60th Annual Session of the UN Commission on Human Rights - Statement by the President of the ICRC
ICRC President Jakob Kellenberger, in his address to the Commission, highlighted the tragedy of missing persons and spoke of the interrelationship between bodies of law designed to protect human dignity. Geneva, 17 March 2004.
Mr. Chairman, Excellencies, Ladies and Gentlemen,
One year ago, Sergio Vieira de Mello was with us. We in the ICRC are still missing him very much.
The main purpose of my talk today is to highlight the tragedy of missing persons, the distress of relatives and the important commitment made by the ICRC in this regard. Before doing so, I will deal with several aspects of the interrelationship between bodies of law designed to protect human dignity – the major theme of my presentation in 2003 – as well as some general points of international humanitarian and human rights law which are particularly relevant in contemporary conflicts.
For centuries, international law was concerned only with relations among States – it did not recognize that individuals too could be the subject of its rules. While international humanitarian law primarily establishes the duties of the parties to an armed conflict, there is no doubt that its norms, provided they are respected, serve to spare individuals – to the extent possible – the ravages of war. It was international human rights law, however, that gave normative expression to the notion that a State's treatment of persons on its territory or otherwise in its power does not belong only to the sphere of its internal affairs. Individuals became subjects of international law by means of various human rights mechanisms that allowed international scrutiny of the way in which a State treats persons.
International humanitarian and human rights law are distinct bodies of law but complementary. Their complementary nature is evidenced, among other things, by their common underlying purpose, which is to protect the life, health and dignity of the individual. While one of the specific aims of international humanitarian law is to ensure the protection of persons affected by armed conflict and, in particular, of those who find themselves in the hands of the adversary, the purpose of human rights law is to govern the relationship between States and individuals. In either case, the guiding principle is that, because they are human, individuals have the right to be protected from arbitrary action and abuse.
The similarity of purpose between international law norms dealing with the protection of persons is mirrored by the similar, albeit not identical, content of many of their norms. For example, fundamental judicial guarantees are a cornerstone of protection in peacetime and in armed conflict. This is confirmed by the wording of Article 75 of Additional Protocol I of 1977, which is applicable in international armed conflicts, a provision clearly influenced by human rights law. Similarly, the application of human rights standards is needed in non-international armed conflicts in order to supplement humanitarian law provisions governing the treatment, conditions of detention and rights regarding a fair trial of persons deprived of liberty.
Even though international humanitarian and human rights law share many features, there are also important differences stemming from their distinct scope of application. The exceptional circumstances constituted by armed conflict demand by their very nature that no derogations from any of the warring parties’ obligations be allowed if humanitarian law is to serve the purpose of protecting the individual. Thus, in contrast to certain rules of human rights law, the humanitarian law norms are without e xception non-derogable.
Just as importantly, international humanitarian law is binding on the parties to armed conflict, which may include non-State armed groups.
Last week's terrorist attacks in Madrid reminded us in the most brutal way of the destructive potential of certain individuals or groups willing and able to commit horrendous crimes. I express my deep felt sympathy to the victims and their loved ones. In the present circumstances, our prime moral, political and legal duty is to reiterate and enforce legal rules prohibiting deliberate attacks against civilians and civilian property in all circumstances. Basing ourselves on humanitarian law when such attacks occur in the context of armed conflict, and on domestic and international criminal law when they take place in peacetime, we must do our utmost to prevent such heinous behaviour, and punish it when prevention has failed. International humanitarian law clearly prohibits terrorist acts, as well as " acts or threats of violence the primary purpose of which is to spread terror among the civilian population " (Art. 51 of Protocol I additional to the Geneva Conventions; Art. 13 of Protocol II additional to the Geneva Conventions).
The international community has at its disposal the tools to protect both States and individuals against such threats. To respond to and prevent indiscriminate attacks against civilians, States must take action and enforce laws. As we know, the present “fight against terrorism” has led to a re-examination of the balance between State security and individual liberty. Striking the proper balance is difficult. It is imperative that terrorism be fought, but it would be self-defeating for that fight to lead to lower international standards of protection for the rights and liberties of individuals. Simply put, one of the important moral and legal challenges currently facing the international community is to fight this form of violence effectively while maintaining the safeguards for human dignity and life laid down in international humanitarian and human rights law. There is no contradiction between State security and the protection of the rights and liberties of individuals.
Let me now turn to the more specific issue of missing persons, and particularly to the right of families to know what has happened to relatives of whom they have had no news because of an armed conflict or internal violence. Thousands of families around the globe experience anguish for this very reason. As these people tell us, the death of a family member – however painful – can be accepted, but not knowing the fate of a loved one is far worse than almost any other possible experience. The families'suffering and relentless quest for information often lead to their marginalization – with all the consequences that can have on society, not to mention the obstacles placed in the way of peace and reconciliation.
Acting on the basis of the mandate conferred upon it by the Geneva Conventions and their Additional Protocols, and by its right of initiative, the ICRC aims to prevent all disappearances, to restore family ties when they have been broken, and to ascertain the whereabouts of people about whom their families have no news.
With the objective of doing more to prevent people from going missing in armed conflict or internal violence, and of clarifying what has happened to those who do go missing, and assisting their families, the ICRC launched a consultative process two years ago that culminated in an international conference of experts held in February 2003. Various recommendations made at that conference were included in the Agenda for Humanitarian Action adopted by the 28th International Conference of the Red Cross and Red Crescent in December 2003.
Existing recommendations and best practices indicate that measures need to be taken to reaffirm and develop international law and incorporate it in domestic legislation. This should involve, as a minimum, ensuring that detailed rules preventing persons from going missing are applied and are respected in armed conflicts and internal violence. The ICRC will work with governments, organized armed groups and interested organizations to fulfil these recommendations. The ICRC considers the work of the Inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance as essential to more effective prevention of enforced disappearances and better support for families of missing persons.
Prevention also requires taking practical measures – at the latest during armed conflicts or internal violence. Best practices regarding, in particular, exchanging family news, providing means of identification to members of armed and security forces and organized armed groups, handling information on vulnerable people, such as persons deprived of their freedom, children and isolated populations, and properly handling human remains are essential to minimizing the number of missing persons.
When prevention fails and people go missing, affected families must be supported. It is crucial that families receive information on the fate of their missing family members. But families and communities also need acknowledgement of the events that led their loved ones to go missing and the perpetrators to be held accountable. Finally, families awaiting clarification of what happened to their loved ones often have material, financial, psychological, legal and administrative needs. In most situations, ensuring that families receive adequate support requires complementary measures – including judicial, humanitarian and social mechanisms – that work in conjunction with one another.
It has to be noted that the vast majority of those who remain unaccounted for in connection with armed conflict or internal violence are men, which leaves many women behind to bear the emotional and economic burden. For these women, cessation of hostilities does not bring peace of mind: the anguish of not knowing the fate of a loved one and not being able to complete the grieving process is too often compounded by the economic hardship occasioned by the loss of a breadwinner. Some of these women may, in addition, lack a clear legal status and thus be denied pensions or similar entitlements.
The ICRC has already included in its operational instructions the recommendations and best practices issued by the conferences I have mentioned. It will spare no effort to promote these best practices, especially among governments, organized armed groups, and inter-governmental and non-governmental humanitarian organizations, as necessary. Whenever possible, the ICRC will streamline its traditional activities, such as re-establishing and maintaining family links, collecting and centralizing information on vulnerable persons and on the dead, and tracing persons when their families are without news of them. Within the bounds of its mandate and sharing its own experience, it will also participate in any mechanism designed to address these issues effectively.