Missing Persons and the Dead

a. Protection of Missing Persons Under IHL

In situation of armed conflict, IHL provides a number of precise obligations and concrete measures for addressing the fate of the people gone missing as a result of the violence. In situation of international armed conflict, these r obligations are spelled out in the Geneva convention and its Additional protocol 1. In situation of non-international armed conflict, they derive from rules of customary IHL.

International humanitarian law imposes on all parties to international armed conflicts the obligation to take all possible measures to search for persons reported missing by the opposing party and to record information relating to such persons (arts. 16-17, CGI; Articles 19-20, CGII; Articles 122-125, CGIII; Articles 136-141, CGIV; Articles 32-34, PAI).

If a person is missing because of population movements in times of armed conflict, family contact should be restored as soon as possible (GCIV Arts. 25 and 26). If persons are missing because of detention or hospitalization by the enemy, IHL prescribes that their families and authorities must be rapidly informed through three channels: notification of hospitalization, capture, or arrest; transmission of capture or internment cards; and the right to correspond with their family. Detaining authorities are also under an obligation to answer inquiries about protected persons (GCI Art. 16; GCII Art. 19; GCIII Arts. 70 and 71, 122 and 123; GCIV Arts. 106–7, 136–7, and 140; API Art. 33(2)).

Parties to the conflict but also impartial humanitarian organizations shall take all possible measures to ensure that families know the fate of their relatives. The ICRC has a particular role to play through its Central Tracing Agency, which helps to find missing persons once information on such persons has been collected.

Customary IHL (CIHL) rules 98 and 117 apply equally in international and non-international armed conflict.

• Rule 98 affirms that enforced disappearance is prohibited, both in international and non-international armed conflicts.
• Rule 117 provides that “each party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate.” The obligation to account for missing persons is consistent with the prohibition of enforced disappearances (Rule 98) and the requirement to respect family life (Rule 105).

b. Prohibition of Enforced Disappearances under Other International Conventions

• The United Nations Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the United Nations General Assembly on 18 December 1992 (Resolution 47/133), defines the systematic practice of forced disappearances as a crime against humanity. This practice constitutes a violation of the right to the respect of human dignity, the right to liberty and security of the person, and the right not to be subjected to torture, and is a grave threat to the right to life (Art. 1).
• The International Convention for the Protection of All Persons from Enforced Disappearance was adopted by the United Nations (UN) General Assembly on 20 December 2006 and entered into force in 2010. As of January 2023, it has 70 States parties. This Convention aims at preventing enforced disappearances, which are considered a crime and, in certain circumstances as a crime against humanity. It affirms the right of any person not to be subjected to enforced disappearance, as well as the right of victims to justice and reparation.
• Prohibition of Enforced Disappearance at all times and Definition of the Crime (Arts. 1 and 2):
• Article 1(2): “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.”
• Article 2: “For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”
• States Obligations as to the Protection of Persons from all Forms of Enforced Disappearance (Arts. 3–25):
• Article 3: “Each State Party shall take appropriate measures to investigate acts defined in article 2 committed by persons or groups of persons acting without the authorization, support or acquiescence of the State, and to bring those responsible to justice.”
• Article 4: “Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.”
• Article 5: “The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.”
• Article 6: Each State Party shall hold responsible any person who commits or participates in an enforced disappearance, as well as the superior who knew such a crime was about to be committed and took no measures to prevent it.
• Articles 7–15: Criminal proceedings.
• Article 16(1): “No State Party shall expel, return, surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance.”
• Article 17(1): “No one shall be held in secret detention.”
• Articles 18–23: Guarantees granted to persons deprived of their liberty.
• Article 24: For the purposes of this Convention, “victim” means the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance. Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard. Each State Party shall take all necessary measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains. Each State Party shall ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation. The right to obtain reparation referred to in paragraph 4 of this article covers material and moral damages and, where appropriate, other forms of reparation such as: restitution; rehabilitation; satisfaction, including restoration of dignity and reputation; guarantees of non-repetition.
• Article 25: Specific dispositions for children victims of enforced disappearances
• Articles 26-36: Creation of a Committee on Enforced Disappearances.
• Article 26: A Committee on Enforced Disappearances shall be established to carry out the functions provided for under this Convention. The Committee shall consist of ten experts of high moral character and recognized competence in the field of human rights, who shall serve in their personal capacity and be independent and impartial. Members of the Committee shall be elected by States Parties according to equitable geographical distribution. The members of the Committee shall be elected by secret ballot. The initial election shall be held no later than six months after the date of entry into force of this Convention. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election once. The Secretary-General of the United Nations shall provide the Committee with the necessary means, staff and facilities for the effective performance of its functions. The Secretary-General of the United Nations shall convene the initial meeting of the Committee.
• Article 27: “A Conference of the States Parties will take place at the earliest four years and at the latest six years following the entry into force of this Convention to evaluate the functioning of the Committee. [...]”
• Article 29: Each State Party shall submit to the Committee, through the Secretary-General of the United Nations, a report on the measures taken to give effect to its obligations under this Convention, within two years after the entry into force of this Convention for the State Party concerned. The Secretary-General of the United Nations shall make this report available to all States Parties.
• Article 35: “The Committee shall have competence solely in respect of enforced disappearances which commenced after the entry into force of this Convention.”

The first meeting of the States Parties to the International Convention for the Protection of All Persons from Enforced Disappearance was held on 31 May 2011 at the United Nations Headquarters in New York. The main purpose of the meeting was to elect the ten members of the Committee on Enforced Disappearances. As of January 2023, the elected Committee members are: Mr. Mohammed Ayat from Morocco, Mr. Matar Diop from Senegal, Mr. Olivier de Frouville from France, Ms. Milica Kolakovic-Bojovic from Serbia, Ms. Barbara Lochbihler from Germany, Mr. Juan José López Ortega from Spain, Ms. Suela Janina from Albania, Mr. Juan Pablo Alban Alencastro from Ecuador, Mr. Horacio Ravenna from Argentina and Ms. Carmen Rosa Villa Quintana from Peru.

c. Under Regional Conventions

The Inter-American Convention on the Forced Disappearance of Persons was adopted in Belém do Para, Brazil, on 9 June 1994. As of January 2023, it has 15 states parties. The Convention defines the practice of enforced disappearances as an “abominable offense against the inherent dignity of the human being” and reaffirms that the systematic practice of enforced disappearance of persons constitutes a crime against humanity.

Article 1: (a) The practice of forced disappearance of persons is prohibited at all times, even in states of emergency or suspension of individual guarantees; States Parties shall (b) punish, within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories; (c) cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons; and (d) take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.

Article 2: Forced disappearance is considered to be “the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the State or by persons or groups of persons acting with the authorization, support, or acquiescence of the State, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.” As seen above, this definition has been enshrined by the United Nations.

➔ Customary international law

d. Under International Criminal Law

Under the Rome Statute of the International Criminal Court, the systematic practice of enforced disappearances constitutes a crime against humanity (Art. 7(1)(i)). Article 7(2)(i) of the Statute defines enforced disappearance as “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.” Thus, the Court deems the systematic practice of enforced disappearance as equally serious as other crimes against humanity such as torture, extermination, or murder.

➔ International Criminal Court; International Criminal Tribunals; War crimes/Crimes against humanity

a. The United Nations Working Group on Enforced or Involuntary Disappearances

On 29 February 1980, the Commission on Human Rights adopted Resolution 20, which established a working group consisting of five of its members, to serve as experts in their individual capacities, to “examine questions relevant to enforced or involuntary disappearances of persons.” Since 1980, the mandate of the Working Group has been regularly extended; the Human Rights Council adopted the last resolution renewing the mandate of the Working Group on 8 October 2020. As of January 2023, the five experts of the Group were Mr. Luciano A. Hazan from Argentina, Ms. Aua Balde from Guinea-Bissau, Ms. Grazyna Baranowska from Poland, Ms. Gabriella Citroni from Italy and Ms. Angkhana Neelapaijit from Thailand.

The Group holds three annual sessions and submits an annual report to the Commission and the General Assembly. The Group deals only with cases of enforced disappearances attributable, directly or indirectly, to States, which means that it does not deal with disappearances perpetrated by non-state actors. The Group does not directly investigate individual cases, adopt measures of protection against reprisals, or establish individual or State state responsibility in cases of enforced disappearances. Moreover, it does not judge and sanction, carry out exhumations, or grant satisfaction or reparation. The Group’s mandate is to trace missing persons and to help families determine the fate of their relatives who, having disappeared, are not placed under the protection of the law. In order to fulfil this mandate, the Group has a communication procedure; the authors of communications may be the victim’s family, non-governmental organisations (NGOs), governments, intergovernmental organizations or third parties. The Group submits the case to the government of the State concerned and asks the government to conduct investigations and to report results thereon to the Group.

The experts of the Working Group made several country visits in order to assess the work done by States to address cases of enforced disappearances. For example, the Working Group visited Bosnia and Herzegovina at the invitation of the country from 14 to 21 June 2010. As of August 2022, the total number of cases transmitted by the Working Group to governments since its creation was 59,600 to 112 States. The number of cases under active consideration that have not yet been clarified, closed, or discontinued is 46,751 in a total of 97 States. The Working Group has been able to clarify 104 cases between May 2021 to May 2022.

b. The Role of International Humanitarian Organizations

As said above, the role of impartial humanitarian organizations, and particularly the ICRC, in addressing the issue of missing persons related to armed conflict is of paramount importance. The ICRC can also count on the network of national society of red cross and red crescent to support its work in that regard. However, the ICRC's position remains delicate, as it must take all possible measures to obtain information on missing persons without losing the opportunity to negotiate with national or local authorities who are wary of the risk of criminal prosecution. In order to strike a balance between these different constraints, the ICRC relies on several complementary activities to address the issue of missing persons:

• Dissemination of IHL;
• Visits to detention places and recording of the detained persons;
• Visits to detained persons and tracing of their previous other places of detention;
• General protection of civilians affected by conflict;
• Restoring family links through the network of National Red Cross and Red Crescent Societies;
• Compilation and processing of all tracing requests through its Tracing Central Agency.

All humanitarian organizations in contact with individual victims should make sure that they are not unaccounted for. They should inform the ICRC and provide victims with Central Tracing Agency forms in order to limit the risk of disappearance and helping family reunification.

c. the missing migrant project

Situation of unsafe migration have created massive need of tracing missing and managing the dead in the process of migration. According to International Organization for migration (IOM) more than 50,000 migrant went missing from 2014 to 2022. Among them, more than 25,000 disappeared drowned in the Mediterranean Sea. As a response, the IOM launched the Missing Migrants Project which records, since 2014, people who die in the process of migration towards an international destination, regardless of their legal status. However, as collecting information is challenging, all figures remain undercounts. The locations in most cases are approximate. IOM does not directly conduct tracing or searches for missing migrant but provide a portal gathering all information necessary to people in search of a missing migrant. It also compiles data, resources, and best practices.

➔ Central Tracing Agency; Red Cross and the Red Crescent

a. Under the Geneva Conventions

In international armed conflicts, States parties have the duty to search for the dead (GCI Art. 15, GCII Art. 18, GCIV Art. 16). They shall also try to collect information in order to identify the dead (GCI Art. 16, API Art. 33(2)). IHL also prescribes that the dead must be respected and given decent burial and that gravesites shall be marked in order to facilitate access to and protection of the graves (GCI Art. 17, API Art. 34(1)). Moreover, the remains of the dead shall be respected and returned to their relatives, when possible (API Art. 34(2)).

The provisions of IHL on the dead and their gravesites applicable in international armed conflicts are comprehensive; they apply during and after an armed conflict or in a situation of occupation.

In the context of non-international armed conflicts, the duty to search for the dead is set forth in Article 8 of Additional Protocol II of 1977. There are a few substantive norms on the dead and their gravesites in IHL with regard to non-international armed conflicts. However, parties to non-international armed conflicts remain bound by general IHL obligations, such as the prohibition of outrages upon personal dignity and cruel and inhuman treatment.

➔ International humanitarian law

b. Under Customary International Humanitarian Law

• Rules 112 to 116 of the CIHL study provide dispositions as to the accounting and the collection, treatment, disposal, and return of the remains of the dead.
• Rule 112 states that “Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the dead without adverse distinction.”

This rule is applicable in both international and non-international armed conflicts. The ICRC recalls that the obligation to search for and collect the dead is an obligation of means. Each party to the conflict has to take “all possible measures” to search for and collect the dead. This rule applies to all the dead without distinction, regardless of the party to which they belong and whether or not they have taken a direct part in hostilities.

• Rule 113 states that “Each party to the conflict must take all possible measures to prevent the dead from being despoiled. Mutilation of dead bodies is prohibited.” This rule is applicable in both international and non-international armed conflicts.
• Rule 114 states that “Parties to the conflict must endeavour to facilitate the return of the remains of the deceased upon request of the party to which they belong. They must return their personal effects to them.” This rule is only applicable in international armed conflicts.
• Rule 115 states that “The dead must be disposed of in a respectful manner and their graves respected and properly maintained.” This rule is applicable in both international and non-international armed conflicts. The Geneva Conventions specify that the dead must be buried, if possible, according to the rites of the religion to which they belonged.
• Rule 116 prescribes that “With a view to the identification of the dead, each party to the conflict must record all available information prior to disposal and mark the location of the graves.”

a. Identification of Dead Bodies for Humanitarian Purposes

In situation of armed conflict, humanitarian organizations can face situations where they have to search for and collect the dead. In practice, they need permission from the party in control of a certain area to carry out search and collection activities. This permission must not be denied arbitrarily. On behalf of the mission entrusted to the ICRC by the States parties to the Geneva Conventions, the organization has the legitimacy to undertake searching and collecting activities. When identification of dead bodies is handled for purely humanitarian purposes, mass graves are opened, and bodies identified. The idea behind it is to confirm the identity and the fate of people missing, whether they are dead or alive. In practice, this is usually achieved by connecting tracing capacities, which have previously recorded the missing, with the list of identified corpses. Tracing activities are mainly the fact of the Central Tracing Agency. The Central Tracing Agency is run by the ICRC, as provided for under the Geneva Conventions, and offers tracing services worldwide in close coordination with National Red Cross and Red Crescent Societies. Through such cooperation, the Red Cross and Red Crescent Movement is able to provide services across national borders, assisting family members to restore contact or to clarify the fate of missing relatives.

To date, no NGO or international organization has a mandate specifically dedicated to the identification of dead bodies. However, taking into consideration that care for dead bodies cannot be delayed and that such actions might clearly impact on the later identification of victims, guidelines have recently been developed to promote best practices. As tools to be used by various authorities and relief organizations in the field, they provide the technical information that will support the correct approach to handling dead bodies: victims should not be buried in common graves; every effort must be taken to identify the bodies before removing them from site and to gather all information relevant for later identification before burying unidentified bodies.

In situations of armed conflict, the ICRC can provide forensic expertise. It has a team of experts specialized in investigating cases of missing persons that offers technical advice and supports forensic capacity building to help provide families with answers. The use of forensic sciences for clarifying the fate of missing persons is relatively new; the first official genetic data bank for the search of the missing was established in Argentina in 1987, in direct response to the needs of families. In these activities, the ICRC’s role is to complement and provide support to the national authorities or National Red Cross and Red Crescent Societies. Forensic identification relies on elements as diverse as the location of the corpse, interviews of witnesses, material elements found on the dead body (ID, mobile phone, photos, clothes), and physical elements still available on the dead body (teeth, visage, distinctive specificity, fingerprint, DNA analysis of hair). Though DNA analysis is increasingly perceived as playing a major role, it is mainly a last-resort procedure, or a complement used in combination with other elements. Besides, several challenges remain when it comes to the use of forensic sciences to identify missing persons, among which is the fact that financial and human resources are not always readily available in the aftermath of an armed conflict.

b. Identification for Judicial Purposes

Identification of dead bodies can also be handled for judicial purposes. In this case, it is often a first step to open a criminal case before a court. The ad hoc International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda illustrate such a perspective as they have limited identification of dead for judicial purpose to a limited number of persons in a given mass grave. Under their auspices, excavations of mass graves were undertaken. The first excavation took place in the western Rwanda town of Kibuye in December 1995. Nearly 500 individuals were exhumed, but it was possible to identify only 17. In the former Yugoslavia, the Office of the Prosecutor of the ICTY launched its first excavation of mass graves in 1996 in five different sites. In one of the sites, called the Ovčara farm, investigators found what were believed to be the remains of the 200 patients and staff from the Vukovar hospital. From 1996 to 2001, the ICTY investigated a number of mass graves. The work has then been followed up by the International Commission on Missing Persons (ICMP), which was established by former U.S. president Bill Clinton in 1996 at the G7 Summit in Lyon, France. The primary role of the ICMP is to ensure the cooperation of governments in locating and identifying those who have disappeared during armed conflict or as a result of human rights violations. The organization was established to support the Dayton Peace Agreement, which ended the conflicts in Bosnia and Herzegovina. The ICMP’s headquarters are in Sarajevo. In 2000, the Commission developed a new storage and morgue facility for the Srebrenica remains and was the first to use DNA as a first step in the identification of large numbers of persons missing from the conflict in the former Yugoslavia.

The main difference when digging up and identifying people in mass graves that are conducted for criminal reasons lies in the scale of the identification of corpses. Indeed, criminal investigations regarding war crimes do not require the identification of all bodies of a mass grave. To save time and money, criminal investigators may focus only on a sample of bodies. Their aim is mainly to confirm the facts and numbers in order to gather evidence for the tribunals, not to establish a complete list of victims and identify remains of all bodies. As a result, families’ right to know what happened to their relatives might not necessarily be honoured.

Disappearance is considered a continuous crime that does not come to an end until the fate of the missing is finally clarified. This means that the limitation period begins from the moment when the disappearance ceases, in other words, when the person is found dead or alive. Therefore, these crimes cannot be covered by amnesty acts voted prior to the discovery of the disappeared.

In Quinteros v. Uruguay (21 July 1983, para. 186), the UN Human Rights Committee confirmed that it is prohibited to withhold deliberately from families information on missing relatives. It also stated that disappearances gravely violate the rights of the disappeared person’s family, who suffer severe and often prolonged periods of mental anguish owing to uncertainty about the fate of their loved ones.

In Kurt v. Turkey (25 May 1998, paras. 130–133), the European Court of Human Rights found that withholding information from the families of persons detained by security forces—or silence in the case of persons missing during an armed conflict—can attain a degree of severity that amounts to inhuman treatment.

In the Kupreškić et al. Case (14 January 2000, para. 566), the Trial Chamber of the ICTY found that enforced disappearance could fall into the category of “other inhuman act” as a crime against humanity, provided these acts are “carried out in a systematic manner and on a large scale”