Forensic evidence in atrocity trials: A risky sampling strategy?

In the light of the recent judgments issued by the International Criminal Court (ICC), including two acquittals and one very recent condemnation of the accused on all charges, analysing and assessing evidentiary practice before the Court is all the more pressing. This article focuses on one particular type of evidence used by the Prosecution, namely, forensic evidence, to critically review how it has been used so far at the ICC and consider whether the prosecutorial strategy of focusing on a certain sample of crimes is finally paying off.

Massacre of Canadian Army Medical Corps personnel after the sinking of HMHS Llandovery Castle and the evolution of modern war crime jurisprudence.

SUMMARY: Events after the sinking of the hospital ship Llandovery Castle on June 27, 1918, by the German submarine U-86 outraged Canadians. Survivors aboard a single life raft gave evidence that many of the 234 souls lost had made it to lifeboats but were rammed and shot by the submarine. Many of those who died were nurses. Three German officers were charged with war crimes after the war. The submarine's captain evaded capture. The remaining two officers' defence that they were following the captain's orders failed and they were convicted. This ruling was used as a precedent to dismiss similar claims at the war crime trials after the Second World War. It is also the basis of the order given to members of modern militaries, including the Canadian Armed Forces, that it is illegal to carry out an illegal order.

Unit 731 and moral repair.

Unit 731, a biological warfare research organisation that operated under the authority of the Imperial Japanese Army in the 1930s and 1940s, conducted brutal experiments on thousands of unconsenting subjects. Because of the US interest in the data from these experiments, the perpetrators were not prosecuted and the atrocities are still relatively undiscussed. What counts as meaningful moral repair in this case-what should perpetrators and collaborator communities do decades later? We argue for three non-ideal but realistic forms of moral repair: (1) a national policy in Japan against human experimentation without appropriate informed and voluntary consent; (2) the establishment of a memorial to the victims of Unit 731; and (3) US disclosure about its use of Unit 731 data and an apology for failing to hold the perpetrators accountable.

Karadzic's guilty verdict and forensic evidence from Bosnia's mass graves.

The International Criminal Tribunal for the Former Yugoslavia's Karadzic verdict, eagerly awaited, was unsurprising. He was found guilty of genocide, crimes against humanity and war crimes. One part of the judgment was concerned with the Srebrenica events in which much forensic evidence from mass graves featured. Whilst this was to be expected, forensic evidence from the horrific crime scenes continues to be important in determining aspects of the crime base. This paper discusses the evidence and examines how the Chamber came to the conclusion that systematic killing of thousands of Bosnian Muslim men occurred and attempts had been made to conceal the crimes and human remains in secondary graves thus confirming the actus reus of genocide. In particular, the number of people killed was at issue. Despite the absence of compelling counter-theories on behalf of the accused, this paper demonstrates that contestations over the number of those killed remain and predicts that this is unlikely to change for the ongoing Mladic case.

Crimes against humanity: the role of international courts.

We study the role of international tribunals, like the International Criminal Court (ICC), as an effective way of reducing the number and/or gravity of crimes against humanity. The action of the ICC is directed against leaders that promote or tolerate these kinds of crimes, that is, political authorities, army commanders, civil leaders, etc. In order to simulate the action of the ICC we build a hierarchical society where the most important leaders have the highest connectivity and can spread their points of view, or their orders, through a chain of less but still highly connected deputy chiefs or opinion chieftains. In this way, if they practice misconduct, corruption, or any kind of discriminatory or criminal actions against individuals or groups, it would very difficult and improbable that they will be prosecuted by the courts of their own country. It is to alleviate this situation that the ICC was created. Its mission is to process and condemn crimes against humanity though a supranational organism that can act on criminal leaders in any country. In this study, the action of the ICC is simulated by removing the corrupt leader and replacing it by a "decent" one. However, as the action of the corrupt leader could have spread among the population by the time the ICC acts, we try to determine if a unique action of the ICC is sufficient or if further actions are required, depending on the degree of deterioration of the human rights in the hypothetical country. The results evidence the positive effect of the ICC action with a relatively low number of interventions. The effect of the ICC is also compared with the action of the local national judiciary system.

Sexual violence in armed conflict: the least condemned of war crimes.

Sexual violence in armed conflict has traditionally received poor attention until recent years. It has been the "least condemned of war crimes" although, with the inception of the International Criminal Court and various other international courts and tribunals, convictions of high-profile aggressors are increasing. Only recently Charles Taylor, the President of Liberia, was convicted of war crimes and crimes against humanity which included rape and sexual slavery. He was sentenced to 50 years imprisonment. Is prosecution of these crimes sufficient to minimise sexual violence in war? That seems unlikely given the potential for such violence to be a cheap and effective strategy to terrorise a civilian population and "ethnically cleanse" the newly won territory. However, there is a remarkable variation in the levels of sexual violence in armed conflicts. Some, such as the Israeli-Palestinian conflict, have extremely low levels, whereas in Bosnia and many African states the prevalence of sexual violence is at epidemic levels. The reasons for such differences are many, however, some precipitating factors may be improved by strong military discipline, improved gender balance in armed forces, better political awareness by combatants of the aims of a campaign and pre-deployment ethical training.

U.S. responses to Japanese wartime inhuman experimentation after World War II.

In 1945-46, representatives of the U.S. government made similar discoveries in both Germany and Japan, unearthing evidence of unethical experiments on human beings that could be viewed as war crimes. The outcomes in the two defeated nations, however, were strikingly different. In Germany, the United States, influenced by the Canadian physician John Thompson, played a key role in bringing Nazi physicians to trial and publicizing their misdeeds. In Japan, the United States played an equally key role in concealing information about the biological warfare experiments and in securing immunity from prosecution for the perpetrators. The greater force of appeals to national security and wartime exigency help to explain these different outcomes.

Eichmann y la responsabilidad / Eichmann and responsibility

El juicio celebrado en Jerusalén en 1961 a Adolf Eichmann, el responsable de la logística necesaria para el exterminio perpetrado por los nazis, fue el escenario para dos evitaciones. La primera de ellas es la del propio acusado quien, amparándose en el argumento de la obediencia a órdenes superiores, desconocía su lugar en el exterminio. De este modo, se proponía como un mero engranaje. La segunda es la del propio derecho que no puede acusar por obediencia a órdenes superiores. Por ello, se recurrió a argumentos de contenido psicológico para condenar a quien, en verdad, era culpable de obedecer. Este trabajo pone de relieve a la obediencia como un problema culturalmente irresuelto en la medida que sirve de refugio para malestares diversos...

Adolf Eichmann's trial, that took place in Jerusalem in 1961, was the scenario of two fallacious arguments regarding responsibility/accountability. The first one was that of the accused himself who, invoking the argument of 'due obedience to superior orders', denied his responsibility in the part he played in the extermination, claiming to have been a mere clog in the wheel. The second fallacy, was the Law as a discipline, which states that those acting under due obedience to superior orders cannot be accused, which is why it resorted to psychological arguments to condemn a person who, in truth, was guilty of obeying. This work highlights due obedience as a culturally unresolved problem in that it serves as refuge for situations that arouse varying degrees of discontent and unrest

" the cadaver can be placed at your disposition here." - Legal, administrative basis of the transfer of cadavers in the Third Reich, its traces in archival sources.

For more than 15 years, the memorial site "Roter Ochse (Red Ox)" in Halle/Saale, Germany, has studied documents of special and military courts in Mitteldeutschland (central Germany). Hundreds of death sentences have been executed during the last years of the war in the former state prison of Halle. The resulting dead bodies were used in biomedical research and teaching. The number of executions was marginal before 1933 but increased steadily after the Nazis seized power. The judiciary delivered an increasing number of death sentences against political opponents and persons who were to be eradicated from the "Volksgemeinschaft" (national community) according to racist ideology. However, the dead bodies were not distributed evenly to each of the anatomical institutes. The distribution depended on factors such as the distance of the institute to an execution place, the court responsible for the sentence, and whether the state or relatives had the right to dispose of the bodies. At the beginning of the year 1939, the Reichsjustizministerium (department of justice) issued a decree that changed the distribution process of dead bodies. As a rule, after the responsible ministry informed the anatomical institute of a pending execution, the institute confirmed the pick-up day of the body. Details of the actual delivery of bodies can be found in execution protocols, reports by execution overseers, receipts of body deliveries, body registers of the institutes, etc. This paper will review the historical progression of ministerial decisions and demonstrate how administrative documents can be used as a point of departure for current research projects.

"Cleansing" anatomical collections: The politics of removing specimens from German anatomical and medical collections 1988-92.

In 1989-90 an intense debate erupted in the Federal Republic of Germany over the status of anatomical specimens from the period of National Socialism. Pressure was brought on the German universities and research institutes to remove body parts. The solution was deemed rapid burial of all specimens whose provenance was in doubt. A range of options was considered, and the eventual decision to bury cremated remains was deemed the best way to draw a line under an uncomfortable past of Nazi medical atrocities. The aim was to achieve closure on this issue by a rapid "cleansing" of collections. However, identification of victims was left unresolved amidst the heated debates at the time.

Dissecting the history of anatomy in the Third Reich--1989-2010: A personal account.

This paper is a personal narrative of involvement with the revelations of the use of anatomical and pathological specimens of victims of Nazi terror. The narrative documents responses to the question of the retention and use of anatomical and pathological specimens from victims of Nazi terror by leading academic and scientific institutions and organizations in Germany and Austria including the government of the Federal Republic of (West) Germany, the University of Tübingen, the University of Vienna, the Max Planck Society and the Anatomische Gesellschaft. It begins with the public revelations of 1989 and concludes with the September 2010 Symposium on the History of Anatomy during the Third Reich at the University of Würzburg. The narrative documents a 22-year transition in attitude and responses to the investigation and documentation of the history of anatomy and pathology during the Third Reich. The chronicle includes the 1989 proposed "Call for an International Commemoration" by the author, together with the bioethicist Professor Arthur Caplan, on the occasion of the planned burial of the misbegotten specimens and the responses to that proposal.

The Anatomische Gesellschaft and National Socialism - A preliminary analysis based on the society proceedings.

The Anatomische Gesellschaft (AG) is an international society for the anatomical sciences and at the same time the main organising body for German anatomists. This study analyses how the AG went through the years of National Socialism. As the society does not possess archival material from that time, the analysis is mainly based on the society proceedings (Verhandlungen der Anatomischen Gesellschaft) published annually after each meeting from 1934 to 1939 and again in 1950. During the period of National Socialism, the AG kept its international status against demands to make it a purely German society. It did not introduce anti-Jewish regulations or the Führer principle into its bylaws. The membership directories reveal that it was at least possible for members whose career was disrupted by Nazi policies to remain on the membership lists throughout the Nazi period. However, in contrast to later assumptions that no persecuted member of the AG was ever struck from its register, 17 of 57 persecuted members left the society between 1933 and 1939. The membership of six of these members was cancelled, officially for unpaid fees. However, other members with much longer arrears were not cancelled. To date, no additional historical information is available to assess the circumstances of these cancellations. In general, it remains remarkable that, in contrast to many other societies, the AG did not follow the path of preemptive obedience towards the new rulers. More archival sources need to be uncovered to elucidate the external influences and internal negotiations behind the published documents.

Clauberg's eponym and crimes against humanity.

Scientific journals are ethically bound to cite Professor Dr. Carl Clauberg's Nazi medical crimes against humanity whenever the eponym Clauberg is used. Modern articles still publish the eponym citing only the rabbit bioassy used in developing progesterone agonists or antagonists for birth control. Clauberg's Nazi career is traced to his having subjected thousands of Jewish women at the Ravensbruck and Auschwitz-Birkenau death camps to cruel, murderous sterilization experiments that are enthusiastically described by incriminating letters (reproduced here) between him and the notorious Nazi Reichsführer-SS Heinrich Himmler. The experiments were carried out in women's block 10 in Auschwitz-Birkenau where Clauberg's colleague Dr. Josef Mengele worked alongside. After Germany lost World War II in 1945 Mengele fled to South America, where he lived to an old age. Clauberg was caught by Russian soldiers, put on trial in the Soviet Union for his crimes against humanity, and imprisoned in 1948. In 1955 he was repatriated to Germany, once again imprisoned for his crimes, and belatedly expelled from the German Medical Association. To estimate the contemporary usage of the names Mengele and Clauberg, Internet hits were recorded for Clauberg C or Mengele J (with and without adding the term Auschwitz) with the Google and Scirus search engines. The ratios of hits for combinations of these terms reveal that relative to Mengele, Clauberg's name is barely known. We propose that journals and books printing the eponym Clauberg cite its derivation and reference to the convicted Nazi criminal. The present article can serve for such citations.