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The missing in the aftermath of war: When do the needs of victims' families and international war crimes tribunals clash?

  • Eric Stover and Rachel Shigekane

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1 Szymborska, Wislawa, “Hunger camp at Jasko”, in Forche, Carolyn (ed.), Against Forgetting: Twentieth Century Poetry of Witness, W.W. Norton, New York, 1993, p. 459.

2 Kevin Berry was interviewed by one of the authors (Stover) for National Public Radio in July 1999. Also, see Abrahams, Fred, Peress, Gilles, and Stover, Eric, A Village Destroyed: May 14, 1999, War Crimes in Kosovo, University of California Press, Berkeley, CA, 2002.

3 See Doretti, Mimi and Fondebrider, Luis, “Science and human rights – Truth, justice, reparation and reconciliation: A long way in Third World countries”, in Buchli, V. and Gavin, L. (eds), Archaeologies of the Contemporary Past, Routledge, London, 2001.

4 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977 (hereinafter Protocol I), Art. 32.

5 Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, adopted by Resolution 260 (III) A of the General Assembly of the United Nations on 9 December 1948 Art.2.

6 See Haglund, William D., “Recent mass graves: An introduction”, in Haglund, William D. and Sorg, Marcell (eds), Advances in Forensic Taphonomy, CPR Press, New York, 2001, pp. 243262.

7 See The Prosecutor v. Jean Kambanda: Judgment and Sentence, International Criminal Tribunal for Rwanda, Case No. ICTR 97–23–8, 4 09 1998.

8 One of the camps, Omarska, alone held 3,000 or more prisoners. See The Prosecutor v. Kvocka et al.: Judgment, International Criminal Tribunal for the former Yugoslavia, Case No. ICTY 11–98–30/1, 2 11 2001, p. 8.

9 In its Judgment, the Tribunal noted that: “The evidence is overwhelming that abusive treatment and inhuman conditions in the camps were standard operating procedure (…). Many detainees perished as a result of the inhumane conditions, in addition to those who died asa result of the physical violence inflicted upon them.” See The Prosecutor v. Kvocka et al.: Judgment, International Criminal Tribunal for the former Yugoslavia, Case No. ICTY IT-98–30/1, 2 11 2001.

10 Gutman, Roy, Witness to Genocide, Macmillan Publishing, New York, 1993, p. 63. Two of the camps, Omarska and Keraterm, were closed in August 1992 and a third, Trnopolje, was closed in October 1992.

11 See Stover, Eric and Peress, Gilles, The Graves: Srebrenica and Vukovar, Scalo, Zurich, 1998, pp. 104107.

12 See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 5/1994/674, 27 May 1994 and Annexes, S/1994/674/Add. 2 (Vol. I–V), 28 December 1994.

13 SC Res. 827, UN SCOR, 48th Session, 3217th Meeting, UN Document S/RES/827 (1993).

14 SC Res. 955, UN SCOR, 49th Session, 3453rd Meeting, Annex, UN Document S/RES955 (1994).

15 As of October 2002, 108 individuals are currently in proceedings before both the Rwandan and Yugoslav tribunals. So far, 41 accused have been tried, of whom 35 have been found guilty. See the International Criminal Tribunal for the former Yugoslavia at <http://www.un.org/icty/> and the International Criminal Tribunal for Rwanda at <http://www.ictr.org>.

16 See Joyce, Christopher and Stover, Eric, Witnesses from the Grave: The Stories Bones Tell, Little, Brown, Inc., Boston, 1991, pp. 215305.

17 Steadman, Dawnie W. and Haglund, William D., “The anthropologist/archaeologist in international human rights investigations”, paper presented at the Annual Meeting of the American Academy of Forensic Sciences, Seattle, Washington, 19 February 2001.

19 See Haglund, William D., “Recent mass graves: An introduction”, op cit. (note 6), pp. 243262.

20 Davor Strinovic (personal communication), Institute for Forensic Medicine and Criminology, Zagreb, Croatia, 11 October 2002.

21 See The Prosecutor of the Tribunal v. Mile Mrksic, Miroslav Radic, Veselin Sljivancanin, Slavko Dokmanovic, International Criminal Tribunal for the former Yugoslavia, Case No. IT-95–13a-1, 2 12 1997.

22 Davor Strenovic, quoted in Stover, Eric and Peress, Gilles, op cit. (note 11), pp. 210211.

23 Honig, Jan Willem and Both, Norbert, Srebrenica: Record of a War, Penguin Books, London, 1996, pp. 2847.

24 See The Prosecutor v. Karadzic & Mladic: Indictment, International Criminal Tribunal for the former Yugoslavia, Case No. ICTY IT-95–18, 16 November 1995.

25 See The Prosecutor v. Karadzic & Mladic: Indictment, International Criminal Tribunal for the former Yugoslavia, Case No. ICTY IT-95–5, 24 07 1995.

26 See Stover, Eric and Peress, Gilles, op. cit. (note 11).

27 Vollen, Laurie, “All that remains: Identifying the victims of the Srebrenica massacre”, Cambridge Quarterly of Healthcare Ethics, Vol. 10, 07 2001, pp. 336340.

28 In The Missing: ICRC Report (Summary of the Conclusions Arising from Events Held prior to the International Conference of Governmental and Non-governmental Experts, 19–21 February 2003 the ICRC states: “A death certificate alone might not be enough to induce belief in the death of a missing person. The authorities that issue death certificates have a responsibility, as does the ICRC when it delivers information on death, to ensure the authenticity of the information contained therein; the certificates should include information on the cause of death and the availability of the human remains.”

29 See the website of the International Commission of Missing Persons, <http://www.ic-mp.org/icfact.asp>.

30 Edward Huffine (personal communication), International Commission of Missing Persons, 29 September 2002. According to Huffine, the total number of positive identifications of the Srebrenica dead will be near 1,000 by early 2003.

31 Testimony of William Haglund, The Prosecutor v. Krstic, International Criminal Tribunal for the former Yugoslavia, Case No. ICTY IT-98–33, 29 May 1999, T. 3722.

32 The Prosecutor v. Milosevic et al.: Indictment, International Criminal Tribunal for the former Yugoslavia, Case No. ICTY IT-02–54, 24 May 1999, para. 90.

33 Statute of the International Criminal Tribunal for the former Yugoslavia, adopted by UN Security Council Resolution 827 on 25 May 1993, Art. 5.

34 The Charter of the International Military Tribunal, annexed to the London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, of 8 August 1945, Art. 6(c).

35 Graham Blewitt, quoted in Abrahams, Peress, and Stover, op. cit. (note 2), p. 75.

36 The principle enunciating the responsibility of command responsibility derives from the principle of individual criminal responsibility applied by the Nuremberg and Tokyo Tribunals. It was subsequently codified in Art. 86(2) of Protocol I.

37 ICTY investigators have also observed the exhumations of the remains of hundreds of Kosovar Albanians who were killed by Yugoslav forces during the war in Kosovo and later transferred to Serbia and buried in clandestine graves.

38 Jose-Pablo Baraybar, Director, Office on Missing Persons and Forensics, United Nations Interim Administration Mission in Kosovo (UNMIK), Press Statement, Pristina, Kosovo, 29 September 2002.

39 Press Statement, UNMIK, Pristina, Kosovo, 24 September 2002.

40 Amnesty International, “Disappearances”: A Workbook, Amnesty International USA Publications, New York, 1981, p. 109. Also see Quirk, Gregory J. and Casco, Leonel, “Stress disorders of families of the disappea red: A controlled study in Honduras”, Social Science and Medicine, Vol. 39, No. 12, 1994, pp. 16751679.

41 See Boss, Pauline, Ambiguous Loss: Learning to Live with Unresolved Grief, Harvard University Press, Cambridge, Mass., 1999.

42 See Bringa, Tone, Being Muslim the Bosnian Way: Identity and Community in a Central Bosnian Village, Princeton University Press, Princeton, N.J., 1995, p. 194.

43 Verdery, Katherine, The Political Lives of Dead Bodies: Reburial and Postsocialist Change, Columbia University Press, New York, 1999, pp. 107108.

44 See Doretti, and , Fondebrider, op cit. (note 3).

45 Weinstein, Harvey M., “Where there is no body: Trauma and bereavement in communities coping with the aftermath of mass violence”, paper presented at the ICRC Workshop on Support for Families of People Unaccounted For, Geneva, Switzerland, 10–11 June 2002.

46 Fondebrider, Luis, “Reflections of the scientific documentation of human rights violations”, paper presented at the ICRC Workshop on Human Remains: Law, Politics, and Ethics, Geneva, Switzerland, 23–24 May 2002.

47 See Eppel, Shari, “Healing the dead to transform the living: The preventive implications”, paper presented at the International Seminar on Torture and Organized Violence in the 21st Century, 24–26 January 2001, Copenhagen, Denmark.

49 Psychologists dealing with survivors of trauma have long postulated that personal efficacy is a major determinant in recovery. In recovering from trauma, Judith Herman argues that “[n]o intervention that takes power away from the survivor can possibly foster her recovery, no matter how much it appears to be in her immediate best interest”. See Herman, Judith, Trauma and Recovery: The Aftermath of Violence from Domestic Abuse to Political Terror, Basic Books, New York, 1992, p. 134. Another way of examining this phenomenon is through the “control over one's destiny” hypothesis, developed by Leonard Syme, who holds that control over one's destiny refers to the ability “to influence the events that impinge upon our lives”. According to Syme's research, a great sense of control in one's life often leads to better health outcomes. See S. Leonard Syme, “Social and economic disparities in health: Thoughts about intervention”, The Millbank Quarterly, Vol. 76, 1998, pp. 493–505.

50 Besides the two ad hoc international criminal tribunals for Rwanda and the former Yugoslavia, a per manent International Criminal Court has been established to try persons accused of war crimes, crimes against humanity, and genocide. The Statute of the International Criminal Court, of 17 July 1998 (which entered into force on 1 July 2002) can be found at <http://www.un.org/law/icc/statute/.htm>.

51 Report of the United Nations Office of the High Commissioner for Human Rights, E/CN.4/2O02/67, 21 01 2000.

52 Ibid. The UN has also produced two documents – Manual for the Prevention of Extra-Legal, Arbitrary and Summary Executions and Guidelines for the Conduct of United Nations Inquiries into Allegations of Massacres – that set out the standards and procedures for investigating war crimes and violations of human rights.

53 The Missing: ICRC Report, op cit. (note 28), p. 65.

54 Clyde Snow quoted in Joyce, and Stover, , op cit. (note 16), p. 217.

* Eric Stover is the Director of the Human Rights Center and Adjunct Professor of Public Health at the University of California, Berkeley. Rachel Shigekane is Senior Program Officer at the Human Rights Center and Lecturer in Peace and Conflict Studies.

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The missing in the aftermath of war: When do the needs of victims' families and international war crimes tribunals clash?

  • Eric Stover and Rachel Shigekane

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