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IV. The Forensic Evidence

Lessons learned from the former Yugoslavia, Rwanda, and other countries which have experienced large-scale atrocities suggest that mass graves investigations can be fraught with tremendous logistical, scientific, humanitarian, and legal challenges.46  Any nationwide program to exhume mass graves in Iraq must satisfy the evidentiary needs of criminal trials and the humanitarian needs of the families of the missing.  This is why it is crucial that the Interim Iraqi Government establish a joint Iraqi-International Commission for Missing Persons to supervise and coordinate the tracing of missing persons as well as the exhumation of mass graves throughout Iraq.  A joint Iraqi-International Commission will be able to attract the necessary funding, scientific expertise, and training needed to carry out this highly complex task.  It should also develop a comprehensive strategy aimed at producing court-admissible evidence while responding to the desires of communities that wish to have the remains of their loved ones returned for proper burial.

During the past thirty years, the government of Saddam Hussein engaged in three wars and numerous campaigns to repress the Kurdish, Shi`a, and Marsh Arab populations, resulting in the disappearance—and, most certainly, the deaths--of between 250,000 and 290,000 people.47  By February 2004, the Combined Forensic Team of the Coalition Provisional Authority (CPA) had collected information on 259 mass graves in Iraq.  Of these, U.S. military criminal investigation teams had conducted preliminary assessments of fifty-five sites by February 2004.48

Identity documents of a woman and her two children found in a mass grave near Mosul
that is believed to contain the remains of hundreds if not thousands of Kurdish women and children
executed by Iraqi forces in September 1988.
(c) 2003 Eric Stover/Human Rights Watch

Mass grave sites in Iraq have been located as far north as Mosul and as far south as Basra, and some sites are believed to contain thousands of victims of extrajudicial executions.  Burial sites of individual victims have been located in cemeteries near prisons or on the grounds of security headquarters throughout Iraq.  Most of the graves uncovered so far have contained Iraqi victims, but other graves may also hold the remains of Iranian and Kuwaiti soldiers who were executed while in Iraqi custody.  For example, in December 1991, a forensic team with Human Rights Watch and Physicians for Human Rights uncovered the graves of nineteen Iranian soldiers on the grounds of the Sardaw military base near Sulaimaniyya.49  After examining the remains, the forensic experts found several skulls with evidence of single gunshot wounds. 

Secrecy and Witnesses

The secrecy under which the Iraqi military and police conducted burials in Iraq means it will be impossible for investigators to locate all the graves.  When graves are located, it will be difficult in many instances to determine the identity of the victims because Iraqi military and police abducted people in one part of the country and often transferred them to other areas, sometimes up to hundreds of kilometers away, for interrogation and execution.  The passage of time and burial conditions have also caused remains to deteriorate and, in some cases, to disintegrate.  This situation is further compounded by the fact that documents belonging to the police and security forces were destroyed during the war and subsequent looting (see above).  Some of these documents may have contained valuable information about the circumstances surrounding mass burial sites. 

What little is known today about the mass graves in Iraq has come from individual Iraqis who miraculously survived mass executions, witnessed killings, or came across freshly dug graves in the course of their daily activities.  In September 2003, a shepherd led ‘A’id Rashid ‘Ido, a lieutenant in the Iraqi Civil Defense Corp (ICDC), to two mass graves located in the al-Jazeera desert west of Mosul.  The witness was unsure of the exact month, but he recalled discovering the graves sometime in 1988, shortly after he observed Iraqi military and civilian vehicles transporting what appeared to be Kurdish women and children on the road that passes his village.  Lt. Rashid ‘Ido took Human Rights Watch researchers to the site on February 24, 2004, where they found toys, children’s clothing, and remnants of clothing traditionally worn by Kurdish women.  Several skulls retrieved from the grave revealed single, gunshot wounds to the head.  The witness said he believed one of the graves may contain as many as 3,000 victims.50 

Similarly, Haj Khalid Rasul al-‘Am, the director of the cemetery department of Baghdad governorate, directed Human Rights Watch to a graveyard in a walled-off section of the al-Karkh cemetery, located close to the notorious Abu Ghraib prison compound near Baghdad.  According to Khalid Rasul, the burial site contains approximately 1,000 numbered graves of execution victims.  He told Human Rights Watch how he secretly began to document cases of execution victims to assist future identification:

I started work on January 1, 1987.  At the beginning, I was surprised when [the security organizations] brought a group of hanged prisoners from Abu Ghraib [prison].  They buried them in a bad way, without tradition, just throwing them in a grave. …I felt guilty because we were burying those people without the knowledge of the families.  I started taking the ribbons off their arms and numbering the graves, and put the [grave] numbers on their death certificates.  I was hoping that one day the families would come asking for their bodies and I could give them the death certificate with the grave numbers.51

Between 1987 and 2003, the cemetery director registered 993 execution victims buried at al-Karkh. He estimated that the vast majority of the deceased were victims of political persecution. One of the bodies located in the graveyard was that of a brother of Human Rights Watch’s translator. The brother had been a military officer and was executed for his alleged involvement in a coup attempt against the government.

In May 2003, Iraqis began exhuming graves that they believed to hold the bodies of those who had disappeared during the rule of Saddam Hussein.  This chaotic process took place in over a dozen communities throughout Iraq, and was often observed by U.S. and U.K. forces that chose not to intervene to halt the diggings because they feared it would cause disturbances.52  “We didn’t want U.S. soldiers stopping grieving mothers from getting access to the graves of their children,” CPA senior human rights adviser Sandy Hodgkinson told Human Rights Watch.  “It would not have been a good image of U.S. occupiers or for the healing process.”53 

In fact, very few Iraqis found the graves of their children, in significant part because of the failure of the U.S.-led coalition to secure the sites and provide assistance with exhumations. At two sites located near the al-Mahawil military base just north of the southern city of al-Hilla, U.S. soldiers watched for several days in May 2003 as villagers used a backhoe to dig up the remains of more than 2,000bodies, gouging and commingling countless skeletons in the process, while some families used their hands to dig for bones and shards of clothing and carted them away in wheelbarrows and buckets. The unprofessional manner in which the graves were unearthed made it impossible for many relatives of the missing to identify many of the remains, or even to keep the remains intact and separate.  At the end of the process, more than one thousand remains were again reburied without being identified.  In the absence of forensic experts, crucial evidence necessary for future trials was never collected, and may have been irreparably destroyed.54 

A similar incident took place on May 7, 2003, when a twenty-year-old shepherd took local residents to an open clearing known as al-Birjisiyya, thirty miles south of Basra, where he said Ba`th Party members had executed dozens of men during the al-Sadr uprising of 1999.55  Using a backhoe, residents unearthed thirty-four bodies from the site and took them to the al-Jumhuriyya mosque.  When Human Rights Watch researchers visited the mosque on May 13, some of the remains were commingled and incomplete.  Relatives claimed to have identified twenty-nine sets of remains based on identification cards found in the grave or by relying on clothing, jewelry, or a favorite brand of cigarettes.  Forensic scientists refer to this type of identification as “presumptive identification.”  Because such items as clothing and jewelry can be exchanged or misplaced by those taken into custody, this mode of identification is given less credence than scientific methods that search for unique biological characteristics on the skeleton that can be compared to and individual’s medical and dental records or subjected to DNA analysis.  It is likely that some families may have misidentified remains because they were convinced their relatives were buried at the al-Birgisia site. 

In some instances, Iraqis have called on the Iraqi Red Crescent to exhume graves.  In April and May 2003, the Iraqi Red Crescent in Kirkuk exhumed two mass graves allegedly containing the victims from the 1991 Kurdish uprising.  In all, the Red Crescent workers recovered eighty-one bags of remains from the two sites and transported them to the morgue at the Azadi hospital in Kirkuk.  Morgue officials told Human Rights Watch that thirty-six individuals had been identified by families based on identification cards and clothing found in the graves.  On February 2004, Human Rights Watch researchers examined the unclaimed bags of remains in a back room of the morgue.  Many of the bags contained the remains of one or more skeletons and several had fallen on their side, strewing bones across the concrete floor. 

Skull of a woman with a single gunshot wound, mass grave near Hadhar, south of Mosul.
(c) 2003 Hania Mufti/Human Rights Watch

Experience in Iraq has shown that when families of the missing, and even whole communities, are informed that a more professional and orderly manner of exhuming graves will result in a higher number of positive identifications, they generally have been willing to stop their own exhumations and wait for outside forensic assistance.  Residents of al-Najaf stopped exhuming a mass grave in June 2003 after a representative of the International Committee of the Red Cross (ICRC) visited the site with a group of religious leaders.  Three weeks later, the ICRC sent the religious authorities a report containing a list of steps the community could take to preserve the over 200 remains already exhumed.  It also pledged to supply the community with materials and equipment to complete the exhumation process.  However, after the bombing of ICRC headquarters in Baghdad on October 27, 2003, the organization pulled its international staff out of the country and suspended its initiative to support community capacity building to exhume mass graves in Iraq.56

In Kurdish areas of northern Iraq, officials with local government committees dedicated to mass graves investigations told Human Rights Watch in February 2004 that, as a matter or policy, they have restrained bereaved relatives from digging up suspected graves of the missing.57  However, they also added that they had grown impatient with the CPA and nongovernmental organizations for having not fulfilled their promises made soon after the end of the war to provide forensic assistance and long-term training.58  If assistance was not forthcoming, the officials said, they would proceed with their own exhumations.

Forensic Investigations

Why exhume the mass graves in Iraq?  First, forensic exhumations can assist prosecutors in bringing those responsible for these crimes to justice.  Second, as disappearances are an ongoing crime, the government has an obligation to investigate and inform families of the fate or whereabouts of the “disappeared.” Finally, from a humanitarian perspective, at least some of the families will know the fate of their loved ones and be able to give them a proper burial Forensic exhumations can help reconfirm the dignity of the victims and the value of human life, which in turn can help the families and their communities restore a sense of personal and social well-being.59  Third, the process of investigation and documentation can help create a historical record of past crimes.

In the context of mass graves investigations, physical evidence encompasses the bodies of the murder victims, the corpus delecti, and any artifacts, such as projectiles, that may be recovered in or around the grave.  In essence, forensic experts corroborate witness and documentary evidence by identifying victims—this may be a general identification, e.g. Kurdish, or a specific identification, e.g. John Doe—of mass killings and determining the cause and manner of death.  If the charges entail genocide and crimes against humanity, they also look for patterns in the mayhem:  Did the victims belong to a particular ethnic or religious group?  What methods did the killers use to dispatch their victims?  Were the methods similar at different execution sites?  Did the killers make an effort to cover their tracks? 

Past experience in several countries suggests that evidence from mass graves can fulfill several evidentiary needs in proving serious international human rights or humanitarian law crimes.  First, forensic investigations can help locate and identify missing enemy combatants (in the case of Iraq, this would primarily involve Iranian and Kuwaiti combatants) and determine whether they died in battle or were the victims of war crimes.  Second, forensic investigations of mass graves can help uphold a charge of genocide, which requires that the prosecution prove that the alleged perpetrators committed acts with the intent “to destroy, in whole or in part, a national, ethnic, racial or religious group.”60  As such, particular persons became victims because of how they were perceived by the perpetrators.  A forensic investigation will then focus on ascertaining the “categorical identification” of the dead, such as the victims’ ethnicity, religion or race, and the cause and manner of death. 

This approach was applied successfully in the ICTY’s prosecution of Radislav Kristic, the Bosnian Serb commander of the Drina Corps who was convicted in 2001 of genocide against the Bosnian Muslim population during the siege of the eastern Bosnian town of Srebrenica six years earlier.61  During the pre-trial investigation, forensic experts exhumed a series of mass grave in the hills surrounding Srebrenica and found they contained the remains of hundreds of Bosnian Muslim men, many of whom bore blindfolds and ligatures and wounding patterns consistent with execution-style killings.

Finally, forensic scientists can help prosecutors determine if a series of mass killings constitutes a “crime against humanity,” which encompasses a wide range of acts—mass murder, extermination, enslavement, deportation, rape, torture—committed against civilians on a large scale.62  Forensic exhumations and postmortem examinations can corroborate witness testimony and documentary evidence by determining if the victims of mass killings were civilians, determining how they had died, and, if the accused is a high ranking military or civilian official, by demonstrating, for example, that the systematic and widespread nature of the killings suggested they had been planned in high places.  In such cases, prosecutors do not need to prove every single murder, or every single massacre, but they do need to confirm a pattern of killing and destruction directed against civilians or those otherwise protected under the Geneva conventions.         

Investigation of the graves of the missing in Iraq will be a formidable undertaking, fraught with logistical, humanitarian, and legal challenges.  These complex investigations require multi-disciplinary teams, long-term planning, and substantial financial and logistical support. To exhume even a few mass graves will require millions of U.S. dollars and possibly tens of millions if a comprehensive DNA-led strategy is pursued.  In this regard, experiences in the former Yugoslavia and Rwanda are instructive.

Since the establishment of two ad hoc international criminal tribunals for the former Yugoslavia and Rwanda in the 1990s, only a small fraction of the remains of the missing have been identified and returned to families for proper burial.  By 1999, dozens of forensic scientists from twenty countries had traveled to the former Yugoslavia republic to investigate the whereabouts of the missing on behalf of the International Criminal Tribunal for the former Yugoslavia (ICTY) and to train local scientists in the procedures of unearthing mass graves.63  While these investigations produced significant court-admissible evidence, they were less successful in identifying the dead.  When peace came to Bosnia in 1995, 30,000 people were missing.  By June 2003, after eight years’ work by dozens of full-time forensic specialists, about 15,000 bodies had been exhumed and around 9,000 (thirty percent) identified.  DNA analysis has contributed to about 3,000 of these identifications.64 

In Rwanda, the sheer number of dead (estimated between 500,000 and 800,000) has made it virtually impossible for the country’s government or the International Criminal Tribunal for Rwanda (ICTR) to undertake large-scale forensic investigations.65  Indeed, out of nearly 500 individuals examined from exhumations in the eastern town of Kibuye in 1995, only seventeen were identified.  Six carried identifying documents and eleven more had clothing or personal effects recognizable to acquaintances.  None had hospital X-rays or dental records.  For only two of the victims could surviving blood relatives be located.  Soon after the Kibuye exhumation, the Rwanda tribunal ended its forensic program.66

The experience of the international tribunals points to a tension between the identification by category needed for criminal prosecution and the personal identification desired by families and loved ones, a tension that is exacerbated by the much greater resources required for the latter. The absence of identifiable physical remains greatly impedes the ability of families to accept and to commemorate properly the death of missing relatives. For this reason, the Iraqi authorities and the international community need to make resources available to ensure that at the very least exhumations are conducted in a commemorative manner, as a key dimension of social reconstruction in the aftermath of the trauma of mass killings. The authorities need to work with community leaders and families to help them address their loss in a way that accords them and their missing loved ones status and dignity.

Security and Limited Resources

War and subsequent looting of Iraq’s medical facilities has left its medicolegal system in shambles.67  The forensic facility in southern city of Basra, for instance, was completely looted following the war, leaving it without plumbing and electricity.  While Iraq has well-trained and dedicated forensic pathologists, it has no forensic anthropologists.  Similarly, while Iraqi archeologists, numbering around 160, are skilled at historical excavations involving mainly artifacts, they have no forensic experience.68  Iraqi medical professionals and forensic scientists have traditionally identified the dead through circumstantial evidence, including visual recognition of the body or presence of identity documents in the clothing of the deceased.  As a result, Iraq has no procedure in place for collecting and preserving antemortem dental documentation or medical radiographs that are often vital for identification of skeletal remains.69  Iraq also does not have the capacity to conduct DNA analysis of bone and teeth, which, when compared with blood samples collected from relatives of victims, can lead to positive identifications. It is unlikely, based on experience in Bosnia and elsewhere, that even one-fourth of the missing persons exhumed from Iraq’s mass graves will be positively identified using forensic techniques including DNA analysis.

Iraq’s capacity to investigate suspected mass graves has also been undermined by the ICRC's withdrawal from the country in October 2003.70  Prior to its departure, the ICRC and the Medico-Legal Institute in Baghdad were working on a training program in forensic anthropology for Iraqi pathologists and physicians.  The ICRC had also developed a plan to assist local Iraqi communities conduct basic, community-led exhumations.71  The ICRC intends to re-instate these programs once the security situation allows the organization to return international staff to Iraq.  

In the summer of 2003, the CPA’s three-person forensic unit developed a five-step “Mass Graves Action Plan.”   Step One focused on raising public awareness about the necessity of preserving graves so that they could be exhumed in an orderly and professional manner.  Step Two entailed the dispatching of international forensic teams to conduct preliminary assessments of graves.  Step Three sought to secure several mass graves for full-scale forensic investigations, although by February 2004 only a few of these sites were under twenty-four-hour guard.  Step Four envisioned the training of local archeologists and health professionals to conduct exhumations and cursory post-mortem examinations.  In November 2003, the CPA forensic unit conducted a three-day training seminar in Baghdad for representatives of nongovernmental organizations and university scientists and archeologists on the forensic investigation of mass graves.  The forensic unit held a follow-up seminar in Sulaimaniyya in April 2004.  Step Four entailed working with the International Committee of the Red Cross (ICRC) to establish a national Iraqi Bureau of Missing Persons. Step Five envisioned a period of transition whereby the CPA would turn over responsibility for forensic investigations of past crimes to a new Iraqi government with assistance from the international community, as requested.

As of the end of June 2004, no such bureau had been established; nor have the Iraqi authorities established one in the months since. CPA initiatives to help Iraqis develop a comprehensive plan to carry out both criminal and humanitarian exhumations of mass graves throughout the country also have not materialized. Human Rights Watch believes that the responsibility for developing and implementing such a comprehensive plan should be assumed initially by a joint Iraqi and international commission which would eventually be run by Iraqis alone.

The CPA action plan divided gravesites into three levels.  Level 1 sites were to be investigated by international forensic teams to collect evidence for future trials.  These sites, estimated between ten and twenty, must be representative of five major periods of repression, including the 1988 Anfal campaign against the Kurds and the 1991 killings of Shi’a Muslims and Kurds after the mass uprising at the end of the Gulf War.  The CPA estimated that each Level 1 exhumation will take six to eight weeks to complete.  Level 2 sites, which may number between forty and sixty, were to be investigated by Iraqi-trained teams for historical purposes, namely, to document sites associated with major periods of repression throughout Iraq.  Level 3 sites were those that would be turned over to local communities for exhumation and reburial.72

By the time the CPA was formally dissolved on June 28, 2004, no program had been designed to apply DNA analysis to the identification of the remains of the missing in Iraq.73 According to CPA officials, this was for several reasons.74 First, the CPA believed that DNA analysis would be too costly and time consuming given the number of dead and the logistics involved in gathering and preserving bone and teeth samples from graves.  A nationwide DNA collection program would have required the formation of an overall coordinating body responsible for the collection, storage, transport, and chain of custody of DNA samples, as well as the selection and accreditation of laboratories to conduct the analysis.  This body would also have needed to set strict standards to ensure that DNA data was not used, disclosed, or transferred for purposes other than for identification purposes without the consent of the donor.75  Second, as it was likely that local residents with little or no forensic supervision would exhume many of the graves in Iraq, a considerable risk existed that bone and teeth samples could become contaminated or mislabeled which would complicate the identification process.  Finally, there was always the danger that the use of DNA analysis could raise unrealistic or false expectation on the part of the families of the missing.76       

The CPA had relied on governments to donate forensic teams and equipment, but few were forthcoming because of security concerns and the high cost of such operations.77  Human Rights Watch understood that some European forensic teams were also concerned about the use of forensic evidence resulting from their work being used in future trials that could lead to death sentences being passed by the Iraq Special Tribunal.  In March 2004, the Dutch government decided not to send a forensic team to work on a Site 1 investigation and, earlier in the month, the Finnish government withdrew a team from Iraq earlier following an attack on Finnish businessmen in Baghdad.78  Meanwhile, in February 2004, insurgents detonated a daisy-chain bomb on a remote road in southern Iraq injuring several Kuwaiti forensic scientists en route to exhume a mass grave believed to contain the remains of Kuwaiti prisoners of war executed by Iraq forces during the 1991 Gulf War.79

In discussions with U.S. Department of Justice officials in March 2004, Human Rights Watch expressed concern about mounting media speculation that indictments against the first group of defendants may be issued within the coming months without the availability of forensic evidence.  DOJ officials said that trials would not proceed without the forensic evidence, but added: “We cannot spend eight weeks at a grave site in a secure environment to get at the evidence.  We need to carry out surgical visits to gravesites, to estimate the size and age of the site and the identities and origin of the victims” by exhuming a section of each chosen site.  They stressed that this should be done as speedily as possible: “We need forensic testimony for the process.  We know we have to get to the gravesites as soon as possible for any trials or indictments.”  Given the high costs of such operations, and the recognition that “the U.S. army cannot protect us,” it was felt that the “short-term sampling” approach, involving “multiple teams covering a short period of four to five weeks” would be more realistic.  Officials expressed the hope that such teams could be deployed on the ground “by June or July at the latest.”80  In April 2003, however, with continuing deteriorating conditions in Iraq and the outbreak of a spate of abductions, and in some cases killings, of foreigners in Iraq, the CPA’s forensic team was withdrawn from Iraq as a precautionary measure. 

Relatives with remains of loved ones recovered at mass grave.
Taxis in background are on hand to take the families home once they are ready to leave.
(c) 2003 Peter Bouckaert/Human Rights Watch

In late July 2004 RCLO Adviser Greg Kehoe told Human Rights Watch that efforts to begin exhumations for evidentiary purposes were ongoing since April, but that the issue of security remained a major concern and plans had been put on hold for that reason.  However, he added that “exhumations have now begun and will continue for the foreseeable future,” using the short-term sampling approach.  The aim was to spend some six weeks on each selected site, undertaking “typical crime scene forensic work” with a view to documenting what executions did take place, the manner of the executions, and the religious, ethnic and other affiliations of the victims.  DNA analysis was being ruled out on grounds of cost and for practical considerations, principally the ability to obtain DNA samples from living relatives for comparison.  If any identity cards or other artifacts are found in the course of exhumations that would help identify individual victims, that would be a “bonus,” he said.81

By mid-October 2004, only two forensic exhumations of mass graves had begun in Iraq, despite the CPA’s plan to have several sites completed by the turn over of power to the Iraqis at the end of June 2004.  In August 2004, a U.S. team of archaeologists and engineers began examining a series of mass graves located about seventy kilometers (forty-two miles) south ofMosul, near the village of Hadhar.82 Human Rights Watch researchers visited the Hadhar graves in February 2004. As of mid-October, approximately 300 sets of human remains, mostly of Kurdish women and children, have been discovered in the Hadhar graves. Of these, between 15 and 20 percent bear identifying documents. It appears that the remains are those of victims of the Anfal campaign who were buried at the site in 1988. Many of the victims reportedly bear single gunshot wounds to the head.

As of October 2004, the greatest constraint on the forensic investigation of mass graves in Iraq remained the lack of security.  Security at gravesites is paramount.  Twenty-four hour site security is essential once forensic work has commenced.  This not only insures the integrity of the crime scene and the safety of personnel, but also the security of supplies and equipment left at the site when forensic personnel are absent.  A CPA official told Human Rights Watch in February 2004 that coalition military commanders were reluctant to provide in situ protection of forensic teams working at mass grave sites because of other competing demands.83  This was especially true in the southern areas of Iraq.  RCLO Advisor Greg Kehoe told Human Rights Watch that the U.S.-led Multinational Force had agreed to provide security, which would represent a departure from the stance under the CPA. Equally important is the need to have an overall plan in place that will keep communities informed of exhumations and enable forensic teams to work safely and effectively. Until a plan is in place and the security situation improves, it is unlikely that any full-scale effort to conduct multiple forensic investigations or exhumations of Level One gravesites will commence in the near future. 

Humanitarian Needs

In criminal cases involving genocide and crimes against humanity, the ad hoc international tribunals have placed greater emphasis on “categorical identification” as opposed to “personal identification” of victims.  This approach has created a tension between the humanitarian needs of families of the missing and the evidentiary needs and mandate of international war crimes tribunals.  On the one side are the families who wish to know the fate of their missing relatives and, if they have died, to receive their remains.  On the other side are the ad hoc tribunals that have lacked the resources to undertake forensic investigations aimed at identifying all of the dead.  The Iraqi authorities would do well to heed this dilemma and initiate a program that helps communities recover the dead in a dignified manner for anonymous burial at memorial sites.

Only a small number of the remains of the hundreds of thousands who disappeared during Ba`thist rule in Iraq will ever be identified and returned to families for proper burial.  Hundreds, perhaps thousands, of remains have already been condemned to unidentifiable status due to substandard exhumations and identifications.  There has been no coordinated documentation of where the remains claimed from the mass graves were reburied. 

This situation stands in stark contrast to the expectations of many Iraqis who believe graves will be located and that remains will be exhumed, identified, and returned to families for reburial.  Forensic anthropologist William D. Haglund, who has accompanied Human Rights Watch researchers to several mass graves in Iraq, believes that the presence of well-equipped foreign military forces may have raised Iraqi expectations:

One dynamic that may inspire Iraqis…is that they see an occupation force with wonderful logistics, immense resources, and a “can do” attitude.  To the observing Iraqis, there is a perceived promise that these resources will be brought to bear in a major way on grave exhumations and identification of the dead.  This perception was certainly bolstered at one of the missing persons centers because of the promises they believe CPA representatives have given them.84

The reality is that for many families resolving the fate of missing relatives will be realized not by exhumations but by discovering their names on an execution list or a list of those arrested and detained by Iraqi security forces or through the knowledge that relatives went to war or were arrested and were never heard from again.  Still, for other families, the fate of missing relatives will only be resolved by having their remains identified. Without bodies and funerals, relatives of the missing often are unable to visualize the death of their loved ones and accept it as real, and are unable to fulfill their religious and communal obligations to the dead.85  Without the remains of loved ones, many Iraqis families are experiencing “ambiguous loss,” a condition in which no tangible evidence exists that a missing person is alive or dead.86  The absence of bodies has also robbed families of the visual cues that would help them to acknowledge the death of their loved ones and to pass through the stages of mourning and grief.  Moreover, their experience remains unverified by the community around them, so that there is little validation of what they are experiencing and feeling.  Because ambiguous loss is a loss that goes on and on, those who experience it often become physically and emotionally exhausted from the relentless uncertainty.87 

Mass violence and its aftermath must also be understood as a collective experience.  Individuals lose family members and communities are decimated, as was the case in northern Iraq when Iraqi troops destroyed more that 2,000 Kurdish villages in the 1987-89 period alone.88  In Iraq, many families are dealing with the ambiguous loss of relatives as well as the loss of their homes and communities.  Iraqis of all faiths view bereavement as an experience to be shared, strengthening the solidarity of family and community.  In this context, an important source of resilience for families of the missing will be the communal involvement in efforts to locate; exhume; rebury; memorialize; and, to the extent possible, identify the dead.

Whenever possible, exhumations in Iraq should thus be commemorative events designed to help individual mourners and communities receive acknowledgement of their loss and move forward in the grieving process.  Exhumations should be viewed as part of a process of social reconstruction, one that gives families and communities the possibility and means of disinterring and re-burying the dead in a respectful manner, of paying homage to them, and of giving them the status and dignity of which they were deprived by war and political violence.  

The problem of the missing in Iraq will only be solved through a comprehensive program that satisfies both the evidentiary needs of criminal trials and the humanitarian needs of the families of the missing and their communities.  The Iraqi authorities, in consultation with the United Nations and the International Committee of the Red Cross, should establish a joint Commission on the Missing that is Iraqi and international in composition to oversee the grave exhumation process.  This body should seek the advice and participation of local and international organizations, including representatives from family and local religious groups, the International Commission of Missing Persons, and forensic teams sent to Iraq by governments and other entities.  The Commission should oversee the training of local forensic scientists, archeologists, and health professionals in the recovery and analysis and in the assessment and treatment of the mental health of the surviving families of the missing.  Participation of international members on the commission will help facilitate the procurement of funds and personnel and the passing on of “lessons learned” from forensic investigations in other countries.  Over time, the commission could be transformed into an all-Iraqi commission.      

Whenever a mass grave is located, the joint Iraqi-international Commission on the Missing, working in collaboration with local authorities, should secure the site and consult communities about the best approach and timetable for exhuming it.    Suitable local people (e.g. medical doctors or others with formal training either in archaeology or anatomy) will need to be identified and trained in the basic methods and procedures of excavation and forensic anthropology.  Other suitable people will need to be trained to assist with the more manual aspects of excavation, recording of findings in writing, securing clothing and other artifacts and labeling these and the remains accurately, and taking photographs. 

The joint Commission should also have a plan in place for dealing with both identified and unidentified remains retrieved during community-lead exhumations.  This plan should be nationwide in scope, but flexible enough to deal with the particular wishes of families and their communities.  Some families, for example, may wish to receive identified remains for burial in their local cemetery, while others may be willing to have them buried in a regional or national memorial cemetery.  Plans are already underway to establish a memorial museum and cemetery for Kurdish victims near the northern city of Kirkuk. Other locations may choose to follow a similar path and the joint Commission should facilitate such an approach.

[46] Eric Stover and Rachel Shigekane, “The missing in the aftermath of war:  when do the needs of victims’ families and international war crimes tribunals clash?” International Review of the Red Cross; 2002:848:845-865.

[47] See George Black, Iraq’s Crime of Genocide: the Anfal Campaign against the Kurds (New Haven, Connecticut:  Yale University Press), and Human Rights Watch, Justice for Iraq: A Human Rights Watch Policy Paper, December 2002. The estimate of 290,000 “disappeared” and presumed killed includes the following: more than 100,000 Kurds killed during the 1987-88 Anfal campaign and lead-up to it; between 50,000 and 70,000 Shi`a arrested in the 1980s and held indefinitely without charge, who remain unaccounted for today; an estimated 8,000 males of the Barzani clan removed from resettlement camps in Iraqi Kurdistan in 1983; 10,000 or more males separated from Feyli Kurdish families deported to Iran in the 1980s; an estimated 50,000 opposition activists, including Communists and other leftists, Kurds and other minorities, and out-of-favor Ba`thists, arrested and “disappeared” in the 1980s and 1990s; some 30,000 Iraqi Shi`a men rounded up after the abortive March 1991 uprising and not heard from since; hundreds of Shi`a clerics and their students arrested and “disappeared” after 1991; several thousand marsh Arabs who disappeared after being taken into custody during military operations in the southern marshlands; and those executed in detention—in some years several thousand—in so-called “prison cleansing” campaigns.

[48] The CPA Combined Forensic Team consists of a physical anthropologist, forensic archeologist, and archeologist.  The CPA has received forensic assistance from several governments and private, nonprofit forensic teams dedicated to investigating violations of human rights and international humanitarian law.  Human Rights Watch interview with Jon Sterenberg, Archeologist, Combined Forensic Team, Coalition Provisional Authority, Baghdad, February 24, 2004. 

[49] See Eric Stover, Unquiet Graves: The Search for the Disappeared in Iraqi Kurdistan, Middle East Watch, a division of Human Rights Watch, and Physicians for Human Rights, March 1992.  In spring 1985, two years before the base was built, a group of Kurdish secondary students found the bodies exposed on the slopes of Saywan Hill.  Some of them were still in uniform.  The students notified local residents, who called the municipality, which, in turn, dispatched a local gravedigger, Sadiq ’Issa, to dispose of the bodies.  Essa told the forensic team that many of the bodies had intravenous needles in their forearms.  He speculated that they were captured Iranian soldiers who had been hospitalized by the Iraqis and then later executed in retaliation for an Iranian attack, which was a common practice during the Iraq-Iranian War.  “I could see some of them had been shot in the head,” he said.  “And on some of them I found identification papers and even photographs of their families.  I placed these things in glass jars and, as I buried them, I placed the jars between their legs.”  The International Committee of the Red Cross turned over the remains of the Iranian soldiers to the Iranian authorities in 1992.    

[50] HRW examined three of the ID cards recovered from the site; one bore the photograph of a woman, the two others of young children.  All three were Kurds from the Dokan region, northeast of Sulaimaniyya.  Months  prior to the HRW visit, the ICDC and a team with the Criminal Investigation Division of the U.S. Armed Forces Institute of Pathology had made separate incursions into one of the graves.  Among the objects recovered were toys, remnants of clothing typically worn by Kurdish women and children, and several Iraqi identification cards.  

[51] Human Rights Watch interview with Haj Khalid Rasul al-‘Am, Baghdad, June 16, 2003.

[52] Human Rights Watch, The Mass Graves of Al-Mahawil:  The Truth Uncovered, Vol. 15, No. 5 (E), May 2003.

[53] Human Rights Watch interview with Sandy Hodgkinson, Senior Adviser on Human Rights, Coalition Provisional Authority, Baghdad,  February 12, 2004.

[54] Human Rights Watch, The Mass Graves of Al-Mahawil:  The Truth Uncovered, Vol. 15, No. 5 (E), May 2003.

[55] Marc Santora, “Mass Grave is Unearthed Near Basra,” New York Times, March 11, 2003.

[56] Radio Free Europe, “Iraq:  34 Reported Killed in Baghdad Bombings,” October 27, 2003.

[57] Human Rights Watch interview with Mansour Hama Karim, Director, PUK Commission of Southern Area Mass Graves, February 17, 2004 and Nermine Qaradaghi, KDP Deputy Minister of Human Rights on February 19, 2004.  Kurdish officials have visited numerous suspected mass graves sites since May 2003.  These teams usually probed a site with shovels and picks to determine if it contains human remains, but, by and large, they left it intact.

[58] The CPA Combined Forensic Team has given two training sessions since May 2003, lasting no more than three days.  Several participants who attended the first training session in November 2003 said it was useful as a general introduction to forensic archaeology and anthropology but provided little practical knowledge on how to exhume graves and identify skeletal remains. 

[59] William D. Haglund, “Recent Mass Graves, An Introduction,” in William D. Haglund and Marcella H. Sorg (eds.), Advances in Forensic Taphonomy:  Methods, Theory, and Archaeological Perspectives (Boca Raton, Florida:  CRC Press, 2002), p. 245.

[60] Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, adopted Resolution 2670 (III) A of the General Assembly of the United Nations on 9 December 1948, Article 2, entered into force on 12 January 1951.

[61] See The Prosecutor v. Radislav Krstic:  Judgment and Sentence, International Criminal Tribunal for the former Yugoslavia, Case No. ICTY IT-98-33, August 2, 2001.

[62] The term originated in the Preamble to the 1907 Hague Convention, which codified the customary law of armed conflict.  In 1945, the United States and its Allies incorporated it in the Nuremberg Charter.  See The Charter of the International Military Tribunal, annexed to The London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, of August 8, 1945, Article 6.

[63] Eric Stover and Rachel Shigekane, “The missing in the aftermath of war:  when do the needs of victims’ families and international war crimes tribunals clash?” International Review of the Red Cross (2002) 848:845-865.

[64] Stephen Cordner and Robin Coupland, “Missing people and mass graves in Iraq,” The Lancet (2003)  362:1325-1326. 

[65] See the Prosecutor v. Jean Kambanda:  Judgment and Sentence, International Criminal Tribunal for Rwanda, Case No. ICTR 97-23-S, September 4, 1998.

[66] See Eric Stover and Molly Ryan, “Breaking Bread with the Dead,” Historical Archeology (2001) 35:7-25.

[67] The Medico-Legal Institute in Baghdad oversees the work of provincial morgues throughout the country.  By and large, these institutions confine their work to autopsies on bodies brought to them by the police and thus have little, if any, experience in crime scene investigation.  The Baghdad Medico-Legal Institute has not received new equipment since the late 1980s.  Since the end of the war, the institute has had to deal with an upsurge of firearm-related deaths.  In the six months before the war, the institute documented approximately ninety-six such deaths.  By August 2004, the number had risen to 518 per month (Human Rights Watch discussion with Dr. Fa’eq Amin Bakr, Director, Medico-Legal Institute, Baghdad, February 23, 2004.)

[68] Human Rights Watch interview with ‘Abd al-Rahman Muhammad ‘Ali, Director of Archeological Investigations, Archeology Directorate, Baghdad, February 4, 2004.

[69] Eric Stover and Molly Ryan, “Breaking Bread with the Dead,” Historical Archeology, 2001;35:7-25.

[70] After the bombing of the ICRC, the ICRC donated furniture and computers to the Medico-Legal Institute in Baghdad.  It also pledged some 200,000 to 300,000 Swiss Francs to purchase equipment for the institute.   

[71] Personal communication, Morris Tidball Binz, Foresnic Coordinator, International Committee of the Red Cross, March 31, 2004.

                The ICRC notes that human remains are usually “examined and identified by means of a team effort.  However, the process should be under the overall responsibility of a professional:  (a) who has the qualifications, skills, experience needed to make conclusions about the deceased’s identity, the pathology (including injuries) present in the deceased and the cause and manner of death; (b) who practices his/her profession with an organized ethnical framework; and (c) who can be held accountable for errors or unethical practices….It is therefore preferable that this person be a forensic pathologist, as this reflects legal arrangements in most parts of the world.”  International Committee of the Red Cross, ICRC Report: The Missing and Their Families, ICRC/TheMissing/o1.2003/EN/10, Geneva, Switzerland, 2003, p. 72.

[72] Human Rights Watch interview with Jon Sterenberg, Archeologist, Combined Forensic Team, Coaltion Provisional Authority, Baghdad, February 24, 2004.

[73] DNA analysis of skeletal remains usually involves the comparison of the genetic composition of a piece of bone or tooth of the deceased to a sample of blood, saliva, or hair from a potential biological relative. See Michele Harvey and Mary-Claire King, "The Use of DNA in the Identification of Postmortem Remains," in William D. Haglund and Marcella H. Sorg (eds.) in Advances in Forensic Taphonomy:  Method, Theory, and Archeological Perspectives (Boca Raton, Florida:  CRC Press, 2002),  pp. 473-486.

[74] Human Rights Watch interview with Jon Sterenberg, Archeologist, Combined Forensic Team, Coalition Provisional Authority, Baghdad, February 24, 2004.

[75] See “Protection and Management of Personal Data” in International Committee of the Red Cross, ICRC Report: The Missing and Their Families, ICRC/TheMissing/o1.2003/EN/10, Geneva, Switzerland, 2003, pp. 34-35.

[76] The ICRC notes that “it is the responsibility of the head of the forensic team to ensure that relatives, and the community are informed about the limitations of the methods chosen to identify human remains so as not to raise unrealistic and false expectations.” International Committee of the Red Cross, ICRC Report: The Missing and Their Families, ICRC/TheMissing/o1.2003/EN/10, Geneva, Switzerland, 2003, p. 72.

[77] In June 2003, the U.S. government dispatched a forensic team to assess possible mass graves sites in northern Iraq, and in October 2003, the Danish government sent a forensic team to assess sites in southern Iraq.  Similarly, a British based nongovernmental organization, the International Forensic Center of Excellence for the Investigation of Genocide, sent a team of eight forensic scientists to Baghdad to begin drafting medicolegal protocols for future exhumations.

[78] Personal communication, Jon Sterenberg, March 29, 2003.

[79] “Attack on Kuwaiti team probing mass graces in Iraq,” BBC Monitoring Middle East, February 17, 2004, quoting Kuwait News Agency (KUNA) website.

[80] Human Rights Watch discussion with Department of Justice officials, Washington, D.C., March 26, 2004.

[81] Human Rights Watch discussion with Greg Kehoe, RCLO Adviser, Baghdad, July 22, 2004.

[82] Philip O’Connor, “St. Louisans help uncover Iraqi massacres,” St. Louis Post-Dispatch, October 3, 2004. Although the name of the site is not identified in this account, most subsequent press accounts have referred to adhar as “Hatra.”

[83] Human Rights Watch interview with Sandy Hodgkinson, Senior Human Rights Adviser, Coalition Provisional Authority, Baghdad, on February 12, 2004.

[84] Personal communication, William D. Haglund, Director of International Forensic Programs, Physicians for Human Rights, March 29, 2004.

[85] Eric Stover and Gilles Peress, The Graves:  Srebrenica and Vukovar (Zurich, Switzerland:  Scalo, 1998).

[86] Pauline Boss, Ambiguous Loss:  Learning to Live With Unresolved Grief (Cambridge, Massachusetts:  Harvard University Press, 1999).  Boss writes:  “Ambiguous loss is always stressful and often tormenting. …Not only is there a lack of information regarding the person’s whereabouts, there is no official or community verification that anything is lost—no death certificate, no wake or sitting shiva, no funeral, no body, nothing to bury.  The uncertainty makes ambiguous loss the most distressful of all losses, leading to symptoms that are not only painful but often missed or misdiagnosed (pp. 5-6).”

[87] Mental health care providers have found that unresolved grief is often a primary contributor to the distress of patients requesting mental health services.  See A. Lazare, “The difference between sadness and depression,” Medical Insight, 2 (1970):23-31; A. Lazare, Outpatient Psychiatry:  Diagnosis and Treatment, 2nd ed. (Baltimore, Maryland:  Williams & Williams, 1989), pp. 381-397.  Se also K.J. Doka (ed.), Disenfranchised Grief (New York:  Lexington Books, 1989).

[88] George Black, Iraq’s Crime of Genocide: The Anfal Campaign Against the Kurds (New Haven: Connecticut:  Yale University Press, 1995), p.2. This figure covers only the period of the Anfal campaign; the total number of destroyed Kurdish villages under Ba`th Party rule is probably at least twice that number.

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