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The legal basis
for the return of human remains.34 Also noteworthy is the role families (or victim and survivors) play in calling for accountability processes.
Forensic science is designated to retrieve and analyse evidence for the purpose of official, judicial scrutiny by employing scientific methods. The use of such evidence in a court system will mean that it is tested as to its validity and probative value, and it usually has to meet certain admissibility criteria. Therefore, the use of forensic science implies an officially-recognised standard of evidence collection36 but also an awareness that this is for the purpose of public and authoritative scrutiny. This in no way negates the importance of the socio-political, religious and cultural context in which a forensic operation, including due process guarantees, may be situated.37
Finally, for the purpose of the Protocol, the term ‘forensic’ true to its literal meaning ‘in open court’ or ‘public’, implies the scientific, legal and societal realm by bringing matters to and before courts of law and/or other judicial mechanisms (such as a coroner). ‘Forensic Evidence’ or ‘Forensic Science’, at its most basic level, suggests an application of science to law35 and as denoting the application of scientific methods and techniques to the investigation of crime.
The legal basis
Fundamentally, the project argues for mass grave protection and investigation to reflect human rights standards in an inclusive way to ensure the families’ needs (of those that might be in mass graves) are met. The Protocol is anchored in international law to help meet those needs because it proffers a unifying legal approach to mass grave protection and investigation by bringing together the branches of international human rights law, international humanitarian law as well as international criminal law. Reference is also made to disaster victim identification efforts and disaster management efforts, alluding to what has been called ‘emerging international disaster relief/response law’38 . The rights of individuals and corresponding duties of a State may be numerous in relation to mass graves: at a fundamental level the right to life and the right to be free from torture and inhumane treatment have to be guaranteed. The guarantor or duty bearer is the State with its obligation to protect, and in case of breaches, investigate, search and identify. Rights commonly associated with mass graves may be more expansive, as the crime of enforced disappearance illustrates, attracting a catalogue of rights, including, as outlined above, the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment and the right to life, when the disappeared person is killed. But further rights attaching to the primary victim and/or the family are at issue: • The right to recognition as a person before the law; • The right to liberty and security of the person; • The right to an identity; • The right to a fair trial and to judicial guarantees; • The right to an effective remedy, including reparation and compensation39; and • The right to know the truth regarding the circumstances of a disappearance. In addition, since mass graves can be sites of mourning, rights associated with burial rites and commemoration, may be at issue, including: • freedom of religion and belief; • freedom of association and expression; as well as • the right to private life. This also leads to speculation on the generational impact that mass grave have on survivors, affected societies and public understanding of the past40 . Under international law, there is clear prohibition of enforced disappearance and arbitrary killings of unlawful death. Crucially under international human rights law and international humanitarian law, the duty to search and investigate is placed on States. With it comes the requirement for domestic legislation and the establishment of dedicated institutions. Such legislation and institutions are seen as preconditions for an effective response to all missing persons cases. This has found expression by the International Committee of the Red Cross and the United National Security Council Resolution 274741 of 2019, urging the enactment of relevant legislation. Such legislation should be non-discriminatory, ensuring protection, investigation and identification of all individuals to the fullest extent possible. A designated Missing Persons Authority with responsibility for mass graves protection, investigation and recovery of human remains, comprising relevant expertise, is suggested by the ICRC42. Such mechanisms should provide safe ways to receive tracing requests and create a registry of missing persons and associated information.
35The Encyclopedia of Criminology and Criminal Justice (The Wiley Series of Encyclopedias in Criminology & Criminal Justice) 2013, online, Entry on Forensic
Science and Forensic Evidence. Similarly, Clare Moon defines forensic as ‘the application of scientific knowledge and methodology to the resolution of legal problems’ (Moon, C., ‘Human rights, human remains: forensic humanitarianism and the human rights of the dead’, UNESCO (2016) at 2. 36This point is exemplified in Sri Lanka where it is expressed in the Office of Missing Persons Act ‘excavations and exhumations of mass graves must be carried out under the purview of a Magistrates’ Court to ensure the necessary standards are safeguarded (Lasseé, I., ‘The Sri Lankan Office on Missing
Persons: Truth and justice in tandem?’ Puerto (2017) 99(2) International Review of the Red Cross 619 at 636). 37For a discussion see Tuller and Salado (2016) supra note 9 at 221 and 225. 38UNGA (2020) supra note 6 a footnote 61. 39This may include assistance to the family to facilitate an adequate standard of living and education. 40E.g. UNGA (2020) supra note 6 at para 51 and UNCHR, Report of the independent expert to update the Set of Principles to combat impunity (18 February 2005) UN Doc E/CN.4/2005/102/Add.1 (abbreviated Orentlicher Principles). 41UNSC Resolution 2474 (2019), supra note 18 and International Committee of the Red Cross (ICRC) (2009), Guiding Principles/Model Law on the Missing www.icrc.org/en/document/guiding-principles-model-law-missing-model-law especially provisions contained in Article 12, 13, 14 but also Article 2 on proposed definitions. 42Ibid (ICRC).
The caveat here is that this approach may be construed as being confined to missing persons as a result of armed conflict and not necessarily internal disturbance or authorised crimes committed by a political regime. The provision on data protection in Article 18 insinuates that the missing persons information ought not to be used for purposes other than ‘humanitarian’,43 with humanitarian seemingly denoting ‘ improving people’s lives and reducing suffering’44 through neutral and impartial means. A bridge between, on the one hand, missing persons in armed conflict setting coupled with identification for humanitarian purposes only, and missing persons as a result of gross human rights abuses also keen to pursue remedies in the form of criminal justice on the other hand, has been attempted, if only in aspirational soft law initiatives. Principle 13 of the 2019 Guiding Principles for the search for disappeared persons suggest such an approach, with enforced disappearances likely to result in missing persons outside an armed conflict scenario. There are examples where interim mechanisms have been created to fill a legal void, though not all necessarily pursue the dual purpose of truth and justice. In Nepal, the National Human Rights Commission (NHRC) was tasked with, inter alia, searching for missing persons including in mass graves.46 As seen in the case of Sri Lanka’s Office on Missing Persons Colombia’s Unidad de Busqueda47 , and Cyprus’ UN backed mechanism, the pursuit of truth and justice, including cooperation with the corresponding criminal processes, is not always forthcoming.48 That said, there are countries with special legislation specifically for the purpose of searching for missing persons (including Bosnia, Kosovo, Peru and El-Salvador) which stresses the humanitarian purposes but also has provisions for cooperation and coordination with corresponding criminal investigation and prosecutorial mechanisms.49 This is crucial from an operational point of view, since humanitarian and criminal investigations, as suggested by the 2019 Guiding Principles, overlap. The Protocol therefore recognises (and this view is supported by the forensic literature50) that even if criminal prosecution is not immediately envisaged, evidence collected to that standard will enable a future investigation (provided it is handled and stored appropriately). In addition, like Interpol’s DVI provision, there is a recognition that legal bases must be created for the purposes of trans-national investigations. Principle 3(4) outlines this requirement whereby an investigative policy ‘should promote cooperation and collaboration among all State bodies and also with other States and international agencies. It should be translated into appropriate legislative, administrative and budgetary measures and educational policies and other relevant sectoral policies.’51 An example for such an endeavour can be seen in the Framework plan to address the issue of missing persons from conflicts on the territory of the former Yugoslavia, whereby an overarching Missing Persons Group is tasked with facilitating data sharing in an attempt to solve missing persons cases.52
1. The search for the disappeared person and the criminal investigation of the persons responsible for the disappearance should be mutually reinforcing. The comprehensive search process for disappeared persons should be initiated and conducted with the same effectiveness as the criminal investigation. 2. When the search is conducted by non-judicial authorities independent of those that make up the justice system, mechanisms and procedures should be established to ensure cooperation, coordination and an exchange of information between them and the ones responsible for carrying out the criminal investigation, in order to guarantee that the progress and results achieved on both sides feed into one another regularly and without delay. The competencies of
both sets of authorities should be clearly defined
by law, so as to prevent them from overlapping and interfering with one another and ensure that they can be complementary. The existence of mechanisms and procedures for searches by administrative, non-judicial and other bodies cannot be invoked as an obstacle to the pursuit of criminal investigations or as an alternative to them (emphasis added).45
43The Commentary to ICRC Article 18 offers the following explanation: ‘Personal data that has served the purpose for which it was collected should be deleted or destroyed, thus preventing any improper or inappropriate use in the future. Specific information collected or processed for the purpose of locating a missing person or identifying human remains is no longer necessary once the person has been located or the remains identified. It should therefore be destroyed unless there is an overwhelming humanitarian need to retain it for a further and definite period of time. Alternatively, the information can be depersonalized so that it is no longer possible to identify an individual on the basis of it. This may be done for statistical or historical purposes. Personal data that has lost its personal character is no longer protected as personal data.’ para 6 of the Commentary to Article 18. 44Common definition of the adjective ‘humanitarian’ as per the online Cambridge Dictionary. 45UNCED, ‘Guiding principles for the search for disappeared persons’ (8 May 2019) UN Doc CED/C/7. 46Truth and Reconciliation Commission (TRC) and the Commission on Enforced Disappearance Persons (CEDP), see Pradhan G., ‘Nepal’s Experience of
Mass Grave Exhumation’, in Klinkner M. and Smith E., (eds) Mass Graves, Truth and Justice: Interdisciplinary Perspectives on the Investigation of Mass Graves (Edward Elgar forthcoming). 47Colombia’s Unidad de Busqueda (UDB) with its humanitarian and extrajudicial mandate directs, coordinates and contributes to the search for persons reported missing in connection with armed conflict. 48Lassée (2017) supra note 36 49Ibid. 50Tuller and Salado Puerto (2016) supra note 9; Schmitt and Mazoori (2017) supra note 11. 51UNCED (2019) supra note 45, Principle 3(4). 52ICMP, Framework Plan to address the issue of persons missing from conflicts on the territory of the former Yugoslavia (6 November 2018)
