Practice Relating to Rule 117. Accounting for Missing Persons

Note: For practice concerning respect for family rights, see Rule 105.
Geneva Convention IV
Article 26 of the 1949 Geneva Convention IV provides:
Each Party to the conflict shall facilitate enquiries made by members of families dispersed owing to the war, with the object of renewing contact with one another and of meeting, if possible. It shall encourage, in particular, the work of organizations engaged on this task provided they are acceptable to it and conform to its security regulations. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 26.
Additional Protocol I
Article 32 of the 1977 Additional Protocol I states that, in the implementation of the section concerning the missing and the dead, the parties “shall be prompted mainly by the right of families to know the fate of their relatives”. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 32. Article 32 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.37, 24 May 1977, p. 71.
African Charter on the Rights and Welfare of the Child
Article 19(3) of the 1990 African Charter on the Rights and Welfare of the Child provides:
Where separation results from the action of a State Party, the State Party shall provide the child, or if appropriate, another member of the family with essential information concerning the whereabouts of the absent member or members of the family. States Parties shall also ensure that the submission of such a request shall not entail any adverse consequences for the person or persons in whose respect it is made. 
African Charter on the Rights and Welfare of the Child, adopted by the Sixteenth Ordinary Session of the OAU Assembly of Heads of State and Government, Res. 197 (XVI), Monrovia, 17–20 July 1990, OAU Doc. CAB/LEG/24.9/49 (1990), Article 19(3).
Convention on Enforced Disappearance
The 2006 Convention on Enforced Disappearance provides:
Recalling … relevant international instruments in the fields of human rights, humanitarian law and international criminal law,
Affirming the right of any victim to know the truth about the circumstances of an enforced disappearance and the fate of the disappeared person, and the right to freedom to seek, receive and impart information to this end,
Article 24
1. For the purposes of this Convention, “victim” means the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance.
2. Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, … and the fate of the disappeared person. Each State shall take appropriate measures in this regard. 
International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 61/177, 20 December 2006, Annex, Preamble and Article 24.
Guiding Principles on Internal Displacement
Principles 16(1) and 17(4) of the 1998 Guiding Principles on Internal Displacement specify that families of “all internally displaced persons have the right to know the fate and whereabouts of missing relatives”. 
Guiding Principles on Internal Displacement, presented to the UN Commission on Human Rights by the Special Representative of the UN Secretary-General on Internally Displaced Persons, UN Doc. E/CN.4/1998/53/Add.2, 11 February 1998, Principles 16(1) and 17(4).
UN Secretary-General’s Bulletin
Section 9.8 of the 1999 UN Secretary-General’s Bulletin provides: “The United Nations force shall respect the right of the families to know about the fate of their sick, wounded and deceased relatives.” 
Observance by United Nations Forces of International Humanitarian Law, Secretary-General’s Bulletin, UN Secretariat, UN Doc. ST/SGB/1999/13, 6 August 1999, Section 9.8.
Argentina
Argentina’s Law of War Manual (1989) provides that a general principle is “for families to have the right to know the fate of their relatives”. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 2.05.
The manual also provides that the High Contracting Parties and the parties to the conflict shall in particular
facilitate enquiries made by members of families dispersed owing to the war, with the object of renewing contact with one another and of meeting, if possible. All persons in the territory of a Party to the conflict, or in a territory occupied by it, shall be enabled to give news of a strictly personal nature to members of their families, wherever they may be, and to receive news from them. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 4.14.
Australia
Australia’s Defence Force Manual (1994) provides:
The request for information relating to either the missing or the dead must be humanitarian in nature and stem from the need for relatives to be notified of their whereabouts and subsequent repatriation, or re-interment. Should there be any controversy resulting from the request for information, the humanitarian needs and interests of the families concerned must prevail. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 995.
Australia
Australia’s LOAC Manual (2006) states:
The request for information relating to either the missing or the dead must be humanitarian in nature and stem from the need for relatives to be notified of their whereabouts and subsequent repatriation, or re-internment. Should there be any controversy resulting from the request for information, the humanitarian needs and interests of the families concerned must prevail. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.100.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Specific Procedure on the Prisoners of War Information Bureau (2007) states that the tasks of the PWIB (Prisoners of War Information Bureau) include:
d. Concerning Belgian prisoners of war, wounded, sick and dead in the power of an enemy nation:
- Receiving from the CTA [Central Tracing Agency] all relevant information;
- Transmitting the information received to the families concerned, in accordance with the wishes of the individual concerned, if expressed.
e. Replying to all enquiries addressed to the Bureau concerning prisoners of war, including those who have died in captivity. The PWIB will undertake or commission the necessary investigations in order to acquire missing information. 
Belgium, Structure et fonctionnement du Bureau de Renseignements sur les prisonniers de guerre, Procédure spécifique, Ministère de la Défense, 2007, p. 7, § 7(d) and (e).
The Specific Procedure further provides:
If the Belgian PW [prisoner of war] has not expressed his refusal to have his family informed of his situation, a letter will be sent to the address of the person mentioned as “to be informed.” This letter shall contain the following information, in so far as available:
- surname;
- given name(s);
- identity card number;
- place and full date of birth;
- name and address of the person to be informed;
- address to which correspondence for the prisoner may be sent.
If applicable, the following information shall also be communicated:
- release date;
- repatriation date;
- admissions to hospital;
- any sickness or wounds (without prejudice to medical secrecy). 
Belgium, Structure et fonctionnement du Bureau de Renseignements sur les prisonniers de guerre, Procédure spécifique, Ministère de la Défense, 2007, p. 11, § 12(c)(1).
Cameroon
Cameroon’s Instructor’s Manual (1992) provides that the families of the dead and victims of war have the right to know the fate of their relatives. 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 21.
Cameroon
Cameroon’s Instructor’s Manual (2006) states: “The families of the [missing] have the right to know the fate of their relatives.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 95, § 352.30
Canada
Canada’s LOAC Manual (1999) contains provisions stipulating that “belligerents must facilitate enquiries by members of families dispersed as the result of war with the object of renewing contact between them”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 11-3, § 28.
Kenya
Kenya’s LOAC Manual (1997) states: “The basi[c] principles relating to ‘missing and dead’ persons, military or civilians, are based on the right of the families to know the fate of their relatives.” 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 14; see also Précis No. 4, p. 5.
Israel
Israel’s Manual on the Laws of War (1998) recalls the 1977 Additional Protocols which “specify the families’ right to know the fate of their relatives”. 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 61.
Israel
Israel’s Manual on the Rules of Warfare (2006) states that the 1977 Additional Protocols “indicate the right of the families to know the fate of [their relatives]”. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 39.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Madagascar
Madagascar’s Military Manual (1994) provides: “The provisions of the law of war concerning the dead are based on the right of the families to know the fate of their members.” 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 4-SO, § C; see also Fiche No. 1-T, § 22(3).
Mexico
Mexico’s Army and Air Force Manual (2009) states: “Families have the right to know what has become of their relatives.” 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 204.
New Zealand
New Zealand’s Military Manual (1992) provides: “Belligerents must facilitate enquiries by members of families dispersed as a result of the war, with the object of renewing contact between them.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1113(2).
Peru
Peru’s IHL Manual (2004) states: “The families of the victims of armed conflicts have the right to know what has happened to them, and the victims have the right to receive news from their family.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 85.a.
Peru
Peru’s IHL and Human Rights Manual (2010) states: “The families of the victims of armed conflicts have the right to know what has happened to them, and the victims have the right to receive news from their family.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 76(a), p. 274.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
When tactically possible, searches must be carried out to look for “missing” (who may be wounded) to try to confirm their status and ultimately to keep their family informed. The same practice should be done to look for enemy listed as missing and also civilians reported as missing. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 40.
Spain
Spain’s LOAC Manual (1996) provides: “The provisions of the law of armed conflicts concerning the dead are based on the right of the families to know the fate of their relatives.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 5.2.d.(6).
Spain
Spain’s LOAC Manual (2007) states: “The provisions of the law of armed conflict concerning enemy dead are based on the right of families to know what has happened to them.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 5.2.d.(6).
Ukraine
Ukraine’s IHL Manual (2004) states:
“Missing persons” mean persons who are missing during hostilities and whose whereabouts are unknown.
Regarding such persons, the Parties to an armed conflict shall be primarily guided by the right of the families to know about the fate of their relatives. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.29.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “Belligerents must facilitate enquiries by members of families dispersed as a result of war, with the object of renewing contact between them.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 38.
United States of America
The US Field Manual (1956) reproduces Article 26 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 265.
United States of America
The US Air Force Pamphlet (1976) stipulates that the 1949 Geneva Convention IV contains “measures for facilitating the establishment of contact between members of a family who have been separated because of the war”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-3.
United States of America
The Annotated Supplement to the US Naval Handbook (1997) states: “The United States also supports the new principles in [the 1977 Additional Protocol] I, art. 32 & 34, that families have the right to know the fate of their relatives.” 
United States, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, prepared by the Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College, Newport, Rhode Island, November 1997, § 11.4, footnote 19.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Law on Missing Persons (2004) states:
Family members have a right to know the fate of their missing family members/relatives, including their whereabouts, or, if dead, the circumstances and cause of their death, as well as the place of burial if known, and to receive their mortal remains. 
Bosnia and Herzegovina, Law on Missing Persons, 2004, Article 3.
The Law also states:
Competent authorities in Bosnia and Herzegovina shall have the obligation to ensure that the members of the missing persons’ families exercise their rights stipulated by this law and other relevant laws in Bosnia and Herzegovina under equal conditions, regardless of whether the missing person was a member of armed forces or a civilian, without any adverse discrimination, including discrimination based on sex, race, colour, language, religion or faith, political and other affiliations, national and social origin, belonging to a national minority, material status, age, mental or physical disability, status acquired by birth or any other status. 
Bosnia and Herzegovina, Law on Missing Persons, 2004, Article 10.
Chile
Chile’s Law the Establishment of a National Authority for Compensation and Reconciliation (1992), as amended in 2004, states that “the localization of disappeared detained persons and of the bodies of executed persons as well as the clarification of the circumstances of the disappearance or death constitute an inalienable right of the relatives of the victims and of Chilean society”. 
Chile, Law on the Establishment of a National Authority for Compensation and Reconciliation, 1992, as amended in 2004, Article 6.
Denmark
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, Military Criminal Code, 1973, as amended in 1978, § 25(1).
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]. 
Denmark, Military Criminal Code, 2005, § 36(2).
El Salvador
El Salvador’s Decree Creating the National Commission for Tracing Missing Children (2010) states:
Art. 1.- The National Commission for Tracing Girls and Boys Missing during the Internal Armed Conflict, which will be referred to as “Commission” or “Tracing Commission” hereinafter.
Art. 3.- The Commission shall have the mandate to:
b) Promote the right of victims to know the truth, through the promotion of procedures for the search of disappeared boys and girls;
c) Preserve and defend the right to an identity of persons that were victims of disappearances. 
El Salvador, Decree Creating the National Commission for Tracing Missing Children, 2010, Articles 1–3(b)–(c).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1949 Geneva Conventions, including violations of Article 26 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including Article 32, is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
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 two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Colombia
In 2005, in the Constitutional Case No. C-575/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
[T]he specific mention in … [Law 975 of 2005] of the victims and their relatives and the knowledge of the fate of the disappeared or kidnapped cannot be understood but as Congress’ intention to underscore that it shall be the relatives of the kidnapped and disappeared who become the primary recipients of information regarding the victims, without this implying any restriction whatsoever to other victims’ right to know the truth, or to society’s more general right to know the truth. 
Colombia, Constitutional Court, Constitutional Case No. C-575/05, Judgment of 25 July 2005, p. 234.
Colombia
In 2006, in the Constitutional Case No. C-370/06, the Plenary Chamber of Colombia’s Constitutional Court stated:
[T]he following principles are relevant for the … [present case]: the right to know is not subject to statutes of limitation and includes the opportunity to know the truth about the circumstances in which the violations were committed and, in case of death or disappearance, about the victim’s fate. 
Colombia, Constitutional Court, Constitutional Case No. C-370/06, Judgment of 18 May 2006, § 4.7.3.4.
The Court further stated:
Article 12 of the Constitution, which prohibits enforced disappearance, and the Inter-American Convention on Enforced Disappearance … stipulate inter alia the State’s obligation to seriously investigate the crime of enforced disappearance and to inform the victims and their families about the result of the investigations and the fate of the disappeared persons. This obligation must be immediately and officially complied with and does not require that the victims initiate or further the investigations. In addition, satisfactory compliance with this obligation requires the State to adopt all necessary measures to establish the whereabouts of disappeared persons as soon as possible since a delay of the investigation or of providing information to the interested persons constitutes a violation of the right of the disappeared persons’ relatives not to be subjected to cruel treatment. 
Colombia, Constitutional Court, Constitutional Case No. C-370/06, Judgment of 18 May 2006, § 6.2.2.2.4.
[footnote in original omitted]
Peru
In 2004, in the Genaro Villegas Namuche case, Peru’s Constitutional Court found:
Besides having a collective dimension, the right to know the truth has an individual dimension. The holders of this individual right are the victims, their relatives and persons close to them. The right to know the circumstances in which human rights violations were committed and, in the case of death or disappearance, to know the fate of the victims, shall not be subject to a statute of limitations. Persons directly or indirectly affected by a crime of this magnitude shall always have a right to know, amongst others, who committed the crime, when, where, how and why the victim was executed, and the location of his or her remains, even if much time has passed since the commission of the crime. 
Peru, Constitutional Court, Genaro Villegas Namuche case, Case No. 2488-2002-HC/TC, Judgment of 18 March 2004, § 9.
South Africa
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 [1949] 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. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
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. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[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. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
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 regarding the right of families to know the fate of their relatives:
The right of the families of the missing persons is to come to know the destiny of the missing members of the families and relatives, their residence/habitual residence or, if they are dead, circumstances, cause of death and place of burial, if such a place is known, and to get their remains. 
Bosnia and Herzegovina, Initial report to the Human Rights Committee, 24 November 2005, UN Doc. CCPR/C/BIH/1, § 46.
Djibouti
In 2011, in the History and Geography Textbook for 9th Grade, Djibouti’s Ministry of National Education and Vocational Training stated: “Families have the right to know the fate of their relatives.” 
Djibouti, Ministry of National Education and Vocational Training, History and Geography Textbook for 9th Grade, 2011, p. 226.
El Salvador
In 2010, in its written replies to the Human Rights Committee concerning its sixth periodic report, El Salvador stated:
60. During the period under examination, the State has not launched a comprehensive plan for the search of persons disappeared in the context of the internal armed conflict.
61. Despite the above, in the context of the current Government of El Salvador (which assumed its functions on 1 June 2009), the State … has recognized the right of the families of victims of enforced disappearance to know the truth on the whereabouts of their loved ones … in accordance with the standards of International Human Rights Law applicable to El Salvador.  
El Salvador, Written replies by the Government of El Salvador to the list of issues formulated by the Human Rights Committee in connection with its consideration of the sixth periodic report of El Salvador, UN Doc. CCPR/C/SLV/Q/6/Add.1, 21 September 2010, §§ 60–61.
On the issue of the search for children, El Salvador further stated:
[O]n 18 January 2010, Executive Decree No. 5, giving legal validity to the current “National Commission for Tracing Boys and Girls Missing during the internal armed conflict”, was published in the Official Journal. … This Commission, … which will be instituted in July 2010, will have within its functions … the promotion of the right of victims to know the truth by giving momentum to processes for the search of disappeared boys and girls. 
El Salvador, Written replies by the Government of El Salvador to the list of issues formulated by the Human Rights Committee in connection with its consideration of the sixth periodic report of El Salvador, UN Doc. CCPR/C/SLV/Q/6/Add.1, 21 September 2010, § 67.
Germany
At the CDDH in 1975, when it introduced an amendment to what became Article 32 of the 1977 Additional Protocol I, Germany, on behalf of the sponsors (Germany, United Kingdom and United States), stated:
To mitigate the suffering of the families of those who disappeared in war by removing the uncertainty about their fate and to give them an opportunity to remember their dead in the place where their remains lay was a fundamental humanitarian principle. Such principle was already included in the … Oxford Manual of 1880 and in the Hague Regulations of 1899 and 1907 and in the Geneva Conventions of 1906, 1929 and 1949. 
Germany, Statement at the CDDH on behalf of the sponsors (Germany, United Kingdom and US), Official Records, Vol. XI, CDDH/II/SR.19, 13 February 1975, p. 185, § 70.
Germany
In an explanatory memorandum submitted to parliament in 1990 in the context of the ratification procedure of the Additional Protocols, the German Government stated, with reference to Articles 32–34 of the 1977 Additional Protocol I, that all parties to the conflict were under a duty to search for missing persons, but that this principle did not include an individual and subjective right of the relatives of the person missing to gain information. 
Germany, Lower House of Parliament, Explanatory memorandum on the Additional Protocols to the Geneva Conventions, BT-Drucksache 11/6770, 22 March 1990, p. 109.
Germany
In 2005, in its Seventh Human Rights Policy Report, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
With the 1998 guidelines on the handling of crises related to internally displaced persons (“Guiding Principles on Internal Displacement”) by the then Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons, Francis Deng, the international community has a practice-oriented document, which summarizes existing standards on the protection of internally displaced persons and gives further recommendations. Although these guiding principles are not a binding instrument under international law, their acceptance by States, international organizations and NGOs has continued to grow over the past years, so that now they are virtually regarded as customary international law. 
Germany, Federal Government, Seventh Human Rights Policy Report, 17 June 2005, pp. 97–98.
Holy See
At the CDDH in 1975, the Holy See stated:
Its [i.e. an amendment’s] purpose was to remedy an omission, namely the absence of any reference to families, and to call the attention of all representatives – legal experts, politicians, doctors and soldiers – and their States to the suffering caused to families as a result of armed conflicts. It was not only separation, but anxiety, uncertainty and lack of news for months, or even years, in the case of both families and prisoners. It was not merely a question of feelings but one of respect for a fundamental right which had never been officially recognized and which was often overlooked. Indeed, in some countries the fate of certain civilians was deliberately kept secret. Unless specific mention was made of families, the bureaucrats dealing with the present provision would recognize only the technical, not the humanitarian, aspect of the problem. 
Holy See, Statement at the CDDH, Official Records, Vol. XI, CDDH/II/SR.35, 13 March 1975, p. 363, § 2.
Iraq
In 2011, Iraq’s Ministry of Human Rights issued a press release entitled “Statement: The [M]inistry of [H]uman [R]ights receives 38 remains from the Iranian side”, which stated:
The [M]inistry of [H]uman Rights had received on Tuesday Feb. 01, 2011 [at the] Shalamja border crossing the remains of 38 Iraqi martyrs that lost their lives during the Iraqi-Iranian war. … Five of the martyrs received were of known identity and [this] shall be duly published after testing and inspection, to be delivered to their families. The names of the known martyrs were published by the [M]inistry in the media … and were not received by their families yet. 
Iraq, Ministry of Human Rights, “Statement: The [M]inistry of [H]uman [R]ights receives 38 remains from the Iranian side”, Press Release, 2 February 2011.
Peru
In 2004, in its fourth periodic report to the Committee against Torture, Peru stated:
263. The judgment of the Constitutional Court in a case of forced disappearance of persons stands out in particular. In the Court’s ruling (Order No. 2488-2002-HC/TC) of 18 March 2004 regarding Mr. Genaro Villegas Namuche, a victim of forced disappearance, the right to truth was recognized as a new fundamental right. Thus, although it is not expressly recognized in Peru’s Political Constitution, the right to truth is fully protected, arising in the first place from the State’s obligation to defend fundamental rights and from the protection of the courts. Nevertheless, the Constitutional Court considered that, wherever reasonably possible and in special and unprecedented cases, implicit constitutional rights must be developed so as to allow better protection of and respect for human rights, since this will help strengthen democracy and the State, in accordance with the terms of the current Constitution.
264. In the considerations to which the judgment refers, the Court establishes the limits of application of the right to truth. According to the Court, the right is two-dimensional, being both collective and individual. …
265. Alongside … [the] collective dimension, the right to truth has an individual dimension, whose beneficiaries include victims, their families and their relatives. It resides in the knowledge of the circumstances in which human rights violations were committed and, in the event of decease or disappearance, of the fate which befell the victims as such, a knowledge that cannot be subject to time limitation. It must be remembered that the right of victims and their relatives is not limited to obtaining economic reparation, but also includes the need for the State to undertake an investigation into the facts, considering that a full knowledge of the circumstances of each case is also part of a form of moral reparation which the country and in the event the victims require for their enjoyment of democracy.
273. The forced disappearance of persons was a practice used systematically in Peru during the internal armed conflict which the country experienced during the decade of the 1980s and the beginning of the 1990s, as a consequence of the activities of terrorist groups and of the State’s response to subversion. 
Peru, Fourth periodic report to the Committee against Torture, 27 May 2005, UN Doc. CAT/C/SR.697, submitted 15 November 2004, §§ 263–265 and 273.
[emphasis in original; footnote in original omitted]
Republic of Korea
In a resolution adopted in December 1998, the National Assembly of the Republic of Korea urged cooperation between the authorities in the Democratic People’s Republic of Korea and the Republic of Korea in reuniting separated family members and proposed that the National Red Cross Societies in each region proceed with their work on family reunification. In cases where family reunification was not possible, the Assembly asked the authorities and Red Cross Societies “to start working on the confirmation of their fate”. 
Republic of Korea, National Assembly, Resolution Calling for the Confirmation of Life or Death and the Reunion of Members of Separated Families in South and North Korea, 198th Regular Session, 1 December 1998.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Enforced disappearances and arbitrary detention
Enforced disappearances violate International humanitarian law and Human rights. No conflict and no national security considerations can justify such disappearances. The Convention for the Protection of All Persons from Enforced Disappearance was adopted in 2006 but has not yet come into force (status 2008). International humanitarian law nonetheless contains provisions on the enforced disappearance of persons following an armed conflict. In particular, their next of kin have the right to know what has happened to them. 
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, p. 19.
United Kingdom of Great Britain and Northern Ireland
At the CDDH in 1975, the representative of the United Kingdom stated that:
He did not consider, for instance, that it could be said that it was a fundamental right of families to know what had happened to their relatives, although it was a basic need. To go further than that would not be wise. 
United Kingdom, Statement at the CDDH, Official Records, Vol. XI, CDDH/II/SR.35, 13 March 1975, p. 371, § 49.
United States of America
At the CDDH in 1974, the United States referred to “the anguish of the families of persons of whom there was no word during conflicts” and stressed
the need to inform those families of the fate of their missing relatives as soon as possible, and pointed out that the draft followed logically from resolution V adopted on that subject by the XXIInd International Conference of the Red Cross at Teheran in 1973. 
United States, Statement at the CDDH, Official Records, Vol. XI, CDDH/II/SR.6, 14 March 1974, p. 41, § 4.
United States of America
At the CDDH in 1976, the United States stated:
The statement of the right of the families to know the fate of their relatives was of primary importance for the understanding of the Section under discussion. Paragraph 1 of article 20 bis did not refer to other sections of the draft Protocol or the Geneva Conventions. If the right of the families was not specifically mentioned, the section might be interpreted as referring to the right of Governments, for instance, to know what had happened to certain missing persons … As regards [a] query of the Yugoslav representative whether paragraph 1 of article 20 bis was necessary, he agreed that it was unusual to state the premises on which an article was based. The paragraph had been included in response to a strong feeling of many delegations and institutions that it was important to express in the Protocol the idea that families had a right to know what had happened to their relatives. United Nations General Assembly resolution 3220 (XXIX), which the Working Group had studied when drawing up the present text, stated in the last preambular that “the desire to know … is a basic human need”, but the next under consideration went even further by referring to the “right”. 
United States, Statement at the CDDH, Official Records, Vol. XII, CDDH/II/SR.76, 1 June 1976, p. 232, §§ 28–29.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support the principle that families have a right to know the fate of their relatives.” 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 424.
UN General Assembly
In a resolution adopted in 1974, the UN General Assembly recognized that “one of the tragic results of armed conflicts is the lack of information on persons, civilians as well as combatants, who are missing or dead in armed conflict”. It also considered that:
The desire to know the fate of loved ones lost in armed conflicts is a basic human need which should be satisfied to the greatest extent possible, and that provision of information on those who are missing or who have died in armed conflicts should not be delayed merely because other issues remained pending. 
UN General Assembly, Res. 3220 (XXIX), 6 November 1974, preamble, voting record: 95-0-32-11.
UN General Assembly
In a resolution adopted in 2004 on missing persons, the UN General Assembly reaffirmed “the right of families to know the fate of their relatives reported missing in connection with armed conflicts”. 
UN General Assembly, Res. 59/189, 20 December 2004, § 3, adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on missing persons, the UN General Assembly reaffirmed “the right of families to know the fate of their relatives reported missing in connection with armed conflicts”. 
UN General Assembly, Res. 61/155, 19 December 2006, § 3, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2002 on missing persons, the UN Commission on Human Rights reaffirmed “the right of families to know the fate of their relatives reported missing in connection with armed conflict”. 
UN Commission on Human Rights, Res. 2002/60, 25 April 2002, § 2, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on missing persons, the UN Commission on Human Rights reaffirmed “the right of families to know the fate of their relatives reported missing in connection with armed conflicts”. 
UN Commission on Human Rights, Res. 2004/50, 20 April 2004, § 3, voting record: 52-0-1.
UN Commission on Human Rights
In a resolution adopted in 2005 on the right to the truth, the UN Commission on Human Rights:
Recalling article 32 of Additional Protocol I to the Geneva Conventions, of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, which recognizes the right of families to know the fate of their relatives,
Noting that the Human Rights Committee (see CCPR/C/79/Add.63 and CCPR/C/19/D/107/1981) and the Working Group on Enforced or Involuntary Disappearances (see E/CN.4/1999/62) have recognized the right of the victims of gross violations of human rights and the right of their relatives to the truth about the events that have taken place, including the identification of the perpetrators of the facts that gave rise to such violations,
Stressing the imperative for society as a whole to recognize the right of victims of gross violations of human rights and serious violations of international humanitarian law, and their families, within the framework of each State’s domestic legal system, to know the truth regarding such violations, including the identity of the perpetrators and the causes, facts and circumstances in which such violations took place,
1. Recognizes the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights. 
UN Commission on Human Rights, Res. 2005/66, 20 April 2005, preamble and § 1, adopted without a vote.
UN Sub-Commission on Human Rights
In a resolution adopted in 1981 on the question of the human rights of persons subjected to any form of detention or imprisonment, the UN Sub-Commission on Human Rights reiterated the right of families to know the fate of their relatives. 
UN Sub-Commission on Human Rights, Res. 15 (XXXIV), 10 September 1981, § 3.
Council of Europe Parliamentary Assembly
In a recommendation adopted in 1979 on the missing political prisoners in Chile, the Council of Europe Parliamentary Assembly stressed the right of families to know the fate of members who had disappeared. 
Council of Europe, Parliamentary Assembly, Rec. 868, 5 June 1979, §§ 7–12.
It also adopted an order instructing the President of the Assembly to inform the Chilean Government of its deep concern about the fate of missing political prisoners, emphasizing the right of families to be informed of the fate of their missing members after arrest or detention by the security forces. 
Council of Europe, Parliamentary Assembly, 31st Ordinary Session, Order No. 381, 28 June 1979.
Council of Europe Parliamentary Assembly
In a resolution adopted in 1980, the Council of Europe Parliamentary Assembly expressed its profound alarm at the disappearances of large numbers of people in Latin America. 
Council of Europe, Parliamentary Assembly, Res. 722, 28 January 1980, §§ 1–3.
Council of Europe Parliamentary Assembly
In a recommendation adopted in 1987 on national refugees and missing persons in Cyprus, the Council of Europe Parliamentary Assembly emphasized that the families of missing persons have a right to know the truth, and called upon European Foreign Ministers to step up their efforts to find a positive solution, in agreement with both parties, to this humanitarian problem. 
Council of Europe, Parliamentary Assembly, Rec. 1056, 5 May 1987, §§ 7–8.
In the report upon which the recommendation was based, the Committee on Migration, Refugees and Demography took the view that the Council of Europe should support the efforts of the Committee on Missing Persons to clarify the fate of the missing persons, noting that after so many years, the uncertainty was both shameful and unnecessarily cruel. 
Council of Europe, Parliamentary Assembly, Working document: Report on national refugees and missing persons in Cyprus, Doc. 5716, 39th Ordinary Session, 6 April 1987, p. 21.
European Parliament
In a resolution adopted in 1983 on the problem of missing persons in Cyprus, the European Parliament confirmed the inalienable right of all families to know the fate of members of their family who have involuntarily disappeared due to the action of governments or their agents. 
European Parliament, Resolution on the problem of missing persons in Cyprus, 11 January 1983, §§ E and H(2).
Conference on the Reaffirmation and Development of International Humanitarian Law
At the CDDH in 1975, Cyprus, France, Greece and the Holy See submitted an amendment to what became Article 32 of the 1977 Additional Protocol I which aimed at adding the following sentence: “The activity of the Parties to the conflict and the international agencies shall be mainly prompted by the fundamental right of families to know what has happened to their relatives.” 
CDDH, Amendment submitted to the CDDH by Cyprus, France, Greece and Holy See, Official Records, Vol. III, CDDH/II/259 and Add.1, 11 March 1975, p. 102.
Conference on the Reaffirmation and Development of International Humanitarian Law
At the CDDH in 1976, Austria, Cyprus, France, Greece, the Holy See, Nicaragua and Spain submitted an amendment which aimed at introducing the following text in the 1977 Additional Protocol I:
In the implementation of the provisions of this Chapter [i.e. what became Section III of the 1977 Additional Protocol I], the activity of the High Contracting Parties and of the international agencies shall be mainly prompted by the right of families to know what has happened to their relatives, and by the desire to spare them moral suffering. 
CDDH, Amendment submitted to the CDDH by Austria, Cyprus, France, Greece, Holy See, Nicaragua and Spain, Official Records, Vol. III, CDDH/II/354 and Add. 1, 28 April 1976, p. 105.
International Conference of the Red Cross (1986)
The 25th International Conference of the Red Cross in 1986 recalled “the principle by which families have the right to know the fate of their members”. 
25th International Conference of the Red Cross, Geneva, 23–31 October 1986, Res. XIII, preamble.
International Conference for the Protection of War Victims
In the Final Declaration of the International Conference for the Protection of War Victims in 1993, the participants declared that they refused “to accept that … families of missing persons [are] denied information about the fate of their relatives”. 
International Conference for the Protection of War Victims, Geneva, 30 August–1 September 1993, Final Declaration, § I(1).
International Conference of the Red Cross and Red Crescent (1995)
The 26th International Conference of the Red Cross and Red Crescent in 1995 stressed “the need and the right of families to obtain information on missing persons, including missing prisoners of war and those missing in action” and urged States and parties to armed conflict to “provide families with information on the fate of their missing relatives”. 
26th International Conference of the Red Cross and Red Crescent, Geneva, 3–7 December 1995, Res. II, § D(k).
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”. 
27th International Conference of the Red Cross and Red Crescent, Geneva, 31 October–6 November 1999, Res. I, Annex 2, Plan of Action for the years 2000–2003, Actions proposed for final goal 1.1, § 1(e).
Human Rights Committee
In 2006, in its concluding observations on the report submitted by the United Nations Interim Administration Mission in Kosovo on the human rights situation in Kosovo since June 1999, the Human Rights Committee stated:
UNMIK [United Nations Interim Administration Mission in Kosovo], in cooperation with PISG [Provisional Institutions of Self-Government], should effectively investigate all outstanding cases of disappearances and abductions and bring perpetrators to justice. It should ensure that the relatives of disappeared and abducted persons have access to information about the fate of the victims, as well as to adequate compensation. 
Human Rights Committee, Concluding observations on the report submitted by the United Nations Interim Administration Mission in Kosovo on the human rights situation in Kosovo since June 1999, UN Doc. CCPR/C/UNK/CO/1, 14 August 2006, § 13.
[emphasis in original]
Human Rights Committee
In its concluding observations on the initial report of Bosnia and Herzegovina in 2006, the Human Rights Committee stated:
The Committee notes with concern that the fate and whereabouts of some 15,000 persons who went missing during the armed conflict (1992 to 1995) remain unresolved. It reminds the State party that the family members of missing persons have the right to be informed about the fate of their relatives, and that failure to investigate the cause and circumstances of death, as well as to provide information relating to the burial sites, of missing persons increases uncertainty and, therefore, suffering inflicted to family members and may amount to a violation of article 7 of the [1966 International Covenant on Civil and Political Rights]. (arts. 2(3), 6 and 7)
The State party should take immediate and effective steps to investigate all unresolved cases of missing persons and ensure without delay that the Institute for Missing Persons becomes fully operational, in accordance with the Constitutional Court’s decision of 13 August 2005. It should ensure that the central database of missing persons is finalized and accurate, that the Fund for Support to Families of Missing Persons is secured and that payments to families commence as soon as possible. 
Human Rights Committee, Concluding observations on the initial report of Bosnia and Herzegovina, UN Doc. CCPR/C/BIH/CO/1, 22 November 2006, § 14.
[emphasis in original]
Human Rights Committee
In Quinteros v. Uruguay in 1983, the Human Rights Committee dealt with the case of Elena Quinteros who disappeared after having been arrested, held in a military detention place and subjected to torture. The Committee stated that it
understands the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. The author has the right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the [1966 International Covenant on Civil and Political Rights] suffered by her daughter in particular, of article 7. 
Human Rights Committee, Quinteros v. Uruguay, Views, 21 July 1983, § 14.
African Commission for Human and Peoples’ Rights
In its decision in Amnesty International and Others v. Sudan in 1999, the African Commission for Human and Peoples’ Rights held:
Holding an individual without permitting him or her to have any contact with his or her family, and refusing to inform the family whether the individual is being held and his or her whereabouts is an inhuman treatment of both the detainee and the family concerned. 
African Commission for Human and Peoples’ Rights, Amnesty International and Others v. Sudan, Decision, 1–15 November 1999, § 54.
European Court of Human Rights
In its judgment in Kurt v. Turkey in 1998, the European Court of Human Rights found that the anguish suffered by a mother at knowing that her son had been detained by the security forces, yet finding a complete absence of official information as to his subsequent fate, constituted ill-treatment of sufficient severity to fall within the scope of Article 3 of the 1950 European Convention on Human Rights (prohibition of inhuman or degrading treatment). 
European Court of Human Rights, Kurt v. Turkey, Judgment, 25 May 1998, §§ 130–134.
In its judgment in Timurtas v. Turkey in 2000, the Court confirmed this view. 
European Court of Human Rights, Timurtas v. Turkey, Judgment, 13 June 2000, § 98.
European Court of Human Rights
In its judgment in the Cyprus case in 2001, the European Court of Human Rights found that, in relation to Greek-Cypriot missing persons and their relatives, there had been a continuing violation of Article 3 of the 1950 European Convention on Human Rights in that the silence of the Turkish authorities in the face of the real concerns of the relatives attained a level of severity which could only be categorized as inhuman treatment. 
European Court of Human Rights, Cyprus case, Judgment, 10 May 2001, §§ 157–158.
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, Cases of Disappeared Persons (Argentina), Resolution, 8 April 1983, § 2(a); Cases of Disappeared Persons (Chile), Resolution, 1 July 1983, § 2(a); Cases of Disappeared Persons (Guatemala), Resolution, 9 April 1986, § 4(a).
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. 
Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment, 29 July 1988, § 181.
Inter-American Court of Human Rights
In 2000, in the Bámaca Velásquez case dealing with the disappearance and death of a member of the Unidad Revolucionaria Nacional Guatemalteca (URNG), the Inter-American Court of Human Rights stated that Guatemala had violated the right to humane treatment embodied in Article 5(1) and (2) of the American Convention on Human Rights to the detriment of, inter alia, the wife, father and sisters of the victim. It found that, while the victim had been held in detention without the family being informed, several judicial proceedings had been initiated, none of which had been effective, and that exhumation procedures had been ordered but obstructed by State agents. It stated that, at the time when the facts relating to the case took place, “Guatemala was convulsed by an internal conflict”, and that:
The Court has evaluated the circumstances of this case, particularly the continued obstruction of [the victims wife’s] efforts to learn the truth of the facts and, above all, the concealment of the corpse of [the victim] and the obstacles to the attempted exhumation procedures that various public authorities created, and also the official refusal to provide relevant information. Based on these circumstances, the Court considers that the suffering to which [the wife of the victim] was subjected clearly constitutes cruel, inhuman or degrading treatment, violating Article 5(1) and 5(2) of the [American Convention on Human Rights]. The Court also considers that ignorance of the whereabouts of [the victim] caused his next of kin … profound anguish … and, therefore, considers that they, too, are victims of the violation of the said Article. 
Inter-American Court of Human Rights, Bámaca Velásquez case, Judgment, 25 November 2000, §§ 121 (b) and (m), 165–166 and 230(2).
Inter-American Court of Human Rights
In its judgment in the Bámaca Velásquez case (Reparations) in 2002, the Inter-American Court of Human Rights stated:
The right of every person to know the truth has been developed in international human rights law … and the possibility for the next of kin of the victim to know what happened, and, in this case, where the remains are located, constitutes a means of reparation and, as such, an expectation of the next of kin of the victim and the society as a whole the State has to meet. 
Inter-American Court of Human Rights, Bámaca Velásquez case (Reparations), Judgment, 22 February 2002, § 76.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “The law of war provisions relating to the dead are based on the right of families to know the fate of their relatives.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 127.
Sudan People’s Liberation Movement/Army (SPLM/A)
Section 24(1) of the SPLM/A Penal and Disciplinary Laws requires that “every Battalion Commander shall maintain a register” of military personnel and the keeping of records pertaining to such personnel in the SPLM/A headquarters, on the premise that this will facilitate the search for any persons who later go missing. 
SPLM/A, Penal and Disciplinary Laws, 4 July 1984, § 24(1).
The Report on SPLM/A Practice notes:
The SPLM/A also used to announce names of Government of Sudan Officers and men and any personnel that they captured from the government when Radio SPLA was operational. The SPLM/A today still publishes in their bulletins names and other particulars of officers and men and personnel that fall into the hands of the SPLA during military operations. The SPLM/A claims to do this for the benefit of the families of those who go missing from the side of the government. 
Report on SPLM/A Practice, 1998, Chapter 5.2.