This post is part of a series on politics in the face of death. For an introduction and links to the other posts, please see here.
I want to address, here, the dead body itself. Not just any dead body, but the mass dead victims of politically animated atrocity, some of which, sometimes, become the subject of large-scale justice processes, such as those in Argentina, Rwanda and Bosnia. These dead are not only the objects of humanitarian concern and legal action, but also the site of social and political struggle, the originators of new forms of ‘deathwork’, and the potential subjects—post-mortem—of new human rights. Their significance is (or rather has become) deep, complex and broad. I will attend to three things here in relation to these dead: the form of politics they generate; the type of deathwork that has accompanied the politics of the dead; and the significance of these processes to thinking about the meaning of human rights in relation to the dead. Specifically, I will ask whether it is possible, now, to claim that the dead have human rights.
What are the political contexts and histories within which the mass dead have risen to prominence? Typically, political regimes have called upon the dead in order to account for atrocities perpetrated by predecessor regimes, and in the process, underscore their own right to rule. There are three types of politics at issue here. The first type covers transitions from authoritarian to more democratic regimes, such as during the so-called ‘wave of democratization’ in Latin America, to which the cases of Argentina (1983) and Chile (1991) were central. These political transitions were marked by the prominence of human rights discourses, political activism by families of the dead and disappeared, and the invention of a new institution—the ‘truth commission’—set up for the express purpose of investigating state crimes or gross violations of human rights (depending on which lexicon—criminological or legal—you wish to use) perpetrated by previous regimes. Yet, it was another geo-political context, South Africa’s transition from apartheid (1994), that became the locus classicus of this type of transitional politics. There, a reflection on past violence became absolutely central to the re-narration of the post-apartheid nation.
The second type of politics covers transitions from domestic conflict. Key examples from the early-mid 1990s include El Salvador, the former Yugoslavia, Guatemala, and, arguably Rwanda, insofar as its genocide was the latest stage in a political conflict that had been fought openly since the 1950s, although was rooted in colonial rule. In all of these cases, criminal tribunals or truth commissions were set up to investigate mass crimes, and the dead made to attest to atrocities.
In a third context, already established democracies have mobilised the mass dead to reflect on more distant social and political harm. The key example here is that of Spain, which has spent the last fifteen years reflecting on atrocities perpetrated during its 1936-39 Civil War. A good part of that effort has involved the exhumation of some of its two thousand clandestine war graves. I should note that there is an argument for lodging Spain within the first set of cases—transitions to democracy—if we deem its transition in the 1970s ‘incomplete’ without a full accounting of the atrocities. At the same time, I think that argument is an effect of the way in which the transitional justice paradigm—with its emphasis on truth and justice—has accrued ideological power, and as a result has been used, retrospectively, to re-interpret Spain’s transition. That is to say, Spain had been considered a largely successful transition to democracy (it had animated a politics of ‘forgetting’ the Civil War) until the transitional justice industry installed its particular logics—truth, justice, reconciliation—into the spaces and practices of political transition, and made memory rather than forgetting de rigueur.
Within these broad political histories, the mass dead have emerged as a new and important political constituency. They are now regularly called upon by the state and its institutions to testify to political crimes and set the historical record straight by providing ‘a new, objective perspective on some of the most notorious… events of the 20th century’. As Verdery puts it ‘if one wants to revise the past … it’s comforting to have actual bones to hand’.
A distinctive form of deathwork has accompanied, perhaps even ensured, the political rise of the dead. By ‘deathwork’, I mean specialised or expert work that follows death. In these political contexts, the distinctive type of deathwork carried out by forensic anthropologists has become prominent. Forensic anthropologists recover and analyse skeletonized human remains in order, where possible, to ascertain two things: a) the identity of the remains, by estimating biological sex, age at death, height, pathologies, and kinship and; b) the cause of death, by analysing signs of trauma to the skeleton, where these are present.
These objectives speak to two key questions in the context of human rights investigations: who are the dead and how were they killed? In answering these questions, the forensic anthropologist assembles an ‘osteobiography’ of the dead person which speaks to their identity and to the crime that brought about his or her death. As such, forensic anthropologists can be seen as ‘ventriloquist(s) for the object world’ insofar as they make human remains speak, or testify, to violent events.
Whilst others mark the inauguration of this kind of deathwork at the point of Argentina’s exhumations of its disappeared in the mid-1980s, I would instead lodge it within much longer histories, traditions and practices of deathwork that involve various types of experts and expertise in the registration of death, establishing the cause of death, handling and preparing the dead body, burying, cremating and carrying out funeral rites. It operates within a long history of bureaucratic management of the dead that is as much bound up with the development of the modern state as it is with religious rituals and the histories of autopsy, pathology and, indeed, human rights and humanitarianism.
In common with all deathwork, this particular type is involved in social order insofar as it entails material and symbolic processes to ‘domain’ the dead, that is, to restore them to their designated place within presiding social, political and moral orders. The importance of domaining is illustrated graphically by Kristeva’s essay on the abject, in which she reflects on the sight of a dead body in the morgue. She writes: ‘In that compelling, raw, insolent thing in the morgue’s full sunlight, in that thing that no longer matches and therefore no longer signifies anything, I behold the breaking down of a world that has erased its borders’. She continues: ‘The corpse, seen without God and outside of science, is the utmost of abjection. It is death infecting life’. This chimes with Mary Douglas’s work on pollution and taboo, which helps us reflect on the particular problem of the unidentified and unburied dead as, in her celebrated phrase, ‘matter out of place’. Of course, Kristeva’s corpse is actually in place (and this is where Kristeva has got it wrong, if I am allowed to say that). It is in the morgue—where science, custom and ritual are also present—an ordained transitional space within which the dead are managed on their way to autopsy, identification, cremation or burial.
That said, I want to pick up on a few themes that Kristeva raises in relation to domaining the dead. Forensic deathwork attempts to recover the dead from a state of abjection in three ways. First, by scientifically establishing identity, forensics restores personhood to ‘the insolent thing’. It matches the dead body with the person it was in life and in so doing, allows the dead person to be domained back within the family, and re-establishes kinship. Second, it domains the dead within law. Forensic anthropologists act as expert witnesses in court and their presentation of evidence plays a role in what Johns has called the ‘sensory economy of law’, which seeks to translate horror, disgust, shock and trauma into justice. In so doing, it plays a part in the attempt to install the boundary between violence and justice. And third, forensic deathwork domains the dead back within a social and political order. It works on the bodies associated with important historical events, yoking the individual body to a new politico-historical narrative to which the dead body is made to speak.
Rights after Death
A crucial question arises out of this particular collision of politics and deathwork. Is it possible, now, to claim that the dead have human rights? Immediate and obvious objections arise. It is clearly nonsense to suggest that the dead can be fully and comprehensively invested with human rights. Most human rights make no sense in death. And in addition, the dead cannot be rights claimers and neither can they bear responsibilities. But, I would argue, they can be rights holders insofar as the living behave as if they have obligations towards the dead, treat them as if they have rights, and practically confer rights upon them. So, in order to establish whether the dead have rights, we have to look at the histories, protocols and practices that already confer rights on the dead. In this spirit, I would begin by arguing that the dead were central to two of the big moral projects that have marked the 20th century: humanitarianism and human rights. They appear at the instantiation of modern humanitarianism, which is marked by Dunant’s commentary on mass death and suffering at the Battle of Solferino in 1859, which in turn instigated the Red Cross. I would also argue that the 1948 Universal Declaration of Human Rights (UDHR) was animated by the Holocaust’s six million dead. It seemed to ask for what did they die? On this account, the UDHR might be seen as an expression of what we owe the dead, or as a promise made by the living to the dead.
Legal companions to and expressions of these movements include the Geneva Conventions and International Humanitarian Law (IHL), which contain a series of articles that stipulate the rights of the dead, specifically the rights to identification, return to families and to proper burial. They emphasise time and again the principles of ‘respect for’ and the right to ‘dignity’ of the dead. In addition, protocols governing forensic recovery and identification of the dead, the treatment of graves, exhumation and autopsy all emphasise the need to treat the dead with dignity, a recurring principle echoing that in law. Forensic practice, particularly that of identification of the dead body scientifically ‘reunites’ the dead body with the identity of the person in life, restoring personhood after death. In cases where the dead have been radically dehumanised through, for example, dismemberment (or ‘despoiling’ in IHL), forensic identification is also a practice of re-humanisation after death by: reassembling the person physically (for example, by bringing together disarticulated body parts); reuniting the dead body with its identity in life; and by restoring family and community ties. These are, arguably, practices through which dignity is restored to the dead body.
Bhat makes these practices and principles concord with human rights? The principle of ‘dignity’, which underpins, shapes and dominates the protocols and practices governing humanitarian treatment of the dead, is of particular interest insofar as it is absolutely central to the idea of ‘the human’ that is elaborated in the UDHR. If we can single out one thing that makes us human in that document, dignity is it. I would argue that within these histories of humanitarianism and human rights, and their application to the dead, dignity has come to perform as a ‘residual’ right. Here, ‘residual’ refers to two things: first, to the dead body as what is left over, or what remains of the human after death; and second, to what remains of human rights after death. If anything does remain of rights after death, it is dignity, insofar as it is already established in IHL and forensic protocol and practice as a post-mortem right.
Lest I be mistaken, this is not an argument for the extension of human rights. My intention is, albeit briefly here, to demonstrate that this extension already, implicitly, exists. This is in no small part due to the importance of the mass dead to public life and the new death practices that have chaperoned that prominence since the latter part of the twentieth century. The extension of human rights to the dead is implied in those entwined phenomena. This, I would argue, presents radical implications for the thought and practice of rights itself insofar as it challenges, fundamentally, the human subject of human rights.
 M Mamdani, When Victims Become Killers: Colonialism, Nativism and the Genocide in Rwanda (Princeton: Princeton University Press, 2001).
 D W Steadman and W Haglund “The Scope of Anthropological Contributions to Human Rights Investigations,” Journal of Forensic Science 50, no. 1 (2005): 24.
 K Verdery, The Political Lives of Dead Bodies: Reburial and Postsocialist Change (New York: Columbia University Press, 1999), 113.
 D Haraway, Modest Witness@Second_Millennium. FemaleMan©Meets Onco_Mouse™ (London: Routledge, 1997), 24.
 I am currently in the process of writing this history with the generous help of a Wellcome Trust grant.
 J Kristeva Powers of Horror: An Essay on Abjection (New York: Columbia University Press, 1982).
 Ibid, 4
 M Douglas, Purity and Danger: An Analysis of the Concepts of Pollution and Taboo (London: Routledge,  2002).
 F Johns, “Data, Detection and the Redistribution of the Sensible in International Law,” American Journal of International Law 111 (2017): 57-103.
 For a longer and more substantially evidenced elaboration of this claim see Claire Moon, “What Remains? Human Rights after Death,” in Ethical Challenges in the Analysis of Human Remains, ed. Kirsty Squires, David Errickson and Nicholas Márquez-Grant (New York: Springer, forthcoming 2018).
 H Dunant, A Memory of Solferino (Geneva: International Committee of the Red Cross,  1959).
 See, for example, International Committee of the Red Cross, Customary International Humanitarian Law: Volume I Rules (Cambridge: Cambridge University Press, 2005), Rules 112–17.
 See the Minnesota Protocol on the Investigation of Potentially Unlawful Death (Geneva: United Nations, 2016).