International humanitarian law (IHL) and Islamic law contain complementary rules to ensure the protection of the dignity and respect of the deceased. In many ancient and modern civilizations, traditions and religions, death is a mere transitional phase between one stage of life and another. Under Islamic law, the dignity and respect that is afforded to every human being endures after their death. Handling mortal remains with respect is essential to protect the dignity of the dead and to show respect for the feelings of loved ones who are still alive.
This legal fact sheet focuses on a number of contemporary issues and challenges pertinent to the management of the dead in contemporary armed conflicts and other situations of violence and natural disasters that forensic specialists encounter in Muslim contexts. It shows that, like IHL, Islamic law has developed rules which aim at the protection of the dignity and respect of dead bodies – rules that can complement those of IHL to achieve this protection in specific Muslim contexts.
Collective burial
The general rule in Islamic law is that every dead body should be buried in a separate grave except when it might be impossible to do so, such as in cases of armed conflicts or natural disasters. In cases of collective burial, classical Muslim jurists developed nuanced rules for the interment of dead bodies of Muslims and non-Muslims in the same grave.
Quick burial
Both Islamic law and prevailing practices in Muslim societies show preference for quick burial; however, the primary Islamic sources do not state a time frame for burial. Where foul play is suspected, the burial should be postponed until the body can be examined. Where a person’s death is in doubt – for example, when someone is comatose – some jurists are in favour of waiting for a day and a night, to confirm the fact of death. Some jurists take the position that burial can be postponed until the arrival of the dead person’s relatives.
Exhumation of human remains
Under Islamic law, exhuming graves is prohibited except when absolutely necessary. Precedents indicate that Islamic law permits the exhumation of dead bodies to transfer them to their places of origin. Classical Muslim jurists also considered the exhumation of graves for (a) religious purposes (for example, performing the ritual washing of the body, offering the funeral prayer over the body, or turning the body to face the qibla (i.e., Mecca)), (b) civil liability cases (for example, exhuming graves to recover personal belongings and valuables that were buried with the body so that they can be transferred to the dead person’s next of kin, or in case a body has been buried in a usurped land and the owner has requested that the dead body be exhumed and removed from that land), or (c) considerations of public interest (for example, to build public roads or if graves have been flooded).
Autopsies
Autopsies were not unknown in Islamic history. Some classical jurists found the use of autopsies for educational purposes acceptable, while others considered autopsies impermissible in Islamic law. Significant numbers of people in Muslim societies still reject autopsies because they disfigure, and hence desecrate, the body. Where autopsies are completely rejected, exceptions are made – pursuant to a court order – when foul play is suspected and the person’s relatives want to know the cause of death.
Burial at sea
For deaths that take place at sea, classical Muslim jurists envisaged three possibilities. First, if the ship can reach harbour before the body is in a state of advanced decomposition, then burial should be postponed. If that cannot be guaranteed, the body should be tied to pieces of wood and lowered into the sea; the hope here is that the waves will take the body to the nearest shore inhabited by Muslims, who will give it a respectful and dignified burial on land. If, however, the body is likely to reach shores inhabited by enemies (who might desecrate it), it should be attached to or enclosed in some heavy material and lowered into the sea, preferably with protection against predatory marine life.
Handling of bodies by persons of the opposite sex
The handling of dead bodies by forensic specialists of the opposite sex should, in principle, follow the same Islamic principles that guide the examination of patients by medical professionals of the opposite sex. Briefly, patients and dead bodies shall be examined by medical/forensic professionals of the same sex, but in case of necessity, examination by medical/forensic professionals of the opposite sex may be acceptable when professionals of the same sex lack the necessary expertise.
It is hoped that this brief overview of the Islamic law positions on these specific questions and challenges will provide some guidance or insight into how forensic specialists can deal with such issues.
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