- nr. 5 The Contribution by (Forensic) Archaeologists to Human Rights Investigations of Mass Graves KIRSTEN JUHL Stavanger 2005 AmS-NETT 5 Arkeologisk museum i Stavanger Museum of Archaeology, Stavanger Redaksjon/Editorial office: Arkeologisk museum i Stavanger Museum of Archaeology, Stavanger Redaktør av serien/Editor of the series: Lotte Selsing Redaktører av dette volum/Editors of this volume: Gitte Kjeldsen & Lotte Selsing Redaksjonssekretær/Editorial secretary: Tove Solheim Andersen Redaksjonsutvalg/Editorial board: Tove Solheim Andersen Arne Johan Nærøy Einar Solheim Pedersen Lotte Selsing Utgiver/Publisher: Arkeologisk museum i Stavanger PO Box 478 N-4002 STAVANGER NORWAY Tel.: (+47) 51846000 Fax: (+47) 51846199 E-mail: [email protected] Stavanger 07.07.2005 ISSN 0809-618X ISBN 82-7760-118-2 UDK 343.979 URN:NBN:no-a1640 Forsideillustrasjon: Verdenskart. EO News: NASA Olympics Blue Marble Release, February 6, 2002 http://earthobservatory.nasa.gov/Newsroom/BlueMarble/ The front page illustration: World map. EO News: NASA Olympics Blue Marble Release, February 6, 2002 http://earthobservatory.nasa.gov/Newsroom/BlueMarble/ The editors preface Museum of Archaeology, Stavanger, here presents a subject, which is not earlier published in the museum’s series, an actual subject, which add to the discussion in society, openness and dialog. Kirsten Juhl has collected available material about investigations of modern mass graves in the world where archaeologists participate and archaeological methods are included as part of the investigations. This is presumably the first collected presentation in its kind in Norway and may be also internationally. The subject is important internationally compared to human rights, included the countries populations which are touched. The publication shows how archaeological methods can be used analytical of very great present interest and adding to solve new problems. The excavation reports from mass graves are mainly covered by secrecy. Therefore much information about archaeological methods and results from the investigations are not available and included at the moment. Probably will archaeological methods and experience in time be a more important part during investigations of mass graves than to day as this paper indicate. The publication was at first prepared as a master degree paper within resilience managements at University of Stavanger, at that time University college in Stavanger. Gitte Kjeldsen and Lotte Selsing Museum of Archaeology, Stavanger April 26th 2005 Juhl, K. 2005: The Contribution by (Forensic) Archaeologists to Human Rights Investigations of Mass Graves. AmS-NETT 5, 77 pp., Stavanger. ISSN 0809-618X, ISBN 82-7760-118-2, UDK 343.979, URN:NBN:no-a1640 Since the German “Nacht und Nebel” policy of World War II and their industrialised killing of Jews and Gypsies in the Holocaust, state institutionalised, deliberate and systematic practices of making people disappear – whether for political, religious, ethnic, cultural or other motives – has been known as an efficient tool of war and repression. The systematic practice of making people disappear is now known as enforced disappearance, and has lately been recognized as a crime against humanity. Both genocide and crimes against humanity is often associated with the use of mass graves in order to conceal the crime and also prevent individual identification. Over the past twenty years forensic experts, and among these archaeologists, have been contracted or subcontracted to investigate such mass graves by truth commissions, local courts and international tribunals, local and international human rights and family associations in together more than forty countries all over the world. The present study explores how excavating such mass graves may serve different purposes related to the societal rebuilding processes in the aftermath of violent conflicts whether internal or international, and thus contribute to societal security and safety. The focus is on the role and contribution of archaeologists in this process. For this purpose a conceptual distinction is made between excavating mass graves (focusing on the mass grave as an archaeological feature) and exhuming human remains (focusing predominantly on retrieving the human remains). The history, principles and mechanics of scientific mass grave excavations are discussed and illustrated with examples from Latin America, former Yugoslavia, Rwanda and most recently Iraq, focusing on the role of archaeology as an integrated part of a multidisciplinary forensic team work. It is demonstrated how evidence from mass grave excavations has been important to truth commissions in Latin America (Guatemala, El Salvador, Peru), and to cases brought before human rights courts. For example the Dos Erres case where the Guatemalan governments was sentenced to pay reparation and provide physical and psychological treatment to survivors and relatives, and to build a memorial. It is further demonstrated that the evidence from excavations of mass graves is an important factor in getting war criminals convicted, as for example in the case against Krstic, who was sentenced to 35 years in prison based on evidence from 21 mass graves related to the Srebrenica Massacre. It is argued that historically two investigation strategies have been employed. In Latin America one has integrated the excavation and exhumation concept into one investigation concept. In former Yugoslavia one has distinguished between the excavation and exhumation concepts, but achieved a holistic strategy through complementary institutions conducting the investigations – the ad hoc International Criminal Tribunal for former Yugoslavia (ICTY) and the International Commission on Missing Persons (ICMP)/the national CMPs. The recent development of mass grave investigations in Iraq seems to introduce a third concept and overall strategy. It is concluded that human rights mass grave investigations have contributed significantly to the success of national as well as international truth commissions, human rights courts, criminal courts and tribunals throughout the world – and thus consequently to both truth and justice. The contribution has been most evident in Latin America and former Yugoslavia. However, the field is rapidly growing and forensic anthropology and archaeology is 3 increasingly incorporated into international crisis and conflict management strategies – notably by the United Nations. Human rights mass grave investigation teams have in general pursued three major purposes: humanitarian, legal and historical purposes. Establishing a historical record – the factual truth of what happened and in which sequence at a specific location at a specific point in time – is paramount to pursuing the legal and historical purposes and important also to reaching the humanitarian purpose of identifying victims. It is concluded that the significance of the contribution by archaeologists to human rights mass grave investigations lies with their unique ability to provide this historical record. Kirsten Juhl, Archaeologist and Master of Societal Safety. Private: Vestlibakken 12, N-4330 ÅLGÅRD, NORWAY. Telephone: (+47) 51619352. Cellular: (+47) 90606676. E-mail: [email protected] Key words: Societal safety, mass graves, forensic archaeology, human rights, prosecutorial v. humanitarian purposes, truth and justice 4 Authors preface The present publication was originally delivered on June 30, 2004, as a thesis for the Master degree in Societal Safety (Resilience Management) at the University of Stavanger, Department of Media, Culture and Social Sciences, Faculty of Social Sciences, Norway. No supplementary information has been added after that date. The text has been corrected as regards grammatical and linguistic errors. Only minor alterations have been made for the sake of clarifying the meaning of a sentence or paragraph. A number of abbreviations, mainly of organisations central to the topic, occur in the text. These abbreviations are listed together with the literature references. All references are basically given according to alphabetic, subsidiary chronological order. However, a number of references have no author in the usual sense of the word. Instead the abbreviation of the publishing organisation is used follow by year of publication. The exception is references to cases brought before the ad hoc International Criminal Tribunals for former Yugoslavia (ICTY) and Rwanda (ICTR) which are referred to by the year the case was filed. Also references to United Nations documents follow the specific system used by the UN. Full text World Wide Web references to literature are given whenever possible. In case the www-reference is to an abstract only, this is explicitly stated. All www-references have been checked to be valid as of 24 March 2005. I want to thank my former colleagues at the Museum of Archaeology, Stavanger, Norway, Senior Researcher, Jenny-Rita Næss, for suggesting the thesis for publication in the museum series of publication, and Research and Development Coordinator, Lotte Selsing, for nurturing it through to publication. I sincerely want to thank my supervisor, Odd Einar Olsen, Professor with the Department of Media, Culture and Social Sciences, University of Stavanger, Norway, for being always positive and continuously encouraging during my work with the thesis. I also want to thank the Librarians Gro Hansen and Liv Bakke at the Museum of Archaeology, Stavanger, Norway, to whom I delivered an incredibly long list of literature that they did a great job to get me. I also want to thank the institution for granting me a leave of absence for the spring term of 2004 in order to be able to do the thesis, and its Director, Harald Jacobsen, for acting as my reference. Not least, I want to thank the respondents to the questionnaire I prepared for the thesis: Ralph Hartley – Archaeologist – Archaeological Assistance and Partnership Program Manager, Park Programs, Midwest Archaeological Center, Lincoln, USA; John Hunter – Archaeologist – Professor of Ancient History and Archaeology at the University of Birmingham, UK; Rebecca Saunders – Archaeologist – Associate Curator of Anthropology, Museum of Natural Science, Louisiana State University, Baton Rouge, LA; Adjunct Professor, Department of Geography and Anthropology, Louisiana State University, Baton Rouge, LA.; and Research Affiliate, South Carolina Institute of Archaeology and Anthropology; Douglas D. Scott – Archaeologist – Great Plains Team Leader, Park Programs, Midwest Archaeological Center, Lincoln and Adjunct Professor, Department of Anthropology, University of Nebraska, Lincoln, USA; Mark F. Skinner – Bio-archaeologist – Full Professor of Biological Anthropology, Department of Archaeology, Simon Fraser University, Burnaby, British Colombia, Canada; and Eric Stover – Human Rights Researcher – Director of the Human Rights Center and Adjunct Professor of Public Health, University of California, Berkeley, USA. Stavanger, February 2005 Kirsten Juhl 5 1 INTRODUCTION 8 2 RESEARCH AREA, METHODS AND DELIMITATIONS 10 3 THEORY AND CONCEPTS 12 3.1 Democracy as a crucial societal security parameter 12 3.2 Managing crises and its consequences 13 3.3 Public expectations and authority responses 14 3.4 Mass graves – definitions and typologies 15 3.5 Excavating mass graves – exhuming human remains 17 3.6 What is so special about archaeology? 18 3.6.1 Forensic archaeology versus physical anthropology 18 3.6.2 Artefactual and contextual evidence 19 3.7 Investigation purposes and the concept of physical evidence 21 3.8 Evidence of identity – personal and categorical identification 22 4 MASS GRAVE INVESTIGATING ORGANISATIONS AND INSTITUTIONS 24 4.1 Forensic human rights investigation teams in the Americas 24 4.1.1 Argentina and the Argentine Forensic Anthropology Team (EAAF) 24 4.1.2 Guatemala and the Guatemalan Forensic Anthropology Foundation (FAFG) 26 4.1.3 The Chilean Forensic Anthropology Team (GAF) 28 4.1.4 Peru and the Peruvian Forensic Anthropology Team (EPAF) 28 4.1.5 The Latin American Forensic Anthropology Association (ALAF) 30 4.1.6 The Boston-based Physicians for Human Rights (PHR), USA 30 4.2 Mass grave investigating institutions in former Yugoslavia 31 4.2.1 The International Criminal Tribunal for the Former Yugoslavia (ICTY) 31 4.2.2 The International Commission on Missing Persons (ICMP) 33 5 SELECTED HUMAN RIGHTS MASS GRAVE INVESTIGATIONS 34 5.1 El Salvador – the El Mozote massacre (1992, 1999–2003) 34 5.2 Iraqi Kurdistan – genocide and the use of chemical weapons (1992) 35 5.3 Former Yugoslavia – initial mass grave investigations (1992–1993) 37 5.4 The Ovcara grave – Vukovar Hospital, Croatia (1992–93 and 1996) 39 5.5 Mass grave investigations of the Srebrenica genocide (1996 ongoing) 40 5.6 Kibuye and Kigali – mass grave investigations in Rwanda (1996) 43 6 5.7 Investigations related to the Kosovo conflict (1999-2000) 45 5.8 Recent developments – Mass Grave overflow in Iraq (spring 2004) 46 6 OPINIONS AND EXPERIENCES OF PARTICIPANTS OF THE FIELD 48 6.1 Excavating mass graves – exhuming human remains 48 6.2 Including/excluding archaeologists from mass grave investigations 49 6.3 Purposes of investigations and the contribution by archaeologists 49 6.4 The identification process and the contribution by archaeologists 49 6.5 Reconciliation and the contribution by archaeologists 50 7 THE QUEST FOR TRUTH and JUSTICE – DISCUSSION 50 8 CONCLUSIONS 53 REFERENCES AND ABBREVIATIONS 55 APPENDIX A – QUESTIONNAIR E 66 Personal data 66 Profession: 66 Extent and type of experience with mass grave excavations: 66 Forensic experience prior to becoming involved with mass grave investigations: 66 Policy and purpose of mass grave investigations 66 Levels of identification 67 7 1 INTRODUCTION According to the White Paper on the Safety and Security of Society presented to the Norwegian Parliament by The Ministry of Justice and the Police in 2002, the concept societal safety and security “may be described as the ability society has to maintain crucial societal functions and protect the life, health and fundamental needs of its citizens during various types of strains”1. This involves an ability at the societal level to produce measures to prevent or reduce the potentiality of undesirable events (whether intentional like terrorism or war, or unintentional like mass disasters and natural catastrophes); measures to reduce the damages when such events do nonetheless occur; and measures to secure the (re)establishment of (desired) normal conditions as soon as possible after the event. It is meant to apply both to war and major societal crises and catastrophes in times of peace. The analyses and recommendations made in the report are of course aimed specifically at the Norwegian society. However, the definition should be valid also to other national societies as well as to the larger international or world society. The distinction between national and international threats to societal safety and security is becoming increasingly blurred. Although international terrorism to some may seem the most obvious threat at the moment, the White Paper stresses also the international violent conflicts that originate in ethnic polarisation and conflicts within a national state as a threat to societal security to which Norway has to relate. This sort of conflict affects large segments of civilian populations, often to a degree that destabilises whole regions with hundreds of thousands of people made homeless, displaced within their own country or refugees abroad – if not killed. They may constitute a significant problem to the international security as well as to that of the nations directly involved in conflict. To a certain degree it affects the security of our own society, as we are giving refuge and/or asylum to people having fled their home countries carrying a luggage of utterly traumatic experiences, we are sending humanitarian aid workers to help nations in conflict, and we are engaging as peace facilitators on both the political and military level. Humanitarian considerations have thus grown to become a more direct part of the national safety and security policy than before2. In the aftermath of war and violent conflicts, society is on often down its knees. It has not been able to produce measures to prevent the events from taking place, and it has not been able to reduce the damages of the events to any significant degree or to “protect the life, health and fundamental needs of its citizens”. Actually, in many instances society itself – i.e. the state authorities – has been the culprit initiating as well as escalating the events. After the events comes the multifaceted task of rebuilding society and get it (back) to a desired normal, a long and tedious task which is more difficult, the more severe the conflict has been. One has to come to terms with an often massively abusive past in order to be able to move on, build new and resilient, democratic institutions, and prevent repetitive occurrences of the conflict and its horrors. In the general chaos of war and armed conflict, people may go missing for various reasons. However, since the German “Nacht und Nebel” policy of World War II and their industrialised killing of Jews and Gypsies in the Holocaust, state institutionalised, deliberate and systematic practices of making people disappear – whether for political, religious, ethnic, cultural or other motives – has been known as an efficient tool of war and repression. The 1 St. Meld. 17, 2001–2002:section 1.2 2 St. Meld. 17, 2001–2002:section 5.2.1 8 immediate post-war period saw the international society working intensely taking preventive measures against such practices in order to “never again” experience the horrors of the third “Reich”3. However, good intentions without a system to efficiently enforce them is not enough, and thus there have been many “never agains”. The systematic practice of making people disappear has since 1978 been known as enforced disappearance. In 1992 the United Nations made a declaration about enforced disappearances and with the Rome Statute of the International Criminal Court of 1998, that entered into force 1 July 2002, it became fully recognised as a crime against humanity within international criminal law4. Death is not always, but often, the final outcome of an enforced disappearance and may be part of the practice of making people disappear. Such practices not only inflict upon the relatives the terror and trauma of not knowing the fate and whereabouts of their loved ones. In the absence of a death certificate of the disappeared, the family may also suffer economically and socially, they may be threatened on their own lives and they may be stigmatised as they become dangerous to associate with. The terror of making people disappear thus diffuses into the rest of society as it consists not only of individuals who choose to associate themselves with one or the other party to the conflict, but also of individuals who choose to try and dissociate with the problems altogether. Societal rebuilding processes in the aftermath of conflict are often designated reconciliation processes. Reconciliation cannot be state institutionalised – it is for individuals to find and to grant. However, the process may be facilitated by political, humanitarian and judicial means. Over the past thirty years officially instituted reconciliation processes have thus become typical of the transition into democracy of former authoritarian or totalitarian societies. Truth commissions have become a popular strategy for reaching reconciliation and achieving new democratic order. Sometimes truth investigations and legal proceedings have been conducted parallel to each other, but very often the perpetrators of the former abuses have been granted amnesty as happened in most Latin American countries in the 1980s and early 1990s, and in many instances they even kept office. However, since the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda began working in the 1990s, the struggle against impunity seems to have grown stronger both internationally with for instance the establishment of a permanent International Criminal Court in The Hague at the turn of the century, and nationally as for instance in several Latin American countries. This study concentrate on the type of conflicts in which state authorities have directly ordered, induced, sanctioned, or “institutionalised” massive human rights abuses as a means of disposing with political opponents or other “unwanted elements” by death and mass killing, and the concealment of the fact by disposing with the dead in mass graves. Over the past twenty years forensic experts, and among these archaeologists, have been contracted or subcontracted to investigate such mass graves by truth commissions, local courts and 3 By the establishment of the United Nations in 1945 and its adoption of The Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide by The United Nations in 1948. By the adoption of the four Geneva Conventions by a diplomat conference held by The International Committee of the Red Cross in 1949 (additional protocols I and II, 1977). And not least by the setting up of the International Military Tribunals by the four Allied powers to prosecute the major war criminal of the Nazi regime (the Nuremberg trial) and Japan (the Tokyo trials) in 1945. 4 UN Doc A/RES/33/173 of 20 December 1978; UN Doc A/RES/47/133 of 18 December 1992; OHCHR Fact Sheet No. 6; UN Doc A/CONF.183/9, of 17 July 1998:Rome Statute Article 7, 1.(i). The concept is defined as relating to persons “arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law”. 9 international tribunals, local and international human rights and family association NGOs in more than forty countries all over the world5. • The present study explores how excavating such mass graves may serve different purposes related to the societal rebuilding processes in the aftermath of violent conflicts whether internal or international. • The idea is not to discuss which purpose is the most preferable to pursue – truth or justice, but rather to explore somewhat into the question of how mass graves investigations may help bring along both truth and justice – and specifically how archaeologists and the use of archaeological investigation techniques may contribute to reaching these objectives. 2 RESEARCH AREA, METHODS AND DELIMITATIONS The research area and its delimitation are defined through the working title of the study: The Contribution by (Forensic) Archaeologists to Human Rights Investigations of Mass Graves allegedly resulting from Genocide or Crimes against Humanity. The emphasis is placed on the purposes and philosophy behind such mass grave investigations and how the participation of archaeologists helps fulfil these purposes. The field of modern mass graves investigations is narrow, and the problem it is to cope with immense. The International Committee of the Red Cross (ICRC) presents an interactive map, valid as of January 2003, giving an overview of the overwhelming magnitude of the problem6. In 2002, the ICRC launched a major initiative called “The Missing. End the Silence – Action to resolve the problem of people unaccounted for as a result of armed conflict or internal violence and to assist their families”7. During 2002 they hosted a number of workshops involving people from various professions and organisations, including forensic teams and professionals, concluding the workshops with a conference held in spring 20038. Although it is not self-evident, for the sake of delimiting the research area of this study it has been assumed a priori that mass grave investigations are making a significant contribution to solving the problem of the missing. This assumption is based on the fact that both associations of relatives of the missing as well as national and international institutions have repeatedly called for such investigations and continue to do so. However, one may make a distinction between the mass grave as an object of investigation per se and the mass grave as a container of human remains, these being the object of investigation. Thus, theoretically the exhumation of human remains may be significant, while the excavation of the mass grave (or mass grave-related feature) may not be important. This question will be addressed in the study as it relates closely to stated purposes and possible conflicts between purposes – and also it relates to the question of what archaeologists and/or archaeology may contribute to reaching such purposes. However, the potential significance is not grade on any sort of scale. The term forensic science is a collective term comprising a group of disciplines putting the services of their particular field of specialisation at the disposal of the medico-legal system. Among these is archaeology. All the forensic professions somehow deal with the material 5 See chapter 3 6 ICRC 2003b 7 ICRC home page, The Missing 8 ICRC 2002, 2003a 10