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Advances and progress in the obligation to return the remains of missing and forcibly disappeared persons

Published online by Cambridge University Press:  15 August 2018

Abstract

This article analyzes the evolution in international law of the obligation to search for and return the remains of forcibly disappeared and missing persons. Receiving the remains of forcibly disappeared and missing persons is one of the primary needs of their families, who bring the issue to international courts and non-judicial mechanisms. This obligation has been incrementally recognized and developed by different human rights courts, which have included the obligation to search for and return the remains of disappeared persons in their remedies. In parallel to the development of the obligation by international courts, the international community has begun to become more involved in assisting in return of the remains of forcibly disappeared and missing persons to their families.

Type
Identifying the dead
Copyright
Copyright © icrc 2018 

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Footnotes

*

The research for this paper was conducted as part of the MELA project, funded by Humanities in the European Research Area (HERA). The author would like to thank Manfred Nowak, Jeremy Sarkin and Ariel Dulitzky for their very helpful comments on early drafts of this paper. Additionally, the paper has benefited greatly from comments provided by the editorial team of the Review and anonymous reviewers, for which the author is most grateful. This article reflects the views of the author alone and not necessarily those of any organization with which she may be affiliated.

References

1 Scovazzi, Tullio and Citroni, Gabriella, The Struggle against Enforced Disappearance and the 2007 United Nations Convention, Brill, Leiden, 2007, pp. 360362CrossRefGoogle Scholar; Ott, Lisa, Enforced Disappearances in International Law, Intersentia, Antwerp, 2011, p. 270Google Scholar.

2 Robins, Simon, Families of the Missing: A Test for Contemporary Approaches to Transitional Justice, Routledge, New York, 2014, pp. 48, 102Google Scholar.

3 As defined in Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance, 2716 UNTS 3, 20 December 2006 (entered into force 23 December 2010) (ICPPED). It should be noted that according to the Rome Statute, an enforced disappearance can also be conducted with at least the acquiescence of a political organization: Rome Statute of the International Criminal Court, 2187 UNTS 3, 17 July 1998 (entered into force 1 July 2002), Art. 7.2(i). See also Hall, Christoph, “Article 7: Crimes against Humanity”, in Triffterer, Otto (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Note, Article by Article, Beck and Hart, Baden-Baden, 1999, pp. 117172Google Scholar.

4 For more comments on the two terms and their usage, see the following section. At the same time, the two terms overlap, and for different reasons the judicial bodies and international initiatives cited in this contribution may choose to use one of the two or both. For example, judicial bodies (with the exception of the Human Rights Chamber for Bosnia and Herzegovina) use mostly “enforced disappearances”, while the Special Process on Missing Persons in the Territory of the former Yugoslavia uses “missing persons”. When analyzing each of them, the phrase used by the particular judicial body or international initiative will be used.

5 UNGA Res. 3220 (XXIX), 6 November 1974.

6 For more on the role played by families of the disappeared in shaping contemporary transitional justice policies and the evolution of an international legal framework on the issue, see Kovras, Iosif, Grassroots Activism and the Evolution of Transitional Justice: Families of the Disappeared, Cambridge University Press, Cambridge, 2017CrossRefGoogle Scholar.

7 In many previous post-conflict situations, the emphasis has been put on other aspects. For example, during some exhumations carried out in Bosnia and Herzegovina and later in Kosovo for the purpose of collecting evidence for the International Criminal Tribunal for the former Yugoslavia, bodies were reburied without identification because individual identification was found to be unnecessary, Vollen, Laurie, “All that Remains: Identifying the Victims of the Srebrenica Massacre”, Cambridge Quarterly of Healthcare Ethics, Vol. 10, 2001CrossRefGoogle ScholarPubMed; Human Rights Advisory Panel, Nenad Stojković against UNMIK, Case No. 87/09, Opinion, 14 December 2013, para. 98.

8 ICPPED, Art. 2. For more on enforced disappearances, see Solla, Maria Fernanda Perez, Enforced Disappearances in International Human Rights, McFarland, Jefferson, NC, and London, 2006Google Scholar; T. Scovazzi and G. Citroni, above note 1; L. Ott, above note 1.

9 ICPPED, Art. 24.1. As such, they have the right to know the truth regarding the circumstances of the disappearance, the progress and results of the investigation, and the fate of the disappearance person (Art. 24.2), as well as the right to obtain reparations and prompt, fair and adequate compensation (Art. 24.4.).

10 For example, when human remains have been thrown from airplanes into the ocean or blown up by explosives; see T. Scovazzi and G. Citroni, above note 1, p. 360.

11 Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, New York, 2009 (ICRC Customary Law Study), p. 340Google Scholar; see also pp. 421–427. For a detailed discussion on the differences between “disappearances” and “missing persons”, see also Working Group on Enforced or Involuntary Disappearances (WGEID), Report on the Visit to former Yugoslavia by a Member of the Working Group on Enforced or Involuntary Disappearances at the Request of the Special Rapporteur on the Situation of Human Rights in the former Yugoslavia (4–13 August 1993), UN Doc. E/CN.4/1994/26/Add.1, 15 December 1993, particularly paras 30–32, 42–60.

12 For a broader approach in international humanitarian law, see, for example, the definition adopted in ICRC, Guiding Principles/Model Law on the Missing, Geneva, 28 February 2009, Art. 2.1, available at: www.icrc.org/en/document/guiding-principles-model-law-missing-model-law (all internet references were accessed in August 2017): “‘Missing person’ is a person whose whereabouts are unknown to his/her relatives and/or who, on the basis of reliable information, has been reported missing in accordance with the national legislation in connection with an international or non-international armed conflict, a situation of internal violence or disturbances, natural catastrophes or any other situation that may require the intervention of a competent State authority.” See also Sarkin, Jeremy, “The Need to Deal with All Missing Persons including Those Missing as a Result of Armed Conflict, Disaster, Migration, Human Trafficking and Human Rights Violations (including Enforced Disappearances) in International and Domestic Law and Processes”, Inter-American and European Human Rights Journal, Vol. 1, 2015Google Scholar.

13 ICRC, Accompanying the Families of Missing Persons: A Practical Handbook, Geneva, 2013, p. 16Google Scholar (emphasis in original).

14 See, for example, Special Process on Missing Persons in the Territory of the former Yugoslavia, Report Submitted by Mr. Manfred Nowak, Expert Member of the Working Group on Enforced or Involuntary Disappearances, Responsible for the Special Process, Pursuant to Commission Resolution 1996/71, UN Doc. E/CN.4/1997/55, 15 January 1997, para. 57.

15 See, for example, European Court of Human Rights (ECtHR), Varnava et al. v. Turkey, Case Nos 16064/90, 16065/90, 16066/90, 16068/90, 16069/90,16070/90, 16071/90, 16072/90, 16073/90, 18 September 2009.

16 Blaauw, Margriet and Lähteenmäki, Virpi, “‘Denial and Silence’ or ‘Acknowledgment and Disclosure’”, International Review of the Red Cross, Vol. 84, No. 848, 2002, p. 769Google Scholar.

17 Boss, Pauline, “Ambiguous Loss Research, Theory, and Practice: Reflections after 9/11”, Journal of Marriage and Family, Vol. 66, No. 3, 2004, p. 554CrossRefGoogle Scholar.

18 S. Robins, above note 2, p. 45. See also Crettol, Monique and Rosa, Anne-Marie La, “The Missing and Transitional Justice: The Right to Know and the Fight against Impunity”, International Review of the Red Cross, Vol. 88, No. 862, 2006CrossRefGoogle Scholar.

19 Polili, Öncel, Kuzey Kibris'ta kayip kişiler ve ailelerinin insan haklari, Kibrisli Türk İnsan Haklari Vakfi Yayinlari, No. 9, Nicosia, 2012, Appendix 2Google Scholar.

20 S. Robins, above note 2, pp. 48, 102; see also Stover, Eric and Shigekane, Rachel, “The Missing in the Aftermath of War: When do the Needs of Victims’ Families and International War Crimes Tribunals Clash?”, International Review of the Red Cross, Vol. 84, No. 848, 2002, p. 855Google Scholar. For more on the use of death certificates in enforced disappearance cases, see Citroni, Gabriella, “The Pitfalls of Regulating the Legal Status of Disappeared Persons Through Declaration of Death”, Journal of International Criminal Justice, Vol. 12, No. 4, 2014CrossRefGoogle Scholar.

21 S. Robins, above note 2, pp. 102–103.

22 E. Stover and R. Shigekane, above note 20, p. 860.

23 Pauline Boss uses the phrase “bury one's dead” in her research, which clearly also covers other traditions and rituals, such as incinerations. This article uses “bury one's dead” in the same sense.

24 P. Boss, above note 17, pp. 561–562. On the importance of rituals and funerals for families of the missing, see also ICRC, above note 13, pp. 62–63.

25 T. Scovazzi and G. Citroni, above note 1, pp. 360–362.

26 See P. Boss, above note 17, as well as the Special Issue on ambiguous loss theory of the Journal of Family Theory & Review, Vol. 8, No. 3, 2016Google Scholar, especially Theo Hollander, “Ambiguous Loss and Complicated Grief: Understanding the Grief of Parents of the Disappeared in Northern Uganda”, and Simon Robins, “Discursive Approaches to Ambiguous Loss: Theorizing Community-Based Therapy After Enforced Disappearances”.

27 Geneva Convention (IV) relative to the Protection of Civilian Persons in time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Art. 26.

28 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Art. 17; Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950), Art. 120.2–6; GC IV, Art. 130.

29 GC I, Art. 17; Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces in the Field of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950), Art. 20.

30 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978), Arts 33–34.

31 In addition, in the absence of such an agreement and if the home country of the deceased is not willing to arrange at its expense for the maintenance of such gravesites, the party in whose territory the gravesites are situated may offer to return the remains, but this offer has to be accepted by the party (ibid., Art. 34.3). See also ICRC Customary Law Study, above note 11, pp. 340, 411–414, 421–427.

32 Report Submitted by Mr. Manfred Nowak, Independent Expert Charged with Examining the Existing International Criminal and Human Rights Framework for the Protection of Persons from Enforced or Involuntary Disappearances, Pursuant to Paragraph 11 of Commission Resolution 2001/46, UN Doc. E/CN.4/2002/71, 8 January 2002, paras 86–87.

33 T. Scovazzi and G. Citroni, above note 1, p. 369.

34 IACtHR, Juan Humberto Sánchez v. Honduras, Judgment (Preliminary Objections, Merits, Reparations and Costs), 7 June 2003, para. 187.

35 IACtHR, Gelman v. Uruguay, Judgment (Merits and Reparations), 24 February 2011, para. 258.

36 In accordance with Article 29 of the ICPPED, States Parties are required to submit to the CED periodic reports on the measures taken to fulfil its obligation under the ICPPED.

37 CED, Guidelines on the Form and Content of Reports under Article 29 to be Submitted by States Parties to the Convention, Adopted by the Committee at its Second Session (26–30 March 2012), UN Doc. CED/C/2, 8 June 2012, para. 35.

38 CED, Concluding Observations on the Report Submitted by Mexico under Article 29, Paragraph 1 of the Convention, UN Doc. CED/C/MEX/CO/1, 5 March 2015, para. 41; CED, Concluding Observations on the Report Submitted by Iraq under Article 29(1) of the Convention, UN Doc. CED/C/IRQ/CO/1, 13 October 2015, para. 34; CED, Concluding Observations on the Report Submitted by Colombia under Article 29(1) of the Convention, UN Doc. CED/C/COL/CO/1, 27 October 2016, para. 26.

39 The existence of many different bodies and initiatives involved in the issue of missing and disappeared persons can lead to duplication and competition between them, which has also been considered a problem by experts; see, for example, Nowak, Manfred, “Lessons for the International Human Rights Regime from the Yugoslav Experience”, Collected Courses of the Academy of European Law, Vol. 8, No. 2, 2000, pp. 203205Google Scholar.

40 CED, Concluding Observations on Mexico, above note 38, paras 23–24.

41 See CED, Concluding Observations on Colombia, above note 38, para. 26(f), in which the CED points in particular to indigenous peoples and Afro-descendent communities.

42 CED, Concluding Observations on the Report Submitted by Paraguay under Article 29, Paragraph 1 of the Convention, UN Doc. CED/C/PRY/CO/1, 20 October 2014, para. 28.

43 CED, Concluding Observations on the Report Submitted by Spain under Article 29, Paragraph 1 of the Convention, UN Doc. CED/C/ESP/CO/1, 12 December 2013, paras 31–32.

44 Commission on Human Rights, Res. 20 (XXXVI), 29 February 1980. The mandate has since been regularly renewed.

45 See para. 6 of the WGEID's “General Comment on the Right to the Truth in Relation to Enforced Disappearance”, in WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. A/HRC/16/48, 26 January 2011, p. 15.

46 Ibid.

Ibid

47 See for example, WGEID, Report of the Working Group on Enforced or Involuntary Disappearances: Mission to Croatia, UN Doc. A/HRC/30/38/Add.3, 17 August 2015, paras 73, 91; WGEID, Report of the Working Group on Enforced or Involuntary Disappearances: Mission to Mexico, UN Doc. A/HRC/19/58/Add.2, 20 December 2011, para. 103; WGEID, Report of the Working Group on Enforced or Involuntary Disappearances: Mission to Morocco, UN Doc. A/HRC/13/31/Add.1, 9 February 2010, para. 106.

48 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances on Its Mission to Albania, UN Doc. A/HRC/36/39/Add.1, 18 July 2017, paras 79(a), 82(c); WGEID, Report of the Working Group on Enforced or Involuntary Disappearances on Its Mission to Peru, UN Doc. A/HRC/33/51/Add.3, 8 July 2016, paras 79(c), 79(n).

49 As the reappearance of a disappeared person is rare, the vast majority of applications were filed by the families of the disappeared. Examples of reappearances in international case law include Human Rights Committee, Aboussedra v. Libya, Case No. 1751/2008, Views, 25 October 2010; ECtHR, El-Masri v. The Former Yugoslav Republic of Macedonia, Case No. 39630/09, Judgment, 13 December 2012.

50 Courts have repeatedly found that in case of an enforced disappearance the right to life and prohibition against torture and inhuman treatment have been violated. See, for example, ECtHR, Çakıcı v. Turkey, Case No. 23657/94, Judgment, 8 July 1999 (Articles 2 and 3 of the European Convention of Human Rights); Human Rights Committee, Sarma v. Sri Lanka, Case No. 950/2000, Views, 16 July 2003 (Articles 6 and 7 of the International Covenant on Civil and Political Rights).

51 See the first decisions and judgments including such remedies: IACtHR, Neira Alegria et al. v. Peru, Judgment (Reparations and Costs), 19 September 1996, para. 69; Human Rights Chamber for Bosnia and Herzegovina, Palić v. Republica Srpska, Case No. CH/99/3196, Decision on the Merits, 11 January 2001, para. 91.8. For a detailed analysis, see the following sections.

52 It should be pointed out that none of the treaties enforced or interpreted by the analyzed international judicial bodies contain provisions specifically mentioning enforced disappearances.

53 IACtHR, Velasquez-Rodriguez v. Honduras, Judgment (Merits), 29 June 1988, para. 181.

54 IACtHR, Castillo-Paez v. Peru, Judgment (Merits), 3 November 1997, para. 90. For more on the right to truth in the jurisprudence of the IACtHR, see Vermeulen, Marthe Lot, Enforced Disappearance: Determining State Responsibility under the International Convention for the Protection of All Persons from Enforced Disappearance, Intersentia, Utrecht, 2012, pp. 334337Google Scholar.

55 See, for example, Antkowiak, Thomas M., “Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond”, Columbia Journal of Transnational Law, Vol. 46, No. 2, 2008Google Scholar.

56 IACtHR, Neira Alegria, above note 51, para. 69. Similarly, in a judgment one year later, see IACtHR, Caballero-Delgado and Santana v. Colombia, Judgment (Reparations and Costs), 29 January 1997, para. 66(4).

57 IACtHR, Villagrán Morales and Others v. Guatemala (“Street Children”), Judgment (Reparations), 26 May 2001, para. 102.

58 IACtHR, Trujillo -Oroza v. Bolivia, Judgment (Reparations and Costs), 27 February 2002, para. 115. See also IACtHR, Caracazo v. Venezuela, Judgment (Reparations and Costs), 29 August 2002, para. 123.

59 See, for example, IACtHR, Goiburu et al. v. Paraguay, Judgment (Merits, Reparations and Costs), 22 September 2006, para. 172.

60 IACtHR, Bamaca-Velasquez v. Guatemala, Judgment (Reparations and Costs), 22 February 2002, para. 82; IACtHR, Juan Humberto Sánchez, above note 34, para. 187.

61 IACtHR, Caracazo, above note 58, para. 124.

62 IACtHR, Goiburu, above note 59, para. 172; IACtHR, Rodriguez Vera et. al (The Disappeared from the Palace of Justice) v. Colombia, Judgment (Preliminary Objections, Merits, Reparations and Costs), 14 November 2014, para. 564.

63 IACtHR, Rodriguez Vera, above note 62, para. 564; IACtHR, Radillo-Pacheca v. Mexico, Judgment (Preliminary Objections, Merits, Reparations and Costs), 23 November 2009, para. 336.

64 IACtHR, Garcia and Family Members v. Guatemala, Judgment (Merits, Reparations and Costs), 29 November 2012, para. 200; IACtHR, Osorio Rivera and Family Members v. Peru, Judgment (Preliminary Objections, Merits, Reparations and Costs), 26 November 2013, para. 251.

65 IACtHR, The 19 Merchants v. Columbia, Judgment (Merits, Reparation and Costs), 5 July 2004, paras 270–271. In this case, sixteen years had elapsed since the disappearance and it had been proven that the bodies of the victims had been dismembered and thrown into a river. The Court stated that Colombia's omissions at a time when it was still probable that the remains of the victims could be found led to the fact that locating the remains was, at the time of the proceedings before the Court, a very difficult and improbable task. Because of that, the Court considered it fair and reasonable “to order Colombia to conduct a genuine search, making every possible effort to determine with certainty what happened to the remains of the victims and, should it be possible, to return these to their next of kin” (para. 271).

66 IACtHR, Gudiel Alvarez et al. (“Diario Militar”) v. Guatemala, Judgment (Merits, Reparations and Costs), 20 November 2012, para. 336.

67 IACtHR, Bamaca-Velasquez, above note 60, para. 81. As stressed by Judge Antônio Augusto Cançado Trindade, the obligation to locate and hand over the remains to the next of kin was the very first resolutory point of the judgment contained in this order, before all other kinds of reparations. Antônio Augusto Cançado Trindade, “The Right to Cultural Identity in the Evolving Jurisprudential Construction of the Inter-American Court of Human Rights”, in Yee, Sienho and Morin, Jacques-Yvan (eds), Multiculturalism and International Law: Essays in Honour of Edward McWhinney, Martinus Nijhoff, Leiden and Boston, MA, 2009, p. 483Google Scholar.

68 IACtHR, Bamaca-Velasquez, above note 60, para. 20 (testimonial evidence); IACtHR, 19 Merchants, above note 65, paras 71–72.

69 IACtHR, Blake v. Guatemala, Judgment (Merits), 24 January 1998, para. 115. This was invoked in the context of the suffering of the disappeared person's relatives. In this case the IACtHR did not mention returning the remains among the reparations, as they had been incinerated: see IACtHR, Blake v. Guatemala, Judgment (Reparations and Costs), 22 January 1999.

70 For a complex legal analysis of the connection between the living and the dead and the need to receive the remains, see IACtHR, Bamaca-Velasquez v. Guatemala, Judgment (Reparations and Costs), Separate Opinion of Judge Antônio Augusto Cançado Trindade, 22 February 2002.

71 The Human Rights Chamber for Bosnia and Herzegovina was a judicial body established within Annex 6 to the General Framework Agreement for Peace in Bosnia and Herzegovina. For more on the Human Rights Chamber and its jurisprudence on enforced disappearances and missing persons, see, for example, Yeager, David, “The Human Rights Chamber for Bosnia and Herzegovina: A Case Study in Transitional Justice”, International Legal Perspectives, No. 14, 2004Google Scholar; Rausching, Dietrich, “Menschenrecht auf Information über das Schicksal Vermißter: Das Beispiel von Bosnien und Herzegowina”, in Bröhmer, Jürgen et al. (eds), Internationale Gemeinschaft und Menschenrechte: Festschrift für Georg Ress, Carl Heymanns Verlag, Munich, 2005, pp. 161175Google Scholar; T. Scovazzi and G. Citroni, above note 1, pp. 224–243; Blumenstock, Tilman, “Legal Protection of the Missing and Their Relatives: The Example of Bosnia and Herzegovina”, Leiden Journal of International Law, Vol. 19, No. 3, 2006, pp. 781793CrossRefGoogle Scholar; Fennell, Simone (ed.), Jurisprudence of the Human Rights Chamber for Bosnia and Herzegovina, Vols 1–44, Wolf Legal Publishers, Nijmegen, 2004–2015Google Scholar.

72 Human Rights Chamber for Bosnia and Herzegovina, Matanović v. Republica Srpska, Case No. CH/96/1, Decision on the Merits, 11 July 1997, para. 64.2. The Chamber's powers with regard to remedies constituted an important and innovative feature of this body: see Nowak, Manfred, “Reparation by the Human Rights Chamber for Bosnia and Herzegovina”, in Kostić, S. (ed.), Strategy for Transitional Justice in the former Yugoslavia: Dealing with the Past – Post-Conflict Strategies for Truth, Justice and Reconciliation in the Region of the former Yugoslavia, Fond za Humanitarno Pravo, Belgrade, 2005, pp. 283285Google Scholar.

73 Human Rights Chamber for Bosnia and Herzegovina, Palić, above note 51, para. 91.8.

74 Human Rights Chamber for Bosnia and Herzegovina, Slimović v. Republica Srpska, Case Nos CH/01/8365, CH/01/8397, CH/01/8398, CH/01/8399, CH/01/8410, CH/01/8411, CH/01/8412, CH/01/8414, CH/01/8428, CH/01/8484, CH/01/8487, CH/01/8521, CH/02/8842, CH/02/8927, CH/02/9357, CH/02/9375, CH/02/9385, CH/02/9390, CH/02/9403, CH/02/9427, CH/02/9431, CH/02/9433, CH/02/9470, CH/02/9484, CH/02/9485, CH/02/9486, CH/02/9487, CH/02/9505, CH/02/9506, CH/02/9507, CH/02/9508, CH/02/9513, CH/02/9514, CH/02/9515, CH/02/9528, CH/02/9529, CH/02/9530, CH/02/9532, CH/02/9542, CH/02/9546, CH/02/9547, CH/02/9548, CH/02/9549, CH/02/9550, CH/02/9552, CH/02/9553, CH/02/9594, CH/02/9595, CH/02/9596, Decision on the Merits, 7 March 2003, para. 220.7; Human Rights Chamber for Bosnia and Herzegovina, Jovanović v. Federation of Bosnia and Herzegovina, Case No. CH/02/9180, Decision on the Merits, 5 December 2003, para. 102.6.

75 Interview with Manfred Nowak, Judge of the Human Rights Chamber for Bosnia and Herzegovina, Vienna, April 2015.

76 The Human Rights Committee was provided with the competence, under the First Optional Protocol to the International Covenant on Civil and Political Rights, to examine individual complaints with regard to alleged violations of the Covenant by States party to the Protocol. Because of this competence, the Human Rights Committee is considered a quasi-judicial body (Nowak, Manfred, U.N. Covenant on Civil and Political Rights: CCPR Commentary, N.P. Engel, Kehl-Strasburg-Arlington, 2005, pp. 668669Google Scholar) and its decisions regarding enforced disappearances are analyzed as such in this section.

77 For more on the Human Rights Committee's jurisprudence concerning enforced disappearances, see, for example, the relevant parts in M. L. Vermeulen, above note 54 (comparative case law analysis on pp. 157–434).

78 Human Rights Committee, Qinteros v. Uruguay, Case No. 107/1981, Views, 21 July 1983, para. 14.

79 See, for example, Human Rights Committee, El Hassy v. Libya, Case No. 1422/2005, Views, 24 October 2005, para. 3.7.

80 Human Rights Committee, Bashasha v. Libya, Case No. 1776/2008, Views, 20 October 2010, para. 9(c).

81 See, for example, Human Rights Committee, Zarzi v. Algeria, Case No. 1780/2008, Views, 22 March 2011, para. 9(iv); Human Rights Committee, Mihoubi v. Algeria, Case No. 1874/2009, Views, 18 October 2013, para. 9(d).

82 Human Rights Committee, Sarma, above note 50, para. 9.6; Human Rights Committee, El Hassy, above note 79, para. 6.10.

83 ECtHR, Kurt v. Turkey, Case No. 24276/94, Judgment, 25 May 1998.

84 Chevalier-Watts, Juliett, “The Phenomena of Enforced Disappearances in Turkey and Chechnya: Strasbourg's Noble Cause?”, Human Rights Review, Vol. 11, No. 4, 2010CrossRefGoogle Scholar. For current judgments concerning disappearances, see the ECtHR Human Rights Documentation (HUDOC) database, available at: www.echr.coe.int/Pages/home.aspx?p=caselaw/HUDOC&c#n1355308343285_pointer.

85 ECtHR, Cyprus v. Turkey, Case No. 25781/94, Judgment, 10 May 2001, para. 136.

86 ECtHR, Khadzhialiyev and Others v. Russia, Case No. 3013/04, Judgment, 6 November 2008, para. 121. See also ECtHR, Akkum and Others v. Turkey, Case No. 21894/93, Judgment, 14 March 2005, paras 252–259; ECtHR, Akpinar and Altun v. Turkey, Case No. 56750/00, Judgment, 27 February 2007, paras 84–87.

87 ECtHR, Aslakhanova and Others v. Russia, Case Nos 2944/06, 8300/07, 50184/07, 332/08, 42509/10, Judgment, 18 December 2012, para. 221.

88 Ibid. para. 226; see also paras. 223-228.

Ibid

89 Ibid. para. 226.

Ibid

90 European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 and 14, ETS 5, 4 November 1950 (entered into force 3 September 1953), Art. 46.2; for more on the role of the Court and the CoM in this respect, see Schabas, William, The European Convention on Human Rights. A Commentary, Oxford University Press, Oxford 2015, pp. 869-871Google Scholar.

91 The enforced disappearances judgments are monitored, along with other judgments concerning actions of the Russian security forces, within the Khasihev group and concern violations resulting from, or relating to, the actions of Russian security forces during anti-terrorist operations, mostly in Chechnya, between 1999 and 2006: see, for example, CoM, Interim Res. CM/ResDH(2011)292, CM/ResDH(2015)45.

92 The enforced disappearances judgments are monitored along with other judgments concerning actions of the Turkish security forces, in particular in the southwest of Turkey, mainly in the 1990s, within the Aksyoy group: see, for example, CoM, Interim Res. CM/ResDH(2005)43, CM/ResDH(2008)69. Some of the elements have already been found to have been executed, such as trainings for judges and prosecutors (CoM, Interim Res. CM/ResDH(2008)69).

93 ECtHR, Aslakhanova, above note 87, paras 216–221; ECtHR, Interim Res. CM/ResDH(2011)292, 2 December 2011.

94 IACtHR, Street Children, above note 57, para. 102; the Human Rights Chamber did not include this reasoning in its decision, but according to an interview with Manfred Nowak, the families have triggered this development.

95 S. Robins, above note 2, p. 48. See also Sarkin, Jeremy, “How Developments in the Science and Technology of Searching, Recovering and Identifying the Missing/Disappeared are Positively Affecting the Rights of Victims around the World”, Human Remains and Violence: An Interdisciplinary Journal, Vol. 3, No. 1, 2017CrossRefGoogle Scholar.

96 Sarkin, Jeremy, “Dealing with Enforced Disappearances in South Africa (with a Focus on the Nokuthula Simelane Case) and around the World: The Need to Ensure Progress on the Rights to Truth, Justice and Reparations in Practice”, Speculum Juris, Vol. 29, No. 1, 2015, p. 41Google Scholar. For more on the right to truth, see Naqvi, Yasmin, “The Right to Truth in International Law: Fact of Fiction?”, International Review of the Red Cross, Vol. 88, No. 862, 2006CrossRefGoogle Scholar; Brunner, Jose and Stahl, Daniel (eds), Recht auf Wahrheit: Zur Genese eines neuen Menschenrechts, Wallstein Verlag, Göttingen, 2016Google Scholar; Garibian, Sevanne, “Ghosts also Die: Resisting Disappearance through the ‘Right to the Truth’ and the Juicios por la Verdad in Argentina”, Journal of International Criminal Justice, Vol. 12, No. 3, 2014CrossRefGoogle Scholar.

97 For some of the reasons for this, see the first section of this article, “Enforced Disappearances and Missing Persons”, above.

98 Special Process on Missing Persons in the Territory of the former Yugoslavia, Report Submitted by Mr. Manfred Nowak, Expert Member of the Working Group on Enforced or Involuntary Disappearances, Responsible for the Special Process, Pursuant to Paragraph 4 of Commission Resolution 1995/35, UN Doc. E/CN.4/1996/36, 4 March 1996, para. 78.

99 With the exception of the UN Interim Administration Mission in Kosovo, which played a key administrative role in Kosovo after 1999 and was responsible for maintaining order and security, as well as for exhumations and identifications of missing and disappeared persons: see Nowak, Manfred, “Enforced Disappearances in Kosovo: Human Rights Advisory Panel Holds UNMIK Accountable”, European Human Rights Law Review, No. 3, 2013, p. 269Google Scholar.

100 For a complex analysis and evaluation of the actions of the ICRC with regard to missing persons, see Sassoli, Marco and Tougas, Marie-Lousie, “The ICRC and the Missing”, International Review of the Red Cross, Vol. 84, No. 848, 2002Google Scholar. For more information on missing persons, including news about current developments, see the ICRC web page on the subject, available at: www.icrc.org/en/war-and-law/protected-persons/missing-persons.

101 ICRC, Annual Report 2015, Geneva, 2016, pp. 34, 228, 298, 351, 414; ICRC, Annual Report 2014, Geneva, 2015, pp. 93, 125, 165, 269, 296, 382, 441.

102 ICRC, above note 13, p. 89.

103 ICRC, Annual Report 2015, above note 101, p. 15. See also ICRC Advisory Service on International Humanitarian Law, “Missing Persons and Their Families: Factsheet”, Geneva, 2015; while this fact sheet covers the subject of “Management of Human Remains” (p. 3), this aspect is not mentioned in the part devoted to the ICRC's role (pp. 4–5).

104 ICRC, Forensic Science and Humanitarian Action, Geneva, 2017Google Scholar, available at: www.icrc.org/en/document/forensic-science-and-humanitarian-action#.VL_PRCinGm8.

105 The ICRC's Annual Report 2015 (above note 101, p. 62) mentions seventy countries, and its Annual Report 2014 (above note 101, p. 94) eighty countries, to which assistance in this respect has been provided.

106 For example, in Colombia in 2013 (ICRC, Annual Report 2014, above note 101, p. 421), or in post-conflict Yugoslavia (ICRC, Annual Report 1997, Geneva, 1998, pp. 186187Google Scholar). In Bosnia the use of such measures was justified by “the need to identify bodies and accord them a decent burial – a need particularly acute for the families of the dead, who could only then begin the catharsis of mourning” (ICRC, Annual Report 1996, Geneva, 1997, p. 175Google Scholar).

107 In order to provide the WGEID with “clear and detailed information on the fate or whereabouts of the disappeared person”: see WGEID, Methods of Work of the Working Group on Enforced or Involuntary Disappearances, UN Doc. A/HRC/WGEID/102/2, 2 May 2014, Rules 25, 26.

108 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. E/CN.4/1993/25, 7 January 1993, paras 6, 36–44. At this time, the WGEID's working methods did not cover disappearances, which happened in international armed conflicts. This was changed in 2012.

109 For more on the course of events that led to establishing the Special Process, see ibid., paras 37–44; WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. E/CN.4/1994/26, 22 December 1993, paras 41–44; WGEID, above note 11. For more on the Special Process, see Renate Frech, Disappearances in Bosnia and Herzegovina, Association for the Promotion of the Ludwig Boltzmann Institute of Human Rights, Sarajevo, Tuzla and Vienna, 1998, pp. 11–20; Nowak, Manfred, “Monitoring Disappearances – The Difficult Path from Clarifying Past Cases to Effectively Preventing Future Ones”, European Human Rights Law Review, Vol. 1, 1996, pp. 358360Google Scholar.

110 Special Process on Missing Persons in the Territory of the former Yugoslavia, Report Submitted by Mr. Manfred Nowak, Member of the Working Group on Enforced or Involuntary Disappearances, Pursuant to Paragraph 24 of Commission Resolution 1994/72, UN Doc. E/CN.4/1995/37, 15 January 1995, para. 12.

111 Most importantly, the Special Process's target group was broader and it acted as a channel of communication not only between families and government, but also for all other sources of information. Ibid., para. 12.

112 Special Process on Missing Persons in the territory of the former Yugoslavia. above note 98, para. 78.

113 Ibid., paras 74–79.

Ibid

114 Special Process on Missing Persons in the Territory of the former Yugoslavia, above note 14, paras 49–54.

115 Commission on Human Rights, Res. 1996/71, 23 April 1996, para. 34.

116 Ibid., para. 36.

Ibid

117 Special Process on Missing Persons in the Territory of the former Yugoslavia, above note 14, paras 49–52, 57.

118 The other two were lack of coordination among international actors in the field and lack of cooperation from the Federal Republic of Yugoslavia: see Special Process on Missing Persons in the Territory of the former Yugoslavia, “Final Statement by Manfred Nowak”, 26 March 1997.

119 See ibid.

120 Manfred Nowak proposed the creation of a very similar multilateral commission on missing persons; while the initiative was never implemented, it did receive support from the majority of regional authorities (Republic of Croatia, Republic of Bosnia and Herzegovina, Republika Srpska). See Special Process on Missing Persons in the Territory of the former Yugoslavia, above note 98, paras 80–82.

121 See the ICMP website, available at: www.icmp.int/about-us/mandate/.

122 See also Sarkin, Jeremy, Nettelfield, Lara, Matthews, Max and Kosalka, Renee, Bosnia and Herzegovina: Accounting for Missing Persons from the Conflict: A Stocktaking, ICMP, Sarajevo, 2014, pp. 3435Google Scholar.

123 For more on the CMP, see Baranowska, Grażyna, “Shedding Light on the Fate of the Disappeared? Committee on Missing Persons in Cyprus”, International Journal of Rule of Law, Transitional Justice and Human Rights, Vol. 3, 2013, pp. 101108Google Scholar.

124 Multilateral or tripartite mechanisms with regard to missing persons have also been set up after other conflicts; for example, the 1980–88 Iran–Iraq war (ICRC, Annual Report 2015, above note 101, p. 484) and the Yugoslav wars (ICRC, Annual Report 1997, above note 106, pp. 186–187).

125 CMP, “Terms of Reference and Mandate”, paras 7, 11, 13, available at: www.cmp-cyprus.org/content/terms-reference-and-mandate.

126 G. Baranowska, above note 123, pp. 104–105.

127 The first three phases are the archaeological phase, the anthropological phase and the genetic phase.

128 Figures from the CMP website as of 31 May 2018. Updated figures can be found at CMP, “Figures and Statistics of Missing Persons”, available at: www.cmp-cyprus.org/content/facts-and-figures.

129 CMP website, available at: www.cmp-cyprus.org.

130 Among the reasons for this is the fact that the CMP does not designate responsibility for disappearances, so it does not reveal the fate of the disappeared persons. Additionally, because of the passage of time and since many remains were purposely destroyed, damaged or hidden by the perpetrators, not all persons will be found and identified. It is not possible to assess the total number unambiguously; it can be only estimated. Gülden Plümer Küçük, the Turkish member of the CMP, stated during an interview that finding 65% of the remains would be a great success (interview with Gülden Plümer Küçük, Turkish member of the CMP, Nicosia, October 2012). Though this is of course only an estimate, it seems quite optimistic.

131 WGEID, “General Comment”, above note 45, paras 5, 6.

132 The IACtHR explained the issue in the judgments themselves (see, for example, IACtHR, Bamaca-Velasquez, above note 60, para. 81), while the Chamber did not mention it in its decisions, but according to an interview with Manfred Nowak the wishes expressed by the families filing the application triggered this development.

133 CED, above note 42, para. 28; CED, above note 43, paras 31–32.

134 Ley de Memoria Histórica de España, Art. 12. For more on Spanish memory laws, see Aragoneses, Alfons, “Legal Silences and the Memory of Francoism in Spain”, in Belavusau, Uladzislau and Gliszczyńska-Grabias, Aleksandra (eds), Law and Memory: Addressing Historical Injustice through Law, Cambridge University Press, Cambridge, 2017Google Scholar.

135 For more on the disadvantages and challenges for the ICRC, see M. Sassoli and M.-L. Tougas, above note 100, pp. 743–745.

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