Death is an anticipated outcome of war and those who die during an armed conflict, combatant and civilian alike, remain protected by IHL. The laws of armed conflict allow for the burial of those killed during an armed conflict in accordance with their religious rites. There is an understanding that wars render religious faith indispensable in dealing with the suffering and loss associated with conflicts.[1] The comfort of a traditional religious burial at such a time is considerable and plays a role in restoration and healing for societies torn apart by war.[2] Since April 2020, Indian authorities have been burying individuals killed during the occupation in unmarked graves, denying their families the right to give them an Islamic funeral. While the official position is that the bodies are not being handed over due to the coronavirus outbreak, it is clear that the real reason is to prevent protests and unrest at the funerals. There is no question that funerals in politicised communities can become important sites for organised resistance, for instance, political funerals during Apartheid in South Africa served as a scene for calls to action.[3] However, in failing to return the remains of the deceased civilians, India appears to be engaging in a systematic effort to subject them to symbolic indignity in death, and to collectively punish and stigmatise their remaining relatives.[4] It is also acting in violation of international humanitarian law.
IHL contains a number of obligations which are specifically applicable to parties to a conflict in relation to the dead in an armed conflict. There are general obligations to search for, collect and account for the dead in an armed conflict – both civilian and combatant.[5] Article 15 of the First Geneva Convention provides that the Parties to the conflict are to, without delay, take all possible measures to search for the dead and prevent their being despoiled. It is an obligation of means rather than result which is to be carried out on a continued and diligent basis.[6] The Geneva Conventions also contain special provisions concerning funeral rites and treatment of the remains of the dead in order to help families of the deceased arrive at some sort of closure.
Any party with effective control, which would include an Occupying Power, is to ensure that the dead are honourably interred, if possible in accordance with the rights of the religion to which they belonged.[7] Article 17 of the First Geneva Convention also states that the parties to a conflict must first carry out a medical examination of corpses to verify the identity of the deceased before burying them according to the applicable religious rites if possible.
Rule 114 of Customary International Humanitarian Law states that “[p]arties to the conflict must endeavour to facilitate the return of the remains of the deceased upon request of the party to which they belong or upon the request of their next of kin”. Whilst IHL does allow for the burial of mortal remains without their return to the deceased’s family so long as they are ‘honourably interred’, there is a growing trend of recognising that parties to a conflict are obligated to facilitate the return of the remains of the dead to their families when requested.[8] In fact, the Israeli government’s refusal to return the bodies of Palestinian suicide bombers to their families for religious burial was described as a violation of a fundamental norm of IHL.[9] This has also been supported by a case before the Inter-American Court of Human Rights, Bamaca Velasquez v. Guatemala, where the court held that the Guatemalan government was to exhume the body of the deceased who had died during the course of an internal armed conflict and return it to the victim’s family to bury in accordance with their traditions.[10] It has been argued that the refusal to accede to a relative’s request for the remains on the basis that the deceased has performed acts against the State could be considered to be a sanction upon the deceased’s family.[11]
The Third and Fourth Geneva Conventions oblige the detaining power to issue death certificates or certified lists containing information about the deceased person and the circumstances of death.[12] This is to ensure that the deceased does not remain unaccounted for and in order to respect the right of families to know the fate of their relatives.[13] The obligation to afford relatives information regarding circumstances of death is also significant from an investigation standpoint as it allows for confirmation that it was not as a result of violations of IHL.[14]
The Geneva Conventions also mandate that parties to the conflict bury the deceased individually and not in collective graves so long as circumstances permit.[15] Though this may be overridden by public health concerns or military considerations.
As of 2020, Indian authorities have adopted a policy of burying individuals, who they claim are militants, in unmarked graves denying their families from being able to give them proper funerals in accordance with their religious rites.[16] It is estimated that around 150 individuals have been buried in this way since the policy change.[17] Whilst it is claimed that the policy has been enacted to prevent the spread of coronavirus, it seems that the more plausible reason for it is to avoid large funerals that will lead to more anti-Indian sentiment.[18] This was all but admitted by the Inspector General of Police, Vijay Kumar, who said that the policy was to stop the spread of coronavirus but also to stop the ‘glamorising of terrorists’ and to prevent protests from breaking out at the funerals.[19] Another senior police officer stated that “[u]ltimately, when we are preventing funerals, we are preventing youth from joining militants. Once he’s a militant, he will be killed. Therefore, we are actually saving lives.”[20]
On April 6, 2020, five Kashmiris were killed in a gunfight with Indian security forces. They were then buried at an undisclosed location.[21] Indian authorities claim that dead bodies of ‘terrorists’ are brought to Srinagar, DNA samples are taken, families are given a travel pass to identify the bodies in the presence of a magistrate, and then they may participate in a reburial of the body in accordance with their religious rites.[22] However, three families who claim that their relatives were killed in the gunfight state that the authorities have not revealed where the burials took place and that no DNA samples have been collected.[23] A relative of one of the men killed in the gunfight stated that the authorities were “snatching our rights of mourning”.[24] Some of the family members have even been charged under India’s anti-terror law, the Unlawful Activities (Prevention) Act (1967) for seeking their relative’s dead bodies.[25]
More recently, on December 29, 2020, Indian army officers killed three Kashmiris and then planted weapons on their bodies to make it look like they were embroiled in a gunfight.[26] Their families have demanded that their bodies be returned but to no avail.[27] On February 5, 2021, one of the fathers symbolically dug his son’s grave in order to protest the denial of returning his body and he was subsequently charged under the Indian Penal Code, 1860 for rioting and wrongful restraint as well as under the Unlawful Activities (Prevention) Act (1967).[28] The UAPA section is punishable with a seven-year jail term and fine.[29]
India’s actions are a violation of the obligation to carry out a medical examination of the corpse to verify their identity before burial and it is also a violation of the customary rule to endeavour to facilitate the return of their remains to the next of kin. Moreover, India is also contravening the obligation to ensure that information is released concerning the deceased person and the circumstances of their death. In not knowing where their relatives are buried, and in what circumstances they were killed, India’s actions result in family members being unaccounted for and undermines the right to know of families regarding the fate of their loved ones.
There have been reports that Indian authorities have buried those killed in combat operations in mass graves. A report by the Jammu and Kashmir Coalition of Civil Society and the International People’s Tribunal on Human Rights and Justice entitled Buried Evidence stated that there were 2,700 unmarked single or mass graves spread across 55 villages in Kashmir.[30] The European Parliament even passed a resolution on the matter in which it called “on the Government of India to urgently ensure independent and impartial investigations into all suspected sites of mass graves in Jammu and Kashmir and as an immediate first step to secure the grave sites in order to preserve the evidence”.[31] The OHCHR Report 2018 further states that “[i]mpunity for enforced or involuntary disappearances in Kashmir continues as there has been little movement towards credibly investigating complaints, including into alleged sites of mass graves in the Kashmir Valley and Jammu region.”[32] A state-run human rights commission directed the government to investigate the mass graves in 2011, however, nothing was done and the commission merely repeated its directions to the government in 2017.[33]
The burial of those killed during the occupation in mass graves violates the obligation that parties to the conflict bury the deceased individually, so long as circumstances permit.[34] Whilst this may be overridden by public health or military considerations, it is not clear that any exist in this situation which would allow for its contravention.
India’s use of the coronavirus outbreak to qualify the treatment of the dead and the return of their remains is problematic. It undermines the respect owed to the deceased enshrined in IHL and violates key provisions that India owes as a party to the long-standing occupation in the region. In order to ensure that relatives of those killed in combat operations are able to bury their loved ones according to their religious rites and obtain some closure, India must identify and return their bodies. This could be done through an agreement enacted for this purpose; for instance, an agreement was reached between Israel, the Red Crescent and local Palestinian authorities to return over 30 bodies to Palestinian families who had been killed in a combat operation by Israeli forces.[35] An agreement by all parties to ensure the safe and ethical removal of the remains and their return to their families would guarantee that those killed receive a dignified burial.[36] The Kashmiri people deserve the right to bury their loved ones in accordance with Islamic rites and to know the whereabouts of their deceased family members. After all, the dead belong to those alive who claim them most obsessively.[37]
[1] David Llewellyn and H Victor Conde, ‘Freedom of Religion or Belief under International Humanitarian Law and International Criminal Law’ (2004) 12 Trinity L Rev 39, page 43
[2] Carolyn Evans, ‘The Double-Edged Sword: Religious Influences on International Humanitarian Law’ (2005) 6 Melb J Int’l L 1, page 30
[3] Kieran McEvoy and Heather Conway, ‘The Dead, the Law, and the Politics of the Past’ (2004) 31 JL & Soc’y 539, page 561
[4] Frédéric Mégret and Chloe Swinden, ‘Returning the ‘Fallen Terrorist’ for Burial in Non-international Armed Conflicts: The Rights of the Deceased, the Obligations of the State, and the Problem of Collective Punishment’, (2019) 10 Journal of International Humanitarian Legal Studies, 337, page 339
[5] See Article 15-17 of the First Geneva Convention
[6] Mégret and Swinden, (supra n 4) page 339
[7] Article 17 of the First Geneva Convention, Article 20 of the Second Geneva Convention, Article 120 of the Third Geneva Convention, and Article 130 of the Fourth Geneva Convention
[8] Ahmed Al-Dawoody, ‘Management of the Dead from the Islamic Law and International Humanitarian Law Perspectives: Considerations for Humanitarian Forensics’ (2018) 99 Int’l Rev Red Cross 759, page 764
[9] McEvoy and Conway, (supra n 3) page 555
[10] Bamaca Velasquez Case, Judgement of 25 November 2000, Inter-Am Ct. H.R. (Ser. C) No. 70 (2000) and Bamaca Velasquez Case, Reparations, Judgement of 22 February 2002, Inter-Am Ct. H.R. (Ser. C) No. 91 (2002)
[11] Mégret and Swinden, (supra n 4), page 342
[12] Article 120(2) of the Third Geneva Convention and Article 129 of the Fourth Geneva Convention
[13] Anna Petrig, ‘The war dead and their gravesites’ (2009) 91 Int’l Rev Red Cross 341, page 351
[14] Mégret and Swinden, (supra n 4), page 342
[15] Article 17(1) of the First Geneva Convention; Article 20(1) of the Second Geneva Convention; Article 120(5) of the Third Geneva Convention; Article 130(2) of the Fourth Geneva Convention
[16] Dawn, In Indian occupied Kashmir, empty grave for teenager killed by Indian forces, January 7, 2021, available at: https://www.dawn.com/news/1600203/in-indian-occupied-kashmir-empty-grave-for-teenager-killed-by-indian-forces
[17] Express Tribune, Outcry as India books Kashmiri father seeking son’s body under anti-terror laws, February 9, 2021, available at: https://tribune.com.pk/story/2283247/outcry-as-india-books-kashmiri-father-seeking-sons-body-under-anti-terror-laws
[18] Dawn (supra n 16)
[19] Ibid Dawn (supra n 16) and AA, Police refuse to return bodies of 3 Kashmir youths to families, January 19, 2021, available at: https://www.aa.com.tr/en/asia-pacific/police-refuse-to-return-bodies-of-3-kashmir-youths-to-families/2114567
[20] Scroll.in, Kashmir: Amid lockdown, militants’ bodies are buried discreetly, not handed to families, April 28, 2020, available at: https://scroll.in/article/960369/kashmir-amid-lockdown-militants-bodies-are-buried-discreetly-not-handed-to-families
[21] Ibid
[22] Ibid
[23] Ibid
[24] Ibid
[25] Express Tribune (supra n 17)
[26] Al Jazeera, Indian officer accused of planting weapons on Kashmir civilians, 28 December 2020
[27] Ministry of Foreign Affairs, Government of Pakistan, Condemnation of Indian refusal to hand over bodies of martyred Kashmiri youth, January 5, 2020, available at: http://mofa.gov.pk/condemnation-of-indian-refusal-to-hand-over-bodies-of-martyred-kashmiri-youth/
[28] Article 14, Kashmir’s Empty Graves & The Criminalisation Of A Father’s Grief, February 10, 2021, available at: https://www.article-14.com/post/kashmir-s-empty-graves-the-criminalisation-of-a-father-s-grief
[29] See section 13 (punishment for unlawful activities) of the Unlawful Activities (Prevention) Act (1967)
[30] International People’s Tribunal on Human Rights and Justice in Indian-administered Kashmir, Buried Evidence: Unknown, Unmarked, and Mass Graves in Indian-administered Kashmir, 2009
[31] European Parliament resolution on Kashmir, available at: https://www.icaed.org/fileadmin/user_upload/European_Parliament_resolution_on_Kashmir.doc
[32] OHCHR Report 2018, para.99
[33] Al Jazeera, India ordered to probe 2,080 mass graves in Kashmir, November 3, 2017, available at: https://www.aljazeera.com/news/2017/11/3/india-ordered-to-probe-2080-mass-graves-in-kashmir
[34] Article 17(1) of the First Geneva Convention; Article 20(1) of the Second Geneva Convention; Article 120(5) of the Third Geneva Convention; Article 130(2) of the Fourth Geneva Convention
[35] Jan Rothkamm, ‘Religious Freedom in Times of Conflict: An Overview of International Legislation and a Discussion of Recent Cases’ (2007) 46 Mil L & L War Rev 259, page 293
[36] TRT World, Will India identify bodies in Kashmir’s mass graves, like it did in Iraq? April 29, 2018, available at: https://www.trtworld.com/magazine/will-india-identify-bodies-in-kashmir-s-mass-graves-like-it-did-in-iraq-17044
[37] McEvoy and Conway, (supra n 3), page 539
