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The Missing - overcoming the tensions between family needs and judicial procedures

16-10-2002

The study examined how judicial and non-judicial mechanisms can address the needs and priorities of families of the missing.

   

  pdf fileFull summary of the proceedings (PDF file/ 200 Kb - Help)  

The aim of this study was to establish how to obtain information for the families and yet balance this priority with the objectives of achieving reconciliation and respecting legal obligations.

    

The study was carried out by the International Center for Transitional Justice (ICTJ), New York. It was directed by Dr Vasuki Nesiah, senior associate and benefited from the individual and collective efforts of several ICTJ staff members.

The study examined how judicial and non-judicial mechanisms can address the needs and priorities of families of the missing.

While families of the missing share much in common with the needs and preferences of other victims of human rights , their priority on information is perhaps their most distinctive concern . There are three kinds of informational needs that are relevant here: the status and whereabouts of the victims, the procedural rules of judicial and non-judicial mechanisms that might address these cases, and advocacy strategies to pursue these cases.

 Accountability is a significant need and priority for families of the missing; accountability mechanisms could involve both judicial and non-judicial mechanisms to advance justice for victims and their families, who want the enormity of their loss and their justice goals to be taken into account. 

 Acknowledgment:  When the cases of the missing are the result of criminal action or inaction by the state or non-state authorities, victims’ families often want acknowledgment of the missing person’s dignity and intrinsic value, that the crime has indeed occurred, that the authorities in question are directly or indirectly responsible for the crime, and of the steps that need to be taken to address the crime.

 Judicial mechanisms vary widely in different legal systems, socio-historical contexts and traditions. In some cases judicial investigations may meet the goals of families; in other cases, however, these interests may diverge and judicial mechanisms maybe pulled between victims’ need for information and prosecutorial goals of identifying those who can be proven to be legally culpable.

Judicial mechanisms can be a symbol of the state’s acknowledgment of the violation and its direct or indirect culpability. However, families of the missing may experience the procedural hurdles entailed in judicial findings as holding “acknowledgment” hostage to legal process.

In sum, while judicial mechanisms perform an important role and have the potential to further many priorities of families of the missing, routine criminal justice mechanisms are also often inadequate to the enormity of the needs of families.

 There is a need for a plurality of mechanisms to fulfill the needs of families of missing people.  

    

There should be recognition by State authorities and other entities involved that families of victims may have diverse and even divergent needs, and therefore are best served by a plurality of mechanisms rather than any single path. Judicial mechanisms and non judicial mechanisms are not necessarily two alternative paths; rather they need to find common protocols for sharing information and other resources to address families’ needs for information, accountability, and acknowledgment. To maximize effectiveness, there is a need for coordination of those divers e mechanisms, and collaboration between different institutions addressing different aspects of victim needs and priorities.

On this basis recommendations are drafted, in particular for State actors regarding:

 

 
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  • Instituting and enhancing the rights of families in addressing cases of the Missing;
  • addressing family needs and priorities through a range of mechanisms;
  • addressing family needs through reparation programmes;
  • reforming State institutions.