11 Jul What Is a Mass Grave? Why Protect Mass Graves? How to Protect Mass Graves?
[Melanie Klinkner is Professor in international law, with particular expertise on mass graves, missing persons and the right to the truth, at Bournemouth University. Ellie Smith is a Research Fellow at Bournemouth University presently working on a Leverhulme funded project into mass grave mapping. Jonathan Whittle is an international human rights scholar and lecturer in law at Bournemouth University.]
In the context of the ongoing armed conflict between Russia and Ukraine, mass graves have become widely associated with the possible commission of war crimes as investigators and forensic experts have started probing alleged crime scenes , including excavations of mass graves.
The international legal landscape seeking to safeguard the dignity of the dead, outlined in timely Opinio Juris posts, and the importance of securing mass graves as crime scenes have been noted. However, amidst the continued struggle in Ukraine to find, account for and bury the many casualties of war, it is time for a more in-depth reflection on the question of what is a mass grave? Why and how should they be protected? What important information and evidence can be gleaned from their investigation? And what is their relevance for the future?
The discovery of mass graves raises two major concerns: firstly, whether the individuals contained in the mass grave died as a result of an illegal act, and secondly, whether bodies in the grave were disposed of without observance of the applicable legal and socio-cultural norms.
What is a Mass Grave?
In a very ordinary understanding, the term may simply denote a burial structure for multiple dead bodies. But an agreed or common legal definition is lacking, in part because there is no such thing as a standard or typical mass grave due to some challenging considerations:
- The number of bodies contained in the grave: What is the minimum number of bodies required before the “threshold” of the term is met?
- A Common cause of death: Should victims in mass graves share a similar cause and manner of death, even where that cause is not linked to a crime?
- What structures constitute a mass grave? The properties of graves may vary, from deliberate constructions (man-made graves) to body disposals in rivers, wells and ravines, as well as surface scattered remains as a form of quasi-burial.
- The method of disposal: Some authors, for example, suggest that an identifying feature of a mass grave is that the bodies it contains are in close contact, placed indiscriminately and tightly together, without signs of dignity and respect for the individuals contained therein.
- Time/sequence of disposal: the conundrum here is that mass graves may be sites of multiple interventions and violations over time. Some burial places may be the primary, secondary or even tertiary place of internment and body disposal. This can affect the structure and cause the commingling of human remains, as well as exposure to other extraneous factors impacting on the site and decomposition of human remains (which will all impact on an investigative effort). Mass graves are not necessarily static, and even if not considered a mass grave initially, they may become so.
- Forensic relevance: Would the presence or absence of forensic interest or relevance affect any definition? Is there a requirement of criminality/unlawful action before a site can be termed a mass grave? Sites containing multiple bodies can, for example, result from natural and man-made disasters, where mass burials are the consequence of sanitary requirements or arise for practical reasons as a form of temporary storage with a view to another burial at a later point. Multiple burials may also be prehistoric and thus not of particular forensic significance.
In practice, in order for a mass grave to engage the international legal sphere and to warrant protection (like other war graves) and investigation, the potential impropriety and/or unlawfulness in either the circumstances surrounding the death of those in mass graves or the method in which the human remains were disposed of are key factors. This is why, in the Bournemouth Protocol on Mass Grave Protection and Investigation, as a result of expert consultation, we proffer the following definition:
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.
The term “mass grave” denotes a certain gravity and severity of events that, in the same way as the term “torture”, attracts a specific stigma that should draw the utmost condemnation and galvanise the international community. As such, it is not a term that should be used lightly. At Bournemouth University we are presently tracking mass grave reporting from Ukraine. The OSCE, Human Rights Watch and the UN, following the UN Secretary General’s visit, have thus far used the term sparingly in relation to alleged atrocities committed in Bucha, Ukraine.
At the same time, the significance of a standard definition lies in what it leads to in practical terms: mass graves require specific attention in relation to how they are protected in order to facilitate the significant planning and coordination of their investigation, as well as consideration in terms of the societal relevance they have – including in political, social, community and cultural terms.
International Legal Protection for Mass Graves
In the event of a human rights breach, an effective investigation is required under international law. This entails safeguarding the integrity of evidence obtained from a site to ensure that a mass grave is not tampered with or disturbed by third parties (including first responders).
In the context of armed conflict, explicit provisions attach to any grave. Under International humanitarian law, Article 34(2) (b) of Additional Protocol I requires the protection
of grave sites. There is also a need to “take all possible measures to prevent the dead from being despoiled”, with desecration or mutilation of dead bodies being categorically prohibited; and respectful disposal of dead bodies including respect for and maintenance of the graves (Rule 115) is required.
In relation to the atrocities in Ukraine, and applying the proffered definition of “mass grave”, the burial of killed civilians in Mariupol from early March may constitute a mass grave because the way in which people were killed (not necessarily how they were buried) may constitute an unlawful act. The burial sites in Bucha might also constitute mass graves because of an unlawful method of body disposal in addition to the unlawful killing. Furthermore, once killings are fully verified, it is possible that surface scattered human remains (i.e. at the side of a road) may also constitute a mass grave, and reports point to the existence of such circumstances.
How Are Mass Graves Protected?
Protection of the site is paramount to preserve the integrity of remains, associated evidence and lines of enquiries. Protection measures ought to safeguard the human remains against contamination, desecration, robbery, scavengers and the movement/relocation of bodies to secondary sites, where a perpetrator is seeking to evade detection.
Assuming that access to the site can be secured, protection can be achieved through fencing to secure the outer perimeters; horizontal coverage to protect surface-lying remains and security guards and on-site monitoring. Such measures are also dependent on the length of time between discovery and investigation, the local context and the vulnerability of the site (i.e. exposure to elements and animals). Off-site monitoring through satellite imagery may provide an additional safety feature.
From Protection to Co-ordinated Investigation
Understanding from the outset that the crime scene is a suspected mass grave will impact decision making in terms of investigative approaches taken. We argue that a mass fatality manager should assume overall responsibility for the operational management of mass graves, including adherence to standard operating procedures; maintenance of community liaison, health, safety and well-being on-site; implementation of reporting structures and communication strategy; and co-ordination of the identification and return of human remains process.
Mass graves require specific forensic expertise: to confirm the existence of a mass grave, often test trenches are dug from which to then start determining size and depth using geophysical, probing and surface stripping methods. Excavations of mass graves are a destructive process requiring agreed standard operating procedures that extend from the grave site to the mortuary.
What Are Investigators Looking For?
Mass grave evidence has proven important for the successful prosecutions of international crimes in the past. In the cases of Ratko Mladić and Radovan Karadžić, for example, forensic investigations into the Srebrenica massacre and the associated mass graves assisted in proving their involvement in implementing and orchestrating the forcible transfer and eventual elimination of the Bosnian Muslim population from Srebrenica. As we commemorate the 27th anniversary of Srebrenica combatting the denial of such atrocities with independent, effective investigations is as important as ever.
The investigative objectives for international criminal investigations of mass graves typically are to:
- Determine the identity of victims;
- Corroborate victim and witness accounts;
- Determine an accurate count of victims;
- Determine cause and time of death;
- Determine the sex of victims;
- Determine, in the context of armed conflict, whether they were combatants or not;
- Identify links to the perpetrator(s);
- Connect multiple crime scenes; and
- Discern systematic patterns and sequence of events.
Understanding the complexity of mass graves and the associated level of evidence collection and analysis required, will aid identification as well as prosecution efforts. Soil samples, for example, can establish links between crimes scenes, victims contained therein and potential perpetrators; archaeological stratigraphy may help to establish the relative sequence of events; and the position of bodies in graves may assist in establishing the cause and manner of death and help to ascertain what happened to the bodies after they were disposed of. This, in addition to the array of evidence typically associated with unlawful death investigations (for a summary integrated in a practitioner guide, see here).
With Ukraine’s domestic authorities (under the direction of Ukraine’s Prosecutor General and with significant international support) and the International Criminal Court actively engaged in investigating crimes committed on its territory, and with further accountability mechanisms contemplated, understanding what a mass grave is and what information it may contain will help secure protection and investigation to the standards required.
The Enduring Significance of Mass Graves
Mass graves, as defined here, are spread across the globe and are undoubtedly sites of human cruelty and suffering. While their significance for the surviving families and communities may differ from place to place, individual to individual, community to community, their impact cannot be underestimated. What is seemingly universal is the need to know the fate and whereabouts of loved ones and to have mortal remains returned for dignified commemoration. Furthermore, mass grave sites have been recognised as an important element for future-oriented processes, with the then UN Special Rapporteur recommending that “the preservation, protection and respectful and lawful handling of mass graves should be a component of all truth and reconciliation processes and peace treaties” [at para 70], which , in the context of Ukraine, Syria and Yemen seems extremely important.
To secure an awareness of their significance, and to aid accurate documentation, protection, and investigation, an agreed definition under international law would prove helpful. This will also help to signpost the many reasons why mass graves may exist. Habitually, mass graves are associated with conflict and gross human rights violations, but climate change, migration and trafficking also have the potential to produce significant loss of life, including the creation of mass graves. International law increasingly is attributing the causation of these events to (foreseeable) actions and actors, including States. Without even an agreed legal definition, we are ill equipped, as an international legal community, to fully and effectively respond to the enormous challenges that mass graves present.