Kashmir has seen a new trend in past few weeks about dead bodies of local militants killed in encounters with security forces, being denied to their families. Four to seven militants of South Kashmir were recently buried by the forces in far flung areas, away from their families, hometowns, their own graveyards in some unmarked graves in North Kashmir, 100 kilometers away. The security grid came up with reason of avoiding gatherings at the funerals of militants to avoid possible threats of covid-19 spread. True, that the state has this duty to protect the health of people at large, but on the same lines it has an obligation to respect the rights of the dead, that is to give their families possession of dead bodies or at least let them participate alone in their funerals. Two militants killed in Shopian gunfight on 17 April, both local militants, confirmed by their families to have called them soon before encounter were however buried in North Kashmir’s Baramulla against the wishes of their family. The question is if bodies can be buried in North Kashmir to avoid gatherings, why such a powerful and able security establishment cannot bury them in their own villages in the presence of their family members only, which obviously won’t be much to pose a threat to the society in the view of present pandemic.
The human life, which extends till burial, is the precious thing to be protected and progressed in a dignified comportment from cradle to the grave irrespective of their part and side in the conflict on the humanitarian basis governed by international Humanitarian law. Every country has to respect its subjects even those who go against it for howsoever different reasons, and that’s what the standards of the international Humanitarian law set out for the countries. The recognition of “equal status of combatants” forms one of the underlying foundations of modern international law of armed conflict, popularly known as humanitarian law. The Citizens of the country under Article 21 of the constitution of India have right to have a dignified life. However, the right is not narrow and has been judicially expanded by the Supreme court in the case of Parmanand Katara, Advocate v. union of India & anr.(1995)3 SCC 248 where in the Apex court held that 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…..and word person under Article 21 would include a dead person… to treat his dead body with respect, which he would have deserved, had he been alive subject to his tradition, culture and the religion which he professed”.
Therefore, in the light of the judgment, the religion professed by Kashmiri militants would demand their bodies be given to their families for burial as per religious practice in Kashmir and practice as such has force of law. The position is clearer that the families have right to get possession of the dead bodies under Article 25 of the constitution of India as part of right to freedom of religion. True, the restrictions are put in place for public health but again the state has a role to play. Therefore, if a family is denied possession of the body, the state is committing the violation of basic fundamental rights which can be justified in no case.
War is hated by everyone, violence breeds violence but when there is already existence of an armed conflict in any area, one has to respect the obligations cast upon it by the established system of laws, laws governing war and peace situations, referred to as humanitarian law. However, for humanitarian law to apply one has to establish the existence of armed conflict. Humanitarian law is applicable in international Armed Conflict (IAC) that is when there is hostility between two or more sovereign states and besides inter-state conflict. IAC is also applicable in the case of an “occupation” even if the occupation has no armed resistance or even in cases where the occupying force is engaged with non state groups. The humanitarian law also applies to non-international armed conflicts (NIAC) that is where there is violence between armed groups and the state. Thus in the light of the above principles, humanitarian law is applicable in Kashmir and as such is to be given respect by both the parties. India is a party to Geneva Conventions, which under Article 16 provides “Each party to the conflict shall facilitate the steps taken ….to protect (the killed) against…ill- treatment”. Ill treatment would in present case mean depriving a person from his religious rights and practice that is the possession of his dead body to his family.
Article 34(1) of the 1977 Additional protocol i provides: “The remains of persons who have died for reasons resulting from hostilities…shall be respected”. The position is clear that by not showing respect to the dead body is to commit breach of international law.
The international criminal Court (ICC) (1998) Statute under Article 8(2)(b)(xxi) and (c)(ii) provides “ the personal dignity committing outrageous upon personal dignity” constitutes war crime in both international and non-international armed conflict. Therefore, the countries have an obligation to ensure protection of the last rites of the dead persons, for the term dignity doesn’t mean dignity during lifetime only but even after death and includes the religious practices of burial which in present case means handing over of bodies to their respective families.
The rights of the human body are very important, particularly of the dead irrespective of their sides. The human conscience demands that last rites of dead bodies be respected and fulfilled. The state has to ensure that last rites are performed according to personal laws, rituals and traditions as are guaranteed by the rights enshrined in the constitution of India. While the role of the state can’t be ignored in maintaining law and order in these critical crisis of pandemic it is also to be emphasized that the security establishment has to work in accordance with the norms of Constitutional and international standards while dealing with the dead bodies of the militants.