Constructing Forensic Evidence for International Criminal Trials Legal, Social and Scientific Approaches International and Comparative Criminal Justice Series

This book fills a significant gap in the literature by outlining a legal framework for international forensic investigations. It focuses particularly on mass grave exhumations, and explores the important role that has been played by forensic experts in the prosecution of core international crimes. The work examines the place of forensic exhumations in a number of key international criminal tribunals. It traces the role of forensic science in the international arena from the International Military Tribunal at Nuremberg, where it was peripheral, to its evolution as a critical part of accountability mechanisms, as demonstrated by the forensic programmes undertaken by the International Criminal Tribunals for the former Yugoslavia and Rwanda. This interdisciplinary study explores how strong, and how constrained, the legal framework is when addressing the question of forensic science where there are allegations of mass atrocities and raises important issues that are not sufficiently addressed by the existing framework.

Preface

Glossary

Acknowledgements

Introduction

A. The Exhumation of Mass Graves in an International Criminal Justice Context

B. The Purpose of Forensic Evidence for International Criminal Trials

C. Aims, Core Questions and Structure of book.

Introduction

A. Locating the Dead: Forensic Investigations of Atrocity Crimes

B. Caring for the Dead: The Importance of Customs and Rules Pertaining to the Dead and their Relevance in Times of Armed Conflict

C. International Humanitarian Law and Obligations to the Dead

(1) The Geneva Conventions of 1906 and 1929

(2) The Geneva Conventions of 1949 and the Additional Protocols of 1977

(3) Customary International Humanitarian Law Rules on the Dead

D. The Geneva Conventions and Protocols and Reference to Exhumations

E. International Standards on Forensic Investigations of Violations of International Human Rights and Humanitarian Law

F. Conclusion

Introduction

A. Defining Mass Grave

B. Locating Mass Graves for Evidential Purposes

C. Mass Grave Exhumation and Excavation

(1) Forensic Expertise

(2) Management of the Investigation

(3) Recording of Forensic Evidence

D. Forensic Evidence in the International Criminal Trial

(1) The Expert Witness

(2) The Admission of Evidence

E. Conclusion

Additional chapter sections to be added during revision:

Introduction

A. The International Military Tribunal at Nuremberg and the Production of Forensic Evidence

(1) The Nature of Evidence Presented before the Nuremberg Tribunal

(2) Forensic ‘Evidence’: The Katyn Pretence

(3) "To pass these defendants a poisoned chalice is to put it to our own lips as well": Reflections on the Katyn Charge at Nuremberg

B. Further Post-War Medico-Legal Investigations: British Army War Crimes Group and the Subsequent Proceedings at Nuremberg

C. Enforced Disappearances and the re-emergence of Forensic Investigations in a Human Rights Context

(1) Enforced Disappearances

(2) Exhumation of Mass Graves in a Human Rights Context: the Emergence of Contemporaneous Practice

D. Conclusion

Introduction

A. Preliminary Investigations: Investigating Atrocity Crimes in the Former Yugoslavia

(1) The Use of Forensic Expertise by the Yugoslav Commission of Experts

B. Forensic Investigations Conducted by the International Criminal Tribunal for the Former Yugoslavia

(1) Prosecutorial Strategy and Forensic Investigations

(2) The Forensic Programme

(3) The Scope and Scale of Site Excavation

C. Synergising Forensic Investigations with Humanitarian Mandates

D. Conclusion

Introduction

A. Investigating Atrocity Crimes in Rwanda: United Nations Special Rapporteur Reports and the Enquiries of the Commission of Experts Established Pursuant to Security Council Resolution 935

(1) Field Mission by the Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions

(2) Field Mission by the Special Rapporteur of the Commission on Human Rights

(3) The Rwandan Commission of Experts Established Pursuant to Security Council Resolution 935

B. Forensic Investigations conducted by the International Criminal Tribunal for Rwanda

(1) Forensic Investigations in the Kibuye Province

(2) Forensic Investigations in Kigali

C. Why was Forensic Evidence not used more extensively by the International Criminal Tribunal for Rwanda?

(1) Opposition from the Rwandan Government and the Prioritisation of Memorialisation

(2) Security and Financial Concerns

(3) Vast Number of Deceased Impeded the Execution of an Extensive Forensic Programme

(4) Prosecutorial Strategy

(5) Murders were not clandestine

D. Conclusion

Conclusion

Bibliography

Table of Cases