FORENSIC PATHOLOGY AND HUMAN RIGHTS

• Jurisdiction: Australia

[33G.100] Introduction

If human rights are a set of standards and norms agreed as necessary for people to lead a dignified life, then the practice of forensic pathology supports the observance of these norms domestically and internationally. The right to life is a fundamental right recognised globally in national legal systems, as well as at international law - established by treaty and customary international law. States must act to secure this right by respecting, protecting and fulfilling the right, as well as by investigating suspicious deaths.

"A failure to investigate a death in circumstances where the duty to investigate applies will itself amount to a breach of the right to life".¹

The criminal law has extended its reach beyond domestic legal systems in recent years. Thus, necessarily, the reach of forensic pathology has also been extended. The advent of the International Criminal Tribunal for the Former Yugoslavia and Rwanda, other similar mechanisms (for example in Sierra Leone), and more recently the International Criminal Court have led to justice outcomes which have relied upon forensic pathology evidence.

An early definitional point is required here. The term "forensic pathology" is used here to indicate the medical specialty of death investigation. For ease of reference and where the context requires, it is also used interchangeably with the term "forensic science" or "forensic medicine" to encompass a variety of disciplines, including:

• Forensic archaeology;
• Forensic anthropology;
• Forensic odontology;
• Forensic entomology;
• Forensic radiology;
• Forensic photography;
• Forensic molecular biology (DNA);
• Forensic death scene examination;
• Forensic ballistics and toolmarks;
• Forensic biology (eg, botany);
• Forensic chemistry (including toxicology); and
• Clinical forensic medicine.

In most situations, coming to conclusions about particular deaths relies on information and expertise from these other forensic scientific and medical disciplines related to forensic pathology. Incorporating this information and expertise into conclusions about the death is itself an expert exercise within the discipline of forensic pathology. (Recognition of this is one of the strengths of "medical examiner", as opposed to coronial, death investigation systems.)² Often, however, the exercise is undertaken by lawyers, coroners, or police officers alone, sometimes without appreciating the expertise required. This reliance exists also in the international domains of forensic pathology.

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¹ Public consultation version of the revised Minnesota Protocol. http://www.ohchr.org/EN/Issues/Executions/Pages/RevisionoftheUNManualPreventionExtraLegalArbitrary.aspx (Accessed 18 May, 2016) Citing the following references: European Court of Human Rights (ECtHR), McCann et al v United Kingdom, Judgment (Grand Chamber), 27 September 1995, §161; Ognyanova and Choban v Bulgaria, Judgment (First Section), 23 February 2006, §13; Mladenovi v Serbia, Judgment (Second Section), 22 May 2012, §51; Branko Tomasi et al v Croatia, Judgment (First Section), 15 January 2009, §62; Inter-American Court of Human Rights (IACtHR), Myrna Mack Chang Case, Judgment, 25 November 2003, §§156-57; Montero-Aranguren et al (Detention Center of Catia) v Venezuela, Judgment, 5 July 2006, §66; ACmnHPR, General Comment No 3 on the ACHPR: The Right to Life (Art. 4), §§2, 15.

² There are many strengths of the latter, the main one of which being that it requires publicly conducted hearings into certain death types, including deaths in custody, with judicial conclusions addressing issues of public interest.

[33G.110] History of forensic pathology in the investigation of mass atrocities

It was the Nazis during the Second World War who were the first to use forensic pathology to investigate a gross atrocity: the Massacre at Katyn Forest. The NKVD, the Soviet People's Commissariat for Internal Affairs or secret police, under direct orders from Stalin, Beria and others, carried out this atrocity over a period of weeks in April/May 1940. This involved the summary execution of over 15,000 people, members of the Polish intelligentsia. They had been siphoned off from the hundreds of thousands of Poles either forcibly removed or imprisoned by the Russians after they took over control of the eastern half of Poland following the German Russian Pact immediately preceding the war. The Germans discovered the massacre in 1942, about a year after their invasion of the USSR. They were keen to use the discovery to embarrass the Soviets and their western allies in the eyes of world opinion. The Soviets denied any involvement claiming that it was Goebbels' propaganda, and that the massacre was in fact the work of the Nazis¹. The confusion over who was responsible continued after the war. The West successfully resisted attempts by the Soviets to have the massacre included in the crimes prosecuted at Nuremberg. Finally, Mikhael Gorbachev acknowledged in public Soviet responsibility for the Katyn massacre in 1989.

The Cold War precluded investigation of gross abuses of human rights in the international sphere. Even domestically it was not until the early 1980's, following the overthrow of General Galtieri's regime in Argentina, that effective investigations of such abuses based on the use of forensic experts began in a systematic way. In that country, with the support of the American Association for the Advancement of Science, a non-government body of expertise came into being, which developed very quickly into the Argentine Forensic Anthropology Team (Equipe Antropologica Argentina Forense - EAAF). This team, still at work today resolving the fate of those who disappeared during the regime, has in the intervening years also worked in numerous contexts around the world faced with the same problems. Many South American countries (eg, Peru, Guatemala) subsequently developed their own forensic anthropology teams for the same reason. In the mid 1980s, many countries, including Australia, enacted legislation allowing domestic courts to try crimes committed by those of its immigrants who had sought refuge following World War II and who had acquired citizenship. These offences, which proved extremely difficult to prosecute,² required evidence some of which was from forensic pathologists following exhumations of mass burial sites.

In 1991, the UN published the Manual on the Effective Prevention and Investigation of Extra Legal, Arbitrary and Summary Executions³. In 1993, the UN Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY).⁴ By the mid to late 1990s, UN- and ICTY-sponsored missions were active in parts of the former Yugoslavia using forensic techniques to investigate atrocities committed under the guise of war. A new international organisation, the International Commission on Missing Persons (ICMP),⁵ was created with strong American support to assist both the justice and the humanitarian outcomes associated with the examination and identification of the tens of thousands missing and dead in the Former Yugoslavia. International forensic experts were utilised in the aftermath of the plebiscite in East Timor in August 1999, resulting in that country's independence.⁶ The International Committee of the Red Cross, launched its major initiative "The Missing", at an international conference in Geneva in February 2003.⁷ About one quarter of this initiative concerns forensic pathology. Today, there is forensic scientific activity, mainly in the form of forensic anthropology, a discipline closely related to forensic pathology, involved with the protection of human rights in international contexts in many parts of the world, including, Iraq, Iran, Kuwait, Georgia, Ethiopia, Former Yugoslavia, Nepal, Sri Lanka.

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¹The politicisation of the results of the investigation of the massacre encapsulates a truth about the investigation of these events generally: experts becoming involved need to understand the context and framework of the investigation and how the results will be used before agreeing to become involved. The desire of the parties involved to politicise the results for their own purposes may trump the justice and humanitarian concerns of the experts, and even subvert the whole operation.

² There were no convictions resulting from this legislation in Australia.

³http://www.ohchr.org/Documents/Issues/Executions/UNManual2015/Annex1_The_UN_Manual.pdf (Accessed 18 May, 2016)

⁴ Security Council Resolution 827, 25 May, 1993. Following the genocide in Rwanda, the Security Council appended Rwanda to the work of the Tribunal. Jean Paul Kambanda became the first Head of State convicted of crime in an international court after he pleaded guilty to genocide.

⁵http://www.icmp.org

⁶ This was to investigate crimes committed during the Indonesian occupation, including the period of the departure of Indonesian forces.

⁷https://www.icrc.org/en/war-and-law/protected-persons/missing-persons

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