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. 77 77
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