Academic Commentary to The Bournemouth Protocol on Mass Grave Protection and Investigation

Academic Commentary to The Bournemouth Protocol on

Mass Grave Protection and Investigation

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© 2021 Melanie Klinkner and Ellie Smith All rights reserved.

ISBN: 978-1-85899-323-2 Cover image © 2

Prolegomenon Mass graves are a global phenomenon. Often associated with conflict and gross human rights violations, they are sites of tremendous human cruelty and suffering.

The impact of mass graves and what they signify for the surviving families and communities cannot be underestimated and may differ from place to place, individual to individual, and community to community.

However, the need to know the fate and whereabouts of loved ones and to have mortal remains returned for dignified commemoration is universal. It is from this survivor perspective of needing truth and securing avenues for justice that the Protocol wishes to contribute to the achievement of truth and justice goals. It finds anchorage in an international legal framework, brought together in the Protocol to inform and guide practice in relation to mass graves and the dignified, respectful, indiscriminate and lawful handling of human remains.

@GraveProtection

This Academic Commentary to the Protocol reflects on the underpinnings, debates and reasoning that led to the various provisions contained in the Protocol. It also offers insights into the processes of creating the Protocol; a process that had to be transparent, valid and verifiable.

For all the efforts that have gone into the development of a consensus-based, victim-aware, legally-informed and scientifically-robust Protocol, there are inevitably areas of tension, as well as lines of inclusion and exclusion. The point of the Academic Commentary is to acknowledge and elaborate on these aspects.

massgraveprotection@bournemouth.ac.uk

www.bournemouth.ac.uk/mass-grave-protection

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Contents Methodology and process.............................................................................................................3 Scope....................................................................................................................................................5 Definitions..........................................................................................................................................6 The legal basis..................................................................................................................................9 Who are the legitimate practitioners?.....................................................................................11 Overarching Operating Principles.............................................................................................12 A. Discovery and safe reporting..................................................................................................13 B. Protection......................................................................................................................................14 C. Investigation.................................................................................................................................15 D. Identification................................................................................................................................16 E. Return of human remains.........................................................................................................17 F. Justice..............................................................................................................................................17 G. Commemoration ........................................................................................................................18 Epilogue: the cover and the future............................................................................................19 Bibliography......................................................................................................................................20

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Methodology and process The research process to develop the Protocol was motivated by the overarching research question: How can mass graves be protected to safeguard truth and justice for survivors? Both notions of protection and safeguarding point to core practice involving a variety of stakeholders, thus warranting a methodological approach that was multi-disciplinary, inclusive, international and collaborative to facilitate the process of inquiry conducted by and for those working in the field for the benefit of the victims’ families.

To facilitate the development and content of the Protocol, the research design ensured that the experience and input of invited expert-participants would be instrumental in shaping internationally relevant and applicable standards.

Collaboration with experts included forensic experts, investigators, judges, prosecutors, security personnel/ police, civil society representatives and academics, reflecting both domestic and international experiences of mass grave protection and investigation, expertise in human rights, humanitarian and/or criminal law, as well as geographic diversity.

The selection criteria were therefore as follows: • Geographical Representation: to reflect different world regions and cultures in which mass graves following gross human rights violations have occurred.

• Disciplinary Expertise: to bring together leading experts from the fields of forensic sciences, criminal investigations, international law, transitional justice and securitisation studies.

• Practice/Professional Expertise: to solicit diverse views from those affected, notably survivor groups, as well as NGOs and IOs mandated to work with human rights violations resulting in mass graves and representing victims’ interests.

Expert input was sought through the conduct of two consultative roundtable meetings1, and drafts of the Protocol were shared at various stages of their

development for further comment. After the first roundtable event and refining of the draft in light of the expert-input, additional feedback and advice was sought via an external consultation process.2 The basis for the collaborative exchange consisted of a briefing document, which canvassed legally-reasoned guidelines following the review of a great number of legal provisions and handbooks, best practices, guidelines, guiding principles and legal principles to ensure nonrepetition of existing materials and appropriate focus.3 Through this careful review of existing materials, a chronological approach emerged whereby the Protocol would reflect the various stages or phases that mass grave protection and investigation would require to fulfil truth seeking and the pursuit of justice (in a broad sense).

Further, each of the sections created started with as clear a statement of the law as possible to outline the rights of victims and societies in order to to map them against corresponding State duties. Once the normative basis was set out for each section the practical aspects of how to implement those norms are spelled out.

A note on the independence of the project: Funded by the United Kingdom’s Arts & Humanities Research Council and with project partner the International Commission on Missing Persons (ICMP) on board, the independence of the project lies in its academic anchorage. The central purpose of this project was to examine, from an interdisciplinary perspective, theory and practice relating to mass grave protection to produce coherent guidelines and an accompanying academic commentary. It enquires how to progress a real-live, global problem based on careful examination of existing theories, practices and disciplinary paradigms. It does not endorse an activist stance, whether that be human rights activism, advocacy or ‘forensic humanitarianism’, nor does it develop a solely academic inquiry which could lack effective impact. That said, the project was predicated on great confidence in the theoretical contribution practitioners would make and emphatically have made.

The first roundtable was held in-person on 23-24 October 2019 in Bournemouth; the second one, due to the outbreak of the Covid-19 pandemic, was held virtually on 9-10 September 2020.

2 A total of 45 experts were invited to provide comments on a confidential basis.

3 A sample of the materials reviewed now feature in Appendix A of the Protocol. Importantly, the Protocol neither duplicates nor replaces such existing documents on principles and good practice. Additional information on the Protocol and its translations can be found here: www.bournemouth.ac.uk/ research/projects/mass-grave-protection-truth-justice.

4 A guideline (or set of guidelines) is understood to offer principles and criteria to guide and direct practice based on evidence from the literature and experts.

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Why a ‘Protocol’?

For much of the project’s lifespan, reference was made to ‘Guidelines’4 as a descriptor for the project endeavour.

Other options commonly used to describe documents of a similar nature (though with differing degrees of prescriptiveness for its users) are: • principles; • guiding principles; • protocols; • guidelines; • handbooks; • standards; • good governance.

Some such descriptors are suggestive of ‘best practice’, an approach which a number of expert participants cautioned against, for fear of creating inflexible rules that could hamper the admissibility of evidence or weaken aspects of a legal case when it came to court. Others are grounded in or derived from law, make reference to scientific standards or speak to general quality requirements, including on compassion, respect, dignity and honesty. For the purpose of this project and to ensure significance at a policy level whilst avoiding rigidity in stipulations and processes that could be used against reasonable deviation, the descriptor of ‘considerations for good practice’ attracted some approval; though in the end, and with reference

to the inspirational Minnesota Protocol and clear affiliation of the project to Bournemouth as a locality, ‘The Bournemouth Protocol on Mass Grave Investigation and Protection’ was agreed.

Protocols are akin to a written plan outlining specific procedure to be followed, suggesting more detail than contained in a guideline. To ensure the relevant flexibility and context specificities of every mass grave, the Protocol includes an important proviso: ‘the Protocol provides specific considerations that are intended to support and inform practitioners as they engage with an investigative process in their various capacities, and at all stages. To this end, it should be noted that the considerations contained in this Protocol may not apply in their totality to each investigation. Whilst the Protocol is designed to assist on a universal basis, determination of the applicability of specific aspects of the Protocol should be made by the practitioner on a case-bycase basis.

That said, at a minimum level, and subject to means, the investigative and protection standards applied to any situation should be sufficient to fulfil both truth and justice goals, i.e. they should be able to stand up to authoritative scrutiny.’5

A guideline (or set of guidelines) is understood to offer principles and criteria to guide and direct practice based on evidence from the literature and experts.

5 Klinkner, M. and Smith, E., The Bournemouth Protocol on Mass Grave Protection and Investigation, Bournemouth University (2020), at 4.

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Scope Mass graves are an all-too-frequent legacy of conflict and gross human rights violations. For the survivors, the need to know the fate and whereabouts of loved ones, and to receive mortal remains for burial and dignified commemoration, can be overwhelming and enduring.

At the same time, mass graves contain evidence that is essential to the effective realisation of truth, justice and perpetrator accountability for survivor populations. An effective regime for the protection, maintenance and investigation of mass graves is therefore vital. While, however, there were a number of best practice approaches in operation amongst various actors in the field, no universal, shared or common standards existed. The Protocol fills that gap by providing international standards on the subject.

Mass graves can arise for a number of reasons, including through natural and man-made disaster. Victims in mass graves can be men, women or children. They can be civilians and armed combatants from either side of a conflict. All mass graves will have a multiplicity of claims and are deserving of a comprehensive human rights framework for their protection.6 But the contextual remit for the Protocol is limited to mass graves which arise in the context of gross human rights abuses and conflict, both internal and international. This creates two blind spots for the Protocol: mass graves as a result of migration may not be included, unless they form part of enforced disappearances, nor are mass graves as a result of disasters explicitly included, unless the burial method was illegally performed (see definition infra). This limitation was brokered through considerable and considered debate with experts.

In the event of disasters, the practice of mass burial may be appropriate, so long as it is conducted as a ‘methodical, multistage, multidisciplinary procedure which should be performed cautiously by skilled and pre-trained personnel.’7 As far as mass graves arising out of migration are concerned, their governance is often complicated by the sea as a migratory route. Whilst stretches of water like the Mediterranean Sea or the Gulf of Paria and Boca del Serpiente, separating Trinidad and Tobago from Venezuela and the South American continent, are famous for migrant deaths and have been called mass graves,

they will invoke additional spheres of law (migration law, refugee law and the law of the seas). Therefore, the sea of hidden graves and the land of open graves8 (as the Sonoran desert of Arizona has been called), while equally deserving of dignified treatment and protection through a comprehensive, non-discriminatory human rights framework, are not given the full legal attention in this Protocol they deserve. That said, whilst the contexts and legal spheres may be different to those contained in the Protocol, the protection and investigative standards are still relevant to the extent that there is clear consensus among the practitioners: ‘[t]he quality of investigation and due process guarantees remain the same.’9 Mass graves may arise for differing reasons, and may exist as a result of: 1. body disposal of individuals who were subjected to mass killing, but who were then buried properly; 2. disposal of victims of mass killings who were buried improperly; 3. disposal of the human remains of civilian casualties and soldiers killed in combat, where their burial was improper; 4. improper circumstances surrounding both the death and the burial method.10 Protection and investigation processes, if and where initiated, ought to recognise that: 1. the processes of mass grave investigations take a long time; 2. associated justice initiatives also tend to be slow and delayed, potentially by years if not decades; 3. identification of (all) individuals may not be possible; 4. they exceed the usual local investigative, forensic, victim liaison and judicial capacities and are therefore resource intensive, expensive and require additional personnel and infrastructure investment for evidence handling, data management, coordination, communication, etc.11 Expert participants reiterated the need for such a realistic approach, noting in particular that the expectations of families and communities would need to be effectively managed.

E.g. UNGA, Report of the Special Rapporteur on ‘Human rights standards and possible steps towards the respectful and lawful handling of mass graves’ (12 October 2020) UN Doc A/75/47919.

7 Perera, C. and Briggs, C., ‘Guidelines for the effective conduct of mass burials following mass disasters: post-Asian Tsunami disaster experience in retrospect’ (2008) 4 Forensic Science Medicine and Pathology 1 at 8.

8 de Léon J., The Land of Open Graves. Living and Dying on the Migrant Trail (University of California Press 2015).

9 Tuller, H. and Salado Puerto, M., ‘Large-scale forensic investigations into the missing: Challenges and considerations’ (2017) 279 Forensic Science International 219, at 225.

10 UNSC, ‘Final Report of the United Nations Commission of Experts established pursuant to Security Council Resolution 780 (1992) Annex X Mass graves’ (28 December 1994) UN Doc S/1994/674/Add/2 (Vol.V), 4.

11 Confer with Schmitt and Mazoori’s consideration in ‘Jurisdiction, Privacy and Ownership: DNA Technology and Field Dynamics in Conflict-Related Mass Fatalities’ (2017) 11(1) Genocide Studies and Prevention: An International Journal, 55 at 57.

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Definitions To clearly delineate the scope of the Protocol, a set of definitions had to be agreed; definitions, that were flexible and yet clear enough for comprehensive standard setting in light of the applicable law, socio-political, cultural and religious variety and robust scientific practice. The definition of mass grave in the Protocol therefore reads: The term mass grave is used here to mean ‘a site or defined area containing a multitude (more than one) of buried, submerged or surface scattered human remains (including skeletonised, commingled and fragmented remains), where the circumstances surrounding the death and/or the body-disposal method warrant an investigation as to their lawfulness’.12 It is worth noting, that there is no definition under international law for mass graves, though there are disparate views on what ought to be considered when using the descriptor of mass graves.

Mass or Numbers: There is disagreement as to whether the minimum number of individuals should be two, three or a dozen.13 This disagreement was also reflected amongst expert participants. Whilst numbers, of course, matter, the definition that was ultimately adopted is flexible enough to accommodate more than one body.

Common cause of death: It has also been suggested, including during the first roundtable event, that victims in mass graves should share a similar cause and manner of death, even where not linked to a crime.14 Conversely, other participants discussed the need to explicitly attach the definition to the perpetration of gross human rights violations and serious breaches of international humanitarian law, and/or broader notions of structural violence.

Structure: The properties of graves varies from deliberate constructions (man-made graves) to disposal in rivers, wells, ravines as well as surface scattered as a quasi-burial method.

Method of disposal: Whilst some authors suggest, for the purpose of the definition, that bodies in mass graves should be in close contact, placed indiscriminately and tightly together, without signs of dignity and respect for the individuals contained therein, the method of disposal can also be less organised, more random but equally undignified15 (more akin to multiple single graves in a defined area, an example that was provided by one expert participant from their professional experience).

Time/sequence of disposal: Mass graves may be sites of multiple interventions and violations over time. Some burial places may be the primary, secondary or even tertiary place of internment and body disposal. This can affect the structure, commingling of human remains and also the exposure to other extraneous factors impacting on the site and decomposition of human remains (which will all impact on an investigative effort).

Forensically relevant mass graves: Some mass graves, (though preferably labelled mass burials16), can result from natural and man-made disasters, and be the consequence of sanitary requirements, or practical reasons such as temporary storage with a view to another burial at a later point. They can be prehistoric or contemporary. In order to distinguish the mass grave protection and investigative Protocol from these contexts, the Protocol’s definition reflects the potential impropriety and/or unlawfulness in either the circumstances surrounding the death of those in mass graves or the method in which the human remains were disposed of.

Our definition seeks to reflect on the considerations above, which factually categorise the parameters that constitute a mass grave, whilst ensuring the nexus to gross human rights violations and conflict and recognising the importance of investigations arising from breaches of international human rights law and international humanitarian law. Of course, each and every mass grave, in addition to arising for very disparate reasons and in differs shapes, is likely to have disparate meanings for the survivors, families, communities and States in which they occur. Furthermore, these meanings may change over time and are important considerations for evidence collection17 and commemoration efforts alike.

Missing persons, for the purpose of the Protocol means ‘persons missing as a result of conflict, human rights abuses and/or organised violence.’

Unlike the 2019 UN Security Council Resolution on Missing Persons18, which limits the understanding of missing persons to armed conflict and international humanitarian law only, the definition here is conceptualized more broadly to encompass missing persons linked to gross human rights violations, most notably extra-judicial killings and enforced disappearance, violations that may not be linked to an armed conflict as such. It thereby reflects missing persons as a result of armed conflict and human rights abuses whilst also wishing to draw attention to the fact that missing persons can result from natural and man-made disasters. Missing

Bournemouth Protocol, at 4 Juhl, K. and Olsen, O.E., ‘Societal Safety, Archaeology and the Investigation of Contemporary Mass Graves’ (2006) 8(4) Journal of Genocide Research 411.

14 Schmitt, S., ‘Mass graves and the collection of forensic evidence: genocide, war crimes and crimes against humanity’, in Haglund W. and Sorg M. H. (eds), Advances in Forensic Taphonomy: Method, Theory and Archaeological Perspective (CRC Press 2002) 277.

15 Authors suggesting various definitions include: Jessee, E. and Skinner M., ‘A Typology of Mass Grave and Mass Grave-related Sites’ (2005) 152 Forensic Science International 55; Haglund W., ‘Recent Mass Graves: An Introduction’ in Haglund W. and Sorg M. H. (eds), Advances in Forensic Taphonomy: Method, Theory and Archaeological Perspective (CRC Press 2002). Ian Hanson, ‘The Definition of a mass grave’ Lecture 2018, Bournemouth University; Juhl and Olsen (2006) supra note 12.

16 Mass burials as an appropriate mode of disposal can be defined as ‘the burial of more than one deceased of a single or related incident in a single grave of multiple graves simultaneously or separately within a restricted time period in a single or in multiple burial sites located within an identified geographical area’ (Perera and Briggs supra note 7) whereby the ‘mass burial is a methodical, multistage, multidisciplinary procedure which should be performed cautiously by skilled and pre-trained personnel’ (ibid at 8).

17 E.g. Crossland, Z., ‘Evidential Regimes of Forensic Archaeology’ (2013) 42 Annual Review of Anthropology 121.

18 UNSC, Resolution 2474, 11 June 2019, UN Doc S/RES.2474 12 13

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persons relates to individuals ‘of whom their families have no news and/or who, on the basis of reliable information, have been reported missing’19. This chimes with the definition of Missing Persons governing the International Commission on Missing Persons. Its mandate seeks to ‘secure the co-operation of governments and other authorities in locating and identifying persons missing as a result of conflicts, human rights abuses, disasters, organized violence and other causes and to assist them in doing so.’20 Furthermore, in a 2017 publication, the ICRC suggests that the definition of missing persons includes disasters and those going missing in the context of migration21 and includes reference to the International Convention for the Protection of all Persons from Enforced Disappearance, which forms part of the Human Rights Treaty Body. The definitions advanced by the International Committee of the Red Cross (ICRC) and ICMP venture into the realm of international and domestic laws: those governing migration22, human rights abuses but also disaster response. A further key actor in relation to missing persons and their identification as result of a disaster is Interpol with its well-established Disaster Victim Identification approach.23 As mentioned above, a core question was whether to include migrants and missing migrants as part of the study. A number of missing persons definitions encompass missing migrants; whilst the Protocol does not cater specifically for the recovery and identification of missing migrants, this is, without doubt, a pertinent issue of our time. Important in the realm of missing persons as an issue is to acknowledge the families’ needs to know the fate and whereabouts of the missing relatives,24 which is why the Protocol also offers a working definition of the term ‘family’ (discussed below).

A further definition was needed for the term ‘victim’: By victim the Protocol means ‘persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative in the State or as a result of acts which constitute gross violations of international human rights law or serious violations of international humanitarian law’.

Consistent with international law, the definition of victim used in the Protocol encompasses not only individuals located in a mass grave (‘primary’ or ‘direct’ victims), but also their families and, where relevant, communities (‘secondary’ or ‘indirect’ victims).

The definition proffered is a composite definition from the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, at Annex A, 125 and UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Annex V, 826. It echoes Article 24(1) of the International Convention for the Protection of All Persons from Enforced Disappearance27.

In fact, Article 24 in full is important as it maps the various rights that victims have that, in turn, drive the framework for mass grave protection: 1. For the purposes of this Convention, “victim” means the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance.

2. Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard.

3. Each State Party shall take all appropriate measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains.

4. Each State Party shall ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation.

5. The right to obtain reparation referred to in paragraph 4 of this article covers material and moral damages and, where appropriate, other forms of reparation such as: (a) Restitution; (b) Rehabilitation; (c) Satisfaction, including restoration of dignity and reputation; (d) Guarantees of non-repetition.

Inter-Parliamentary Union and ICRC (2009), Missing Persons – A Handbook for Parliamentarians www.icrc.org/en/publication/1117-missing-personshandbook-parliamentarians at 9.

20 International Commission on Missing Persons (2020), Mandate, available at: www.icmp.int/about-us/mandate.

21 No author, ‘Q&A: The ICRC’s engagement on the missing and their families’ (2017) 99(2) International Review of the Red Cross 535 at 536. Londoño, X. and Ortiz Signoret, A., ‘Implementing international law: An avenue for preventing disappearances, resolving cases of missing persons and addressing the needs of their families’ (2017) 99(2) International Review of the Red Cross 547.

22 Notably here is also the recognition of disappearances in the context of migration: UN Human Rights Council, Report of the Working Group on Enforced and Involuntary Disappearances on enforced disappearances in the context of migration, 28 July 2017, UN Doc A/HRC/36/39/Add.2.

23 Interpol, (2018) Disaster Victim Identification, available at: www.interpol.int/en/How-we-work/Forensics/Disaster-Victim-Identification-DVI. 24 For example, Londoño and Ortiz supra note 21 at 564.

25 UNGA, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Resolution adopted on 29 November 1985) UN Doc A/ RES/40/34.

26 UNGA, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Resolution adopted on 21 March 2006) UN Doc A/RES/60/147.

27 International Convention for the Protection of All Persons from Enforced Disappearance (adopted 12 January 2007 entered into force 23 December 2010) UN Doc A/RES/61/177 (20 December 2006).

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6. Without prejudice to the obligation to continue the investigation until the fate of the disappeared person has been clarified, each State Party shall take the appropriate steps with regard to the legal situation of disappeared persons whose fate has not been clarified and that of their relatives, in fields such as social welfare, financial matters, family law and property rights.

7. Each State Party shall guarantee the right to form and participate freely in organizations and associations concerned with attempting to establish the circumstances of enforced disappearances and the fate of disappeared persons, and to assist victims of enforced disappearance. (emphasis added) The definition here (and the sources it is derived from) therefore matches also the processes identified in the normative provision of the Protocol for each of its sections.

Indeed, section F of the Protocol draws on these provisions of victim rights. They reflect that ‘the question of missing persons entails consequences not only for the victims themselves, but also for their families, especially women, children and older persons, and in this regard recognizing the importance of addressing the legal situation of missing persons in connection with armed conflict and supporting their family members through national policies that include a gender perspective, as appropriate.’28 During the October 2019 roundtable, discussion of the term ‘victim’ also included potential use of the alternative term ‘survivor’ when referring to the families of the missing. The term ‘survivor’, as an alternative to ‘victim’, grew out of the feminist movement in the 1980s, and was specifically applied to women and girls who had experienced sexual violence.29 The respective connotations of the two terms are significant: while ‘victim’ may have connotations of helplessness and passivity, ‘survivor’ is considered a term of empowerment and individual agency: ‘[t]o the extent that victims are presented as trapped, and survivors, conversely, are shown as making choices, they are constructed in ways that place them at opposite poles of an agency continuum’.30 The adoption of the term ‘survivor’ over ‘victim’ has since been used beyond the feminist movement to apply to victims of abuses - including gross human rights abuses - more widely, including by those organisations working directly with individuals in a therapeutic context.31 Since initially adopting and favouring ‘survivor’ as a term to describe those affected by gross human rights violations, therapists have come to recognise that a transition from

victimhood to survivorhood may in fact be a feature of the rehabilitative journey, that individual identities may vacillate between the two or accommodate both at once, such that the terms are not necessarily mutually exclusive.

By contrast, international criminal law uses the term ‘victim’ exclusively.

While it was acknowledged that the term ‘survivor’ may have particular benefits in some circumstances for affected individuals and communities, it was also noted that the term ‘victim’ is widely defined and understood in both international criminal and human rights law. In light of the specific normative approach taken to the development of the Guidelines, it was felt that this clear international understanding of the term ‘victim’, including the existence of legal definition, meant that use of ‘victim’ over ‘survivor’ was to be favoured in this case.

Moreover, at a practical level, it was felt that the word ‘survivor’ implied that the affected individuals (in this case, the families of the missing) had themselves undergone the abuses leading to the mass grave. Whilst it was recognised that this might be true in a number of cases (where, for example, family members had escaped at the last minute or survived an event that had killed many others) it could not be said to be universally the case. By contrast, the proffered definition of victim, centred on the experiencing of harm rather than the specific perpetration of any abusive act, readily encompasses indirect victims such as family members of the missing who suffer harm in the form of ambiguous loss32.

Like ‘mass grave’, the term ‘family’, (often the secondary victim of the atrocities) is also undefined in international law, and used as a concept that relates to societal practice in a specific context. For the purpose of this Protocol, family membership is significant for determining, for example, next of kin, the appropriate recipient of mortal remains and issuance of legal status documentation in respect of a missing person. Family membership should be determined according to local laws, customs and practices. 33 Attempting a definition of family was bound to be fraught with difficultly, as it may be an indicator of ‘closeness’ to the primary victim and therefore requiring a complex subjective assessment. How the term is used in the Protocol is designed to indicate who might constitute ‘family’ for the vital purpose of participatory rights, communication, contact and ultimately the return of human remains. In that sense, the Inter-American Court of Human Rights speaks of a genetically proven relationship

UNGA, Resolution on Missing Persons, 23 January 2019, UN Doc A/RES/73/178 at 2 Used, for example, in the work of Kelly, L., Surviving Sexual Violence (Polity Press 1988).

30 In Dunn, J. L., Judging Victims: Why We Stigmatize Survivors and How They Reclaim Respect (Lynne Reinner Publishers 2010).

31 See, for example, Health and Human Rights Info, a resource site that provides information about the mental health consequences of gross human rights abuses and conflict, which notes the use of both terms, and favours the use of the word ‘survivor’, available at www.hhri.org/thematic-pages-overview/ survivors-of-human-rights-violations.

32 On the subject of ambiguous loss, see Boss, P., Loss, Trauma and Resilience: Therapeutic Work with Ambiguous Loss (W. W. Norton & Company 2006).

33 For a fuller discussion on the term family in international law see La Vaccara, A., When the conflict ends, while uncertainty continues: accounting for missing persons between war and peace in international law (Pedone/Hart 2019).

34 Pueblo Bello Massacre Colombia, Judgment on Merits, Reparations and Costs, Inter-American Court of Human Rights Series C No 140 (31 January 2006) para 273.

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for the return of human remains.34 Also noteworthy is the role families (or victim and survivors) play in calling for accountability processes.

Finally, for the purpose of the Protocol, the term ‘forensic’ true to its literal meaning ‘in open court’ or ‘public’, implies the scientific, legal and societal realm by bringing matters to and before courts of law and/or other judicial mechanisms (such as a coroner). ‘Forensic Evidence’ or ‘Forensic Science’, at its most basic level, suggests an application of science to law35 and as denoting the application of scientific methods and techniques to the investigation of crime.

Forensic science is designated to retrieve and analyse evidence for the purpose of official, judicial scrutiny by employing scientific methods. The use of such evidence in a court system will mean that it is tested as to its validity and probative value, and it usually has to meet certain admissibility criteria. Therefore, the use of forensic science implies an officially-recognised standard of evidence collection36 but also an awareness that this is for the purpose of public and authoritative scrutiny. This in no way negates the importance of the socio-political, religious and cultural context in which a forensic operation, including due process guarantees, may be situated.37

The legal basis Fundamentally, the project argues for mass grave protection and investigation to reflect human rights standards in an inclusive way to ensure the families’ needs (of those that might be in mass graves) are met.

The Protocol is anchored in international law to help meet those needs because it proffers a unifying legal approach to mass grave protection and investigation by bringing together the branches of international human rights law, international humanitarian law as well as international criminal law. Reference is also made to disaster victim identification efforts and disaster management efforts, alluding to what has been called ‘emerging international disaster relief/response law’38.

The rights of individuals and corresponding duties of a State may be numerous in relation to mass graves: at a fundamental level the right to life and the right to be free from torture and inhumane treatment have to be guaranteed. The guarantor or duty bearer is the State with its obligation to protect, and in case of breaches, investigate, search and identify.

Rights commonly associated with mass graves may be more expansive, as the crime of enforced disappearance illustrates, attracting a catalogue of rights, including, as outlined above, the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment and the right to life, when the disappeared person is killed. But further rights attaching to the primary victim and/or the family are at issue: • The right to recognition as a person before the law; • The right to liberty and security of the person; • The right to an identity; • The right to a fair trial and to judicial guarantees; • The right to an effective remedy, including reparation and compensation39; and • The right to know the truth regarding the circumstances of a disappearance.

In addition, since mass graves can be sites of mourning, rights associated with burial rites and commemoration, may be at issue, including: • freedom of religion and belief; • freedom of association and expression; as well as • the right to private life.

This also leads to speculation on the generational impact that mass grave have on survivors, affected societies and public understanding of the past40.

Under international law, there is clear prohibition of enforced disappearance and arbitrary killings of unlawful death. Crucially under international human rights law and international humanitarian law, the duty to search and investigate is placed on States. With it comes the requirement for domestic legislation and the establishment of dedicated institutions. Such legislation and institutions are seen as preconditions for an effective response to all missing persons cases. This has found expression by the International Committee of the Red Cross and the United National Security Council Resolution 274741 of 2019, urging the enactment of relevant legislation. Such legislation should be non-discriminatory, ensuring protection, investigation and identification of all individuals to the fullest extent possible. A designated Missing Persons Authority with responsibility for mass graves protection, investigation and recovery of human remains, comprising relevant expertise, is suggested by the ICRC42. Such mechanisms should provide safe ways to receive tracing requests and create a registry of missing persons and associated information.

The Encyclopedia of Criminology and Criminal Justice (The Wiley Series of Encyclopedias in Criminology & Criminal Justice) 2013, online, Entry on Forensic Science and Forensic Evidence. Similarly, Clare Moon defines forensic as ‘the application of scientific knowledge and methodology to the resolution of legal problems’ (Moon, C., ‘Human rights, human remains: forensic humanitarianism and the human rights of the dead’, UNESCO (2016) at 2.

36 This point is exemplified in Sri Lanka where it is expressed in the Office of Missing Persons Act ‘excavations and exhumations of mass graves must be carried out under the purview of a Magistrates’ Court to ensure the necessary standards are safeguarded (Lasseé, I., ‘The Sri Lankan Office on Missing Persons: Truth and justice in tandem?’ Puerto (2017) 99(2) International Review of the Red Cross 619 at 636).

37 For a discussion see Tuller and Salado (2016) supra note 9 at 221 and 225.

38 UNGA (2020) supra note 6 a footnote 61.

39 This may include assistance to the family to facilitate an adequate standard of living and education.

40 E.g. UNGA (2020) supra note 6 at para 51 and UNCHR, Report of the independent expert to update the Set of Principles to combat impunity (18 February 2005) UN Doc E/CN.4/2005/102/Add.1 (abbreviated Orentlicher Principles).

41 UNSC Resolution 2474 (2019), supra note 18 and International Committee of the Red Cross (ICRC) (2009), Guiding Principles/Model Law on the Missing www.icrc.org/en/document/guiding-principles-model-law-missing-model-law especially provisions contained in Article 12, 13, 14 but also Article 2 on proposed definitions.

42 Ibid (ICRC).

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The caveat here is that this approach may be construed as being confined to missing persons as a result of armed conflict and not necessarily internal disturbance or authorised crimes committed by a political regime. The provision on data protection in Article 18 insinuates that the missing persons information ought not to be used for purposes other than ‘humanitarian’,43 with humanitarian seemingly denoting ‘ improving people’s lives and reducing suffering’44 through neutral and impartial means.

A bridge between, on the one hand, missing persons in armed conflict setting coupled with identification for humanitarian purposes only, and missing persons as a result of gross human rights abuses also keen to pursue remedies in the form of criminal justice on the other hand, has been attempted, if only in aspirational soft law initiatives. Principle 13 of the 2019 Guiding Principles for the search for disappeared persons suggest such an approach, with enforced disappearances likely to result in missing persons outside an armed conflict scenario.

1. The search for the disappeared person and the criminal investigation of the persons responsible for the disappearance should be mutually reinforcing. The comprehensive search process for disappeared persons should be initiated and conducted with the same effectiveness as the criminal investigation.

2. When the search is conducted by non-judicial authorities independent of those that make up the justice system, mechanisms and procedures should be established to ensure cooperation, coordination and an exchange of information between them and the ones responsible for carrying out the criminal investigation, in order to guarantee that the progress and results achieved on both sides feed into one another regularly and without delay. The competencies of both sets of authorities should be clearly defined by law, so as to prevent them from overlapping and interfering with one another and ensure that they can be complementary. The existence of mechanisms and procedures for searches by administrative, non-judicial and other bodies

cannot be invoked as an obstacle to the pursuit of criminal investigations or as an alternative to them (emphasis added).45 There are examples where interim mechanisms have been created to fill a legal void, though not all necessarily pursue the dual purpose of truth and justice. In Nepal, the National Human Rights Commission (NHRC) was tasked with, inter alia, searching for missing persons including in mass graves.46 As seen in the case of Sri Lanka’s Office on Missing Persons Colombia’s Unidad de Busqueda47, and Cyprus’ UN backed mechanism, the pursuit of truth and justice, including cooperation with the corresponding criminal processes, is not always forthcoming.48 That said, there are countries with special legislation specifically for the purpose of searching for missing persons (including Bosnia, Kosovo, Peru and El-Salvador) which stresses the humanitarian purposes but also has provisions for cooperation and coordination with corresponding criminal investigation and prosecutorial mechanisms.49 This is crucial from an operational point of view, since humanitarian and criminal investigations, as suggested by the 2019 Guiding Principles, overlap. The Protocol therefore recognises (and this view is supported by the forensic literature50) that even if criminal prosecution is not immediately envisaged, evidence collected to that standard will enable a future investigation (provided it is handled and stored appropriately).

In addition, like Interpol’s DVI provision, there is a recognition that legal bases must be created for the purposes of trans-national investigations. Principle 3(4) outlines this requirement whereby an investigative policy ‘should promote cooperation and collaboration among all State bodies and also with other States and international agencies. It should be translated into appropriate legislative, administrative and budgetary measures and educational policies and other relevant sectoral policies.’51 An example for such an endeavour can be seen in the Framework plan to address the issue of missing persons from conflicts on the territory of the former Yugoslavia, whereby an overarching Missing Persons Group is tasked with facilitating data sharing in an attempt to solve missing persons cases.52

The Commentary to ICRC Article 18 offers the following explanation: ‘Personal data that has served the purpose for which it was collected should be deleted or destroyed, thus preventing any improper or inappropriate use in the future. Specific information collected or processed for the purpose of locating a missing person or identifying human remains is no longer necessary once the person has been located or the remains identified. It should therefore be destroyed unless there is an overwhelming humanitarian need to retain it for a further and definite period of time. Alternatively, the information can be depersonalized so that it is no longer possible to identify an individual on the basis of it. This may be done for statistical or historical purposes. Personal data that has lost its personal character is no longer protected as personal data.’ para 6 of the Commentary to Article 18.

44 Common definition of the adjective ‘humanitarian’ as per the online Cambridge Dictionary.

45 UNCED, ‘Guiding principles for the search for disappeared persons’ (8 May 2019) UN Doc CED/C/7.

46 Truth and Reconciliation Commission (TRC) and the Commission on Enforced Disappearance Persons (CEDP), see Pradhan G., ‘Nepal’s Experience of Mass Grave Exhumation’, in Klinkner M. and Smith E., (eds) Mass Graves, Truth and Justice: Interdisciplinary Perspectives on the Investigation of Mass Graves (Edward Elgar forthcoming).

47 Colombia’s Unidad de Busqueda (UDB) with its humanitarian and extrajudicial mandate directs, coordinates and contributes to the search for persons reported missing in connection with armed conflict.

48 Lassée (2017) supra note 36 49 Ibid.

50 Tuller and Salado Puerto (2016) supra note 9; Schmitt and Mazoori (2017) supra note 11.

51 UNCED (2019) supra note 45, Principle 3(4).

52 ICMP, Framework Plan to address the issue of persons missing from conflicts on the territory of the former Yugoslavia (6 November 2018) www.icmp.int/wp-content/uploads/2018/11/FWP-eng.pdf 43

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Who are the legitimate practitioners?

Since mass graves, from their discovery through to commemoration efforts, deserve protection and investigation, extensive engagement from the legal, investigative and scientific disciplines to community liaison and family support is required. Each with their own rules and standards of professional practice, they all have to come together for respectful, indiscriminate and dignified handling of mass graves and human remains. The Protocol is therefore intended to be used by professional practitioners, including but not limited to: investigators, prosecutors and judges of national and international judicial mechanisms, forensic experts, health professionals, security personnel and authorised expert civil society actors.

But what makes them legitimate practitioners? A legal framework, as spelled out in the Protocol, must form the basis for their practice. This has found expression in various documents: the Minnesota Protocol is principally grounded in the right to life, accountability, remedy and the duty to investigate on behalf of the State53; Interpol’s Disaster Victim Identification guide, where disasters may transcend national boundaries and affect victims from differing nations, also starts with the law as the foundation for consideration and cooperative action: ‘All processes are governed by the laws, legislation and conventions of the affected country. In addition, in certain cases there may be rules, specified by governments and/or command authorities which govern the circumstances in which the DVI process must operate and to what degree.’54 Despite the clear stipulation of an international legal framework and requirements of national governing law, in practice, and in particular in war-torn countries where the rule of law and official infrastructure has disintegrated, the question still occurs: ‘who has the right to go and look for the missing?’ It was a question asked by one of our expert participants during the first roundtable event. And here, there are important non-legal barriers to legitimacy that warrant articulation: forensic experts, investigators and family liaison staff operating within mass grave exhumation contexts may experience challenges in the perceived legitimacy of their work and practices from victims’ families and the affected community. This might be as a result of a lack of familiarity with forensic practices per se, or a limited understanding of the role that forensic work can play in the identification and repatriation of mortal remains and the need for careful preservation

and processing of evidence obtained from mass graves.

Provisions for transparency in processes, rigorous scientific methods and the communication thereof feature in the Protocol as overarching operating principles. Conversely, practitioners need to be aware of the legal, cultural, political and social context in which they are operating.

Where State forces have been responsible for violations (i.e. authorised crimes) in particular, such that there is limited respect for or faith in the rule of law, forensic investigation might also be viewed with a degree of suspicion, and/or may be perceived as part of a justice process that is biased in favour of a particular political, religious or ethnic grouping. This, in turn, can hamper the effective operation of a mass grave exhumation at all stages – from securing access to the site, preserving the site from inexpert attempts to exhume family members, to obtaining DNA and other missing persons information that could assist in the identification and repatriation of mortal remains. Counteracting such barriers is important and can be partly achieved by having legislation and authorities dedicated to responding to missing persons cases.

Political initiatives may ‘legitimise’ non-expert exhumers including ‘survivor-exhumers’ who may not be trained professionals. In Rwanda, for example, there are records of Tutsi genocide survivors engaged as part of a governmentled programme of exhuming mass graves, with the focus on ‘purposeful construction of large collectives of anonymous bones’ whereby identifiable remains were rendered anonymous.55 Whilst the intention was to promote reconciliation, the traumatising effect of such exhumations on survivors has also been noted.56 Preservation and memory efforts presently underway are seeking to preserve remains in-situ to facilitate future identification, and include the preservation of all artefacts (like fabric, crockery, machetes etc.) should claims for identifications arise at some later point. In Mexico, the search for 40,000 missing victims of drug wars includes efforts by relatives of the disappeared, who, reportedly, go out searching for loved ones, whereby they form a human chain to comb a suspected clandestine burial ground.57 Families of the victims have become increasingly ‘forensically informed’, perhaps aligning themselves with the recent shift towards ‘humanitarian forensic action’, but are also calling actively for the realisation of their rights to the truth and State obligations to that effect.58 As Moon comments, ‘families of the disappeared in Mexico are currently using forensics techniques themselves – such as

Minnesota Protocol at 3-7.

Interpol (2018) Disaster Victim Identification Guide, part B annex 1: first principle of good DVI governance at 3.

55 Major, L., ‘Unearthing, untangling and re-articulating genocide corpses in Rwanda’ (2015) 7)2) Critical African Studies 164. She describes the process: ‘Post-unearthing, these bodies are unravelled, and the remnants of soft flesh, clothing, personal possessions and bones are separated from each other. Skeletal structures are fully disarticulated and the bones pooled into a vast collective, for placement within memorials. The outcome of these exhumations is that remains almost always lack individual identity at the point of reinterring’ (ibid at 164).

56 Jessee, E. ‘Promoting Reconciliation through exhuming and identifying victims in the 1994 Rwandan genocide’ (July 2012) 4 CIGI Africa Initiative: Discussion Paper Series.

57 Phillips, T., ‘The disappeared’: searching for 40,000 missing victims of Mexico’s drug wars’, The Guardian, 6 November 2019, www.theguardian.com/ world/2019/nov/06/mexico-drug-wars-thousands-disappear-missing?CMP=share_btn_tw 58 See, for example project initiative by Lebanese NGO Act for the Disappeared lobbying for the State to take its investigative duties in relation to mass graves seriously: www.actforthedisappeared.com/projects 53 54

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collecting DNA, creating databases, searching for, locating and exhuming mass graves – due to the failure of the State to carry out investigations.’ 59 The point here is to acknowledge the competing demands, diverse approaches and priorities with a view to optimising outcomes for survivors – individually and collectively. Under international law, this suggests the promotion of expertly identified, reported, documented, protected and investigated according to internationally, scientifically recognised standards balanced by participatory and cultural rights invested in the families.

Structurally, the Protocol is intended to encompass the process of mass grave protection and investigation from first discovery to return of human remains for truth and justice efforts. Therefore, the normative approach taken, with all provisions having an explicit link to, or anchorage, in international norms is designed to strengthen legitimacy.

Through this normative link, core human rights provisions must be adhered to and the Protocol is intended to apply without discrimination and regardless of political affiliation, sex, sexual orientation, gender identity, religion, race, ethnicity, caste or social status of those within the graves. This appeal to fundamental human rights is important: it will help to avoid a two-tier system. Mass grave resulting from war, civil unrest and systematic human rights breaches should be investigated to the same human rights standards; ideally a scientific standard that is mirrored by disaster victim identification efforts (which are well established) as well as mass graves and missing persons resulting from migration (under-developed at present). Whilst, as acknowledged throughout, this project is concerned with mass graves, its efforts nonetheless should have transferable results to other contexts involving persons going missing.

Overarching Operating Principles The Protocol covers the steps of discovery, reporting, protection of sites, investigation, identification, the return of human remains, justice efforts and commemoration.

Whilst there is a chronology to the Protocol and with it, specific provisions in law and in practice for each of the sections of the document, there are also overarching operating principles which apply at all stages of the mass grave processes described. In order to avoid repetition of these principles throughout the document, and in order to emphasise the underlying considerations required for sensitive engagement by and with all stakeholders, these are instead included separately at the beginning of the chronological process. The decision to separate these principles in such a way was also intended as a means of reducing the length of the Protocol to ensure it was user-friendly.

The overarching operating principles were distilled from a number of existing standard setting human rights instruments: the Minnesota Protocol, the UN’s Guiding Principles for the Search for Disappeared Persons,60 Basic Investigative Standards for First Responders to International Crimes,61 and the Principles on Cooperation between Civil Society Actors and Judicial Mechanisms in the Prosecution of Conflict-Related Sexual Violence.62 They were then tailored to the specific context of mass grave protection and investigation and discussed with expert participants during the first roundtable event, and further refined during the second, with a particular focus on ensuring that they were realistic in practical and operational terms, whilst still reflective of the highest possible standards. They have a victim focus (including affected communities and the families of the missing), which is balanced with the need to guarantee the quality and integrity of the investigation: (1) Do no harm; (2) Physical and Emotional Safety; (3) Independence and Impartiality; (4) Confidentiality; (5) Transparency of process; (6) Communication; and (7) Manage Expectations.

Discussions with expert participants included how best to navigate possible tensions between, on the one hand, the need for transparency of process and the security and integrity of the investigative process on the other, including the safety of investigators and witnesses.

The issue of independence and impartiality was also challenging – particularly in relation to the need for investigators to be seen as acting with impartiality and in the absence of political bias. Several external reviewers provided thoughts and input into this element, noting in particular that where a mass grave has come into being as a result of political or ethnic tensions, then the exhumation of a given site will inevitably be viewed as a political act by some elements of the community.

Although the notion of flexibility was not formally recognised as an overarching operating principle in the Protocol, it is recognised that there is no such thing as a ‘standard’ mass grave, meaning that all exhumations and investigations will differ depending upon the multiple exigencies of the situation. The operating principles, whilst tailored to practical application, are also written with an eye on the need for broad applicability, and the need for flexibility of approach is explicitly recognised by Interpol in their Disaster Victim Identification Guide: ‘[m]ost importantly, a mind-set of flexibility should prevail

Moon, C., ‘Extraordinary deathwork: new developments and the social significance of forensic humanitarian action’ in Parra, R.C., Zapico S. and Ubelaker, D. (eds.) Humanitarian Forensic Science: Interacting with the Dead and the Living. (Wiley and Sons 2020) 37). See also Schwartz-Marin and Cruz-Santiago on ‘forensic civism’, where citizen are ‘ready to halt their personal activities to confront governmental officials and fight impunity and corruption and even, as shown here, become a producer of forensic knowledge, promoters of forums that dispute governmental truths’ (Schwartz-Marin, E. and Cruz-Santiago A., ‘Forensic Civism: Articulating Science, DNA and Kinship in Contemporary Mexico and Colombia’, (2016) 2(1) Human Remains and Violence 58 at 70).

60 UNCED (2019) supra note 45.

61 Global Rights Compliance (2016), ‘Basic Investigative Standards for first Responders to International Crimes’, www.globalrightscompliance.com/ uploads/2a712b82b7363354be0b3b5011d71795.pdf.

62 Smith, E., Mahmood, F. and Ndagire J., Cooperation between Civil Society Actors and Judicial Mechanisms in the Prosecution of Conflict Related Sexual Violence: Guiding Principles and Recommendations (International Nuremberg Principles Academy 2017).

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when integrating DVI operations into multidiscipline emergency so that confusion can be minimised and common objectives can be pursued.’63

A. Discovery and safe reporting When there are reasonable grounds to presume enforced disappearances have occurred, then under international human rights law, this should trigger an investigation.

But mass grave sites can remain hidden for a multitude of reasons.

• Those responsible for its creation may have reasons to keep it secret, for protection purposes of the site itself or for fear of detection where the creation of the mass grave was illegal or was designed to conceal gross human rights violations. 64 • Similarly, survivors who may know about the mass graves may wish to keep the site secret for fear of reprisals, for lack of safe ability to alert the authorities or for lack of trust in the authorities. They may also not wish to report an individual as potentially dead.

• Finally, authorities may wish to keep a site secret. This can be for legitimate security concerns and safeguarding of the site and potential survivors or it can be as a means to protect State interests or authorities that might lack the independence to investigate fully.

• This refers back to the importance of having authoritative and legitimate institutions there to receive notification of mass graves, as spelled out in the Protocol. Authorities that are also capable of keeping those who are reporting safe!

Often it is the so-called first responders who know about a site before protective measures are put in place. Some States, such as Iraq, place a reporting duty on individuals.

Crucially, ‘First responders should first and foremost know what not to do’65 and there was discussion at the first roundtable event of the need to deter inexpert exhumation, and instead to steer first responders towards the collection of relevant data, circumstantial evidence and information surrounding the mass grave and the identification of witnesses. It is important to refrain from invasive documentation as this may have adverse effects on the site and the evidence contained therein.

The importance of reporting, even if then kept secret on behalf of the authorities, remains crucial. Technologies employed for the recording are best described by the overarching term geomatics, concerned with the collection, storage, analysis, processing and also presentation of geographic data. Specifically named are GPS and MGRS systems, but the importance of aerial imagery and LIDAR have also been well documented, as well as other noninvasive technologies.66 But technologies progress and present-day applications may not be future proof, therefore the Protocol refrains from mentioning any specifically. However, applications such as the eyewitness app were recognised as useful tools by practitioners for storing and transmitting verifiable photos and videos through a three step system: (1) allowing photos and videos to be embedded with metadata to ensure evidence authenticity; (2) transmission and storage of the recorded material via the app to safeguard the chain of custody; and (3) the application facilitates the cataloguing of the recorded material to assist further investigations.67 The increasingly utilised field of digital evidence gathering was acknowledged as important but also immensely challenging due to the sheer volume of information.68 Principles and guidelines for the good provenance and governance of such documentation efforts are starting to emerge with recommendations including ‘Do No Harm’ or ‘Do Good Science’ principles proffered.69 The point here is to report as accurate information as possible, for unreliable information, damage and disruption will create difficulties for subsequent processes.70

Interpol (2018) supra note 23 at 9.

Fear of detection of mass graves is what is believed to have caused the many secondary and tertiary mass graves that exist in and around the Srebrenica events. In an attempt to hide the crimes, primary graves were dug up again and the human remains transported to different (secondary) graves resulting in commingled human remains.

65 Global Rights Compliance (2016) supra note at 61.

66 Blau, S. et al. ‘Exploring non-invasive approaches to assist in the detection of clandestine human burials: developing a way forward’, (2018) 3(2) Forensic Science Research 304. See also Hanson, I., ‘Mass grave investigation and identifying missing persons: Challenges and innovations in archaeology and anthropology in the context of mass death environments’ in Morewitz, S. and Sturdy Colls, C. (eds.) Handbook of Missing Persons (Springer 2016) 491.

67 EyeWitness (2021), ‘Welcome to eyeWitness’: www.eyewitness.global/welcome.

68 A growing body of literature on Digital Evidence and documentation examines technological advances for human rights and criminal applications including the handling and use of such information: Dubberley, S., Koenig A. and Murray D. (eds), Digital Witness (Oxford University Press 2020); Van Schaack, B., ‘Innovations in International Criminal Law Documentation, Methodologies and Institutions’ (2019 online); and Freeman L., ‘Digital Evidence and War Crimes Prosecutions: The Impact of Digital Technologies on International Investigations and Trials’ (2018) 41(2) Fordham International Law Journal 283.

69 Association for the Advancement of Science (AAAS), Location-Based Data in Crisis Situations. Principles and Guidelines (March 2019) available at www.aaas.org/sites/default/files/2019-04/VGI%20Principles%20and%20Guidelines_FINAL%20%28002%29.pdf. The Berkeley Protocol on Digital Open Source Investigations provides a practical guide on the handling and use of such information (UNOCHR/Human Rights Center (2020) available at www.ohchr.org/Documents/Publications/OHCHR_BerkeleyProtocol.pdf).

70 Interpol (2018) supra note 23 at 9.

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B. Protection Protection measures seek to keep mass graves safe from any kind or attempt at disturbance. Such protection measures, as spelled out in the Protocol, require prior verification of the information received and confirmation of the existence of a mass grave.71 This process is well documented: ‘[p]otential grave locations pinpointed through analysis of available multisource intelligence. For example, witness information and analysis of aerial images; Grave site located and confirmed by prioritising most effective search techniques after permissions and court orders for search and excavation are issued’.72 Protection brings to the fore the protracted issue of who owes protection, and under international law the onus is clearly placed on States as the primary entity with responsibility and authority.73 But, as outlined in the user section of the Protocol and above on legitimate practitioners, there are other agents that may be involved in protection efforts, including at global level: international organisations such as the International Commission on Missing Persons and the International Committee of the Red Cross, as well as UN-initiated investigative mechanisms. In addition, from within the State and at times with international involvement, there may be NGOs, family organisations and civil society agents all invested in the process.

The question that arises then is what and/or whom is protected? The Protocol spells out mechanisms through which the actual mass grave site and access to the site can be protected and preserved. In addition to ensuring individuals can safely report (under section A), protection of mass graves can also safeguard survivors and victims’ interests by ensuring the protection of human remains. Protecting the dead may lead to individuation, identification, return, memorialization and justice avenues.

It is therefore the first step towards an investigation (see section C).

While site protection is essential for the preservation of evidence, participants observed that certain forms of protection came with their own risks: alerting perpetrators to the fact that a site is known can lead to deliberate interference with sites in an attempt to destroy evidence, including attempts to relocate the bodies into secondary or even tertiary graves. According to Van Schaak, [m]ass graves are particularly vulnerable to destruction as they provide strong evidence of crimes against humanity and other international crimes’.74 The practice of mass

grave disturbance or destruction, including the relocation of bodies to secondary and tertiary sites as a means of avoiding detection, are clearly evidenced in Srebrenica and documented in the proceedings of the International Criminal Tribunal for the Former Yugoslavia (ICTY).75 Forensic experts engaging in the excavation of various mass grave sites around the world observe that: ‘[i]n our experience working on mass graves in the Balkans, Guatemala, and Iraq disturbance is a common occurrence as perpetrators hide and destroy evidence.’76 The disturbance of mass graves can clearly present problems for investigators, including significant contamination of evidence and commingling of body parts. For the families of the missing, the effects of site disturbance can be devastating: many are confronted with the prospect that a body will never be found, or receive incomplete remains for reburial.

This risk necessitates careful consideration of whether and how any particular site should be formally protected, and will inevitably depend upon the specific circumstances of the situation and its prevailing context. Protection of sites by unobtrusive means – through the use of digital technologies, drones and satellite imagery – was an issue discussed by many of the participants where there might be a risk of interference or destruction of a site by perpetrators.

It became clear during the course of the first roundtable event that the question of protection is further complicated by the widespread use of social media, including the posting and sharing of suspected site locations by first responders, witnesses, journalists and other interested third parties. The plethora of reports on social media and the dark web also presents new challenges for investigators in the verification of site reports, where the number and nature of reporting may be overwhelming, posing additional challenges of both scale and data storage.

Even in situations where physical site protection was feasible, expert participants at the first roundtable event were keen to stress the careful balance that needed to be struck in practice in any mass grave investigation between the need for protection of a site – which might include excluding families of the missing from the site – and the need to develop and maintain relationships of trust with families as potential sources of evidence.

The identification of civil society actors as interlocutors between investigators and affected communities was seen as a key consideration.

See, for example the efforts stipulated by the UNSC Resolution (2019) on missing persons, supra note 18.

Hanson, I. ‘Forensic Archaeology and the International Commission on Missing Persons (ICMP): Setting Standards in an Integrated Process’ in: Groen, M., Márquez-Grant, N. and Janaway, R. (eds.) Forensic Archaeology: Global Perspectives (Wiley-Blackwell 2015) 415 at 418.

73 For a discussion see, for example, Joseph Raz’ ‘three layered argument’ on individual rights, States who ‘under some conditions states are to be held duty bound to respect or promote the interests (or the rights) of individuals’ (Raz, J., ‘Human Rights Without Foundation’ in Besson S. and Tasioulas J. (eds.)

The Philosophy of International Law (Oxford University Press 2010) at 336), and international bodies. Also noteworthy in this context the discussion by Jan Klabbers on responsibility placed on international organisations (Klabbers J., ‘Reflections on Role Responsibility: The Responsibility of International Organisations for Failing to Act’ (2017) 28(4) European Journal of International law 1133.

74 Van Schaack (2019) supra note 68.

75 Documented, for example, in Prosecutor v Karadžić, Public Redacted Version of Judgment Issued on 24 March 2016, IT-95-5/18-T, 24 March 2016.

76 Wright, R. and Hanson, I., ‘Forensic Archaeology under the Auspices of Large Organizations’ in Blau, S.and Ubelaker, D. (eds) Handbook of Forensic Anthropology and Archaeology (Routledge 2016) 607 at 608.

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C. Investigation Mass grave investigation requires the coordination of a multiple of individuals, specialisms and mechanisms, including the investigative team, the missing persons agency, press/media and families of the missing.

At the same time, prior to any conflict, most States do not possess pre-existing structures to deal with mass graves, and they are typically not envisaged in domestic laws. This ‘knowledge vacuum’ was explicitly identified by expert participants during the first roundtable event, and there was some support from amongst participants for the conduct of local capacity-building alongside the investigation. This absence is explicitly recognised in the Protocol, in the section Aim and Scope, and the establishment of dedicated institutions identified as a precondition for an effective response to mass grave recovery. Despite the fact that few States will already have structures in place to deal with the exceptional circumstances of mass graves, however, there is still likely to be an applicable domestic legal framework that can be adapted or applied to the situation.

The planning phase is inherently lengthy – securing access alone may require a number of visits to introduce the idea of exhumation to the affected community and the families of the missing, site visits to ascertain the likely nature and scale of the grave or graves located there, and the physical obtaining (often by negotiation) of access to the land concerned.

This has found expression in the literature: ‘[t]he context of the forensic investigation may be the impetus for a shift in both forensic and cultural practices. The scale of the violence/disaster overrides the ability of the usual social– cultural mechanisms to deal with the dead in the usual manner, and the need for a forensic investigation to collect evidence and/or identify the dead may outweigh the need for strict traditional treatment of the dead. Working with cultural and political leaders, as well as families of the dead/missing is key to finding common ground between science and cultural traditions. Transparency and clear explanations into the necessary scientific procedures, as well as an honest explanation of the time-frame largescale investigations require, will go a long way in the negotiating what all sides need.’77 It will require the management of expectations and the clear explication of the processes involved, including how dead bodies will be dealt with by the investigative team, the ability of the operation to recover and identify all those who are missing and the degree of community and family participation and/or involvement in the process.

Repercussions of not being able to deploy forensic investigations may result in incomplete investigation results; for example, that numbers of victims are not ascertained, as noted before the European Court of Human Rights in the case of Hanan v Germany. In relation to establishing the number of civilians killed, according to

the public prosecuting authorities: ‘[i]t was not possible to clarify this matter further as the social and religious mores of the Afghan population prevented use of the modern forensic investigation techniques, including the exhumation of bodies or DNA analyses, that would be required.’78 Where sites are located in remote areas, additional facilities may need to be constructed or installed, including access roads, sanitation and mortuary facilities.

Political will, funding and survivor mobilisation are all essential requirements of an effective and successful operation.

The overarching operating principle of ‘do no harm’ is of particular application here: the initiation of an exhumation requires an evaluation of the likely impact of such an operation on the community. This may include, for example, payment of rent to the owner of the land where the site is located (where, for example, farming land is rendered unusable due to the excavation, and so a vital source of income would otherwise be lost), costs of facilities, rent for team accommodation etc. At the same time, such activities and payments should not favour or benefit some community members overs others, jeopardising broad acceptance of the mission, as well as the need for independence of the operation. In addition, an issue that was specifically identified by one of our expert participants was the gender composition of survivors: while victims in mass graves can be men, women or children, in practice the majority of bodies are male (both combatants and civilians). Surviving women may be particularly vulnerable within patriarchal societies, and/or might have more limited access to avenues for justice in real terms. Communication strategies will therefore need to be tailored to reach more marginalised groups.

The overarching principles, as stated above, naturally also extend to the staff involved in the investigative processes: ‘[t]o consider only technical matters and protocols is not enough. There is also a psychosocial environment involved in successful forensic fieldwork; the team must be supported physically and psychologically’79 This too, finds expression in the planning and investigation sections of the Protocol.

During the course of the first and second roundtable events, participants emphasised the need for a multidisciplinary investigative team, and the decision was taken to include a list of essential disciplines/roles within the Protocol, as an appendix (Appendix 2). The Appendix begins ‘Relevant investigative and forensic expertise may include the following actors or specialist disciplines’ [emphasis added]. The list is not intended to be either prescriptive or exhaustive, indicated by the use of the words ‘may include’, but instead is designed to serve as a starting point for decision-makers in understanding the nature of the team required.

Tuller and Salado (2016) supra note 9 at 226.

Hanan v Germany Grand Chamber Judgment, ECtHR Application No. 4871/16 (16 February 2021) at para 40 and repeated at 218.

79 Wright and Hanson (2016) supra note 76 at 608.

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The principle tenets of the duty to investigate explained through the case of Armani Da Silva v the United Kingdom.80 As stressed throughout the Protocol, the need for an effective investigation is unequivocal and a duty placed on States. In concreto, this means: (1) As a precondition, that those in charge of and carrying out the investigation have to be independent; for independence is critical for the public’s confidence [232] (2) An investigation must be ‘capable of leading to the establishment of the fact’ but also the circumstance that led to the violation and the identification of those responsible as well as, where appropriate, punitive action. [para 233] (3) Establishing the fact requires the gathering and securing of evidence (to include eyewitness testimony and forensic examinations). This is particularly relevant in relation to establishing the cause of death. In fact: ‘any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard’.

[233] (4) That said, the effective investigation is an obligation of means and best effort given the contextual parameters, not of result [233].

(5) Conclusion from the investigation ‘based on thorough, objective and impartial analysis of all relevant elements’, [234 emphasis added] meaning that multiple lines of inquiry may need to be pursued.

(6) Further, to ensure the legitimate interest are safeguarded, there is a requirement to make the investigation accessible to the victim’s family [235].

(7) Public disclosure of results and access may however be limited if sensitive or security concerns are attached to their release [236].

D. Identification The Protocol does not detail the scientific steps and processes required for the forensic identification of a body, since this is already found in other referenced documents such as the Minnesota Protocol and Interpol’s Disaster Victim Identification guide. Furthermore, there is ample literature on the progress of DNA in relation to victim identification with, no doubt, continued progress to come.81 Therefore, the focus of the Protocol is on the many functions and aspects of the identification process that require coordination, from the forensic process, the collection of missing persons data and DNA reference samples and the communications strategy required to allow those processes to operate together.

During the course of the first roundtable event, participants discussed the differences between exhumations conducted for criminal investigation purposes and those conducted solely for humanitarian, identification and repatriation purposes. In particular, participants noted that the identification of remains may be less important for prosecutors and investigators concerned with the investigation of war crimes, where an assessment of numbers may be more significant in order to establish the scale of an atrocity. Where a grave had been exhumed purely for humanitarian purposes, and bodies identified and repatriated to families, evidence that might have been useful for criminal prosecution may be lost.

There was broad agreement amongst the experts that no humanitarian response should be dealt with outside of a forensic framework, and should be conducted on the assumption that a criminal investigation may follow at some future date. With that in mind, the Protocol is written to have meaning for both criminal investigations as well as humanitarian identification efforts and is therefore compatible with the overarching international human rights framework.

All that said, it also important to acknowledge that there is a further aspect to identification: the symbolic, social component82. Despite the focus here being on positive identification, as a source of information and as a precondition for the return of human remains, since the return of human remains is contingent on such identification, this points towards the importance of careful consideration of families and communities’ needs in terms of outcome. While therefore differing circumstances across the globe may complicate and hamper verification processes, including accurate identification, the significance of striking a legitimate balance in mass grave protection and investigation to ensure these considerations are given due regard, is pertinent.

Da Silva v United Kingdom Grand Chamber Judgment, ECtHR Application No. 5878/08 (30 March 2016).

Erlich, H., Stover E. and White T., Silent Witness. Forensic DNA Evidence in Criminal Investigations and Humanitarian Disasters (Oxford University Press 2021); and in the context of migration Barnert E. et al., ‘Using DNA to reunify separated migrant families’ (2021) Science – Policy Forum (online preprint).

82 Bennett, C., ‘Is DNA always the answer?’ In Parra, R. C., Zapico S., and Ubelaker D., (eds) Forensic Science and Humanitarian Action: Interacting with the Dead and the Living (Wiley & Sons 2020) 521. See also Rosenblatt A., Digging for the disappeared. Forensic Science after Atrocity (Stanford University Press 2015).

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E. Return of human remains

F. Justice

Once an investigation is completed and identification and/ or judicial processes have concluded, bodies, including body parts, should be returned to families so that they can be disposed in accordance with their cultural and religious beliefs and practices. This may require the establishment of specific return processes, and will include communication strategies and channels with affected families.

During the first roundtable event, a number of participants raised the issue of the costs of return, and who should bear them. In response to this, the Protocol includes a recommendation that the process of return should include ‘where possible, the offer of, or referral to, resources for assistance to the bereaved families and communities’.83 In addition, participants raised as an issue the challenges of return in cases where no family members remain alive, where a family member is simply so overwhelmed that they cannot undertake delivery of the remains, or where the offer of return of only partial remains is rejected. The Protocol responds to these issues in the remainder of section E, with particular reference to cultural sensitivity and the need to preserve the option for return at a later stage.

Conversely, in the absence of a body and when identification and repatriation may not be available, a declaration of absence can be made. The importance of declarations of absence where the death of a disappeared cannot be ascertained with certainty was recognised in the 1950 Convention on the declaration of death of missing persons, the preamble acknowledging, the ‘difficulties of a legal nature which have placed a great number of human beings in a precarious position’ adding that the solution to these challenges ‘calls for measures of international cooperation.’84 Present day parallels can be found where, in the absence of a death certificate, a ‘Declaration of Absence’ may be made as, for example, permitted under Colombian Law. Declarations of absence should not, however, interrupt/close investigation to determine fate/ whereabouts.85 This point is all the more important in light of a Human Rights Committee decision, where the Committed found that ‘to oblige families of disappeared persons to have the person declared dead in order to be eligible for compensation while an investigation is ongoing, makes the availability of compensation dependent on a harmful process, and constitutes an inhumane and degrading treatment in violation of article 7, read alone and in conjunction with article 2, paragraph 3, of the Covenant’86

In the words of one of our expert participants, ‘sometimes when we deal with the dead, we forget the living’. In the course of writing section F of the Protocol, the authors were particularly mindful of the multiple, diverse, concurring, competing and sometimes conflicting justice needs that exist in the aftermath of mass atrocities.

There was a clear appetite for underscoring that justice had different meanings for victims - which could include prosecution/punishment as well as or instead of truth-seeking. In addition, there was some recognition that justice can be different for victims, and that for many, criminal justice is not as important to them as practitioners think it is - other forms of justice can be just as valuable - or more so. Moreover, while rehabilitation, as a form of remedy in international law, is clearly intended to directly benefit victims and family members, there is also an inherent societal aspect: poor psychological health in victims and families is associated with low rates of forgiveness, and so is likely to negatively affect any broader reconciliation efforts.87 In light of this, the Protocol seeks to respond to the justice needs of multiple stakeholders: the families of the victims, affected communities, and the State and/or international community. While retributive and restorative/reparative/ victim-centred justice measures are dealt with separately within the Protocol, it is also recognised that there is an inherent degree of fluidity and overlap between them, with both benefitting from the provision of information, evidence and truth that emerges as a result of the mass grave exhumation.

Another point raised is the increased recognition of participatory rights of victims in the investigative process.

Such a victim-aware approach chimes with the report by the Special Rapporteur, urging all engaged parties to work towards a more inclusive human rights framework for the protection and investigation of mass graves. An approach that reflects, for example, indigenous rights: an Indigenous approach to mass graves might, for example, need to consider that ancestors are not limited to bones and bodies, with legal protection needing to extend to material artefacts that will also be in some of these graves; connection to the land may need to be reflected; disclosure issues may arise (in some instances of burial objects, traditions, and rites there is the possibility that many of these are sacred and secret, and thus should not be recorded in any way or shared openly without the consent of communities88).Whilst the Protocol captures aspects of this under our descriptor of ‘culturally sensitive and community consulted approach’, there are perhaps more explicit points to be made.89

Erlich, H., Stover E. and White T., Silent Witness. Forensic DNA Evidence in Criminal Investigations and Humanitarian Disasters (Oxford University Press 2021); and in the context of migration Barnert E. et al., ‘Using DNA to reunify separated migrant families’ (2021) Science – Policy Forum (online preprint).

82 Bennett, C., ‘Is DNA always the answer?’ In Parra, R. C., Zapico S., and Ubelaker D., (eds) Forensic Science and Humanitarian Action: Interacting with the Dead and the Living (Wiley & Sons 2020) 521. See also Rosenblatt A., Digging for the disappeared. Forensic Science after Atrocity (Stanford University Press 2015).

83 Bournemouth Protocol at 14.

84 UN Convention on the Declaration of Death of Missing Persons after the World War II (1939-1945) adopted, 6 April 1950, entry into force 24 January 1952, UNTS Vol 119 at 99.

85 Citroni, G., ‘The Pitfalls of Regulating the Legal Status of Disappeared Persons Through Declaration of Death, (2014) 12 Journal of International Criminal Justice 787 at 790.

86 Before the Human Rights Committee: Rizvanović v Bosnia and Herzegovina (23 May 2014) UN Doc CCPR/C110/D/1997/2020, para 9.6. See also UNCED (2019) supra note 45, Principle 13(4).

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G. Commemoration During the course of our examination into the process of mass graves protection and investigation, a number of our expert participants raised the question: what could be done for families who do not receive a body, where remains are never located or known grave sites are never excavated? The purpose of this final section of the Protocol is to consider commemoration not only as a form of justice for families who have received mortal remains, but also for those who have not, as well as a means of preserving collective memory as an aspect of education and non-repetition.

The literature on commemoration and memory studies is vast.90 In writing the section, the authors were particularly mindful of the potential for memorialisation to be or become a political and potentially divisive symbol of the past. To keep this section firmly rooted in the law we therefore limit our exposition in the Protocol to a legal framework, as reflected in the reference to the Faber v Hungary case, where he European Court of Human Rights concluded that limits on freedom of expression might be necessary in such circumstances.91 Equally important are the rights reflected by the Orentlicher Principles more widely, and specifically in relation to the State’s duty to preserve the collective memory of events.92

Kaminer, D., Stein, D.J., Mbanga, I., and Zungu-Dirwayi, N., ‘The Truth and Reconciliation Commission in South Africa: relation to psychiatric status and forgiveness among survivors of human rights abuses’, (2001) 178 British Journal of Psychiatry 373 at 375.

88 Personal Communication with Dr Alexandra Alberda, Curator of Indigenous Perspectives, Manchester Museum, 29 March 2021. We are immensely grateful for sharing her expertise and pointing to further sources at www.iwgia.org/en/resources.html.

89 E.g. Al-Dawoody, A., Winter K. and Finegan, O., ‘International Committee of the Red Cross (ICRC): Management of the dead under Islamic law’, (2021) 3 Forensic Science International: Reports without pagination. They recommend various approaches that are compatible with Islamic Law in relation to handling of human remains and artefacts.

90 E.g. Barsalou, J. and Baxter, V., The Urge to Remember: The Role of Memorials in Social Reconstruction and Transitional Justice (US Institute of Peace 2007).

91 Faber v Hungary Judgment, ECtHR Application No 40721/08 (24 July 2012) at para 58.

92 Orentlicher Principles supra note 40, Principle 3.

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Epilogue: the cover and the future Despite the well known idiom to not judge a book by its cover, the cover of the Protocol presented challenges: the brief given at the second roundtable was to try to represent and make visible the survivors’ interests and a caring practice of protection and investigation. In reality, this proved rather complicated, and cost us considerable time and effort. Here are some of the examples we considered:

With each of these images93, unintended associations might have been evoked: whilst the Teddy bear of image 1 certainly triggered an emotional response in the viewer, it could be perceived as shock advertising; image 2 is depicting the missing family but may not make the link to a mass grave evident; image 3 whilst liked for its artistic engagement with missingness risked evoking a geographical focus when the Protocol is designed to be universal; and image 4 was criticised for a lack of clarity in relation to the subject of mass graves and potential gender bias.

In the end, we settled for one of the world’s most unremarkable and ubiquitous objects, the flip-flop in a unisex style, half-submerged in soil with rubber-gloved human hands offering attention to it, thus signifying human care and a grave.

Given human history, many mass graves are still to be found and sadly, more are likely to be created. Their resolution and investigation will require the co-ordination and collaboration of a multitude of experts to implement early protection measures, facilitate, where possible,

the investigation and exhumation of the grave for identification purposes and the return of human remains to family members. All this, in turn, must be overseen by relevant authorities, with due regard for the applicable law. Therefore, it is apt to conclude with a comment that stresses the bespoke mass grave management role or office that assumes overall responsibility for the operational management of mass graves, including adherence to standard operating procedures; maintenance of community liaison, health, safety and well-being on-site; implementation of reporting structures and communication strategy; and co-ordination of the identification and return of human remains process.

Mass graves are incredibly complex features that require extensive practitioner engagement, resources and careful consideration of individual and societal needs. Only when they come together can rights to truth and justice be advanced.

Courtesy of Bournemouth University’s Design Team.

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Bibliography International and Regional Legislation • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT) • Convention on the Declaration of Death of Missing Persons after the World War II (1939-1945) adopted, 6 April 1950, entry into force 24 January 1952, UNTS Vol 119 • Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW) • Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 • Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 • Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (adopted 4 November 1950, entered into force 3 September 1953) ETS 5 (ECHR) • Council of Europe (2011), Convention on preventing and combating violence against women and domestic violence, CETS 210 11.V.2011 www.coe.int/en/web/ conventions/full- list/-/conventions/treaty/210 • Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949) 75 UNTS 31 (abbreviated GC I) • Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949) 75 UNTS 85 (abbreviated GC II) • Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949) 75 UNTS 288 (abbreviated GC IV) • International Covenant on Civil and Political Rights (adopted 19 December 1966, entered into force 23 March 1976) 999 UNTS 171 (abbreviated ICCPR) • International Covenant for the Protection of All Persons from Enforced Disappearance (adopted 12 January 2007, entered into force 23 December (2010) UN Doc A/ RES/61/177 (20 December 2006) (abbreviated CED) • International Convention on the Elimination of All Forms of Racial Discrimination, (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 (CERD) • International Criminal Court, Rules of Procedure and Evidence (9 September 2002) • Organization of American States, American Convention on Human Rights “Pact of San Jose, Costa Rica” (B-32) (adopted 22 January 1969, entered into force 18 July 1978) (ACHR)

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• Organization of American States, Rules of Procedure of The Inter-American Court of Human Rights 2009 (1 January 2010) • Organization of African Unity, African Charter on Human and Peoples’ Rights (“Banjul Charter”) (adopted 27 June 1981, entered into force 21 October 1986) CAB/ LEG/67/3 rev. 5, 21 I.L.M. 58 • Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1979) 1125 UNTS 17512 (abbreviated Additional Protocol) • Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force on 1 July 2002) 2187 UNTS 3 (ICC-Statute) • Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR)

UN Documents • UN Assistance Mission for Iraq/UN Office of the High Commissioner for Human Richts, Unearthing Atrocities: Mass Graves in territory formerly controlled by ISIL (6 November 2018) www.ohchr.org/Documents/Countries/ IQ/UNAMI_Report_on_Mass_Graves4Nov2018_EN.pdf • UN Commission for Human Rights, Report of the independent expert to update the Set of Principles to combat impunity (18 February 2005) UN Doc E/ CN.4/2005/102/Add.1 (abbreviated Orentlicher Principles) • UN Committee on Enforced Disappearance, Guiding Principles for the search for disappeared persons (8 May 2019) UN Doc CED/C/7 • UN Educational, Scientific and Cultural Organisation (UNESCO), Universal Declaration on Bioethics and Human Rights (19 October 2005) • UN Educational, Scientific and Cultural Organisation (UNESCO), Universal Declaration on the Human Genome and Human Rights (11 November 1997) • UN Educational, Scientific and Cultural Organisation (UNESCO), International Declaration on Human Genetic Data (16 October 2003) • UNGA, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Resolution adopted on 29 November 1985) UN Doc A/RES/40/34 • UNGA, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Resolution adopted on 21 March 2006) UN Doc A/RES/60/147 • UNGA, Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (15 December 1989) Resolution 44/162 • UNGA, Report of the Special Rapporteur on ‘Human rights standards and possible steps towards the respectful and lawful handling of mass graves’ (12 October 2020) UN Doc A/75/47919

• UNGA, ‘Progress report of the Human Rights Council Advisory Committee on best practices on the issue of missing persons’ (22 March 2010) UN Doc A/HRC/14/42 • UN Human Rights Committee, Study on Best Practices on the Issue of Missing Persons (25 January 2010) UN Doc A/HRC/AC/4/CRP.2/Rev.1 • UN Human Rights Committee, CCPR General Comment No. 31: Nature of the General Legal Obligation on States Parties to the Covenant (26 May 2004), UN Doc CPR/C/21/Rev.1/Add.13 • UN Human Rights Committee, CCPR General Comment No. 6: Article 6 (Right to Life) (30 April 1982) • UN Human Rights Committee, CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or other cruel, inhuman or degrading treatment or punishment) (10 March 1992) • UN Human Rights Council, ‘Guidelines for States on the effective implementation of the right to participate in public affairs’ (2018) www.ohchr.org/Documents/Issues/ PublicAffairs/GuidelinesRightParticipatePublicAffairs_ web.pdf • UN Human Rights Council, Report of the Working Group on Enforced and Involuntary Disappearances on enforced disappearances in the context of migration, 28 July 2017, UN Doc A/HRC/36/39/Add.2.

• UN Office of the High Commissioner for Human Rights, ‘Equal participation in political and public affairs (2020) www.ohchr.org/EN/Issues/Pages/EqualParticipation.aspx • United Nations Office of the High Commissioner for Human Rights (2004), Istanbul Protocol- Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment www.ohchr.org/Documents/Publications/ training8rev1en.pdf • United Nations Office of the High Commissioner for Human Rights (2016), The Minnesota Protocol on the Investigation of Potentially Unlawful Death www.ohchr. org/Documents/Publications/MinnesotaProtocol.pdf • United Nations Office of the High Commissioner for Human Rights (2001), Training Manual on Human Rights Monitoring www.ohchr.org/Documents/Publications/ training7Introen.pdf • United Nations Office of the High Commissioner for Human Rights/Human Rights Center (2020) Berkeley Protocol on Digital Open Source Investigations (advance version) www.ohchr.org/Documents/Publications/ OHCHR_BerkeleyProtocol.pdf • UNSC, Resolution 2474 (11 June 2019) Un Doc S/ RES/2474 • UNSC, ‘Final Report of the United Nations Commission of Experts established pursuant to Security Council Resolution 780 (1992) Annex X Mass graves’ (28 December 1994) UN Doc S/1994/674/Add/2

Domestic legislation • Argentina: Decree No. 187/83 (15 December 1983) • Bosnia and Herzegovina: Criminal Code, Official Gazette of Bosnia and Herzegovina 37/03 (27 June 2003) • Colombia: Law 1531 on the Declaration of Absence of Missing Persons, (23 May 2012) • Iraq: Law No. 13 of 2015, Affairs and Protection of Mass Graves Law, amending Law No. 5 of 2006, Protection of Mass Graves

Relevant guidelines, principles, handbooks, good practice manuals and protocols • aaBB Advancing Transfusion and Cellular Therapies Worldwide (2010), Guidelines for Mass Fatality DNA Identification Operations www.aabb.org/docs/defaultsource/default-document-library/about/guidelinesfor-mass-fatality-dna-identification-operations. pdf?sfvrsn=af1c96a9_0 • Association for the Advancement of Science (March 2019), Location-Based Data in Crisis Situations.

Principles and Guidelines www.aaas.org/sites/default/ files/2019-04/VGI%20Principles%20and%20Guidelines_ FINAL%20%28002%29.pdf • Folke Bernadotte Academy and Swedish National Defence College (2011), Handbook on assisting international criminal investigations https://fba.se/ contentassets/6f4962727ea34af5940fa8c448f3d30f/ handbook-on-assisting-international-criminalinvestigations.pdf • Geneva Academy and International Committee of the Red Cross (ICRC) (2019), Guidelines on investigating violations of international humanitarian law: law, policy, and good practice www.icrc.org/en/document/ guidelines-investigating-violations-ihl-law-policy-andgood-practice • Global Rights Compliance (2016), Basic Investigative Standards for first Responders to International Crimes www.globalrightscompliance.com/ uploads/2a712b82b7363354be0b3b5011d71795.pdf • International Bar Association: Human Rights Institute (2009) Guidelines on International Human Rights FactFinding Visits and Reports (“Lund-London Guidelines”) www.refworld.org/pdfid/4a39f2fa2.pdf • International Commission on Missing Persons (ICMP) (2018), Guidelines for First Responders: Safeguarding known or suspected grave or body disposal locations, ICMP.ST.AA.857.1 www.icmp.int/wp-content/ uploads/2018/10/icmp-st-aa-857-1-doc-guidelines-forfirst-response-at-grave-or-body-disposal-locations.pdf • ICMP (2019), The ICMP Paris Principles, Annotated Version, ICMP.DG.468.1.W.doc www.icmp.int/wp-content/ uploads/2019/04/icmp-dg-1468-1-W-doc-parisprinciples-annotated.pdf • International Committee of the Red Cross (ICRC) (2009), Guiding Principles/Model Law on the Missing www.icrc.org/en/document/guiding-principles-modellaw-missing-model-law 21

• ICRC (2016), Management of Dead Bodies After Disasters: A Field Manual for First Responders www.icrc.org/en/publication/0880-management-deadbodies-after-disasters-field-manual-first-responders • ICRC (2020), Accompanying the Families of Missing Persons - a practical Handbook www.icrc.org/en/ publication/4110-accompanying-families-missingpersons-practical-handbook • International Criminal Court (2008), Code of Conduct for Investigators, ICC/AI/2008/005 www.icc-cpi.int/resourcelibrary/Vademecum/Code%20of%20Conduct%20for%20 Investigators.PDF • Interpol, (2018) Disaster Victim Identification https:// www.interpol.int/en/How-we-work/Forensics/DisasterVictim-Identification-DVI • Inter-Parliamentary Union and ICRC (2009), Missing Persons – A Handbook for Parliamentarians www.icrc. org/en/publication/1117-missing-persons-handbookparliamentarians • Public International Law and Policy Group (PILPG) (2015), Field Guide for Civil Society Investigation and Documentation of Gross Human Rights Violations www.publicinternationallawandpolicygroup.org/toolkitsand-handbooks

• Ituango Massacres v Colombia Judgment Preliminary Objections, Merits, Reparations and Costs, IACtHR Series C No 148 (1 July 2006) • ‘Las Dos Erres’ Massacre v Guatemala Judgment on Preliminary Objections, Merits, Reparations and Costs, IACtHR Series C No. 211 (24 November 2009) • Manuel Cepeda Vargas v Colombia Judgment Preliminary Objections, Merits, Reparations and Costs, IACtHR Series C No. 213 (26 May 2010) • Mapiripán Massacre v Colombia Judgment on Merits, Reparations and Costs, Inter-American Court of Human Rights Series C No 134 (15 September 2005) • Pueblo Bello Massacre v Colombia, Judgment on Merits, Reparations and Costs, Inter-American Court of Human Rights Series C No 140 (31 January 2006) • The Massacres of El Mozote and other Places v El Salvador, Judgment on Merits, Reparations and Costs, Inter-American Court of Human Rights Series C No 252 (25 October 2012) • Velásquez Rodríguez v Honduras, Judgment on Merits, Inter-American Court of Human Rights Series C No 4 (29 July 1988)

European Court of Human Rights

• Rizvanović v Bosnia and Herzegovina (23 May 2014) UN Doc CCPR/C110/D/1997/2020

• Aslakhanova and others v Russia Judgment, ECtHR Application Nos 2944/06 and 8300/07, 50184/07, 332/08, 42509/10 (18 December 2012) • Cyprus v Turkey Grand Chamber Judgment, ECtHR Application No. 25781/91 (10 May 2001).

• Da Silva v United Kingdom Grand Chamber Judgment, ECtHR Application No. 5878/08 (30 March 2016).

• El-Masri v the Former Yugoslav Republic of Macedonia Judgment (Grand Chamber), ECtHR (13 December 2012).

• Faber v Hungary Judgment, ECtHR Application No 40721/08 (24 July 2012) • Hanan v Germany Grand Chamber Judgment, ECtHR Application No. 4871/16 (16 February 2021) • Huseynova v Azerbaijan Judgment, ECtHR Application No. 10653/10 (13 July 2017).

• Kukhalashvili and others v Georgia, Judgment, ECtHR Application Nos. 8938/07 and 41891/07 (2 May 2020) • Johannische Kirche & Peters v Germany, Decision, ECtHR Application No 41754/98 (10 July 2001) • Ramsahai and others v Netherlands, App No 52391/99 (ECtHR, 15 May 2007) • Sabanchiyeva and others v Russia, Judgment, ECtHR Application No 38450/05 (6 June 2013) • Treskavica v Croatia, Judgment, ECtHR Application No. 32036/13 (12 April 2016)

Inter-American Court of Human Rights • Carpio Nicolle et al. v Guatemala Judgment on Merits, reparations and Costs, IACtHR Series C No. 117 (22 November 2004). (25 March 2016).

• Conteras et al. v El Salvador Judgment on Merits, Reparations and Costs, IACtHR Series C No. 232 (31 August 2011).

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Human Rights Committee

International Criminal Cases • Pohl et al. US Military Tribunal in Nuremberg (3 November 1947) • Prosecutor v Mladić Judgment, IT-09-02-T-117281 (22 November 2017) • Prosecutor v Karadžić Public redacted version of Judgment issued on 25 March 2016, IT-95-5/18-T (25 March 2016).

Academic literature • Al-Dawoody, A., ‘Management of the dead from the Islamic law and international humanitarian perspectives: considerations for humanitarian forensics’, (2017) 99(2) International Review of the Red Cross 759 • Al-Dawoody, A., Winter K. and Finegan, O., ‘International Committee of the Red Cross (ICRC): Management of the dead under Islamic law, (2021) 3 Forensic Science International: Reports (without pagination) • Barnert E. et al., ‘Using DNA to reunify separated migrant families’ (2021) Science – Policy Forum (online preprint) • Barsalou, J. and Baxter, V., The Urge to Remember: The Role of Memorials in Social Reconstruction and Transitional Justice (US Institute of Peace 2007) • Blau, S. et al. (2018), ‘Exploring non-invasive approaches to assist in the protection of clandestine human burials: developing a way forward’, Forensic Science Research 3(2) 304 – 326.

• Boss P., Loss, Trauma and Resilience: Therapeutic Work with Ambiguous Loss (W. W. Norton & Company 2006) • Bennett, C., ‘Is DNA always the answer?’ In Parra, R. C., Zapico S., and Ubelaker D., (eds) Forensic Science and

Humanitarian Action: Interacting with the Dead and the Living (Wiley & Sons 2020) • Citroni, G., (2014) ‘The Pitfalls of Regulating the Legal Status of Disappeared Persons Through Declaration of Death, Journal of International Criminal Justice 12, 787-803 • Cordner, S. and Tidball-Binz, M., ‘Humanitarian forensic action - Its origin and future’ (2017) 279 Forensic Science International 65 • Cox, M et al. (eds) (2008), The Scientific Investigation of Mass Graves: Towards Protocols and Standard Operating Procedures (Cambridge University Press) • Crossland, Z., (2013) ‘Evidential Regimes of Forensic Archaeology’ Annual Review of Anthropology 42: 121-37 • De Boer, H. et al. (2020) ‘Strengthening the role of forensic anthropology in personal identification: Position statement by the Forensic Anthropology Society of Europe’ Forensic Science International • de Léon J., The Land of Open Graves. Living and Dying on the Migrant Trail (University of California Press 2015) • Dubberley, S., Koenig A. and Murray D. (eds), Digital Witness (Oxford University Press 2020) • Dunn, J. L., Judging Victims: Why We Stigmatize Survivors and How They Reclaim Respect (Lynne Reinner Publishers 2010) • Erlich, H., Stover E. and White T., Silent Witness. Forensic DNA Evidence in Criminal Investigations and Humanitarian Disasters (Oxford University Press 2021) • Ferrer Mac-Gregor, E., ‘The Right to the Truth as an autonomous right under the Inter-American Human Rights System’ (2016) 9(1) Mexican Law Review 121 • Freeman L., ‘Digital Evidence and War Crimes Prosecutions: The Impact of Digital Technologies on International Investigations and Trials’ (2018) 41(2) Fordham International Law Journal 283 • Gaggioli, G., ‘International Humanitarian Law: The Legal framework for humanitarian forensic action’ (2018) 282 Forensic Science International 184 • Haglund W., ‘Recent Mass Graves: An Introduction’ in Haglund W. and Sorg M. H. (eds), Advances in Forensic Taphonomy: Method, Theory and Archaeological Perspective (CRC Press 2002) • Hanson, I. ‘Forensic Archaeology and the International Commission on Missing Persons (ICMP): Setting Standards in an Integrated Process’ in: Groen, M., Márquez-Grant, N. and Janaway, R. (eds.) Forensic Archaeology: Global Perspectives (Wiley-Blackwell 2015) 415 • Hanson, I., ‘Mass grave investigation and identifying missing persons: Challenges and innovations in archaeology and anthropology in the context of mass death environments’ In: Morewitz, S. and Sturdy Colls, C. (eds.) Handbook of Missing Persons (Springer 2016) 491 • Henckaerts J-M. and Doswalk-Beck L., Customary International Humanitarian Law, Vol. 1: Rules (ICRC 2006).

• Jessee, E., ‘Promoting Reconciliation through exhuming and identifying victims in the 1994 Rwandan genocide, (2012) 4 CIGI Africa Initiative: Discussion Paper Series

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News and websites • EyeWitness (2021), ‘Welcome to eyeWitness’ www.eyewitness.global/welcome • Health and Human Rights Info www.hhri.org/thematicpages-overview/survivors-of-human-rights-violations • Phillips, T., ‘The disappeared’: searching for 40,000 missing victims of Mexico’s drug wars’, The Guardian, 6 November 2019, www.theguardian.com/world/2019/ nov/06/mexico-drug-wars-thousands-disappearmissing?CMP=share_btn_tw

Authors Dr Melanie KLINKNER

Dr Ellie SMITH

Professor in International Law, Department of Humanities & Law, Bournemouth University

Researcher, Department of Humanities & Law, Bournemouth University and Principal Associate at Global Security and Disaster Management Ltd

The Translations ‫بروتوكول بورنموث حول‬

The Bournemouth Protocol on

Mass Grave Protection and Investigation

1

1

proteção e investigação de valas comuns

1

ႏွင့္ စံုစမ္းစစ္ေဆးေရးအတြက္ Bournemouth လုပ္နည္းက်င့္၀တ္

1

万人坑保护和调查的 伯恩茅斯议定书

Itifaki ya Bournemouth kuhusiana na

Ulinzi na Uchunguzi wa Makaburi ya Halaiki

массовых захоронений

1

အုပ္စုလိုက္ေျမျမွဳပ္ႏွံျခင္းဆိုင္ရာ ကာကြယ္ေရး

sur la protection et l’investigation des charniers

Борнмутский протокол по защите и расследованию

O Protocolo de Bournemouth sobre

1

Le protocole de Bournemouth

investigación de las fosas comunes

1

‫بە پاراستن و لێکۆڵینەوە لە‬ ‫گۆڕی بەکۆمەڵ‬

1

Protocolo de Bournemouth sobre la protección y la

zaštiti i istraživanju masovnih grobnica

‫پرۆتۆکۆلی زانکۆی بۆرنماوث سەبارەت‬

‫راجع به محافظت و تحقیق‬ ‫درباره قبر دسته جمعی‬

1

Bournemouth-ov protokol o

1

)Bournemouth( ‫پروتکل بورنموت‬

‫حماية المقابر الجماعية‬ ‫والتحقيق بشأنها‬

1

1

25

11070 07/21

The project is funded by the UK’s Arts and Humanities Research Council. The Arts and Humanities investigate the values and beliefs which underpin both who we are as individuals and how we undertake our responsibilities to our society and to humanity globally.

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