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JOURNAL OF LAW AND SOCIETY
VOLUME 31, NUMBER 4, DECEMBER 2004
ISSN: 0263-323X, pp. 539±62
The Dead, the Law, and the Politics of the Past
Kieran McEvoy* and Heather Conway*
This article explores the role of law in cultural and political disputes
concerning dead bodies. It uses three interconnecting legal
frameworks: cultural and moral ownership, commemoration, and
closure. It begins with a critique of the limitations of the private law
notion of `ownership' in such contexts, setting out a broader notion of
cultural and moral ownership as more appropriate for analysing legal
disputes between states and indigenous tribes. It then examines how
legal discourses concerning freedom of expression, religious and
political traditions, and human rights and equality are utilized to
regulate the public memory of the dead. Finally, it looks at the
relationship between law and notions of closure in contexts where the
dead have either died in battle or have been `disappeared' during a
conflict, arguing that law in such contexts goes beyond the traditional
retributive focus of investigation and punishment of wrongdoers and
instead centres on broader concerns of societal and personal healing.
INTRODUCTION
Dead people belong to the live people who claim them most obsessively.
1
539
ßBlackwell Publishing Ltd 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK and
350 Main Street, Malden, MA 02148, USA
*School of Law, Queen's University Belfast, 28 University Square, Belfast
BT7 1NN, Northern Ireland
This article began life at the Socio-Legal Studies Conference in Bristol 2001 and we are
grateful for the comments and lively discussion which spurred us on. Thanks also to our
colleagues, in particular Robin Hickey and Sheena Grattan. Kieran McEvoy would also like
to acknowledge Ron Keenan of the Equality Commission for Northern Ireland, Brandon
Hamber of Democratic Dialogue, Eitan Felner, former Director of B'Tselem for his help
with the Israeli aspects of this paper, and the staff of the Institute of Criminology, University
of Cambridge in particular Shadd Maruna, Allison Liebling, and Amanda Matravers for their
hospitality in the summer of 2003. Thanks also to the anonymous reviewers. Finally, a
special thanks to our respective dads, Paddy McEvoy and Joe Conway, two grave diggers
extraordinaire who sparked our shared interest in the dead in the first place.
1 James Ellroy, cited in K. Verdery, The Political Lives of Dead Bodies: Reburial and
Post-Socialist Change (1999) 23.
While the focus of this article concerns dead bodies in political and cultural
conflicts, anyone who has been involved more generally in dealing with the
death of a loved one will recognize that it is a process with at least three
interconnecting stages. In the immediate aftermath, the living must
determine who has `ownership' or control over the disposal of the remains.
Decisions are then made concerning the commemoration of the deceased
such as the nature of any memorial service or the wording of any headstone.
In due course, as the living are faced with the emotional and psychological
consequences of death, they are encouraged to seek some form of `closure'
in coming to terms with death.
2
At each stage, and particularly if disputes
arise, law plays a crucial role. From the formal declaration of a death
certificate onwards, law's capacity to speak authoritatively to notions of
sovereignty, acknowledgement and a sense of completion regarding the fate
of the dead assumes a central role.
3
Despite the breadth of law's involvement in the process of death, it is the
notion of ownership in particular which is arguably the dominant legal
paradigm in matters concerning the dead. Death transforms the human body
from a person to an object,
4
and it is through this process of objectification
that the notion of ownership often becomes synonymous with control of the
remains.
5
Determining ownership, usually constructed relatively narrowly as
the basis for strict legal entitlements, has been viewed as the key judicial task
in, for example, deciding familial disputes concerning the dead.
6
Similarly,
the ever-burgeoning law and medicine literature concerning organ
transplants, unauthorized autopsies, and related medico-legal matters
540
2 See, generally, G. Gorer, Death, Grief and Mourning (1965); D. Clark (ed.), The
Sociology of Death: Theory, Culture and Practice (1993); C. Seale, Constructing
Death: The Sociology of Dying and Bereavement (1998); and D. Davies, Death,
Ritual and Belief (2nd edn., 2002).
3 See, generally, H.Y. Bernard, The Law of the Death and the Disposal of Remains
(1980); D.M. Anderson, Courting Death: The Law of Mortality (1999); and A.
Bainham et al. (eds.), Body Lore and Laws (2002).
4 As Nagel has observed, once a human being has become a corpse, it may be viewed
as something like a `a piece of furniture' (T. Nagel, Mortal Questions (1979) 7).
5 While it has long been established in common law jurisdictions that there is no
property in a dead body, the courts have recognized an exception to this rule to
facilitate executors (or, if a person dies intestate, personal representatives)
`claiming' a body in order to facilitate disposal ± see Williams v. Williams (1882)
20 Ch.D. 659 and Dobson v. North Tyneside Area Health Authority [1996] 4 All
E.R. 474. For an excellent critique of this rule, see P. Matthews, `Whose Body?
People as Property' [1983] Current Legal Problems 193, 197±205, 208±14.
6 For a detailed analysis of the law relating to family disputes and the dead, see H.
Conway, `Dead But Not Buried: Bodies, Burial and Family Conflict' (2003) 23
Legal Studies 423. As Conway notes (pp. 442±9), the one potential exception to the
dominance of the ownership paradigm concerning family disputes is signs of a
tentative engagement with human rights discourses concerning the right to respect
for family life under Article 8 of the European Convention and freedom of thought,
conscience, and religion provisions in Article 9.
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concerning the dead is suffused with notions of ownership.
7
As an
organizing concept, ownership provides a familiar template around which
to shape competing claims.
8
It denotes important notions including status,
possession, control, and the exercise of legitimate authority to the exclusion
of all others.
9
It facilitates a necessary process of detachment from contests
which are often socially and emotionally fraught and a retreat to legal
formalism traditionally associated with such private law concepts.
10
While legal recourse to a familiar concept is perfectly understandable, we
would argue that private law constructs of ownership are conceptually deficient
in dealing with disputes surrounding the dead in the contexts we discuss. As
Charmaz has argued, death is more than a biological progression, `. . . it is an
inherently social process'.
11
Forms of burial, methods of commemoration, and
the achievement of emotional closure are important to many beyond those
directly affected by the death. In particular, in the highly charged political
contexts discussed below, death disputes are of central societal importance in
jurisdictions that are attempting to come to terms with their history. Legal
control over the dead, the regulation of their memorialization, and the
relationship between their fate and processes of post-conflict healing in such
societies are often key to what Nagel has described as the distinction between
knowledge and acknowledgement.
12
In Australia, or amongst the Native
American tribes, or Latin America, Northern Ireland, the Balkans, and the
other jurisdictions discussed below, people may already know more or less
what happened.
13
However, it is often through the process of dealing with the
541
7 See, for example, K. Mason and G. Laurie, `Consent or Property: Dealing with the
Body and its Parts in the Shadow of Bristol and Alder Hey' (2001) 64 Modern Law
Rev. 710; J. Harris, `Law and Regulation of Retained Organs: The Ethical Issues'
(2002) 22 Legal Studies 527; and M. Brazier, `Retained Organs: Ethics and
Humanity' (2002) 22 Legal Studies 550. On ownership and living body parts, see
R.W. Marusyk and M.S. Swain, `A Question of Property Rights in the Human Body'
(1989) 21 Ottawa Law Rev. 351; S. Munzer, A Theory of Property (1990) ch. 3; J.
Harris, `Who Owns My Body' (1996) 16 Ox. J. of Legal Studies 55; and M. Davies
and N. Naffine, Are Persons Property? Legal Debates About Property and
Personality (2001).
8 See, generally, J.W.C. Turner, `Some Reflections on Ownership in English Law'
(1941) 19 Cdn. Bar Rev. 342; J. Harris, Property and Justice (1998) especially ch. 5;
and C.M. Rose, Property and Persuasion: Essays on the History, Theory, and
Rhetoric of Ownership (1994).
9 See A.M. HonoreÂ, `Ownership' in Oxford Essays in Jurisprudence, ed. A.G. Guest
(1961) 113.
10 See R. Brooks, Structures of Judicial Decision-Making from Legal Formalism to
Critical Theory (2002).
11 K. Charmaz, The Social Reality of Death (1979).
12 T. Nagel, `Concealment And Exposure' (1998) 27 Philosophy & Public Affairs 3.
13 `In the former Communist Eastern European states there was little need for ``new''
historical revelations. Most people knew what had happened in the past and retained
this information intact in private memory; no-one really believed the official lies.
But this information now had to be converted into official truth' (S. Cohen, States of
Denial: Knowing About Atrocities and Suffering (2001) 225).
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dead, what Cohen has referred to as `digging up the graves and opening the
wounds', that genuine acknowledgement of a violent past may occur.
14
As a first step therefore, we would argue that the traditional parameters of the
notion of ownership should be expanded to reflect a broader and more com-
munal view of the shared significance of the dead. Such a view is perfectly
captured in the tensions between the historical and scientific communities in
former colonies and surviving indigenous peoples concerning their dead
ancestors.
THE CULTURAL AND MORAL OWNERSHIP OF INDIGENOUS DEAD
The crumbling of colonial empires in the twentieth century witnessed a
parallel cultural renaissance and indigenous assertiveness amongst formerly
colonized peoples.
15
This process has in turn spurred an increased con-
sciousness concerning the fate of indigenous skeletal remains and sparked a
range of legal disputes.
16
Conflicts have arisen concerning corpses and body
parts, often of Native American or Aboriginal peoples, which are held in
museums and research institutes. Disputes have also occurred over the
treatment of recently unearthed human remains, with indigenous peoples
pressing for the return of bodies of their ancestors for subsequent (re)burial,
and scientists, anthropologists, and archaeologists arguing that these remains
are a source of collective knowledge and should be retained accordingly. In
such circumstances, the notion of ownership of the dead extends well beyond
strict legal entitlements towards cultural and moral claims surrounding the
fate of the remains as a basis for claimsmaking.
17
Scientists and historians often contend that indigenous remains represent a
vital source of information about the past concerning topics as diverse as
diet, patterns of disease, population trends, and age-old questions regarding
the origins of mankind. They argue that such information will be
irretrievably lost on (re)burial and that the inherent knowledge value of
such remains thus justifies their scientific or historical retention.
18
In some
542
14 id., especially chs. 9 and 10.
15 See, generally, H.M. Price, Disputing the Dead: U.S. Law on Aboriginal Remains
and Grave Goods (1992); T. Barringer and T. Flynn (eds.), Colonialism and the
Object: Empire, Material Culture and the Museum (1997); and P. Magubane,
African Renaissance (2000).
16 D.G. Jones, Speaking for the Dead (2000) ch. 4.
17 See J. Hubert, `Dry Bones or Living Ancestors? Conflicting Perceptions of Life,
Death and the Universe' (1992) 1 International J. of Cultural Property 105. For an
overview of the notion of claimsmaking, see J. Best, Images of Issues (1999) and S.
Bockman, `Interest, Ideology, and Claims-Making Activity' (1991) 61 Sociological
Inquiry 452.
18 See, for example, T. Molleson, `The Archaeology and Anthropology of Death: What
the Bones Tell Us' in Morality and Immortality: The Archaeology and Anthropology
of Death, eds. S.C. Humphreys and H. King (1981) 15±32 and Hubert, id., pp 106±8.
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instances they have contested that cultural ownership claims are tenuous.
19
For example, skeletal remains may be hundreds or even thousands of years
old, and the deceased may have belonged to a tribe which bears little
resemblance to a particular modern indigenous group. Here, scientists have
gone so far as to liken the disturbance and return of indigenous remains to a
form of historical vandalism, akin to the destruction of the Egyptian
pyramids or razing of the Taj Mahal.
20
Such a view of historical remains in
effect postulates a broader notion of ownership, wherein the indigenous dead
are seen as `. . . part of the world's heritage, since the information they yield
is relevant to, and may even be said to belong to, all human communities.'
21
In contrast, indigenous communities assert that the remains of their tribal
ancestors must be treated with dignity, and not as mere artefacts `on display
for the curious, and labelled ``collections'', ``specimens'', and ``objects of
antiquity''.'
22
In seeking to secure the repatriation of these remains, these
communities have argued that they should be entitled to determine what
happens to the bodies of their ancestors on the basis of collective cultural
rights and values which transcend generations. Many living indigenous
peoples regards themselves as custodians of the dead.
23
Moreover, since in
some instances burial is essential to secure the transition into the spiritual
afterlife,
24
the repatriation of ancestral remains to their native homeland is
considered necessary to allow the dead to continue on their spiritual journey,
while ensuring respect for the cultural beliefs of the deceased individual and
those of the indigenous group to which s/he belongs.
The spiritual importance of respect for the dead and the sacred beliefs of
living indigenous peoples is but one aspect of this notion of cultural
`ownership.' The other is entwined with the notion of moral `ownership' of
the dead. As Gosden and Knowles have observed, `. . . moral issues are key
to any consideration of colonialism'.
25
While most colonial civilizations
believed in burying their dead and allowing them to remain in the grave
543
19 P. Afrasiabi, `Property Rights in Ancient Skeletal Remains' (1997) 70 Southern
California Law Rev. 805, 807.
20 D.J. Mulvaney, `Past Regained, Future Lost: The Kow Swamp Pleistocene Burials'
(1991) 65 Antiquity 12, 18.
21 Jones, op. cit., n. 16, p. 128.
22 J. Hammil and R. Cruz, `Statement of American Indians Against Desecration Before
the World Archaeological Congress' in Conflict in the Archaeology of Living
Traditions, ed. R. Layton (1989) 198.
23 See P. Vines, `Resting In Peace? A Comparison of the Legal Control of Bodily
Remains in Cemeteries and Aboriginal Burial Grounds in Australia' (1998) 20
Sydney Law Rev. 78, 96±97, as well as J. Riding In, `Without Ethics and Morality: A
Historical Overview of Imperial Archaeology and American Indians' (1992) 24
Arizona State Law J. 11, 12±13.
24 See Vines, id., pp 96±8 and Riding In, id., pp 13±14 for an account of Aboriginal and
Native American perceptions of death and treatment of the body.
25 C. Gosden and C. Knowles, Collecting Colonialism: Material Culture and Colonial
Change (2001) 209.
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without interference, this was not always the case for indigenous peoples.
26
As European nations such as Britain and France embarked on colonial
conquests of Australia and the Americas predicated on notions of political
power and economic wealth, the graves of indigenous peoples were
plundered throughout the colonies in the same manner as the land itself.
Darwinian theories of evolution fostered an era of scientific and cultural
racism which, combined with imperialistic notions of white supremacy, led
to the looting and pillaging of burial grounds and, in more extreme cases, the
killing of indigenous peoples to obtain research material or even trophies for
private collection.
27
Thus bodies were obtained by European scientists and
collectors in ways which would have been unacceptable at home, yet which
were justified by what has been described as a `facËade of intellectualism and
rhetoric of scientific righteousness'.
28
The fact that skeletons and body parts
held by museums and research institutes are those of identifiable racial
groups, or in some instances identifiable individuals,
29
and symbolic of
atrocities committed during colonial power struggles has been a decisive
factor in the extensive repatriation of these remains.
Various attempts have been made in recent years to secure some form of
consensus between archaeologists, anthropologists, and scientists on the one
hand and indigenous communities on the other as regards the fate of skeletal
remains. For example, the Vermillion Accord which was agreed at the World
Archaeological Congress in 1989 emphasizes the need for mutual respect
and cooperation between indigenous peoples and archaeologists.
30
A number
of countries have also enacted specific legislation to regulate the storage,
study, and repatriation of skeletal remains such as the Native American
Graves Protection and Repatriation Act 1990 in the United States, and the
Aboriginal Heritage Act 1988 and Heritage Conservation Act 1991 in the
respective Australian states of South Australia and the Northern
Territories.
31
Such agreements and legislative initiatives have provided a
544
26 J. Winski, `There are Skeletons in the Closet: The Repatriation of Native American
Human Remains and Burial Objects' (1992) 34 Arizona Law J. 187.
27 For an account of the atrocities committed against Native American graves during
this period, see Riding In, op. cit., n. 23, pp. 14±23 and D. Hurst Thomas, Skull Wars
(2000) Part II. For an Aboriginal perspective, see Vines, op. cit., n. 23, pp. 98±100 as
well as `Bones of Contention' Guardian, 9 July 2002.
28 Riding In, id., p. 33.
29 Such as those of Truganini, the last full-blooded Aborigine in Tasmania in the wake
of the Black War of the 1830s during which Aborigines were persecuted by white
settlers; her body was exhumed from its grave and plundered by scientists following
her death in 1876. Trugnanini's remains were returned to Australia after being
handed over to a delegation from Tasmania by the Royal College of Surgeons in
London (`Museum Returns Sacred Samples' Guardian, 31 May 2002).
30 For an overview, see Hubert, op. cit., n. 17, pp. 110±13.
31
Although the Australian legislation has been criticized in terms of the legislature's
projecting onto indigenous communities its own notion of what indigenous values
should be: see Vines, op. cit., n. 23, pp. 100±2. While there is no such legislation in the
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useful framework for negotiating the return of skeletal remains obtained
during colonial times, with museums and research institutes accepting that
living indigenous peoples have a superior claim to the bodies of their
ancestors in these circumstances.
In such disputes, the question of who `owns' the dead is not simply a
question of the exclusive exercise of authority over the remains, but is
inextricably linked to the notion of who `owns' the past. The ongoing dispute
in the United States over the fate of a 9,200-year-old skeleton christened
`Kennewick Man' offers a perfect illustration.
32
Following his discovery in
July 1996, scientists and anthropologists clashed with Native Americans who
claimed Kennewick Man as one of their ancestors and sought custody of his
remains for burial in accordance with their spiritual traditions. The former
argued that, since this was a rare discovery of global significance,
33
Kennewick Man should be used to further the knowledge of society as a
whole, as opposed to being handed over to Native American tribes. The
Native Americans relied on the Native American Graves Protection and
Repatriation Act 1990 (NAGPRA) which vests custody of skeletal remains
in the lineal descendants of the Native American or, if they cannot be found,
in the Indian tribe which has the closest `cultural affiliation' with the
deceased.
34
While the Secretary of the Interior initially held in favour of the
tribal claimants, this decision was subsequently overturned by the Oregon
District Court which barred the transfer of the skeleton for immediate burial
and permitted its scientific study instead.
35
The court held that the remains
could not be classed as `Native American' for the purposes of NAGPRA
36
545
United Kingdom, the Culture, Media and Sport Committee has examined the
repatriation issue and stressed the need for mutual understanding and dialogue
between institutions in Britain which hold indigenous remains and indigenous
communities themselves (House of Commons Culture, Media and Sports Committee
Seventh Report, Cultural Property: Return and Illicit Trade (July 2000) vol. 1, para
165).
32 The skeleton was discovered in July 1996 protruding from the banks of the
Columbia River at Kennewick, Washington by a group of teenagers going to a boat
race. For an overview of the issues surrounding the fate of Kennewick Man, see R.
Tsosie, `Privileging Claims to the Past: Ancient Human Remains and Contemporary
Cultural Values' (1999) 31 Arizona State Law J. 583 and M. Kelly, `A Skeleton in
the Legal Closet: The Discovery of ``Kennewick Man'' Crystallises the Debate Over
Federal Law Governing Disposal of Ancient Human Remains' (1999) 21 Hawaii
Law Rev. 41.
33 Fewer than 12 human skeletons of comparable age have been found in North and
South America (`Racial Skulduggery' Australian Financial Rev., 23 February 2001).
34 1990 Act, ss. 3002(a)(1) and 3002(a)(2). For an overview of this legislation, see J.F.
Trope and W.R. Echo-Hawk, `The Native American Graves Protection and
Repatriation Act: Background and Legislative History' (1992) 24 Arizona State
Law J. 35.
35 Bonnichsen v. United States, 969 F. Supp. 628 (1997); Bonnichsen v. United States,
217 F. Supp. 2d 1116 (2002).
36 1990 Act, s. 3001(9) defines `Native American' as `of, or relating to, a tribe, people,
or culture that is indigenous to the United States.'
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since there was insufficient evidence to suggest that Kennewick Man was
related to any identifiable indigenous group or culture in the United States.
Likewise, the claimants could not assert control of Kennewick Man on the
basis of `cultural affiliation' under NAGPRA
37
since his age and lack of
information as to his era made it impossible to say whether he was related to
them or whether there was a shared group identity between his group and the
living indigenous peoples represented by the claimants on the basis of oral
histories passed down through generations. This decision has recently been
confirmed by the United States Court of Appeal for the Ninth Circuit, which
stressed that the statute required some relationship between the remains and
apresently existing tribe or culture to be considered Native American.
38
While NAGPRA may have been enacted to respect the burial traditions of
modern day American Indians and to protect the dignity of the human body
after death, its purposes would not be served by requiring the transfer to
modern American Indians of remains which did not bear any relationship to
them.
The most controversial aspect of the Kennewick Man discovery and the
subsequent driving force behind the protracted litigation on both sides is the
fact that the remains have distinct characteristics which differ from those of
modern Native Americans. The age of the skeleton and its apparent
Caucasoid features has ignited theories that Europeans may have arrived in
America many thousands of years before the accepted date.
39
From a
scientific viewpoint, the remains thus provide a unique window into theories
of human evolution and patterns of migration across the Americas. From the
perspective of Native Americans, Kennewick Man has the potential to re-
write history in terms of the first people to settle in America and thus to
challenge the sovereignty of Native Americans as the First Americans, a
`Pandora's box that most tribes want kept firmly shut'.
40
As Hurst Thomas
suggests, the pivotal issue in the Kennewick Man dispute is not science or
cultural values, but politics ± who gets to control ancient American
history?
41
This, in turn, will influence who controls the present in terms of
the status and rights accorded to Native American tribes.
In sum therefore, narrow private law constructions of ownership fail to
take account of the centrality of the dead as sites and sources of important
political and ideological conflicts. Historical and scientific researchers
have attempted, albeit with limited success, to frame their claims over
indigenous dead within a broad societal `heritage' notion of ownership.
Living indigenous communities have successfully laid claim to the bodies
546
37 1990 Act, s. 3001(2) defines `cultural affiliation' as a `relationship of shared group
identity which can be reasonably traced historically or prehistorically between a
present day Indian tribe . . . and an identifiable earlier group.'
38 Bonnichsen v. United States, 367 F. 3d 864 (2004).
39 See Tsosie and Kelly, op. cit., n. 32.
40 Aus. Financial Rev., op. cit., n. 33.
41 Hurst Thomas, op. cit., n. 27, p. xxv.
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of their ancestors on the basis of much more potent and forceful `cultural'
and `moral' notions of ownership, both of which are entwined with
colonial histories of the suppression of native culture and a lack of respect
for indigenous people, both living and dead. Repatriation of indigenous
remains serves as recognition of indigenous cultural identity and as a form
of `restitution in the face of past mistreatment.'
42
These cultural and moral
aspirations of ownership have, in turn, been validated by the state as post-
colonial nations intervene to secure the return of skeletal remains held by
museums and research institutes in former occupying colonial powers.
Such actions are laden with symbolism. They represent a tangible
acknowledgement of past transgressions,
43
a desire for some form of
vicarious atonement, and are part of the ongoing political struggle for
increased rights recognition amongst indigenous peoples.
44
At a cultural
and spiritual level, such moves also assist indigenous peoples in
commemorating their dead in a way which is in keeping with their
traditions.
LAW, DEATH, AND COMMEMORATION
The process of commemoration is central to death rites in most historical and
contemporary societies.
45
Yet an act of commemoration is more than a
straightforward process of remembrance. In some instances ± such as the
pyramids of the Pharaohs, Balinese funeral pyres, or Judaeo-Christian funeral
monuments ± commemorative icons are symbols of esteem, their height and
grandeur viewed as markers of distinction which denote the status of the
deceased when alive.
46
In other instances, such as war commemoration
monuments,
47
such sites are often viewed as opportunities for the living to
`express grief and indebtedness' for the sacrifices of the dead.
48
In still others,
547
42 Jones, op. cit., n. 16, p. 128.
43 Nagel, op. cit., n. 12.
44 See, for example, `Britain Pressed to Return Aboriginal Bones' Guardian, 5 July
2002.
45 J. Bowker, The Meaning of Death (1991) and J. Baudrillard, Social Exchange and
Death (1993).
46 Z. Bauman, Mortality, Immortality and Other Life Strategies (1992).
47 J. Davies, `War Memorials' in Clark, op. cit., n. 2, p. 112. War memorials are the
most widespread of European statuary and often the most imposing. For example,
the largest freestanding statue in the world is the war memorial of Mother Russia at
Volgagrad (previously known as Stalingrad) which is three times larger than the
Statue of Liberty: see P. Kohout et al., Disorientations ± Eastern Europe in
Transition (1992).
48 J. Winter, Sites of Memory, Sites of Mourning: The Great War in European Cultural
Memory (1995) 94±5. See, also, B. Schwartz and T. Bayma, `Commemoration and
the Politics of Recognition: The Korean War Veterans Memorial' (1999) 42 Am.
Behavioural Scientist 946.
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such as Holocaust or genocide memorials, they are not just powerful
reminders of past atrocities but also highly charged loci around which notions
of nationhood are constructed, explicitly designed to `. .. foster the sense of a
common present and future, even a sense of a shared national identity'.
49
In
each instance, law plays a key role. Planning permission to erect monuments,
freedom of speech, freedom of religion, the prohibition of incitement to racial
or sectarian hatred, the celebration or indeed obliteration of public memory ±
these and related legal discourses provide the focal points around which
commemorative disputes concerning the dead are both conceptualized and
practically resolved.
50
In each, when legal clashes arise, they speak to broader
political, social or ideological conflicts which crystallize around disputes
which are ostensibly about commemorating the dead.
For example, the Israeli Supreme Court has had to rule on the com-
memoration of the right-wing extremist Baruch Golstein who was himself
killed just after he had massacred twenty-nine Muslim worshippers in a
mosque in Hebron in 1994. Goldstein's tomb became a shrine for Israeli
settlers and was embellished with an altar, candles, cupboard for holy
books, taps for ceremonial washing, and street lights. The inscription
declared that he was a `hero' and a `martyr' who `. . . was murdered for the
sanctification of God's Name'.
51
Following the murder of Israeli Prime
Minister Yitzhak Rabin, which was widely linked to inflammatory rhetoric
from the Israeli Right (including praise for Goldstein's actions),
52
the
Supreme Court ruled that the monument could be destroyed.
53
The court
found that free-speech considerations were superseded by the fact the
words were in breach of the Prevention of Terrorism Ordinance 1948,
section 4 of which made it a criminal offence for a person to `. . . publish,
in writing, or orally, words of praise, sympathy or encouragement for acts
of violence calculated to cause death or injury'. While this provision, and
similar provisions under Israeli law concerning incitement to racism had
been little utilized until the mid-1990s, Rabin's assassination galvanized
the authorities to take a number of high-profile prosecutions against
individuals associated with praising Goldstein's murders and the
assassination of Rabin. Following that ruling the Knesset introduced the
Prohibition of Erecting Monuments in Memory of the Perpetrators of
Terror Law 1998, section 3 of which provided that `. . . a gravestone the
548
49 J. Young, The Texture of Memory: Holocaust Memorials and Meaning (1993) 6.
50 See, for example, H.K. Rothman, America's National Monuments: The Politics of
Preservation (1994) and O. Yiftachel, Planning as Control: Policy and Resistance
in a Deeply Divided Society (1995).
51 See `Anger as Army Acts on Shrine' The Age, 30 December 1999 and `Rightists at
Goldstein's Grave Slam Minister' Jerusalem Post, 22 March 2000.
52 Report of the Commission of Inquiry into the Murder of the Late Prime Minister
Yitzhak Rabin (1996), at <http:www.israel-mfa.gov.il/mfa/go.asp?MFAH01fo0>.
53 M. Gur-Arye, `Can Freedom of Expression Survive Social Trauma? The Israeli
Experience' (2003) 13 Duke J. of Comparative and International Law 155.
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erection of which constitutes an offence under section 4 of the Prevention
of Terror Ordinance 1948 shall be removed.'
54
Following the introduction
of that law, and despite protests by settlers who lay down on the grave, the
Israeli army bulldozed the shrine but left the grave intact.
55
The Northern Ireland conflict has also seen the commemoration of those
killed as a key source of political and legal controversy.
56
Gravestone and
commemorative structures of Republicans, Loyalists, members of the
security forces, as well as civilians who died as a result of political
violence, have been regularly desecrated by political opponents during the
conflict.
57
In the most renowned legal dispute concerning the dead, in 1995
the National Graves Association (NGA)
58
judicially reviewed the decision
by the Northern Ireland Secretary of State to refuse to exhume and remove
the remains of Tom Williams, an IRA man executed and buried in the
confines of Crumlin Road prison in 1942. A commemorative memorial at
Milltown cemetery to Williams has long been prominently displayed at the
Republican plot with a grave reserved for his body.
59
The NGA argued that
the Secretary of State's refusal was unreasonable and this argument was
ultimately accepted by then Lord Chief Justice Hutton.
60
Williams's body
was ultimately disinterred and removed to Milltown cemetery where Sinn
549
54 The purpose according to the explanatory notes to the draft Bill was `. . . to prevent
incitement and encouragement of criminal acts.' See HC 7583/98, Goldstein v. OC
Central Command 53(5) p.D.317 and HC 7583/98, Bachrach v. Minister of the
Interior 2000(3), Takdin Elion 3007.
55 `Israel Destroys Shrine to Mosque Gunman' New York Times, 30 December 1999.
The report states that the settlers shouted to the soldiers: `You don't have to speak
German to take apart Jewish graves . . . God will take his revenge on you. God
willing, you won't make it through the year and we will have the privilege of
dancing on your blood.' See, also, A. Wetzman, `A Tale of Two Cities: Yitzhak
Rabin's Assassination, Free Speech and Israel's Religious-Secular Kulturkampf'
(2001) 15 Emory International Law Rev. 1.
56 See, generally, L. Prior, The Social Organisation of Death (1989).
57 See, for example, `Monument Attack Blamed on Loyalists' Irish News, 1 March
1999; `Republican Attack on Dead UDR Man's Monument: An Evil Act of
Vandalism' Irish News, 22 February 2001; `Monument to Dead Soldiers Damaged'
Belfast Telegraph, 27 August 2002; and `Graves of Republicans Desecrated as
Hatred Persists Beyond Death' Irish Independent, 13 January 2004.
58 The National Graves Association is the wing of the Republican Movement charged
with the upkeep of Republican graves and memorials which are to be found in many
Catholic graveyards around Ireland.
59 B. Anderson, Joe Cahill: A Life in the IRA (2002).
60 Rv. Secretary of State for NI ex parte Hannaway [1995] NI 159. The Secretary of
State had argued that since the Capital Punishment Amendment Act 1868, s. 6
decreed that the body of an executed person should be buried within the confines of
the prison, he had no discretion in the matter. However Hutton LCJ found, that
precisely because the burial within the prison was part of the sentence, the Secretary
of State did in fact have the power to exercise the Royal Prerogative of Mercy and
directed him to reconsider the case.
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Fein President Gerry Adams led several thousand Republicans in an address
to commemorate the event.
61
More recently, disputes concerning memorials to paramilitaries erected in
public places have been framed within equality discourses arising as a result
of the Good Friday Agreement, and, in particular, the responsibility of local
authorities to carry out an `equality impact assessment' regarding any
erection of such monuments under section 75 of the Northern Ireland Act
1998. Section 75 requires any public authority in Northern Ireland to have
due regard to the need to `promote good relations between persons of
different religious belief, political opinion or racial group' in the conducting
of its functions.
62
In 2001, Republicans constructed a memorial to IRA
members killed in the predominantly Catholic town of Downpatrick. The
local council, concerned about the legality of the construction, consulted the
Northern Ireland Equality Commission. The Commission, referring to the
requirement under the Northern Ireland Act that such actions be `equality
proofed', suggested that the construction could be open to challenge under
section 75 of the 1998 Act. Section 75 requires councils to:
. .. have regard to the desirability of promoting good relations between persons
of different religious beliefs, political opinion or racial group. The Council
would need to consider whether the presence of such a monument could be
perceived as marking out territory and thus inhibit the use of this park by all of
the community. In our view [the Equality Commission] there would be
particular problems from a good relations perspective if the council were to
allow such displays in its facilities'
63
While the fate of the Downpatrick monument remains unresolved, what is
of particular interest for current purposes is the fact that Sinn Fein, the IRA's
political wing (and perhaps the most vocal of the local political parties in
favour of the `human rights and equality agenda')
64
has somewhat reluc-
tantly appeared to accept that the erection of such monuments should be
most appropriately addressed within the equality framework. During the
conflict the erection of such monuments was viewed as part of the broader
Republican `struggle', an assertion of their `right' to honour Republican
dead, with little apparent heed to their impact on other sections of the
550
61 See `Hanged IRA Man to be Reburied 57 Years On' Guardian, 30 August 1999 and
`Hanged IRA Man's Vision' Irish News, 22 January 2000.
62 C. McCrudden, `Mainstreaming Equality In The Governance Of Northern Ireland'
(1999) 22 Fordham International Law J. 1696.
63 Cited in Northern Ireland Assembly Debate on Erection of Unauthorised Terrorist
Memorials, Paper 56/01, 11 June 2002. Councils meet such a requirement by
conducting an `equality impact assessment' to determine the likely impact upon
local community relations of any proposed policy initiative. A plan to construct a
similar monument in nearby Castlewellan was stopped after the council was granted
an injunction preventing the construction (see `Injunction Halts Erection of IRA
Dead Memorial' Irish News, 30 August 2001).
64 K. McEvoy, `Law, Struggle, and Political Transformation in Northern Ireland'
(2000) 27 J. of Law and Society 542.
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community.
65
The traditional Republican response to criticism has been to
point to the abundance of memorials commemorating British soldiers and
security forces throughout Northern Ireland, including those in
predominantly Nationalist areas.
66
However, in July 2002, Sinn Fein agreed
to the removal of a memorial to dead IRA members which had been erected
close to a site where two Protestant civilians had been killed while they
worked to repair a police station. In removing the memorial, Republicans
made specific reference to the need to be sensitive to the feelings of IRA
victims and Sinn Fein's commitment to the equality provisions in the
Agreement.
67
At the time of writing, there appears to be little evidence that
Loyalist paramilitaries are similarly inclined.
In the United States, free speech considerations concerning forms of
commemoration of the dead have intersected with disputes concerning the
separation of church and state
68
and the sensitivities concerning the flying
of confederate flags in the southern states.
69
There are a range of cases
wherein attempts have been made to circumnavigate the constitutional
prohibition on state endorsement of a particular religion such as
Christianity (for example, through the construction of crosses in public
spaces) through the designation of such sites as war memorials
commemorating the dead.
70
In a similar vein, the `Sons of Confederate
551
65 J. Leonard, A Report on Memorials to the Casualties of Conflict, Northern Ireland
1969 to 1997 (1997).
66 See, for example, Conor Murphy MLA, Northern Ireland Assembly Debate on
Erection of Unauthorised Terrorist Memorials, Paper 56/01, 11 June 2002.
67 See `Republicans Make Conciliatory Move Over IRA Memorial' Guardian, 24 July
2002 and `Memorial Move By Sinn Fein' Belfast Telegraph, 29 August 2002.
68 The First Amendment to the US Constitution states: `Congress shall make no law
respecting an establishment of religion . . .'. Since 1971 the US Supreme Court has
generally analysed any alleged violation of this `establishment clause' using the
three-part test set forth in Lemon v. Kurtzman 403 US 602, 612 (1971), that any
displayed religious symbol must (a) have a secular purpose, (b) neither advance or
inhibit religion in its primary effect, and (c) not foster an excessive entanglement
with religion.
69 For a useful discussion on the backdrop to such controversy, see J. Bodnar,
Remaking America: Public Memory, Commemoration and Patriotism in the
Twentieth Century (1994) and J. Martinez et al. (eds.), Confederate Symbols in the
Contemporary South (2001).
70 For example, in 1969 the Oregon Supreme Court found that a cross erected in a
public park and maintained by the local municipal authorities in Eugene City
violated the Federal and Oregon constitutions because it was erected for a religious
purpose and created the inference of official endorsement of Christianity. The local
authorities subsequently approved an amendment to the City Charter which
redesignated the cross as a war memorial, and placed a bronze plaque at the foot of
the cross which designated it as a memorial `. .. to the veterans of all wars in which
the United States has participated'. After a further three legal challenges, this
redesignation was ultimately held by the Ninth Circuit Court of Appeal to be in
breach of the First Amendment since, regardless of intent, such a cross on public
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Veterans' (SCV) had erected a large flagpole in a graveyard in Stone
Mountain, Atlanta in order to fly a confederate flag. The local mayor
ordered that the flagpole be removed, arguing `[t]here are black folks in
this town who have relatives in that cemetery too, and I'd be damned if I
was going to allow that flag to fly over their graves'.
71
The SCV
challenged the removal, arguing that a cemetery constituted a `public
forum, designated for the public communication of ideas' wherein the right
to free speech was protected, and that their free speech rights had been
infringed. Following the decision in Griffin v. Dept of Veteran Affairs,
72
the Atlanta District court found that a cemetery did not constitute a public
forum, and that the removal of the confederate flag constituted a lawful
interference with the right to free speech, notwithstanding the defendants'
desire to honour war dead.
73
In each of these instances, legal discourses have been utilized as ways of
framing disputes concerning the preservation of the memory of the dead
through different forms of commemoration. However, the legal obliteration
of a dead body can itself represent a commemorative expression. Prior to
imprisonment emerging as the primary form of punishment, the body of an
accused person was itself the primary canvas upon which the lawful power
of the state or sovereign was inscribed.
74
Historically, the physical and
symbolic destruction of the body after death was an important aspect of the
sentence of the court. For example, in Michel Foucault's account of the fate
of Damiens, the would-be regicide in 1757 France, the obliteration of the
deceased's body was almost as precisely detailed as the elaborate tortures
552
land may reasonably be perceived as governmental approval of Christianity, thus
breaching the wall of separation between church and state ± see Separation of
Church and State Committee v. City of Eugene of Lane County, State of Oregon 93 F
3d 617 (1996). See, also, R. Gonzales et al v. North Township of Lake County
Indiana 4 F 3d 1412 (1993) and ACLU v. Rabun 698 F 2d 1098, 1110 (1983) where
the court decided that the stated secular purpose of a monument `cannot be a sham to
avoid a potential Establishment Clause violation'.
71 Sons of Confederate Veterans v. City of Stone Mountain 232F Supp. 2d 1337, 1339
(2002).
72 274 F 3d 818 (2001).
73 In Griffin, the court also found against a plaintiff seeking to erect a permanent
flagpole to fly the confederate flag in a graveyard which only contained confederate
dead. The court argued that it was legitimate for the Veterans' Association to regard
the confederate flag as divisive and contrary to their policy of maintaining the
graveyard as `a tranquil and non-partisan refuge' ± 274 F 3d 818, 821 (2001).
74 See, for example, G. Smyth, `Civilized People Don't Want to See that Sort of
Thing: The Decline of Physical Punishment in London 1760±1840' in Qualities of
Mercy: Justice, Punishment and Discretion, ed. C. Strange (1996) 1; P.
Spierenburg, `The Body and the State' in The Oxford History of the Prison: The
Practice of Punishment in Western Society, eds. N. Morris and D. Rothman (1995)
49; and J. Pratt, Punishment and Civilisation: The Acceptability of Prison in
Modern Society (2002).
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which had preceded his death.
75
Similarly, in the case of Scottish hero
William Wallace, commemorated after a fashion through the Mel Gibson
movie Braveheart,
76
the trial, ritualistic torture, dismemberment, and
dispersal of the body throughout the kingdom by Edward I was a calibrated
reassertion of state power through the corpse of a political challenger.
77
In
some such instances, the legal annihilation of the deceased is based upon the
pragmatic political concern not to allow the remains to become a rallying
point for a vanquished regime.
78
In others, such as the decision by the Israeli
authorities regarding the remains of Nazi war criminal Adolf Eichman that
following his trial and execution, his ashes should be scattered in
international waters `lest they defile Jewish soil', the method arguably
represents a desire to utilize the lawful disposal of the deceased's body as an
expression of outrage and vengeance at his or her previous actions.
79
In other cases, the legal prohibition on commemoration is less directed
towards the actual remains but, rather, at an arguably more ambitious project
aimed specifically at shaping memories related to the deceased. For
example, under Roman law, in a culture wherein public honours and statues
marking a person's public memorial were central to familial status and,
indeed, income after the death of a patriarch, the sentence of `damnation of
memory' was the most serious sentence which could be imposed and was
aimed at destroying the reputation of a person considered a danger to society.
Such a sentence entailed the destruction or confiscation of the deceased's
property, any statues or other idols, and personal effects, and the eradication
of the dead body in a way which prevented the family from having a proper
burial ± a sanction designed to obliterate their memory in this world as well
553
75 M. Foucault, Discipline and Punish (1977) 3±5:
Damiens the regicide was condemned `to make the amende honorable before the
main door of the church of Paris' . . . when the four limbs has been pulled away,
the confessors came to speak to him: but his executioner told them he was dead . . .
The four limbs were untied from the ropes and thrown on the stake set up in the
enclosure in line with the scaffold, then the trunk and the rest were covered with
logs and faggots, and fire was put to the straw mixed with this wood. In
accordance with the decree the whole was reduced to ashes . . .
76 S. Morgan, `The Ghost in the Luggage. Wallace and Braveheart: Post-Colonial
``Pioneer'' Identities' (1999) 2 European J. of Cultural Studies 375.
77 S. Wood, Wallace, Bruce and the Wars of Independence 1286-1328 (1999).
78 Following the trials of the Nazi war criminals at Nuremberg, the Allies reported that
the ashes of the executed were `scattered in a river somewhere in Germany': M.
Verner, Nuremberg: A Nation on Trial, tr. R. Berry (1979) 14±15. In Japan,
following the trials at Tokyo and cremations at Yokohama, the ashes of the executed
were retrieved, hidden, and later buried beneath a memorial on the summit of Mount
Sanagana. The tablet on the memorial on the `graves of the seven martyrs' pays
tribute to the men who refused to implicate their Emperor Hirohito in any way: D.
Bergamini, Japan's Imperial Conspiracy: How Emperor Hirohito Led Japan to War
Against the West (1971).
79 See H. Arendt, Eichmann In Jerusalem: A Report On The Banality Of Evil (rev. and
enlarged edn., 1994).
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as impede their progress in the afterlife by hindering the religious rituals.
80
Similarly in Stalinist Russia, commemorative symbols of those killed as a
result of the many murderous purges were forbidden.
81
Even personal
mementos such as photographs, letters, and diaries were destroyed in the
presence of the secret police in what Kotlin has referred to as a `counter
commemoration', an obliteration of the memory of those who had sinned
against the regime.
82
Whether it is through attempts at the preservation of memory, or indeed
its obliteration, law is a key vehicle through which such efforts are
attempted. With regard to physical monuments, their location, design or
indeed existence are often bitterly contested and the courts are often the site
wherein such conflicts are resolved. Legal discourses such as free speech,
freedom of religion, prohibitions on incitement to hatred, `equality impact
assessments', and so forth provide the organizing framework around which
conflicts concerning the dead coalesce. The ways in which we seek to
remember our dead are part and parcel of our attempts to come to terms with
death, and with what it symbolizes. An agreed form of commemoration is
but one key element of the broader process of seeking closure.
LAW, DEATH, AND CLOSURE
The third framework which we believe is useful in understanding the
intersection between law, death, and conflict is the notion of closure. This idea
has been long associated with what is termed in the bereavement literature as
the `grief work perspective'.
83
Simplifying for the sake of brevity, such a
perspective suggests that grief work is the cognitive process through which the
individual deals with loss and bereavement. This process normally includes
confronting the loss, going over events before and at the time of death, focusing
on memories, and working towards a detachment from the deceased.
84
It
554
80 See K. Mustakallio, Death and Disgrace: Capital Penalties with Post Mortem
Sanctions in Early Roman Historiography (1994) 13. Roman Law also permitted the
Senate the prerogative of voting a posthumous damnation memoriae to particularly
immoral or cruel emperors.
81 C. Merridale, Night of Stone: Death and Memory in 20th Century Russia (2002).
82 S. Kotkin, Magnetic Mountain: Stalinism as a Civilization (1997). The corollary of
such commemoration denial was that `regime successes' such as the Great Patriotic
War against Fascism, were commemorated ubiquitously, in a sense drowning out
such hidden memories in large-scale public acts (Merridale, id.).
83 M. Stroebe, `Coping with Bereavement: A Review of the Grief Work Hypothesis'
(1992) 26 Omega J. of Death and Dying 19. See, also, C. Fraley and P. Shaver, `Loss
and Bereavement: Attachment Theory and Recent Controversies Concerning Grief
Work and the Nature of Detachment' in Handbook of Attachment: Theory, Research
and Clinical Applications, eds. J. Cassidy and P. Shaver (1999) 735.
84 M. Stroebe, `Bereavement Research and Theory: Retrospective and Prospective'
(2001) 44 Am. Behavioral Scientist 854.
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involves `making meaning' from a death.
85
Where such deaths are `senseless'
or `meaningless', this may require putting to one side as unsolvable the issue of
comprehension and instead ascribing a personal or familial significance to it,
wherein some benefit or growth is achieved.
86
Central to such a process
however, is achieving some form of settlement or resolution concerning the
fate, disposal and, as was argued above, commemoration of the dead body.
Where the location or indeed the fate of the dead remains in dispute, the
process of achieving closure is seriously impeded. In many such instances
families of the deceased suffer from what is referred to as `complicated
grief',
87
an inability to move along the `natural' grieving process.
88
Some
family members who have not been able to confirm that their loved ones are
in fact dead have spoken of the acceptance of death as `like killing him or
her'.
89
In some instances a process of what Hamber and Wilson refer to as
mummification may take place where the bedrooms or offices of those whose
fate is undetermined remain completely untouched for years awaiting the
eventual homecoming.
90
Whole families or indeed particular members of
families may become preoccupied with the missing, resulting in familial
tensions and disputes.
91
A host of physical and psychological symptoms may
emerge (including hypertension, restlessness, shortness of breath,
exhaustion, social withdrawal, and others), all of which have been associated
with the failure to reach closure.
92
The most longstanding legal framework designed at least in part to assist
families reach some form of closure is the laws of war. It is a well-
555
85 C. Davis and S. Nolen-Hoeskema, `Loss and Meaning: How do People Make Sense
of Loss?' (2001) 44 Am. Behavioral Scientist 726.
86 See S. Tedeschi and L. Calhoun, Trauma and Transformation: Growing in the
Aftermath of Trauma (1994) and R. Janoff-Bulman and C. Frantz, `The Impact of
Trauma on Meaning: From Meaningless World to Meaningful Life' in The
Transformation of Meaning in Psychological Therapies, eds. M. Power and C.
Brewin (1997) 91.
87 M. Horowitz et al.,`Diagnostic Criteria for Complicated Grief Disorder' (1997) 154
Am. J. of Psychiatry 904.
88 See D. Becvar, In the Presence of Grief: Helping Family Members Resolve Death,
Dying and Bereavement Issues (2001) and M. Horowitz, `A Model of Mourning:
Changes in the Schemas of Self and Other' in Essential Papers in Post Traumatic
Stress Disorder, ed. M. Horowitz (1999) 252.
89 J. Boehnlein, `Clinical Relevance of Grief and Mourning Among Cambodian
Refugees' (1987) 27 Social Science Medicine 765.
90 B. Hamber and R. Wilson, `Symbolic Closure Through Memory, Reparation and
Revenge in Post-Conflict Society' (2002) 1 J. of Human Rights 35.
91 S. McKendry, Disappeared: The Search for Jean McConville (2000).
92 See D. Becker et al., `Therapy with Victims of Political Repression in Chile: The
Challenge of Social Reparation' (1990) 46 J. of Social Issues 133; S. Tully, `A
Painful Purgatory: Grief and the Nicaraguan Mothers of the Disappeared' (1995) 40
Social Science Medicine 1597; and M. Blaauw and V. LaÈhteenmaÈ ki, `Denial and
Silence or Acknowledgement and Disclosure' (2002) 84 International Red Cross
Rev. 767.
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established feature of humanitarian law that dead combatants should be
protected from mutilation and pillage; that combatant armies should not bury
or cremate soldiers before first seeking to remove items such as identity
disks and collating such information for the opposing combatant group; that
the dead should be honourably interred and their graves respected and
marked; and that lists of graves should be registered to render possible
eventual identification and exhumation upon the cessation of hostilities.
93
Thus the practice by American troops of cutting off the ears, fingers or
indeed heads of enemy troops to display as trophies has been condemned as
in breach of humanitarian law.
94
It has also been suggested for example that
putting a price on an enemy's head (such as the United States government
has done with regard to Osama Bin Laden) may be contrary to the laws of
war since it encourages the mutilation of enemy corpses as proof of death.
95
Similarly, the refusal by the Israeli government to return the bodies of
Palestinian suicide bombers to their families for appropriate religious burial
has been described by human rights activists as contravening `a fundamental
norm of international humanitarian law'.
96
Each of these provisions is
premised upon assisting the families of those killed in combat. However, as
with many provisions of humanitarian law, many of the political and ethnic
conflicts of the latter part of the twentieth century have been marked by the
lack of heed paid to such strictures by combatant armies.
97
Perhaps better known in the legal literature concerning the intersection
between dead bodies and the notion of closure is the human rights work
concerning those `disappeared' by authoritarian states.
98
In Latin America in
particular ± in jurisdictions such as Argentina, Nicaragua, Chile, Brazil,
Guatemala, Uruguay, and other places ± the kidnapping, torture, execution,
and secret disposal of the bodies of those deemed a threat (or in the case of
street children in Brazil, a nuisance) by the regime became one of the
defining characteristics of the atrocious human rights records of such
556
93
See, generally, Geneva Convention of July 6th 1906, STAT 1885 (1907); Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in
the Field, 27 July 1929, 47, STAT, 2074, Art. 4; and First Geneva Convention of August
12th 1949, Arts. 15±17. See, also, Protocol I to the Geneva Convention 1977, Art. 34.
94 See H.W. Elliot, `The Third Priority: The Battlefield Dead' (1996) 3 Army Law 3.
95 G. McLoone, `Sledgehammers, Scalpels and Software: Special Operations and the
Law of War in the 21st Century' (2002) 12 USAFA Legal Studies 139.
96 B'Tselem, Captive Corpses (1999) 28. See, also, `The Secret Cemetery Where Israel
Buries its Enemies' Times, 26 November 2003.
97 See, generally, M. Ignatieff, The Warrior's Honour: Ethnic War and the Modern
Conscience (1998); G. Best, War and Law Since 1945 (2001); and M. Osiel,
Obeying Orders: Atrocity, Military Discipline and the Law of War (2002).
98 See, for example, Amnesty International, Disappearances: A Workbook (1980);
Amnesty International, Getting Away with Murder: Political Killings and
`Disappearances' in the 1990s (1993); and Amnesty International, Disappearances
and Political Killings, Human Rights Crisis of the 1990s: A Manual for Action
(1994).
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states.
99
Disappearances were not however limited to the former military
dictatorships of South America. Amnesty International documented such
practices in over thirty countries in the 1990s and indeed the practice has
continued into the new Millennium.
100
Often the grief experienced by the
loved ones of those who had been `disappeared' is compounded by the
state's denial of complicity in their fate, what Cohen has referred to as the
`laconic disavowal that nothing happened'.
101
As Malin has argued:
In denying knowledge or responsibility for the disappearances, the state
created a system in which the victims seemed never to have existed at all.
Habeus Corpus does not work for the simple reason that there is no `no
corpus'. No cuerpo. No body.
102
Without proof of death the grieving process is suspended and often the
location of the body becomes a driving impulse for families who are seeking
closure.
In the 1980s the United Nations established a Working Group on
Enforced or Involuntary Disappearances. The latter was followed in 1992 by
the United Nations General Assembly passing of the Declaration on the
Protection of All Persons from Enforced Disappearances and in 1994 the
Organization of American States passed the Inter-American Convention on
the Forced Disappearances of Persons.
103
Influential commentators have
been critical of the impact of these instruments
104
and the Working Group
557
99
See, for example, W. Heinz, `Motives for Disappearances in Argentina, Chile and
Uruguay in the 1970s' (1995) 13 Netherlands Q. of Human Rights 51; L. Stephen,
`Women's Rights Are Human Rights: The Merging of Feminine and Feminist Interests
Among El Salvador Mothers of the Disappeared' (1995) 22 Am. Ethnologist 807; E.
Stener Carlson, Remember Julia: Voices of the Disappeared (1996); A. Robben, `State
Terror in the Netherworld: Disappeance and Reburial in Argentina' in Death Squad:
The Anthropology of State Terror, ed. J. Sluka (1999); and M. Aguilar, `The
Disappeared and the Mesa de Dialogo in Chile 1999±2001: Searching for those Who
Never Grow Old' (2002) 21 Bul. of Latin Am. Research 413.
100 See Human Rights Watch and Physicians for Human Rights, Unquiet Graves: The
Search for the Disappeared in Iraqui Kurdistan (1992); Amnesty International, op.
cit. (1994), n. 98; and Human Rights Watch, The `Dirty War' in Chechnya: Forced
Disappearances, Torture, and Summary Executions (2001).
101 Cohen, op. cit., n. 13, p. 104.
102 A. Malin, `Mothers Who Won't Disappear' (1994) 16 Human Rights Q. 187, 197. As
one Sri Lanka mother recounted after her son's body (which had been shot several
times) washed ashore:
I am the luckiest mother in Sri Lanka, because at least I got my son's body back. I
could give Richard a decent funeral, and as hard as this sounds, at least I know
he's really dead. There are thousands of other mothers out there who just don't
know, who are simply sitting there and waiting (p. 198).
103 General Assembly Resolution 47/133, UNGAOR, 47th Sess., Supp. No 49, at 207
and ILM, 1529 (1994).
104 See, for example, R. Brody and F. Gonzales, `Nunca Ma s: An Analysis of
International Instruments on Disappearances' (1997) 19 Human Rights Q. 365.
These authors were involved in drafting both instruments.
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itself acknowledged in the mid 1990s that `. . . very little progress had been
made in practice.'
105
While the United Nations framework has arguably
remained of only limited value for families seeking information regarding
disappeared loved ones,
106
the Inter-American Court has held that the Inter-
American Convention may be interpreted to include the return of a deceased
body to the family as a specific remedy. In the landmark case of Bamaca
Velasquez v. Guatemala in February 2002, the court held that the
disappearance of an individual represented a continuing violation and
ordered that the Guatemalan government be compelled to exhume the body
of the deceased and return it to the victim's family to bury the body in
accordance with their traditions.
107
One of the central obstacles with regard to finding the bodies of those who
have been killed and disappeared during a political conflict is a concern on
the part of the perpetrators that they may be prosecuted as a result of forensic
examination of the bodies. In the case of state violators, the latter have often
attempted to amnesty themselves from prosecution in return for any
information on the fate of those who have disappeared. Indeed one of the
generic tensions in transitional justice settings has been the often messy
trade-offs between amnesty provisions, truth recovery mechanism, and local
realities of political and military power relationships.
108
To circumnavigate
such local `deals', human rights activists have long struggled to have
disappearances defined as a `crime against humanity', thus at least ensuring
that perpetrators would be subject to universal jurisdiction, unable to receive
amnesty or asylum from another country, to benefit from a statute of
limitations or to utilize the defence of superior orders.
109
Similar tensions are equally applicable in the case of non-state actors
wherein the return of those killed and disappeared is also often politically
linked to specific `amnesty-like' measures designed to assist closure rather
than achieve prosecutions. Northern Ireland is a useful example of a
transitional jurisdiction which has struggled with precisely those tensions
558
105 Report of the Working Group on Enforced or Involuntary Disappearances, 53, UN
Doc. E/CN.4/199536 (1995).
106 F. Andreu-Guzman, `The United Nations Working Group on Enforced or
Involuntary Disappearances' (2002) 84 International Red Cross Rev. 803.
107 See Bamaca Velasquez Case, Judgement of 25 November 2000, Inter-Am Ct. H.R.
(Ser. C) No. 70 (2000) and Bamaca Velasquez Case, Reparations, Judgement of 22
February 2002, Inter-Am Ct. H.R. (Ser. C) No. 91 (2002). For an analysis, see M.
Hagler and F. Rivera, `Bamaca Velasquez v Guatemala: An Expansion of the Inter-
American System's Jurisprudence on Reparations' (2002) 9 Human Rights Brief 2.
108 See A. Barahona de Brito et al. (eds.), The Politics of Memory: Transitional Justice
in Democratizing Societies (2001); N. Biggar (ed.), Burying the Past: Making Peace
and Doing Justice After Civil Conflict (2001); and P. Hayner, Unspeakable Truths:
Facing the Challenge of Truth Commissions (2001).
109 See Brody and Gonzales, op. cit., n. 104, p. 403 and W. Schabas, `National Courts
Finally Begin to Prosecute Genocide, the ``Crime of Crimes'' ' (2003) 1 J. of
International Criminal Justice 39.
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associated with dealing with past abuses by such non-state actors.
110
For
example, the return of the bodies of those murdered and disappeared by the
IRA in the early 1970s required a de facto amnesty act passed by both the
British and Irish Parliaments. Under the Northern Ireland (Location of
Victims' Remains Act) 1999 and the Criminal Justice (Location of Victims
Remains Act) 1999 the two governments established a Commission to
facilitate the recovery of victims' remains. Despite government protestations
to the contrary, the legislation in both jurisdictions created effective
immunity from prosecution by providing that no evidence gleaned by the
Commission was admissible in criminal proceedings, that forensic testing
could only be carried out to facilitate identification, and that the information
could only be passed on to other authorities for the purpose of assisting with
locating the remains.
111
In introducing the Bill, the British government
emphasized that:
. . . this Bill is designed to help those families [of the disappeared]. Its sole
purpose is to bring to an end the suffering they have endured for far too long.
They simply want to know what has happened to their loved ones and to give
them a decent burial.'
112
Under considerable political pressure, the IRA leadership had already
established an internal investigation.
113
Once the legislation was passed, they
returned one body themselves and pointed the authorities to a number of
additional sites where digging began, watched over by the anxious
families.
114
Ultimately three more bodies from the nine acknowledged as
killed and disappeared by the IRA were recovered, the most recent (that of
559
110 For an overview of the relationship between law and the Northern Ireland transition
see, for example, C. Harvey, Human Rights Equality and Democratic Renewal in
Northern Ireland (2001); C. Campbell et al., `The Frontiers of Legal Analysis:
Reframing the Transition in Northern Ireland' (2003) 66 Modern Law Rev. 317; and
C. Campbell and F. NõÂ AolaÂin (eds.) (2003) 26 Fordham J. of International Law
(special edition).
111 Northern Ireland (Location of Victims' Remains) Act 1999 ss. 3±5 and Criminal
Justice (Location of Victims' Remains) Act 1999 s. 5. For a critical commentary, see
A. Morgan, `The Northern Ireland (Location of Victims' Remains) Act 1999:
Amnesty, Immunity or What?' (2002) 37 Irish Jurist 306.
112 Lord Dubbs, 601 H.L. Debates, col. 154 (18 May 1999).
113 In March 1999 the leadership of O
Âglaigh na hE
Âireann [IRA] revealed the outcome
of an 18-month investigation to locate the graves of nine people executed and
buried by the IRA from 1972 to 1981. In initiating that investigation our intention
was to do all within our power to redress injustices for which we accept full
responsibility and to alleviate the suffering of families, particularly those families
who have been unable to properly bury or mourn their relatives.
`Text of IRA statement' An Phoblacht [Republican News], 4 September 2003.
114 `The Bloodstained Soil of Ireland Yields First of the Disappeared' Independent, 29
May 1999; `The Mourning Begins: Families can Finally Grieve as IRA Hands Over
Bodies' Irish News, 29 May 1999; `Families of Terror Victims Await Call: Utter
Agony as IRA Begins to Return Bodies After 20 years' Guardian, 29 May 1999; and
`War Crimes of the IRA' Guardian, 2 June 1999.
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Mrs Jean McConville) by accident in August 2003 after a number of
unsuccessful digs at the site indicated by Republicans had failed to recover
her body.
115
The political and emotional significance of this issue of
recovering the dead and affording them a respectful burial should not be
underestimated. The Republican Movement is notoriously careful with the
language utilized by its spokespersons to describe conflict-related events.
Despite numerous examples of lethal attacks on civilians during the Northern
Ireland troubles, the issue of the disappeared is, to our knowledge, the only
action perpetrated by the IRA during the conflict that has been
acknowledged by Republican leaders as `a human rights abuse'.
116
The spectacle of diggers removing hundreds of tons of earth from remote
parts of Ireland, surrounded by media and anxious families, was a powerful
symbol of the attempts at a transition from a violent past. Such sights have
become all too familiar in other jurisdictions. The forensic exhumation of
burial sites and mass graves in the wake of conflicts such as Cambodia,
Rwanda, East Timor, and Yugoslavia have become an important element of
truth finding work.
117
While the initial guidance from the UN focused
primarily on the identification of remains as part of the investigation
process,
118
as such work has become more common, sophisticated protocols
have developed with regard to balancing the evidential requirements of
prosecution (where that is relevant) and the sensitivities involved in meeting
the needs of the deceased's family.
119
Given that family members may retain
faint hopes that their loved one is still alive (often falsely encouraged by the
perpetrators), much greater attention is paid to the psychological preparation of
families for the ordeal of exhumation and examination. In the examples of best
practice, families are increasingly facilitated in attending the exhumations sites
if they wish, training materials such as videos, brochures, and related materials
providing information on the process are produced, and religious and spiritual
leaders consulted regarding customs on the treatment of the dead.
120
In a
560
115 `Family Ends Long Wait to Bury Mother Murdered by the IRA' Guardian, 3
November 2003.
116 Gerry Adams, quoted in Irish News, 1 June 1999.
117 See G. Blewitt, `The Role of Forensic Investigations in Genocide Prosecutions
Before An International Tribunal' (1997) 37 Medical Science Law 286; E. Stover
and M. Ryan, `Breaking with the Dead' (2001) 35 Historical Archaeology 7; L.
Fondebrider, `Reflections on the Scientific Documentation of Human Rights
Violations' (2002) 84 International Red Cross Rev. 848, 885-91; and H. Brunborg et
al., `Accounting for Genocide: How Many Were Killed in Srebrenica?' (2003) 19
European J. of Population 229.
118 United Nations, Manual on the Effective Prevention and Investigation of Extra-
legal, Arbitrary and Summary Executions (1991).
119 S. Cordner and H. McKelvie, `Developing Standards in International Forensic Work
to Identify Missing Persons' (2002) 84 International Red Cross Rev. 848, 867±83.
120 M.E. Keough et al., `Disclosing the Truth: Informed Participation in the Antemortem
Database Project for the Survivors of Srebenica' (2000) 5 Health and Human Rights
69.
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similar fashion to lawyers, forensic scientists and archaeologists have become
increasingly aware that their technical and scientific work cannot be divorced
from the broader significance of the dead as tangible symbols of closure. As the
Commission for Historical Clarification in Guatemala argued, `. . . the
exhumation of the remains of the victims . . . is itself an act of justice and
reparation and an important step on the path to reconciliation.'
121
CONCLUSION
In her compelling account of `corpses on the move' in Eastern Europe,
Katherine Verdery argues that the process of exhuming and reburying dead
ancestors has been at the core of the `nation-building' project in the Balkans
and beyond as nations re-emerged with the collapse of the Soviet Union.
122
Politicized communities, organizations, and even states will almost
inevitably incorporate their dead into their own political culture and thereby
use them to reassert key themes of political ideology or political action.
123
In
such contexts, death becomes `de-individualized'; it is reframed within a
constructed communal understanding of its significance. For example,
political funerals during the Apartheid era in South Africa became important
sites of organized resistance,
124
creating in the process a category of
`political widowhood', where the widow became the custodian of the
collective memory of the fallen hero.
125
Similarly, the mothers of the Plaza
de Mayo in Argentina became `. . . a metaphor for the thousands of Latin
Americans who dared protest state terrorism'.
126
In political conflicts,
ownership of the dead is shared.
In such contexts, legal contests regarding the dead go beyond determining
proprietal interests based on familial or estate based claims and speak to much
larger themes. They draw upon broad communal notions of cultural and moral
561
121 Cited in Cordner and McKelvie, op. cit., n. 119, p. 870.
122 . . . [I]n August 1991 there was an immense public funeral in Belgrade for three
thousand Serb victims of the Ustaa genocide, whose bones were recently removed
from ten caves in Herzegovina following nine months of exhumations (this was
according to Radio Belgrade). The line of coffins stretched for one and a half
kilometres; the liturgy was sung by the patriarchy of the Serbian Orthodox church
with speeches from leading nationalist intellectuals and politicians . . . Such mass
events represented the state having `collectivised' and nationalised the dead
bodies hitherto mourned by families as their individual dead. They were part of
the forming new Serbian, Croatian and Bosnian nation states.
(Verdery, op. cit., n. 1, p. 101.).
123 Prior, op. cit., n. 56, p. 187.
124 R. Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the
Post Apartheid State (2001) 116.
125 M. Ramphele, `Political Widowhood in South Africa: The Embodiment of
Ambiguity' (1996) 125 Daedalus 99.
126 F. Miller, Latin American Women and the Search for Social Justice (1991) 11.
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ownership. They encompass free speech, freedom of religion, incitement to
hatred, equality and human rights provisions, and a range of other discourses
concerning the legal regulation of forms of commemoration. Finally, they chart
the complex relationship between law and emotional closure for bereaved
families seeking to come to terms with the death of their loved ones.
The resort to law itself may be viewed as an attempt to fix historical
meaning, to shape how events or individuals are to remembered. This
`memorializing' capacity of law has been described as one of its most
important functions.
127
War crimes tribunals, the trials of former dictators,
truth commissions, and indeed criminal or civil cases concerning ownership,
commemoration or even discovery of the dead ± these are all examples of
using law to `master the past'.
128
In such instances, law is a central
component in what Habermas has referred to as `remembrance . . . through a
reflexive, scrutinizing attitude towards one's own identity-forming
traditions'.
129
Whether it is through the public or performative aspects of
legal hearings as a site for national catharsis,
130
or law's emphasis upon
recording a definitive account as to `what actually happened',
131
law
becomes a site of memory, a process of commemoration and a tangible
symbol of a deeper acknowledgement of unpalatable historical truths.
132
In
the final analysis, legal disputes concerning the dead are an attempt to offer
the living what Moeller has referred to as a `usable past',
133
a mechanism
through which often violent histories may be accommodated and nations
collectively `re'-imagined.
134
562
127 See, generally, M. Osiel, Mass Atrocity, Collective Memory and the Law (1999) and
R. Teitel, Transitional Justice (2000).
128 Osiel, id., p. 192.
129 J. Habermas, `On the Public Use of History' in The New Conservatism: Cultural
Criticism and the Historians' Debate, ed. S.W. Nicholsen (1989) 229.
130 Arendt, op. cit., n. 79.
131 See L. Bennet and M. Feldman, Reconstructing Reality in the Courtroom: Justice
and Judgement in American Culture (1981) and P. Brooks and P. Gewirtz (eds.),
Law's Stories: Narrative and Rhetoric in the Law (1997).
132 See A. Sarat, `Rhetoric and Remembrance: Trials, Transcriptions and the Politics of
Critical Reading' (1999) 23 Legal Studies Forum 355.
133 R. Moeller, `War Stories: The Search for a Usable Past in the Federal Republic of
Germany' (1996) 101 Am. Historical Rev. 1008.
134 See B. Anderson, Imagined Communities (1993).
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