Rethinking International Human Rights Law

By Ankit Malhotra*

Introduction

In the year 1983, Argentina saw the end of a brutal military dictatorship that had killed and led to the disappearance of up to 30,000 people. In the years that followed, forensic anthropologists worked with the families of the disappeared to exhume and identify human remains from mass graves. This operation was momentous. The forensic anthropologists were investigating serious abuses of human rights through the analysis of remains, with the hope of one day bringing the perpetrators to trial. But, they had another goal: to ease the suffering of the living by identifying and returning the remains of the dead to their families. It was from that time that the work of forensic anthropologists began to take on a humanitarian function

Image credit: The New Humanitarian

Since the operation in Argentina, forensic investigations of mass graves have become an almost standard response to mass violence. Similar investigations have taken place in Rwanda, Guatemala, South Africa, and the former Yugoslavia. The common denominator of these countries in terms of their recent history has been that they all have witnessed mass killings. The Argentinian investigation marked the beginning of this era. But, these events are part of a much bigger story about the humanitarian interest in mass deaths. 

Rights of the Dead 

Dr. Claire Moon has been exploring this history. She has also been investigating the current challenges and innovations in the forensics field in Mexico today. This explosion of forensic activity in the latter part of the 20th Century put the mass dead victims of the atrocity at the forefront of human rights inquiries. And the project is aiming to explore this forensic phenomenon and the question of whether it started to confer special rights upon the dead. And if so, what kinds of rights? Can we now argue, for example, that the dead have human rights? The project is interested in investigating, both historically, and specifically in the context of contemporary Mexico, how forensic activity is changing our relationship with the dead. And how it is reshaping our sense of responsibility to the dead.

Is the year 1858, during Battle of Solferino, the last battle of the Austro-Hungarian wars, the Emperor was commanding the Franco-Sardinian troops fighting the Austrians in northern Italy, and it was there that Henry Dunant decided to seek him out. This was how he came to be present at the end of the battle of Solferino, in Lombardy. Returning to Geneva, he wrote A Memory of Solferino, which eventually led to the creation of the International Committee for Relief to the Wounded, the future International Committee of the Red Cross (ICRC). The Red Cross is the arch protagonist of modern humanitarianism, and Solferino is especially important because it marks the moment from which the mass dead started to be the subject of humanitarian interest and concern. While Solferino is the ‘origin story’, a similar but different account began in Argentina in 1983. 

The Red Cross was involved in the creation of International Humanitarian Law and the development of the Geneva Conventions. The Conventions are a set of treaties and protocols which were put in place to regulate conduct during war, and, amongst other things, to establish the proper treatment of the war dead. One of the early legal requirements necessitated that the dead must be buried in national groupings; an example of this being the mass war graves and cemeteries of the World War I Somme battlefields. It is an early example of the later demand to individuate and identify the dead.

Across the 20th  Century, several International Tribunals such as those of Yugoslavia and Rwanda started to investigate mass atrocities and seek justice for the dead. The 1980s and 1990s saw several major political transitions take place. These were states that were transitioning from violent authoritarian rule to democracy. For example, Argentina and Chile had both experienced murderous military regimes, killing and disappearing tens of thousands of critics and opponents. Both held investigations into these atrocities, Argentina in 1983 and Chile in 1991.

Argentina famously drew on forensics evidence from mass graves to do so. It mobilized the dead to testify to the crimes of the past. The dead were effective ‘witnesses from the grave’. Alongside this political history, new ethical values had become embedded in many scientific practices, including in forensics. This led to the Minnesota Protocol, which set out the principles for the right treatment of the dead in forensic investigations. The Minnesota Protocol sets out, amongst other things, the responsibilities that forensics experts have to the families of the dead. Thus, the ethical treatment of the dead starts to be more clearly articulated as a treatment that is bound up with relations with the living.

On Mexico

Since the 1980s, the idea that exhumation and identification provide solace to families, who are at last able to properly mourn and bury their dead, has become a core principle in the way forensics are applied to humanitarian issues. But, what happens in situations where there is no centralized, concerted forensic effort for families to rely on? Since 2006, Mexico’s ‘War on Drugs’ has killed over 330,000 people and disappeared more than 80,000. These figures fail to acknowledge the unknown numbers of undocumented migrants who were killed and disappeared on their journey through Mexico. In the absence of state investigations, non-governmental organizations and the families of the disappeared have taken up the forensic investigations of mass graves themselves. 

Considering the violence in Mexico started in 2006 when the ‘War on Drugs’ was launched, hides the fact that the Mexican state had been killing and disappearing its opponents for decades before that. However, 2006 is important because it saw president Felipe Calderón marginally win the general elections, and because his election win was so tenuous, it led to him putting on a show of force to underwrite his authority. As a result, he launched the ‘War on Drugs’. He put the military on the street, and since then deaths and disappearances in Mexico increased exponentially. Contrary to what most media reports would have us believe, criminal organizations and the state are both responsible for torture, killings, and disappearances in Mexico. Mexico is now is commonly known as ‘one large cemetery’, with there being thousands of clandestine graves. Graves, municipal cemeteries and the morgues are literally overflowing with unidentified human remains. Some have started to call this Mexico’s forensics crisis– and this has some truth in it– but this label conceals a much more important picture.

On one hand, it is true is that Mexico lacks the capacity and resources to manage the huge numbers of unidentified dead; on the other hand, the crisis in Mexico is not a forensic one or a technical one, it is a political one. The reason is that the production of mass death is due to the state’s historic and ongoing involvement with organized crime.

State complicity is reflected not just in the scale of the violence, but also in impunity levels. The state rarely investigates these crimes, and when it does, the results are generally unsatisfactory. This context—the scale of the violence, the numbers of dead and disappeared, and the fact that the state is doing little to investigate and prosecute— has mobilized families of the dead and disappeared. This mobilization, Dr. Moon notes, has led to the following:

  1. Families have joined together, they have created collectives and organizations to search for their disappeared relatives;
  2. Collection of DNA for matching with human remains;
  3. Searches for identifying mass graves; and 
  4. Because the local population has become forensically literate, it has also started monitoring official exhumations to make sure that officials are carrying out their work properly.

It is commonly said about the victims in Mexico is that they ‘got what they deserved’ because they were involved in drugs, organized crimes. However, the families are stigmatized by association with the dead and the disappeared. Thus, this forensic activism is a way of challenging the stereotypical narrative of resisting stigmatization, of making the problem visible and embarrassing the state for its inaction. The way in which forensic techniques have been adopted by family members and other non-experts in Mexico tells us a story about what we feel we owe the dead, and what is owed to us, the living.

Rights of the Dead 

Is all of this forensic activity, both now and historically, changing our relationship to the dead, especially the mass dead victims of atrocity? Is it generating a new set of rights for these dead? And if so, what are these rights? Dr. Claire Moon identifies several key themes that emerge consistently over time. There are three central rights that come up time and again within International Humanitarian Law, practices of recovery of mass death, and also within forensics protocols. These are:

  1. The right to identification;
  2. The right to return to families;
  3. The right to the proper burial.

Conclusion

While the rights for the dead  can be understood as ‘human rights’ that are within the realm of an intersection of law and forensics practice, the qualitative aspect which is inherent to these rights with respect to their treatment of the dead is the quality is dignity. Dignity is the central idea around which the notion of human rights revolve, irrespective of human mortality. It determines how humans are ideally to be treated in life and also in death. Dignity for humans after their death is in the domain of a residual quality, as that is primarily what remains of them after their death. The question about whether the dead have human rights is important in two ways – firstly, it potentially transforms how one regards the dead, as opposed to the common perception that only living beings are the subjects of human rights; secondly, it potentially transforms how we regard human rights itself, as  it demands active re-thinking and consideration about actions which not only impact the living but also the dead.

*Ankit Malhotra is currently reading law at Jindal Global University and is the President and Co-Founder of the Jindal Society of International Law

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