Introduction: Cultural tradition meets technology
On the evening of 14 April 1865, a disgruntled actor and Southern sympathizer, John Wilkes Booth, shot and mortally wounded President Abraham Lincoln as he attended a stage play with his wife in Washington, DC. Lincoln's assassination, coming just days after the end of the prolonged and bloody American Civil War,Footnote 1 sent a shockwave through the nation. Lincoln was not only the head of State; for many, he had become almost a father figure.Footnote 2 After all, it was Lincoln who had emancipated America's chattel slaves, who had piloted the country through four of the most turbulent years in its history, and who had hoped to knit back together a war-weary and deeply divided nation. Even today, the slain president casts a long shadow over the American national psyche.
Against the wishes of many of Lincoln's closest confidants and political advisers, his widow, Mary Todd Lincoln, decided that his remains should be returned to his home state of Illinois – no easy task in the pre-refrigeration days of 1865.Footnote 3 The journey would involve an almost three-week, 2,700 km train ride that traversed 400 towns and cities in seven states. Further complicating the transit was the need to unload the casket at major stops along the way and put it on open display so that the tens of thousands of well-wishers could share a last glimpse of their fallen president. Whatever immediate psychic healing the funeral procession might have effected, it had an even more profound impact on how a country (and the world) would come to deal with death and the handling of the remains of the dead. The ripples of this impact continue to be felt even today.
An estimated 620,000 soldiers died in the American Civil War between 1861 and 1865,Footnote 4 and most of them fell hundreds or thousands of kilometres from home. As was the practice up until that time, the dead were buried – if at all – in single or mass graves near the battlefields on which they died. Sometimes these graves were marked; often, they were not.Footnote 5 While embalming was known, it was still relatively new and was neither perfected nor widely trusted. Without other adequate means to preserve bodies, the need for days- or weeks-long transportation by wagon or train rendered the return of bodies to their native grounds impracticable.Footnote 6 Although a few enterprising undertakers set up field embalming stations near battlefields early in the war, their actions often “provoked ambivalence and suspicion”Footnote 7 from a populace unaccustomed to the concept of chemical preservation.Footnote 8 Lincoln's death changed that. Essentially, if the embalming of remains (and the long-distance movement it enabled) was trusted enough for the beloved president, then it was good enough for a fallen son, brother, husband or father. Soon a veritable industry sprang up to exhume, preserve and transport the bodies of the dead from far-flung battlefields back to native soil.Footnote 9 There was only one problem, and it was a major one: bodies (embalmed or not) still had to be physically moved, and transportation – at least, rapid (i.e., efficient) transportation at the time – required the use of the commercial railroads. Sadly, railroad companies of the era were no better at handling baggage than commercial carriers of the present have proven to be,Footnote 10 and the results were predictable: bodies were lost and despoiled in transit.
The burial of the dead is not just a right afforded the family of the deceased, it “also is an obligation which has its origin in the law of nations; and this, in turn, has its origin in the will”.Footnote 11 Under both international humanitarian law (IHL) and international criminal law, war dead – both combatant and civilian – are recognized “as a distinct category of victim, with relevant obligations towards them”.Footnote 12 Indeed, customary IHL goes beyond the codification of the minimal duty of sepulchre (as developed by US courts as far as US common law is concerned) to return the dead to their next of kinFootnote 13 by carving out specific provisions for the treatment of the dead – namely, measures to prevent the remains from being despoiled and to ensure the respectful disposal of the dead in the event that they cannot be returned.Footnote 14
As Gustave Flaubert is quoted as saying, however, “Le bon Dieu est dans le détail.”Footnote 15 What does it mean to say that the dead should not be “despoiled”?Footnote 16 Is autopsy allowed? What constitutes repatriation of the dead to the next of kin? A complete body? A tooth? A lock of hair? Would a desiccated heart suffice?Footnote 17 What does it mean for a party to provide “disposal” of the dead? Does it mean burial? Cremation?Footnote 18
In 2017, Dr Ahmed Al-Dawoody observed that Islamic law and IHL “share the same humanitarian value of protecting dead bodies and therefore the management of the dead is an example whereby the two legal systems can cooperate to achieve this common humanitarian objective”.Footnote 19 In much the same manner, an understanding of the American common-law rights and duties of sepulchre can aid in interpreting how best to apply IHL during or in the aftermath of an armed conflict. The discussion that follows focuses on how US courts have dealt with the dead, specifically the rights of the survivors, and the nuanced resulting body of law that now defines the expectations of the next of kin.Footnote 20 While US courts have typically dealt with the more anodyne aspects of peacetime life and death, and not specifically with the victims of armed conflict, the reasoning employed by American jurists provides some insight into how the remains of war dead from armed conflicts might be considered. The discussion first examines the nature of the “quasi-property” rights that survivors hold in the remains of their related deceased. It then shifts to how these rights have evolved over the last 160 years since Lincoln's funeral train. From the analysis, three common elements become clear: the next of kin's right (1) to receive the remains of the deceased in a timely manner, (2) to receive the remains of the deceased in as unaltered a condition as possible, and (3) to receive the remains of the deceased in as complete a condition as possible.
The rights and duties of sepulchre and the matter of property rights
As a starting point, the dead have no legal rights per se (at least not under English or American common law).Footnote 21 But if the dead have no rights, then who is entitled to possess the bodies of the dead and, assuming that someone does hold such an interest, from where does it originate? Common sense might suggest that the living heirs have some privilege – yet common sense and legal rights do not necessarily go together. The assignment of legal “rights” to the bodies of the dead is a matter long fraught with concern. Specifically, what is the legal basis for such assignment? For example, is it grounded in property rights? The propriety of ownership rights in a human being for slavery or indenture has been a vexing problem for much of human history,Footnote 22 and formed the backdrop for the American Civil War. In fact, most modern legal systems have discarded any notion that (living) bodies can be held as property,Footnote 23 but this then begs the question: if there is no property right to a living body, where does the “right” to a dead body arise? As Kuzenski notes, “[t]here are few questions in the entire field of law that are so prolific a source of interest as whether or not there exists a property right in a dead body”.Footnote 24 No satisfactory answer was to be found in English common law, from which much of early US law initially derived, “for the reason that from a very early date in [England] the ecclesiastical courts assumed exclusive jurisdiction” over the dead.Footnote 25 As a result, it was the English church that held whatever entitlement to a corpse that might exist.Footnote 26 Consequently, a survivor's “property” rights, to the extent that they existed at all, were limited to the “monuments and escutcheons of his ancestors, [and not to the] bodies or ashes; nor can [the next of kin] bring any civil action against [those who] violate and disturb their remains, when dead and buried”.Footnote 27 In other words, in old England, the casket and grave were the property of the survivors, but the body itself was not.
Early American common law followed a similar line of reasoning, albeit with a reduced emphasis on the role of the church. As with their English cousins, US jurists (at least in the period following the American Civil War) eschewed the idea of any property rights attaching to human remains. This can be seen in a case that arose not long after the funeral of President Lincoln, when the Supreme Court of the State of Massachusetts held that “[a] dead body is not the subject of property, and after burial it becomes a part of the ground to which it has been committed, ‘earth to earth, ashes to ashes, dust to dust’”.Footnote 28 But the Court affirming that the dead are not “property” only begs the next (legal) question: if not property, then what are they? Certainly, they are tangible objects, and as tangible objects (especially objects prone to rapid decay) they must be disposed of through some overt action. However, abandoning a property framework in toto simply results in a legal vacuum. As discussed above, US courts were forced to wrestle with this issue in the aftermath of the Civil War and the years immediately following, when transportation of the dead by common carriers (i.e., the railroads) gained in popularity. After Lincoln's three-week funeral odyssey, the idea of leaving a relative buried in a far-off location solely due to the difficult logistics of transport became, if not unthinkable, at least undesirable. However, with this increase in the movement of embalmed corpses came the predictable mishaps – lost or damaged caskets, despoiled remains – and with the increase in mishaps came the bane (some would say hallmark) of Western society: an increase in civil lawsuits for damages.Footnote 29 And because all lawsuits begin with the basic problem of determining legal standing, a cause of action had to be identified.
Therein lay the problem. If no property right in human remains exists, then who has standing to bring action when those remains are lost or mismanaged, and equally important, what are the legal grounds for such action? It quickly became apparent that human bodies presented a host of issues which could not be dealt with using the same rules that were applicable to business property or farm commodities, as the Supreme Court of the State of Georgia noted in 1905, in an early case involving the mishandling of remains by a railway:
A corpse in some respects is the strangest thing on earth. A man who but yesterday breathed and thought and walked among us has passed away. Something has gone. The body is left still and cold, and is all that is visible to mortal eye of the man we knew. Around it cling love and memory. Beyond it may reach hope. It must be laid away. And the law – that rule of action which touches all human things – must touch also this thing of death. It is not surprising that the law relating to this mystery of what death leaves behind cannot be precisely brought within the letter of all the rules regarding corn, lumber and pig iron. And yet the body must be buried or disposed of.Footnote 30
Fortunately, while the problem confronting US courts may have been novel in some legal sense, it was not entirely new. The real, physical and immediate need to dispose of dead bodies – both out of hygienic requirements and out of respect – is simply that: a real, physical and immediate need that pre-dates written history. In fact, this physical, tangible need forms the basis of the opening scene in Sophocles’ famous play Antigone, which finds the protagonist reminding her conflicted sister of their duty of sepulchre to their brother, Polynices (whose proper burial had been forbidden under pain of death by the king of Thebes). For Antigone, there was no conflict:
Be whatever you want, and I will bury him. It seems fair to me to die doing it. I will lie dear to him, with one dear to me, A holy outlaw, since I must please those Below a longer time than people here, For I shall lie there forever.Footnote 31
Admittedly, Sophocles was simply playing on the norms of Greek culture circa 450 BCE, but in doing so he captured a universal feeling that transcends time and cultures.Footnote 32 It is not surprising, then, that according to Geneva Convention I (GC I), “[a]t all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures … to search for the dead and prevent their being despoiled”Footnote 33 and to ensure that the dead are buried in such a manner as to facilitate their return after the hostilities have ended.Footnote 34 Implicit, if not explicit, in this language is the duty of sepulchre.
In fact, it is to this common history and universal concept of sepulchre that the US courts turned when confronted with the legal problem of defining the duties and entitlements of death:
The only rights (if we may call them rights) left to the dead are: first, that of decent sepulture [sic], to have the body decently covered and consigned to earth from which it sprung; and then the right to be suffered to rest undisturbed until the body shall have been resolved into its original elements.Footnote 35
From this viewpoint, sepulchre is less about any rights of the dead, but rather is a societal duty imposed
on the living, primarily resting on the surviving consort, or next of kin, to provide for the preparation of the body, the funeral, and burial, and then the duty rests on all, including the courts, not to disturb the body, except in cases of necessity or for some cogent reason which appeals strongly to human nature or to one's sense of propriety.Footnote 36
In fact, “the words duty and right, which seem to stand opposed to one another, are really but two names for the same thing”.Footnote 37 It is impossible to “speak of a right without at the same time implying a duty, nor, conversely, can one speak of a duty without at the same time implying a right”.Footnote 38 In this context, “[t]he right to possession of the body exists only in order to aid the accomplishment of the duty of burial and, therefore, should only be co-extensive with that duty”.Footnote 39 In both a literary and a legal sense, Achilles’ duty to return the body of Hector can only be understood in reference to King Priam's right (and obligation) to bury his dead son.Footnote 40 As discussed below, US courts have cast the treatment of the dead as a matter involving a (quasi-)property right, and in so doing, have drawn upon the ancient Roman law concept of jus in rem – i.e., a “right against or in respect of a thing”Footnote 41 that is “availing against the world at large”.Footnote 42 By their nature, in rem rights impose a duty on all others to respect those rights. In much the same manner that an individual's in rem right to be secure in their home imposes a duty on all others not to trespass,Footnote 43 the right of sepulchre imposes a duty on the family of the deceased to affect decent burial. Moreover, there is a duty availing against the world because
the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by someone towards the dead; a duty, and we may also say a right, to protect from violation; and a duty on the part of others to abstain from violation.Footnote 44
Islamic law imposes a similar duty to bury the dead on the Muslim community as a whole (fard kifayah).Footnote 45 IHL can be interpreted as an attempt to codify such a duty and to provide a framework for enforcing compliance.Footnote 46
Importantly, however, while it is sepulchre – the “right of the next of kin to perform a ceremonious and decent burial of the nearest relative”Footnote 47 – that lies at the core of American common law on treatment of the dead, early US courts were careful not to conflate this “right”, despite its widespread acceptance culturally,Footnote 48 with any actual property right in the body itself. For example, when a cemetery superintendent moved the body of a child without notifying the parents, the Supreme Judicial Court of Massachusetts could find no “property” interest that would attach to the child's body, and therefore, “[t]he only action that [could] be brought for disinterring it [was] trespass quare clausum [physical trespass]”.Footnote 49 In other words, as with early English law, the civil tort was the disturbance of the grave plot (trespass on a property right) and not the removal of the human contents of the grave (to which no property ownership attached). Because of this constraint, the only legal redress that the Court could award was damages for mental anguish suffered by the child's family: “We know of no rule of law which requires the mental suffering of the plaintiff, or the misconduct of the defendant, to be disregarded.”Footnote 50
This legal circumvention proved less than satisfactory on many levels. US courts, cognizant of the mental anguish suffered by the survivors, needed an acceptable alternative, and soon turned to an ageless custom of receiving and properly burying or treating the body of a lost relative as the source of relief. And coupled with this entitlement, in a logical progression, was the concomitant obligation of those in possession of the remains to deliver them free from loss and misplacement.Footnote 51 Sepulchre, as a basic entitlement, soon began to be codified in US law. The full contours and nuance of that law, however, would not be crafted until near the end of the nineteenth century.
The evolving right and duty of sepulchre and the matter of despoilment
Largely as a result of work by medical scholars such as Rudolf Virchow,Footnote 52 what we recognize today as medico-legal autopsies increased in frequency in the late 1800s and early 1900s. Autopsies, by definition, involve the surgical alteration of a dead body to varying degrees (however justifiable and well-intentioned), thus raising the question of when they constitute “despoilment”.
Academic autopsies are mainstays of medical training and are performed in medical schools. Today, they involve donated cadavers and generally no property interests are strongly implicated.Footnote 53 On the other hand, surgical autopsies are either medico-legal or clinical (pathological), and these – especially those in the medico-legal category – introduce a confounding factor into the right of sepulchre: they are conducted under colour of law and frequently without the express consent of the survivors. Thus, they require balancing the rights of the next of kin with the fact that
public welfare may and does require governmental control in many respects for protection of life and health of the people, and for discovery of crime connected with the death of a person, and to such interests the private right is subservient so far as necessary. Upon this ground rest cases of autopsies upon dead bodies under public authority, and to satisfy police regulations for ascertainment of cause of death.Footnote 54
As regards autopsies, in one pan of Lady Justice's scale is the authority granted to medical examiners and coroners in medico-legal contexts, and weighed against it in the other pan are the more narrowly defined common-law sepulchre rights of the decedent's next of kin. The point of greatest friction is commonly the authorization to perform the autopsy itself. Autopsies inflict a double insult: they take time, which generally delays the return of remains to the next of kin, and they involve some alteration of the body.
The matter came to the attention of US courts initially because not all early autopsies were performed with the rigour and professionalism that we have come to expect. In one of the first American suits initiated on account of an autopsy, the Supreme Court of the State of Minnesota heard a complaint in the 1890s brought by a widow who alleged that a doctor had mutilated her husband's corpse during an unauthorized “dissection”. The Court soon found itself in the same sort of uncharted territory that it had encountered with earlier railroad mishaps – i.e., where did the “right” to an “unmutilated” corpse reside? Echoing the language of an earlier ruling,Footnote 55 the Court began by restating the then-current contours of sepulchre:
[W]hile it may be true still that a dead body is not property in the common commercial sense of that term, yet in this country it is, so far as we know, universally held that those who are entitled to the possession and custody of it for purposes of decent burial have certain legal rights to and in it which the law recognizes and will protect.Footnote 56
The Court then explored the logical inference that
[i]ndeed, the mere fact that a person has exclusive rights over a body for the purposes of burial leads necessarily to the conclusion that it is his property in the broadest and most general sense of that term, viz., something over which the law accords him exclusive control.Footnote 57
The Minnesota justices then went on to reject the awkward application of physical trespass in favour of a new legal right: the return of remains with dignity.
[I]t would be a reproach to the law if a plaintiff's right to recover for mental anguish resulting from the mutilation or other disturbance of the remains of his dead should be made to depend upon whether in committing the act the defendant also committed a technical trespass upon plaintiff's premises, while everybody's common sense would tell him that the real and substantial wrong was not the trespass on the land, but the indignity to the dead.Footnote 58
This came to be known as the Minnesota Rule,Footnote 59 and its ripples continue to affect how US courts deal with the dead. For example, in an early case from the state of New York, a man's body was autopsied against the express wishes of his widow. The Court, while acceding that there was no “property” right involved, nonetheless found that the widow had
the right to what remains [of her husband] when the breath leaves the body, and not merely to such a hacked, hewed, and mutilated corpse as some stranger – an offender against the criminal law – may choose to turn over to an afflicted relative.Footnote 60
In another early example, the coroner of Cook County (Chicago) and his accomplice – an undertaker with the unfortunate name of Louis Hacker – seized the body of the appellant's deceased minor son at the appellant's house (for reasons that are not entirely clear), where they
proceeded, wantonly and maliciously, to cut open, hack, tear and disfigure the body, bespattering the clothing and the house, furniture and premises; … the brain, liver and spleen were removed, and in the presence of friends and relatives were conveyed to and thrown into a privy or water-closet.Footnote 61
The Court did not question the authority of the coroner but found that separate from that authority was the father's right of sepulchre, which went beyond the mere return of remains and extended to the right to receive the remains in as unspoiled a condition as possible:
Unless sufficient reason existed for an autopsy [the father] was entitled to the body unmutilated. If such reason did exist, he was, nevertheless, entitled to the whole body, even though necessarily disfigured, unless it proved necessary to remove and preserve some particular organ for further examination, as to whether a crime had been committed, or for evidence.Footnote 62
The same reasoning is still in effect. Recently, two parents in New York accepted the remains of their son for burial only to later learn that the medical examiner (ME) had retained their child's brain for further examination. The Court affirmed the ME's authority to retain biological specimens for further testing but found the medical examiner in “violation of the right of sepulcher” in his failure to “to notify [the parents] of the retention of their son's brain”.Footnote 63 In a similar case, the Supreme Court of the State of Washington held that although a medical examiner had broad discretion to perform his duties, “such authority does not imply that the medical examiner has authority to retain the brain [for research] and merely return a veritable shell of the skull to the family for burial, absent some compelling reason for further examination”.Footnote 64
Sepulchre also appears sufficiently broad to encompass activities that result in detrimental change to the corpse even when no tissues are removed during autopsy. In the state of Louisiana, a deputy coroner engaged in some questionable research by intentionally dropping the corpses of two children, who had died of sudden infant death syndrome, head-first onto a concrete floor from a height of one metre, in order to study skull fractures.Footnote 65 No organs or tissues were removed from the children's bodies, but the Court nonetheless recognized that the state of Louisiana had created a “quasi-property” right of parents to “possess the body of a loved one in the same condition as the body was at death”.Footnote 66 These quasi-property rights are a legal construction that establishes a “peg upon which to hang damages for the mental distress inflicted upon the survivor”, when no other legal remedy will sound.Footnote 67 Today, most jurisdictions in the United States recognize a survivor's quasi-property right in the remains of a family member.Footnote 68
Through early cases like those in Minnesota and Cook County described above, the outer contours of sepulchre began to take shape. No longer was the right simply grounded in some vague, though pervasive, cultural norm extending back past the ancient Greeks and Romans. Now, sepulchre had a legal footing, namely that
there exists in our law a right to possess, preserve and bury, or otherwise to dispose of, a dead body; that the right belongs to the surviving spouse, if any, … and, if none such, then to the next of kin in the order of their relation to the decedent; and that violation of that right is a tort.Footnote 69
The nature of this tort is emotional suffering, and the survivor “may maintain an action for mental pain and suffering … even though she suffered no physical injury”.Footnote 70
Sepulchre had grown to entail the right both to receive the remains of a loved one and to receive and possess those remains in a timely manner, and interference with these twin rights was established as a tort under law. Further, it was considered that while a dead body
is not property in the usually recognized sense of the word, yet we may consider it as a sort of quasi property, to which certain persons may have rights, as they have duties to perform towards it arising out of our common humanity.Footnote 71
Thus, by the mid-1900s, US courts had defined sepulchre as the basic “right to have the body delivered to [the next of kin] in the same condition in which it was when death supervened”.Footnote 72 In other words, “the deprivation of this right typically involves a physical intrusion, mishandling, or manipulation of the deceased's body”,Footnote 73 especially when the cause for the manipulation was the unnecessary or excessive use of the autopsy authority.Footnote 74
The final addition to the definition of sepulchre would come in the latter half of the 1900s with the advent of organ and tissue harvesting.
The evolving right of sepulchre and the matter of completeness
By the end of the twentieth century, US courts had reached a consensus that, as noted in the Sherman case of 1999, “a dead body is no longer res nullum [a thing of no one] …. [However,] the extent of the quasi-property rights which a dead body create[s] remains uncertain”.Footnote 75 A few decades earlier, in 1967, Dr Christiaan Barnard had shocked the world by performing the first successful heart transplantation operation,Footnote 76 and in doing so had exposed yet another limitation to how the legal system dealt with the concept of sepulchre: completeness. The Court in the Sherman case later stated that, “[c]onsidering the advancement of science, and what can be done with the organs and other parts of cadavers, this question is not likely to fade but may very well intensify in the future”.Footnote 77
Perhaps not surprisingly, as had been the case in the early days of surgical autopsies, the subsequent rise in tissue and organ harvesting coincided closely with a rise in US tort claims for violation of sepulchre. In 1991, in what would become a widely cited case, a US federal appellate court found in favour of a widow whose husband's corneas had been removed contrary to her express instructions.Footnote 78 The confounding aspect of the case was the fact that the man, who had died at a local hospital from injuries sustained in an automobile crash, was suspected of having committed suicide, a determination that placed the death squarely within the coroner's jurisdiction. Consequently, the local coroner's office assumed temporary custody of the body, and it was while the body was at the coroner's office for autopsy that the corneas were removed. This was contrary to the wishes that the widow had expressly indicated to the hospital that no tissues were to be harvested, but in the transfer of the body, those instructions were not relayed to the coroner. At trial, the coroner defended removing the man's corneas on the good-faith grounds that he was unaware that the widow had made a “contrary indication” while at the hospital. Finding for the widow, the Court held that “the policy and custom of the … coroner's office not to review medical records or paperwork pertaining to a corpse prior to the removal of corneas” amounted to “intentional ignorance”.Footnote 79 The Court went on to say that “[a]fter the cornea [was] removed, it [was] not returned and the corpse [was] permanently diminished”, and that although the government has a legitimate “interest in implementing the organ/tissue donation program; this interest is not substantial enough to allow the state to consciously disregard those property rights which it has granted”.Footnote 80
Not all courts have extended the concept of quasi-property to include organs and tissues removed from the body,Footnote 81 and even for those that have, the concept may not necessarily extend to more easily lost substances, such as bodily fluids. The Supreme Court of the State of Michigan has held that “[t]he removal of blood from a dead body for purposes of testing [for blood-alcohol levels] was not unreasonable” and that such removal “does not shock the conscience or our sense of justice”Footnote 82 when it is done for legal purposes. Similarly, a federal appellate court held that the survivor's “interest in [a] decedent's body is only a limited interest which is considered to be in the nature of a property right for burial purposes and for allowing recovery for outrages committed against the body”.Footnote 83 The “taking of [a] blood sample without [the survivor's] consent [is] not a violation of a protected property interest within the meaning of [the state of Indiana's] Constitution”,Footnote 84 nor is the taking of a blood sample “so shocking an action as to be considered an outrage or indignity to the decedent's body”.Footnote 85 In other words, drawing of fluids does not violate sepulchre.
After the developments of the 1990s, the last element of sepulchre, the right to receive the remains of a loved one in as complete and intact a condition as possible, was finally in place.
The limitations and non-applicability of the right of sepulchre to mass graves and unidentified human remains
As extensive as sepulchre laws in the United States are now, they are not without limitations as to their scope of application. The US common-law tradition of sepulchre has little to offer with regard to the management of the dead in mass graves. This is largely because mass graves frequently involve large numbers of unidentified bodies. While “[t]he dignity of a person and the respect owed to his or her body and human remains do not cease with death”,Footnote 86 the quasi-property rights of sepulchre cannot attach without individual identification. Someone must hold the possessory rights, but without the identification of the remains, no possessory individual can be named. The result is a Dantean Limbo where, “[i]n legal terms, since unidentified remains potentially belong to all families, they belong to none”.Footnote 87 Thus, by their nature, mass graves typically violate the “‘[l]ast rights’ linked to the dignified treatments of the body in death, attached in large part to the family of the deceased [i.e., sepulchre] and the product of civil, cultural, and religious rights”.Footnote 88
Even when individual identification may be possible from a technical standpoint, it is the sad reality that when mass graves are exhumed, there is seldom the authority or the time, money or other resources to effect individual identification of the remains.Footnote 89 With few exceptions, the focus of exhuming mass graves more commonly serves judicial aims (e.g., prosecuting perpetrators of war crimes), and for these purposes, “[t]o save time and money, criminal investigators may focus only on a sample of bodies” sufficient to present evidence at court or tribunal.Footnote 90
The limitations of the quasi-property rights of sepulchre in mass-grave contexts are illustrated in a legal suit brought against the city of New York by families of some of the victims of the 11 September 2001 attack on the World Trade Center towers. The recovery efforts in the aftermath of 9/11were extensive and are still ongoing, but not all of the remains have been accounted for through individual identifications.Footnote 91 In 2008, seven years after the collapse of the towers, the survivors of some of the remaining missing brought suit against New York, alleging that the city's failure to achieve a complete recovery violated their constitutional (property) rights “to bury their deceased sons and daughters and next of kin”.Footnote 92 These families sought to have the Court order the city to bury the dust and finely sifted debris from the downed towers at a designated cemetery. In holding for the city, the Court found that “[n]o case has extended such a [quasi-property] right to an undifferentiated mass of dirt that may or may not contain undetectable traces of human remains not identifiable to any particular human being”, and that “[w]ithout something tangible or identifiable, there is no property right”.Footnote 93
In the 9/11 context, the issue was the unidentified (unidentifiable?) nature of the “undifferentiated mass of dirt” that voided any quasi-property rights of the survivors. The same principle holds true for any unidentified remains, regardless of size or state of preservation.
Conclusion: The modern contours of the common law of sepulchre
The legal interpretation of the US law of sepulchre began its long, nuanced evolution at about the same time that the first rules of IHL were being drafted and adopted in Geneva. In that early, Industrial-Age era, the proper handling of the dead was largely dictated by geography and time of year. The rules governing the management of the dead, whether from peaceful or bellicose activities, were more aspirational than they would prove realistic. That began to change with the advent of embalming technology and the development of high-speed modes of transportation, namely railroads and steamships (combined with the rudimentary ability to refrigerate the remains that were being shipped). Suddenly, it became possible to move the remains of the deceased long distances in relatively short times. Management of the dead came to be seen as more than simply the dignified burial of the dead on the battlefield or the site of a mass disaster – it now was expanded to include the repatriation of the dead to native soil as well. This in turn would set off a cascade of legal events (i.e., private lawsuits) that forced US courts to define the contours of how the dead should be handled, what rights and entitlements inhere to the survivors, and what duties attach to those who touch or control the mortal remains. To that end, US courts drew upon a long, transcultural tradition of sepulchre (i.e., the right of surviving family members to receive the remains of a relative and render them ceremonial repose) to develop a body of law that provides some specificity to the legal – as opposed to cultural or religious – rights and obligations of the living in this regard. These laws were not crafted specifically for the management of the dead resulting from warfare, or even from natural or man-made disasters; however, the methodical, precedential and logical approach that US courts adopted has some utility in interpreting the situations that arise in these same situations today.
Grotius, in his classic text The Law of War and Peace, devoted an entire chapter to the right of sepulchre, noting that “all agree that even public enemies are entitled to burial”, and that “[the Greek historian] Appian calls this ‘a common right of wars’”.Footnote 94 Grounded in this transcultural concept of sepulchre, US courts have consistently found that the next of kin possess a “quasi-property” right to receive the remains of a deceased relative (1) in an expeditious manner, (2) as intact as possible and (3) free of intentional alteration or despoilment. This legal construct addresses delay and alteration occurring at the hands of the individuals having custody of the remains, but it does not apply to decomposition and taphonomic change that occurs naturally (provided it is not the result of human negligence or malice). Conversely, undue delay or outright loss of remains, through negligent or careless handling by responsible parties, or the intentional alteration (to include unauthorized autopsies or embalming) or unauthorized removal or harvesting of tissues and organs are seen as violative.
Because US courts have dealt with sepulchre largely within the context of civil lawsuits, judges have adopted a retroactive view of the problem, with an emphasis on the rights of the family of the deceased that have already been violated. The focus has been to provide relief after a violation has occurred, and thus emphasizes the rights of the victims. By contrast, IHL is written from a proactive standpoint, with the goal of structuring (and if necessary, enforcing) compliance among the State actors that have agreed to be bound by its laws and treaties in order to affect behaviour before a breach occurs. Consequently, the language used in drafting IHL emphasizes the duty of the actors. These are but different sides of the same coin, however: laws protect rights by “imposing duties on other persons, whose due performance will, or will tend to, prevent any impairment” of those rights.Footnote 95 The linguistic fact that US sepulchre law emphasizes rights rather than duties does not therefore diminish its usefulness in interpreting IHL.
That said, US common law is not a roadmap for enforcing IHL. The (quasi-)property right that a survivor has in the remains of a loved one exists only to the extent that “its possessor has the aid of some organized governmental society in controlling the conduct of another person”.Footnote 96 Compliance and “controlling the conduct” of State actors is the role of international courts and tribunals applying the rules of IHL.
What sepulchre offers States, along with international courts and tribunals, is judicial insight to aid in that employment, especially when navigating vague and nuanced definitions that must be applied to new and evolving situations. This is not to argue that IHL should attempt to incorporate US common law literally or uncritically – the two are distinct but complementary systems that have evolved similar solutions to the rights and duties surrounding the dead, albeit via different evolutionary pathways.Footnote 97 Rather, it is these separate secular pathways to a common end that may prove illuminating in much the same manner that “investigating the convergences between IHL and [Islamic law] will lead to universalizing and popularizing modern IHL principles”.Footnote 98 Exploring how American jurists reasoned through the legal issues involved, and how they adopted and modified the traditional (transcultural) concept of sepulchre to deal with the management of the dead in a wide variety of circumstances, can offer insight into ongoing and evolving interpretation of IHL in the myriad contexts in which it must be applied.Footnote 99
After all, le bon Dieu est dans le détail.
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