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Forensic Science in the International Courtroom: Rising Legal and Ethical Issues in War Crimes Trials

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Abstract:

Over the past decade, forensic evidence recovered from mass graves in Bosnia-Hercegovina (BiH) has played a key role in the prosecution of suspected war criminals at the International Criminal Tribunal for the former Yugoslavia (ICTY). This is not particularly surprising since forensic research has been used to illuminate the likely circumstances surrounding deaths since the 1920?s. The ICTY?s Krstic case (The Prosecutor of the Tribunal against Radislav Krstic, Case No. IT-98-33), however, may have foreshadowed significant, impending legal challenges to what forensic analysis can tell us about the dead at the center of international war crimes trials. There, perhaps for the first time, the defense team questioned the applicability of purportedly universal identification methodology to the Balkan population. By arguing that the usual measures didn?t apply, the defense sought to undermine the prosecution claim that mass graves provided physical evidence of genocide because they contained the remains of young and old, male and female, sick and healthy rather than merely ?men of fighting age? as one would expect in a more traditional civil war.There is some reason to think the defense may have hit upon an important point since, for example, one out of four known, identified victims? ages were ultimately deemed inconsistent with forensic predictions. Because current forensic statistics were drawn from data collected from American men, it is possible that some genetic or environmental differences intervene to skew findings when applied to other populations. That possibility raises these legal questions: Are local forensic standards necessary to counter arguments of overly homogenous or ethno-centric formulas? Without them, could a clever defense attorney cast sufficient doubt on the transnational reliability of forensic evidence presented at trial to alter the outcome, potentially allowing a war criminal to go free on a technicality? Just as important are the ethical issues involved in forensic examinations of the deceased. For example, if the dead are unidentified, who can give permission for autopsies to be performed? And, if cross-cultural expectations regarding the treatment of the dead diverge, which standards govern the handling of remains used in international tribunals?This paper examines and responds to each of these concerns. The co-authors draw on Dr. Kimmerle?s experience as Chief Forensic Anthropologist in BiH for the ICTY, the ICTY Charter, relevant transnational standards, and the questions raised in the Krstic case to construct a professional code to guide the legal and ethical application of forensic research in future international war crimes trials.
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Name: International Studies Association
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URL: http://citation.allacademic.com/meta/p98122_index.html
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MLA Citation:

Morgan, April. and Kimmerle, Erin. "Forensic Science in the International Courtroom: Rising Legal and Ethical Issues in War Crimes Trials" Paper presented at the annual meeting of the International Studies Association, Town & Country Resort and Convention Center, San Diego, California, USA, Mar 22, 2006 <Not Available>. 2013-12-17 <http://citation.allacademic.com/meta/p98122_index.html>

APA Citation:

Morgan, A. and Kimmerle, E. , 2006-03-22 "Forensic Science in the International Courtroom: Rising Legal and Ethical Issues in War Crimes Trials" Paper presented at the annual meeting of the International Studies Association, Town & Country Resort and Convention Center, San Diego, California, USA <Not Available>. 2013-12-17 from http://citation.allacademic.com/meta/p98122_index.html

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: Over the past decade, forensic evidence recovered from mass graves in Bosnia-Hercegovina (BiH) has played a key role in the prosecution of suspected war criminals at the International Criminal Tribunal for the former Yugoslavia (ICTY). This is not particularly surprising since forensic research has been used to illuminate the likely circumstances surrounding deaths since the 1920?s. The ICTY?s Krstic case (The Prosecutor of the Tribunal against Radislav Krstic, Case No. IT-98-33), however, may have foreshadowed significant, impending legal challenges to what forensic analysis can tell us about the dead at the center of international war crimes trials. There, perhaps for the first time, the defense team questioned the applicability of purportedly universal identification methodology to the Balkan population. By arguing that the usual measures didn?t apply, the defense sought to undermine the prosecution claim that mass graves provided physical evidence of genocide because they contained the remains of young and old, male and female, sick and healthy rather than merely ?men of fighting age? as one would expect in a more traditional civil war.There is some reason to think the defense may have hit upon an important point since, for example, one out of four known, identified victims? ages were ultimately deemed inconsistent with forensic predictions. Because current forensic statistics were drawn from data collected from American men, it is possible that some genetic or environmental differences intervene to skew findings when applied to other populations. That possibility raises these legal questions: Are local forensic standards necessary to counter arguments of overly homogenous or ethno-centric formulas? Without them, could a clever defense attorney cast sufficient doubt on the transnational reliability of forensic evidence presented at trial to alter the outcome, potentially allowing a war criminal to go free on a technicality? Just as important are the ethical issues involved in forensic examinations of the deceased. For example, if the dead are unidentified, who can give permission for autopsies to be performed? And, if cross-cultural expectations regarding the treatment of the dead diverge, which standards govern the handling of remains used in international tribunals?This paper examines and responds to each of these concerns. The co-authors draw on Dr. Kimmerle?s experience as Chief Forensic Anthropologist in BiH for the ICTY, the ICTY Charter, relevant transnational standards, and the questions raised in the Krstic case to construct a professional code to guide the legal and ethical application of forensic research in future international war crimes trials.

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