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

12Bournemouth Protocol, at 4 13Juhl, K. and Olsen, O.E., ‘Societal Safety, Archaeology and the Investigation of Contemporary Mass Graves’ (2006) 8(4) Journal of Genocide Research 411. 14Schmitt, 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. 15Authors 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. 16Mass 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). 17E.g. Crossland, Z., ‘Evidential Regimes of Forensic Archaeology’ (2013) 42 Annual Review of Anthropology 121. 18UNSC, Resolution 2474, 11 June 2019, UN Doc S/RES.2474

persons relates to individuals ‘of whom their families have no news and/or who, on the basis of reliable information, have been reported missing’19. This chimes with the definition of Missing Persons governing the International Commission on Missing Persons. Its mandate seeks to ‘secure the co-operation of governments and other authorities in locating and identifying persons missing as a result of conflicts, human rights abuses, disasters, organized violence and other causes and to assist them in doing so.’20 Furthermore, in a 2017 publication, the ICRC suggests that the definition of missing persons includes disasters and those going missing in the context of migration21 and includes reference to the International Convention for the Protection of all Persons from Enforced Disappearance, which forms part of the Human Rights Treaty Body. The definitions advanced by the International Committee of the Red Cross (ICRC) and ICMP venture into the realm of international and domestic laws: those governing migration22, human rights abuses but also disaster response. A further key actor in relation to missing persons and their identification as result of a disaster is Interpol with its well-established Disaster Victim Identification approach.23 As mentioned above, a core question was whether to include migrants and missing migrants as part of the study. A number of missing persons definitions encompass missing migrants; whilst the Protocol does not cater specifically for the recovery and identification of missing migrants, this is, without doubt, a pertinent issue of our time. Important in the realm of missing persons as an issue is to acknowledge the families’ needs to know the fate and whereabouts of the missing relatives,24 which is why the Protocol also offers a working definition of the term ‘family’ (discussed below). A further definition was needed for the term ‘victim’:

By victim the Protocol means ‘persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative in the State or as a result of acts which constitute gross violations of international human rights law or serious violations of international humanitarian law’. Consistent with international law, the definition of victim used in the Protocol encompasses not only individuals located in a mass grave (‘primary’ or ‘direct’ victims), but also their families and, where relevant, communities (‘secondary’ or ‘indirect’ victims). The definition proffered is a composite definition from the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, at Annex A, 125 and UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Annex V, 826. It echoes Article 24(1) of the International Convention for the Protection of All Persons from Enforced Disappearance27 . In fact, Article 24 in full is important as it maps the various rights that victims have that, in turn, drive the framework for mass grave protection:

1. For the purposes of this Convention, “victim” means the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance. 2. Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard. 3. Each State Party shall take all appropriate measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains. 4. Each State Party shall ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation. 5. The right to obtain reparation referred to in paragraph 4 of this article covers material and moral damages and, where appropriate, other forms of reparation such as: (a) Restitution; (b) Rehabilitation; (c) Satisfaction, including restoration of dignity and reputation; (d) Guarantees of non-repetition.

19Inter-Parliamentary Union and ICRC (2009), Missing Persons – A Handbook for Parliamentarians www.icrc.org/en/publication/1117-missing-personshandbook-parliamentarians at 9. 20International Commission on Missing Persons (2020), Mandate, available at: www.icmp.int/about-us/mandate. 21No author, ‘Q&A: The ICRC’s engagement on the missing and their families’ (2017) 99(2) International Review of the Red Cross 535 at 536. Londoño, X. and

Ortiz Signoret, A., ‘Implementing international law: An avenue for preventing disappearances, resolving cases of missing persons and addressing the needs of their families’ (2017) 99(2) International Review of the Red Cross 547. 22Notably here is also the recognition of disappearances in the context of migration: UN Human Rights Council, Report of the Working Group on Enforced and Involuntary Disappearances on enforced disappearances in the context of migration, 28 July 2017, UN Doc A/HRC/36/39/Add.2. 23Interpol, (2018) Disaster Victim Identification, available at: www.interpol.int/en/How-we-work/Forensics/Disaster-Victim-Identification-DVI. 24For example, Londoño and Ortiz supra note 21 at 564. 25UNGA, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Resolution adopted on 29 November 1985) UN Doc A/

RES/40/34. 26UNGA, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and

Serious Violations of International Humanitarian Law (Resolution adopted on 21 March 2006) UN Doc A/RES/60/147. 27International Convention for the Protection of All Persons from Enforced Disappearance (adopted 12 January 2007 entered into force 23 December 2010) UN Doc A/RES/61/177 (20 December 2006).

6. Without prejudice to the obligation to continue the investigation until the fate of the disappeared person has been clarified, each State

Party shall take the appropriate steps with regard to the legal situation of disappeared persons whose fate has not been clarified and that of their relatives, in fields such as social welfare, financial matters, family law and property rights. 7. Each State Party shall guarantee the right to form and participate freely in organizations and associations concerned with attempting to establish the circumstances of enforced disappearances and the fate of disappeared persons, and to assist victims of enforced disappearance. (emphasis added)

The definition here (and the sources it is derived from) therefore matches also the processes identified in the normative provision of the Protocol for each of its sections. Indeed, section F of the Protocol draws on these provisions of victim rights. They reflect that ‘the question of missing persons entails consequences not only for the victims themselves, but also for their families, especially women, children and older persons, and in this regard recognizing the importance of addressing the legal situation of missing persons in connection with armed conflict and supporting their family members through national policies that include a gender perspective, as appropriate.’28 During the October 2019 roundtable, discussion of the term ‘victim’ also included potential use of the alternative term ‘survivor’ when referring to the families of the missing. The term ‘survivor’, as an alternative to ‘victim’, grew out of the feminist movement in the 1980s, and was specifically applied to women and girls who had experienced sexual violence.29 The respective connotations of the two terms are significant: while ‘victim’ may have connotations of helplessness and passivity, ‘survivor’ is considered a term of empowerment and individual agency: ‘[t]o the extent that victims are presented as trapped, and survivors, conversely, are shown as making choices, they are constructed in ways that place them at opposite poles of an agency continuum’.30 The adoption of the term ‘survivor’ over ‘victim’ has since been used beyond the feminist movement to apply to victims of abuses - including gross human rights abuses - more widely, including by those organisations working directly with individuals in a therapeutic context.31 Since initially adopting and favouring ‘survivor’ as a term to describe those affected by gross human rights violations, therapists have come to recognise that a transition from victimhood to survivorhood may in fact be a feature of the rehabilitative journey, that individual identities may vacillate between the two or accommodate both at once, such that the terms are not necessarily mutually exclusive. By contrast, international criminal law uses the term ‘victim’ exclusively. While it was acknowledged that the term ‘survivor’ may have particular benefits in some circumstances for affected individuals and communities, it was also noted that the term ‘victim’ is widely defined and understood in both international criminal and human rights law. In light of the specific normative approach taken to the development of the Guidelines, it was felt that this clear international understanding of the term ‘victim’, including the existence of legal definition, meant that use of ‘victim’ over ‘survivor’ was to be favoured in this case. Moreover, at a practical level, it was felt that the word ‘survivor’ implied that the affected individuals (in this case, the families of the missing) had themselves undergone the abuses leading to the mass grave. Whilst it was recognised that this might be true in a number of cases (where, for example, family members had escaped at the last minute or survived an event that had killed many others) it could not be said to be universally the case. By contrast, the proffered definition of victim, centred on the experiencing of harm rather than the specific perpetration of any abusive act, readily encompasses indirect victims such as family members of the missing who suffer harm in the form of ambiguous loss32 .

Attempting a definition of family was bound to be fraught with difficultly, as it may be an indicator of ‘closeness’ to the primary victim and therefore requiring a complex subjective assessment. How the term is used in the Protocol is designed to indicate who might constitute ‘family’ for the vital purpose of participatory rights, communication, contact and ultimately the return of human remains. In that sense, the Inter-American Court of Human Rights speaks of a genetically proven relationship

Like ‘mass grave’, the term ‘family’, (often the secondary victim of the atrocities) is also undefined in international law, and used as a concept that relates to societal practice in a specific context. For the purpose of this Protocol, family membership is significant for determining, for example, next of kin, the appropriate recipient of mortal remains and issuance of legal status documentation in respect of a missing person. Family membership should be determined according to local laws, customs and practices. 33

28UNGA, Resolution on Missing Persons, 23 January 2019, UN Doc A/RES/73/178 at 2 29Used, for example, in the work of Kelly, L., Surviving Sexual Violence (Polity Press 1988). 30In Dunn, J. L., Judging Victims: Why We Stigmatize Survivors and How They Reclaim Respect (Lynne Reinner Publishers 2010). 31See, for example, Health and Human Rights Info, a resource site that provides information about the mental health consequences of gross human rights abuses and conflict, which notes the use of both terms, and favours the use of the word ‘survivor’, available at www.hhri.org/thematic-pages-overview/ survivors-of-human-rights-violations. 32On the subject of ambiguous loss, see Boss, P., Loss, Trauma and Resilience: Therapeutic Work with Ambiguous Loss (W. W. Norton & Company 2006). 33For a fuller discussion on the term family in international law see La Vaccara, A., When the conflict ends, while uncertainty continues: accounting for missing persons between war and peace in international law (Pedone/Hart 2019). 34Pueblo Bello Massacre Colombia, Judgment on Merits, Reparations and Costs, Inter-American Court of Human Rights Series C No 140 (31 January 2006) para 273.