AS/Mig/Inf (2024)15

18 June 2024

Original: English

Committee on Migration, Refugees and Displaced Persons

Reflecting on the dignity of the deceased

Contribution in the framework of preparation of the report “Missing migrants, refugees and asylum seekers: a call to clarify their fate” (Doc. 16037),

Rapporteur: Mr Julian Pahlke (Germany, SOC)

1.         The question revolving around the legal obligations associated with the dignity of the deceased raises the issue of “the last rights”.[1] The Minnesota Protocol posits that “[t]he recovery and handling of human remains – the most important evidence at a crime scene – require special attention and care, including respect for the dignity of the deceased and compliance with forensic best practices.”

2.         The notion of dignity is a cornerstone of the international human rights architecture. Pr. Dupré highlighted in her research the significance and potential of human dignity for enhancing the rights of dead and missing migrants.^[2] The concept of human dignity primarily stems from Article 1 of the Universal Declaration of Human Rights (UDHR), which states that “all human beings are born free and equal in dignity and in rights”. It is part of customary international law (ius cogens) as embedded in the prohibition of torture and of inhuman and degrading treatment.^[3] In European law, human dignity has become the foundation of human rights and democracy.^[4] It is the European Union’s first foundational value (Article 2 of the Treaty on the European Union (TEU)), and the core dignity rights are enshrined in the EU Charter (Article 1-5). While the European Convention on Human Rights did not codify human dignity, the European Court of Human Rights has made explicit that its commitment to protecting “human dignity and human freedom” is a question of “civilisation” and “the very essence of the Convention”.^[5] Human dignity is firmly embedded in its case law under Article 3 (prohibition of torture, inhuman and degrading treatment and punishment) and Article 4 (prohibition of forced and compulsory labour and of servitude and slavery).

3.         Human dignity has become law’s tool to capture and protect what it means to be a human being in a democracy. It has three important features: it is inherent (it is enough to be born); it is universal and equally shared by all human beings; and it enjoys the strongest protection (“inviolable” under Article 1 EU Charter, and absolute and non-derogable in the case law of the Court). Consequently, human dignity arguments are especially effective for protecting people at the margins of society and law, and people who are often not popular in the current political context and who tend to be invisible and voiceless.^[6] It is particularly suited to promoting the rights of migrants, refugees and asylum seekers.^[7]

4.         While human rights law has been developed for the living, treaty law does not restrict dignity to them.^[8] How and why people die goes to the heart of humanity.^[9] As a result of systemic failures in relation to, or breaches of, absolute prohibitions, (missing) migrants, refugees and asylum seekers often die inhuman deaths. Human rights law cannot give them their lives back, but it can seek to give them their humanity back postmortem. For instance, and pending further elaboration, when anchored in human dignity the duty (for example) to locate their remains and identify them becomes universal in principle. Further, this duty might be formulated in strong terms reflecting human dignity’s outstanding status in human rights law. Finally, relying on human dignity means that actioning the rights of the deceased might no longer be restricted to “their relatives”. This might become an objective right on the wider ground of humanity, as what is at stake is the right of all human beings to belong to the “human family” (UDHR) and, when dead, to have their existence formally acknowledged and remembered.

5.         Ultimately, Pr. Dupré stresses that the argument of human dignity is a powerful reminder that, regardless of borders, we all share the same humanity. Beyond promoting accountability, exploring the actual and potential routes offered by human dignity also encourages timely reflection on the quality of the “human family”, “civilisation” and democracy^[10] that we live in.

6.         In 2014, the Court condemned Latvia for violating Article 3 in two cases involving the emotional suffering of families in the context of the removal of a deceased’s tissues for transplantation.[11] The supervision of the execution of these cases was closed in 2018 because the Latvian authorities introduced changes in their national legislation allowing the closest relatives to inform a medical institution about the wishes of the deceased person expressed during their life, in the context of a procedure possibly involving the removal of organs and tissues. In this case, the jurisprudential link is established during the lifetime of the person having expressed their wish, but it is interesting to note that the respect of such a wish as to how the body should be treated extends also after death.

7.         The emergence of “forensic humanitarianism” (see the work of Pr. Claire Moon) over the past 30 years seems to have laid the ground for conceiving of the deceased, not only of the living, as subjects worthy of humanitarian concern and intervention. International humanitarian law requires that the remains of those who have died during armed conflict be properly managed and their dignity protected.[12]

8.         By referring to the “last rights” in her report on summary executions and mass graves in 2020, and by referring to the work of Pr. Moon, the UN Special Rapporteur on Extrajudicial, summary and arbitrary executions (2016-2021) recognised that such rights may exist. In general terms, the Special Rapporteur used the concept of what constitutes “a good resting place”, referring to the understanding of what may be considered as a “good death” and a “bad death” as documented across the globe through research in anthropology.[13]