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 70% 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 systematic 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.
International legal instruments
BIH is a state party to the major international human rights instruments including ICCPR, CESCR, CAT, the Convention and ECHR. It is also a state party to the Rome Statute. In addition, BIH, together with three other countries in the region (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 the International Commission on Missing Persons (ICMP).
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 a 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 grave sites.
The Missing Persons Institute
The launching of the MPI as a state-level institution, on 30 August 2005, the International Day of the Disappeared, marked the transfer of responsibility from Entity commissions on missing persons to the State level and the end of a segregated process of accounting for the missing. The establishment of the MPI was preceded by a two-year consultative process that included representatives of the families of the missing, the Entity governments and Brčko District, and the International Committee of the Red Cross (ICRC) as an observer. The first three members of the MPI Board of Directors took office in 2006, and the members of other management bodies were formally appointed in the summer of 2007. Establishing the MPI was a milestone in Bosnia and Herzegovina’s post-war recovery, providing for a sustainable domestic mechanism to locate missing persons regardless of their ethnic, religious or national affiliation, or their role in past hostilities. MPI also ensures that mass gravesites are protected, documented and properly excavated, and that relatives of the missing and others are able to participate in the institution’s work.Other regulations and measures
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 ICRC and ICMP.
The completion of the CEN is 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 list of persons missing in the Western Balkans. This list seeks to arrive at a definitive number of persons missing in these countries. It will also help to clarify jurisdictional issues related to the search for persons reported missing in more than one country. In addition to its immediate practical benefits, the list represents a historical record.
BIH early on shifted its approach to the MDP 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 the 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, so-called DNA-match reports, is provided by ICMP directly to the competent domestic courts that process and close missing persons cases under their ordinary rules of procedure.
In order to address the problem of a large number of unidentified human remains in BIH mortuaries – believed to be caused by early attempts to identify the remains of the missing by less reliable identification methods, such as visual examinations – an inter-institutional cooperation mechanism for the examination of unidentified human remains and inventory of mortuaries and ossuaries in BIH was established by the state-level Prosecutor’s Office in May 2013 under an inter-agency agreement with the lower administrative level Prosecutors’ Offices, MPI, law enforcement agencies, pathologists and other relevant institutions in charge of missing persons cases.
Brief overview and the future
Bosnia and Herzegovina witnessed a shift in the approach to the issue of missing persons; from a framework led by humanitarian goals, the country moved to strong legal framework based on which resolving the cases of missing persons is within the authority of relevant state institutions dealing with the rule of law and their judicial system. However, Bosnia and Herzegovina should continue supporting the efficiency of the Missing Persons Institute, which is important because of the changing state political environment. The Law on Missing Persons is waiting to be fully implemented. Establishing the Fond for the families of the missing persons, as well as the finalization of verification of the Central Record of Missing Persons (CEN) are among the most important tasks that have to be performed in the near future.
For a detailed account of the effort to locate and identify missing persons in Bosnia and Herzegovina click here.