Published online by Cambridge University Press: 19 November 2018
International humanitarian law and international human rights law seek to prevent people from going missing, and to clarify the fate and whereabouts of those who do go missing while upholding the right to know of their relatives. When implementing international law at the domestic level, national authorities should plan carefully before engaging in any policy or legal reform that will address the issue of missing persons and the response to the needs of their families. This article seeks to present a general overview of the provisions of international law that are relevant to understanding the role of national implementation vis-à-vis the clarification of the fate and whereabouts of missing persons and the response to the needs of their relatives. It also presents the role that the ICRC has played in this regard and highlights three challenges that may arise at the national level when working on legal and policy reforms.
The views expressed here are those of the authors and do not necessarily reflect the position of the International Committee of the Red Cross. The authors would like to thank Cristina Pellandini and Helen Obregón for their valuable comments on earlier drafts of this article.
1 To better understand the impact of disappearances on families, see ICRC, Accompanying the Families of Missing Persons: A Practical Handbook, 2015, available at: www.icrc.org/en/publication/4110-accompanying-families-missing-persons-practical-handbook (all internet references were accessed in October 2018); and see Pauline Boss, “Families of the Missing: Psychosocial Effects and Therapeutic Approaches”, in this issue of the Review.
2 Gieseken, Helen Obregón, “The Protection of Migrants under International Humanitarian Law”, International Review of the Red Cross, Vol. 99, No. 904, 2017, pp. 149–150CrossRefGoogle Scholar. Article 32 of AP I states: “In the implementation of this Section, the activities of the High Contracting Parties, of the Parties to the conflict and of the international humanitarian organizations mentioned in the Conventions and in this Protocol shall be prompted mainly by the right of families to know the fate of their relatives.”
The right of families to know the fate of their relatives is also supported by a number of resolutions adopted in multilateral fora. For example, in a resolution adopted in 1974, the United Nations (UN) General Assembly stated that “the desire to know the fate of loved ones lost in armed conflicts is a basic human need which should be satisfied to the greatest extent possible”. UNGA Res. 3230 (XXIX), 6 November 1974, Preamble. Also, the former UN Commission on Human Rights affirmed in two resolutions in 2002 and 2004 “the right of families to know the fate of their relatives reported missing in connection with armed conflict”. UN Commission on Human Rights, Res. 2002/60, 25 April 2002, para. 2, and Res. 2004/50, 20 April 2004, para. 3.
Finally, the International Conference of the Red Cross and Red Crescent has adopted on various occasions resolutions stressing the right of families to be informed about the fate of their relatives. See in particular 25th International Conference of the Red Cross and Red Crescent, Res. XIII, October 1986; 26th International Conference of the Red Cross and Red Crescent, Res. II, December 1995.
5 Geneva Convention I (GC I), Art. 16(f); Geneva Convention II (GC II), Art. 19(f); Geneva Convention III (GC III), Art. 17.
6 GC III, Arts 70–71; Geneva Convention IV (GC IV), Arts 106–107; Additional Protocol II (AP II), Art. 5(2)(b); ICRC Customary Law Study, above note 3, Rules 105, 125.
7 GC III, Arts 120, 122, 124; GC IV, Art. 136.
8 GC I, Art. 17; GC II, Art. 20; GC III, Art. 120; GC IV, Art. 130; AP I, Art. 34; AP II, Art. 8; ICRC Customary Law Study, above note 3, Rules 112–116.
9 ICRC Customary Law Study, above note 3, Rules 116, 117.
10 GC I, Arts 15–17; GC II, Arts 18–20; GC III, Arts 120, 122–124; GC IV, Arts 16, 136–141; AP I, Arts 32–34; AP II, Art. 8; ICRC Customary Law Study, above note 3, Rule 112.
11 In international armed conflicts, parties to the conflict shall ensure that burial or cremation of the dead is carried out individually as far as circumstances permit (GC I, Art. 17(1); GC II, Art. 20(1)). Deceased prisoners of war and internees must be buried in individual graves unless unavoidable circumstances require the use of collective graves (GC III, Art. 120; GC IV, Art. 130). See also ICRC Customary Law Study, above note 3, Rule 115 and commentary.
12 See note 8 above for references concerning the obligations of parties to record all available information prior to disposal of the dead, including ICRC Customary Law Study, above note 3, Rule 116.
13 International Convention for the Protection of All Persons from Enforced Disappearance, 2716 UNTS 3, 20 December 2006 (entered into force 23 December 2010).
14 Organization of American States (OAS), Inter-American Convention on Forced Disappearance of Persons, 9 June 1994 (entered into force 28 March 1996), available at: http://www.refworld.org/docid/3ae6b38ef.html.
16 Pellandini, Cristina, “Ensuring National Compliance with IHL: The Role and Impact of National IHL Committees”, International Review of the Red Cross, Vol. 96, No. 895–896, 2014, p. 1044CrossRefGoogle Scholar. For more information on the obligation to respect and ensure respect in Article 1 common to the four Geneva Conventions, see Dörmann, Knut and Serralvo, Jose, “Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations”, International Review of the Red Cross, Vol. 96, No. 895–896, 2014CrossRefGoogle Scholar; ICRC Customary Law Study, above note 3, Rules 139, 140, 144; ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed., Geneva, 2016Google Scholar, Art. 1.
17 ICRC, “Implementing International Humanitarian Law: From Law to Action”, Advisory Service Factsheet, 2002, available at: www.icrc.org/en/document/implementing-international-humanitarian-law-law-action.
18 GC I, Art. 47; GC II, Art. 48; GC III, Art. 127; GC IV, Art. 144; AP II, Art. 83; ICRC Customary Law Study, above note 3, Rules 142, 143.
19 For a brief overview of the Central Tracing Agency's work, see ICRC, “Central Tracing Agency”, available at: https://casebook.icrc.org/glossary/central-tracing-agency.
21 Sassòli, Marco and Tougas, Marie-Louise, “The ICRC and the Missing”, International Review of the Red Cross, Vol. 84, No. 848, 2002, pp. 733–736Google Scholar; Dubois, Olivier, Marshall, Katharine and McNamara, Siobhan Sparkes, “New Technologies and New Policies: The ICRC's Evolving Approach to Working with Separated Families”, International Review of the Red Cross, Vol. 94, No. 888, 2012, p. 1471CrossRefGoogle Scholar.
22 O. Dubois, K. Marshall and S. S. McNamara, above note 21, p. 1472.
26 ICRC, “The Missing: Action to Resolve the Problem of People Unaccounted for as a Result of Armed Conflict or Internal Violence and to Assist Their Families”, International Review of the Red Cross, Vol. 85, No. 849, 2003Google Scholar.
27 “These new areas of emphasis took a more long-term view of, and arguably even post-conflict development-oriented approach to, the ICRC's work on missing persons.” 28th International Conference of the Red Cross and Red Crescent, Res. 1, “Adoption of the Declaration and Agenda for Humanitarian Action”, 6 December 2003, p. 1474, available at: www.icrc.org/eng/resources/documents/resolution/28-international-conference-resolution-1-2003.htm.
29 O. Dubois, K. Marshall and S. S. McNamara, above note 21.
30 28th International Conference of the Red Cross and Red Crescent, above note 27. In this vein, since its creation, the ICRC Advisory Service on IHL has been working with a global network of legal advisers in “encouraging and supporting adherence to IHL and related instruments; providing specialist advice and technical assistance for the adoption of legal and administrative measures which States must take in order to comply with their obligations under IHL [and other relevant branches of international law]; and collecting and facilitating exchange of information between States on national IHL implementation laws and administrative measures adopted.”
33 These are part of the ICRC publication The Domestic Implementation of International Humanitarian Law: A Manual (available at: www.icrc.org/eng/resources/documents/publication/pdvd40.htm), which is a practical tool to assist policy-makers, legislators and other stakeholders worldwide in adhering to IHL instruments and implementing their obligations domestically, including those related to the repression of serious violations of IHL. For more information on the tools produced by the ICRC Advisory Service, see ICRC, “National Implementation of IHL: Documentation”, available at: www.icrc.org/en/war-and-law/ihl-domestic-law/documentation; ICRC National Implementation of IHL Database, available at: https://ihl-databases.icrc.org/ihl-nat.
34 C. Pellandini, above note 16, pp. 1043–1048.
35 ICRC, Report of the Second Universal Meeting of National Committees on International Humanitarian Law, 31 March 2007, available at: www.icrc.org/en/publication/0924-legal-measures-and-mechanisms-prevent-disappearances-establish-fate-missing-persons.
36 ICRC, Guiding Principles/Model Law on the Missing, 2009, available at: www.icrc.org/en/document/guiding-principles-model-law-missing-model-law.
37 O. Dubois, K. Marshall and S. S. McNamara, above note 21.
38 Inter-Parliamentary Union and ICRC, Missing Persons: A Handbook for Parliamentarians, 2009 (Handbook for Parliamentarians), available at: www.icrc.org/en/publication/1117-missing-persons-handbook-parliamentarians.
39 The six avenues for action are: (1) adopting international humanitarian law and human rights law treaties; (2) adopting national legislation on missing persons; (3) overseeing government action; (4) putting appropriate mechanisms in place to prevent, resolve and process disappearances; (5) mobilizing and sensitizing public opinion; and (6) establishing cooperation at the national and international levels.
40 CIS, Model Law on Missing Persons, 2008, available at: http://iacis.ru/upload/iblock/410/ass_31_17a.pdf.
41 See: ICRC, Missing persons and their families- Factsheet, 31 December 2015, available at: https://www.icrc.org/en/document/missing-persons-and-their-families-factsheet.
42 ICRC, above note 26.
43 UNGA Res. 57/207, “Missing Persons”, UN Doc. A/RES/57/207, 14 February 2003.
44 UNGA Res. 71/201, “Missing Persons”, UN Doc. A/RES/71/201, 26 January 2017.
46 OAS, General Assembly Res. AG/RES 2134 (XXXV-O/05), “Persons Who Have Disappeared and Assistance to Members of Their Families”, 7 June 2005.
47 OAS, General Assembly Res. AG/RES 2928 (XLVIII-O/18), “Promotion and Protection of Human Rights”, 5 June 2018.
48 See, for instance, OAS, General Assembly Res. AG/RES 2794 (XLIII-O/13), “Persons Who Have Disappeared and Assistance to Members of Their Families”, 5 June 2013, op. para. 2.
50 For example, Crettol and La Rosa explain that there are different bodies that can be put in place to find out whether a person who has gone missing is dead or alive, while making the link with post-conflict and transitional justice processes. 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, 2006, p. 357CrossRefGoogle Scholar.
51 ICRC, The Domestic Implementation of International Humanitarian Law, above note 33, p. 25.
52 See ICPPED, Art. 2; Inter-American Convention on Forced Disappearance of Persons, Art. II; Rome Statute of the International Criminal Court (Rome Statute), Art. 7(2)(i).
53 ICPPED, Art. 2.
54 According to the Rome Statute of the International Criminal Court, “enforced disappearance of persons” as a crime against humanity means “the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time”. Rome Statute, Article 7(2)(i)
55 See “Q&A: The ICRC's Engagement on the Missing and Their Families”, in this issue of the Review. It is important to note that this definition is based on the Handbook for Parliamentarians, above note 38.
56 Handbook for Parliamentarians, above note 38, p. 40.
57 ICRC, above note 36, p. 8.
58 For example, the Inter-American Convention on Forced Disappearance of Persons.
59 In Sri Lanka, for example, the law that created the Office on Missing Persons establishes that the Office will work on clarifying the fate and whereabouts of persons who are reasonably believed to be unaccounted for and missing “(i) in the course of, consequent to, or in connection with the conflict which took place in the Northern and Eastern Provinces and its aftermath, or [who are] member[s] of the armed forces or police who [are] identified as ‘missing in action’; or (ii) in connection with political unrest or civil disturbances; or (iii) as an enforced disappearance as defined in the ‘International Convention on Protection of All Persons from Enforced Disappearances’”. Sri Lanka, Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act, No. 14 of 2016, section 27.
60 Peru, Law No. 30470 on the Search for Missing Persons during the 1980–2000 Period of Violence, 2016, available at: https://tinyurl.com/ybexc67p.
61 Bosnia and Herzegovina, Law on Missing Persons, 2004, available at: https://tinyurl.com/yd4l65dt.
62 Kosovo, Law No. 04/L–023 on Missing Persons, 14 September 2011, available at: https://tinyurl.com/ydhwgtgw.
63 Citroni explains that “at the international level there is no instrument obliging states to codify the legal status of persons who were subjected to enforced disappearance without resorting to the declaration of death”. Citroni, Gabriella, “The Pitfalls of Regulating the Legal Status of the Disappeared Persons through the Declaration of Death”, Journal of International Criminal Justice, Vol. 12, No. 4, 2014, p. 789CrossRefGoogle Scholar. This is also relevant for all cases of missing persons and not only for those related to enforced disappearances.
64 “A person should not be declared dead without sufficient supporting evidence. It is therefore desirable, before a death certificate is issued, to provide for an interim period of ‘absence’ of a reasonable length so that the circumstances of that person's disappearance can be investigated and his or her fate ascertained. If the person is found alive, the certificate of absence should be annulled and his or her legal status fully restored.” ICRC, above note 1, p. 20.
65 M. Crettol and A.-M. La Rosa, above note 50, p. 356.
66 It is interesting to note that the Council of Europe, in an issue paper of 2016, highlights that “the regulation of the legal status of missing and disappeared persons while their fate and whereabouts are unknown is necessary to settle matters related in particular to inheritance, social welfare, family law and property rights. Most Council of Europe member states lack ad hoc legislation that takes into account the specificities of the phenomenon and apply provisions on presumptions of death or even make social assistance and compensation conditional on obtaining a declaration of death.” Council of Europe, Commissioner for Human Rights, Missing Persons and Victims of Enforced Disappearances in Europe, Issue Paper, March 2016, p. 46.
67 G. Citroni, above note 63, p. 2.
68 ICRC, above note 1, p. 19.
69 Colombia, Law 1531 on the Declaration of Absence of Missing Persons, 2012, Art. 7.
70 Mexico, Federal Law on the Special Declaration of Absence for Missing Persons, 22 June 2018, Art. 1, authors’ translation. Original in Spanish: “II. Reconocer, proteger y garantizar la continuidad de la personalidad jurídica y los derechos de la Persona Desaparecida; III. Brindar certeza jurídica a la representación de los intereses y derechos de la Persona Desaparecida, y IV. Otorgar las medidas apropiadas para asegurar la protección más amplia a los Familiares.”
71 In 2017, the ICRC conducted missing-related activities in over sixty contexts across all regions. These activities include the provision of legal and technical advice to national authorities working on the adoption of domestic legal and policy frameworks to address the issue of missing persons and the response to the needs of their relatives.
73 Colombian Government and FARC–EP, Joint Communiqué No. 62, Havana, 17 October 2015, and Final Agreement, 24 August 2016, Chap. 5.
74 Following the peace agreement between the government of Colombia and the FARC, a law was adopted to incorporate into the Constitution different provisions related to end of the armed conflict and the building of a stable and long-lasting peace. Colombia, Acto Legislativo No. 1, 4 April 2017, available at: https://tinyurl.com/ydyxhwp3.
75 According to the law, “the Unit to search for persons who went missing in relation to and as a result of the armed conflict will have a humanitarian and extrajudicial character and will direct, coordinate and contribute to the implementation of humanitarian actions aimed at searching for and locating persons who went missing in relation to and as a result of the armed conflict that are alive, and in cases of death, when feasible, at the identification and dignified return of the human remains”. Authors’ translation.
76 Since the first decree in 2017, two decrees have been issued to define the specific structure and functions of the Unit: Decree 288 of 2018 and Decree 1393 of 2018.
77 Law No. 30470, above note 60. Since the adoption of the law, different decrees, resolutions and directives have been issued to regulate the functions of the directorate in charge of the search and different aspects of the humanitarian investigation. For more information, see: https://tinyurl.com/y9kspoop.
79 Sri Lanka, Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act, No.14 of 2016, available at: https://tinyurl.com/y96hf4z6.
80 Mexico, General Law on Enforced Disappearance of Persons, Disappearances Committed by Individuals and the National Missing Persons Search System, 17 November 2017.
81 Mexico, General Law on Enforced Disappearance of Persons, Disappearances Committed by Individuals and the National Missing Persons Search System, 17 November 2017, Art. 2.
82 Ukraine, Law on the Legal Status of Missing Persons, 2 August 2018, Arts 10–16.