D. Identification

The principle tenets of the duty to investigate explained through the case of Armani Da Silva v the

United Kingdom. 80 As stressed throughout the Protocol, the need for an effective investigation is unequivocal and a duty placed on States. In concreto, this means: (1) As a precondition, that those in charge of and carrying out the investigation have to be independent; for independence is critical for the public’s confidence [232] (2) An investigation must be ‘capable of leading to the establishment of the fact’ but also the circumstance that led to the violation and the identification of those responsible as well as, where appropriate, punitive action. [para 233] (3) Establishing the fact requires the gathering and securing of evidence (to include eyewitness testimony and forensic examinations). This is particularly relevant in relation to establishing the cause of death. In fact: ‘any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard’. [233] (4) That said, the effective investigation is an obligation of means and best effort given the contextual parameters, not of result [233]. (5) Conclusion from the investigation ‘based on thorough, objective and impartial analysis of all relevant elements’, [234 emphasis added] meaning that multiple lines of inquiry may need to be pursued. (6) Further, to ensure the legitimate interest are safeguarded, there is a requirement to make the investigation accessible to the victim’s family [235]. (7) Public disclosure of results and access may however be limited if sensitive or security concerns are attached to their release [236]. The Protocol does not detail the scientific steps and processes required for the forensic identification of a body, since this is already found in other referenced documents such as the Minnesota Protocol and Interpol’s Disaster Victim Identification guide. Furthermore, there is ample literature on the progress of DNA in relation to victim identification with, no doubt, continued progress to come.81 Therefore, the focus of the Protocol is on the many functions and aspects of the identification process that require coordination, from the forensic process, the collection of missing persons data and DNA reference samples and the communications strategy required to allow those processes to operate together. During the course of the first roundtable event, participants discussed the differences between exhumations conducted for criminal investigation purposes and those conducted solely for humanitarian, identification and repatriation purposes. In particular, participants noted that the identification of remains may be less important for prosecutors and investigators concerned with the investigation of war crimes, where an assessment of numbers may be more significant in order to establish the scale of an atrocity. Where a grave had been exhumed purely for humanitarian purposes, and bodies identified and repatriated to families, evidence that might have been useful for criminal prosecution may be lost. There was broad agreement amongst the experts that no humanitarian response should be dealt with outside of a forensic framework, and should be conducted on the assumption that a criminal investigation may follow at some future date. With that in mind, the Protocol is written to have meaning for both criminal investigations as well as humanitarian identification efforts and is therefore compatible with the overarching international human rights framework. All that said, it also important to acknowledge that there is a further aspect to identification: the symbolic, social component82. Despite the focus here being on positive identification, as a source of information and as a precondition for the return of human remains, since the return of human remains is contingent on such identification, this points towards the importance of careful consideration of families and communities’ needs in terms of outcome. While therefore differing circumstances across the globe may complicate and hamper verification processes, including accurate identification, the significance of striking a legitimate balance in mass grave protection and investigation to ensure these considerations are given due regard, is pertinent.

80Da Silva v United Kingdom Grand Chamber Judgment, ECtHR Application No. 5878/08 (30 March 2016). 81Erlich, H., Stover E. and White T., Silent Witness. Forensic DNA Evidence in Criminal Investigations and Humanitarian Disasters (Oxford University Press 2021); and in the context of migration Barnert E. et al., ‘Using DNA to reunify separated migrant families’ (2021) Science – Policy Forum (online preprint). 82Bennett, C., ‘Is DNA always the answer?’ In Parra, R. C., Zapico S., and Ubelaker D., (eds) Forensic Science and Humanitarian Action: Interacting with the Dead and the Living (Wiley & Sons 2020) 521. See also Rosenblatt A., Digging for the disappeared. Forensic Science after Atrocity (Stanford University

Press 2015).