B. Protection

Protection measures seek to keep mass graves safe from any kind or attempt at disturbance. Such protection measures, as spelled out in the Protocol, require prior verification of the information received and confirmation of the existence of a mass grave.71 This process is well documented: ‘[p]otential grave locations pinpointed through analysis of available multisource intelligence. For example, witness information and analysis of aerial images; Grave site located and confirmed by prioritising most effective search techniques after permissions and court orders for search and excavation are issued’.72 Protection brings to the fore the protracted issue of who owes protection, and under international law the onus is clearly placed on States as the primary entity with responsibility and authority.73 But, as outlined in the user section of the Protocol and above on legitimate practitioners, there are other agents that may be involved in protection efforts, including at global level: international organisations such as the International Commission on Missing Persons and the International Committee of the Red Cross, as well as UN-initiated investigative mechanisms. In addition, from within the State and at times with international involvement, there may be NGOs, family organisations and civil society agents all invested in the process. The question that arises then is what and/or whom is protected? The Protocol spells out mechanisms through which the actual mass grave site and access to the site can be protected and preserved. In addition to ensuring individuals can safely report (under section A), protection of mass graves can also safeguard survivors and victims’ interests by ensuring the protection of human remains. Protecting the dead may lead to individuation, identification, return, memorialization and justice avenues. It is therefore the first step towards an investigation (see section C). While site protection is essential for the preservation of evidence, participants observed that certain forms of protection came with their own risks: alerting perpetrators to the fact that a site is known can lead to deliberate interference with sites in an attempt to destroy evidence, including attempts to relocate the bodies into secondary or even tertiary graves. According to Van Schaak, [m]ass graves are particularly vulnerable to destruction as they provide strong evidence of crimes against humanity and other international crimes’.74 The practice of mass grave disturbance or destruction, including the relocation of bodies to secondary and tertiary sites as a means of avoiding detection, are clearly evidenced in Srebrenica and documented in the proceedings of the International Criminal Tribunal for the Former Yugoslavia (ICTY).75 Forensic experts engaging in the excavation of various mass grave sites around the world observe that: ‘[i]n our experience working on mass graves in the Balkans, Guatemala, and Iraq disturbance is a common occurrence as perpetrators hide and destroy evidence.’76 The disturbance of mass graves can clearly present problems for investigators, including significant contamination of evidence and commingling of body parts. For the families of the missing, the effects of site disturbance can be devastating: many are confronted with the prospect that a body will never be found, or receive incomplete remains for reburial. This risk necessitates careful consideration of whether and how any particular site should be formally protected, and will inevitably depend upon the specific circumstances of the situation and its prevailing context. Protection of sites by unobtrusive means – through the use of digital technologies, drones and satellite imagery – was an issue discussed by many of the participants where there might be a risk of interference or destruction of a site by perpetrators. It became clear during the course of the first roundtable event that the question of protection is further complicated by the widespread use of social media, including the posting and sharing of suspected site locations by first responders, witnesses, journalists and other interested third parties. The plethora of reports on social media and the dark web also presents new challenges for investigators in the verification of site reports, where the number and nature of reporting may be overwhelming, posing additional challenges of both scale and data storage. Even in situations where physical site protection was feasible, expert participants at the first roundtable event were keen to stress the careful balance that needed to be struck in practice in any mass grave investigation between the need for protection of a site – which might include excluding families of the missing from the site – and the need to develop and maintain relationships of trust with families as potential sources of evidence. The identification of civil society actors as interlocutors between investigators and affected communities was seen as a key consideration.

71See, for example the efforts stipulated by the UNSC Resolution (2019) on missing persons, supra note 18. 72Hanson, I. ‘Forensic Archaeology and the International Commission on Missing Persons (ICMP): Setting Standards in an Integrated Process’ in: Groen, M.,

Márquez-Grant, N. and Janaway, R. (eds.) Forensic Archaeology: Global Perspectives (Wiley-Blackwell 2015) 415 at 418. 73For a discussion see, for example, Joseph Raz’ ‘three layered argument’ on individual rights, States who ‘under some conditions states are to be held duty bound to respect or promote the interests (or the rights) of individuals’ (Raz, J., ‘Human Rights Without Foundation’ in Besson S. and Tasioulas J. (eds.)

The Philosophy of International Law (Oxford University Press 2010) at 336), and international bodies. Also noteworthy in this context the discussion by

Jan Klabbers on responsibility placed on international organisations (Klabbers J., ‘Reflections on Role Responsibility: The Responsibility of International

Organisations for Failing to Act’ (2017) 28(4) European Journal of International law 1133. 74Van Schaack (2019) supra note 68. 75Documented, for example, in Prosecutor v Karadžić, Public Redacted Version of Judgment Issued on 24 March 2016, IT-95-5/18-T, 24 March 2016. 76Wright, R. and Hanson, I., ‘Forensic Archaeology under the Auspices of Large Organizations’ in Blau, S.and Ubelaker, D. (eds) Handbook of Forensic

Anthropology and Archaeology (Routledge 2016) 607 at 608.