Bosnia and Herzegovina
Bosnia and Herzegovina declared independence from the Socialist Federal Republic of Yugoslavia (SFRY) on 3 March 1992.
The conflict that unfolded over the next three and half years witnessed killings, torture and disappearances as a result of military action and also as a result of “ethnic cleansing” and other human rights violations and crimes against humanity, often perpetrated against civilians. Just over 100,000 people lost their lives. This figure includes approximately 31,500 missing persons.
Despite the administrative limitations of a complex government structure and systematic efforts by some parties to prevent the location and identification of bodies, approximately 75 percent of persons reported missing as a consequence of the war have been accounted for. No other post-conflict country has achieved such a high rate of resolving cases of missing persons.
Since 1996, ICMP has played a central role in this effort, by helping to develop Bosnia and Herzegovina’s institutional capacity to address the issue of missing persons in a non-discriminatory manner, crafting legislation to safeguard the rights of families, introducing cutting-edge forensic methods, including the use of DNA, upholding rule-of-law-based processes that have ensured the provision of evidence to domestic courts and the ICTY, and facilitating the active engagement of the families of the missing.
Bosnia and Herzegovina’s progress on this issue should be seen in the context of a developed policy framework incorporating international standards of technical and administrative capacity. The result has been an institutional, legislative and cooperative process, underpinned by the establishment of the Missing Persons Institute of Bosnia and Herzegovina (MPI), the establishment of the Central Records, the adoption of a Law on Missing Persons and the creation of inter-institutional cooperation mechanisms to address the issue of unidentified human remains in the country’s mortuaries under the overall auspices of domestic courts and prosecutors.
BIH is a state party to the major international human rights instruments including the International Convention on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (CESCR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), the Convention on the Prevention and Punishment of the Crime of Genocide, the Geneva Conventions and Additional Protocols, the European Convention on Human Rights (ECHR) and the European Court for Human Rights (ECtHR), and the Rome Statute of the International Criminal Court (ICC).
In addition, BIH, together with Serbia, Croatia and Montenegro, signed the Declaration on the Role of the State in Addressing the Issue of Persons Missing as a Consequence of Armed Conflict and Human Rights Abuses drawn up under the auspices of ICMP. In 2018, BIH signed the Joint Declaration on Missing Persons in the Framework of the Berlin Process along with 14 other states, participants of the Berlin Process.
In terms of regional cooperation, Bosnia and Herzegovina signed protocols and agreements on cooperation in the process of accounting for missing persons with Serbia (2015), Croatia (2017) and Montenegro (2019).
The BIH Constitution, which is part of the General Framework Agreement for Peace in BIH, provides for a strong human rights protection framework. The Constitution specifically provides for the protection of the right to life, the right not be subjected to torture or to inhuman and degrading treatment or punishment, the right of liberty and security of the person, and the right to private and family life, as well as prohibition of discrimination.
As part of criminal law reforms that were undertaken within the overall legal reform process in BIH, a number of new laws were adopted allowing for the prosecution of war crimes and other serious crimes under international law in line with international human rights standards and rule-of-law principles. This included the establishment of the special War Crimes Chamber/Department within the state-level Court and the Prosecutor’s Office respectively. The new Criminal Procedure Code (CPC) was also adopted introducing significant adversarial procedure characteristics in trials.
The BIH Law on Missing Persons, enacted in 2004, was the first such piece of legislation in a post-conflict country related to missing persons anywhere in the world. It codifies the “right to the truth regarding the fate of missing relatives,” as well as the right to be informed about investigation efforts. It also established the Missing Persons Institute (MPI) of BIH as an institution of the State and with a mandate to search for and identify missing persons across the entire territory of BIH, thereby ending the discriminatory practice of searching for missing persons based on their ethnic affiliation. It mandated the creation of both the Central Records on Missing Persons (CEN) and a Fund for the Families of the Missing. It also made provision for sanctions against individuals and institutions that withhold information pertaining to the fate of missing persons. The purpose of the CEN established under this Law is to serve as a central database of information on missing persons, consolidating records kept at various levels of government and regional offices. Establishing a single, unified list of missing persons is important, among other things, to ensure the integrity of data and to prevent manipulation of missing persons numbers for political or other purposes.
The Law also upholds other rights of families, such as temporary disposition of the property of missing persons in cases where persons have not been declared dead, burial costs, priority rights in the realization of the right to education and employment of children of missing persons, health care and memorialization at gravesites.
The BiH Central Records of Missing Persons (CEN)
Article 2.1 of the Law for the Establishment of Central Records of Missing Persons (CEN) in Bosnia and Herzegovina as part of the MPI states that the purpose of the CEN is to unify information on missing persons kept at local and Entity levels by:
- The authorities;
- Non-governmental organizations;
- Families of missing persons; and
- Tracing offices and international organizations
Establishing a single, unified list of missing persons as mandated by the Law on Missing Persons is an important way of ensuring that there is one set of accurate and reliable numbers. Among other things, this reduces the scope for political manipulation and misrepresentation of numbers.
The unified CEN database was completed in February 2011. It combined 12 separate databases with information on missing persons collected by the former Federation Commission on Missing Persons, the RS Office for Tracing Missing and Detained Persons and the State Commission on Tracing Missing Persons, as well as data from the ICRC and ICMP.
The completion of the CEN was of regional significance. In 2011, at the request of the governments of Bosnia and Herzegovina, Serbia, Croatia, Montenegro, and Kosovo, ICMP initiated the compilation of a unified regional database of persons missing in the Western Balkans. The Regional Database was officially created following a formal exchange of letters and signed agreements between ICMP and the domestic institutions from these countries in 2016 and 2017. The Regional Database was launched into the public domain by the Missing Persons Group on 3 November 2022 in The Hague at a dedicated event within the Berlin Process Summit. Its launch means that that up-to-date records are now publicly available at all times and enable families of the missing and others. In addition to its immediate practical benefits, the list represents a historical record.
BIH early on shifted its approach to the missing persons issue from one governed by a humanitarian rationale to one placed within a rule-of-law framework in which the resolution of missing persons cases is addressed by the country’s rule-of-law institutions, including its criminal justice system. As a consequence, BIH also made use of forensics, in particular DNA analysis, to locate and identify the missing. What became known as the DNA-led identification process was established with the help of ICMP in 2000. This process applied DNA testing unselectively on a wide scale, with identifications resulting from “blind” computer-driven DNA matches between the DNA of unidentified human remains and that of family members of the missing.
The use of forensic science is usually regulated in criminal procedure codes or rules of evidence that also address the use of DNA. In BIH, there is no domestic legal framework for the use of DNA in particular for the purposes of a missing persons process. Rather, the DNA-led process was instituted under agreements between the State and ICMP under international law. The State, thus, made use of its international agreement thus creating capacity to compensate for a gap in domestic capacity by assigning a public investigative function to an international public organization capable of performing that function. The output of that process, namely DNA identifications of the remains of missing persons, DNA Match Reports, is provided by ICMP directly to the Missing Persons Institute which delivers them to the competent domestic courts that process and close missing persons cases in line with the Criminal Procedure Code.
NN Review
At the end of 2012 the MPI determined that there were 3,279 cases of human remains in mortuaries across Bosnia and Herzegovina that had the status of NN (Nomen Nescio / No Name), that is, they were unidentified.
In 2013, at the initiative of ICMP, the BIH Chief Prosecutor mandated a review of all the unidentified cases in mortuaries in order to establish the scope of technical problems and at the same time examine why it had not been possible for more than a decade to match the DNA profiles from human remains in the mortuaries to 8,000 reported cases of missing persons, for which families of the missing had provided sufficient reference samples.
In November 2017, following a four-year effort spearheaded by the Prosecutor’s Office of Bosnia and Herzegovina in cooperation with the MPI, and with technical assistance from ICMP funded by the European Union, ICMP and the MPI announced the preliminary results of the project at a public event in Sarajevo. Final results of the review, presented in 15 separate reports, were officially submitted and presented to the Prosecutor’s Office of Bosnia and Herzegovina and other competent prosecutors’ offices in May 2018. The careful review of all of the remains kept in BiH mortuaries resulted in 121 new identities, 968 re-associations with previously identified cases, and recommendations to the Prosecutor regarding steps that need to be taken in order to resolve a majority of the remaining cases. Recommendations were also made regarding the management of records and cases stored in the mortuaries. The mortuaries where forensic examination of unidentified remains were carried out are Banja Luka, Gorazde, the Krajina Identification Project in Sanski Most, Modrica, Nevesinje, Odzak, the Podrinje Identification Project and the Commemorative Center in Tuzla, East Sarajevo, Mostar, Travnik, and Visoko.
