Introduction
In contexts of armed conflict, the treatment of the dead is not merely a logistical or forensic concern; it is also a profoundly legal, moral and spiritual issue. While both international humanitarian law (IHL) and international human rights law (IHRL) provide frameworks for the protection of human dignity, their implementation has often overlooked the intersection between religious freedom and the treatment of human remains. This is particularly significant in Latin America, where non-international armed conflicts (NIACs) have repeatedly exposed communities to the suffering caused by the impossibility of recovering, burying and honouring their dead in accordance with their cultural and religious practices. The jurisprudence of the Inter-American Court of Human Rights (IACtHR), although advanced in many respects, has shown only limited and fragmented engagement with the religious dimensions of burial practices during and after armed conflict.
This article responds to that jurisprudential and implementation gap. It examines the extent to which the Inter-American System has recognized the right to perform mortuary rites in accordance with religious beliefs, particularly in cases involving disappearance, mutilation or improper disposal of human remains. It argues that although the IACtHR has repeatedly acknowledged the anguish caused when relatives cannot recover or bury their loved ones, it has only exceptionally treated that harm as implicating Article 12 of the 1969 American Convention on Human Rights (ACHR), which protects freedom of conscience and religion. The relevance of IHL to this gap lies in the fact that its rules concerning the treatment of the dead and respect for religious practices can help identify when burial-related harm has a specifically religious dimension that warrants consideration under Article 12, rather than being addressed exclusively through other Convention rights. The article’s central claim is therefore not that the Court may autonomously apply IHL or declare State responsibility for violations of IHL as such; rather, it is that, in cases arising from armed conflict, the Court may and should interpret Convention-based obligations in light of IHL in order to specify State duties concerning the search, recovery, identification, respectful handling, return and burial of the dead.
This argument matters for two reasons. First, IHL contains the most specific rules governing the treatment of the dead in armed conflict, including rules on search, recovery, identification, respectful handling, burial and respect for religious rites. Interpreting ACHR-based obligations in conjunction with these rules enables the IACtHR to further specify the scope and content of rights that might otherwise remain articulated in broad terms in its judgments, such as personal integrity and freedom of conscience and religion. Secondly, IHL also clarifies the legal framework applicable to all parties to an armed conflict, including non-State armed groups. While the ACHR binds States as a matter of international responsibility, IHL helps characterize the underlying conduct and specify what States must prevent, investigate, redress and repair in conflict-related cases involving the dead.
The article pursues three closely related objectives through a normative and doctrinal approach. First, it reconstructs the legal framework governing religious freedom in relation to mortuary rites and the treatment and disposal of human remains, drawing on both IHL and IHRL. Second, after clarifying the IACtHR’s competence to interpret the ACHR in light of IHL in armed conflict settings, it examines a set of emblematic cases involving the handling or disposal of bodies, assessing the extent to which the Court has engaged with the religious dimension of the harm and whether an IHL-informed interpretation of ACHR-based obligations could have helped specify State duties more precisely. This analysis identifies both advances and omissions in the Court’s treatment of burial, mourning and religious harm. Third, building on these findings, the article proposes avenues for future jurisprudential development, including a more systematic use of Article 12, the Court’s reparations powers and the principle of iura novit curia, with a view to articulating clearer and more victim-responsive standards that safeguard the dignity of the dead and address the spiritual harm suffered by families and communities.
Content and scope of the duty to respect religious freedom in the disposal of corpses during armed conflicts under IHL and IHRL
The treatment of the dead is not a marginal concern of IHL but part of its basic humanitarian structure.Footnote 1 IHL imposes minimum obligations to respect the deceased in both international and non-international armed conflicts. Overall, IHL requires parties to search for and recover bodies, collect information for identification, handle remains respectfully, prevent despoilment and, where possible, ensure the dignified burial of the dead.Footnote 2 As will be developed throughout this article, a reading of these obligations in light of relevant IHRL may further entail taking into account the religious and cultural practices and beliefs of the deceased and their families. These obligations matter not only because they protect the dignity of the deceased, but also because they bear directly on the rights of families and communities who seek to mourn, bury and remember their dead in accordance with their convictions.
These obligations have traditionally formed part of IHL’s framework concerning missing persons and the right of families to know the fate of their relatives, a precept described in the drafting history of Additional Protocol I (AP I) as a “fundamental humanitarian principle”.Footnote 3 They also operate, however, as an expression of the freedom of religion or belief protected under IHL, since the dignified treatment and burial of the dead is, for many communities, a religious and not merely a humanitarian matter. Thus, although the protection of religious freedom in IHL has generally been understood in relation to the safeguarding of religious personnel,Footnote 4 the prohibition of discrimination on religious groundsFootnote 5 and the respect for religious practices,Footnote 6 the treatment of human remains also bears a direct connection to this protected right.
Freedom of religion is enshrined in all of the foundational instruments of IHRL. Instruments such as the Universal Declaration of Human Rights,Footnote 7 the International Covenant on Civil and Political Rights,Footnote 8 the ACHR,Footnote 9 the European Convention on Human RightsFootnote 10 and the Convention on the Rights of the ChildFootnote 11 affirm the fundamental nature of this right. Although each provision recognizing freedom of religion has its own specificities, it is generally accepted that the right protects both theistic and non-theistic convictions, and that the term “belief” should be interpreted broadly to encompass not only traditional religions but all forms of belief systems.Footnote 12
Additionally, freedom of religion entails the protection of various activities, including the right to retain or change one’s religion, to disseminate religious beliefs, to manifest one’s faith either publicly or privately and to educate one’s children or dependents in accordance with one’s own convictions.Footnote 13 Within the context of manifesting one’s faith, the ability to perform mortuary rituals may constitute a central aspect of religious freedom.Footnote 14
This understanding aligns fully with the views expressed by scholars regarding the treatment and disposal of human remains. Indeed, although funeral rites are shaped by a variety of social factors, religious beliefs remain a central influence.Footnote 15 Given the social significance of death, mortuary rituals frequently perform important social and communal functions. In religious communities, such practices may also be imbued with religious meaning and contribute to the maintenance and expression of a shared religious identity, even though their relationship to specific beliefs about the afterlife varies across traditions.Footnote 16 Lastly, scholars have explored how funeral rituals can play a fundamental role in the grieving process for relatives and close associates, particularly within religious communities, where participation in these ceremonies holds profound spiritual significance.Footnote 17
Under IHL, freedom of religion is safeguarded in various legal instruments. These protections may be broadly categorized into two main areas: first, the protection of religious personnel, and second, the protection of religious practices. Regarding the first category, IHL provides protection to religious personnel by prohibiting direct attacks against them.Footnote 18 The protection of religious personnel dates back to Article 2 of the 1864 Geneva Convention, which established that
[h]ospital and ambulance personnel, including the quarter-master’s staff, the medical, administrative and transport services, and the chaplains, shall have the benefit of the same neutrality [as is granted to ambulances and military hospitals under Article 1] when on duty, and while there remain any wounded to be brought in or assisted.Footnote 19
This protection, recognizing religious personnel as neutral actors, was later reaffirmed in the 1906 Geneva ConventionFootnote 20 and in Geneva Conventions IFootnote 21 and IIFootnote 22 (GC I, GC II) of 1949. Likewise, AP I extended this protection beyond military chaplains and religious personnel in the armed forces to include civilians performing religious functions.Footnote 23 In the context of NIACs, Article 9 of Additional Protocol II (AP II) provides protection for religious personnel. According to the International Committee of the Red Cross (ICRC), the term “religious personnel” refers to those “who are exclusively engaged in the work of their ministry and attached to a party to the conflict, to its medical units or transports or to a civil defence organization”.Footnote 24
Recent scholarship has emphasized that this special protection is functional rather than merely status-based. Military chaplains and equivalent religious personnel are accorded a non-combatant humanitarian status comparable to that of medical personnel because they are attached to a party to the conflict and exclusively assigned to religious duties. Their protection therefore derives not simply from their clerical or religious status, but from the humanitarian character of the spiritual and pastoral care they provide. At the same time, the breadth of contemporary religious ministry – including pastoral counselling, moral guidance and advice to commanders – may blur the boundary between religious functions and military support.Footnote 25
Regarding the protection of religious practices, there exists both a general protection and a specific one granted to prisoners of war (PoWs) and other persons deprived of their liberty. General protection is found in Rule 104 of the ICRC Customary Law Study, which states that “[t]he convictions and religious practices of civilians and persons hors de combat must be respected”.Footnote 26 According to the ICRC’s interpretation, this protection comprises two main dimensions: first, the safeguarding of personal convictions, which is not subject to limitation; and second, the manifestation of religious practices, which may only be restricted on grounds of security, public order or the rights of others. This approach is consistent with the protection afforded under IHRL.Footnote 27
In turn, specific protections exist for the religious practices of PoWsFootnote 28 and other detainees.Footnote 29 These include the right of people deprived of their liberty to practice their faith and to have access to religious personnel in accordance with their convictions.
Regarding the protection of the dead, the 1949 Geneva Conventions establish important safeguards. The contemporary scope and application of these rules have recently been examined in a thematic issue of the Review devoted to “Protection of the Dead”, including the ethical, cultural and religious foundations of such protection and its relationship with IHRL and international criminal law.Footnote 30 GC I, concerning the wounded and sick, stipulates that the dead must be buried with dignity and “if possible according to the rites of the religion to which they belonged”.Footnote 31 According to the ICRC Commentary on this provision, parties to the conflict bear an absolute obligation to ensure that the dead are buried with dignity, avoiding any practices that may compromise that dignity.Footnote 32 They are also under a non-absolute obligation to conduct the burial, where possible, in accordance with the religious rites of the deceased.Footnote 33 On this second obligation, the ICRC Commentary states that
accordingly, the phrase “if possible” is to be read as meaning “as far as possible”, demonstrating that it is not a choice between all of the rites of the religion to which the deceased belonged and none of them.Footnote 34
Thus, parties to the conflict must make every effort to ensure that the dead are buried in accordance with their religious beliefs. This same principle applies to PoWs who die in captivity;Footnote 35 in addition, regarding PoWs, cremation is permitted only for reasons of hygiene or “on account of the religion of the deceased or in accordance with his express wish to this effect”.Footnote 36 Finally, equivalent protections are extended to civilian internees who die in detention under Article 130 of Geneva Convention IV (GC IV); for civilians protected under the Convention more broadly, the obligation of respectful treatment and dignified burial derives from the duty of humane treatment in Article 27 and from the general obligation of respectful disposal of the dead implicit in customary law.Footnote 37
International jurisprudence has only partially addressed the relationship between the treatment of the dead in armed conflict and religious burial practices. As the following section shows, the IACtHR has generally approached the non-recovery, concealment or improper disposal of bodies through the lenses of personal integrity, truth and reparation, while only exceptionally treating such harm as a question of freedom of conscience and religion. A useful point of comparison appears in the International Criminal Tribunal for the former Yugoslavia’s (ICTY) judgment in Prosecutor v. Radislav Krstić. Although the case arose in the context of criminal responsibility for genocide, its relevance here lies in the fact that the Trial Chamber recognized that the concealment, mutilation and reburial of bodies after the Srebrenica massacre prevented decent burial in accordance with religious and ethnic customs and caused severe distress to the surviving relatives. In doing so, the judgment illustrates that the treatment of the dead may have a legal significance that goes beyond the physical handling of remains, because it affects mourning, dignity and the religious or cultural practices through which communities relate to their dead:
Finally, there is a strong indication of the intent to destroy the group as such in the concealment of the bodies in mass graves, which were later dug up, the bodies mutilated and reburied in other mass graves located in even more remote areas, thereby preventing any decent burial in accord with religious and ethnic customs and causing terrible distress to the mourning survivors, many of whom have been unable to come to a closure until the death of their men is finally verified.Footnote 38
Although this criminal-law framework of Krstić must not be directly imported into the Inter-American analysis, the judgment confirms a broader normative insight shared by IHL and IHRL: the mistreatment, concealment or non-recovery of bodies in armed conflict may interfere with dignity, mourning and religious or cultural practices. IHL gives this insight concrete operational content through rules on the search, recovery, identification, respectful handling and burial of the dead; IHRL, in turn, supplies the adjudicatory language of rights, including personal integrity, truth, judicial protection and freedom of conscience and religion. This difference between the two regimes helps to explain why, in armed conflict contexts, interpreting ACHR-based obligations in light of IHL may enable the IACtHR to account more fully for the specific harms underlying alleged human rights violations.
As the following section shows, particularly through the case law of the IACtHR, claims involving the mishandling, concealment or improper disposal of bodies in armed conflict settings are often addressed primarily through the lenses of personal integrity, family life or the right to judicial protection, while the religious and spiritual dimensions of the harm remain under-theorized and under-remedied. This matters because the legal framework through which such harms are characterized shapes both the duties identified by the Court and the reparations that it orders. Accordingly, examining Inter-American obligations in light of relevant IHL rules may help to articulate clearer, context-sensitive international developments that more fully account for the religious and spiritual harms experienced by victims and their communities.
The treatment of remains during armed conflicts before the IACtHR: Gaps, challenges and the overlooked role of IHL and religious freedom
Despite its robust engagement with IHL in other domains, the IACtHR has addressed the treatment and disposal of human remains in armed conflict contexts only in a limited and fragmented manner. While a handful of emblematic decisions have touched upon these harms, the Court has not developed a coherent doctrinal framework that links them to freedom of religion or belief, nor has it consistently interpreted Article 12 of the ACHR in light of IHL to specify the content of State obligations regarding mortuary rites and burial practices. This doctrinal lacuna is particularly striking given the gravity and recurrence of violations involving the dead during armed conflict and the centrality of religious and cultural rites to victims and their communities.
Interpreting the ACHR in light of IHL in armed conflict cases
This article does not challenge the jurisdictional limitation established by the IACtHR in Las Palmeras. It accepts that the Court may not determine, as such, violations of the 1949 Geneva Conventions or otherwise exercise contentious jurisdiction over IHL. Rather, the argument advanced here is that when adjudicating alleged violations of the ACHR arising in armed conflict settings, the Court may draw on relevant rules of IHL as interpretive tools to clarify the scope and application of ACHR-based obligations. Consistently with this distinction, in Las Palmeras the Court held that although it may examine other domestic or international norms in order to interpret the Convention, it may not determine an autonomous breach of the Geneva Conventions.Footnote 39
That jurisdictional limit, however, does not render IHL irrelevant. The IACtHR has repeatedly treated IHL as a relevant interpretive framework for specifying the content of ACHR-based duties.Footnote 40 In Serrano Cruz, the Court rejected the argument that the existence of a lex specialis displaced the Convention, but still emphasized that persons affected by armed conflict remain protected by IHRL as well, as by the specific protections of IHL.Footnote 41 In Mapiripán, the Court stated that even though it could not declare international responsibility under IHL as such, those norms were useful for interpreting the ACHR.Footnote 42
The IACtHR later made this methodological point even more explicit in Santo Domingo. There, it explained that using IHL as a supplementary norm of interpretation does not establish a hierarchy between bodies of law; rather, it allows the Court to observe IHL, as the specific law applicable in armed conflict, in order to apply the ACHR more precisely when defining the scope of State obligations. The Court then operationalized that approach by interpreting the State’s obligations under the ACHR in light of core IHL principles governing the conduct of hostilities, particularly the principles of distinction and proportionality, and by assessing the attack on Santo Domingo against those standards.Footnote 43 The same logic appears in Operation Genesis,Footnote 44 where the Court interpreted treaty-based obligations in light of IHL because of the latter’s specificity in NIACs, including Article 3 common to the four Geneva Conventions (common Article 3), customary IHL and the prohibition against forced displacement under Article 17 of AP II.Footnote 45 It also appears in Vásquez Durand, where the Court interpreted ACHR obligations in light of IHL in order to characterize the victim as a protected civilian and to specify the State’s duties toward civilians of the adverse party.Footnote 46
For our argument, the point is central. In cases concerning the dead and the missing, interpreting the ACHR in light of IHL makes it possible to specify duties of search, recovery, identification, respectful handling, return and burial of remains. That interpretive move does not expand the IACtHR’s contentious jurisdiction to encompass autonomous violations of IHL; it simply allows the Court to articulate ACHR-based obligations in a way that is legally accurate to the context of armed conflict. Where the evidence further shows that the impossibility of recovering or burying the dead has disrupted funeral rites linked to religion or belief, Article 12 should be examined together with Articles 5 (right to humane treatment), 8 (right to a fair trial) and 25 (right to judicial protection) of the ACHR.
Two clarifications are in order here. First, the interpretive technique we propose is systemic integrationFootnote 47 under Article 29(b) of the ACHR and Article 31(3)(c) of the Vienna Convention on the Law of Treaties – this means that the Court reads Convention obligations together with the relevant rules of IHL, without displacing the former. Second, we do not advocate for a rigid lex specialis rule of displacement; rather, where both bodies of law are applicable, IHL may serve as an interpretive reference for clarifying how Convention obligations apply to the specific circumstances of armed conflict, including with respect to the search, recovery, identification, respectful handling, return and burial of remains. This is consistent with the interpretive approach taken by the IACtHR in Santo Domingo, Operation Genesis and Vásquez Durand.
Case studies: Uneven engagement with Article 12 and IHL
Before turning to the individual judgments, two considerations must be made explicit. First, the case studies selected here are not isolated episodes of mass violence but decisions that the IACtHR itself situated, with varying degrees of explicitness, within armed conflict settings. In Plan de Sánchez, Río Negro and Las Dos Erres, the Court placed the massacres within Guatemala’s NIACs, while in El Mozote it described the facts as part of the extreme violence of the Salvadoran NIAC and a State counter-insurgency policy.Footnote 48 In Mapiripán, the Court expressly referred to a NIAC and used IHL to define the State’s protective duties toward civilians.Footnote 49 In Moiwana, the Court’s own factual reconstruction situated the 1986 attack within the context of hostilities between the military regime and the Jungle Commando in eastern Suriname.Footnote 50 Finally, in Rodríguez Vera, although the case is not usually cited as a leading precedent on conflict classification, the Court itself referred to IHL as applicable in a NIAC “such as the present one”.Footnote 51 The cases analyzed below therefore share a common threshold feature: they arise from factual settings that the IACtHR itself connected to armed conflict, even if the degree of express legal classification is not identical in each judgment.
Second, relying on the case studies below, we do not claim that the IACtHR should have declared autonomous violations of IHL. The point is that across a set of armed conflict judgments, the Court repeatedly recognized the importance of burial, mourning and beliefs, yet it has been inconsistent in translating that recognition into a distinct Article 12 analysis and into an ACHR-based interpretation informed by IHL. The cases are examined, therefore, in order to show both where Article 5 (personal integrity) has absorbed harms that also have a religious dimension and where IHL could have specified State duties more precisely.
Río Negro Massacres v. Guatemala (2012)
Río Negro remains the clearest doctrinal anchor for what we argue in this article. The case concerned a series of massacres committed against Maya Achí communities during Guatemala’s NIAC, in a context in which a number of victims remained disappeared and their relatives were therefore unable to recover their bodies or carry out the corresponding funeral rites. The IACtHR expressly held that the relatives of the disappeared had not been able to bury them or perform funeral rites according to their religious beliefs, thereby recognizing that burial-related harm implicates a violation of Article 12 of the ACHR.Footnote 52
Three elements of the IACtHR’s approach in this case deserve particular attention: (i) there is no autonomous right to “bury the dead”, but in the context of reparations, the impossibility of doing so causes severe emotional suffering to their families; (ii) emotional suffering can be considered in reparations when determining an amount for non-pecuniary compensation in the families’ favour; and (iii) the inability of victims’ next of kin to bury them or perform funeral rites in accordance with their religious beliefs was expressly considered by the Court in connection with freedom of conscience and religion under Article 12 of the ACHR.Footnote 53 The Court ultimately found a violation of Article 5(1), in relation to Articles 12(1) and 1(1).Footnote 54 The victims’ legal representatives invoked Article 12 and presented expert testimony on the spiritual significance of these rites.Footnote 55
The importance of Río Negro lies not in the recognition of a free-standing right to burial, but in the IACtHR’s acknowledgment that the non-recovery of remains may interfere not only with personal integrity but also with freedom of conscience and religion when the record establishes a sufficiently close connection between burial practices and belief. The case is equally important, however, for what it did not do. Although the facts arose in the setting of a NIAC according to the IACtHR, the judgment did not use the relevant rules of IHL to specify the underlying duties of search, recovery, respectful handling and burial of the dead. A more explicit reliance on common Article 3 and Articles 4(1) and 8 of AP II, together with the relevant customary rulesFootnote 56 on respect for religious practices and the dead, would have made the reasoning more precise without altering the jurisdictional basis of the case.
Plan de Sánchez Massacre v. Guatemala (2004)
This case concerns the massacre of approximately 268 individuals, most of them members of the Maya Indigenous community, in the village of Plan de Sánchez.Footnote 57 It occurred within the same broader context of NIACs as the Río Negro Massacres case. According to the IACtHR, there was a pattern of extreme violence perpetrated by the Guatemalan army and civilian collaborators.Footnote 58 The Court explicitly found that victims were buried in improvised, informal graves without any accompanying rituals, thereby preventing their families from performing the funerary ceremonies required by their cultural and religious traditions.Footnote 59 Moreover, the Court found that survivors of the massacre were explicitly prohibited from carrying out their religious rites.Footnote 60
Although the Inter-American Commission on Human Rights (IACHR) expressly requested a finding of a violation of Article 12 of the ACHR,Footnote 61 the IACtHR did not develop an autonomous interpretation of that provision in Plan de Sánchez. This may be explained, at least in part, by the procedural posture of the case. Guatemala made a broad acknowledgment of international responsibility that expressly encompassed violations of Articles 12(2) and 12(3), based on the failure to guarantee the right of the victims’ next of kin and members of the community to manifest their religious, spiritual and cultural beliefs. The Court accepted that acknowledgment and, accordingly, declared violations of Articles 5(1) and 5(2), 8(1), 11, 12(2) and 12(3), 13(2)(a) and 13(5), 16(1), 21(1) and 21(2), 24, and 25 of the Convention, in relation to Article 1(1). It therefore proceeded primarily to determine the legal effects of the acknowledgment and the appropriate reparations.Footnote 62 In that setting, the Court’s most detailed treatment of the religious and cultural dimensions of the harm associated with death and burial emerged in the reparations judgment, where it addressed the victims’ inability to bury their relatives appropriately, perform funeral rites in accordance with their traditions, and freely conduct ceremonies and other traditional manifestations.Footnote 63
The significance of Plan de Sánchez is also reflected in the IACtHR’s later reasoning in Río Negro. Although the earlier judgment did not contain an autonomous analysis of Article 12, it had already identified the legal relevance of the impossibility of burying victims appropriately and carrying out funeral rites in accordance with the traditions of the affected Maya community. Río Negro took up that earlier premise and gave it a more explicit doctrinal expression by linking those harms to freedom of conscience and religion under Article 12 of the ACHR. The relationship between the two cases is therefore one of continuity: Plan de Sánchez recognized the relevance of burial rites and ceremonial practices in the aftermath of mass violence, and Río Negro revisited that same concern within a more clearly articulated analysis of religious freedom.Footnote 64
In Plan de Sánchez, the IACtHR made no reference to the applicable rules of IHL, even though the facts arose in the context of Guatemala’s NIAC. That omission matters because the case presented the very elements that would have justified an IHL-informed interpretation of the ACHR – that is, the improper burial of victims, the prevention of funeral rites, and the disruption of religious and cultural practices linked to mourning. A more explicit engagement with IHL would not have altered the jurisdictional basis of the judgment, but it could have specified more clearly the content of the State’s obligations regarding the respectful handling and burial of the dead in armed conflict settings. In that sense, Plan de Sánchez illustrates an early doctrinal gap in the IACtHR’s case law: it recognized the harm caused by the impossibility of burying the dead and performing the corresponding rites, yet it did not interpret those harms in light of the relevant rules of IHL or through an explicit Article 12 analysis of freedom of religion.
Moiwana Community v. Suriname (2005)
In 2005, the IACtHR delivered its judgment in Moiwana Community v. Suriname, a case arising from the massacre of thirty-nine civilians and the destruction of Moiwana village during a NIAC between the State of Suriname and the non-State armed group known as the Jungle Commando. The attacks perpetrated by State agents displaced the N’djuka Maroon community and left the bodies of many victims unaccounted for, making it impossible for surviving family members to conduct funerary rites.Footnote 65 During the international proceedings, it was clearly established that these rites were deeply intertwined with the community’s spiritual and religious identity.Footnote 66 The inability to perform them due to the disappearance of the remains constituted a profound disruption of collective cultural and religious practices.Footnote 67
The IACtHR limited its findings to a violation of the right to personal integrity under Article 5 of the ACHR, framing the harm suffered by the community in terms of psychological anguish and trauma rather than spiritual or religious infringement. One clarification helps to situate Moiwana within the Court’s own trajectory: in Río Negro, the Court did not revisit Moiwana expressly, but it did rely on the factual and legal structure already identified in Plan de Sánchez.
Moiwana therefore marks a missed opportunity not only because neither the IACHR nor the representatives of the victims invoked Article 12, but also because the IACtHR did not deploy the iura novit curia principle in relation to Article 12,Footnote 68 a principle it has applied in other cases to identify legal violations emerging from the facts,Footnote 69 even when the facts themselves – including the six- to twelve-month duration of N’djuka funeral rites acknowledged by the Court – would have supported it.Footnote 70
This case also illustrates the limited extent to which the IACtHR engaged with the religious dimension of mortuary rites through Article 12 and the relevant rules of IHL. Although the facts arose in an armed conflict setting and the judgment itself acknowledged the centrality of funeral rites to the community’s spiritual life, the Court did not interpret ACHR-based obligations in light of the relevant rules of IHL on the treatment of the dead and respect for religious practices. In the judgment, the obstruction of mortuary rites was addressed primarily as part of the suffering protected under Article 5, without a separate consideration of whether the same facts might also engage freedom of religion under Article 12.
The added value of an Article 12 analysis, in cases where Article 5 has already been found to be violated, would have been threefold. First, it would have named the religious interest, making visible a distinct facet of the harm that matters to victims and communities. Second, it would have specified the content of State duties by reference to IHL rules on the dignified and religion-respectful burial of the dead. Third, it would have expanded the reparations toolbox, allowing the Court to order measures, such as dissemination of IHL rules on the dead, training of security forces, or support for community-based mortuary rituals, that address the religious dimension directly. Without an Article 12 finding, these measures either remain unavailable or must be squeezed into the logic of mental health reparations under Article 5.
Mapiripán Massacre v. Colombia (2005)
This case concerns a massacre that took place in 1997 in the municipality of Mapiripán, Colombia. The IACtHR expressly situated the massacre within a NIAC involving the United Self-Defence Forces of Colombia (Autodefensas Unidas de Colombia, AUC), treating common Article 3 and AP II as the applicable IHL framework and using them as an interpretive lens for specifying the State’s duties under the ACHR.Footnote 71 According to the facts established by the Court, approximately 100 members of the AUC entered Mapiripán by land and river. The AUC seized control of the municipality and proceeded to torture, dismember, disembowel and behead approximately forty-nine individuals, whose remains were subsequently thrown into the Guaviare River.Footnote 72 Only the remains of three victims were recovered.Footnote 73
Beyond the manifestly improper treatment of the remains (through dismemberment, decapitation and disposal in the Guaviare River), the judgment also reveals the consequences of those acts for the families’ ability to recover and bury the dead.Footnote 74 One witness described how, after her husband had been decapitated, she was forced to drag the body and the severed head in order to reunite them for burial.Footnote 75 In another account, a victim’s mutilated body was thrown into the river and never recovered.Footnote 76 Read together, these facts show that the treatment of the dead was not only part of the violence inflicted during the massacre but also a source of continuing harm for the relatives, who were deprived of the possibility of recovering the remains and honouring the deceased in accordance with their traditions, values and beliefs.
This aspect of the case acquires particular significance when read against the legal framework adopted by the Court itself. In its judgment, the Court situated the massacre within Colombia’s NIAC and relied on IHL as an interpretive framework for specifying the State’s general and specific obligations to protect the civilian population.Footnote 77 Yet, when it turned to the suffering of the next of kin, it addressed the impossibility of adequately honouring the dead exclusively under Article 5 of the ACHR, as it did in Moiwana.Footnote 78 The case therefore illustrates a recurring feature of the Court’s jurisprudence: burial and mourning practices are recognized as central to the relatives’ anguish, but their possible religious dimension remains under-examined even where the record itself links those practices to traditions, values and beliefs. On the facts of Mapiripán, the obstruction of burial rites thus emerged not only as part of the suffering protected by Article 5 but also as a question that could have been examined under Article 12.
The significance of IHL in Mapiripán lies in its capacity to inform the interpretation and specification of the State’s obligations under the ACHR in the context of a NIAC. The IACtHR itself situated the case within that context and acknowledged the relevance of IHL as an interpretive framework.Footnote 79 Against that background, the humanitarian rules governing humane treatment, the respectful handling of the dead and the recovery of remains could have served to define more precisely what the State was required to prevent, investigate and redress in relation not only to the killings but also to the mutilation, disposal and non-recovery of bodies.Footnote 80
Understood in those terms, an interpretation of the ACHR in light of IHL would not have entailed displacing human rights law through a strict lex specialis approach, nor declaring an autonomous breach of IHL as such. Rather, it would have involved reading Articles 5 and 25 of the Convention in light of the conflict-specific standards applicable to the treatment of the dead, so as to clarify that the State’s failures extended to the handling and recovery of the victims’ remains and to the consequent impact on the families’ ability to bury and honour the dead in accordance with their traditions, values and beliefs.Footnote 81
Concretely, an IHL-informed reading would have translated into the following standards for the Mapiripán scenario: (i) a duty to search for and recover remains with the diligence demanded by Rule 112 of the ICRC Customary Law Study, including where bodies have been deposited in rivers; (ii) a duty to handle remains respectfully, prohibiting mutilation, dismemberment and disposal likely to prevent identification, pursuant to Rule 113; (iii) a duty to return remains to families or, at minimum, to enable their recovery, in line with Rule 114; and (iv) a duty to ensure the decent and respectful disposal of the dead, as reflected in Rule 115, interpreted in conjunction with the protections afforded to religious convictions and practices under common Article 3 and Article 4(1) of AP II. These obligations do not all operate in the same manner: the prohibition on mutilating the dead under Rule 113 is categorical, while other obligations concerning the search for and recovery of remains, their return to families and their respectful disposal are formulated with qualifications relating, for example, to feasibility, the circumstances prevailing at the time or the obligation to endeavour to achieve a particular result. All of these obligations nevertheless provide binding or otherwise relevant IHL parameters for specifying the State’s obligations through ACHR-based review.Footnote 82 In Mapiripán, however, the judgment ultimately addressed that dimension only through the suffering of the next of kin under Article 5, leaving under-developed the more specific contribution that IHL could have made to defining the relevant Convention duties.Footnote 83
That conclusion is reinforced by the way in which the claim was framed and resolved before the IACtHR. Both the IACHR and the victims’ representatives argued that the right to personal integrity of the victims’ relatives had been violated, inter alia, because they had been deprived of the opportunity to bury their next of kin in accordance with their traditions, values or beliefs.Footnote 84 The Court accepted that submission and held that the personal integrity of the relatives had indeed been affected, observing that most of the victims remained missing and that the next of kin had consequently been unable adequately to honour their deceased loved ones.Footnote 85
The significance of this finding for the present argument lies not in showing that Article 5 was inapplicable, but in revealing how the religious and cultural dimension of burial-related harm was absorbed into personal integrity. In a case in which the record itself linked burial and mourning to traditions, values and beliefs, and in which the IACtHR had already situated the facts within an armed conflict setting and had treated IHL as a relevant interpretive framework, an examination under Article 12 could have complemented rather than displaced Article 5 by identifying more precisely the interference with mortuary practices as a manifestation of religion or belief. In other words, the problem is not that Article 5 was applied; it is that Article 5 alone absorbed – without expressing – the distinct religious interest at stake. A joint Article 5 and Article 12 analysis, informed by IHL, would have preserved the protection of personal integrity while naming the religious harm in its own terms.
It bears emphasis that the argument is not that every instance of burial-related anguish amounts to a violation of freedom of religion. Rather, where the evidentiary record indicates – as the IACtHR’s findings in Mapiripán suggest – that the inability to recover and bury the dead affected specifically religious or spiritual practices, the Court’s later reasoning in Río Negro offers a relevant interpretive lens for assessing that dimension of the harm. Although Río Negro post-dates Mapiripán, it illustrates how Article 12 may, in appropriate cases and read in light of the relevant IHL rules on the dignified treatment of the dead and respect for religious practices, complement the protection afforded by Article 5 by addressing the specifically religious dimension of the harm.
A further dimension deserves brief treatment. The IACtHR’s contentious jurisdiction under the ACHR concerns the international responsibility of States Parties, and accordingly, conduct by non-State armed groups does not, as such, give rise to Convention responsibility on their part; rather, such conduct may engage the international responsibility of the State where it is attributable to the State and is carried out with the support, acquiescence or tolerance of State authorities, or where the State fails to exercise due diligence to prevent, investigate or respond to it.Footnote 86 The Court has nonetheless examined the conduct of non-State armed groups as part of the factual matrix of the case, both to establish State acquiescence or tolerance (as in Mapiripán itself) and to define the scope of State due diligence obligations under Articles 1(1) and 2 of the ACHR. IHL provides the relevant conflict-specific normative framework: because its rules bind all parties to an armed conflict, including non-State actors, they supply a legal language that the Court can use, without exceeding its jurisdiction, to describe the nature of the underlying conduct.Footnote 87
Las Dos Erres Massacre v. Guatemala (2009)
In this judgment, the IACtHR confronted the atrocities committed by members of the elite Kaibil unit of the Guatemalan army in December 1982, during a counter-insurgency operation amidst the country’s NIAC. Over a period of several days, 251 civilians – men, women and children – were brutally executed. The Court found the State internationally responsible for multiple violations, including of the rights to life, humane treatment and personal liberty (Articles 4, 5 and 7 of the ACHR). In a particularly egregious act, one of the soldiers abducted a surviving child and registered him as his own, illustrating the long-term personal and legal consequences of the massacre.Footnote 88
The Court recognized that the massacre’s aftermath extended beyond physical destruction to the lasting suffering of the victims’ relatives. It affirmed that the exhumation, identification and return of remains to the families constitute not only a form of reparation but also a vital expression of the right to know the truth. Crucially, the Court acknowledged that such processes are essential because “they allow [families] to bury [their deceased relatives] according to their beliefs, as well as to close the mourning process they have been experiencing over the years”.Footnote 89 It further ordered the State to cover the expenses of transporting and burying the remains in accordance with the families’ beliefs.Footnote 90 Despite these findings, however, the Court did not engage Article 12 of the ACHR or frame the inability to perform funeral rites in terms of a violation of religious freedom, as it would later do in Río Negro. This omission is particularly striking given that the Court had already begun to articulate the spiritual and cultural dimensions of burial in the cases analyzed above (particularly in Plan de Sánchez and Moiwana), where those dimensions were recognized in the reasoning even when they did not crystallize into an autonomous Article 12 finding.
These considerations regarding forms of reparation, and the importance of ensuring, to the greatest extent possible, the burial of bodies in accordance with the beliefs of the victims’ families, could have been specified more precisely by interpreting the ACHR in light of the IHL rules governing the respectful handling, recovery and burial of the dead in armed conflict.
Furthermore, the IACtHR failed to engage with the specific issue of the treatment of the bodies of unborn children who died as a result of extreme violence inflicted upon pregnant women during the massacre. The judgment records that “the cruelty displayed by the soldiers reached such extremes that pregnant women were subjected to beatings that caused them to miscarry, including having soldiers jump on their stomachs until the foetus was expelled”,Footnote 91 and further notes the discovery of umbilical cords and placentas at the site. However, the Court addressed these acts solely within the broader category of sexual violence.Footnote 92
Such omissions hinder the development of a nuanced legal understanding of gender-based violence in armed conflict and obscure the particular impact of this form of violence on victims’ dignity, bodily autonomy, and cultural or religious beliefs concerning life, death and the treatment of remains. This is relevant because comparative literature on prenatal loss also shows that foetal or stillborn remains may be the object of funerary ritual and spiritual practice in a range of religious and cultural settings.Footnote 93 Their disposal through violent acts and their abandonment at the site of the massacre therefore implicate not only the category of sexual and reproductive violence but also the protection owed to the dead under IHL and the religious freedom dimension of mortuary practices under Article 12. To subsume such conduct exclusively under “sexual violence” obscures this additional layer of harm.
Massacres of El Mozote and Nearby Places v. El Salvador (2012)
Building upon the preceding analysis of Las Dos Erres, the IACtHR further addressed issues related to the treatment of human remains in the context of armed conflict in the Massacres of El Mozote case. This case involved a large-scale military operation conducted by the Salvadoran Armed Forces between 11 and 13 December 1981, resulting in the extrajudicial execution of hundreds of civilians, including women and children. The IACtHR found that many victims were left unburied or were hastily interred in mass graves, depriving their families of the opportunity to perform burial rites in accordance with their traditions and beliefs.Footnote 94
In its judgment, citing Las Dos Erres, the Court emphasized the consequences that the failure to recover, identify and return the bodies of the deceased may have had for their relatives’ ability to mourn and obtain closure. It noted that
the right of the next of kin of the victims to know the whereabouts of the remains of their loved ones constitutes, in addition to a requirement of the right to know the truth, a measure of reparation and, therefore, gives rise to the corresponding duty for the State to satisfy these just expectations.Footnote 95
The Court further acknowledged the cultural and spiritual significance of funerary practices, stating that
for [the deceased’s] next of kin, it is of the utmost importance to receive the bodies of those who died in the massacres, as this allows them to bury them according to their beliefs, as well as to close the mourning process they have been experiencing over the years.Footnote 96
Despite these acknowledgments, the Court did not find El Salvador responsible for violating Article 12 of the ACHR. This omission is notable, particularly given that the Court recognized the importance of religious and cultural practices in the mourning process. One possible explanation for this gap is that neither the IACHR nor the victims’ representatives explicitly alleged a violation of Article 12; however, as explained above, the IACtHR has, in other instances, exercised its authority to identify and rule on violations not specifically raised by the parties, under the principle of iura novit curia. The failure to apply this principle in the context of the El Mozote case suggests a missed opportunity to fully address the intersection of IHRL and IHL, particularly concerning the protection of religious freedoms in conflict scenarios.
Additionally, the El Mozote case is widely recognized as a landmark in the field of transitional justice within the context of armed conflict,Footnote 97 particularly because the IACtHR undertook an analysis of the complementarity between IHRL and IHL, specifically in relation to Article 6(5) of AP II concerning amnesties.Footnote 98 It is therefore striking that the Court did not engage in a similarly explicit interpretation of ACHR-based obligations in light of IHL in other areas, such as the protection of religious practices in relation to mortuary rites.
The Disappeared from the Palace of Justice (Rodríguez Vera and Others) v. Colombia (2014)
The facts of this case are framed within the events known as the seizure and recapture of the Palace of Justice, which took place in Bogotá on 6 and 7 November 1985. The seizure was carried out by the M-19 guerrilla movement, which took hundreds of employees and visitors of the Palace of Justice as hostages. The recapture was conducted by the National Army. The total number of deaths remains unclear, but ninety-four bodies were received by the Institute of Forensic Medicine.Footnote 99
The case brought before the IACtHR concerned twelve individuals (eight employees, three visitors and one member of M-19) who were subjected to torture and enforced disappearance. At the time of the events, only the whereabouts of one victim’s remains were known, having been exhumed from a mass grave. According to the Court’s findings, these individuals survived the seizure and recapture of the Palace of Justice but were subsequently disappeared by members of the National Army, who allegedly suspected them of collaborating with M-19.Footnote 100
In its analysis of the case, the IACtHR found that the personal integrity of the victims’ relatives had been violated, noting, among other reasons, “the impossibility of burying [the dead] decently in accordance with their beliefs, altering their mourning process and perpetuating the suffering and uncertainty”.Footnote 101 This consideration is particularly noteworthy given that by the time this judgment was issued, the Court had already delivered its decision in the Río Negro Massacres case, where it held that the inability to bury one’s relatives in accordance with personal beliefs constituted a violation of Article 12 of the ACHR. Notably, the Court in Rodríguez Vera cited Río Negro at several points of the judgment, but only in support of its Article 5 analysis and its reparations orders, and never for the purpose of revisiting the Article 12 inquiry.Footnote 102 Nonetheless, in the present case, the Court did not declare a violation of Article 12, limiting its finding to the violation of the victims’ relatives’ personal integrity.
In Rodríguez Vera, although the Court referred to IHL in relation to the treatment, identification and burial of corpses,Footnote 103 it did not extend that reasoning to an interpretation of ACHR-based obligations in light of IHL with respect to the protection of religious practices associated with burial and mourning. This is particularly significant because both the seizure and the retaking of the Palace of Justice were military operations, making the conflict-specific rules on the treatment of the dead especially pertinent. A more explicit IHL-informed reading of the Convention could therefore have clarified the State’s duties regarding the dignified burial of the dead and the obligation, as far as possible, to enable burial in accordance with the beliefs of the deceased and their families.
Other cases
In addition to those cases in which the improper disposal of human remains has been explicitly addressed, the IACtHR has dealt with numerous cases of enforced disappearance in the context of armed conflicts, involving victims who were members of State forces, non-State armed groups or the civilian population.Footnote 104 In cases where the disappeared persons were killed or died, such disappearances inherently entail the improper disposal of their remains.
Yet, in these cases too, there has been a lack of in-depth analysis regarding the impact of such improper disposal on the religious freedom of families and communities. The doctrinal and methodological implications of this gap are addressed in the following section.
Doctrinal blind spots and the way forward: A normative agenda for the Inter-American System
From a comparative and systemic perspective, the jurisprudence of the IACtHR reveals several limitations in the protection of rights arising from the treatment of human remains during armed conflicts. One of the most persistent gaps is the Court’s limited engagement with Article 12 of the ACHR specifically in relation to mortuary and funerary practices. Where the Court has expressly addressed the religious or spiritual significance of such practices, it has done so principally in cases involving Indigenous or other ethnically and culturally distinct communities, as illustrated by Plan de Sánchez and Moiwana. Even in those contexts, however, the religious dimension has not been addressed consistently or through an autonomous analysis of Article 12. Other cases involving the recovery, identification and burial of human remains, such as Rodríguez Vera, have been examined predominantly through rights such as personal integrity and the rights of the victims’ next of kin, without substantial engagement with freedom of religion or belief. This jurisprudential pattern risks overlooking the significance that mortuary and funerary practices may have as manifestations of religion or belief beyond the specific cultural contexts in which the Court has thus far expressly recognized their spiritual dimension.
Equally concerning is the Court’s under-utilization of norms derived from IHL. Despite the existence of well-established obligations concerning the respectful treatment, identification and burial of the dead, the IACtHR has rarely invoked these provisions to inform or expand its interpretation of State duties under the ACHR. This omission not only limits the legal tools available to the Court but also represents a missed opportunity to build normative coherence between IHL and IHRL.
As the cases analyzed above show, and as the IACtHR has done in other areas such as enforced disappearance, ACHR-based obligations in armed conflict settings may and should be interpreted in light of the relevant rules of IHL, including those requiring the dead to be treated with dignity and, as far as possible, buried in accordance with their religion or beliefs. In such situations, IHL provides the conflict-specific rules needed to give concrete content to otherwise abstract Convention obligations. For that reason, an interpretation in light of IHL is not merely beneficial but methodologically useful, particularly where it enables the Court to articulate duties that are more responsive to the realities of armed conflict and to the needs of victims and their communities.
Another blind spot concerns the IACtHR’s failure to name the religious and mortuary dimension of the violence inflicted upon pregnant women and their unborn children in armed conflict settings. As the Las Dos Erres case illustrates, the treatment of foetal remains is at once an issue of reproductive violence, of respectful treatment of the dead under IHL, and of religious freedom under Article 12. By addressing such conduct almost exclusively under the first heading, the Court has rendered foetal remains visible only as evidence of sexual violence and invisible as dead bodies deserving of ritual, a framing that, while important, is incomplete and that forecloses both an IHL-informed specification of State duties and an autonomous Article 12 analysis of the harm suffered by families and communities.
As shown above, the Court has already developed an IHL-informed interpretation of the ACHR in several areas, including amnesties, the use of force and enforced disappearance. The cases analyzed in this article reveal, however, that this interpretive practice has not yet been extended consistently to the specific terrain of mortuary practices and religious freedom. Although the Court has repeatedly recognized the anguish caused by the non-recovery or improper handling of remains, that recognition has rarely translated into an Article 12 analysis informed by IHL. This is the doctrinal gap that the present article seeks to expose: without such an interpretive move, the legal recognition of dignity, spiritual identity and religious harm remains incomplete.
Notwithstanding these limitations, the IACtHR has taken important steps in acknowledging the need for proper burial practices, especially insofar as they contribute to survivors’ processes of mourning, truth-seeking, and reparation. However, it has not yet articulated a clear doctrinal framework that systematically incorporates religious freedom and IHL. Moving forward, the Inter-American System has a concrete opportunity to correct this long-standing normative blind spot. That opportunity is not merely doctrinal: the Court’s current contentious and supervision dockets continue to include cases arising from the legacies of armed conflict in Colombia, Guatemala and El Salvador,Footnote 105 while the broader institutional environment in Colombia remains especially receptive to doctrinal refinement, given the continuing legacy of the Truth Commission within the Comprehensive System for Peace, the Special Jurisdiction for Peace’s (Jurisdicción Especial para La Paz, JEP) formal cooperation with the IACHR, and the IACtHR’s 2024 compliance supervision hearings held at the JEP.Footnote 106
Considering both its continuing relevance and the need for further doctrinal development, we argue that the Court should engage more explicitly with Article 12 in cases involving the improper treatment or disposal of human remains, recognizing that the protection of mortuary and funerary practices as manifestations of religion or belief is not confined to particular ethnic or cultural contexts. In situations legally classified as armed conflicts, the Court should also interpret the relevant ACHR rights, where appropriate, in light of applicable IHL rules concerning the treatment of the dead, thereby giving more concrete content to States’ Convention obligations while preserving the distinct normative framework and temporal scope of IHL. Where cases submitted to the Court involve violence affecting pregnant women and their unborn children, the Court should also assess the religious dimension of such harm, where relevant, as well as its implications for other applicable Convention rights, including the right to be free from cruel, inhuman or degrading treatment. Finally, the Court should make appropriate use of the principle of iura novit curia where the facts properly before it disclose a potential violation of freedom of religion or belief, even when the parties have not expressly relied on Article 12.
By integrating these elements into its jurisprudence, the IACtHR would advance toward a more robust and coherent interpretive model – one that recognizes the complementary relationship between human rights law and IHL, honours the religious and spiritual dimensions of justice, and strengthens its protective mandate in response to the most grievous consequences of armed violence.
Protecting the dignity of the dead in funeral rites: A two-way opportunity to strengthen the protection of religious freedom in IHL and IHRL
In other words, for many of them, it is still an open wound; it continues to be an active grieving process as a result of not having been able to perform that rite with our deceased in order to give them an honorable burial.Footnote 107
The preceding statement was made by expert witness Rosalina Tuyuc in the Río Negro Massacres case before the IACtHR, and it underscores the significance of the issue addressed here. The ability to carry out funeral rites in accordance with one’s beliefs upholds the dignity of the dead and helps to alleviate – if only partially – the pain of their families and communities.
Recalling this significance is essential, because in cases as devastating as those analyzed in this article, where children, pregnant women and the general population were massacred by the hundreds, the protection of the victims’ religious beliefs can easily be overlooked. Upon reading the cases heard by the IACtHR, one may ask: why focus on funeral rites when what is being judged are massacres, rape, torture and enforced disappearances? The answer to that question lies in the various normative frameworks that protect the human person.
First and foremost, given that these are cases related to armed conflict, the use of IHL is essential. The principal objective of IHL is to humanize warfare – to prevent such degradation that there is no path back to humanity. For this reason, it is significant that a normative framework designed to regulate one of the most dehumanizing contexts includes specific protections for religious practices and mortuary rituals. The existence of rules safeguarding religious practices, including those requiring the respectful and honourable disposal of the dead and, in international armed conflicts (IACs), providing that burial should, if possible, take place according to the rites of the religion to which the deceased belonged, is clear evidence of the importance of these matters.Footnote 108 The qualification “if possible” does not confer an unrestricted discretion on the parties, because where observance of the relevant religious rites is possible, they are required to act accordingly.
As demonstrated by the cases analyzed in this article, the undignified treatment of the remains of the deceased leaves deep scars and is raised by victims themselves. As the expert witness in Río Negro explained, this is a matter of dignity and of coping with grief. Consequently, it will be improbable, or at the very least extremely difficult, to move towards genuine peace if the wounds left by the dead and the disappeared remain unaddressed. IHL addresses this issue through two related but distinct sets of protections. First, it requires the respectful treatment and disposal of the dead; in IACs, the applicable Geneva Convention provisions further require, where possible, burial in accordance with the religious rites of the deceased. Second, IHL protects the religious convictions and practices of surviving family members. In IACs, Article 27 of GC IV expressly protects the religious convictions and practices of protected persons, while customary Rule 104 extends protection for the convictions and religious practices of civilians and persons hors de combat in both IACs and NIACs. These protections may be relevant to the ability of families to receive remains and perform burial rites in accordance with their religious practices, although the legal position concerning the return of remains is not identical in IACs and NIACs.
For its part, IHRL has consistently recognized freedom of religion or belief as a fundamental guarantee across the principal universal and regional human rights instruments. As noted at the outset, religion and belief may profoundly shape funeral rites, particularly through beliefs concerning death, the afterlife and the relationship between the living and the deceased. While IHRL does not recognize an autonomous right to burial as such, where funeral or mortuary rites constitute a manifestation of religion or belief, respect for those practices falls within the protection afforded by freedom of religion or belief.
It is particularly striking that despite the IACtHR’s extensive jurisprudence acknowledging the importance of burial in accordance with one’s beliefs, the Court has only once undertaken an analysis – and a rather limited one at that – of a violation of the right to religious freedom arising from the failure to respect such funeral rites. On the contrary, the Court has regularly recognized the importance of these rites in relation to the protection of the personal integrity of the relatives of the deceased. Accordingly, the effects of undignified treatment of human remains on the mental health and mourning process of the families have been acknowledged, but not the spiritual dimension of these experiences for the relatives and communities of the deceased.
While each legal regime has made important advances, the complementary application of IHL and IHRL could strengthen the protection of individuals in armed conflict settings, particularly with respect to the religious and mortuary protection of the dead and their families. Such complementarity should, however, be assessed on a case-by-case basis. This is not a claim that complementarity is always and uniformly beneficial; rather, it is a claim about the specific configuration of rules and harms that this article has mapped.
Thus, three key conclusions emerge from the analysis presented in this article. First, IHL and IHRL provide normative protection for religious freedom in relation to mortuary practices. In both bodies of law, the legal frameworks themselves contain specific provisions relating to religious freedom; in particular, IHL – through the Geneva Conventions, the Additional Protocols and customary norms – includes explicit rules protecting religious beliefs in the treatment and disposal of the dead.
Second, given that IHL is the normative framework that most extensively develops the protection of religious beliefs in relation to funeral rites, it would be highly beneficial for human rights tribunals, such as the IACtHR, to take these regulations into account in order to better understand the content of human rights norms in armed conflict settings.
Third, although IHL is applied and interpreted by national courts, international criminal tribunals, the International Criminal Court and other judicial bodies, no single international tribunal has general and exclusive jurisdiction over its interpretation and application. In this decentralized framework, the engagement of human rights courts with IHL can make an important interpretive contribution. As demonstrated in this article, the IACtHR has had opportunities, in cases arising from armed conflict, to interpret ACHR-based obligations in light of relevant IHL rules concerning religious practices and mortuary rites. In doing so, the Court can contribute to clarifying how those rules inform the protection of individuals under the ACHR, without determining violations of IHL as such.
To illustrate, IHL establishes a differentiated set of obligations concerning the treatment of the dead. Customary Rules 112, 113, 115 and 116, applicable in both IACs and NIACs, regulate, respectively, the search for and collection of the dead, protection against despoliation and mutilation, respectful disposal, and the recording of available information with a view to identification. In IACs, the Geneva Conventions further require honourable burial and, where possible, burial according to the rites of the religion to which the deceased belonged. In NIACs to which AP II applies, Article 8 of AP II requires the dead to be decently disposed of, and the ICRC Commentary explains that they are entitled to receive their last respects, including, where required, burial following a religious service. As regards the return of remains, the legal position differs: Rule 114 is established as customary law in IACs, whereas in NIACs the ICRC identifies a growing trend towards recognition of an obligation to facilitate their return to families upon request. The ICRC, in its Commentary on GC I, has nevertheless described return to families as the preferred option, insofar as it enables the deceased to be buried or cremated in accordance with relevant religious beliefs and practices.Footnote 109
Against this background, the cases of Plan de Sánchez (Guatemala), Mapiripán (Colombia) and Moiwana (Suriname) offered the IACtHR concrete opportunities to clarify, as a matter of Convention interpretation informed by applicable IHL, what Article 12 and related ACHR obligations require where the treatment of the dead implicates religious beliefs or practices. Likewise, in cases such as those before the IACtHR – which has the power to order reparations and guarantees of non-repetitionFootnote 110 – its jurisprudence could include measures aimed at disseminating the relevant IHL norms. In doing so, the Court would contribute to the broader universalization of IHL application on this matter.
In sum, the protection of religious freedom in the context of funeral rites during armed conflict requires that ACHR-based obligations be interpreted in light of the relevant rules of IHL. In Latin America, the IACtHR plays a crucial role, given both its influence in the region and the continuing presence of active armed conflicts. Thus, the knowledge and application of these norms will not only contribute to the development of IHL and IHRL but will also ensure protection for victims of armed conflict by respecting the dignity of the dead and aiding the healing of their families and communities.
We conclude that violations of religious freedom in the context of armed conflict have often remained legally and symbolically invisible – not, as we have shown, because the IACtHR has ignored the underlying harms, but because, with the notable exception of Río Negro, it has generally absorbed them into the right to personal integrity without naming the distinct religious and spiritual interests at stake. The argument of this article is that the IACtHR is both competent and well positioned to correct this pattern. Doing so requires three concrete doctrinal moves: first, a systematic interpretation of Article 12 of the ACHR in armed conflict cases through the lens of the applicable IHL rules on the search, recovery, respectful handling and burial of the dead, as well as the relevant rules and emerging standards concerning the return of remains to families; second, the deployment of iura novit curia where the evidentiary record – as in Moiwana, Mapiripán and Rodríguez Vera – shows an interference with mortuary rites linked to belief, even absent an express pleading under Article 12; and third, the articulation of context-sensitive reparations and guarantees of non-repetition that include the dissemination of IHL standards on the dignified treatment of the dead, the training of security forces, and support for community-based mortuary practices. Read against the backdrop of ongoing transitional justice processes in the region, the IACtHR’s engagement with this agenda would contribute not only to the protection of victims in their religious dimension but also to the reinforcement of implementation in the countries bound by the ACHR.
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