War Crimes Trials

War crimes are offenses against the laws of engagement of war, such as killing or mistreating civilians or prisoners of war. After World War II (1939–1945), the principle of punishing those involved in war crimes became established although it is a concept that is still evolving in many ways. Suspects are tried by their own civilian or military courts or by international tribunals. Such trials have now been extended to cover genocide and crimes against humanity. Currently many war crimes trials, which tend to be very lengthy complex affairs, are ongoing or planned, such as the one that hears the charges against Saddam Hussein and his followers in Iraq. The first war crimes trials relied mainly on witness statements and documentary evidence. In more recent times, however, forensic science has begun to play a more important role in the prosecution of war crimes.

The Nuremberg Trials of 1945 tried many Nazi leaders, including Hermann Goering and Joachim von Ribbentrop, and were conducted by a tribunal consisting of representatives from Britain, the United States, the U.S.S.R., and France. German dictator Adolf Hitler (1889–1945) escaped trial by committing suicide shortly before the end of the war. Japanese war criminals from World War II were also tried by a tribunal in Tokyo. Large amounts of evidence were brought to bear, showing the extermination of civilians, especially Jews, mistreatment and murder of prisoners of war, looting, and the use of slave labor during the war years.

Nuremberg established a precedent and a model from which lessons could be drawn. Later, several Americans were tried for crimes committed in the Vietnam War and, in the 1990s, the United Nations set up a tribunal in The Hague to gather evidence for prosecutions against those accused of atrocities in the break-up of Yugoslavia. The highest-ranking official to be tried by this court is former Yugoslavian President Slobodan Milosevic, whose trial began in 2002. In the year 2000, rape, which was very common in the Yugoslav conflict, was established as a war crime. Meanwhile another tribunal in Tanzania has been investigating the Hutu massacres of the Tutsis in Rwanda in 1994, and one in Sierra Leone is trying those accused of atrocities during that country's civil war of the 1990s. In 1998, the United Nations General Assembly voted for a permanent international court for trying war crimes. The judges of the International Criminal Court, based in The Hague, were sworn in in 2003, and charged with trying war crimes, genocide, and crimes against humanity.

Modern war crimes trials depend upon witness statements, documentary evidence, and forensic evidence. Much of the forensic work carried out in places such as Bosnia, Afghanistan, and Iraq has involved the investigation of mass graves. This kind of work is very different for the forensic scientist compared to what is required in routine crime investigations. However, the principles of collecting, preserving, and analyzing evidence remain the same, although they are more difficult to achieve. Many places where atrocities have been committed in the recent past are still unsafe, and the investigative agencies must consider the safety of their personnel. There may be logistic problems in transport and in setting up laboratory space and equipment. The investigators attempt to work with local people and take care to respect their customs. There is also no guarantee that the crime scene, most likely a mass grave, has been kept secure and evidence preserved since the atrocities were committed.

An important part of the forensic work done in war crime investigations is identification of people who have disappeared during a conflict. Not only does this provide key trial evidence, but it also brings some comfort and closure to the loved ones of those who have gone. Identified remains can then be given a proper burial. However, there is often a conflict between the needs of the trial and the needs of families. The former require evidence of the scale of the war crime rather than the establishment of the identity of each victim. The family wants to know what happened to the individual.

Establishing identity begins with a physical description of the missing person provided by a close relative or friend. This includes details about the person's physical appearance such as height, hair color, teeth, tattoos, scars, as well as about items they may have been carrying or wearing at the time of their disappearance, such as jewelry, eyeglasses, shoes, and clothing.

Bodies and remains are then exhumed from the mass grave, usually by forensic archaeologists and forensic anthropologists. Documents found on a body may provide a lead for identification. Postmortem (after death) and antemortem (around the time of death) data can then be compared. Sometimes photographs of clothing worn by the deceased can be identified by the family. In the modern era, DNA analysis can provide confirmation of identity but this is a very expensive way of investigating a mass killing. Teeth and bones survive long after other tissues have decomposed and may yield DNA that can be compared to that of relatives. Such identity investigations are always, necessarily, incomplete. Not all of the bodies originally present in a mass grave will be recovered on exhumation, and not all of these will be identified. Around 30,000 people were missing in Bosnia by the time the conflict there was resolved in 1995. Since then, about 15,000 bodies have been recovered, of which 9,000 have been identified. DNA analysis contributed to identification in around 3,000 cases. The same has been found in the investigation of war crimes in Rwanda where the sheer scale of the killings, half- to three-quarters of a million people, makes a full forensic examination almost impossible. It is possible that forensic science may never uncover the full horror of some war atrocities.

The above approach has been adopted by the International Forensics Program for the Physicians for Human Rights group during its investigation of the 1995 massacre of Srebrenica in Bosnia and has led to the identification of many of the victims. The investigators have exhumed over 400 bodies; many had bullet wounds in the skull and ligatures around the wrists, important physical evidence for a war crimes trial. The Program has carried out similar investigations in many countries around the world including Afghanistan, Israel, Kosovo, and Rwanda.

Other evidence from a mass grave may be important to a war crimes trial. The investigators will try to establish if the victims belonged to a particular religious or ethnic group. This can help define whether the perpetrators are guilty of genocide, the targeting of a specific group in society for destruction. The team will also try to establish patterns in the killing, whether the same methods were used at different sites and whether the killers tried to cover their tracks and destroy evidence. By building a picture of what happened at the various scenes, the investigators may also try to establish if a crime against humanity has been committed. This encompasses a wide range of acts: mass murder, enslavement, deportation, rape, and torture committed on a large scale against civilians. Documentary evidence of planning of such crimes may be found which can back up these forensic findings.

Lessons learned from other forensic investigations of war crimes and crimes against humanity may now be put to work in Iraq. As of April 2005, more than 250 mass graves have been discovered in the country since the removal of Saddam in 2003. Evidence from these sites will be vital in his trial and is also eagerly awaited by Iraqis wanting to know what happened to their loved ones. However, there are huge challenges for the investigators. Saddam's atrocities occurred over a 30-year period and many, if not most, of the corpses will now be badly decomposed. Victims were often transported over hundreds of miles for interrogation and execution, so a geographical link to help in identification is unlikely. Much documentation, which could have provided valuable evidence, has been destroyed or looted. Furthermore, 24-hour security, essential once a forensic investigation is underway, cannot currently be guaranteed at the sites.

The graves themselves have been located either by survivors of the massacres, or by witnesses. In some cases, people have just come across shallow graves. Some Iraqis, wanting to investigate the possible fate of disappeared relatives, started to investigate the graves themselves, but in a disorganized manner that was likely to destroy evidence. Many have since been persuaded to await a professional forensic investigation. While there are moves afoot to set this program in motion, there are huge difficulties involved. The medico-legal system in Iraq is in chaos, because of the war and ongoing conflict. Iraq has many forensic pathologists, but no forensic anthropologists. There is also a tradition of using circumstantial evidence such as documents found on the body, or clothing, for identification rather than dental records or x-rays. There are opportunities for international collaborations to provide support and training to Iraqi forensic scientists. First, however, the basic needs of the discipline need to be attended to. Work has begun on two mass graves, but there is an ongoing problem in protecting the sites to preserve the evidence.