I. Introduction
Whether discovered in the aftermath of a regime change or when a party takes control over territory during a conflict, mass graves are the culmination of immeasurable harm and human suffering, indicating possible war crimes or crimes against humanity.[1] In 2018, after the Islamic State was driven out of its de facto capital city of Raqqa, Syrian workers found at least nine mass graves in and around the city.[2] As recently as July 2021, the Governor of Turkey’s bordering province announced that officials discovered a mass grave in the nearby Syrian province of Afrin, alleging that YPG Kurdish forces were responsible—although Agence France-Presse, who broke the story, was unable to verify the claims.[3]
The preservation of documentary evidence from mass graves allows for its use during criminal prosecution and brings closure to victims’ families and communities.[4] Currently, there is not a uniform international standard for protecting and investigating mass graves.[5] Although witness testimony is important for the International Criminal Court’s (“ICC”) criminal prosecution stemming from mass graves, documentary evidence can corroborate witness testimony and provide further independent proof of wrongdoing.[6] Additionally, preserving evidence from mass graves helps to identify victims and to provide answers to families.
II. Rome Statute and the Bournemouth Protocol
In July 2002, the Rome Statute established the ICC, which has jurisdiction over the crime of genocide, crimes against humanity, and war crimes.[7] The ICC has jurisdiction only over states which are a Party to the Statute and provides for the prosecution of individual persons who commit, order, aid, or otherwise contribute to the commission of these crimes—regardless of their official capacity.[8] In trials, the ICC presumes innocence, and the burden of proof rests with the prosecutor who must establish guilt beyond a reasonable doubt to convict.[9]
In regard to documentary evidence collected by a State, the ICC will not apply the State’s national law, but will instead follow the Rome Statute and the ICC’s Rules of Procedure and Evidence.[10] Under these Rules, the Pre-Trial Chamber has to authorize the prosecutor to investigate and may take such measures as may be necessary to ensure the efficiency and integrity of the proceedings regarding, among other things, examining, collecting, or testing evidence, “which may not be available subsequently for the purposes of a trial.”[11] However, documenting and ensuring the integrity of mass grave evidence may need to occur before an ICC investigation—ideally upon any mass grave’s discovery.
Recently, Melanie Kinkner and Ellie Smith, professors at Bournemouth University specializing in international law and human rights, created the Bournemouth Protocol on Mass Grave Protection and Investigation (“Protocol”)as a set of common standards and a chronology for the entire process across various disciplines.[12] The Protocol defines mass grave (previously undefined in international law) and provides the international legal basis for their proposals.[13] The authors acknowledge that mass graves are context-specific and accompany many challenges because “mass graves typically occur within highly-charged political and/or cultural context, which may still be ongoing at the time of investigation.”[14] Nevertheless, the Protocol highlights the value of uniform standards for mass grave investigation to create evidential links to perpetrators. The Protocol also warns that judicial investigation and prosecution should not take priority over the totality of mass grave investigation and protection efforts.[15]
III. International, Impartial and Independent Mechanism (“IIIM”) in Syria
In late 2016, the United Nations General Assembly established the first International, Impartial, and Independent Mechanism (“Syrian Mechanism”) to facilitate and expedite in the investigation and prosecution of genocide, crimes against humanity, and war crimes in the Syrian Civil War by collecting, consolidating, preserving and analyzing evidence.[16] However, the Syrian Mechanism complements local NGOs and the Independent International Commission of Inquiry on the Syrian Arab Republic, all of whom are primary sources of evidence gathering.[17] The Syrian regime does not allow the Syrian Mechanism to enter the country.[18] Thus, the Mechanism instead focuses primarily on digital documentation.[19] Short of doing the prosecuting itself, the Syrian Mechanism carries a prosecutorial standard for evidence gathering to service future tribunals.[20]
Ultimately, the evidence collected by an IIIM needs to be admissible in various courts for this new mechanism to prove effective.[21] For example, in the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, prosecutors introduced documentary evidence that helped lead to various convictions.[22] As of this writing, the Syrian Mechanism is still finalizing its Internal Procedures and Methods of Work, highlighting the need for universal standards for evidence collection, especially in event that mass graves are uncovered.[23] The Syrian Mechanism’s most recent report to the U.N. addressed the challenges brought on by the COVID-19 pandemic: “[b]ecause of the sensitivity of the matters at issue and the legitimate security concerns of many sources, not being to conduct in-person meetings and converse directly has had an impact on the pace of the Mechanism’s new engagements and cooperation discussion.”[24]
IV. Conclusion
The uniform use of the above-mentioned mechanisms could standardize the documentation of incidents, including atrocities such as mass graves, to push for accountability during the conflict instead of after a peace agreement.[25] In 2018, the U.N. Human Rights Council established the Independent Investigative Mechanism in Myanmar with a mandate much like that of the Syrian Mechanism.[26] This suggests that comparable mechanisms will be implemented during other current and future conflicts.
Still, challenges concerning evidence collection and protection of mass graves remain. Because these mechanisms often have limited access to the countries experiencing conflict and local resources may have limited capacity and resources, a uniform standard regarding mass graves could maximize the utility of these efforts to achieve future accountability and justice in the ICC or other courts.
[1] See Rome Statute of the International Criminal Court, Preamble, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute].
[2] Zeina Karam, Hundreds of Bodies Exhumed from Mass Grave in Syria’s Raqqa, Assoc. Press (Nov. 27, 2018), https://apnews.com/article/01c50935854b425295ef8731cdfc42a4 (“The Panorama mass grave . . . is one of the largest of nine mass graves discovered so far, and is believed to contain around 1,500 bodies.”).
[3] Turkey Says Mass Grave Found in Syria’s Afrin, Al Jazeera (July 15, 2021), https://www.aljazeera.com/news/2021/7/15/turkey-says-mass-grave-found-in-syrian-region.
[4] Melanie Kinkner and Ellie Smith, The Bournemouth Protocol on Mass Grave Protection and Investigation, Int’l Comm’n on Missing Pers. 3 (Dec. 9, 2020), https://issuu.com/bournemouthuniversity/docs/the_bournemouth_protocol_on_mass_grave_protection_ [hereinafter Bournemouth Protocol]; see also Melanie Kinkner and Ellie Smith, Universal Standards for Investigation of Mass Graves, EJIL:Talk! (Apr. 1, 2021), https://www.ejiltalk.org/universal-standards-for-investigation-of-mass-graves/?utm_source=mailpoet&utm_medium=email&utm_campaign=ejil-talk-newsletter-post-title_2.
[5] Id.
[6] Alexa Koenig et al., Access Denied? The International Criminal Court, Transnational Discovery, and the American Servicemembers Protection Act, 36 Berkeley J. Int’l L. 1, 7 (2018).
[7] Rome Statue, supra note 1, at art. 5.
[8] Id. at arts. 12, 13, 15, 25, 27 (explaining that the ICC acts when referred by a state party, the Security Council, or when the Prosecutor seeks approval from the Pre-Trial Chamber).
[9] Id. at art. 66.
[10] Id. at art. 69; see generally Rules of Procedure and Evidence, Int’l Crim. Ct. (2013),https://www.icc-cpi.int/iccdocs/PIDS/legal-texts/RulesProcedureEvidenceEng.pdf.
[11] Id at art. 56.
[12] Bournemouth Protocol, supra note 3, at 3.
[13] Id. at 4–5.
[14] Id. at 7.
[15] See id. at 16.
[16] G.A. Res. 72/48, ¶ 4 (Dec. 21, 2016).
[17] See U.N. Secretary-General, Implementation of the Resolution Establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic Since March 2011, ¶ 30, U.N. Doc. A/71/755 (Jan. 19, 2017).
[18] Rebecca J. Hamilton, Social Media Platforms in International Criminal Investigations, 52 Case W. Res. J. Int’l L. 213, 217 (2020) (internal citation omitted).
[19] Id.
[20] Ayana A. Bowman, Reframing Sexual and Gender-based Violence: Proposed Practices for an International Criminal Tribunal in Syria,34 Temp. Int’l & Comp. L.J. 161, 165 (2019) (citing Alex Whiting, An Investigation Mechanism for Syria: The General Assembly Steps into the Breach, 15 J. Int’l Crim. Just. 231, 231-32 (2017)).
[21] Natalia Krapiva, The United Nations Mechanism on Syria: Will the Syrian Crimes Evidence Be Admissible in European Courts?, 107 Cal. L. Rev. 1101, 1107, 1118 (2019). Other U.N. investigative teams utilize “the highest possible standards[] to ensure the broadest possible use” consistent with UN policies and best practice. Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL, Collect, Store, and Preserve Evidence to the Highest Possible Standards, https://www.unitad.un.org/content/collect-store-and-preserve-evidence-highest-possible-standards.
[22] See Alexa Koenig et al., supra note 6, at 8.
[23] Methods of Work, Int’l, Impartial and Indep. Mechanism, https://iiim.un.org/working-methods/ (last visited Oct. 9, 2021).
[24] U.N. Secretary-General, International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, ¶ 27, U.N. Doc. A/75/743 (Feb. 12, 2021).
[25] Jessica Doumit, Accountability in A Time of War: Universal Jurisdiction and the Strive for Justice in Syria, 52 Geo. J. Int’l L. 263, 283 (2020).
[26] Human Rights Council Res 38/2, U.N. Doc. A/HRC/RES/39/2, at ¶ 22 (Oct. 3, 2018).
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