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). 59
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