The ISIS Beatles: A Challenging Process of Extradition by James G. Pizzo

I. Introduction

After nearly ten years since the brutal kidnapping, torture, and murder of James Wright Foley, an American journalist, two of the men responsible are finally facing justice in a United States courtroom.[1]  Former British citizens Alexanda Amon Kotey and El Shafee Elsheikh were part of a group of ISIS fighters dubbed the “ISIS Beatles” for their English accents and English background.[2]  Kotey, Elsheikh, Mohammed Emwazi, and Aine Lesley Davis carried out a campaign of kidnappings and murders between 2012 and 2015.[3]  Their victims include American journalists James Wright Foley and Steven Sotloff and American aid workers Kayla Jean Mueller and Peter Edward Kassig.[4]

For Mohammad Emwazi and Aine Lesley Davis, there were no extradition proceedings.[5]  Emwazi was killed by an American drone strike in 2015 while Davis was convicted and sentenced to 7.5 years in Turkey in 2017.[6]  Due to the poor relations between the United States and Turkey, extradition to the United States was not feasible for Davis.[7]

However, extradition awaited Kotey and Elsheikh.  In 2018, American-backed Kurdish forces captured Kotey and Elsheikh, and the extradition proceedings began.[8]  Despite an extradition treaty in place between the United States and the United Kingdom, the process of getting Kotey and Elsheikh onto United States soil was not without political interference and delay. 

II. The Extradition Process and Complications

Extradition is the surrender by one nation to another of an individual accused or convicted of an offense outside of its territory and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender.[9]  In the United States, the legal frameworks governing extradition are found in an extradition treaty between nations and the international extradition statute (18 U.S.C. §§ 3181, 3184, 3186, 3188-3191)).[10] 

When an individual is wanted in the United States, the Office of International Affairs will work with the prosecutor to prepare a request for extradition to be submitted to a foreign country.[11]  Next, the State Department will submit the request to the foreign country through diplomatic channels.[12]  Then, the foreign country will process the request according to its laws and regulations.[13]  Because each country has a different process for handling extradition and the United States has no control over a foreign country’s process, the extradition timeline can be unpredictable.[14]

For the ISIS Beatles, the United States faced difficulty in obtaining crucial evidence from the United Kingdom that was essential to extradite and prosecute Kotey and Elsheikh.[15]  Normally, such information would flow freely as there is a lengthy history of extradition treaties between the United States and the United Kingdom, dating back as early as 1794.[16]  However, the evidence here was tied up in political and legal challenges because of the possibility that the death penalty was awaiting Kotey and Elsheikh in the United States.[17]  The United Kingdom opposes the death penalty so it sought full-scale assurances from the United States that they would not pursue a death sentence.[18]  Assurances are routine in extradition cases to territories where capital punishment exists, and the United Kingdom was required by the European Court of Human Rights to obtain them.[19]  The United States initially refused to waive seeking the death penalty. As a result, the Supreme Court of the United Kingdom froze the evidence.[20]

To overcome the impasse between the two nations, in August 2020, United States Attorney General William Barr reversed his position and assured to the United Kingdom that the United States would not seek the death penalty.[21]  While this might be seen as a “win” for the United Kingdom, Attorney General Barr warned that if the United Kingdom did not share the critical evidence by October 15, 2020, the United States would transfer Kotey and Elsheikh to the custody of Iraq, who would likely execute the two men.[22]  Despite the questionable legality of whether the United States could effectively outsource a prisoner’s execution to another country,[23] the United Kingdom promptly shared the sought-after evidence.[24]

After years of investigation and obtaining all the necessary evidence, the United States successfully extradited Kotey and Elsheikh.[25]  Initially, both men plead not guilty to terrorism-related charges at their arraignment in the United States District Court Eastern District of Virginia.[26]  Nearly a year later, however, Kotey reached an agreement with federal prosecutors and pled guilty to all charges, including his role in the murders of the American citizens.[27]  Acting Assistant Attorney General Mark J. Lesko ensured that Kotey will spend the rest of his life in prison.[28]  Kotey is expected to be sentenced in March 2022.[29]  Meanwhile, Elsheikh has refused to change his not guilty plea,[30] and has unsuccessfully attempted to throw out incriminating statements he made as part of the United States’ evidence against him.[31]  Elsheikh is set to face trial in March 2022.[32]  Thus, after a long and drawn-out process, the remaining ISIS Beatles are finally facing justice on United States soil.

III. Conclusion

The case of the ISIS Beatles represents the long and complex process of extradition.  When nations do not have an extradition treaty or have poor relations, it is nearly impossible to extradite individuals between those countries.  Failing to secure extradition can lead to injustice, political leveraging, or even worse foreign relations.  Moreover, even if nations have an extradition treaty in place, political or legal challenges can interfere with the process, creating delay and frustration.  Thus, extradition is not a simple process and can take many years to obtain, but in the case of the ISIS Beatles, none of the four men have escaped justice.

[1] ISIS Militants Charged With Deaths Of Americans In Syria, Dep’t of Just. (Oct. 7, 2020),

[2] Id.

[3] Anna Schecter, ISIS ‘Beatle’ pleads guilty in U.S. court to helping torture, kill hostages, including Americans, NBC News (Sept. 2, 2021, 5:40 PM),

[4] Christine Carrega and Liz Stark, ISIS fighter in overseas ‘Beatles’ cell pleads guilty to killing Americans and other hostages, CNN (Sept. 2, 2021, 11:47 PM),

[5] Schecter, supra note 3.

[6] Id.

[7] Id.

[8] Id.

[9] Roberto Iraola, Due Process, the Sixth Amendment, and International Extradition, 90 Neb.  L. Rev. 752, 753 (2012) (citation and quotation marks omitted).

[10] Id. at 753-54 (2012) (citation omitted).

[11] Regarding Extradition, Dep’t of Just. (Nov. 27, 2020),,foreign%20country%20through%20diplomatic%20channels.

[12] Id.  

[13] Id.  

[14] See id.  

[15] Adam Goldman and Charlie Savage, Islamic State ‘Beatles’ Jailers Are Charged in Abuse of Murdered Hostages, The NY Times (Oct. 7, 2020),

[16] Fern L. Kletter, Extradition Treaties Between United States of America and United Kingdom of Great Britain and Northern Ireland—United States and United Kingdom Cases, 45 A.L.R. Fed.  3d Art. 6 (2019)

[17] Tenya Mehra, The long and winding road to bringing the ISIS ‘Beatles’ to justice, Int’l Ctr. for Counter-Terrorism (Aug. 27, 2020),

[18] Michael Plachta, UK Court Lifts an Obligation to Seek Assurances from Use in a Death Penalty Case, 35 Int’l Enforcement L. Rep. 76 (2019)

[19] Id.

[20] Letta Tayler, “The Beatles”and the Bomber: Barr’s Decisions on Executing Terrorists, Just Sec. (Aug. 28, 2020), 

[21] Goldman and Savage, supra note 14.

[22] Tayler, supra note 19.  

[23] Id.

[24] Goldman and Savage, supra note 14.

[25] Dep’t of Just., supra note 1.

[26] Schecter, supra note 3.

[27] ISIS Militant Pleads Guilty to Role in Deaths of Four Americans in Syria, Dep’t of Just. (Sept. 2, 2021),

[28] Id.

[29] Id.

[30] Schecter, supra note 3.

[31] The Associated Press, Judge rejects torture claims by Islamic State defendant, CBS 19 News (Jan. 7, 2022, 8:20 PM),

[32] Rachel Weiner, Prosecutors use words of British ISIS militant against him, The Wash. Post (Dec. 18, 2021, 8:00 AM),; Associated Press, Defense Lawyers Seek to Restrict Testimony From ISIS ‘Slave’, Voice of America (March 02, 2022, 10:29 PM),

Banned Substances and the Olympics: Examination of Laws Governing Marijuana Use by Thomas Larounis

I. Introduction

The World Anti-Doping Agency (“WADA”) has long stood as one of the leaders in promoting fair and drug-free athletic competition. Established in 1999, WADA was created to “protect athletes, promote the values of clean sport, and preserve the spirit of sport internationally.”[i] In the summer of 2020, WADA created headlines when it suspended a gold mentalist contender in the women’s 100-meter race for the 2020 Summer Olympics, Sha’Carri Richardson, after she tested positive for a WADA banned substance.[ii] The drug in question was marijuana.[iii] Richardson explained that she had used marijuana legally after learning about the death of her biological mother.[iv] A litany of mixed responses, both from the international community and United States, followed. Many called for the removal of marijuana from the list of WADA banned substances. Others questioned why the substance was on the list at all. For Richardson, the suspension resulted in her inability to participate in the 2020 Summer Olympics.[v]

II. The World Anti-Doping Code and the United States Anti-Doping Agency

The regulations and rules that WADA enforces are derived from the World Anti-Doping Code (the “Code”). [vi] At one hundred and eighty-four pages, the Code lists several hundred substances, including but not limited to: “steroids, masking agents, stimulants, recreational drugs[,]” and marijuana.[vii] In order for a substance to make its way onto the Code’s list of banned substances, it must meet two of the three following conditions: (1) “have the potential or proven ability to enhance performance[;]” and (2) “have the potential to cause harm to an athlete, or (3) their use is considered against the spirit of sport.”[viii]

In 2011, WADA published “Cannabis in Sport: Anti-Doping Perspective” in the journal of Sports Medicine.[ix] Within the article, WADA explained its reason for banning marijuana.[x] The main issue pertained to risk perception being a potential health risk.[xi] Essentially, because marijuana can “impair essential technical skills,” athletes would be at a heightened risk of injury in instances where their motor vehicle skills are essential.[xii] For example, perhaps a gymnast’s timing or balance being impaired could result in a fall and a major injury. In the realm of performance enhancement, WADA recognized the perception that marijuana is often portrayed as a negative on performance.[xiii] However, according to some studies, marijuana increases vasodilation and bronchodilation which suggests that ingestion of marijuana could improve oxygenation in athletes.[xiv]

Furthermore, WADA focused on marijuana’s ability to “help athletes better perform under pressure and to alleviate stress experienced before and during competition.”[xv] At the time, marijuana was still regarded as an illicit drug, which also added to WADA’s reasoning that its use is “not consistent with the athlete as a role model for young people around the world.”[xvi] A counter to this argument could be that substances like cigarette and alcohol both garner their own types of side effects and social harm. Yet, both substances are not banned by WADA. In 2019, WADA removed “cannabidiol” better known as CBD, from the banned list, while keeping all other cannabinoids prohibited. [xvii]

While WADA has become something of a household name in the wake of major Olympic doping scandals including and news headlines regarding failed athlete drug tests, it is not the only agency that conducts anti-doping testing at the highest caliber. The United States Anti-Doping Agency (“USADA”) is a non-profit anti-doping agency tasked with “managing the anti-doping program, including in-competition and out-of-competition testing, results management processes, drug reference recourses, and athlete education for all United States Olympic & Paralympic Committee recognized sport national governing bodies, their athletes, and events.”[xviii] Essentially, the organization is tasked with applying and implementing testing policies set by a respective association.[xix] For example, along with testing for the Olympics, USADA is also the official anti-doping agency for the Ultimate Fighting Championship (the “UFC”).[xx] The UFC may test or ban different substances than the Olympics.[xxi]

Partly due to its structure of federalism and states’ rights, the United States’ position on marijuana is conflicting. Despite marijuana’s legalization across many states, it is still categorized as a Schedule I substance under the U.S. Controlled Substances Act.[xxii] However, regardless of whether an athlete resides in a state where marijuana is legal, or even if the federal government were to legalize the drug, this would have no effect on its WADA status.[xxiii]

III. Going Forward: Will WADA Adopt the UFC’s Stance on Marijuana?

USADA’s other client, the UFC, has begun loosening its own marijuana restrictions.[xxiv] The UFC instructed USADA that beginning January 1, 2021, “a positive drug test for carboxy-THC, the psychoactive ingredient in cannabis, will no longer be considered a violation.”[xxv] The UFC will only consider such test result a violation if USADA can prove the use of marijuana was done for some form of performance-enhancing purpose.[xxvi] In essence, this decision by the UFC increases the burden of proof on USADA, while also “de-emphasizing marijuana sanctions completely.”[xxvii] The UFC took this stance because “there is no scientific correlation between levels of THC being in urine or blood samples and actual impairment.”[xxviii] Jeff Novitzky, the UFC Senior Vice President of Athlete Health and Performance, stated the following: “why the hell do we care what someone did a week before, let alone a night before, when it does not have any effect on their ability to fight.”[xxix] The caveat to this change in policy is that while the UFC may no longer be focusing on marijuana, that decision does not preclude individual state athletic commissions from continuing to test and punish athletes for marijuana being in their systems.[xxx]

The UFC’s decision could undercut the WADA’s and Olympic Committee’s athlete safety argument since professional MMA fighters rely heavily on their motor skills. However, the different treatment could result from the different perceptions of the role model status of Olympic athletes compared to MMA fighters. Time will tell whether the WADA will loosen its current position on marijuana.

[i] Who We Are, Wada, (last visited Mar. 1, 2022).

[ii] Kevin Draper and Juliet Macur, Sha’Carri Richardson, a Track Sensation, Tests Positive for Marijuana, New York Times (July 1, 2021),

[iii] Adam Kilgore and Rick Maese, The Doping Rules That Cost Sha’Carri Richardson Have a Debated, Political History, The Wash. Post (July 3, 2021, 4:45 PM), [hereinafter Doping Rules].

[iv] Id.

[v] Id.

[vi] Wada, International Standards, (last visited Mar. 1, 2022).

[vii] Doping Rules, supra note iii.

[viii] Id.

[ix] Marilyn Huestis et al., Cannabis in Sport: Anti-Doping Perspective, 41(11) Sports Med. 1 (Nov. 1, 2011),

[x] Id.

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] Id.

[xv] Robin Levinson-King, Why Cannabis is Still a Banned Olympics Substance, BBC News (July 29, 2021),

[xvi] Id.

[xvii] Id.

[xviii] About USADA, USADA, (last visited Mar. 1, 2022).

[xix] Id.

[xx] USADA’s Role in the UFC Anti-Doping Program, USADA, (last visited Mar. 1, 2022).

[xxi] Id.

[xxii] Marijuana FAQ, USADA, (last visited Mar. 1, 2022).

[xxiii] Id.

[xxiv] Marc Raimondi, USADA ‘Essentially’ Eliminating Marijuana Use as UFC Violation, ESPN, (Jan. 14, 2021),

[xxv] Id.

[xxvi] Id.

[xxvii] Id.

[xxviii] Id.

[xxix] Id.

[xxx] Id.

AI Automation and Hiring Discrimination: Spain’s Attempt to Resolve the Issue Through the Carta Derechos Digitales, or Digital Rights Charter by Michael Cavaliere

I. Introduction

Without a doubt, artificial intelligence (“AI”) is the future of the workplace. AI has increased productivity and efficiency in nearly every industry.[1] Numerous companies have turned to AI in order to improve their hiring process, which has also been referred to as “AI automation”.[2] Recruiters no longer need to spend countless hours sorting through resumes, calling applicants, and scheduling interviews, as AI is able to instantaneously screen and select applicants that best fit a company’s needs.[3] The use of AI automation in hiring has become even more widely adopted due to the COVID-19 pandemic and employers’ need to rely on virtual job applications and interviews.[4] Employers have never been more reliant on AI technology in the hiring process than they are today.

II. AI Automation and the Impact on Human Rights

However, with this technological revolution comes many questions and potential issues. AI automation may produce, among other things, gender and racial bias in the delivery of online job postings.[5] Biased data, variables, and decisions of employers are often emulated into the programing of their AI hiring systems, rather than eliminated.[6] A recent report published by the Office of the United Nations High Commissioner for Human Rights (“OHCHR”) provides the example, “if a company uses an AI hiring algorithm trained on historic data sets that favour male, white, middle-aged men, the resulting algorithm will disfavour women, people of colour and younger or older people who would have been equally qualified to fill the vacancy.”[7] While many employers may argue for the benefits of AI automation, especially during a pandemic, the risks of bias and discrimination to potential employees is something that cannot be ignored.

Besides the ethical reasons for preventing these immoral hiring practices, instances of AI automation may prove to be illegal in numerous countries around the globe. In the United States, for example, AI automation can implicate the Title VII of the Civil Rights Act of 1964 (“Title VII”), a federal law that protects employees and applicants against discrimination based on certain specified characteristics such as race, color, national origin, sex, and religion, as well as the Age Discrimination in Employment Act (“ADEA”).[8] Further, the use of AI automation could implicate the Americans with Disabilities Act (“ADA”) if an algorithm discerns an applicant’s physical disability, mental health, or clinical diagnosis, all of which are forbidden inquiries in pre-employment candidate assessments.[9]

III. Spain’s Potential Solution through the Carta Derechos Digitales

While there is no clear solution to prevent the improper use of AI automation, Spain is one country that has led the way in recognizing this problem and providing a proposal to protect individuals from employer bias and discrimination. On July 14, 2021, Spanish President Pedro Sánchez announced the publication and adoption of the Carta Derechos Digitales, or the Digital Rights Charter (“Charter”).[10] The Charter outlines six fundamental rights for the digital world: (1) the right of freedom; (2) the right of equality; (3) the right of participation and shaping the public space; (4) the right of the working and business environment; (5) digital rights in specific environments: and (6) rights of guarantees and efficiencies.[11] The aim of the Charter is to protect the rights of citizens in this new era of AI where these rights present current and extremely serious vulnerabilities.[12] Beginning on June 15, 2020, the drafting process included, not only, the advice and proposals of a group of digital rights experts but also public citizen’s contribution through an open participatory process.[13] While the Charter is not regulatory in nature, it proposes a framework of reference that can be used by the public in navigating and taking advantage of the new digital world.[14] The “pioneering nature” of this Charter relates to rights related to AI, algorithmic non-discrimination, and for an individual to request human oversight or intervention.[15] These rights are broadly applicable to many areas within the digital environment, yet the rights from an employment law perspective stand out.[16] Specifically, the development and use of AI algorithms in the workplace require a data protection impact assessment.[17] This assessment would need to analyze the risks related to the ethical principles and rights related to AI automation hiring, such as the gender perspective and the prohibition of direct and indirect racial discrimination.[18] The Charter provides clear guidance of how employers can steer clear of impermissible hiring practice while using AI automation.

Following the lead of Spain, countries and unions around the world now acknowledge the problem of AI automation and are working towards possible solutions. In April 2021, the European Commission proposed a regulatory framework on AI as a part of wider overall individual protection package.[19] The proposed regulation identifies certain AI systems and technologies by their level of “risk” and subjects them to certain obligations before being introduced to the public.[20] Employment, workers management, and access to self-employment are considered “high-risk,” and the proposed regulation even provides the example of “CV-sorting software for recruitment procedures”.[21] Being a “high-risk” AI system, these recruitment procedures will be subjected to strict obligations, such as risk assessment, high quality datasets feeding the system to minimize discriminatory outcomes, and appropriate human oversight.[22] These obligations flow almost directly from the Charter that was proposed nearly a year earlier, and there is reason to believe European Commission may have looked to Spain for guidance.

The United States is also following Spain’s lead, by ensuring AI automation will not be improperly used in any employment setting. In September 2021, the Equal Employment Opportunity Commission (“EEOC”) announced that it would be monitoring employers’ use of AI in the workplace to ensure compliance with anti-discrimination laws.[23] The EEOC recognizes the potential of AI automation introducing unlawful bias in candidate sourcing, resume screening, and video interview analysis.[24] While the EEOC has expressed its awareness of these issues, it has not yet issued written guidance on the use of AI automation in employment decisions. The EEOC has even acknowledged that the most relevant document, the 1978 Uniform Guidelines on Employee Selection Procedures, is more than 40 years old.[25] Clearly, the U.S. is in need of updated procedures and formal written guidance in the wake of AI automation.

IV. Conclusion

The possibility of employee bias and discrimination in AI automation is widespread and may only be prevented if action is taken and employers are put on notice. As AI automation and other technologies become more advanced, individuals will need to rely on charters, such as the Carta Derechos Digitales, to guarantee their rights are protected.

[1] Key Ways Artificial Intelligence Can Improve Recruiting In The Hiring Process, Forbes (Aug. 27, 2021, 01:15pm EDT),

[2] Id.

[3] Id.

[4] AI in Hiring, BSR, (last visited Oct. 9, 2021).

[5] Id.

[6] Jenny R. Yang, Three Ways AI can Discriminate in Hiring and Three Ways Forward, Urban Wire (Feb. 12, 2020),

[7] The Right to Privacy in the Digital Age: Report (2021), Off. of the U.N. High Comm’r for Hum. Rts. (Sept. 15, 2021),

[8] Gary D. Friedman & Thomas McCarthy, Employment Law Red Flags in the Use of Artificial Intelligence in Hiring, ABA (Oct. 1, 2020), 

[9] Id.

[10] Joshua Nelson, Spain President Proposes Digital Rights Charter, Outlining Fundamental Rights of Individuals Online, JURIST (July 24, 2021 02:31:01 PM),

[11] Id.

[12] Sánchez presents the Digital Rights Charter with which “Spain is at the international forefront in protecting citizens’ rights”, La Moncloa (July 14, 2021),

[13] The Government Starts the Process of Preparing a Digital Rights Charter with the Constitution of a Group of Experts, The Spain J. (June 16, 2020),

[14] La Moncloa, supra note 12. 

[15] Deirde Tynan, New Digital Rights Charter to Guarantee Citizens’ Rights, EuroWeekly (July 18, 2021),

[16] Carlos Gonzalez, Spain: New Act on Digital Rights (“Carta de Derechos Digitales”), DLA Piper (July 22, 2021),

[17] Id.

[18] Id.

[19] Regulatory framework proposal on Artificial Intelligence, European Comm’n, (last updated Aug. 31, 2021).

[20] Id.

[21] Id.

[22] Id.

[23] Daniel J. Butler & Kevin J. White, Employers Beware: The EEOC is Monitoring Use of Artificial Intelligence, Hunton Employment & Labor Perspectives (Sept. 21, 2021), 

[24] Id.

[25] Id.

Standardization of Evidence Retrieval from of Mass Grave Sites by Douglas Brady

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), (“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),

[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), [hereinafter Bournemouth Protocol]; see also Melanie Kinkner and Ellie Smith, Universal Standards for Investigation of Mass Graves, EJIL:Talk! (Apr. 1, 2021),

[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),

[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,

[22] See Alexa Koenig et al., supra note 6, at 8.

[23] Methods of Work, Int’l, Impartial and Indep. Mechanism, (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).