9th Greek Australian Legal and Medical Conference
Rhodes, Greece 2003

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THE MISSING: HUMAN REMAINS AND FORENSIC SCIENCES

Professor Stephen Cordner
Consultant in Forensic Pathology,
International Committee of the Red Cross.
(On leave as Professor of Forensic Medicine, Monash University,
and Director of the Victorian Institute of Forensic Medicine)

Introduction

Friends and colleagues, you have no idea how much I was looking forward to being at this Conference. I am very sorry to have caused such inconvenience by, at the last minute, not being able to attend and to have missed the opportunity to share the platform with Magdalini Karagiannakis who I was keen to meet and listen to. The reason for my absence relates to my topic in this session: The Missing. I am in Iraq with a team of three from the International Committee of the Red Cross evaluating the scope and size of the problem of The Missing and how it might be tackled. Given that there are a number of substantial episodes in the past 25 years contributing to The Missing problem in Iraq, the numbers involved could be very large indeed. In relation to handling the human remains the following matters, amongst others, will determine the outcome:

  • the form of any criminal tribunal put in place to investigate and try alleged war crimes and crimes against humanity;
  • the political will of the occupying power, in the first instance, and of any subsequent Iraqi government, to deal with the issue of The Missing in a comprehensive fashion;
  • the understanding that, even with strong political will, the problem is enormous and it may take 10-15 years to deal with it properly;
  • the problem of The Missing in Iraq, in terms of its resolution, is an Iraqi problem and it must be solved by the Iraqi people, supported as much as possible by the region and the rest of the world.

But we are getting ahead of ourselves.

The Context of the Missing

The advertised title for this paper was "Investigating War Crimes and Terrorism". You would have heard (or will be hearing) from Magdalini about the ICTY's handling of crimes arising from the various conflicts in the former Yugoslavia, and the role of forensic evidence in that. I will try to avoid any duplication as I concentrate a little on the humanitarian dimension of the management of human remains in what I will call the context of The Missing. What is this context? It is different to an aeroplane crash or a collapsing building, each of which is a single event occurring in a more or less confined space in domestic circumstances where civil society is intact. The context of The Missing we are considering is characterised by:

  • large numbers of deaths
  • from multiple events
  • occurring over time
  • usually in different places over a large area
  • as a result of war or internal violence
  • death may have occurred recently or weeks, months or years previously
  • the breakdown of civil society

One can immediately recognise that the Former Yugoslavia was one such context – and of course there are, unhappily, too many such contexts: Chechnya, Congo, Liberia, Sierra Leone, Rwanda, Sudan, and Iraq to name a few. (I imagine many in the audience are aware that the war raging in and around the Congo has left as many as three million dead in the past few years. Most of these are civilians)

The Missing and Forensic Sciences

The paradigm in which we think about the issue of The Missing has altered in the last 20 years. With the exception of some activity in relation to WWII, it was not until the early 1980's that forensic medicine and science was used in an organised way, for either humanitarian or justice purposes, to identify and evaluate human remains of those who had died as a result of war or internal violence. This development was led by non-governmental organisations from the United States, firstly the American Association for the Advancement of Science and shortly afterwards by Physicians for Human Rights. It was Clyde Snow, a forensic anthropologist, who led the first team to Argentina and the significance of this was recently recognised by the newly formed Latin American Forensic Anthropology Association when it named him as their Patron.

These efforts blossomed and numerous missions were made by Physicians for Human Rights in South America and beyond during the eighties and nineties as the potential was realized of forensic science to assist families and justice in these contexts hitherto considered too difficult politically to touch. These commendable efforts were (and are) essentially ad hoc, but they laid the groundwork, and meant that it became reasonable to ask, in the aftermath of a conflict, what is going to happen about identifying the bodies and working out how they died. These earlier efforts altered expectations to the extent that the former Yugoslavia is the first occasion in history where there has been a commitment to try and count all those Missing who have died and to identify them
The Advent of the International Criminal Tribunal for the former Yugoslavia
The International Criminal tribunal for the Former Yugoslavia (and Rwanda) also played a critically important role in altering these expectations and in addition provided a vehicle for meeting some of them. As part of its approach to the investigation of potential gross abuses of human rights, the ICTY initiated and oversaw a large program of exhumations, first of all in Bosnia and Croatia, and later in Kosovo. We have already heard the part that those in Srebrenica played in the ICTY's work. Graham Blewitt, Deputy Prosecutor of the ICTY has written of the vital role played by forensic investigations in corroborating "allegations that serious violations of international humanitarian law, including genocide, had occurred" (1) But a surprise was in store. He also wrote: "following the exhumations in Bosnia and Croatia, all the bodies underwent autopsies by a team of forensic pathologists to determine the cause and manner of death and the demographic profile of the victims." (My emphasis) 1

Thus, the ICTY was quite explicit from early in the process that it was not its intention to identify all the human remains it exhumed (and even if the program of exhumations could properly be described as large, it was only going to exhume a relatively small percentage of all those who died). Individual identification was not necessary for the tribunal's purposes and was not the primary aim of the exhumations and examinations conducted under its auspices.2 In addition, the resources required to mount a mass identification program in such a context are clearly of a different order of magnitude than those available to the Tribunal.3 It took a short time for the significance of this to sink in: there would be left unfulfilled a very significant humanitarian need – most families with missing loved ones would never know for a fact whether they were dead or alive and would never receive identified remains for a proper funeral and burial.

As discussion started to flow about the consequences of this, a number of issues began to emerge. Pathologists from all over the world (the author included) had taken part in examinations where identification of the remains was not one of the aims. What does medical ethics have to say about this? What would the same pathologists have done had they been asked to conduct examinations in their domestic jurisdictions without paying too much regard to the identification of the remains but to concentrate on the cause and manner of death and any other information that might be of use in the investigation and possible later criminal proceedings? What were the applicable forensic medical and scientific standards in the Former Yugoslavia in the examinations conducted under the aegis of the Tribunal? Seeking answers to these questions was one of the reasons that the ICRC embarked upon its Missing project. Broadly speaking the answers are:

  1. The structures to protect the neutrality and impartiality that forensic scientists take for granted in their domestic contexts do not exist in the context of the Missing
  2. Biomedical ethics, despite the explosion in its literature in recent decades has generally had little to say about rights and obligations in regard to human remains
  3. Technical standards which could be applied to the international context of the Missing did not exist.4

ICRC's Project: The Missing

To deal with these issues and fill the gaps that they represent, the International Committee of the Red Cross felt obliged to undertake an initiative. Indeed, as one looks for the relevant global forensic organisation that might have done this, one is struck by the fact that there is no organisation with global forensic medical or scientific responsibilities. The initiative, which was called "The Missing," took the form of a series of expert workshops and studies and a review of the ICRC's own practice over time and by continent. A number of recommendations have emerged from the process about the standards of practice for any doctors and scientists working in contexts involving missing people. The recommendations include:

an overview of how the roles and responsibilities of forensic specialists differ from those of their domestic practice, particularly with respect to identification of remains and their return to the families for burial or cremation;

  • practical guidelines for the management and exhumation of human remains;
  • a standard framework for identifying remains under different and difficult circumstances;
  • legal and ethical guidelines with regard to protection of personal data and genetic information whether from the remains or from the family;
  • elements of an employment contract of forensic specialists for work in these contexts;
  • guidelines for psychological support of affected families; and
  • recognition that working without taking the pertinent culture and context into account amounts to professional negligence.

These and other recommendations were considered and adopted by consensus by government representatives, international organisations, and independent experts at an international conference on "The Missing" held in Geneva from 19 to 21 February 2003.5 However, whether people disappear in armed conflict or internal violence, whether their fate is ascertained, and whether the families receive the information and support they require depends ultimately on action taken by governments

The Missing in the Balkans

This then represents the milieu in which I have been working with the ICRC since January. From a practical point of view, what have I been doing to try and implement the work of The Missing. Last week I completed a mission (an ICRC term) to the Balkans, spending three weeks in Bosnia, Croatia, Serbia, Macedonia and Kosovo. The aim of the mission was to understand what was happening in relation to the identification of human remains in the former Yugoslavia and to see if there were any interventions that the ICRC could make that would facilitate identifications.

The political and administrative backdrop against which the identification of human remains is taking place in the former Yugoslavia is highly complicated. Take for example the country of Bosnia and Herzegovina, where the problem of the Missing is the greatest. It consists of two entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. The two entities still maintain armies although there is a national department of defence. There are arguably 5 levels of government in this, one of the poorest countries in the world. At the lowest level are cantons, then regional government, the borders of which do not necessarily correspond with cantonal borders, so that one canton may be in two regions. Then there is the entity level government and the national government. The national government is headed by a presidency, which rotates between three members of a presidential council: a Muslim, a Croat and a Serb. In addition there is the Office of the High Representative, currently Lord Paddy Ashdown, who can tell the Government what to do if there is a breach of the Dayton Accord, which brought peace to Bosnia in 1995. To complicate matters even further, in the upper levels of the bureaucracy of the Federation of Bosnia and Herzegovina, positions are duplicated: there are parallel administrative streams of Muslims and Croats. This then is the political and bureaucratic framework that is trying to build a cooperative and prosperous society.

Within that framework, how have the identifications been going. According to the Commission for Tracing the Missing (in the entity of Bosnia and Herzegovina), by the end of 2002, out of approximately 30,000 people missing and dead in the entity of Bosnia and Herzegovina, 10,598 individuals had been exhumed. (This has to be regarded as an estimate because in many cases it is not known how many individuals are present in a particular grave). In addition it reported that 4,000 individuals had been exhumed by the I.C.T.Y. The Commission stated that a total of 8,000 (55%) of those exhumed have been identified. Of those identified, 92% are civilians, 13% are women and 3% are children. These exhumations were from 250 mass graves containing from 5 to 506 bodies and several hundred graves containing from one to four bodies. The largest single mass grave was at Kamenica Zvornik and contained 506 bodies and these were exhumed in 2002. The Commission stated that 1706 bodies were exhumed and 780 identifications made in 2002, including identifications of bodies exhumed in previous years.

The Commission further stated: "We are still looking for 15,000 remains which need to be exhumed and around 5,000 remains which have been exhumed but not identified" I record these numbers here fully understanding how difficult they are to comprehend. The key message is that, the scale of the unresolved problem, more than seven years after Dayton, is considerable. Of the 30,000 missing and dead in Bosnia and Herzegovina, 15,000 (50%) are yet to be exhumed and 21,000 (70%) are yet to be identified. On the positive side of the ledger is the commitment, which I believe will be realised, to exhume and, as far as possible, identify all those missing and who died as a result of the conflicts in the Balkans

The period of the conflicts spanned a period, as everyone knows, of dramatic developments in DNA technology. The ICRC had been given a mandate in the Dayton Peace Accords in relation to The Missing. At the G7 meeting in Lyon in 1996, President Clinton announced the creation of a new organisation, which came to be called the International Commission on Missing Persons (ICMP). ICMP, amongst other things, has funded the establishment of DNA laboratories in Bosnia and Serbia and contributed staff and other resources to the exhumation and examination of the remains. I have visited the flagship project of the ICMP in Tuzla, Bosnia, the Prodrinje Identification Project (PIP), which concentrates on the identification of those who died in the massacres in and around Srebrenica. (Prodrinje is the name of Srebrenica's canton)

The PIP consists physically of a large compartmented warehouse, which, on the day I visited, was storing human remains in 3860 body bags at 8 degrees centigrade on trays in racks. It also stores all the clothes and effects related to the 3860 body bags. There are separate rooms for examining the remains, for cleaning the clothes and describing and photographing them and any other belongings. Such photographs are taken for justice purposes and are also made available for humanitarian purposes in Books of Belongings or for perusal individually by families. Of the 3860 body bags, approximately:

  • 1000 contain whole skeletons;
  • 2000 contain parts of a single skeleton, and
  • 860 contain commingled remains.

At the moment all efforts are being put into identifying the whole single skeletons. Some 2500 body bags with human remains from Srebrenica are stored elsewhere and there are about 2-4000 sets of human remains still to be exhumed related to events at Srebrenica.

From a practical point of view, the PIP is a good example of the value of DNA analysis in the identification of victims of a mass atrocity. It is unlikely that many of the victims would have been identified without the assistance of DNA analysis. However, the project does not regard the DNA result as amounting to an identification. Dr Kesetovic, who is the Bosnian pathologist in charge of the Project, uses the result as a lead to identification which is then confirmed by comparing ante mortem data (AMD) with the post mortem (PM) findings in which process the family is involved.

The Project employs four case managers, who are university students, to deal with the families. They:

  • organise meetings with the family in every case;
  • take results to families including photographs of clothing and belongings;
  • show the actual clothes or belongings to the family if the family are uncertain;
  • organise the signing of a recognition form, which is countersigned by the pathologist, if the family recognise the clothing or belongings;
  • hand the clothes and any personal belongings over to the family if they want them, and
  • assist the family with aspects of the burial, for which the family receives state assistance. Most families, however, decide on burial in the memorial centre.

This level of involvement is quite remarkable and more than matches processes in most of the western world following disasters. The extent to which it occurs elsewhere in Bosnia is variable or unknown.

As I mentioned, the identifications of the Srebrenica remains are being materially assisted by DNA analysis. DNA from the remains (extracted from bone) is compared with DNA profiles of blood samples given by the relatives of The Missing. ICMP has blood samples from 42,000 individuals, which it has profiled. It is aiming to collect about 90,000.

According to the ICMP's Identification Co-ordination Centre (ICC) in Tuzla, by mid April this year, a total of 2,288 DNA reports have been issued since November 2001 with probability calculations relating to specified human remains belonging to a particular name. 1290 relate to Srebrenica. 800 of these reports have been issued this year, so the pace is picking up. A number of other reports have been issued enabling the reconstitution of otherwise separated, but still unidentified, remains. Amazingly, in some cases this has allowed parts of the one person buried in different sites to be re-united.

Bear in mind that I mentioned before that there have been about 8000 identifications in total in Bosnia. Most of these have occurred without the benefit of DNA and some misidentifications have already come to light; this trend will continue.

What is going on elsewhere in the Balkans in relation to identifications? Transfer of human remains across borders has proved difficult. Administratively intensive arrangements, which work, exist between Serbia and Croatia, but there have been few transfers between Croatia and Bosnia Herzegovina and between Serbia and Kosovo. In the latter case, about 1000 Kosovars were transported, some time after their death in Kosovo, to mass graves near Belgrade, including some in the grounds of the Secret Police training facility. Exhumation of these remains commenced in July 2001 and by the end of May 2003 about 50 bodies have been returned to Kosovo. The story of this is not straightforward, but as has happened many times in other conflicts, human remains have become chips in a larger political game.

What are the lessons for Iraq, which flow from the experience in the Balkans. There is one that stands out in my mind: 8 years after peace in Bosnia the best estimate is that 30% of those who went missing and who died in the conflicts have been identified. This has been with the assistance of the international community and with the support of the ICTY. It shows how enormous the undertaking is, on a number of levels, to help bring some sense of closure to families, to let them know the fate of their nearest and dearest so that they can move on. The numbers in Iraq are likely to be several times that in the Balkans.

References and footnotes

1. G.Blewitt, "The role of forensic investigations in genocide prosecutions before an international tribunal" Medicine, Science and the Law, Vol 37, No 4, 1997, pp 286-7.

2. A Danish Swedish team of forensic scientists working for the ICTY have also made this observation. Sprogoe-Jakobsen et al "Mobile autopsy teams in the investigation of war crimes in Kosovo 1999" Journal of Forensic Science, Vol 46, No 6, 2001, p 1395

3. Having said that, the forensic teams involved in exhumations and examinations conducted under the auspices of the ICTY did, to varying degrees, make the observations and retain the samples that might allow later identification

4. Adapted from S.Cordner and H. McKelvie, "Developing standards in international forensic work to identify missing persons." International Review of the Red Cross, Dec 2002, Volume 84, No 848, p867.

5. International Committee of the Red Cross. The Missing. www.icrc.org/Web/eng/siteeng0.nsf/html/themissing (accessed 15 Apr 2003).

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Copyright 2003. Greek/Australian International Legal and Medical Conference.
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