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

53Minnesota Protocol at 3-7. 54Interpol (2018) Disaster Victim Identification Guide, part B annex 1: first principle of good DVI governance at 3. 55Major, 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). 56Jessee, E. ‘Promoting Reconciliation through exhuming and identifying victims in the 1994 Rwandan genocide’ (July 2012) 4 CIGI Africa Initiative:

Discussion Paper Series. 57Phillips, 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

58See, 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