Legal and Human Rights of the Dead; An Overview


Ali Malik

These are not ordinary times. Every now and then we are faced with a moral dilemma while dealing with the enormous situation, one among them being how to deal with those who don’t survive the Covid-19 infection. The situation has forced us to burry/ cremate the dead without allowing their families to say them a farewell that may leave them scarred permanently.

On April 17 we had an altogether different issue where some people in North Kashmir objected to the burial of a Covid-19 victim in a local cemetery hurting the sentiments of a whole community. This makes it imperative to have a look at the rights including possibly human rights of the deceased in a global context and the possible collective response of the international community.

Humans have all along treated their dead with extreme reverence, honour and dignity, more so, in performing their last rites and there is hardly any empirical evidence available in any part of the world to suggest somethings to the contrary. The dead have existed in living human spaces, among diverse cultures and continue to play central and critical roles in daily human lives, in degrees and ways that the living would die to emulate. It has been no different in Kashmir.

The archeological finds at Burzahom show that the dead have been buried with proper ritual as early as 3500 BC like the ancient Egyptian and Harappan/ Indus Valley civilisations. It is difficult to establish the exact nature of space that the dead held among the living during those days but a study of recent/ modern history of Kashmir reveals how we have given the saints of yesteryears a special position in our socio-cultural life. Not only the saints, in our cultural value system those who die just shift their residence to the nearby cemetery but continue to thrive in our consciousness as before as if walking the nearby streets.

While all legal systems give recognition to the instructions and nominations through will of the deceased posthumously including, now a days, those regarding donating organs, these are enforced for the benefit and at the behest of the beneficiary as the deceased has no powers to enforce these and therefore is not thought to be invested with a legal right. But it is the same with those who are in a vegetative state or those who are of unsound mind and these people are holders of perfect legal rights. In any case rights are generally described in bundles, it would be perfectly fine in legal theory that some of these rights stay invested in humans posthumously. For example right not to be defamed after death would be a perfect legal right even though such right would accrue to a person only when he is alive. Codification of such rights would go a long way in removing the confusion on the subject.

Another and probably the most important issue is whether dead bodies have human rights? There are difficulties here. A corpse or dead body is considered to be non living material distinct from a human being and so how can it have human rights? Article 1 of the Universal Declaration of Human Rights recognises the right to dignity among other human rights as basic and fundamental and that no human being shall be subjected to cruel, inhuman or degrading treatment. I haven’t come across any case law that would suggest this basic right to dignity extends beyond death, although since times immemorial, people have been obliged through custom to give proper dignified burial or cremation to a corpse and neither to molest/ disturb those buried nor to desecrate the mortal remains.

There have been exceptions where, for example, the bones of those buried during the plague of 1378 were excavated and placed in the bone church/ Sedlec Ossuary during the nineteenth century that has been commercially promoted as a tourist destination (commonly known as dark tourism) even though it can’t be said that such ossuaries have been built with intention to desecrate mortal remains of humans. It is true that vandalism of human corpses is categorised as extreme violence in all societies, yet molestation and sexual abuse of corpses is not classified/ codified as rape anywhere in the world. (Correct me if I am wrong).

Coming back to human rights, while the Geneva Convention/ International Humanitarian law expressly provides for decent burial of the soldiers/ prisoners who are killed during any conflict as per the religious beliefs and insists on marking and maintaining their graves, we don’t have similar codified international law for civilians. In the absence of such legal principles the world has seen with anguish the treatment meted out to the dead during the recent wave of immigration to Europe by desperate people seeking asylum from hunger and persecution.

With the mass number of casualties during the current Corona crisis, the international community has to come forward with an elaborate set of principles extending the scope of human rights of dignity and non desecration/ non disturbance to human corpses that shall encourage member states to enact their own laws dealing with the subject.

Meanwhile our society has to rise to the occasion and ensure that proper and decent burial is not denied to any Covid-19 victim and our social conscience is not bruised.

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