Digging for Truth, Justice, or the Humanitarian Way: Priorities in Post-Genocide Transitional Justice and Exhumations of Mass Graves

Abstract

While working for the Department of Justice, detailed to the Regime Crimes Liaison's Office (RCLO) in Iraq in 2005, the head of our excavation team, Sonny Trimble, made a casual comment that has stuck with me. I paraphrase: "Forensic digs," he said, "are very different from humanitarian ones."

As someone with a legal background who had not had previous field experience, it was initially hard to understand what he meant, as all mass grave excavations used techniques that could be and have been called "forensic." It all came down to the relatively simple proposition that the former involved a holistic look at a grave site and the circumstantial evidence it contained, with a view towards building a criminal case. The latter focused more on exhuming the bodies themselves, with hopes of repatriating the victims' remains.

Some forensic scientists have thought of this distinction as a false dichotomy that only confounds those doing the work at the site and complicates matters for policymakers as they try to their rebuild a atrocity-torn country. This paper takes a different view. By examining genocide jurisprudence as developed by the International Criminal Tribunals, assessing the value of the forensic evidence that can be gained from mass grave excavations, and acknowledging the interplay of each of those in the greater reimplementation of the rule of law in post-conflict situations, this paper proposes a model protocol for the forensic excavation of mass graves that provides comprehensive guidelines to tribunals and scientists regarding the standards of care of grave sites to insure integrity of the evidence contained therein, while allowing for the flexibility to tailor treatment of each grave site to its own particular needs.

This paper won Vermont Law School's 2008 International Law Writing Competition, and was presented at that school's conference "Understanding Genocide: Prevention, Prosecution, and Progress" in October, 2008. An updated version will be presented at The George Washington University Law School's International Law Week in February 2009. I am currently working to include a more robust discussion of the pertinent genocide precedent, and a re-defining of "excavation" as distinguished from "exhumation" to better describe the differences between operations that are part of a criminal investigation (i.e. the interchangable use of the terms, as in footnote 38, will not apply in subsequent versions), versus those that are not. I will also be adding pages on the dynamics of ICC complimentarity requirements and states' responsibilities to investigate. There is also currently minimal discussion about the proceedings of the Iraqi High Tribunal, principally because this version of the paper focused on what was more germane to the Vermont Law School conference, which was the ICT precedent.

The views contained herein are my own and do not in any way reflect the views or policies of the Department of Justice, the Regime Crimes Liaison's Office, or any government agency.

Keywords: mass grave, genocide, international criminal tribunal, iraq, rule of law