Skulls of Khmer Rouge victims : Wiki Commons
Dr Melanie Klinkner explores the unique legal challenges surrounding forensic evidence from mass graves in international criminal trials.
Dr Melanie Klinkner, lecturer in Law at BU’s Business School, has devoted recent years to interrogating the use of forensic science – particularly forensic archaeology, anthropology, and pathology – in international criminal proceedings.
The nature of atrocity crimes prosecuted at international level is such that the accused is often a senior ranking military or governmental figure, with no direct involvement in any given base crime. Forensic evidence is therefore called upon to show whether the scale and methodology of killings discovered across a wide geographical area supports the hypothesis of more systematic activity. This is often required for the higher-order charges, such as crimes against humanity and genocide, to be proven.
“Challenges to forensic science are not so much rooted in cultural rejections of scientific methods,” explains Dr Klinkner, “but in the problems of overcoming specific geographical and cultural variables. On-going hostilities, adverse weather conditions and cultural sensitivities towards the scientific examination of the dead are common in places where forensic science is not well-developed as a tool of the criminal justice system. With current practices of outsourcing investigations at the International Criminal Court, there may also be questions about the integrity and effectiveness of outsourcing forensic fieldwork.”
Another challenge for forensic scientists excavating mass graves is that many have been contaminated by previous attempts. The totemic ‘pyramid of skulls’ in Cambodian mass graves, whilst the iconoclastic image of the horrors of the Khmer Rouge, is a forensic anthropologist’s nightmare due to the alienation of crania from skeletons, the contamination of evidence and divorce of evidence from the crime scene.
Indeed, the cultural, religious and political imperatives of the aftermath of genocide are often in conflict with the dispassionate task of forensic science – the need to remember, to bury and grieve, to immortalise, to forgive, to display in museums, to collect with a view to remembrance rather than to analyse: all these motivations and activities may sit uneasily with the detached, pragmatic ideal of a forensic archaeologist.
Forensic science in the context of crimes against humanity also introduces complex questions of the rights of survivors and victims’ families. Clearly there is a humanitarian duty to try and identify victims, but whether there exists a substantive right (the “Right to Truth”) is a further challenge for socio-legal scholars concerned with such heinous crimes.
Ultimately, the examination of forensic evidence in the international criminal tribunals requires an interdisciplinary expertise – between legal scholarship, natural science and social science. The Law Department, working in tandem with forensic archaeologists from BU’s School of Applied Sciences, are rare in being able to address so many aspects of forensic science within international criminal contexts, just as the conjunction of these disciplines continues to evolve.