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What Remains? Human Rights After Death

Abstract

This chapter is concerned with the human rights of the deceased victims of mass atrocity. It addresses these rights in the context of forensic anthropological work to establish the individual and collective identities of the victims. This work became historically and politically significant in the later decades of the 20th century in the context of attempts to determine the numbers, identities, and cause of death of victims of state crimes and violent conflict, return their bodies to family members, and contribute evidence to legal trials for crimes such as crimes against humanity, genocide, torture, and enforced disappearance. Key amongst these efforts were attempts to recover and establish the identities of the dead who were subjected to torture and enforced disappearance in Argentina in the mid-1980s, and ongoing efforts to return human remains to families of the dead in the former-Yugoslavia following the wars of the 1990s. Our moral obligations to the dead in these contexts beg a profound and comprehensive ethical approach. With this in mind, this chapter addresses two key questions: do these dead have human rights? And if so, which specific rights do they have? This chapter puts forward some provisional lines of enquiry and argumentation for consideration. It provides resources and evidence—historical, legal, and forensic—in support of such rights, and makes several suggestions regarding which rights might be developed with respect to the dead.

This work was supported by the Wellcome Trust [grant number 205488/Z/16/Z].

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Notes

  1. 1.

    For a discussion of some relevant cases see Groen, Janaway and Márquez-Grant (2015).

  2. 2.

    For example, a coalition of family organisations formed a citizen-led forensics organisation in 2014. Gobernanza Forense Cuidadana put basic forensic DNA collection techniques into the hands of the families of the disappeared in order to generate a DNA database that might be used to identify the many unidentified dead. Other forensic methods deployed by families include search strategies which proceed by grids or transects.

  3. 3.

    The use of ‘missing’ here covers both the dead and the disappeared.

  4. 4.

    See the Colibrí Centre (2018) in Tucson, Arizona , for its work on migrant death on the US/Mexico border, and the Mediterranean Missing (2018) and Last Rights (2018) projects, amongst others, who work on migrant deaths on Europe’s borders. The International Committee of the Red Cross (2017) also provides support to families of missing migrants.

  5. 5.

    This research is the subject of a longer and ongoing study funded by the Wellcome Trust entitled ‘Human rights, human remains: forensic humanitarianism and the politics of the grave’ (2018–2021), led by the author of this chapter.

  6. 6.

    For an attempt see Rosenblatt (2010).

  7. 7.

    This ‘liberal scheme’ is the bedrock of contemporary human rights.

  8. 8.

    As a result of his work Dunant was selected as the joint inaugurating recipient of the Nobel Peace Prize in 1901, along with French economist Frédéric Passy.

  9. 9.

    It is beyond the remit of this article to give a comprehensive history of the ICRC. For a good account see Forsythe (2005).

  10. 10.

    The ICRC is the only institution explicitly named under International Humanitarian Law as a controlling authority, which means that it has a legal right to visit anyone captured in the context of international armed conflict, including situations of occupation, on the basis of the Geneva Conventions and their Additional Protocols (ICRC 1949a, articles 9 and 126; ICRC 1949b, articles 10 and 143, and Additional Protocol 1, article 81).

  11. 11.

    Note that I am making a deliberate distinction here between ‘the missing’ and ‘the disappeared’. ‘The missing’ covers those missing in action (MIA) during conflict, yet ‘the disappeared’ refers to those missing or killed in the context, usually, of state crimes against citizens such as during Argentina’s ‘Dirty War’ or during Pinochet’s rule of Chile from 1973 to 1990. ‘Enforced disappearance’ is a crime that emerged out of Latin American experiences of authoritarianism, and is now firmly lodged in the lexicon of ‘crimes against humanity’.

  12. 12.

    Another example included the establishment of a special Red Cross agency, which made enquiries in hospitals across London to search for missing soldiers. The search for the missing continues to form an important part of the mandate of the Red Cross today.

  13. 13.

    The main site of elaboration of these protocols is IHL (for which the ICRC is a controlling authority) as discussed in the previous section on international law (see International Committee of the Red Cross 2005, Rules 112–117). The ICRC has also produced a number of guides on best practices for the management of the dead (see for example Cordner et al 2016; International Committee of the Red Cross 2004, 2006).

  14. 14.

    I am here referring to the symbolic power of forensic work to domain the dead. This is notwithstanding the various and often significant practical obstacles to identification such as the sometimes high numbers of bodies, co-mingled remains, and the difficulties associated with extracting DNA from cremated or preserved remains.

  15. 15.

    There are further practical aspects of exhumation and identification that dignity might shape. For example, it might translate into the use of screens around excavation sites to protect human remains from public view or the minimisation of any damage to the remains. One such measure might include, for example, avoiding the extraction of the femur to establish stature and, instead, using CT scans. This, arguably, respects the integrity (and hence dignity) of the dead by avoiding any unnecessary disarticulation of human remains.

  16. 16.

    I have derived this formulation primarily in relation to the forensic recovery and identification of the dead in the context of contemporary human rights investigations and forensic humanitarian work. At the same time I would suggest that this rights formula could potentially be applied to other cases, such as to those of unidentified human remains currently held in museums.

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Acknowledgements

I am very grateful to Kirsty Squires and Nick Márquez-Grant for their generous and thoughtful help during the writing process. I would especially like to thank Nick Márquez-Grant for his suggestions as to how the preservation of the dignity of human remains might translate further into forensic practice. I am also grateful to Ricardo Bravo (Héctor Ricardo Bravo Santillán) at the Centro de Docencia y Económicas (CIDE), Aguascalientes, México, for his comments on an earlier version of my argument, presented at CIDE in March 2018.

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Moon, C. (2019). What Remains? Human Rights After Death. In: Squires, K., Errickson, D., Márquez-Grant, N. (eds) Ethical Approaches to Human Remains. Springer, Cham. https://doi.org/10.1007/978-3-030-32926-6_3

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