Legal factsheet on missing persons and their families: updated
The ICRC has a long history of working with the issue of missing persons and their families. Based on its mandate in the Geneva Conventions of 1949 and the Statutes of the Red Cross and Red Crescent Movement, the ICRC has worked to prevent people from becoming separated or going missing and has facilitated family contact and reunification since its establishment. It has also worked to clarify the fate and whereabouts of missing persons since 1870 (the Franco-Prussian War).
The latest factsheet on the missing and their families was published in December 2015 and this new update presents key developments, legal and otherwise, on this important topic.
The factsheet addresses the relevant international legal framework covering the missing, the separated, and the dead. First, it considers the notion of "missing person" which is found in different rules of international humanitarian law (IHL); as well as the notion used by the ICRC and the legal definition of "enforced disappearance" which is found in international human rights law (IHRL), in particular in the International Convention for the Protection of all Persons from Enforced Disappearances (ICPPED). Second, the factsheet provides an overview of the relevant rules of IHL that apply to missing persons, namely concerning the obligation of parties to the conflict to prevent people from going missing; the right of families to know the fate and whereabouts of missing persons, and the corresponding obligations of parties to the conflict, as well as the obligation to investigate and prosecute war crimes resulting in persons going missing or being forcibly disappeared.
The factsheet then addresses the relevant legal provisions of IHRL pertaining to enforced disappearance, as well as the provisions of IHRL having been interpreted by UN Treaty Bodies to give rise to obligations relevant to missing persons and their families. These include obligations relevant for preventing people from going missing; obligations relating to the search of missing persons; and obligations related to investigating and prosecuting international crimes resulting in persons going missing or being forcibly disappeared as well as provisions concerning international supervision mechanisms related to enforced disappearance.
Furthermore, the factsheet specifically highlights the importance of national implementation of the international legal framework, which must be done through the adoption of appropriate domestic laws and policies. National implementation is essential to ensure that the issue of persons separated, missing persons, and their families is effectively addressed, while taking into consideration the needs of the families of the missing.
Lastly, the factsheet explains the role of the ICRC, which in particular through its Central Tracing Agency (CTA), seeks to contribute to preventing people from going missing; restoring and maintaining contact between individuals and their families; searching for missing persons; protecting the dignity of the dead; ensuring that the needs of families are provided for; as well as supporting authorities and other actors in these same endeavours.
Related materials to refer to:
Humanity after Life: Respecting and Protecting the Dead
Guiding Principles/ Model Law on the Missing
Guidance Notes National Mechanisms for Missing Persons: A toolbox
Overview of the Legal Framework Governing National Information Bureaux
