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.

6 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.