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Why No Exhumation For ‘Haditha Victims’?

From San Diego’s North County Times:

Lack of autopsies in Haditha case presents challenges


Wednesday, June 21, 2006

CAMP PENDLETON —- If investigators can’t examine the bodies of 24 unarmed civilians allegedly killed by Camp Pendleton Marines in Haditha in November, building a case against the accused could be difficult, according to two military law authorities.

Families of all the victims have declined U.S. and Iraqi requests to exhume the bodies for autopsy, according to news reports. In most cases, exhumation is prohibited under Islamic law.

"You can prove murder without a body, but it’s much more difficult," Gary Solis, a 26-year Marine Corps veteran and former judge advocate, said in a Monday telephone interview.

No one has been charged in the case, which centers on allegations that a dozen Marines from the Pendleton-based 3rd Battalion, 1st Marine Regiment’s Kilo Company killed the civilians, including women and children, after a roadside bomb killed a young Marine in their convoy.

Autopsies could show whether the victims were shot at close range, execution-style, as some survivors have alleged.

Earlier this month, Marine Corps Commandant Michael Hagee said there is a set of photographs taken by a Marine intelligence team that examined the scene of the killings in Haditha. News reports have said the photos show that civilians in at least two houses were shot in the head and torso at close range.

A Washington attorney representing one of the men under investigation said last week that those photos would not necessarily prove anything. Attorney Neil Puckett said his client, Staff Sgt. Frank Wuterich, told him the Marines invaded two homes after taking fire from one of the houses. Wuterich was the top-ranking enlisted man in Haditha that day.

Puckett said that after throwing grenades into the houses, Marines fired their weapons as they entered the door.

"Imagine a room full of smoke (from the grenades), people might be at various distances, as close as inches," he said.

For the defense, obtaining autopsy reports could be especially important, said Solis, who now teaches the laws of war at Georgetown University Law Center.

Defense attorneys "may want the bodies to back up their defense of random firing," said Solis, who is not representing anyone in the case.

After the killings, Haditha lawyer Khaled Salem Rasayef said he lost several relatives in the alleged massacre.

In an interview with the Associated Press earlier this month, Rasayef said he and his family and other victims’ families have refused requests to exhume the bodies for autopsies.

"No way we can ever agree to that," Rasayef said.

Under Islamic teaching, exhuming bodies is generally prohibited. It is allowed on a case-by-case basis, sometimes after a fatwa, or edict, from a senior cleric allowing it to proceed.

However, investigators were able to obtain family permission for exhumation of the victim’s body in an April 26 case involving another group of Camp Pendleton Marines.

Early this month, the body of the Iraqi man allegedly kidnapped from his home and killed was exhumed and taken to Dover Air Force Base in Delaware for a forensic examination and autopsy.

The men in that case are from the 3rd Marine Battalion, 5th Marine Regiment and are in a Camp Pendleton brig. The investigation into that case continues.

In the Haditha case, photos could be used in a trial, but only autopsy results would provide solid proof of the cause of death, Solis said.

"Photos won’t do," he said. "How are you going to prove the person is dead without a body —- a coroner’s report shows a person is dead and how the person was killed. Otherwise you have to prove (things) based on statements of the survivors or the Marines themselves."

However, the photographs could prove incriminating, if they show that several of the people were shot at point-blank range, he said.

"If you have three of the bodies with holes between the eyes, that is evidence that this was not a random shooting," Solis said. "Random victims are not shot between the eyes."

Even if investigators are able to convince the families to allow exhumations, so much time has elapsed that deterioration of the bodies would make a medical examiner’s work much more difficult, the head of the National Institute of Military Justice said Friday.

"You have to establish that the killings were unlawful and without any evidence of the nature or cause of death, it’s going to be a very high hurdle for the prosecution to overcome," institute Executive Director Kathleen Duignan said. The nonprofit group works to improve public understanding of the military justice system and is mostly composed of former military attorneys.

"Photos will be a piece of evidence, but without having autopsy results to link to the photos, it will make it more difficult to prove," Duignan said.

Despite those obstacles, "circumstantial evidence can be quite convincing," she said. "They may be able to obtain witness testimony as well as other physical evidence at the scene."

It sure looks like this prohibition is only invoked when the relatives don’t want the facts to come out.

There have certainly been plenty of bodies exhumed in Iraq over the last few years:

The Coalition Provisional Authority in cooperation with the Iraqi Human Rights Ministry even have an ongoing program to document Saddam’s atrocities, which counts on heavy participation from local Iraqis:

Training and Iraqi Involvement

To successfully implement the mass graves strategy and, more generally, arrive at an accounting of the victims of the regime, Iraqi involvement is necessary. Iraqis from all regions have expressed their desire to participate in Local Iraqis examining remain in order to show progress as quickly as possible. Accordingly, programs are under way to train Iraqis in community-led exhumations, with a focus on humanitarian identification of the missing. This will enable Iraqis to conduct and participate in exhumations of those mass graves not selected for full forensic exhumation by international teams.

But note this from the Reuters article:

Even if investigators are able to convince the families to allow exhumations, so much time has elapsed that deterioration of the bodies would make a medical examiner’s work much more difficult, the head of the National Institute of Military Justice said Friday.

Maybe this helps account for the long delay in reporting the massacre. And the families’ ongoing fight against having the bodies dug up and examined.

Maybe they aren’t interested in the truth.


As for the religious proscriptions, here is what the Islamic scholars at Al-Islam.org have to say:

Rules About Burial of the Dead Body

650.  Digging up the grave is allowed in the following cases :

* When the dead body has been buried in an usurped land and the owner of the land is not willing to let it remain there.
* When the Kafan of the dead body or any other thing buried with it had been usurped and the owner of the thing in question is not willing to let it remain in the grave. Similarly, if anything belonging to the heirs has been buried along with the deceased and the heirs are not willing to let it remain in the grave. However, if the dead person had made a will that a certain supplication or the holy Qur’an or a ring be buried along with his dead body, and if that will is valid, then the grave cannot be opened up to bring those articles out. There are certain situations when the exhuming is not permitted even if the land, the Kafan or the articles buried with the corpse are Ghasbi. But there is no room for details here.
* When opening the grave does not amount to disrespect of the dead person, and it transpires that he was buried without Ghusl or Kafan, or the Ghusl was void, or he was not given Kafan according to religious rules, or was not laid in the grave facing the Qibla.
* When it is necessary to inspect the body of the dead person to establish a right which is more important than exhumation.
* When the dead body of a Muslim has been buried at a place which is against sanctity, like, when it has been buried in the graveyard of non-Muslim or at a place of garbage.
* When the grave is opened up for a legal purpose which is more important than exhumation. For example, when it is proposed to take out a living child from the womb of a buried woman.
* When it is feared that a wild beast would tear up the corpse or it will be carried away by flood or exhumed by the enemy.
* When the deceased has willed that his body be transferred to sacred places before burial, and if it was intentionally or forgetfully buried elsewhere, then the body can be exhumed, provided that doing so does not result in any disrespect to the deceased.

I’d say "it is necessary to inspect the bod[ies] of the dead person[s] to establish a right which is more important than exhumation" in this case.

It could be a matter of life and death.

This article was posted by Steve on Wednesday, June 21st, 2006. Comments are currently closed.

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