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Introduction
In order to ensure that the dead are honored in a dignified manner, their decent burial is of utmost importance. The term ‘burial’ can refer to any form of disposal including cremation, based on the socio-religious beliefs of the region. This is because it is a common belief across most, if not all, religions that the dead should be disposed of in a respectful manner as per the prevailing social, cultural and religious norms. Similarly, even in an armed conflict, due consideration must be given to the handling and management of the dead bodies. Accordingly, there are several obligations under Customary International Law (CIL) and International Humanitarian Law (IHL) that provide for the management of during armed conflict. Through the medium of this article, I shall discuss the existing provisions of IHL that deal with the management and disposal of dead bodies.
The Geneva Conventions of 1949
The Geneva Conventions of 1949 contain several provisions that provide for the disposal of the dead in a respectful manner. For example, Article 17 of the Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the field provides for a grave registration service. Under this provision, belligerent states are required to maintain a grave registration service in case of hostilities or armed conflict. Similarly, Article 20 of the Geneva Convention II lays down prescriptions regarding the burial of the dead at the sea. Article 120 of the Geneva Convention (III) on the treatment of Prisoners of War also provides for ‘honorable’ burial of the dead prisoners of war as per their religious rites. It also provides for maintenance of their graves in a respectful and suitable manner. Additionally, Article 130 of the Geneva Convention (IV) on the Protection of Civilians during Armed Conflict also provides for the burial of the dead in an honorable manner as per their religious rites and respect and maintenance of their graves. Furthermore, the Geneva Conventions make it mandatory for belligerent states to dispose of the dead individually and not through a collective burial. In order to ensure that these obligations are respected, the institutional frameworks such as the Official Grave Registration Service and the Information Bureaus have been established.
This is best reflected by the use of the word ‘honorable’ several times in these provisions. Moreover, Additional Protocols I & II of 1977 also emphasize the need for States to conclude treaties and other binding instruments of international law that provide for the protection and maintenance of grave sites. Although there is a dearth of provisions pertaining to the management of dead bodies during non-international armed conflicts arising within the national boundaries of a member state of the United Nations, it is the ICRC’s stance that dead should be disposed off in a respectful manner in case of both international and non-international armed conflicts and that the rules of customary International Law shall play a pivotal role in their enforcement.
The Geneva Convention on the Wounded and the Sick and the Geneva Convention on Prisoners of War are the first international instruments that have used the term ‘honorable’ while discussing dead body management. However, it is worth noting here that these instruments do not provide a clear definition of the term ‘dead’. Moreover, the exact meaning of the word ‘honorable’ or ‘respectful’ cannot be determined in the context of dead body management. This is because different religions across the world have their own standards for ascertaining whether a body has been disposed in an honorable manner or not.
As per the rules of customary IHL that have been laid down as per the Customary Humanitarian Law Study commissioned by the ICRC in 2005, there are certain minimum legal standards that must be upheld while managing during an armed conflict, of which Rules 113 (respectful treatment of dead bodies), 115 (respectful disposal of the dead) and 116 (accounting for the dead) are especially salient. Most of these rules are equally applicable for both, international armed conflicts and non-international armed conflicts. This is in contrast to the provisions contained in the Geneva Conventions, as they specifically pertain to international armed conflicts.
How important is observance of religious rites for disposal of the dead?
The aforementioned provisions and the formulation of Customary IHL rules seek to ensure that the dead are buried in a dignified manner as per their ‘religious rites’. It is a well-known fact that religion assumes great significance in the lives of many and has become a permanent part of our lives. Therefore, it would be cruel to deny any human being the right to be disposed off in an honorable manner as per his / her religious beliefs. Over the course of time, certain legal standards or requirements with respect to dead body management during armed conflicts have developed. These have been summarized below:
The dignity of the dead must be respected.
Families have a right to know the fate of their relatives.
Religion, belief and culture of the dead must be respected.
Therefore, it can be said that the role of religion in an individual’s life is of paramount importance and must not be ignored, especially in the context of the dead body management.
ICRC’s response to dead body management during Covid-19
In order to ensure that the dead are buried in a decent manner, the ICRC has released certain burial and cremation guidelines for different religions, in light of pandemic. These guidelines provide for increased focus on sanitization and minimization of large gatherings at the time of cremation. Therefore, religious rites can be adhered only to a limited extent. For example, Hindu funerals have to be conducted by taking into account the safety of all the people involved- family members, health care workers, etc and others who are involved.
However, there are certain situations in which adherence to religious rites during disposal of the dead is not possible, which has prevented many religious groups such as Jews and Muslims from observing their religious rites while disposing of the dead. For example, French authorities have issued an order that strictly prohibits the washing and embalming and other similar forms of funeral rites, so as to contain the spread of the corona virus. The French Council of Muslim Faith has accepted the decision as it realized the gravity of the situation and the importance of preserving the lives of those who’d potentially get infected with the virus in case of contact with the body. Similarly, countries like Algeria and Tunisia have also issued health orders on the same lines. Thus, it can be said that the absolute observance of religious rites is not possible in circumstances such as the ones created by the Covid-19 pandemic and that the dead have to be buried in a manner that does not threaten public health at large.
Conclusion
The aforementioned provisions of international law have become especially significant in light of the Covid-19 pandemic, which has crippled global healthcare systems and continues to pose a major threat to people’s health. Any form of contact with an infected person must be avoided at all costs so as to prevent the virus from spreading. As many religious rites such as cremation, embalming etc. require that some people come in contact with the dead body, such religious rites cannot be adhered to at the cost of human health. This has forced the people to conduct funeral rites in a hurried manner with a minimum number of individuals. In case any contact with the dead is required, the use of personal protective equipment is necessary and must be adequately provisioned for. In conclusion, it can be said that dead body management emerged as a major unprecedented challenge of Covid-19 pandemic and has highlighted the need for having elaborate guidelines for the same thus preparing the world for similar future health emergencies and disasters.
This article has been authored by Vaishnavi Chaudhry, a 3rd year student of Rajiv Gandhi National University of Law, Punjab.