Section B. Provision of information on missing persons
Hague Regulations (1899)
Article 14 of the 1899 Hague Regulations provides:
A bureau for information relative to prisoners of war is instituted, on the commencement of hostilities, in each of the belligerent States, and, when necessary, in the neutral countries on whose territory belligerents have been received. This bureau is intended to answer all inquiries about prisoners of war, and is furnished by the various services concerned with all the necessary information to enable it to keep an individual return for each prisoner of war. It is kept informed of internments and changes, as well as of admissions into hospital and deaths.
Hague Regulations (1907)
Article 14 of the 1907 Hague Regulations provides:
An inquiry office for prisoners of war is instituted on the commencement of hostilities in each of the belligerent States, and, when necessary, in neutral countries which have received belligerents in their territory. It is the function of this office to reply to all inquiries about the prisoners. It receives from the various services concerned full information respecting internments and transfers, releases on parole, exchanges, escapes, admissions into hospital, deaths, as well as other information necessary to enable it to make out and keep up to date an individual return for each prisoner of war. The office must state in this return the regimental number, name and surname, age, place of origin, rank, unit, wounds, date and place of capture, internment, wounding, and death, as well as any observations of a special character. The individual return shall be sent to the Government of the other belligerent after the conclusion of peace.
Geneva Convention III
Article 122, first paragraph, of the 1949 Geneva Convention III provides: “Upon the outbreak of a conflict and in all cases of occupation, each of the Parties to the conflict shall institute an official Information Bureau for prisoners of war who are in its power.”
Article 122, third paragraph, of the 1949 Geneva Convention III provides that each Information Bureau shall transmit specific information on prisoners of war to the Powers concerned, through the Protecting Powers and the Central Information Agency.
Geneva Convention IV
Article 136 of the 1949 Geneva Convention IV provides:
Upon the outbreak of a conflict and in all cases of occupation, each of the Parties to the conflict shall establish an official Information Bureau responsible for receiving and transmitting information in respect of the protected persons who are in its power.
Each of the Parties to the conflict shall, within the shortest possible period, give its Bureau information of any measure taken by it concerning any protected persons who are kept in custody for more than two weeks, who are subjected to assigned residence or who are interned.
Article 137, first paragraph, of the 1949 Geneva Convention IV provides that each Information Bureau shall transmit this information to the Powers of whom the persons are nationals, through the Protecting Powers and the Central Information Agency.
Additional Protocol I
Article 33(1) of the 1977 Additional Protocol I provides that, in order to facilitate the search, each party shall transmit all relevant information concerning the persons it has reported missing. Article 33(3) provides:
Information concerning persons reported missing pursuant to paragraph 1 and requests for such information shall be transmitted either directly or through the Protecting Power or the Central Tracing Agency of the International Committee of the Red Cross or national Red Cross (Red Crescent, Red Lion and Sun) Societies. Where the information is not transmitted through the International Committee of the Red Cross and its Central Tracing Agency, each Party to the conflict shall ensure that such information is also supplied to the Central Tracing Agency.
Agreement on Refugees and Displaced Persons annexed to the Dayton Accords
Article 5 of the 1995 Agreement on Refugees and Displaced Persons annexed to the Dayton Accords provides: “The Parties shall provide information through the tracing mechanisms of the ICRC on all persons unaccounted for.”
Agreement on Normalization of Relations between Croatia and the Federal Republic of Yugoslavia
Under Article 6 of the 1996 Agreement on Normalization of Relations between Croatia and the Federal Republic of Yugoslavia, the parties undertook to speed up the process of solving the question of missing persons and agreed to immediately exchange all available information about these persons.
Israel-PLO Agreement on the Gaza Strip
In Article XIX of the 1994 Israel-PLO Agreement on the Gaza Strip, the Government of Israel and the Palestine Liberation Organization (PLO) agreed that:
The Palestinian Authority shall cooperate with Israel by providing … information about missing Israelis. Israel shall cooperate with the Palestinian Authority in … providing necessary information about missing Palestinians.
Protocol to the Moscow Agreement on a Cease-fire in Chechnya to Locate Missing Persons and to Free Forcibly Detained Persons
In the 1996 Protocol to the Moscow Agreement on a Cease-fire in Chechnya to Locate Missing Persons and to Free Forcibly Detained Persons, the working groups decided:
5. The competence of the joint working group shall extend to the location of persons who have been missing since 11 December 1994 …
6. By 11 June 1996, the working groups shall exchange lists of forcibly detained persons.
Argentina’s Law of War Manual (1989) states:
Information recorded shall be communicated as soon as possible to the National Office provided for, so that it can be transmitted to the adverse party, in particular through the Central Tracing Agency of the International Committee of the Red Cross.
Australia’s Defence Force Manual (1994) provides:
Any request and all information which may assist in tracing or identifying [missing] persons shall be transmitted through the Protecting Power or the Central Tracing Agency of the ICRC or the national Red Cross societies.
The manual further states: “The report of a missing person is to be notified by each belligerents’ National Bureau direct, or through a Protecting Power to the Central Agency of the ICRC.”
Australia’s LOAC Manual (2006) states:
9.99 … Any requests and all information which may assist in tracing or identifying such persons shall be transmitted through the Protecting Power or the Central Tracing Agency of the ICRC or the national Red Cross societies.
9.101 … The report of a missing person is to be notified by each belligerent’s national bureau direct, or through a protecting power to the Central Tracing Agency of the ICRC.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Canada’s LOAC Manual (1999) states:
The requests and all information which may assist in tracing or identifying [missing] persons shall be transmitted through the Protecting Power or the Central Tracing Agency of the International Committee of the Red Cross (ICRC) or the national Red Cross societies.
Canada’s LOAC Manual (2001) states in its chapter on the treatment of the wounded, sick and shipwrecked:
As soon as possible, and certainly immediately upon the end of hostilities, each party to the conflict must search for those reported missing by the adverse party. The requests and all information, which may assist in tracing or identifying such person shall be transmitted through the Protecting Power or the Central Tracing Agency of the International Committee of the Red Cross (ICRC) or the national Red Cross Societies.
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power, the manual states:
1132. Information bureau
1. [The 1949 Geneva Convention IV] requires that upon the outbreak of a conflict and in all cases of occupation each of the parties to the conflict must establish an official information bureau to receive and transmit information concerning the protected persons who are in its power. Each party is bound, as soon as possible, to give its bureau full particulars relating to the placing in custody for more than two weeks, the placing in assigned residence, or the internment, of any protected person. It is also the duty of each party to see that its various departments concerned with such matters give the bureau prompt information concerning the protected persons, for example, transfers, releases, repatriations, escape, admissions to hospital, births and deaths.
2. Each national bureau must forward without delay information concerning protected persons to the powers of which such persons are nationals or in whose territory they formerly resided. This is to be done through the Protecting Powers and through a central agency, which is to be set up in a neutral country. The national bureau must also reply to all enquiries concerning protected persons unless sending such information would be detrimental to the person concerned or to his or her relatives.
1133. Central agency
1. A central information agency for protected persons, particularly internees, must be set up in a neutral country. The ICRC may, if it thinks it necessary, propose to the powers concerned the organization of such an agency. The duty of the agency is to collect the information referred to in the preceding paragraphs and to send it to the countries of origin or residence of the persons concerned, unless this course might be harmful to the persons concerned or their relatives.
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
Lesson 5. The International Committee of the Red Cross
The aim of this lesson is to familiarize the soldier with the activities of the International Committee of the Red Cross, generally and in particular in times of armed conflict.
… To protect and assist the victims of situations of armed conflict and disturbances, the ICRC undertakes several activities in their favour[:]
- it endeavours to restore and to maintain family links between separated family members; for more than a century, the ICRC’s Central Tracing Agency has dedicated itself to the following activities: searching for persons reported missing or of whom their families have lost sight; reuniting separated families; transmitting messages when normal communication systems are paralysed or destroyed by the war; … delivering death or capture certificates.
Germany’s Military Manual (1992) provides: “Each of the Parties to the conflict is obliged to forward information regarding the fate of protected civilians … as well as of prisoners of war … wounded, sick, shipwrecked, and dead.”
Mexico’s Army and Air Force Manual (2009) states: “[A]s soon as circumstances permit and, at the latest, when hostilities have ended, the parties to the conflict should search for persons reported missing by an adverse party and transmit all relevant information concerning such persons in order to facilitate the search.”
The Military Manual (1993) of the Netherlands states:
An important task of the Netherlands Red Cross is the establishment of a National Information Bureau. The task of this bureau consists of the collection and transmission, in cooperation with the Central Tracing Agency of the ICRC, of information about prisoners of war and other protected persons.
The Military Manual (2005) of the Netherlands states:
In addition to possible action as a protecting power and to gathering information on prisoners of war, the ICRC fulfils the following tasks:
- tracing missing persons and forwarding messages to prisoners of war and civilian detainees.
The manual further states:
An important task of the Dutch Red Cross is to form the National Information Bureau, whose task is to cooperate with the Central Tracing Agency of the ICRC in collecting and forwarding information about prisoners of war and other protected persons. In many countries, this task is not carried out by the national Red Cross organization, but by the government.
New Zealand’s Military Manual (1992) provides:
The requests and all information which may assist in tracing or identifying [missing] persons shall be transmitted through the Protecting Power or the Central Tracing Agency of the International Committee of the Red Cross or the national Red Cross societies.
The manual further states:
Each national Bureau must forward without delay information concerning protected persons to the Power of which such persons are nationals or in whose territory they formerly resided … The national Bureau must also reply to all enquiries concerning protected persons unless sending such information would be detrimental to the person concerned or to his relatives. Even then the information must be given to the Central Agency.
The Russian Federation’s Military Manual (1990) recalls the rules of IHL, “which set the obligation: a) in peacetime: … to provide for a set of measures relating to the organization of tracing, registration of and reporting of missing persons, and also of a service to implement these measures”.
Peru’s IHL and Human Rights Manual (2010) states: “Each party to the conflict must endeavour to trace persons reported missing by an adverse party, which must provide all the relevant information on the missing persons in order to facilitate the search.”
Sierra Leone’s Instructor Manual (2007) states: “In order to ensure that everyone is accounted for, details – who, when, where, how etc, of those who are ‘missing’ are taken and passed back up the chain of command. This is an administrative obligation.”
South Africa’s LOAC Teaching Manual (2008) states:
Protection of Missing Persons (Article 33 of  Additional Protocol I)
- This article stipulates that as soon as circumstances permit, and at the latest from the end of active hostilities, each Party to the conflict shall search for the persons who have been reported missing by an adverse Party.
- In order to assist Parties in this task adverse Parties shall provide all relevant information to such a Party, including information concerning such persons who have been detained, imprisoned or otherwise held in captivity for more than two weeks as a result of hostilities or occupation, or who have died during any period of detention.
Spain’s LOAC Manual (2007) states: “Each party to the conflict … must provide all the relevant information on the missing persons to the adverse party.”
Ukraine’s IHL Manual (2004) states:
Requests for search from one Party to another in accordance with the provisions of part V of the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 and part III of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 shall be transmitted through the National Tracing Agencies and the Central Tracing Agency of the International Committee of the Red Cross.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “Each party must search for persons reported missing by an adverse party and also facilitate such searches by the provision of relevant information.”
United States of America
The US Field Manual (1956) reproduces Article 122 of the 1949 Geneva Convention III and Articles 136 and 137 of the 1949 Geneva Convention IV.
United States of America
The US Naval Handbook (2007) states: “The  Geneva Conventions recognize the special status of the ICRC and have assigned specific tasks for it to perform, including … searching for information concerning missing persons.”
Zimbabwe’s Code of Conduct for Combatants (1993) states:
THE ICRC’S CENTRAL TRA[C]ING AGENCY
In international conflicts, civil war and situations of internal disturbances and tensions, its tasks are as follows:
1. To obtain, record, process and transmit all information required for the identification of persons being traced by the ICRC;
2. To forward correspondence between dispersed family members when normal means of communication are disrupted;
3. To seek persons reported missing or whose relatives are without news of them;
4. To reunite families and organize transfers and repatriations.
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) provides:
In order to further trace such persons [considered to be missing by the adverse party], information concerning them shall be given to the adverse party directly through the Protecting Power or their substitute – the ICRC …
The appropriate authorities and governmental bodies of the Azerbaijan Republic shall ensure that the necessary measures be taken that:
2) correct information concerning the missing and requests about them are given to the adverse party directly through the Protecting Power or their substitute – the International Committee of the Red Cross.
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Red Cross Society Law (2004) states:
The Tracing Agency shall be formed within the [Red Cross] Society in order to provide information on war victims, as foreseen by the  Geneva Conventions and the Tracing Agency Rule Book which regulate the collection of data on the victims of armed conflict, and in order to perform other tasks stipulated in the Geneva Conventions as well as to organize the Tracing Agency in the Society.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Law on Missing Persons (2004) states:
Article 4 (Obligation of Providing Information)
[R]elevant authorities and institutions of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, Republika Srpska, and Brčko District of Bosnia and Herzegovina in charge of defence, justice and the interior as well as other authorities in charge of tracing the missing persons, and other entity, cantonal and municipal authorities which, within their competence, solve cases related to persons unaccounted for in/from Bosnia and Herzegovina … are obliged to provide any available information to the families of the missing persons, relevant institutions for tracing the missing persons, as well as all the necessary support related to the process of improving the tracing and solving the cases of the missing persons from/in Bosnia and Herzegovina.
Article 5 (The Way of Information Exchange)
Competent authorities at all levels … are obliged, within 30 days from this law entering into force, to designate competent bodies, i.e. officials, who shall be obliged to cooperate with the relevant institutions and bodies for tracing the missing persons, associations of families and members of the missing persons’ families and to assist in exercising the rights that the members of the missing persons’ families are entitled to on the basis of this and other relevant laws in Bosnia and Herzegovina.
Competent authorities … are obliged on the basis of the previously and recently submitted requests for information to collect and check any available information and facts, specifying the sources checked in the process of establishing such information that is related to the disappearance of the missing person, to look into the official records and materials within their competent institution and to communicate the information in writing to the applicant and the relevant institutions for tracing the missing persons.
Article 6 (Obligation of Exchange and Cooperation)
Competent authorities in Bosnia and Herzegovina shall have the obligation to exchange amongst themselves the information related to the process of tracing and establishing the fates and identities of the missing persons.
The Law also states:
The Central Records of the Missing Persons in Bosnia and Herzegovina … shall include all records of the missing persons having been kept on local and entity levels, by associations of families of the missing persons, other associations of citizens, and by Tracing Agencies of Bosnia and Herzegovina’s Red Cross, within their respective mandates.
The data about the missing persons, kept by the international organizations within their respective mandates, under the principle of confidentiality, are included in the Central Records on the basis of the agreement the Institute concludes with them.
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 122 of the Geneva Convention III and Articles 136 and 137 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 33(1) and (3), are punishable offences.
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment.
Peru’s Directive on Investigations of Sites where Human Remains Were Discovered (2009) states:
Any preliminary forensic information, specific information obtained during the recovery of the bodies and their associated evidence, as well as information gathered during the laboratory analysis – which includes genetic information – shall be registered in an information management system, namely the Pre-Mortem/Post-Mortem Database of the International Committee of the Red Cross.
Spain’s Law on the Victims of the Civil War and the Dictatorship (2007) states under the heading “Measures to identify and locate victims”:
The public administrations shall draft and offer to all within their jurisdiction maps showing the places where human remains as defined in the previous article [i.e. human remains of persons who disappeared during the Civil War or during the subsequent political repression and whose whereabouts are unknown] are located, including every available piece of complementary information.
The Government shall … elaborate a map of the entire Spanish territory and make it accessible to every interested citizen. The map shall include the data provided by the different administrations.
United States of America
The US National Defense Authorization Act for Fiscal Year 2010 (2009) provides for the following authorisation:
Sec. 541. Additional Requirements for Accounting for Members of the Armed Forces and Department of Defense Civilian Employees Listed as Missing in Conflicts Occurring Before Enactment of New System for Accounting for Missing Persons
(a) IMPOSITION OF ADDITIONAL REQUIREMENTS.—Section 1509 of title 10, United States Code, is amended to read as follows:
“§ 1509. Program to resolve pre-enactment missing person cases
“(a) PROGRAM REQUIRED; COVERED CONFLICTS.—The Secretary of Defense shall implement a comprehensive, coordinated, integrated, and fully resourced program to account for persons described in subparagraph (A) or (B) of section 1513(1) of this title who are unaccounted for from the following conflicts:
“(1) World War II during the period beginning on December 7, 1941, and ending on December 31, 1946, including members of the armed forces who were lost during flight operations in the Pacific theater of operations covered by section 576 of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106–65; 10 U.S.C. 1501 note).
“(2) The Cold War during the period beginning on September 2, 1945, and ending on August 21, 1991.
“(3) The Korean War during the period beginning on June 27, 1950, and ending on January 31, 1955.
“(4) The Indochina War era during the period beginning on July 8, 1959, and ending on May 15, 1975.
“(5) The Persian Gulf War during the period beginning on August 2, 1990, and ending on February 28, 1991.
“(6) Such other conflicts in which members of the armed forces served as the Secretary of Defense may designate.
“(d) ESTABLISHMENT OF PERSONNEL FILES.—(1) The Secretary of Defense shall ensure that a personnel file is established and maintained for each person covered by subsection (a) if the Secretary—
“(A) possesses any information relevant to the status of the person; or
“(B) receives any new information regarding the missing person as provided in subsection (e).
“(2) The Secretary of Defense shall ensure that each file established under this subsection contains all relevant information pertaining to a person covered by subsection (a) and is readily accessible to all elements of the department, the combatant commands, and the armed forces involved in the effort to account for the person.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
According to the Report on the Practice of Algeria, in the late 1950s, during the Algerian war of independence, the Armée de Libération Nationale (ALN) denied all responsibility for missing persons on the basis that it had systematically released all prisoners.
Bosnia and Herzegovina
In 2005, in its initial report to the Human Rights Committee, Bosnia and Herzegovina stated that its Law on Missing Persons (2004) includes provisions on the “establishment of a central database on missing persons from/within Bosnia and Herzegovina”.
In 2008, in its third and fourth periodic reports to the Committee on the Rights of the Child, El Salvador stated:
The fieldwork [of the Inter-Institutional Commission to search for children who disappeared owing to armed conflict in El Salvador] includes interviews … with officials of … international institutions, such as … the International [Committee of the] Red Cross … , from which valuable and important information has been obtained.
In 1988, in a report on the Measures of Implementation of the 1949 Geneva Conventions and the 1977 Additional Protocols, the Ministry of Foreign Affairs of the Netherlands stated that “the National Information Bureau has a plan for the … registration and communication of information” with regard to missing persons.
The Report on the Practice of the Philippines states that it is the practice of the Philippines during clashes between government troops and insurgent forces for the military to account for the number of dead insurgents and of those taken prisoner. The information collected is then passed on to the authorities with a view to transmitting the names of the missing to the rebel side. This notification is, however, frequently subject to delay.
United Kingdom of Great Britain and Northern Ireland
In 2003, in reply to an oral question in the House of Lords asking whether “the Government [would] give some priority to Kuwaiti prisoners of war and those missing in action since the previous Gulf War”, the UK Parliamentary Under-Secretary of State for Defence stated:
My Lords, I am delighted that that question has been asked, because it is one matter about which the Iraqi regime has been asked ever since the first Gulf War ended. I believe that there are 600 Kuwaiti prisoners whose whereabouts are completely unknown. Perhaps not surprisingly, the Iraqi regime has done absolutely nothing to assist the Kuwaiti authorities on that matter. We shall certainly be looking into that as matters develop.
United States of America
According to the Report on US Practice, it is the opinio juris
of the United States that the parties to all armed conflicts should take such action as may be within their power to provide information about missing persons.
UN General Assembly
In a resolution adopted in 1974, the UN General Assembly called upon parties to armed conflicts, “regardless of their character or location, during and after the end of hostilities, and in accordance with the Geneva Conventions of 1949, to take such action as may be within their power … to provide information about those who are missing in action”.
UN General Assembly
In resolution adopted in 1999 on the situation of human rights in Kosovo, the UN General Assembly called upon the authorities of the Federal Republic of Yugoslavia (Serbia and Montenegro) “to provide information on the fate and whereabouts of the high number of missing persons from Kosovo”.
UN General Assembly
In a resolution adopted in 2006 on missing persons, the UN General Assembly:
, in this regard, the need for the collection, protection and management of data on missing persons according to international and national legal norms and standards, and urges States to cooperate with each other and with other concerned actors working in this area, inter alia, by providing all relevant and appropriate information related to missing persons.
UN General Assembly
In a resolution adopted in 2007 on the situation of human rights in Myanmar, the UN General Assembly called upon the Government of Myanmar:
To allow the International Committee of the Red Cross to carry out its humanitarian activities for people in need, in particular by granting immediate access to persons detained and by providing the necessary information on persons unaccounted for in connection with recent events.
UN Commission on Human Rights
In a resolution adopted in 1994, the UN Commission on Human Rights urged all the parties in the former Yugoslavia to disclose relevant information and documentation concerning thousands of missing persons.
UN Commission on Human Rights
In a resolution adopted in 1995 on the special process dealing with the problem of missing persons in the territory of the former Yugoslavia, the UN Commission on Human Rights emphasized the obligation contained in the 1995 Dayton Accords to disclose all relevant information concerning missing persons.
UN Commission on Human Rights
In a resolution adopted in 1998 on the situation of human rights in Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia, the UN Commission on Human Rights called upon Croatia to disclose all relevant material on missing persons.
UN Sub-Commission on Human Rights
In a resolution adopted in 1992 on the situation in East Timor, the UN Sub-Commission on Human Rights urged the Government of Indonesia to provide information on those persons who were reported missing following incidents in Dili.
UN High Commissioner for Refugees
In 1996, in its report to the 50th Session of the UN General Assembly, the UNHCR Executive Committee expressed “its utmost concern for the fate of … missing persons within and from the territory of the former Yugoslavia” and reiterated “the urgent appeals by the international community … to provide full information on the fate of those unaccounted for”.
Council of Europe Parliamentary Assembly
In a resolution adopted in 1995 on the situation in some parts of the former Yugoslavia, the Council of Europe Parliamentary Assembly demanded information about the whereabouts of 5,000 Bosnian Muslims from Srebrenica.
Council of Europe Parliamentary Assembly
In a recommendation adopted in 1998, the Council of Europe Parliamentary Assembly recommended that the Committee of Ministers urge the parties to the conflict in Kosovo to provide information about missing persons.
In a resolution adopted in 1990, the European Parliament condemned the continuing lack of information on persons missing on both sides following the invasion of Cyprus in 1974 and calling for the immediate provision of information on the fate of these persons.
International Conference of the Red Cross (1973)
The 22nd International Conference of the Red Cross in 1973 adopted a resolution on the missing and dead in armed conflicts in which it recognized that “one of the tragic consequences of armed conflicts is a lack of information on persons missing, killed or deceased in captivity” and called on “parties to armed conflicts, during hostilities and after cessation of hostilities … to provide information about those who are missing in action”. The Conference further called on parties to conflicts to:
co-operate with Protecting Powers, with the ICRC and its Central Tracing Agency, and with such other appropriate bodies as may be established for this purpose, and in particular National Red Cross Societies, to accomplish the humanitarian mission of accounting for the dead and missing, including those belonging to third countries not parties to the armed conflict.
International Conference of the Red Cross and Red Crescent (1995)
The 26th International Conference of the Red Cross and Red Crescent in 1995:
(c) emphasizes that family reunification must begin with the tracing of separated family members at the request of one of them and end with their coming together as a family;
(d) stresses the particular vulnerability of children separated from their families as a result of armed conflict, and invites the ICRC, the National Societies and the International Federation, within the scope of their respective mandates, to intensify their efforts to locate unaccompanied children, to identify them, to re-establish contact and reunite them with their families, and to give them the necessary assistance and support;
(e) notes that the form of a family may vary from one culture to the other, recognizes the aspiration of separated families to be reunited and appeals to States to apply criteria for family reunification in such a way that they take into account the situation of those family members who are most vulnerable;
(f) requests that the legal status of family members in a host country be determined swiftly and in a humanitarian spirit, with a view to ensuring the facilitation of family reunification;
(g) calls upon States to facilitate the tracing activities of their respective National Red Cross or Red Crescent Societies by granting them access to the relevant data;
(h) encourages National Societies to maximize their efficiency in carrying out tracing work and family reunifications by strengthening their tracing and social welfare activities and maintaining close cooperation with the ICRC, government authorities and other competent organizations, such as the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM) and non-governmental organizations (NGOs) involved in such work;
(i) calls upon States to support National Societies in carrying out such tracing work and family reunifications;
(j) commends the role of the ICRC’s Central Tracing Agency (CTA) in tracing and reuniting family members, and encourages the CTA to continue to coordinate, whenever necessary, National Society activities in tracing and reuniting families and to train National Society staff in the principles and techniques of tracing;
(k) stresses the need and the right of families to obtain information on missing persons, including missing prisoners of war and those missing in action, and strongly urges States and parties to armed conflict to provide families with information on the fate of their missing relatives;
(l) urges States and parties to armed conflict to cooperate with the ICRC in tracing missing persons and providing necessary documentation.
International Conference of the Red Cross and Red Crescent (1999)
The Plan of Action for the years 2000–2003 adopted in 1999 by the 27th International Conference of the Red Cross and Red Crescent proposed that all the parties to an armed conflict take effective measures to ensure that “every effort is made to clarify the fate of all persons unaccounted for and to inform the families accordingly”.
European Court of Human Rights
In its judgment in Kurt v. Turkey
in 1998, the European Court of Human Rights held that where it was established that a disappeared person had been in the custody of the security forces, this gave rise to a presumption of responsibility on the part of the authorities to account for that person’s subsequent fate.
Inter-American Commission on Human Rights
On different occasions, the Inter-American Commission on Human Rights recommended that the governments of Argentina, Chile and Guatemala provide detailed information to family members concerning the status of disappeared persons.
Inter-American Commission on Human Rights
In 1992, in a case concerning Colombia, the Inter-American Commission on Human Rights concluded:
The Colombian Government has failed to comply with its obligation to respect and guarantee Articles 4 (the right to life), 5 (the right to humane treatment), 7 (the right to personal liberty) and 25 (on judicial protection) … in respect to the abduction and subsequent disappearance of Mr. Alirio de Jesús Pedraza Becerra.
[It recommended that the Government of Colombia] continue and enlarge the investigation into the events denounced.
Inter-American Court of Human Rights
In its judgment in the Velásquez Rodríguez case in 1988, the Inter-American Court of Human Rights found:
The duty to investigate facts of this type continues as long as there is uncertainty about the fate of the person who has disappeared. Even in the hypothetical case that those individually responsible for crimes of this type cannot be legally punished under certain circumstances, the State is obligated to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains.