Does perpetuity have a future?

Can the 'overriding public necessity' for new airport cancel out the legal inviolability of France's war graves? Dan Hayes reports

The First World War surely inspired more poetry than any conflict before or since, with few lines more evocative than those of Rupert Brooke about corners of foreign fields being forever England. But exactly how long is forever?

On 29 December 1915, a law was passed creating a right to a perpetual resting place on French soil to any soldier in the French army or Allied army who had died for France. The land that contains the UK's war cemeteries abroad is held "in perpetuity" by the Commonwealth War Graves Commission (CWGC), and, according to its director of information, David Parker, the phrase means just that. "The land on which the cemeteries were constructed was given for the Commission to use without time limit," he says.

But does that really mean those quiet memorials to the dead of the battles of the Somme, Ypres and Arras will really remain legally protected until the final going down of the sun? So far, the answer has been "yes", but the question may well be exercising legal minds soon when, or perhaps if, construction of Paris's €5.5bn third airport gets under way.

The French government announced in November 2001 its choice of a site outside Chaulnes, a town near Amiens in Picardy, about 130km from Paris, as the impending site of runways and terminals. The announcement caused outcry in many areas, particularly among inhabitants of villages such as Vermandovillers that may well be wiped off the map, and among other people in the region who believe the distance between touchdown and capital would render the airport a white elephant.

But it seems that the living will not be alone in being uprooted. The proposed site falls in the middle of an area of Picardy that was fought over extensively throughout the First World War. Like much of the surrounding region, it contains the graves of numerous soldiers who fell in the battles of the Somme.

Among these are the final resting places of a number of British and Commonwealth troops, mostly killed in March 1918 when the German army's spring offensive made extensive gains along the Western Front. Of these, six are buried near the village of Lihons at the French National Cemetery, and a further 60 in Rosières British Cemetery. The CWGC is less than enthusiastic about the possibility of their reburial, as Mr Parker explains: "The CWGC's position is that it is normally very much opposed to the disturbance or movement of established graves, especially those in constructed war cemeteries."

But the extent of its opposition may be limited, as Graham Reddie, the CWGC's legal adviser and solicitor, points out. "Sovereignty of the land in most of the countries in which we operate is retained by the host country," he says. "Those countries can generally put land containing war cemeteries to alternative use under the terms of the Geneva Conventions." The key phrase, as far as the conventions are concerned, is "exhumation in the case of over-riding public necessity". "This overriding public necessity is what we would look for a host country to show," says Mr Reddie.

He adds that while relevant court cases that hinge on the subject have not arisen in France, they have in the UK. "I can think of a recent ecclesiastical court case where I used overriding public necessity," he says. He won't mention an exact instance but it would not have involved a public project of the magnitude of the proposed Chaulnes airport. Mr Parker adds: "If it was accepted that this was a case of overriding public necessity, we would have to go along with it. We would like to think there are alternatives, for example as to where the airport is constructed."

That may be wishful thinking. The Chaulnes site offers France a potential transnational hub airport with communication routes that will, it is suggested, allow a passenger to be in Paris in half an hour, Brussels in 40 minutes and London in two hours. Set against such an ambitious plan, it is unlikely that a comparatively small number of British and Commonwealth war dead will be seen as sacrosanct, especially as the planned Chaulnes site is likely to fall across one large French cemetery and an even larger German one. There are 6,590 burials in the former and 22,000 in the latter.

If the French authorities choose to remove so many of their own war dead, it seems unlikely they will baulk at the removal of a much smaller number of British. However, the legal position of French war graves is different to those of Britain. In France, the responsibility for looking after military burial sites rests with the local civilian government offices of each of the regional Departments. Given the time that has elapsed since the end of the world wars, and the number of war cemeteries in France, it is perhaps surprising that the issue of relocation of war graves does not come to the fore more regularly.

"I cannot think of a major project of this nature that has arisen," says Mr Reddie. "We thought it might with the building of the Channel Tunnel rail link, but it did not. The French were co-operative in where they laid railway lines."

"The nearest we have come to this has been to have some cemetery boundaries changed to take account of road building," adds Mr Parker. "Conversely, some roads have been diverted to take account of the position of cemeteries. It is not so much a grey area, more a new area. In the case of Paris's third airport, we would have to look to the French to say that this is the only practical site and then we'd have to decide on a course of action."

If it transpires that British cemeteries fall in the path of the airport, then the consequences have to be kept in perspective, suggests Mr Parker. "We'd probably move the graves to another war cemetery," he says. "We would expect the French to meet the costs of reburial. Graves would be carefully removed, reburied and marked. We would expect any remains that were unearthed to be treated with reverence.

"The Commission has a clear responsibility to maintain war graves and war cemeteries, and to ensure that any disturbed remains are properly buried."

After the Second World War, the French passed a law that gave parents the right to remove a soldier from a military cemetery and take him home for reburial. About 125,000 soldiers killed in the First and Second World Wars were removed from military sites at about that time. This law also applied to more recent conflicts involving French troops in Indochina, Korea and Madagascar.

"Issues concerning graves in cemeteries and disturbance of battlefields might be considered different," says Reddie. "There's a lot of criticism about the disturbance of battlefield remains but they are by definition not under our control – because they are unrecovered." However, it is the CWGC's policy to attempt to identify any remains where possible and, in the event of that being impossible, for them to be buried in existing military cemeteries.

More than 80 years after the end of the First World War, passions still run high about the idea of war graves being relocated. "Many people would be very upset," says Mr Parker. "The French authorities know this, so they wouldn't take a decision on the subject lightly."