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Published online by Cambridge University Press: 19 November 2018
This article examines the different types of mechanisms which can contribute to addressing the issue of the missing, including providing answers on the fate and whereabouts of missing persons. It looks in detail at one approach that the authors have observed in the field. It argues that an approach based on humanitarian objectives which does not look into who is responsible for the disappearance, with proper management of confidential information, could be a powerful instrument for searching for and collecting relevant information on the missing in certain contexts. The article also proposes avenues for further research, with a view to enhancing the global capacity to provide meaningful answers for the missing and their families.
The content of this article reflects the views of the authors and not necessarily those of the organizations with which they are or have been associated.
1 See, for instance, the International Commission on Missing Persons (ICMP) estimates available at: www.icmp.int/where-we-work/middle-east-and-north-africa/iraq/.
2 See International Committee of the Red Cross (ICRC), “Missing Persons in the Balkans”, June 2015, available at: www.icrc.org/en/document/missing-persons-western-balkans.
3 IOM, “Migrant Deaths and Disappearances Worldwide: 2016 Analysis”, Data Briefing Series, No. 8, 2017, available at: https://publications.iom.int/books/global-migration-data-analysis-centre-data-briefing-series-issue-no-8-march-2017.
4 The term “armed conflict and other situations of violence” will be shortened in this document to “conflict and violence” for ease of reading, noting that “other situations of violence” (hereinafter “violence”) is used to refer to situations of collective violence perpetrated by one or several groups, which do not reach the threshold of an armed conflict, but may have significant humanitarian consequences.
5 For more on the legal framework, see ICRC, ICRC Report: The Missing and Their Families, 2003, Annex A, “Legal References”, Annex B, “Special Protection to which Children are Entitled: Legal References”, and Annex C, “Legal Protection of Personal Data and Human Remains: Commonly Accepted Principles”, available at: www.icrc.org/eng/assets/files/other/icrc_themissing_012003_en_10.pdf. For developments since 2003, see, for instance, International Convention for the Protection of All Persons from Enforced Disappearance, UN Doc. A/RES/61/177, 6 February 2007 (entered into force 23 December 2010) (ICPPED); Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study).
6 In 2003, the ICRC organized an international conference on missing persons, which was a unique opportunity to take stock of what had been accomplished by relevant stakeholders up to then and to establish guidelines for more effective action in this domain. See ICRC, The Missing and their Families: Documents of Reference, February 2004, available at: https://shop.icrc.org/the-missing-and-their-families-documents-of-reference-2691.html.
7 Throughout this document, the term “relevant authority/ies” is used to refer to those identifiable as being in power (de facto or de jure) and on whom the responsibility lies to take the necessary action to clarify the fate and whereabouts of missing persons. This might include organized armed groups in certain armed conflicts or other violence that does not reach the level of armed conflict. This article always expressly mentions when it is referring to national authority/ies.
8 This article should be read together with Monique Crettol and Anne-Marie La Rosa., “The Missing and Transitional Justice: The Right to Know and the Fight Against Impunity”, International Review of the Red Cross, Vol. 88, No. 862, 2006, in which the interaction between transitional justice processes and the missing persons issue is considered.
9 See General Framework Agreement for Peace in Bosnia and Herzegovina, 1995, Annex 7, Article V, and Annex 1A, Article IX.
10 The Working Group on Missing Persons in Kosovo was set up in March 2004 as part of the Vienna Dialogue under the auspices of the Special Representative of the UN Secretary-General and in the context of UN Security Council Resolution 1244 (1999). The issue of the missing was explicitly included in the Comprehensive Proposal (Atthisaari Plan) that paved the way to Kosovo's independence.
11 The issue of prisoners of war (PoWs) and missing persons is explicitly mentioned in the Riyadh agreements (April 1991) and in several resolutions of the UN Security Council (UNSC Res. 687, §§ 30, 31; UNSC Res. 1284, §§ 13, 14). Compliance by Iraq with its obligations regarding the repatriation or return of all Kuwaiti and third-country nationals or their remains has been regularly examined by the Security Council on the basis of progress reports submitted to it by the Secretary-General. In 2009, this process was given a fresh impetus when the members of the Security Council supported a proposal for a “confidence and cooperation building period between Iraq and Koweit” in order to further encourage the parties to achieve visible and significant progress, and in particular, to continue their efforts to conclusively determine the fate of the Kuwaiti missing persons and PoWs and other missing third-country nationals, as well as to bring about the return of the Kuwaiti national archives (UNSC S/2010/300). In 2013, the Security Council decided to remove Iraq from its obligations under Chapter VII of the UN Charter, unanimously adopting Resolution 2107, which called on the Iraqi government “to give the ICRC any information available on the Kuwaiti and third-country nations, and to facilitate the ICRC's access to them and their remains, as well as the ICRC's search for missing persons and property, including Kuwait's national archives”. See: www.un.org/press/en/2013/sc11050.doc.htm.
12 The Committee on Missing Persons in Cyprus (CMP) was established in April 1981 by agreement between the communities concerned and under the auspices of the UN (UNGA Res. 36/164, 1981). There were years when the CMP was not able to solve any case of missing persons and was at a standstill. It was only in 2003, when Recep Erdogan became prime minister of Turkey and the Turkish authorities expressed their interest in acceding to the European Union (EU), that the situation began to change. Certain judgments of the European Court of Human Rights, in 2001, requiring Turkey to properly investigate instances of missing persons in Cyprus also had a decisive impact. They prompted the Turkish authorities to endorse and implement the initiative taken by the UN Secretary-General (the Annan Plan for Cyprus).
13 For more information on the steps towards joining the EU, see European Neighbourhood Policy and Enlargement Negotiations, “Steps towards Joining”, available at: https://ec.europa.eu/neighbourhood-enlargement/policy/steps-towards-joining_en.
14 See, e.g., Lisa Haugaard and Virginia M. Bouvier, “Colombia’s Peace Accord on the Missing”, USIP, 25 July 2016, available at: www.usip.org/publications/2016/07/colombias-peace-accord-missing.
15 For more information on the Geneva International Discussions process, see Organization for Security and Cooperation in Europe (OSCE), press releases related to the Geneva International Discussions, available at: www.osce.org/home/104211.
16 For a critical assessment of this extension, see the report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence presented at the 36th Session of the Human Rights Council, UN. Doc. A/HRC/36/50, 21 August 2017 (Report of the Special Rapporteur on Transitional Justice).
17 Transitional justice needs to be accompanied by institutional reforms, including vetting. For more information, see La Rosa, Anne-Marie and Philippe, Xavier, “Transitional Justice”, in Chetail, Vincent (ed.), Post-Conflict Peacebuilding: A Lexicon, Oxford University Press, Oxford and New York, 2009Google Scholar.
18 Of the same opinion, see Report of the Special Rapporteur on Transitional Justice, above note 15, para. 82.
19 For example, in October 2015, the government of Colombia and the Colombian Revolutionary Armed Forces concluded an agreement on the missing (Accord No. 62) which offers the chance to alleviate suffering and provide answers to families of the missing, thus making the latter a distinct objective of their peace discussions and transitional process.
20 M. Crettol and A.-M. La Rosa, above note 7, p. 356.
21 Of the same opinion, see the position expressed in the Report of the Special Rapporteur on Transitional Justice, above note 15. The Special Rapporteur further argues that “ensuring that truth commissions do a proper job on the issue of the missing and that they lay the foundation for continued work on it, including sound recommendations on the establishment of an effective national mechanism to resolve outstanding cases, would constitute a significant accomplishment” (para. 80).
23 Office of the United Nations High Commissioner for Human Rights, Study on the Right to the Truth, UN Doc. E/CN.4/2006/91, 8 February 2006.
24 See, in this regard, the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UNGA Res. A/RES/60/147, 21 March 2006 (Basic Principles and Guidelines on Reparation), available at: http://legal.un.org/avl/pdf/ha/ga_60-147/ga_60-147_ph_e.pdf.
25 See Report of the Secretary General, Missing Persons, UN Doc. A/63/299, 18 August 2008, para. 40.
26 In Sri Lanka, there is debate among different interest groups, including some civil society members, about the merits or demerits of sequencing the four proposed transitional mechanisms. At the heart of the sequencing debate is a concern that an opportunity to address the most serious human rights abuses will be missed during the current window of political openness should a “truth first, justice later” approach be adopted. Some have argued that the Office of Missing Persons should have provided a “one-stop shop” for families, addressing both their need to know the fate and whereabouts of missing relatives and their need for justice at the same time. See South Asian Centre for Human Rights “The Politics of Sequencing: A Threat to Justice?”, 29 November 2016, available at: http://sacls.org/resources/publications/reports/the-politics-of-sequencing-a-threat-to-justice-2.
27 Report of the Special Rapporteur on Transitional Justice, above note 15, para. 105.
28 Some economists and organizational sociologists call this “isomorphic mimicry”: the tendency to replicate institutional forms regardless of context and even of the specificities of the ends sought. See Lant Pritchett, Michael Woolcock and Matt Andrews, “Capability Traps? The Mechanisms of Persistent Implementation Failure”, Center for Global Development Working Paper No. 234, December 2010, available at: www.cgdev.org/publication/capability-traps-mechanisms-persistent-implementation-failure-working-paper-234.
29 ICRC, Families of Missing Persons in Nepal: A Study of Their Needs, Kathmandu, 2009Google Scholar; ICRC, Needs of the Families of the Missing in Timor Leste, Dili/Djakarta, 2010Google Scholar. See also ICRC, Living with Uncertainty: Needs of the Families of Missing Persons in Sri Lanka, Colombo, 2016Google Scholar; ICRC, No los olvidamos, Bogotà, 2016Google Scholar.
30 Where incomes are higher and education greater, trials and criminal prosecution might well be one of the priorities of the families, besides the others mentioned above.
31 The Grandmothers of the Plaza de Mayo is a unique organization of Argentine women who have become human rights activists in order to fight for the right to know the fate and whereabouts of their children and grandchildren. The organization was formed by women who had met while trying to find their missing relatives abducted by agents of the Argentine military dictatorship during the years known as the Dirty War (1976–83). Through their political action (publications, demonstrations, marches, conferences, etc.) they forged their campaign to demand that the Argentine dictatorship account for the whereabouts of their disappeared children and grandchildren. Three decades since the return to democratic rule, they have managed to keep the memory and spirit of their disappeared relatives alive, and they continue large public campaigns to recover the identity of their missing grandchildren and to combat the silence and indifference of various government administrations. See Jill Stockwell, Reframing the Transitional Justice Paradigm: Women's Affective Memories in Post-Dictatorial Argentina, Springer, New York, 2014. See also the interview with Estela de Carlotto, President of the Grandmothers of the Plaza de Mayo, in this issue of the Review.
32 In the Balkans, family associations have played an increasing role in putting pressure on the authorities and their respective national mechanisms for dealing with the issue of the missing. In Bosnia and Herzegovina, the advisory board of the Missing Persons Institute (MPI) is the direct channel of communication for the families of the missing with the body itself, and the families use it to voice their concerns and to put pressure on the MPI to address their needs. For a critical analysis of the MPI, see Kirsten Juhl, “The Problem of Ethnic Politics and Trust: The Missing Persons Institute in Bosnia-Herzegovina”, Genocide Studies and Prevention: An International Journal, Vol. 4, No. 2, 2009.
33 In Cyprus, family associations have been distancing themselves from their authorities and are now better able to exert a significant amount of pressure on them. See Resources for Democracy, “Citizens in Action: The Search for Missing Persons – and the Truth – in Cyprus”, October 2015, available at: www.resourcesfordemocracy.com/audio/citizens-in-action-the-search-for-missing-persons-and-the-truth-in-cyprus/. See also Iosif Kovras, “Unearthing the Truth: The Politics of Exhumations in Cyprus and Spain”, History and Anthropology, Vol. 19, No. 4, 2008.
34 ICRC, “Georgia: Efforts to Clarify the Fate of Missing Persons”, 2016, available at: www.icrc.org/en/document/georgia-missing-persons-clarifying-the-fate.
35 The term “mechanisms” is used to refer to all institutions, organs, bodies and processes established – formally or not – by the relevant authorities to clarify the fate and whereabouts of missing persons and inform their families accordingly.
36 This was the case, for instance, in the search for missing persons in relation to the conflict in Kosovo and the Iraq–Kuwait and Iraq–Iran international conflicts. See Additional Protocol I, Art. 34(2–4); Report of the Secretary-General on Missing Persons, UN Doc. A/71/299, 5 August 2016, paras 25–26.
37 Conversely, in a situation where governments or authorities have changed and the judicial system is independent and functioning, approaches that are more inclusive and contribute to bringing those responsible for the disappearance to justice might be more appropriate.
38 For example, the mandate of the Cyprus CMP is to establish the fate and whereabouts of missing persons; the CMP does not attempt to establish the cause of death or attribute responsibility for the death of missing persons. See Cyprus CMP Terms of Reference, Art. 11. Moreover, it is reported that a letter issued by the Attorney General of the Republic of Cyprus on 3 August 1990 specifies that it was not in the public interest, in the sense of Article 113.2 of the Constitution, to prosecute any witness who, in giving evidence to the Cyprus CMP during the course of its investigations, disclosed self-incriminating information. For more information on the Cyprus CMP, see the “Facts and Figures” page of the CMP website, available at: www.cmp-cyprus.org/content/facts-and-figures.
39 In Georgia, a forensic working group was also established in 2010 under the coordination mechanism discussed above, with a mandate to establish priorities and coordinate the work of the forensic specialists involved in the process of the clarification of the fate and whereabouts of missing persons. Its work focuses on activities related to information on gravesite locations, as well as, based on agreed-upon protocols, the recovery, analysis and identification of the human remains of individuals who went missing in relation to the 1992–93 armed conflict. The working group met for the first time on 24 May 2011, and since then, twelve meetings have been held. It is chaired by the ICRC and is comprised of one Abkhaz and one Georgian representative of the coordination mechanism, and one Abkhaz and one Georgian forensic specialist. The group regularly reports to the coordination mechanism on the progress made on the forensic aspects of the process. See Report of the Secretary-General on the Missing, UN. Doc. A/71/299, 5 August 2016, para. 23.
40 According to these authors, alternatives to formal regulations need to be found in order to protect the process, particularly when it comes to the confidential management of information related to the exhumation of human remains, or collection of ante mortem data and biological reference samples. More precisely, bilateral exchanges or agreements on standard operating procedures for such topics with all participants could be explored.
41 See Cyprus CMP Terms of Reference, Art. 9.
42 See Rules of Procedure for the Tripartite Committee on Missing and Human Remains of the Iran–Iraq War 1980–1988, Rule 14.
43 See Rule 9 constitutive documents of the Technical Subcommittee on Military and Civilian Missing Prisoners of War and Mortal Remains, which stipulates that (a) the Subcommittee shall meet in closed session and that its deliberations shall remain confidential unless it decides otherwise, and (b) apart from the representatives of Subcommittee's members and the ICRC, no other person may be present at its meetings, unless the Subcommittee decides otherwise.
44 See Rules and Procedures of the Bosnia and Herzegovina Working Group, Rule 10 (“Privacy and Confidentiality”).
45 See Working Rules of the Kosovo Working Group, Rule 11 (“Privacy and Confidentiality”).
46 See Article 17 of the terms of reference of the Coordination Mechanism on Persons Unaccounted for in Connection with the Events of the 1992–93 Armed Conflict and After, which states that the mechanism shall meet in camera and that all those taking part in the meetings of the mechanism shall respect the confidentiality of all information and of all the documents generated or circulated within or by the mechanism and that, apart from the participants and the chair, no other person may be present at the meetings of the mechanism, unless it decides otherwise. Furthermore, Article 18 specifies that deliberations shall remain confidential.
47 This was the case in Bosnia and Herzegovina and Kosovo, the 1980–88 war between Iran and Iraq, the 1990–91 Gulf war, and the 1992–93 and 2008 conflicts in Abkhazia and South Ossetia.
48 In Cyprus, the third member of the CMP is selected by the ICRC and appointed by the UN Secretary-General. A contrario, the coordination mechanism between Croatia and Serbia functions autonomously, without the intervention of a mediator. The ICRC and the ICMP have observer status.
49 For example, in Iraq, the Ministry of Human Rights has the leading role for dealing with the issue of missing persons. Related policy issues are discussed in inter-ministry sessions. In Bosnia and Herzegovina, the Ministry of Human Rights and Refugees led the drafting of the Law on Missing Persons. The Ministry was given that task by the Bosnia and Herzegovina Council of Ministers in 2003 (in 2001 the Bosnia and Herzegovina Parliament passed a resolution on persons unaccounted for, which requested the presidency and the Council of Ministers to engage actively in determining the whereabouts of the missing persons). In Kosovo, the Office of the Prime Minister has the leading role and the issue is discussed in inter-ministerial sessions of the Governmental Commission on Missing Persons.
50 The government of Sri Lanka has provided the OMP with a humanitarian mandate and it will not be empowered to carry out any search activities for the purpose of a criminal investigation. However, the mechanism does have the power “to inform victims, relatives, witnesses and other informants who provide information to the OMP, of their right to directly refer matters to relevant authorities, including their right to report serious crimes to the relevant law enforcement or prosecuting authority”: OMP Act, Section 12(i). In other words, the OMP's humanitarian mandate is independent of, yet complementary to, the Sri Lankan domestic judicial processes that families may wish to undertake in order to address their needs for justice.
51 When it comes to efficient support for families of the missing, links should be established with existing support mechanisms such as schemes for social protection.
52 In the same vein, see ICRC, Guiding Principles/Model Law on the Missing, 2009, Arts 12–14, available at: www.icrc.org/en/download/file/1066/model-law-missing-icrc-eng-.pdf.
53 If National Societies participate, the issue of the form that participation will take – status, tasks and responsibilities, etc. – should be addressed.
54 In Africa, the ICRC works with, encourages and supports national forensic institutions in a number of countries, including Cote d'Ivoire, Algeria, Nigeria, Mali, the Central African Republic, Uganda, Morocco and South Africa, although no commission for the missing has yet been established in these countries. For more information, see ICRC, Annual Report 2016, Geneva, 2017, Africa section.
55 E.g. in Kosovo, the ICMP and the EU Rule of Law Mission in Kosovo. In Lebanon, the ICRC provides support for the collection of data from families, in preparation for future identification efforts. In Georgia, while local forensic capacities are being built to the extent that the realities of the context will allow, the ICRC carries out most of the activities related to the forensic process of recovery, analysis and identification of human remains. For more information, see Ibid.
56 Such recommendations can be found, inter alia, in the final reports of the following truth and reconciliation commissions: Chilean National Commission for Truth and Reconciliation (Rettig Commission), 1991, pp. 1060–1074, 1081–1082, 1099–1101, 1103, 1113, 1115–1117; Truth and Reconciliation Commission in Peru, 2003, Vol. 9, pp. 129, 219–225, and Annex 5; Commission for Historical Clarification in Guatemala, 1999, “Recommendations”, Chap. 3, §§ 22–31; Commission for Reception, Truth and Reconciliation in East Timor, 2005, pp. 6–7, 31–33; Truth and Reconciliation Commission of South Africa, 1998, Vol. 5, p. 347, and Vol. 6, pp. 533–540.
57 Specific case management and forensic tools have been developed by different organizations in order to manage forensic information on the dead and on missing persons. These include, to name but a few, the ICRC Ante-Mortem/Post-Mortem Database; the CMP Database; the NamUS database (US National Institute of Justice); the SIRDEC Database (Colombian National Institute of Medicolegal and Forensic Sciences); the EAAF Database (Argentine Forensic Anthropology Team); the M-FISys Database (Gene Codes Corporation); Kenyon Response (Kenyon International Emergency Services Corporation); the ICMP Identification Data Management System); the DPAA Case Management System (US Defense PoW/MIA Accounting Agency); and the Interpol databases on forensics and missing persons.
58 Bosnia and Herzegovina Law on Missing Persons, Official Gazette of Bosnia and Herzegovina, No. 50, 9 November 2004, Arts 4–7. National information bureaux (further explained below) in Argentina, Canada, France, the Netherlands, Paraguay, Peru and the UK also possess the authority to request such information.
59 Sensitive personal data include information on genetics (DNA) and biometrics, race, political opinion, physical or mental health, religious beliefs, political affiliations, sexuality, and criminal offences.
60 See notes 35 to 45 above for specific examples of Terms of Reference, including confidentiality rules.
61 See Special Court for Sierra Leone, “TRC Chairman and Special Court Prosecutor Join Hands to Fight Impunity”, press release, 10 December 2002. This move may have reassured some participants who were concerned that any information they might provide to the Truth and Reconciliation Commission would be used to build a case against them.
62 Report of the Special Rapporteur on Transitional Justice, above note 15, para. 82.
63 See ICRC Customary Law Study, above note 4, Rule 116, which states that “[e]ach party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate”.
64 Under international human rights law this is linked in particular to the protection of the right to life, the prohibition of torture and other forms of cruel, inhuman or degrading treatment, and the right to family life. In the case of enforced disappearances, States must also take appropriate measures to uphold the right of victims to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the person who has disappeared. For enforced disappearance, see ICPPED, Article 24. In general, for gross violations of international human rights law, see Basic Principles and Guidelines on Reparation, above note 23, paras 22(b), 24. See also Guiding Principles on Internal Displacement, Principle 16.1.
65 For instance, see the 2007 call of the Council of Europe's Commissioner for Human Rights for the EU to account for and identify migrant deaths, or the Council of Europe's proposal that European States set up a system of data collection for the mortal remains of lives lost at sea (Council of Europe Parliamentary Assembly, 8 June 2014). See also Bernard Duhaime and Andréanne Thibault, “Protection of Migrants from Enforced Disappearance: A Human Rights Perspective”, in this issue of the Review. The right to family life also supports the family's right to know whether a body has been found and where it is buried. See, for example, the Sabanchiyeva case, where the European Court of Human Rights found a violation of the respect for family life in a case where the State prevented families from participating in funeral ceremonies and paying their last respects to the deceased. European Court of Human Rights, Sabanchiyeva and others v. Russia, 6 June 2013.
66 There is a strict obligation for States Parties to set up such bureaux in international armed conflict for prisoners of war and protected persons in their power: see Geneva Convention III (GC III), Art. 122; Geneva Convention IV (GC IV), Arts 136–139. For the corresponding obligation in non-international armed conflict, see, for example, ICRC Customary Law Study, above note 4, Rule 123.
67 The tasks of NIBs as set out in the Geneva Conventions are:
a. Obtaining information: the NIB centralizes/processes the information collected by the services of the power to which it answers on certain categories of vulnerable persons who have fallen into that power's hands.
b. Transmission of information: the NIB functions as a relay for the urgent transmission of information to the other parties to the conflict and interested States, and to the ICRC Central Tracing Agency.
c. Communication with the families: the NIB is also obliged to reply to and to make enquiries so as to obtain additional information.
68 The State Commissions on Prisoners of War, Hostages and Missing People established in Armenia and Azerbaijan have similar characteristics to NIBs. Other countries, such as Germany, Croatia, Slovenia, Sweden and Norway, have assigned to their National Societies the task of setting up such bureaux.
69 See GC III, Art. 123; GC IV, Art. 140. Embedded in the ICRC's structures, the Tracing Agency is thus part of the ICRC, a neutral, independent and impartial humanitarian organization which has an international legal personality and a status equivalent, but not identical to that of an intergovernmental organization. Like the ICRC, the Agency is guided by humanitarian concerns, in contrast to other approaches which might focus on attributing responsibilities and collaborating with the judicial process.
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