Legal Frameworks and Rights

The large number of persons missing as a result of armed conflicts and human rights abuses is a stark reminder of the failure to safeguard individual rights and to uphold the rule of law. In addition, this large number adds to the fragility of peace and reconciliation processes, and is an obstacle to the development of democratic society through credible institutions that are effective, accountable and fair.

Persons going missing often involve multiple human rights abuses in respect of the persons themselves and also in respect of the family of the missing. Regarding the missing person these abuses frequently include violations of the right to security and liberty, as well as dignity of the person; the right to life; the right not to be subjected to torture or degrading treatment or punishment; the right to a family life and the right to recognition as a person before the law. In the absence of effective and official investigations, disappearances concurrently represent grave abuses of the rights of surviving relatives and others, including violations of due process, the prohibition of torture, and violation of the right to a family life and the right to recognition as a person before the law.

These rights are guaranteed by the International Covenant on Civil and Political Rights (ICCPR) and its regional counterparts such as the European Convention on Human Rights and Fundamental Freedoms (ECHR), the American Convention on Human Rights (ACHR) and the African Charter on Human and Peoples’ Rights (ACHPR). Furthermore certain missing persons cases are classified as a separate offence by international instruments. The International Convention for the Protection of All Persons from Enforced Disappearance (Convention) provides a definition of enforced disappearance in cases involving state actors. Also, the Rome Statute of the International Criminal Tribunal (Rome Statute) provides for the crime of enforced disappearance as a crime against humanity.

These legal instruments enshrine states’ obligations to conduct effective investigations regarding missing persons. The right to life in particular rests on the procedural guarantee that abuses will be officially investigated irrespective of whether such abuses are considered attributable to actions or omissions by the State.

According to the United Nations Human Rights Council (UNHRC) the international community should “endeavor to recognize the right of victims of gross violations of human rights, and their families, and society as a whole to know the truth to the fullest extent practicable.” The right to the truth is also asserted in the Convention. The obligations of the State under the right to the truth are procedural, with no absolute obligation of result. The European Court of Human Rights (ECtHR) ruled that a state’s failure to conduct an effective investigation to clarify the whereabouts and fate of missing persons constitutes a continuing violation of the State’s procedural obligation to protect the right to life under Article 2 of the Convention, as well as a violation of the rights of families of the missing under Article 3, the prohibition of torture.  An effective investigation, according to the ECtHR, must be official, transparent, independent and impartial, as well as capable of establishing the circumstances in a given case.

Parties to the Inter-American Convention on Forced Disappearance of Persons, undertake not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees; to punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories; to cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons; and to take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.

Signatories to 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 the International Commission on Missing Persons, declare their commitment to addressing the issue of missing persons as a responsibility of the state, and they do this explicitly with the objective of ensuring lasting peace and promoting cooperation and reconciliation. The Declaration recognizes the right of families to know the fate of missing loved ones and it calls among other things on governments to cooperate and share information that can help to locate and identify the missing.

International Humanitarian Law also provides for obligations to search for the missing. For example, Protocol Additional to the Geneva Conventions of 1977 “requires each party to the conflict to search for persons who have been reported missing by the adverse party.”  It also requires that parties to a conflict facilitate enquiries about individuals missing as a result of hostilities. These provisions are complementary to the universal guarantees anchored in human rights.

And within countries legislation and institutions have been used to bring legal remedy in the case of missing persons and enforced disappearances.

In Bosnia and Herzegovina the 2004 Law on Missing Persons, the first such piece of national legislation related to missing persons anywhere in the world, prescribes families’ right to the truth about the fate of missing relatives as and the right to information about ongoing investigations. The Missing Persons Institute, which was created as a result of this law, is responsible for searching and identifying missing persons throughout Bosnia and Herzegovina.

A range of corresponding rights have emerged, including the right to justice:

ICMP’s overall purpose and function is to help the authorities implement processes designed to locate and identify missing persons and to inculcate standards and norms of pluralistic, democratic society in these processes. ICMP thus seeks to ensure that states continuously address the issue of missing persons and it promotes objective standards and methods of work.

The proceedings of an international conference chaired by ICMP in The Hague in October/November 2013 are recorded in The Missing: An Agenda for the Future, which calls for the establishment of a Global Forum on missing persons to strengthen cooperative networks dealing with this issue. The document also highlights the fact that the role and responsibilities of governments in addressing missing persons cases must be clarified.

Increasingly, locating and identifying the missing has become a specialized discipline of forensic science and institutionally the domain of judicial institutions as well as law enforcement. While today many countries confronting legacies of violent conflict and systematic human rights abuses have assumed responsibility for missing persons processes as administered through their public law institutions, the scope and extent of such public ownership continues to vary, as do outcomes for society and families of the missing.

State participation in international legal instruments that have a bearing on missing persons issues is generally broad. In addition to participation in the human rights instruments referred to above, most countries are signatory to the four Geneva Conventions of 1949 and the two 1977 Additional Protocols thereto, which provide that each party to a conflict has an obligation to search for persons who have been reported as missing by the adverse party (Art. 33 (4) of Protocol I).

Many countries participate in international legal instruments that have a bearing on MDP processes. However, compliance with international obligations is often incomplete. It is therefore important to embed international obligations in domestic law, including constitutional law. Where relevant constitutional guarantees exist, such as the right to life, relevant mechanisms need to be establish to ensure that effective investigations by judicial and law enforcement institutions can take place.

While standards of effective investigations in MDP scenarios have become clearer over the last two decades, practice still falls short of ensuring their consistent application. MDP processes need to be official, transparent, and capable of establishing the facts, and they need to take place without undue delay. A prompt response by the authorities in investigating a disappearance is generally regarded as essential in maintaining public confidence in the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.

The need for prompt action is especially important when allegations are made of a disappearance in detention. The obligation to undertake an effective official investigation extends to, but is not confined to cases that concern intentional killings resulting from the use of force by agents of the State, but generally applies to cases where a person goes missing in circumstances that may be regarded as life-threatening.