1 Regarding the Management of Human Remains and of Information

The Missing: Action to resolve the problem of people unaccounted for as a result of armed conflict or internal violence and to assist their families

Mechanisms to solve issues on people unaccounted for

Workshop 19.09.2002 - 20.09.2002 Ecogia ICRC Training Center - Geneva - Switzerland

Final report and outcome

Mission statement The aim is to heighten awareness among governments, the military, international and national organizations – including the worldwide Red Cross and Red Crescent network – and the general public about the tragedy of people unaccounted for as a result of armed conflict or internal violence and about the anguish of their families by creating and making available tools for action and communication in order to ensure accountability on the part of the authorities responsible for resolving the problem of missing people, to better assist the families and to prevent further disappearances.

 ICRC/TheMissing/12.2002/EN/6 (Original: English) Mechanisms to solve issues on people unaccounted for

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Table of content

Table of content ...... 3 1. Introduction ...... 7 1.1 Introduction to the process "The Missing" ...... 7 1.2 Mechanisms to solve issues on people unaccounted for ...... 8 2. Outcome: recommendations and best practices...... 10 2.1 How context influences mechanisms ...... 10 2.2 Focus and objectives of mechanisms for clarifying the fate of missing persons ...... 11 2.3 Obtaining information on missing persons...... 12 2.4 Format and structure of mechanisms for clarifying the fate of missing persons...... 13 2.5 The role of families within mechanisms for clarifying the fate of missing persons ...... 15 3. Experts' contributions ...... 16 3.1 By Mr Federico Andreu-Guzmán, Legal Adviser, International Commission of Jurists (ICJ)16 3.2 By Mr. Kamran Arif, Vice-Chairman, Human Rights Commission of Pakistan (Pakistan) ... 23 3.3 By Dr Fernando Iregui Camelo, Technical Secretary, Comisión de Búsqueda de Personas Desaparecidas, Defensoria del Pueblo (Colombia) ...... 27 3.4 By Mr Javier Ciurlizza, Executive Secretary, Truth and Reconciliation Commission of Peru (Peru) ...... 33 3.5 By Mr Bernhard Clasen, Co-Chairman, Working Group for the release of prisoners and hostages and the tracing of Missing People of the Karabakh conflict (Germany) ...... 40 3.6 By Mr Charles Dominique Dube, Chairman, Catholic Commission for Justice and Peace (Zimbabwe) ...... 44 3.7 By Mr Max Grunberg, Chairman of the Raoul Wallenberg Honorary Cititzen Committee (Israel)...... 46 3.8 By Mr Yasantha Kodagoda, Senior State Counsel (Sri Lanka)...... 47 3.9 By Mr Richard Lyster, Former Commissioner of the South African Truth and Reconciliation Commission, Human Rights Lawyer, Durban (South Africa) ...... 49 3.10 By Mr Fernando Mora, Office of the Commissioner for Human Rights, Council of Europe 54 3.11 By Mr Gradimir Nalic, Advisor for human rights issues, Cabinet of the President of the Federal Republic of Yugoslavia (Yugoslavia) ...... 61 3.12 By the Office of the High Commissioner for Human Rights, United Nations ...... 65 3.13 By Prof Dr Christian Tomuschat, Juristische Fakultät, Humboldt-Universität zu Berlin (Germany) ...... 72 3.14 By Mr Stephen R. Upton, Deputy Chief of Investigations, Office of the Prosecutor (OTP), International Criminal Tribunal for the former Yugoslavia (ICTY)...... 74 3.15 By Ms Bozana Vaskovic, National Legal Advisor, Organisation for Security and cooperation in Europe (OSCE) - Mission to Bosnia Herzegovina, Human Rights Department79 4. Relevant outcome from studies...... 82 4.1 Overcoming the tensions between family needs and judicial procedures - Extract: Executive summary and recommendations...... 82 4.2 The Missing: The ICRC as a mechanism to solve issues on people unaccounted for...... 87

EXECUTIVE SUMMARY AND RECOMMENDATIONS...... 87 I. INTRODUCTION...... 88 II. HUMANITARIAN ISSUES AND DILEMMAS...... 88 III. INTERNATIONAL HUMANITARIAN LAW AND CONFLICT-RELATED DISAPPEARANCES...... 90 IV. TRADITIONAL ICRC ACTIVITIES AIMED AT PREVENTING AND SOLVING MISSING ISSUES ...... 91 V. SYSTEMATIZE AND DEVELOP ICRC ACTIVITIES IN VIEW OF PREVENTING AND SOLVING MISSING ISSUES...... 93 VI. MULTILATERAL OR TRIPARTITE MECHANISMS...... 98 VII. THE NEED FOR UNIFORM OPERATIONAL GUIDELINES ...... 100 4.3 The Missing: Truth Commissions as mechanisms to solve issues on people unaccounted for...... 101 EXECUTIVE SUMMARY AND RECOMMENDATIONS...... 101 I. INTRODUCTION...... 102 II. GENERAL INFORMATION ON TRUTH COMMISSIONS...... 103 III. TRUTH COMMISSIONS AND CONFLICT-RELATED DISAPPEARANCES ...... 104 IV. SOME TRUTH COMMISSIONS WHICH HAD TO CONFRONT THE PROBLEM OF MISSING PERSONS...... 105 V. HELPFUL MEASURES...... 108 4.4 The Missing: National Human Rights Commissions as mechanisms to solve issues on people unaccounted for...... 115 EXECUTIVE SUMMARY AND RECOMMENDATIONS...... 115 I. INTRODUCTION...... 116 II. GENERAL INFORMATION ON NHR COMMISSIONS ...... 116 III. NHR COMMISSIONS AND CONFLICT-RELATED DISAPPEARANCES...... 117 IV. NHR COMMISSIONS WHICH HAD TO CONFRONT THE PROBLEM OF MISSING PERSONS ...... 118 V. HELPFUL MEASURES...... 120 5. Relevant outcome from other workshops ...... 124 5.1 The legal protection of personal data & human remains - Electronic Workshop - 02.04.2002 - 06.05.2002 ...... 124 5.1.1 The legal protection of personal data & human remains - Protection of personal data: commonly accepted principles...... 124 5.1.2 The legal protection of personal data & human remains - Identification of human remains: commonly accepted principles...... 124 5.1.3 The legal protection of personal data & human remains - Protection of genetic information: commonly accepted principles...... 125 6. ICRC Preparatory documents ...... 126 6.1 The family’s right to know the fate of relatives: rules of international law and recommendations applicable in armed conflicts and/or other situations of violence ...... 126 6.2 General protection of persons: rules of international law and recommendations applicable in armed conflict and/or other situations of violence ...... 127 6.3 Protection of persons deprived of their liberty: rules of international law and recommendations applicable in armed conflict and/or other situations of violence ...... 129 6.4 People killed as a result of violence and the management of graves: rules of international law and recommendations applicable in armed conflicts and/or other situations of violence ...... 131

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6.5 Information Bureau: rules of international law and recommendations applicable in armed conflict and/or other situations of violence...... 132 7. List of participants ...... 135 8. Program of the workshop...... 137

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1. Introduction 1.1 Introduction to the process "The Missing" This workshop is part of an interactive process of reflection launched by the International Committee of the Red Cross (ICRC) on the tragedy of people unaccounted for as a result of armed conflict or internal violence. Uncertainty as to the fate of relatives is a harsh reality for countless families in all situations of armed conflict or internal violence, one that often continues for many years. Not only is this deeply distressing for the families, it can also hamper efforts aimed at achieving reconciliation and an enduring peace by contributing to further outbreaks of violence. Accordingly, the ICRC's objective in launching this process, in cooperation with all those involved in dealing with the issue, is to: • review all methods that could be employed to prevent disappearances in situations of armed conflict or internal violence more effectively, and respond to the needs of families that have lost contact with their loved ones; • agree on common and complementary recommendations and operational practices with all those working to prevent disappearances, and respond appropriately when people are unaccounted for in a situation of armed conflict or internal violence; • position this concern higher on the agendas of government authorities, the United Nations and non- governmental organizations. The process is being conducted in two stages. During the first stage, studies are being conducted by a number of research centers and workshops are being organized that bring together governmental and/or non-governmental experts on topics relating to the issue of disappearances. The studies and workshops are intended to help clarify needs and the means of meeting them and to define recommendations and the best operational practices to be implemented. The present workshop is one of those events, all of which are listed below:

• 2 electronic workshops: • Human remains & forensic sciences: preparatory electronic workshop, • The legal protection of personal data & human remains, • 3 studies: • Mourning process & commemoration, • Overcoming the tensions between family needs and judicial procedures, • Study on existing mechanisms to clarify the fate of people unaccounted for, • 6 workshops taking place in the following order: • Member of armed forces / armed groups: identification, family news, killed in action, prevention, • Human remains: Law, politics & ethics, • Support to families of people unaccounted for, • Human remains: management of remains and of information on the dead, • Means to prevent disappearances & to process missing cases, • Mechanisms to solve issues on people unaccounted for. The preparatory phase of each workshop comprises: • the establishment of reference documents based on international humanitarian law and human rights, and relevant lessons or experiences from past and present situations of armed conflict or violence; • written contributions from experts invited to participate in the workshop concerned, such as senior military officers, senior government officials, historians, lawyers, medical, psychology or forensic specialists and academics. Documents are made available to the participants via a dedicated Extranet that allows all of them to follow the entire process. At the end of each workshop, the outcome is summarized by the ICRC and posted on the Extranet. Individual opinions are not recorded; neither the participants nor their organizations bear responsibility for the summary.

In addition, the final report of the workshop, including the outcome, experts' contributions and the ICRC preparatory documents, will be prepared and subsequently published in English and French. During the second stage, the ICRC will convene an international conference of the experts who took part in the workshops and of any other interested parties. The conference will be held in Geneva from 19 to 21 February 2003. The results of the first stage will be submitted to the conference participants in the form of a document which will be compiled by the ICRC and which will contain all recommendations and best practices, for adoption by the international conference in February 2003. This document will take into account the outcome of all events; obviously, there will be some overlap between events, as the same topic may be dealt with from different perspectives. The ICRC hopes that the conference results will be directly useful both to: • individuals and organizations working in the political, humanitarian and human rights fields and active on the ground in situations of armed conflict or internal violence, and • governments involved in developing international law and preventing or resolving conflicts, especially within the framework of the United Nations, for example through its Human Rights Commission, or within the International Red Cross and Red Crescent Movement, for example through the International Conference of the Red Cross and Red Crescent.

1.2 Mechanisms to solve issues on people unaccounted for The workshop was attended by 24 external experts from different parts of the world, involved in different aspects of the issue of missing persons. The range of expertise represented allowed the issue to be tackled from a number of perspectives. Written contributions received prior to the workshop provided valuable input and formed a basis for the discussions. The workshop's objective was to establish best practice guidelines and complementary approaches to ensure the effectiveness of mechanisms for clarifying the fate of people who are missing as a result of an armed conflict or internal violence. That objective was achieved through discussion of a number of topics and related questions, such as how the mechanisms are influenced by the context, their objectives and the means of obtaining information. The topics were deliberated in three working groups. Each group’s findings and recommendations were then presented by a rapporteur and examined in plenary; the plenary was chaired by a participant. The role of the ICRC, apart from organizing the workshop, was to record the proceedings without attribution. The detailed conclusions and recommendations are set forth in section 2 below. The workshop established that the main obstacles faced by mechanisms for clarifying the fate of missing persons, in all situations under consideration, are political and technical in nature. The type of situation, whether armed conflict or internal violence, should not play a decisive role in determining how to address the issue of missing people. The determining factor is the cause of persons becoming unaccounted for, which could be either lack of official good will leading to crimes and violations or disorganization, or acts of war. Preventive and corrective measures were identified for dealing with those obstacles. They include: the establishment of a central national mechanism whose task is to obtain, manage and transmit to the families all information on the victims in each country; the extension of the mandate of human rights mechanisms to armed groups, given the need for all mechanisms to deal with governmental authorities and armed groups; and efforts to heighten awareness among the authorities and civil society that the issue of missing people has to be resolved to prevent further persons becoming unaccounted for and to ensure that it does not become a legacy of the conflict. All families of missing persons have a need for information. The mechanisms put in place should not neglect individual cases. Depending on the context and the circumstances, the needs for justice, accountability and acknowledgment should be considered simultaneously. The governmental authorities and armed groups bear primary responsibility for providing information on missing people and must be held accountable. Measures such as laws granting amnesty, truth commissions and legislation introducing less severe punishment or granting protection to the perpetrators could prove useful to collect information, provided they made a substantial contribution to establishing the truth; blanket amnesties, however, must not be enacted, and any measures must be applied in accordance with international law. Information from third parties might also be helpful. Last but not least, publication of the names and pictures of missing persons is very important for the families and constitutes a means of exerting pressure on the authorities.

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Most situations require the existence of multiple mechanisms (humanitarian, political, judicial, non-judicial), with bridges between them, to cover the range of needs experienced by families and communities. Mechanisms should not be externally imposed; they have to be independent and impartial in outlook and working methods. The involvement of international organizations give them credibility. Mechanisms bringing the (former) warring parties together are helpful in locating missing persons if a third party is actively involved, but above all if the parties concerned have a clear political will to find missing persons. In case of criminal prosecution the information uncovered in the course of the investigation should be provided to the families, if that information could shed light on the fate of a missing person, in a manner and as soon as compatible with judicial guarantees and efficient prosecution. The establishment of non-judicial mechanisms such as truth commissions should be considered in particular where the judicial system may not be able to handle all cases of missing persons. Mechanisms should be complementary; they should coordinate their activities and exchange information on missing persons, in compliance with the rules governing the protection of personal data and with their respective mandates. At country level, a central database on all missing people should be managed by a single agency working with information collected according to an agreed standard. Mechanisms need to be in constant communication and consultation with all sectors of society. They should systematically clarify their goals and working methods. They should form partnerships with non-governmental organizations. Above all, they should keep the families informed about their work and limitations. However, any direct participation by the families in mechanisms, processes (like exhumation) and information sharing should be dealt with in a sensitive and culturally appropriate manner. Mechanisms have a responsibility not to perpetuate the suffering of the families or give them false hopes. They have to promote the legal, psychological, financial, social and medical services required to meet the families’ needs.

2. Outcome: recommendations and best practices 2.1 How context influences mechanisms 1. The main obstacles faced by mechanisms for clarifying the fate of missing persons are political and technical in nature. They include: A. the lack of political will; B. the country's openness to international influence; C. armed groups that do not respect international law; D. insecurity; E. confusion about responsibility and the chain of command; F. the absence of an efficient mechanism for dealing with cases of missing persons; G. the absence of clear guidelines or of a protocol taking effect immediately someone is reported missing; H. unmarked graves; I. unattended human remains. 2. The workshop agreed that the type of situation, whether armed conflict or internal violence, does not play a decisive role in determining how to address the issue of missing people. The determining factor is the cause of persons becoming unaccounted for, which could be either lack of official good will leading to crimes and violations or disorganization, or acts of war. In any situation, both categories can exist and have then to be addressed accordingly. 3. A number of preventive and corrective measures and actions were identified to remedy the obstacles faced by mechanisms for clarifying the fate of missing persons. A. Such mechanisms can, if they have efficient and effective working methods, help build the political will required to resolve the issue of missing persons. a. It was felt that before armed conflict or internal violence broke out, in time of peace, every country should prepare and train a central national mechanism whose task is to obtain, manage and transmit to the families all information about the victims of such situations. b. Such a mechanism should be established at the latest when armed conflict or internal violence breaks out and in every situation with a large number of missing persons. c. An adequate legal framework should be established with clear guidelines as to what action has to be taken as soon as a person becomes unaccounted forand how to deal with the case in a timely fashion. B. The efficiency of national mechanisms should be reinforced by international mechanisms, in particular during active armed conflicts or internal violence, when national mechanisms might be weakened by their close links to the situation. C. All the governmental and non-governmental, national, regional and international actors involved should exert pressure on governmental authorities and armed groups responsible for solving cases of missing persons. This pressure should be exerted in the course of negotiations and by means of countermeasures compatible with international law in case of non-action. D. All mechanisms should deal not only with governmental authorities but also with armed groups. a. Armed groups should be made aware of their obligations under humanitarian law and of their responsibility regarding violations of the law under the Geneva Conventions and in customary law. b. Human rights mechanisms should be extended to apply to armed groups. c. Measures of persuasion should be used to ensure that armed groups promote operational compliance with their obligations. The impact of stronger measures such as economic sanctions or the freezing of assets should be thoroughly evaluated before they are enacted: they must be effective and should not corner the armed group or indirectly contribute to the development of illegal practices. d. All armed groups should be asked to keep records on all persons who fall into their hands, including those they arrest and detain.

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E. The authorities and civil society should be made aware that the issue of missing persons must be resolved to prevent further persons from becoming unaccounted for and to ensure that it does not become a legacy of the armed conflict or internal violence. F. The influence of civil society should be strengthened. Civil society in the form of public opinion and the media should be mobilized; leaders should be made aware of the problem and of the need for mechanisms, including those established for preventive purposes. a. The population should be made aware of the difficulties and suffering of families of persons unaccounted for. b. Particular efforts should be made to reach those directly affected and to provide them with support. c. The public should be told about the difficulties and obstacles encountered in ascertaining the fate of missing persons. d. The population should be made aware of the preventative measures to be taken so that people do not go missing as a result of disorganization in the civilian, military and security forces or acts of war. G. The issue of missing persons should be systematically put on the international agenda. a. In particular, peace agreements should systematically include specific mechanisms for clarifying the fate of those who are unaccounted for; international, regional and national governmental and non- governmental organizations should actively lobby to that end. b. The families of the missing constitute a pressure group that can keep the issue on the political agenda, and their efforts in that direction should be supported. H. One means of exerting pressure on those responsible for people becoming unaccounted for is the principle that individual cases should be immediately transmitted to both the authorities and to international bodies, unless doing so would put the missing person or the family at risk.

2.2 Focus and objectives of mechanisms for clarifying the fate of missing persons 1. The definition of "family" should be broad and adapted to each cultural context. 2. All families need information on the fate of their missing relative; this need is universal. Other needs, such as accountability and acknowledgement, vary with the context and the situation. 3. In any event, therefore, the mechanisms put in place should not overlook individual cases. The need for justice should be dealt with in parallel. 4. In most cases, several mechanisms are needed to meet all the needs of the families and communities and to prevent further persons from becoming unaccounted for. A. Patterns of violations must be understood and dealt with. They can be brought to light by an examination of individual cases. B. A family may ask that its case not be pursued, because of local circumstances, at certain times, or out of fear for its physical safety. 5. The needs for accountability and acknowledgment can be met by formal judicial procedures or by other types of mechanisms, such as truth commissions, or by a combination of both. 6. Care must be taken not to establish mechanisms that have conflicting results: A. the perpetrators should not be encouraged by the workings of the justice system to destroy evidence and thereby inhibit access to information; B. in some contexts, the majority of victims may not be able to bring their cases before the courts; other routes may therefore have to be pursued, such as the constitution of a truth commission (see 2.4 below); C. mechanisms and their tasks should not be duplicated; D. mechanisms should be encouraged to share information.

2.3 Obtaining information on missing persons 1. The governmental authorities and armed groups bear primary responsibility for providing information on missing persons. A. Criminal procedures should include penalties for non-compliance with court orders pertaining to the disclosure of evidence. The knowing and willful destruction of evidence should be subject to criminal sanction. B. Should the authorities not have all the information required at their disposal, they should establish the necessary mechanisms to obtain that information: they should be obliged to investigate. C. International pressure should be used to obtain information from the authorities. D. The authorities should be held accountable if they inhibit access to information or provide inaccurate information. 2. In interim periods, measures must be taken to protect records and evidence from being destroyed. 3. The criminal investigation methods used to clarify peacetime disappearances could be used to ascertain the fate of people who are unaccounted for as result of armed conflict or internal violence. A. The specific circumstances must nevertheless be taken into account (for example the difference between internal and international conflicts). B. In some contexts, the needs of the prosecution in a criminal case and the needs of the families may conflict. For example, the victims may not want criminal proceedings to take place because of the emotional trauma they cause or because they fear for their safety. C. Even if the decision is made not pursue a criminal case, there should be a procedure for disclosing information. 4. Measures such as laws granting amnesty, truth commissions and legislation introducing less severe punishment or granting protection to the perpetrators can prove useful to collect information on individual cases and on the pattern of violations, provided they make a substantial contribution to establishing the truth. A. Blanket amnesties, however, must not be enacted, and any amnesty measures must be applied in accordance with international law. a. If amnesties are used to encourage the provision of information, they must be conditional on full disclosure and underpinned by a strong judicial system presenting a credible threat of prosecution. b. Certain crimes must not be amnestied. c. Amnesties that are conditional on true, full and in many cases public disclosure should not jeopardize other prosecutions. B. When it comes to matters such as the hiring or rehiring of police officers and prison guards in particular, vetting procedures that are carried out in compliance with the rules of due process may be considered for those involved in crimes related to missing persons. 5. However, mechanisms should endeavour to obtain information on the fate of missing persons from all available sources, in accordance with their methods of work, and not confine themselves to official information from the authorities. Civil society should be active in tracing missing persons. 6. Information from third parties can be very useful if diligently verified. Any third parties providing information should benefit from: A. an established witness protection programme; B. confidentiality procedures that are well defined and effectively implemented. 7. In principle, public processes to obtain information on the fate of missing persons should be promoted. People and organizations should be encouraged to testify. In practice, however, such processes should be balanced with confidential procedures established further to an analysis of the situation and the security environment: A. a witness protection programme might make it possible to obtain more information; B. the same holds true for policies of discretion such as that of the ICRC (which should clarify and communicate its role, goals and practices).

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8. The publication of the missing persons’ names and pictures is very important for the families and constitutes a means of exerting pressure on the authorities. The ICRC and non-governmental organizations should use this tracing method, but with care: A. the authorities should not be allowed to manipulate publication in their interests; B. publication should not put the missing persons or their families in danger. 9. Governmental and non-governmental organizations should not seek to locate missing persons if the families object or if doing so could endanger the missing persons or their families. In such circumstances, they should deal only with the pattern of abuse.

2.4 Format and structure of mechanisms for clarifying the fate of missing persons 1. Most situations require the existence of multiple mechanisms (humanitarian, political, judicial, non-judicial), with bridges between them, to cover the range of needs experienced by families and communities. A. There is no universal mechanism; mechanisms should be oriented towards and adapted to the national context. B. Mechanisms handling the issue of missing persons should deal with governmental authorities and armed groups. C. Mechanisms should not be externally imposed. D. Mechanisms have to be independent and impartial in outlook and working methods. E. The involvement of international organizations lends credibility to the process, even if it is national. F. State reparations and support for the victims/families should be part of the package. G. Each mechanism should have a composition adapted to its aims and include competent people only. H. Each mechanism should be independent; it should not be donor-driven. I. Existing mechanisms for a given situation should coordinate and consult with each other to avoid duplication and contradictions in procedure. J. Memoranda of Understanding between mechanisms should be used to clarify how information is to be shared, how the caseload is to be divided in the event of large-scale disappearances where the regular justice system cannot handle all cases, and how to sort cases according to the seriousness of the crime and the rank of the perpetrator. K. There should be no overarching institution so as to prevent bureaucratization. 2. Mechanisms bringing the (former) warring parties together are helpful in locating missing persons if a third party is actively involved, but above all if the parties concerned have a clear political will to find the missing persons. A. Before establishing such a mechanism, the effectiveness of a multilateral approach should be analysed; in some contexts: a. there should be such formal mechanisms: b. bilateral communication might bring more results; c. bilateral communication during an initial period could lead to the establishment of a formal mechanism. B. No humanitarian organization acting as a third party should become a hostage of or allow its mission to be perverted by politics. C. Such mechanisms should have a built-in review process that allows them to evaluate their effectiveness and warns them when they are being used as a smokescreen to hide the fact that no results are forthcoming or for purposes other than those intended. D. In the absence of political will or when the mechanism is being used as an alibi, the third party should be able to withdraw from the process temporarily. It should be ready, however, to help reactivate the mechanism if the parties show tangible signs of renewed political will. The withdrawal should be the subject of a clear communication to the families and the other actors involved.

3. In case of criminal prosecutions, the information uncovered in the course of the investigation should be provided to the families of persons unaccounted for, if that information could shed light on the fate of a missing person, in a manner and as soon as compatible with judicial guarantees and efficient prosecution. 4. In particular where the regular justice system cannot handle all cases of missing persons, the need for nonjudicial mechanisms such as truth commissions might arise. A. Such mechanisms may be: a. in a better position to elicit information; b. able to act as a mirror during a period of crisis in a society; c. able to further the processes of healing and reconstruction in a post-conflict society. B. Certain conditions should be met if truth commissions are to be effective. For example, the commissions: a. should respect standard principles such as the Principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles, A/RES/48/134 of 20 December 1993); b. should have quasi-judicial powers of investigation (such as the power to subpoena witnesses and information), while ensuring due process; c. should be underpinned by credible threats of prosecution or other sanctions. 5. Mechanisms should be complementary. 6. All mechanisms dealing with the issue of missing persons should coordinate their activities and exchange information, except if such an exchange would jeopardize their access to information. A. Guidelines should be defined for the management of information (data collection, sharing and publishing). B. Those guidelines should include precise rules on the protection of personal data. C. Information should be collected and managed for entry into standard, compatible databases. D. The rules for information sharing should be defined in compliance with the rules on the protection of personal data and the individual mandate of each actor concerned. E. Only trained professionals should handle data. 7. At national/country level, information on missing persons should be centralized in one central country database: A. information on people who are unaccounted for should be collected by national and international humanitarian organizations; B. information should be collected in accordance with an agreed standard; C. organizations collecting information should be properly trained, monitored and held accountable by international organizations; they may seek advice from the ICRC; D. in each country one agency should be responsible for maintaining the central database at secure premises; E. the central database should be designed according to an internationally compatible agreed format; F. the actors concerned should be allowed access to the central database in compliance with the rules on the protection of personal data and the individual mandate of each actor. 8. Mechanisms need to be in constant communication and consultation with all sectors of society. A. They should systematically clarify their goals and working methods. B. They should have non-governmental organizations (NGOs) as partners: a. NGOs can play a crucial watchdog role; b. NGOs can help catalyze victim/family organizations; c. NGOs can help re-integrate the victims and ease society's acceptance of them; d. but mechanisms should take care not to give an artificial boost to such organizations and not to expose them to danger, for example by receiving information from them.

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2.5 The role of families within mechanisms for clarifying the fate of missing persons 1. Mechanisms should keep the families informed: A. about their work and limitations; B. about other mechanisms working on the issue; C. of the responsiveness of the (former) warring parties; D. of the chances of success and the probability of finding the missing person alive, or of finding the remains through exhumation and forensic identification; E. of the chances of obtaining reparations and punishing those responsible. 2. The families’ direct participation in mechanisms, processes (like exhumation) and information sharing should be dealt with in a sensitive and culturally appropriate manner. A. Due care should be taken that the families are not manipulated and do not manipulate or exploit the issue. B. Care should be taken that any information provided is not used for propaganda purposes. C. Mechanisms may withhold information from the families if it is necessary to do so for the mechanism to operate efficiently. 3. Mechanisms should promote a holistic approach to the families. A. They should promote the legal, psychological, financial, social and medical services required to meet the families’ needs. B. They should promote the establishment of a lobby and of alliances that are above political interests or parties. C. They should help the families to overcome political bias and manipulation and to stand united above other political interests or parties in the shared goal of clarifying the fate of the missing persons. 4. Mechanisms have a responsibility not to perpetuate the suffering of the families or to give them false hopes. A. They should consider a person missing as long as that person has not been found or there is no credible evidence of death. B. They may consider that a case has been settled on the basis of circumstantial/credible evidence (even if the person’s fate remains unclear in the eyes of family), without prejudice to the issue of the perpetrators’ accountability and allowing for the possibility that additional elements (e.g. location and identification of the human remains) will be discovered at a later stage. C. They should help the families: a. to accept reality; b. to start the mourning process and put an end to their uncertainty with the necessary professional psychological support; c. to settle their cases from the administrative point of view.

3. Experts' contributions 3.1 By Mr Federico Andreu-Guzmán, Legal Adviser, International Commission of Jurists (ICJ)

The United Nations Working Group on Enforced Disappearances

1. Historical overview

As enforced disappearances became a matter of concern, they prompted an initial reaction on the part of the United Nations. Although they were perceived as a method of repression used by Latin American dictators, enforced disappearances were practiced in other parts of the world as well.(1) The Ad Hoc Working Group on the Situation of Human Rights in Chile(2) did much to focus attention on the practice, but it was the situation in Argentina, where enforced disappearances were widespread and systematic, that brought to light the serious nature of the phenomenon and the urgent need to establish an international mechanism to deal with it. Indeed, the United Nations mechanisms existing at the time were paralysed, or even blocked, as a result of the diplomatic activities of the Argentine military junta.(3)

In 1978, the United Nations General Assembly adopted its first resolution on the issue of enforced disappearances(4), which it had previously examined only from the point of view of country situations.(5) In the 1978 resolution, the General Assembly asked the Member States to cooperate with the United Nations in locating and accounting for missing persons and requested the Commission on Human Rights (hereinafter the Commission) to consider the question of disappeared persons. The Commission did not, however, discuss the matter in 1979, and the United Nations Economic and Social Council renewed the General Assembly’s request as a matter of priority; it also instructed the Subcommission on Prevention of Discrimination and Protection of Minorities (hereinafter the Subcommission) to consider the question and make appropriate recommendations.(6) The Subcommission proposed that it establish an internal group of experts who, through dialogue with the States concerned and the families of the victims, would collect the information required to locate those who had disappeared.(7)

In 1980, the Commission decided to establish the Working Group on Enforced or Involuntary Disappearances (hereinafter the Working Group)(8), but it did not adopt the proposal that the Group be part of the Subcommission. In its resolution, the Commission decided "to establish for a period of one year a working group consisting of five of its members, to serve as experts in their individual capacities, to examine questions relevant to enforced or involuntary disappearances of persons". The Commission subsequently renewed the Group’s mandate. The General Assembly welcomed the establishment of the Group and requested the Commission to continue to study the question of enforced disappearances as a matter of priority and to take any steps it deemed necessary to the pursuit of its work.(9) It also stated that the Group should be enabled to perform its task "effectively and in a humanitarian spirit".

The Group was thus founded with a mandate "to act as a channel of communication between the families of disappeared persons and the Governments concerned, with a view to ensuring that sufficiently documented and clearly identified individual cases are investigated and the whereabouts of the disappeared persons clarified".(10) This was termed a "humanitarian mandate", or one of clarification. The Group’s initial "humanitarian mandate" was gradually expanded. On the one hand, the practice of conducting field missions to countries confronted the Group with the need to go beyond its humanitarian mandate and to examine the phenomenon of enforced disappearances from a more holistic point of view. In both its mission reports and in its reports to the Commission and to the General Assembly, therefore, the Group started to examine the practices, legislation and institutions that made it easier for enforced disappearances to occur. It also started to identify measures of prevention and repression to be implemented by the States in order to eradicate the practice of enforced disappearances. The Group was subsequently asked to ensure that the States complied with their obligations under the Declaration on the Protection of All Persons from Enforced Disappearance (hereinafter the Declaration), adopted in 1992 by the United Nations General Assembly.(11) The Commission also asked the Group to consider, with regard to enforced disappearances, questions relating to impunity, the abduction of the children of parents subjected to enforced disappearance and the protection of human rights activists. The Group’s initial mandate was thus gradually and considerably expanded.

The Group’s establishment constituted a true "revolution" within the United Nations, because it was the first thematic mechanism set up within the framework of the United Nations Human Rights Programme to deal with specific violations of human rights of a particularly serious nature. The Group was not welcomed with open arms by all States, and Argentina in particular contested its establishment.(12)

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2. The Working Group on Enforced or Involuntary Disappearances

The Group is a non-treaty-based mechanism of the United Nations human rights system. Initially, its mandate was renewed by the Commission every year, with the approval of the Economic and Social Council, but since 1992 it has been renewed every three years. The Group is made up of five experts who serve in their individual capacities and are appointed by the Commission Chairperson on the basis of regional representation. In principle, the members must be periodically renewed.(13) In practice, however, this rule has rarely been applied. In twenty years, the Group has had two members from Africa and Latin America, three from Asia and the western group, and only one from the countries of eastern Europe. The Commission put a stop to that situation(14) in 2000, deciding that the Group’s turnover should be accomplished in incremental steps over a three-year transition period. The Group’s composition should therefore be entirely renewed in 2003.(15)

The Group has a secretariat made up of permanent staff of the Office of the United Nations High Commissioner for Human Rights. Paradoxically, although the Group’s mandate has expanded and its tasks grown, its secretariat has been drastically reduced. In its most recent report to the Commission, the Group points out that "the number of its secretariat staff has been dramatically reduced from nine Professional and four General Service staff members to two Professionals, one of them working only half-time, and two part-time General Service staff members".(16)

The Group holds three sessions per year. In its annual reports to the Commission and the General Assembly it sets forth, country by country, all the cases of enforced disappearance submitted to it, the steps taken regarding those cases and its decisions. The reports also contain the Group’s conclusions and recommendations, either with regard to specific countries or in general, its observations on the application of the Declaration and its interpretation of the scope of the Declaration’s provisions.

3. The Group’s mandate and functions

The legal sources of the Group’s mandate are to be found in the Commission’s resolutions. The mandate has been systematized by means of the "methods of work of the Working Group”, which the Group periodically revises.(17)

The Group only handles cases that can be imputed, directly or indirectly, to agents of the State. It uses an operational definition of enforced disappearance taken from the Declaration(18), namely “when persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law".(19)

By virtue of that definition, the Group does not deal with situations of international armed conflict or with abductions and other practices equivalent to or resembling enforced disappearances committed by armed opposition groups or other non-State actors. It considers that enforced disappearances occurring during international armed conflicts come under the competence of the International Committee of the Red Cross.(20) An exceptional derogation was made to this rule for the situation of persons missing on the territory of the former Yugoslavia. Furthermore, although the Group does not consider abductions perpetrated by non-State actors to be part of its "humanitarian mandate", it does deal with the phenomenon during its field missions and in specific recommendations addressed to States.

The Group has two specific mandates: a "humanitarian mandate" to clarify cases of disappearances and a mandate to monitor compliance with and application of the Declaration. Within that framework, it is authorized to carry out field missions on its own initiative, at the invitation of the State concerned or at the request of the Commission. It must in any event have the authorization of the State concerned. a) The humanitarian mandate and the clarification procedure

By virtue of its "humanitarian mandate", the Group aims to "[seek] the whereabouts of disappeared persons"(21) and "to assist families in determining the fate and whereabouts of their missing relatives who, having disappeared, are placed outside the protection of the law".(22) To that end, the Group has a communication procedure. Given that the procedure is humanitarian and not treaty-based, there is no requirement to ratify international instruments or to exhaust internal appeal procedures. The aim of the procedure is to clarify cases of enforced disappearance, to

ascertain what happened to the victim, if possible to put an end to the enforced disappearance and to obtain the victim’s “reappearance”. It is not a quasi-jurisdictional control mechanism. The Group therefore does not endeavour to establish responsibility, either on the part of the State concerned or on that of the perpetrators, for the enforced disappearance or for any other human rights violations committed at the time of the disappearance.

The procedure is based on a system of communications for which the Group has prepared a basic form.(23) Communications can originate from a number of sources: the victim’s family, NGOs, governments, intergovernmental organizations, third parties or, generally speaking, any reliable person. The Group verifies that the communication meets its criteria for admissibility, then transmits the case to the government concerned with a request that the government carry out inquiries and inform the Group of the results. A "dialogue" is thus established between the Group and the government and between the Group and the source of the communication with a view to clarifying the case. The case is now open for as long as the missing person’s whereabouts have not been ascertained.

In its methods of work the Group stipulates the criteria for considering that a case has been clarified and/or for deciding to close it. Basically, clarification occurs when the whereabouts of the disappeared person have been clearly established as a result of investigations by the Government, inquiries by non-governmental organizations, fact-finding missions carried out by the Working Group or by human rights personnel from the United Nations or from any other international organization operating in the field, or the family’s tracing efforts, irrespective of whether the person is alive or dead. When a case has been clarified and the person discovered to have been the victim of fundamental human rights violations (such as extrajudicial execution, torture or arbitrary detention), the Group forwards the case to the relevant Commission mechanism.

The Group can close or discontinue a case without the case having been clarified. It can do so in two situations. In the first, the competent national authority decides that there is a presumption that the missing person has died. The Group will only accept this decision, however, if the relatives and other interested parties concur. In the second, the family decides not to pursue the case any further, or the source is no longer in existence or is unable to follow up the case.

Because the Group examines communications at three annual sessions, an urgent action procedure has been established whereby the Group’s Chairperson can act on cases of enforced disappearances placed before the Group between sessions.

The normal and urgent action procedures are not limited to cases of enforced disappearance. They are also used in cases of intimidation, persecution or reprisals against relatives of missing persons, witnesses to disappearances or their family, members of organizations of relatives and of other non-governmental organizations or individuals concerned with disappearances. In those cases, the Group’s action aims to have the States concerned take the measures necessary to protect the integrity and the fundamental rights of those persons.

Lastly, at the request of the Commission the Group adopted a special process for missing persons in the territory of the former Yugoslavia.(24) The methods of work of the special process, the first special mechanism "of both a thematic and a country-specific nature"(25), were based on those of the Group and involved the expert in charge of the matter, Mr Manfred Nowak, and the Special Rapporteur on the situation of human rights in the territory of the former Yugoslavia. They nevertheless presented certain specificities: they were applied in cases arising from a situation of armed conflict, whether international or non-international, and concerned the problem of "missing people", both civilians and combatants, a broader category than “victims of enforced disappearances". In the absence of support from the international community, Mr Nowak courageously submitted his resignation in 1997 and the special process was suspended.(26) b) Monitoring compliance with the Declaration

Within the framework of its "ultimate goal", namely "the eradication of the phenomenon of enforced or involuntary disappearance through the adoption of appropriate preventive measures"(27), the Group has been entrusted with the task of monitoring "States' compliance with their obligations deriving from the Declaration on the Protection of All Persons from Enforced Disappearance".(28) It must be specified that these measures do not only relate to the prevention but also to the repression of the perpetrators of enforced disappearances and to impunity and, in its words, the "rights to truth, justice and reparation".(29) In the discharge of that mandate, the Group makes general observations on the provisions of the Declaration, specifying their scope and the rights and duties they establish. The

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Group also formulates observations and recommendations for the States concerned with a view to proper implementation of the obligations stemming from the Declaration.

The Group’s mandate to monitor compliance with the Declaration is not limited to general aspects, however, or to country situations. In its methods of work, the Group states that it must also monitor compliance with the obligations stipulated by the Declaration in the context of clarifying "individual cases".(30) Lastly, the Group may, within the framework of this mandate, provide advisory services to the States.

4. Taking stock

From its inception until November 2001, the Group dealt with 49,802 cases, 41,859 of which were still under active consideration as they had not been clarified or discontinued.(31) The outstanding cases concerned 74 countries. As the Group states in its 2002 Report to the Commission, "of the total number of 7,921 cases that the Working Group considers as clarified since the beginning of its activities in 1980, only 2,398 persons were still alive. This is a very small number in comparison with the total of 41,859 outstanding cases on the files of the Working Group”.(32) It would be not only unfair but also naive to judge the Group’s success on the basis of those figures. First, it must be remembered that enforced disappearance is a sui generis violation of human rights whereby people are deprived of their liberty in a manner not recognized by the authorities and, as stated by Niall MacDermot, the human being is transformed into a non-being.(33) It is usually connected with clandestine forms and secret or parallel structures of repression and terror.(34) The passing of time makes it even more difficult to trace a missing person or clarify his fate. In the second place, the Group is non-treaty based and the clarification procedure therefore is limited by its non-binding, voluntary nature.(35) The success of the clarification procedure depends largely on the commitment and political will of the national authorities. The clarification in 2001 of 4,390 cases concerning Sri Lanka, the outcome of a long process undertaken by the Group(36) with the Sri Lankan authorities, the families of the missing people and NGOs, demonstrates how useful the procedure can be if the national authorities are truly committed to solving the problem.

Since its inception, the Group has made major contributions to enhancing the definition and delimiting the scourge of enforced disappearance and the international obligations of States having to deal with it. It has identified the practices, forms of legislation and institutions that favour the use of enforced disappearances and, above all, it has highlighted the grave problem of impunity. In addition, the Group has identified the measures the States should take to prevent enforced disappearances, such as habeas corpus, and to fight and eradicate its practice and impunity.(37) The Group’s observations and recommendations, be they general or country-specific, constitute a body of very useful doctrine for the work of associations of families of missing persons, NGOs and the national authorities.

The Group has made an enormous contribution to the establishment of new international norms on enforced disappearance. It was one of the driving forces behind the Declaration, which it helped the Subcommission draft. More recently, it has backed the process to prepare a draft international convention for the protection of all persons against enforced disappearances (hereinafter the draft convention).(38) Generally speaking, the Group has made a substantial contribution to heightening the international community’s awareness of the scourge of enforced disappearances.

It must nevertheless be acknowledged that in recent years the Group has lost much of its momentum and, very probably, of its effectiveness. There are several reasons for this. a) In the 1990s, numerous countries gradually lost interest in and disengaged from the issue of enforced disappearances. This is partly due to the false perception that enforced disappearance is a Latin American phenomenon connected to the repressive practices of the dictatorships and authoritarian regimes of the 1970s and 1980s. In addition, the adoption of the Rome Statute of the International Criminal Court gave several States the vague impression that the phenomenon of enforced disappearances would be dealt with once and for all.(39) This was very apparent during the Commission’s deliberations on the draft convention. b) In the past 10 years the Group’s effectiveness has been undermined by substantial budget cut-backs and a seriously understaffed secretariat. At the same time, paradoxically, its mandate and tasks have been expanded. The situation is a common one. Indeed, the special rapporteurs and representatives, experts and chairpersons of the Commission’s working groups have stated that the inadequate administrative support provided by the Office of the High Commissioner to those invested with a mandate has become a cause of "major disruptions in their work".(40) The Commission’s mechanisms and procedures, and notably those of the Group, have been weakened, as have

their roles and positions within the system. The restructuring of the Office of the High Commissioner for Human Rights, and the priority accorded to technical assistance services by the first High Commissioner, Mr José Ayala- Lasso (1994-1997), greatly contributed to that process. Although the second High Commissioner, Ms Mary Robinson (1997-2002), put things right and made other administrative arrangements, budget constraints have had a huge impact. In addition, since the World Conference on Human Rights (Vienna, 1993), the Commission’s thematic procedures have doubled in number. Greater recourse is had to extra-budgetary contributions.(41) Given their haphazard nature, however, such voluntary contributions cannot be relied on in the long term to solve a permanent and structural problem. c) One of the factors that has most contributed to the Group’s loss of momentum and weakened action is the process to reform the Commission’s mechanisms launched in the 1990s. During that process, which has not ended, the Group’s work and even its existence have been called into question by several States. Several proposals have been made to abolish the Group, to merge it with the Working Group on Arbitrary Detention or to transform it into a Special Rapporteur. The reform process, compounded by the criticism by certain States of the Group’s activities, has fostered a climate of fear within the Group. It is quite rightly perceived as a sort of Damocles’ sword hanging over the Group, putting it on the defensive and prompting it to downgrade its methods of work and confine itself to its initial mandate. The serious crisis in East Timor (1998-1999) was one dramatic example. The Commission, meeting in extraordinary session in September 1999, asked several thematic mechanisms, including the Group, to conduct missions to East Timor.(42) The thematic mechanisms involved conducted a joint mission, in which the Group decided not to participate(43) on the grounds that the humanitarian nature of its mandate precluded its participation in a joint mission with mechanisms whose mandate was to "accuse". The members of the Group were not unanimous on that position, as the argument invoked was open to question and indeed baseless. The Group did not conduct the mission to East Timor requested by the Commission.

During those years the methods of work were revised.(44) The Group incorporated rules allowing for the discontinuation of cases of enforced disappearance that had not been clarified, for which the source had ceased to exist or which the families did not wish to pursue or for which they had received financial reparation. At the same time, the Group became less rigorous in dealing with the cases submitted to it and applying the classic criteria for clarification, and in its communications with the victims’ families and the sources of the cases it handled. For example, it declared a case of 30 missing people in Colombia to be clarified simply on the basis of a press release from a paramilitary group announcing the victims’ "execution" and the discovery of the bodies of nine of the victims.(45)

The NGOs active on the issue of enforced disappearance, notably FEDEFAM (the Latin American Federation of Associations of Relatives of Detained-Disappeared) and Amnesty International, did a number of things to revitalize the Group and stop it from slipping further. One of those initiatives, the most successful, comprised several meetings with the Group to straighten out its methods of work and its practice.(46) During those meetings, the NGOs pointed out that the source of the information could be silent or the family wish to stop the procedure because of threats or acts of intimidation. They also pointed out that the Group should introduce certain safeguards in its methods of work before it discontinued cases on the presumption of death or financial reparation. The Group adopted many of these contributions when it revised its methods of work in 2001, and its practice has gradually improved. d) The fact that there was no turnover in the Group’s membership also contributed to the situation. On the whole, however, that factor is given too much play, for while it is true that some members were notable for their lack of commitment and their absenteeism, others continue to perform their duties. Reducing the Group’s problems to that one factor could lead to a mistaken diagnosis and incomplete solutions. e) One of the undeniable consequences of the above two factors is the progressive erosion in the Group’s credibility among the NGOs and States interested in preserving the mechanism. The result in recent years has been a decrease in the number of cases submitted. The Group interprets this decline “as a positive sign" that the number of disappearances is falling off(47), an interpretation that is obviously open to doubt.

5. Outlook

The need for the Group’s continued existence, for it to uphold its mandate to clarify cases and monitor compliance with the Declaration, are not open to doubt. What the Group must do, however, is recover its effectiveness and momentum. To that end a number of measures could be adopted, the following of which could be implemented in the short term:

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a) the Group’s methods of work could be revised, in consultation with the NGOs, in order to incorporate safeguards vis-à-vis the missing and their families and to ensure follow-up of States’ compliance with their obligations under the Declaration, in particular with regard to reparations and legal prosecution of the perpetrators of enforced disappearances; b) a mechanism or procedure could be established to penalize absenteeism among the Group’s members, said mechanism possibly resulting in the revocation of the expert’s mandate before the end of the three-year term of office; c) communication with NGOs and the relatives of missing persons could be enhanced; d) greater administrative support could be provided and the number of secretariat staff increased; e) the Group’s regular budget could be increased.

Notes

1. For example, enforced disappearances occurred in the 1970s in Cyprus, Ethiopia, Indonesia and the Philippines. Even earlier, for example during the war in Algeria, the French armed forces had recourse to the practice. 2. The Working Group was established with the framework of the 1503 procedure (resolution 1503 (XXVIII) of 13 August 1971). 3. See María Luisa Bartolomei, Gross and Massive Violations of Human Rights in Argentina, 1976-1983, An Analysis of the Procedure under ECOSOC Resolution 1503, Juristförlaget i Lund, Sweden, 1994. 4. Resolution 33/173, "Disappeared persons", 20 December 1978. 5. As, for example, Cyprus and Chile. 6. Economic and Social Council resolution 1979/38 of 10 May 1979. 7. Subcommission on Prevention of Discrimination and Protection of Minorities resolution 5 B (XXXII) of 5 September 1979. 8. Resolution 20 (XXXVI), "Question of missing and disappeared persons", 29 February 1980. 9. Resolution 35/193, "Question of enforced of involuntary disappearances", of 15 December 1980. 10. United Nations document E/CN.4/1999/62, 28 December 1998, para. 2. 11. Resolution 47/133 of 18 December 1992. 12. In this respect, see the exchange between the Mission of Argentina to the United Nations and the Chairperson of the Working Group on Enforced or Involuntary Disappearances (United Nations document E/CN.4/1435 of 22 January 1981, annexes IX, X, XI and XII). 13. The periods established for the renewal of members have varied throughout the Group’s existence, but in recent years the Commission has decided that an expert may serve no longer than six years. 14. Which is the same, although to a lesser degree, for other thematic mechanisms. 15. Commission on Human Rights decision 2000/109, adopted on 26 April 2000. 16. United Nations document E/CN.4/2002/79, 18 January 2002, para. 367. 17. The latest were adopted on 14 November 2001 and are appended as Annex I to document E/CN.4/2002/79. 18. Third preambular paragraph of the Declaration. 19. Rule 2, "Definition", Revised methods of work of the Working Group (E/CN.4/2002/79, Annex I). 20. Rule 5, "International armed conflicts", ibid. 21. United Nations document E/CN.4/1999/62 of 28 December 1998, para. 20. 22. Rule 3, “Clarifications”, Revised methods of work of the Working Group, op.cit. 23. To deal with a case, the Group needs the following minimum elements of information: the full name of the missing person; the date of disappearance; the place of arrest or abduction or where the missing person was last seen; information on the parties assumed to have carried out the arrest or abduction; information on the steps taken by the family or other persons to locate the missing person; the identity of the communication’s source (the name and address remain confidential if so requested). 24. Commission on Human Rights resolutions 1994/72, 1995/35 and 1996/71. 25. United Nations document E/CN.4/1995/37, 12 January 1995, para. 10. 26. Commission on Human Rights resolution 1997/57, 15 April 1997, paras 33 to 39. 27. United Nations document E/CN.4/2002/79, Executive summary. 28. United Nations document E/CN.4/1999/62, 28 December 1998, para. 2. 29. Rule 4, “Declaration on the Protection of All Persons from Enforced or Involuntary Disappearance”, Revised methods of work of the Working Group, op. cit. 30. Ibid. 31. United Nations document E/CN.4/2002/79, 18 January 2002, para. 3. 32. Ibid., para. 362.

33. Le Refus de l'oubli - la politique de disparition forcée de personnes - Colloque de Paris, January - February 1981, Ed. Berger-Levrault, Paris, 1981, p. 35. 34. Federico Andreu-Guzmán, "The Draft International Convention on the Protection of All Persons from Enforced Disappearance”, in International Commission of Jurists – The Review, No. 62-63, Geneva, July 2001, p. 76. 35. This is characteristic not only of the Group’s clarification procedure but also of all the Commission’s thematic mechanisms. 36. During the process the Group conducted three field missions to Sri Lanka in the 1990s. 37. Wilder Tayler, "Background to the Elaboration of the Draft International Convention on the Protection of All Persons from Enforced Disappearance", in International Commission of Jurists – The Review, op. cit., p. 64. 38. The draft was prepared by the Subcommission, largely on the basis of the body of doctrine established by the Group. The Group took part in several seminars organized by NGOs to support the Subcommission’s expert in charge of drafting the text. The draft may be found in United Nations document E/CN.4/Sub.2/1998/19, Annex I. With regard to the Group’s contribution, see inter alia United Nations documents E/CN.4/2001/68 (Annex III) and E/CN.4/2002/79, paras 24-26 and 364. 39. The Rome Statute will enable an international court to punish enforced disappearances, but only when they are committed "as part of a widespread or systematic attack directed against any civilian population", i.e. when they are crimes against humanity. But the Rome Statute does nothing to prevent or repress enforced disappearances when there is no crime against humanity, i.e. when they are not committed "as part of a widespread or systematic attack against any civilian population". By its very nature, the Rome Statute does not broach the problem of humanitarian clarification of cases. 40. “Report of the meeting of special rapporteurs/representatives, experts and chairpersons of working groups of the special procedures of the Commission on Human Rights and of the advisory services programme", United Nations document E/CN.4/2002/14, 11 September 2001, para. 76. 41. Office of the High Commissioner for Human Rights, Annual appeal 2001 - Overview of activities and financial requirements, p. 26. 42. Commission on Human Rights resolution 1999/S-4/1, para. 7. Besides the Group, the following mechanisms were involved: the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Representative of the Secretary-General on Internally Displaced Persons; the Special Rapporteur on the question of torture; and the Special Rapporteur on Violence against Women. 43. See "Situation of human rights in East Timor - Note by the Secretary-General", United Nations document E/CN.4/2000/115, 20 December 1999. 44. See "Methods of work - Rev.2", appended to United Nations document E/CN.4/1996/38. 45. Following meetings with representatives of the Latin American Federation of Associations of Relatives of Detained-Disappeared (FEDEFAM), the Group changed its mind and re-opened the procedure. 46. See United Nations documents: E/CN.4/1998/43, 12 January 1998, paras 17-20; E/CN.4/1999/62, 28 December 1998, paras 19-23; E/CN.4/2000/64, 21 December 1999, paras 19-23; and E/CN.4/2001/68, 18 December 2000, paras 21-23. 47. United Nations document E/CN.4/2002/79, 18 January 2002, para. 3.

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3.2 By Mr. Kamran Arif, Vice-Chairman, Human Rights Commission of Pakistan (Pakistan)

PAKISTAN SITUATION

1. INTRODUCTION

Although it has not received sufficient attention, incidence of ‘disappearances’ have occurred sporadically in the country, right from time of its creation. As yet, there is no Government agency or department with the responsibility for keeping record or tracking those reported missing. No Non-Governmental Organization is providing this service on a regular basis.

Human Rights Commission of Pakistan (HRCP) is an independent Non-Governmental Organization that monitors and works for the improvement of the Human Rights situation in the country. HRCP has presence in most of the districts of the Country, where HRCP either has a correspondent or a full fledged ‘Core Group’

HRCP reports all Human Rights violations, which are published in its various publications: the monthly Jahd-e-Haq, the Quarterly HRCP Newsletter and the Yearly State of Human Rights In Pakistan. Jahd-e-Haq is published simultaneously in five local languages, while the other two publications are in English. Informations and reports regarding disappearance, kidnappings etc. are published in these publications.

HRCP also investigates serious Human Rights violations and patterns of gross Human Rights violations in the Country. HRCP gathered information of those missing in Afghanistan by conducting a survey of the three districts in Pakistani from which most of the detainees hailed.

In Section 2 will look at the present Legislation and State Mechanisms regarding persons who are reported missing. In Section 3, will briefly numerate the various kinds of disappearances reported in Pakistan in the recent past. In section 4 efforts by the HRCP will be considered.

2. LEGISLATION AND GOVERNMENTAL MECHANISMS

There are no special laws or procedure dealing with reports of persons missing either in ordinary situation or in the times of civil disturbances in Pakistan.

Under the general law, report of a person gone missing is registered at the local police station, where the police might conduct a preliminary investigation, a case of kidnapping might be registered against unknown persons. In practice it has been observed that police generally show great reluctance to lodge a report.

There is no centralized institution or a Data-Base maintained by the Government, where the information regarding the disappearance and other details of the person gone missing is stored. Which leads to problems in identification when identified dead bodies are recovered. At times such bodies are buried without identification.

There are also no Non-Governmental Organizations providing this service on a regular basis.

3. DISAPPEARANCES

There have been basically four types of disappearances in reported in Pakistan. Afghans during the Afghan war in the 80s and 90s (Sec3.1), during the Karachi Unrest (Sec 3.2), with the Non-Governmental Fighting Groups (Sec 3.3), and during the attack on the Taliban in Afghanistan (Sec 3.4)

War in the neighbouring Afghanistan, unrest in the Kashmir region have resulted in Pakistanis reported missing (in conflict situations) even though there was no conflict or civil unrest inside Pakistan territory, nor was Pakistan at war with any country.

However, during the civil unrest in Karachi in the early and mid 90s there were a number of persons reported missing.

3.1 AFGHAN WAR IN THE 80s and 90s

Soviet Union invaded Afghanistan in the late 70’s. Resistance to the Soviet invasion came in the form of seven groups of fighters (called Mujahideen) that received funding from various sources but were mostly based in Pakistan. The groups of mujahideen based in Pakistan received full support from the Pakistan Government.

The ‘groups’ apart from fighting in Afghanistan, were ruthless in crushing dissent amongst the Afghan Refugees in Pakistan. During the entire period of Afghan war the ‘groups’ murdered a number of Afghans that in the view of the groups were working contrary to their interests. During the same period a number of Afghan refugees went missing. Their number is in thousands. According to one source nearly 600 Afghans have been reported missing form the Pakistan City of Quetta alone.

Some of the disappearances left little doubt as to who was responsible. In 1994 Mr. Shinzae an Afghan Journalist severally criticized Gul Badin Hikmatyar in meeting in a Peshawar Hotel, Hikmatyars supporters openly threatened him on the spot, the threats were recorded on video. A few days later Mr. Shinzae disappeared.

Similarly Mr. Jamiatullah Jalal, ideologue of RAWA disappeared form his Peshawar Residence in the year 1995.

3.2 THE KARACHI UNREST

During the early and mid 90s there was severe civil unrest in the Karachi, Pakistan’s largest city and capital of the Sind Province. One political/ethnic group claimed that a lot of its members had gone missing. There were allegations that they had been picked up by the security/ intelligence agencies.

A Senate Committee was later formed to trace the persons missing. The Senate Committee could do no better then visit the various jails and detention centers. In all it was only able to trace 5 or 6 of those reported missing.

3.3 NON GOVERNMENTAL FIGHTING GROUPS

Pakistan also has a number of Non-Governmental Fighting Groups, who are fighting a religious war in the ‘disputed’ Kashmir region. The membership of such organization is voluntary. However the ‘volunteers’ at times do not inform their families, which results in intense anguish in the family. There have been reports of juveniles volunteering without information to or consent of their parents.

There is also no reliable means of communications with the families and information of their well being.

3.4 PAKISTANI’S DETAINED IN AFGHANISTAN

After the events of September 11, 2001, when it became clear that US planned to attacks Afghanistan, about thousand Pakistanis, mostly from the Malakand and Dir regions of the North West Frontier Province of Pakistan volunteered to fight any aggression on Afghanistan. These ‘volunteers’ were encouraged by the Sufi Mohammad and his organization the TNSM. Some of these ‘volunteers’ were armed with nothing more then shotguns, swords and sticks.

When the attacks started Sufi Mohammad was amongst the first to rush back to Pakistan. An unknown number of these Pakistanis were killed, an unknown number taken captive by the Northern Alliance and local war lords, some were able to return home.

No one knows for certain how many people had gone to defend Afghanistan. How many returned, how many died (and their identity) and how many are in still captivity in and where in Afghanistan are they detained and their identity.

HRCP has received information that even after the end of the conflict foreign visitors have been detained by the Afghan Government and local war lords with no information of any kind to the families.

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4. HRCP PROGRAM

Human Rights Commission of Pakistan reports all violations of Human Rights in the Country in its publications. HRCP also investigates serious Human Rights violations and patterns of gross Human Rights Violations in the Country.

Although HRCP does not have a comprehensive program, covering the whole country, to record details about those missing and store it in a central accessible data base. HRCP does receive, publish and keep record of all disappearences.

4.1 SURVEY OF PAKISTANIS DETAINED IN AFGHANISTAN.

As stated earlier, HRCP investigates serious and patterns of Human Rights Violations. The only time that HRCP dealt with missing persons on a large scale was with the Pakistanis detained in Afghanistan (Sec 3.4 above).

There was no official record of how many people had crossed the border during the relevant period into Afghanistan let alone their identity. All information that was available was that the missing were mostly from three districts of the North West Frontier Province.

The missing persons had crossed over into a sovereign country for waging a war and had thus violated a number of Pakistan Laws. Also due to the change in circumstances, the Government of Pakistan had had little sympathy for friends of the Taliban. Thus, getting information about those missing from their families was not easy.

HRCP tried to collect the information in the three districts though its Core Groups. The members being local and known in the area (for having no connection with the Government) were trusted by the local people. And soon HRCP started receiving information, names, parentage and domicile (permanent addresses) of the missing.

Later even the religious organizations that were instrumental in sent these persons to Afghanistan gave us the details that they had. In all we received such information of about 1200 persons.

All the families wanted to know about the well being of their loved ones. Most had not heard from them in months and did not know whether they were died or alive. Again with the help of the local Core Groups, members and volunteers HRCP tried to locate persons who had returned from Afghanistan, to find out were most of the people were located.

HRCP also informed families of all the missing to contact ICRC so that ICRC’s tracing service could be used. In some cases HRCP also facilitated their contacting ICRC.

Realizing that there must have been many others missing in Afghanistan whose details could not be collected by the HRCP teams, we got the news of the compilation of the lists published in local news papers so that those who may so desire, can contact us. However, we received only one or two responses to that.

Compilation of the list created another problem. The names and details had been given to us in confidence. Those reported missing had broken the law in both Afghanistan and Pakistan. Who does the HRCP share these details with.

A team of HRCP visited Afghanistan in Jan-Feb 2002, as expected the Afghan Government denied the team access to any place of detention. The Afghan Government claimed that it had no way of confirming the number and the identity of those killed in conflict. The Interior Ministry agreed to give the names of those in Government detention, but later no such details were provided.

HRCP did not share the list with the Afghan Government, for the reason that some of the persons reported missing might still be at large and the list might prove evidence as against them. The list was however shared with the ICRC. The team was given assurances that all those cleared by of terrorist charges or close relations with the Taliban regime would be released.

When the months later a few detainees released, they were handed over to the Government of Pakistan who were immediately taken into custody. HRCP was denied access to them, so we had little way of knowing how many were released and details regarding the well being or death of others on our list so that their families could be informed.

Some of the others who made it on their own (most released by warlords after paying ransoms) went into hiding for the fear of arrest and prosecution in Pakistan. Even when we received information of their return they refused to cooperate.

Mass graves are now being discovered, having no physical or medical details there little chances of verifying those who have died. According one source there are still over a thousand Pakistanis detained in Afghan prisons.

An organization like ours does not have the resources or the expertise to undertake field visits to find the missing persons or verify their deaths. The best and only course is to share the collected information and cooperate with organizations like the ICRC to achieve the goal.

5. CONCLUSION

For any mechanism for people unaccounted for, it is essential that it should cover the whole of the country. The details should be obtained from a variety of sources, including information from families and friends, the organizations responsible (if any) the governments records, witnesses of sightings etc. or companions who have returned and field surveys. All details should be cross checked for authenticity.

All such details should be stored in a central Data-Base with restricted access. The Data Base should also contain physical details of the person missing. The data base should be periodically up dated regularly.

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3.3 By Dr Fernando Iregui Camelo, Technical Secretary, Comisión de Búsqueda de Personas Desaparecidas, Defensoria del Pueblo (Colombia)

WORK OF THE NATIONAL COMMISSION OF SEARCH OF MISSING PEOPLE

Notice: The opinions and concepts contained in the following document are the author`s only responsibility and they don’t involve neither the official position of People`s Defense Counsel Office or The National Comission of Searching of Missing People.

In the year 2000 the congress of the republic of Colombia sent the law 589 by means of the one which typified hurt humanity's crimes that didn't have expressed consecration in our legislation, such as the torture, the genocide, the disappearance and the forced displacement of people. Of agreement with the first articulates you of the mentioned law, the behavior is made by “the particular person who belonging to an armed group out of the law” subjects another person to privation of its freedom or whichever it is the form followed by its concealment and the negative to recognize this privation or to give information on its whereabouts or taking him away from the law shelter.

This description has to different relation from the Interamerican Commission about people's forced disappearance, whose its second article considers ace forced disappearance “the privation of the liberty to one or people lives in any of its forms, committed by state agents, people or groups who act with the authorization or support of the government, continued by (eleven live) lacking of information or the negative to recognize this privation of liberty or to give information on its whereabouts or taking him away from the law shelter; with which, the exercise of the legal resources is impeded and halted the pertinent procedural guarantees.

In Colombia the second item of the 589 law includes same penalty without caring if the one that makes the crime is an particular person or the government's agent. That is able to be explained because the forced disappearance of people has been traditionally considered to crime of the govern because its practice and peak there is been associated to activities deployed by authorities against people or groups who it you use to practice dissidence, insurgence or opposition in an atmosphere of dictatorial régime, very common in our continent during the second half of the 20 century and up to the 80s. The explanation that dog be rehearsed for the way this norm in Colombia has turned when considering like it activates fellow or responsible of the forced disappearance to person who being part of an armed group out of law, is related with the validity of a conflict of but of 4 decades that not alone he/she doesn't seem not to have solution in the short term, but rather it has reached inadmissible levels of degradation and cruelty. In accordance with some statistics the participation of the government's agents in cases of forced disappearances has diminished at the same time that, that of the illegal armed groups has been increased, so much guerrillas as paramilitary who appeal to this practices in an open way without, until the moment there has been an effective answer from the government so that the responsible ones are sanctioned.

One of the mechanisms foreseen in the law 589 of 2000, that looks for to attack this phenomenon, has been the creation of the National Commission of Search of Missing People. This commission is integrated by the following officials.

• The District attorney • The Procurator • The people’s defender • Program of human rights of the Presidency of the Republic • Ministry of the Defense • National committee of Search of Missing People • Department of Urgent Search • Statistics on disappearance • Procedures of the entities • Separation • Lack of Resources • Armed conflict • Attention to those Affected and to their relatives • Creation of a specialized unit

Always in accordance with the law, the National Commission of Search of Missing people, there is the purpose of “to support and to promote the investigation of the crime of forced disappearance, to design, to evaluates, to support the execution of plans of missing people's search and to conform work groups for specific cases.

The work of the commission should be done with full respect of the constitutional competencies and of the abilities of the procedural fellows, as notices the own law. The commission is presided over by people's Defender who has delegated its representation in Mr. Medina, delegated by the Civic Participation and the Director of the Department of Complaints.

This 589 law has faced serious obstacles that have prevented it to fulfill its purposes:

1. Lack of institutional coordination 2. Crisis in the administration of justice 3. Increase of the armed conflict 4. Inadequacy of resources 5. Absence of political will 6. Necessity of an integral focus to solve the cases

It is not of the case to enter to consider with too much depth each one of the mentioned aspects, however it is convenient to explain shortly each one of them.

1. LACK OF INSTITUTIONAL CORDINATION

Several entities are it involves when the an accusation is presented by the person's of the disappearance one. The general fiscally takes charge of individualizing the responsible ones to accuse them before the judges, The institute of legal medicine carries out identification of the dead bodies so much known as without identifying and the general attorney's office begins investigations against the public servants that presumably could be implied; and the people’s Defender carries out administrations of humanitarian character.

On the other hand the non governmental organizations represent the victim’s relatives and they carry out administrations before the authorities with the purpose of impelling the search of the missing persons. For the execution of these activities the mentioned entities possess procedures, formats, and diverse purposes and their performance is by such purposes determined

Besides the above-mentioned, the information gathered by each one of these entities is not always the same one, because each entity decides what prove to practice and what information to gather, for what an exchange of this information doesn't exist among entities and rather, it seems that each one is trying to maintain for itself the information in its power zealously.

Neither the institutional coordination exists, because it is usual that each marries it corresponds for allotment to different investigators and although all make part of the organization of the fiscally organization there is not contact among them. It is clear that this communication among the entities is necessary, even more when exist elements to conclude a existent relationship between the different cases, such as when members of one family or organization are killed or disappeared under different situations, places and dates.

It is as well as some tests can be transferred from a process to other, because in a specific moment there are indications that lead to the solution of different cases with just one test. In spite of everything this, communication channels have not settled down neither internal or among the institutions so that there is fluency in the exchange of information that interests to but of an entity.

2. CRISIS IN THE ADMINISTRATION OF JUSTICE

The dimensions of the problem of the missing persons seem to have overflowed the technical, logistic and human capacity of the investigation and control entities. The procedures are slow, excessively formal, the technical elements insufficient, the same object of the investigation is centered more in the individualization of the responsible ones than in the victims` location, which is assumed as an accessory object.

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The congestion of the judicial offices is another of the justifications for the delay in the march of the investigations. Although the terms are not very long, the consequence of the congestion is that finally all they turn out to be very short to advance all the corresponding verifications and the cases finish filed. The investigation runs same luck. The result of all this is the impunity, and the impunity acts as stimulant that incites the reiteration of this practices by the fellows and armed groups outside of the law. This way, the impunity and the phenomenon of the forced disappearance, have conformed a vicious circle which gets feedback from itself and that makes it harder to overcome or defeat.

3. INCREASE OF THE CONFLICT

Although it is accused to the state of having been tolerant with the paramilitary groups, another so much of these attitude can also be said in front of the left guerrillas that have come growing during a lot of time and enlarging the number of areas under their control. Without finding bigger resistance on the part of the armed forces, the permanent abuses on the part of the guerrilla like the kidnapping, the extortion, and other practices, they have been justified by the necessity of those to finance the rebellion that they said to be representatives. This also led to the formation of the self-defense groups, since with the peak of the drug traffic and the political omission at guessed right on its part, facilitated the formation of the called paramilitary groups, as additional actors of the conflict characterized by the violence of their incursions.

The growth of the paramilitary groups of carries to an extreme right and the left guerrillas have made scarce the conflict that now is developed through fighting of positions to consolidates and to enlarge the territorial domain in their influence areas. In this fight of paramilitary and guerrillas, both groups incur in massive violations of the humanitarian international right, attacking, displacing and murdering the civil population or causing the forced disappearance of people or groups.

4. INADEQUACY OF RESOURCES

The lack of enough resources to adopt suitable measures is the main obstacle with which they are who look for to take the reformations that the system of administration of justice requires ahead.

Some of the problems and solution proposals that have been outlined in the Commission find in the point of the shortage of resources to limitation to consider. In the first place, consent exists about the necessity of creating a special unit in the Office in charge of investigating the cases of forced disappearance. At the present cheats some of those you marry it plows in the office of the Unit against the Extortion and the Kidnapping, or in hands of fiscal ordinary, when it is evident that the characteristics of the forced disappearance plows diverse of those of the kidnapping for the motivations, the type of victims, the it activates fellows of the crime and, certainly, for the results and goods that it affects. From the quantitative point of view, the fact that it is considered that in Colombia disappears 1.45 people on the average to newspaper, it justifies the implementation of this special unit. To achieve this, it is necessary to have the resources that allow to hire personal highly specialized, to endow it of appropriate technical tools, to offer them training, to establish communications flowed in net, if one wants that the results are tangible.

The groups of forensic technicians of the Institute of Legal Medicine and of the Technical Body of Investigation of the General Office don't have the necessary technical elements for an appropriate investigation task. An approximate fact of 8000 cases of dead bodies exists whose identity has not settled down for Legal Medicine, among which can be solved some of the cases of forced disappearance that only in 2001 has reached the number of 1283 victims, according to data of the Association of Family of Missing Detainees, (ASFADDES).

The identification work requires of specialized laboratories and of technical units endowed with elements for the prosecution of the human remains, the digital comparing, the facial reconstruction, among other aspects. At the moment the Institute of Legal medicine bill with 24 sectionals around the country, but these sectionals are located in capital or intermediate cities, what leaves on the outside from the system to a considerable number of little towns in whose rural areas are the graves, where the victims are buried. In spite of the fact that the sectional ones have jurisdiction on the municipalities bordering, the truth is that the technicians don't have access to the places where are the human remains because they are inaccessible for the distance, the geographical conditions, because the area is under illegal armed groups control, who impede the access, or for the conjunction of all those mentioned.

Norms that impose the duty of remitting copy of the autopsy records exist or of inspection of the dead bodies practiced by the rural doctors or the authorities that are responsible for these diligences. However, this norm is not continued with rigor, the municipalities don't have medical personnel and specialized forensic surgeon, there are not laboratory elements and of handling of evidences to carry out a field work appropriate in the place of the facts and, in short, the conditions of public order impede the investigation task of the authorities.

Due to the written work conditions, the sectional of Legal Medicine don't receive the complete and necessary information for their work of identification of the dead bodies. Besides that, the fact that the same sectionals are not connected in net to confront, to exchange and to carry out the comparing of the information makes it harsher .

People's Defender has exposed in the Commission that it is necessary to implement a SYSTEM, a net that connects to the diverse institutions involved in the work of missing people's search, for the handling of the information and to unify approaches and procedures so that to impede the waste of time of different institutions in similar works and to center its activity in clearly defined, autonomous objectives but directed to the common objective of finding the missing person.

This exhibition doesn't drain the inconveniences that should face the institutions that intervene in the search of people but it illustrates in a graphic way the obstacles that are presented as regards resources to settle nets, to systematize the information, to save technically the investigations, among other aspects. This emptiness reduces the probabilities of success of the investigations, that, instead of it, increases the impunity and maintains the conditions so that the disappearances continue affecting the Colombians.

5. ABSENCE OF POLITICAL WILL

This absence of political will to fight against the phenomenon of the forced disappearance doesn't only refer to the nonexistence or precariousness of the central government's politicians but to other factors like the institutional zeal, the lack of coordination inter institutional and the absence of objectives around to common policy of marries ` resolution.

In development of their legal attributions, the National Commission of Search has designated work groups for specific cases, with the purpose of to support and to promote the investigation and to impel it by means of the pertinent recommendations. In spite of the fact that the General Office makes part of the Commission, it has been opposed to allow to the mentioned groups to consult directly the files and have only recognized their access rights to the information, to these cases, just to those given by the competent district attorneys. It is argued that the Commission is not subject procedural or takes part in the process authorized by the law and, in consequence, it cannot know the files.

The Commission introduced a regulation project to the National Government to regulate the activities and the internal operation of it.

The Government, leaning on in the rule of the reservation of the investigations has objected the project and it has not sent the corresponding ordinance.

Lately, the Commission elaborated a bill to develop the ”Urgent Search mechanism”, which is consecrated in the 13 article of the 589 law of 2000. The bill looked for to accentuate the procedure of the person's real search, consecrating the duty of the judges and fiscal of moving and to carry out all the necessary actions that were pertinent in a direct and immediate way. It was looked for to leave the excessively formal mark that has characterized the investigations and that, for the same matter, didn't drive to satisfactory results.

However, the project was filed by the Congress of the Republic, after having been approved in the initial debates in the Senate. The absence of political will can also be considered like a consequence of a cause that is in the problem’s beginning: the absence of political power. A brief example will be good to illustrate this statement.

The kidnapping has affected from a serious way to the Colombians, and mainly, to the middle classes and high, specifically to members of families or important managerial groups. These Population's segments have more specific power and they can mobilize in a more effectively way to the opinion, to the media and the Congress so that it adopts measures against the kidnappers. Thanks to their capacity, it was possible to transform into law an initiative

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“popular” that consecrated more drastic measures against the kidnappers. Today the fiscally has a specialized unit for the cases of kidnapping and the police has a special group denominated GAULA in charge of investigating the cases of kidnapping.

The marries of the forced disappearances is different. The victims in general plows defenders of the human rights, union, communal leaders, members of ONG`s, reinserted, social activists, in short, people whose activities plows assimilated by the illegal armed groups, and even for the institutional public I forced, to subversive activities, although the left groups also make people's forced disappearances that develop, according to them, activities against right-wing groups.

Those affected many times lack the specific political power to mobilize in their favor the opinion and the public powers so that they adopt effective measures against the crime of people's forced disappearance. Because of that, the disappearance, in spite of the graveness of their social and political consequences, and to the dimensions that has acquired, it continues having a low registration in the media and, in consequence, scarce impact in the opinion that is in its turn the compass that guides the political action.

On the other hand, if the political will of a government regarding a certain problem is measured by the public policy implemented to solve that problem and for the resources that it mobilizes to make effective those measures, the evidence is certainly that in Colombia there is not the enough political will to attack frontally the phenomenon. Government Plans exist, and in the interior Ministry, to give protection before this situation to people potentially in risk of being attacked or disappeared by reason of their social or political activities, but this is not an integral policy of attention against that phenomenon.

It is necessary to impel political of training to the officials, to design areas or specialized dependences, to assign resources for units of criminal investigation, including laboratories with appropriate technologies, and also, to advance an aggressive politics of sensitization that drives to the public rejection of hurt humanity's crime, so that those responsible for these facts don't find a fertile road above the public indifference to continue ahead with this practice.

The exposed points neither drain the problem or they have the pretense of a rigorous analysis about the factors that have impacted in the growth and reproduction of the forced disappearance of people in Colombia. It, just Picks up some of the points that this official has had opportunity to assimilate along his experience in the National Commission of Search of Missing People and because they are considered of interest to illustrate the context in which this problem has developed.

6. CONCLUSION: NECESSITY OF AN INTEGRAL FOCUS to SOLVE THE CASES

The enunciation of the inconveniences that presents the solution of the cases of missing people's search should not be foundation to conclude that it has not been advanced in the design of policies and strategies to combat the phenomenon.

It can be said that those are not enough, neither they have been effective. However, an additional problem has not been considered does exist. It is the focus with base in which the decisions and the procedures are adopted. When the forensic processes are revised, certain rigor is appreciated in developing conducive investigations to the dead bodies identification: location of the bodies, field work, treatment of remains and of evidences in the place, laboratory work, analysis and exams of varied nature. They are processes in certain way focused to the solution of the cases in what the person is found DEAD.

It is necessary to make clear that the base to be followed when a person is victim of forced disappearance, is to find him/her ALIVE. For this purpose, the law 589 of 2000 orders to the organisms of security of the State and of judicial police, to take a net connected systematized public registration regarding to captured people's in a wide national level or detainees, and it imposes the permanent obligation in charge of the State of carrying out all the actions oriented to establish the victim's whereabouts and to inform to his/her relatives. The same law designed the Mechanism of Urgent Search so that the judges and district attorneys had an effective tool for the search and the missing person's location.

The search Mechanism is a brief and informal procedure so that the judicial authority carries out all the necessary diligences, so much in connection with authorities and public dependence, like with matters and places of private

character, to get the person's whereabouts. It is trying to promote that the official's material activity (literally) is leaves their office to look for the person in any place where, according to the evidence or the tests, it could be.

Unfortunately these measures have not thrown the results that we have expected from them. It exists a secret inventory of properties and vehicles in charge of organisms of security that don't figure in official registrations or to which one doesn't have access by the control organisms and judicial authorities. The housings or apartments are taken in lease to name of third, the vehicles traffic without plates or with adulterated ones, and with tinted glasses, the security agents are not identified, the public registrations of detainees have not been widely implemented. The Mechanism of Search neither has been applied in due form, and in some events, the applications by which it is activated plows subjected to the bureaucratic steps characteristic of the judicial apparatus, such ace the allotment, a so formal filled up of papers and occupations to the authorities and other formalities that delay the performance and make it less possible to find the victim alive.

The other face of the problem resides in the persistence of an armed conflict that a while ago overflowed the limits of a minimum rationality. The traditional treatment of the problem of the disappearances has been framed in governmental contexts, carried out with violence or directed by the State in dictatorial regimen. The Colombian case moves away from that context, most of the disappearances are attributed to paramilitary groups or armed groups without identifying. The solution of the problem goes then by the solution or, at least, for the decrease of the intensity of the conflict, that will become possible linking to the groups in war so that they respect the humanitarian International Right and the human rights.

However, it results convenient to mention that, the decrease of cases of violations of human rights attributed to state agents has corresponded a simultaneous increment of those attributed to paramilitary groups. According to the Colombian Commission of Jurists, in the report already mentioned, “From 1993 it can be observed a vertiginous increment of the violations made by paramilitary groups (they were less than 20% of the total in that year; and they became more than 75% from 1997) simultaneously with a decrease of those carried out directly by state agents (that were superior to 50% in 1993 and that they appear less than 5% from 1997). The hypothesis is in this way reinforced, already noticed in the previous periods, of a correspondence among the two phenomenon.

The decrease of cases attributed to agents of the State and the simultaneous significant increase of those attributed to paramilitary groups suggests the occurrence of numerous hidden actions or tolerated, in those, so that it is not discarded the direct participation or state agents' insinuation.” In accordance with what affirmed the Colombian Commission of Jurists, it is reasonable to deduce that it still exists a lot to make in preventive matter regarding to the security organisms and state agents. The strategies designed in a legislative level should go accompanied by political will to make them effective, so that their effectiveness is not only symbolic but real.

Certainly, it is necessary to strengthen the administration of justice, to endow it of resources and appropriate technical elements, to offer guarantees to the officials in charge of the investigations, to qualify them in specific areas of investigation, and so on. It is required of an integral politics that articulates politics elements, of education, justice, protection, if one wants to be successful in the objective of avoiding people to continue being victims of this atrocious crime.

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3.4 By Mr Javier Ciurlizza, Executive Secretary, Truth and Reconciliation Commission of Peru (Peru)

The Peruvian initiative to clarify the fate of people unaccounted for in the framework of the Truth and Reconciliation Commission

PART I

General Framework1/

The Truth and Reconciliation Commission of Peru was established by a Presidential (Supreme) Decree on June 4th, 2001. Its members were appointed on July 13th, 2001 and it started its operations on August 1st, 2001. This Commission is a direct product of the Peruvian transitional process, which began with the fall of President Alberto Fujimori, who had ruled the country during 10 years. The caretaker government developed several policies designed to re – establish democratic institutions and to rebuild democratic procedures after ten years of an authoritarian regime. One of the main goals of this government was to create a mechanism to clarify serious crimes and human rights violations committed during the political violence in Peru2/.

The Commission was created to clarify the process, facts and responsibilities of the terrorist violence and human rights violations produce between may 1980 and November 2000, committed by terrorist organisations or state agents, as well as to propose initiatives designed to build a peaceful society. The Commission will work for the national reconciliation, the rule of law and the strengthening of democracy3/.

The Commission has the following specific goals: a. To analyse the political, social and cultural conditions, as well as the social and institutional behaviour, which contributed to the violent situation which affected Peru. b. To contribute with the justice system in the clarification of the crimes and human rights violations, committed by subversive organisations or state agents, trying to determine the whereabouts and actual situation of the victims and identifying, as far as possible, the alleged responsibilities4/ c. To elaborate proposals on reparation and recognition of the victims and their relatives. d. To recommend institutional, legal, educational and other reforms, understood as prevention guarantees, which will be processed through legal, political and administrative initiatives. e. To establish follow up mechanisms of its recommendations.

The Commission focuses its work only in crimes and human rights violations committed in the context of political violence, and, specifically in the following: a. Murders and kidnappings b. Enforced disappearances5/ c. Torture6/ d. Other serious crimes and human rights violations7/.

The norm of creation establishes explicitly that the Commission does not have jurisdictional attributions and, therefore, it does not substitute the functions of the Judicial Branch or the Public Ministry. In this regard, the Commission is a public body created by the Executive and its procedures obliges only the institutions of this branch, including the military and the police. The Commission can not force individuals to testify in front of it and does not have the power to review judicial or legislative documents. However, the Commission has agreed with the Public Ministry to have full access to judicial files.

Although the Commission has this “public and official” nature, from the very beginning stressed its independence and autonomy from any public or private institution, including the governmental. The members (12) were appointed by the President and the Council of Ministers, but its staff has been freely chosen by the commissioners. It has given an Organisation Rule, with legal effects, designing the ways in which it will work. It is obliged to comply with public regulations only in financial and legal issues, but this does not imply any restriction of its work.

The funding of the Commission is mixed. It was agreed with the government that 60% of its budget would be covered by the state and that the other 40% had to raise in the international community. The budget of the Commission (for the two years mandate) is USD 13.7 million. The government so far has given the Commission 4.1 million and the international community has compromised resources for around 4.5 million. The main donors has been: USAID, European Union, Germany, Ford Foundation, Open Society Institute, the Office of the United Nations High Commissioner for Human Rights, Sweden, Belgium, Holland, Norway and Denmark.

The resources of the Commission are managed by the United Nations Development Programme, including those provided by the Peruvian government. For this purpose, the government signed an agreement with the UNDP in order to create an independent project. This project is, however, audited periodically by the governmental authorities and UNDP regular audits. All the financial information, including the salaries of our personnel, has been put into our web page : www.cverdad.org.pe

In this context, the Commission proposed the establishment of a inter institutional working group regarding the issue of enforced disappearances or “persons who are not accounted for”. The proposal was made as a consequence of several meetings and crucial suggestions made by the delegation of the International Committee of the Red Cross (ICRC). This group is working in a common strategy to face the problem in a humanitarian perspective. The Commission also works in this issue through its different areas: legal, reparations, mental health, exhumations, and others. The mechanism includes the creation of a Working Group conformed by the Ombudsman Office8/, the National Co-ordinating Committee on Human Rights9/ and the ICRC.

The objectives of the Working Group would be the following10/: a. To contribute with the clarification of the situation of the persons who are not accounted for and those whose bodies have not been identified officially. b. To contribute with the development of a public awareness about the magnitude of the serious events that affected the freedom, integrity, life and dignity of persons occurred during the period of the mandate of the Commission, as well as in the generation of a social consensus about the solidarity with the victims and their relatives. c. To build an efficient instrument for the updating of information about the cases which are included in the lists of persons who are not accounted for, and to have a valid reference for actions and recommendations eventually included in the report of the Truth and Reconciliation Commission.

The Working Group will be officially established on 15th October. It is co-ordinated by the Commission but we hope that the Group will survive the end of the Commission and will represent a permanent effort of private and public institutions, with the support of the ICRC. The results the Group expects are the following: a. Consolidation of a general list of persons who are not accounted for, with an open and public character, including information about cases which are in the existing records as well as new cases. b. Verification of the lists through specific procedures with the corresponding public institutions and other formal or informal mechanisms. c. To give the information collected to the relatives of the persons who are not accounted for. d. To promote a social recognition of the facts and the consequences of this situation. e. To provide a space of permanent solidarity with relatives, included in a positive consensus about reparations (restitution, rehabilitation and non – repetition guarantees). f. To compromise the state resources about the viability of this initiative in the long term. g. To build a list which can be used as a valid reference for a proposal of reparation, for the exhumations policies and as an official instrument for the record of new information.

Part II.

Individual cases or patterns of disappearances

The Truth and Reconciliation Commission can deal with both individual cases and patterns of disappearances. In fact, our strategy includes the consideration of paradigmatic cases as evidence of the existence of patterns. In a decision taken last 15th march, the Commission adopted the general criteria to work in cases, taking into account the

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experience of Guatemala and South Africa. From that decision, the staff has been organised in two different teams. There is the Legal Team, which will be in charge of the checking and verification of patterns of crimes and human rights violations, included in a long list of terms which serve as the reference for our information system. At the other side, there is the Special Investigation Unit, which will be in charge of the organisation of files to be submitted to the Judiciary. These cases will be illustrative of the patterns verified by the legal team.

The Commission has received the documentation centre on enforced disappearances from the Ombudsman Office, which has worked on this issue since its creation, in 1996. The Ombudsman registered 4,026 cases of disappearances perpetrated by the Armed Forces, the Police or paramilitary groups. The Commission has incorporated so far more than 300 new cases to this list and has received general information from the ICRC with 414 additional cases. The Commission will deal not only with cases committed by the state but with any case of disappearances, whoever is held responsible.

The goal of the Commission is to collect at least 12,000 testimonies of victims, relatives or witnesses of crimes and human rights violations. By 30th August, we had collected more than 10,000. Each testimony includes, as an average, three victims. Therefore, the Commission will provide specific information for 35,000 victims, approximately. The more comprehensive study on violence in Peru (human rights organisations) includes less than 24,000 victims.

Every testimony includes not least than 4 and no more than 8 data files. The testimonies are collected through a team of 132 people, organised in 6 regional offices, 8 local offices, and 14 temporary teams. Each testimony is translated into a narration, made by the same interviewer that recorded the testimony. The narration is sent to our Information System Office, in Lima, and codified according to more than 500 terms and descriptions. After that, every testimony, with its narration, is included into three simultaneous and interconnected databases: persons, cases and perpetrators. These databases will be cross – checked with other two databases: human rights NGOs and one built out of the main newspapers. The result of the cross – examination is the determination of the “level of trust” of the testimony.

Few cases will be organised as judicial files. These cases pretend to be emblematic or representative of patterns of violence. As the Commission has agreed that it has the power to identify individual responsibilities, these files will be included in the final report as a special document to be sent to the “Fiscalía de la Nación”.

The cases on disappeared will follow the general procedure described. The Working Group will deal with these cases in a humanitarian perspective and will add an important effort to collect information and to keep informed the relatives about the fate of their loved ones.

The objectives of the work: responsibilities, information, and access to mortal remains

As it has been described in the first part of this paper, the Truth Commission will deal with individual and institutional responsibilities. At the same time, the Commission has organised a Unit on Forensic Investigations which participates in a common platform with the Special Prosecutor, the Ombudsman, and the Human Rights organisations. This platform is in charge of the definitions about the protocols of forensic investigations, including the connections with relatives. The Commission is entitled to determine which graves should be exhumed, and the Prosecutor leads the technical team.

So far, the platform has successfully worked in two sites and this has allowed the full identification of 13 persons, previously considered disappeared. The mortal remains are given to the families and we have organised ceremonies which look for moral compensation to these families

The creation of the Working Group will provide further support in the collection of evidence, as well as in the communications with the families. The participation of the ICRC is crucial to this specific end.

Truth Commission, Working Group and legal proceedings

The Commission can access any document, but it has to be remembered that the obligation of institutions to provide them only laid in the Executive and, through a specific agreement, with the Prosecutors. This access is currently used with the Police and the Military. The final report of the Commission will provide strong evidence for prosecution in criminal proceedings and this is the reason a special prosecutor office was created. The goals of the working group are complementary to this specific goal, but as a group will not deal with responsibilities.

There is an on going process about the civil and administrative consequences of the conclusions of the Commission. The Commission considers essential to release a list of victims which should be considered as the basis for a reparation process. At the same time, it is controversial the issue of civil proceedings aimed to declare a person officially dead, in order to have his or her patrimonial issues solved. Although there is a demand from the families about this topic, we will need to address the issue of justice as a balance.

Who triggers the mechanism?

From the beginning of its work, the Commission established a policy of full initiative in the search of information. The President of the Commission said “we will not wait for the information, we will go for it to the most remote places in the country”. According to this principle, the regional and local offices have deployed more than 130 investigators, although the effort in still insufficient. There are certain areas of the country that will not be reached and a number of victims that will not have the chance to be heard. For this reason, the Commission has called the co-operation of public and private institutions, including foreign governments and international organisations, in order to have more information. The contribution of the ICRC is a very good example of this kind of co-operation. We have sent letters requiring information from the special procedures of the United Nations System and we expect to have confidential information from the United States Government in this month.

The Commission can deal with a case of a person, whether or not this case has been previously known by any other organisation. The co-operation of the NGOs is essential in this regard. They help us to identified people or places in which victims are located and offer moral and psychological support for the victims.

Most of the cases known by the Commission have been known on its own initiative, but an important number of cases will be received from the NGOs in the next few weeks. We have to solve serious problems about the systematisation of information of the NGOs, as well as the administrative disorder of certain public institutions. The co-operation of the Military is still uncertain.

Due to the huge number of cases we are receiving, it is impossible to keep informed every person about the progress of a specific case. Besides that, the rule of confidentiality has to be kept in mind when we want to inform. However, public hearings (South African model) have been an important space to inform the public about the magnitude of the crimes committed and in the exhumations procedure we try to inform the families every step we take. Precisely, the lack of resources of the Commission for this information policy is substituted by the Working Group created to work on persons who are not accounted for. One of the goals of this Working Group will be to kept informed the families about any progress of the investigation.

Psychological and material assistance

The Commission has a specific team in charge of the mental health issue. This team is present in every regional office and has the difficult task to provide assistance to the victims and relatives. This has been specially important in the public hearings. The Mental Health Unit is part of the area in charge of reparations, and is working in a national plan to be part of the recommendations to be released next year. However, the psychological assistance the Commission can provide is limited in scope and extension. Our team is not able to follow every case and to provide support to every relative who comes to the Commission to give testimony. It is only an “emergency unit” that provides urgent assistance and to assist other professionals to have psychological tools in the daily work. The post – traumatic stress on victims is huge and this stress has affected our staff, in some cases in a way dangerously acute. The national mental health system is in ruins and not prepared to deal with this issue. NGOs do their best, but resources are scarce and experience is only initial.

Regarding material assistance, this is an “institutional headache” for the Commission. Most of the victims are extremely poor and the effects of violence were devastating in terms of capacities for surviving. However, the Commission can not responsibly open the gates for humanitarian assistance. It is not in its mandate to provide this assistance and it has decided not to do it because of the risk to appear“buying testimonies”. We do our best to send most extreme cases to public or private institutions. However, there is an open discussion in this regard.

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Sources of information

It has been already said that information comes mainly from the testimonies directly collected from the victims or their relatives. Other important sources are: a. Human Rights organisations. b. The Ombudsman Office c. Police and military records d. Communal and local authorities e. Newspapers and media investigations. f. Information from perpetrators, including leaders of subversive organisations. g. Congress (Investigative Commissions) h. De – classified information from the US State Department. i. Interamerican Commission on Human Rights j. Special Procedures in the UN System. k. ICRC

The collaboration of the Police in the release of the information has been important and, in some cases, crucial. The Military has not sent its information yet, but we hope they will understand the importance of the process. Non – state actors are more problematic, although important. The Commission is visiting prisons throughout the country, including those in which the leaders of Sendero Luminoso and MRTA are kept. These visits have three goals: to collect information from victims (torture and due process problems, mainly), to collect information about other victims and cases, and to look for ways of national reconciliation. I can not release details of these conversations, but it can be said that they have been useful, although the political approach of these organisations have put some obstacles to this end.

We have had regular meetings with the High Command of the Army, the Navy and the Police. In every institution a Liason Committee has been formed, in order to receive petitions from the Commission. We can and have contacted subordinate officers as they are obliged to come to the Commission. However, we have had problems with retire officers, as they do not have this obligation. We have been told that military records are destroyed every five years, although we believe this is not exactly true.

At the beginning of this year, with the assistance of the British Council, we built a pre – mortem database, which is used by our forensic team. We do not have a post mortem database. In the forensic procedures, we work closely with the Ombudsman Office in preliminary inspections, collecting pre – mortem information before a grave is opened.

As it has been said, we have received information from other mechanisms dealing with people unaccounted for. This is the case of human rights organisations and the ICRC. However, this information is examined directly by the Commission. We process all this information in our database. According to law, our database and documents will be given to the Ombudsman Office at the end of our mandate. By now, only few persons have full access to our database. There are five levels of access: a. Full Access: President of the Commission, Executive Secretary and two persons in the information system area. b. Access to all databases, except a few ones classified: Commissioners and the personnel of the information system area. c. Access to all databases, except the classified as secret and reserved: co-ordinators, researchers. d. Access to the person and cases databases: regional offices. e. Access to personal databases: external researchers.

Active search of missing persons

The Commission have full access to any detention centre, morgues, police records and other public facilities. It does not have direct access to judicial files, and it has to ask for them to the correspondent Superior Court. However, the Commission can not engage in the active search and the Working Group was created to this end.

Reliability of information

The Commission has established certain criteria to assign credibility for the information collected (see above). This decision is taken by the Commissioners and we will start this process in February 2003. The Working Group has been designed to keep informed the families about this information. The Commission will not release information until July 13th, 2003.

Risks, threats and obstacles

The Peruvian Commission is perhaps the only Truth Commission created even when the conflict has not definitively ended. There are still some subversive movement in three or four areas of the country and last May there was a car bomb near the US Embassy that killed six persons. This crime has been related to a small group of Sendero Luminoso. To work in this environment is difficult and 26 victims and witnesses that have testified in the Commission have received some sort of threat. Some of them are under official protection.

The risks are there, but our field teams have not had important problems of security until now. There have been accusations, media campaigns against some of our regional staff and in the Upper Huallaga Region our Regional Co-ordination was threatened by an anonymous letter. Fortunately, we had been able to manage this situation and to solve most of them.

Data protection

The Commission assigns great importance to data protection. We organise back ups and have a specific procedure of protection that can not be explained in this time (Surely I will tell you more about this after July 2003!!!). As the Executive Secretary of the Commission, I can not give information about any case, but only to the persons duly authorised. The levels of confidentiality have been already explained. I can not address this issue beyond this point at this time.

Persons who are accounted for

In the search for missing persons, the Commission participates in the Working Group previously described. This Working Group will check all the information with official records, as Civil Registers and Penitentiary National Institute. As the Working Group has not been officially started, by now the Commission takes into account any information about a person that “appear” and check it directly. We do not take for granted any information, however, including information from NGOs. We have not set up a follow up procedure to this end. The Commission will release information about persons who have been found after the end of its mandate but will send this information to their families, through the Working Group.

Notes

1. I apologise because time did not allow me to finish the full document, following the directions provided by Professor Marco Sassoli, expert in charge of the study of existing mechanisms. I will send a second part of this paper in the next few days. 2. In May 1980 a Maoist organisation called “Sendero Luminoso” (Shining Path), started the so called “popular war”. According to provisional figures, more than 25,000 persons dead because of the conflict and there is more than 4,300 persons disappeared by state agents. The Commission is working to have more accurate numbers. 3. he Commission can interpret this norm in a way in which it can be of use of its own mandate. In this sense, the Commission has determine not to use the term “terrorism” or “terrorist organisations”. Article 1 of the Supreme Decree 065-2001-PCM. 4. The Commission has decided that this goal includes the possibility of developing its own investigation and to submit judicial cases to the Public Ministry (institution in charge of the criminal proceedings). 5. The Commission understands that the term “enforced disappearances has to be broadened, taking into account the norms of International Human Rights Law as well as International Humanitarian Law. For this reason, as it is explained later, it has adopted the term “persons who are not accounted for”. 6. This includes the term “torture” as it is understood in the Universal Convention as well as other inhuman and degrading treatment.

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7. This clause allows the Commission to determine the nature and scope of the crimes it will study. There is an on going process of definition of this issue but it can be said now that the Commission takes into account no only the seriousness of the crime itself but also the consequences of the crime in individuals or groups. 8. “Defensoría del Pueblo”. This constitutional institution has provided the more comprehensive information about enforced disappearances, including the cases submitted by the Public Ministry. 9. A national umbrella organisation which conformed by more than 50 non governmental human rights organisations. 10. The public declaration has not been issued yet. This description is for this reason, preliminary.

3.5 By Mr Bernhard Clasen, Co-Chairman, Working Group for the release of prisoners and hostages and the tracing of Missing People of the Karabakh conflict (Germany)

The Working Group for the release of prisoners and hostages and the tracing of missing persons of the Karabakh conflict

Together with Svetlana Gannuschkina from the Russian human rights organization „Memorial“ and the Georgian human rights activist Paata Zakareishvili I founded the „Working group for the release of prisoners and hostages and the tracing of missing persons of the Karabakh conflict“. Our small group consists of three persons and we have three staff members in the region: one in Yerevan, one in Stepanakert, and one in Baku.

In order to understand how we work, I would like to start with the history of our group and then give a brief description of the activists involved.

Svetlana Gannushkina is a long-time human rights and peace activist from the Russian group „Memorial“. Since the end of the 80s she has been regularly visiting the region of the Karabakh conflict. Whenever she was in the region, she used to visit all conflicting parties, and worked to free Armenian and Azerbaijani prisoners and hostages. At the height of the war she organized Armenian-Azeri meetings, constantly met with Armenian and Azeri military, politicians, NGOs. In these times she gained the reputation of a neutral activist, whose only position is the position of the victims of the war.

I, Bernhard Clasen, am active in the organization „Children of Chernobyl“, which did organize holidays for children from the Chernobyl region. In 1993 Arsu Abdullajeva and Anait Bayandur were my guests in Germany, where I asked them to tell the public about the Karabakh war. And I told them about my activities, and the activities for the children of Chernobyl.

In the autumn of 1993 Arsu asked me, whether we couldn´t organize a humanitarian action for Aseri children, as they are especially suffering from the war during the winter.

Together with my friends from our NGO „Children of Chernobyl“ I organized a vacation program for 100 Azeri children, who could stay in our city for 3 months.

Later in 1994 I decided to go to Azerbaijan myself for the first time, as I wanted to see how the children, who had been our guests in Moenchengladbach only recently, are doing. Before going to Azerbaijan, I called my Armenian friend Anait Bayandur, and asked her, whether there is anything I could do for them while I was in Azerbaijan. She gave me a list of Armenian POWs, and asked me to see them. Back then I did not know, how I could get a permit to see prisoners of war. But after my arrival to Azerbaijan, people and politicians told me how thankful they were for me having organized the holiday program for the children. And when one high ranking politician offered me help in case of need, I asked him to help me to get a permit to visit the Armenian POWs. Within a day I could see about 30 prisoners. I took photographs of them, talked with them and upon my return from Baku I gave the pictures of the prisoners and a protocol of their talks to the Armenian friends, who in turn handed the pictures and the information to the relatives of the prisoners.

The Armenians thanked me for this support. At the same time my Aseri friends told me that it wouldn´t be fair to go only to Azerbaijan and search for Armenian missing persons and prisoners. Please go to the Armenian side and visit our prisoners, search our missing persons as well, they told me.

Soon I got the opportunity to go to Armenia. Helmut Lippelt, a German parliamentarian, was planning to go to the region and invited me to participate as an interpreter and consultant. In turn, I suggested that he invite an expert from a Russian human rights organization to participate in the journey. So Svetlana Gannushkina and Dmitrij Leonov from Moscow together with Helmut Lippelt and me were traveling the region. This journey was fruitful for all participants: Svetlana Gannushkina and Dmitrij Leonov had the material resource to travel for two weeks to the sides of the Karabakh conflict. The German MP opened many doors, which otherwise would have remained closed for the other participants. And for us German participants the expertise of the Russian human rights activists with all their contacts in the region was of enormous value. During this journey we visited Aseri POWs, talked to them, took pictures of them and sent the pictures to their families.

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Towards the end of 1996 Svetlana Gannushkina called me from Moscow. “A relative of my Armenian friend in November 1996 was arrested in Azerbaijan and he supposedly is being held by the Azeri authorities. I was trying to get in touch with the Aseri authorities, but they didn´t even answer. Let us go together to Azerbaijan and do everything for his release.” So in February 1997 Svetlana and I flew to Baku. With the help of the German MP Helmut Lippelt and the German embassy in Baku we immediately received a date with the Minister of National Security. We received a permit to visit this prisoner in the labor camp and one day after we had left Baku, he was released. According to the official statement of the state commission upon our request.

This successful journey to Baku was crucial for our decision to continue working together on a regular basis. Svetlana Gannushkina had the expertise to conduct negotiations with representatives of a post-Soviet government, something I completely lacked at this time. I myself could open doors with the help of the German embassy and the German Member of Parlament.

So in February 1997 we decided to continue working together for the release of prisoners and hostages and the tracing of missing persons of the Karabakh war.

In February 1998 we asked Georgian human rights activist Paata Zakareishvili to join our group. During the Georgian-Abkhaz war in 1992 Mr. Zakareishvili was responsible for the tracing of missing persons and the exchange of prisoners on the Georgian side. Ever since this war Mr. Zakareishvili is one of the leading persons in the difficult dialog between Georgian and Abkhaz NGO´s. So we invited him to work with us in order to use his experience in tracing work and visiting POWs in another conflict zone of the South Caucasus.

How do we work?

Our goals are: 1. Working for the release of POWs and hostages 2. Visiting POWs and hostages and trying to improve their conditions 3. Tracing missing people 4. Being an intermediary between the state commissions on missing persons 5. Working on the repatriation of the remains of dead people 6. Helping former POWs and hostages and their families

Since February 1997 we have been traveling to the region about six times a year. Usually we are traveling to one side to the conflict and after a short time visit the other side. So, before leaving for Armenia and Karabakh, we ask the Azeri state commission on missing persons, relatives of missing persons, NGOs, what they would like us to do on the Armenian side, which places to go to, which prisoners to visit.

All places, which we wish to see in Armenia, Karabakh and Azerbaijan, are open to us. As the Armenians suspected hostages being held in the prison of the Ministry of National Security we were able to have a look around in this maximum security prison. All doors we wanted to be opened were opened at our request. The same way we visited other prisons, military units, civilian places (for example we once visited the basement of a bank near Stepanakert).

We can only visit prisoners of war in their prisons, when they are declared by the authorities to be official prisoners of war. We talk with them without guards being in the proximity, often take pictures of them and send them to their relatives. Whenever they have complaints about their treatment, we report these complaints to the authorities. Once we visited POWs, we were really frightened how they were looking. They seemed to receive little food and they were in a state of despair. After our visit we complained to the authorities about the situation. The next time we visited these prisoners a few weeks later, they looked much better. We think that it was, perhaps among other things, also due to our involvement.

We understand that the authorities share much of the responsibility for human rights abuses. Nevertheless it is not our goal to uncover human rights abuses and to take the responsible persons to trial.

We do not accept the terminology of “exchange of prisoners”, as we think prisoners of war do not have a right to be exchanged, but to be freed unilaterally. And whenever we are having talks with the authorities, we ask for the unilateral release of the prisoners and hostages.

Official sources in Azerbaijan say they believe that there are more than 700 people alive on the other side, Armenian officials claim that several hundred people are missing, with at least 101 of them alive. At the same time each party to the conflict is convinced that no hostage is being held on their territory. It is always only the other side, which is keeping hostages. Armenia, Nagornij Karabakh and Azerbaijan have state commission on missing people. At first glance it seems there is a lot of work, which needs to be done in cooperation with these official tracing commissions. Unfortunately, they do not cooperate. There is a direct telephone line from Stepanakert to Baku for discussing humanitarian questions. But for six years now this line has not been used. Before this backdrop, we are working as mailmen. While in Azerbaijan, we hand over lists, requests etc., which we got from the Armenian state commissions on missing persons and try to get answers about the people mentioned on these lists. We do the same while we are on the Armenian side. Each time, when we travel, we take one of our staff from the other side with us, who then back home thoroughly reports about the results of a trip to his/her authorities.

Having to travel a whole week in order to get two pages of information seems to be rather strange in the era of fax and Internet.

We as a neutral group can do something to get a few results. But real results will be accomplished only, when the official commissions on missing people of the conflicting parties will cooperate directly. On this background we tried to organize four meetings, where we invited representatives of the official commissions on missing persons. At the first meeting the Azeri side did not come. The Armenians nevertheless stayed with us to discuss ways to make progress on this issue. The second meeting was in 1999 in Baku. All parties to the conflict sent a representative to Baku. After this meeting the mood was very euphoric. Unfortunately the Azeri side did not participate in the follow-up meeting, but gave our group the right to represent their interests. We did this once, but will never again represent the interests of a state commission, as this might affect our image as an independent intermediary. Another meeting scheduled to take place in Loccum in November of 2001 did not take place, as the Aseri side refused to participate. The reason they gave was that as the Armenians had not abided by the promise not to inform the press beforehand, they could not come.

We are in touch with some relatives and keep them informed about some results of our search work. We only tell relatives that their loved one is dead, when we have 100% written confirmation.

The usual pattern of our tracing work is like this: once Azeri relatives of missing asked us to go to a certain place in Spitak (Armenia). According to the information they possess their relatives are being held at a certain address. We went to Spitak to find out that the information we had received from Azerbaijan was not correct, the mentioned address did not exist. The place they had mentioned was a place, where international relief organizations are working, as Spitak is the area mostly struck by an earthquake a few years ago. We came to the conclusion that it just could not be possible to hold a group of persons hostage at such a place. We did not and could not tell the relatives that we think their loved one is dead. We just informed them that the information they had given to us does not seem to be correct.

Since 2000 we have local staff in the region. Through their own channels, they check information, which we received.

At the request of relatives we did help in some cases to repatriate the mortal remains of people.

Former prisoners and hostages These persons are heavily traumatized due to their having been prisoners/hostages. We offer them help with a psychologist, and we finance computer courses. Two of them get material assistance (50$/month).

We cooperate with the state commissions, the ICRC, OSCE, relatives of missing persons and the German embassies.

How many people we are dealing with? As we are only a small group, we cannot deal with all missing persons that are on various lists. Since we began working we had about 50 people in our lists, who were alive as POWs or hostages, and we worked on 80 cases of missing people.

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Data security We have at the moment a small list of about 200 people. At the end of the year we plan to have a list based on “Lotus”. All of our six people will get access to this list.

Success It is difficult to measure success. Only the authorities can release POWs and hostages, we can only use our influence to bring about their decisions. I think our group helped in several cases to reach the release of prisoners of war.

With regard to our tracing work: so far we have not found anyone alive. And I fear it will remain this way. In several cases we could find out details about missing persons. These details usually only lowered the hope of the relatives. And we destroyed a lot of myths about missing persons. Thus, after our visit to Spitak, the Azeris believed us that there are no camps for hostages in Spitak and articles about hostages in Spitak ceased to be published in Azerbaijan. Although we only once managed to bring about a direct contact between the Armenian and Azeri state commissions, we enhance the indirect contact between these state commissions. By helping former prisoners we alleviate their ordeal.

Our strengths and weaknesses I think our strength is that we combine the experience of very different cultural backgrounds: We are six people and have five nationalities: Russian, Georgian, Armenian, Azerbaijan and German. All sides respect us as neutral and competent mediators.

Another of our strong points is that we are consistent in our work. Our partners in Armenia and Azerbaijan know that we are to stay in this conflict for the coming years. The missing people of the Karabakh conflict are not a topic that worries us today and that we forget a year later.

One of our weaknesses is working with the press. To us, the matter of missing persons and hostages is a purely humanitarian issue. But it is a very political issue in the region, which is exploited by some politicians to promote their own agenda by blaming the other side for human rights violations. Several times, when we were not correctly quoted and/or made a mistake in our contact with the press, the result was some anger of one of the sides against us.

The main obstacle for reaching real results is the unwillingness of the conflicting parties conflict to cooperate.

How to overcome the weaknesses? I think activists have to work out standards of conduct for its members with the press.

Having local partners is very important. Our work now would be impossible without the help of our local staff. At the same time it is so difficult to find reliable partners. Western NGOs sometimes are not careful enough in choosing their local partners.

Lessons learned As our group developed on a very individual basis and after some favorable circumstances, I do not think it could serve as an example for how to build similar groups.

One of the cornerstone of our work is partnership between Western, Russian and Caucasian activists. In the course of this partnership many good ideas were developed. For us Westerners it is very important to have reliable on-site partners, which can help us to survive in the mine fields of contacts with NGOs, individuals and representatives of the authorities. For our on-site partners, we Westerners are of crucial importance, as we enhance their reputation in the region by our partnership. And we have access to some sponsors in the West.

Another success that perhaps should be mentioned was that we could win a good reputation in the area, as we have been known for years to be really neutral mediators. All the persons, institutions and NGOs we are dealing with are aware of our commitment. They know that we are a player who is willing to stay in this game.

3.6 By Mr Charles Dominique Dube, Chairman, Catholic Commission for Justice and Peace (Zimbabwe)

INTRODUCTION

Zimbabwe, like many African countries as also seen in Latin America in the 1970s, has had its ugly experience of organised violence between the 1970's and the late 1980s. To date, many Zimbabwean families still suffer from the trauma of their missing beloved ones.

BACKGROUND

The Catholic Commission for Justice and Peace (Zimbabwe) whose mandate is the promotion of integral development, justice and peace in the nation of Zimbabwe, in a bid to bring awareness to the nation and the entire global village of the grave injustices in Matabeleland and the Midlands caused by the disturbances between 1980 and 1988, and to bring the government of Zimbabwe to acknowledge and take responsibility of these commissions of organised violence and to heal the wounds, carried out research in partnership with the Legal Resources Foundation and produced a report, Breaking The Silence, Building True Peace. The following on missing persons are, in the majority based on this report.

DISAPPEARANCES

Organized violence in Zimbabwe backdates to the 1960s during the Rhodesia era. In the 1960s and 1970s violence was perpetrated by the Rhodesian army, Zipra and Zanla the armed wings of PF ZAPU and ZANU PF respectively and the Central Intelligence Organisation. About 40% of the survivors suffered violence in the 1960s or 1970s. A feature of this period was the Zanla/Zipra contestation in Mberengwa, Nkayi and Silobela where people were caught in a tug of loyalty and coercion between these two forces.

In the 1980s the perpetrators were state organs 5 Brigade, Zimbabwe National Army, Central Intelligence Organisation, Police Support Unit and Zanu PF Youth Brigade and Dissidents. About 80% of survivors suffered violence during the 1980s. Overall 64% of all survivors were affected by the 5 Brigade (1980s) 29%, Rhodesian Army (1970s) and 14% Dissidents (1980s, 20% suffered violence in both periods.

During the 1980s disturbances, civilians were subjected to several methods of torture including witnessing of organised violence and forced disappearances. Forcing civilians to witness violence, was a deliberate facet of 5 Brigade behaviour, both in Matabeleland North and the Midlands in 1983 and in Matabeleland South in 1984. Tens of thousands of civilians are estimated to have observed violence if one considers the high forced attendance at political rallies during these years and the prevalence of public beatings at these. In addition, possibly thousands witnessed executions, particularly in 1983, when it was common practice for 5 Brigade to execute people in the village setting. This was the darkest period in the history of the people of Zimbabwe.

One very sinister form of psychological torture is the use of forced disappearances. These are abductions of individuals who would be kept in secret detention for long periods and often executed in secret. This was used in Zimbabwe both during the liberation war and the 1980s disturbances. Forced disappearances of the 1980s and to date number 374, could be more. This number is indicative that the disappearances were a deliberate strategy and an official policy.

Many were picked up in the midnight raids by mysterious government agents, and held incommunicado for some months before their release. The manner of their removal from their homes and the uncertainty this resulted in, caused intense psychological stress for their families. The timing of these disappearances was also significant in that they occurred in the months prior to Zimbabwe's general elections, targeted opposition party officials, and generally added to the climate of fear and intimidation already prevalent at the time.

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MECHANISM TO SOLVE ISSUES ON PEOPLE UNACCOUNTED FOR

CONSTITUTIONAL SAFEGUARDS

The ICRC in liaison with similar interested human rights, civic groups and NGOs should advocate and lobby for constitutional safeguards as a necessity to prevent recurrences of forced disappearances.

NETWORKING

Establish action teams at local level comprising selected members from such interested and participating organisations co-ordinated by ICRC to:

• Establish and communicate to concerned the whereabouts of missing persons. • Provide counselling to those suffering psychological trauma as a result of disappearances and open regional trauma centres if finances permit. • Introduce country, regional and global information sharing on armed conflict or internal violence. • Hold annual regional conferences to review country situations and the effectiveness of action teams.

INFORMATION SHARING

• In situations of extreme violence and where the governments are hostile to NGOs, global village to be conscientized and involved in both offering protection to those working towards the missing and the reduction of incidences of disappearances through promotion of international humanitarian law and human rights. This includes the United Nations.

CONCLUSION

In Zimbabwe, the last forced disappearances were of Alphose Chavunduka, Charles Mudhara, Grace Chakanetsa, Joseph Chikwari and Eunice Muchore, all as a result of the 2002 Presidential election. In the last few months the government of Zimbabwe has slowly been increasing hostility towards NGOs thereby retarding meaningful progress towards establishing the fate of the above disappearances.

3.7 By Mr Max Grunberg, Chairman of the Raoul Wallenberg Honorary Cititzen Committee (Israel)

The Objective

Each government will be given a manual outlining what action to take when one of its citizens - either civilian, diplomat or military - is missing as a result of armed conflict or internal violence. An International Human Rights Law should be passed to formulate the contents of this manual as well as determine its implementation. As an internationally accepted document, this manual will not be subject to change by individual governments who are signatories to the manual.

Items to Consider to be Included in the Manual

I would like to preface this by stating that this is by no means a complete list for the manual. It is rather intended as a description of ideas requiring further expansion. There is no specific order to the list. The manual will:

• Determine which government department will be responsible for creating and implementing the manual; • Identify resources (e.g. Internet, media, selected individuals, NGOs, Missing in Action appeal/poster) to be used for the search • Suggest the possibility of a financial reward or incentive; • Outline the methods by which individual's family members/friends will be contacted. • Explore strategies in dealing with the media. • Discuss potential obstacles and how they should be dealt with by a team of concerned individuals, such as family members/friends or experts in the field. • Recommend the appointment of an International Independent Human Rights expert/s to oversee the process of the search. • Suggest a schedule for progress reports to be made available to family members as well as the International Human Rights expert/s. • Propose that at regular intervals, those involved in the search should consult and brainstorm to ensure all resources have been accessed. • Advise that, if a photo or artists' impression of the missing person exists, an age- progressed photo or picture should be produced. • Provide a vehicle for the public to submit information pertinent to the search. • List available financial resources to assist in the search and methods for accessing them. • State that all leads must be followed up and thoroughly checked. • Implement and detail an organization, staffed by volunteers and/or professionals, which will carry out an immediate search for those who are missing.

Establishing the Law

The United Nations and/or the International Court of Justice in the Hague (the Netherlands) may be appropriate resources to explore the establishment of such a law.

Implementing the Law

The Office of the High Commissioner for Human Rights of the United Nations would be an appropriate body to oversee the implementation of this law on a global scale.

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3.8 By Mr Yasantha Kodagoda, Senior State Counsel (Sri Lanka)

Prevention of disappearances and responding appropriately

It is indeed the duty of all governments and international & national non-governmental agencies mandated to prevent violation of humanitarian laws and human rights and to ensure due compliance with such laws and norms, to ensure the prevention of disappearances and whenever disappearances occur to respond in an appropriate manner. Prevention of disappearances is indeed the primary. However, major incidents involving incidents of international and national armed conflict as well as incidents involving domestic strife that occurred during the 20th century, have clearly shown us that, measures aimed at the prevention of disappearances have hardly succeeded at totally preventing the disappearances of both civilians and combatants. Therefore, we need to accept the reality of the phenomena of disappearances, and consider developing effective and pragmatic measures to be taken upon disappearances taking place. Such reactive measures would not only serve towards the protection of the rights of the disappeared, it would also emanate a long-term preventive effect. a. From a policy perspective, reaction to an incident involving a disappearance, should be based on the need to realize the following objectives. b. Ascertainment of the veracity of the information. c. Protection of the life of the disappeared including in particular the prevention of the extra-judicial execution of the victim. d. Prevention of further harm being inflicted on the disappeared. e. Ensuring the provision of basic needs to the victim. f. Securing the liberty of the victim. g. Provision of accurate and prompt information regarding the whereabouts of the victim to the family members, next of kin, the government, employer, and others who may be interested in the welfare of the victim. h. Compelling the victim to be transferred to lawful detention or being produced before a court of law. i. Maintaining and developing proper records of the victim, his disappearance and other subsequent developments. j. Enforcement of domestic and international law relating to the incident involving the disappearance of the victim. k. Protection of the security of the victim following his release.

From a sequential and logical perspective, once a disappearance is reported, the following measures may be taken in order to realize the above-mentioned objectives. (The humanitarian or human rights organization implementing the several measures identified hereinafter, has been referred to as the ‘organization’.)

I. Preliminary inquiries should be conducted by the organization, in order to ascertain the truth of the information alleging the disappearance of the alleged victim. II. If initial inquiries reveal that the alleged victim had in fact been involuntarily removed and his subsequent whereabouts are not known, the incident may be deemed and classified by the organization as a ‘disappearance’, and action may commence on the footing that a ‘disappearance’ has occurred. This process may be signaled by the opening of a ‘disappearance file’. III. The organization may through both official sources and others avenues of information that may be available to it, conduct inquiries to ascertain the whereabouts of the victim. IV. If domestic law enforcement agencies are active and ready to receive and entertain a complaint, family members or others interested in the welfare of the victim, may be encouraged to lodge a formal complaint regarding the disappearance. However, if it is suspected that the functioning of such agencies are ineffective or if their integrity is in doubt, it may be counter productive to lodge such a formal complaint. If however, it is deemed that such law enforcement agencies are functional and effective, it would be useful to encourage the making of a prompt and detailed complaint. The organization may assist the family in making such complaint and advising on the material to be included in such complaint. Further, it could assist by identifying suitable

witnesses, and having them sent before the relevant law enforcement agency. It would also be appropriate for the organization to directly establish contact with the law enforcement agency, and monitor and assist in the conduct of the investigation. V. Consequent to private inquiries conducted by the organization or formal investigations conducted by law enforcement agencies, the whereabouts of the victim is ascertained, the organization should attempt to establish contacts with those responsible for the current detention of the victim. In such event, it is of paramount importance for the organization to reveal to such persons, that the primary concern of the organization is the welfare and protection of the victim and not ensuring justice to the victim. VI. If however, it is realized by the organization, that those responsible for the detention of the victim would not head to any request by the organization and such interaction with such persons may also have an adverse effect on the victim or be counter productive, the organization may refrain from establishing contact. VII. Either in addition to or as an alternative to the establishment of contact with those responsible for the detention of the victim, the organization may establish contact directly with the victim. VIII. At this stage of the process, it would be appropriate to provide basic information regarding the victim to the family members of the victim and to others interested in the welfare of the victim. However, in certain circumstances, it may be in the best interest of the victim, to ensure that such information regarding the whereabouts of the victim remains confidential (at last till necessary steps are taken to prevent further harm being inflicted). IX. If initial dialogue with those responsible for the detention of the victim yields positive results, the organization should proceed to secure an opportunity to meet with the victim and interview him. Whilst the primary objective of such interview shall be to attend to the welfare needs of the victim, the secondary objective shall be to obtain necessary information to satisfy the needs to of the family. However, it would be necessary to identify the tertiary objective of such interview. That being truth & justice objectives. X. If those responsible for the detention of the victim resists officials of the organization from meeting with the victim, attempts should be made to facilitate at least health personnel from visiting the victim, and providing necessary health care. XI. The organization shall also endeavor to facilitate the family of the victim meeting with the victim. XII. It shall also be the duty of the organization to secure the release of the victim or cause his transfer to legal custody or have him produced before a court of law. XIII. If State law enforcement agencies are ineffective or dis-functional or acting in collusion with the perpetrators, family members may be encouraged or advised to seek private legal action, such as seeking the Writ of Habeas Corpus, institution of private criminal action, etc. XIV. If State action had resulted in the disappearance of the victim, the United Nations Working Group on Disappearances, or the United Nations Special Rapportuer on Extra-judicial, Summary or Arbitrary Executions, may be informed of such disappearance. XV. If State action had resulted in the disappearance of the victim, and if such State had ratified the 1st Optional Protocol to the ICCPR, a Communication may be presented to the United Nations Human Rights Committee.

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3.9 By Mr Richard Lyster, Former Commissioner of the South African Truth and Reconciliation Commission, Human Rights Lawyer, Durban (South Africa)

THE SOUTH AFRICAN TRUTH AND RECONCILIATION COMMISSION

MANDATE, STRUCTURE, ACTORS, RESOURCES

The South African Truth and Reconciliation Commission was conceived as part of the bridge building process designed to lead the nation away from a deeply divided past, to a future founded on the recognition of human rights and democracy. The Commission was founded on the belief that the uncovering of the truth about past gross violations of human rights was necessary for the promotion of reconciliation and national unity. The Commission believed that the telling of the truth about violations of human rights, from different perspectives, would facilitate the process of understanding the divided pasts of the people of South Africa. Furthermore, the Commission believed that the public acknowledgement of suffering and injustice of victims would help to restore the dignity of victims, would give to perpetrators the opportunity to come to terms with their own past, and would allow perpetrators who had killed people and secretly buried them or otherwise disposed of their bodies, to give the Commission information as to the whereabouts of those bodies.

After the first democratic elections were held in South Africa, in 1994, when Nelson Mandela was elected as the country’s first democratic president, the government of national unity agreed that a statutory mechanism should be created which would;

• investigate human rights violations which took place under apartheid, during the period 1960 – 1994 • To name the people, institutions, organizations, political parties etc. responsible for gross violations of human rights. • give victims an opportunity to tell their stories, be acknowledged and regain their dignity in society, • allow perpetrators of human rights violations to apply for amnesty, provided they made a full disclosure of their actions. • Recommend compensation and reparation for victims.

The mechanism which was created to give effect to these aims was the Truth and Reconciliation Commission, a statutory Commission created under the Department of Justice, completely funded out of the national treasury, but completely independent of Government. The Commission was granted very significant resources by the state. The Commission was comprised of 17 Commissioners, chosen by a transparent and democratic public process. It consisted of people from the white right wing, left wing activists, human rights lawyers, liberation theologians, social workers and psychologists. The Commissioners were divided into three Committees: a Committee on Human Rights Violations, a Committee on Reparation and Rehabilitation of victims, and a Committee on Amnesty. There was also an Investigation Unit, which supported the Human Rights Violations Committee and the Amnesty Committee. The country was divided into four regions, and the Commissioners were placed in those regions, where they opened offices and employed staff. Each region had an Investigation Unit, consisting of policemen and former non- governmental organization activists.

HOW THE TRUTH COMMISSION WORKED.

As has been explained above, the Commission was divided into four geographical regions, with a Commissioner in charge of each region, and a staff under him or her of up to 70 or 80 persons, including statement takers (to take statements from members of the public), data capturers and data analysts, researchers, investigators, information technologists, media liason personell and administrative staff. The primary job of the Commission in each region was to • hold public hearings to allow victims of human rights violations to tell their stories, • to investigate human rights violations, • to receive applications for amnesty from perpetrators and • to hold public Amnesty hearings.

1. PUBLIC HEARINGS FOR VICTIMS.

In order to give effect to the mandate of giving victims a forum to tell their stories, to be affirmed and to regain their dignity, the Commission held public hearings at which victims testifed. Accordingly, when people made statements to the Commission, they were given a choice of repeating their testimony at a public hearing. These public hearings were of vital importance for victims, and for their families, and for members of the public who followed the very public progress of the Commission on radio and television. However, the public victim hearings did not add important forensic value to the Commission’s work, because the Commission staff knew in advance what the person was going to say.

2. PRIVATE INVESTIGATIVE HEARINGS FOR PERPETRATORS.

Other hearings were held, in tems of which people suspected of having been perpetrators, or of having knowledge about gross human rights violations, were ordered by subpoena to appear before a closed hearing of the Commission. This aspect of the Commission’s work constituted a very significant difference between the South African Commission and other Truth Commissions, such as the Argentinean and Chilean Commissions. Not only did the South African Commission have powers of subpoena, it also had powers of search and seizure and entry of premises. This has led to more thorough internal investigation and direct questioning of witnesses, including those who were implicated in violations and did not apply for amnesty. None of the Latin American commissions, for example, was granted the power to compel witnesses or perpetrators to come forward with evidence, and these commissions have had great difficulty in obtaining official written records from the government and the armed forces. The Commission issued subpoenas to hundreds of security policemen, army and police generals and colonels, prison authorities, state medical doctors, former politicians, current regime politicians. They were entitled to legal representation, and were required to answer any questions put to them by the panel of Commissioners. This process frequently lead to such people making applications for amnesty, because during the course of the questioning, they became aware as to what knowledge the Commission had about their activities, and what the possibilities or probabilities of themselves being successfully prosecuted, if they did not apply for amnesty. The evidence which was obtained from these forensic hearings often lead to a detailed understanding of the workings of the previous regime, the reason for and the manner in which violations took place, and frequently lead the Commission to uncover the whereabouts of disappeared people.

3. PUBLIC HEARINGS TO UNCOVER INFORMATION ABOUT SIGNIFICANT EVENTS

The Commission also held investigative public hearings into iconic events, such as massacres by security forces or right wing vigilante groups, and in circumstances where very little information was known about these events, or where there had been a cover up by the police at the time. For example, the Commission held a four day public hearing into an event known as the Seven Day War, which took place in 1990, when supporters of the conservative Zulu nationalist organization Inkatha, attacked an area that was believed to be sympathetic to the ANC (African National Congress), and murdered over 100 people, and burned down over 1000 houses. At the time, there was no proper official investigation into the massacre. The Truth Commission’s public hearing allocated accountability to the police, the army and to Inkatha.

4. INVESTIGATING HUMAN RIGHTS VIOLATIONS AND DECLARING PEOPLE TO BE VICTIMS

The Commission’s prime responsibility was to produce a report detailing the nature and extent of human rights violations which took place from 1960 – 1994, to name the victims and to name the persons and organizations responsible for these violations. The Commission was given extensive powers to do this. Other than powers of subpoena and search and siezure, the Commission had automatic and full access to police and court files, and data bases, government mortuary reports, post mortem reports etc. The Commission made extensive use of data bases loaned to it by NGO and Human Rights monitoring organizations, and itself had a very sophisticated computerized data base, in which patterns of violations could be detected, information from one case could be used to solve another case, the progress of the investigation of a particular case could be monitored.

In order for any person to qualify for official status as a victim, and therefore to receive financial reparation from the state, a rigorous process of corroboration had to take place.

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Let us say that a family reported to the Commission that there son who was a political activist disappeared. Step 1. Statement takers take the statement. Step 2. The written statement is entered into the data base by data capturers. Step 3. A data analyst then analyses the statement, and searches the data base for other information e.g. about similar disappearances in the same area at the same time. Step 4. The case is then passed on to the Investigation Unit, who use information passed onto them by the data analysts and researchers. Step 5. If the case is solved by the Investigation Unit, they enter their findings about the person into the data base. Step 6. Applicants Commissioner then makes a recommendation that the person is (or is not) a victim. Step 7. The recommendation is taken to the Human Rights Vioaltions Committee of the Commission for ratification. Step 8. The person officially acquires victim status.

5. AMNESTY (How the Amnesty process contributed to uncovering of information relating to gross human rights violations, and the whereabouts of disappeared people).

South Africa’s Truth Commission was the first Commission to be given the power to grant amnesty to individual perpetrators. No other state had combined this quasi-judicial power with the investigative tasks of body established primarily to uncover the truth. In other commissions, where amnesty was introduced to protect perpetrators from being prosecuted for the crimes of the past, the provision was broad and unconditional, with no requirement for individual application or confession of particular crimes. The South African format had the advantage that it elicited detailed accounts from perpetrators and institutions, unlike commissions elsewhere which have received very little co-operation from those responsible for past abuses.

Those people who applied for amnesty were subjected to a full investigation, public enquiry and cross examination. They are obliged to make a full disclosure - of what they did, their motives, and under whose orders they were acting. If they failed to apply, or failed to make full disclosure, there was at least the possibility of prosecution at a later date.

The South African Truth Commission has been criticised for denying justice to the victims of human rights violations. Why then did the government taken this far reaching and radical step of allowing the perpetrators of gross human rights violations not only to escape prosecution, but those few who have been convicted and imprisoned - to walk free ?

a. The very real difficulty of securing successful prosecutions was a primary factor in opting for the amnesty option. b. The lengthy delays and the high cost of litigation was also an important factor. This difficulty is also evidenced by the War Crimes Tribunal in the Hague, which after many years and many millions of dollars, has made very little headway in its work. c. Thirdly, there is very little evidence that retributive criminal justice - the imprisonment of perpetrators, will achieve anything more than a short term religiously inspired need for revenge. The failure of the Nuremberg Trials in Germany in dealing adequately with Germany's past, suggests that even if such trials were possible in South Africa, they would not have served the national reconciliation process in South Africa. Does capital punishment and retributive prison sentences contribute to respect for human dignity, or do they vindicate those who promote revenge and violence as the answer to human conflict ? d. Furthermore, the long term imprisonment of political criminals, most often elevates them to a romantic and heroic status, which clearly does not serve the reconciliation process. As Jorge Correa said, writing on Chile, ideological fanaticism cannot be ameliorated or countered through a prison sentence. If anything, it motivates the person involved to pursue his or her aims on release from prison. e. As Hayner points out, the nature of political trials is that they deliver up a very narrow form of truth. They reveal details about a specific case, but are generally not in a position to outline a broader pattern of events over a period of time, and certainly cannot enter into an analysis of institutional responsibility, general practices of the state or the root causes of conflict, all of which are usually the focus of a truth commission. (Priscilla Hayner, Reconciling Truth with Justice and forecasting the factors that effect a stable peace - Research paper presented at Woodrow Wilson International Center March 1997)

It is in this context that the policy makers and drafters of the legislation that created the commission argued that amnesty, on the basis of full, and public disclosure, was possibly to the benefit of a large number of victims and their relatives, whose most fundamental need is to know, who was responsible for the death, or torture or disappearance of their relatives, why they did it, and finally, an enduring acknowledgement that it was wrong.

WHAT IS SO IMPORTANT ABOUT THE TRUTH ?

One observer of Truth Commissions Michael Ignatief, has said that the most that the most important thing that a TC can do is to reduce the number of lies that can be circulated unchallenged in public discourse. He wrote this long before the SA Truth Commission and he wrote about truth commissions in South America. He said that " in Argentina, the work of the TC has made it impossible to claim that the military did not throw living victims out of helicopters into the sea. In Chile, it is no longer permissible to assert that the Pinochet regime did not murder thousands of entirely innocent people. Similarly, in South Africa, it cannot be said that the security police did not take people out into remote farms, torture them for days and then shoot them and bury them. We know this is true because we have been told this by the people that did these things and we have dug up the bodies of the people that died.

It is also important for individuals. Over 30,000 people who claimed to have suffered gross human rights violations made statements to the Truth Commissions, and in most of these cases, after corroboration by the Investigation Unit had taken place, the people were found to be victims, and now accordingly are eligible to receive financial reparation from the government.

Through the Commission's hearings, 1000s thousands of victims, and the families of victims, have learned something about their loss. They have learnt about the context in which the violations took place, and they have received perhaps for the first time in their lives, acknowledgement from an official state institution, that it happened, that it was wrong, that it should not have happened, and that someone, or some institution will be held accountable. In the South African experience, disappearances of people was not as big a problem as it was in many other countries. The number of disappeared people in South African runs into hundreds, not thousands. Most of the violations of human rights were constituted by severe repression, indefinite detention, assaults and torture, the shooting of people at public meetings and during riot situations, and the clandestine killing of people by government sponsored vigilante groups. Nevertheless, the Truth Commission’s investigation unit, coupled with the amnesty process, lead many perpetrators to the Commission and provided us with information as to the whereabouts of the graves of political activists, student leaders and trade unionists who had been secretly tortured, killed and buried by the security forces. In each case, where we were requested to do so by the family, the Commission facilitated a public or a private handing over of the remains of the victims, and provided the family with assistance for reburial. The emotional and psychological importance of this process cannot be overemphasized.

THE IMPORTANCE OF THE PUBLIC PROCESS AND THE IMPORTANCE OF PUBLIC RECORD.

The very public process of the South African Commission also distinguishes it from other commissions. The Latin American truth commissions heard testimony only in private, and information only emerged with the release of the final reports. The proceedings of the South African Commission were broadcast daily on public television and radio, and reached millions of people. This assisted to encourage and promote values that are central to a healthy democracy : transparency, public debate, public participation and criticism.

Finally, the importance of a public record. The Truth Commission in South Africa has produced a new written record of the apartheid years. It is of vital importance that this publicly sanctioned record has been established, against which past human rights abuses can be judged. It is against this record, or this history that those who suffered human rights abuses can be vindicated, and it is against this history that those responsible for gross human rights violations can be censured. The South African Truth Commission produced a comprehensive report to the government, indicating the identity of the victims, the identity of the perpetrators, whether the violations occurred as part of a strategy or plan by the former state or former liberation movements, the motives and perspectives of perpetrators etc.

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THE TRUTH SHALL SET YOU FREE – THE MOTTO OF THE SA TRUTH COMMISSION

A truth Commission cannot overcome society’s divisions, but it can present history from the victim’s perspective. It can give acknowledge and affirm this version of history, and at the same time diminish and treat with disdain the version of the former regime.

For the families of victims, the circumstances of and the reasons for their relative’s death has been a liberating experience for thousands of victims, as it has been for some perpetrators, to enable them to lift the burden of guilt and shame.

CRITICISMS OF THE PROCESS

The issue which caused more criticism onto the Commission’s head than any other single issue, was the failure of the Amnesty Committee to develop a coherent jurisprudence in its amnesty decision making, and particularly in its failure to apply the so called Norgaard principles, and to narrow down the particularity again, its failure to apply the principle of proportionality. In a nutshell, this principle says that the act committed, must be proportional to the political objective sought to be achieved. The Amnesty Committee was obliged to apply this principle. It did not, and its failure to do so, brought the Commission as a whole into disrepute. For example, Amnesty applications that were considered in the early phases of the Commission’s life, involving obviously political murders with strong racial overtones, were refused, on the basis that they were racially, and not primarily politically motivated. However, later on in the Commission’s life, amnesty applications for obviously racially motivated murders were granted. The failure of the Committee to develop a coherent system of precedent, and to build a perceptible jurisprudence, continues to have contradictory consequences, and to increase the negative perceptions of the Commission as a partisan institution. The reality is that, having granted amnesty to the applicants who killed Amy Biehl (a white American student who was killed by a group of young black men), the Amnesty Committee could not and did not refuse to grant amnesty to any other amnesty applicant who committed a race based political crime, no matter how brutal, heinous and totally disproportionate the act was, to the aim sought to be achieved.

3.10 By Mr Fernando Mora, Office of the Commissioner for Human Rights, Council of Europe

Council of Europe contribution This document is exclusively prepared for this workshop with the aim of contributing at the discussion. For this reason, at the stage, it is most a working paper that an official position.

Recommendation N° R (79) 6 on the search of missing persons I. Introduction II. History III. The Recommendation N° R (79) 6 IV. Appendix to the Recommendation N° R (79) 6 V. Follow up

Resolution 828 (1984) on enforced disappearances I. Introduction II. History III. The report on enforced disappearances IV. Follow up

European Court of Human Rights Human Rights Institutions The Council of Europe Commissioner for Human Rights

This document put together the work made by the Council of Europe, directly or indirectly, in the issue of missing persons.

Recommendation N° R (79) 6 on the search of missing persons

I. Introduction

By Recommendation N° R (79) 6 adopted by the Committee of Ministers of the Council of Europe (1) on 20 April 1979 at the 303rd meeting of Ministers’ Deputies (2), its regional institution set out a position in the issue of missing persons.

The tracing of missing persons is very much a humanitarian problem of great importance not only to the individual and the family but also to society and the state.

At the individual and family level, not one can remain unmoved by the mental, physical and economic distress that may be experienced by the missing person, of the anxiety, emotional loss and difficulties suffered by his family.

Where society and the state are concerned, any government wishing to protect the individual against the various hazards that may disrupt the normal course of his life must make every effort to remedy the major upheaval caused by a person’s disappearance, by taking suitable measures to ensure that he is traced with all speed and, where appropriate, returned to his normal surroundings.

II. History

Being greatly disturbed by the human dramas that accompany a person’s disappearance, the Consultative Assembly of the Council of Europe took up this question as long ago as 1971.

A report on action required to trace missing persons (3), prepared on behalf of the Committee on Social and Health Questions, found that there was not uniform legislation or other statutory provisions on this subject in the member states.

In view of complex nature of this question and its important social and legal aspects, the Rapporteur (4) was of the opinion that measures for improvement should be studied by experts in collaboration with Interpol and also with the

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private organizations which have long-standing experience in tracing missing persons, i.e. the Salvation Army and international Social Service, and proposed that the Committee of Ministers instruct a committee of governmental experts to carry out such a study with a view to drawing up recommendations, taking into account the conclusion of the report.

Having taken note of the report presented by the Committee on Social and Health Questions, the Consultative Assembly adopted on 4 October 1971 the text of Recommendation 646 on action to be taken in tracing missing persons (5) and recommended that the Committee of Ministers instruct the appropriate governmental committee of experts to draw up, on the basis of the conclusion formulated in the report and in cooperation with the relevant international organizations, in particular Interpol, recommendations concerning:

- the categories of missing persons for whom searches should be made and measures designed to improve the operation of systems of tracing missing persons at national level;

- a common approach to the question of tracing missing persons in the Council of Europe member states with a view to facilitating international inquiries;

- assistance to be given to missing persons and their families.

At its 222nd meeting (may 1973), the Committee of Ministers sitting at Deputy level agreed to invite various committees experts, including the Committee of experts on Frontier Formalities (now called the “ad hoc Committee of experts for Identity Documents and Movement of Persons”, abbreviated to CAHID), to consider Recommendation 646 with a view to preparing, in consultation with each other, a draft resolution inviting the member states to harmonize national legislation in this field.

At the suggestion of the CAHID, the Committee of Ministers, taking the view that it did not have enough information at its disposal to be able to draft guidelines for the harmonization of policy on tracing missing persons, instructed the Secretariat to prepare a survey of the rules and practices applicable within and between states.

A questionnaire complied by the CAHID was accordingly circulated by the Secretariat to governments of member states in 1976.

From the replies to this questionnaire a study was compiled by a consultant (6), which took stock of the present situation in member states, the social and legal problems involved and possible ways of solving these problems at the European level (7). In the light of this study and its conclusions, the CAHID drafted the recommendation.

III. The Recommendation (8)

The recommendation remains the aim of the Council of Europe in this issue and the high importance that it should be rose at the international level in order to harmonize the rules and practices of the search of missing persons. It insist also in the fact that to achieve this aims the search should in not case and at not stage infringe the fundamental rights and freedoms of the individual and particularly his freedom of movement and the right to respect for his privacy.

It recommends the governments of the member’s states of the Council of Europe to:

- follow in the measures taken to search for missing persons the guidelines set out in the Appendix to this recommendation;

- encourage as far as possible direct co-operation between their competent authorities in the search for missing persons without excluding, as the case may be, recourse to diplomatic or consular channels;

- give all necessary assistance to diplomatic or consular authorities when the search is made through them;

- inform the Secretary General of the Council of Europe in proper time of all steps taken to implement this recommendation;

- place the documentation and information collected on this subject in the Council of Europe at the disposal of their competent authorities.

IV. Appendix to the Recommendation

The appendix gives guidelines in order to help the member’s states to set out the search of missing persons. Categories of missing persons to which this recommendation applies

These categories are as follow: - persons regarded as minor under the domestic law or where appropriate the private international law of the state where they disappeared;

- persons disappearing in suspicious circumstances such as to cause apprehension for their physical and/or moral safety;

- persons who may have been the victims of an accident;

- persons regarded as unable to provide for their own needs on account of their physical or mental state of their poverty.

Moreover, the member states should extend the search to other categories of persons if there is a legitimate interest in doing so, in particular with regard to:

- persons who have disappeared allegedly to escape their liability for maintenance;

- members of the legitimate or natural family with who all trace or contact has been lost.

Departments authorized to receive search applications or declaration that a person is missing

Each member state should nominate the official departments authorized to receive declarations that a person is missing or search applications, without of course excluding the possibility that an individual may if he so desires have recourse to private humanitarian or welfare organizations.

These departments should check the genuineness of such declarations or applications and obtain all necessary information firstly on the identity and particulars of the missing person and the circumstances in which he disappeared and secondly on the identity and qualifications of the person making the application. They should also examine the motivates which have led to the latter’s making the application.

Provision should be made in order that the person making the application shall notify the departments concerned without delay if the missing person reappears or any fresh information obtained as to his circumstances.

Except when the public interest requires otherwise, a search application for a missing person of full age should lapse after a given period. The person making the application may, however, renew his application on the expiration of this period.

In order not to infringe the privacy of the persons concerned the information asked for by these departments should be adequate and relevant to the purpose in hand. Moreover, the information furnished may not be used for any purpose other than the search for the missing person.

National offices

If such a body does not exist, each member state should appoint a national office serving as a center for the exchange of information connected with the search for missing persons at the international level and, whenever possible, at the national level. It should notify the Secretary General of the Council of Europe of existing offices or offices that have recently been appointed so that the other member states may be informed.

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The role of this office should be to exchange with national offices in other states, requests for the search of missing persons and information received in reply to those requests.

Furthermore, the office should facilitate the search either by taking all the necessary steps itself, or, if competence in this field lies with other authorities, by calling on those authorities to make the necessary comparisons and checks, to issue search notices or to decide whether it is necessary to initiate an international search.

Without excluding diplomatic channels, contact between the national offices and in particular the circulation of search notices should be effected through Interpol. Consular officials may apply directly to the national office in the state of residence.

Position of a missing person who has been found

Steps should be taken in order to ensure that a missing person who has been found may if he so wishes refuse to allow his address or any other information concerning him to be communicated to the person making the application. However, as a general rule the competent authorities are not bound to give effect to such a refusal in the case of minors, or persons incapable of supplying their own needs on account of their mental state, or persons with maintenance liabilities.

The cost of a search for missing persons should be borne by the state where the search was performed. The costs, if any, of board, lodging and repatriation of a missing person who has been found should normally be borne by the state where he is ordinary resident, subject to any provisions to the contrary in the domestic law of the member states concerned or in international agreements or arrangements or practices which exist or may exist between them. This guideline does not affect the liberty of a state to recover the cost from the person concerned from other persons bound to carry these costs.

V. Follow up

If the recommendation in itself, from our point of view, was innovative in 1979, her weaknesses consist in the fact that not one at the Council of Europe level (The Parliamentary Assembly neither the Secretary) made a follow up. On the other hand, it belongs to each member state to take up and implement the measures and guidelines contained in the recommendation. With this workshop and the International Conference of Governmental and Non-governmental experts that will be organized next year by the International Committee of the Red Cross, the Council of Europe have the great opportunity to make the point and to improve the situation. It is possible, for example, that in September 2002, the Social, Health and family Affairs Committee and the Legal Affairs Committee of the Parliamentary Assembly (that since 1971 took up the issue of missing people) discuss this issue and decide what to do in order to follow up the recommendation into the members’ states. It is also possible to decide to support the ICRC conclusions and recommendations, asking the member states to implement it.

Resolution 828 (1984) on enforced disappearances (9)

I. Introduction

By Resolution 828 (1984) adopted by the Parliamentary Assembly of the Council of Europe on 26 September 1984, the Assembly referring to its Resolution 774 (1982) on Europe and Latin America – the challenge of Human Rights, and his Order N° 409 (1982), on Europe and Latin America, the Assembly convinced that enforced disappearances resulting from unlawful actions by the authorities responsible for law and order and security or similar bodies or the misuse of authority, often during the detention or imprisonment of the persons concerned, are incompatible with the ideals of any humane society, took up this topic of “on enforced disappearances”. II. History

The Assembly in its Resolution 722 on the situation of human rights in Latin America, this organ called on the governments of the member states to “promote, in a world context within the United Nations, the conclusion of an international convention designed to prevent and abolish disappearances, in particular by defining the guilt of those responsible for them” (paragraph 11.e). This section of the resolution aroused considerable interest in international

circles and raised the hopes of organizations of refugees. At a colloquy entitled “Europe and Latin America: the challenge of human rights” (Madrid, 16-18 October 1981), a number of practical proposals regarding the content of such a convention were made. On the basis of the colloquy’s findings, Order N° 409 (1982) on Europe and Latin America instructed the Legal Affairs experts and in liaison with the United Nations, the possibility of concluding an international convention fort he prevention and punishment of the practice of “forcible disappearance”.

III. The report on enforced disappearances (10)

In this report the rapporteur (11) begins by defined what disappearances means: “What we are dealing with here bears no relation to the thousands of people who, every year, voluntary leave their families, friends and jobs. It concerns neither adolescents, who have dropped out nor the victims of private kidnappings. Instead, as has become apparent in several parts of the world, it is an instrument of government’s policy: a new technique for getting rid of political opponents and their supporters. The way in which the technique is practiced and its frequency varies from country to country. Armed groups acting in an official capacity, after which they disappear, arrest the victims leaving no trace. Sometimes no more is heard about them; while in other cases they appear as corpses weeks or months later. Some are found in prisons or detention centers, while others are released after vying periods of detention.

This document also pointed out the fact the enforced disappearances are not exclusively confined to a region or continent but it is a world problem and before go through a number of different sections, the report add that in addition to the suffering of the victims of disappearance, it is necessary to bear in mind the repercussions of their disappearance on their families, in particular their children.

Section B made mention to the reaction of the international community to disappearances in the case of the victim (the right to humane conditions, the right of life), in the case of the relatives of a disappeared person and the activities of international organizations.

Finally, Section C contained the conclusions and the recommendations. It put out that disappearances are closely linked with the internal political stability of the countries concerned. That there is no easy answer to the problem and that the experience has shown that when the internal balance is restored the practice ceases. In theory the constitutional legislature and judiciary in all countries where practices take place provide perfect safeguards fort he individual against illegal acts by the authorities and the misuse of authority, just as they guarantee that any person detained will be tried quickly. In practice, these legal and constitutional safeguards provide no remedy. On the one hand, the executive does not abide by the country’s constitutional and legal provisions, and on the other hand, the judiciary is unable to force it to do so, either because it does not, in practice or even by law, have the power to oblige the military authorities or he executive to provide the information it needs to ensure that individual liberties are fully respected, or because the judges, fearing for their own safety, do not dare to deal lawfully with the cases before them. Whether this practice can be wiped out depends mainly on the way in which the existing national legislation is enforced and observed, rather that on the introduction of new legislation.

International public opinion should protest strongly against this unacceptable practice and demand that individual liberties be fully respected. National enquiry commissions should be set up in the countries where disappearances have been reported. Steps must be taken to ensure that those responsible for enforced disappearances are punished, either after a change of regime or when discovered abroad.

IV. The Resolution 828 (1984)

The Parliamentary Assembly convinced that international co-operation is essential if this atrocious practice is to be stopped and considering that the recognition of enforced disappearance as a crime against humanity is essential if it is to prevented and its authors punished, calls on the governments of the member states of the Council of Europe: a. to support the preparation and adoption by the United Nations of a declaration setting forth the following principles:

i. Enforced disappearance is a crime against humanity, which:

1. cannot be considered a political offence and is therefore subject to the extradition laws;

2. is not subject to limitation;

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3. may not be covered by amnesty laws;

ii. Persons responsible for enforced disappearances may be prosecuted not only in the country in which the offence was committed, but in any country in which they have been arrested; b. to adapt their legal system in accordance with the above principles with a view to giving them binding force.

V. Follow up

As recalled above, it belongs to the member states of the Council of Europe to implement and to fulfill the recommendations and the resolutions coming from the Parliamentary Assembly, the Committee of Ministers or another body as the Commissioner for Human Rights. Concerning this resolution, recently the Council of Europe recall it in the case of a Ukrainian journalist disappeared. The Council of Europe asked Ukraine to respect her responsibilities as member state.

European Court of Human Rights

The European Court of Human Rights has done a lot on the issue of missing persons. For this reason, it is very important to take in consideration its established precedents, which presume that the State is liable for persons who have gone missing and were last seen in the custody of the public authorities (12).

Human Rights Institutions

Since 1979 (date of the recommendation (79) 6) many things changed in Europe and some institutions become very involve in human rights issues at the national and international level. It is the case of the Ombudsman, the National Human Rights and the National Commission for Human Rights institutions.

Those institutions had showed their importance and strengths in different countries and in different situations and issues. For this reason, in the countries in which those institutions exist and does not exist other mechanisms that could take in charge the situation of missing persons, it is necessary to think at the possibility that they take up this responsibility and make the liaisons with another’s national and international organizations working on. Of course, it is necessary to give them, in this case, the resources that they will need in order to fulfill this task.

Council of Europe Commissioner for Human Rights

The idea of instituting the Office of the Commissioner for Human Rights (13) was first approved at he Summit of Heads of State and Government held in Strasbourg in October 1997 and the resolution setting out the Commissioners’ term of reference was adopted, after being debated by the Parliamentary Assembly, at the 104th session of the Committee of Ministers held on 6 and 7 may 1999 in Budapest. The Parliamentary Assembly, by a majority of votes cast, elects the Commissioner for Human Rights from a list of three candidates drawn up by the Committee of Ministers; the Commissioner is elected for a non-renewable term of office of six years. The fundamental objectives of the Commissioner are laid out in “Resolution (99) 50 on the Council of Europe Commissioner for Human Rights”. The Resolution requires that the Commissioner promotes education, awareness and respect for human rights in member states and ensures compliance with the Council of Europe’s conventions and recommendations. The Commissioner’s principle activities include: Official visits, Seminars, recommendations, opinions, conferences and so on. By his role, the Commissioner is a privileged intermediary between high-ranking officials, national and international institutions, as well as no-governmental organizations. On his late

Recommendation (CommDH/Rec (2002) 1) concerning certain rights that must be guaranteed during the arrest and detention of persons following “cleansing” operations in the Chechen Republic of the Russian Federation” (14), the Commissioner recommends:

1. That the authorities take all necessary steps to ensure that, during operations to check citizens' registration of their place of domicile (propiska cards) in relation to their current whereabouts within the Chechen Republic, so- called "cleansing" operations undertaken by the armed forces, the provisions of Decree no. 46 of the Prosecutor General of the Russian Federation and Order no. 80 of General Moltenskoi are effectively applied and that any breaches thereof be severely sanctioned,

2. That, in order to ensure that citizens actually enjoy the constitutional rights guaranteed in the event of their arrest and detention by soldiers or on the territory of a military base, the Prosecutor General take action to secure effective access by civilian prosecutors to all places where civilian detainees might be held, including military bases, in accordance with Article 22 of Constitutional Federal Law no. 168-FZ of 17 November 1995 "On the Prokuratura of the Russian Federation";

3. That, in order to implement the foregoing recommendations and strengthen effective respect for human rights, the Prosecutor General might envisage, on the basis of his regulatory powers, setting up specific machinery for cooperation and coordination between civilian and military prosecutors in Chechnya. This might entail, for example, joint inspection teams, comprising a civilian prosecutor and a military prosecutor, who would make a joint inspection visit to a military base with a view to meeting detainees and, where applicable, exercising their respective prerogatives to institute legal proceedings in respect of the civilian detainees and, if necessary, prosecute for any violations committed by servicemen when arresting civilians.

4. That the material and human resources available to the civilian Prokuratura be reinforced so that it may duly exercise its supervisory and investigative functions.

5. That the necessary steps be taken so that the families of detainees and, where applicable, non-governmental organizations actively involved in fostering respect for human rights in Chechnya are informed of the fate of persons arrested and/or detained during operations to check citizens' registration of their place of domicile (propiska cards) in relation to their current whereabouts within the Chechen Republic.

It is also important to point out the Commissioner role in set up the Human Rights Office in Chechen Republic. It has showed his capacity to put in the first line the rule of law and the implementation of the international human rights standards in a very difficult situation. For this reason, his good offices could be a very important key in the search of solution in which the parties concerned with the situation of missing persons cannot find, alone, a compromise.

Notes

(1) See www.coe.int (2) It is not electronic support viable. (3) Doc. 2996 of 15 September 1971. (4) Mr. WIKLUND. (5) It is not electronic support viable. (6) Mr. FERAUD. (7) Doc. CAHID (78) 1. (8) It is not electronic support viable. (9) Text debated and adopted by the Parliamentary Assembly of the Council of Europe on 26 September 1984, see Doc. 5273, report of the Legal Affairs Committee. (10) Parliamentary Assembly of the Council of Europe, 19 September 1984, Doc. 5273. (11) Mr. VERDE, expert to the Legal Affairs Committee of the Parliamentary Assembly. (12) See European Court of Human Rights, Annual Report 2001, p. 56/57 and its precedents. (13) See www.commissioner.coe.int (14) Idem that footnote 12, /recommendations.

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3.11 By Mr Gradimir Nalic, Advisor for human rights issues, Cabinet of the President of the Federal Republic of Yugoslavia (Yugoslavia)

"It is clear that a large number of people included in the list of missing and kidnapped persons are no longer alive, and their families have to be made aware of that. Once and for all, a line is to be drawn below everything that happened in the past, so that we could build a multiethnic community in this municipality, where the historic legacy of Serbs does exist. ‘’ KFOR Commander Marcel Valentin Introductory Notes (brief historic reminders)

The KFOR commander said these words full two years after the arrival of peacekeepers in Kosovo and Metohija in June 1999. Once the international peacekeeping force was in place, hundreds of thousands of Albanian refugees and IDPs returned to Kosovo and Metohija in mere three weeks. On the other end of the refugee specter, some 250,000 Serbs, Bosniacs, Roma and other non-Albanians left for Serbia and Montenegro in a week. In July 2002, when I am about to end this article, provisional administrative organs of Kosovo and Metohija are installed – the provisional parliament and government, whose work is supervised and decisions approved by the U.N. Secretary General's High Representative and the UNMIK directorate. Kosovo's multiethnic judiciary and police are still awaiting a consensus of the Federal Republic of Yugoslavia (FRY) authorities, the High Representative and the local provisional institutions. Preparations are underway for a local vote in Kosovo and Metohija, despite the fact that less than two percent of non-Albanian IDPs returned to the province. In the second half of 1998, another problem has loomed – persons that went missing during the armed clashes in Kosovo. Other armed conflicts on the soil of former Yugoslavia, dating back to 1991, also took a heavy death toll. A large number of people are still unaccounted for. Unfortunately, as time goes by, it becomes less and less likely that any further survivors will be found. Yet as long as their fate remains unknown, their families will desperately hope that they are still among the living. After the 2000 democratic change in the Federal Republic of Yugoslavia (FRY), the new authorities, having inherited this too heavy a burden, realised that the state could no longer maintain the former regime's attitude, tolerating the silence and acting pro-forma only to manipulate the problem of missing persons of all nationalities for political purposes. Families are seeking specific answers for specific cases. They simply have to know, however bad the news may be. Apart from this emotional burden and psychological need, there is a long series of administrative and legal problems related to the status of missing persons and their families. After a decade of wars, the state bodies, international organisations and associations of the families of missing persons are now searching for the missing, divided into four categories: 1.Persons that went missing during the Croatian war since 1991 and those who disappeared before and after the 1995 military operations in three U.N. sectors in Croatia. 2.Persons reported missing during the war in Bosnia and Herzegovina (1992-1995) 3.As of the second half of 1998, the problem of persons reported missing in the armed clashes in Kosovo and Metohija has also emerged. Persons that went missing in the Croatian war since 1991 and those that disappeared before and after the 1995 military operations in three U.N. sectors in Croatia

According to available information, close to 2,900 Serb families have been unaware of the whereabouts of their members since the 1991 war in Croatia. The search for the missing began as far back as December 1991, when Yugoslav and Croatian representatives met under the auspices of the International Committee of Red Cross (ICRC). The work of the Joint Commission was interrupted at the beginning of 1994, during a meeting of the two countries' foreign ministers in Zagreb. Nevertheless the activities resumed in February 1995, when a new meeting took place. In 1995 and 1996, the Croatian authorities were delivered a list of 2,973 persons that went missing during the "Flash" and "Storm" war operations the Croatian army had launched in May and August 1995 in order to take over the U.N.- protected areas. Some 2,000 Serbs have not been found yet. Cedomir Maric, president of an association of missing persons' families from Krajina, said that more than 6,000 were killed during the "Storm" offensive, while more than 2,800 were reported missing. Of 301 victims ICTY investigators found in the Knin graveyard, only 78 have been identified so far.

After the Inter-State Agreement on Normalisation of Relations between FRY and the Republic of Croatia was signed on August 23, 1996, the first meeting of the Missing Persons Committees took place on November 19, 1996. The work of the two state bodies reflected clearly strained relations between Croatia and Yugoslavia. It was not before Slobodan Milosevic's regime was toppled and new political authorities took over in Croatia that the two committees made progress. It is noteworthy that the progress they made was underpinned by international efforts and contributions by humanitarian organisations in particular, which will be discussed further in the article. Persons that went missing during the war in Bosnia and Herzegovina (1992-1995)

During the war in Bosnia and Herzegovina, the search for the missing has been hampered in many ways, largely due to poor communication between the parties to the conflict. Having singed the Dayton Peace Agreement, the signatories also accepted certain solutions related to the search for missing persons. A year after the hostilities ended and the Dayton accords went into force, the accurate number of missing persons was not established yet. According to the State Committee for Missing Persons of Bosnia and Herzegovina, the list includes 26,887 persons. The Croatian side in the Federation of Bosnia and Herzegovina reported 651 unaccounted-for Bosnian Croats. The Republika Srpska failed to submit a detailed list, but its representative reported 2,000 Serbs missing. The reports by the three sides considered, there have been around 30,000 missing persons in Bosnia and Herzegovina. Missing Persons in Kosovo and Metohija

When it comes to the persons reported missing during the Kosovo armed clashes since 1998, the figures are far less accurate than those provided by the Republic of Croatia and Bosnia and Herzegovina. The number of missing persons varies depending on the source and the time when it was published. Some Western sources, particularly during the NATO bombing, mentioned a few tens of thousands missing persons, predominantly Kosovo Albanians. On the other hand, the Red Cross of Serbia tracing service, addressing the non-Albanian population in Kosovo, Serbs and Montenegrins in particular, reported 1,300 missing persons. Reliable sources in Kosovo and Metohija say that 2,700 Albanians are still searched for. Problems related to missing persons are heavily emphasised in Kosovo, because official contacts between FRY competent bodies and the U.N. administration in the province have been virtually non-existent since the Kumanovo agreement was signed. In 1999 and 2000, ICTY investigators carried out massive exhumations in Kosovo and Metohija. Sixty-five percent of 2,100 bodies were identified. Only one victim was of Serb nationality. Relevant cooperation between the FRY and Serbian authorities and the U.N. administration in Kosovo, UNMIK in particular, began at the initiative of President Kostunica by a mission of goodwill in November 2000. Owing to the mediation of representatives of the Belgrade and Pristina Offices of U.N. High Representative for Human Rights, attempts were made at bringing together the families of missing Serbs and related Albanian organisations. The proceeding point was a good experience in Croatia and Bosnia, where the search for missing citizens produced tangible results only when the families on all sides suppressed their personal tragedies and began to exchange information and experiences in tracing their dearest with the assistance of international humanitarian organisations. The work resumed in December 2000, when representatives of UNMIK, ICRC, ICMP, the Yugoslav Red Cross, the federal interior ministry and the Yugoslav army met at the Office of the Yugoslav President. In the summer of 2001, a mass grave was discovered in the Batajnica special police training centre near Belgrade, along with a freezer truck, recovered from the Danube River. The bodies were buried in Petrovo Selo. An autopsy was carried out in Petrovo Selo, as well as on three locations in the Belgrade suburb of Batajnica were the bodies were re-buried. The exhumations were attended by representatives of international organisations and NGOs, as well as ICTY investigators. The results of the investigation have not been released yet. Joint activities focused on elucidating the fate of the missing between the Yugoslav authorities, which formed the federal and republican governments' Coordinating Centre, and UNMIK, were legalised by the Agreement on Cooperation Between FRY and UNMIK of November 2001. The document contains a special chapter entitled Missing Persons, "reaffirming commitment to resolving the fate of around 4,000 missing persons." The agreement was accompanied with the Protocol on Exchange of Forensic Experts and Expertise, the Protocol on Joint Verification Teams for Secret Prisons and the Protocol on Cross-the-Border Repatriation of Identified Mortal Remains, all the three signed in February 2002.

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For the first time, joint forensic teams were formed and began to yield results. At a graveyard in the Pristina suburb of Dragodan, the remains of ten persons were found last month. Two of them were identified and returned to their families. The other eight are yet to be identified through a DNA analysis. An autopsy was carried out in Orahovac, and all the bodies were identified on the basis of documents found with them and forensic operations, but the families are still waiting for the results of DNA tests. The exhumation on the Dragodan location will resume late in August, when another 150 bodies are expected to be dug up. The Office of the FRY President for Missing and Imprisoned Persons

Until the Coordinating Centre for Kosovo and Metohija was established by the Yugoslav and Serbian governments, the issue of the missing was preliminary addressed by the Office formed at the Yugoslav President's cabinet. The Office was established to help resolve the fate of all persons that went missing on the soil of former Yugoslavia, regardless of their national, religious or other affiliation, the persons mostly of Serb ethnicity whose families reside in the FRY territory (outside Kosovo and Metohija), refugees and internally displaced persons. The problem of disappearances in Kosovo and Metohija was given certain advantage, since the mandate of the federal government commission (established before the Kosovo crisis broke out) did not include jurisdiction over the territory of Kosovo and Metohija. The Office has not addressed individual cases, but rather sought to establish an organised system and communication between all relevant actors that could contribute to the clarification of the fate of missing persons. In its Programme, the Office called for a more effective cooperation with the states formed after the breakdown of former Yugoslavia and the U.N. administration in Kosovo. One of its principal goals was to encourage a free exchange of information on missing persons, primarily the data that could facilitate or enable identification. We advocated full transparency in the exchange of information, without any restrictions whatsoever. The activities of the Office have been aimed at establishing cooperation between the state bodies, agencies and professionals and international organisations and NGOs active in Yugoslavia. Also, its goal was to coordinate their work towards a single functional system for resolving the fate of missing persons, which would also foster cooperation between the member states of the former Yugoslavia and with UNMIK. The mandate of the Office does not include investigative actions related to the missing. This in no way implies that the Office does not consider the disappearances and the problem of missing persons on the territory of former Yugoslavia possible criminal acts. In a word, if there have been data that could assist court or/and police investigation related to individual cases, and whenever there was a mutual will to exchange such data, the Office has encouraged their flow. The Office established and maintained very extensive contacts with the associations of missing persons' families. By coordinating the work of the existing state institutions, the Office made it possible for the families to learn more about the ongoing investigations and be informed when their specific cases have been resolved. Assistance Fund for the Families of Missing Persons

The Office of the FRY President designed a plan for a special fund, which, in the absence of other normative regulations, would provide different forms of regular and periodical financial assistance to the families of the missing. First of all, the project would ensure scholarships for missing persons' children. Apart from the scholarships, these students would be given assistance in purchasing books, stationery and the like. The financially vulnerable families of missing persons would be also provided with different forms of material assistance including, for instance, one-time specific-purpose payments (for fuels, medicaments and the like) or with continuous financial aid. Special assistance would be provided if post-mortem identification proves that a missing person was dead – in this case, the costs of transport of remains and burial would be covered. Another activity of the Fund would include psycho-social assistance to the families of missing persons. In carrying out these operations, the Fund would rely on partner organisations, largely from the NGO sector. In other words, the Fund would use its authority and resources to identify donors willing to provide for financial assistance, and then organise this activity with the assistance of partner organisations specialised in providing psycho-social assistance to different vulnerable categories. The Fund's task would be to identify end-users of psycho-social assistance and evaluate the results or the project. Depending on available resources, the Fund could also organise this same kind of assistance for professionals involved in post-mortem identification and the search for the missing, since these activities pose a substantial psychological problem to them. The Fund would also organise free-of-charge legal aid to the families of missing persons. This kind of assistance would cover only the issues and problems related to the disappearance of a family member, including property claims, marital and family relations and the like. This segment would be organised in the following manner. Firstly, the Fund would identify a number of law firms in Yugoslavia, with which it would enter into a partnership contract. The Fund would then advise the families of missing persons to approach these offices. Also, the Fund could engage relevant human rights agencies that have already put in place legal aid programmes. In some cases, the Fund could

mediate with state bodies and facilitate the conclusion of certain proceedings. Within this legal aid project, the Fund would also ensure other forms of expert assistance of immediate relevance to the families – an independent expert evaluation of the post-mortem identification, a control DNA test in specific cases, etc. The Fund's continuous activity would include appeals to public, general and professional, local and international alike, and diverting attention to the problems of missing persons and their families in the post-conflict period on the former Yugoslav soil. By addressing other issues falling within its scope of activities, the Fund will collect information on missing persons and their families that would comprise a comprehensive database. These date would be systematised and analysed, which would allow for the application of statistical methods and give a clear picture on the scope of the problem of persons reported missing on the territory of former Yugoslavia, whose families reside in the Federal Republic of Yugoslavia. Certain segments of the database would be published in an appropriate form and made available to the general public and experts. Within the realm of possibility, the Fund would help develop the potential of professional involved in resolving the fate of missing persons and post-mortem identification (forensic experts, molecular biologists, police experts, etc.). This advancement program would include a series of lectures and training sessions involving prominent foreign experts. Furthermore, local experts would be enabled to develop their skills abroad. The Fund would also support and try to integrate the activities of associations of missing persons' families. This would establish a more direct contact with the families of missing persons and promote the ideas of the Fund. On the other hand, the Fund would provide these associations with financial or other forms of assistance (legal in particular) to support their programmes. The Role of International Humanitarian and Non-Governmental Organisations

The ICRC has played an important role in the search for the missing. It is the mandate of this organisation to try to establish the fate of missing persons and help all the victims of a conflict. Moreover, the international humanitarian law gives families "the right to know the fate of their relatives." (1) The ICRC has undertaken extensive activities on the soil of former Yugoslavia in order to foster the search for missing persons. Through the ICRC network, this organisation collected claims for tracing missing persons. The first deadline was December 1996, but it was subsequently extended several times. Over the past two years, the ICRC has been actively involved in the search for missing persons through training programmes for collection of ante-mortem data, a collection of photographs of objects, clothes and other effects found during exhumations. ICRC experts have offered psychological and material assistance to the associations of families of missing persons, with whose representatives daily contacts have been established. Training programmes for Yugoslav experts have been supported and other steps made to link and coordinate the work of all state bodies, the Yugoslav Red Cross and NGOs specialised in this sphere of activity. I believe that the role of the ICRC could be extended to the organisation of expert debates involving legal experts who have been underlining the need to include in the international humanitarian law a new legal institute that would oblige all the states to incorporate in their respective legal systems "the right of families of missing persons to seek and receive from their states the answer to the question of clarification of the fate of their dearest." The International Commission for Missing Persons (ICMP) has also taken an active part in these activities. The ICMP was established in June 1996, at the proposal of the U.S. president during the G-7 meetings in Lion. All until the 2000 democratic change in Yugoslavia, the former regime refused to establish official cooperation with this organisation. Having signed an agreement with the FRY Government, the ICMP became a serious partner to the Yugoslav authorities. Through the ICMP Office in Belgrade, it participates in the collection of blood samples for DNA tests. In collaboration with the Belgrade-based Forensic Medicine Institute, a modern laboratory for DNA tests should be opened soon. Once it reaches its full capacity, it should process more than 200 samples a month. The agreement with the Federal Government, yet to be accompanied with proper legislation, provides legal grounds for the work of the ICMP.

(1) Article 1, Protocols Additional to the Geneva Conventions of August 12, 1949 (Protocol 1)

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3.12 By the Office of the High Commissioner for Human Rights, United Nations

ENFORCED OR INVOLUNTARY DISAPPEARENCES: UNITED NATIONS PROTECTION MECHANISMS

In 1979, given the grave nature of disappearances, the General Assembly, in its resolution 33/173 entitled "Disappeared persons", expressed concern over reports from various parts of the world relating to enforced or involuntary disappearances of persons and requested the United Nations Commission on Human Rights to consider the question and to make appropriate recommendations. At the same time the General Assembly also called upon Governments to devote appropriate resources to undertake rapid and impartial investigations into cases of enforced or involuntary disappearances and to ensure that law enforcement and security authorities were fully accountable, especially in law, in the discharge of their duties. Such accountability would include legal responsibility for unjustifiable excesses which might lead to enforced or involuntary disappearances and to other violations of human rights.

In 1980, The Commission on Human Rights, established a Working Group on Enforced or Involuntary Disappearances, pursuant to Resolution 20 (XXXVI).The Working Group became the first thematic mechanism of the Commission on Human Rights and the most important UN Body dealing with disappearances. Initially the Working Group was established for a one-year period and renewed on a yearly basis. After 1992, the Commission on Human Rights decided to give the Working Group a three year mandate.

Subsequent years have seen the establishment, by the Commission or the Secretary- General, of other thematic procedures in related fields, such as the appointment of special rapporteurs/representatives on extrajudicial, summary or arbitrary executions; the question of torture; the independence of judges and lawyers; internally displaced persons; freedom of opinion and expression; violence against women; intolerance and discrimination based on religion or belief; racism, racial discrimination and xenophobia; the effects of toxic and dangerous products on the enjoyment of human rights; the sale of children, child prostitution and child pornography; the use of mercenaries; and the establishment of the Working Group on Arbitrary Detention.

The total number of cases transmitted to the working Group since its inception stands at 49,082. The total number of cases being kept under active consideration1/ stand at 41,859, pertaining to more than 70 countries. For reasons well beyond the scope of the Working Group, only a fraction of those cases have been clarified. Nevertheless, the extent to which the Working Group, through its patient and persistent contacts with the Governments concerned, may have prevented more cases from occurring cannot be quantified.

Moreover, the Working Group should be seen as a reflection of international concern and action. It should equally be seen as forming part of a long-term process leading to the elimination of major human rights violations, a process which includes the creation of widespread public awareness of human rights-related issues and the provision of advisory services and technical assistance to Governments for the promotion and protection of human rights.

In its annual resolutions on the subject the Commission on Human Rights has endorsed the Working Group's methods of work and the humanitarian spirit underlying its mandate. It has urged the Governments concerned to take steps to protect the families of disappeared persons against any intimidation or ill-treatment to which they might be subjected and encouraged them to give serious consideration to inviting the Working Group to visit their country.

Today, the Working Group’s legal framework includes the Charter of the United Nations, the International Bill of Human Rights2/ and the Declaration on the Protection of All Persons from Enforced or Involuntary Disappearance3/.

WORKING GROUP ON ENFORCED OR INVOLUNTARY DISAPPEARANCES

The Working Group composed of five experts acting in their individual capacity, meets three times a year for five to eight working days in Geneva or New York. The Working Group reports annually to the Commission on Human Rights.

The Group’s basis mandate, as established in Resolution 20/1980 is to assist the relatives of disappeared persons to ascertain the fate and whereabouts of their missing family members. In relation to its mandate, the Working Group

acts as a communication channel between the family of the missing person and the Government concerned. The Working Group deals with the numerous individual cases of human rights violations on a purely humanitarian basis. The Commission on Human Rights has endorsed the Working Group's humanitarian spirit underlying its mandate.

In addition to its original mandate, the Working Group has been entrusted by the Commission on Human Rights with various tasks. In particular, the Working Group is to monitor States’ compliance with their obligations deriving from the Declaration on the Protection of All Persons from Enforced Disappearance and to provide to Governments assistance in its implementation. The Working Group reminds the Governments of their obligations under the Declaration not only in the context of clarifying individual cases but also that of taking action of a more general nature. It draws the attention of Governments and non-governmental organizations to general or specific aspects of the Declaration, it recommends ways of overcoming obstacles to the realization of the Declaration, it discusses with representatives of Governments and non-governmental organizations how to solve specific problems in the light of the Declaration, it assists Governments by carrying out on-the-spot visits, organizing seminars and providing similar advisory services. The Working Group also makes observations on the implementation of the Declaration when the concerned Government has not fulfilled its obligations related to the rights to truth, justice and reparation.

The Working Group's action is based on the principle that the State is responsible for human rights violations committed within its territory and is obligated to prevent such violations or to investigate them when they have occurred. As with all other situations of State responsibility, such responsibility continues to exist irrespective of changes of Government.

The Working Group does not deal with situations of international armed conflict, in view of the competence of the International Committee of the Red Cross (ICRC) in such situations, as determined by the Geneva Conventions of 12 August 1949 and their Additional Protocols of 1977.

DEFINITION OF ENFORCED OR INVOLUNTARY DISAPPERANCE

According to the Declaration preambular part, enforced disappearances occur when persons are arrested, detained or abducted against their will or otherwise deprived of their liberty acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.

HANDLING THE CASES: WORKING METHODS

STEP 1. Reporting a disappearance: basic elements

A case presented to the Working Group has to be submitted in writing and provide a clear indication of the identity of the sender. If the source is not a family member, it must be in a position to follow up with the relatives of the disappeared person concerning his or her fate. The report must contain the following minimum elements: (a) full name of the missing person; (b) date of the disappearance4/; (c) place of arrest or abduction, or where the person was last seen; (d) parties presumed to have carried out the arrest or abduction or to be holding the disappeared person in unacknowledged detention; and, (e) steps taken by the family to determine the fate and whereabouts of the disappeared person, or at least an indication that efforts to resort to domestic remedies were frustrated or have otherwise been inconclusive.

STEP 2. Examination of the case and transmitting the case to the Government

Once admitted, reported cases of disappearance are generally placed before the Working Group for detailed examination during its sessions. Depending on the time when the case of the disappearance occurred, a normal or an urgent action procedure will apply.

Under the normal procedure, cases are transmitted, under the Group’s specific authorization, to the Government concerned with the request to carry out investigations and inform the Group about its results. These cases are communicated by letter from the Group’s Chairman to the Government concerned through the Permanent Representative to the United Nations Office at Geneva.

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All cases that occurred within three months preceding receipt of the report by the Group are handled under the urgent action procedure. These cases are transmitted directly to the Ministry of Foreign Affairs of the country concerned by the most direct and rapid means. Their transmission can be authorized by the Chairman on the basis of a specific delegation of power given to him by the Group.

Special cases: a particular case may involve two or more countries, communications will be sent to the Government of the country were the person was last seen and to the Government whose officials or agents were alleged to be responsible for the arrest or abduction of the disappeared person. However, the case would be statistically attributed to the country were the person was reported arrested, detained, abducted or last seen.

STEP 3. Government replies

A Government is expected to reply to the Working Group’s request for information. If a communication is not received, the Working Group send reminders to the Government. These are once a year, under the normal procedure or twice a year, under the urgent action procedure.

The Working Group retains cases in its files until the exact whereabouts of the missing persons have been determined. It maintains that the State's responsibility for disappearances continues to exist irrespective of changes of Government. In order to determine the fate and whereabouts of a missing person a government may request advice to the Working Group, i.e. recommendation on list of experts for the investigation process, identification of victims, etc. Likewise, field missions may be carried out upon invitation of the Governments with the aim of enhancing the dialogue between the authorities most directly concerned, the families or their representatives; and, to assist in the clarification of the reported disappearance.

STEP 4. Forwarding the case to the source

Any reply of the Government containing detailed information on the fate and whereabouts of the disappeared person is transmitted to the source. If the source does not respond within six months of the date on which the Government’s reply was communicated to it, or if it contests the Government’s information on grounds which are considered unreasonable by the Working Group, the case is considered clarified and is accordingly listed under the heading. This process is known as the six month rule. If the source contests the Government’s information on reasonable grounds, the Government is informed and invited to comment.

STEP 5. Clarification and outstanding cases

Clarification occurs when the whereabouts of the disappeared persons are clearly established as a result of investigations by the Government, inquiries by non-governmental organizations, fact-finding missions by the Working Group or by human rights personnel from the United Nations or from any other international organization operating in the field, or by the search of the family, irrespective of whether the person is alive or dead. The Working Group's role ends when the fate and whereabouts of the missing person have been clearly established as a result of investigations by the Government or the family, irrespective of whether that person is alive or dead. At that point the Working Group no longer concerns itself with the question of determining responsibility for specific cases of disappearance or for other human rights violations which may have occurred in the course of a disappearance; its work on this individual level is of a strictly humanitarian nature. Working Group will agree to close a case in its files when the competent authority specified in the relevant national law pronounces, with the concurrence of the relatives and other interested parties, that the person reported missing is presumed dead. A clarified case will be reopened, if the source provides well-documented information that the Government’s reply referred to a different person or situation or the communication did not reach the source within six months. In these cases, the whole process restarts. The Working Group may decide to discontinue a case in two situations: (1) the family solicits freely and indisputably not to pursue the investigation, and (2) the Working Group is unable to establish communication with the source or other contacts.

The Working Group considers cases as outstanding for as long as they have not been clarified or discontinued. This principle is not affected by changes of Government in a given country nor in the event of State succession.

PARTICULAR ISSUES

Cases of intimidation, persecution or reprisal against relatives of missing persons, witnesses to disappearances or their families, members of organizations of relatives and other non-governmental organizations, human rights defenders or individuals concerned with disappearances are transmitted to the pertinent Governments, with the appeal that they take steps to protect all the fundamental rights of the persons affected. Cases of that nature, which require prompt intervention, are transmitted directly to the Ministers for Foreign Affairs by the most direct and rapid means. To that end, the Working Group has authorized its Chairman to transmit such cases between sessions.

Cases of the disappearance of a pregnant woman and children – in the event a child is presumed to have been born during the mother’s captivity but there is no evidence of the actual birth, the presumed delivery should be mentioned in the description of the case of the mother. The child would be treated as a separate case when witnesses have reported that the mother had actually given birth to a child during detention.

OTHER RELATED HUMAN RIGHTS MECHANISMS

If a case contains information relevant to other thematic mechanisms of the Commission, this is transmitted to the mechanism concerned. Other thematic mechanisms and bodies, include: the Working Group on Arbitrary Detention; the Special Rapporteur on Extrajudicial and Summary or Arbitrary Executions; the Special Rapporteur on Torture and the Human Rights Committee.

The Working Group on Arbitrary Detention has as a mandate to investigate cases of deprivation of liberty imposed arbitrarily, that is to say when the detention is contrary to relevant provisions established in the Universal Declaration of Human Rights and other international instruments. This Working Group receives individual complaints, but does not examine complaints about instances of detention and subsequent disappearance of individuals, about alleged torture, or other inhumane condition of detention.

The Special Rapporteur on Extra judicial and summary or arbitrary executions arose from the creation of the Working Group on Enforced or Involuntary Disappearances. The mandate includes inter-alia violations of the right to life in connection with death penalty; death threats and the fear of imminent executions by state officials, paramilitary groups, private individuals or groups cooperating with or tolerated by the Government; deaths in custody; violations of the right to life during armed conflicts.

The Special Rapporteur on torture covers all countries, irrespective of whether a State has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The mandate comprises three main activities: transmitting communications consisting of urgent appeals and allegation letters (alleged cases of torture) to Governments; undertaking fact-finding missions (country visits) to countries where information suggests that torture may involve more than isolated and sporadic incidents; and submitting annual reports on the Special Rapporteur's activities, mandate and methods of work to the Commission on Human Rights and the General Assembly.

The Human Rights Committee5/, a treaty monitoring body of the International Covenant of Civil and Political Rights, established in 1977 to monitor States Parties obligations, inter-State communications and individual complaints6/, has undertaken cases of disappearances since 1978. Although, the Covenant does not include any specific provision on disappearance, the Committee has concluded grave violation of human rights in cases of disappearance, on the basis of right to an effective domestic remedy (art 2(3)), right to life (Art. 6), prohibition of torture, cruel or inhuman or degrading treatment (art. 7), right of liberty and security of a person (art. 9), right of detainees to be treated with humanity and respect for the dignity (art. 10), right to recognition of a person before the law (art. 16), and right of children to special measures of protection (art. 24).

Special procedures in the context of international armed conflicts may be appointed by the Commission on Human Rights in relation to specific cases. For instance, in resolution 1995/35 entitled “Special process dealing with the problem of missing persons in the territory of former Yugoslavia”, the Commission on Human Rights established a joint mandate of the Special Rapporteur on the situation of human rights in the territory of former Yugoslavia and the Working Group on Enforced Disappearance. The mandate was humanitarian, aiming to determine the fate of thousands of missing persons and alleviate the suffering of relatives.

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RECENT DEVELOPMENTS: COMMISSION ON HUMAN RIGHTS

Two important resolutions of the Commission on Human Rights need to be mentioned. The first, resolution 2002/41 established an open-ended Working Group to draft an international binding instrument on Enforced or Involuntary Disappearance. The open-ended Working Group will operate on the basis of the UN Declaration on Enforced or Involuntary Disappearance; the draft convention on Disappearances adopted in 1998 by the Sub-commission on the Promotion and Protection of Human Rights; and, the Report on the international legal framework for the protection of persons from enforced disappearance7/ submitted by the independent expert, Mr. Manfred Nowak.

In regard to international armed conflicts, the Commission on Human Rights in its Resolution 2002/60, reiterated that States have the responsibility for taking adequate measure to ensure the respect and fulfilment of international humanitarian instruments, especially regarding missing persons and their families. The resolution requested the Secretary-general to present it to the attention of Government and to report on it to the Commission on Human Rights.

CONCLUSIONS

In its last report, the Working Group8/ pointed to a decline in the number of cases being brought to its attention. Between 1997 and 2001, the number of new cases transmitted by the Working Group declined from 1.111 in 1997 to 243 in 20019/. During 2001, the Working Group transmitted 243 new cases of disappearance that occurred in 25 countries; 58 cases of 15 countries followed the urgent action procedure. Only 50 of these cases occurred during the year under review.

During the year 2001, the Working Group was able to clarify a total of 4,419 cases of enforced disappearance, the largest number of cases that the Working Group has been able to clarify in its first 20 years of existence. The vast majority of clarifications (4,390 cases) relates to Sri Lanka, the country with the second highest number of disappearances on the list of the Working Group. Although the persons who disappeared in Sri Lanka more than 10 years ago were, unfortunately, not found alive, the clarification of their fate, after many years of uncertainty, hope and despair, nevertheless, constitutes a relief for the families concerned and might contribute to the process of re- establishing justice and peace in this war-torn country.

The example of Sri Lanka reflects a new approach on the part of the Working Group to invite Governments with a high number of unresolved cases of disappearances that partly date back to the 1970s to consider ways and means, in cooperation with the families and civil society, to provide justice to the victims and clarify those cases. In the past, the Working Group reported on positive examples of cooperation with Governments, such as those of Brazil and Mexico, leading to clarification of a substantial number of cases. The Working Group wishes to invite other Governments, in particular of countries with a high number of outstanding cases, to follow these examples.

Overall, of the total number of 7,921 cases that the Working Group considers as clarified since the beginning of its activities in 1980, only 2,398 persons were found to be still alive. This is a very small number when compared with the total of 41,859 outstanding cases on its files. Of the 74 countries with outstanding cases in 2001, the Working Group has never received any replies to its requests for information from the Governments of Burkina Faso, Burundi, Cambodia, the Congo, Denmark, Equatorial Guinea, Guinea, Israel, Mozambique, Namibia, Rwanda, Seychelles, and Tajikistan10/. The Palestinian Authority has also never replied to the Working Group.

The ultimate goal of the Working Group must be the eradication of the phenomenon of enforced or involuntary disappearance by appropriate preventive measures as provided for in the Declaration on the Protection of All Persons from Enforced Disappearance of 1992, the Inter-American Convention on Forced Disappearance of Persons of 1994 and the draft international convention for the protection of all persons from forced disappearance. Such measures include:

• reducing periods of administrative detention to an indispensable minimum; • establishing accessible and up-to-date registries of detainees and guaranteeing access to appropriate information and to places of detention to relatives, lawyers and doctors of persons deprived of their liberty; • refraining from expelling, returning (refouler) or extraditing persons to a State where they may be in danger of enforced disappearance;

• ensuring that persons are brought before a judicial authority promptly after detention and that they are released in a manner permitting reliable verification and in conditions in which their physical integrity and ability to exercise their rights fully are assured; • bringing to justice all persons presumed responsible, guaranteeing their trial only by competent ordinary courts and not by any other special tribunal, in particular military courts, • ensuring that they do not benefit from any special amnesty law or similar measures that might exempt them from any criminal proceedings or sanction; • providing redress and adequate compensation to victims and their families; • preventing and suppressing the abduction of children of parents subjected to enforced disappearance and of children born during their mother’s enforced disappearance, devoting efforts to establishing their identity and restoring them to their families of origin.

The Working Group has identified impunity as a root cause of the practice of disappearance. It is of utmost importance that the perpetrators be brought to justice, either before domestic courts, or, where disappearances are committed as part of a widespread or systematic attack against any civilian population, international tribunals. In this regard, the Working Group has expressed its satisfaction that the Rome Statute of the International Criminal Court explicitly includes enforced disappearance in the list of crimes against humanity. Since most cases of enforced disappearance occur in isolation and not necessarily as part of a systematic attack with the intention to remove the victims from the protection of the law for a prolonged period of time (an element required in the crime of enforced disappearance), efforts have to be increased to include enforced disappearance in all domestic criminal codes with appropriate punishments, and to bring the perpetrators to justice before domestic courts under national as well as universal jurisdiction.

The Working Group has expressed its appreciation to the Sub-Commission on the Promotion and Protection of Human Rights for its work in preparing a draft convention on disappearance and recommends to the Commission that it finalize, without further delay, the process of drafting “a legally binding normative instrument for the protection of all persons from enforced disappearance”.

The Working Group is gravely concerned about its inability, with the present limited financial resources and acute shortage of staff, to carry out the mandate assigned to it by the Commission and to fulfill its obligations. Over the last years, the number of its secretariat staff has been dramatically reduced from nine Professional and four General Service staff members to two Professionals, one of them working only half-time, and two part-time General Service staff members. The Working Group has reiterated its appeal to the Commission on Human Rights to meet the needs of the Secretariat by allocating the appropriate resources.

Where to submit reports? Reports of enforced or involuntary disappearances of persons may be transmitted to the Working Group on Enforced or Involuntary Disappearances of the Commission of Human Rights, c/o OHCHR-UNOG, CH-1211 Geneva 10, Switzerland, fax. no. (41-22) 917 9006. http://www.unhchr.ch/html/menu2/7/b/mdiswg.htm

Members of the Working Group Mr. Diego García Sayán (Chairperson-Rapporteur) (Peru), since 1988 Mr. Ivan Tosevski (The Former Yugoslav Republic of Macedonia), since 1980 Mr. Joel Adekanye Adebayo (Nigeria), since 2000 Members from the Western Regional Group to be appointed.

Note

1. According to the Working Group’s report E/CN.4/2002/79 2. Universal Declaration of Human Right, International Covenant of Civil and Political Rights and the International Covenant of Economic, Social and Cultural Rights. 3. General Assembly resolution 47/133, 18 December 1992.

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4. i.e.: day, month and year of arrest or abduction, or when the person was last seen. When the disappeared person was last seen in a detention center, an approximate indication is sufficient (for example: June 1998, March 2000) 5. The statements produced by the Human Rights Committee represent case law, as they are based on binding obligations ratified by States Parties. Therefore, individual complaints may be only presented in relation to those countries that have ratifies the convention and have accepted the individual complaint mechanism. 6. Submitted in accordance with the First Additional Protocol to the Covenant 7. Commission on Human Rights’ report E/CN.4/2002/71, 8 January 2002. 8. Commission on Human Rights. Fifty-eight session. E/CN.4/2002/79. January 18, 2002. 9. The highest number of cases of enforced or involuntary disappearance in 2001 allegedly occurred in Colombia (12) and Cameroon (9). 10. E/CN.4/2002/79, Question of Enforced or Involuntary Disappearances, page 8

3.13 By Prof Dr Christian Tomuschat, Juristische Fakultät, Humboldt-Universität zu Berlin (Germany)

Missing Persons in Guatemala The Challenge to the Commission for Historical Clarification I. Introduction

The civil war which engulfed Guatemala for more than three decades from 1960/62 to December 1996 was one of the most murderous conflicts in Latin America. According to the findings of the Commission for Historical Clarification (Comisión para el Esclarecimiento Histórico, CEH), the UN-sponsored body established on the basis of an agreement between the Government of Guatemala and the guerilla movement URNG, approximately 200,000 persons lost their lives during that period. One of the techniques in current use by the military and security forces of the State consisted in “disappearing” persons who were thought to be enemies of the regime. Even moderate criticism of the prevailing political structures was deemed to constitute “subversion”, and anyone thought to have subversive ideas – using for instance the term “social justice” – ran the risk of being arbitrarily arrested by governmental agents, never to be seen again. Additionally, in the rural areas the indigenous population was denied the most elementary human rights. More often than not, members of the Mayan communities were treated as not even enjoying a right to life. One of my first experiences after I had been appointed as Rapporteur on the human rights situation in Guatemala, a function which I discharged from 1990 to 1993, was a visit to northern town of Nebaj in the department of El Quiché (September 1990). The military had just removed the inhabitants of some small villages still further in the north of the department to a camp from which they were to be resettled elsewhere. After this operation was completed, a young woman and her baby were lacking. She had “got lost” during the transport by helicopter. No clues were availeble as to her fate, but all the circumstances seemed to indicate that she had been abused by the soldiers involved and that afterwards she and her baby had been killed. To date, the relevant occurrences have not been clarified. The Armed Forces never showed any willingnes to carry out an investigation. Such losses of indigenous lives were just considered a “fact of life” – or in that case a “fact of death”. II. The Work of the CEH

For the CEH, which started it operations in August/September 1997, shedding some light on the fate of the many missing persons, generally persons who had been disappeared, was a major challenge. Eventually, the report mentioned 6,159 cases of disappearances from among the 61,648 cases of grave violations found to exist on the basis of the evidence collected during the short period of investigations until July 1998 (1). Many people hoped that members of their families whose death had never been officially announced would still be alive. On the other hand, it was fairly clear from the very outset that the various military regimes in power had deliberately used the method of disappearances in order to put up a smokescreen concealing torture and death. And indeed, disillusionment soon destroyed all such hopes. It turned out that “missing” persons were just dead persons. In fact, Guatemala has the sad privilege of having invented the method of massive disappearances. The first such case has gained wide notoriety in Latin America and even beyond the boundaries of the American continent. During the first days of March 1966, the security forces of the State carried out a raid against the leaders of the Guatemalan Workers Party (Partido Guatemalteco del Trabajo, PGT). In its concluding report (2), the CEH has amply documented this case, which was generally referred to as “the case of the 28”. In reality, however, 33 persons were arrested. Only a few of them were able to escape. All the others lost their lives while in custody. Yet it could not be established how they were put to death. According to some allegations, the bodies were thrown from helicopters into one of the many volcano craters in the proximity of the capital Guatemala city. No proof could be found for the veracity of this allegation. The fact remains that the leaders of the PGT never showed up again. The obstacles preventing full discovery of the relevant facts were tremendous. First of all, it must be underlined that the armed confrontation reached its highpoint during the years from 1979 to 1983, thus many years before the CEH commenced its work (August/September 1997). It stands to reason that much of the evidence which may have been available originally did not exist any more at that point in time. Witnesses had died in the meantime, on-the-spot investigations were not possible any more. Second, the powers of the CEH were rather limited. It had been denied the right to compel witnesses to appear before it and to testify. Thus, nobody could be subpoenaed. The entire process of collecting evidence took place on the basis of voluntary cooperation. Consequently, it was mostly the victims and/or their relatives who came to talk

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about their experiences. But on the side of the victims little, if anything was known about the strategies employed in disappearing people. Unfortunately, the Government of President Alvaro Arzú, which was in power in Guatemala between 1997 and 1999 while the CEH discharged its mandate, did not actively support the efforts at clarification of the tragic events. It defrayed a small part of the costs entailed by the work of the CEH, but did not open up its archives. Additionally, some secret command must have been issued within the Armed Forces to the effect that nobody who, as a direct perpetrator or commander, had first-hand knowledge of the atrocities concerned should testify before the CEH. In fact, not a single member of the Armed Forces who had held a post of responsibility during the armed confrontation agreed to declare before the CEH. In some instances, however, the search for the truth yielded unequivocal results. The CEH supported the work carried out by two teams of forensic anthropologists who started digging up mass graves or secret cemeteries. During the lengthy period of military dictatorships, nobody would have dared to engage in such an undertaking. However, under the protection of the CEH the teams could carry out their work without being subjected to daily harassment. The relatives concerned, although many hopes were dashed, at long last had at least the certainty that their loved ones were dead. Subsequently, a decent burial according to Christian or Mayan rites could be given to the remains of the bodies. In its concluding recommendations, the CEH suggested that the Government provide assistance to all those wishing to pierce the secrecy of the thousands of cases of disappearances. In that connection, it also recommended an “active policy of exhumations” regarding the many mass graves the sites of which were well remembered by the local population (3). Unfortunately, as far as my knowledge goes, no such support has been given. Although the Government of President Alvaro Arzú had no direct links with the former military regimes responsible for the many disappearances during the ugly days of the armed confrontation, it still was implicitly of the view that the work of the CEH was tantamount to intrusion in the internal affairs of the country. In fact, in the Armed Forces, a determining factor in the internal power game, was a high degree of personal continuity was kept. The democratic regime had arrived creepingly, not as a groundwave of change. Thus, the former power structures were not really affected by the democratic cloak which the country chose as its new dress as from 1985. In the case of the current Government of President Portillo, who assumed office in January 2000, the reluctance to take active steps is even more understandable since Efraín Rios Montt, the general under whose de facto rule the worst atrocities were committed, was able to advance to the office of President of the Congress, the legislative body of the country. Indeed, he occupies this high post until this very day. III. Conclusion

The history of Guatemala shows that “missing persons” is a concept which encompasses as a minimum two different phenomena. In a given country, internal turmoil and fighting can lead to massive movements of refugees and the splitting up of families. In particular, in such chaotic circumstances children may be separated from their parents. It will then be necessary to trace the whereabouts of members “lost” in order to reunite them with their relatives. It is a different matter altogether if a dictatorship pursues a purposeful strategy of “disappearing” persons who dare actively to resist its criminal policies or just venture to utter words of criticism. In such instances, “missing” becomes a synonym for dead. According to a general pattern of human emotions, relatives of a missing person prefer knowledge and certainty, even if the worst comes true, to vague hopes that the victim may still be alive in some hidden place. Therefore, any government which leads a country that had fallen prey to dictatorship back to democracy and the rule of law, should encourage and support all efforts to clarify the fate of all those known to have or to have been disappeared. Governments refusing to comply with this wish make themselves ex post accomplices of the crimes that were committed by their predecessors. No genuinely democratic government should therefore deny the relatives the benefit of of full knowledge about the occurrences of the past. Note

(1) See Guatemala Memoria del Silencio. Informe de la Comisión para el Esclarecimiento Histórico, tomo II, Guatemala 1999, p. 406 para. 2037. (2) Op. cit. (note 1), tomo VI, pp. 89-98. (2) Op. cit. (note 1), tomo V, pp. 65-68.

3.14 By Mr Stephen R. Upton, Deputy Chief of Investigations, Office of the Prosecutor (OTP), International Criminal Tribunal for the former Yugoslavia (ICTY)

Introduction

The ICTY was established by the Security Council resolution 827. This was passed on 25 May 1993 in the face of the serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, and as a response to the threat to international peace and security posed by the serious violations.

Funded by the United Nations, the ICTY’s mission is fourfold: • to bring to justice persons allegedly responsible for violations of international humanitarian law • to render justice to the victims • to deter further crimes • to contribute to the restoration of peace by promoting reconciliation in the former Yugoslavia

The Tribunal’s authority is to prosecute and try four clusters of offences: • Grave breaches of the 1949 Geneva Conventions. • Violations of the laws or customs of war. • Genocide. • Crimes against humanity.

The OTP evidence relates primarily to the following types of data: • Open source material • Official documentation • Evidential statements • Photographic, video or other forms of real evidence. • Forensic evidence. • Electronic data.

Evidence of Victimisation

As a starting principle for criminal investigation and prosecution the recognition of the most serious crimes and breaches are referenced to the victims of the respective crimes. Crimes, which identify significant levels of human victimisation have a greater priority. The methods used to gather the facts relating to these crimes must be in a form that can then be exploited for legal, judicial processes or for fact finding.

Selection of the crimes, incidents or circumstances that will be relevant to the fact finding process is of paramount consideration and early decisions are required in order that satisfactory methods and planning for the collection of evidence can be commenced.

It is important to identify methods, which are able to adduce evidence of statistical data to the court, such as numbers of victims, issues and circumstances and other complex data. Experience has shown that early decisions need to be taken as to how to gather, handle and exploit what is likely to be a considerable volume of data. The method of collection, evidential recording and storage of evidence or information is also of paramount importance. The collected data must be capable of revealing patterns of offending, for example identifying missing or deceased persons; ranging from individuals, small communities to large numbers of persons from the municipality to the national level. Similarly the data must be capable of recording relevant facts relating to individual victims, witnesses or circumstance.

Example of an information collection plan: Kosovo

During the winter and spring of 1998/1999 the OTP was presented with a problem within Kosovo within the Federal Republic of Yugoslavia. Due to restrictions placed on the OTP due to an ongoing, armed conflict, the ICTY was unable to move investigative resources into the area to confirm the allegations of war crimes being committed within the region. A second problem developed when fighting in the area progressed to the point that thousands of

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inhabitants fled Kosovo arriving not only in neighbouring countries and then some moving on to third countries throughout the world. The OTP did not have the time or resources to track and interview these persons for clarification of the allegations.

The OTP required specific information from the refugees, first the cause of their mass exodus from Kosovo and secondly to locate witnesses from a number of highly publicised alleged war crimes. It was these reasons and others that a questionnaire was developed.

The questionnaire had to address a number of issues it was fundamentally to be used as a matching tool. Most importantly it was recognised that the questionnaire had to be kept short, (so that as many refugees as possible would be interviewed), kept simple (different agencies were prepared to assist in the completion of the form) therefore simplicity, clarity and clear terminology were of paramount importance. Training and quality control of the immediate results would be minimal but was an ongoing issue. The questionnaire had to extract extremely important information required to make future investigative and prosecution decisions.

In developing the questionnaire a number of similar documents used by other agencies were examined. The conclusions reached from examining other similar documents found that while they were very informative and contained excellent points, they were too cumbersome to deal with the sheer numbers of refugees versus the time constraints. On a daily basis completed questionnaires were brought to a central location where they could be visually reviewed as per prescribed investigative needs. This accomplished a number of tasks, it located witnesses to common events, such as missing persons, even though the witnesses may be in different camps or even countries, secondly it provided an excellent source of potential crime-sites such as mass graves. A daily report was completed by the central locales providing OTP management with a method of monitoring the situation not only at in one locale but the entire theatre.

A computer program was prepared to assist with the analysis of all data collected and provide a global picture of the information collected and of course the statistics.

Points to be considered regarding the use of questionnaires. • Questionnaire must be kept brief for a number of reasons, quick analysis and evaluation, limit further trauma to the victim/witness,. • Complex or lengthy questionnaires lead to errors both in the input and analysis of the document. • Complex or lengthy questionnaires lead to interpretation errors at all levels. Remove the opportunity for interpretation by those using the form. • Ability to re-unite family members through the gathering of the information from different locations. • Keeping the collected information concise resulted in analysts at the end of the process having difficulty providing specific reporting on individual events. • Due to local terms, spelling or names at times it proved difficult to match all incidents. This problem was most evident in local names of locations or persons names. • The lack of technology did have its advantages, it demonstrated that keeping operations at the front-line very simple allowed work to proceed without “technology problems” and secondly allowed local persons who may have no experience with technology to assist. • The biggest problem encountered was also the greatest challenge, the developing situation and changing needs. Clear policy or objectives are required to guide project workers but they also require initiative and versatility to complete a very difficult job.

The Mechanism to solve issues on people unaccounted for:

The above introduction sets out in simple terms the objectives of the ICTY. The collection of information and evidence by the OTP has its ultimate objectives of this material being used for legal purposes.

In a crisis situation the example of collecting data that can be used for practical purposes beyond the legal process has now been proven and has much merit. As a policy and practice the OTP has adopted a sharing policy with respect to the collection and exploitation of these forms of collected data. The data will be returned or handed over to the appropriate entity or authority either in the original or exploited form.

A Demographic and Statistical Unit has been established within the OTP in order to use the assistance of appropriate professionals to gather data and interpret it in order to develop evidence that clearly shows the magnitude of the issues to be adduced before the courts. This Unit has developed methods and programs to enable it to use data from examples such as the above collection plan to compare against other multiple sources of data from which ultimate conclusions can be drawn. There are many varieties of data sources that can be used in these processes and much attention has to be placed ultimately on the identification and collection of the same.

The annexed document prepared by the head of the Demographic Unit Ewa Tabeau and myself sets out a recommended mechanism to consider with respect to the objectives of, “accounting for the missing”.

Annex: Mechanisms to solve issues on people unaccounted for: A statistical database tool (SDT) Prepared by Ms Ewa Tabeau and Mr Stephen R. Upton.

Introduction

The mechanism described in this section is a statistical database tool (SDT). In this approach a central database is established that contains individual level information about persons that went missing (ICRC lists of missing), died during a given conflict or survived it. A complete record of the pre-conflict population (e.g. last population census) is an essential component of the central database too. The events of missing, death or survival must be reported for the entire population exposed to the conflict, i.e. for those who resided in the conflict area at the time of the conflict. Some members of this population would however move to new areas of residence or die in the new areas of residence but still they would have to be included in SDT. The reporting of death and survival must be therefore, wide otherwise tracing of the fate of those missing (and others from the pre-conflict population) would be inefficient. The types of death to include in the central database should cover both natural and violent causes. Natural deaths could be obtained from the vital events registration system. For violent deaths, sources such as exhumations and DNA identification databases, ad-hoc mortality databases established by non-governmental organisations and other groups could be successfully used together with official mortality data. Records of the surviving population should be ideally reported from multiple sources used jointly, such as post-conflict population censuses (if available), personal identification numbers systems, voters registers and the like. Also databases containing records of displaced persons and refugees, (as the database of UNHCR), need to be incorporated in the central database as well.

The various data types should be linked at the individual level. This means that missing persons should be searched for in the other sources, and marked when captured in these sources. Marking of the same individuals reported in different sources is known as individual matching. By exploring the links we can learn about the fate of the missing persons (and any other person from the pre-conflict population), and provide this information to the families who lost their loved ones.

1. Description of the considered mechanism’s mandate (including some historical data if pertinent)

The statistical database approach has been applied in the work of the ICTY. A central database has been a tool of demographers compiling conflict-related statistics of population changes in the former Yugoslavia, i.e. statistics about population loss, displacement and out-migration from the country during the 1990s conflicts. Other international organisations use the SDT as well, for purposes that are entirely different from those of ICTY. Generally, the method of using individual linking in reconstructing people’s fate has a long tradition in social sciences and can equally well serve many various objectives.

Linking of individual data is common in demography and statistics. Scandinavian countries have been applying this approach for about 30-40 years. An operational system of unique ID numbers is a prerequisite for such linking. If there exists no such system or the existing system is not fully operational, as in the countries of the former Yugoslavia, other data items have to be used, in particular first and family names and date of birth. Similar items are also often used in historical demography for linking parish records, census data and other individual data, in the s-o- called family reconstitution studies.

The linking approach, although well established and known to demographers, is not commonly used throughout the world. Sizeable populations, lack of consistent ID numbers, and strong privacy protection regulations make the individual linking rarely useable in many high-income countries. The method is rarely applied in low-income countries

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since these countries cannot afford the costs of highly skilled personnel and expensive equipment required for the individual linking approach. Moreover, most low-income countries cannot afford or are unable to keep systematic high-quality records of the population.

2. Description of its structure including actors involved and their respective responsibilities

SDT should be an internationally recognised body closely co-operating with (or being a part of) “mother” organisations such as ICRC, UNHCR, CRPC, ICTY, ICC, and also local Ministries for Human Rights.

The main responsibility of these organisations would be to provide the SDT with data and give them (i.e. SDT) feedback regarding needs for data analysis.

The main responsibility of SDT would be reporting back to “mother” organisations and providing them with the results of searches and analysis conducted by the analysts of SDT.

3. Description of the available resources to make the mechanism running (human resources, particular expertise, finance)

An interdisciplinary team of statisticians, demographers, information technology experts, hardware and software developers, and data entry clerks is needed to collect the necessary data and to establish and maintain the central database.

• Statisticians and demographers should take the responsibility for the substance of SDT, i.e. sources to include in SDT, structure of the central database, links between the sources, analysis and reporting, and information confidentiality aspects. • Information technology experts should be responsible for the technical edge of SDT using tools such as SQL servers. • Powerful equipment (responsibility of hardware developers) and efficient software (in hands of software developers) are two next requirements for the operation of SDT. • Data entry clerks would be responsible for computerisation of the statistical material.

The team maintaining SDT could operate as an independent or “mother” organisations-related structure funded internationally. The budget of SDT could be obtained either directly from countries or come from the budget of the “mother” organisations, including ICRC, UNHCR, CRPC, ICTY, ICC etc. The expertise of the SDT team would be easily applicable to new sources of information and new analytical objectives. Note for instance that SDT could engage in finding missing persons from any area and any conflict.

There are also many other objectives the SDT could satisfy: • identifying displaced persons within a given country and refugees in foreign countries, • estimating conflict-related deaths and property lost due to the conflict, • describing changes in ethnic, religious or socio-economic composition of the population in a given country or any other area within this country etc.

4. Description of how the mechanism works

• Priorities are agreed between SDT and “mother” organisations in an interactive process • Data are collected, computerised, and organised in the central database • Analyses required by the “mother’ organisations” are completed • Reports are made as agreed with the “mother” organisations • Reports are distributed among the “mother” organisations

5. Description of its success and failure in practice (with examples and statistics whenever possible)

Success: Existing examples are: CRPC and ICTY Failure: Lack of necessary resources, lack of a certain degree of independence from the “mother” organisations

6. Description of its strengths and weaknesses

Strengths: SDT is an multidisciplinary approach that would result in the reconstruction of the fate of individuals and also in producing summary statistics required by many various organisations. The “mother organisations” would not overlap in their production of databases and statistics.

Weaknesses: Workload would certainly increase faster than resources available for this project.

7. Recommendations on how the weaknesses could be overcome, on required conditions, etc.

A strict control of priorities and a close co-operation with “mother” organisations would be required.

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3.15 By Ms Bozana Vaskovic, National Legal Advisor, Organisation for Security and cooperation in Europe (OSCE) - Mission to Bosnia Herzegovina, Human Rights Department

Bosnia and Herzegovina statistics on persons disappeared during the course of the conflict in BiH

Between 25,000 and 30,000 citizens of Bosnia and Herzegovina disappeared during the course of 1992-1995 conflict in this country. Even six-and-a-half years after cessation of the hostility 18.000 citizens are still missing, and their relatives are struggling to find out their fate. Unfortunately all presumptions lead to conclusion that all of them are dead. According to OHR HR Quarterly report 01-30 June 2001, ICRC has received tracing requests for a total of 20,654 persons who disappeared during the course of the conflict in Bosnia and Herzegovina. Over the last six-and-a-half years the fate of 2,347 individuals have been clarified. Out of these, 296 persons were found alive. Another 2,051 missing persons were identified and their mortal remains handed over to their families. The families of an additional 867 missing persons have received reports about the death of their relatives but are waiting to recover the mortal remains to confirm this information. Consequently, families of 17,440 missing persons are still seeking answers to their tracing request (statistics as of 02 July 2001) OSCE Mission to Bosnia and Herzegovina HRD mandate

OSCE Mission to Bosnia and Herzegovina , Human Rights Department has very strong mandate under Article XIII of Annex 6 of the General Framework Agreement for Peace to monitor closely the human rights situation in Bosnia and Herzegovina. In accordance with its mandate, OSCE Human Rights works to ensure that a domestic framework exists to protect human rights based on appropriate legislative reforms, institutional capacity, and personal responsibility. OSCE Human Rights focuses on the following issues: Monitoring the overall human rights situation in BiH; Reporting extensively, including regular public reporting and periodic special reports; Investigating allegations of human rights violations by interviewing relevant stakeholders; Co-operating with and supporting indigenous human rights protection mechanisms; the Entity Ombudsmen, the Human Rights Ombudsman for B&H, the Human Rights Chamber and the Annex 7 Commission for Real Property Claims (CPRC); the Ministry for Human Rights and Refugees; Intervening directly with responsible authorities to address specific violations often resulting in the cessation of the violation. OSCE's mandate brings it into frequent contact with the citizens and authorities of BiH. This in turn has presented a unique opportunity for OSCE's human rights staff to generate greater awareness of human rights throughout the country. OSCE HRD involvement in the activities related to searching for missing people

Although Dayton peace agreement provides strong mandate for the OSCE HRD, when it comes to access to official data and records, in order to address human rights violation, it is not at large involved in resolving the issue of the missing persons. As a consequence of the war there are huge number of refugees and displaced persons that are still waiting for return to their pre-war homes. Therefore implementation of property legislation, issues related to sustainable return and strengthening the rule of law principle in this post-conflict society are priorities of OSCE HRD. Still it is to be reconsidered how OSCE Mission to BIH could support and/or facilitate activities of international and national organisations and associations that are working on the missing people issues. When it comes to intervening directly with responsible authorities to address specific violations it is necessary to have a joint strategy, in order to maximise efficiency of these efforts. Leading role in various activities related to searching for missing people have the other international agencies that are operating in the Bosnia and Herzegovina such as ICRC,ICMP, INO/MPI UNHCR etc

International Commission on Missing Persons has established Institute on Missing Persons for Bosnia and Herzegovina (INO/MPI) on August 28,2000. Institute is organised to put together all three conflicted parties in joint institution, where destiny of all missing persons would be resolved without prejudice or discrimination regarding their ethnicity This Institute has three organisational units: • Forensic department (in this department domestic experts work on exhumations on the field) • Department for DNK analysis (domestic staff gather blood samples , and several international experts provide technical support) • Team that co-operates with missing people relatives(out of 3 members 2 are domestic)

These agencies together with National/Entity Commissions for the Missing Persons and Associations of the Relatives of the Missing Persons are actively participating in resolving destiny of the missing people and raising awareness of this tragic issue. All this national and international actors create operational network jointly working on resolving all pending cases of missing persons. Enforced disappearance involves Human Rights violations

However, it is evident that this issue is directly linked with OSCE HRD mandate to monitor, protect and promote human rights. The practice of enforced disappearance of persons infringes upon an entire range of human rights embodied in the Universal Declaration of Human Rights and set out in both International Covenants on Human Rights as well as in other major international human rights instruments. Disappearances can also involve serious violations of the Standard Minimum Rules for the Treatment of Prisoners, approved by the United Nations Economic and Social Council in 1957, as well as in the Code of Conduct for Law Enforcement Officials and the Body of Principals for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the General Assembly in 1979 and 1988 respectively. The following individual rights may also be infringed upon in the course of a disappearance: The right to recognition as a person before the law; The right to liberty and the security of the person; The right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment; The right to life; Disappearances generally violate the right to a family life as well as various economic, social and cultural rights such as the right to an adequate standard of living and the right to education. In fact, it has been found that the disappearance of the family's main economic support, particularly in less affluent societies, frequently leaves the family in a desperate socio- economic situation in which the majority of the rights enumerated in the International Covenant on Economic, Social and Cultural Rights cannot be realized. The serious economic hardships which usually accompany a disappearance are most often borne by women. When women are the victims of disappearance they become particularly vulnerable to sexual and other forms of violence. In addition, it is women who are most often at the forefront of the struggle to resolve the disappearances of members of their family. In this capacity they may suffer intimidation, persecution and reprisals. Action plan

It is to be closely monitored that competent BiH authorities fulfill their obligations to provide all information on missing persons as prescribed in Dayton Peace Agreement , Annex 7, Article V It is necessary that sufficient funds are made available for the Commissions for searching the missing people, and courts, in order to carry out inter-entity program of exhumations. Current priority for all actors involved in resolving destiny of missing people is exchange of information available, as well as establishment of adequate legal framework on the state level to address all pending issues that entity Commissions could not resolve within its current competencies. International Community has to streamline its activities in this important issue, in order to maximize efficiency and to avoid overlapping.

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I am looking forward to upgrade my knowledge about various aspects of this issue, as well as ctivities and the best practices of the other agencies involved . It is my intention to make sure that OSCE HRD within its mandate assists in resolving this extremely disturbing problem, that is a serious obstacle for reconciliation in Bosnian post-conflict society.

4. Relevant outcome from studies 4.1 Overcoming the tensions between family needs and judicial procedures - Extract: Executive summary and recommendations By Dr Vasuki Nesiah1/, Senior Associate, International Center for Transitional Justice - New York For the full report, please refer to document ICRC/TheMissing/09.2002/EN/8. EXECUTIVE SUMMARY

I. INTRODUCTION: FAMILY NEEDS AND PRIORITIES This study examines how judicial and nonjudicial mechanisms can address the needs and priorities of families of the missing. This executive summary begins with a brief introduction to the family priorities that have been identified in the broader project; it then goes on to discuss judicial and nonjudicial mechanisms, and recommendations.

A. Information While families of the missing share much in common with the needs and preferences of other victims of human rights, their priority on information is perhaps their most distinctive concern. There are three kinds of informational needs that are relevant here: the status and whereabouts of the victims, the procedural rules of judicial and nonjudicial mechanisms that might address these cases, and advocacy strategies to pursue these cases.

B. Accountability Accountability is also a significant need and priority for families of the missing; accountability mechanisms could involve both judicial and nonjudicial mechanisms to advance justice for victims and their families, who want the enormity of their loss and their justice goals to be taken into account. Many families of the missing place priority on addressing the accountability of perpetrators whose action or inaction led to and/or enabled cases of the missing to occur. Often families of the missing and related advocacy groups also call for accountability from those authorities who denied, stymied, or ignored efforts to pursue the informational, accountability, and acknowledgment needs of victims’ families.

C. Acknowledgment Acknowledgment is the third and final category of family needs and priorities that this paper highlights. When the cases of the missing are the result of criminal action or inaction by the (state or nonstate) authorities, victims’ families often want acknowledgment of the missing person’s dignity and intrinsic value, that the crime has indeed occurred, that the authorities in question are directly or indirectly responsible for the crime, and of the steps that need to be taken to address the crime.

II. FAMILIES AND JUDICIAL MECHANISMS

Judicial mechanisms vary widely in different legal systems, different socio-historical contexts, different interpretive traditions, etc. In this context, the generalizations necessitated by this broad overview should not be read as comprehensive claims describing all actually existing judicial mechanisms. Moreover, it is important to clarify in advance that in this study ‘judicial mechanisms’ refers to routine criminal justice processes; thus institutions and offices specially crafted to address the limitations of routine processes (such as the office of the special prosecutor for the disappeared) are addressed in a separate section along side truth-commissions and other non-judicial processes. This study presents the discussion of how reasonably well-functioning judicial mechanisms address, or could address, family needs by focusing on each of the three categories of family needs and preferences.

A. Information Investigations pursuant to court actions can marshal the resources and authority of the state in procuring information regarding the perpetrators of the crime and the immediate circumstances of the crime itself. However, these investigations are focused on judicial truth (information relevant to criminal liability) rather than the broader information goals of families. In addition, victims’ access to information that is in the hands of police and prosecutors is often curtailed. Thus, while families of the missing may be questioned and investigated, they may not have access to information regarding developments in the investigation process. This may cause them to feel further disempowered and excluded from the judicial process. In some cases judicial investigations may meet the goals of families; in other cases, however, these interests may diverge and judicial mechanisms maybe pulled between victims’ need for information and prosecutorial goals of identifying those who can be proven to be legally culpable.

B. Accountability Judicial mechanisms are seen as the paradigmatic modality for providing victims’ families an effective route to holding the perpetrators accountable for their actions. However, given the resource intensive nature of the criminal justice process, judicial systems may not always have the institutional capacity to meet the accountability goals of victims’ families. This problem is exacerbated in those cases where the scale of human rights atrocities, including the numbers of the missing, is so high that even a well-functioning system can deal with only a fraction of the perpetrators. Judicial mechanisms may also fail families on other counts as well; the judicial quest for accountability

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has an overwhelming focus on individual accountability. Yet many families may also want accountability mechanisms to address fundamental aspects of the system that fostered, or at the least allowed, such atrocities. In some cases, judicial mechanisms may also function primarily in closed sessions that deny victims the right to public accountability. This is perhaps a symptom of a broader problem regarding how judicial systems are often alienated from victims and attuned to the needs of the law and legal victory rather than the needs of victims and their families.

C. Acknowledgment Judicial mechanisms can be a symbol of the state’s acknowledgment of the violation and its direct or indirect culpability. However, families of the missing may experience the procedural hurdles entailed in judicial findings as holding “acknowledgment” hostage to legal process.

In sum, while judicial mechanisms perform an important role and have the potential to further many priorities of families of the missing, routine criminal justice mechanisms are also often inadequate to the enormity of the needs of families. It is in this context that we also need to look to nonjudicial mechanisms (including provisions for special prosecutors and other non-routine processes) for their capacity to address the needs and preferences of families of the missing.

III. FAMILIES AND NONJUDICIAL MECHANISMS

As used in this study, “nonjudicial mechanisms” is an open-ended category that incorporates a diverse array of initiatives under its umbrella:

1. Combinations of Rewards, Incentives, and Threats to Encourage Cooperation From Reluctant Witnesses and Perpetrators: Investigative bodies can be empowered to use a combination of rewards, incentives, and threats to encourage cooperation from reluctant witnesses and perpetrators; such provisions could include confidentiality, use immunity of testimony, sanctions for non-disclosure of information, pardons and conditional amnesties.

2. Special Prosecutors, Truth Commissions, and Other Commissions of Inquiry: Recognizing that cases of mass human rights violation may often be beyond the capacity of the traditional criminal justice system alone, in many countries victims groups and human rights organizations have called for institutional innovations specifically designed for that context. Special prosecutors, truth commissions, and other commissions of inquiry are example of such institutional innovations furthering the informational, accountability and acknowledgment goals of families.

3. Investigation and Reporting by Nongovernmental Human Rights NGOs, Whether National or International: Often, in a time of widespread human rights violations, it is NGOs that document and store information; this information can be (and often has been) turned over to truth commissions, special prosecutors, and other investigative teams to centrally process the data and feed it into the broader work of those bodies. NGOs can also play a role in disseminating information regarding victim advocacy and support services.

International Fact-finding by UN and Regional Bodies: International fact-finding missions could function as neutral intermediaries in gathering information confidentially from witnesses and perpetrators and transmitting them to victim families. International bodies may also be in a position to use their financial and human resources to aid and assist local initiatives in developing centralized data regarding the missing and seeking out diverse sources of information through a variety of mechanisms.

Reparation Programs, Whether Symbolic or Material, National or International:

4. Institutional Reforms: Institutional reform is a forward-looking approach to address victims’ needs for information. There are two categories of institutional reform that are relevant here: reforms that address the current informational needs of families of the missing, and reforms that provide future safeguards in relation to the kinds of situations that result in persons going missing and the accompanying barriers to families access to information.

5. Indigenous Forms of Truth-Seeking, Justice, and Reconciliation: In some contexts, the most valuable methods of information seeking may draw from sources that work outside of mainstream criminal justice models. Some may classify these as indigenous forms of truth-seeking, but typically these are modern, hybrid models that draw from a range of traditions yet are grounded in local legitimacy and the aspiration towards holistic approaches to family needs and priorities.

6. Public Information Campaigns About Those Who Are Missing: Public information campaigns can be crucially important, not just in gathering information, but also in making families feel less isolated in their victimization. They both convey information and collect information. Information is often dispersed and unorganized, and a public information campaign can be the catalyst to centrally reconstruct all the information that is already available, and gather additional information by reaching new sectors of society.

7. Combinations of the Above: In most cases, many of the mechanisms mentioned above are used in combination.

RECOMMENDATIONS

A. Recommendations to State Actors

1. Instituting and Enhancing the Rights of Families in Addressing Cases of the Missing

• Access to Information. The state should institute reforms that address the current informational needs of families of the missing by giving teeth to freedom of information laws and implementing procedures. Moreover, it should institute reforms in police practices and other armed forces by creating a positive obligation to give the next of kin written information about the arrest, detention, transfer, or release of any citizen.

• Enhancing the role of families in commission hearings, judicial proceedings, and administrative action regarding the missing. Families should have standing to institute civil action, and possibly even prosecutorial action, in cases where their loved ones are missing. Families should also have a right to submit victim impact statements, be heard in relation to sentencing hearings, bail hearings and other contexts where the injury they have suffered should be taken into account in determining a just outcome. Families should also have a right to give testimony in truth commissions and other commissions of inquiry.

• Rights and protections for families as human rights investigators. The state should institute special rights and protections for those who investigate cases of the missing and other human rights violations. Families tracing the whereabouts of their loved ones should be treated as human rights investigators and accorded due rights and protections to act freely and safely.

2. Addressing Family Needs and Priorities Through A Range of Mechanisms

• Enhancing the mandates, powers, and resources of mechanisms addressing the needs of families of the missing. The state should provide the necessary mandate, legal and investigative powers, and adequate human, financial, and institutional resources in support of mechanisms that address the needs and priorities of families of the missing. (2) Such mechanisms include, special prosecutors addressing cases of the missing, national human rights commissions, truth commissions and other commissions of inquiry tasked with investigating the fate of the missing, special units in police departments to investigate reports of the missing, family re-unification initiatives, governmental and nongovernmental organizations providing victim advocacy and support services.

• Cooperation with other actors addressing the needs of families of the missing. The state should establish cooperative relationships with victim groups, civil society actors, local and international NGOs, UN or other international fact-finding missions, and others who advocate for and assist families of the missing. Such cooperation could take diverse forms, including collaboration on establishing centralized information registries, giving these access to state records, providing state subsidies for legal or medical aid societies who provide services for indigent families of the missing, and the solicitation of the input of all actors in the design of mechanisms that address the missing.

• Official institution of material and symbolic reparation programs. The state should institute reparation programs that address the needs of families in ways that are proportionate and timely. Material reparations can be in the form of monetary programs and state services. In addition, the state should also institute memorials and other measures to affirm and dignify the memory of the missing. Such measures could range from individualized grave stones to public art works to periodic commemorative events such as public holidays/days of remembrance.

3. Addressing Family Needs Through Reparation Programs

• Inclusion in the policy planning process. Both material and symbolic reparations programs should be designed in consultation with families regarding their needs and priorities. While never adequate to the injury, families should have input into what remedies would best address their material, emotional, and medical needs.

• Enhancing families’ access to information regarding the missing as a key component of reparation programs. Reparations programs should include institutional mechanisms that further families’ access to information, such as the building of a database regarding incidents of the missing, national biological registries, special efforts to trace missing children, access to legal and investigative resources to trace the missing and other initiatives that will enhance families’ access to information.

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• Enhancing families’ access to information regarding victim advocacy and support services as a key component of reparation programs. The provision of information regarding relevant legal, medical, and psychological services, and assistance with accessing those services can also serve to acknowledge that those in authority recognize that victims have suffered and have certain needs and interests as a result of their victimization. Truth commissions and other state institutions may themselves provide these services internally or work with NGOs, the medical and legal community, and victim advocacy and support networks to provide such services. As noted earlier, NGOs are often more closely in touch with victim groups, and therefore best able to provide input in ways that are sensitive to how best to acknowledge and address families’ needs and priorities. Government bodies seeking to serve victims’ needs should proactively seek the support and advice of NGOs in conducting their work.

4. Reform of State Institutions

• Institutional Reform. The state should institute pervasive institutional reform to ensure that state institutions incorporate basic human rights principles. States should be guided by the requirements of international law, and informed by best practices for human rights protection internationally. Such reforms should ensure that state institutions are accountable and transparent, and that there are provisions for independent oversight of those institutions. This is particularly important for those state institutions that are, in many countries, responsible for cases of the missing; such institutions include police and armed services, intelligence agencies and prison systems.

• Legal Reform. The state should institute a range of legal reforms to facilitate the pursuit of cases of the missing through the judicial system, as well as to create the background legal conditions that will empower non-judicial mechanisms. Such reforms should include making disappearances a criminal offense with severe sanctions. There should also be widespread training of judges, magistrates, lawyers and other working in the legal system to facilitate human rights investigations.

• Reform of State Employment Laws and Practices:

o Human rights training. In addition to institutional reform incorporating basic human rights principles, state employees could also be given human rights training that will serve a preventive function o Whistleblower protection. There could be special protections for those who disclose information about human rights violations. Such protections are particularly important for certain sensitive positions such as prison guards and police officers. o Gate keeping and vetting processes for state employment. Employment in certain kinds of positions could be made conditional on good faith and full disclosure regarding any information the candidate has about gross human rights violations, particularly in regard to cases of the missing. It may be especially important to tie employment in the police and armed forces, prison systems, and intelligence agencies to provisions for information disclosure. These provisions could be integrated into hiring practices for new employees, and vetting processes for the continued employment of existing employees. Such provisions should be implemented with appropriate protection against self-incrimination; In addition, there should be safeguards ensuring that hiring and vetting practices are undertaken in ways that are fair and objective with respect to all concerned.

B. Recommendations to Nonstate Actors

• Victim advocacy and support. Nonstate actors should empower and assist victims by providing advocacy and support services, and facilitating strong and self-sustaining victim organizations. They should also assist in making national and international mechanisms more accessible to victims.

• Coordination of information. Human rights groups and other NGOs often have access to information regarding the missing and are uniquely positioned to gather together these disparate sources into a centralized registry and work in local communities to solicit more information.

• Prevention of cases of the missing. Human rights groups could incorporate procedures to track and protect dissidents and others who may be in danger of being ‘disappeared’. Even in contexts of relative “normalcy,” civil society actors should mobilize to put in place those safeguards that may prevent or reduce cases of the missing. Those safeguards are contained in a public culture and legal framework establishing laws and norms promoting democratic accountability of state functionaries, transparency in state action, a free and vigilant media, and public education regarding the rights of citizens.

C. Recommendations to International Actors

• Assistance to local efforts at collecting information. For international actors to function with local legitimacy they should work in cooperation and collaboration with victim groups and local human rights groups. In

some cases they may be able to assist such local efforts in serving as impartial intermediaries gathering information for families; witnesses may feel comfortable providing such information in confidence to international actors without concerns about local repercussions. In addition, international organizations often have relatively well resourced information and database systems, and these could be used in consultation with local actors in establishing national registries pulling together different sources of information regarding the missing.

• Building international support and advocacy networks. International actors can work to build transnational solidaristic networks amongst families of the missing, human rights groups, and other NGOs working on the problem of the missing. Such networks could be mobilized for a range of purposes including, supporting each other’s campaigns against secrecy and impunity, promoting international awareness, and sharing comparative experience regarding mechanisms to address the needs of families.

• Legal and institutional mechanisms to address the responsibility of militant groups.: Many of the mechanisms described above are directed at cases where state actors are responsible for cases of the missing. This is in keeping with the development of international human rights law. However, as noted in the section on international law, when militant groups are responsible for cases of the missing, families have even fewer alternatives for action. There needs to be increased international energy directed at recognizing the liability of armed groups and devising ways to hold armed groups responsible for their action. Note

1. Dr. Vasuki Nesiah is a Senior Associate at the International Center for Transitional Justice in New York. This paper benefited from the individual and collective efforts of several ICTJ staff members. Mark Feeman undertook the preparatory work for this paper in the early phases project. The final draft profited enormously from the comments of Mark Freeman, Paul Seils, Paul van Zyl and Marieke Wierda. It was also supported by research assistance from Anitha Abraham, Orla Bannan, Susan Farbstein, and Stuart C. Naifeh. The copy-editing was undertaken by Sarah Rutledge. 2. Needless to say, those mechanisms are most effective, have the greatest legitimacy if governments also refrain from interfering with their work, and allow such mechanisms to function with independence and impartiality.

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4.2 The Missing: The ICRC as a mechanism to solve issues on people unaccounted for

Synthesis document commissioned by the ICRC and prepared by Marco Sassòli and Marie-Louise Tougas, Professor and research assistant at the Faculty of Political Science and Law of the University of Quebec in Montreal, Quebec, Canada, based on internal and public ICRC documents and ICRC Staff interviews.

EXECUTIVE SUMMARY AND RECOMMENDATIONS

1. If International Humanitarian Law (IHL) was respected, few persons, mainly soldiers, would be victims of conflict-related disappearances.

2. The ICRC contributes through its traditional activities to the respect of IHL. If necessary and possible it substitutes itself to belligerents failing to respect the law. This prevents disappearances. Some of those activities could be systematized. Very few specifically disappearance-related activities could be added.

a) The ICRC disseminates IHL. It is recommended that it puts more emphasis on the rules aimed at reducing disappearances.

b) The ICRC advisory services may provide practical assistance for preparing, already in peacetime, for the respect of those rules (e.g. by preparing the establishment of National Information Bureaux).

c) In representations with parties at the outbreak and during a conflict, those rules should be recalled.

d) When the ICRC visits persons detained in relation to a conflict, it registers them, informs their families and enquires about other detainees. The ICRC should also collect, where appropriate, allegations of death before capture or arrest.

e) ICRC activities aimed at protecting civilians affected by conflict but not detained avoid disappearances. The ICRC could systematically keep certain information collected during such activities, including personal data of beneficiaries of ICRC assistance, in view of facilitating a subsequent handling of tracing requests.

f) The traditional activities aimed at restoring family links through the Red Cross and Red Crescent Family News Network ensure that the relatives of the persons concerned no longer consider them to be missing. Messages exchanged could be systematically screened and registered in view of subsequently clarifying the fate of missing persons.

g) The ICRC collects tracing requests and submits them to the responsible authorities. It is recommended that such collection and submission systematically starts since the beginning of a conflict. The information collected could already include certain ante mortem data which may be easily lost. Sometimes the ICRC tries itself to find an answer through field tracing. This should be done whenever possible. Such efforts may however put other activities into jeopardy. Allegations of hidden detention should only be followed up when the ICRC reasonably expects to find detainees.

h) While collecting those requests, and as long as they are not answered, families should be kept regularly informed about applicable provisions of IHL, ICRC tracing methods, the responsiveness of belligerents, the chances of success, and the ICRC’s evaluation of whether the missing persons can be found alive. Information on methods of forensic identification and their chances of success may be added.

Such contact with families (and not only with their representatives) allows the ICRC to assess their genuine needs. It is recommended that programmes for the psychological, material and legal support to families of missing persons are only exceptionally undertaken by the ICRC itself. They should never go beyond answering problems specific to this category, nor delay the mourning process.

i) Sometimes the ICRC has induced the parties to establish multilateral or tripartite mechanisms to clarify the fate of missing persons. As far as this declared purpose is concerned, those mechanism did not show results. They should only be established, mainly to discuss policy (including on exhumations) and to favour co-operation, when former belligerents can be expected to have a genuine political will to clarify the fate of persons who went missing under their control. They are not appropriate fora to obtain answers to individual tracing requests.

k) Exhumations and forensic identification may provide answers, if the (former) belligerents co-operate. When the ICRC is involved in the transfer of human remains, it should insist on identification and transfer of the remains to the family. It is not recommended that the ICRC itself engages in exhumation and forensic identification activities, but rather facilitate them (e.g. joint exhumations by (former) belligerents) and provide advice and expertise to make sure that the needs of the families are taken into account. For the latter purpose, the ICRC may need some experts among its staff.

3. The ICRC will adopt uniform operational guidelines, which should be respected in all contexts unless objective, specific reasons for the contrary. Such guidelines make sure that the problem is dealt with equally all over the world, since the beginning of a conflict, and in parallel to (and mainstreamed into) all other activities.

I. INTRODUCTION

1. The ICRC decided to launch an initiative on conflict-related disappearances. Its aims are to raise awareness for the plight of victims of such disappearances, in particular of families of missing persons, to find more effective ways to address the problem, to coordinate with authorities and organizations involved and, in our view, to raise its profile as an independent humanitarian organization with the necessary expertise in this field. The ICRC is also willing to improve its own action. An internal review process is under way. All ICRC staff we interviewed were positive about the project and many admitted that they were much more aware of the problem than a few years ago.

2. The ICRC also commissioned this external study on its present and possible future activities in the field of conflict- related disappearances, the results of which it is willing to publish. To protect its access to governments, nongovernmental actors and victims worldwide, the ICRC however does not wish that individual belligerents are mentioned in this report. While we fully understand this concern, we think it is important to recall at the outset that very often those belligerents are responsible for disappearances. They do not respond to the plight of the families as they should under International Humanitarian Law (IHL). It is also appropriate to denounce third States and economic actors which do not put humanitarian problems, such as those related to the missing, and the respect of the applicable law high on their agenda and rather pursue short-term political, strategic or economic interests. As in other fields, the best solution does not lay, in our opinion, in better technology, in humanitarian actors to become more efficient and responsive to the victims’ needs, but in the respect, by all actors, of the obligations they undertook. Best practice is respect of IHL. This leaves important tasks for the ICRC. It has to raise awareness of IHL, to cooperate with belligerents, assisting them to respect their obligations, to act as a neutral intermediary between them in view of facilitating such respect. Furthermore, the ICRC has to substitute itself to belligerents that do not fulfil their duties, as war victims cannot be abandoned to the sad reality that IHL is so often not respected.

II. HUMANITARIAN ISSUES AND DILEMMAS

3. Before studying ICRC activities related to disappearances, it may be appropriate to describe the environment in which they have to be deployed.

4. Conflict-related disappearances are a highly emotional issue. They involve death, love and family links, phenomena central to every culture and religion, overshadowed, in this field, by uncertainty, something more and more difficult to accept for contemporary human beings. Families, authorities and ICRC staff are affected by those emotions, leading to attitudes which cannot be rationally explained (e.g. reticence to handle human remains) and which may be amplified by the increased tendency, at least in the Western world, to perceive problems from a psychological perspective.

Humanitarian players furthermore do not like to give bad news, while in the large majority of missing cases, the news is bad news. As trust in authorities decreases world-wide, ICRC staff hesitates to tell the family that their missing

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relative is dead without “scientific evidence”. They may feel as if they took the decision that the missing is dead and therefore indirectly sentenced him or her to death. To keep the family informed in full transparency on how small the chance is to find their beloved one alive or even dead appears as a lack of compassion. We think however that the ICRC should objectively evaluate what is in the long run best for the affected families. To implement this policy, it has then to support its staff affected by the emotional stress caused by the implementation of this policy.

5. Belligerents and former belligerents manipulate and exploit the missing issue to perpetuate hate, national or ethnic mobilization, and exclusion of the “others”, to hide the extent of a defeat, to gain or keep international support against the enemy. International players too take advantage of the plight of the families to support the solution to the conflict they favour, in inter-agency competition for visibility, money and influence, or to favour costly and unrealistic solutions (such as systematic identification of human remains through DNA testing) for reportedly non-humanitarian purposes.

6. In many contexts the ICRC knows soon after the war that nearly all the missing are dead. It would be in the objective interest of the family for her to accept this fact as early as possible, and to start the mourning process. Such acceptance implies however great pain and the destruction of the hope to find their beloved one alive. Families want to believe that the latter is alive and therefore try to evacuate (or find doubts about) all news hinting to death and even feel anger towards the messenger rather than towards the message. Should a humanitarian organization like the ICRC destroy hopes, while absolute certainty about the death of a missing person is often impossible? May the ICRC conversely perpetuate, if only by omission, suffering simply because absolute certainty does not exist? Should the ICRC let it be up to the families to decide what they want? Their first choice, to keep the hope that the relative is alive, is however not in their genuine interest if there is a high probability that the person is dead. Their second choice, to receive absolute proof of death, similarly perpetuates their suffering in the many cases where such proof will never be available.

The ICRC wants to save lives, to protect and assist living people, to allow them to re-establish their family links. It will therefore often work with the working assumption that a missing person is alive and detained. The families will feel through their contact with ICRC staff their hopes confirmed, which in turn blocks the beginning of the mourning process. When the ICRC assumes the missing person to be alive, the latter has priority. Many forms of support to the family may nevertheless be possible. The information needed, the methods used and the steps to be taken with belligerents are however fundamentally different when one searches for detainees or for human remains. The ICRC should therefore in our view very soon in every context come to a well-informed internal decision on whether it may realistically hope to find many missing persons alive – and then develop its activities accordingly. As a humanitarian organization, it is however understandably reticent to take such decisions. In addition, it is difficult to define objective criteria on which such assessment may be based. Once it is made, its elements, or (if information cannot be revealed for reasons of confidentiality or neutrality) at least the conclusion, should however be shared with the families concerned.

7. In our world marked by profound inequalities, where public opinion and donors regularly apply double standards to armed conflicts and their victims, being an organization with worldwide activities and a universal mandate and driven by principles like humanity, impartiality and neutrality, the ICRC faces a difficult dilemma if it wants to expand its activities in favour of missing persons and their families. May it offer certain services where the problem is mediatized, where the families and/or authorities are demanding and funds are available, while it does not offer those services, nor does it even try to mobilize public opinion, the families and donors where such pressure does not exist?

Armed conflicts, misery, disruption of traditional structures and values perpetuate themselves in many places of the developing world. Families can understandably lose hope in finding their relative alive and fatalism can settle in. In developed countries, people are also more accustomed to remain in contact through modern means of communication with relatives from whom they are geographically separated. Such differences exist. In some contexts, the families do not complain about their uncertainty. Does this imply that the wish to clarify the fate of a relative would in these contexts be a need created by the ICRC? While we are not experts in intercultural psychology, we rather think that all families have the same needs, it is just the possibility to satisfy them and fatalism which makes their expectations different. During our interviews with ICRC staff no one tried to persuade us that disappearances are less resented in some non-Western cultures. A cultural difference may however exist concerning the wishes of families to receive the human remains of their beloved ones. Such a wish can obviously not exist where religion or tradition prescribe the burning of the dead.

Many past, present and future differences in ICRC treatment of the missing problem in different countries are not based on double standards, but justified by difficulties of access, the sheer size of the problem and/or of the country concerned, the complete absence of any perspective of success and overwhelming priorities in protecting and assisting those who are alive. Some may consider it morally untenable to invest huge resources into the clarification, with small chances of success, of the fate of persons who can reasonably be presumed to be dead, if the same resources would permit to save thousands of lives from death by starvation. If this argument is applied to our planet as one world, it might limit the priority given to the missing issue.

The question therefore remains whether the ICRC would be ready to deploy the same efforts and to mobilize public opinion and donors everywhere. This dilemma is particularly acute if the ICRC chooses to provide more than its traditional services and to deploy new activities, which may imply a considerable investment in terms of money, staff and technology. As we were told that donors are more responsive to new ideas than to traditional activities, it is however not impossible that the ICRC could be able to expand its activities without having to apply double standards. In any event, once the ICRC chooses, as it presently does, to increase its visibility on the missing issue, it has to be prepared to explain to victims, authorities and public opinion why it chooses to offer some services in one context and not in others.

III. INTERNATIONAL HUMANITARIAN LAW AND CONFLICT-RELATED DISAPPEARANCES

8. One of the distinctive features of the ICRC is that its activities and mandate are based on international law, which is an expression of the experience of the international society.

9. The main consideration of the specific rules of IHL concerning the missing and the dead is "the right of families to know the fate of their relatives."(Cf. Art. 32 of Protocol I.) Each party has an obligation to search for persons who have been reported as missing by the adverse party (Cf. Art. 33 (1) of Protocol I.).

Missing persons are either dead or alive. If they are alive, they are either detained by the enemy or free, but separated from their families by front-lines or borders. In both cases they benefit from the protection IHL offers to the category to which they belong (civilian, prisoner of war, wounded and sick etc.). In addition IHL ensures that most of them do not remain considered as missing.

If the person is missing because of the usual interruption of postal relations and the frequent population moves in times of armed conflict, family links should soon be re-established as long as the parties respect their obligation to favour the exchange of family news and reunification of families (Cf. Arts. 25 and 26 of Convention IV). If persons are missing because of detention or hospitalization by the enemy, IHL prescribes that their families and authorities must be rapidly informed through three channels: notification of hospitalization, capture or arrest (Cf. Art. 16 of Convention I, Art. 19 of Convention II, Arts. 122 and 123 of Convention III, Arts. 136 and 140 of Convention IV, and Art. 33 (2) of Protocol I), transmission of capture or internment cards (Cf. Art. 70 of Convention III and Art. 106 of Convention IV), and the right to correspond with their family (Cf. Art. 71 of Convention III and Art. 107 of Convention IV). Detaining authorities are also under an obligation to answer inquiries about protected persons (Cf. Art. 122 (7) of Convention III and Art. 137 (1) of Convention IV).

If the missed person is dead, it is more difficult to inform the family. There can be no obligation for each party to identify every dead body found. It simply has to try and collect information aiding in the identification of dead bodies (Cf. Art. 16 of Convention I and Art. 33 (2) of Protocol I), including by agreeing to establish search teams (Cf. Art. 33 (4) of Protocol I). Existing IHL does not foresee a right of the families to receive the human remains of their relatives, neither for the purpose of burial, nor for the purpose of certainty on identification. Human remains must however be respected, buried decently, and grave-sites marked (Cf. Art. 17 of Convention I and Art. 34 (1) of Protocol I). Access to such grave-sites for relatives and a return to them of human remains can then be achieved based on an agreement between the parties concerned, which can generally only be made at the end of the conflict (Cf. Art. 34 (2)-(4) of Protocol I).

10. In addition to the aforementioned specific rules, all basic rules of IHL would, if they were respected, reduce the number of missing persons. If civilians, those hors de combat and detainees were respected and treated in conformity with IHL, if the ICRC was given access to war victims as prescribed by IHL, few protected persons could disappear. What would remain are combatants missing in action. Their number would however be reduced if their side provided them identification tags (Cf. Art. 17 (3) of Convention III) and if both sides complied with their obligation

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to collect and record information on the dead falling into their hands. The compliance by belligerents with their obligation to provide answers about the fate of missing persons encounters some particular obstacles.

11. Parties often do not want to provide answers. Humanitarian issues are mixed up with political ones. Reciprocity, the cancer for the respect for IHL, hinders the first step to be taken and this behaviour of the authorities of “their” side is unfortunately often even approved by the families (whether manipulated or not) of each side.

Belligerents do not provide information to leave the “enemy” population in ignorance and pain, to put pressure upon the enemy or to avoid criticism from their own population for losses suffered. Leaders whose power is based on hate against another community have an interest to perpetuate the missing issue as it will perpetuate their power.

Many disappearances are the result of violations of IHL. Recent progress in stopping impunity for war crimes is important to increase respect for IHL and therefore to reduce the number of missing persons. The negative side- effect is that chances to obtain information about the fate of missing persons through the channel foreseen by IHL, i.e. from the responsible authorities, decrease, because those authorities fear criminal prosecution. The ICRC is struck between its recognition of the importance of criminal prosecution for war crimes and the necessity to guarantee confidential handling of information it receives from belligerents if it wants to keep that source.

12. In many cases, in particular when disappearances result from massacres or hostilities against civilians, belligerents will be genuinely unable to provide the answers requested, partly because they did not comply with their duties during the conflict. One may however expect belligerents to have, at least, information about the location of military operations and of places of burial. If they do not have it, they could obtain such information.

13. An additional problem appeared in recent years. In some regions families are not satisfied with the information they are entitled to receive under IHL. They mistrust death certificates by the (former) enemy and wish to receive the human remains of their beloved ones. It remains to be seen to what extend such attitudes are due to manipulations by authorities who want to keep their missing file alive, to international actors who created unrealistic expectations, to families who do not want to accept the sad truth or who wish the punishment of those responsible or to a mixture of all those elements.

IV. TRADITIONAL ICRC ACTIVITIES AIMED AT PREVENTING AND SOLVING MISSING ISSUES

1. Dissemination of IHL

14. The rules of IHL, including those preventing war victims to disappear, cannot be respected if they are not known. They must in particular be integrated into the normal training of every fighter, for whom it must become, e.g., a reflex after an engagement to identify the dead. While dissemination is the responsibility of the States and the parties to armed conflicts, the ICRC often has to initiate it, by training the trainers, or even to substitute itself to States and parties to conflicts.

2. Visits to detained persons

15. In international armed conflicts the ICRC has a right to visit prisoners of war and civilians deprived of their freedom in their places of detention and to interview them privately. In non-international armed conflicts, parties are encouraged to accept an ICRC offer to pursue such visits. Once a detainee is visited, he or she is registered and enabled to inform his or her family, can therefore no longer be considered as missing and has the best chances not to go missing. During the private interview, ICRC delegates systematically enquire whether co-detainees exist to whom they have no access and, where the context makes it meaningful, they also collect allegations of co-capture or common arrest. Such information permits them to subsequently enquire with the responsible parties about the fate of additional persons who have fallen into their power.

3. Protection of civilian populations affected by conflict, but not detained

16. IHL protects civilians from attack and from arbitrary and inhumane treatment. Wherever possible, the ICRC maintains a regular presence in areas where individuals or entire communities are at risk, gathers information in the field and informs authorities or opposition leaders of unlawful acts committed against the local population. It stays in close contact with all potential perpetrators of violence. ICRC staff takes both immediate steps in the field (e.g. relief

operations) and draws up confidential reports over a certain period of time in order to bring violations of IHL to a halt and to trigger appropriate remedial action. In case of emergency and when all other possibilities have been exhausted, the ICRC may even take the initiative of evacuating particularly vulnerable individuals from a dangerous area, thus preventing their disappearance.

The success of such activities depends upon the responsiveness of the parties to a conflict, which will not exist where they aim at the elimination of an ethnic group, and on the existence of a minimum structure of authority. In recent years, the activities constitute more and more frequently a disproportionate risk for the life of ICRC staff involved.

4. Restoring family links

17. Restoration of family links between victims of armed conflict is one of the most longstanding activities of the ICRC and of the network of national Red Cross and Red Crescent Societies. Hostilities, front lines and security imperatives dictated by the parties to the conflict generally lead to a breakdown in traditional means of communication and, at the same time, restrict people's freedom of movement. The ICRC tries to restore the contact between family members, when certain relatives live on opposite sides of the front line, have fled their homes, have become displaced or have sought refuge in another country or have been captured or arrested on account of the conflict. Visits to detained persons enable ICRC delegates to reassure families about the fate of their relatives and, by means of the Red Cross / Red Crescent network, allow the prisoners and their families to correspond. All this is done both in areas directly affected by the conflict and in those receiving displaced people and refugees. It is a tracing service, as the distribution of family messages, for example, involves locating addressees who have fled. Because of their particular vulnerability, the ICRC undertakes specific interventions and activities in favour of unaccompanied children, who are by definition considered as missing by their relatives.

The most frequently used medium for family news is the Red Cross message. As it is unsealed, it is in general not held up by front lines or by security problems; its content can be censored by the parties to the conflict at any time. Whenever possible, other, more modern means of communication such as mobile phones, radio broadcast or the Internet are used to establish the first contact.

5. Collect and process tracing requests

18. When an enquirer has been unable to restore contact with a close relative through the Red Cross and Red Crescent Family News Network, the ICRC collects a tracing request with as many details as possible on the missing person and the circumstances of his or her disappearance. This information is then crosschecked in ICRC databases. In case the latter contain no information, two methods are used. First, in some cases ICRC staff itself starts an enquiry in the field (cf. infra, para. 38). Second, alternatively or in addition, in particular in international armed conflicts, the requests are submitted to the responsible authorities, which are not necessarily those that could be presumed to have caused the disappearance, but those which can be presumed to have or be able to obtain information, e.g. because they control the territory where the person disappeared. In many contemporary conflicts responsible authorities in this sense can however not be identified or do not possess a sufficient structure to permit any hope that a submission of tracing requests will lead to results. Whenever it is possible to submit tracing requests, the ICRC regularly follows up and transmits to the enquirer any information it obtains from official or private sources, as long as it is considered reliable.

19. While the principle is well established, the decision when and whether tracing requests are accepted in a given conflict depends upon many factors, not all of which are objective. It admittedly also depends upon personal preferences and – sometimes contradictory – decisions of those in charge in the field and Geneva.

In some conflicts tracing requests are accepted during the ongoing conflict, while in others only after the end of active hostilities and once the prisoners are released and repatriated. In some contexts, tracing requests are refused as long as (or as soon as) there is no perspective of submitting them to authorities willing to treat them or to engage in field tracing. In other contexts requests are systematically collected even if the way to obtain answers can only be identified later. The latter solution permits the ICRC to have an overview of the extent of the problem, to collect a considerable number of tracing requests which puts a certain pressure on the authorities, and to gather useful information (including for protection purposes) which would otherwise be lost. Once requests are submitted, a serious follow-up is essential. Sometimes requests carefully collected by the ICRC staff on one side are submitted

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without enthusiasm by those representing the ICRC on the other side. Even in other cases we got the impression that the submission is merely made “for the record”.

V. SYSTEMATIZE AND DEVELOP ICRC ACTIVITIES IN VIEW OF PREVENTING AND SOLVING MISSING ISSUES

20. In an effort to mainstream its concern for the problem of missing people, the ICRC could expand many traditional activities taking into account the missing issue. Some practices, described in this chapter, which we found to have been applied in some contexts, could be applied everywhere. A few new responses can also be envisaged.

1. Dissemination

21. In ICRC dissemination activities additional emphasis could be put on sensitizing those who carry weapons, detain persons or are in positions of authority for the plight of families uncertain about the fate of their relatives. They must learn that easy measures, which in no way hinder military success, such as systematic registration of persons captured, arrested or detained and systematic identification of human remains are prescribed by IHL and can prevent in most cases much suffering. While dissemination normally consists of spreading knowledge on what has to be done in favour of an actual or potential enemy, dissemination of those rules for once also concern measures to be taken by a belligerent for the benefit of its own soldiers. ICRC dissemination materials should systematically contain sections about the missing and the dead and explain what the ICRC can do to solve this problem – and what it can not. Dissemination could even lower unrealistic expectations by families towards ICRC activities in this field.

2. Support for preventive practical measures

22. To effectively reduce the number of missing persons in wartime, all States have to take some practical measures already in peacetime. They have in particular to equip all those who fight with identity tags. They might wish to register personal data of members of their armed forces, which may assist in a later identification of human remains. They should in particular establish National Information Bureaux (see for details M. Sassòli, "The National Information Bureau in Aid of the Victims of Armed Conflicts", International Review of the Red Cross 1987, pp. 6-24.). While the ICRC for some time encouraged the setting up of such bureaux, it appears that more recently this was regrettably not done even when an international conflict broke out, because the ICRC feared that such a bureaux would hinder the ICRC to have direct access to the authorities.

To realize all these practical measures, the ICRC could offer advice, training and a forum for exchanging experience between governmental authorities, e.g. between armed forces of developed and developing countries. In the aftermath of a conflict, such advice can be given for the adoption of specific legislation on the missing.

3. Preventive diplomatic representations at the outbreak of hostilities

23. At the outset of each conflict, the ICRC makes written and oral representations with the belligerents to remind them of their obligations under IHL and to offer its services. As far as we could find out, until now such representations often recalled the obligation to register and notify such protected persons they detain, but the necessity to wear identity tags was not mentioned. The specific obligations to identify human remains or to answer enquiries about missing persons appear only in memoranda addressed to the parties at the end of hostilities. It would however be important that belligerents be reminded of missing issues from the very beginning of every conflict. Reminders of the corresponding obligations should also be included into confidential or solemn appeals to third States to influence belligerents to respect IHL, in conformity with their obligation to “ensure respect” foreseen in Article 1 common to the four Geneva Conventions.

4. Collecting allegations of death before capture while visiting detainees

24. At least in conflicts where a large phenomenon of missing persons can be expected, the ICRC should take advantage of its visits to captured combatants and – if applicable – to civilians detained in relation to the conflict to enquire about the identity of persons the detainee witnessed to be killed before capture or arrest and about events and places where people were killed. When the recollection is still fresh, such information is easier to collect. It may be psychologically inappropriate to ask such questions at the first visit, when the visited persons have still urgent protection needs and when they may not yet have the necessary understanding and trust for the ICRC. Later,

however, such an enquiry should be the rule. The investment may appear in some contexts to be disproportionate compared with the number of missing persons. Such proportionality analysis is however only possible after some duration of the conflict, while the collection of data should start at the very beginning to be most efficient. Some fear that detaining authorities may consider such questions as espionage. The authorities could however be given in full transparency explanations about the reasons, aim and use of such questions.

5. Registration of civilians at risk

25. In the framework of its activities aimed at protecting civilians affected by conflict (cf. supra, para. 16), the ICRC sometimes concludes that a particular population, e.g. scattered members of ethnic minorities, may be at risk of disappearing. Such persons could be systematically registered, which in turn might increase their being respected by belligerents, if it is known. On the other hand such singling out may put the persons at additional risk and is not very useful to clarify their fate once they really disappeared, because it does not provide any hint about their subsequent fate.

6. Utilization of data collected in assistance activities

26. Frequently, beneficiaries of ICRC assistance programmes or medical services are registered, although only rarely with their personal data. The latter could however be collected and kept, permitting at a later stage to use such information if the beneficiaries disappear.

7. Systematic collection of information on events and persons during the conflict

27. In most cases, the fate of a missing person who has not been found alive can only be clarified thanks to a mosaic of information on events and persons during the conflict. Although belligerents should possess such data, they are often unwilling to provide it. Some might therefore suggest that the ICRC systematically collects, beyond what it anyway does for protection purposes, during an armed conflict information on events (such as battles, bombardments, massacres) which may later facilitate the clarification of the fate of persons who went missing during those events. Such collection is however not easy. It may require considerable resources for a questionable result. In wartime a lot of information is propaganda, thus, the ICRC would be left with a lot of information that it can not use, and belligerents may get the impression that the ICRC is spying on them.

8. Use of personal data obtained thanks to the exchange of family news

28. In several contexts, senders and addressees of messages exchanged through the Family News Network (cf. supra, para. 17) have been systematically registered in ICRC databases, to permit the cross-checking of subsequent tracing requests with those data. This could be systematically done. It is relatively easy for detained persons, while it can be complex for civilians and delay, at a first stage, the restoration of family links. The reality of a conflict, the geography of countries concerned or logistical difficulties to register millions of messages without delaying their delivery can make it practically impossible.

9. Systematic collection of tracing requests since the beginning of conflict

29. Since the beginning of a conflict, tracing requests should be collected from families who were not able to contact a relative through the Family News Network (cf. arguments mentioned supra, para. 19). When no or only few tracing requests are submitted by the families, the ICRC should not presume that there exists no need, but try to understand the reasons. It may be that the families are afraid to contact the ICRC or do not know that the issue is dealt with by that organization.

30. Admittedly, in the case of soldiers missing in action, families will generally not possess the necessary information to substantiate their tracing requests. Some ICRC staff also contend that most of the information contained in such requests would be useless, that most of the persons searched for reappear during the conflict and that the collection would be a waste of time and energy which could be used for more urgent actions. In some contexts the security of ICRC staff could also be threatened if it asked detailed questions about recently disappeared persons. We recognize that genuine fears for staff security, objective conditions of work and other overwhelming priorities justify an exception to the systematic collection of tracing requests. All those involved should however be conscious that such a choice results at a later stage in additional human suffering. In our view, the ICRC cannot at the same time

undertake a high profile international mobilization on the problem of missing persons and not be ready to invest the considerable time and energy needed to contribute, by one of its traditional means, to solving the problem.

31. Integration of ante mortem data, which could otherwise be lost, into tracing requests is a possibility. The advantage is that the enquirer remembers more details a short time after the disappearance. Such questions may however leave the families with the impression that for the ICRC the missing is already dead. Such collection should therefore be limited to ante mortem data which may be easily lost and which does not obviously point at the possibility that the person concerned is dead.

10. Support to families of missing persons

32. When persons disappear, their families are equally affected and have rights under IHL. The first objective of the ICRC is to provide an answer about the fate of the missing relative. In certain contexts, it however also tries to support the family in other ways before an answer can be provided. This is only possible where the ICRC is allowed to have direct contacts with the families, a right on which the ICRC should always insist.

33. Families increase pressure on international organisations to clarify the fate of their relatives. In the context of globalization and with new means of communication available, the wishes of the families world-wide become more and more similar. Some predict that if US families refuse to accept the death of their relative without positive DNA matching, it may be only a question of time until families in developing countries will have the same attitude (cf. however supra, para. 7).

34. The starting point for any services to be offered to families is a genuine dialogue with them. The ICRC has made progress in this field in recent years and it can be encouraged not to offer the services it traditionally has to offer, but those the families genuinely need.

Before a dialogue can start, the ICRC has to decide with whom to speak. It is easier to listen to a few representatives than to the wives and mothers of the missing who do understandably not know what they want and are unable to cope with their new situation. Representatives may however be politically manipulated and at least influenced by the fact that they found a new economic living and purpose for life thanks to the missing issue, while those they represent have to overcome the trauma. Mechanisms of democracy and accountability within family associations are difficult to monitor. The creation of family associations should be encouraged, if only because such solidarity among the victims is an important therapy – in particular if it evolves from the bottom up and not from the top down. In our view the ICRC should however avoid to channel its contacts with families exclusively through associations, in particular if the latter receive financial support from the ICRC. The tracing activities give the ICRC a unique opportunity to establish direct relations with the families.

In a genuine dialogue the ICRC should provide the families with information, perspectives and advice on their wishes and not simply register their answers. Is it however acceptable for a humanitarian actor to take, after a genuine dialogue, the paternalistic decision that what the families genuinely wish is not in their best interest? The answer to this question raises fundamental ethical questions and goes beyond our study. We would simply mention that not to fulfill wishes does not necessarily mean not to recognize them. Furthermore, it seems that in its detention and assistance activities the ICRC decides itself what is best, in terms of its own activities, for the individual victim. The respect of the victim’s person simply requires that he or she is informed about the assessment made by the ICRC.

35. If it systematically collects tracing requests (cf. supra, para. 29-31), the ICRC has to avoid that it becomes, both for families and Parties, “in charge of the missing” such that the parties feel relieved of their responsibilities and that families have false expectations. It would therefore be appropriate to keep families who filed tracing requests regularly informed about the applicable provisions of IHL, ICRC tracing methods, channels used, the role of the ICRC in relation to other organisations and to family associations, the responsiveness of authorities and the chances of success. This implies very often that the hopes of the families have to be reduced. The families may express anger during such meetings, but this should not be a sufficient reason to drop them, if they help the families in their mourning process. In conformity with IHL, the answer to the tracing request itself, in particular a death certificate, should be given by the responsible authorities.

36. Families of missing persons have particular psychological, material and administrative needs. Programmes answering those needs were developed by the ICRC only in certain contexts, mainly to alleviate pressure from families, authorities, or other international players. To provide certain services to families of missing persons only is in our view justified only to help to cope with the specific problems created by the uncertainty about the fate of the relative. Even then they should not retard the return to normal life as well as integration into the larger group of war survivors.

The ICRC has to decide if it wants to establish and run support programs itself or orientate families towards other organizations or governmental authorities. Such a choice is obviously only possible where alternatives exist, where they can be established or where governmental authorities can be encouraged or supported to establish them. The question whether the ICRC sees its action as subsidiary to what others do or not goes beyond the missing issue and is not to be answered by us. It has implications for the interpretation of the ICRC mandate, its visibility, fundraising and comparative advantages in terms of costs and know-how. To encourage and support governmental action instead of the ICRC doing it itself may contribute to sustainable development, good governance and permits local authorities to set their priorities and to be accountable for those policy decisions.

37. If the families wish so and the belligerents agree, but need a neutral intermediary, the ICRC could facilitate the delivery of human remains to the families (cf. infra, para. 40).

11. Field tracing

38. In several contexts, the ICRC took initiatives going beyond the submission of missing cases to the authorities and cross-checking them with data it already collected. Such field tracing, sometimes called “active tracing”, is the only solution where no sufficient structures of authority exist. It consists of corroborating and enhancing a tracing request and possibly finding the reply, by going to the places mentioned on the request, visiting and interviewing possible witnesses and following up on any new information received during this process. In some situations it only allows to constitute a more serious file to be submitted to authorities, while in others it allows to clarify the fate of the concerned person, whether alive or dead.

Initiatives such as publishing the names of all missing persons in books and on the Internet, publishing and showing around a book with photographs of personal belongings found with human remains or systematically searching through the judicial files of international criminal tribunals for information on the identity of confirmed victims, may have had a positive impact on the families, showing them they are not forgotten. They may also have contributed to the visibility of ICRC action and relieved the organization from some pressure by the families that “something must be done”. The results in terms of cases of missing persons clarified for their families were however near to zero.

Actual active searches for individual persons are conditioned by access to the field for ICRC staff, which is sometimes denied by authorities and sometimes impossible for security reasons. It involves considerable resources and police-like methods of enquiry, for which the ICRC may lack the necessary know-how and which may be detrimental for its image. As many disappearances result from violations of IHL, such active tracing may also put the security of ICRC staff into jeopardy. During a conflict, it may in addition put the missing person and anyone providing information at risk. If such searching is possible, it should be done, but in cooperation with other international and local humanitarian and Human Rights organizations, wherever this is acceptable for the local authorities.

12. Follow-up to allegations of hidden detention

39. One principle of the ICRC’s traditional visits to persons detained in relation with a conflict (cf. supra, para. 15) is to get access to all such persons. It therefore follows up on any allegation of detention it deems reliable. Such efforts may permit to find a missing person alive. Sometimes the ICRC organized surprise visits to alleged places of detention although it was convinced that the allegations were unjustified. This was seen as an effort to succour the families. In our view, such well meant action is counter-productive for the families and reignites mutual distrust between former belligerents and populations. It reinforces the belief of the families that their relatives are alive and blocks the necessary start of a mourning process. Responsible authorities may in addition use their permission of surprise visits as an alibi for not providing answers to tracing requests. We would therefore suggest that the ICRC only follows-up allegations of hidden places of detention according to its normal criteria aimed at protecting detainees.

13. Collecting information on the dead and human remains

40. At least in international conflicts, the ICRC seeks to obtain information on the dead from the parties to the conflict. Sometimes this is also done in other situations. As a neutral intermediary, the ICRC is sometimes involved in the evacuation of human remains from the battlefield to hospitals where families can identify and recover them or in the transfer of human remains across borders or frontlines to return them to the families, directly or via authorities. It might also be involved in the inhumation of remains not returned to families. In such circumstances all information on the dead should whenever possible be collected and duly managed which is not always done. The ICRC should also insist that human remains transferred under its auspices to authorities are identified by the latter and handed over to the relatives concerned.

14. Exhumations and forensic identification

41. In some cases an answer can only be obtained through exhumations and forensic identification. The latter also permit the recovery of the human remains and a decent (re)burial. Forensic identification may provide a higher certainty about the fate of the relative than other methods. In many contexts, including in developed countries, families have however no doubts about the accurateness of answers provided by the ICRC.

42. The wish expressed by the families in some contexts to receive the human remains of their relative may be caused by manipulations by parties (not willing to receive answers from their former enemies which may relieve the latter from their responsibilities) or by international actors; it may correspond to a cultural or emotional need, to a wish of a higher degree of certainty or to the wish to delay the bad news. Many families will however never be able to receive the human remains, and even fewer families will benefit from the luxury of a forensic identification confirmed by DNA analysis. We think that the ICRC should curb the wish of the families to receive the body of their relative.

43. In exceptional circumstances only, ICRC has hired forensic specialists to identify human remains. Should the ICRC itself be systematically involved in exhumations and forensic identification? If it refuses, invoking the considerable doubts which exist on whether the majority of the families will receive a result through this process, it may be perceived as promoting an institutional agenda in favour of the traditional services it provides and not to be responsive to the wishes of the families. If it becomes involved it may give its endorsement to a process which has not yet shown convincing results and appear to participate in a competition with other international players.

Under IHL exhumations are the responsibility of the (former) belligerents, and they should not be relieved of their responsibilities. Except in areas administered by international players, the parties will in any event be necessary for exhumations. Only governmental authorities can provide the necessary permits and security for exhumations, permit the collection of full ante mortem information, decide on the disposal of human remains, and give an answer to the delicate question of the relationship between forensic information useful for identification and that useful for prosecution purposes. In many parts of the world and in particular during ongoing conflicts the authorities would not permit the ICRC to collect such sensitive information. The advantages of the exhumations and identification made by the ICRC are that the institution may become a reference organisation for exhumation issues and that it will be able to make sure that exhumations lead whenever possible to identification. The ICRC has presently no particular know- how in this field, which is available to the parties from other humanitarian players. It may however obtain that knowledge. Some would add that if the ICRC wants to be the lead agency for missing issues, it also has to be the reference for exhumations and forensic identification.

44. Forensic identification must be based on ante mortem data. The ICRC could collect such data, as it is in contact with the families. When it has no control over the use of those data, the ICRC may prefer that the organism in charge of the identification collects them and simply put that organism into contact with the families. If DNA matching is appropriate and necessary for forensic identification, the ICRC could be in charge of obtaining or organizing the collection of the DNA samples from the families. In view of the present controversies on whether and how DNA matching may be used in forensic identification, the ICRC may however not wish to endorse this method in the eyes of the families, before it is sure that the necessary political will, financial means and technical conditions for a successful matching for most of the families are present.

45. When a forensic identification is made, the forensic expert knows the cause of death. If it was an ICRC’s forensic expert, the evidence would be lost for a possible trial. In our view, the ICRC should in such contexts where criminal prosecution is indicated mainly make sure that the need to identify human remains for the benefit of the families concerned is taken into account. It may however be true that to advocate with sufficient credibility those family

needs, the ICRC needs to have expertise in exhumations and forensic identification among its staff. Where conflict- related death clearly do not violate IHL, the ICRC could envisage to proceed itself to exhumations and forensic identification, if it has the necessary staff and no local resources are available.

46. The ICRC, as a neutral intermediary in humanitarian matters could facilitate joint exhumations by the Parties, which have shown the best results in terms of numbers of persons identified. With the necessary expertise, the ICRC could advise and train government officials on the most appropriate methods and offer an agreed framework to other actors willing to engage in exhumations, including international tribunals. In both roles, the ICRC could also ensure that the families, whose presence is necessary for traditional identification methods to work, are treated appropriately before, during and after exhumations and that their interests concerning individual identification, information about the procedures and human remains be respected.

47. On a general advocacy level, the ICRC might wish to promote the establishing of good practices in the field of exhumations and identifications, which could take the form of an international agreement or resolution, in order to ensure that basic rules and humanitarian needs are respected. Such a document would provide (former) belligerents with a legal and technical framework for joint exhumations, avoiding discussions about the applicable standards. It might be true that the advocacy activities of the ICRC would be more credible if it had itself experience in exhumations and forensic identification. One may however recall that the ICRC contributed to the IHL concerning landmines without ever having activated or deactivated one single landmine.

15. Ensure that the problem of the missing is taken into account in conflict settlements

48. When peace or other settlements are negotiated by the parties to a conflict, often with a strong involvement of international players, the ICRC should continue to advocate that provisions on the missing and the dead, accompanied by realistic implementing mechanisms, are included into such arrangements. The latter may establish multilateral or tripartite mechanisms on the matter (cf. infra, paras 49-55). In every case, the role of the ICRC in solving the fate of persons unaccounted for should be recognized in such arrangements, including, where appropriate, as a neutral intermediary in this field between the former warring parties. An obligation to cooperate with the the ICRC to solve the matter could be undertaken by each party, but the ICRC has to be careful to avoid that it will thus be involved as a witness into political disputes between the parties about their respect of the post-conflict arrangements, e.g. if it is expected to submit regular reports on the compliance of the parties. Such compulsory reporting to peace implementation mechanisms or international bodies is not only contrary to the traditional confidential, bilateral and co-operation-oriented approach of the ICRC, but experience also shows that it does not enhance the readiness of parties to genuinely cooperate and instead leads to sterile and politicized mutual accusations and negative consequences for other ICRC activities.

VI. MULTILATERAL OR TRIPARTITE MECHANISMS

49. Multilateral or tripartite mechanisms have been used to deal with conflict-related disappearances, mainly after the end of the hostilities in a given conflict. Often they were created as part of an overall agreement on humanitarian issues at the end of hostilities.

1. Advantages

50. Such mechanisms permitted the rapid release and repatriation of ICRC registered prisoners, by separating their fate from that of alleged hidden prisoners, whose fate was handled under such mechanisms. They ensured that the humanitarian problem of the missing is treated separately from political issues. They may provide Parties with a forum to discuss humanitarian matters and thus contribute to the restoration of peace. They prevent bilateral deals between the parties which might not take the interests of the war victims into account. Suggesting the setting up of such mechanisms, the ICRC ensures that it keeps a certain control over the handling of the missing file. In post- conflict situations where the problem of the missing benefits from considerable domestic and international attention, this corresponds to an institutional and visibility interest of the ICRC. The families too are however interested that the file is handled by an institution permanently present in the field, which is independent of political interests, has an overview of all post-conflict protection problems and a know-how in tracing matters.

2. Very poor results in terms of fates of missing persons clarified

51. Recent experience shows, however, that practically no case of individual disappeared persons is resolved through such mechanisms. As long as the former belligerents consider each other still as enemies and as long as the wartime rulers remain in power, the transparency towards the former enemy implied in such mechanisms favours politicization; Parties use it to continue the war; endless procedural debates hide the unwillingness to provide information. Once the mechanism is established, it becomes perpetual, as neither the parties nor the ICRC dare to be responsible for its formal termination, even if it does not produce any result in terms of fates of missing persons clarified for several years.

3. Role of the ICRC

52. The role of the ICRC in such a mechanism has to be clear from the beginning. It may be a neutral intermediary, the advocate of the war victims, the operational arm or all of them. The first corresponds to its traditional role and may be compatible with the second function. There may however be conflicting interests between the ICRC as a neutral intermediary and Chair of such a mechanism, and that of the ICRC as an operational agency. Its operational role should not be subject to the authority of the mechanism, in order to preserve the independence of the ICRC and to avoid that it has to act contrary to the interests of the war victims. The parties should understand that the ICRC continues to fulfil in parallel its traditional role in missing issues. The ICRC should in addition ensure that it is at any time able to quit a mechanism when it no longer provides results.

4. Tasks

53. Such mechanisms have been used in practice to submit requests for information to the parties and to receive their answers. We wonder why a party should be more willing to provide answers in the presence of the former enemy, who may immediately exploit them, than bilaterally to the ICRC. The parties should perhaps have an obligation to explain how they search for answers to build up a minimal level of mutual trust. A more promising role for such a mechanism may be to centralize information on cases on which the two or several sides possess information. Equally promising was the idea that technical sub-groups should discuss events where people went missing, but it did not lead to results in practice. Such a mechanism could finally be the forum to negotiate and plan joint exhumations. In our view, even beyond that, the most promising task is to discuss policy instead of answering individual tracing requests.

5. Involvement of other players

54. Involvement of other international players can bring additional pressure on the (former) belligerents about missing issues. The disadvantage is that it often makes negotiations even more complex, in that it permits (former) belligerents to exploit the competition between international players and that it allows the latter to push their institutional agenda. In our view, coordination between international humanitarian and political players is crucial, but it should not be done in front of the (former) belligerents.

To involve families’ representatives into the deliberations of such mechanisms allows them to feel involved and to ensure that their needs are taken into account. Meetings will however inevitably become highly emotional, making compromises more difficult. In addition, experience shows that families’ representatives do not use such a forum to put pressure on “their” side to provide answers to the families of the adverse side.

If the mechanism is a genuine forum to negotiate and plan joint exhumations or support to the families it is however appropriate to invite on an ad hoc basis experts, families’ representatives or national or international players involved.

6. Overall assessment

55. The best mechanism cannot replace the political will of the parties to solve the missing file and to cooperate for that purpose. While a certain amount of wishful and positive idealist thinking is indispensable for a humanitarian player, the ICRC should genuinely evaluate the willingness of the parties to cooperate with each other before suggesting the establishment of tripartite mechanisms. Experience seems to show that the simple fact of working together in such a mechanism is not sufficient to create the necessary political will. Sometimes it may be possible to

insist upon the solving of some well documented cases by each party before the mechanism is set up to test the political will. It is however not sure that the best documented cases are the easiest to solve.

VII. THE NEED FOR UNIFORM OPERATIONAL GUIDELINES

56. Beyond the traditional activities described in Chapter IV, the ICRC has no general operational procedures systematically applied worldwide to solve problems of missing persons. Whether the additional activities described in Chapter V are undertaken seems to depend upon the possibilities to accomplish them successfully, the extent of public and family pressure, the availability of staff not needed for activities considered as priority and the sensitivity of the decision-makers involved (cf. also supra, para. 19, on the collection of tracing requests). Policies are sometimes changed, without any reason given to us other than a change of those in charge.

57. These findings corroborate the decision already taken by the ICRC to draft uniform operational guidelines. Such guidelines will ensure that ICRC activities in this field are more foreseeable and credible for families, belligerents and other humanitarian players. They will in turn oblige the ICRC to make sure that it has the means to apply them equally to similar situations around the world and to sensitize the international community accordingly. Their content will have to be integrated into the education of ICRC staff at all levels. They will facilitate a better co-ordination between ICRC delegations on both sides of a conflict. They could not be expected to be applied in a uniform way worldwide, as the contexts of armed conflicts vary. All decision-makers could however be expected to provide reasons why they must apply another policy.

Such guidelines may let the missing problem appear as a problem to be dealt with separately from other ICRC activities, while the concern for the missing should be integrated, mainstreamed into all other activities. Basic requirements of process and staff management as well as of communication make it however necessary to formulate the new, more systematic policy at a first stage in new guidelines, stressing the necessity of mainstreaming. Over the years, those guidelines will then become part of ICRC policies in the field of detention visits, dissemination, assistance, restoring family links, etc. and – hopefully – of operational reality world-wide.

58. The fundamental policy decision which should be the basis of such guidelines is no longer to deal with missing problems after the end of the conflict, once other protection activities decreased and all the known prisoners are released and repatriated, but parallel to other problems before during and after a conflict. This does not necessarily imply that all measures suggested in this study have always to be implemented simultaneously. Frequently, a certain sequence appears to be more appropriate. The missing issue is however a long-term problem with increasing dimensions, which can best be tackled by immediate action. This new policy would in no way hinder the ICRC to continue to insist on the need to separate missing issues from problems of prisoners registered or otherwise known by the ICRC. Indeed, such a strict separation is necessary to avoid that belligerents delay for reasons or pretexts of reciprocity ICRC access to and release and repatriation of prisoners as long as the fate of missing persons is not clarified.

4.3 The Missing: Truth Commissions as mechanisms to solve issues on people unaccounted for

Synthesis document commissioned by the ICRC and prepared by Natacha Binsse-Masse and Marco Sassòli, respectively research assistant and professor at the Faculty of Political Science and Law of the University of Quebec in Montreal, Quebec, Canada, based on publicly available information.

EXECUTIVE SUMMARY AND RECOMMENDATIONS

Truth commissions are generally created by governments for a limited period of time, to establish the truth on past events presumed to constitute serious human rights violations and thus to further reconciliation in the country. In the past, some truth commissions had to deal with the problem of missing persons. Their practices show that truth commissions could effectively tackle some issues on persons unaccounted for, if some conditions for an efficient functioning were met. These conditions, which can differ from a country to another, are in fact rarely respected sufficiently to accomplish adequately this specific task.

Truth commissions are mainly interested in persons unaccounted for in order to find out whether they were victims of forced disappearances. They generally search for the truth about a pattern of behaviour, often also illustrated by the violations committed against some individuals, rarely about all individual violations. The focus is generally put on finding violations and on attributing them to the State. Sometimes, the responsibility is also individually attributed. To find the current truth, i.e. to locate a disappeared person or his or her remains, is only a by-product of the search for the truth about the past.

If the basic needs for an efficient work of a commission are not met, the commission will inevitably have a lesser impact on the problem of missing persons. Most of the following tentative recommendations therefore concern as much the functioning of truth commissions in general as specifically the appropriate way to clarify the fate of persons unaccounted for:

1. Credibility and report of the commission

• Take all the appropriate measures to assure the credibility of the commission (composition, way of functioning, etc.) • Publish the report in a way that allows most of the population to know its contents (in different languages, by radio or television, on internet, etc.).

2. Access to and collection of information

• Take all appropriate measures to facilitate testimonies by witnesses, relatives and perpetrators, including through visits to rural areas, offering services in different languages, creating a climate of trust; • Have access to documents or locations placed under the authority of the government; • Have judicial powers (subpoena, search and seizure); • Gain the trust of government officials for the utility and impartiality of the work of the commission; • Offer efficient and credible witness protection programmes; • If an amnesty is to be declared it should be conditional on revealing the truth about violations committed; • Qualify hiding pertinent information concerning missing persons as a crime; • Whenever a perpetrator or a witness reveals a death, ask for information about the current location of human remains.

3. Financial and human resources

• Provide the commission with resources and staff to make individual investigations; • Provide the commission with sufficient resources and staff to exhume and identify corpses (traditional techniques, DNA, etc.); • Provide the commission with financial resources to assure the independence and continual functioning of the commission. • Donor countries and international financial institutions should consider supporting truth commissions in developing countries financially and by setting up fora where the latter can exchange experience, including on methods to search for persons unaccounted for;

4. Search for persons unaccounted for and their remains a) Necessity to investigate the fate of individual victims?

We do not think that we must generally recommend that all truth commissions should always also search individually for every person unaccounted for and for the relevant human remains. This could hinder a commission to achieve its other aims, in particular to clarify the historical truth and to provide official recognition for the suffering of the victims of human rights violations. Where the number of persons reported missing is large, in particular after an armed conflict, a focus on clarifying the individual fate of every missing person can paralyse a truth commission. In our view, a truth commission can legitimately chose to clarify only the general picture of human rights abuses and violations of international humanitarian law. If it chooses to do so, it should however:

• Inform the families and witnesses testifying about disappearances that it will not try to clarify the fate of individual persons; • In case it nevertheless encounters during its work information which assists in clarifying the fate of individual persons, provide such information to the families concerned or to another body competent and willing to clarify individual fates; • Include into its report as many details as possible permitting families of missing persons to understand whether their relative must be presumed to be dead and about the probable fate of each category of missing persons; • Include into its report the names of all persons reported as missing. b) Possibility to investigate some individual representative cases

Although such action has discriminatory effects and leaves many families frustrated, we are not in a position to recommend that truth commissions should never choose only to clarify the fate of some representative individuals who disappeared. This should however be done in full transparency towards the families and only to illustrate general phenomena. In addition, concerning those persons whose fate they try to clarify, the recommendations applicable to commissions which deal with individual cases apply. c) In case the fate of individual missing persons is investigated

If a commission chooses to clarify the fate of individual missing persons, it should:

• Inform the families and witnesses testifying about disappearances about its working methods and chances of success; • Inform families individually and before the report is published on its findings concerning their individual relative; • Search whenever it clarifies the fate of an individual for the next of kin of that individual • Confronted to insufficient resources, give priority to clarify the fate of the individuals concerned and search for remains only where that is necessary for that purpose.

I. INTRODUCTION

mechanisms such as the ICRC or the UN Working Group on Enforced Disappearances. Unfortunately, no such specific information is available. Publicly available information on truth commissions focuses on the circumstances of their establishment, on the dilemmas involved and alternatives as well as on their findings in terms of human rights abuses. Information about whether and how they searched for missing individuals is rare. It is in addition generally impossible to understand how successful they were in clarifying the actual fate of such individuals and how often they found the actual whereabouts of the individuals concerned or of their human remains. While much information is available on how families testified about the disappearance of relatives, little information transpires on how and whether those families were informed about the individual fate of a missing person by ways other than the published report. As some truth commissions will be represented at the September 2002 workshop and other experts will attend, it is hoped that the final study can be based on additional information and that any error appearing in the present text can be eliminated.

The purpose of this text is to explain how truth commissions work and which are their results as well as to analyse, as far as possible, their strengths and weaknesses, in particular in achieving the goal of clarifying the fate of people unaccounted for. First, we suggest to explain what is a truth commission. Second, we will add some specific thoughts on truth commissions and conflict-related disappearances. Third, we will provide some examples of truth commissions that had to deal with disappearances or whose way of functioning can be of interest for that purpose. Fourth, we will elaborate on some conceptual aspects of truth commissions, which contribute or might contribute to a greater efficiency in clarifying the fate of missing persons.

Some institutions, not expressly called truth commissions, can be set up to deal with past human rights violations. Sometimes, national human rights commissions also work as truth commissions, when they publish special reports about past events. Thus, e.g., the Mexican Human Rights commission has recently published detailed reports on the fate of persons who disappeared 20 years ago, including information on each individual case. (1) Such institutions, often very similar to truth commissions by their mandate or working method, are in some contexts good mechanisms to clarify the fate of missing persons. The general findings and recommendations contained in this study apply to such institutions.

II. GENERAL INFORMATION ON TRUTH COMMISSIONS

There is no unique model for truth commissions. Each truth commission adapts itself to the situation it has to respond to and will be influenced by a multitude of factors: the historical, social, economic and political situation in which it operates, the conflict or the human rights abuses which initiated it, and the presence or absence of other local or international players concerned about the same events. The perception of the establishment of a given truth commission by the population at large and the victims and their families more particularly will equally differ from country to country. In some countries a truth commission is a softer alternative to criminal prosecution, in other countries it is feared that even the findings of a truth commission will just increase or reflect the existing tensions. The establishment of a truth commission does not seem to be the solution for every country and the type of truth commission will also vary from a country to another.

However, some general characteristics can be mentioned about almost all truth commissions. We found 27 countries, essentially developing nations, which have established this type of commission since 1974 (2). Some have instituted more than one. In total, there have been nearly 30 truth commissions(3), mostly in Africa and Latin America.(4) They have four main characteristics. First, they are set up for a limited period, not more than a few years, usually until the conclusion and publication of a report. Second, they focus on gross human rights violations which have occurred in the past during a certain period. Third, they often present a general picture of human rights violations rather than to investigate the fate of individuals. Finally, they have a certain authority, by virtue of the way they were created, which allows them to get access to the information they need.

Truth commissions are often needed in a time of political transition, preceded by a history of massive human rights violations and followed by a government, which at least wants to be perceived as both democratic and respectful of human rights. Their mandate generally specifies the period of time and the kind of events or crimes on which they have to find the truth. Generally, the events on which the truth is to be found are presumed to be crimes, most often committed by governmental forces. The crimes covered by their mandate include serious violations of human rights such as murder, torture and forced disappearances. The main purpose of a truth commission is to find the truth in order to assist reconciliation within the country. In the majority of cases, the commission is created by an act of the executive or legislative branch of government, often as a result of pressure from the public and non-governmental

organisations, sometimes also from international public opinion and third States. The commission is usually financed by the government. In some cases, international or foreign players are involved, and in one case, a private one.

The investigating powers (latitude to issue subpoenas, to make searches and seizures and to protect witnesses) given to the commission and its real possibility to investigate differ from one commission to another. Some have easy access to government files while others are confronted to a lack of cooperation by government officials, in particular members of the security forces, or they face the consequences of a destruction of files. The way the commission functions also takes different forms. Some focus on the testimony of the victims, while others equally try to get evidence from presumed perpetrators. The majority hold public hearings, a few keep the proceedings private. Hearings do not take the form of a trial, while sometimes some judicial guarantees are offered to those found to be perpetrators.

As for the results of a truth commission’s work, its first aim is finding the truth, thus contributing to reconciliation in a country, including by demonstrating to victims of past abuses and to their families that their fate is not forgotten. Normally, the result of the work of a truth commission is a report, which presents the general picture of the human rights violations studied and makes recommendations on how the authorities should respond and what measures should be taken to avoid a similar situation in the future. Often, the names of victims are listed, sometimes with a detailed report on their fate. The names of the perpetrators are rarely made public.

To achieve most of its aims, the report should be accessible to the population. Too often, final reports are however not published or, if they are, the majority of the population does not have access to them, because of the small number of copies published, the absence of easily intelligible summaries, language problems or illiteracy. Even where truth commissions have a high profile (e.g. in South Africa), their recommendations are often not complied with. Very often, the crimes about which the truth should be found were committed by agents of a previous government and the recommendations are frequently linked to these persons, consequently to the State. That same State is therefore responsible for the violations, should favour reconciliation, compensate the victims and avoid similar events in the future. Frequently, the authorities however do not want to admit the responsibility of the State. Even when they do so, the recommendations are rarely fully implemented. Including where no formal amnesty follows the release of the report (or is granted by the truth commission itself), criminal proceedings are only rarely initiated against the perpetrators designated by the commission.

Most criticism made against truth commissions is in reality directed at outside factors which they cannot influence and which hinders their work (lack of resources, difficult access to information and government files, etc.) or a lack of results (absence of a report or of its publication, recommendations not implemented, impunity of the perpetrators, etc.). Such factors, whether attributable to the commission or not, undermine the latter’s credibility and therefore its contribution to national reconciliation.

III. TRUTH COMMISSIONS AND CONFLICT-RELATED DISAPPEARANCES

Truth commissions search for the truth on past events, which are perceived by at least parts of the public as violations of human rights. Such events may also violate international humanitarian law (IHL). Often no distinction is made between the two categories of violations. Truth commissions however only very rarely enquire into alleged violations of IHL on the conduct of hostilities, which have no direct equivalent in human rights, e.g. indiscriminate attacks or the use of prohibited means and methods of warfare. We did not find cases of enquiries into international armed conflicts. Concerning non-international armed conflicts, several commissions had a mandate to enquire into the behaviour of both sides, but in practice their findings concerned mostly violations by government agents.

The focus of truth commissions’ interested in persons unaccounted for is to find out whether they were victims of forced disappearances. Sometimes they look also into massacres or attacks directed at the civilian population or killings of fighters who were « hors de combat » which resulted in disappearances, e.g. because the bodies of the victims were hidden by the perpetrators. We did not encounter enquiries by truth commissions into the fate of fighters who went missing in action or into that of civilians who disappeared as collateral victims of hostilities (e.g. following aerial bombardments).

The focus is generally put on finding violations and attributing them to the State or, less frequently, to opposition movements. Sometimes, the responsibility is also individually attributed. It is in this context that the fate of a missing person until his or her death is sometimes clarified. Our sources do not indicate whether in this case the families

concerned are informed individually or the result is only mentioned in the report of the commission. To find the current truth, i.e. to locate a disappeared person or his or her remains, is only a by-product of the search for the truth about the past.

The commissions generally search for the truth about a pattern of behaviour, often also illustrated by the violations committed against some individuals, rarely about all individual violations.

Theoretically truth commissions act spontaneously, but enquiries into disappearances are for factual reasons always triggered by reports by families, friends or NGOs that a person disappeared.

The main source for a commission’s findings on disappearances is information provided by relatives, NGOs, or by (other) victims of human rights abuses (e.g. persons who were temporarily detained together with a missing person). The cross-checking of such information permits to draw the reasonable conclusion that a violation occurred, but normally no inference about the fate of the victim or the finding of mortal remains. Information by perpetrators or by third persons is much more difficult to obtain, but would be crucial to make findings about the actual fate of the missing person. When they are able to make such findings on the fate of missing persons, truth commissions frequently conclude that missing persons are dead based on circumstantial evidence and although no remains are found and identified.

IV. SOME TRUTH COMMISSIONS WHICH HAD TO CONFRONT THE PROBLEM OF MISSING PERSONS

As mentioned before, truth commissions, or more specifically their mandate, will take the colour of the situation for which they were set up. The following list of truth commissions which had to confront the problem of missing persons is not exhaustive, but is aimed at providing examples for types of truth commissions and manners in which they tried, in the past, to clarify the fate of missing persons.

Argentina: National Commission on the Disappearance of Persons (CONADEP) Duration of its work: 1983-1984 (9 months) Created by: Presidential decree Mandate: Clarify acts relating to the disappearance of persons between 1976-1983 Number of commissioners/staff: 13/60 Access to information: Little cooperation from the military, but could visit detention centers, cemeteries and some police facilities Judicial powers: None Amnesty or/and trials: Some form of amnesty was granted and some trials were held, sometimes thanks to the findings of the commission. Results (report and recommendations): 8960 disappearances were reported, but there were no in-depth investigations. Most of the cases were forced disappearances by government officials. The report included the names of the victims. The commission tried to locate remains and was in a few cases successful. It also tried to work with the victims’ relatives to find people alive, but none were found. Some financial compensation was granted by the government to the families concerned. The names of the perpetrators were published following a leak to the press and the report became a best-seller in the country. Criticism: In reality, there were allegedly many more cases of disappearances (10,000-30,000); the Commission had difficulties in obtaining information (destruction of files before the commission was created, lack of cooperation and difficulties to reach citizens in rural areas). The Commission received however widespread international attention and is cited today as one of the best truth commissions.

Chile: National Commission on Truth and Reconciliation (The Rettig Commission) Duration of its work: 1990-1991 (9 months) Created by: Presidential decree Mandate: Essentially to investigate disappearances and cases of torture leading to death committed by government agents from 1973 to 1990 (under Augusto Pinochet’s regime) Number of commissioners/staff: 9/60 Access to information: Lack of cooperation from government officials even if some testified voluntarily. Judicial powers: None

Amnesty or/and trials: Some form of amnesty was granted and some trials were held. Results (report and recommendations): 2920 victims were reported and their cases were investigated in depth. Most of them were victims of crimes committed by government officials. The Commission came through its investigations to the conclusion that all those persons were dead. The report included the names of the victims and recommended to create as a specific crime that of hiding pertinent information concerning missing persons and to promulgate a legislation which recognises the right of the relatives to bury with dignity the bodies of their loved ones. Some medical and mental health care and some financial compensation were granted. One of the recommendations made by Chile’s truth commission was to create the National Corporation for Reparation and Reconciliation. This organisation, created in 1992, was mandated to search for the remains of missing persons and to resolve unfinished cases. It published a report in 1996 which documented 899 new cases (123 disappearances and 776 cases of extrajudicial executions or death under torture). Criticism: The Commission did not provide information on 50,000 to 200,000 cases of gross human rights violations which did not result in death. Because of lack of cooperation by military officials very little new information has been uncovered by the Commission. The Commission gave however an official confirmation for what was already known. This provided some relief to the families. Particularities: After its publication, the report was removed from circulation to avoid an increase of existing tensions. The report assisted however a Spanish judge to charge Augusto Pinochet in 1998 and to ask for his extradition.

El Salvador: Commission on the Truth for El Salvador Duration of its work: 1992-1993 (8 months) Created by: Peace agreement concluded between the parties to the conflict under the auspices of the United Nations Mandate: Investigate serious acts of violence, committed between 1980 and 1991, whose impact on society demanded that the public should know the truth Number of commissioners/staff: 3/15-45 Access to information: The access appeared to be good. In the beginning it was difficult to obtain testimonies from victims and their relatives (lack of trust; the events were perhaps still too recent) Judicial powers: The Commission did not seem to have specific judicial powers. It offered to everyone the possibility to defend himself before his name appeared in the report. Amnesty or/and trials: General amnesty was granted five days after the report was issued. The commission did not recommend any prosecutions, did not hand over any evidence to the courts, but contributed to the removal of some perpetrators from the military forces. Results (report and recommendations): 22,000 cases reported (25% disappearances, the rest cases of torture, killing and kidnapping), 32 cases were investigated in depth (well-known cases or cases representative for a certain pattern of abuse). Most of the cases consisted of human rights violations committed by government agents. The commission compiled a list of all persons reported to be missing according to the testimonies it collected. The report named some perpetrators and had some impact in the United States of America. Criticism: The report focused on some well-known or representative cases. Thus, no information on the fate of the majority of the victims, nor the testimonies collected on such other cases was included. The Commission failed to fully cover some important aspects of the conflict-related human rights violations (death squads) and foreign involvement in the conflict. Particularities: None of the commissioners or the members of staff was Salvadorian. The Commission was assisted by the Argentine Forensic Anthropology Team (5) for the exhumation of some human remains.

South Africa: Truth and Reconciliation Commission Duration of its work: 1995-1998 (2.5 years) Created by: Act of parliament Mandate: Investigate gross human rights violations committed in the context of apartheid between 1960 and 1994 by the government in place at that time and the opposition (ANC) Number of commissioners/staff: 17/300 Access to information: Very good Judicial powers: The Commission could use subpoenas, search premises, seize evidence, and applied a witness protection program. It had the power to grant conditional amnesty to perpetrators (in exchange of a complete confession), if their crimes were linked to political goals. In cases of gross human rights violations, perpetrators could be questioned by the legal counsel of the victims or the victims themselves.

Amnesty or/and trials: Conditional amnesty (over 7000 requests) was granted and some trials were held (sometimes based on information collected by the Commission). Results (report and recommendations): 21,000 cases reported and investigated in depth. Most of them were crimes committed by the government or the opposition. The Commission helped to locate some human remains and a committee worked to set up a reparations programme. Some financial compensation was granted. The Commission received widespread coverage from the media and international attention. It is cited today as one of the best truth commissions. Criticism: There was criticism against the provision of amnesty for those who fully disclosed their crimes, because such amnesty prevented the victims to bring those responsible before criminal or civil courts. In addition, such perpetrators had not necessarily to apologize nor to show remorse. The Commission did not really use its judicial powers as often as it could have (probably to avoid political tensions). Many recommendations were not implemented. Particularities: The Commission was composed of three committees: the Human Rights Violations Committee (responsible for collecting information from victims and witnesses), the Amnesty Committee (responsible for the individual application for amnesty), and the Reparation and Rehabilitation Committee (responsible for the elaboration and implementation of the recommendations). The Amnesty Committee continued to work several years after the release of the report to receive other requests for amnesty. The Commission defined the crime of “disappearance” as an abduction resulting in death.

Guatemala: Commission for Historical Clarification Duration of its work: 1997-1999 (1.5 years) Created by: Agreement concluded by the parties to the former conflict following the United Nations moderated peace agreement (1994) Mandate: Investigating on human rights violations between 1962 and 1996 Number of commissioners/staff: 3/up to 200 Access to information: Lack of cooperation from government officials. Some information was obtained by the declassification of U.S. governmental files and from databases supplied by human rights organisations. Judicial powers: None. The Commission could grant perpetrators a confidential hearing. Amnesty or/and trials: The Commission could not mention the names of the perpetrators, nor attribute individual responsibility. Its findings had no judicial consequences. Results (report and recommendations): The Commission assessed 42,275 victims of murder, forced disappearance (6000 persons), torture and rape. 100 cases were investigated in depth. Most of the crimes were committed by military forces or government agents. The Commission estimated the real number of those killed or still missing to be more than 200,000, considered the U.S. support to the repressive regime as a cause underlying the civil war and made some recommendations in order to clarify the fate of missing persons. Later, the government committed itself to implement the recommendations. Criticism: Some criticism was made concerning the lack of cooperation of the officials and the limited powers of the Commission. Particularities: The members of staff were composed of foreigners and nationals (none of the latter worked as field office directors or head of department). The commission received important help from human rights organisations (including to enable exhumations) and the findings of the Commission supported a request to impeach the president of the Congress of Guatemala.

Sri Lanka: (Three) Commissions of Inquiry into the Involuntary Removal or Disappearance of Persons Duration of its work: 1994-1997 (3 years) Created by: Presidential appointment Mandate: Investigate on people who were involuntarily removed or had disappeared between 1988 and 1994 Number of commissioners/staff: 3/5-20 Access to information: Lack of cooperation from officials and difficult access to information in the Northeast where a conflict was still ongoing Judicial powers: The Commissions could use an equivalent of subpoena. Amnesty or/and trials: The Commissions had the power to investigate the whereabouts of missing persons and to assess whether the evidence was sufficient to charge individuals (some trials were held). Results (report and recommendations): 27,526 cases were reported. No individual investigation in depth was made. A follow-up commission was established to work on the files the Commissions did not complete. Few persons were found alive. Some financial compensation and death certificates were granted. The disappearances seem to have decreased during the work of the Commissions.

Criticism: The report was weakened by the fact that the president of the country needed the support of the military and seemed to be unable to criticise them. The reparations program was slowly implemented. A lot of disappearances which occurred in 1995 and 1996 were not covered. The report was not widely distributed and relatives of the victims were not informed of the findings of the Commissions. Particularities: There were three geographically distinct commissions. A conflict was ongoing in the Northeast of the country during the work of that Commission.

Bolivia: National Commission of Inquiry into Disappearances Duration of its work: 1982-1984 (2 to 3 years) Created by: Presidential decree Mandate: Investigate gross human rights violations which had happened between 1967 and 1982. Torture, illegal and prolonged arbitrary detention were excluded. Number of commissioners/staff: 8/6 Access to information: Appears to be poor Judicial powers: Appears to be poor Amnesty or/and trials: Some trials were held Results (report and recommendations): 155 persons were found to have disappeared, but there was no investigation in depth. The Commission helped to locate remains but did not release its report. Criticism: The lack of sufficient resources and political support may have lead to the absence of a report. The mandate excluded such important crimes as torture, illegal and prolonged arbitrary detention. Particularities: This Commission was the first truth commission of Latin America and it contributed to the recognition of an obligation of the State to search for truth and justice.

Apart from the aforementioned examples, other truth commissions have also dealt directly or indirectly with the problem of missing persons. For instance, in Nepal in 1990, the Commission of Inquiry to Locate the Persons Disappeared during the Panchayet Period had to investigate and identify the final place of detention of those who disappeared. No details about its results are available. In Uganda in 1974, a Commission of Inquiry into the Disappearance of People in Uganda since the 25th January 1971 seems to have contributed to a decrease of disappearances during its mandate. This Commission pointed out the advantage and the risks resulting from the fact that it could use, unlike a court, hearsay evidence. In Uruguay in 1985 an Investigative Commission on the Situation of Disappeared People and Its Causes was established. In Chad there was in 1990 a Commission of Inquiry on the Crimes and Misappropriations Committed by the Ex-President Habré, His Accomplices and/or Accessories.

Finally, we should mention that in March 2001, a truth commission was established in the Federal Republic of Yugoslavia. It was officially inaugurated by the government in February 2002. Its mandate is to investigate war crimes committed in Slovenia, Croatia, Bosnia and Kosovo in the last decade. The work of this Commission could be very interesting as the problem of missing persons is particularly important in the Balkans, but it does not seem to look into individual cases, which may be reasonable, because so many other mechanisms try without great success to clarify the fate of missing persons in that context. This Commission is the first one working parallel to an international court, the International Criminal Tribunal for the former Yugoslavia (ICTY).

V. HELPFUL MEASURES

In some cases, truth commissions seem to be a good vehicle to solve some issues on persons unaccounted for. They can be adapted to the particularities of the country and of the conflict they have to investigate. Their contribution can take different forms. As most missing persons die and can not speak about their ordeal, a great deal of secrecy surrounds their fate. Truth commissions can find out collectively and sometimes individually the truth about the victims’ fate, how they died and what happened between disappearance and death. Second, their report can help to confirm collectively and sometimes individually that the missing persons are dead, allow relatives to mourn, and permit them to implement their rights (heritage, compensation, pension, etc.). Third, it may help to identify the forces responsible (government, opposition groups) and sometimes even the name of the perpetrator. Fourth, truth commissions can sometimes facilitate finding the remains of the victim and a decent burial. Finally, exceptionally, they can help to find persons who are alive. By elaborating on conceptual aspects of truth commissions, this section’s goal is to identify some helpful measures to increase a truth commission’s efficiency in achieving those aims.

1. The mandate

Sometimes, the mandate will be focussed on disappearances, most often it will cover more generally serious human rights violations, usually including disappearances. Habitually, the disappearances studied are the ones resulting in death. While most often disappearances studied by truth commissions have resulted in death, it may be important, for the perception of the families, not to exclude from the mandate the cases of people who survived. The mandate will also specify whether the truth commission has to describe an overall picture of the human rights violations or make individual inquiries, particularly important to explain someone’s fate. Even in the former case, it is important to specify in the mandate that the families of those whose individual fate happens to be clarified in the course of a general investigation of the phenomenon should be informed accordingly.

2. Access to information and judicial powers

To ascertain the fate of a missing person is, for the relatives concerned, often the first step to begin the mourning process, to settle some of the legal consequences, to find the remains and to bring to justice those responsible. Often the only ones able to clarify that fate are the perpetrators, who are frequently government agents. The truth commission should have access to government files and be able to visit sites where missing persons could have been (e.g. mass graves, cemeteries, detention centres, etc.), which also necessitates cooperation by the government agents concerned. Such cooperation is essential, even more to ascertain what happened to a missing person, than to find the actual whereabouts of the person or of its remains. Too often, this cooperation is partial or not given at all and pertinent files have been destroyed. This is probably the main obstacle to finding out the truth.

Obviously, information about missing persons may also come from other sources. Rarely can victims testify about their own fate, because most of them are not found alive. Human rights organisations are often an important source of information on disappearances. This was particularly true in Guatemala, where the truth commission was helped by the Catholic Church, which set up The Recovery of the Historic Memory (REHMI) project. This project collected the testimony of more than 5000 survivors and documented the stories of 55,000 victims. Also, thanks to the training and support by the Argentine Forensic Anthropology Team, it made important efforts to carry out exhumations on massacre sites. The fact that it was a religious organisation’s initiative seems to have had a positive influence as it incited the perpetrators to tell their stories. Some important information also came from others NGOs. The positive influence of a religious environment has also been cited in South Africa. Witnesses play an important role. Each category of witnesses (families, friends, former prisoners, former political activists, perpetrators, human rights and religious organisations, NGOs) is able to provide different parts of the information needed. Families or friends can tell about physical particularities, former political activists can communicate information about the members and activities of a group. Witnesses can be encouraged to come forward when an efficient witness protection program exists. Finally, the possibility for truth commissions to seize, search and issue subpoenas, for instance, is a good way, sometimes the only one, to obtain important information.

3. Financial and human resources

Insufficient financial and human resources constitute one of the greatest obstacles faced by truth commissions. Indeed, gathering as much information as possible and making individual investigations require sufficient resources. To get the necessary information, a commission should be able to reach persons living in rural areas and it will frequently need interpreters. To investigate what happened to an individual missing person is far more expensive than to simply get an overall picture of human rights violations. Finally, the exhumation and identification of corpses implies the need of very considerable additional resources, in particular if the aim is not only to clarify the causes of death but also to identify the remains. For the latter purpose, it is often necessary to constitute an ante mortem database, sometimes DNA matching will also be needed. In our view, when sufficient resources are not available, priority should be given to clarify the general pattern of disappearances, which may already provide some relief to the families, and to clarify the fate of an individual without searching for his or her remains.

4. Exhumation/identification of corpses

Exhumations and forensic identification of corpses are the only way to provide the families with the human remains of a missing person. They will also provide them with the highest degree of certitude that the person is dead, but not necessarily clarify what happened to the person before his or her death. Rarely, they will be the only way of clarifying the fate of a missing person. They are obviously only possible if the human remains were not destroyed by the perpetrators or due to cultural traditions (burned, thrown into the sea, etc.). If they are, only the circumstantial

evidence found by the truth commission and its credibility can help the families. When bodies are found, a truth commission normally does not have sufficient financial and human resources to proceed to exhumations and to the identification of corpses. Families frequently ask for the remains of their loved ones, but such requests are normally not addressed to the truth commissions.

Some of the truth commissions studied tried to answer this need. In South Africa, the numerous testimonies obtained, especially the ones coming from the perpetrators, helped to locate some remains. The Commission used many of the services of the South African Police Services, especially their canine unit (sniffer-dogs). All this lead to the exhumation of fifty bodies. Sometimes autopsies were made, in other cases the bodies were immediately returned to the families concerned. Due to the length and the difficulty of this method to clarify the fate of persons unaccounted for, the Commission was not able to complete the almost 200 other cases.

In El Salvador, the Commission helped to exhume the remains of the victims of the el Mozote massacre. Before the Commission began its work, the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador (ONUSAL) asked for the appointment by the authorities of experts to make exhumations. After long judicial proceedings and delays, the experts were finally appointed. The exhumation confirmed the allegations of mass murder in el Mozote. The work of the Commission consisted of ensuring that the exhumations were conducted according to scientific standards and impartially, of reviewing available documents and of taking the testimonies of eyewitnesses. Those exhumations aimed apparently at establishing the causes of death and not at the identification of remains.

In Sri Lanka, a special police team began forensic investigations into some cases discovered by the Commissions.

Reference should finally be made to Argentina’s Forensic Anthropology Team (EAAF), because it assisted several commissions and similar bodies (6). This organisation was founded in 1984 in the wake of the work of the National Commission on the Disappearance of Persons of Argentina. It was set up, with the help of the American Association for the Advancement of Science (AAAS), as a non-governmental and non-profit organisation, to apply forensic sciences, especially forensic anthropology, to the investigation of human rights violations. The EAAF was composed of 12 members from different fields of specialization (medicine, archaeology, physical and social anthropology, computer science and law). Its objectives are: to apply forensic sciences to the investigation and documentation of human rights violations; to provide evidence in court; to assist the relatives of the victims to recover the remains; to collaborate to form new teams in other countries; to conduct seminars; and to contribute to the historical reconstruction of the recent past, “often distorted or hidden by the parties or government institutions themselves implicated in the crimes being investigated”. Since its creation, EAAF has worked in numerous countries at different levels, such as in Colombia (for the forensic investigations into the Palace of Justice incident), Bosnia and Herzegovina (with the International Criminal Tribunal for the former Yugoslavia), Chile (to establish a blood bank about the relatives of the disappeared), El Salvador (for the el Mozote massacre), Honduras, Surinam, Haiti, the Democratic Republic of Congo and others. The work of the EAAF had a significant impact in Guatemala. Indeed it helped to train the Guatemalan Forensic Anthropology Foundation (FAFG) in 1992. Subsequently, two other groups were founded by the Office of the Archbishop of Guatemala and by a local human rights organisation. These four groups were the only ones specialized in this field in Latin America in 1998. A few months ago, many workers of the Guatemalan groups received death threats in letters and/or phone calls aiming to obtain an immediate stop to the exhumation of corpses. Some important documents were also burned.

5. Identification of those responsible; amnesty and trials

The debate on whether criminal proceedings against those responsible are an obstacle to or are necessary for reconciliation, or the finding of the truth, and whether they correspond to a genuine need of the families goes beyond the scope of our study. Obviously, knowing the names of those responsible and seeing them convicted are very important for a victim’s relatives. Usually, criminal proceedings are however more useful in satisfying the need for justice or revenge than to lift the veil of secrecy surrounding the fate of an individual missing person. An exception exists when the only way to obtain information from persons other than the presumed perpetrator is to force those persons to testify before a court. Normally, truth commissions play only an indirect role in criminal prosecutions and are not set up to accomplish this goal. Nevertheless, they can supply courts with essential information about presumed perpetrators and the context in which the crimes were perpetrated.

The possibility of divulging the names of the perpetrators in the report involves similar dilemmas. It may give some satisfaction to the families, who will however be even more frustrated if no criminal prosecution follows. It does not

give them additional information about the fate of their missing relative. It will be useful only if it allows the identification of those responsible and later to bring them before a court. Conversely the promise made to a perpetrator not to divulge his name could possibly influence the amount of information he will decide to reveal. The preceding comments hold true only if no conditional amnesty is granted. The South African experience shows that, if an amnesty is granted, many perpetrators are ready to testify, even if their names are made public.

Some comments on such amnesties may be added. Very often a transition to democracy and/or national reconciliation after an armed conflict requires some form of amnesty. Three forms of amnesty can be distinguished: general amnesty, limited amnesty (for some crimes or perpetrators, for a certain period of time, etc.) or conditional amnesty. When a general or limited amnesty has been granted before or during the work of a truth commission, this could incite some perpetrators to reveal more information as they will no longer be afraid of facing potential criminal charges or civil proceedings. The frequent amnesties declared after the report of a truth commission is made public have however no possible impact on the possibility to clarify the fate of missing persons. An amnesty conditional on revealing the truth seems to be the best method to obtain information on missing persons. The only example was the case of South Africa. Over 7000 requests for amnesty were presented to the pertinent committee of the Commission. After the release of the report, this committee continued to receive requests for amnesty. Thus, some information on missing persons (their suffering, how they died and what was done to their bodies) was obtained and some remains have been located.

6. Credibility of the truth commission

Credibility is crucial for the achievement of all aims a truth commission pursues, including for the impact of its findings on the families of missing persons. Credibility depends on the combination of numerous factors, different in each country. How a commission is created, who created it, the nationality, professional background, reputation and diversity of the commissioners, the financial and human resources, the mandate, the presence of trials or amnesty, the publication of a report and the follow-up given to the recommendations are some of the factors which will play a role for the degree of credibility a truth commission can enjoy. Credibility is important for two main reasons. First, the more trust people have in a truth commission, the more they will be ready to share information. More information means a better chance to clarify a person’s fate. Secondly, credibility can have an important role if the human remains of missing persons are not found. When the commission is credible, families are ready to accept its findings, even if the latter are based on circumstantial evidence.

7. The “results” of a truth commission

In practice, a report rarely clarifies the fate of individual persons, although in theory this aim could be achieved with an adequate mandate and sufficient resources. The main result of a truth commission is the general findings included in the report it produces. It is essential that a truth commission makes, releases and publishes a report. There is rarely no report. Sometimes, a report is produced and released to the government but not published. More often, the report is only published after important pressure from the public and human rights organisations. Most of the reports give a general picture of the human rights violations rather than information about individual fates. The report itself does not necessarily bring new information to the relatives of a missing person, but it provides them with an official confirmation of their victimization. To increase this effect, the report should include as many details as possible on the elements which permitted a truth commission to conclude about the fate of missing persons in general or individually.

On the other hand, a report, even if it focuses on general violations, can have positive effects for the relatives of the missing persons. First, it can include the names of the disappeared. When the commission enjoys a high degree of credibility, this can help relatives to believe that their loved ones are dead. Also, this is often a condition to get some government compensation. Finally, the fact that a pattern of human rights violations has been revealed can, at least in a general way, explain what could have happened to the relative concerned. All preceding comments on the reports are pertinent only if they are available to the majority of the population. This may imply, for instance, the need to translate it into many languages or even to use radio or television in a country which has a lot of illiterates.

The fate reserved to the recommendations of truth commissions differs from country to country. Often, the recommendations are not implemented or only partially implemented. Some measures related to missing persons can be found among recommendations of truth commissions. Recommendations made by Chile’s truth commission were: to create a specific crime of hiding information that could assist in clarifying a person’s fate (e.g. about the location of the remains); to adopt legislation giving relatives the right to bury with dignity the body of their loved ones;

and to create a procedure to declare dead people who have been detained by the government or have disappeared and to continue to help relatives in their search. In the report of Argentina’s commission, it is said that the clarification of someone’s fate is possible once the individual responsible is found. In Argentina, certificates of forced disappearance were provided to the families; these certificates had the same legal consequences as death certificates but had the psychological advantage (some would however qualify it as a psychological disadvantage) of not obliging families to admit, by requesting a death certificate, that their relative is dead. South Africa’s commission recommends to facilitate the deliverance of a death certificate and that the appropriate ministries establish mechanisms to make exhumations and reburials.

Finally, in the Guatemalan report, it is specified that the government and the judiciary should investigate and reveal the whereabouts of missing persons and deliver remains of the victims by using all the available legal and material resources (especially through the exhumation of human remains). Also, the Commission asked the Guatemalan Army and the former armed opposition to provide all information they may have in relation to disappearances. Third, the Commission recommended that a commission should be set up to help to find children who have disappeared, were illegally adopted or separated from their parents. Finally, the Commission requested the assistance of the ICRC and of the international community to reach these goals.

Final notes

(1) See our parallel report “The missing: national human rights commissions as mechanisms to solve issues on people unaccounted for”.

(2) For this study, our main references were Priscilla B. Hayner, Unspeakable truths: confronting state terror and atrocity, New York/London, Routledge, 2001; Priscilla B. Hayner, “Fifteen truth commissions-1974-1994: A comparative study”, (1994) 16 Human Rights Quarterly 597; Truth commissions, United States Institute of Peace Library: (date of access: 27/04/02) and Strategic choices in the design of truth commissions: (date of access: 05/05/02).

(3) Truth commissions are reported to have been established in Argentina (1983), Bolivia (1992), Chad (1990), Chile (1991), East Timor (2001), Ecuador (1996), El Salvador (1992), Ethiopia (1993), Federal Republic of Yugoslavia (2002), Germany (1992), Guatemala (1994), Haiti (1994), Malawi (1999), Nepal (1991), Nigeria (1999), Panama (2001), Peru (2001), Philippines (1986), Rwanda (1992), Sierra-Leone (2000), South Africa (1992, 1993 and 1995), South Korea (2000), Sri Lanka (1994), Uganda (1974 and 1986), Uruguay (2000) and Zimbabwe (1985).

(4) The exact number of truth commissions varies according to different sources.

(5) See infra, section “4. Exhumation/identification of corpses” to have more information about this organisation.

(6) Argentine Forensic Anthropology Team (EAAF), on line: http://www.eaaf.org.ar (date of access: 16/06/02) and Forensic Anthropologists Threatened in Guatemala, AAAS Human Rights Action Network, on line: (date of access: 28/06/02)

Bibliography

American Association for the advancement of Science, online: (date of access: 17/06/02). Argentine Forensic Anthropology Team (EAAF), online: (date of access: 16/06/02). Benedetti, Fanny, “Haiti’s truth and justice commission”, American University Washington college of law, 1996, online: (date of access : 10/05/02). Boraine, Alex, A Country Unmasked, OUP, Oxford, 2000.

Brysk, Alyson, “The politics of measurement: The contested count of the disappeared in Argentina” (1994) 16 Human Rights Quarterly 676. Buergenthal, Thomas, “The United Nations Truth Commission for El Salvador” (1994) 27 Vanderbilt Journal of Transnational Law, 3, 497.

Cipolat, Urs A., “Accommodating individual criminal responsibility and national reconciliation: the U.N. truth commission for East Timor”, (2001) 95 The American Journal of International Law, 952. Commission on Human Rights, Report of the Working Group on Enforced or Involuntary Disappearances/Addendum/Report on the visit to Sri Lanka by a member of the Working Group on Enforced or Involuntary Disappearances (21 December 1999), 56th session, Doc. E/CN.4/2000/64/Add.1, on line: (date of access: 13/07/02). Cyberspace Graveyard for Disappeared Persons, online: (date of access: 17/06/02). Derechos human rights, online: (date of access: 12/078/02). Dugard, John, “South Africa’s truth and reconciliation process and international humanitarian law” in: Yearbook of International Humanitarian Law, vol. 2, 1999, The Hague, TMC Asser press, 254. El DIML - Dokumentations und Informationszentrum Menschenrechte in Lateinamerika, Nürnberger Menschenrechtszentrum, online: (date of access: 24/07/2002) Ensalaco, Mark, “Truth commissions for Chile and El Salvador: A report and assessment” (1994) 16 Human Rights Quarterly 656. Ford Foundation, online: (date of acess:12/07/02). Gannage, Mark, An international perspective: a review and analysis of approaches to addressing past institutional or systematic abuse in selected countries, Law commission of Canada (1998), online: (date of access: 12/07/02). Gisvold, Gregory, “A truth commission for Bosnia and Herzegovina? Anticipating the debate” in: Micheal O’Flaherty and Gregory Gisvold, eds., Post-war protection of human rights in Bosnia and Herzegovina, London, Kluwer Law International, 1998, 241. Goldstone, Richard J., “Justice as a tool for peace-making: truth commissions and international criminal tribunals” (1996) 28 International Law and Politics 485. Institute for Justice and Reconciliation (South Africa), online: (date of access: 17/06/02). International Center for Transitional Justice, online: (date of access: 17/06/02). Koaga Roneeta, Las comisiones de la verdad en América latina (serie III Impunidad y verdad), online : (date of access :05/05/02). McDonald, Avril, “The year in review” in: Yearbook of International Humanitarian Law, vol. 2, 1999, The Hague, TMC Asser press, 218. National Committee for Missing and Prisoners of War Affairs (NCMPA)-Kuwait, online: (date of access: 17/06/02). Nowak, Manfred, “Disappearances in Bosnia-Herzegovina”, in: Micheal O’Flaherty and Gregory Gisvold, eds., Post- war protection of human rights in Bosnia and Herzegovina, London, Kluwer Law International, 1998, 107.

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4.4 The Missing: National Human Rights Commissions as mechanisms to solve issues on people unaccounted for

Synthesis document commissioned by the ICRC and prepared by Natacha Binsse-Masse and Marco Sassòli, respectively research assistant and professor and at the Faculty of Political Science and Law of the University of Quebec in Montreal, Quebec, Canada, based on publicly available information.

EXECUTIVE SUMMARY AND RECOMMENDATIONS

National human rights commissions (NHR commissions) are usually set up by the executive or legislative branch of government to promote and protect human rights at the national level. Their mandate therefore only covers disappearances provoked by human rights violations, in particular forced disappearances, except if the uncertainty of the family about the fate of their missing relative is perceived as a violation of their human rights. They have many common characteristics and some international guidelines have been set up to help countries interested in establishing them. NHR commissions are mandated to prevent human rights violations and to assess the respect of human rights. Frequently, they investigate individual complaints about human rights violations. Such enquiries clarify sometimes what has happened to a missing person. Most often, NHR commissions appear to play a rather indirect role in solving issues on persons unaccounted for, by preventing the human rights violations which frequently cause disappearances and by obliging government authorities to proceed to further investigations or to provide information to the families and by turning evidence over to the competent authorities.

The direct and indirect efficiency of a NHR commission in solving issues on persons unaccounted for depends upon the will of the authorities to respect human rights and upon the same factors which contribute to the commission’s general impact on the human rights situation in the country. The following tentative recommendations can be made:

1. Mandate

• Formulate or understand the mandate in a way that does not exclude cases of disappearances. • Include into the mandate the right of the family to know the fate of their next of kin and not only the rights of the missing person.

2. Functioning and powers

• Include rules preventing disappearances and dealing with their consequences into the legislative proposals and education programmes, in particular those directed at law enforcement officials; • Offer the possibility to file a complaint on the behalf of someone else; • Have access to documents or locations under the authority of the government and in particular the security forces; • Have judicial powers (subpoena, search and seizure); • Offer efficient and credible witness protection programmes; • When the disappearance of a person is found to be a human rights violation, the Commission should either investigate the fate and whereabouts of the person or of his or her human remains or have sufficient powers to ensure that further investigations are undertaken by other authorities and that their result is transmitted to the commission and to the families concerned.

3. Financial and human resources

• Ensure the availability of financial resources necessary to assure the independence and continual functioning of the commission; • Donor countries and international financial institutions should consider supporting NHR commissions in developing countries financially and by setting up fora where the latter can exchange experience, including on methods to search for persons unaccounted for;

• Ensure that the commission has either sufficient resources and staff to make individual investigations and accomplish the necessary tasks to clarify someone’s fate (e.g., exhumations, forensic and DNA tests, etc.), or sufficient authority to ensure that further investigations are undertaken by other authorities and that their result is transmitted to the commission and to the families concerned.

4. Independence, transparency and credibility of the commission

• Take all the appropriate measures to ensure the credibility of the commission (composition, way of functioning, etc.); • Publish reports in a way that allows most of the population to know their contents (in different languages, by radio or television, on internet, etc.); • Gain the trust of government officials for the utility and impartiality of the work of the commission.

I. INTRODUCTION

The present document is meant as an input for the larger “Study on existing mechanisms to clarify the fate of people unaccounted for” and the workshop on those mechanisms to be held in September 2002. Ideally, this document should focus on the methods and efficiency of NHR commissions in clarifying the fate of individual missing persons and informing the families concerned accordingly, in order to make a comparison with the methods and efficiency of other mechanisms such as the ICRC or the UN Working Group on Enforced Disappearances. Unfortunately, little such specific information is available. Publicly available information focuses on the advocacy work of NHR commissions, on their reports about the human rights situation in their country and, sometimes, on their findings in individual cases submitted to them. Information about whether and how they searched for missing individuals is rare. It is, in addition, generally impossible to understand how successful they were in clarifying the actual fate of such individuals and how often they found the present whereabouts of the individuals concerned or of their human remains. Little information transpires on how and whether families of missing persons were informed about the individual fate of their beloved one by ways other than published reports. As some NHR commissions will be represented at the September 2002 workshop and other experts will attend, it is hoped that the final study can be based on additional information and that any error appearing in the present text can be eliminated.

The purpose of this text is to explain generally, and specially concerning the fate of people unaccounted for, how NHR commissions work, what they accomplish and their strengths and weaknesses. First, we will try to explain what a NHR commission is. Second, we will add some thoughts on NHR commissions and conflict-related disappearances. Third, we will refer to some examples of commissions that have had to deal with disappearances or whose way of functioning can be of interest for that purpose. Fourth, we will elaborate on some conceptual aspects of NHR commissions, which contribute or might contribute to a greater efficiency in clarifying the fate of missing persons.

II. GENERAL INFORMATION ON NHR COMMISSIONS

“National human rights institutions” include NHR commissions, ombudsman offices, and some specialized institutions (1). All NHR commissions have in common that they are set up by the State (under the constitution, by decree or law) and that they work in the field of human rights. They have generally multiple functions related to the promotion and protection of human rights, such as advisory, educational and impartial investigation functions. The emphasis given to each of those functions differentiates them. The emphasis of the work of an ombudsman is placed on impartial investigations, especially to ensure fairness and legality of the public administration. The general findings and recommendations contained in this study apply to such an ombudsman office, if it deals with disappearances, which seems to be only exceptionally the case.

NHR commissions (and ombudsman offices) can be set up along international rules, the “Principles relating to the Status of National Institutions”, also known as the Paris Principles. These rules, adopted by the UN Human Rights Commission in 1992 and subsequently endorsed by the UN General Assembly in 1993 (2), were formulated to help and guide members of the United Nations planning to set up national human rights institutions. They are the result of the work, experience and reflection made since 1946 by different international organisations on that subject (3), but do not contain any rule specific to the search for missing persons.

The establishment of a NHR commission can be considered as an implementation of the States’ obligation to implement at the national level the human rights standards to which they subscribe internationally. Indeed, recognising a right in a law is not sufficient. Its effective realisation should be ensured by an adequate institution. NHR commissions have been set up by both developed countries, such as Canada, Australia and New Zealand, and by developing countries in Latin America, Africa and Asia. An important increase in the number of NHR commissions can be observed since 1980 and more specifically in the last decade in Africa. Only one NHR commission existed in Africa in 1989. 24 were functioning or in formation in the year 2000. (4)

NHR commissions achieve their aim to promote and protect human rights by different means. They publish reports and recommendations, promote and ensure the harmonisation of national legislation, regulations and practices with the international human rights instruments to which a State is party, encourage the State to ratify human rights instruments, contribute to the reporting by the State under international instruments, assist in the formulation of programmes for teaching or research on human rights; publicize human rights, cooperate with the United Nations, regional institutions and national institutions of others countries, prepare reports about general problems affecting the respect of all or some human rights, enquire into specific events affecting human rights and investigate individual complaints.

Even if specific events can result in the creation of a NHR commission, it is not normally created for a limited period of time or for a specific situation. Most often, they promote the protection of persons against all forms of discrimination and the protection of civil and political rights. Sometimes, their mandates include the promotion and protection of economic, social and cultural rights. While some are competent to look at violations of all the rights protected by the constitution, others are limited to the violations committed for discriminatory reasons.

The powers granted to a commission to achieve its goals will vary from one commission to another. The main difference resides in the fact that only some commissions have a quasi-judicial role and the necessary powers. Such powers allow a commission to hear and consider complaints and petitions concerning individual situations of human rights violations, committed by public (and sometimes private) players. Only rarely a NHR commission has the power to take binding decisions. More often, a special tribunal is set up and the commission can transfer unresolved files to that tribunal. If not, it is usually possible to hand the unresolved cases over to a regular court.

NHR commissions are usually set up and financed by a government. As the commissions can be called to criticise the government, it is very important that they are and are perceived as independent. According to the Paris Principles, the pluralist representation of the members appointed or elected, a financial autonomy and a stable mandate, assured by an official act, are some of the measures which will be conducive to real independence.

Criticism made against NHR commissions includes lack of resources and independence, difficulties of access to information and government files and a lack of implementation of their recommendations. Frequently, such factors undermine the credibility and the work of a commission. Even if in theory, NHR commissions appear to be a valuable mechanism to implement human rights at the national level, we should not forget that many were set up under international pressure and/or to give the impression of a good governance to donor States and institutions. Consequently, the genuine will of many governments to have an effective NHR commission can be seriously questioned.

III. NHR COMMISSIONS AND CONFLICT-RELATED DISAPPEARANCES

National human rights commissions aim at preventing, reacting to and redressing human rights violations, including forced disappearances. Sometimes those same events are also qualified as violations of international humanitarian law (IHL). Most often no distinction is made between the two categories of violations. We did not encounter cases in which human rights commissions inquired into disappearances resulting from violations of IHL on the conduct of hostilities, nor into the fate of fighters missing in action. We did not find cases of enquiries into international armed conflicts. Concerning non-international armed conflicts, only a few commissions have a mandate to enquire into the behaviour of non-State actors.

Persons unaccounted for interest human rights commissions only as long as they appear as victims of human rights violations. To locate the person or his or her remains is seen mainly as a cessation of a continuing violation or as partial redress of such a violation. The focus seems to be on the right of the missing person not to be killed or held incommunicado, rather than on the right of the family to know the fate or whereabouts of their relative. NHR

commissions could and should however see the withholding of information on a missing person as a violation of the human rights of the relatives concerned (5). Cases in which it is doubtful whether the disappearance itself violated human rights would thus be covered. In addition, attention would not only be focussed on the human rights violation which caused the disappearance, but also on the ongoing suffering of the families.

Once a NHR commission concludes that a disappearance is a human rights violation because it is attributable to the (mostly governmental) authorities, the responsibility to prosecute the responsible individuals is generally handed over to the ordinary criminal courts. As far as information to the families about the fate of their relative is concerned, either the authorities are ordered to provide such information directly to the family, or they are ordered to provide the relevant information to the commission. An enquiry into the fate of a missing person and exceptionally even into his or her current whereabouts beyond the finding that a violation occurred is mainly undertaken when NHR commissions act as truth commissions enquiring into specific historical events.

Indeed, sometimes national human rights commissions also enquire into past violations and act as truth commissions on such events, adopting however always an approach more interested in also clarifying individual cases rather than simply describing a past pattern of behaviour. The best example are two very detailed recent reports by the Mexican Human Rights Commission about disappearances which occurred 20 years earlier and which include detailed information on every individual reported as missing. In such cases the commission itself proceeds to police-like enquiries. In other cases the main source for a commission’s findings on disappearances is information provided by relatives. Such information is often cross-checked with information and documents from governmental sources. Witnesses are rarely heard.

IV. NHR COMMISSIONS WHICH HAD TO CONFRONT THE PROBLEM OF MISSING PERSONS

The following list of NHR commissions (with an indication of the year in which they were established) which had to confront the problem of missing persons is not exhaustive, but is aimed at providing examples for types of commissions and their involvement in issues on people unaccounted for.

India (1993)

India’s NHR commission has three particularly interesting characteristics. First, it can receive petitions involving human rights’ violations or complaints involving a public servant’s negligence in preventing such violations. As the violation resulting from the disappearance of a person is ongoing until that person is found, this might imply that a family may bring a complaint forward against the government if the latter does not take all possible measures to solve the case of a missing person. Second, India’s commission appears to have the powers normally granted to a regular civil court and to have the right to visit sites where people may have been. It may not hand down binding decisions, but it may turn the evidence found over to a court or ask the government to engage in further investigations when it deems it necessary. Third, the commission has the, albeit limited, power to make recommendations touching the armed forces. The government has three months to react to the Commission’s recommendations. The Commission had to deal specifically with complaints relating to disappearances: 175 in 1996- 1997, 12 in 1997-1998 and 27 in 1998-1999. We have no information on the results of such complaints.

Indonesia (1993)

Indonesia’s NHR commission lacked safeguards to protect its independence and integrity. The government had no obligation to act on the Commission’s findings and it criticized the Commission of having overstepped its mandate. Some of its reports published before the recent political changes in the country therefore surprised many observers. In 1996, a report revealed that as a consequence of a given political riot 5 persons were killed, 23 were missing (i.e., according to the report, "not returned home, […] impossible to contact, […] traveling and/or may have died"), 149 were injured and 136 were detained. Previously, it had found out the truth relating to the deaths of 6 persons in East Timor, contradicting the official version. Finally, the Commission did not only investigate individual cases but also kept people informed by issuing press releases on the injured, killed, arrested, imprisoned and unfairly tried.

South Africa (1995)

South Africa’s commission has important judicial powers, inter alia to search, seize, hold hearings and to litigate. It is also allowed to investigate complaints made against individuals, private and government entities. However, in practice, the Commission appears to have less powers and is not always able to implement its recommendations or to force people to answer its requests. Some important criticism has been made because of its insufficient financial resources (although it has the largest budget of all African institutions), its reticence to cooperate with NGOs and its way of functioning in general. Nevertheless, the Commission has had an important impact in fields such as conditions of detention, discrimination and economic, social and cultural rights.

Sri Lanka (1997)

The mandate of Sri Lanka’s NHR commission focuses on illegal detention, torture, forced disappearance (there is explicit reference to the investigation of complaints related to disappearances) and murder. The Commission has vast powers to investigate, to collect evidence and to visit detention centres and police stations. It has to be informed within 48 hours of all arrests and cases of detention. Between March 1997 and September 1999, 1964 persons were reported to have disappeared. The Commission succeeded to retrace 867 of them. It may be mentioned that the Commission includes under the concept of “missing persons” those who left their family voluntarily.

Uganda (1996)

Uganda’s NHR commission not only has the power to investigate but has also powers similar to those of a regular court. It is able to visit jails, other places of detention and related facilities. In a few cases, the commission helped to clarify the fate of some missing persons and even to find someone who had been arrested by the police and brought to a secret location to be tortured. The Commission faces however important difficulties, such as the lack of cooperation by officials and insufficient resources, which slow down investigations. It has also been criticized for not investigating some important human rights violations. However, taking into account the particularities of the Ugandan context, the Commission has achieved important work since its creation.

Sudan (1994)

Critics claim that Sudan’s NHR commission is an example of a commission which was merely set up to give the government a good image. They point out that it does not really have the power to investigate and it lacks transparency, independence and financial resources. It is however allowed to follow detained persons, to get information on detention and sometimes to visit prisoners. One of the eight committees of the Commission works especially on disappearances. We should also mention the creation of the Committee on the Eradication of Abduction of Women and Children, which functions in cooperation with the Commission, principally to obtain the release of slaves, essentially women and children, who have been kidnapped. That committee can bring offenders to trial and organize the reunification of families.

Chad (1994)

Chad’s NHR commission raised a lot of hope when it was created. Indeed, the Commission had the mandate to enquire into certain police practices including torture and inhumane treatment, into the existence of secret places of detention, secret population transfers and forced disappearances. It also had the power to investigate complaints made against private or government entities and it appeared to have wide powers to achieve these goals. When it deemed it necessary, the Commission could decide to undertake further proceedings before a court, the parliament or the president. The Commission was supposed to act as an intermediary between the government and the civil society. The Commission effectively played this role until 1996. Subsequently, its financial resources were allegedly cut by the government, following a ruling on extrajudicial executions. Since then the Commission has lost its role as an intermediary and is less active, favouring now private diplomacy, the results of which are not known.

Mexico (1990)

Mexico’s NHR commission was established in 1990 and has the power to investigate complaints against government authorities and public servants, except in electoral, labour and judicial matters. The Mexican commission has several programs, among others the Program of Allegedly Disappeared which has the mandate to investigate, interview, request documents and to proceed to exhumations. At the beginning, the staff worked in collaboration with the

federal police, but now the investigations are made exclusively through its own staff. It relentlessly sends letters to a great variety of authorities (from the social security administration to the secret services) to clarify individual cases, compares past and present answers and files of authorities which have been disbanded, proceeds to extensive field enquiries and interviews a great variety of witnesses. In the first years, 78 cases of missing persons were solved: 51 persons were found alive or evidence was found to the effect that they were alive, 20 were confirmed dead and the other complaints were dropped. According to the numbers available on the Website of the Commission it succeeded between 1990 and 2001 to clarify nearly half of the cases of persons who disappeared in the seventies of last century. 273 of those persons were found alive and 114 dead. (6) Such results would make the Commission the most successful mechanism to clarify the fate of persons unaccounted for. A review of 532 individual files appearing on the website (7) shows the very accurate enquiries made by the Commission and that it was frequently able to corroborate and describe in detail human rights violations committed in the past against the individuals concerned. These files do however apparently not correspond to those clarified according to the statistics, as only very few of them mention that the person or his or her remains were found.

If the comparatively extraordinary success rate of the Commission in clarifying the fate of missing persons is confirmed, it may in part be explained by its very developed methods of investigation. The number of persons found alive may also be explained by the fact that a person is considered as missing if it has been reported so by certain NGOs in the past and independently of whether the close family was actually searching for the person. We consider that a detailed report by the Mexican commission explaining its methods of work, in particular how it found considerable numbers of missing persons alive or clarified that they were dead, would be invaluable for other mechanisms solving issues on people unaccounted for.

Bosnia and Herzegovina (1996)

The NHR commission of Bosnia and Herzegovina was established in 1996 under Annex 6 of the Dayton Peace Agreement, concluded between the Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia under considerable international pressure. The Commission is different from all other NHR commissions because it consists of two bodies: the Office of the Ombudsman and the Human Rights Chamber. The latter is a judicial body and has the mandate to study alleged or apparent violations of human rights which occur or continue after the implementation of the Dayton Agreement. The Commission has been set up for a limited period, which has been extended until December 2003. At the end of 2000, 6675 individual applications had been made. In 1999, 3 to 6 cases of disappearances were submitted to the Human Rights Chamber every month, but in most cases it has not been possible to establish that the person was still alive in 1996 and therefore that the Chamber was competent. In 1996 in the case Matanovic v. Republika Srpska, the Chamber ordered the Republika Srpska to investigate the disappearance in 1992 of a priest and his parents, since evidence had been brought which indicated that the persons was still alive after the entry into force of the Dayton Agreement. The Republika Srpska has not yet provided any information.(8)

V. HELPFUL MEASURES

By elaborating on conceptual aspects of NHR commissions, this section’s goal is to identify some measures which may increase the general efficiency of a NHR commission, including in clarifying the fate of persons unaccounted for.

1. Mandate

A commission’s mandate determines its subsequent work. Since a NHR commission is created to promote and protect human rights in general, its mandate implicitly includes forced disappearances. Sometimes, "disappearances" are specifically mentioned, but we doubt whether this includes disappearances which do not allegedly constitute a human rights violation. On the other hand, some commissions limit their investigations to human rights violations committed for discriminatory reasons. Many disappearances may fall under this category, because history shows that forced disappearances are often committed for ethnic or political reasons.

As the mandate of a NHR commission only covers human rights violations, it may be controversial whether a given disappearance resulted from such a violation. For such cases it may be useful to consider that the human rights of the families of missing persons are in every case violated if the government withholds information about the fate of their relative, whether the initial disappearance constituted a human rights violation or not.

2. Financial and human resources

One of the main obstacles met by NHR commissions is the lack or insufficiency of financial and human resources. A commission should benefit from a guaranteed budget to avoid being dependent on the government. Donor countries and international financial institutions should consider supporting NHR commissions in developing countries financially and by setting up fora where the latter can exchange experience, including on methods to search for persons unaccounted for. Obviously, insufficient basic resources (premises, staff, computers, etc.) will more than likely affect the commission’s work. In particular the search for missing persons involves additional expenses as it could require an important amount of staff to make individual investigations. The exhumation and identification of corpses implies the need of very considerable resources, in particular if the aim is not only to clarify the causes of death, but also to identify the remains. For the latter purpose, it is often necessary to constitute an ante mortem database; sometimes DNA matching will also be necessary.

3. Power to receive complaints and judicial powers

Almost all the commissions are mandated to educate (the public) on human rights in general. Such training, in particular of law enforcement officials, prevents disappearances. A particular emphasis could be put on the obligation of all those who detain a person to register that person. Such human rights education could also include the rules of international humanitarian law destined to avoid disappearances in armed conflicts, in particular the obligation to collect information aiding in the identification of dead bodies.

Once persons have actually disappeared, the most important power a NHR commission needs to be successful is surely the capability to receive complaints and to investigate. Most of the NHR commissions studied in our research appear to have these powers. The differences between commissions lay in the latitude the commission has to investigate successfully. Some have only limited access to documents, persons and/or locations, while others will have the judicial powers of a regular court. These powers normally include the faculty to protect witnesses, the possibility to search and seize, and to issue subpoenas. As to clarify someone’s fate it is crucial to have access to information, the more judicial powers a commission will have, the more results it can be expected to have. Such measures allowing access to additional information can take different forms depending of each situation: services offered in different languages; offices in rural areas; use of radio and television to reach illiterate citizens, etc. As most disappearances are provoked by government agents, it is crucial for a NHR commission to be able to have access to documents or places under government authority and force government agents to testify. On the other hand, it has also to ensure that it is not perceived by government agents as biased against them. Finally, as missing persons are by definition not able to lodge a complaint themselves, it is essential that a complaint can be made by someone other than the victim.

4. Cooperation with NGOs

In many cases, including because resources are limited, good cooperation between the NHR commission and NGOs is crucial. According to the Paris Principles, NHR commissions shall "in view of the fundamental role played by non- governmental organisations in expanding the work of national institutions, develop relations with non-governmental organisations devoted to promoting and protecting human rights [...]". In fact, developing and maintaining good relations with NGOs appear to be important for two reasons. First, NGOs are sometimes those who present the complaints or they encourage people to make complaints. They will do this only if they have sufficient trust in the NHR commission and in its efficiency. Second, NGOs often supply pertinent information which helps NHR commissions to achieve their goal.

5. Independence, transparency and credibility of the commission

As recognized in the Paris Principles, a commission’s independence and its transparency will make the difference on the quality of its work and on its credibility. The commission’s credibility is essential to obtain information from victims, families and government officials. In cases of disappearances, such credibility is also crucial to ensure that the families accept the results of the commission’s investigation, in particular if no human remains of a missing person can be found. A commission can increase the credibility of its findings by including as many details as possible on its methods of work and on the elements which permitted the commission to come to its conclusion.

6. The "results" achieved by a NHR commission

The results of individual complaints will be either general reports and recommendations or an individual report and recommendation. Even if general reports can permit the families to draw conclusions about the fate of their missing relative, individual reports and recommendations are much more useful to inform relatives. Most NHR commissions do not have the power to take binding decisions. Consequently, the respect or implementation of their recommendations is often dependent on the government’s will. Some commissions may however turn over the evidence they found to a special tribunal or a regular court, which has the power to make binding decisions.

Final Notes

(1) The latter institutions focus on specific situations or problems, like the South African Commission on Gender Equality. Normally, they promote government policies, which have been developed for a specific group (women, children, refugees, indigenous populations, etc.), and have powers similar to those of a NHR commission. For more information about these institutions, see National human rights institutions (A handbook on the establishment and strengthening of national institutions for the promotion and protection of human rights), Geneva, United Nations, 1995, page 8. We may also mention the existence of non-governmental organisations which work to clarify the fate of missing persons, e.g. the Guatemala Human Rights Commission/USA (online: (Date of access: 22/06/02)) and the Human Rights Center for the Assistance of Prisoners/Egypt (on line: http://www.hrcap.org (date of access: 22/06/02)

(2) A/RES/48/134 of the 20 December 1993.

(3) See also National human rights commissions and ASC rights (module 23), Circle of rights, online: (date of access: 22/06/02)

(4) See Les Commissions gouvernementales des droits de l’homme en Afrique/ Protecteurs ou Prétendus Protecteurs? (Human Rights Watch), online: (date of access: 22/06/02)

(5) See in this sense the European Court of Human Rights, in its Judgment of 10 May 2001 in the Case Cyprus v. Turkey, paras 154-161.

(6) See online (date of access 28/07/02).

(7) See online and , (date of access 28/07/02).

(8) Human rights commission for Bosnia and Herzegovina, online: (date of access: 22/06/02)

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Involuntary Disappearances (21 December 1999), 56th session, Doc. E/CN.4/2000/64/Add.1, online: (date of access: 13/07/02). Guatemala Human Rights Commission/USA, online: (date of access: 22/06/02). Human Rights Center for the Assistance of Prisoners (Egypt), online: (date of access: 22/06/02). Human rights commission for Bosnia and Herzegovina, online: (date of access: 22/06/02). Human Rights Commissions and Ombudsman Offices, National experiences throughout the World, Kamal Hossain, Leonard F. M. Besselink, Haile Selassie »Gebre Selassie, Edmund Völker (eds), , Kluwer, The Hague/Boston/Lancaster, 2000 (864 pp.) Institut international de l’Ombudsman, online: (date of access: 24/06/02). Kenya Human Rights Commission, online: (date of access: 22/06/02). Les Commissions gouvernementales des droits de l’homme en Afrique/ Protecteurs ou Prétendus Protecteurs? (Human Rights Watch), online: (date of access: 22/06/02).

National Commission of Human Rights (Indonesia), online: (date of access: 22/06/02). National Human Rights Commission (India), online: (date of access: 22/06/02). National Human Rights Commission (Nigeria), online: (date of access: 22/06/02). National human rights commissions and ASC rights (module 23), Circle of rights, online: (date of access: 22/06/02). National human rights institution: Amnesty International’s recommendations for effective protection and promotion of human rights (2001), Amnesty international, online: (date of access: 28/06/02). National human rights institutions (A handbook on the establishment and strengthening of national institutions for the promotion and protection of human rights) Geneva, United Nations, 1995, 55 pages. Northern Ireland Human Rights Commission, online: (date of access: 22/06/02). Reif, Linda C., ed., The international Ombudsman anthology (Selected writings from the international Ombudsman Institute), The Hague, Kluwer Law International, 1999, 745 pages.

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5. Relevant outcome from other workshops 5.1 The legal protection of personal data & human remains - Electronic Workshop - 02.04.2002 - 06.05.2002

The following principles have been defined through the electronic workshop "The Legal protection of personal data and human remains" which took place from 02.04 to 06.05.2002. For further details and explanations, please refer to its Final report and outcome (Ref: ICRC/TheMissing/07.2002/EN/1).

5.1.1 The legal protection of personal data & human remains - Protection of personal data: commonly accepted principles

Principle 1 "Personal data" means any information relating to an identified or identifiable individual. Principle 2 Personal data shall be collected and processed fairly and lawfully. Principle 3 The consent of the individual is required for the collection and use of personal data, except where inappropriate. Principle 4 The collection and processing of personal data shall be limited to that which is necessary for the purpose identified at the time of collection, or beforehand. Principle 5 Sensitive data should only be collected and processed with appropriate safeguards. Principle 6 Personal data should be accurate, complete and updated as is necessary for the purpose for which they are used. Principle 7 Personal data should be protected by security safeguards appropriate to the sensitivity of the information. Principle 8 Personal data may not be used, disclosed or transferred for purposes other than those for which they were collected without the consent of the person concerned, except if required by a substantial public interest or for the protection of the vital interests of the person concerned or of others. Principle 9 Personal data may only be transferred to third parties respecting personal data protection principles. Principle 10 Personal data should be deleted as soon as the purpose of their collection has been fulfilled, or when no longer necessary. They may, however, be retained for a definite period if required for the benefit of the individual to whom they relate or if essential for the performance of the humanitarian tasks of the organization which collected the data. Principle 11 Access to personal data should be granted to the individual to whom the data relate. Provision should also be made for the right to challenge the accuracy and completeness of the data and to have them amended as appropriate.

5.1.2 The legal protection of personal data & human remains - Identification of human remains: commonly accepted principles

Principle 1 The identity of human remains, and the cause of death, should be established by the competent public authority with due diligence. Principle 2 During an investigation or an inquest, including in the decision to perform a post mortem examination, the known religious beliefs and opinions of the deceased and his relatives should be taken into consideration. Principle 3 When determining the cause and circumstances of death, in particular during an investigation or an inquest, the dignity, honor, reputation and privacy of the deceased should be respected. All corpses in the custody and possession of an investigating authority should be treated with dignity and respect. Principle 4 Exhumations must be authorized by the competent authority. Principle 5 The decision to carry out an exhumation should take account of the interests of the next-of-kin. Principle 6 Exhumations must be carried out in accordance with recognized standards, including health protection standards. Principle 7 Families should be kept informed of the decisions taken in relation to post mortem examinations, as well as of the results of any such examination. Principle 8 The remains should be released to family members at the earliest time possible. Principle 9 The body of the deceased should be restored before being returned to the next-of-kin. Families should be notified if body parts are retained.

5.1.3 The legal protection of personal data & human remains - Protection of genetic information: commonly accepted principles

Principle 1 The collection, use and disclosure of DNA profiles are subject to the rules relative to the protection of personal data. Principle 2 Identification of human remains through DNA typing should only be undertaken when other investigative techniques of identification are not adequate. Principle 3 DNA samples may only be taken and analysed with the informed consent of the individual, except where an overriding public interest dictates otherwise. Principle 4 Forensic procedures must be carried out by an appropriately qualified person. Principle 5 DNA information collected for the identification of missing persons or human remains may only be used and disclosed for that specific purpose. Principle 6 DNA samples and profiles should be destroyed/deleted when the missing persons have been identified, unless they are required for related purposes. Principle 7 DNA analysis should only be performed by certified or accredited laboratories. Principle 8 DNA samples, profiles and records should be adequately protected from unauthorized access and use. Principle 9 DNA profiles or samples should only be disclosed, transferred or compared in the context of international cooperation for the purpose of identification, and only with the consent of the persons concerned, except in determined cases. DNA samples should not be transferred except where the analysis is to be performed abroad.

6. ICRC Preparatory documents 6.1 The family’s right to know the fate of relatives: rules of international law and recommendations applicable in armed conflicts and/or other situations of violence

1. Everyone has the right to respect for their family life, which includes the right to information about the fate of their loved ones. 2. Enforced disappearance is prohibited. 3. All appropriate measures must be taken to prevent persons from being unaccounted for as a result of armed conflict or internal violence and to account for persons reported missing as a result of such a situation. 4. All persons must be treated humanely, respected and protected by virtue of their inherent dignity as human beings. 5. All persons, even when displaced (as internally displaced persons or refugees), detained or living in occupied territories, have the right to correspond with their families. 6. Persons deprived of their liberty should be allowed to receive visitors. 7. A record must be kept of the particulars of persons deprived of their liberty. 8. All possible measures must be taken to provide information to the appropriate authorities or to the family of the captured or deceased regarding the identity, date and place of capture and any particulars concerning wounds / illness and location and cause of death. 9. Each party to the armed conflict must establish an official Graves Registration Service to see to the dead and to record the particulars of graves and burials. 10. Each party to the conflict must establish an Information Bureau to centralize all information on the wounded, sick and shipwrecked, on persons deprived of their liberty and on the dead, without adverse distinction, and provide this information to the appropriate authorities or to the family via a neutral intermediary and to the ICRC Central Tracing Agency. References:

GC I: Arts. 3, 16, 17 GC II: Arts. 3, 19, 20 GC III: Arts. 3, 69 - 71, 120, 122,123 GC IV: Arts. 3, 25, 26, 105 - 107, 116, 129, 130, 136, 137, 140 AP I: Arts. 32 - 34, 75 AP II: Arts. 4, 5 HC IV (R): Arts. 14,16 Universal Declaration of Human Rights (1948) International Covenant on Civil and Political Rights (1966) American Convention on Human Rights (1969) European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) Inter-American Convention on Enforced Disappearances (1994) Inter-American Commission: Report No. 136/99, 22 December 1999, Case of Ignacio Ellacría et al, Case No. 10.488, par. 221 & 224. Lucio Parada Cea et al, Report 1/99, 27 January 1999, Case No. 10.480, par. 151. Inter-American Court: Velasquez Rodriquez Case (Honduras), Judgment 29 July .1988, Series C: Decisions and Judgments, No.4, par. 181, 166 & 174. Godinez Cruz Case, Judgment 20 January 1989, Series C: Decisions and Judgments, No.5, par.191. Castillo Paéz case, Judgment 3 November 1997, par.90. Blake case, Judgment 24 January 1998, par. 97: art.8.1 & p.116 European Court of Human Rights: Judgment of 25 May 1998, Matter of Kurt c. Turkey, Case No.15/1997/799/1002, par. 134 Judgment of 10 May 2001, Cyprius c. Turkey, Case No. 25781/94

Human Rights Committee: María del Carmen Almeida de Quintero and Elena Quintero de Almeida case (Uruguay), decision of 21 July 1983, Communication No. 107/1981, par. 14. UN GA resolution 3220 (XXIX) of 1974 - Assistance and cooperation in accounting for persons who are missing or dead in armed conflicts UN GA resolution 47/133 of 1992 - Declaration on the Protection of all Persons from Enforced Disappearance HRC E/CN.4/1435, UN Report of the Working Group on Enforced Disappearances (22 January 1981) Resolution V of the 22nd International Conference of the Red Cross and Red Crescent (Teheran, 1973) - The missing and dead in armed conflictsResolution II of the 24th International Conference of the Red Cross and Red Crescent (Manila, 1981) - Forced or involuntary disappearances Resolution XIII of the 25th International Conference of the Red Cross and Red Crescent (Geneva, 1986) - Obtaining and transmitting personal data as a means of protection and preventing disappearances Resolution 2 of the 26th International Conference of the Red Cross and Red Crescent (Geneva, 1996) - Protection of the civilian population in period of armed conflict Plan of Action for the years 2000-2003, adopted by the 27th International Conference of the Red Cross and Red Crescent (Geneva, 1999)

6.2 General protection of persons: rules of international law and recommendations applicable in armed conflict and/or other situations of violence

1. All appropriate measures must be taken to prevent persons from becoming unaccounted for as a result of an armed conflict and to account for persons reported missing as a result of such a situation. 2. The life of every civilian and combatant who is hors de combat must be respected and protected.

3. Discrimination based on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria is prohibited. 4. Civilians and combatants who are hors de combat must be treated humanely in all circumstances.

5. Torture and inhuman or degrading treatment or punishment are prohibited. 6. Enforced disappearance is prohibited. 7. The arbitrary deprivation of liberty is prohibited. 8. No civilian or combatant who is hors de combat may be the object of attack, including by way of reprisals. In addition: A. indiscriminate attacks are prohibited; this includes the prohibition of attacks: a. not directed at a specific military objective; b. which employ method or means of combat that cannot be directed at a specific military objective; c. which employ a method or means of combat that cannot be limited as required; d. which treat as a single military objective a number of clearly separated and distinct military objectives located in an area containing a concentration of civilians; e. which may be expected to cause excessive incidental loss of civilian life and injury to civilians; B. civilians and combatants who are hors de combat must not be used to shield military operations;

C. precautions in attack and against the effects of attack must be taken to spare civilians and combatants who are hors de combat and civilian objects.

9. The forcible displacement of the civilian population, in whole or in part, for reasons related to the conflict, is prohibited unless the security of the civilians involved or imperative military reasons so demand and then only for the time necessary. If displacement is necessary, family units should be preserved. 10. Where displacement occurs: A. the basic needs of the displaced persons must be met, their security ensured and family unity maintained; B. displaced persons have a right of voluntary and safe return to their homes or places of habitual residence; C. the voluntary and safe return and reintegration of displaced persons must be facilitated; D. returned displaced persons may not be discriminated against.

11. The transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory is prohibited. 12. Everyone has the right to respect for their family life, which includes the right to information about the fate of their loved ones. 13. All persons, even when displaced (as internally displaced persons or refugees), detained or in occupied territories have the right to correspond with their families. 14. Whenever circumstances permit, all possible measures must be taken without delay to search for, collect and evacuate the wounded, without distinction. 15. Whenever circumstances permit, all possible measures must be taken to search for and collect the dead, without distinction. 16. Children affected by armed conflict are entitled to special protection. 17. The above provisions apply mutatis mutandis to non-international armed conflicts and other situations of violence.

References

GC I: Arts. 3, 12, 15 GC II: Arts. 3, 12, 18 GC III: Arts. 3, 13, 17, 125 GC IV: Arts. 3, 16, 24 - 26, 43, 45, 49, 50, 105 - 107, 142 AP I: Preamble, Arts. 10 - 12, 15 - 17, 32, 33, 48 - 52, 57, 58, 69, 70, 73 - 78, 85 AP II: Arts. 4, 5, 7-9, 13, 17 HCIV (R): Arts. 25, 27, 28, 46, 47 Universal Declaration of Human Rights (1948) Convention relating to the Status of Refugees (1951) International Covenant on Civil and Political Rights (1966) International Covenant on Economic, Social and Cultural Rights (1966) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) Convention on the Rights of the Child (1989) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts (2000) Rome Statute of the International Criminal Court (1998) European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) African Charter on the Rights and Welfare of the Child (1990) American Convention on Human Rights (1969) Inter-American Convention on Enforced Disappearances (1994) UN GA resolution 3452 (XXX) of 1975 - Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment UN GA resolution 3220 (XXIX) of 1974 - Assistance and cooperation in accounting for persons who are missing or dead in armed conflicts UN GA resolution 47/133 of 1992 - Declaration on the Protection of all Persons from Enforced Disappearance UN SC S/PRST/2002/6, Annex - Aide memoire for the consideration of issues pertaining to the protection of civilians during the Security Council's deliberation of peacekeeping mandates ECOSOC resolution 1989/65 of 1989 - Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions HRC E/CN.4/1435 - UN Report of the Working Group on Enforced Disappearances (22 January 1981) E/CN.4/1998/53/Add.2 - Guiding Principles on Internal Displacement (11 February 1998) Resolution II of the 24th International Conference of the Red Cross and Red Crescent (Manila, 1981) - Forced or involuntary disappearances Resolution XV of the 25th International Conference of the Red Cross and Red Crescent (Geneva, 1986) - Cooperation between National Red Cross and Red Crescent Societies and governments in the reuniting of dispersed families

Resolution 2 of the 26th International Conference of the Red Cross and Red Crescent (Geneva, 1996) - Protection of the civilian population in period of armed conflict Plan of Action for the years 2000-2003, adopted by the 27th International Conference of the Red Cross and Red Crescent (Geneva, 1999)

6.3 Protection of persons deprived of their liberty: rules of international law and recommendations applicable in armed conflict and/or other situations of violence

1. All appropriate measures must be taken to prevent persons from becoming unaccounted for as a result of armed conflict or internal violence and to account for persons reported missing as a result of such a situation. 2. The life of every civilian and combatant who is hors de combat must be respected and protected.

3. Capture, arrest, detention or imprisonment must be carried out in strict accordance with the provisions of the law and only by competent officials or duly authorized persons. 4. Arbitrary deprivation of liberty and hostage-taking are prohibited. 5. Enforced disappearance is prohibited. 6. Any form of arrest, detention or continuation thereof must be subject to the effective control of a judicial or other authority under the law, whose status and tenure should afford the strongest possible guarantees of competence, impartiality and independence, and meet recognized international standards. 7. Torture and inhuman or degrading treatment or punishment are prohibited. 8. Persons deprived of their liberty should not be kept incommunicado or held in a secret location. 9. The next-of-kin (or an appropriate intermediary) must be informed without delay of their relative's detention. 10. When subject to judicial/criminal proceedings, persons deprived of their liberty must be granted a fair trial, be afforded fundamental judicial guarantees and be provided with legal assistance in accordance with international standards. 11. Each party to an armed conflict must establish an Information Bureau to centralize all information on the wounded, sick and shipwrecked, on persons deprived of their liberty and on the dead, without distinction, and provide this information to the appropriate authorities or to the family via a neutral intermediary and to the ICRC Central Tracing Agency. 12. Information recorded on persons deprived of their liberty must include the items needed in order to rapidly inform the next-of-kin of the status of their relative. A. For all persons, that information must include: a. full name, b. date of birth, c. power of origin and, if different, the power on which they depend and/or country of usual residence, d. date and place of capture/arrest, e. address to which mail for the person deprived of his/her liberty may be sent, f. place of detention, g. state of health, h. information on any change of situation, such as transfer, evacuation, release, escape, recapture, repatriation, etc., said information to be recorded and forwarded without delay, i. information on criminal proceedings, if any. B. Depending on the person’s specific situation, additional information may be required. a. For members of armed forces or armed groups (including those accompanying them, such as medical and religious personnel and war correspondents): I. the following information must be recorded/provided: i. army, rank, regimental, personal or serial number, ii. blood group and type (as indicative information - any transfusion requires additional analyses);

II. the following information should be recorded/provided: i. full name of father, ii. full name of mother, iii. name and address of next-of-kin to be informed. b. For civilians, i.e., those who are not members of armed forces or armed groups, the following information should be included: I. address prior to detention, II. full name of father, III. full name of mother, IV. name and address of next-of-kin to be informed, V. any additional information that may help identify a person whose identity is in doubt. 13. Detained members of the same family should be held in the same place of detention. 14. Civilian internees must be accommodated with members of their family, in particular children with their parents. 15. Detained children must be held separately from detained adults, unless they are members of the same family (see point 14). 16. Women detainees must be held separately from men detainees, unless they are members of the same family (see point 14). 17. In international armed conflicts, the ICRC must be granted access to all persons deprived of their liberty due to the situation. 18. In non-international armed conflicts and other situations of violence, the ICRC should be granted access to all persons deprived of their liberty due to the situation. 19. All persons, even when deprived of their liberty, have the right to correspond with their families. 20. Persons deprived of their liberty should be allowed to receive visitors. 21. Persons deprived of their liberty for reasons related to an international armed conflict must be released and repatriated in accordance with the Geneva Conventions, unless they are serving a sentence lawfully imposed; repatriations must be carried out in compliance with the principle of non-refoulement.

22. At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who participated in the armed conflict or who were deprived of their liberty for reasons related thereto, whether they are interned or detained. This provision does not apply in respect of violations of international law in relation to which there is an obligation to prosecute. This provision should apply in other situations of violence. 23. The provisions that apply only in international armed conflicts should apply mutatis mutandis in non-international armed conflicts and in other situations of violence.

References:

GC I: Arts. 3, 12 GC II: Arts. 3, 12 GC III: Arts. 3, 13, 17, 70, 71, 97, 99 – 108, 118, 119, 122, 123, 126 GC IV: Arts. 3, 27, 33, 34, 43, 64 - 78, 82, 106, 107, 116, 124, 126, 132 - 137, 140 AP I: Arts. 11, 33, 45, 74 -77 AP II: Arts. 4 - 7, 13 HC IV (R): Art. 4, 9, 11, 13 - 16, 20 Universal Declaration of Human Rights (1948) International Covenant on Civil and Political Rights (1966) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) Convention on the Rights of the Child (1989) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts (2000) Rome Statute of the International Criminal Court (1998) American Convention of Human Rights (1969) European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) Inter-American Convention on Enforced Disappearances (1994)

UN GA resolution 3452 (XXX) of 1975 - Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment UN GA resolution 3220 (XXIX) of 1974 - Assistance and cooperation in accounting for persons who are missing or dead in armed conflicts UN GA resolution 34/169 of 1979 - Code of Conduct for Law Enforcement Officials UN GA resolution 37/194 of 1982 - Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment UN GA resolution 40/34 of 1985 - Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power UN GA resolutions 40/32 and 40/146 of 1985 - Basic Principles on the Independence of the Judiciary UN GA resolution 43/173 of 1988 - Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment UN GA resolution 45/111 of 1990 - Basic Principles for the Treatment of Prisoners UN GA resolution 47/133 of 1992 - Declaration on the Protection of all Persons from Enforced Disappearance ECOSOC resolutions 663 C (XXIV) and 2076 (LXII) of 1957 and 1977 respectively - Standard Minimum Rules for the Treatment of Prisoners ECOSOC resolution 1984/50 of 1984 - Safeguards guaranteeing protection of the rights of those facing the death penalty ECOSOC resolution 1989/65 of 1989 - Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions HRC E/CN.4/1435 - UN Report of the Working Group on Enforced Disappearances (22 January 1981) Resolution II of the 24th International Conference of the Red Cross and Red Crescent (Manila, 1981) - Forced or involuntary disappearances

6.4 People killed as a result of violence and the management of graves: rules of international law and recommendations applicable in armed conflicts and/or other situations of violence

1. All appropriate measures must be taken to prevent persons from being unaccounted for as a result of armed conflict or internal violence and to account for persons reported missing as a result of such a situation. 2. Whenever circumstances permit, all possible measures must be taken without delay to search for, collect and evacuate the wounded, without adverse distinction. 3. Whenever circumstances permit, all possible measures must be taken to search for and collect the dead, without adverse distinction. 4. Human remains must be treated with respect and dignity and measures must be taken to prevent them from being pillaged or despoiled. 5. Measures must be taken to identify the human remains before they are disposed of. 6. The dead must be disposed of in a respectful manner and their graves must be respected. 7. Burial should be in individual graves; collective graves must be the exception. All graves must be marked. 8. All possible measures must be taken to provide information to the appropriate authorities or to the family of the deceased regarding the identity, location and cause of death of deceased persons. 9. When the death occurs in armed conflict, half of the identity disc must remain with the body, the other half must be collected and transmitted to the Information Bureau with: A. the date and place of (capture and) death, B. particulars concerning wounds / illness or cause of death, C. all other personal effects, D. the date and place of burial and particulars to identify the grave. 10. Parties to the armed conflict must endeavour to facilitate the return of the deceased’s remains and of any personal effects to the home country or the appropriate authorities upon their request or the request of the next- of-kin. 11. Each party to the armed conflict must establish an official Graves Registration Service to see to the dead and record particulars of graves and burials.

12. Each party to the armed conflict must establish an Information Bureau to centralize all information on the wounded, sick and shipwrecked, on persons deprived of their liberty and on the dead, without adverse distinction, and provide this information to the appropriate authorities or to the family via a neutral intermediary and to the ICRC Central Tracing Agency. References:

GC I: Arts. 3, 12, 15 - 17 GC II: Arts. 3, 12, 18 - 20 GC III: Arts. 3, 120 - 123 GC IV: Arts. 3, 16, 129 - 131, 136 - 141 AP I: Arts. 10, 32 - 34 AP II: Arts. 7, 8 HC IV (R): Arts. 14, 16,19 International Covenant on Civil and Political Rights (1966) American Convention on Human Rights (1969) European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) UN GA resolution 3220 (XXIX) of 1974 - Assistance and cooperation in accounting for persons who are missing or dead in armed conflicts Resolution XXIII of the 20th International Conference of the Red Cross and Red Crescent (Vienna, 1965) - Tracing of Burial Places Resolution V of the 22nd International Conference of the Red Cross and Red Crescent (Teheran, 1973) - The missing and the dead in armed conflicts Resolution I of the 24th International Conference of the Red Cross and Red Crescent (Manila, 1981) - Wearing of identity discs Resolution II of the 24th International Conference of the Red Cross and Red Crescent (Manila, 1981) - Forced or involuntary disappearances Resolution XIII of the 25th International Conference of the Red Cross and Red Crescent (Geneva, 1986) - Obtaining and transmitting personal data as a means of protection and preventing disappearances Resolution 2 of the 26th International Conference of the Red Cross and Red Crescent (Geneva, 1996) - Protection of the civilian population in period of armed conflict Plan of Action for the years 2000-2003, adopted by the 27th International Conference of the Red Cross and Red Crescent (Geneva, 1999)

6.5 Information Bureau: rules of international law and recommendations applicable in armed conflict and/or other situations of violence

1. All feasible measures must be taken to prevent persons from becoming unaccounted for as a result of an armed conflict or internal violence and to account for persons reported missing as a result of such a situation. 2. In time of peace, each party to the Geneva Conventions must define the structure and the working procedures of the Information Bureau to be set up for civilians and combatants in times of armed conflict; this includes organizing the information flow with all branches of the civil and military administration, defining the role of its National Red Cross/Red Crescent Society and putting in place coordination mechanisms. Training for those who will work in the Information Bureau in time of armed conflict must also be ensured. 3. In time of armed conflict, the Information Bureau must be immediately operational. 4. The Information Bureau must centralize: A. all information on the wounded, sick and shipwrecked, on persons deprived of their liberty and on the dead as a result of the situation, without distinction, and provide this information to the appropriate authorities or to the family via a neutral intermediary and to the ICRC Central Tracing Agency; this information must be continually updated as the situation evolves, for example in the event of a transfer or evacuation, release, escape, repatriation, hospitalization or death; B. correspondence from civilians and combatants, and dispatch it as soon as possible whenever requested via the ICRC Central Tracing Agency; C. all requests for information on the fate of civilians and combatants, and provide the necessary replies to the appropriate authorities or to the family via a neutral intermediary and to the ICRC Central Tracing Agency.

5. Information the transmission of which might be detrimental to the person concerned or to his/her relatives must be forwarded to the ICRC Central Tracing Agency only. 6. The Information Bureau should coordinate activities with the National Red Cross/Red Crescent Society, particularly regarding the forwarding of information and correspondence and the management of requests from and forwarding of replies. 7. The information recorded must include the items required in order to rapidly inform the next-of-kin of the status of their relative. A. The information on each person must include the items required in order to rapidly inform the next-of-kin of the status of their relative. a. The information concerning members of the armed forces / armed groups (including those accompanying them, such as medical and religious personnel) must include: I. the power of origin, II. army, rank, regimental, personal or serial number, III. full name, IV. date of birth, V. blood group and type (as indicative information - any transfusion requires additional analyses). b. The information concerning civilians must include: I. power of origin and, if different, the power on which they depend and/or their country of usual residence, II. last known place of residence, III. full name, IV. date of birth. B. Depending on the person’s specific situation, additional information may be required. a. For those deprived of their liberty, the information: I. must also include: i. date and place of capture/arrest, ii. place of detention, iii. information on criminal proceedings, if any, II. information on any change of situation, such as transfer, evacuation, release, escape, recapture, repatriation, etc.; III. should also include: i. full name of father, ii. full name of mother, iii. name and address of the person to be informed, iv. address to which correspondence for the person deprived of his/her liberty may be sent, v. any additional information that may help identify a person whose identity is in doubt. b. For a (captured) wounded person, the information: I. must also include information on any change of situation affecting the person, such as transfer, evacuation, release, escape, recapture, repatriation, etc.; II. should also include: i. state of health, ii. full name of father, iii. full name of mother, iv. name and address of the person to be informed, v. address to which correspondence for the (captured) wounded person may be sent, vi. any additional information that may help identify a person whose identity is in doubt. c. For a (captured) dead person, the information must also include: I. date and place of (capture and) death, II. particulars concerning wounds / illnesses and cause of death, III. all personal effects, IV. date and place of burial with particulars to identify the grave, V. any additional information that may help identify a person whose identity is in doubt.

d. For vulnerable persons, such as unaccompanied children and handicapped or elderly people, precise information should also be recorded on their location. 8. The Information Bureau and the ICRC Central Tracing Agency must enjoy free postage for all mail. 9. Provisions 2 to 8 should apply mutatis mutandis in non-international armed conflicts. In other situations of violence, the necessary measures should be taken to ensure that information on the victims is collected and centralized and that the families are informed. References:

GC I: Arts. 3, 16, 17 GC II: Arts. 3, 19, 20 GC III: Arts. 3, 17, 30, 48, 70 - 71, 74 - 75, 94, 104, 107, 119 - 124, 126 GC IV: Arts. 3, 25 - 26, 31, 43, 45, 49, 50, 71, 75, 106 - 107, 110 - 111, 113, 128, 130 - 131, 136 - 141 AP I: Arts. 33, 78 AP II: Art. 8 HC IV (R): Arts. 14, 16, 19 Universal Declaration of Human Rights (1948) International Covenant on Civil and Political Rights (1966) American Convention on Human Rights (1969) European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) Inter-American Convention on Enforced Disappearances (1994) Universal Postal Convention (1999) International Telecommunication Union, Convention (1992, amended 1994) UN GA resolution 3220 (XXIX) of 1974 - Assistance and cooperation in accounting for persons who are missing or dead in armed conflicts UN GA resolution 47/133 of 1992 - Declaration on the Protection of all Persons from Enforced Disappearance HRC E/CN.4/1435 - UN Report of the Working Group on Enforced Disappearances (22 January1981) Resolution XIV of the 16th International Conference of the Red Cross and Red Crescent (London, 1938) - Role and activity of the Red Cross in time of civil war Resolution II of the 24th International Conference of the Red Cross and Red Crescent (Manila, 1981) - Forced or involuntary disappearances Resolution XIII of the 25th International Conference of the Red Cross and Red Crescent (Geneva, 1986) - Obtaining and transmitting personal data as a means of protection and preventing disappearances Resolution XIV of the 25th International Conference of the Red Cross and Red Crescent (Geneva, 1986) - National Information Bureaux Resolution 2 of the 26th International Conference of the Red Cross and Red Crescent (Geneva, 1996) - Protection of the civilian population in period of armed conflict Plan of Action for the years 2000-2003, adopted by the 27th International Conference of the Red Cross and Red Crescent (Geneva, 1999) Sassòli, Marco: “The National Information Bureau in Aid of Victims of Armed Conflicts”, International Review of the Red Cross, January-February 1987

7. List of participants

Body Function Full name Remark (Sri Lanka) Public Prosecutor Mr Yasantha Kodagoda Working Group for the release of Co-Chairman Mr Bernhard Clasen prisoners and hostages and the tracing of Missing People of the Karabakh conflict (Germany) Cabinet of President of the Federal Human Rights Advisor to Mr. Gradimir Nalic Republic of Yugoslavia (Yugoslavia) the President of Federal Republic of Yugoslavia Catholic Commission of Justice and Mr Charles Dube Peace in Zimbabwe (Zimbabwe) Council of Europe, Office of the Adviser Mr Fernando Mora Commissioner for Human Rights Defensoria del Pueblo/Comisión de Technical Secretary Dr. Fernando Iregui Camelo Búsqueda de Personas Desaparecidas (Colombia) Federal commission for tracing missing Chairman Mr Amor Masovic persons (Bosnia and Herzegovina) Human Rights Commission of Pakistan Vice-Chairman Mr. Kamran Arif (Pakistan) Humboldt Universität zu Berlin, Professor Prof Dr Christian Tomuschat With a written Juristiche Fakultät, Institut for Völker und contribution only Europarecht International Center for Transitional Lawyer, Senior Associate Ms Vasuki Nesiah Justice International Commission of Jurists (ICJ) Legal Adviser Mr Federico Andreu KOMNAS/HAM, Working Group on Chairman Dr. Saafroedin Bahar Economic, Social and Cultural Rights (Indonesia) Organisation for Security and co- National Legal Advisor Ms Bozana Vaskovic operation in Europe (OSCE) - Mission to Bosnia Herzegovina, Human Rights Department Permanent Mission of Eritrea (Eritrea) Consul Mr Bereket Woldeyohannes South Asia Human Rights Executive Director Mr Ravi Nair Documentation Centre (India) The Raoul Wallenberg Honorary Citizen Chairman Mr Max Grunberg Committee (Israel) Truth and Reconciliation Commission Executive Secretary Dr Javier Ciurlizza Contreras (Peru) Truth and Reconciliation Commission Commissioner Mr Richard Lyster South Africa (South Africa) United Nations - International Criminal Deputy Chief of Mr Stephen Raymond Upton Tribunal for former Yougoslavia - ICTY Investigations United Nations - Office of the High Secretariat of the Working Ms Tamara Kunanayakam With a written Commissioner for Human Rights - Group on Enforced and contribution only OHCHR Involuntary Disappearances United Nations General Secretariat - Mr Pierre Gubéran Committee on Missing Persons in Cyprus United Nations Working Group on Representatie Mr Ivan Tosevski Enforced or Involuntary Disappearances

Body Function Full name Remark Université de St Paul (Canada) Political sciences - Prof Jean-François Rioux Resolution of conflicts Université du Quebec à Montréal Droit International Public Prof Marco Sassoli (Canada) International Committee of the Red Diplomatic Adviser, Deputy Mr Jean-Paul Fallet Cross to the Director General International Committee of the Red Deputy to the Director Mr Andreas Wigger Cross General International Committee of the Red Head Ms Danielle Coquoz Cross, Central Tracing Agency and Protection Division International Committee of the Red Head Ms Sophie Martin Present according Cross, Project "The Missing" to topic dealt with

8. Program of the workshop

Workshop Title Mechanisms to solve issues on people unaccounted for Date 19.09.2002 - 09:00 to 18:00 20.09.2002 - 09:00 to 17:00

Day 1, Thursday 19 September 2002

09:00 - 09:45

Welcome Introduction of the participants Administrative details Introduction to the Missing project Principle issues and organisation of the workshop

Theme : Problems faced by existing mechanisms aimed at clarifying the fate of people unaccounted for and how to overcome them

Objective: To establish best practice guidelines to ensure the effectiveness of mechanisms in clarifying the fate of people unaccounted for as a result of (international or non international) armed conflict or other situation of internal violence.

Doc of ref: Relevant outcome from studies: • The Missing: The ICRC as a mechanism to solve issues on people unaccounted for (UQAM, Prof Marco Sassoli and Ms Marie-Louise Tougas) • The Missing: National Human Rights Commissions as a mechanism to solve issues on people unaccounted for (UQAM, Prof Marco Sassoli and Ms Natacha Binsse-Masse) • The Missing: Truth Commission as a mechanism to solve issues on people unaccounted for (UQAM, Prof Marco Sassoli and Ms Natacha Binsse-Masse) Study final report: Overcoming the tensions between family needs and judicial procedures - Study - Report and recommendations (ICTJ, Ms Vasuki Nesiah, Senior Associate) - ICRC/TheMissing/09.2002/EN/8 Contributions from experts ICRC preparatory documents

Topics to be addressed:

Despite each context being different and each mechanism having its own specificities, best practice guide-lines should be possible to define, including as well complementary approaches. This should be accomplished through discussion on the following topics and their accompanying questions: 1. Context

A. Which are the main obstacles to solving issues on people unaccounted for? Is it mainly a question of political will or of methods of work by the mechanisms? If we identify the main obstacles, then what kind of preventive and corrective work should follow? during an armed conflict or situation of internal violence? at the end of such situations? B. Is the search for missing persons to be conducted similarly in armed conflicts and in (other) situations of serious human rights abuses? In case of individualized forced disappearances, massacres and disappearances resulting from the conduct of hostilities (civilian collateral victims and missing in action)?

2. Focus / objectives

A. Should most mechanisms continue to focus primarily on ascertaining broad patterns regarding the fate of the missing? Or should most mechanisms also try to clarify the individual fate of missing persons (which, according to the conclusions of former workshops, is the essential need of families)? To try and locate the missing person or his or her remains? B. Can family needs for information, accountability and acknowledgment be pursued in parallel? By the same mechanism? Are there contradictions between those needs? Is there any priority between family needs for information, accountability and acknowledgment? Must every mechanism respond to all these needs? If not, which are best in which fields? May a mechanism discourage families to pursue one need (e.g. accountability) if this facilitates to respond to another need (e.g. information)? 3. Obtaining information

A. Should mechanisms concentrate on obtaining answers about the fate and whereabouts of missing persons from authorities, search themselves or do both? B. Have authorities information about the fate and whereabouts of missing persons? How can they be encouraged to provide such information? What prevents them to provide it? Is fear of criminal prosecution an important element preventing answers? C. Are criminal investigation methods used to clarify peacetime disappearances useful to search for conflict- related missing persons? Is it useful to publish names of missing persons and their pictures, to call for witnesses? Are third persons (i.e. individuals who are neither perpetrators nor victims nor related to them) useful witnesses and how can they be encouraged to come forward? D. Are there contradictions or tensions between the needs of criminal prosecution and the needs of families? How can they be overcome? If they cannot, which have priority? E. Is transparency (towards the other warring parties and families) or confidentiality more efficient in obtaining answers? 4. Format / structure

A. Can any recommendations be made regarding structure / composition of such (a) mechanism(s) ? as well as its necessary resources and role in information management? B. Are mechanisms bringing the (former) warring parties together useful to solve issues on conflict-related missing persons? For what purposes should they be used? How could they be made more efficient? When and how should they be ended if they show no results? C. What mechanisms are most useful with armed opposition groups? Do Human rights mechanisms focus exclusively on State actors? If so, should they, similarly to international humanitarian law based and some other mechanisms also deal with non-State actors? If yes, how can the Human rights mechanisms be reformulated or changed to constructively engage with non-State actors such as militant groups? D. Could and should the cooperation between different mechanisms be increased? How and in which fields? Can judicial mechanisms (aimed at establishing who is responsible) and humanitarian mechanisms (aimed at obtaining information about the whereabouts of the missing person or of his or her remains) cooperate? If yes, how and in which fields? How best can we facilitate processes where judicial and non-judicial mechanisms work in complementary ways? Similarly, how can national and international actors work in complementary ways? E. How can mechanisms build-in consultation processes with local NGOs and other actors in civil society? How best can civil society participate in different mechanisms and guide them to address the needs and priorities of victim groups and the local community?

5. Family role

A. How can mechanisms build-in consultation processes with families? How best can families participate in different mechanisms and guide them to address their needs? B. Should mechanisms support families by means other than providing answers to their questions? By what means? C. How can mechanisms ensure not to create false hopes? Should mechanisms actively lower families' expectations? 6. Handling of cases

A. May a mechanism close a case based on circumstantial evidence that the missing person is dead? Even if the fate of that person is not clarified? Even if no human remains are found? B. How should cases a mechanism is not able to solve be handled?

Chaired by: Mr Jean-François Rioux

09:45 - 10:00 Presentation of the tasks for two/three working groups

10:00 - 10:30 Pause 10:30 - 12:30 - In Working group 14:00 - 15:30 - In Working group 15:30 - 16:00 - Pause 16:00 - 18:00 - In Working group

Day two - Friday 20 September 2002

09:00 - 10:30 - In Working group 10:30 - 11:00 - Pause 11:00 - 12:30 - Reports of working groups & conclusions

14:00 - 16:00 - Reports of working groups & conclusions 16:00 - 16:30 - Pause

16:30 - 17:00 - Final summary and conclusions