Waiting to learn about the fate and whereabouts of a missing person means living in limbo, with neither the closure of mourning nor a reason to stop hoping against hope. Such uncertainty has severe psychological and emotional effects. It can also create legal, administrative, social and economic difficulties. The deep wounds inflicted by disappearance continue to undermine relationships within communities and between people, sometimes for decades afterwards.
International humanitarian law (IHL) and international human rights law (IHRL) contain obligations relevant for the issue of missing persons; they uphold the right of families to know the fate and whereabouts of their missing relatives. IHL also requires that the remains of those who have died in relation to an armed conflict be handled with dignity and properly managed. States must make every effort to prevent people from going missing, to search for missing persons and to deal with the consequences of such events.
International humanitarian law (IHL), which applies in situations of armed conflict, contains rules that seek to prevent persons from going missing as a result of the conflict, to clarify their fate and whereabouts when they do and to address the needs of families. Notably, IHL requires parties to the conflict to take all feasible measures to account for persons reported missing as a result of armed conflict and to provide their family members with any information they have on their fate.IHL also requires the parties to search for, collect and evacuate the dead, and to record all available information before disposing of their remains, with a view to their identification. It also requires that the remains of those who have died during armed conflict be properly managed and their dignity protected. The parties to an armed conflict must endeavor to facilitate the return of human remains to families upon request.
IHL also contains obligations relating to the investigation and prosecution of war crimes, including those resulting in persons going missing or being forcibly disappeared.
International human rights law (IHRL) contains rules and standards that are relevant to preventing persons from going missing and clarifying the fate and whereabouts of those who go missing not only in connection with armed conflict but also following disasters or in the course of migration. It also contains rules relating to the investigation and prosecution of gross violations of human rights. The 2006 International Convention for the Protection of All Persons from Enforced Disappearance is the first universal treaty to include specific obligations for States Parties to prevent, and protect against, enforced disappearance. In the case of alleged or suspected enforced disappearance, states must take all appropriate measures to search for, locate and release disappeared persons, as well as to investigate acts of enforced disappearance and bring those responsible to justice. Finally, states must take appropriate measures to uphold each victim’s 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.
Rules relevant to searching for missing persons and to ensuring proper management of the dead and protection for their dignity can be found in other bodies of law. For instance, international disaster response law contains relevant provisions and standards relating to forensic activities and management of the dead.
It is important to keep in mind that the primary responsibility for addressing the plight of missing persons and their families lies with state authorities. In this regard, States are required to adopt and apply measures at the domestic level to fulfil their obligations under international law. Such measures include for instance the adoption of proper domestic legal and policy frameworks and the establishment of relevant and well-coordinated structures, procedures or mechanisms. They pertain to such issues as the prevention of disappearance; the search for and identification of missing persons; management of the dead; the needs of, and support to, families of missing persons; and the ability of a mechanism to carry out its mandate. National implementation is only a first step; enforcing laws and policies is an essential next step to ensure their effective application in favour of those who have gone missing and their families.
The Guiding Principles/Model Law on the Missing is designed to help states and their competent national authorities adopt or improve their national legislation on the missing. It covers the fundamental concepts of the law regarding the rights of missing persons and their families, alongside the state’s obligation to ensure and uphold these rights. The model law is divided into chapters that outline basic rights, as well as certain measures of enforcement in situations prior to a person becoming missing, once they are reported missing and in the eventuality of suspected or actual death. It can be used in whole or in part, and can focus as needed on prevention, resolution or any other aspects of the issue. aspects of the issue.
Missing Persons – A Handbook for Parliamentarians
This manual, developed jointly by the Inter-Parliamentary Union (IPU) and the ICRC, is composed of three sections. The first chapter contextualizes the issue of persons reported missing following an armed conflict or a situation of internal violence, and the impact on their families. The second chapter focuses on the essential role that parliamentarians can play in preventing disappearances, clarifying the fate of missing persons and assisting their families. The third chapter contains an annotated version of the model law on the missing.
In December 2019, the 33rd International Conference of the Red Cross and Red Crescent adopted Resolution 1 (33IC/19/R1), entitled Bringing IHL home: A roadmap for better national implementation of international humanitarian law . The resolution is based on the widely shared recognition that better respect for international humanitarian law is needed to protect victims of armed conflict, and that implementing IHL at the domestic level is an essential step towards achieving this goal. It emphasizes States’ responsibility to adopt national legal and practical measures for ensuring full compliance with this body of law. National Red Cross and Red Crescent Societies play a unique role as auxiliaries to the public authorities in the humanitarian field, based on which they disseminate and assist their governments in disseminating IHL and take initiatives in this respect.
Bringing IHL Home: Guidelines on the National Implementation of International Humanitarian Law contains guidance for States and National Societies on working together to implement the resolution at the domestic level.
The ICRC hosts a range of searchable international humanitarian law databases. The Treaties, States Parties and Commentaries database includes the text of IHL treaties and related documents and lists the States that have signed and/or ratified or acceded to the treaties, with their potential reservations or declarations. It also contains the existing ICRC commentaries to the four 1949 Geneva Conventions and their Additional Protocols, and includes the updated commentaries as they become available.
The customary international humanitarian law database features the rules identified in the ICRC’s study on customary international humanitarian law, and the practice underlying them. The database is regularly updated making available new State practice in the field of IHL as well as international materials, such as judgments of international courts and tribunals.
The database on national implementation of international humanitarian law aims to share information on national implementation measures collected by the Advisory Service on IHL of the ICRC. It contains laws and case law that implement IHL treaties and other related international instruments and illustrates possible approaches to incorporating IHL in national legal and administrative frameworks.
The IHL Digital App for international humanitarian law is designed for the mobile user and allows you to quickly check IHL references for legal practice and discussion. From the palm of your hand, you can search, save and share – anytime, anywhere.
Online learning program Introduction to International Humanitarian Law (IHL) is a free introductory course on the basics of IHL. It is principally addressed to humanitarian practitioners, policy makers and other professionals who are keen on understanding how and when this body of law applies, and whom it protects.
IHL in action: Respect for the law on the battlefield is a collection of real-life case studies documenting compliance with IHL in modern warfare. Based on publicly available information, these cases have been assessed by academics as demonstrating respect for IHL.
The case studies include examples of clarifying the fate of persons who went missing in the 1990–1991 Gulf War, Supreme Court rulings on enforced disappearances in Nepal, agreements accounting for missing persons in Colombia and identification of missing persons in Bosnia and Herzegovina.