Modern forensic techniques for human identification as well as crime scene investigation protocols are also applied to the investigation of war crimes, aiding with assessing and characterizing the burden of proof against individuals before both national and international courts. Forensic techniques are essential in gathering physical evidence for the indictment, arrest, and prosecution of war criminals, and to the localization and identification of people who disappeared in times of war. The Hague Conventions of 1899 and 1907 established the Laws and Customs of War, and defined which breaches of these laws should be qualified and punished as war crimes. The use of poisonous weapons, wanton destruction of cities without military necessity, attacks on religious and cultural institutions, attacks of undefended civilian communities, and looting of public or private property are among war crimes defined by the Hague Conventions.
The International Military Tribunal, created in 1945, further defined war crimes in its Nuremberg Charter as any violations of the laws or customs of war, such as executions of captured military personnel or civilians without a judicial process, murder or ill-treatment of prisoners of war, deportation of civilians from occupied territories, looting of public and private property, killing of hostages, and any kind of devastation unjustified as military strategic necessity. The Geneva Conventions of 1949, which codified the International Humanitarian Law, included for the first time a list of serious offenses in times of war for which individual offenders should be criminally accountable. The Geneva Conventions also described the ethics to be followed by all military forces of signatory countries in relation to the 1) wounded and sick on land; 2) wounded and sick at sea; 3) prisoners of war; and 4) civilians in the occupied territories. The Geneva Convention also described other serious offenses liable for punishment under international law, including torture or inhuman treatment, unethical medical experimentation on prisoners, willful killings, willful inflicting of unnecessary suffering, slave labor, deprivation or injury to body or health, the extensive destruction or the unlawful arbitrary appropriation of property not justified by military necessity, forcing a prisoner of war or a civilian to serve in the forces of a hostile army, denial of a fair and regular trial to prisoners of war or civilians, and the taking of hostages.
In 1977, the protections of the Geneva Convention were extended to include violence against or wanton attack of civilians in non-defended communities, the transfer of an occupying power or of part of its population to an occupied territory, unjustified delays in the repatriation of prisoners of war, attacks to historic monuments, and perfidious (false) use of the Red Cross or Red Crescent emblems. The protocol also determined that states must prosecute or extradite to other states willing to prosecute, individuals accused of war crimes, and of crimes against humanity. The implication of the International Laws and Customs of War is to empower each signatory state with the legal right to search, arrest, and prosecute individuals indicted as war criminals (e.g., for crimes committed in the context of war).
Additional protocols in 1977 defined the rules for internal armed conflicts or civil wars, but did not offer provisions for criminal liability under the international law, leaving it to local jurisdictions. The crimes described for civil wars are: murder, torture, mutilation, rape, enforced prostitution, indecent assault, summary executions, collective punishments, looting, outrages upon personal dignity, and violence to life and person.
Crimes Against Humanity (CAH) were first defined in the Hague Convention of 1907, consisting of those acts that breached the Law of Humanity but are not limited to the context of war between nations. The provisions of CAH state that all signatory states have the duty to prosecute or to extradite offenders under such indictment, regardless of where the crime was committed. The Hague Convention also established that no one is immune from criminal liability, including heads of states. For instance, the trials against the Chilean dictator Augusto Pinochet were first held in Spain, although the crimes were committed in Chile, during his military regime. Claims of obedience to superior orders or political offense exception are inadmissible under the Laws of Humanity. The Crimes Against Humanity were established for the first time as international law by the International Military Tribunal in the Nuremberg Charter of 1945.
Although in some instances, Crimes Against Humanity overlap in their description with the Geneva Convention definition of War Crimes, as in the cases of genocide and other war crimes, they are not restricted alone to either times of war, or to the war crime definition of genocide. CAH provides criminal liability for cases in which atrocities are committed without the intent to destroy in whole or in part a given population and also targets any group committing widespread or systematic violations. Recent examples of such violations are those committed by the Hutus in Rwanda in 2002 and those underway, beginning in 2003, in East Congo by Rwandan Hutu militias against Congolese women and children. Such violations include rape and torture of women and children, sex enslavement, looting, and massacres of defenseless Congolese rural communities.
The challenges met by forensic investigators to gather evidence in zones of conflict are numerous, as illustrated by the Balkan conflicts of the last two decades. Primary crime scenes and graves were destroyed by the perpetrators, and human remains or body parts were scattered or transferred to secondary mass graves. Identification of victims and forensic corroboration of testimonial reports is complex and ongoing. Many locations containing mass graves are mined and difficult for investigators to access. Local authorities often create obstacles or impede gathering evidence by international investigators, especially in areas of Serbia.
An international team of forensic experts organized by Physicians for Human Rights (PHR) and working under the United Nations War Crimes Commission began the exhumation of two mass graves at Ovcara, near the city of Vukovar, Serbia. In spite of the fact that the forensic team had a written permit from Serbian authorities from Knin, local Serbian authorities in Vukovar passed a resolution through the Regional Council to ban the exhumation. The first evidence collected (three male skeletons) showed that the remains were of Croats and some ballistic studies were already underway when the local ban occurred. The information gave the International Criminal Tribunal for the Former Yugoslavia legal argument to commit to guarding the gravesites until 1996, when experts were able to return. However, land mines were planted by Serbian militias in the surrounding areas, which had to be localized and removed before the exhumation work was resumed. Two hundred bodies were then found, and identification proved that they were all Croat patients of the Vukovar Hospital, executed by bullets to the head. The expert team consisted of 33 pathologists, 24 forensic anthropologists, forensic photographers, x-ray and fluoroscope experts, evidence technicians, electricians, drivers, translators, and local workers.
Mass grave excavation starts with a previous assessment of its boundaries and the gathering of surface evidence, such as bullet cases, signs of tools or machinery used to dig the grave, scattered rags, or personal belongings in the adjacent bushes or woods, etc. The surface of the grave is then mapped, marked and photographed, and (in rainy seasons) trenches are dug around its boundaries to drain the water. Layers of soil are then carefully removed, until the first bodies are exposed and photographed before being removed for autopsy and pathology analysis. The outer bodies are usually more skeletonized than those underneath them, or those closer to the center of the grave, because body fluids and moisture that concentrate in these areas do favor adipocere formation or body fat saponification. In the case of the Vukovar Hospital patients, investigators found, even after five years, well-preserved remains with flesh and skin displaying tattoos, along with recognizable faces.
As a standard procedure, corpses are photographed in the position they were found inside the grave, before being carefully moved to reveal, for instance, if their hands were tied behind their backs. The victims were then photographed again after removal from the gravesite. If bullets are found inside the grave, they are also photographed and collected for identification. When the death was not due to shooting but poisoning, gassing, hanging, beating, or other cause, autopsy and laboratorial tests are performed to determine the causa mortis (cause of death ). Several different causa mortis have been identified in remains of the same mass grave. In many mass graves, babies have been found in the arms of their mothers.
In Croatia and Bosnia, between 25–70% of the bodies found in mass graves were of women and children. Among those mass graves investigated by the United Nations War Crimes Commission, at Sirsca, 150 bodies were found, at Lazette 130, in Kibuye 500, and in Vukovar 200. Mass graves have also been exhumed in Rwanda, Argentina, Brazil, Iraqi, Kurdistan, Ethiopia, Mexico, Guatemala, and in several parts of Eastern Europe. The forensic evidence they yield has instrumented trials in several local and international tribunals in support of witnesses, testimony, and helped to indict war criminals and those accused of crimes against humanity.
To make a case of genocide, for instance, investigators and prosecutors have to supply evidence that a given religious or ethnic group was systematically persecuted and executed, such as the case of Jews and Roma people in World War II (1939–1945) or the Bosnian Muslims and Kosovars in the Balkans in the early 1990s. The Third and Fourth Geneva Conventions require the proper identification, registration, and burial of victims of war in individual graves. However, dead combatants are sometimes temporarily buried in collective graves by their comrades to be later recovered and transported. This does not constitute a crime. The United Nations Resolution 3074 of 1973 instructs all states to cooperate with war crime investigations, and to facilitate the safe access of forensic teams to suspicious sites. Nevertheless, much still must be done to empower international institutions and tribunals to chase and prosecute war criminals, and to enforce international law.
Forensic science is also used to identify the remains of soldiers. The remains of unidentified American soldiers from World War I, World War II, and the Korean conflict lie in honored tombs at Arlington National Cemetery. In 1973, Congress authorized the creation of a tomb for an unknown soldier from the Vietnam conflict. Yet internment of the remains of a soldier was delayed until 1984, as authorities awaited additional information about the circumstances of death of the potential unknown soldier. A single set of remains classified as "unknown" was finally interred in 1984, but was exhumed in 1998 when it was believed that the use of mitochondrial DNA testing could lead to identification of the soldier. He was finally identified as Air Force 1st Lt. Michael Joseph Blassie, a pilot who was shot down near An Loc, Vietnam, in 1972. To date, no other set of remains has been classified as "unknown," and the sarcophagus at Arlington remains empty.
see also Adipocere; Anthropology; Archaeology; Autopsy; Ballistics; Exhumation; Pathology; Skeletal analysis; War crimes trials.