Chapter 15: Ethics, Mass Disasters, Humanitarian and Human Rights Investigations

ETHICS AND HUMAN RIGHTS

Working with human remains requires a great deal of consideration and respect for the dead. Forensic anthropologists and bioarcheologists have to think about the ethics beyond our use of human remains for scientific purposes. How do we conduct casework in the most respectable manner possible? This section will discuss several ethical issues to consider when contemplating a career in forensic anthropology.⁴

Working with Human Remains

Forensic anthropologists work with human remains in a number of contexts, including casework, excavation, research, and teaching. When working with human remains, it is always important to use proper handling techniques. To prevent damage to skeletal remains, bones should be handled over padded surfaces. Skulls should never be picked up by placing fingers in the eye orbits, foramen magnum (hole at the base of the skull for entry of the spinal cord), or through the zygomatic arches (cheekbones). Human remains, whether related to casework, fieldwork, donated skeletal collections, or research, were once living human beings. It is important to always bear in mind that work with remains should be ingrained with respect for the individual and his or her relatives. In addition to fieldwork, casework, and teaching, anthropologists are often invited to work with remains that come from a humanitarian or human rights violation.⁴

Modern Human Rights Violations

Forensic anthropologists may also be called to participate in criminal investigations involving human rights violations. Anthropological investigations may include assistance with identifications, determination of the number of victims, and trauma analyses.⁴ Trauma analysis is considered particularly important as it can not only add in the eventual prosecution but also in the identification process.³ In this role, forensic anthropologists play an integral part in promoting human rights, preventing future human rights violations, and providing the evidence necessary to prosecute those responsible for past events. A few ethical considerations for the forensic anthropologist involved in human rights violations include the use of appropriate standards of identification, presenting reliable and unbiased testimony, and maintaining preservation of evidence.⁴ One court that maybe used to prosecute perpetrators of human rights violations is the ICC.

The International Criminal Court (ICC) was created in 2002. The aim of the ICC is to put an end to impunity for perpetrators of the most serious crimes of concern to the international community, and to contribute to the prevention of such crimes. The ICC can prosecute any individual anywhere in the world, but for suspected criminals who are citizens of a state which has not ratified the ICC Statute, a United Nations Security Council (UNSC) resolution is necessary. In accordance with the principle of jurisdiction ratione temporis (temporal jurisdiction) the Court can only investigate crimes committed after 1 July 1 2002, when the ICC Statute came into force. The ICC has jurisdiction with respect to a particular range of crimes: genocide, crimes against humanity, and war crimes. The ICC Preamble declares that these are serious crimes which threaten the peace, security and well-being of the world.⁵ 

Humanitarian Investigations

Humanitarian investigations differ from Human rights investigations in that they do not lead to criminal prosecutions. The focus is instead on identification of human remains so they can be returned to their families which will, hopefully, alleviate their loved ones suffering.³

Armed conflicts can result in humanitarian investigations as in the aftermath mass graves maybe found. Mass graves are particularly difficult to investigate as the remains are often fragmented and commingled. In these cases forensic anthropologists can be a assist as they can be involved in the excavation of these mass graves, the recovery of the human remains, and the identification process.³

There are several organizations involved humanitarian work. One of which is the ICRC or the International Committee of the Red Cross. The ICRC works to help families by providing information about their missing loved ones and managing human remains that result from armed conflicts. They do this by providing external forensic assistance and training local scientists.³

The work associated with human rights and humanitarian investigation are generally the result of structural violence.³

Structural Violence

The term “structural violence” is one way of describing social arrangements that put individuals and populations in harm’s way. The arrangements are structural because they are embedded in the political and economic organization of our social world; they are violent because they cause injury to people (typically, not those responsible for perpetuating such inequalities). Disparate access to resources, political power, education, health care, and legal standing are just a few examples. The idea of structural violence is linked very closely to social injustice and the social machinery of oppression.⁹ This can also include violence perpetrated by terrorists, on different races, and on different genders.²

NAGPRA

NAGPRA stands for the Native American Grave Protection and Repatriation Act, a federal law enacted in 1990. NAGPRA provides protections and establishes repatriation procedures for Native American and Native Hawaiian remains, cultural items, and sacred objects. Human remains and associated artifacts, curated in museum collections and federally funded institutions, are subject to three primary provisions outlined by the NAGPRA statute: (1) protection for Native graves on federal and private land; (2) recognition of tribal authority on such lands; and (3) the requirement that all Native skeletal remains and associated artifacts be inventoried and culturally affiliated groups be consulted concerning decisions related to ownership and final disposition. NAGPRA legislation was enacted to ensure ethical consideration and treatment of Native remains and, in many cases, has improved dialogue between scientists and Native groups.⁴

Acting as an Expert in the Medicolegal System

In addition to the ethical considerations involved with working with human skeletal remains, forensic anthropologists must abide by ethical standards when they act as experts within the medicolegal system. The role of the forensic anthropologist within the medicolegal system is primarily to provide information to the medical examiner or coroner that will aid in the identification process or determination of cause and manner of death. Forensic anthropologists also may be called to testify in a court of law. In this capacity, forensic anthropologists should always abide by a series of ethical guidelines that pertain to their interpretation, presentation, and preservation of evidence used in criminal investigations. First and foremost, practitioners should never misrepresent their training or education. When appropriate, outside opinions and assistance in casework should be requested (e.g., consulting a radiologist for radiological examinations or odontologist for dental exams). The best interest of the decedent should always take precedence. All casework should be conducted in an unbiased way, and financial compensation should never be accepted if it is incentive to take a biased stance regarding casework. All anthropological findings should be kept confidential, and release of information is best done by the medical examiner or coroner. Finally, while upholding ethical standards for oneself, a forensic anthropologist is also expected to report any perceived ethical violations committed by his or her peers.⁴

Ethical standards for the field of forensic anthropology are outlined by the Organization of Scientific Area Committees (OSAC) for Forensic Science, administered by the National Institute of Standards and Technology (NIST). OSAC and NIST recently began an initiative to develop standards that would strengthen the practice of forensic science both in the United States and internationally. OSAC promotes the establishment of best practices and other guidelines to ensure that forensic science findings and their presentation are reliable and reproducible.⁴

Rules That Govern Expert Testimony

In the judicial system, determining admissibility of evidence is an issue. The Frye rule was how courts used to establish admissibility and was first established in the criminal case of Frye v. the United States in 1923. This created the Frye test. Which said that in order for expert testimony or scientific technique to be admissible it must be established enough to have gained general acceptance in that particular scientific community. This was also known as the general acceptance test. In many cases, the Frye test was applied, and it spread quickly.¹⁰ The Frye test was flawed though as newer scientific techniques were rejected by the courts because they did not have general acceptance despite being perfectly valid.²

However, in 1993, the Frye test was challenged by other courts. In the civil case of Daubert v. Merrel Dow Pharmaceuticals, The Court rejected the “general acceptance” in the Frye test.¹⁰ The Daubert Standard, as it came to be called, is now a legal precedent regarding the admissibility of expert witness testimony during legal proceedings. Its purpose is to guarantee that expert testimony is supported by adequate facts or data that are obtained through proper application of trustworthy principles and methods.¹

Mass Disasters

A massive disaster is defined as an unexpected event that causes the death of many people. These events may be natural disasters, terrorist attacks, massive car accidents, plane crashes, and explosions, among others.⁸ While a disaster may be natural or human-induced, few countries escape events which result in multiple fatalities.⁶ Development of significant procedures has been necessary to speed up the process is of supreme concern, especially in the case involving mass disasters, where the number of deceased exceeds the local handling capacity of the concerned authorities.⁷

Disaster events can be classified as open or closed. An open disaster is characterized as an unexpected event that results in the death of several unknown individuals in which qualitative or quantitative information about the fatal victims is not available and further investigation is needed (an earthquake, for example). However, a closed disaster has a fixed number of victims whose information is already known, which enables their identification (such as a plane crash).⁸

Identification becomes a significant concern while investigating a Mass disaster scene as it not only enables us to proceed further in the investigation, but also is a confirmation for the living relative of the deceased. Identification of the deceased in cases of mass disasters, can also enable the authorities to know about the mode and manner of death, aiding the criminal proceeding that follow.⁷

The minimum number of fatalities that constitutes a “mass disaster” differs between jurisdictions, varying between two and 10 deceased. In order to formalize the identification process following a mass disaster, the International Criminal Police Organization (INTERPOL) developed specific guidelines and protocols for disaster victim identification (DVI). INTERPOL has 190 member countries and, while the guidelines are not compulsory, they are recognized globally.⁶

According to the INTERPOL DVI Guide, the DVI phases are as follows: (1) scene; (2) postmortem (PM); (3) antemortem (AM); and (4) reconciliation. The scene must be treated as a crime scene and all human remains, exhibits, and property should be left at the location until the scene examiners complete their work. All human remains recovered from the scene must be processed, examined, and stored in a mortuary or location tempora­rily built for the operation. The identification is made by compiling and analyzing all data obtained in the PM and AM phases. PM examinations, conducted by PM teams, include photographs, friction ridge analysis, comparative dental analysis, DNA analysis, and autopsy. The AM information comprises data collection about the missing persons, family, relative, or friend interviews to obtain sufficient facts, dental and medical record searches, fingerprint collection, DNA analysis, documents, photographs, and any other data relevant to identifying the victims. During the reconciliation phase, investigators are responsible for matching PM with AM data to identify the victims. Once identification is successful, arrangements are made to return all human remains to the respective family. Should collecting this kind of evidence not be possible or should there be no match between PM and AM data, the identification must be made by other methods such as dental or DNA analyses.⁸

In addition, to the need for detailed AM data; establishing temporary mortuaries to deal with DVI; methods of packaging and preserving remains at the scene; the development of quantitative decision support tools; country specific approaches to DVI; the politics associated with DVI; the need for cultural sensitivity towards those victims and families; and preparation and training exercises.⁶

Forensic anthropological knowledge has been used in DVI for over a century, but it was not until 1970 that the American anthropologist Thomas Dale Stewart emphasized the value of including forensic anthropology in the identification process. Since this time, there have been a number of disaster events which have seen an increasing role for the forensic anthropologist in DVI.⁶

While the forensic anthropologist plays a role in different phases of a DVI, they do not practice in isolation. Forensic anthropologists work as part of a team of forensic specialists, which typically includes forensic pathologists, forensic odontologists, radiologists, fingerprint examiners, molecular biologists, mortuary technicians, and photographers. The specific role of the forensic anthropologist in each of the five phases of the DVI operation will be determined by the condition and preservation of the deceased persons and the context and the scale of the disaster.⁶

Regardless of the type or scale, disasters involve a range of forces that impact on the body, potentially resulting in varying forms of preservation. These may include (but are not limited to) intact or near complete bodies; recognizable body parts; soft tissue masses; isolated complete or traumatized bones (with or without associated different degrees of burnt and/or decomposed soft tissue); small un-diagnostic bone fragments; or a combination of these.⁶

At the Disaster Site

At the disaster site, the pressure to locate and collect remains to facilitate timely identifications generally competes against a background of chaos and limited resources. In such challenging environments, experience has shown that the detailed mapping and recording of bodies, body parts, bones (complete or fragmented) and associated evidence is of vital importance. If human remains, regardless of their preservation, cannot be recognized at the scene then they cannot be recorded and appropriately collected.⁶

The initial evaluation of the condition and preservation of the remains at the scene significantly impacts on planning logistics for complete recording and recovery of human remains and, thereafter, the subsequent stages of the DVI processes. Timely management of the scene is important to prevent further unnecessary fragmentation or decomposition. Based on their expertise in dealing with differentially preserved remains, forensic anthropologists can make a critical contribution at the disaster site. Their assistance at the scene will help to prevent the collection of items such as non-human remains or non-osseous items, thereby reducing the allocation of case numbers and the generation of superfluous data. In addition, their assistance at the scene ensures that all the body parts/fragments have been collected, thus minimizing the necessity to re-examine the scene. Lastly, when the bodies are compromised, they can advise on the best means of packaging and transporting the remains in order to minimize damage in transit.⁶

The added value of forensic anthropological expertise at the scene is illustrated by several examples. Following the 2001 terrorist attack on the World Trade Towers in New York, firefighters predominantly undertook the initial recovery process. As they were not trained in forensic anthropological/archaeological techniques and had no experience recognizing heavily fragmented and disrupted human remains, the recovery efforts resulted in additional commingling which in turn complicated and slowed identifications. Similarly, following the 2009 bushfires that affected the state of Victoria, Australia, initial examination of many of the scenes did not include a forensic anthropologist (predominantly because of the limited number of forensic anthropologists). This meant that scenes had to be searched more than once which had time and financial implications for the identification process. More recently, after the MH17 airplane incident in Ukraine in 2014, local volunteers predominantly undertook the initial recovery process. This was unavoidable given the backdrop of an ongoing civil war, but it complicated and slowed the subsequent identification process.⁶

The mapping of the disaster site is generally not the primary concern of the forensic anthropologist. However, in many countries, forensic archaeologists and forensic anthropologists work closely together and sometimes practitioners have both anthropological and archaeological skills. As such, the developments in forensic archaeology in mapping, searching, and processing a crime scene or disaster site have a direct effect on the skills that the forensic anthropologist can bring to the scenario.⁶

The INTERPOL DVI guide advocates the use of a grid systems to map a disaster scene and the use of printed recovery labels to label all the bodies or body parts found at the scene. This methodology has its merits, especially in low-tech environments, but over the past years more advanced methodologies have been developed. The use of electronic mapping equipment such as total stations, drones, or hand-held GPS devices have become mainstream in forensic archaeology and their (combined) use enables a DVI team to quickly map a disaster site. The incorporation of the thus acquired mapping in a Geographical Information System (GIS) will provide important information, not only for planning purposes but also to subsequently record the location of the human remains. For the latter, the use of hand-held devices (such as mobile phones or other GPS-linked devices) can be used to electronically record the location of a body part or other types of evidence. Amongst others, this will result in an automatically compiled list of recovered items. These more advanced techniques will prove particularly useful in cases of large and complex disasters sites, and at disaster sites where human remains and other types of forensic evidence are simultaneously recovered.⁶

In the Mortuary

Over the past years, forensic anthropologists have assisted in the investigation of mass disasters by undertaking a range of analyses, including: separating osseous from non-osseous material; confirming that the remains are human (or non-human – if not done at the scene; separating recognizable versus non-recognizable fragments that require DNA analysis; identifying and managing commingled remains (which may involve re-associating disparate body parts; providing a biological profile (an estimation of the person’s ancestry, sex, age, and stature), if possible including other identifying information such as previous fractures, disease, or anatomical variants; assisting in reconstructing the manner of death, for instance in case of bullet trajectories or locating shrapnel.⁶

In many DVI contexts, identification will be confirmed relatively quickly through odontology, fingerprints or DNA analysis. However, there are many reasons why these methods may be delayed or in some cases, impossible to implement. The preservation of the body (part) (e.g. due to skeletonization, fragmentation and/or degradation), and the quality, quantity and availability of antemortem data can all limit the utility of aforementioned methods. It is well-recognized, for example, that marginalized communities are often those most susceptible to mass fatalities and are also those that are the least likely to have antemortem records such as dental charts and X-rays. The development of a biological profile at the triage stage may, therefore, provide a helpful “snapshot’ of the identity of the person before antemortem information is located. This may provide important leads for a positive identification and thus expedite identification. Typically, the most useful biological parameters in this regard are the estimation of sex and age at death, the utility of ancestry and stature is generally of limited value. Other potentially useful information that can be provided by the forensic anthropologist are details about skeletal pathologies and skeletal anomalies and variation.⁶

DNA Sampling and the Handling of Fragmented Remains

Where DNA is required for the identification process, forensic anthropologists (in collaboration with biologists) can contribute to the development of DNA sampling protocols. In cases of heavily disrupted human remains which typically result from bombings or airplane crashes, forensic anthropologists can contribute substantially by using their knowledge of bone biology and taphonomy to select the most appropriate samples for DNA analysis. For example, during the DVI operation following the 2002 Bali bombing, which relied heavily on DNA, the retrieval and identification of appropriate soft tissue and bone fragments for DNA testing was paramount. Because a high degree of fragmentation is typical of individuals close to a blast site, the ability to recognize highly fragmentary remains was also important in providing details about individuals thought to be at the epicenter of the explosion.⁶

Identification of the Living

Although DVI generally focuses on the identification of the deceased, the identification of victims who survive a mass fatality event also needs consideration in any DVI response. Mostly the identification of the living does not require forensic anthropological expertise, but recent disasters have shown that forensic anthropologists may be included in the process.⁶

Identification of the living is important in both open and closed disasters. However, the timely identification of survivors in an open disaster has an important impact on the identification process as it enables their elimination from the missing persons list. It might also impact those treating survivors, since medical teams will be confronted with the need to deliver medical treatment in absence of (medical) background information. When the survivor is an unidentified minor, the lack of consent to medical treatment from appropriate adults must also be taken into account.⁶

Survivors belong to one of the four groups. The first group includes those who are uninjured and are thus expected to leave the site of the fatality event by themselves. The second group includes those who are injured but still conscious. The forensic anthropologist’s involvement in both groups is minimal. The final two groups include those who are injured but unconscious and survive their injuries; and those who are injured, unconscious, and succumb to their injuries in hospital.

These groups present what may be perceived as the greatest issue to the identification process, constituting those individuals who are so severely injured that they are unable to communicate their details. In these cases it is becoming increasingly common to attempt identification through the application of the same processes that are used to identify the deceased. This approach proved to be hugely effective following the terrorist attacks in Paris in 2015 and Nice in 2016. However, the effectiveness of this approach is dependent upon the fact that until identified, the severely injured form part of the presumed missing group for whom AM data will be collected. In order to complete the DVI documentation for identification purposes, the same information is collected from both the unconscious patient and the deceased person. DNA swabs are recovered to create a DNA profile. Fingerprints and dental status can also be recovered if possible, although the success is dependent on the injuries received.⁶

For the recovery of any further information, medical imaging plays a central role and the common use of radiographs and CT scans during medical triage and treatment ensures their availability. The forensic anthropologist can complement the analysis of radiologists, forensic pathologists, and forensic odontologists, by developing a biological profile, or comment on the presence of pathologies or implants and other information which can be used to direct identification data collection and matching. Also knowledge on the variation in external features such as skin color and hair color may prove beneficial to the identification process. Identification of the living in this way can work alongside the identification of the deceased ensuring that the identification process does not stall due to lack of information.⁶

Refugee Identification

Another relatively recent challenge is constituted by the huge number of deaths related to the (refugee) migrations taking place in for instance the Mediterranean region, Sub-Saharan Africa, at the US-Mexican border and in Australasia. In essence, each region should consider these deaths to be part of a massive, multinational, and protracted disaster that requires an equally international and intricate DVI response.⁶

Identifying these individuals is difficult for a number of reasons. These remains maybe fully skeletonized and/or incomplete due to scavengers removing some of the remains. These individuals may or may not have been carrying identification or maybe carrying false identification.³ Finally, the general lack of international missing persons list (and consequently of AM data), and the need to integrate PM data from different countries and mortuaries, calls for an unprecedented degree of collaboration between governments, humanitarian organizations and forensic practitioners. Since the identification of deceased migrants is generally not feasible by DNA, odontology or fingerprint analysis, the development and implementation of alternative identification methods, such as forensic anthropological biological profiling is required.⁶

Concluding Remarks

Having specialist knowledge of human anatomy and variability, forensic anthropologists are constantly considering new methods and techniques to augment human identification when preservation results in skeletonized or highly disrupted remains. Consequently, depending on the nature of the disaster, the inclusion of a forensic anthropologist in a DVI operation will substantially contribute to expediting identifications, as demonstrated by the strong role that forensic anthropologists have played in recent mass fatality events on a worldwide stage. The role of the forensic anthropologist in DVI will continue to evolve, depending on the recent and future developments in their own, and related, forensic disciplines.⁶

 

References:

1. Aditya Singh, “An Overview of Forensic Facial Reconstruction,” Journal of Forensic Research 13 (2022). https://www.hilarispublisher.com/open-access/an-overview-of-forensic-facial-reconstruction-91421.html.

2. Angi M. Christensen, Nicholas V. Passalacqua, and Eric J. Bartelink, Forensic Anthropology: Current Methods and Practice, 1^st ed. (London: Academic Press, 2014): 415.

3. Angi M. Christensen, Nicholas V. Passalacqua, and Eric J. Bartelink, Forensic Anthropology: Current Methods and Practice, 2nd ed. (London: Academic Press, 2019): 38, 469-482.

4. Ashley Kendell, Alex Perrone, and Colleen Milligan, “Bioarcheology and Forensic Anthropology” In Explorations, ed. Beth Shook, Katie Nelson, Kelsie Aguilera and Lara Braff (Arlington: American Anthropological Association, 2019). https://pressbooks-dev.oer.hawaii.edu/explorationsbioanth/chapter/__unknown__-5/.

5. Catherine Gegout, “The International Criminal Court: limits, potential and conditions for the promotion of justice and peace,” Third World Quarterly 34 (2013). https://www.tandfonline.com/doi/full/10.1080/01436597.2013.800737 .

6. Hans H. de Boer, Soren Blau, Tania Delabarde, and Lucina Hackman, “The role of forensic anthropology in disaster victim identification (DVI): recent developments and future prospects,” Forensic Science Research 4 (2019). https://www.tandfonline.com/doi/full/10.1080/20961790.2018.1480460.

7. Isha Chauhan, “Forensic Anthropology– A Lead to a Speedy Identification of Disaster Victims,” Journal of Forensic Research 12 (2021): 1-2. https://www.hilarispublisher.com/open-access/forensic-anthropology-a-lead-to-a-speedy-identification-of-disaster-victims.pdf.

8. Marco Antonio de Souza, Gabriel de Oliveira Urtiaga, Renata Cristina Grangeiro Ferreira, Luciene Marques da Silva, Jade Kende Gonçalves Umbelino, Flávio Roberto de Melo, and Simone de Jesus, “Friction Ridge Analysis in Disaster Victim Identification (DVI): Brazilian Case Studies,” Forensic Sciences Research 7 (2022): 323–329. https://academic.oup.com/fsr/article/7/2/323/6802793.

9. Paul E Farmer, Bruce Nizeye, Sara Stulac, and Salmaan Keshavjee, “Structural Violence and Clinical Medicine,” PLOS Medicine 3 (2006): 1686-1691. https://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.0030449.

10. Wanodyo Sulistyani, “The Admissibility of Scientific Expert Evidence Under Indonesian Criminal Justice System,” SRIWIJAYA Law Review 3 (2019). http://journal.fh.unsri.ac.id/index.php/sriwijayalawreview/article/view/215.