Uncovering The Past: Mass Graves And The Pursuit For Truth

In Northern Iraq and Syria, evidence of Islamic State’s (IS) terror lies buried in unmarked graves. In Mexico, secrecy and suspicion shroud the cases of missing persons, believed dead at the hands of cartels. In Lebanon, the haunting memories of civil war lie just below the streets’ surface. For many societies emerging from the horrors of war and past atrocities, mass graves are a devastating legacy and a reminder of the cruelty of humankind. The acknowledgement and exhumation of mass graves is a vital part of the transitional process and allows societies to uncover the truth and demand justice.

However, in many post-conflict contexts, there are serious obstacles pertaining to the preservation and protection of grave sites. In countries where serious human rights violations have occurred, mass graves offer untold insights into the nature of such crimes, but also provide truth and closure for the families of victims of mass atrocities. When mass graves are unprotected, unacknowledged, and ignored by ruling governments, the opportunity for societal healing and justice goes unmet.

The United Nations has adopted key resolutions concerning the investigation of mass graves, including General Assembly Resolution 68/165 on the right to the truth, and Human Rights Council (HRC) Resolution 15/5 on forensic genetics and human rights. But while international pressure on non-complying states is necessary, national efforts are nevertheless lacking. Where states are unable to provide the technical and professional expertise to exhume grave sites, the international community has a responsibility to support and assist the process. Furthermore, there are key structural issues with exhumations that tend to emphasise the pursuit of criminal justice, often at the expense of community healing and victim closure. Societies affected by mass atrocities should adopt inclusive approaches to transitional justice that address affected communities’ needs. The investigation and exhumation of mass graves, therefore, should not only recover evidence aimed at prosecuting perpetrators, but also acknowledge the collective trauma of affected communities and uphold the dignity and identity of victims.

Warfare and the preservation of mass graves

Mass graves are a legacy of conflict and human devastation. It conjures images of the killing fields of Cambodia, where the Khmer Rouge ruthlessly massacred its own people in an act of auto-genocide. The fields at once became synonymous with death and the callousness of a ruling regime. Today, the untold histories of victims remain buried in unmarked graves all over the world. From Guatemala to Rwanda, Burundi to Bosnia, mass graves represent a horrific past, and often, a harrowing present. While the very existence of mass graves is a disturbing reality, there are significant issues pertaining to the investigation and exhumation of burial sites for the purpose of understanding past atrocities, pursuing criminal justice, and uncovering the truth.

This issue is particularly pressing in areas where conflict is ongoing. For belligerents, preserving mass graves for future exhumations is not a key priority. This points to a critical flaw in the national and international treatment of mass graves caused by past or recent atrocities. There are three key concerns regarding the preservation and investigation of mass graves. Firstly, and quite simply, they are inadequately protected. Due to either an inability or unwillingness, many sites are disregarded and erode over time; often, the families of victims will attempt to exhume the bodies themselves, which may disrupt the remains and hinder the forensic process that would appropriately identify the victims. In northern Iraq, both of these factors could have negative implications. Joe Stork, the deputy Middle East director for Human Rights Watch (HRW) said: “Justice for the Yezidi victims of mass killings by ISIS depends on preservation of the Mount Sinjar gravesites.” Furthermore, HRW warned against attempting exhumations without specialist oversight: “Exhumations without forensic experts can destroy critical evidence and greatly complicate the identification of bodies.”

Secondly, the exhumation of mass graves tends to prioritise the collection of forensic evidence for criminal prosecutions, and ignores the needs and wants of victims’ families. In the United Nations HRC Resolution on forensic genetics and human rights, Article 1 “Encourages States to consider the use of forensic genetics to contribute to the identification of the remains of victims of serious violations of human rights and of international humanitarian law, and to address the issue of impunity.” But in practice, exhumations provide the forensic evidence needed only to hold those criminally responsible to account before the law. However, this is not to argue that prioritising prosecution over community healing and the right to truth is intentional. Rather, it points to an inherent bias in the international criminal law system that values retributive justice over restorative and local mechanisms. Indeed, the International Criminal Court (ICC) esteems itself as a court for victims, and holds perpetrators responsible for their crimes in order to end impunity and encourage closure for victims and affected communities. But as Adam R. Pearlman of the George Washington University Law School argues, exhumations can be distinguished by their forensic or humanitarian objective, and more often than not, forensic digs are the norm. He believes that forensic digs of mass graves are “conducted with an eye towards prosecution”, while “humanitarian digs, on the other hand, while involving forensic methods towards at least two ends – historical documentation and victim identification – are driven by broader policy priorities (e.g. repatriating victims), as opposed to a decision to extract evidence for prosecution.”

Finally, there is an overall unwillingness from states to investigate mass graves, an activity which ultimately stirs memories of a horrific past. This issue relates to a key tension in international relations over the attainment of peace against the pursuit of justice. This is certainly clear in present-day Rwanda, where talk of the ethnic divisions that gave rise to genocide is punishable before the law. Other countries continue to hide from their past. A recent Al Jazeera report into Lebanon has detailed the country’s unwillingness to investigate the many mass graves buried under Beirut. Al Jazeera interviewed Abou Jaoude, head of Lebanon’s International Centre for Transitional Justice, who said: “It is like burying a war, as if nothing had happened on this land. They don’t want to open these graves and face the truth about what happened back then. This is a huge denial of the past, and that’s how the perpetrators enjoy impunity.” This is a particularly concerning example, as the country continues to be divided along sectarian lines since the civil war which began in 1975 and lasted until 1990. This example also raises key concerns about the accountability of those responsible for committing and directing mass atrocities. As in Rwanda, where members of the Tutsi Rwandan Patriotic Front escaped criminal responsibility for their revenge killings against Hutu civilians, in Lebanon, those responsible for the mass graves that lie buried beneath Beirut were pardoned in the 1991 Amnesty Law.

International responsibility and victim-centric approaches

It is clear then, that countries must respond to their population’s demands for truth and justice for the victims of mass atrocities. Firstly, and following on from the recommendations of Melanie Klinkner of Bournemouth University and Alexandra Lily Kather of Middlesx University, methods of best practice must be codified under international and national laws that standardise the preservation, investigation, and exhumation of mass graves. The United Nations must continue to advocate this issue and monitor situations where mass graves have been discovered. Member states have a key responsibility to investigate within their own jurisdiction and hold those criminally responsible to account. But they also have a responsibility to assist other states if forensic expertise is lacking, or open warfare limit access to gravesites.

Secondly, truth and reconciliation processes are far from perfect, but they can have meaningful influence upon societies experiencing the trauma of mass atrocities. The Commission for Historical Clarification (CEH) in Guatemala is a leading example of how truth commissions can empower communities and victims to participate in the process and deal with grief. The exhumations of mass graves shed light on the devastating scorched earth campaign committed by the military against the Maya. Such forensic evidence not only discovered crimes of genocide, but simultaneously allowed communities to identify and rebury their dead in their discovery of the truth. The CEH is a good example of how transitional justice mechanisms must adopt victim-centric approaches in order to attain both peace and justice in societies experiencing the trauma of mass atrocities.

Finally, civil society and the international community must continue to pressure nations to acknowledge their past and seek justice for the victims of mass atrocities in order to achieve peace. It must be understood that peace and justice are interconnected and one cannot be achieved without the other. As the case of Lebanon has shown, peace will not find the streets of Beirut until the truth is revealed and both retributive and restorative justice is pursued for the victims and survivors of mass atrocities.

Caitlin Biddolph