The Dead, the Law, and the Politics of the Past

JOURNAL OF LAW AND SOCIETYVOLUME 31, NUMBER 4, DECEMBER 2004ISSN: 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 òwnership' in such contexts, setting out a broader notion of

cultural and moral ownership as more appropriate for analysing legaldisputes 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 andinstead centres on broader concerns of societal and personal healing.

INTRODUCTION

Dead people belong to the live people who claim them most obsessively.1

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ß Blackwell 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 IrelandThis article began life at the Socio-Legal Studies Conference in Bristol 2001 and we aregrateful for the comments and lively discussion which spurred us on. Thanks also to ourcolleagues, in particular Robin Hickey and Sheena Grattan. Kieran McEvoy would also liketo acknowledge Ron Keenan of the Equality Commission for Northern Ireland, BrandonHamber of Democratic Dialogue, Eitan Felner, former Director of B'Tselem for his helpwith the Israeli aspects of this paper, and the staff of the Institute of Criminology, Universityof Cambridge in particular Shadd Maruna, Allison Liebling, and Amanda Matravers for theirhospitality in the summer of 2003. Thanks also to the anonymous reviewers. Finally, aspecial thanks to our respective dads, Paddy McEvoy and Joe Conway, two grave diggersextraordinaire 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 andPost-Socialist Change (1999) 23.

While the focus of this article concerns dead bodies in political and culturalconflicts, anyone who has been involved more generally in dealing with thedeath of a loved one will recognize that it is a process with at least threeinterconnecting stages. In the immediate aftermath, the living mustdetermine who has òwnership' or control over the disposal of the remains.Decisions are then made concerning the commemoration of the deceasedsuch 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 psychologicalconsequences of death, they are encouraged to seek some form of `closure'in coming to terms with death.2 At each stage, and particularly if disputesarise, law plays a crucial role. From the formal declaration of a deathcertificate onwards, law's capacity to speak authoritatively to notions ofsovereignty, acknowledgement and a sense of completion regarding the fateof the dead assumes a central role.3

Despite the breadth of law's involvement in the process of death, it is thenotion of ownership in particular which is arguably the dominant legalparadigm in matters concerning the dead. Death transforms the human bodyfrom a person to an object,4 and it is through this process of objectificationthat the notion of ownership often becomes synonymous with control of theremains.5 Determining ownership, usually constructed relatively narrowly asthe basis for strict legal entitlements, has been viewed as the key judicial taskin, for example, deciding familial disputes concerning the dead.6 Similarly,the ever-burgeoning law and medicine literature concerning organtransplants, unauthorized autopsies, and related medico-legal matters

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2 See, generally, G. Gorer, Death, Grief and Mourning (1965); D. Clark (ed.), TheSociology of Death: Theory, Culture and Practice (1993); C. Seale, ConstructingDeath: 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 viewedas something like a à piece of furniture' (T. Nagel, Mortal Questions (1979) 7).

5 While it has long been established in common law jurisdictions that there is noproperty in a dead body, the courts have recognized an exception to this rule tofacilitate 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 AllE.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) 23Legal Studies 423. As Conway notes (pp. 442±9), the one potential exception to thedominance of the ownership paradigm concerning family disputes is signs of atentative engagement with human rights discourses concerning the right to respectfor family life under Article 8 of the European Convention and freedom of thought,conscience, and religion provisions in Article 9.

ß Blackwell Publishing Ltd 2004

concerning the dead is suffused with notions of ownership.7 As anorganizing concept, ownership provides a familiar template around whichto shape competing claims.8 It denotes important notions including status,possession, control, and the exercise of legitimate authority to the exclusionof all others.9 It facilitates a necessary process of detachment from contestswhich are often socially and emotionally fraught and a retreat to legalformalism traditionally associated with such private law concepts.10

While legal recourse to a familiar concept is perfectly understandable, wewould argue that private law constructs of ownership are conceptually deficientin dealing with disputes surrounding the dead in the contexts we discuss. AsCharmaz has argued, death is more than a biological progression, `. . . it is aninherently social process'.11 Forms of burial, methods of commemoration, andthe achievement of emotional closure are important to many beyond thosedirectly affected by the death. In particular, in the highly charged politicalcontexts discussed below, death disputes are of central societal importance injurisdictions that are attempting to come to terms with their history. Legalcontrol over the dead, the regulation of their memorialization, and therelationship between their fate and processes of post-conflict healing in suchsocieties are often key to what Nagel has described as the distinction betweenknowledge and acknowledgement.12 In Australia, or amongst the NativeAmerican tribes, or Latin America, Northern Ireland, the Balkans, and theother jurisdictions discussed below, people may already know more or lesswhat happened.13 However, it is often through the process of dealing with the

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7 See, for example, K. Mason and G. Laurie, `Consent or Property: Dealing with theBody and its Parts in the Shadow of Bristol and Alder Hey' (2001) 64 Modern LawRev. 710; J. Harris, `Law and Regulation of Retained Organs: The Ethical Issues'(2002) 22 Legal Studies 527; and M. Brazier, `Retained Organs: Ethics andHumanity' (2002) 22 Legal Studies 550. On ownership and living body parts, seeR.W. Marusyk and M.S. Swain, À 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. Daviesand N. Naffine, Are Persons Property? Legal Debates About Property andPersonality (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, andRhetoric of Ownership (1994).

9 See A.M. HonoreÂ, Òwnership' in Oxford Essays in Jurisprudence, ed. A.G. Guest(1961) 113.

10 See R. Brooks, Structures of Judicial Decision-Making from Legal Formalism toCritical Theory (2002).

11 K. Charmaz, The Social Reality of Death (1979).12 T. Nagel, `Concealment And Exposure' (1998) 27 Philosophy & Public Affairs 3.13 Ìn the former Communist Eastern European states there was little need for ``new''

historical revelations. Most people knew what had happened in the past and retainedthis 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 ofDenial: Knowing About Atrocities and Suffering (2001) 225).


dead, what Cohen has referred to as `digging up the graves and opening thewounds', that genuine acknowledgement of a violent past may occur.14

As a first step therefore, we would argue that the traditional parameters of thenotion 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 perfectlycaptured in the tensions between the historical and scientific communities informer colonies and surviving indigenous peoples concerning their deadancestors.

THE CULTURAL AND MORAL OWNERSHIP OF INDIGENOUS DEAD

The crumbling of colonial empires in the twentieth century witnessed aparallel cultural renaissance and indigenous assertiveness amongst formerlycolonized peoples.15 This process has in turn spurred an increased con-sciousness concerning the fate of indigenous skeletal remains and sparked arange of legal disputes.16 Conflicts have arisen concerning corpses and bodyparts, often of Native American or Aboriginal peoples, which are held inmuseums and research institutes. Disputes have also occurred over thetreatment of recently unearthed human remains, with indigenous peoplespressing for the return of bodies of their ancestors for subsequent (re)burial,and scientists, anthropologists, and archaeologists arguing that these remainsare a source of collective knowledge and should be retained accordingly. Insuch circumstances, the notion of ownership of the dead extends well beyondstrict legal entitlements towards cultural and moral claims surrounding thefate of the remains as a basis for claimsmaking.17

Scientists and historians often contend that indigenous remains represent avital source of information about the past concerning topics as diverse asdiet, patterns of disease, population trends, and age-old questions regardingthe origins of mankind. They argue that such information will beirretrievably lost on (re)burial and that the inherent knowledge value ofsuch remains thus justifies their scientific or historical retention.18 In some

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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 theObject: 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 anoverview of the notion of claimsmaking, see J. Best, Images of Issues (1999) and S.Bockman, Ìnterest, Ideology, and Claims-Making Activity' (1991) 61 SociologicalInquiry 452.

18 See, for example, T. Molleson, `The Archaeology and Anthropology of Death: Whatthe Bones Tell Us' in Morality and Immortality: The Archaeology and Anthropologyof Death, eds. S.C. Humphreys and H. King (1981) 15±32 and Hubert, id., pp 106±8.


instances they have contested that cultural ownership claims are tenuous.19

For example, skeletal remains may be hundreds or even thousands of yearsold, and the deceased may have belonged to a tribe which bears littleresemblance to a particular modern indigenous group. Here, scientists havegone so far as to liken the disturbance and return of indigenous remains to aform of historical vandalism, akin to the destruction of the Egyptianpyramids or razing of the Taj Mahal.20 Such a view of historical remains ineffect postulates a broader notion of ownership, wherein the indigenous deadare seen as `. . . part of the world's heritage, since the information they yieldis relevant to, and may even be said to belong to, all human communities.'21

In contrast, indigenous communities assert that the remains of their tribalancestors must be treated with dignity, and not as mere artefacts òn displayfor the curious, and labelled ``collections'', ``specimens'', and `òbjects ofantiquity''.'22 In seeking to secure the repatriation of these remains, thesecommunities have argued that they should be entitled to determine whathappens to the bodies of their ancestors on the basis of collective culturalrights and values which transcend generations. Many living indigenouspeoples regards themselves as custodians of the dead.23 Moreover, since insome instances burial is essential to secure the transition into the spiritualafterlife,24 the repatriation of ancestral remains to their native homeland isconsidered necessary to allow the dead to continue on their spiritual journey,while ensuring respect for the cultural beliefs of the deceased individual andthose of the indigenous group to which s/he belongs.

The spiritual importance of respect for the dead and the sacred beliefs ofliving indigenous peoples is but one aspect of this notion of culturalòwnership.' The other is entwined with the notion of moral òwnership' ofthe dead. As Gosden and Knowles have observed, `. . . moral issues are keyto any consideration of colonialism'.25 While most colonial civilizationsbelieved in burying their dead and allowing them to remain in the grave

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19 P. Afrasiabi, `Property Rights in Ancient Skeletal Remains' (1997) 70 SouthernCalifornia 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 LivingTraditions, ed. R. Layton (1989) 198.

23 See P. Vines, `Resting In Peace? A Comparison of the Legal Control of BodilyRemains in Cemeteries and Aboriginal Burial Grounds in Australia' (1998) 20Sydney Law Rev. 78, 96±97, as well as J. Riding In, `Without Ethics and Morality: AHistorical Overview of Imperial Archaeology and American Indians' (1992) 24Arizona 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 andNative American perceptions of death and treatment of the body.

25 C. Gosden and C. Knowles, Collecting Colonialism: Material Culture and ColonialChange (2001) 209.


without interference, this was not always the case for indigenous peoples.26

As European nations such as Britain and France embarked on colonialconquests of Australia and the Americas predicated on notions of politicalpower and economic wealth, the graves of indigenous peoples wereplundered throughout the colonies in the same manner as the land itself.Darwinian theories of evolution fostered an era of scientific and culturalracism which, combined with imperialistic notions of white supremacy, ledto the looting and pillaging of burial grounds and, in more extreme cases, thekilling of indigenous peoples to obtain research material or even trophies forprivate collection.27 Thus bodies were obtained by European scientists andcollectors in ways which would have been unacceptable at home, yet whichwere justified by what has been described as a `facËade of intellectualism andrhetoric of scientific righteousness'.28 The fact that skeletons and body partsheld by museums and research institutes are those of identifiable racialgroups, or in some instances identifiable individuals,29 and symbolic ofatrocities committed during colonial power struggles has been a decisivefactor in the extensive repatriation of these remains.

Various attempts have been made in recent years to secure some form ofconsensus between archaeologists, anthropologists, and scientists on the onehand and indigenous communities on the other as regards the fate of skeletalremains. For example, the Vermillion Accord which was agreed at the WorldArchaeological Congress in 1989 emphasizes the need for mutual respectand cooperation between indigenous peoples and archaeologists.30 A numberof countries have also enacted specific legislation to regulate the storage,study, and repatriation of skeletal remains such as the Native AmericanGraves Protection and Repatriation Act 1990 in the United States, and theAboriginal Heritage Act 1988 and Heritage Conservation Act 1991 in therespective Australian states of South Australia and the NorthernTerritories.31 Such agreements and legislative initiatives have provided a

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26 J. Winski, `There are Skeletons in the Closet: The Repatriation of Native AmericanHuman Remains and Burial Objects' (1992) 34 Arizona Law J. 187.

27 For an account of the atrocities committed against Native American graves duringthis 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 aswell 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 whitesettlers; her body was exhumed from its grave and plundered by scientists followingher death in 1876. Trugnanini's remains were returned to Australia after beinghanded over to a delegation from Tasmania by the Royal College of Surgeons inLondon (`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 valuesshould be: see Vines, op. cit., n. 23, pp. 100±2. While there is no such legislation in the


useful framework for negotiating the return of skeletal remains obtainedduring colonial times, with museums and research institutes accepting thatliving indigenous peoples have a superior claim to the bodies of theirancestors in these circumstances.

In such disputes, the question of who òwns' the dead is not simply aquestion of the exclusive exercise of authority over the remains, but isinextricably linked to the notion of who òwns' the past. The ongoing disputein the United States over the fate of a 9,200-year-old skeleton christened`Kennewick Man' offers a perfect illustration.32 Following his discovery inJuly 1996, scientists and anthropologists clashed with Native Americans whoclaimed Kennewick Man as one of their ancestors and sought custody of hisremains for burial in accordance with their spiritual traditions. The formerargued that, since this was a rare discovery of global significance,33

Kennewick Man should be used to further the knowledge of society as awhole, as opposed to being handed over to Native American tribes. TheNative Americans relied on the Native American Graves Protection andRepatriation Act 1990 (NAGPRA) which vests custody of skeletal remainsin the lineal descendants of the Native American or, if they cannot be found,in the Indian tribe which has the closest `cultural affiliation' with thedeceased.34 While the Secretary of the Interior initially held in favour of thetribal claimants, this decision was subsequently overturned by the OregonDistrict Court which barred the transfer of the skeleton for immediate burialand permitted its scientific study instead.35 The court held that the remainscould not be classed as `Native American' for the purposes of NAGPRA36

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United Kingdom, the Culture, Media and Sport Committee has examined therepatriation issue and stressed the need for mutual understanding and dialoguebetween institutions in Britain which hold indigenous remains and indigenouscommunities themselves (House of Commons Culture, Media and Sports CommitteeSeventh Report, Cultural Property: Return and Illicit Trade (July 2000) vol. 1, para165).

32 The skeleton was discovered in July 1996 protruding from the banks of theColumbia River at Kennewick, Washington by a group of teenagers going to a boatrace. For an overview of the issues surrounding the fate of Kennewick Man, see R.Tsosie, `Privileging Claims to the Past: Ancient Human Remains and ContemporaryCultural Values' (1999) 31 Arizona State Law J. 583 and M. Kelly, À Skeleton inthe Legal Closet: The Discovery of ``Kennewick Man'' Crystallises the Debate OverFederal Law Governing Disposal of Ancient Human Remains' (1999) 21 HawaiiLaw Rev. 41.

33 Fewer than 12 human skeletons of comparable age have been found in North andSouth 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 andRepatriation Act: Background and Legislative History' (1992) 24 Arizona StateLaw 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 òf, or relating to, a tribe, people,or culture that is indigenous to the United States.'


since there was insufficient evidence to suggest that Kennewick Man wasrelated to any identifiable indigenous group or culture in the United States.Likewise, the claimants could not assert control of Kennewick Man on thebasis of `cultural affiliation' under NAGPRA37 since his age and lack ofinformation as to his era made it impossible to say whether he was related tothem or whether there was a shared group identity between his group and theliving indigenous peoples represented by the claimants on the basis of oralhistories passed down through generations. This decision has recently beenconfirmed by the United States Court of Appeal for the Ninth Circuit, whichstressed that the statute required some relationship between the remains anda presently existing tribe or culture to be considered Native American.38

While NAGPRA may have been enacted to respect the burial traditions ofmodern day American Indians and to protect the dignity of the human bodyafter death, its purposes would not be served by requiring the transfer tomodern American Indians of remains which did not bear any relationship tothem.

The most controversial aspect of the Kennewick Man discovery and thesubsequent driving force behind the protracted litigation on both sides is thefact that the remains have distinct characteristics which differ from those ofmodern Native Americans. The age of the skeleton and its apparentCaucasoid features has ignited theories that Europeans may have arrived inAmerica many thousands of years before the accepted date.39 From ascientific viewpoint, the remains thus provide a unique window into theoriesof human evolution and patterns of migration across the Americas. From theperspective of Native Americans, Kennewick Man has the potential to re-write history in terms of the first people to settle in America and thus tochallenge the sovereignty of Native Americans as the First Americans, a`Pandora's box that most tribes want kept firmly shut'.40 As Hurst Thomassuggests, the pivotal issue in the Kennewick Man dispute is not science orcultural values, but politics ± who gets to control ancient Americanhistory?41 This, in turn, will influence who controls the present in terms ofthe status and rights accorded to Native American tribes.

In sum therefore, narrow private law constructions of ownership fail totake account of the centrality of the dead as sites and sources of importantpolitical and ideological conflicts. Historical and scientific researchershave attempted, albeit with limited success, to frame their claims overindigenous dead within a broad societal `heritage' notion of ownership.Living indigenous communities have successfully laid claim to the bodies

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37 1990 Act, s. 3001(2) defines `cultural affiliation' as a `relationship of shared groupidentity which can be reasonably traced historically or prehistorically between apresent 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.


of their ancestors on the basis of much more potent and forceful `cultural'and `moral' notions of ownership, both of which are entwined withcolonial histories of the suppression of native culture and a lack of respectfor indigenous people, both living and dead. Repatriation of indigenousremains serves as recognition of indigenous cultural identity and as a formof `restitution in the face of past mistreatment.'42 These cultural and moralaspirations of ownership have, in turn, been validated by the state as post-colonial nations intervene to secure the return of skeletal remains held bymuseums and research institutes in former occupying colonial powers.Such actions are laden with symbolism. They represent a tangibleacknowledgement of past transgressions,43 a desire for some form ofvicarious atonement, and are part of the ongoing political struggle forincreased rights recognition amongst indigenous peoples.44 At a culturaland spiritual level, such moves also assist indigenous peoples incommemorating their dead in a way which is in keeping with theirtraditions.

LAW, DEATH, AND COMMEMORATION

The process of commemoration is central to death rites in most historical andcontemporary societies.45 Yet an act of commemoration is more than astraightforward process of remembrance. In some instances ± such as thepyramids of the Pharaohs, Balinese funeral pyres, or Judaeo-Christian funeralmonuments ± commemorative icons are symbols of esteem, their height andgrandeur viewed as markers of distinction which denote the status of thedeceased when alive.46 In other instances, such as war commemorationmonuments,47 such sites are often viewed as opportunities for the living toèxpress grief and indebtedness' for the sacrifices of the dead.48 In still others,

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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 atVolgagrad (previously known as Stalingrad) which is three times larger than theStatue of Liberty: see P. Kohout et al., Disorientations ± Eastern Europe inTransition (1992).

48 J. Winter, Sites of Memory, Sites of Mourning: The Great War in European CulturalMemory (1995) 94±5. See, also, B. Schwartz and T. Bayma, `Commemoration andthe Politics of Recognition: The Korean War Veterans Memorial' (1999) 42 Am.Behavioural Scientist 946.


such as Holocaust or genocide memorials, they are not just powerfulreminders of past atrocities but also highly charged loci around which notionsof nationhood are constructed, explicitly designed to `. . . foster the sense of acommon present and future, even a sense of a shared national identity'.49 Ineach instance, law plays a key role. Planning permission to erect monuments,freedom of speech, freedom of religion, the prohibition of incitement to racialor sectarian hatred, the celebration or indeed obliteration of public memory ±these and related legal discourses provide the focal points around whichcommemorative disputes concerning the dead are both conceptualized andpractically resolved.50 In each, when legal clashes arise, they speak to broaderpolitical, social or ideological conflicts which crystallize around disputeswhich 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 himselfkilled just after he had massacred twenty-nine Muslim worshippers in amosque in Hebron in 1994. Goldstein's tomb became a shrine for Israelisettlers and was embellished with an altar, candles, cupboard for holybooks, taps for ceremonial washing, and street lights. The inscriptiondeclared that he was a `hero' and a `martyr' who `. . . was murdered for thesanctification of God's Name'.51 Following the murder of Israeli PrimeMinister Yitzhak Rabin, which was widely linked to inflammatory rhetoricfrom the Israeli Right (including praise for Goldstein's actions),52 theSupreme Court ruled that the monument could be destroyed.53 The courtfound that free-speech considerations were superseded by the fact thewords 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 actsof violence calculated to cause death or injury'. While this provision, andsimilar provisions under Israeli law concerning incitement to racism hadbeen little utilized until the mid-1990s, Rabin's assassination galvanizedthe authorities to take a number of high-profile prosecutions againstindividuals associated with praising Goldstein's murders and theassassination of Rabin. Following that ruling the Knesset introduced theProhibition of Erecting Monuments in Memory of the Perpetrators ofTerror Law 1998, section 3 of which provided that `. . . a gravestone the

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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 Resistancein a Deeply Divided Society (1995).

51 See Ànger as Army Acts on Shrine' The Age, 30 December 1999 and `Rightists atGoldstein's Grave Slam Minister' Jerusalem Post, 22 March 2000.

52 Report of the Commission of Inquiry into the Murder of the Late Prime MinisterYitzhak 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 IsraeliExperience' (2003) 13 Duke J. of Comparative and International Law 155.


erection of which constitutes an offence under section 4 of the Preventionof Terror Ordinance 1948 shall be removed.'54 Following the introductionof that law, and despite protests by settlers who lay down on the grave, theIsraeli army bulldozed the shrine but left the grave intact.55

The Northern Ireland conflict has also seen the commemoration of thosekilled as a key source of political and legal controversy.56 Gravestone andcommemorative structures of Republicans, Loyalists, members of thesecurity forces, as well as civilians who died as a result of politicalviolence, have been regularly desecrated by political opponents during theconflict.57 In the most renowned legal dispute concerning the dead, in 1995the National Graves Association (NGA)58 judicially reviewed the decisionby the Northern Ireland Secretary of State to refuse to exhume and removethe remains of Tom Williams, an IRA man executed and buried in theconfines of Crumlin Road prison in 1942. A commemorative memorial atMilltown cemetery to Williams has long been prominently displayed at theRepublican plot with a grave reserved for his body.59 The NGA argued thatthe Secretary of State's refusal was unreasonable and this argument wasultimately accepted by then Lord Chief Justice Hutton.60 Williams's bodywas ultimately disinterred and removed to Milltown cemetery where Sinn

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54 The purpose according to the explanatory notes to the draft Bill was `. . . to preventincitement and encouragement of criminal acts.' See HC 7583/98, Goldstein v. OCCentral Command 53(5) p.D.317 and HC 7583/98, Bachrach v. Minister of theInterior 2000(3), Takdin Elion 3007.

55 Ìsrael 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 speakGerman to take apart Jewish graves . . . God will take his revenge on you. Godwilling, you won't make it through the year and we will have the privilege ofdancing on your blood.' See, also, A. Wetzman, À Tale of Two Cities: YitzhakRabin'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 ofVandalism' Irish News, 22 February 2001; `Monument to Dead Soldiers Damaged'Belfast Telegraph, 27 August 2002; and `Graves of Republicans Desecrated asHatred Persists Beyond Death' Irish Independent, 13 January 2004.

58 The National Graves Association is the wing of the Republican Movement chargedwith the upkeep of Republican graves and memorials which are to be found in manyCatholic graveyards around Ireland.

59 B. Anderson, Joe Cahill: A Life in the IRA (2002).60 R v. 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. 6decreed that the body of an executed person should be buried within the confines ofthe prison, he had no discretion in the matter. However Hutton LCJ found, thatprecisely because the burial within the prison was part of the sentence, the Secretaryof State did in fact have the power to exercise the Royal Prerogative of Mercy anddirected him to reconsider the case.


Fein President Gerry Adams led several thousand Republicans in an addressto commemorate the event.61

More recently, disputes concerning memorials to paramilitaries erected inpublic places have been framed within equality discourses arising as a resultof the Good Friday Agreement, and, in particular, the responsibility of localauthorities to carry out an èquality impact assessment' regarding anyerection of such monuments under section 75 of the Northern Ireland Act1998. Section 75 requires any public authority in Northern Ireland to havedue regard to the need to `promote good relations between persons ofdifferent religious belief, political opinion or racial group' in the conductingof its functions.62 In 2001, Republicans constructed a memorial to IRAmembers killed in the predominantly Catholic town of Downpatrick. Thelocal council, concerned about the legality of the construction, consulted theNorthern Ireland Equality Commission. The Commission, referring to therequirement under the Northern Ireland Act that such actions be èqualityproofed', suggested that the construction could be open to challenge undersection 75 of the 1998 Act. Section 75 requires councils to:

. . . have regard to the desirability of promoting good relations between personsof different religious beliefs, political opinion or racial group. The Councilwould need to consider whether the presence of such a monument could beperceived as marking out territory and thus inhibit the use of this park by all ofthe community. In our view [the Equality Commission] there would beparticular problems from a good relations perspective if the council were toallow such displays in its facilities'63

While the fate of the Downpatrick monument remains unresolved, what isof particular interest for current purposes is the fact that Sinn Fein, the IRA'spolitical wing (and perhaps the most vocal of the local political parties infavour of the `human rights and equality agenda')64 has somewhat reluc-tantly appeared to accept that the erection of such monuments should bemost appropriately addressed within the equality framework. During theconflict the erection of such monuments was viewed as part of the broaderRepublican `struggle', an assertion of their `right' to honour Republicandead, with little apparent heed to their impact on other sections of the

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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 TerroristMemorials, Paper 56/01, 11 June 2002. Councils meet such a requirement byconducting an èquality impact assessment' to determine the likely impact uponlocal community relations of any proposed policy initiative. A plan to construct asimilar monument in nearby Castlewellan was stopped after the council was grantedan injunction preventing the construction (see Ìnjunction Halts Erection of IRADead 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.


community.65 The traditional Republican response to criticism has been topoint to the abundance of memorials commemorating British soldiers andsecurity forces throughout Northern Ireland, including those inpredominantly Nationalist areas.66 However, in July 2002, Sinn Fein agreedto the removal of a memorial to dead IRA members which had been erectedclose to a site where two Protestant civilians had been killed while theyworked to repair a police station. In removing the memorial, Republicansmade specific reference to the need to be sensitive to the feelings of IRAvictims and Sinn Fein's commitment to the equality provisions in theAgreement.67 At the time of writing, there appears to be little evidence thatLoyalist paramilitaries are similarly inclined.

In the United States, free speech considerations concerning forms ofcommemoration of the dead have intersected with disputes concerning theseparation of church and state68 and the sensitivities concerning the flyingof confederate flags in the southern states.69 There are a range of caseswherein attempts have been made to circumnavigate the constitutionalprohibition on state endorsement of a particular religion such asChristianity (for example, through the construction of crosses in publicspaces) through the designation of such sites as war memorialscommemorating the dead.70 In a similar vein, the `Sons of Confederate

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65 J. Leonard, A Report on Memorials to the Casualties of Conflict, Northern Ireland1969 to 1997 (1997).

66 See, for example, Conor Murphy MLA, Northern Ireland Assembly Debate onErection of Unauthorised Terrorist Memorials, Paper 56/01, 11 June 2002.

67 See `Republicans Make Conciliatory Move Over IRA Memorial' Guardian, 24 July2002 and `Memorial Move By Sinn Fein' Belfast Telegraph, 29 August 2002.

68 The First Amendment to the US Constitution states: `Congress shall make no lawrespecting an establishment of religion . . .'. Since 1971 the US Supreme Court hasgenerally analysed any alleged violation of this èstablishment clause' using thethree-part test set forth in Lemon v. Kurtzman 403 US 602, 612 (1971), that anydisplayed religious symbol must (a) have a secular purpose, (b) neither advance orinhibit religion in its primary effect, and (c) not foster an excessive entanglementwith religion.

69 For a useful discussion on the backdrop to such controversy, see J. Bodnar,Remaking America: Public Memory, Commemoration and Patriotism in theTwentieth Century (1994) and J. Martinez et al. (eds.), Confederate Symbols in theContemporary South (2001).

70 For example, in 1969 the Oregon Supreme Court found that a cross erected in apublic park and maintained by the local municipal authorities in Eugene Cityviolated the Federal and Oregon constitutions because it was erected for a religiouspurpose and created the inference of official endorsement of Christianity. The localauthorities subsequently approved an amendment to the City Charter whichredesignated the cross as a war memorial, and placed a bronze plaque at the foot ofthe cross which designated it as a memorial `. . . to the veterans of all wars in whichthe United States has participated'. After a further three legal challenges, thisredesignation was ultimately held by the Ninth Circuit Court of Appeal to be inbreach of the First Amendment since, regardless of intent, such a cross on public


Veterans' (SCV) had erected a large flagpole in a graveyard in StoneMountain, Atlanta in order to fly a confederate flag. The local mayorordered that the flagpole be removed, arguing `[t]here are black folks inthis town who have relatives in that cemetery too, and I'd be damned if Iwas going to allow that flag to fly over their graves'.71 The SCVchallenged the removal, arguing that a cemetery constituted a `publicforum, designated for the public communication of ideas' wherein the rightto free speech was protected, and that their free speech rights had beeninfringed. Following the decision in Griffin v. Dept of Veteran Affairs,72

the Atlanta District court found that a cemetery did not constitute a publicforum, and that the removal of the confederate flag constituted a lawfulinterference 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 offraming disputes concerning the preservation of the memory of the deadthrough different forms of commemoration. However, the legal obliterationof a dead body can itself represent a commemorative expression. Prior toimprisonment emerging as the primary form of punishment, the body of anaccused person was itself the primary canvas upon which the lawful powerof the state or sovereign was inscribed.74 Historically, the physical andsymbolic destruction of the body after death was an important aspect of thesentence of the court. For example, in Michel Foucault's account of the fateof Damiens, the would-be regicide in 1757 France, the obliteration of thedeceased's body was almost as precisely detailed as the elaborate tortures

552

land may reasonably be perceived as governmental approval of Christianity, thusbreaching the wall of separation between church and state ± see Separation ofChurch and State Committee v. City of Eugene of Lane County, State of Oregon 93 F3d 617 (1996). See, also, R. Gonzales et al v. North Township of Lake CountyIndiana 4 F 3d 1412 (1993) and ACLU v. Rabun 698 F 2d 1098, 1110 (1983) wherethe court decided that the stated secular purpose of a monument `cannot be a sham toavoid 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 confederatedead. The court argued that it was legitimate for the Veterans' Association to regardthe confederate flag as divisive and contrary to their policy of maintaining thegraveyard as à 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 ofThing: The Decline of Physical Punishment in London 1760±1840' in Qualities ofMercy: Justice, Punishment and Discretion, ed. C. Strange (1996) 1; P.Spierenburg, `The Body and the State' in The Oxford History of the Prison: ThePractice of Punishment in Western Society, eds. N. Morris and D. Rothman (1995)49; and J. Pratt, Punishment and Civilisation: The Acceptability of Prison inModern Society (2002).


which had preceded his death.75 Similarly, in the case of Scottish heroWilliam Wallace, commemorated after a fashion through the Mel Gibsonmovie Braveheart,76 the trial, ritualistic torture, dismemberment, anddispersal of the body throughout the kingdom by Edward I was a calibratedreassertion of state power through the corpse of a political challenger.77 Insome such instances, the legal annihilation of the deceased is based upon thepragmatic political concern not to allow the remains to become a rallyingpoint for a vanquished regime.78 In others, such as the decision by the Israeliauthorities regarding the remains of Nazi war criminal Adolf Eichman thatfollowing his trial and execution, his ashes should be scattered ininternational waters `lest they defile Jewish soil', the method arguablyrepresents a desire to utilize the lawful disposal of the deceased's body as anexpression of outrage and vengeance at his or her previous actions.79

In other cases, the legal prohibition on commemoration is less directedtowards the actual remains but, rather, at an arguably more ambitious projectaimed specifically at shaping memories related to the deceased. Forexample, under Roman law, in a culture wherein public honours and statuesmarking a person's public memorial were central to familial status and,indeed, income after the death of a patriarch, the sentence of `damnation ofmemory' was the most serious sentence which could be imposed and wasaimed at destroying the reputation of a person considered a danger to society.Such a sentence entailed the destruction or confiscation of the deceased'sproperty, any statues or other idols, and personal effects, and the eradicationof the dead body in a way which prevented the family from having a properburial ± a sanction designed to obliterate their memory in this world as well

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75 M. Foucault, Discipline and Punish (1977) 3±5:Damiens the regicide was condemned `to make the amende honorable before themain 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 theenclosure in line with the scaffold, then the trunk and the rest were covered withlogs and faggots, and fire was put to the straw mixed with this wood. Inaccordance 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 executedwere retrieved, hidden, and later buried beneath a memorial on the summit of MountSanagana. The tablet on the memorial on the `graves of the seven martyrs' paystribute 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 WarAgainst the West (1971).

79 See H. Arendt, Eichmann In Jerusalem: A Report On The Banality Of Evil (rev. andenlarged edn., 1994).


as impede their progress in the afterlife by hindering the religious rituals.80

Similarly in Stalinist Russia, commemorative symbols of those killed as aresult of the many murderous purges were forbidden.81 Even personalmementos such as photographs, letters, and diaries were destroyed in thepresence of the secret police in what Kotlin has referred to as a `countercommemoration', an obliteration of the memory of those who had sinnedagainst the regime.82

Whether it is through attempts at the preservation of memory, or indeedits obliteration, law is a key vehicle through which such efforts areattempted. With regard to physical monuments, their location, design orindeed existence are often bitterly contested and the courts are often the sitewherein such conflicts are resolved. Legal discourses such as free speech,freedom of religion, prohibitions on incitement to hatred, èquality impactassessments', and so forth provide the organizing framework around whichconflicts concerning the dead coalesce. The ways in which we seek toremember our dead are part and parcel of our attempts to come to terms withdeath, and with what it symbolizes. An agreed form of commemoration isbut one key element of the broader process of seeking closure.

LAW, DEATH, AND CLOSURE

The third framework which we believe is useful in understanding theintersection between law, death, and conflict is the notion of closure. This ideahas been long associated with what is termed in the bereavement literature asthe `grief work perspective'.83 Simplifying for the sake of brevity, such aperspective suggests that grief work is the cognitive process through which theindividual deals with loss and bereavement. This process normally includesconfronting the loss, going over events before and at the time of death, focusingon memories, and working towards a detachment from the deceased.84 It

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80 See K. Mustakallio, Death and Disgrace: Capital Penalties with Post MortemSanctions in Early Roman Historiography (1994) 13. Roman Law also permitted theSenate the prerogative of voting a posthumous damnation memoriae to particularlyimmoral 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 PatrioticWar against Fascism, were commemorated ubiquitously, in a sense drowning outsuch 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, `Lossand Bereavement: Attachment Theory and Recent Controversies Concerning GriefWork and the Nature of Detachment' in Handbook of Attachment: Theory, Researchand 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.


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 ofcomprehension and instead ascribing a personal or familial significance to it,wherein some benefit or growth is achieved.86 Central to such a processhowever, is achieving some form of settlement or resolution concerning thefate, disposal and, as was argued above, commemoration of the dead body.

Where the location or indeed the fate of the dead remains in dispute, theprocess of achieving closure is seriously impeded. In many such instancesfamilies of the deceased suffer from what is referred to as `complicatedgrief',87 an inability to move along the `natural' grieving process.88 Somefamily members who have not been able to confirm that their loved ones arein fact dead have spoken of the acceptance of death as `like killing him orher'.89 In some instances a process of what Hamber and Wilson refer to asmummification may take place where the bedrooms or offices of those whosefate is undetermined remain completely untouched for years awaiting theeventual homecoming.90 Whole families or indeed particular members offamilies may become preoccupied with the missing, resulting in familialtensions and disputes.91 A host of physical and psychological symptoms mayemerge (including hypertension, restlessness, shortness of breath,exhaustion, social withdrawal, and others), all of which have been associatedwith the failure to reach closure.92

The most longstanding legal framework designed at least in part to assistfamilies reach some form of closure is the laws of war. It is a well-

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85 C. Davis and S. Nolen-Hoeskema, `Loss and Meaning: How do People Make Senseof Loss?' (2001) 44 Am. Behavioral Scientist 726.

86 See S. Tedeschi and L. Calhoun, Trauma and Transformation: Growing in theAftermath of Trauma (1994) and R. Janoff-Bulman and C. Frantz, `The Impact ofTrauma on Meaning: From Meaningless World to Meaningful Life' in TheTransformation 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) 154Am. 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, À Model of Mourning:Changes in the Schemas of Self and Other' in Essential Papers in Post TraumaticStress Disorder, ed. M. Horowitz (1999) 252.

89 J. Boehnlein, `Clinical Relevance of Grief and Mourning Among CambodianRefugees' (1987) 27 Social Science Medicine 765.

90 B. Hamber and R. Wilson, `Symbolic Closure Through Memory, Reparation andRevenge 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, ÀPainful Purgatory: Grief and the Nicaraguan Mothers of the Disappeared' (1995) 40Social Science Medicine 1597; and M. Blaauw and V. LaÈhteenmaÈki, `Denial andSilence or Acknowledgement and Disclosure' (2002) 84 International Red CrossRev. 767.


established feature of humanitarian law that dead combatants should beprotected from mutilation and pillage; that combatant armies should not buryor cremate soldiers before first seeking to remove items such as identitydisks and collating such information for the opposing combatant group; thatthe dead should be honourably interred and their graves respected andmarked; and that lists of graves should be registered to render possibleeventual identification and exhumation upon the cessation of hostilities.93

Thus the practice by American troops of cutting off the ears, fingers orindeed heads of enemy troops to display as trophies has been condemned asin breach of humanitarian law.94 It has also been suggested for example thatputting a price on an enemy's head (such as the United States governmenthas done with regard to Osama Bin Laden) may be contrary to the laws ofwar since it encourages the mutilation of enemy corpses as proof of death.95

Similarly, the refusal by the Israeli government to return the bodies ofPalestinian suicide bombers to their families for appropriate religious burialhas been described by human rights activists as contravening à fundamentalnorm of international humanitarian law'.96 Each of these provisions ispremised upon assisting the families of those killed in combat. However, aswith many provisions of humanitarian law, many of the political and ethnicconflicts of the latter part of the twentieth century have been marked by thelack of heed paid to such strictures by combatant armies.97

Perhaps better known in the legal literature concerning the intersectionbetween dead bodies and the notion of closure is the human rights workconcerning those `disappeared' by authoritarian states.98 In Latin America inparticular ± 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 ofstreet children in Brazil, a nuisance) by the regime became one of thedefining characteristics of the atrocious human rights records of such

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93 See, generally, Geneva Convention of July 6th 1906, STAT 1885 (1907); GenevaConvention for the Amelioration of the Condition of the Wounded and Sick in Armies inthe Field, 27 July 1929, 47, STAT, 2074, Art. 4; and First Geneva Convention of August12th 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, Disappearancesand Political Killings, Human Rights Crisis of the 1990s: A Manual for Action(1994).


states.99 Disappearances were not however limited to the former militarydictatorships of South America. Amnesty International documented suchpractices in over thirty countries in the 1990s and indeed the practice hascontinued into the new Millennium.100 Often the grief experienced by theloved ones of those who had been `disappeared' is compounded by thestate'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 statecreated 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 `nocorpus'. No cuerpo. No body.102

Without proof of death the grieving process is suspended and often thelocation of the body becomes a driving impulse for families who are seekingclosure.

In the 1980s the United Nations established a Working Group onEnforced or Involuntary Disappearances. The latter was followed in 1992 bythe United Nations General Assembly passing of the Declaration on theProtection of All Persons from Enforced Disappearances and in 1994 theOrganization of American States passed the Inter-American Convention onthe Forced Disappearances of Persons.103 Influential commentators havebeen critical of the impact of these instruments104 and the Working Group

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99 See, for example, W. Heinz, `Motives for Disappearances in Argentina, Chile andUruguay 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 InterestsAmong El Salvador Mothers of the Disappeared' (1995) 22 Am. Ethnologist 807; E.Stener Carlson, Remember Julia: Voices of the Disappeared (1996); A. Robben, `StateTerror in the Netherworld: Disappeance and Reburial in Argentina' in Death Squad:The Anthropology of State Terror, ed. J. Sluka (1999); and M. Aguilar, `TheDisappeared and the Mesa de Dialogo in Chile 1999±2001: Searching for those WhoNever Grow Old' (2002) 21 Bul. of Latin Am. Research 413.

100 See Human Rights Watch and Physicians for Human Rights, Unquiet Graves: TheSearch for the Disappeared in Iraqui Kurdistan (1992); Amnesty International, op.cit. (1994), n. 98; and Human Rights Watch, The `Dirty War' in Chechnya: ForcedDisappearances, 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 severaltimes) washed ashore:I am the luckiest mother in Sri Lanka, because at least I got my son's body back. Icould give Richard a decent funeral, and as hard as this sounds, at least I knowhe's really dead. There are thousands of other mothers out there who just don'tknow, who are simply sitting there and waiting (p. 198).

103 General Assembly Resolution 47/133, UNGAOR, 47th Sess., Supp. No 49, at 207and ILM, 1529 (1994).

104 See, for example, R. Brody and F. Gonzales, `Nunca MaÂs: An Analysis ofInternational Instruments on Disappearances' (1997) 19 Human Rights Q. 365.These authors were involved in drafting both instruments.


itself acknowledged in the mid 1990s that `. . . very little progress had beenmade in practice.'105 While the United Nations framework has arguablyremained of only limited value for families seeking information regardingdisappeared loved ones,106 the Inter-American Court has held that the Inter-American Convention may be interpreted to include the return of a deceasedbody to the family as a specific remedy. In the landmark case of BamacaVelasquez v. Guatemala in February 2002, the court held that thedisappearance of an individual represented a continuing violation andordered that the Guatemalan government be compelled to exhume the bodyof the deceased and return it to the victim's family to bury the body inaccordance with their traditions.107

One of the central obstacles with regard to finding the bodies of those whohave been killed and disappeared during a political conflict is a concern onthe part of the perpetrators that they may be prosecuted as a result of forensicexamination of the bodies. In the case of state violators, the latter have oftenattempted to amnesty themselves from prosecution in return for anyinformation on the fate of those who have disappeared. Indeed one of thegeneric tensions in transitional justice settings has been the often messytrade-offs between amnesty provisions, truth recovery mechanism, and localrealities of political and military power relationships.108 To circumnavigatesuch local `deals', human rights activists have long struggled to havedisappearances defined as a `crime against humanity', thus at least ensuringthat perpetrators would be subject to universal jurisdiction, unable to receiveamnesty or asylum from another country, to benefit from a statute oflimitations or to utilize the defence of superior orders.109

Similar tensions are equally applicable in the case of non-state actorswherein the return of those killed and disappeared is also often politicallylinked to specific àmnesty-like' measures designed to assist closure ratherthan achieve prosecutions. Northern Ireland is a useful example of atransitional jurisdiction which has struggled with precisely those tensions

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105 Report of the Working Group on Enforced or Involuntary Disappearances, 53, UNDoc. E/CN.4/199536 (1995).

106 F. Andreu-Guzman, `The United Nations Working Group on Enforced orInvoluntary 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 22February 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 Justicein Democratizing Societies (2001); N. Biggar (ed.), Burying the Past: Making Peaceand 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 CourtsFinally Begin to Prosecute Genocide, the ``Crime of Crimes'' ' (2003) 1 J. ofInternational Criminal Justice 39.


associated with dealing with past abuses by such non-state actors.110 Forexample, the return of the bodies of those murdered and disappeared by theIRA in the early 1970s required a de facto amnesty act passed by both theBritish and Irish Parliaments. Under the Northern Ireland (Location ofVictims' Remains Act) 1999 and the Criminal Justice (Location of VictimsRemains Act) 1999 the two governments established a Commission tofacilitate the recovery of victims' remains. Despite government protestationsto the contrary, the legislation in both jurisdictions created effectiveimmunity from prosecution by providing that no evidence gleaned by theCommission was admissible in criminal proceedings, that forensic testingcould only be carried out to facilitate identification, and that the informationcould only be passed on to other authorities for the purpose of assisting withlocating the remains.111 In introducing the Bill, the British governmentemphasized that:

. . . this Bill is designed to help those families [of the disappeared]. Its solepurpose 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 givethem a decent burial.'112

Under considerable political pressure, the IRA leadership had alreadyestablished an internal investigation.113 Once the legislation was passed, theyreturned one body themselves and pointed the authorities to a number ofadditional sites where digging began, watched over by the anxiousfamilies.114 Ultimately three more bodies from the nine acknowledged askilled and disappeared by the IRA were recovered, the most recent (that of

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110 For an overview of the relationship between law and the Northern Ireland transitionsee, for example, C. Harvey, Human Rights Equality and Democratic Renewal inNorthern Ireland (2001); C. Campbell et al., `The Frontiers of Legal Analysis:Reframing the Transition in Northern Ireland' (2003) 66 Modern Law Rev. 317; andC. 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 CriminalJustice (Location of Victims' Remains) Act 1999 s. 5. For a critical commentary, seeA. 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 OÂ glaigh na hEÂ ireann [IRA] revealed the outcome

of an 18-month investigation to locate the graves of nine people executed andburied by the IRA from 1972 to 1981. In initiating that investigation our intentionwas to do all within our power to redress injustices for which we accept fullresponsibility and to alleviate the suffering of families, particularly those familieswho 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 OverBodies' Irish News, 29 May 1999; `Families of Terror Victims Await Call: UtterAgony as IRA Begins to Return Bodies After 20 years' Guardian, 29 May 1999; and`War Crimes of the IRA' Guardian, 2 June 1999.


Mrs Jean McConville) by accident in August 2003 after a number ofunsuccessful digs at the site indicated by Republicans had failed to recoverher body.115 The political and emotional significance of this issue ofrecovering the dead and affording them a respectful burial should not beunderestimated. The Republican Movement is notoriously careful with thelanguage utilized by its spokespersons to describe conflict-related events.Despite numerous examples of lethal attacks on civilians during the NorthernIreland troubles, the issue of the disappeared is, to our knowledge, the onlyaction perpetrated by the IRA during the conflict that has beenacknowledged by Republican leaders as à human rights abuse'.116

The spectacle of diggers removing hundreds of tons of earth from remoteparts of Ireland, surrounded by media and anxious families, was a powerfulsymbol of the attempts at a transition from a violent past. Such sights havebecome all too familiar in other jurisdictions. The forensic exhumation ofburial sites and mass graves in the wake of conflicts such as Cambodia,Rwanda, East Timor, and Yugoslavia have become an important element oftruth finding work.117 While the initial guidance from the UN focusedprimarily on the identification of remains as part of the investigationprocess,118 as such work has become more common, sophisticated protocolshave developed with regard to balancing the evidential requirements ofprosecution (where that is relevant) and the sensitivities involved in meetingthe needs of the deceased's family.119 Given that family members may retainfaint hopes that their loved one is still alive (often falsely encouraged by theperpetrators), much greater attention is paid to the psychological preparation offamilies for the ordeal of exhumation and examination. In the examples of bestpractice, families are increasingly facilitated in attending the exhumations sitesif they wish, training materials such as videos, brochures, and related materialsproviding information on the process are produced, and religious and spiritualleaders consulted regarding customs on the treatment of the dead.120 In a

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115 `Family Ends Long Wait to Bury Mother Murdered by the IRA' Guardian, 3November 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. Stoverand M. Ryan, `Breaking with the Dead' (2001) 35 Historical Archaeology 7; L.Fondebrider, `Reflections on the Scientific Documentation of Human RightsViolations' (2002) 84 International Red Cross Rev. 848, 885-91; and H. Brunborg etal., Àccounting for Genocide: How Many Were Killed in Srebrenica?' (2003) 19European 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 Workto 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 AntemortemDatabase Project for the Survivors of Srebenica' (2000) 5 Health and Human Rights69.


similar fashion to lawyers, forensic scientists and archaeologists have becomeincreasingly aware that their technical and scientific work cannot be divorcedfrom the broader significance of the dead as tangible symbols of closure. As theCommission for Historical Clarification in Guatemala argued, `. . . theexhumation of the remains of the victims . . . is itself an act of justice andreparation 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 deadancestors has been at the core of the `nation-building' project in the Balkansand beyond as nations re-emerged with the collapse of the Soviet Union.122

Politicized communities, organizations, and even states will almostinevitably incorporate their dead into their own political culture and therebyuse them to reassert key themes of political ideology or political action.123 Insuch contexts, death becomes `de-individualized'; it is reframed within aconstructed communal understanding of its significance. For example,political funerals during the Apartheid era in South Africa became importantsites of organized resistance,124 creating in the process a category of`political widowhood', where the widow became the custodian of thecollective memory of the fallen hero.125 Similarly, the mothers of the Plazade Mayo in Argentina became `. . . a metaphor for the thousands of LatinAmericans 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 determiningproprietal interests based on familial or estate based claims and speak to muchlarger themes. They draw upon broad communal notions of cultural and moral

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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 removedfrom ten caves in Herzegovina following nine months of exhumations (this wasaccording to Radio Belgrade). The line of coffins stretched for one and a halfkilometres; the liturgy was sung by the patriarchy of the Serbian Orthodox churchwith speeches from leading nationalist intellectuals and politicians . . . Such massevents represented the state having `collectivised' and nationalised the deadbodies hitherto mourned by families as their individual dead. They were part ofthe 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.


ownership. They encompass free speech, freedom of religion, incitement tohatred, equality and human rights provisions, and a range of other discoursesconcerning the legal regulation of forms of commemoration. Finally, they chartthe complex relationship between law and emotional closure for bereavedfamilies 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 historicalmeaning, to shape how events or individuals are to remembered. This`memorializing' capacity of law has been described as one of its mostimportant 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 ofusing law to `master the past'.128 In such instances, law is a centralcomponent in what Habermas has referred to as `remembrance . . . through areflexive, scrutinizing attitude towards one's own identity-formingtraditions'.129 Whether it is through the public or performative aspects oflegal hearings as a site for national catharsis,130 or law's emphasis uponrecording a definitive account as to `what actually happened',131 lawbecomes a site of memory, a process of commemoration and a tangiblesymbol of a deeper acknowledgement of unpalatable historical truths.132 Inthe final analysis, legal disputes concerning the dead are an attempt to offerthe living what Moeller has referred to as a ùsable past',133 a mechanismthrough which often violent histories may be accommodated and nationscollectively `re'-imagined.134

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127 See, generally, M. Osiel, Mass Atrocity, Collective Memory and the Law (1999) andR. Teitel, Transitional Justice (2000).

128 Osiel, id., p. 192.129 J. Habermas, Òn 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 ofCritical Reading' (1999) 23 Legal Studies Forum 355.

133 R. Moeller, `War Stories: The Search for a Usable Past in the Federal Republic ofGermany' (1996) 101 Am. Historical Rev. 1008.

134 See B. Anderson, Imagined Communities (1993).


Documents

The Dead, the Law, and the Politics of the Past