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ANTH 410
March, 2014
Position Paper
Forensic Anthropology and International Law
Introduction
Forensic anthropology is generally concerned with two things: 1) recovering and
interpreting remains and 2) indicating trauma and identification of a skeleton. In application to
human rights cases under international law, the findings from these concerns become evidence
for prosecution and to provide humanitarian relief to family members. These forensic specialists
are assumed trained to carry out archaeological excavation and osteological analysis, but
training, experience and individual beliefs of forensic anthropology vary across countries
creating controversy and debate. Since the early 1980’s actors in fields of anthropology, law, and
politics conflate the use of forensics in the field and forum with emergence of the truth
commission, International Minnesota Protocols and the International Court of Justice. These
instruments established the need for forensic expertise to provide responsibility for war crimes
and crimes against humanity through scientific evidence. (Moon) The data collected and
analyzed by anthropologists and other scientific actors can be purposed as legally admissible
evidence about past atrocities including: genocides, war crimes and crimes against humanity.
This evidence is used to support convictions prosecuted through the International Criminal
Court. Scientific expertise by forensic anthropologists establishes a truth provoking means of
moral incentive with claims to deter human rights violations and provide humanitarian relief;
however, literature suggests the benefit is highly misrepresented in its ability to provide
humanitarian relief and as an effective deterrent.
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Literature on cases—such as the International Criminal Tribunal for the Former
Yugoslavia, and the Argentina victims of junta-- show issues with the limits of use, objectivity
and consequences of methods. (Moon) The issues occur in the intersection of working
relationships between the disciplines of anthropology, science and politics. By nature of political
theatre the brokers of information can control and govern interpretations essentially enabling resignification of evidence within a particular political narrative. Heralded by current practices the
various expectations and interpretation of definitions hinder an Archimedean point between the
past and present. An Archimedean point is a hypothetical objective vantage point.
Background
After World War II and the Korean Wars the international community sought to prevent
further gross violations. With the failure of the League of Nations and the Kellogg-Briand Act to
compel obedience, the declaration of how things ought to be was created in the form of the
United Nations. The progress appeared notably in the definition and punishment of war crimes
and in codification of International Law. In reality these developments provided standards, but
were difficulty dealt with under the International Criminal Court. These standards enabled the
enforcement of sanctions like refusing trade or economic aid between international states as seen
in the genocide case of Rwanda, but as for prosecution of political leaders it has yet to be seen as
an effective deterrent. The nation’s government initially establishes their own law, and is where
national, religious and secular views divide and may conflict with international state law. This
history and knowledge is crucial for understanding the current use and development in forensic
anthropology for international human rights cases and why the application often reflect a
social/political result versus humanitarian relief.
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Forensic anthropology applied to Human Rights cases is still young in its development.
Although Human rights are defined within the Universal Declaration of Human Rights (1948)
few are actually able to define them effectively. Some of the artefacts of legal reasoning for
human rights and humanitarian law are included in article 2 of the Genocide Convention (United
Nations Assembly, 1948). The legal context of this convention provides a framework that
forensic anthropologists use to read social constructs and qualify remains associated with the act
as legally significant evidence.
Etymology of Forensics and Evidence
The legal performance of forensic truth is unfolded in the etymology of the term. The
term forensics derives from the Latin word ‘forum’ where the Forum Romanum- was the most
important forum of ancient Rome as it was the scene of ‘public’ meetings of business and courts
of law. Forensics provides a political theatre of legal sentencing and executions in public view.
Forensics conjoins two domains- field and forum. Field is the application to where boundary
objects/ evidence is found and collected. Forum is the rhetoric or formal debate/ public
presentation of evidence. Recovered from the field are ‘boundary objects’-as defined by Star and
Griesemer in 1989- “are both adaptable to the different viewpoints and robust enough to
maintain identity across them.” They further the definitions by defining forms and distinguishing
4 types of objects. Among these objects include: specimen (human remains, artifacts, speech
acts, etc…) and within humans rights cases these objects are to be the ‘evidence.’ Constituting
the ‘evidence’ is what conjoins these two domains. Evidence is also derived from a Latin word:
videre- ‘to see’ or ‘to make visible.’ Having outlined the etymology of forensics these
derivations are what distinguish a ‘forensic anthropologists’ work from other ‘anthropological
(sub-) disciplines.’ Forensic anthropologists “prepare scientifically valid legal records in the
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form of case reports, and present there results in judicial proceeding” (Moon, 2005: 157)
whereas, other anthropological disciplines seek to render objective truth about peoples past and
current behaviors, without adversely impacting the people being studied.
Field Protocols
The UN Minnesota protocols are internationally recognized protocols drafted in 1986 to
provide guidelines and standards for methods of post-mortem examination and boundary objects.
The examination is used to determine the cause and manner of death and record data for
identification of human remains. (Skinner, 2003: 87) It currently remains the standard for
professional forensic anthropologists, serving as a manual of consolidated protocols. The
recovery of human remains and artifacts gives ‘dignification’ by vindicating the dead and the
living families who’ve been denied claims about state crimes. This recovery is therapeutically
aimed and underpins the legal complex for administering human rights. This therapeutic aim
constitutes the core animators reiterated frequently in popular literature of forensic anthropology
applications in international cases. Regardless the intention the protocols do not require how the
boundary objects are constituted within the ICC, not guaranteeing the humanitarian effects with
potential of doing exactly the opposite.
Forum Narratives
It is not uncommon to find complex competitive narratives within professional literature,
yet it appears there is neglect in the complex web of outcomes based on the forensic
interpretations bare adjudication. Whilst forensic anthropology literature narrowly focuses on the
therapeutic aim it does not offer a guarantee that justice will derive from ‘reconstructing the
often distorted or hidden histories of repressive regimes.’ (Moon, 2005) The claim of using
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forensic anthropology in international law prosecutions is to finalize social and political debates
of past atrocity through scientific evidence. However, it is not as simple as making an
“objective” contribution towards humanitarianism. Forensic work is embedded within a network
of actors, artifacts and institutions each having a different stake in the outcome of claims made
about ‘boundary objects.’ These claims made by Forensic experts thus create powerful
unpredictable incursions into social and political life. (Moon, 2013; 151) “As Verdery puts it, ‘if
one wants to revise the past… it is comforting to have actual bones in hand.’” (Moon, 2005; 115)
This quote can be seen as beneficial to either party depending on how evidence is positioned.
This is quite apparent in the political narrative of the Argentinian government exhuming the
remains and thus was challenged by the community, “illustrating the interplay between boundary
objects and broker.” (Moon, 2013; 164) The ethical and legal responsibility for a conviction is
employed by lawyers providing provisions to political regimes using scientific evidence. Due to
probative power the proliferation of human rights cases this often reflects the contemporary legal
domination with no guarantees of enhancing or protecting of intended application to support
human rights.
This naturalization of transcendent motives, behind the humanitarian vocation is a highly
topical issue. The interest in the field has launched it into the realm of the ‘New Moral
economy’- an extension of universality of human rights that shapes our perception of the world
and what it means to be human. As Gatti (2003) believes “this moral economy has a powerful
technical dimension: protocols, procedures, artifacts, apparatuses… These moral techniques are
practical vehicles for erasing the marks of suffering, for undoing evil.” I believe these techniques
may not be entirely innocent in the transparency about the likelihood of outcomes, as the
visibility and impact of topics in the field is market-driven. (Buiksta, 2002; Stojanowki 2005)
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Tensions between the narratives within this ‘evidential regime’ support the bifurcation
within anthropology and its working dichotomy with other fields reflecting the motives of the
participants. An area responsible for these systematic strained relations rises from the
information disclosed to the public and courts by the employers’ mandate. The employing
agency of the excavation provides funding and organization holding the responsibility of
determining what should or should not be included in the final report, whereas the monitordesignated by the employer- is in charge of overseeing excavation and writing the reports
generating what is included in the initial ‘in-house report.’ (Skinner, 2003; 85) This may or may
not represent the excavation in its entirety, consideration to inclosing important aspects may be
and in the past are omitted based on the limits of prosecution impacts.
Haglund a well-known physical anthropologist (2001, p.3) acknowledges that forensic
evidence “is not gathered to uncover the broad pattern of human behavior, but rather, to
construct the specifics of a single event.” Zoe Crossland an anthropologist with Colombia
University furthers this concept in questioning how the evidence is constituted in relation to
particular goals, and the possible repercussions of this work in representation. (124) The insights
illustrated in the international protocols are closely tied with particular objectives. Lewontin puts
these objectives as “… the very method which we use is itself a form of evidence.” (1994, p.504)
This is a very critical view of looking at the role of evidence in constitution of different
evidential goals with concerns of epistemology and methods. Paradoxically to the influence of a
particular end, it is understood that evidence should be independent of intention, able to stand
against and contradict false truth claims. (Datson; 1994)
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Conclusion
The primary concern is for setting guidelines for a majority and to do so with the
praxiographic approach of addressing materiality without pigeonholing it. Forensic
anthropologists are forced to negotiate with competing demands of the courts, archaeological
practices and the relatives of the dead. (Crossland, 2013:123) A possible remedy for bridging the
analysis gap of critical engagement across subfields is addressing the catalyst preventing
employment of archaeological principles and the bridging of field and forum. A significant
reason for disconnect of different fields (law, anthropology, forensics, etc..), in human rights
cases to lend more support toward humanitarian results, is the individual abilities and personal
interest, emphasized by the guidelines offered by the state and international protocols, as the
experts from different countries are entered in the same arena of international affairs with
different training and codes of ethical behavior. For example in the US an agency may request a
forensic anthropologist to limit the investigation to factors beneficial to their case; this scenario
gives an ultimatum to either continue or decline to continue, as ethically you cannot be biased in
your report. This ethical rule applies to scientists, but does not apply to attorneys; however, it
would actually be unethical for an attorney to not provide vigorous defense within legal limits.
Bridging the gap between fields would create complicity between claims of law and forensic
anthropology in working to support each other rather than speaking beyond their separate
frameworks. In this, however I do not want to advocate that there is no importance in the
separation of fields, as I do feel this is important for inhibiting growth and objective views, but
by altogether denying a complicit relationship further perpetuates the exclusion of certain
evidence from testimony, based on lack of understanding to its significance in the outcome of
humanitarian aid versus the prosecution of a crime.
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Bibliography
Crossland, Z. (2013). Evidential regimes of forensic archaeology. Annual Review of Anthropology, 42,
121-137.
Datson, L. (1994). Marvelous facts and miraculous evidence in early modern Europe. Questions of
Evidence: Proof, Practice, and Persuassion across the disciplines. ed. J. Chandler, AI Davidson, H
Harrootunian, 243-74. Chicago: Univ. Chicago Press.
Gatti, G. (2013). Moral techniques. forensic anthropology and its artifacts for doing good/tÉcnicas
morales. la antropologÍa forense y sus artefactos para hacer el bien. Sociologia Y Tecnociencia, 3(1), 12.
Lewontin, RC. (1994). A rejoinder to William Wimsatt. Questions of Evidence: Proof, Practice, and
Persuasion across the Disciplines, ed J. Chandler, AI. Davidson, H. Harootunian, 204-9. Chicago: Univi.
Chicago Press.
M'charek, A. (2013). Beyond fact or fiction: On the materiality of race in practice. Cultural Anthropology,
28(3), 420-442.
Moon, C. (2013). Interpreters of the Dead: Forensic Knowledge, Human Remains and the Politics of the
Past. SAGE. 22(2), 149-169.
Skinner, M., Alempojevis, D., Djuric-Srejic, M. (2003). Guidelines for International Forensic Bioarchaeology Monitors of Mass Grave Exhumations. Forensic Science International. 134, 81-92.
Stojanowski, C. , & Buikstra, J. (2005). Research trends in human osteology: A content analysis of papers
published in the American journal of physical anthropology. American Journal of Physical Anthropology,
128(1), 98.
Gould-- http://aaanet.org/press/an/1105/Gould.htm
http://www.infoplease.com/encyclopedia/society/international-law-evolution-internationallaw.html
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