(Ця стаття також доступна українською мовою тут.)
Footage coming out from Ukraine in recent days appears to show a significant number of potential war crimes committed by Russian forces, sites of suspected torture and murder, as well as mass graves. The horrific photos and videos of potential crimes have led to broad outrage and demands for action, and many, including the government of Ukraine and the U.N. Secretary-General, have called for independent investigations. Yet video footage suggests that these sites are being handled in ways that risk destroying important evidence.
Video taken at a suspected mass grave site in Motyzhen, for example, shows scores of members of the press as well as local officials and others crowded right at the edge of the site, with some also taking steps into the sides of the suspected mass grave. Disturbance of mass grave sites, and access to or interference with them by non-experts in forensic science, risks serious and irreversible harm – even by well-meaning journalists performing dangerous and often-necessary work.
Thorough investigations of mass grave sites by experts can serve various important humanitarian and accountability goals. Investigations can aid in understanding the truth of what happened. They can enable families to know the fate of their loved ones and to hold dignified burials. And investigations can gather evidence for accountability processes, and help to determine the cause, manner, and circumstances of death, the identity of those killed, and those responsible for any wrongdoing.
Interference in such sites by non-experts (even well-intentioned) can lead to the undermining of subsequent forensic investigations and make these goals much more difficult to achieve.
Journalists and others often face ethical and practical trade-offs or challenges when deciding how to investigate or cover events. Media coverage of mass graves and suspected war crimes can be vital in many ways. It often plays a critical role in shining a light on abuse, as it has done in Ukraine. Reporting can alert officials and human rights and humanitarian workers of the need for aid or investigations. It can focus national and international attention on wrongdoing and spur action at the political level, and can provide important information to impacted communities. Mass graves can and should be publicly and effectively reported. And members of the media can do so by taking precautions to avoid disturbing them and maintaining a safe distance from the sites themselves.
For future war crime investigations, it is important to treat these sites as crime scenes and take steps to protect and secure them. The area surrounding what non-experts may identify as a grave can sometimes also be important. There can be evidence nearby or at the periphery of a site that could provide information about whether or how a crime occurred. For example, tire tracks may help to assess where victims were killed or how bodies were transported. Forensic archeologists can analyze a site to understand how the grave itself was formed (e.g., with mechanical excavator, or by hand). Keeping a safe distance and not interfering with a site are also important because non-experts may not actually be able to determine where a grave begins and ends.
The precise position in which a body was found can also aid in determining the manner of death. The specific placement of hands or arms can assist in assessing whether a killing was illegal. Movement of body parts by non-experts can make it more difficult to do so accurately. And stepping on or moving remains may cause damage to them, confounding subsequent forensic examination. Sites that have been disturbed can also result in questions about the integrity of evidence subsequently obtained, as the Bournemouth Protocol on Mass Grave Protection and Identification (2020) notes.
Additionally, preserving the precise location of remains and clothing or other items can be important for identifying victims. Identification is often a key goal of families, as they may not know whether their loved one is missing or deceased, and identification and return of bodies also allows families to hold dignified burials in accordance with cultural or religious customs. A small item, such as a wallet or ring, that is inadvertently kicked or falls away because of interference at a grave site, may make it more difficult to match it with the corresponding human remains. Stepping on sites may push evidence further into the ground, making it more difficult to find or altering its original location. There can also sometimes be safety concerns about walking in or near mass graves. Some sites may have mines or unexploded ordnance present.
These concerns about the protection of mass grave sites are not unique to Ukraine, and practice around the world provides a warning for those seeking accountability for alleged crimes in Ukraine. There are many cases of accidental, reckless, or intentional destruction, loss, or contamination of mass graves, including in Libya, Central African Republic, Morocco, Nigeria, and Iraq. Just over the last few days, photos and reporting have emerged of exhumations in Ethiopia, seemingly conducted in a non-systematic manner and without the aid of forensic experts, with bodies appearing to be comingled as a result, making future identification and return of remains very difficult.
In the past, some journalists have contributed to these problems. Famously, the celebrated war reporter Marie Colvin, visiting Iraq in 2003 shortly after the fall of Saddam Hussein to investigate a mass grave believed to contain 600 people, “rented a mechanical digger and, under [an informant’s] direction, began excavating the site at several points where he believed the corpses had been buried.” She described digging up several corpses with no assistance from forensic experts at all, and thus likely comingling bodies, damaging body parts, and losing vital evidence of the body positions of burial, all of which are vital for criminal investigations.
In Ukraine, ahead of any criminal investigation or forensic processes, it is essential that the sites be protected from disturbance by those without expertise. Various international guides exist for supporting efforts to do so. (See e.g., Guidelines for First Response: Safeguarding Known or Suspected Grave or Body Disposal Locations, The Minnesota Protocol on the Investigation of Potentially Unlawful Death, and the Forensic Guide to the Investigation, Recovery And Analysis of Human Skeletal Remains.) Protection is necessary because the forming of expert teams to conduct scientific investigations and carrying out those investigations is often a very time-consuming process, and can rarely happen quickly. This is especially so where there are many competing priorities for humanitarian aid and safety, where there are large numbers of displaced relatives of the missing, or where conflict is ongoing.
States have the primary responsibility to protect and safeguard such sites. Until they feasibly are able to do so, it is important for private actors to avoid interfering with mass graves. Proper protection of, and non-interference with, mass grave sites now will significantly aid identification and criminal justice processes in the future.