Universal Standards for Investigation of Mass Graves

1. The problem

Mass graves are an all-too-frequent legacy of conflict and gross human rights violations. The magnitude of the issue is startling: in Iraq over 200 mass graves containing up to 12,000 victims have been found in territory formerly controlled by ISIL; in Srebrenica, Bosnia, some 17,000 sets of human remains from 94 graves and 337 surface areas have been recovered, with 6,982 individuals identified; and Mexico has created a database of clandestine graves with the National Human Rights Commission recording 855 to date, containing 1,548 bodies. Moreover, recent discoveries of mass graves in Libya will be included in investigations by the International Criminal Court.

Those graves contain evidence that is essential to the effective realisation of truth, justice and accountability goals at multiple levels: for victims’ families, affected communities, States in transition and the international community. While the importance of protecting and investigating mass graves is undisputed, the question that has remained is: how can and should mass graves be protected and investigated? The newly-published Bournemouth Protocol on Mass Grave Protection and Investigation (the Protocol) seeks to respond to that question, comprising universal common standards, collaboratively developed by leading experts in the field.

2. Recent developments

This year marks the 25^th anniversary of the first mass grave investigations under the auspices of the International Criminal Tribunal for the former Yugoslavia (ICTY) where much was learnt of how to approach mass graves for international criminal purposes. The International Commission on Missing Persons (ICMP) was created in 1996 to ensure the cooperation of governments in locating missing persons, and the International Committee of the Red Cross has also been active in coordinating humanitarian responses in the Balkans.

A number of ‘best practice approaches’ for the excavations of mass graves are in operation amongst various actors in the field such as the ICMP, Physicians for Human Rights and the Argentine Forensic Anthropology Team. The newly-published Bournemouth Protocol on Mass Grave Protection and Investigation, however, is the first instrument on the subject to embody universal, common standards. And Its publication comes amid a heightened international focus on the search for the missing, the need for proper and respectful mass grave investigation and a reassertion of the rights and needs of victims’ families:

In 2019, the UN’s Committee on Enforced Disappearances issued its Guiding Principles for the Search for Disappeared Persons, which consolidated good practice in the conduct of an effective search. A few weeks later, the United Nations Security Council published Resolution 2474 on Missing Persons; the first ever UN SC Resolution on the subject. In the same year, ICMP presented its Paris Principles, which ‘reflect and advance an emerging global consensus on how to address the issue of persons going missing’, with particular reference to the role and responsibility of the State (Paris Principles, p1). The International Committee of the Red Cross similarly draws attention to the families of the missing in its 2020 publication, Accompanying the Families of Missing Persons: A Practical Handbook.

The specific needs and role of the families of the missing is formally recognised in the November 2020 report of the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Dr Agnes Callamard, who notes that:

‘[p]ositive identification of the dead at its core involves recognition of the anguish of families not knowing the fate of their loved ones. Without identification and legal recognition of death, families of the missing not only are denied dignity in their grief, but they also encounter often debilitating impediments to their exercise of inheritance rights’ [para 28].

She goes on to note that ‘in all circumstances, consultation with families and affected communities is paramount’ [para 35].

Dr Callamard lends her voice and support to the Protocol through her preface where she states? that:

‘[c]onsidered treatment, management and stewardship [of mass graves] is required that upholds the dignity of the dead, alleviates the suffering of families and communities as much as possible, enables the pursuit of truth and justice, and signifies to all an abiding commitment to non-repetition. The Bournemouth Protocol on Mass Grave Protection and Investigation is a major contribution to this end’ [Preface to the Protocol].

3. What’s new:

Against this backdrop, the Protocol offers a cohesive and universal set of guidelines, procedures and standards that relate to the full life cycle of the mass grave, for all actors that are engaged by the process(es). It indicates the many complexities, interactions, context-specificities and resources necessary to undertake an effective mass grave investigation, with an eye on informing decision-makers prior to initiating such an endeavour.

Each section is rooted in international law

The Protocol itself is firmly anchored in international legal provisions, combining and bridging international human rights law, and, where applicable, international humanitarian law and international criminal law. In doing so, it provides a robust legal rationale for mass grave protection and appropriate exhumation. This is significant for victims’ families and survivors, who may care little about which branch of international law applies.

The multi-disciplinary approach reflects the many fields and disciplines that are engaged by the process of mass grave protection, investigation exhumation and documentation, including the identification and repatriation of human remains, whilst recognising the family/survivor as an active participant central to the investigative effort through the provision of witness testimony, description of family members and DNA samples, and, in some cases, physical access to the mass grave site. This multi-disciplinarity was made possible by the highly participative and consultative approach to the development of the Protocol, a process that included the direct engagement of expert practitioners, academics and victim representatives from around the world. This is reflected in the structure of the Protocol’s sections: unlike other protocols, handbook or guiding principles, each section of the Protocol leads with the legal norms before explaining the different steps, actors and considerations that follow.

Proffering the definition of a mass grave

In the absence of a common definition of mass grave in international law, the following is employed:

‘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’.

This definition is the product of detailed debate and discussion between experts from multiple disciplines. The definition was found to have meaning for all participants, irrespective of discipline, and has been recognised by the UN Special Rapporteur in her report on the subject (para 12).

A chronological, holistic approach

Reflecting the complex nature of mass graves and the need to carefully coordinate mass grave investigations in line with the rule of law, the many disciplines and professions simultaneously engaged by the investigation whilst being mindful of the multiple and sometimes divergent needs of families and affected communities, the Protocol follows the chronological stages of mass grave investigation, from: first discovery of the site and the availability of safe reporting procedures; the challenges of site access (including where land is privately owned); issues that relate to the protection of the site – both physically and digitally; the investigation of the site, including overall and operational responsibility, potential team composition and communication channels for both victims’ families and the media; the forensic identification of human remains; the collection and use of evidence from the mass grave at trial; the return of remains and artefacts to family members; additional avenues of justice for families; to aspects of commemoration and memorialisation.

4. Impact and Advocacy

The Protocol also strikes a cautionary note: mass grave investigations are highly complex, lengthy and expensive processes, requiring significant planning, coordination, resources, official authorisation and political will. They will have significant impact on the individual survivors and families; witnesses; victims’ groups; affected communities; specialist agencies; NGOs; local, regional and national authorities and state agencies; and supra-national entities such as UN commissions of inquiry and international organisations. All this means that there will be a wide range of individual, collective and societal interests and needs, which may not be compatible or readily reconcilable. Frequently, in situations of significant scale, it may not be possible to exhume, identify and repatriate all victims from a mass grave. Despite the inevitable pressure of a highly-charged emotional context, investigators should avoid making promises to families they may not be able to keep.

All this reinforces the need for overarching operating principles to include, like many other endeavours before (such as, for example, the Basic Investigative Standards) the principles of:

• do no harm;
• physical and emotional safety;
• independence and impartiality;
• confidentiality;
• transparency;
• communication; and
• realistic expectations.

By stressing the importance of planning, the Protocol also is well-suited as a training and capacity building tool for all involved in mass grave investigation, identification efforts and the wider psycho-social implications of the missing persons effort.

The Protocol is designed to an accessible, visually clear tool that will help the next generation of forensic investigators navigate the law, scientific and societal aspects of mass grave investigation and protection efforts. Eleven translated versions have been prepared, to reach as many areas of the world: mass graves are, unfortunately, a global phenomenon.

But the Protocol is also an advocacy tool. As Kathryne Bomberger, Director-General of the ICMP, said in a recent event ‘Bringing up the Bodies’ (hosted by Asymmetrical Haircuts and The Hague Humanity Hub): when States and governments exhibit the will to address mass graves and sites of atrocity, demonstrating the infrastructure and expertise required can be immensely helpful in working towards the realisation of truth and justice. This, as further underlined by Her Majesty Queen Noor, ICMP Commissioner, will also ‘enable greater co-operation among organisations in a broad array of settings’ [Foreword to the Protocol].

5. A step in the right direction with an agenda for the future

Syria, Yemen and Iraq may be present-day mass grave hotspots as a consequence of armed conflict, but the legacy of mass graves is felt decades after their creation; in the Western Balkans alone an estimated 11,000 missing persons are still unaccounted for.

There are more areas that currently remain blind spots, requiring further consideration to safeguard the dignity of those dead whilst seeking to mitigate the pain and injury of the living. Migration routes on land and at sea, whether for reasons of climate change, human rights abuse, disasters or armed conflict, are increasingly recognised as mass graves where the circumstances surrounding the death or the body disposal method, according to our definition, warrant an investigation as to their lawfulness.

Beyond the individual rights-based approach to mass grave protection and investigation, mass graves have societal implications. Within a growing human rights jurisprudence, the public’s right to know what happened are cited as requirements of a democratic society but also as an educational means to avoid repetition. Lawful and respectful handling of mass graves is an imperative owed to victims’ families and, in the context of truth and justice, to society as a whole.