The Missing - Study of existing mechanisms to resolve issues concerning people unaccounted for
The study covered how the mechanisms work, their results in practice, their strengths and weaknesses (with reasons) and included recommendations.
Study of existing mechanisms to resolve issues concerning people unaccounted for
Full summary of the proceedings (PDF file/ 249 Kb - Help)
The first phase of the study involved the production of three critical papers (see below) as a contribution to the workshop " Mechanisms to solve issues on people unaccounted for " held in Geneva on 19-20 September 2002. These contributions were carried out by Prof. Marco Sassoli of the University of Quebec, Montreal, Canada.
- Paper 1: The ICRC as a mechanism to solve issues on people unaccounted for
- Paper 2: Truth commissions as mechanisms to solve issues on people unaccounted for
- Paper 3: National human rights commissions as mechanisms to solve issues on people unaccounted for
The final report of the study which has a broader perspective and considers several additional existing mechanisms has been carried out by Jean-François Rioux, Professor of conflict studies at Saint Paul University, Ottawa, Canada, and Marco Sassòli, Professor of public international law at the Université du Québec à Montréal, Canada, with the support of assistants.
Paper 1: The ICRC as a mechanism to solve issues on people unaccounted for
If International Humanitarian Law (IHL) were respected, few persons, mainly soldiers, would be victims of conflict-related disappearances.
The ICRC contributes through its traditional activities to the respect of IHL. This prevents disappearances. Some of those activities could be systematized and some specifically disappearance-related activities could be added, such as:
The ICRC should put more emphasis on the rules aimed at reducing disappearances in its dialogue with relevant authorities and leaders, and encourage them to take appropriate measures.
The ICRC should systematically collect certain information including - where appropriate - witness reports on death before or after arrest, personal data on beneficiaries of ICRC assistance and information on recipients and senders of Red Cross messages.
The ICRC should systematically collect tracing requests and submit them to the responsible authorities. The information collected could include certain ante mortem data, which may be easily lost. Whenever possible, the ICRC should try to find an answer through field tracing - as it already does, in certain contexts.
Families should be kept regularly informed about applicable provisions of IHL, ICRC tracing methods, the responsiveness of belligerents, the chances of success, and the ICRC’s evaluation of whether the missing persons can be found alive.
The ICRC itself should only exceptionally undertake programmes for the psychological, material and legal support to families of missing persons.
Multilateral or tripartite mechanisms to clarify the fate of missing persons should primarily be established to discuss policy (including exhumations) and to encourage cooperation. They are not appropriate forums to obtain answers to individual tracing requests.
Exhumations and forensic identification may provide answers, if the former belligerents cooperate. When the ICRC is involved in the transfer of human remains, it should insist on identification and transfer of the remains to the family. The ICRC itself should facilitate rather than engage in exhumation and forensic identification activities.
The paper supported the ICRC objective to adopt uniform operational internal guidelines, which should be respected in all contexts unless there are objective, specific reasons for not doing so.
Related article:Mechanisms to solve issues on people unaccounted for
Paper 2: Truth commissions as mechanisms to solve issues on people unaccounted for
Truth commissions are generally created by governments for a limited period of time, to establish the truth on past events presumed to constitute serious human rights violations and thus to further reconciliation in the country. In the past, some truth commissions had to deal with the problem of missing persons. Their practices show that truth commissions could effectively tackle some issues on persons unaccounted for, if some conditions for an efficient functioning were met. These conditions, which can differ from a country to another, are in fact rarely respected sufficiently to accomplish adequately this specific task.
Truth commissions are mainly interested in persons unaccounted for in order to find out whether they were victims of forced disappearances. They generally search for the truth about a pattern of behavior, often also illustrated by the violations committed against some individuals, rarely about all individual violations. The focus is generally put on finding violations and on attributing them to the State. Sometimes, the responsibility is also individually attributed. To find the current truth, i.e. to locate a disappeared person or his or her remains, is only a by-product of the search for the truth about the past.
Most of the tentative recommendations in the paper therefore concern as much the functioning of truth commissions in general as specifically the appropriate way to clarify the fate of people unaccounte d for. They covered the credibility and reports of such commissions, access to and collection of information, financial and human resources, and the search for people unaccounted for and their remains.
Related article:Mechanisms to solve issues on people unaccounted for
Paper 3: National human rights commissions as mechanisms to solve issues on people unaccounted for
National human rights commissions (NHR commissions) are usually set up by the executive or legislative branch of government to promote and protect human rights at the national level. Their mandate therefore only covers disappearances provoked by human rights violations, in particular forced disappearances, except if the uncertainty of the family about the fate of their missing relative is perceived as a violation of their human rights. They have many common characteristics and some international guidelines have been set up to help countries interested in establishing them. NHR commissions are mandated to prevent human rights violations and to assess the respect of human rights. Frequently, they investigate individual complaints about human rights violations. Such inquiries clarify sometimes what has happened to a missing person. Most often, NHR commissions appear to play a rather indirect role in solving issues on persons unaccounted for, by preventing the human rights violations which frequently cause disappearances and by obliging government authorities to proceed to further investigations or to provide information to the families and by turning evidence over to the competent authorities.
The direct and indirect efficiency of a NHR commission in solving issues on people unaccounted for depends upon the will of the authorities to respect human rights and upon the same factors which contribute to the commission’s general impact on the human righ ts situation in the country. Tentative recommendations were made in the paper under the headings of mandate, functioning and powers, financial and human resources, and the independence, transparency and credibility of the commissions.
Related article:Mechanisms to solve issues on people unaccounted for
Report: Study of existing mechanisms to resolve issues concerning people unaccounted for
by Jean-François Rioux, Professor of conflict studies at Saint Paul University, Ottawa, Canada, and Marco Sassòli, Professor of public international law at the Université du Québec à Montréal, Canada, with the support of Mr Mountaga Diagne and Ms Marianne Reux, research assistants at the Université du Québec.
Summary and recommendations
1. Armed conflicts and situations of internal violence can give rise to four categories of missing persons :
(1) those who are the victims of enforced or involuntary disappearances, which can occur in armed conflicts or in other situations;
(2) in armed conflicts, those who are killed or secretly detained in violation of international humanitarian law;
(3) combatants whose families have not bee n informed of their death on the battlefield;
(4) persons who have lost contact with their families in the course of an armed conflict.
The first category is the subject of the largest attention on the part of both context-based systems and the present international protosystem. Increasingly, however, the human rights mechanisms that focus on enforced disappearances are also turning their attention to the second category. International humanitarian law and humanitarian mechanisms, for their part, in particular the ICRC, are equally attentive to all four categories.
2. All mechanisms face a number of dilemmas and difficulties . International humanitarian law, the provisions of which could prevent most disappearances if they were respected, emphasizes the obligation of the former warring parties to provide information to the families of missing persons. Often, however, the parties do not want to provide that information or are not in a position to do so, and the families wish to receive not only information but also their relatives’ remains, the only tangible evidence of death and an essential component of certain funeral rites. In most cases and contexts, though, it is unrealistic to promise the families that they will recover the corpse, if only because of the substantial financial resources required for forensic identification. Mechanisms are therefore sometimes obliged, in the absence of a body, to inform the families that a missing relative is presumed dead on the sole basis of their own conclusions.
3. Numerous mechanisms are active in the field of missing persons. They may be:
(a) universal: the ICRC, the Working Group on Enforced or Involuntary Disappearances, the major NGOs working for the protection of human rights or specialized in forensic sciences, UNICEF;
(b) regional: in the Balkans, for example, the OSCE and the International Commission on Missing Persons in the former Yugoslavia;
(c) national: human rights committees, truth commissions and, if international humanitarian law is respected, national information bureaux in time of armed conflict; or
(d) established to bring together the former warring parties.
Their mandate is either self-conferred or stems from international or internal law.
Many mechanisms take preventive action , in particular as concerns the first two categories of missing persons, as victims of human rights violations.
The International Red Cross and Red Crescent Movement works to restore family links broken during armed conflicts. The ICRC also visits detainees, thereby helping to prevent their disappearance.
Other mechanisms endeavour to establish the truth about past disappearances .
Some mechanisms work to trace missing persons , often by submitting cases to the authorities concerned, sometimes by trying, for the most part unsuccessfully, to find the missing persons or their remains themselves.
Specialized NGOs and certain regional organisms rely heavily on exhumations and forensic identification .
Other mechanisms also provide assistance to the families of missing persons.
Only the ICRC works in all these spheres of activity, although for the time being it performs no forensic iden tifications (except in very rare cases).
4. The mechanisms dealing with missing persons are not bound by international or national law to cooperate with each other in an ongoing fashion. Their relations are intermittent and limited . Their activities are not carried out within a true national or international system for action. This report therefore suggests that those systems are on the whole underdeveloped.
5. The international protosystem governing missing persons is based on the United Nations General Assembly 1992 Declaration on the Protection of All Persons from Enforced Disappearances and a number of international humanitarian law and human rights instruments. Most of the tasks relating to missing persons are carried out by specialized institutions, such as the ICRC and the Working Group. A regional system has been launched in Latin America, but it deals only with enforced or involuntary disappearances, works only with government authorities and does not yet receive sufficient support from the OAS Member States. At the national level, few States have established truly integrated systems of intervention with mechanisms able to carry out tasks relating to missing persons.
6. Mechanisms have been most successful (at a rate that is hard to assess quantitatively) in the fields of prevention and the re-establishment of family links. All mechanisms with training activities should provide instruction in the rules of international humanitarian law and human rights law aimed specifically at preventing disappearances. They should also provide the States with advisory services on the matter.
If preventive measures fail, the missing persons are almost always dead , the exception being certain conflicts following which the mechanisms know that a large number of persons are still detained but do not know their identity. To clarify the fate of missing persons presumed dead, mechanisms are obliged to rely on the good will of the authorities concerned , an attitude that often emerges only after a change of regime. In most cases, the absence of good will prevents existing mechanisms from finding many missing persons . In the few cases in which missing persons have been found, it has usually been thanks to national mechanisms or to cooperation between the former warring parties, and not thanks to international mechanisms.
7. All the mechanisms are short of the resources they need, which are particularly substantial when, to find information, recourse must be had to forensic identification. Providing mechanisms with the means they need is one way of upholding the right of the families to know what happened to their relatives. For those who are responsible for the disappearances, providing resources can also be a way of making partial reparation for their violations. The fact that resources are made available also provides acknowledgement of the families’ suffering and shows that it has not been forgotten.
The mechanisms must nevertheless also endeavour to adapt their methods to the means available and not start using very costly methods in certain individual cases when they know that they will not have the means to apply those methods in all cases.
8. Mechanisms that are interested in missing persons purely as a phenomenon should clearly inform the families that this is the case and send them, directly or via other mechanisms, all the information collect ed that could serve to clarify an individual’s fate. They should also emphasize, in their reports and representations, the need to clarify individual cases, giving the names of missing persons and providing as much information as possible so as to allow the families to understand what happened to their relatives.
9. All mechanisms should deal with government authorities and non-State actors responsible for disappearances. They should also try to obtain information from all existing reliable sources, or at least transmit any information they are unable to process to other mechanisms that are able to process it. All mechanisms, even those doing their own tracing work, depend on the good will of the authorities for access to territories, burial sites and witnesses. They must also be careful to ensure that their tracing work is not perceived as relieving the authorities of their responsibilities .
10. International mechanisms should use their good offices to promote cooperation between former warring parties (with regard to tracing work, exhumations and forensic identification).
11. Bringing together the former parties to the conflict under the auspices of an international player sends a strong political and diplomatic signal and can sometimes allow the problem of missing persons to be separated - and thereby delimited - from other issues that are humanitarian in nature.
The results obtained (in terms of persons located) by such trilateral or multilateral mechanisms are not really satisfying. The mechanisms are unable to make up for the lack of good will shown by the former warring parties or to keep the debate on the matter from being poli ticized. Before such a mechanism is constituted, therefore, the parties should be asked to demonstrate their good faith by providing information on a number of cases of missing persons.
A joint mechanism should then be used to discuss, not individual cases, but general and abstract matters, and investigative methods and plans, including exhumations.
12. In order to make it easier to obtain the financial resources required, to encourage the authorities and witnesses to cooperate, and also to demonstrate interest, understanding and solidarity in respect of the families, all mechanisms should take steps to heighten public awareness , nationally and internationally, of the problem of missing persons and the suffering it entails.
13. When it comes to registering requests for information, all the mechanisms concerned by the same context should cooperate in order to ensure that the families are called on to provide information only once. There are two possibilities: either one mechanism is designated as being in charge of registering requests, or each mechanism collects its own information using commonly agreed criteria, and that information is subsequently made available to the other mechanisms.
All the individual data collected in one context by each mechanism should be stored, whenever possible without detriment to the missing persons, their families or the sources of information, in one database .
To that end, as soon as tracing work starts, agreements should be reached among all those involved to determine the database’s technical specifications, the information to be stored in it, how it is to be monitored, who is in charge of it and who has access to it. Those agreements should also include each mechanism’s undertaking to store in the central database all the information collected by it in the course of its activities that may serve to ascertain the fate of a missing person, unless, of course, doing so would restrict its work or limit its sources.
14. In order to find information , most mechanisms ask the authorities to conduct police investigations. Some of them, however, such as national mechanisms, have on occasion conducted their own inquiries. Offering amnesty, within the framework of such inquiries, to those who agree to bear witness may help to clarify the fate of a number of missing persons, but it may be difficult to reconcile such an amnesty with international law. The authorities, however, could offer protection or a reward to witnesses.
Attempts by international mechanisms to encourage witnesses to provide them with information by stating the matter will be handled confidentially or by appealing to the good of their hearts are, as a rule, unsuccessful. Similarly, the publication of the names, particulars and pictures of missing persons has not been as successful as anticipated; it does, however, give the families the sense that they have not been forgotten.
Unannounced visits to alleged places of detention should be undertaken only by mechanisms whose task it is to protect the detainees in those places.
When they receive information, the mechanisms must decide whether or not it is satisfactory .
15. All mechanisms need the information provided by the families .
All mechanisms, even those that do not trace individuals, should be concerned about the missing person’s family; not only i s it an important source of information, it must be considered as the victim of a human rights and humanitarian law violation. All mechanisms should inform the families of how they intend to follow up the information received. No mechanism should record data that it cannot process.
All mechanisms should be concerned about the families’ needs , should listen to them, inform them of their rights and about the tracing methods and mechanisms involved, about the authorities’ reaction and the likelihood that the missing person will be found alive, that the body will be identified and recovered or that at least some information will be obtained on what happened. It is essential, in the interests of the families, not to instil false hope.
Involving the families in the actual tracing work can make that work less effective.
While they wait for answers, the families have psychological, material and administrative needs . Those needs should and can in principle be met by the authorities or local organizations. The mechanisms must nevertheless ensure that the families are taken care of and must, if necessary, help the local organizations to do so and inform the families about who they can turn to.
Associations of families play an important role as relays. They also help bring the families out of their isolation. It is nevertheless relatively hard for the mechanisms to assess the level of internal democracy of such associations and the degree to which their leaders are accountable. The mechanisms must try not to allow such associations to prevent them from having direct contact with the families of missing persons.
16. Exhumations, followed by forensic identification, allow the families to recover their relatives’ remains and to find out what happened to them. Although the exhumation as such does not require the cooperation of the authorities, their permission is needed to obtain access to the burial site.
For the time being, exhumations do not serve to provide rapid answers to a large number of families and they require substantial financial resources that are not available in most contexts.
The mechanisms performing exhumations must coordinate their activities with the mechanisms prosecuting those responsible for the disappearances. Coordination between mechanisms, prosecuting bodies and the authorities is a sine qua non for any action. The mechanisms must ensure that the families’ other needs are not overlooked but must not neglect their quest for justice.
17. In cases in which the mechanisms do their own tracing work, have given up all hope of finding the missing persons and have handed over responsibility to another organization, they should issue to the families documents attesting to the disappearances and the efforts undertaken to find the missing persons.
The mechanisms should also promote, following consultation with associations of families, commemorative ceremonies and monuments .
18. In our view, one of the major objectives in the coming years for humanitarian organizations, States, intergovernmental organizations and others active in this field should be to endorse the establishment and the strengthening of international and national systems addressing all aspects of the issue of missing persons .