I.Summaryand Introduction

After more than thirty-five years of Ba`thist rule, SaddamHussein and a number of other former Iraqi government officials responsible forperpetrating the most heinous crimes under international law crimes againsthumanity, genocide, and war crimes are about to be tried for their allegedcrimes.This is the moment that Iraqisacross the country, as well as many living abroad, have been waiting for andnever thought they would see.

For far too many victims, it is of course too late.For other victims and family members, thetrials will be the only formal recognition and acknowledgement they are likelyto get of the grave injustices and loss that they suffered.The sheer scale of the crimes perpetrated bythe Ba`th government is unimaginable:there are too many mass graves and too many killed or "disappeared" toever entertain the hope that each and every victim will be accounted for.Those for whom the fate of their"disappeared" loved ones will never be resolved will be looking to the trialsof the alleged perpetrators for justice and for closure.

The term "disappeared" refers to cases in which state agentsor their associates take persons into custody but do not acknowledge holdingthose persons or do not disclose their location, thereby placing them outsidethe protection of the law. A widespread or systematic pattern of enforced"disappearances" constitutes a crime against humanity. Because the fate of the"disappeared" person remains unknown, international law regards it as acontinuing offense, exempt from any statute of limitations.[1]"Disappearance" constitutes a serious ongoingviolation that causes continued suffering for surviving family members, makingit essential that the Iraqi authorities, with the assistance of theinternational community, facilitate the identification of as many remains ofvictims as possible, and assist surviving family members and communities withappropriate ways of commemorating the deaths and according respect and dignityto the victims. The crime of "disappearing" someone is continuous until thefate or whereabouts of the "disappeared" person becomes known.

A key to the success of any trials will be the availabilityof solid documentary and forensic evidence.Since the overthrow of the Iraqi government in April 2003 by theU.S.-led coalition forces, over 250 mass graves have been located across Iraq.Some are believed to contain the remains ofthousands of victims, including entire families.As Ba`thist officials fled their posts inthe run up to and during the war in March and April 2003, they left behindstack upon stack of official documents, describing with disturbing detail thecrimes they had committed over the years.Survivors of these crimes, families of those who were killed or"disappeared," eyewitness, and others have since come forward to describe thenightmare in which they had been living.Even some of those who were complicit in these crimes have providedinformation about aspects of these crimes, including the locations of massgraves.Scores of the alleged keyperpetrators are today behind bars awaiting indictment and trial, includingmost of the so-called "deck of 55."

Witness testimonies are usually the ballast of aprosecutor's case involving mass murder.But such testimonies hold greatest weight if they are supported byphysical and documentary evidence.Whentrying high-level perpetrators for serious crimes, there are two components: 1)establishing that the crimes occurred, for which witness and forensic evidenceare crucial; and 2) linking perpetrators who often were far away from the crimescene with responsibility for the crimes, for which witness testimony,especially from insider witnesses, and documentary evidence, are key.

This report provides an in-depth account of what has happenedto key archival and forensic evidence since the ouster of Saddam Hussein inApril 2003. The study is based on research conducted in Baghdad and the fournorthern governorates of Kirkuk, Mosul, Arbil, and Sulaimaniyya in February2004, as well as earlier research conducted between April and June 2003 on massgraves in the governorates of Basra, Diyala, al-Hilla, al-Diwaniyya(al-Qadissiyya), al-`Anbar, Karbala', and al-Najaf.

The report focuses on two major sources of that evidence,documentary and forensic.It surveyswhat's been done-and not done-by the U.S.-led Coalition Provisional Authorityand the interim Iraqi authorities since the invasion of March-April 2003 topreserve the evidence, and assess the implications for justice for Ba`thist eraabuses and for some resolution regarding the fate of victims whose familieslive with uncertainty.

In the case of both documents and mass graves, U.S.-ledcoalition forces failed to secure the relevant sites at the time of theoverthrow of the former government. They subsequently failed to put in placethe professional expertise and assistance necessary to ensure properclassification and exhumation procedures, with the result that key evidentiarymaterials have been lost or tainted.Inthe case of mass graves, these failures also have frustrated the goal ofenabling families to know the fate of missing relatives.The findings of the report are all the moredisturbing against the backdrop of a tribunal established to bring justice forserious past crimes, the Iraqi Special Tribunal. Human Rights Watch has seriousconcerns that the tribunal is fundamentally flawed and may be incapable ofdelivering justice.

The extent of the negligence with which key documentary andforensic evidence has been treated to date is surprising, given that theU.S.-led coalition and Iraqi authorities alike knew that trials of Hussein andkey Ba`th government officials would be important landmarks in Iraq's politicalrecovery, that successful trials require solid evidence, and that, asinternational experience has shown, preserving such trial-ready evidence is adifficult task.Some of the evidence hasbeen destroyed, but it is not too late to assume custody of millions ofadditional pieces of evidence. Some of this material, if it is given the urgentattention it needs and deserves, may prove critical in the proceedings of theupcoming trials. It will also play an important role as Iraqis attempt toconstruct an accurate historical record of their traumatic experiences underBa`th Party rule.

Human Rights Watch strongly urges the Interim Government ofIraq to set up a Commission for Missing Persons, comprised of international aswell as Iraqi experts, to establish effective procedures for protecting massgraves and conducting exhumations, and to oversee implementation of such asystem. The government should similarly appoint a committee, again utilizinginternational as well as Iraqi expertise, to set standards for and oversee thehandling of documents of the former government.

II. Recommendations

To the Interim Government of Iraq

• Establish as an urgent matter a Commission for Missing Persons that initially engages international as well as Iraqi expertise and administration. The Commission should establish a system for protecting and preserving mass graves, create protocols for exhumations of gravesites, and set and oversee implementation of priorities for exhumations of mass gravesites that balance theneeds of families to identify victims alongside the evidentiary needs of criminal proceedings against the alleged perpetrators. Wherever possible, exhumations should be commemorative events, part of a process of social reconstruction in which families and communities can re-bury the victims with dignity, and pay them the respect that they had been denied by political violence.
• Promulgate a system, in conjunction with this exhumation and documentation effort, for issuing death certificates, which are required by the government for surviving family members to assert rights such as inheritance and remarriage.
• Appoint a body of Iraqi and international experts to recommend standards and best practices for the handling of confiscated documents of the former government, including for the following purposes: 1) establishing a chain of custody in order to assure authenticity; 2) facilitating the archiving of documents in a manner that addresses both the evidentiary needs of criminal judicial proceedings against former high officials as well as the humanitarian needs of victims' families of the former government to resolve the fate of missing loved ones; and 3) working with Iraqi nongovernmental organizations and political parties to secure, to the extent possible,the return to a national archive of originals of state documents currently in their possession.

To the government of the United States and other coalition governments

• Establish a process for returning to Iraqi government custody the originals of all documents seized by U.S. and coalition forces since the overthrow of the former government.

• Ensure that officials of the Iraqi Special Tribunal or the Iraqi criminal court have access to all confiscated documents to determine whether they represent potential evidence in future criminal proceedings.

To the international donor community

• Ensure that resources are made available for the forensic and documentary evidence preservation priorities identified in this report, including for documentation, humanitarian, and truth-telling purposes separate from any trials for serious past crimes.

III. The Documentary Evidence

Looting and Destruction of Documents

In the chaos that ensued with the fall of Baghdad on April9, 2003, U.S.-led coalition forces, Iraqi opposition groups, and individualsseized hundreds of thousands of Iraqi state documents from governmentbuildings, Ba`th Party headquarters, offices of the former intelligence andsecurity apparatuses, military garrisons and other premises acrossBaghdad.Sensitive documents were laterfound in public buildings such as schools, as well as in private homes,apparently having been removed by officials of the former government,ostensibly for safe keeping, and then abandoned as military defeat becameimminent.Similar scenes were witnessedin other cities and towns across the country.Former Iraqi government officials shredded, burned, or otherwisedestroyed manydocuments during thepreceding weeks, while countless others were destroyed as a result of thewartime aerial bombing campaign.Thewidespread looting and wanton destruction of government property by Iraqis inthe days and weeks after the war led to further destruction of documents thathad survived the war itself.

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Documents strewn on desk and floor in security prison in Kirkuk, April 2003, theday after the city fell to Kurdish and U.S forces. 2003 Eric Stover/HumanRights Watch

Hundreds of thousands of documents nevertheless remainedintact as sources of information about the practices of the Saddam Husseingovernment.It was an establishedpractice of that government to record the brutal repression of the Iraqipopulation by its security and intelligence apparatuses in minute detail.Human Rights Watch's own work on the studyand analysis of some eighteen metric tons of Iraqi state documents seized innorthern Iraq by Kurdish political parties during the 1991 uprisingdemonstrated that those records, which detailed state policy involving massexecutions, large-scale "disappearances," targeted assassinations, torture,forced expulsion or deportation of civilians, and other egregious abuses, werelargely accurate.Its assessment ofthose documents over a two-year period between 1992 and 1994, together with itsfindings from several missions to Iraqi Kurdistan in search of corroboratingforensic and testimonial evidence, enabled Human Rights Watch to argue that the1988 Anfal campaign against the Kurds constituted genocide.[2]

Despite the potential value of Iraqi state documents inyielding information that could assist in bringing to justice perpetrators ofserious past crimes, U.S. and coalition authorities apparently put no effectiveplan in place to secure them in the immediate aftermath of the collapse of theHussein government.While U.S.-ledcoalition forces claimed to have since seized very large numbers of documents,many others were pilfered, looted, or otherwise destroyed needlessly, resultingin the loss of potentially vital information.Some of this destruction took place in the context of the widespreadgeneral looting in Baghdadand elsewhere. In many cases, the looting was carried out within sight ofcoalition military forces, which had apparently received no instructions aboutsecuring government documents or protecting the premises in which they werefound.Additionally, other documentsthat survived or were not subjected to looting in a number of locations laystrewn about for days and sometimes weeks without being taken into coalitioncustody.

Human Rights Watch researchers witnessed such scenes in thecities of Kirkuk and Mosul in April 2003. When they visitedgovernment locations including former security and intelligence offices, someof which had been targeted during the aerial bombing campaign, they foundthousands of files still intact in filing cabinets or on shelving units. HumanRights Watch researchers witnessed Iraqis walking into government buildings.Their motives appear to vary from curiosity to a desire to find documents thatwould answer their questions regarding "disappeared" relatives.At a girls' secondary school in theal-Qadisiyya II neighborhood of Kirkuk,Human Rights Watch came across some ten large canvas sacks full of documentsstacked in one of the classrooms.Theguard working at the school told Human Rights Watch that Ba`th Party officialshad brought the documents several days before the start of the aerial campaign,and as such he presumed them to be valuable.He said no one had been sent to protect them or take them away forsafekeeping, adding that he could not guarantee their safety for much longer.[3]

In Kirkukin mid-April 2003, Human Rights Watch visited a former security forcesdetention center and found an even larger number of documents, includinghundreds of individual files on Iraqis who had apparently been held there inthe past or had been kept under surveillance.Most were piled up on the floor in a state of disarray and were quicklycoming apart as more and more people walked over them. Others had been thrownout into the garden and exposed to the elements.A guard at the premises told Human RightsWatch that Kurdish political parties had already been to the site on April 10,the day Kirkukfell, and had taken whatever documents they were interested in.In the courtyard there were sacks full ofother documents which had been readied for collection by KDP officials, theguard said.Human Rights Watch alsotalked to several Kurds who had wandered into the courtyard, one of whom saidhe had found several CD-Roms on the premises purportedly showing the systematicrape of female detainees.He said he hadtaken them to his home for "safekeeping," but had not reported his find to anyofficials and appeared reluctant to give them up.

Such scenes were repeated in many other locations across Iraq,and the consequent loss of vital evidence for future prosecutions isincalculable.As Human Rights Watchwarned U.S. and U.K.officials at the time,[4] thefailure to protect security archives from looting and destruction also had thepotential of contributing to retaliatory violence and vengeance killings, sincethe archives could identify tens of thousands of security agents and informersby name.Yet in Basra, for example, British officialspublicly stated that they allowed the looting of Ba`th Party buildings, whichhoused important archives, as a means of showing the population that the partyhad lost control of the city.[5] The easewith which Human Rights Watch was able to enter government buildingsdemonstrates how lax coalition security was in the immediate aftermath of thefall of the Hussein government.

The preservation of state documents are additionally vitalfor the survivors of over twenty-five years of state atrocities, since they canvery likely yield information that could establish the fate of many of theirmissing relatives.They are alsoimportant for the hundreds of thousands of Iraqis who were forcibly expelledfrom their homes and became internally displaced, or were deported toneighboring Iran,in implementation of state policy.Inthe majority of such cases, documents in their possession includingcitizenship and nationality documents, ration cards, property deeds and theexpulsion or deportation orders themselves were systematically destroyed orconfiscated by Ba`thist officials, leaving the victims unable to establishtheir identities, place of birth, ethnicity or ownership of property.For many such people, official governmentrecords would be all they have to establish both their identities and those oftheir children, and to have the possibility of submitting claims in the futurefor restitution of property and other rights.[6]

In Baghdad and other major cities, the main caches of seizeddocuments included archives of the Ba`th Party, its Regional Command andvarious associated organizations; archives of the former security andintelligence agencies, including the General Security Directorate (Mudiriyyat al-Amn al-'Amma), GeneralIntelligence Directorate (Mudiriyyatal-Mukhabarat al-'Amma), Military Intelligence (al-Istikhbarat al-'Askariyya) and other affiliated apparatuses;archives of government ministries and their sub-departments, including censusdepartments located in major cities; and archives of the armed forces andvarious paramilitary groups.Little isknown about the work undertaken on the millions of pages of documents which U.S. authorities said coalition authorities hadtaken into custody particularly those documents which were flown out to Qatar for study and analysis by the Iraq SurveyGroup (ISG) and other U.S.agencies.[7]Requests by Human Rights Watch to makecontact with ISG representatives, said to include U.K. and Australian experts, werenot granted.U.S. Justice Departmentofficials would only say that the ISG's priority in going through and analyzingIraqi state documents were war crimes, and that the work they had carried outthus far was "impressive." "Good work is being done but it is classified," theytold Human Rights Watch.[8]Some Iraqis associated with the Iraq SpecialTribunal are said to be concerned that the ISG was entering the documents inits custody into a classified database in a manner that might make it difficultfor the Tribunal prosecutors to access later.

Documents Held by Iraqi Political Groups and NGOs

Sizeable archival collections were also seized by Iraqipolitical groups. In some cases they had planned to seize the documents aheadof the war and were therefore able to keep them relatively intact.Among the principal groups are the IraqiNational Congress (INC), the Kurdistan Democratic Party (KDP), the PatrioticUnion of Kurdistan (PUK), the Supreme Council of the Islamic Revolution in Iraq(SCIRI), the Iraqi National Accord (INA), and the Iraqi Communist Party(ICP).One priority of all such groupshas been to search through relevant documents in an effort to verify or uncoverinformation about their members and their relatives arrested by the formerIraqi government's security and intelligence apparatuses and, in many cases,clues as to where the victims had been buried.In some instances the documents yielded precise and accurate informationabout the location of mass graves where victims who were arrested andsubsequently "disappeared" in custody were buried.One of the more well-known cases, forexample, was that of an estimated 5,000-8,000 Barzani Kurds who were rounded upby the Iraqi military from so-called resettlement camps in the vicinity ofArbil in 1983 and were never seen again.[9]The victims, all males aged twelve or over,were believed to have been held prisoner for several months and thenkilled.During political negotiationswith Iraqi government officials over the years, Kurdish leaders asked forinformation on the fate and whereabouts of the missing Barzanis, but Iraqigovernment officials consistently refused to give an answer.In June 2003 KDP leader Mas`ud Barzani toldHuman Rights Watch that official documents seized after the 2003 war hadindicated the precise locations of two mass graves, located in Iraq's southerndesert, where some 2,500 of the victims were said to be buried.For fear of the graves being tampered withbefore forensic exhumations could be carried out, the precise locations of thetwo sites remain confidential, but Barzani said initial forensic assessmentsindicated that the information in the documents was accurate.[10]

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Kurds examine documents in a Ba`th Party building in Kirkuk the day after the city fell to Kurdish and U.S.forces. 2003 Eric Stover/Human Rights Watch

Other political parties told Human Rights Watch that theyhad significant numbers of documents in their possession, but Human RightsWatch was not able to gain access to those documents and therefore cannotverify what it was told.One such groupwas the Islamic Da`wa Party (Hizbal-Da`wa al-Islamiyya), which did not clarify thenumber of documents in its custody.A member of the party's Political Bureau saidmost the documents in question had been seized in April and May 2003 fromdifferent locations around Baghdad, principally Ba`th Party offices, includingone building previously used by the Ba`th Party's Military Bureau.He told Human Rights Watch that some of thedocuments pertained to Ba`th Party organizations, but that the majorityconsisted of archival material of the former General Security Directorate inBaghdad, including material relating to executions dating back to the early1970s.[11]

The Iraqi Communist Party (ICP) said that it too had a largenumber of documents in its possession but again without specifying thequantity.Members of the ICP's Martyrsand Missing Persons Commission said most documents in their custody related tothe General Security Directorate and the General Intelligence Directorate in Baghdad.They were apparently acquired during thelooting frenzy that took place in the weeks following the fall of Baghdad.Human Rights Watch was told that ICP membersdid not enter the designated buildings thought to house these documents;rather, they paid looters sums of money to bring out the documents forthem.Their principal interest was inacquiring archives relating to the former Iraqi government's campaign againstICP members since the early 1960s.[12]

A third political party, the Patriotic Union of Kurdistan(PUK), gave Human Rights Watch detailed information about the state archives inits custody (amount, provenance, method of acquisition, and information on thecontents of key files pertaining to former security, intelligence and militaryinstitutions).However, the then head ofthe PUK's intelligence apparatus, 'Umar Fattah, requested that such informationbe kept confidential.[13]Human Rights Watch was not given access tothe main stack of PUK documents, and was therefore not in a position to verifywhat it had been told, but it was able to examine some original documents beingprocessed at the time by staff of the PUK's human rights ministry in Sulaimaniyya(see below).

NGOs and other groups also have in their possession Iraqistate archives, mostly seized in the early days after the fall of the formergovernment.Of the NGOs, by far thelargest cache is in the hands of the Association of Free Prisoners (Jam'iyyat al-Sujana' al-Ahrar- AFP),[14] whichclaims to have some eighteen million documents.One of the AFP's co-founders told Human Rights Watch that the majorityof these documents pertained to the archives of the former General SecurityDirectorate in Baghdad, which he and hiscolleagues found soon after the fall of Baghdadfollowing a tip-off as to their whereabouts.A smaller number of documents in the AFP's collection were said to havecome from a branch of the former Military Intelligence.[15]Initially, the AFP gave priority to scouringthe many pages of documents searching for lists names of Iraqis who had beenexecuted over the years by the Saddam Hussein government.[16]When Human Rights Watch visited the AFP'spremises on various occasions in May and June 2003, it found scores of peoplewith relatives missing and presumed dead who had come looking forconfirmation of their worst fears.Thefact very few political prisoners emerged alive after the fall of thegovernment had compounded those fears.Lists of executed persons were pinned onto the walls of the AFPbuilding, together with photographs found in the files of persons said to havebeen executed, in the hope that enquiring relatives could identify them.By the end of July 2003, the AFP was claimingthat it had been able to confirm largely through information extracted fromthe General Security Directorate archives the execution of some 300,000people.[17]At this writing, there was no independentverification of this figure.

Several other NGOs, all but one established since the 2003war, reportedly had smaller caches of documents in their possession.[18]Human Rights Watch visited several of theBaghdad-based groups during February and March 2004, and found in the main thatthe documents in question were either copies of originals, or had been providedthem by families of missing or executed persons (such as official deathcertificates attesting to the execution of the persons in question).One group, the League of Iraqi PoliticalPrisoners (Rabitat al-Sujana'al-Siyasiyyin al-'Iraqiyyin), showed Human Rights Watch samples of whatappeared to be original documents, but it was unclear what the total number ofsuch documents was.According to thegroup's director, most of the documents were seized from a building used by theformer Iraqi Air Force Intelligence in Baghdad.[19]One other NGO is known to possess significantarchives, the Iraq Memory Foundation (Mu'assasatal-Dhakira al-'Iraqiyya- IMF), a Baghdad-based group founded by Kan'anMakiya.[20]It currently has in its custody archives ofthe Ba`th Party's Regional Command, an estimated 2.5 million pages ofdocuments, in addition to other materials.

By and large, access to Iraqi state archives in the hands ofpolitical parties and NGOs alike has remained relatively restricted theirrepresentatives say their collections were being kept in "secure locations"elsewhere.As such, it was difficult toassess the number and type of documents, their provenance, the extent to whichthe chain of custody had been preserved, the conditions in which they have beenkept, and the manner in which they have been handled, organized andclassified.What Human Rights Watch didsee and learn, however, gave rise to serious concern about the integrity ofmany of these documents in terms of their potential evidentiary value in trialproceedings.The complete failure totake any steps to prevent or minimize the extensive looting and wantondestruction of government buildings in those crucial early days in April 2003led to the widespread removal of state archives from government buildings byunknown individuals or groups, and which are now virtually impossible totrace.Foreign journalists covering theunfolding events in Iraq,who were frequently among the first at the scene, reportedly removed samples ofdocuments which were then taken out of the country.[21]

Realization of the potential value of the archives itselfgave rise to a thriving trade in the sale and purchase of documents early on, apractice which reportedly still continues.The representatives of three Iraqi political parties admitted to HumanRights Watch that they had purchased documents-in some cases on the openmarket, in other cases when approached by individuals hoping to make a quicksale.[22]One estimated that the number of documentsbought through individual sales accounted for as much as forty percent of hisparty's total collection.Under theseconditions, the likelihood of faked or forged material being injected into thedocumentation pool becomes very high.None of the political party representatives involved in the purchase ofdocuments had an adequate response when asked about methods they employed tocheck the authenticity of documents they acquired in this manner.Hassan Mneimneh, the IMF's DocumentationDirector, told Human Rights Watch that "it was essentially the unvetted sale ofdocuments, and what you got was purely a question of pot luck.In July last year the going rate was $100 perkilo, but nowadays you could pay up to $1,500 to $2,500 for a few pages ofdocuments."[23]He warned that as long as stocks of documentsremained accessible, accompanied by market demand, the trade would continue andthereby further affecting the integrity of the state archives in terms ofprovenance, authenticity and chain of custody.[24]

Handling of Documents

Of equal concern has been the way in which many documentshave been handled.Neither politicalparties nor NGOs have had the requisite expertise, and in many cases theresources and tools, to handle documents in the manner most likely to ensuretheir evidentiary value for future trials.According to Mneimneh, documents have been wrongfully processed,reshuffled, written on, and inadvertently destroyed (such as through fire)simply because those handling them have not followed correct procedures.[25]

During its visit to the offices of the Association of FreePrisoners in August 2003, Human Rights Watch was shown into a garage spacewhere thousands upon thousands of documents were piled up on top of each otherin haphazard fashion, mountain-like, reaching almost to the ceiling.The floor was strewn with other documentssuch that anyone walking into the room would necessarily step over them.Papers from individual files had come become loose,others were torn or otherwise destroyed, and photographic materials had alsobecome detached from their original files.The director of the League of Iraqi Political Prisoners told HumanRights Watch that "at the beginning we were nave because we used to giveoriginal files to individuals or families who came to ask for information onmissing relatives, then we realized that we were absolutely wrong and stoppedgiving out files.On the contrary, ourpolicy now is trying to obtain as many documents from the families themselves."[26]

At the human rights ministry in Sulaimaniyya, Human RightsWatch observed the team of workers who were in the process of sorting andcategorizing documents pertaining to the former Iraqi government's Arabizationpolicy. Though it was a well-intentionedeffort to extract relevant information from them, original files were beingdismantled without having been scanned, and certain papers extracted from themand re-filed under separate categories devised by the documentation team.The original files containing these documentswere discarded.Ministry staff assuredHuman Rights Watch that there was method to their system, and that they keptdetailed records of what papers had been removed from the files, enabling themto reinsert them at a later date.[27]The lack of necessary expertise in theprocessing of documents was nevertheless acknowledged.Salah Rashid, the PUK's human rightsminister, told Human Rights Watch: "The problem is that we are not a scientificinstitution capable of the study and analysis of documents.I have spoken to the German foreign ministryabout assistance in this regard, but they said they were not prepared to workwith the Americans.The solution is forus to send Kurds to Germanyfor training there."[28]

During discussions held with representatives of politicalparties as to how documents in their custody were being managed, Human RightsWatch was also told that there was a certain amount of "exchange" of filestaking place between them.This appliedin particular to documents containing information about arrests and executionsof political activists belonging to the various political parties.The extent to which there was method to thosetypes of exchanges, including the supervision of the document transfers and thekeeping of detailed records in order to preserve the chain of custody, remainsunclear.

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Documentsheld by the Iraq Memorial Foundation in Baghdad. 2003 Eric Stover/Human Rights Watch

Among the groups holding significant state archives in theircustody, only the Iraq Memory Foundation appeared to have the requisiteexperience and expertise for their management, based on its staff's previouswork on both Iraqi state archives seized during the 1991 uprising in IraqiKurdistan and those relating to Iraq's1990-1991 occupation of Kuwait.Human Rights Watch visited the site where theIMF's archives were being kept, and was told that all the documents found onthe original site had been removed under supervision, kept in their originalcondition, and filed in the same order in which they had been found.There were strict instructions that theircontents remain untouched, the intention being that they would only need to behandled once during the scanning process.[29]By February 2004, the documents had been inIMF custody for some six months, but no work had been done on them due to lackof resources.

The IMF told Human Rights Watch it had repeatedly appealedto both U.S.and CPA officials for funding to support their work, but despite earlyexpressions of interest no such support came through.[30]In August 2003, the IMF publicly called forthe formation of a document collection task force in collaboration with the CPAto determine status and agree on approaches, the unification of norms andstandards in document processing, and a centralization of document tagging andscanning efforts.[31]It proposed its management services and thesharing of its expertise in this field, particularly as regards thepreservation of archives, the establishment of protocols for documentselection, and the devising of classification schemes along lines similar towork already done on the North Iraq Dataset and the Kuwait Dataset.The CPA declined to join forces with the IMFand elected to set up an alternative institution with functions and goalsakin to those of the IMF to "memorialize" the victims of the former Iraqigovernment's repressive policies.[32]

As with the state archives currently in the custody of theU.S.-led Iraq Survey Group based in Qatar,little is known of the work already undertaken by the CPA, before it wasformally dissolved on June 28, 2004, on the processing of documents in its custody in Baghdad.In July 2003, CPA officials told Human RightsWatch of plans to establish a Bureau of Missing Persons that they wouldinitially manage and then hand over to the Iraqis.The function of the Bureau would be toestablish a database of missing persons from information received from a widevariety of sources, including state archives and physical evidence.[33]Approaches to the International Commission onMissing Persons (ICMP) to assist in establishing the Bureau was met with alukewarm response, according to CPA officials, which then requested theInternational Committee of the Red Cross (ICRC) to play a lead role in thisregard.[34]There were also plans to set up a CentralEvidence Warehouse that would house both documentary and physical evidencerelating to serious past crimes of the Saddam Hussein government.

The following month, in August 2003, the CPA told HumanRights Watch that discussions with the IGC were held regarding the creation ofa National Archive where the documents would be housed long-term, with theestablishment of a consortium of local NGOs and foundations to take a lead rolein managing it.The CPA said they hadalso proposed seeking the assistance of international experts to assist Iraqisin the process of evidence gathering and analysis, there being "virtually noinvestigative capacity in the country."[35]

Role of the CPA

Six months later, in February 2004, only limited progresshad been made on these fronts.The CPAtold Human Rights Watch that it was still "working on developing a bureau ofmissing persons with the [Iraqi] Ministry of Human Rights,"which is now charged with thisresponsibility.[36]A warehouse had been found to house thedocumentary and physical evidence but funding it remained a problem.No further progress had been made regardingthe creation of a National Archive.However, in apparent recognition of the potential value of statearchives being held in non-U.S. hands, namely Iraqi political parties and localNGOs, the CPA had by this time increased its efforts to ensure that thesearchives be housed under one roof, and was working towards making the Iraqihuman rights ministry act as the central repository.[37]The CPA told Human Rights Watch that the IGCwould be issuing a request for the documents, and although "it has not been putin writing, a request has already been made by the human rights minister."[38]

Human Rights Watch obtained a copy of a letter addressed tothe IGC, dated December 30, 2003, and signed by the then Human Rights Minister,'Abd al-Baset Turki Sa'id.In it, theminister underscores the importance of gathering state archives "within a legalframework" and requests the IGC to consider the enactment of an order requiringNGOs and other groups known to possess sizeable state archives to hand themover to his ministry or face criminal penalties for non-compliance.A draft Order was attached to the minister'sletter for the IGC's consideration, Article 3 of which provided for"imprisonment not exceeding seven years and not less than five years, and offines not exceeding ten million Iraqi dinars and not less than five millionIraqi dinars" for persons who refuse to hand over state archives or whoparticipate in or incite such action, and that the more severe penalty willapply if such actions result in the loss or destruction of the documents.

Copies of this letter were sent out to the relevant NGOs,whose representatives told Human Rights Watch they had either made strongprotests about it or had decided to ignore it.Some objected to the choice of the human rights ministry as the centralrepository, while others did not want to participate in such a scheme under theaegis of the CPA, and preferred to wait until a sovereign Iraqi government wasin place.Officials of political partieswith their own state archives collections told Human Rights Watch that they hadnot received such a letter and were not aware of its contents.The CPA, for its part, acknowledged that thishad probably not been the most effective approach to have taken, but that theywould continue to push for a law regulating the possession and use of statearchives, and which may still provide for criminal penalties fornon-compliance.[39]At this writing, no such law had beenenacted.

CPA officials closely involved with the preparation ofdocumentary evidence said in February 2004 that despite a series of setbacksfurther attempts to negotiate access with NGOs and political parties to thestate archives in their possession would continue, and that "if we come up withan understanding that they will make the documents available to us then thatwill be an achievement."[40]They also confirmed that accessing funds fromthe Supplemental Budget approved by the U.S. Congress for their projects hadcontributed to slowing down progress, and that most of the work done up toFebruary 2004 had been funded by USAID.[41]A USAID representative told Human Rights Watch that since September 2003, fundshad been provided for the building of a secure facility for the housing ofstate archives and the hiring of relevant staff.[42]The appropriation from the supplemental funding had enabled a documentationpilot project to begin, involving the setting up of a basic database, and thehiring by January 2004 of an evidence custodian with prior experience workingon documentation in the context of both the ICTY and ICTR.Peter Boyles, the evidence custodian, toldHuman Rights Watch in mid-February 2004 that his aim was to enable the scanningof one million pages of documents per month, and that the state archives wouldbe approached selectively, giving priority to those documents most pertinent tothe forthcoming trials.He underscoredthe importance of the Iraqi Special Tribunal having access to remainingoriginal documents as the earliest possible opportunity, given concerns aboutissues relating to authenticity and chain of custody.[43]

By late March 2004, however, U.S. Justice Departmentofficials were still saying that decisions had yet to be made as to how toapproach the processing of Iraqi state documents-in other words, whether toadopt the "ICTY approach" of going through all documentation available, orwhether a more "strategic approach" involving heavier reliance on identifyingand prioritizingdocumentsthat might prove pertinent for prosecutors inbuilding cases against the defendants: "We need to go out and assess thedocuments with translators, the official said."We need to be very strategic about new documentation and what we use."[44]Additionally, information that othergovernments may possess, such as satellite imagery, still needed to besought.The officials expressed optimismthat the newly created Regime Crimes Liaison Office (RCLO see below) wouldbegin making real progress on the preparation of documentary and other evidencefor trials before the Iraqi Special Tribunal.By mid-June 2004, the document processing site in Baghdad had been setup and a consultant hired by the RCLO to identify various software packagesthat could be used for the scanning, indexing and case tracking ofdocuments.The labeling of key documentshad also begun, and RCLO officials were hopeful that the processing of statedocuments would begin in earnest by mid-July.

Human Rights Watch understood that the RCLO planned to carryout pre-screening of documents before taking them in its custody, but at thatpoint no language assistants had been hired for either the pre-screening orscreening stages.In late July 2004,RCLO Adviser Greg Kehoe told Human Rights Watch that the document scanningprocess had begun, with a team of some fifteen persons going through the manydocuments on a daily basis.The "biggestchallenge," he said, remained that of identifying which entities possessedstate archives. He said that efforts were being made to meet with the variousgroups with archives in their possession in an effort to have the documentsplaced under one roof.[45]

IV. The Forensic Evidence

Lessons learned from the former Yugoslavia,Rwanda,and other countries which have experienced large-scale atrocities suggest thatmass graves investigations can be fraught with tremendous logistical,scientific, humanitarian, and legal challenges.[46]Any nationwide program to exhume mass gravesin Iraqmust satisfy the evidentiary needs of criminal trials and the humanitarianneeds of the families of the missing.This is why it is crucial that the Interim Iraqi Government establish ajoint Iraqi-International Commission forMissing Persons to supervise and coordinate the tracing of missing persons aswell as the exhumation of mass graves throughout Iraq.A joint Iraqi-International Commission willbe able to attract the necessary funding, scientific expertise, and trainingneeded to carry out this highly complex task.It should also develop a comprehensive strategy aimed at producingcourt-admissible evidence while responding to the desires of communities thatwish to have the remains of their loved ones returned for proper burial.

During the past thirty years, the government of SaddamHussein engaged in three wars and numerous campaigns to repress the Kurdish,Shi`a, and Marsh Arab populations, resulting in the disappearance-and, mostcertainly, the deaths--of between 250,000 and 290,000 people.[47]By February 2004, the Combined Forensic Teamof the Coalition Provisional Authority (CPA) had collected information on 259mass graves in Iraq.Of these, U.S. military criminal investigationteams had conducted preliminary assessments of fifty-five sites by February2004.[48]

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Identity documents of a woman and her two children foundin a mass grave near Mosulthat is believed to contain the remains of hundreds if not thousands of Kurdishwomen and children executed by Iraqi forces in September 1988. 2003 EricStover/Human Rights Watch

Mass grave sites in Iraqhave been located as far north as Mosul and asfar south as Basra,and some sites are believed to contain thousands of victims of extrajudicialexecutions.Burial sites of individualvictims have been located in cemeteries near prisons or on the grounds ofsecurity headquarters throughout Iraq.Most of the graves uncovered so far havecontained Iraqi victims, but other graves may also hold the remains of Iranianand Kuwaiti soldiers who were executed while in Iraqi custody.For example, in December 1991, a forensicteam with Human Rights Watch and Physicians for Human Rights uncovered thegraves of nineteen Iranian soldiers on the grounds of the Sardaw military basenear Sulaimaniyya.[49]After examining the remains, the forensicexperts found several skulls with evidence of single gunshot wounds.

Secrecy and Witnesses

The secrecy under which the Iraqi military and police conductedburials in Iraqmeans it will be impossible for investigators to locate all the graves.When graves are located, it will be difficultin many instances to determine the identity of the victims because Iraqimilitary and police abducted people in one part of the country and oftentransferred them to other areas, sometimes up to hundreds of kilometers away,for interrogation and execution.Thepassage of time and burial conditions have also caused remains to deteriorateand, in some cases, to disintegrate.This situation is further compounded by the fact that documentsbelonging to the police and security forces were destroyed during the war andsubsequent looting (see above).Some ofthese documents may have contained valuable information about the circumstancessurrounding mass burial sites.

What little is known today about the mass graves in Iraq hascome from individual Iraqis who miraculously survived mass executions,witnessed killings, or came across freshly dug graves in the course of theirdaily activities.In September 2003, ashepherd led 'A'id Rashid 'Ido, a lieutenant in the Iraqi Civil Defense Corp(ICDC), to two mass graves located in the al-Jazeera desert west of Mosul.The witness was unsure of the exact month,but he recalled discovering the graves sometime in 1988, shortly after heobserved Iraqi military and civilian vehicles transporting what appeared to beKurdish women and children on the road that passes his village.Lt. Rashid 'Ido took Human Rights Watchresearchers to the site on February 24, 2004, where they found toys, children'sclothing, and remnants of clothing traditionally worn by Kurdish women.Several skulls retrieved from the graverevealed single, gunshot wounds to the head.The witness said he believed one of the graves may contain as many as3,000 victims.[50]

Similarly, Haj Khalid Rasul al-'Am, the director of thecemetery department of Baghdad governorate, directed Human Rights Watch to agraveyard in a walled-off section of the al-Karkh cemetery, located close tothe notorious Abu Ghraib prison compound near Baghdad.According to Khalid Rasul, the burial sitecontains approximately 1,000 numbered graves of execution victims.He told Human Rights Watch how he secretlybegan to document cases of execution victims to assist future identification:

I started work on January 1, 1987.Atthe beginning, I was surprised when [the security organizations] brought agroup of hanged prisoners from Abu Ghraib [prison].They buried them in a bad way, without tradition,just throwing them in a grave. I felt guilty because we were burying thosepeople without the knowledge of the families.I started taking the ribbons off their arms and numbering the graves,and put the [grave] numbers on their death certificates.I was hoping that one day the families wouldcome asking for their bodies and I could give them the death certificate withthe grave numbers.[51]

Between 1987 and 2003, the cemetery director registered 993execution victims buried at al-Karkh. He estimated that the vast majority ofthe deceased were victims of political persecution. One of the bodies locatedin the graveyard was that of a brother of Human Rights Watch's translator. Thebrother had been a military officer and was executed for his alleged involvementin a coup attempt against the government.

In May 2003, Iraqis began exhuming graves that they believedto hold the bodies of those who had disappeared during the rule of SaddamHussein.This chaotic process took placein over a dozen communities throughout Iraq,and was often observed by U.S.and U.K.forces that chose not to intervene to halt the diggings because they feared itwould cause disturbances.[52]"We didn't want U.S. soldiers stopping grievingmothers from getting access to the graves of their children," CPA senior humanrights adviser Sandy Hodgkinson told Human Rights Watch."It would not have been a good image of U.S.occupiers or for the healing process."[53]

In fact, very few Iraqis found the graves of their children,in significant part because of the failure of the U.S.-led coalition to securethe sites and provide assistance with exhumations. At two sites located nearthe al-Mahawil military base just north of the southern city of al-Hilla, U.S.soldiers watched for several days in May 2003 as villagers used a backhoe todig up the remains of more than 2,000bodies, gouging and commingling countlessskeletons in the process, while some families used their hands to dig for bonesand shards of clothing and carted them away in wheelbarrows and buckets. Theunprofessional manner in which the graves were unearthed made it impossible formany relatives of the missing to identify many of the remains, or even to keepthe remains intact and separate.At theend of the process, more than one thousand remains were again reburied withoutbeing identified.In the absence offorensic experts, crucial evidence necessary for future trials was nevercollected, and may have been irreparably destroyed.[54]

A similar incident took place on May 7, 2003, when atwenty-year-old shepherd took local residents to an open clearing known asal-Birjisiyya, thirty miles south of Basra, where he said Ba`th Party membershad executed dozens of men during the al-Sadr uprising of 1999.[55]Using a backhoe, residents unearthedthirty-four bodies from the site and took them to the al-Jumhuriyyamosque.When Human Rights Watchresearchers visited the mosque on May 13, some of the remains were commingledand incomplete.Relatives claimed tohave identified twenty-nine sets of remains based on identification cards foundin the grave or by relying on clothing, jewelry, or a favorite brand ofcigarettes.Forensic scientists refer tothis type of identification as "presumptive identification."Because such items as clothing and jewelrycan be exchanged or misplaced by those taken into custody, this mode ofidentification is given less credence than scientific methods that search forunique biological characteristics on the skeleton that can be compared to andindividual's medical and dental records or subjected to DNA analysis.It is likely that some families may havemisidentified remains because they were convinced their relatives were buriedat the al-Birgisia site.

In some instances, Iraqis have called on the Iraqi Red Crescentto exhume graves.In April and May 2003,the Iraqi Red Crescent in Kirkukexhumed two mass graves allegedly containing the victims from the 1991 Kurdishuprising.In all, the Red Crescentworkers recovered eighty-one bags of remains from the two sites and transportedthem to the morgue at the Azadi hospital in Kirkuk.Morgue officials told Human Rights Watch that thirty-six individuals hadbeen identified by families based on identification cards and clothing found inthe graves.On February 2004, HumanRights Watch researchers examined the unclaimed bags of remains in a back roomof the morgue.Many of the bagscontained the remains of one or more skeletons and several had fallen on theirside, strewing bones across the concrete floor.

Click to expand Image

Skull of a woman with a single gunshot wound, mass gravenear Hadhar, south of Mosul. 2003 Eric Stover/Human Rights Watch

Experience in Iraq has shown that when familiesof the missing, and even whole communities, are informed that a moreprofessional and orderly manner of exhuming graves will result in a highernumber of positive identifications, they generally have been willing to stoptheir own exhumations and wait for outside forensic assistance.Residents of al-Najaf stopped exhuming a massgrave in June 2003 after a representative of the International Committee of theRed Cross (ICRC) visited the site with a group of religious leaders.Three weeks later, the ICRC sent thereligious authorities a report containing a list of steps the community couldtake to preserve the over 200 remains already exhumed.It also pledged to supply the community withmaterials and equipment to complete the exhumation process.However, after the bombing of ICRCheadquarters in Baghdad on October 27, 2003, the organizationpulled its international staff out of the country and suspended its initiativeto support community capacity building to exhume mass graves in Iraq.[56]

In Kurdish areas of northern Iraq, officials with localgovernment committees dedicated to mass graves investigations told Human RightsWatch in February 2004 that, as a matter or policy, they have restrainedbereaved relatives from digging up suspected graves of the missing.[57]However, they also added that they had grownimpatient with the CPA and nongovernmental organizations for having notfulfilled their promises made soon after the end of the war to provide forensicassistance and long-term training.[58]If assistance was not forthcoming, theofficials said, they would proceed with their own exhumations.

Forensic Investigations

Why exhume the mass graves in Iraq?First, forensic exhumations can assistprosecutors in bringing those responsible for these crimes to justice.Second, as disappearances are an ongoingcrime, the government has an obligation to investigate and inform families ofthe fate or whereabouts of the "disappeared." Finally, from a humanitarianperspective, at least some of the families will know the fate of their lovedones and be able to give them a proper burial Forensic exhumations can helpreconfirm the dignity of the victims and the value of human life, which in turncan help the families and their communities restore a sense of personal andsocial well-being.[59]Third, the process of investigation anddocumentation can help create a historical record of past crimes.

In the context of mass graves investigations, physicalevidence encompasses the bodies of the murder victims, thecorpus delecti, and any artifacts, such as projectiles, that may berecovered in or around the grave.Inessence, forensic experts corroborate witness and documentary evidence byidentifying victims-this may be a general identification, e.g. Kurdish, or aspecific identification, e.g. John Doe-of mass killings and determining thecause and manner of death.If thecharges entail genocide and crimes against humanity, they also look forpatterns in the mayhem:Did the victimsbelong to a particular ethnic or religious group?What methods did the killers use to dispatchtheir victims?Were the methods similarat different execution sites?Did thekillers make an effort to cover their tracks?

Past experience in several countries suggests that evidencefrom mass graves can fulfill several evidentiary needs in proving seriousinternational human rights or humanitarian law crimes.First, forensic investigations can helplocate and identify missing enemy combatants (in the case of Iraq, this would primarily involveIranian and Kuwaiti combatants) and determine whether they died in battle orwere the victims of war crimes.Second,forensic investigations of mass graves can help uphold a charge of genocide,which requires that the prosecution prove that the alleged perpetratorscommitted acts with the intent "to destroy, in whole or in part, a national,ethnic, racial or religious group."[60]As such, particular persons became victimsbecause of how they were perceived by the perpetrators.A forensic investigation will then focus onascertaining the "categorical identification" of the dead, such as the victims'ethnicity, religion or race, and the cause and manner of death.

This approach was applied successfully in the ICTY'sprosecution of Radislav Kristic, the Bosnian Serb commander of the Drina Corpswho was convicted in 2001 of genocide against the Bosnian Muslim populationduring the siege of the eastern Bosnian town of Srebrenica six years earlier.[61]During the pre-trial investigation, forensicexperts exhumed a series of mass grave in the hills surrounding Srebrenica andfound they contained the remains of hundreds of Bosnian Muslim men, many ofwhom bore blindfolds and ligatures and wounding patterns consistent withexecution-style killings.

Finally, forensic scientists can help prosecutors determineif a series of mass killings constitutes a "crime against humanity," whichencompasses a wide range of acts-mass murder, extermination, enslavement,deportation, rape, torture-committed against civilians on a large scale.[62]Forensic exhumations and postmortemexaminations can corroborate witness testimony and documentary evidence bydetermining if the victims of mass killings were civilians, determining howthey had died, and, if the accused is a high ranking military or civilianofficial, by demonstrating, for example, that the systematic and widespread natureof the killings suggested they had been planned in high places.In such cases, prosecutors do not need toprove every single murder, or every single massacre, but they do need toconfirm a pattern of killing and destruction directed against civilians orthose otherwise protected under the Genevaconventions.

Investigation of the graves of the missing in Iraqwill be a formidable undertaking, fraught with logistical, humanitarian, andlegal challenges.These complexinvestigations require multi-disciplinary teams, long-term planning, andsubstantial financial and logistical support. To exhume even a few mass graveswill require millions of U.S. dollars and possibly tens of millions if acomprehensive DNA-led strategy is pursued.In this regard, experiences in the former Yugoslaviaand Rwandaare instructive.

Since the establishment of two ad hoc international criminaltribunals for the former Yugoslaviaand Rwandain the 1990s, only a small fraction of the remains of the missing have been identifiedand returned to families for proper burial.By 1999, dozens of forensic scientists from twenty countries hadtraveled to the former Yugoslaviarepublic to investigate the whereabouts of the missing on behalf of theInternational Criminal Tribunal for the former Yugoslavia (ICTY) and to trainlocal scientists in the procedures of unearthing mass graves.[63]While these investigations producedsignificant court-admissible evidence, they were less successful in identifyingthe dead.When peace came to Bosniain 1995, 30,000 people were missing.ByJune 2003, after eight years' work by dozens of full-time forensic specialists,about 15,000 bodies had been exhumed and around 9,000 (thirty percent)identified.DNA analysis has contributedto about 3,000 of these identifications.[64]

In Rwanda,the sheer number of dead (estimated between 500,000 and 800,000) has made itvirtually impossible for the country's government or the International CriminalTribunal for Rwanda (ICTR) to undertake large-scale forensic investigations.[65]Indeed, out of nearly 500 individualsexamined from exhumations in the eastern town of Kibuye in 1995, only seventeen wereidentified.Six carried identifyingdocuments and eleven more had clothing or personal effects recognizable to acquaintances.None had hospital X-rays or dentalrecords.For only two of the victimscould surviving blood relatives be located.Soon after the Kibuye exhumation, the Rwanda tribunal ended its forensicprogram.[66]

The experience of the international tribunals points to atension between the identification by category needed for criminal prosecutionand the personal identification desired by families and loved ones, a tensionthat is exacerbated by the much greater resources required for the latter. Theabsence of identifiable physical remains greatly impedes the ability offamilies to accept and to commemorate properly the death of missing relatives.For this reason, the Iraqi authorities and the international community need tomake resources available to ensure that at the very least exhumations areconducted in a commemorative manner, as a key dimension of socialreconstruction in the aftermath of the trauma of mass killings. The authoritiesneed to work with community leaders and families to help them address theirloss in a way that accords them and their missing loved ones status anddignity.

Security and Limited Resources

War and subsequent looting of Iraq's medical facilities has leftits medicolegal system in shambles.[67]The forensic facility in southern city of Basra, for instance, wascompletely looted following the war, leaving it without plumbing andelectricity.While Iraq has well-trained and dedicatedforensic pathologists, it has no forensic anthropologists.Similarly, while Iraqi archeologists,numbering around 160, are skilled at historical excavations involving mainlyartifacts, they have no forensic experience.[68]Iraqi medical professionals and forensicscientists have traditionally identified the dead through circumstantialevidence, including visual recognition of the body or presence of identitydocuments in the clothing of the deceased.As a result, Iraqhas no procedure in place for collecting and preserving antemortem dentaldocumentation or medical radiographs that are often vital for identification ofskeletal remains.[69]Iraq also does not have thecapacity to conduct DNA analysis of bone and teeth, which, when compared withblood samples collected from relatives of victims, can lead to positiveidentifications. It is unlikely, based on experience in Bosnia and elsewhere, that even one-fourth ofthe missing persons exhumed from Iraq's mass graves will bepositively identified using forensic techniques including DNA analysis.

Iraq'scapacity to investigate suspected mass graves has also been undermined by theICRC's withdrawal from the country in October 2003.[70]Prior to its departure, the ICRC and theMedico-Legal Institute in Baghdadwere working on a training program in forensic anthropology for Iraqipathologists and physicians.The ICRChad also developed a plan to assist local Iraqi communities conduct basic,community-led exhumations.[71]The ICRC intends to re-instate these programsonce the security situation allows the organization to return internationalstaff to Iraq.

In the summer of 2003, the CPA's three-person forensic unitdeveloped a five-step "Mass Graves Action Plan."Step One focused on raising public awarenessabout the necessity of preserving graves so that they could be exhumed in anorderly and professional manner.StepTwo entailed the dispatching of international forensic teams to conductpreliminary assessments of graves.StepThree sought to secure several mass graves for full-scale forensicinvestigations, although by February 2004 only a few of these sites were undertwenty-four-hour guard.Step Fourenvisioned the training of local archeologists and health professionals toconduct exhumations and cursory post-mortem examinations.In November 2003, the CPA forensic unitconducted a three-day training seminar in Baghdadfor representatives of nongovernmental organizations and university scientistsand archeologists on the forensic investigation of mass graves.The forensic unit held a follow-up seminar inSulaimaniyya in April 2004.Step Fourentailed working with the International Committee of the Red Cross (ICRC) toestablish a national Iraqi Bureau of Missing Persons. Step Five envisioned aperiod of transition whereby the CPA would turn over responsibility forforensic investigations of past crimes to a new Iraqi government withassistance from the international community, as requested.

As of the end of June 2004, no such bureau had beenestablished; nor have the Iraqi authorities established one in the monthssince. CPA initiatives to help Iraqis develop a comprehensive plan to carry outboth criminal and humanitarian exhumations of mass graves throughout thecountry also have not materialized. Human Rights Watch believes that theresponsibility for developing and implementing such a comprehensive plan shouldbe assumed initially by a joint Iraqi and international commission which wouldeventually be run by Iraqis alone.

The CPA action plan divided gravesites into threelevels.Level 1 sites were to beinvestigated by international forensic teams to collect evidence for futuretrials.These sites, estimated betweenten and twenty, must be representative of five major periods of repression,including the 1988 Anfal campaign against the Kurds and the 1991 killings ofShi'a Muslims and Kurds after the mass uprising at the end of the GulfWar.The CPA estimated that each Level 1exhumation will take six to eight weeks to complete.Level 2 sites, which may number between fortyand sixty, were to be investigated by Iraqi-trained teams for historicalpurposes, namely, to document sites associated with major periods of repressionthroughout Iraq.Level 3 sites were those that would be turnedover to local communities for exhumation and reburial.[72]

By the time the CPA was formally dissolved on June 28, 2004, no programhad been designed to apply DNA analysis to the identification of the remains ofthe missing in Iraq.[73] Accordingto CPA officials, this was for several reasons.[74]First, the CPA believed that DNA analysis would be too costly and timeconsuming given the number of dead and the logistics involved in gathering andpreserving bone and teeth samples from graves.A nationwide DNA collection program would have required the formation ofan overall coordinating body responsible for the collection, storage,transport, and chain of custody of DNA samples, as well as the selection andaccreditation of laboratories to conduct the analysis.This body would also have needed to setstrict standards to ensure that DNA data was not used, disclosed, ortransferred for purposes other than for identification purposes without theconsent of the donor.[75]Second, as it was likely that local residentswith little or no forensic supervision would exhume many of the graves in Iraq,a considerable risk existed that bone and teeth samples could becomecontaminated or mislabeled which would complicate the identificationprocess.Finally, there was always thedanger that the use of DNA analysis could raise unrealistic or falseexpectation on the part of the families of the missing.[76]

The CPA had relied on governments to donate forensic teamsand equipment, but few were forthcoming because of security concerns and thehigh cost of such operations.[77]Human Rights Watch understood that someEuropean forensic teams were also concerned about the use of forensic evidenceresulting from their work being used in future trials that could lead to deathsentences being passed by the Iraq Special Tribunal.In March 2004, the Dutch government decidednot to send a forensic team to work on a Site 1 investigation and, earlier inthe month, the Finnish government withdrew a team from Iraq earlier following an attack on Finnishbusinessmen in Baghdad.[78]Meanwhile, in February 2004, insurgentsdetonated a daisy-chain bomb on a remote road in southern Iraq injuring several Kuwaiti forensicscientists en route to exhume a mass grave believed to contain the remains ofKuwaiti prisoners of war executed by Iraq forces during the 1991 GulfWar.[79]

In discussions with U.S. Department of Justice officials inMarch 2004, Human Rights Watch expressed concern about mounting mediaspeculation that indictments against the first group of defendants may beissued within the coming months without the availability of forensic evidence.DOJ officials said that trials would notproceed without the forensic evidence, but added: "We cannot spend eight weeksat a grave site in a secure environment to get at the evidence.We need to carry out surgical visits togravesites, to estimate the size and age of the site and the identities andorigin of the victims" by exhuming a section of each chosen site.They stressed that this should be done asspeedily as possible: "We need forensic testimony for the process.We know we have to get to the gravesites assoon as possible for any trials or indictments."Given the high costs of such operations, andthe recognition that "the U.S.army cannot protect us," it was felt that the "short-term sampling" approach,involving "multiple teams covering a short period of four to five weeks" wouldbe more realistic.Officials expressedthe hope that such teams could be deployed on the ground "by June or July atthe latest."[80]In April 2003, however, with continuingdeteriorating conditions in Iraqand the outbreak of a spate of abductions, and in some cases killings, offoreigners in Iraq, theCPA's forensic team was withdrawn from Iraq as a precautionarymeasure.

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Relatives with remains of loved ones recovered at massgrave. Taxis in background are on hand to take the families home once they areready to leave. 2003 Peter Bouckaert/Human Rights Watch

In late July 2004 RCLO Adviser Greg Kehoe told Human RightsWatch that efforts to begin exhumations for evidentiary purposes were ongoingsince April, but that the issue of security remained a major concern and planshad been put on hold for that reason.However, he added that "exhumations have now begun and will continue forthe foreseeable future," using the short-term sampling approach.The aim was to spend some six weeks on eachselected site, undertaking "typical crime scene forensic work" with a view todocumenting what executions did take place, the manner of the executions, andthe religious, ethnic and other affiliations of the victims.DNA analysis was being ruled out on groundsof cost and for practical considerations, principally the ability to obtain DNAsamples from living relatives for comparison.If any identity cards or other artifacts are found in the course ofexhumations that would help identify individual victims, that would be a"bonus," he said.[81]

By mid-October 2004, only two forensic exhumations of massgraves had begun in Iraq,despite the CPA's plan to have several sites completed by the turn over ofpower to the Iraqis at the end of June 2004.In August 2004, a U.S.team of archaeologists and engineers began examining a series of mass graveslocated about seventy kilometers (forty-two miles) south ofMosul, near the village of Hadhar.[82]Human Rights Watch researchers visited the Hadhar graves in February 2004. Asof mid-October, approximately 300 sets of human remains, mostly of Kurdishwomen and children, have been discovered in the Hadhar graves. Of these,between 15 and 20 percent bear identifying documents. It appears that theremains are those of victims of the Anfal campaign who were buried at the sitein 1988. Many of the victims reportedly bear single gunshot wounds to the head.

As of October 2004, the greatest constraint on the forensicinvestigation of mass graves in Iraqremained the lack of security.Securityat gravesites is paramount.Twenty-fourhour site security is essential once forensic work has commenced.This not only insures the integrity of thecrime scene and the safety of personnel, but also the security of supplies andequipment left at the site when forensic personnel are absent.A CPA official told Human Rights Watch inFebruary 2004 that coalition military commanders were reluctant to providein situ protection of forensic teamsworking at mass grave sites because of other competing demands.[83]This was especially true in the southernareas of Iraq.RCLO Advisor Greg Kehoe told Human RightsWatch that the U.S.-led Multinational Force had agreed to provide security,which would represent a departure from the stance under the CPA. Equallyimportant is the need to have an overall plan in place that will keepcommunities informed of exhumations and enable forensic teams to work safelyand effectively. Until a plan is in place and the security situation improves,it is unlikely that any full-scale effort to conduct multiple forensicinvestigations or exhumations of Level One gravesites will commence in the nearfuture.

Humanitarian Needs

In criminal cases involving genocide and crimes againsthumanity, the ad hoc international tribunals have placed greater emphasis on"categorical identification" as opposed to "personal identification" ofvictims.This approach has created atension between the humanitarian needs of families of the missing and theevidentiary needs and mandate of international war crimes tribunals.On the one side are the families who wish toknow the fate of their missing relatives and, if they have died, to receivetheir remains.On the other side are thead hoc tribunals that have lacked the resources to undertake forensicinvestigations aimed at identifying all of the dead.The Iraqi authorities would do well to heedthis dilemma and initiate a program that helps communities recover the dead ina dignified manner for anonymous burial at memorial sites.

Only a small number of the remains of the hundreds ofthousands who disappeared during Ba`thist rule in Iraq will ever be identified andreturned to families for proper burial.Hundreds, perhaps thousands, of remains have already been condemned tounidentifiable status due to substandard exhumations and identifications.There has been no coordinated documentationof where the remains claimed from the mass graves were reburied.

This situation stands in stark contrast to the expectationsof many Iraqis who believe graves will be located and that remains will beexhumed, identified, and returned to families for reburial.Forensic anthropologist William D. Haglund,who has accompanied Human Rights Watch researchers to several mass graves in Iraq,believes that the presence of well-equipped foreign military forces may haveraised Iraqi expectations:

One dynamic that may inspire Iraqisis that they see anoccupation force with wonderful logistics, immense resources, and a "can do"attitude.To the observing Iraqis, thereis a perceived promise that these resources will be brought to bear in a majorway on grave exhumations and identification of the dead.This perception was certainly bolstered atone of the missing persons centers because of the promises they believe CPArepresentatives have given them.[84]

The reality is that for many families resolving the fate ofmissing relatives will be realized not by exhumations but by discovering theirnames on an execution list or a list of those arrested and detained by Iraqisecurity forces or through the knowledge that relatives went to war or werearrested and were never heard from again.Still, for other families, the fate of missing relatives will only beresolved by having their remains identified. Without bodies and funerals,relatives of the missing often are unable to visualize the death of their lovedones and accept it as real, and are unable to fulfill their religious andcommunal obligations to the dead.[85]Without the remains of loved ones, manyIraqis families are experiencing "ambiguous loss," a condition in which notangible evidence exists that a missing person is alive or dead.[86]The absence of bodies has also robbedfamilies of the visual cues that would help them to acknowledge the death oftheir loved ones and to pass through the stages of mourning and grief.Moreover, their experience remains unverifiedby the community around them, so that there is little validation of what theyare experiencing and feeling.Becauseambiguous loss is a loss that goes on and on, those who experience it oftenbecome physically and emotionally exhausted from the relentless uncertainty.[87]

Mass violence and its aftermath must also be understood as acollective experience.Individuals lose family members andcommunities are decimated, as was the case in northern Iraq when Iraqi troops destroyedmore that 2,000 Kurdish villages in the 1987-89 period alone.[88]In Iraq, many families are dealingwith the ambiguous loss of relatives as well as the loss of their homes andcommunities.Iraqis of all faiths viewbereavement as an experience to be shared, strengthening the solidarity offamily and community.In this context,an important source of resilience for families of the missing will be thecommunal involvement in efforts to locate; exhume; rebury; memorialize; and, tothe extent possible, identify the dead.

Whenever possible, exhumations in Iraq should thus be commemorativeevents designed to help individual mourners and communities receive acknowledgementof their loss and move forward in the grieving process.Exhumations should be viewed as part of aprocess of social reconstruction, one that gives families and communities thepossibility and means of disinterring and re-burying the dead in a respectfulmanner, of paying homage to them, and of giving them the status and dignity ofwhich they were deprived by war and political violence.

The problem of the missing in Iraq will only be solved through acomprehensive program that satisfies both the evidentiary needs of criminaltrials and the humanitarian needs of the families of the missing and theircommunities.The Iraqi authorities, inconsultation with the United Nations and the International Committee of the RedCross, should establish a joint Commission on the Missing that is Iraqi andinternational in composition to oversee the grave exhumation process.This body should seek the advice andparticipation of local and international organizations, includingrepresentatives from family and local religious groups, the InternationalCommission of Missing Persons, and forensic teams sent to Iraq by governments and otherentities.The Commission should overseethe training of local forensic scientists, archeologists, and healthprofessionals in the recovery and analysis and in the assessment and treatmentof the mental health of the surviving families of the missing.Participation of international members on thecommission will help facilitate the procurement of funds and personnel and thepassing on of "lessons learned" from forensic investigations in othercountries.Over time, the commissioncould be transformed into an all-Iraqi commission.

Whenever a mass grave is located, the jointIraqi-international Commission on the Missing, working in collaboration withlocal authorities, should secure the site and consult communities about thebest approach and timetable for exhuming it.Suitable local people (e.g. medical doctors or others with formal trainingeither in archaeology or anatomy) will need to be identified and trained in thebasic methods and procedures of excavation and forensic anthropology.Other suitable people will need to be trainedto assist with the more manual aspects of excavation, recording of findings inwriting, securing clothing and other artifacts and labeling these and theremains accurately, and taking photographs.

The joint Commission should also have a plan in place fordealing with both identified and unidentified remains retrieved duringcommunity-lead exhumations.This planshould be nationwide in scope, but flexible enough to deal with the particularwishes of families and their communities.Some families, for example, may wish to receive identified remains forburial in their local cemetery, while others may be willing to have them buriedin a regional or national memorial cemetery.Plans are already underway to establish a memorial museum and cemeteryfor Kurdish victims near the northern city of Kirkuk. Other locations may choose to followa similar path and the joint Commission should facilitate such an approach.

Acknowledgments

This report was researched and written by Hania Mufti,Regional Director of the Middle East and North Africa division of Human RightsWatch, and Eric Stover, Director of the Human Rights Center and AdjunctProfessor of Public Health at the Universityof California, Berkeley. Ali `Uthman provided researchassistance. Human Rights Watch would also like to acknowledge the cooperationof numerous Iraqi non-governmental organizations and political parties. We alsoappreciate the cooperation we received from officials with the CoalitionProvisional Authority in gathering information for this report. Joe Stork, Washington director of Human Rights Watch's Middle Eastand North Africa division, edited the report.Dinah PoKempner, legal counsel to Human Rights Watch, Jennifer Trahan, counselto the International Justice Program of Human Rights Watch, and Widney Brown,deputy program director of Human Rights Watch reviewed the report. Leila Hull,associate with the Middle East and North Africadivision, prepared the report for publication with the assistance of VeronicaMatushaj. Human Rights Watch would like to thank the Sandler Family SupportingFoundation for supporting Eric Stover's participation in this project. HumanRights Watch would also like to thank the following donors for their support ofthe organization's work on Iraq: the J.M. Kaplan Fund, the David and LucilePackard Foundation, Novib-Oxfam, Stichting Vluchteling, the John D. andCatherine T. MacArthur Foundation, the Oak Foundation, the Rockefeller BrothersFund, the Ruth McLean Bowman Bowers Foundation, and ACT Netherlands, a jointproject of Kerkinactie and ICCO.

• Middle East/North Africa
• Iraq
• United States

• Iraq War 20 Years Later