G. Commemoration

During the course of our examination into the process of mass graves protection and investigation, a number of our expert participants raised the question: what could be done for families who do not receive a body, where remains are never located or known grave sites are never excavated? The purpose of this final section of the Protocol is to consider commemoration not only as a form of justice for families who have received mortal remains, but also for those who have not, as well as a means of preserving collective memory as an aspect of education and non-repetition. The literature on commemoration and memory studies is vast.90 In writing the section, the authors were particularly mindful of the potential for memorialisation to be or become a political and potentially divisive symbol of the past. To keep this section firmly rooted in the law we therefore limit our exposition in the Protocol to a legal framework, as reflected in the reference to the Faber v Hungary case, where he European Court of Human Rights concluded that limits on freedom of expression might be necessary in such circumstances.91 Equally important are the rights reflected by the Orentlicher Principles more widely, and specifically in relation to the State’s duty to preserve the collective memory of events.92

87Kaminer, D., Stein, D.J., Mbanga, I., and Zungu-Dirwayi, N., ‘The Truth and Reconciliation Commission in South Africa: relation to psychiatric status and forgiveness among survivors of human rights abuses’, (2001) 178 British Journal of Psychiatry 373 at 375. 88Personal Communication with Dr Alexandra Alberda, Curator of Indigenous Perspectives, Manchester Museum, 29 March 2021. We are immensely grateful for sharing her expertise and pointing to further sources at www.restoringancestralconnections.org/resources. 89E.g. Al-Dawoody, A., Winter K. and Finegan, O., ‘International Committee of the Red Cross (ICRC): Management of the dead under Islamic law’, (2021) 3 Forensic Science International: Reports without pagination. They recommend various approaches that are compatible with Islamic Law in relation to handling of human remains and artefacts. 90E.g. Barsalou, J. and Baxter, V., The Urge to Remember: The Role of Memorials in Social Reconstruction and Transitional Justice (US Institute of Peace 2007). 91Faber v Hungary Judgment, ECtHR Application No 40721/08 (24 July 2012) at para 58. 92Orentlicher Principles supra note 40, Principle 3.