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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