to conclude agreements to permanently protect and maintain gravesites.¹⁰² Numerous military manuals also specify this obligation,¹⁰³ which is part of the legal safeguards intended to preserve the dignity of the deceased.

Additionally, wherever practical, burials must be performed following the deceased's religious rites.¹⁰⁴ For instance, if the deceased was a Muslim, his burial should be quick, as Islamic law expresses a general preference for quick burial; it does not stipulate a specific time frame,¹⁰⁵ but some scholars have indicated that it should be twenty-four hours in order to minimize any effects on the body.¹⁰⁶ Cremation is recognized by IHL as an exception that may only be done for imperative hygienic or religious reasons – for example, in Hinduism cremation is considered “the last rite” or the “ultimate sacrifice”.¹⁰⁷ In circumstances where cremation is a religious rite, warring parties are duty-bound to do it whenever they cannot return the remains of the deceased to their families.

Furthermore, warring parties must endeavour to ensure individual burials. Collective burials without prior identification must be avoided unless there is an urgent health-related reason that justifies them.¹⁰⁸ Individual burials guarantee the deceased family's right to know and facilitate rituals of individual remembrance.¹⁰⁹ The graves must be respected and organized according to the deceased's nationality.¹¹⁰ These rules on the disposal of the dead are intended to respect the deceased's dignity while guaranteeing that the body can be recovered later and, if possible, returned to the deceased's family.

Humane treatment

The requirement for humane treatment is outlined in the Geneva Conventions, the Additional Protocols and various international human rights instruments, as well as a rule of customary IHL.¹¹¹ While this right applies to living persons within the meaning of IHL, it may be argued that its effect extends beyond life and continues to be relevant and applicable even in death. In light of this, the dead must be treated with dignity.¹¹² Regardless of its recognition, the precise meaning of humane treatment is not explicitly stated in any instrument, despite several texts referring to respect for a person's “dignity”.¹¹³ The ICRC has noted that “the requirement for humane treatment is an overarching concept”.¹¹⁴ Applying the concept of humane treatment to the management and treatment of the dead, this article posits that, under IHL, humane treatment implies two main prescriptions: the prohibition against mutilating dead bodies and the obligation to take all possible measures to prevent the dead from being despoiled.¹¹⁵ Mutilation of dead bodies is an “outrage upon the personal dignity” of the deceased and a serious IHL violation.¹¹⁶ Thus, prohibiting and criminalizing the mutilation of dead bodies upholds the dignity of both the deceased and their relatives and preserves crucial information/evidence for body identification and establishing the cause of death.¹¹⁷

To put this into perspective, in some armed conflicts, gruesome images and videos of dead soldiers have been posted on social media platforms,¹¹⁸ accompanied by messages encouraging families to verify whether the images depict their loved ones.¹¹⁹ Although the objective is to facilitate the identification of human remains, the method employed could amount to exposing the dead and their families to public curiosity.¹²⁰ Concerning the dead, the most obvious example of exposure to public curiosity would be distributing images of their corpses as propaganda.¹²¹ The publication of images identifying individual prisoners of war (PoWs) or deceased combatants – even when it is not accompanied by insult, humiliation or ill intention – can also amount to exposure to public curiosity.¹²² Thus, it amounts to a potential violation of humane treatment obligations under the Geneva Conventions.

Return of the remains of the deceased and the rights of the family

In IACs, the Geneva Conventions do not establish clear obligations to return the deceased's remains.¹²³ While Article 34(2)–(3) of AP I recognizes the possibility of concluding agreements to facilitate the return of remains to the families,¹²⁴ Article 17 of Geneva Convention I (GC I) refers to “possible transportation to the home country”,¹²⁵ Article 120(6) of Geneva Convention III (GC III) refers to the movement of bodies and proper disposal in accordance with the wishes of the PoW's home country,¹²⁶ and Article 130(2) of Geneva Convention IV (GC IV) refers to the return of ashes as soon as possible to the next of kin on request.¹²⁷

In this regard, it is apparent that Article 34(2)–(3) of AP I suggests a more proactive approach which recognizes the potential challenges involved and the need for cooperation to overcome them, whereas Article 17 of GC I, though not explicitly mentioning “repatriation”, opens the door to returning remains if circumstances allow. Article 120(6) of GC III acknowledges the importance of respecting the wishes of families regarding the deceased, and finally, Article 130(2) of GC IV is the most explicit, providing for the return of ashes “as soon as possible” to the next of kin on request and thereby highlighting the importance of timely repatriation of remains.¹²⁸ This acknowledgement of the potential repatriation request and the taking into account of the wishes of the families emphasizes the families’ right to request the remains of their deceased relatives. Several resolutions and documents of the UN and the International Red Cross and Red Crescent Movement urge belligerent parties to facilitate the repatriation of the dead's remains, and these organizations have acknowledged the right of families to have their loved ones’ remains repatriated.¹²⁹

Non-international armed conflicts

The IHL rules relating to the dead in NIACs are less developed, with Article 8 of AP II being the only provision explicitly mentioning the dead. This provision is further complemented by the detailed customary IHL rules on the treatment and management of the dead and missing contained in Rules 112–117 of the ICRC Customary Law Study. However, the absence of specific treaty rules on the dead in NIACs does not imply that the warring parties in NIACs operate in a legal vacuum and that customary IHL rules therefore come in to fill the gap.

The obligation to search for and collect the dead in NIACs

The addressees of the obligation to search for the dead and missing in NIACs are not only the ratifying State but all parties to a NIAC,¹³⁰ who have the same obligations under AP II.¹³¹ To successfully discharge certain AP II obligations, however, a certain degree of territorial control may be necessary. This means that not all parties to the conflict will be able to perform all obligations to the same extent.¹³² Recognizing the diversity and heterogeneity of non-State armed groups, some non-State armed groups may fail to meet the required threshold of organization and territorial control under AP II, but the absence of such organization does not relieve the non-State armed group from complying with its common Article 3 and customary IHL obligations. In any event, IHL obligations are not reciprocal, and therefore a party with the means to comply with them must do so.

Humane treatment

The obligation to respect the dead is the concretization of the general obligation to safeguard people's dignity and the prohibition against outrages upon personal dignity found in common Article 3. As noted above, while the obligation of humane treatment generally applies to living persons, its effect extends beyond death. The concept of humane treatment equally applies to general IHL norms like the prohibition against outrages upon personal dignity,¹³³ the prohibition against cruel and inhuman treatment¹³⁴ and the prohibition against collective punishment,¹³⁵ breaches of which are crimes under the Rome Statute of the International Criminal Court.¹³⁶

The general notion of respect includes preventing the dead from being despoiled¹³⁷ and not exposing them to public curiosity, which can be avoided by placing them in an appropriate location before burial or cremation.¹³⁸ In 2016, a Swedish court convicted Raed Abdulkareem, an Iraqi national, of war crimes for posting graphic images of himself on Facebook next to mutilated bodies and a severed head of Islamic State fighters after fighting them in Iraq.¹³⁹

Return of remains

The IHL provisions on NIACs are silent on the return of remains from one belligerent party to another. With common Article 3 and AP II being drafted in view of “traditional” NIACs in which “government forces fight against one or more organised groups within a territorial state”,¹⁴⁰ it is inconceivable that States would have acknowledged the duty to return the dead bodies of rebels to their family members. This would have been very difficult from a political and diplomatic perspective;¹⁴¹ at the very least, it would have been deemed as granting non-State armed groups credibility and legitimacy.

With conflicts constantly evolving, extraterritorial NIACs that “extend beyond borders and spill over onto the territory of another state”¹⁴² have increased. In such cases, the return of the deceased's remains may be necessary. The absence of an obligation to return remains in NIACs does not prevent the parties from doing so. Facilitative agreements have been historically concluded; for instance, after the Philippines war, the Philippines government and the National Democratic Front of the Philippines agreed to facilitate the return of remains.¹⁴³ In addition, the ICRC as a neutral intermediary oversaw the transfer of remains to the relevant authorities in the conflict between Sri Lanka and the Liberation Tigers of Tamil Eelam.¹⁴⁴ This demonstrates the possibility of returning the dead to their families in NIACs. Since common Article 3, AP II and relevant customary IHL rules do not explicitly recognize this practice as a legal duty, the existence of such practice suggests the possibility of returning dead bodies in NIACs in keeping with the requirement of respect for family life.¹⁴⁵

Customary IHL

Customary IHL rules on the dead fill the gaps in both IACs and NIACs. According to the ICRC, all rules on the dead apply in both IACs and NIACs except for the rule on the return of the deceased's human remains and personal effects, which only applies in IACs.¹⁴⁶ However, in the interpretive section of the rule, the ICRC Customary Law Study notes that “there is a growing trend towards recognition of the obligation of the parties to a conflict to facilitate the return of the remains of the dead to their families upon their request”, which implies that the rule should equally apply to both IACs and NIACs.¹⁴⁷ The ICRC has further concluded that warring parties have a customary obligation to “endeavour to facilitate the return of the remains of the deceased upon the request of the party to which they belong or upon the request of their next of kin”.¹⁴⁸ As the words “endeavour to facilitate” indicate, this obligation is one of means and not of result. Gaggioli posits that the obligation “may be considered as too soft, but it has the merit of being realistic and of requiring States to adopt a proactive and positive stance to the return of human remains and of outlawing measures constituting unnecessary impediments to such returns”.¹⁴⁹

Specific human rights on the treatment and management of the dead

In the treatment and management of the dead, certain human rights should be considered. There exist divergent views on whether the dead have human rights or not, and it is true that to date no human rights instrument explicitly provides for the human rights of the dead.¹⁵⁰ However, this article posits that, although human rights primarily protect the rights and dignity of the living, it is accepted that in exceptional circumstances, some human rights may produce effects which extend beyond death. In this regard, it may be argued that the prohibitions against public exposure, mutilations, and denial of burial or other funeral rituals, together with the right to decent funerals in accordance with the religious convictions of the deceased person, are rights that are generally applicable to living persons but whose effects extend beyond death.

Even though the deceased loses most legal rights upon death, the family retains the right to ensure that the body is treated with dignity. The idea that one's body may be exposed after death to public exposure, mutilation and/or denial of a proper burial is a cause of suffering and a violation of that person's dignity as well as a violation of the family's right to respectful treatment of the deceased. This is because human rights are inextricably linked to the concept of human dignity and its attendant obligations.¹⁵¹ Since the effects of some rights extend beyond death,¹⁵² IHL recognizes respect and dignity for the dead, and strong arguments can be advanced under international human rights law for the existence and recognition of the right to respect and dignity of the dead, it is submitted that both IHL and human rights law seem to suggest the existence of human rights for the dead, particularly the right to be buried in accordance with their religious and cultural practices and the right to human dignity. The relevance of human rights considerations to the deceased and their families should therefore be considered.

The prohibition against torture and cruel, inhuman or degrading treatment for family members

The right not to be subjected to torture and cruel, inhuman or degrading treatment or punishment is intrinsically linked to “human dignity”.¹⁵³ In the context of humanitarian forensic action, in cases where States have failed to notify the deceased's families as to where their relatives are buried, this has been held to amount to inhuman treatment.¹⁵⁴ The European Court of Human Rights (ECtHR) determined that the suffering caused to family members when a deceased person's ear was severed during a post-mortem procedure amounted to inhuman treatment since such suffering was distinct from the distress caused by the death itself.¹⁵⁵ In Singh and Bhai v. State of U.P. and Others, the Indian Allahabad High Court ruled that a dead body deserves to be treated with the same respect that the person would have deserved if he were alive, and that resort to post-mortem analysis, for example, must be necessary.¹⁵⁶ While ill-treatment of dead bodies may be an act of revenge perpetrated on the deceased, it is mainly an act of violence directed against the survivors. In this context, where relatives may be further distressed by seeing the mutilated body of the deceased, the emotional distress will be distinct and potentially more pronounced than the emotional suffering caused by the death itself. Therefore, measures must be taken by States in humanitarian forensic action to preserve the dignity of the deceased and their relatives.

The right to freedom of thought, conscience and religion

Several human rights treaties guarantee the right to freedom of thought, conscience and religion.¹⁵⁷ This right entails the freedom to hold religious beliefs and to practise a religion or not.¹⁵⁸ While the right to hold religious beliefs is absolute, the right to practise those beliefs is not.¹⁵⁹ Where the deceased practised a religion or held religious beliefs, he must be buried according to such beliefs and practices;¹⁶⁰ for example, a Christian's burial should follow Christian burial rites, which are believed to facilitate the deceased soul's eternity in heaven.¹⁶¹ In Polat v. Austria, the ECtHR determined that how the dead are buried is an integral part of religious practices protected by the right to manifest one's religion.¹⁶² Failure to respect such religious practices could be considered a violation of the freedom of religion of the families.

It is indeed true that humanitarian forensic activities may sometimes clash with some religious beliefs. For instance, autopsies are considered contrary to Islamic and Judaist beliefs.¹⁶³ The sanctity of the human body may be violated when families and communities view autopsies as body intrusion. As noted previously, Islamic law expresses a general preference for a quick burial but does not regard it as compulsory, and primary Islamic sources do not state a time frame for burial.¹⁶⁴ There are exceptional circumstances where quick burials may be postponed, particularly where foul play is suspected, where a person's death is in doubt, or until the arrival of the dead person's relatives.¹⁶⁵ After the 2004 South Asian tsunami disaster, it was noted that in some Muslim communities, the deceased were buried within the first twenty-four hours according to custom, making it difficult for the local authorities to identify and count the dead.¹⁶⁶ In cases where there are many fatalities, this may result in the haphazard disposal of the dead, thereby posing challenges for future exhumations and identification.

Not all acts inspired by religion are protected under the right to freedom of religion.¹⁶⁷ Where families withhold consent for autopsies on religious grounds, courts may authorize autopsies in the interests of justice.¹⁶⁸ Since the freedom to manifest one's religion is not absolute, such right may be limited in the interests of justice, truth, honour, and dignity of the dead.

Right to respect for private and family life

The right to private and family life has been recognized in various human rights treaties.¹⁶⁹ In 1978, the UN Commission on Human Rights (as it then was) condemned Israeli policies and practices that interfered with family rights and customs in the occupied Palestinian territories.¹⁷⁰ The IHL definition of “families” includes not only blood relatives and legal ties but also personal and emotional ties.¹⁷¹ The ECtHR has ruled that the concept of family life in the context of human rights refers to all types of relationships and not just nuclear families.¹⁷² The deceased's relatives may invoke their right to private and family life if they are denied access to a deceased relative's grave or are refused the opportunity to participate in the burial ceremony, have the body returned to them without undue delay, or be informed of the grave's location.¹⁷³ This right possibly extends to the deceased's friends.

Human dignity

Human dignity includes the “dignity of the living and the dead”,¹⁷⁴ the protection of which is the same.¹⁷⁵ It has been widely accepted that dignity is inextricably linked to the concept of human rights¹⁷⁶ and that human rights investigations must encompass the idea of dignity.¹⁷⁷ While no consensus exists on the exact relationship between human dignity and human rights, it is crucial to recognize that some consider it as a foundation and the goal of human rights¹⁷⁸ while others believe it is a separate right.¹⁷⁹ Notwithstanding its characterization, human dignity can facilitate coordinated responses and enhance international cooperation in the context of humanitarian forensic action.

Dignity serves as a guiding principle that supports the acknowledgement of human rights, particularly the intrinsic worth of everyone establishing the inalienability of human rights. Without such acknowledgement, the legitimacy and universality of human rights would be compromised. Human dignity, therefore, reinforces the humanitarian imperative, particularly in the context of humanitarian forensic action. Humanitarian actors can be assisted by the multi-stakeholder community, including but not limited to NGOs, academic institutions, legal experts, community leaders and government agencies, in articulating the moral justification for intervention and collective action for human dignity preservation for all persons, whether alive or dead. This can be done through guidance from legal experts in human rights and IHL, collaboration with local leaders and communities to ensure culturally sensitive approaches, research and documentation providing access to studies and reports that highlight the importance of human dignity in humanitarian work by academic institutions, training and workshops on human rights and humanitarian principles, and provision of advocacy resources by NGOs and international organizations.

The right to know

The “right to know” is often used as a generic expression regarding missing persons and their families. In the treatment and management of the dead, this right evolved as a response to the needs and demands of individuals and families. Tragic events in the form of armed conflicts and natural disasters highlighted the critical necessity for the affected parties to obtain accurate and timely information about their missing or deceased loved ones. The UN Human Rights Council recognizes that diverse legal systems define the right to know differently as “the right to know the truth”, “the right to be informed” or “freedom of information”.¹⁸⁰ Furthermore, this right has a different meaning, rationale and scope of application depending on whether it is considered under IHL or under international human rights law. While IHL protects the right to know the fate and whereabouts of persons missing in relation to an armed conflict, international and regional human rights instruments and jurisprudence have progressively recognized a “right to know the truth” about gross international human rights law violations and serious violations of IHL. With this in mind, it becomes necessary to discuss the right to know under both IHL and international human rights law.

The right to know the fate and whereabouts of missing persons under IHL

The “right of families to know the fate of their relatives” is outlined in Article 32 of AP I,¹⁸¹ which stands as one of the few references to an individual's right within IHL; other IHL norms are primarily framed as obligations of the parties to the conflict. This right not only guides the parties to the conflict in dealing with the missing and the deceased but also extends to High Contracting Parties and international humanitarian organizations. For this right to be applicable, under IHL, there must be a direct connection between the missing or deceased individual and the armed conflict. Factors such as the involvement of the perpetrator or victim with a party to the conflict or the alignment of the act with the goals of such a party help establish this linkage.¹⁸² Once this connection is established, the right to know the fate and whereabouts of the missing arises immediately following their disappearance due to the conflict.

While AP I only applies to IACs, the interpretation note of Rule 117 of the ICRC Customary Law Study states: “Practice indicates that this rule is motivated by the right of families to know the fate of their missing relatives.”¹⁸³ Further, State practice establishes this right as customary law relevant to both international and non-international armed conflicts.¹⁸⁴ This right encompasses the obligation to take feasible steps to account for missing individuals due to armed conflict and to provide their families with information on their fate. Moreover, the rules relating to the dead are also underpinned by the right of families to know,¹⁸⁵ and in cases of death, other IHL rules require the recovery, identification and respectful handling of their remains.¹⁸⁶

Notably, the right to know has been mentioned in several resolutions of the International Conference of the Red Cross and Red Crescent as the “right of families to obtain information on missing persons”.¹⁸⁷ AP I states that the implementation of rules relating to the dead and missing should be “prompted mainly by the right of the families to know the fate of their relatives”.¹⁸⁸ Families are entitled to receive information about a missing relative once his or her fate has been ascertained. In particular, Article 34(2) of AP I states:

As soon as circumstances and the relations between the adverse Parties permit, the High Contracting Parties in whose territories graves and, as the case may be, other locations of the remains of persons who have died as a result of hostilities … are situated, shall conclude agreements in order … to facilitate access to gravesites by relatives of the deceased and by representatives of official grave registration services and to regulate the practical arrangements for such access.¹⁸⁹

After the 1982 armed conflict between Argentina and the United Kingdom in the Falkland Islands/Islas Malvinas, the agreement to facilitate the forensic identification of the unidentified human remains from the conflict was only concluded in December 2016 after a series of long negotiations with the ICRC as a neutral intermediary.¹⁹⁰ The agreement specifically outlined the parties’ obligations to provide answers to families of the missing. As a result of this process, families of Argentine soldiers who were identified were subsequently able to visit and name their relatives’ graves. In this context, a comprehensive right to know must address circumstances outside the context of armed conflict.¹⁹¹

The right to know the truth about violations under international human rights law

International human rights standards recognize the “right to know the truth”, which finds its roots in the families’ right to know their relatives’ fate under IHL.¹⁹² It has gradually evolved through the jurisprudence of human rights bodies and courts like the Inter-American Court of Human Rights (IACtHR), initially in cases of enforced disappearances and later encompassing other grave human rights violations and serious violations of IHL. The Working Group on Enforced or Involuntary Disappearances acknowledged the existence of the right to truth as an autonomous right in 1981.¹⁹³ Its scope is then limited as it takes the form of the right for victims – including families – to know the truth about such violations.

The International Convention for the Protection of All Persons from Enforced Disappearances (ICCPED)¹⁹⁴ is the first human rights treaty explicitly recognizing the “right of any victim to know the truth about the circumstances of an enforced disappearance and the fate of the disappeared person and the right to freedom to seek, receive and impart information to this end.”¹⁹⁵ The ICCPED confirms the right to truth as an enforceable right in itself,¹⁹⁶ and further guarantees victims the right to know the truth regarding the circumstances of enforced disappearances, the progress and results of investigations and the fate of disappeared persons.¹⁹⁷ Thus, from the wording of Article 24(2) of the ICCPED, the right to know the truth encompasses three key elements: firstly, the right to know the truth about the circumstances of the disappearance; secondly, the right to know the progress and results of the investigation; and finally, the right to know fate of the disappeared person.¹⁹⁸

Within the framework of international human rights law, the right to know the truth is anchored in several rights including the right to an effective remedy, which obligates the State authorities to carry out an effective investigation into the circumstances surrounding the disappearance of a person or other gross human rights violations,¹⁹⁹ as well as the right to freedom from torture and cruel treatment.²⁰⁰ In Velasquez Rodriguez v. Honduras, the IACtHR found that “an effective search for the truth” must be assumed by the State itself and should not depend upon the initiative of the victim or their relatives.²⁰¹

In addition, the lack of knowledge regarding the fate of loved ones is considered as potentially constituting torture and cruel treatment. This interpretation has influenced the development of jurisprudence in Europe²⁰² and the Americas.²⁰³ The IACtHR has recognized two dimensions of the right to know the truth: first, victims and family members have the right to know the truth about the circumstances that led to the serious human rights violations and to know the identity of the perpetrators of such violations, and second, this right to know the truth has a collective aspect, extending to the entire society affected by such violations.²⁰⁴ However, others argue that the collective right to truth may lead to the politicization or manipulation of historical narratives.²⁰⁵ As such, it may be argued that the emphasis on the collective nature of the right to truth might overshadow the need for individual justice and accountability. Regardless of such divergent views, it is this article's proposition that the fundamental right to know the truth extends not only to the victims and their families but also to society at large, as confirmed by the regional tribunals and courts.²⁰⁶

Opportunities and challenges for AI and ML in humanitarian forensic action

There are various opportunities and challenges that AI and ML present to humanitarian forensic action. These will be discussed in turn below.

Opportunities

Automation of repetitive tasks

AI and ML can be used in humanitarian forensic action to automatically execute repetitive tasks that would otherwise be handled by humans. These technologies have the potential to be tremendously valuable in a wide range of humanitarian forensic actions like image recognition, image and video analysis, and large-scale data analysis.²⁰⁷ Through the use of AI and ML, pertinent information has been determined through dental examination data, sex determination of skeletal remains and 3-D facial reconstruction from unidentified skulls. This automation aids in the efficient utilization of forensic labs to reduce backlogs. It does not eliminate the need for experts but allows them to devote more time to data analysis and ultimately to identifying the deceased's mortal remains, and it has the potential to enable timely identification and minimize delays in the return of mortal remains to families for proper burial or memorialization. This will assist in honouring the deceased with human dignity by allowing their families to bury their loved ones in accordance with their cultural and religious beliefs.

Speed and efficiency in the identification of remains

AI and ML technologies can greatly accelerate the forensic analysis process. They can be used to model and structure the human experts’ knowledge and extract new knowledge from vast databases, reducing identification times through the automation of certain tasks.²⁰⁸ These technologies have the potential to process and analyze enormous amounts of data, providing excellent tools for resolving complex datasets.²⁰⁹ Unlike humans, AI can undertake a meta-analysis of metadata derived from various sources and compress it in a relatively short time.²¹⁰ AI and ML algorithms can determine independent complicated facial recognition features or parameters for challenging tasks. They could also assist in reducing time frames by analyzing large datasets, thereby facilitating identifications in a more timely manner. Most forensic best practice suggests that AI and ML can be used as an adjunct to identification like a triage or shortlisting, and this can assist the human expert who then has to carry out the final verification of the identification.²¹¹ Thus, AI and ML can assist human experts in quickly identifying human remains, and as a result, the families of the victims of armed conflicts will be able to honour their loved ones by affording them a befitting burial in accordance with their religious and cultural beliefs. The families can also find emotional healing, which is a fundamental aspect of the right to dignity.

Improved accuracy in human identification

Given AI and ML's ability to provide accurate information and identification, they can be very efficient in pattern recognition, which is crucial in forensic science. Since pattern recognition is dependent on statistics and probabilistic reasoning, AI can be employed to recognize such patterns in complex data more accurately,²¹² using a person's data collected before death. These technologies can potentially eliminate human subjectivity and errors while contributing to reliable human identification by reducing the degree of false positives or negatives.

Challenges

Right to privacy, data vulnerability and privacy concerns

Privacy underpins and protects human dignity.²¹³ Personal information is sensitive and must be safeguarded to guarantee the data subjects’ safety and privacy.²¹⁴ Data protection laws introduced the concept of data subjects for privacy protection. A data subject is defined as a natural person who can be identified directly or indirectly by reference to personal data.²¹⁵ The consent of the data subject is essential for data processing since it forms the legal basis for personal data processing in the humanitarian context.²¹⁶ Generally, the dead are not data subjects as they are incapable of consenting to the use of their personal data.²¹⁷ Therefore, since consent is crucial in data handling, it is submitted that the deceased family's consent is sufficient for data handling and processing purposes.

However, in cases where the family of the deceased is unknown or also deceased, or the deceased was estranged from their family, other legal bases may be used to process data on the dead. For instance, the handling and processing of personal data may be lawful if done in compliance with a legal obligation,²¹⁸ for the protection of the vital interests of the data subject or another person,²¹⁹ in the public interest,²²⁰ for legitimate interests provided that those interests are not overridden by the rights and freedoms of the data subject,²²¹ or in the performance of a contract.²²²

It is indeed true that individuals may consent to personal data processing for specific humanitarian action-related purposes – however, they may be unaware that their data may be used to develop AI systems. Furthermore, in the absence of comprehensive data retention guidelines, indefinite retention of such data, particularly in armed conflict contexts, may expose it to theft, abuse, and destruction, potentially putting data subjects' lives in danger by making them targets of attacks. In Gaughran v. UK, the ECtHR noted that “the rapid development of increasingly sophisticated techniques allowing among other things, facial recognition and facial mapping techniques to be applied to individuals' photographs and the storage and possible dissemination of the resulting data is problematic”.²²³ In the context of AI systems, privacy is critical in guaranteeing that those systems are not exploited to discriminate against individuals based on their data.

Bias and discrimination

AI and ML algorithms can exacerbate existing biases and perpetuate direct and indirect discrimination on grounds of gender and race, particularly in the data used to train them.²²⁴ The 2018 Toronto Declaration is an attempt to make human rights a key component of data ethics in ML systems.²²⁵ Data ethics refers to the assessment of data practices like collecting, generating, analyzing and disseminating data that can potentially negatively impact people in society.²²⁶ As such, the Toronto Declaration provides an excellent foundation for establishing an ethical ML framework acknowledging the potential human rights impacts, like bias and discrimination, unintentionally introduced as a result of the programmers' own unquestioned assumptions and subconcious biases in the modelling, training or usage of ML systems.²²⁷

The context in which an algorithm is deployed and the specific task it is supposed to do determine whether it is discriminatory.²²⁸ For instance, a case of algorithmic bias and discrimination may arise where an algorithm is being used for a purpose for which it was never intended: if an algorithm has been designed for use in, say, the health-care or financial sector, then such an algorithm cannot be utilized in the context of law enforcement. Similarly, an algorithm that has been developed specifically to address a historical injustice of a specific demographic group may result in algorithmic bias and discrimination if utilized for another demographic group. An algorithm intended to ensure the inclusion of young people in the workforce, if used for the opposite demographic group, can also have discriminatory implications; this is mainly because the algorithm would have been trained using a specific stereotypical data set biased towards that specific group. For example, the Amazon Rekognition software used by various US law enforcement agencies wrongly matched twenty-eight African-American and Latino Congress members with convicted criminals.²²⁹ In the humanitarian forensic action context, an AI model trained exclusively on data from a specific ethnicity or other characteristics may inadequately perform victim identification of those from other ethnic groups. Given this data training bias, developers of AI and ML technologies for humanitarian forensic action must be particularly conscious of the diverse human rights applicable in this context. Failure to do so can lead to disproportionate misidentifications which can cause emotional distress to families who may have received inaccurate information about their loved ones.

Dehumanization of humanitarian forensic action

While much is made of the new capabilities offered by AI and ML, a realistic assessment of these technologies’ capabilities and limits is essential where they are utilized for armed conflict-related activities. Parties to the conflict should endeavour to guarantee that the application of AI and ML does not dehumanize humanitarian forensic action. No matter how sophisticated machines become, they will never genuinely embody human traits in their interactions.²³⁰ As these technologies are being developed to undertake tasks normally executed by humans, there is an inherent tension between the pursuit of AI and ML applications and the role of human experts that requires continuing attention.²³¹

Given the risks inherent in conflict zones, the deployment of AI-enabled humanoid robots to search for and collect the dead may be an option.²³² However, since AI-enabled humanoid robots lack genuine emotions and empathy, their use may not adequately address diverse cultural practices surrounding death and mourning, and may have a dehumanizing effect on the deceased and their families.²³³ Further, they may not be able to recover the entire remains, and neither will they be able to treat the remains with the dignity that forensic practitioners would expect if the remains were scattered, or appropriately document and recover commingled remains. It is submitted that given this dehumanizing effect and the potential limitations on collecting and treating the remains with dignity, the use of such robots should be strictly limited to identification tasks and not the collection of the deceased's remains. AI and ML systems must be used to support and supplement human experts, not replace them. Humanitarian situations frequently include navigating complex ethical terrain, with decisions going beyond simple data analysis and involving prioritization, evidence management and reconciling competing interests.²³⁴ Human experts possess the ability to consider these variables and make value-based decisions upholding the broader ethical standards that might not be codified into AI or ML systems. It is therefore essential to maintain human oversight over tasks that have the potential to seriously undermine the deceased's dignity and honour if carried out incorrectly.

Asymmetry

The utilization of AI and ML technologies in humanitarian forensic action can potentially highlight the asymmetry between warring parties. While AI and ML can contribute to adherence to and fulfilment of IHL obligations by parties to the conflict, not all conflicting parties have the same technological and financial means to guarantee adherence to their IHL commitments, particularly when new technologies are needed to do so. The disparities in the costs and feasibility of various methods of identification are more pronounced where there is a significant difference between the military powers involved and the resources available to them, and it is also true that some conflicts receive more attention and resources than others: for example, after the outbreak of the Russia–Ukraine War, all attention and resources shifted to Ukraine, while the conflicts in Syria, Yemen, Afghanistan and Nagorno-Karabakh, among other long-standing conflicts, were overlooked. The resumption of active fighting in and around Gaza in the last quarter of 2023 aggravated this asymmetry.

While IHL recognizes the equality of belligerents, with warring parties having the same rights and obligations, the possibility of non-State armed groups in NIACs utilizing AI and ML to fulfil their humanitarian forensic action obligations is inconceivable. It is submitted that applying the equality of belligerents principle to humanitarian forensic action has the potential to undermine the fundamental principles of IHL, particularly the principle of humanity. This is because a non-State armed group lacks the financial and technical capacity or willingness to employ costly forensic methods. Where obligations of means exist, a more powerful belligerent party should search for, collect and identify the dead using all methods at its disposal.

Recommendations for the future use of AI and ML in humanitarian forensic action

While incorporating AI and ML in humanitarian forensic action offers many prospects for advancing the honour and dignity of armed conflict victims, there are significant drawbacks as well. Having identified such drawbacks, this section seeks to proffer legal, operational and policy interventions that may be adopted to maximize the opportunities of AI and ML in humanitarian forensic action.

Adoption of a binding international instrument governing the use of AI and ML

Although there are ongoing efforts to regulate AI and ML, these initiatives have a regional focus. Examples of such efforts include the proposed European Union Commission Artificial Intelligence Act²³⁵ and the African Union Commission Resolution on Artificial Intelligence, Robotics, and New Technologies in Africa.²³⁶ While those regional initiatives are commendable, it would be ideal to have an internationally binding instrument that would incorporate a model law so as to ensure uniformity. With such a model law in existence, regions could then modify as appropriate in line with their culture, background and history. A harmonized framework would ensure effective regulation of AI and ML usage in various sectors; as such, there is a need for a forward-looking, all-encompassing and binding international instrument governing AI and ML utilization in various sectors (including humanitarian forensic action) which considers all the challenges and potential benefits of these technologies’ application. Given the intricacies and diverse nature of the many sectors that may incorporate AI and ML in their work, such an instrument may also adopt a sectoral approach. This could be accomplished through the adoption of industry-specific protocols to enhance the effective utilization of AI and ML in these different sectors’ work. Thus, a comprehensive international instrument that will govern the use of AI and ML will go a long way.

Development of guidelines on the use of AI and ML in humanitarian forensic action

Experts should develop guidelines that would assist in the incorporation of AI and ML into humanitarian forensic activities. These guidelines should provide a comprehensive framework for the responsible and ethical use of AI and ML technologies in humanitarian forensic action, aligning them with IHL and international human rights law principles as relevant. At a minimum, the proposed guidelines should allow the prioritization of the “do no harm” principle²³⁷ and ensure that the use of AI and ML in humanitarian forensic action does not cause additional trauma and distress to those affected.

Training of humanitarian forensic actors on IHL, human rights law and the use of new technologies in humanitarian action

Considering the mandate of the ICRC with regard to IHL, the ICRC could, in collaboration with other humanitarian organizations, facilitate training programmes, workshops and educational initiatives to enhance the understanding of the applicable IHL and human rights law principles. Such programmes could include training on how AI and ML technologies can assist in humanitarian forensic action and the potential of aligning them with IHL and human rights law principles. This would eventually guarantee that AI and ML technologies are incorporated and used responsibly and ethically. These capacity-building initiatives can assist in promoting multidisciplinary training to bridge the gap between technology and humanitarianism.

To guarantee that data in AI and ML technologies are not biased against characteristics such as nationality, race, gender and age, this training should also be extended to developers of AI and ML technologies intended for use in humanitarian forensic action. Without such training, the algorithms would perpetuate discriminatory trends.²³⁸ Following training on IHL and human rights law principles applicable to humanitarian forensic action, developers will be able to create oversight mechanisms that identify, examine, resolve and test biases in datasets and models throughout the design and development phases.²³⁹

Conclusion

In conclusion, the application of AI and ML in humanitarian forensic action poses both formidable obstacles and fascinating prospects under IHL. AI and ML have the potential to revolutionize and improve the identification of human remains and ensure that the dead will be afforded dignified burials following their religious and cultural rites. Even in mass fatalities caused by armed conflict, AI and ML technologies can significantly speed up the human remains identification process. They also have the potential to support families in receiving information about the fate of their loved ones more rapidly, which may contribute to the healing process.

While AI and ML can automate processes and generate valuable insights, however, the involvement of skilled forensic experts, anthropologists and legal professionals remains essential. IHL and human rights standards must guide the deployment of AI and ML in humanitarian forensic action. AI and ML should complement existing efforts to respect the rights and dignity of victims, their families, and affected communities. Humanitarian forensic action under IHL has a lot to gain from integrating AI and ML in the pursuit of advancing honour and dignity in death for victims of armed conflicts, but dignity for the victims and their families will only be ensured by combining these technologies with ethical concerns and a human-centred approach.