Wrongs of the past, especially those associated with human rights abuses, are most often perceived in terms of violations of rights and an absence of the rule of law. They must consequently be redressed through the reinstatement of both. Investigations that make this reinstatement possible must therefore conform to rule of law standards. This means that adequate legal conditions have to be in place. In particular, investigations must be officially authorized and must protect the rights of those concerned.
Everyone has a right to privacy which is enshrined inter alia in Art, 12 of the Universal Declaration of Human Rights. Neither the state nor other persons have the right to intrude on this privacy without permission. Human dignity requires that a person controls access to his or her own body, and that any intervention is justified either by free, express and informed consent, or by law. The public interest is not, as a rule, a blanket justification for every kind of investigatory measure. Such measures must also conform to the principle of proportionality. In particular, investigations must be adequate, they must be relevant and they must not be excessive in relation to the purposes for which they are conducted. The same applies to the use of information that is gathered in the course of investigations.
To ensure these standards, in particular in the context of political transition or other exceptional circumstances, including natural or man-made disasters, special protections are often necessary. Examples of such protections include those accorded to ICMP’s forensic work, where heightened protections are granted under international law and agreements. These protections make it possible to conduct investigations consistently according to international policies and standards.
While no universal international standards for the investigation of missing persons cases exist yet, a range of specific international instruments provide guidance in this field. In addition to general human rights instruments these include:
The Universal Declaration on Bioethics and Human Rights (UNESCO 2005), concerning research in medicine, life sciences and associated technologies, including genetics.
The International Declaration on Human Genetic Data (UNESCO 2003), concerning the collection, processing, use and storage of human genetic data, and samples.
The Universal Declaration on the Human Genome and Human Rights (UNESCO 1997), concerning research, treatment or diagnosis affecting an individual’s genome.
The Convention on Human Rights and Biomedicine, Oviedo Convention (Council of Europe 1995), protecting the dignity and identity of human beings with regard to biology, medicine, biomedical research and genetic testing.
Important international guidelines include:
A number of important Court rulings also provide guidance. These include:
European Court of Human Rights, Cyprus v. Turkey (2001), and Cyprus v. Turkey (2014), as well as Rod v. Croatia (2008), and concerning genetic data in particular S. and Marper v. United Kingdom (2008)
U.S. Supreme Court, Melendez-Diaz v. Massachusetts (2009)