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Dictionary of Gross Human Rights Violations
Forensic Evidence in International Criminal Trials
Unidentified genocide victim - Photo by Kjell Anderson
By - Erin Jessee and Kjell Follingstad Anderson
Erin Jessee is a forensic archaeologist who specializes in the investigation of mass human rights violations. She is currently working on an interdisciplinary PhD in Humanities at Concordia University in Montreal, Canada, which combines her forensic archaeological expertise with oral historical, anthropological and legal approaches to the study of genocide. Her ongoing fieldwork project examines the cultural meaning inherent in certain forms of symbolic violence commonly observed during genocide. To this end, she is spending the next year conducting research in Rwanda and Bosnia.
Kjell Follingstad Anderson is the executive director of Shared Humanity.
Forensic science refers to scientific endeavours to gather and analyse evidence for legal purposes. Forensics has five central functions in international human rights investigations: 1) humanitarian – the identification of remains for the families of victims, 2) documentation – to establish an irrefutable historical record of atrocities, 3) legal – to gather evidence for an international criminal trial or human rights complaint, 4) preventative – to deter future human rights violations by showing that criminals will be held accountable,[1] and 5) moral – to express a basic dignity for victims and for human life by demonstrating that the victims’ deaths were not in vain.[2]
The forensic sciences most relevant to international criminal trials include: forensic anthropology (the application of physical anthropology to crime, for example the examination of skeletonised remains), forensic biology (the study of serological and DNA evidence), forensic computing (the analysis of evidence stored on computers and in digital media), forensic pathology (the application of medicine and pathology to crime, generally in order to determine cause of death or injury), clinical forensic medicine (the examination of living patients for forensic evidence), forensic psychiatry (the study of human behaviour as it relates to crimes), forensic archaeology (employing archaeological techniques to examine buried remains and objects), forensic entomology (the examination of insects in and around human remains to make determinations about time of death and other factors), forensic odontology (forensic investigations relating to teeth), forensic toxicology (the presence and effects of drugs and poisons), forensic firearms examination (the use of firearms), questioned document examination (the study of evidence relating to handwriting and printmaking) and forensic accounting (the study of accounts pertaining to real or anticipated litigation).[3]
Forensic pollen analysis (a sub-field of forensic archaeology) was used in Bosnia to link reburied victims to their original place of burial. Pollen and soil mineralogy was taken from inside the graves, from the skeletal cavities of victims, and from the areas surrounding the primary and secondary burial sites. The pollen was then cleaned and analysed to make a match (for example wheat pollen has distinct characteristics and is located in the primary burial site but not the secondary, yet it is found in the victim’s new grave). This technique played an important role in several cases including the case of Radislav Krstic.[4]
The collection and analysis of forensic evidence plays a crucial role in the attribution of guilt at international criminal courts and tribunals. Forensic science was used extensively to investigate atrocities such as the forced disappearances in Argentina between 1976 and 1983, the war crimes and crimes against humanity of the Bosnian war of 1992-1995, and the massacres in East Timor in 1999. Yet, the process of forensic investigations is often very difficult for the families who are seeking closure. The remains of their loved ones may be exhumed without reburial for years. As a result of such factors, local survivors may to seek to repatriate human remains without the aid of international or domestic forensic teams, as in the case of Cambodia.
Craig Etcheson found that in Cambodia today there are few undisturbed mass graves resulting from the atrocities perpetrated by the Khmer Rouge because the survivors were so actively involved in exhuming the human remains. After the fall of the Khmer Rouge, Buddhist monks often encouraged people to bring them the skeletal remains of the unknown dead so that they could perform the necessary rituals and release the spirits of the victims from purgatory. In other instances, grave robbers opened a number of mass graves in order to search for valuables. Finally, government exhumations conducted by both Cambodian and Vietnamese officials in the 80s and 90s under less than ideal circumstances have contributed to the destruction of evidence. [5]
Another case study is Srebrenica, where about 7 500 men and boys were massacred in 1995. The ICTY dispatched a forensic team to conduct an investigation in 1996 and unearthed and autopsied five hundred seventeen remains.[6] The ICTY (like other international tribunals) had limited resources and was only concerned with general classification of the remains (by factors such as cause of death and ethnicity) rather than full identification.[7] Once the ICTY investigation was complete, responsibility for the remains was handed over to local authorities. Local authorities were overwhelmed and so they first stored the bodies in a railway tunnel, then in containers in a parking lot, until pressure from the victims' families brought outside aid and proper identification and reburial.
Remains of genocide victims in Nyamata, Rwanda with a weapon. Photo by Kjell Anderson.
There are also particular challenges to the use of forensic evidence in international criminal trials. Firstly, international criminal trials (and investigations) often occur years after the crime has been committed. This makes the collection of forensic evidence extremely difficult. For example, after several years, decomposition will have destroyed much of the soft tissues and this can make identification quite troublesome.[8] In general, identification may be made through either: visual identification of the remains (by family members or acquaintances), circumstantial evidence (matching ante-mortem information with other data gathered through the investigation), or through DNA.[9] It is recommended to use more than one method and the worse state that the body is in the greater the importance of DNA identification.[10]
Secondly, the nature of international criminal law is such that investigators are heavily reliant on the cooperation of the states in which the investigations must be conducted. If these states are not cooperative, criminal investigations and the collection of forensic evidence become very difficult or even impossible. Likewise, the cooperation of the conflicted parties in maintaining a ceasefire in regions where forensic investigations are taking place is of similar importance given the realization that the UN and most internationally active forensic teams will not pursue investigations in areas where the relative safety of their investigators and the integrity of the investigation cannot be ensured.
Thirdly, in international criminal law forensic investigations are often undertaken in distant locations (far from where the court itself is located). This entails additional costs and logistical difficulties. Moreover, there is often a lack of local forensic expertise, particularly in the developing world, and therefore international experts must be located and brought to the investigation site at great expense.
Fourthly, the unique nature of international crimes also can cause further technical difficulties in the analysis of forensic evidence. Foremost among these is the fact that the perpetrators of mass human rights violations are often aware that their actions are going to attract international attention and therefore attempt to obscure the crimes by (a) creating clandestine primary, secondary, tertiary, etc mass graves containing highly commingled remains[11] (b) using natural features, such as caves, to make exhumation exceptionally difficult[12] and (c) burning, adding chemical agents to speed decomposition and destroy evidence, and/or adding foreign materials such as scrap metal, tires, and other debris in order to confuse reconnaissance efforts and make exhumation hazardous and difficult.[13] The identification of individual remains in these circumstances can be a complex and massive undertaking that requires the expertise of a wide range of forensic and public health professionals.
Fifthly, forensic experts are often asked to focus on the recovery of certain types of evidence. Most forensic investigations are concerned with revealing the overall criminal context of the crime scene. This is generally limited to recovery of statistical aspects of the atrocities, including the recognition of patterns within the evidence, comparing differences between mass graves resulting from related atrocities and highlighting rare experiences or events.[14] Likewise, the formulation of a demographic profile based on age, sex, ancestry, and stature is potentially important for determining the presence of biological group characteristics and thus is often included among the responsibilities of the forensic team.[15]
Meanwhile, rare but nonetheless important evidence pertaining to the cultural meaning inherent in certain patterns of execution or body disposal is generally ignored because it is considered too interpretive and therefore unscientific, despite the fact that such patterns of evidence could be indicative of the criminal intent of the perpetrators. For example, during the Rwandan genocide of 1994 Hutu extremists such as Leon Mugusera encouraged perpetrators to use local rivers to dispose of the dead bodies of their Tutsi victims. Forensic evidence pertaining to this tendency could be indicative of the Hutu extremists’ genocidal intent due to the fact that such patterns of violence betrayed the Hutu extremists’ understanding of their Tutsi victims as invading Hamites whose dead bodies should be returned to Ethiopia.[16]
Finally, the quality of evidence being recovered from international forensic investigations is an ongoing subject of debate with the community of forensic professionals. At present, there are no international standards or protocol for the investigation of crime scenes resulting from war crimes, and genocide and other crimes against humanity. This is a concern for most forensic experts, who acknowledge that while some organizations, such as Physicians for Human Rights, employ very experienced and qualified personnel, other organizations are forced due to insufficient funding and international attention to conduct exhumations using poorly trained personnel, and without the necessary equipment and time to complete their work in good standing. Such factors can quickly compromise the reliability of the resulting evidence, by allowing for poor on-site security, missed evidence in the field and the lab, and errors in the chain of custody, among others.
When deciding whether to admit any evidence at the International Criminal Court (ICC), the Judges must weigh the probative value of the evidence against the rights of the Accused. This is fundamental to maintaining the equality of arms principle – that the defence and the prosecution must be balanced in terms of the resources and power that they have in the trial (including pre-trial investigations). The same considerations apply to forensic evidence: if there is any doubt as to the merit or fairness of the evidence the value of the evidence (in proving the case) must be weighed against prejudicing the rights of the Accused. Nonetheless, forensics will continue to play a crucial evidentiary role in international criminal trials, and the relatively new domain of international criminal forensic investigations will concomitantly mature in the coming years.
[1] R. Kirschner and K. Hannibal, “The application of forensic sciences to human rights investigations”, Medicine Science and Law, Vol. 13, 1994, p. 453.
[2] W.D. Haglund. “Recent Mass Graves: An Introduction” in Advances in Forensic Taphonomy: Method, Theory and Archaeological Perspectives edited by William D. Haglund and Marcella Sorg. Boca Raton: CRC Press, 2002: 245.
[4] Peter Wood, “Pollen helps war crimes forensics,” BBC News, http://news.bbc.co.uk/1/hi/sci/tech/3640788.stm, accessed May 17, 2007.
[5] Etcheson, Craig. After the Killing Fields: Lessons From the Cambodian Genocide. Westport:
Praeger, 2005.
[6] Rachel Shigekane, “Balancing the Needs of Families and the Needs of International Criminal Tribunals in Forensic Investigations,” Reports from the Field, Vol. 9, No. 3 (Spring 2003).
[7] Shigekane.
[8] Alex Kirasi Olumbe, Mahomed A. Dada, and David J. McQuoid-Mason, Handbook of Forensic Medicine and Medical Law in Kenya, Kenya: Independent Medico-Legal Unit, 2000, p. 72.
[9] Stephen Cordner and Helen McKelvie, “Developing standards in international forensic work to identify missing persons,” IRRC,Vol. 84, No. 848, December 2002, p. 880.
[10] Cordner and McKelvie 880.
[11] Erin Jessee and Mark Skinner. “A Typology of Mass Grave and Mass Grave-related Sites” Forensic Science International 152, 1 (2005): 55-59.
[12] Eva Elvira-Klonowski. “Exhumations in Bosnia and Herzegovina: Caves as Mass Graves, From Recovery to Identification,” in Forensic Anthropology: Case Studies From Europe edited by Megan B. Brickley and Roxana Ferllini. Springfield: Charles C Thomas Publisher Ltd., 2007: 183-202.
[13] Mark Skinner and Soren Blau “A Proposal to Investigate an Alleged Mass Grave at Tibar, Timor Leste (East Timor) Resulting From the Santa Cruz Massacre.” 2003 (Unpublished proposal property of The International Forensic Centre of Excellence for the Investigation of Genocide (INFORCE Foundation). Bournemouth University, 2003); Sterenberg 2002 “Archaeological Techniques and Methods for the Excavation and Recording of Contemporary Primary and Secondary Mass Graves.” (Unpublished MSc Thesis from Bournemouth University, 2002).
[14] Mark Skinner and Jon Sterenberg. Turf wars: Authority and responsibility for the investigation of mass graves. Forensic Science International 151, 2-3 (2005), 221-232.
[15] Kirsten Juhl. The Contribution by (Forensic) Archaeologists to Human Rights Investigations of Mass Graves. AmS-NETT (Stavanger), 2005.
[16] See Christopher Taylor. Sacrifice as Terror: The Rwandan Genocide of 1994. Oxford: Berg, 1999.