The tradition of sepulchre, the recognition that a human body has intrinsic emotional and moral worth to those left behind after death and thus should be handled with dignity and respect, is timeless and knows few cultural boundaries. Its basic tenets are codified in international humanitarian law (IHL) – but codification and interpretation are entirely different things. What does it mean to state that parties to a conflict should ensure that bodies are handled with “adequate care”? What constitutes adequate? What precisely does it mean that bodies should not be “despoiled”? US courts have wrestled with the rights of surviving family members – and the corresponding duties of society – for over 200 years and have slowly crafted a cohesive and comprehensive consensus body of law as it relates to sepulchre. This article presents some of the logic and rationale used by American jurists in the evolution of US common and statutory law controlling the management of the dead in the hope that it may provide some insight into the interpretation of IHL.
