ANTH 410
March, 2014
Position Paper
Forensic Anthropology in Application to Human Rights Cases in International Law
Keywords: Forensic Anthropology, Evidence, International Law, Human rights
Intro: Training, experience and individual beliefs of forensic anthropology are varied
across countries as actors in fields of anthropology, law, and politics debate about its use in
human rights cases. Since emergence of the truth commission, and International Minnesota
Protocols in the 1980’s in conjunction with the International Court of Justice the field of forensic
anthropology has gone through a dramatic increase. Forensic expertise is used to establish
responsibility through scientific means submitted as legally admissible evidence about past
atrocities, such as genocides, war crimes and crimes against humanity. The expertise is currently
a powerful tool of moral incentive for human rights violations and crimes.
The issues appearing in literature include limits of use, scope, objectivity and
consequences of methods. These issues are most frequently occurring and observed in the
intersections of anthropology, law and politics. I believe this derives from a perceived
hegemonic subjectivity to the relevancy of application of ethical responsibility and justifications
applied to the cases, paralleled with misconceptions in epistemology. Heralded by current
practices the various expectations and interpretations of definitions by practitioners I do not
believe can provide an Archimedean point between the past and present. Since the brokers of
information can control and govern interpretation of evidence, the ethical and legal responsibility
of agency is then employed by lawyers providing provisions to political regimes of scientific
evidence. Due this probative power the proliferation of human rights cases often reflects the
contemporary legal domination.
Forensic anthropology used for 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. 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. Under article 2, genocide is defined as
“…committed with intent to destroy, in whole or in part, a national, ethical, racial or religious
group such as…”
After World War II the international community sought to prevent further gross
violations and the declaration of how things ought to be was created. The reality is that these are
standards and not laws and can be used to enforce sanctions like refusing trade or economic aid
between international states. The nation’s government initially establishes their own law, and is
where national, religious and secular views are often divided and may conflict with state law.
This history and knowledge is crucial for understanding the current use and development in
forensic anthropology for international humans’ rights cases and why arguments are prone to
likeliness of reflecting a social/political view versus a biological profile.
The performance legally 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 providing a political theatre of legal sentencing and executions that were ‘forensic’ (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. ‘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 become 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 form of case reports, and present
there results in judicial proceeding” (Moon, 2005: 157)
The UN Minnesota protocols are internationally recognized protocols drafted in 1986 to
provide guidelines and standards for methods of post-mortem examination to determine the
cause and manner of death and record data for identification of human remains. (Skinner, 2003:
87) It remains our current standard for professional forensic anthropologists, serving as a manual
of consolidated protocols. The ‘dignification’ vindicates 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.
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 forensics does not offer a guarantee that justice will
derive from ‘reconstructing the often distorted or hidden histories of repressive regimes.’ (Moon,
2005) The claim 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)
Due to the previously mentioned increase of 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. This naturalization of transcendent
motives, behind the humanitarian vocation is a highly topical issue. 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 marketdriven. (Buiksta, 2002; Stojanowki 2005)
Provided tensions between the narratives in this ‘evidential regime’ the bifurcations
within anthropology and the working dichotomy with the law reflects the desires of the
participants. A problematic area that surfaces from these strained relations rises from the
information disclosed by the employers’ mandate. The employing agency provides funding and
organization holding the responsibility of determining what should or should not be included in
the final report, whereas the monitor- designated 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, considering that
important aspects may be and in the past are omitted based on the 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)
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. A significant reason for disconnect of fields in human
rights cases is the individual abilities and personal interest, emphasized by the guidelines offered
by the state, 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.
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