Practice Relating to Rule 117. Accounting for Missing Persons
In 1995, during a debate in the UN Security Council concerning Bosnia and Herzegovina, the German representative noted that his delegation had taken the initiative in the Security Council to push for measures to be taken to establish the whereabouts of missing Bosnian men.
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.”
In 1995, in reply to a question in parliament, the German Government declared that it fully supported all efforts undertaken by UNHCR and the ICRC to find missing persons in the region of Srebrenica and to take care of them.
In 1995, during a debate in the UN Security Council, Germany expressed its government’s full support for “the ongoing efforts of the ICRC and United Nations representatives to gain access to … information about the fate of all missing persons”.
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.
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.
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.