TORTURE: ASIAN AND GLOBAL PERSPECTIVES | FEB – APR 2014
VOLUME 03 NUMBER 01 & 02
Mass grave excavations have also the potential to fulfil important humanitarian goals that go well beyond prosecutorial needs
by MELANIE KLINKNER
MASS graves may, in some cases, be linked to offences under international law as they can be the result of gross human rights abuses or violations of the law of armed conflict. Over the past two decades, a number of international tribunals and courts have been created to help bring international human rights and humanitarian law violators to justice, complementing the role of domestic courts. Understandably, these international criminal prosecutions are often remarkably complex and expert witness testimonies can help through offering specialist knowledge and contextual information; forensic evidence from mass graves may form part of such specialist evidence presentation. Forensic mass grave investigations can help to corroborate witness testimony, clarify the context surrounding the crimes and contributes towards proving what crimes were committed and how they were perpetrated.
During forensic excavations and examinations of mass graves, detailed documentation of the crimes and biological facts associated with the victims are obtained. In general, forensic scientists, recover, record, examine and interpret material to provide relevant, previously unknown information; typically they collate the results in a report for the prosecution, the defence, or the court and for presentation at trial; and the experts may be called to provide verbal evidence as expert witnesses during trials.
Once the prosecution has identified that forensic evidence is required to present a particular case, the services of the forensic expert may be sought. The professions usually involved in mass grave investigations, apart from investigators and scene of crime officers, are the forensic archaeologists, anthropologists and pathologists: The forensic archaeologists apply their survey and excavation skills to the site; they are experienced in identifying, excavating and recording complex features, and recovering human remains and artefacts. They are also experts in recognizing taphonomic alteration to soils, human remains and other materials recovered which helps elucidate what happened to the victims at the point of death and thereafter. The forensic pathologist’s main role is to perform the post-mortem examination of bodies and human remains to establish the cause of death and identity of the victims. Criminal aspects of death tend to leave physical traces and the pathologist has experience in recognizing torture and/or starvation prior to death, trauma, entrance and exit wounds from firearms, etc. He or she works closely with the anthropologists, odontologists and radiographers. Forensic anthropologists are specialists in analysing skeletal and dental remains as well as taphonomic alterations – that is how organisms decay over time. Critically, they are able to distinguish between bones’ state during an individual’s lifetime, at the time of death and after death and can thus contribute towards establishing ancestry, sex, age at death, stature, handedness, etc. They reconstruct fragmented and disarticulated skeletons to facilitate the calculation of the minimum number of individuals and to aid the identification process through providing samples for DNA analysis.
Forensic professionals are usefully involved in the initial planning phase for a mass grave investigation. Once a grave location has been confirmed, the experts will conduct a site assessment as this will generate information for the planning of the mission. The accessibility of the site impacts on the amount of logistics required; the condition of the remains and the time needed for excavations are further key variables to be considered. This type of information will influence the decision as to what sites are to be excavated and which fit the cases best. From their preliminary investigations, the prosecutor and his investigation team should have an understanding of what evidence may be found in the grave before proposing its excavation. Furthermore, the decision when to excavate a particular grave may also be influenced by the trial schedule. Naturally the urgency of the task impacts upon the number of forensic staff required to complete the work.
Excellent planning is paramount: In addition to the organising of logistics, resources, and equipment, medical, travel and accident insurance as well as a risk assessment with appropriate health and safety mitigation provisions need to be put in place. In fact, hostilities may be on-going whilst investigations are conducted. Sites need to be examined for unexplored ordnance, military escorts to and from the site may need to be organised and often simple provisions such as fresh drinking water or power supplies at the mortuary need to be thought about.
Furthermore, the families’ and survivor population’s needs must form part of planning considerations and a value assessment of the usefulness of mass grave investigations taking into account the psycho-social ramification these have on the survivor population is essential. Families of those that went missing have a vested interest in mass grave investigation. Even if the investigations are carried out for evidentiary purposes, the humanitarian effects of such work cannot be ignored and plans need to be in place to cater for those needs. Therefore a planning requirement should be that, once the investigative purpose is fulfilled, other organisations take over the work of excavation, examination and identification. This will allow the prosecution and forensic experts to walk away from investigations, safe in the knowledge that other organisations take care of the human remains once they leave a court’s custody. It will help ensure the importance of forensic evidence not just for the effectiveness of international criminal proceedings, but also for fulfilling humanitarian needs.
During the mass grave investigations themselves, the evidence contained in the graves is excavated and examined in situ as well as in the mortuary by the forensic teams whilst the evidentiary standards and the chain of custody needs to be guaranteed. Logging, packaging and photographing the evidence are crucial to demonstrate the chain of custody in court. Important objectives for a mass grave investigation may include the need to ascertain the number of victims, their cause and time of death, the identification of the victims along with their ethnicity and sex, and to identify disturbances and evidentiary materials that may link the site to other crime scenes and the alleged perpetrator. Such findings from the excavation site and mortuary are summarised in reports prepared by the most senior forensic experts. These reports contain information on the minimum number of individuals, their location in the excavated graves, sex of the deceased, cause of death, clothing, as well as the presence of artefacts such as blindfolds and ligatures, for example.
At the trial, the evidence is then presented in court and sometimes the experts are asked to testify. The expert’s report is discussed as well as the photographic evidence relating to crime scene, artefacts and human remains. Through questions and answers the evidence relating to excavations, examinations and autopsies is tested.
So, how may forensic evidence from mass graves assist a criminal court with its fact-finding? Some examples from the experiences at the International Criminal Tribunal for the Former Yugoslavia (ICTY) are used here to illustrate this: Forensic evidence is most useful if it complement other relevant evidence, such as documentary or eye-witness accounts. If we look at evidence from mass graves as corroboration of testimony, then in the case of the Srebrenica massacre that took place in Bosnia Herzegovina in 1995, for example, evidence derived from execution points and graves matched accounts of the events by those lucky enough to escape. In the case of Dražen Erdemović, one of the first defendants at the ICTY, who pleaded guilty to murder as a crime against humanity, it was the accused himself who led the investigations to execution and burial sites which were not previously known to the Office of the Prosecutor. The location he disclosed is the Branjevo Military Farm. Excavations that took place at the Branjevo Military Farm revealed that there were 132 male victims in the grave, 130 of whom had died from gunshot wounds and 83 ligatures were found in the grave. Furthermore, analysis showed that the Branjevo Military Farm mass grave had been disturbed. Individuals had been removed and placed in secondary graves, indicating belated attempts at concealment. This is vital information for the Prosecution, because corroboration of evidence can assist with witness selection, especially as witnesses’ memories may have faded or been affected by Post-Traumatic Stress Disorder and the passage of time.
When investigating and prosecuting war crimes, including cruel treatment, torture and murder, scientific evidence can assist in confirming these charges. Findings presented in Prosecutor v Mrkšić from forensic examinations of the bodies retrieved from the Ovčara mass grave in Croatia showed that 198 were male and two were female, with an age range from 16 to 72 years. The cause of death in 188 cases was attributable to single or multiple gunshot wounds. Seven individuals were believed to have died from trauma, whilst the cause of death is still unknown for the remaining five victims. Post-mortem examinations revealed that 86 individuals had suffered from injuries prior to their death on 20/21 November 1991.
In 1997 it was possible to identify 192 of the victims buried at Ovčara. With the help of forensic science the ICTY Prosecutor had little difficulty in proving the crimes that had occurred at Vukovar. The Tribunal was also satisfied that the victims who were taken from the Vukovar hospital on the morning of 20 November 1991 were at that time not taking part in hostilities and therefore could not be considered legitimate military targets. And this was important to confirm that they were not combatants and therefore not legitimate military targets!
To constitute the crime of genocide, the accused must have deliberately intended to destroy a protected group in whole or part. Where direct evidence of genocidal intent is absent, the requisite intent may be inferred from the factual circumstances of the crime. Perhaps the most interesting case to date where a defendant was indicted for genocide partly on the basis of scientific evidence is Krstić (though this is likely to change once the Mladić and Karadzić cases are completed). Radislav Krstić stood accused for his actions as Deputy Commander of the Bosnian Serb Army during the Srebrenica massacre between 10 and 19 July 1995. The Trial Chamber found that the forensic evidence presented during trial corroborated ‘important aspects of the testimony of survivors from the execution sites’ and was sufficiently credible and compelling to confirm the actus reus of genocide.
The judges found that ‘following the take-over of Srebrenica, thousands of Bosnian Muslims were summarily executed and consigned to mass graves’. The investigations suggested that most of the deceased had not been killed in combat, leading the judges to infer that some 7,000 missing persons had been executed and buried in mass graves. The Trial Chamber reasoned that the disappearance of generations of men showed an intent to physically destroy Bosnian Muslims as an ethnic group. The intent to destroy the group, as such, was further substantiated, in the trial judges view, by the well-established pattern of executions. Bodies were not only concealed in mass graves, but were at a later time excavated in an attempt to hide the crimes. Investigations of seven secondary graves found commingled and mutilated body parts rendering identification efforts, repatriation and appropriate burials extremely difficult, thus causing further distress to the families. The fact that all located and examined gravesites associated with the Srebrenica massacre were within the Drina Corps area of responsibility contributed to the Trial Chamber’s overall belief that Krstić shared the intention to commit genocide. The Trial Chamber was satisfied that Krstić had participated in the joint criminal enterprise, sharing the genocidal intent to kill Bosnian Muslims, and duly convicted him of genocide. On appeal, however, this verdict was overturned as the Appeals Chamber felt that the necessary intent to commit genocide was not proven beyond reasonable doubt.
Noteworthy here is that in the Krstić case, scientific evidence helped to determine that: (i) a specific group was targeted; (ii) the killings and burials were systematic; (iii) many civilians were amongst the dead; (iv) demonstrable attempts had been made to conceal the crimes; and (v) a high level of cooperation was required to undertake such executions and burials.
In addition to war crimes and genocide charges, numerous defendants before the Yugoslav tribunal have been charged with crimes against humanity, mostly in relation to attempted ‘ethnic cleansing’ of particular regions. With ethnic cleansing being a phrase that was coined during the Yugoslav war. In the Popović trial, where five of the defendants stood accused of extermination as a crime against humanity, the defence was keen to clarify whether those found in mass graves had been killed legitimately in combat or whether they were identifiable as civilians whose murder would constitute a crime against humanity. An expert witness was asked whether some victims from mass graves could have died as a result of combat as opposed to execution and whether military clothing was found on the bodies. According to the expert, the evidence suggested that the dead had not been killed in combat as (i) they were not wearing military clothing; (ii) the deceased were of all ages, some with physical disabilities; (iii) blindfolds and ligatures were found in some graves; (iv) many victims had been killed from behind by a single shot to the head; and (v) there was little indication of previous injuries consistent with combatant status. Whilst it could not be fully excluded that some had been killed in combat, the majority of dead could not be accounted for in that way.
In Prosecutor v Milutinović the accused were allegedly responsible for deportation, forcible transfer, murder (as a crime against humanity and a violation of the laws or customs of war) and persecution of Kosovo Albanians. Volume two of the judgment reviews the evidence relating to the alleged crimes, relying on much of the forensic evidence gathered from investigations conducted in Kosovo during 1999. In light of these findings, the Trial Chamber concluded that over 700 bodies originally buried throughout Kosovo during the NATO bombing campaign were secretly exhumed and transported to Serbia in an attempt to conceal them from citizens of the former Yugoslavia and from the international community. These clandestine operations led the Trial Chamber to believe ‘that the great majority of the corpses moved were victims of crime, as opposed to combatants or people who perished during legitimate combat activities’. Forensic science evidence thus underpinned the Trial Chamber’s conclusion that some of the deceased (who included women and children) were victims of crimes against humanity.
Of course, questions of scientific methodology, reliability, and of experts’ credibility, objectivity and impartiality, are addressed on a case by case basis through the process of testimony in court and tested through cross-examination. It is then the judges’ role to weigh the evidence presented and to arbitrate between reliable and unreliable, as well as scientifically valid and invalid, evidence. If forensic evidence withstands such legal scrutiny in court, then it is seen to contribute important facts that help produce a record of what is likely to have happened.
As pointed out above, mass grave excavations have also the potential to fulfil important humanitarian goals that go well beyond prosecutorial needs. In the aftermath of gross human rights violations, evidence from the field suggests that information as to what happened and how is happened, fulfils a very important need of families and survivors. In fact, this need to know the truth is vital and may have primacy over wanting justice; the desire for justice may follow on from knowing the truth. Though it should also be noted, that learning and knowing the truth can have complex and unpredictable effects on the individual and may exacerbate strains between the individual, the past and society. In any event, mass grave investigation need to be mindful of the psycho-social ramification they have on the survivor population and on relatives of the missing. Investigations of mass graves for criminal purposes need to ensure that they form the first step in a continued effort to provide families with information, identification and return the human remains.
 Prosecutor v. Krstić (Case No. IT-98-33-T) Judgment, 2 August 2001, §71.
 Ibid., §73.
 Prosecutor v. Popović et al. (Case No. IT-05-88-T) Expert Witness Testimony by Dr John Clark, Transcript, 20 February 2007 and Expert Witness Testimony by Prof Richard Wright, 21 February 2007.
 Prosecutor v Milutinović et al. (Case No IT-05-87-T) Judgment, 26 February 2009, Vol 2, §1357.
Dr. Melanie Klinkner is a Senior Lecturer in Law at Bournemouth University. Her research publications to date focus on the interplay of international criminal law and forensic science.