Respect for the human body does not cease with death. The remains of the deceased, including the ashes of those whose bodies have been cremated, must be treated with respect, dignity, and decency.
French Civil CodeFootnote 4
[The] right to dignity and fair treatment under Article 21 of the [Indian] Constitution is not only available to a living man but also to his body after his death.
Indian Supreme CourtFootnote 5
Indeed, the dead have rights.
High Court at Siaya, KenyaFootnote 6
Introduction
The notion that dead persons and their human remains deserve respect and dignified treatment is almost universal. Around the world, when someone dies, families, communities and societies undertake sacred and often complex final rites which in many instances centre on the dead body itself. While the precise rituals are extremely diverse and varied across cultures and societies, these processes share a commonality of helping to facilitate mourning and grief processes. The inability to have a dead body to mourn causes significant pain and suffering for families and loved ones, can lead to a person becoming “missing” in situations where their fate, whereabouts and identity are unknown, and in cases of suspicious or potentially unlawful deaths can inhibit the collection of vital information about the cause, manner and circumstances of death.
Despite the widespread respect for dead persons and their human remains across cultures, as well as the importance of the dead body to obtaining forensic information that can help to identify a person or provide evidence of human rights violations in the case of violent deaths,Footnote 7 international human rights law (IHRL) does not specifically protect the dead. This contrasts with the specificity provided by international criminal law (ICL) and international humanitarian law (IHL) for protecting the dead in the circumstances in which these bodies of law apply.
ICL imposes explicit liability for certain intentional acts of violence against dead bodies, but this is limited to international crimes (and in particular, war crimes). IHL also includes comprehensive and specific legal provisions governing the recovery, documentation, protection and management of the dead, but applies to situations of armed conflict.Footnote 8 Under IHRL, however, there are no specific requirements to respect a dead person or treat a dead body with dignity. These requirements must instead be inferred from IHRL provisions for the living, including those relating to the inherent dignity of all human persons, the right to life, the right to be free from torture and other cruel, inhuman or degrading treatment or punishment, and the prohibition of enforced disappearances. Further, many of the provisions derive from obligations owed to the relatives of the deceased, meaning that a dead person without surviving family may not be accorded such rights.Footnote 9
The lack of specific legal protections and corresponding guidance on the dead within IHRL results in significant challenges to ensuring respect, care and dignified management of dead persons in all circumstances. This can affect efforts to prevent intentional harm to dead bodies and discriminatory practices affecting the dignity and care of the dead, and to address structural failures or deficiencies resulting in mismanagement of the dead, including in mass casualty situations.
Not surprisingly, on reflecting on the future of the right to life, Stuart Casey-Maslen foresaw that “[t]he dead may also have recognized rights one day, at least to their remains being disposed of in a dignified manner. This should not be left to their family or relatives, should any survive them.”Footnote 10 This is a view shared by the authors of the present article.
This article proceeds in four parts. The first section explores the question of whether the dead have rights under the domestic legal order; the second section then analyzes the protections for the dead under IHRL, ICL and IHL. The third section examines the challenges posed by the lack of a rigorous and comprehensive international human rights framework for protection of the dead, and the final section offers guiding principles for developing a human rights-based approach to the respect and protection of the dead.
Do the dead have rights?
Under the domestic legal order, the question of which obligations continue to be owed to deceased persons is a matter of significant discussion, and there is variance across jurisdictions. Upon death, most rights are extinguished with the loss of personhood, including the right to liberty and security. There are differences among States as to whether – and if so, which – rights continue to persist when a person is deceased, as well as the basis for those rights. For example, the final requests of a living person (e.g. last will and testament, and requests relating to funeral practices and last rites) remain in place even after death. Further, many countries derive rights to dignified treatment of the dead from the rights owed to the next of kin to have the opportunity to mourn and honour their relatives. Only a handful of countries, however, explicitly acknowledge inherent continuing rights of the deceased person, particularly as these relate to their physical body.
While this article does not carry out an exhaustive review of national and regional laws, regulations and jurisprudence, there are some notable examples of this explicit recognition of the rights of the deceased within some domestic legal frameworks. For example, Article 21 of India’s Constitution enshrines the right to live with dignity, which has been interpreted by the country’s Supreme Court to include the dead.Footnote 11 Kenya’s Constitutional Court has also found that the right enshrined in Article 28 of the Kenyan Constitution, which recognizes the inherent dignity of every person, does not end with death.Footnote 12 The French Civil Code notes that “the respect due to the human body does not cease with death”, and that “the remains of deceased persons, including the ashes of those whose bodies have been cremated, must be treated with respect, dignity and decency”.Footnote 13 In Chile, Decree 357 contains extensive regulations regarding death procedures, and the Chilean Supreme Court has held that while a deceased person does not retain personhood, the dead person’s body nonetheless retains protection and regulation, in part due to the inherent dignity of having been a person.Footnote 14 In Germany, the Federal Constitutional Court has stated that the inviolability of the dignity of every human person extends even after the death of a human being.Footnote 15
Rather than focusing on the deceased person themselves, many other jurisdictions, including regional human rights mechanisms, instead draw on the rights of their families to uphold the need to ensure respect and protection of the dead body. In the 2013 case of Sabanchiyeva and Others v. Russia, the European Court of Human Rights (ECtHR) held that withholding the body of a person who had been determined to have participated in acts of terrorism violated Article 8 of the European Convention on Human Rights, which protects the right to privacy and family life. The State had withheld the bodies for public safety reasons, arguing that funeral processes would have led to clashes between different ethnic groups and would have caused offence to those who had been victims of the terrorist acts. The Court held that while it was necessary to balance the interests of the family with legitimate public safety acts, in this case withholding the body completely from the family was a disproportionate act and thus violated the rights of the next of kin to be able to bury their relatives. In so doing, the Court found that the right to protect and respect the dead stemmed from the privacy rights owed to the next of kin.Footnote 16
Most often, States are silent as to the basis for protections of a dead body but instead have detailed administrative procedures and instructions for the management, care and handling of dead bodies. These include regulations around precisely how a death must be reported, storage of bodies prior to funeral ceremonies, transportation of human remains, the conducting of autopsies, organ donation, and methods of disposal of human remains, including regulation of burials, cremations and other funeral rites; and specific laws relating to the non-discrimination of the deceased, indigent deceased, and unidentified or unclaimed human remains.
Protection of the dead under international law
This section examines respect and protection for deceased persons under international law, focusing on IHRL, ICL and IHL. While ICL and IHL include specific provisions for the protection of the dead, these are constrained to the specific circumstances in which these bodies of law apply. On the other hand, IHRL, which as a body of law applies in all circumstances, does not have specific provisions for the protection of the dead – these must instead be inferred from rights conferred to living persons by this body of law, especially the surviving families or relatives. This lack of specific provision weakens the protection thus granted to dead persons and their human remains.
Protection of the dead under international human rights law
IHRL, which applies as a body of law in both peacetime and during armed conflict (with IHL serving as the lex specialis, where relevant), was conceived on behalf of living persons and sets out the obligations which States owe to individuals and communities.Footnote 17 Thus, within the international human rights framework there is no explicit recognition of the rights and protections of all dead persons or of their human remains, except with respect to enforced disappearances.
Instead, the duties to protect and respect dead persons and their human remains may be inferred within interpretative documents, soft-law instruments, and jurisprudence related to the international human rights protections of the right to life, the right to be free from cruel, inhuman or degrading treatment, the right to a remedy for gross human rights violations, and the rights to privacy and family life, culture and religion. Within IHRL instruments and jurisprudence, these inferred protections are often conceived of as duties owed to the next of kin and family members of the deceased.
The lack of explicit and direct protections for deceased persons in IHRL results in two key concerns. First, there are often gaps in the protection and respect of dead persons and their human remains. Second, the focus on protections for the deceased deriving from families results in a risk that persons without family members or next of kin will not receive protections.
Protection of the dead in instances of enforced disappearances
In recognition of the unique and enduring harm of not knowing the fate and whereabouts of one’s relatives,Footnote 18 as well as the harm of denying families the possibility of burying their loved ones with dignity, the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) provides the most detailed and explicit protections for the dead within human rights law. Article 24(3) of the ICPPED requires States Parties to “take all appropriate measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains”.Footnote 19 Further, in the event of death during deprivation of liberty, Article 17(3)(g) requires States to maintain official records regarding the circumstances and cause of the death and the destination of the remains. To effectuate these rights, Article 15 instructs States to help each other exhume, identify and return the remains of victims of enforced disappearance.
The Committee on Enforced Disappearances (CED), the treaty body charged with monitoring and enforcement of the ICPPED, has repeatedly noted that in the event that a disappeared person is deceased, there is a requirement to ensure that the remains of the deceased person are identified, respected, and returned in a dignified manner.Footnote 20 The Inter-American Court of Human Rights (IACtHR), in Guzman Medina y Otros v. Colombia, has affirmed that provision of information about the fate and whereabouts of disappeared loved ones, along with updates on the investigation’s progress and results, is required to prevent the suffering of families of the disappeared.Footnote 21 The United Nations (UN) Human Rights Committee, in Padilla et al. v. Mexico, has also held that there is an obligation to provide information about the fate and whereabouts of a person presumably disappeared, and that failure to do so can cause suffering to the family, which can amount to torture or to cruel, inhuman or degrading treatment or punishment.Footnote 22 In the Padilla case, the location of the body was not known and the body was thus not recovered, causing the family continued anguish.
More generally, to clarify these legal duties on parties to the ICPPED, the CED in 2019 published a set of non-binding Guiding Principles for the Search for Disappeared Persons.Footnote 23 These guidelines, which note that the search for disappeared persons should be conducted under a presumption that the person is alive and should respect human dignity, nonetheless contain detailed requirements in the event that a disappeared person is deceased about both the manner in which a deceased body should be handed over to a family, as well as the kind of information about the investigation, including about any potential exhumation of a body, that should be documented. The guidelines state:
The body or remains of a disappeared person should be handed over to the family members under decent conditions, in accordance with the cultural norms and customs of the victims, with respect at all times for the fact that they are the mortal remains of a person, and not objects. The return should also involve the means and procedures needed to ensure a dignified burial consistent with the wishes and cultural customs of the families and their communities. When necessary, and if family members so wish, States should cover the cost of transferring the body or remains to the place chosen by the family members for burial, even if the transfer is to or from another country.Footnote 24
These are today’s most specific provisions for the protection of the dead contained in a human rights law instrument, but they are limited exclusively to instances of enforced disappearance.
Protections for the dead deriving from the right to life
The universal and fundamental obligation to respect, protect and fulfil the right to life has paradoxically served as the basis for the existing, albeit limited, provisions developing human rights-based protections for the dead. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) states that “every human being has the inherent right to life”.Footnote 25 The right to life contains both substantive and procedural elements:Footnote 26 the substantive element refers to instances of deprivation of life which fall under the remit of international law, such as deaths in custody or unlawful killings by law enforcement,Footnote 27 while the procedural element refers to investigation and accountability for unlawful death.Footnote 28
In ensuring the procedural element of the right to life, States have obligations to carry out prompt, effective, thorough, independent, impartial and transparent investigations of all potentially unlawful deaths.Footnote 29 As has been noted in the Human Rights Committee’s General Comment 36, the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, adopted by the Economic and Social Council in 1989,Footnote 30 and the 2016 Minnesota Protocol on the Investigation of Potentially Unlawful Death (Minnesota Protocol)Footnote 31 set common investigative standards, elements, principles, procedures and guidelines, and include detailed requirements for searching for dead bodies and human remains, as well as processes for effective autopsies and forensic investigations and for investigations concerning potentially unlawful deaths under human rights law. As dead bodies typically contain crucial evidence relating to the identity of the deceased person and to the cause, manner and circumstances of a death, it is necessary to preserve and protect the bodies and to carry out an effective investigation of all unlawful killings following international best practices.Footnote 32
The requirement to search for a dead body as part of upholding the duty to investigate under the right to life and the rights of families of those unlawfully killed has been articulated in multiple decisions of international human rights bodies. For example, in the seminal 1998 case of Velásquez Rodríguez v. Honduras concerning the disappearance of student activist Angel Manfredo Velásquez Rodríguez, the IACtHR found that the Honduran State had an obligation to conduct an effective investigation into the circumstances surrounding Velásquez Rodríguez’s disappearance, holding that
[t]he duty to investigate facts of this type continues as long as there is uncertainty about the fate of the person who has disappeared. Even in the hypothetical case that those individually responsible for crimes of this type cannot be legally punished under certain circumstances, the State is obligated to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains.Footnote 33
The ruling in this case, based on the American Convention on Human Rights, was the first to clearly articulate the obligation on States to carry out an effective investigation of unlawful killings, including to obtain the location of the deceased person’s remains, and has been reaffirmed multiple times by a large number of regional courts and international treaty bodies.Footnote 34 For example, in the more recent 2021 case of Vicky Hernández et al. v. Honduras, the IACtHR found that the investigations into the death of Vicky Hernandez, including the failure of forensic authorities to conduct an autopsy, fell short of the duty to investigate violations of the right to life.Footnote 35
While these decisions, as well as the guidance provided in the Human Rights Committee’s General Comment 36 on the right to life, do not explicitly mention an obligation to respect and protect the dead, they note the necessity of doing so for purposes of an effective investigation (for which an examination of the body in as preserved as state as possible is necessary) and to mitigate further suffering for family members. Thus, it is possible to infer some protections and respect for deceased persons from the obligations under the right to life.
The prohibition of torture and other cruel, inhuman or degrading treatment or punishment
The prohibition against torture and other cruel, inhuman or degrading treatment or punishment includes the obligation to treat the remains of a deceased person with dignity and to protect them. This is aimed not at preventing torture or inhumane treatment of the deceased themselves, but rather at avoiding causing severe harm and suffering to the relatives of the deceased. The Human Rights Committee has held that failure to provide the family of a victim of unlawful killings with information about where their loved one is buried violates their right to be free from inhuman treatment under Article 7 of the ICCPR. In the case of Kovaleva and Kozyar v. Belarus, in which the family of a person detained on death row and later executed submitted a complaint alleging violations on behalf of their relative and themselves, the Committee noted that it
understands the continued anguish and mental stress caused to … the mother and sister of the condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his grave. The complete secrecy surrounding the date of the execution and the place of burial, as well as the refusal to hand over the body for burial in accordance with the religious beliefs and practices of the executed prisoner’s family have the effect of intimidating or punishing the family by intentionally leaving it in a state of uncertainty and mental distress. The Committee therefore concludes that these elements, cumulatively, and the State party’s subsequent persistent failure to notify the authors [of the complaint] of the location of Mr. Kovalev’s grave, amount to inhuman treatment of the authors, in violation of article 7 of the Covenant.Footnote 36
The IACtHR has come to a similar finding. In Nicolas Blake v. Guatemala, a 1998 case in which a US journalist was murdered in Guatemala by agents of the State and his remains were found seven years later, the Court found that the concealment of Blake’s whereabouts and human remains violated the prohibition against torture or cruel, inhuman or degrading treatment.Footnote 37 The Court also ruled that the burning of Blake’s remains further increased the distress of the family, noting that
the burning of Mr. Nicholas Blake’s mortal remains to destroy all traces that could reveal his whereabouts is an assault on the cultural values prevailing in Guatemalan society, which are handed down from generation to generation, with regard to respecting the dead. The burning of the victim’s remains by members of the civil patrol on the orders of a member of the Guatemalan army increased the suffering of Mr. Nicholas Blake’s relatives.Footnote 38
Thus, the prohibition against torture and other cruel, inhuman or degrading treatment or punishment typically grants rights to the families of the deceased person in situations where the body of their loved one is mistreated or not returned to them, in acknowledgement of the tremendous pain and suffering that this causes. Therefore, while not specifically related to the deceased individual’s rights, this prohibition is nonetheless a mechanism through which IHRL indirectly protects the remains of deceased persons and requires that they be treated with dignity.
Other key human rights
In addition, a slew of other rights, including the human right to privacy and to family life, the right to culture, and the right to religion, can be employed to infer obligations to respect and protect the dead, albeit often via rights and duties owed to the family instead of directly to the deceased person.Footnote 39 For example, the ECtHR, in the case of Solska and Rybicka v. Poland, held that the respect for family and privacy life can extend to certain situations after death. The way in which the body of one’s relative is treated, a delay in the return of a body, the inability to attend a funeral, and the removal of tissues or organs from a deceased person without consent, among other examples, can constitute violations of the right to privacy and to family life of a relative.Footnote 40
In the 2005 Moiwana Community v. Suriname case, the IACtHR held that by denying the N’djuka peoples the right to bury their loved ones in accordance with their cultural and religious customs (as well as displacing them from their ancestral lands, including where their ancestral burial grounds were buried), the State violated their rights to humane treatment.Footnote 41 The Court took note of the fact that “if the various death rituals are not performed according to the N’djuka tradition, it is considered a profound moral transgression”,Footnote 42 and that the failure to perform these cultural rites may harm multiple generations. The ECtHR has also held that the “manner of burying the dead represents an essential aspect of religious practice” and thus falls under the right to freedom of thought, conscience and religion under the European Convention on Human Rights.Footnote 43
Finally, international law provides for additional special protections for specific groups and peoples. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families requires States Parties to facilitate the repatriation to States of origin of the remains of deceased migrant workers or members of their families, where necessary.Footnote 44 The UN Declaration on the Rights of Indigenous Peoples, while non-binding, recognizes the importance of funeral procedures, recovery of ancestral remains and respect for the dead among many Indigenous peoples as integral to their self-determination and right to culture, and contains specific requirements about the repatriation of ancestral remains.Footnote 45 Building on existing law, the Expert Mechanism on the Rights of Indigenous Peoples has highlighted the need to ensure repatriation of human remains of Indigenous persons as part of the obligation to ensure the rights of Indigenous peoples globally.Footnote 46
Concerns with the current international human rights framework
Altogether, from this overview of the IHRL framework, three key issues can be identified.
First, outside contexts of enforced disappearance, there are presently no clear requirements to respect and protect the bodies of deceased persons, or on how to adequately do so. The procedural element of the international human right to life requires an effective investigation of any potentially unlawful death, which in practice almost always necessarily includes ensuring that competent authorities recover and preserve the dead body, seek to identify the person killed, and carry out an autopsy to obtain cause and manner of death. However, this obligation to respect and protect the dead body is not clearly and explicitly outlined in treaty law or soft-law instruments, and thus there is a lack of clear obligations to care for the dead under IHRL.
Second, most deceased persons are not the victims of unlawful killings and thus do not fall into the protections afforded by the procedural element of the right to life. As a result, there may be significant variance in policies and procedures across countries related to treatment of the dead, and the lack of clear guidance for the protection of the dead may lead to instances of mismanagement and poor treatment of the bodies of dead persons.
Third, most of the protection granted to deceased persons under IHRL must be inferred from the rights afforded to families of the deceased person, rather than being inherent to the person who is dead. Thus, the prohibitions against torture and other cruel, inhuman or degrading treatment or punishment, or the relatives’ rights to privacy or to religion, do indirectly protect the body of a deceased person in order to prevent harm to the relatives. However, this arguably limits the protection of a deceased person without a family, and it risks mistreatment or mismanagement of unidentified dead bodies.
Protection of the dead under international humanitarian law
Respect for, protection of, and proper treatment of those who die as a result of armed conflict make up an integral part of existing IHL and is codified in the Geneva Conventions and their Additional Protocols, as well as under customary IHL. Concern about the treatment of the dead in times of armed conflict goes back to the very foundation of IHL. Henry Dunant, who was pivotal to the development of the First Geneva Convention of 1864, described his horror at the treatment of the dead of the thousands of persons killed during the Battle of Solferino in 1859, describing the day following the cessation of hostilities. In his book A Memory of Solferino, published in 1862, he wrote:
When the sun came up on the twenty-fifth, it disclosed the most dreadful sights imaginable. Bodies of men and horses covered the battlefield; corpses were strewn over roads, ditches, ravines, thickets and fields; the approaches of Solferino were literally thick with the dead.Footnote 47
Dunant documented the hasty manner in which the French army undertook the search for their fallen soldiers:
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.Footnote 48
Although efforts were made to collect some personal effects found on the bodies, Dunant noted that this was not always possible. For the Austrians killed in the war, Dunant stated that the bodies “were piled by the hundreds in great common graves”.Footnote 49 However, while Dunant lamented the condition in which the deceased were left in hastily prepared common graves, in some ways, even for him, the need to ensure respectful treatment of the dead was an afterthought. Instead, he focused on proposing relief societies to care for the wounded and sick in times of armed conflict, which would lead to the development of the First Geneva Convention.Footnote 50 He bemoaned the fate of living persons who were left unfound and abandoned among the dead, but aside from describing the horror, he did not propose efforts to bury deceased soldiers with dignity. As a result, the First Geneva Convention does not contain any protections for the dead, and it was not until the 1906 Geneva Convention that protections for the dead were explicitly included.Footnote 51 Nonetheless, in the years since Solferino and the First Geneva Convention of 1864, IHL has developed more robust rules for the treatment and protection of the dead.
Currently, IHL requires that in both international and non-international armed conflicts, parties to the conflict protect and respect persons killed in the context of armed conflict. As Helen Obregón Gieseken and Ximena Londoño note in their article for this issue of the Review, “[u]nderpinning, and at the centre of, IHL rules on the dead are families and their right to know the fate of their relatives, including the latter’s whereabouts”.Footnote 52 IHL has detailed rules relating to protection of the dead, including through the search, recovery, documentation, identification, notification and respectful treatment of the dead.Footnote 53 In times of armed conflict, at a minimum, all parties to the conflict must take all possible measures to search for, collect and evacuate the dead whenever circumstances permit, particularly after an engagement,Footnote 54 and to prevent the despoilment of remains.Footnote 55 The mutilation of dead bodies is prohibited.Footnote 56 Additionally, all parties to the conflict must record all available information prior to disposing of the dead and mark their graves, with a view to identification.Footnote 57 The bodies of dead persons must be disposed of in a respectful manner and graves must be respected, marked and properly maintained.Footnote 58
In the context of international armed conflicts, there are more elaborate rules governing protection of the dead than for non-international armed conflicts.Footnote 59 For example, parties to the conflict must endeavour to share death certificates and authenticated lists of the dead with the opposing party, are required to set up a Graves Registration Service and are obligated to carry out a careful examination, if possible a medical examination, of the bodies of deceased persons prior to burial.Footnote 60 Further, there are requirements to endeavour to facilitate the return of the deceased’s remains to the requesting party;Footnote 61 to ensure the return of personal items to the deceased’s family;Footnote 62 to forward important documents, such as wills, and items with intrinsic or sentimental value to the family;Footnote 63 to facilitate the preparation and execution, including authentication, of the wills of prisoners of war and of civilian internees;Footnote 64 to investigate deaths of prisoners of war and internees suspected to have been caused by another person and, where appropriate, prosecute those responsible;Footnote 65 and to preserve the wills of prisoners of war and internees.Footnote 66
Multinational efforts to ensure the identification and return of the deceased relating to the Falkland Islands/Islas Malvinas conflict, as well as the initial conduct of military officials during the conflict, exemplify how detailed compliance with IHL through the accounting, preservation and respectful disposal of the dead in the context of armed conflict helps to ensure dignity and respect for the dead. In 1982, Captain Geoffrey Cardozo of the British Army built a cemetery of soldiers found during the conflict, with specific actions taken to facilitate later identification.Footnote 67 He created a logbook of the burial locations and placed white sheets and plastic bags over each body, along with identifying items found on the bodies, such as identification cards or letters.Footnote 68 Captain Cardozo’s work led to the later scientific identification of 110 out of 122 bodies, thus giving the families of those soldiers closure and the ability to honour their dead according to their customs.Footnote 69
As another example of successful multi-State efforts to identify and return the remains of those killed during conflict following the end of hostilities, Iran and Iraq signed an agreement to work jointly to investigate cases of missing persons and to repatriate recovered human remains after the 1980–88 war.Footnote 70 This agreement included the sharing of information between the two countries, the handling of remains, and trainings by the International Committee of the Red Cross (ICRC) to help with forensic identifications, in order to increase the possibility of identifying as many persons killed as possible.Footnote 71 In November 2008, Iran and Iraq exchanged the human remains of roughly 250 persons at a ceremony where mourners were able to throw roses on flag-covered coffins.Footnote 72 Hundreds more have been recovered and put to rest in a dignified manner since, as efforts to recover and identify bodies have continued. In 2023, 111 sets of human remains were handed over by Iraq to Iran, and thirteen sets of human remains handed over by Iran to Iraq.Footnote 73
Protection of the dead under international criminal law
ICL, which deals with individual criminal accountability for serious international crimes, including genocide, crimes against humanity and war crimes, also has provisions outlawing purposeful harm to dead bodies. Under IHL, the mutilation of dead bodies is prohibited (see below). Deliberate acts of desecration or mutilation of dead bodies can lead to individual criminal accountability. The Elements of Crimes of the Rome Statute of the International Criminal Court note that the “war crime of outrages upon personal dignity”, in the context of both international and non-international armed conflicts, may also apply to humiliating or degrading treatment or conduct that otherwise violates the dignity of dead persons.Footnote 74 In the context of national prosecutions of war crimes, Mischa Gureghian Hall, in his article for this issue of the Review, has documented extensive examples from European States using universal jurisdiction case law from Germany, Finland, Sweden and the Netherlands.Footnote 75
With respect to crimes against humanity (which can apply regardless of the existence of an armed conflict), the International Criminal Tribunal for Rwanda, in the case of Prosecutor v. Niyitegeka, found that the killing, decapitation and castration of a prominent Tutsi, alongside other elements of the crime, amounted to the crime against humanity of “other inhumane acts”.Footnote 76 Moreover, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), in the case of Prosecutor v. Radovan Krstić, noted that the mistreatment of bodies constituted part of the evidence of the intent to destroy the group of Bosnian Muslims and therefore commit the crime of genocide. The Court held that
[t]here is a strong indication of the intent to destroy the group as such in the concealment of the bodies in mass graves, which were later dug up, the bodies mutilated and reburied in other mass graves located in even more remote areas, thereby preventing any decent burial in accord with religious and ethnic customs and causing terrible distress to the mourning survivors, many of whom have been unable to come to a closure until the death of their men is finally verified.Footnote 77
While the Appeals Chamber later reduced the charges to “aiding and abetting genocide”, finding that Krstić personally lacked the specific intent necessary for a finding of genocide, the Trial Chamber ruling highlights the ways in which courts consider treatment of the dead as part of factual findings for the determination of international crimes.Footnote 78
Despite the importance of this law and jurisprudence, the use of ICL as a means to enforce protection and respect for the dead has significant limitations due to the narrow scope of crimes that fall under ICL and the need to prove, beyond reasonable doubt, extreme conduct committed by specific individuals. ICL deals only with what the international community has determined as the most serious of crimes: war crimes, crimes against humanity, genocide, and aggression. Thus, there may be acts which result in harm to a deceased body but which do not qualify under these crimes. Furthermore, even within these categories of crimes, there are very few specific crimes which deal with intentionally harmful conduct toward a dead body. Finally, the challenges of ensuring individual accountability for such crimes add an additional limitation to the possibility of the use of ICL as a tool for accountability and prevention of mistreatment of the dead. As such, most instances of lack of care, respect and proper management of the dead will not reach the gravity of international crimes, and where they do, in many instances prosecuting individuals for such crimes will be incredibly challenging. This limits ICL’s utility for protection of the dead outside of certain narrowly defined circumstances.
While both the legal obligations in IHL and the policy and technical guidance regarding how to implement those obligations are not immune from critique and notable challenges remain as to the implementation of the law during times of armed conflict, IHL nonetheless offers a more detailed and specific legal framework upon which to protect the dead. Further, extensive protocols and good practices mean that there is a stronger foundation than in IHRL and ICL upon which to aim to respect and protect deceased persons and their human remains in situations of armed conflict. Given the limited scope in practice of applicability of ICL and the paucity of international criminal cases, the next section focuses on the resultant challenges which arise from the lack of universally applicable protections, as a matter of IHRL, for the respectful treatment of the dead. In so doing, the section sets out the need for broad guiding principles, articulated under international human rights frameworks, for the treatment of the dead.
Challenges resulting from a lack of a comprehensive and detailed International human rights framework for protection of the dead
As has been noted above, the virtual absence of clear and explicit protections in IHRL, applicable universally, risks that the bodies and human remains of deceased persons will not be treated with dignity and properly managed in all circumstances. This has particularly acute impacts in certain areas and contexts, including in situations of intentional harm toward deceased persons and their bodies, discriminatory practices affecting the treatment of the dead, structural failures or deficiencies resulting in mismanagement of the dead, and mass casualty situations where care for the dead is not a priority. This evidences the need for guiding principles for the international human rights protection of the dead.
Intentional harm toward the dead
The lack of a comprehensive, detailed and universally applicable international human rights framework to address intentional harm to dead bodies presents a serious challenge to the respect and protection of the dead, including mistreatment, desecration and mutilation, under IHRL. Although, as has been noted above, regional courts have found that the harm caused by mistreatment of dead bodies may constitute a violation of the physical, mental and moral integrity of the relatives of the deceased, this is then predicated on the requirement of having relatives or family members to ensure protection. Further, while there are protections under IHL against mutilation of dead bodies, this applies only in contexts of armed conflict. Moreover, the ICL framework for prosecuting international crimes against the dead applies only in very narrow circumstances and thus may exclude many instances of intentional harm to a body. Thus, the failure of the State to prevent the intentional mistreatment of a dead body of a person in a situation outside of armed conflict, or in a situation which does not amount to other international crimes, may not, in and of itself, amount to an IHRL violation. This gap may lead to situations in which dead bodies are not treated with due respect and protection.
Discriminatory practices affecting the treatment of the dead
Racial, religious, ethnic and other minorities, Indigenous persons, and other groups in vulnerable situations, including indigent persons, continue to experience discrimination practices even after death, and the lack of comprehensive human rights protections for the deceased compounds this harm. Minority groupsFootnote 79 around the world experience challenges in carrying out funeral rites as a result of State practices which exclude or limit their funeral practices,Footnote 80 prevent them from making their own cemeteries or set significant financial burdens on having a funeral. Additionally, racial and sexual minorities also experience particular discrimination in many countries when trying to ensure that their rights to privacy, culture and religion are upheld.Footnote 81 Concerns relating to protection of the dead are heightened for Indigenous peoples, who may be seeking to ensure repatriation of ancestral remains, often held in museums or universities or as part of private collections.Footnote 82
Discrimination resulting in the mismanagement of deceased members of minorities may have overwhelmingly traumatic effects on their relatives and communities. For example, in the Moiwana Community case detailed above, the IACtHR spoke at length about the tremendous harm which members of the N’djuka community experienced as a result of both the failure to be able to recover and mourn the bodies of their deceased relatives killed by State agents and the news that some of the bodies of their loved ones may have been burned.Footnote 83 The Court found that this amounted to a violation of the right to humane treatment enshrined in Article 5(1) of the American Convention on Human Rights.
Exacerbating the discrimination for many persons is the rising cost of burial expenses, which has led to a phenomenon known as “funeral poverty” in which when the costs of death and final disposition of a person’s dead body “perpetuate inequality and contribute to intergenerational cycles of poverty”.Footnote 84 Often, funeral poverty impacts those already most marginalized in society, leading to intersectional harms and discrimination.Footnote 85
A final area of inequity relates to the fact that every year, millions of deceased persons remain unidentified globally, and as a result are never returned to their families for final funeral processes.Footnote 86 Unidentified or unclaimed bodies belonging to persons for whom their next of kin is unknown, either because there is no information about them or due to challenges in ensuring identification, are an ongoing challenge for medicolegal systems around the world. Studies have shown that lower- and middle-income countries have higher rates of unidentified remains,Footnote 87 and that the rates of unidentified persons of colour are higher than those of unidentified white persons.Footnote 88 Further, in practice, there are often not practical national laws for the management and respectful disposal of the remains of unidentified persons, and record-keeping is often very poor. An inability to reliably identify a person results in them becoming a missing person, causing tremendous pain for families and relatives of the deceased.
Structural failures or deficiencies resulting in mismanagement of the dead
One of the main challenges to protection of the dead is ensuring that key medicolegal, forensic and mortuary infrastructure, personnel and resources are available, trained and equipped to be able to properly handle, manage and care for the dead. Medicolegal systems continue to remain poorly resourced in many countries, and the availability of well-trained forensic experts is often limited. Further, underlying infrastructure challenges, such as a lack of regular electrical supply or limited mortuary facilities outside of urban areas, often limit the services that can provide for the proper and dignified management of the dead. Even where underlying infrastructure may be stronger, a lack of training or adequate organization of systems can result in limitations to the adequate care and protection of dead bodies.
While there are technical manuals and detailed guidance to support the improvement of medicolegal systems, including technical guidelines for the architectural, programming and construction assistance of medicolegal facilities,Footnote 89 and field manuals for first responders,Footnote 90 the reality is that in many contexts these are not fully complied with and/or experts are not adequately trained or resourced in this regard. Thus, in many contexts, families are left to navigate ineffective or poorly functioning medicolegal systems, which may result in bodies being improperly cared for, mixed up, misidentified, not identified, or even lost within the system.
Mass casualty situations
In situations where there are emergencies resulting in mass casualties such as catastrophic weather-related events, pandemics, or other disasters, the challenges of structural failures or deficiencies are often quickly exacerbated. During health emergencies, especially those involving contagious diseases, health-care infrastructure and medicolegal systems may become completely overwhelmed or may be ill-equipped to deal with the large volume of bodies. Concern about the spread of illness may lead to undignified management of the dead and rushed or premature burials before proper identification and documentation of the bodies, which may end up being lost as a result. Other forms of disasters or mass fatalities, such as earthquakes, tsunamis, flooding, wildfires or other severe weather events, can also test the functioning of the medicolegal system, especially where key infrastructure necessary to protection of the dead may be damaged or destroyed.
While there is limited human rights law in this area, international disaster response law contains soft-law guidance for the treatment and protection of the dead. For example, Interpol has developed best practices for disaster victim identification in contexts of disaster and mass fatalities,Footnote 91 and in 2011 the Sphere Project – an initiative developed by NGOs and the International Red Cross and Red Crescent Movement – published a Humanitarian Charter and Minimum Standards in Humanitarian Response, which contains guidance for the management of dead bodies.Footnote 92
In recent years, health epidemics and pandemics such as the AIDS crisis, Ebola epidemic, and COVID-19 have demonstrated the broad failure and lack of adequate preparation to ensure protection of the dead. For example, during the COVID-19 pandemic, most countries found themselves with completely overwhelmed mortuaries and had to resort to creating temporary morgues, holding bodies in hospital corridors, piling up bodies in the streets, or very hastily creating poorly organized mass graves, making future identification of bodies very difficult. At the outset of the pandemic and during times where specific countries experienced high waves of later strains of the virus, almost no State had the protocols, resources or technical expertise to manage the high volume of deceased persons.
In response to COVID-19, the ICRC developed a guide to assist States in developing basic protocols for the protection, dignity and respect of the dead during this health emergency.Footnote 93 The guide contained recommendations for authorities and forensic institutions, including recommendations for ensuring that the health of first responders is prioritized; for ensuring that measures taken respect the deceased individuals and their families; for creating a preparedness plan; for seeking to ensure timely and reliable identification, documentation and traceability of the dead, and to account for those who cannot be identified; for ensuring that there are physical spaces for storage and burial of bodies; and for ensuring that religious and cultural leaders are consulted. The ICRC also developed religion-specific guidance.
A lack of preparedness in dealing with the scale and scope of fatalities in the context of the 2004 Indian Ocean tsunami led to a significant rethinking in planning for and systematizing management of the dead in the context of mass fatalities, including the development of international guidelines by the Pan American Health Organization (PAHO), World Health Organization (WHO), ICRC and International Federation of Red Cross and Red Crescent Societies (IFRC).Footnote 94 Since then, management of the dead in other contexts dealing with emergencies has in many instances improved.
The mismanagement of the dead resulting from mass casualty situations causes tremendous pain and suffering to families of the deceased, who are often searching for their loved ones and seek the opportunity to be able to have dignified burials in accordance with their cultural and religious customs. Further, poorly managed responses to emergencies can result in a loss of credibility and faith in the medical system, which may result in even greater long-term harm.
Towards human rights guiding principles for the protection of the dead
On the basis of growing awareness about existing gaps in IHRL for the protection of dead persons and their human remains, the present authors believe that the time is right for the development of a set of guiding principles, framed under IHRL, for the dignified management and protection of the dead in all circumstances. This gap and need for guiding principles has also been highlighted by one of the authors in a recent thematic report on the protection of the dead to the UN Human Rights Council.Footnote 95
These principles would help to improve the protection of the dignity of the deceased without discrimination and promote their identification. They would underscore the duty to investigate every potentially unlawful death and protect the rights of families to recover, mourn and honour their deceased loved ones, while also reminding States about the resources and cooperation required to make the principles effective. In addition to filling a conspicuous gap in human rights protection, these guiding principles will help fulfil States’ duties to respect and protect the rights of families of the deceased under IHRL. While not exhaustive, the authors believe that these guiding principles, which should be read as lex ferenda, should encompass the following seven main concepts.
Protection of the dignity of deceased persons must apply to every person even after their death
The principle of the inherent dignity of every human being is a foundational principle of IHRL, enshrined in the Universal Declaration of Human Rights and other international and regional human rights instruments, and applies across all rights areas. This principle should be understood as extending to a person’s body even after death, in order to ensure adequate respect, care and protection for every deceased person’s body or human remains under this body of law.
Non-discrimination in the care and protection of the dead
All persons have the right to equality and non-discrimination under law, regardless of their nationality, race, religion, gender, sexual orientation or any other aspect of their identity. As with the right to dignity, this principle should be extended to the treatment of a person’s body even after death, and thus the treatment and protection of the bodies of deceased persons must be applied without distinction or discrimination.
Right to identity after death
A key principle of IHRL enshrined in the Universal Declaration of Human Rights and other human rights instruments, and considered customary in nature, is the right to recognition before the law, which requires a right to identity.Footnote 96 The right to identity is protected under binding international and regional human rights instruments, including the Convention on the Rights of the Child and the ICPPED. A corollary of this right should be the right not to lose one’s identity. The reliable identification of a dead person requires the examination and/or analysis of the body or human remains; a failure to adequately protect the dead, for example in the case of mismanagement or deliberate loss, may make this impossible, which in turn creates prolonged doubt as to the death of a person. The proper care and protection of unidentified dead bodies and human remains is therefore necessary to help ensure that individuals can be identified and to prevent them from becoming missing persons.
Duty to investigate every potentially unlawful death
Under IHRL, every person has a right to life, which is considered to be the supreme right from which no derogation is permitted.Footnote 97 The universal and absolute protection against the arbitrary deprivation of the right to life requires that all potentially unlawful killings must be reliably investigated and those responsible held accountable. The bodies and human remains of deceased persons are often primary evidence of their cause and manner of death and should be protected accordingly. A failure to do so is an abrogation of the duty to investigate a potentially unlawful death and an impediment to the truth about how the person came to die, and it may amount to a violation of the right to life.Footnote 98 The 2016 Minnesota Protocol outlines the elements and principles enshrined under IHRL for ensuring that investigations into potential unlawful killings are prompt, effective and thorough, independent and impartial, and transparent.Footnote 99 At the very minimum, investigations must take all reasonable steps to (a) identify the deceased person and establish their cause, manner and circumstance of death, and (b) determine whether there was a breach of the right to life, in which case investigative authorities must (c) establish responsibilities and accountability and seek to ensure reparations, including restitution, satisfaction and guarantees of non-recurrence.Footnote 100 Dead bodies and human remains pending investigation should be preserved accordingly, including through temporary burial, and should not be cremated or disposed of in any other manner which may result in their irretrievable loss.
Right of families to manage the disposition of the bodies of their deceased loved ones, and to mourn and honour them according to their culture and traditions
Families should have the opportunity to carry out the last rites of their loved ones according to their cultures and traditions. In cases of arbitrary deprivation of the life of a family member or relative, families should also have the right to truth, justice and reparations. This includes, in addition to a prompt and effective investigation and the right to be informed throughout the process, the right to the return of the body or human remains of their loved ones, and respect for their religious and cultural mourning practices. Families or relatives of victims of unlawful killings, emergencies or other disasters may require contextually and culturally relevant psychosocial support to help them cope with the trauma derived from the events.
Relevant stakeholders should take all reasonable measures to ensure the proper care, dignified management and protection of the dead
In order to support the proper care, dignified management and protection of the dead, States should adopt all necessary measures, including legal, administrative, institutional and procedural arrangements, and ensure that they have the human, material and financial resources to make those measures effective. The proper management of the dead includes ensuring the search, recovery, identification, analysis, documentation, protection and traceability of all bodies of deceased persons awaiting final disposition. This should be done according to general human rights principles (outlined above) and should follow other established guidelines or principles as relevant, including those developed by the ICRC for the dignified management of the dead.Footnote 101
International cooperation
The effective protection of the dead is a global challenge that requires strong international cooperation and coordination. All stakeholders, including States but also international organizations, non-governmental organizations and academia, among others, have roles to pay in protecting dead persons. In particular, cross-fertilization and sharing of good practices within and between States and regions, including South–South cooperation, can help to ensure that international standards, guidelines and principles which apply to the proper and dignified management and protection of dead persons are implemented effectively where so required.
The broad values outlined above are non-exhaustive but provide a minimum initial framework for developing a set of principles based on an international human rights approach for the proper management and protection of the dead. Given the serious challenges to ensuring adequate respect and protection of the dead, it is hoped that these principles can form the basis for future action and greater attention to this critical issue.
Conclusion
The dignity of every person and the respect owed to their body or human remains should not cease with death.Footnote 102 The processes by which individuals and societies across cultures and religions honour and mourn their dead provide the necessary closure to families and their communities, and domestic laws and practices reflect the respect and protection owed to the dead in recognition of this need. When this is disrupted through improper protection and/or disrespectful treatment of the dead, it harms individuals and societies and, in the case of unlawful deaths, it undermines or impedes the victims’ rights to truth, justice and reparation. With the increasing complexity of mass fatality incidents, especially as a result of conflict, migration, pandemics and natural disasters, including those caused by climate change, the need to effectively protect the dead is of growing importance.Footnote 103
The specific means by which protection of the dead occurs in practice will need to be contextually adapted to the beliefs and customs of each community and State. However, to be effective everywhere and in all circumstances, the protection of dead persons and their human remains should always be guided by IHRL, for which a new set of universal principles should be developed. These principles must be based on the respect, dignity and decency owed to the dead and their familiesFootnote 104 and on the duty to investigate, document, ensure accountability for and prevent all unlawful deaths.
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